     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 22, 2018

                                2018COA43

No. 17CA0235, Johnson v. City & Cty of Denver — Municipal
Law — City and County of Denver — Police — Use of Force —
Disciplinary Appeals — Standard of Review

     In this officer discipline case, a division of the court of appeals

holds, as a matter of first impression, that under the standards of

review set forth in the Denver City Charter and the Denver Civil

Service Commission Rules, the Civil Service Commission must defer

to a hearing officer’s findings of evidentiary fact and may not rely on

a video exception not contained in those standards of review

because that exception is contrary to law. The division further

holds that the Denver Police Department’s use of force policy

articulates a single standard for reviewing an officer’s use of force

and that separate standards do not exist for deadly and non-deadly

force. The division finally concludes that while the Civil Service
Commission erred in relying on the video exception to reverse the

hearing officer’s decision, it nonetheless reached the correct result

for two reasons. First, the hearing officer erroneously concluded

that separate standards for deadly and non-deadly force existed and

erroneously applied that standard. Second, the hearing officer did

not properly defer to the Manager of Safety’s findings as required by

the standard of review applicable to hearing officers and set forth in

the Denver Civil Service Commission Rules. Accordingly, the

division affirms the district court’s judgment affirming the order of

discipline.
COLORADO COURT OF APPEALS                                       2018COA43


Court of Appeals No. 17CA0235
City and County of Denver District Court No. 15CV31660
Honorable J. Eric Elliff, Judge


Choice Johnson,

Plaintiff-Appellant,

v.

Civil Service Commission of the City and County of Denver; and the City and
County of Denver, Colorado,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                  Division VII
                          Opinion by JUDGE FREYRE
                        Bernard and Berger, JJ., concur

                          Announced March 22, 2018


The Lane Law Firm, P.C., Sean J. Lane, Greenwood Village, Colorado, for
Plaintiff-Appellant

Kristin M. Bronson, City Attorney, Richard A. Stubbs, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellees
¶1    In this police discipline case involving an alleged inappropriate

 use of force, we describe and then apply the standards of review

 that a hearing officer must apply when reviewing the Denver Police

 Department’s (Department) imposition of discipline and that the

 Civil Service Commission of the City and County of Denver

 (Commission) must apply when reviewing the hearing officer’s

 decision.

¶2    Choice Johnson, a Denver police officer, appeals the district

 court’s judgment upholding his thirty-day suspension. He raises

 two issues on appeal. He contends, and we agree, that the

 Commission abused its discretion when it made its own findings of

 fact from a video recording of the events at issue and when it

 rejected contrary facts found by the hearing officer. In doing so, the

 Commission relied on an exception of its own making — the video

 exception. The legality of this video exception presents a novel

 issue. We conclude that the video exception is contrary to law

 because it is not authorized by the standards of review articulated

 in the Denver City Charter (Charter) and in the Denver Civil Service

 Commission Rules (Rules), which require the Commission to defer

 to the hearing officer’s findings of evidentiary fact.


                                     1
¶3    We further conclude that the “clearly erroneous” standard of

 review set forth in the Rules requires the hearing officer to defer to

 the factual findings of the Manager of Safety (MOS)1 unless they are

 “contrary to what a reasonable person would conclude from the

 record as a whole.” Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c).

 Because the MOS’s findings were not contrary to what a reasonable

 person would conclude from the record as a whole, the hearing

 officer erred in substituting her own findings for those of the MOS.

 Therefore, we affirm the Commission’s decision upholding the

 discipline, albeit on different grounds than those relied on by the

 district court.2

                    I.   Factual and Procedural Background

¶4    As found by the hearing officer, Officer Johnson worked

 off-duty at a nightclub in downtown Denver. Matthew Schreiber,

 his brother Brandon, and others were at the nightclub celebrating

 Matthew’s upcoming marriage. Matthew either fell asleep or passed

 1 The Denver Manager of Safety delegated to the Deputy Manager of
 Safety the responsibility of reviewing the Chief of Police’s written
 command ordering discipline against Officer Johnson. We
 nevertheless use the shorthand “MOS” to refer to the Deputy
 Manager of Safety.
 2 We also briefly discuss the City and County of Denver’s contention

 that the hearing officer applied the wrong use of force standard.

                                    2
 out at the bar, and one of the nightclub’s bouncers escorted him off

 the premises. Because Matthew was uncooperative and wished to

 stay at the bar, the bouncer asked Officer Johnson for assistance.

 Officer Johnson told Matthew he should take a taxi home. Matthew

 did not live in Denver and said that he wished to go back into the

 nightclub and drink water. Officer Johnson warned Matthew that if

 he returned he would be taken to a detox facility. Matthew then left

 the premises.

¶5    Approximately twenty minutes later, Officer Johnson saw

 Matthew waiting in line to re-enter the nightclub. He removed

 Matthew from the line, handcuffed him, and told him that he

 needed to wait for the detox van to arrive.

¶6    A short time later, the other members of Matthew’s bachelor

 party left the nightclub and found Matthew in handcuffs. They

 confronted Officer Johnson and asked him why Matthew was in

 handcuffs. In particular, Brandon profanely argued with Officer

 Johnson.

¶7    During the argument, Officer Johnson moved the group under

 a High Activity Location Observation (HALO) camera, which




                                   3
 video-recorded their interactions.3 That video revealed that

 everyone in the group was visibly intoxicated (swaying). Officer

 Johnson told the group to break up and leave, but Brandon

 continued to argue. Eventually, two parties left, leaving Brandon

 and another man.4 Officer Johnson said he was ordering Brandon

 to detox and instructed Brandon to turn around to be handcuffed.

 Brandon profanely told Officer Johnson not to touch him. Officer

 Johnson then suddenly moved toward Brandon, and shoved

 Brandon with both hands near the neck. Brandon fell backwards

 onto some stairs leading up from where they were standing. Officer

 Johnson then handcuffed Brandon.

¶8    Brandon filed a disciplinary complaint against Officer

 Johnson. After an internal investigation, the Chief of Police

 determined that Officer Johnson had violated Denver Police

 Department Rules and Regulations RR-306 (inappropriate force

 policy), and suspended him for thirty days without pay. The MOS,




 3 No audio was recorded.
 4 The video also shows patrons walking by and the nightclub’s

 bouncer in the background, but none of these individuals were part
 of the events leading to the officer’s use of force.

                                   4
  after conducting an independent review of the internal investigation

  and making detailed findings, approved the discipline imposed.

¶9     Officer Johnson then appealed his suspension to a civil service

  commission hearing officer. After conducting an evidentiary

  hearing, the hearing officer reversed the Department’s suspension

  for two reasons. She concluded that (1) the MOS had erroneously

  applied the deadly force rather than the non-deadly force standard

  to Officer Johnson’s conduct; and (2) the MOS had failed to present

  sufficient evidence to create a reasonable inference that finding a

  violation of RR-306 was correct.

¶ 10   The City and County of Denver (City) appealed the hearing

  officer’s decision to the Commission. The Commission reversed the

  hearing officer’s decision. It first rejected the notion that two use of

  force standards existed. It found that the Department was free to

  impose higher standards than the United States Constitution

  required and that the MOS had properly applied the use of force

  standard. The Commission next rejected the hearing officer’s

  conclusion that the discipline was not supported by the record. It

  found that the video evidence alone, depicting the four minutes

  leading up to the use of force, contradicted portions of Officer


                                     5
  Johnson’s testimony and provided ample evidence to support the

  thirty-day suspension. Relying on a Commission-created “video

  exception,” it reinstated the Department’s discipline.

¶ 11   Officer Johnson then appealed to the district court, which

  affirmed the Commission’s decision.

                                    II.       Analysis

¶ 12   We first address the standards of review applicable to the

  Commission and the hearing officer and conclude that both

  misapplied their respective standards of review. We next address

  and reject Officer Johnson’s contention that the Commission legally

  erred in finding that only one use of force standard exists, despite

  his assertion that Tennessee v. Garner, 471 U.S. 1 (1985),

  articulates a deadly force standard and Graham v. Connor, 490 U.S.

  386 (1989), articulates a non-deadly force standard. We finally

  conclude that despite the Commission’s misapplication of its

  standard of review, its ultimate decision reversing the hearing

  officer’s order was correct, because the hearing officer applied the

  wrong standard of review to the MOS’s decision. In the end, we

  affirm the order of discipline.




                                          6
                  A. Standard of Review and Applicable Law

¶ 13   C.R.C.P. 106(a)(4) provides as follows:

             Where any governmental body or officer or any
             lower judicial body exercising judicial or
             quasi-judicial functions has exceeded its
             jurisdiction or abused its discretion, and there
             is no plain, speedy and adequate remedy
             otherwise provided by law: (I) Review shall be
             limited to a determination of whether the body
             or officer has exceeded its jurisdiction or
             abused its discretion, based on the evidence in
             the record before the defendant body or officer.

  Thus, in a C.R.C.P. 106(a)(4) action, “judicial review of a

  governmental agency exercising its quasi-judicial role . . . is limited

  to whether the body has exceeded its jurisdiction or abused its

  discretion.” City of Commerce City v. Enclave W., Inc., 185 P.3d 174,

  178 (Colo. 2008). We sit in the same position as the district court

  when reviewing an agency decision under C.R.C.P. 106(a)(4).

  Marshall v. Civil Serv. Comm’n, 2016 COA 156, ¶ 10; Roalstad v.

  City of Lafayette, 2015 COA 146, ¶ 13. We review de novo whether

  the agency abused its discretion. Roalstad, ¶ 13.

¶ 14   An agency abuses its discretion if its decision is not

  reasonably supported by any competent evidence in the record, or if

  the agency has misconstrued or misapplied applicable law.



                                     7
  Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892,

  899-900 (Colo. 2008); Roalstad, ¶ 13. An action by an agency is

  not arbitrary or an abuse of discretion when the reasonableness of

  the agency’s action is open to a fair difference of opinion, or when

  there is room for more than one opinion. Bennett v. Price, 167 Colo.

  168, 172, 446 P.2d 419, 420-21 (1968).

¶ 15   “In reviewing the agency’s construction, we rely on the basic

  rules of statutory construction, affording the language of the

  provisions at issue their ordinary and common sense

  meaning.” Enclave W., Inc., 185 P.3d at 178. “Our primary task in

  interpreting statutes and municipal enactments is to give effect to

  the intent of the drafters, which we do by looking to the plain

  language.” Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250

  P.3d 722, 725 (Colo. App. 2010). If the language of the provision at

  issue is clear and the intent of the legislative body that enacted it

  may be discerned with certainty, we may not resort to other rules of

  statutory interpretation. Id. When construing an ordinance in

  the C.R.C.P. 106(a)(4) context, “we give effect to every word and, if

  possible, harmonize potentially conflicting provisions.” Enclave W.,

  Inc., 185 P.3d at 178.


                                     8
¶ 16   Our review of the agency’s factual, discretionary

  determinations is more deferential. We must uphold the

  Commission’s decision unless there is no competent evidence in the

  record to support it. Carney v. Civil Serv. Comm’n, 30 P.3d 861,

  863 (Colo. App. 2001).5 “No competent evidence” means that the

  Commission’s decision is “so devoid of evidentiary support that it

  can only be explained as an arbitrary and capricious exercise of

  authority.” Id. (quoting Bd. of Cty. Comm’rs v. O’Dell, 920 P.2d 48,

  50 (Colo. 1996)); accord Turney v. Civil Serv. Comm’n, 222 P.3d 343,

  347 (Colo. App. 2009). “An action by an administrative [body] is not

  arbitrary or an abuse of discretion when the reasonableness of the

  [body’s] action is open to a fair difference of opinion, or when there

  is room for more than one opinion.” Khelik v. City & Cty. of Denver,

  2016 COA 55, ¶ 13. Because we are not the fact finder, we “cannot

  weigh the evidence or substitute our own judgment for that of the




  5 Under this standard, the appropriate consideration for an
  appellate court is whether there is sufficient evidentiary support in
  the record for the administrative body’s decision, not whether there
  is adequate evidence to support the decision of the district court.
  Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo.
  1986).

                                     9
  [administrative body].” Kruse v. Town of Castle Rock, 192 P.3d 591,

  601 (Colo. App. 2008).6

           B. The Commission’s Video Exception is Contrary to Law

¶ 17   Officer Johnson contends that the Commission abused its

  discretion in refusing to defer to several of the hearing officer’s

  findings of evidentiary fact based on the “video exception.” In a

  prior case, In re Sparks & Murr, Nos. 11 CSC03A-2 & 11 CSC04A-2,

  slip op. at 23-24 (Civil Serv. Comm’n City & Cty. of Denver Dec. 9,

  2013), the Commission created the video exception. The

  Commission described the video exception as follows: “We believe

  statements an officer makes in direct contradiction to objectively

  verifiable facts in an otherwise authenticated video of the scene are

  not entitled to a presumption of truth.” Id. at 24. Officer Johnson

  argues that the Commission was without the authority to create


  6 We recognize that in criminal cases involving suppression of
  evidence issues, this court may review video evidence de novo. See
  People v. Ramadon, 2013 CO 68, ¶ 21(When an interrogation is
  video or audio recorded and there are no disputed facts outside the
  recording pertinent to the suppression ruling, we are in the same
  position as the trial court in deciding the suppression issue.);
  People v. Springsted, 2016 COA 188, ¶ 16 (same). However, our
  standard of review is not at issue in this appeal. As we explain
  below, the Denver City Charter places express limits on the
  Commission’s standard of review that do not apply to state courts.

                                     10
  this exception under Denver Civil Service Commission Rule 12,

  section 11(D)(1). He reasons that the video “was not new material

  evidence,” one of the few exceptions to the rule that the Commission

  is bound by a hearing officer’s findings of historical facts.

                         1. The Commission’s Findings

¶ 18   After reviewing the hearing evidence, the Commission found

  that the hearing officer had abused her discretion in finding no

  credible evidence to support the discipline. It concluded that the

  HALO video alone, which captured the parties’ conduct for the four

  minutes leading up to Officer Johnson’s use of force, provided

  ample evidence to show that the degree of force used was not

  commensurate with the threat posed and supported the

  Department’s imposition of discipline. Relying on the video

  exception, it found that the video contradicted Officer Johnson’s

  claims that

           Brandon and the others had made aggressive and

             threatening movements towards him and postured

             themselves aggressively;

           Brandon had puffed his chest out in a defensive manner;

           Brandon and the others had “encircled” him;

                                     11
          Brandon had used his hands in a threatening manner;

            and

          he was concerned that Brandon had a weapon in his

            pocket.

¶ 19   The Commission found the video showed that Officer Johnson

  never acted concerned with anyone’s behavior, that no one acted in

  a threatening or aggressive manner toward Officer Johnson, and

  that for no apparent reason, Officer Johnson suddenly moved in

  front of Brandon and shoved him to the ground.




  HALO Video at 4:19.




                                  12
HALO Video at 4:20.




HALO Video at 4:21.




                      13
  HALO Video at 4:22.

¶ 20   Relying in part on the video exception, and its own findings of

  the circumstances confronting Officer Johnson (rather than

  accepting the hearing officer’s findings of fact), the Commission

  concluded that the hearing officer erred in reversing the MOS’s

  decision and that ample evidence supported the imposition of

  discipline.

                     2. Commission’s Standard of Review

¶ 21   The Commission’s review of a hearing officer’s findings and

  conclusions is governed by Charter section 9.4.15 and Denver Civil




                                   14
  Service Commission Rule 12, section 11(J)(5).7 The Charter

  provides the following:

            In deciding the appeal, the Commission shall
            rely only upon the evidence presented to the
            Hearing Officer except when the appeal is
            based on new and material evidence. All
            factual findings by the Hearing Officer shall be
            binding on the Commission, and the
            Commission may not resolve disputed issues
            of fact.

  Charter § 9.4.15(F).

¶ 22   The Civil Service Rules provide that

            [a]ll findings of evidentiary fact by the Hearing
            Officer shall be binding on the Commissioners.
            The Commissioners may not resolve disputed
            issues of fact.

  Denver Civil Serv. Comm’n Rule 12, § 11(J)(5).



  7 We recognize that Nixon v. City & Cty. of Denver, 2014 COA 172,
  ¶ 25, applied the standard of review found in Colorado’s
  Administrative Procedure Act, section 24-2-105(15)(b), C.R.S. 2014,
  in an appeal involving the Commission’s decision to uphold the
  termination of a Denver police officer. But Nixon is distinguishable.
  Nixon did not discuss the issue of whether the Administrative
  Procedure Act should be applied to the Commission’s decisions; the
  division simply assumed that it was “bound . . . by section
  24-4-105(15)(b) . . . .” But that issue has taken center stage in this
  case, and we have decided that the Administrative Procedure Act
  does not apply. See § 24-4-107, C.R.S. 2017 (“[The APA] applies to
  every agency of the state having statewide jurisdiction . . . .”
  (emphasis added)).


                                    15
¶ 23   Additionally, Charter section 9.4.15(F), on which Officer

  Johnson relies, provides that the Commission’s review of a hearing

  officer’s decision is limited to: (1) considering new and material

  evidence; (2) deciding whether the hearing officer erroneously

  interpreted departmental or civil service rules; (3) weighing policy

  considerations that may have an effect beyond the case at hand;

  and (4) deciding whether the discipline affirmed or imposed is

  inconsistent with the discipline other officers received under similar

  circumstances.8

¶ 24   We interpret municipal regulations as we do statutes. See

  Marshall, ¶ 12 (“[W]hen interpreting a [municipal] charter courts

  apply the principles of statutory interpretation.”). We apply the

  plain meaning of the language as written and may not add language

  that does not exist. See Williams v. Dep’t of Pub. Safety, 2015 COA

  180, ¶ 85 (“[W]hen interpreting a statute, ‘we must accept the

  General Assembly’s choice of language and not add or imply words




  8 Rule 12 of the Denver Civil Service Commission provides the same
  bases for appeal and grounds for the Commission’s review except
  for policy considerations that may have an effect beyond the case at
  hand. Denver Civil Serv. Comm’n Rule 12, § 11(D).

                                    16
  that simply are not there.’” (quoting People v. Benavidez, 222 P.3d

  391, 393-94 (Colo. App. 2009))).

                   3. Application of the Standard of Review

¶ 25   Both the Charter’s and the Rules’ standards of review govern

  the Commission’s review of the MOS’s order and the hearing

  officer’s findings. They require the Commission to defer to the

  hearing officer’s evidentiary findings of fact, and they preclude the

  Commission from resolving disputed issues of fact. They say

  nothing about deferring to a hearing officer’s findings of fact unless

  those facts are contradicted by authenticated video evidence. While

  a video exception to the standard of review may make eminent

  sense in today’s world, this decision is for the Denver voters to

  make, not the Commission or the courts. See Colo. Const. art. XX,

  § 5 (“The citizens of the city and county of Denver shall have the

  exclusive power to amend their charter . . . .”); Charter § 9.3.4 (“The

  Commission shall have the power to make and enforce rules

  consistent with its rule-making process (which shall include a

  requirement that proposed rules be posted prior to adoption), and

  its Charter-mandated duties, powers, and responsibilities.”).




                                     17
¶ 26   The Commission simply does not have the authority to amend

  the Charter’s standard of review. Therefore, we conclude that the

  video exception is contrary to law and invalid, and that both the

  Commission and the district court erred in relying on it to reverse

  the hearing officer’s decision.9

         C. The Department’s Use of Force Standard, Not the Fourth
                Amendment, Applies to an Officer’s Use of Force

¶ 27   The Commission concluded that the hearing officer had clearly

  erred in finding a “deadly force/non-deadly force dichotomy” from

  two United States Supreme Court cases, and that the Department

  was free to establish more stringent standards than the

  constitutional baselines articulated in those cases. We agree.

¶ 28   The Charter authorizes the Department to promulgate and

  enforce rules governing the conduct of law enforcement officers.

  Charter § 9.4.13. The police department’s RR-306 states, “[o]fficers

  shall not use inappropriate force in making an arrest or in dealing


  9 We also reject Officer Johnson’s contention that the Commission
  violated Charter section 9.4.15(F) because the Commission
  specifically addressed the hearing officer’s erroneous interpretation
  of the use of force policy under section 9.4.15(F)(a) and the public’s
  perception of its officers’ use of force under Charter section
  9.4.15(F)(c). He does not cite nor have we found any authority
  requiring findings under all four sections of section 9.4.15(F)(a)-(d).

                                     18
with a prisoner or any other person.” The Denver Police

Department Operations Manual (OMS) sets forth the Department’s

use of force policy. As relevant here, it provides:

         “[A]n officer shall use only that degree of force necessary

           and reasonable under the circumstances.” OMS

           § 105.01(1)(a), https://perma.cc/SVG2-L743 (emphasis

           added).

         “Officers should ensure that they do not engage in

           unreasonable actions that precipitate the use of force as

           a result of tactical, strategic, or procedural errors.” Id.

           (emphasis added).

         “The reasonableness inquiry in an excessive force case is

           an objective one; the question is whether the officers’

           actions are objectively reasonable in light of the facts and

           circumstances confronting them.” Id.

         “The reasonableness of a particular use of force must be

           judged from the perspective of a reasonable officer on the

           scene, rather than with the 20/20 vision of hindsight.”

           Id.




                                   19
           “Use of force that is not lawful, reasonable and

              appropriate will not be tolerated.” OMS § 105.01(1)(b).

           “The level of force applied must reflect the totality of

              circumstances surrounding the immediate situation.” Id.

           “The officer need only select a level of force that is within

              the range of ‘objectively reasonable’ options.” Id.

¶ 29   These provisions establish a standard to be applied in

  reviewing an officer’s use of force: (1) whether the use of force was

  necessary; and (2) whether the use of force was reasonable. And

  that determination is informed by the totality of the circumstances

  surrounding the use of force. OMS § 105.01(4). This provision

  provides:

              1.    The reasonableness of an officer’s use of
              force under the Fourth Amendment requires
              careful attention to the totality of the facts and
              circumstances known by the officer prior to
              using force, including:
              a.    The severity of the crime at issue and
              b.    Whether the suspect poses an immediate
              threat to the safety of the officer(s) or others
              and
              c.    Whether the suspect is actively resisting
              arrest or attempting to evade arrest by the
              flight.

  OMS § 105.01(4)(c).



                                      20
¶ 30   First, we agree with the Commission that the Department was

  free to adopt a policy that applies a more stringent standard than

  the baseline constitutional standard. See Turney, 222 P.3d at 350

  (noting that police departments “may — indeed, they should —

  impose higher internal standards on their officers than simply not

  violating state criminal law and avoiding federal damages liability”);

  see also Harris v. City of Colorado Springs, 867 P.2d 217, 219 (Colo.

  App. 1993) (observing that a police officer is held to a higher

  standard of conduct because he or she is “a trustee of the public

  interest, bearing the burden of great and total responsibility to his

  [or her] public employer” (quoting Gardner v. Broderick, 392 U.S.

  273, 277 (1968))); see also Graham, 490 U.S. at 395 (articulating

  the constitutional standard and holding that “all claims that law

  enforcement officers have used excessive force — deadly or not — in

  the course of an arrest, investigatory stop, or other ‘seizure’ of a free

  citizen should be analyzed under the Fourth Amendment and its

  ‘reasonableness’ standard, rather than under a ‘substantive due

  process’ approach”).

¶ 31   Second, we also agree with the Commission that the hearing

  officer erred in finding that the “20/20 hindsight” language created


                                     21
  a separate non-deadly force standard and in applying only that

  standard to the evidence. As is evident from the OMS, this

  particular language simply qualifies the objectively reasonable

  standard and instructs a reviewer of the officer’s use of force to

  consider what is objectively reasonable from the perspective of a

  reasonable officer on the scene, under all the attendant

  circumstances. Accordingly, the Commission correctly determined

  that the hearing officer erred in her application of the use of force

  standard.

         D. Sufficient Evidence Supports the Commission’s Decision
                           and the Discipline Imposed

¶ 32   Our conclusion that the video exception constitutes an invalid

  basis for the Commission to reject the hearing officer’s factual

  findings does not end this case, because we must also decide

  whether the Commission nevertheless reached the right result for

  the wrong reasons. See Blood v. Qwest Servs. Corp., 224 P.3d 301,

  329 (Colo. App. 2009) (noting that the court of appeals can affirm

  on any grounds supported by the record), aff’d, 252 P.3d 1071

  (Colo. 2011); Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107




                                    22
  P.3d 402, 406 (Colo. App. 2004) (“[W]e may affirm the trial court’s

  ruling based on any grounds that are supported by the record.”).

¶ 33   To answer this question, we must examine whether the

  hearing officer applied the correct standard of review to the MOS’s

  findings in concluding that “no credible evidence” supported the

  discipline. We requested supplemental briefing on this issue.

¶ 34   Officer Johnson contends that the hearing officer is only

  required to defer to the MOS’s decisions concerning the

  Department’s policies, and that the hearing officer otherwise finds

  evidentiary facts de novo. The City agrees that the hearing officer

  must defer to the MOS’s findings concerning department policy, but

  counters that the hearing officer may only set aside the MOS’s

  factual determinations when “the decision, although supported by

  the evidence, is contrary to what a reasonable person would

  conclude from the record as a whole,” under Denver Civil Service

  Commission Rule 12, section 9(B)(1)(c)(i). We agree with the City.

                      1. Hearing Officer’s Standard of Review

¶ 35   A hearing officer may reverse the MOS’s decision only when it

  finds that decision to be “clearly erroneous.” Denver Civil Serv.




                                   23
  Comm’n Rule 12, § 9(B)(1)(b). The Rule defines “clearly erroneous”

  as follows:

                A Departmental Order of Disciplinary Action
                shall be deemed to be “clearly erroneous”, in
                whole or in part, in the following
                circumstances:

                     (i)  The decision, although supported by
                     the evidence, is contrary to what a
                     reasonable person would conclude from
                     the record as a whole;

                     (ii) If the Manager fails to follow the
                     applicable Departmental guidelines, rules
                     or regulations, an applicable matrix or its
                     associated guidelines, and absent such
                     failure the discipline imposed would not
                     have resulted; or

                     (iii) If the Manager otherwise exceeds his
                     authority.

  Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c).

¶ 36   Moreover, when reviewing the Department’s disciplinary

  action, the Rule further provides that

                Hearing Officers shall not substitute their
                judgment for that of the Executive Director of
                Safety concerning any policy considerations
                underlying the discipline, to include the
                interpretation of Departmental Rules and
                Regulations, and may only reverse or modify
                the Manager’s decision concerning policy
                considerations when it is shown to be clearly
                erroneous. Hearing Officers shall not


                                      24
             substitute their judgment for that of the
             Executive Director of Safety in determining the
             appropriate level of penalty to be imposed for a
             sustained violation, and may only modify the
             disciplinary penalty imposed when it is shown
             to be clearly erroneous.

  Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(a).

¶ 37   Although the Charter and the Rules are far from clear

  regarding when a hearing officer may set aside the discipline

  ordered by the Department (through the MOS), it is apparent that

  this is not a de novo hearing in which no deference is given to the

  MOS’s findings and imposition of discipline. See, e.g., Tilley v.

  Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo. App. 1996)

  (“In unemployment proceedings, the hearing officers are required to

  assess the evidence independently and reach their own conclusions

  concerning the reason for the separation from employment, the

  probative value of the evidence, the credibility of the witnesses, and

  the resolution of any conflicting testimony.”); Marlin Oil Co. v. Indus.

  Comm’n, 641 P.2d 312, 313 (Colo. App. 1982) (“An administrative

  appeal in an unemployment compensation case is a review of the

  case in its entirety, and the hearing is, in effect, a trial de novo.”).




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¶ 38   As we read the Charter and the Rules, the hearing officer must

  defer to the MOS’s determination of the propriety of the imposition

  of discipline unless that decision is clearly erroneous. Under the

  clearly erroneous standard, a hearing officer may only set aside the

  discipline imposed when the MOS’s decision is contrary to what a

  reasonable person would conclude from the record as a whole.

  Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c); see Charter

  § 9.4.15(D) (“In reviewing the disciplinary action, the Hearing

  Officer shall give due weight to the necessity of the maintaining by

  the Manager of administrative control of the department. The

  Hearing Officer shall review the full record before him or her and

  shall make written findings, affirming, reversing, or modifying the

  disciplinary action in whole or in part.”). The MOS must make a

  prima facie showing in support of its order. Marshall, ¶ 15 (finding

  that Denver Civil Service Commission Rule 12, section 8(D)(2)

  requires the Department to present to a hearing officer “sufficient

  evidence to create a reasonable inference of the correctness of the

  sustained Rule violation(s)”).

¶ 39   The burden of proving that the MOS’s discipline order was

  clearly erroneous rests with the officer seeking the reversal of that


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  order. See Denver Civil Serv. Comm’n Rule 12, § 8(D)(3) (explaining

  that the petitioner shall be considered the proponent of an order

  seeking the modification or reversal of the discipline imposed); see

  also § 24-4-105(7), C.R.S. 2017 (noting that the proponent of an

  order shall have the burden of proof).

¶ 40   Viewing the record before the hearing officer, which includes

  the HALO video, as well as the statements of the various

  participants in this matter, we cannot conclude that either the MOS

  failed to present a prima facie case to support the discipline

  imposed or that his decision was contrary to what a reasonable

  person would conclude from the record as a whole.

¶ 41   For instance, the undisputed evidence shows that Brandon

  verbally berated Officer Johnson and refused to leave the area, but

  no one described him taking physical actions against Officer

  Johnson until after he was pushed. Officer Johnson told the

  internal investigators that he decided to “close the gap” between

  himself and Brandon after telling Brandon he was going to detox.

  He further admitted that he “got too close” and was “in too deep.”

  He said he needed to create some distance between them and that

  he shoved Brandon to create that distance. When the investigators


                                    27
  asked why he did not create that distance by taking a step back,

  Officer Johnson responded that he reverted to his training “not to

  give up ground.”

¶ 42   The undisputed evidence further reveals that the nightclub’s

  bouncer was a short distance away from the group, was available to

  assist Officer Johnson throughout the encounter, and, at one point,

  approached Officer Johnson to ask whether he needed assistance.

  Officer Johnson told the internal investigators, “[I] didn’t have to

  call for [police] back-up. I figured, hey, take care of the situation

  fast so it doesn’t prolong – so it doesn’t go longer.” He did not recall

  whether he considered asking the bouncer for assistance.

¶ 43   Applying the Department’s use of force standard to these and

  the remaining facts, the MOS found that Officer Johnson’s decision

  to “close the gap” was not reasonable or necessary to perform his

  duties and that it was more reasonable to maintain distance in

  order to better assess a potential threat. He further found that it

  was neither reasonable nor necessary for Officer Johnson to create

  distance by shoving Brandon when he could have safely stepped

  back in accordance with departmental policy concerning retreat and

  repositioning. And, he noted that the Department’s use of force


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  policy “is more restrictive than the ‘objective reasonable’ standard.”

  Thus, he also found that Officer Johnson could easily and

  reasonably have summoned additional assistance.

¶ 44   The hearing officer never considered whether the MOS’s

  decision was clearly erroneous, because she instead found that he

  had failed to offer “sufficient evidence to create a reasonable

  inference of the correctness of the sustained Rule violation” — in

  other words, that he had not established a prima facie case. She

  reached this conclusion based on her findings that: (1) Brandon

  was pushed onto stairs leading up rather than down; (2) no

  evidence showed that Officer Johnson was angry or impatient; (3)

  the technique employed by Officer Johnson was a proper arrest

  control technique; (4) the MOS erroneously considered whether

  Brandon posed a “credible threat” to officer safety because that was

  the inapplicable deadly force standard; and (5) the MOS erroneously

  applied the deadly rather than the non-deadly force standard in

  reaching his decision.

¶ 45   However, we have already concluded that the MOS properly

  applied the Department’s use of force standard. We further

  conclude that the undisputed evidence to which he applied that


                                    29
  standard is sufficient to create a reasonable inference in the

  correctness of the sustained rule violation and that his decision was

  not clearly erroneous.

¶ 46   The hearing officer improperly substituted her judgment for

  the MOS’s in concluding otherwise, contrary to the standards set

  forth in the Charter and Denver Civil Service Commission Rule 12.

¶ 47   Under our deferential standard of review, we cannot conclude

  that the Commission abused its discretion in reversing the hearing

  officer’s decision based on the record as a whole, including the

  video evidence. While different people may have different reactions

  to the HALO video, the Charter and accompanying Rules require the

  hearing officer to defer to the Department’s interpretation of its own

  policies. While the Commission is bound by the hearing officer’s

  evidentiary findings, it reviews for clear error the hearing officer’s

  ultimate conclusions of fact — here whether the hearing officer

  applied the proper use of force standard and whether competent

  evidence supported the Department’s imposition of discipline,

  absent the video exception. Thus, while we find legal error in the

  Commission’s reliance on the video exception, we nevertheless

  conclude that the remaining record before the Commission and the


                                     30
  hearing officer supports the Commission’s decision and the

  Department’s imposition of discipline.

                              III.   Conclusion

¶ 48   The judgment is affirmed.

       JUDGE BERNARD and JUDGE BERGER concur.




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