COLORADO COURT OF APPEALS                                       2017COA55


Court of Appeals No. 16CA0598
Arapahoe County District Court No. 12CV1559
Honorable Elizabeth A. Weishaupl, Judge


William P. Dolan,

Plaintiff-Appellant,

v.

Fire and Police Pension Association,

Defendant-Appellee.


                            JUDGMENT AFFIRMED

                                  Division I
                         Opinion by JUDGE GRAHAM
                       Taubman and Navarro, JJ., concur

                           Announced April 20, 2017


Brosseau Bartlett Seserman, LLC, David B. Seserman, Michael Y. Ley,
Greenwood Village, Colorado, for Plaintiff-Appellant

Hoffman Parker Wilson & Carberry, P.C., M. Patrick Wilson, Denver, Colorado,
for Defendant-Appellee
¶1    In this suit over firefighter occupational disability benefits, we

 are asked to determine whether full-time employment as a fire chief

 precludes a firefighter from collecting occupational disability

 benefits because the position of fire chief directly involves “the

 provision of . . . fire protection” under the Policemen’s and

 Firemen’s Pension Reform Act (the Act), sections 31-31-101 to -

 1203, C.R.S. 2016. We conclude that it does and, therefore, affirm.

                            I.   Background

¶2    Plaintiff, William P. Dolan, appeals the district court’s

 judgment upholding the discontinuation of his occupational

 disability benefits by the Fire and Police Pension Association (FPPA),

 as affirmed by its Board of Directors (Board).

¶3    Dolan is a career firefighter. He joined North Metro Fire

 Rescue in 1986, and in 2007, he sustained a right elbow injury that

 prevented him from passing the physical tests for firefighting

 duties. After approximately two years of attempted rehabilitation,

 North Metro terminated Dolan. He promptly filed for occupational

 disability benefits with the FPPA.

¶4    While working for North Metro, Dolan also worked for the Elk

 Creek Fire Protection District in both paid and unpaid capacities.


                                      1
 From 1998 to 2003, Dolan was the paid fire chief of Elk Creek. He

 returned to volunteer service at Elk Creek during 2008, while

 rehabilitating his elbow. In May 2010, Elk Creek again hired Dolan

 as its paid fire chief.

¶5    In July 2010, Dolan appeared at a hearing to determine

 whether he was entitled to occupational disability benefits. In

 pertinent part, Dolan testified he was the “administrative chief” for

 Elk Creek. The hearing officer determined Dolan was eligible for

 permanent occupational disability benefits based on his injury. The

 Death and Disability Review Committee of the FPPA adopted the

 hearing officer’s findings and awarded Dolan permanent

 occupational disability benefits pending “a certification from the

 [Elk Creek] Board [of Directors] that this position at Elk Creek Fire

 is strictly administrative in nature and that your job duties are not

 directly involved with the provisions of fire protection.”

¶6    The Elk Creek Board sent a copy of its contract with Dolan to

 the FPPA. While the Elk Creek Board informed the FPPA that Dolan

 was “Administrative Fire Chief” and was “hired to manage the

 finances and the department and does not respond as part of our

 fire protection activities,” the contract signed by Dolan assigned him


                                    2
 the title of “Fire Chief” and required that he “carry[] out all statutory

 duties imposed upon the Fire Chief by the Special District Act or

 any other Federal, State or local law or ordinance.” The contract

 also stated “[t]he Fire Chief is not required to perform firefighting or

 emergency medical duties, but shall, at his discretion, act in a

 command position at emergency incidents as needed and as

 determined by the Fire Chief.”

¶7    After reviewing the contract, the FPPA met with Dolan. The

 FPPA was concerned that the terms of the contract required Dolan

 to execute “duties . . . directly involved with the provision of . . . fire

 protection” under section 31-31-806, C.R.S. 2016, making him

 ineligible for disability benefits. While the substance of that

 meeting is a matter of dispute, it is undisputed that following that

 meeting Dolan immediately resigned from his position at Elk Creek.

¶8    The FPPA then began paying Dolan disability benefits,

 including back pay to his last day on payroll at North Metro.

¶9    In early 2011, an Elk Creek Board member reached out to the

 FPPA regarding Dolan’s appearance at fire and emergency scenes.

 Based on this information, the FPPA subpoenaed Elk Creek’s

 records pertaining to Dolan. Elk Creek produced National Fire


                                      3
  Incident Reporting System (NFIRS) reports showing Dolan had

  responded to 72 incidents in 2010 and had participated in another

  170 incidents.

¶ 10   The FPPA issued a notice of determination suspending Dolan’s

  disability benefits in May 2011. Because the FPPA accused Dolan

  of fraudulently obtaining his benefits, it held a hearing. The

  hearing officer ultimately determined that Dolan had not

  fraudulently obtained benefits, but because his position at Elk

  Creek had involved fire protection, he was ineligible for benefits

  under section 31-31-806 of the Act. The officer recommended

  Dolan repay the benefits he received after May 10, 2010, the date

  he signed his employment contract with Elk Creek.

¶ 11   The Board met in July 2012 and affirmed the hearing officer’s

  recommendation. Dolan filed for C.R.C.P. 106 review of the Board’s

  decision in district court. He also asserted several common law

  claims against the FPPA.

¶ 12   The district court affirmed the decision of the Board. Dolan

  then filed a motion to amend his complaint, which the court denied

  as untimely. A trial to the court was held on Dolan’s remaining




                                     4
  common law claims. The court found for the FPPA and entered

  final judgment against Dolan in February 2016.

¶ 13     On appeal, Dolan presents two arguments. First, he argues

  the Board and the district court misapplied the law in discontinuing

  his disability benefits because, since his termination from North

  Metro, he has never been re-employed in a position directly involved

  with the provision of fire protection under section 31-31-806.

  Second, he contends the district court erred in denying his motion

  to amend his complaint when it determined his claim was untimely.

  We address and reject each contention in turn.

   II.    Occupational Disability Benefits and Disqualification on Re-
                                  employment

                 A.   Principles of Statutory Interpretation

¶ 14     The primary goal of statutory interpretation is to ascertain and

  give effect to the legislature’s intent. Lewis v. Taylor, 2016 CO 48,

  ¶ 20. To do so, we look to the plain meaning of the statutory

  language and consider it within the context of the statute as a

  whole. Id. “[I]f the statutory language has more than one

  reasonable meaning, and is therefore ambiguous, we may look to

  interpretive aids to construction to resolve the ambiguity and



                                     5
  determine which of the reasonable interpretations is appropriate.”

  Id. Tools of statutory interpretation “include legislative history and

  how the law has been construed in similar circumstances.” Id. at

  ¶ 27.

¶ 15      Courts traditionally defer to an agency’s interpretation of a

  statute it is entrusted to administer, Red Flower, Inc. v. McKown,

  2016 COA 160, ¶ 19, provided the interpretation has a reasonable

  basis in law and is supported by the record, Marshall v. Civil Serv.

  Comm’n, 2016 COA 156, ¶ 9.

                           B.    Standard of Review

¶ 16      We review questions of statutory interpretation de novo. Pulte

  Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 24.

¶ 17      Under C.R.C.P. 106(a)(4)(I), judicial review is strictly “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.” “A governmental body

  abuses its discretion if its decision is not reasonably supported by

  any competent evidence in the record or if the governmental body

  has misconstrued or misapplied applicable law.” Friends of the

  Black Forest Pres. Plan, Inc. v. Bd. of Cty. Comm’rs, 2016 COA 54,


                                        6
  ¶ 12; see Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309

  (Colo. 1986) (“‘No competent evidence’ means that the ultimate

  decision of the administrative body is so devoid of evidentiary

  support that it can only be explained as an arbitrary and capricious

  exercise of authority.”).

¶ 18   We review whether an administrative body misconstrued or

  misapplied the law de novo. Friends of Black Forest, ¶ 15.

                              C.    The Act

¶ 19   The Act ensures proper funding for police and firefighter

  pensions. § 31-31-101. It also guarantees that members will

  receive certain retirement plans. See § 31-31-102(4), C.R.S. 2016

  (defining member); § 31-31-301, C.R.S. 2016 (creation of fire and

  police members’ benefit fund).

¶ 20   Under Part 8, “Disability and Survivor Benefits,” the General

  Assembly created a comprehensive benefits system for police and

  firefighters injured or killed while working. See generally

  §§ 31-31-801 to -815, C.R.S. 2016. Section 31-31-803, C.R.S.

  2016, designates three types of disabilities warranting benefits:

  “total disability,” “permanent occupational disability,” and

  “temporary occupational disability.” See § 31-31-801 (defining


                                    7
  those terms). The Board determines whether a member is disabled.

  § 31-31-803(4)(a)(I); see § 31-31-202(2)(a), C.R.S. 2016 (“The board

  has the sole power to determine eligibility for retirement for

  disability, whether total or occupational . . . .”). “The board shall

  not make a determination of disability unless two of the three

  physicians examining the applicant agree that a disability exists,

  but the board shall not be bound by the physicians’ determination

  that a disability exists.” § 31-31-803(4)(a)(I).

¶ 21   If the Board determines a member is disabled and eligible for

  benefits, the member will receive benefits unless there is a change

  in disability status or the member is re-employed. § 31-31-805,

  C.R.S. 2016 (change in disability status); § 31-31-806 (re-

  employment).

¶ 22   Under section 31-31-806:

             If, subsequent to disability benefits being
             awarded to a member . . . a member is
             employed or reemployed in this state or any
             other jurisdiction . . . in a full-timed salaried
             position that normally involves working at
             least one thousand six hundred hours in any
             given calendar year and the duties of which are
             directly involved with the provision of . . . fire
             protection as determined by the board, the
             benefits provided pursuant to section 31-31-
             803 shall be discontinued.


                                      8
  (Emphasis added.)

       1.    Was Dolan Directly Involved with the Provision of Fire
              Protection While Employed as Elk Creek Fire Chief?

¶ 23    Dolan contends that his position as Elk Creek fire chief did

  not “directly involve[] . . . the provision of . . . fire protection”

  requiring the FPPA to discontinue his disability benefits. He relies

  on Kilbourn v. Fire & Police Pension Ass’n, 971 P.2d 284 (Colo. App.

  1998), and Agee v. Trustees of the Pension Board of the Cunningham

  Fire Protection District, 33 Colo. App. 268, 518 P.2d 310 (1974), to

  support his contention that the Board must find that a firefighter

  has undertaken “physical involvement with firefighting” to conclude

  he or she is directly involved with the provision of fire protection.

  We are not persuaded.

¶ 24    The Act defines the term “member” as “an active employee who

  is a full-time salaried employee of a . . . fire protection district . . .

  and whose duties are directly involved with the provision of . . . fire

  protection.” § 31-31-102(4). The Act does not define the phrase

  “directly involved with the provision of . . . fire protection.” See

  § 31-31-102 (definitions); § 31-31-801 (same). However, that

  phrase appears in several other sections of the Act. See § 31-31-



                                        9
  704, C.R.S. 2016 (allowing employers who cover members directly

  involved with the provision of such services under Social Security to

  affiliate with the FPPA); § 31-31-704.5, C.R.S. 2016 (same as

  section 31-31-704 except with respect to a social security

  supplemental plan as described in section 31-31-704.6, C.R.S.

  2016); § 31-31-708, C.R.S. 2016 (same as sections 31-31-704 and

  31-31-704.5 except it allows affiliation by county sheriffs). In each

  occurrence, the member’s duties in directly providing fire protection

  services must be “certified.”

¶ 25   Section 31-31-806 warns that a member is disqualified from

  receiving disability benefits when he or she is re-employed in a full-

  time salaried position, “the duties of which are directly involved

  with the provision of . . . fire protection as determined by the board.”

  (Emphasis added.) The Act clearly requires that in each instance

  where a member is purportedly directly involved with providing fire

  protection services, whether he or she is directly involved with

  providing those services is a fact that must be certified or

  determined by the Board. In other words, it is a question reserved

  to third-party evaluation.




                                    10
¶ 26   Here, the Board adopted the hearing officer’s conclusions of

  fact and law that Dolan’s duties as Elk Creek fire chief directly

  involved fire protection. The employment contract between Dolan

  and Elk Creek required him to “be responsible for . . . directing the

  operation and maintenance of all aspects of the Emergency Services

  provided by the District; [and] carrying out all statutory duties

  imposed upon the Fire Chief by the Special District Act or any other

  Federal, State or local law or ordinance.” It also stated he “is not

  required to perform firefighting or emergency medical duties, but

  shall, at his discretion, act in a command position at emergency

  incidents as needed and as determined by [him].” Because Dolan

  acted in a command capacity at the scenes of fires and accidents,

  the hearing officer concluded it was not necessary to find that he

  was involved in “hands on” firefighting or medical care to conclude

  that his position was directly involved with the provision of fire

  protection. We conclude this interpretation is reasonable.

¶ 27   Nothing in the Act suggests the phrase “directly involved with

  the provision of . . . fire protection” is restricted to physically

  fighting fires, as Dolan advocates. In fact, the General Assembly

  has excluded firefighters who can physically fight fires from


                                      11
  disability benefits. § 31-31-805 (change in disability status). Were

  we to accept Dolan’s interpretation of section 31-31-806, section

  31-31-805 would be duplicative. We avoid construing a statute in a

  way that would render any of its words superfluous. Sooper Credit

  Union v. Sholar Grp. Architects, P.C., 113 P.3d 768, 771 (Colo.

  2005).1

¶ 28   Dolan’s reliance on Kilbourn and Agee is misplaced. Kilbourn

  addressed the retroactivity of section 31-31-806. 971 P.2d at 286-

  87. Section 31-31-806 was added to the Act after the plaintiff (a

  police officer) was awarded an occupational disability pension. Id.

  at 286. The Kilbourn division concluded that section 31-31-806



  1 We also note that Dolan’s position as fire chief was full-time and
  that it entitled him to enroll in the FPPA’s death and disability
  benefits plan. A review of the legislative history of section 31-31-
  806, C.R.S. 2016, reveals that the pertinent language was added to
  the statute in 1993. Prior to that time, the statute disqualified a
  member from disability benefits when that member was re-
  employed “in a position which qualifies the person as a member.”
  § 31-30-1007(3.5), C.R.S. 1992. Thus, it appears to us that the
  General Assembly intended to exclude a member from receiving
  disability benefits when that member was re-employed in a position
  that qualified him or her for death and disability benefits under the
  Act. Here, the record establishes that the person employed in the
  fire chief position Dolan accepted was eligible for death and
  disability benefits and that either Dolan or Elk Creek, or both,
  intentionally did not enroll Dolan in that program.

                                   12
  was retroactive and, therefore, applied to the plaintiff who had

  returned to work as a deputy sheriff — the essential nature of that

  job “involv[ing] the provision of police protection.” Id. at 287.

  Nothing in Kilbourn suggests, as Dolan argues, that the goal of

  section 31-31-806 is to determine whether a member is able to “be

  restored to active service.” Indeed, that language comes directly

  from section 31-31-805(2)(a) and is not applicable to section 31-31-

  806.

¶ 29     Nor is Agee helpful to Dolan’s position. Agee interprets the

  term “active service” as it was used in a prior version of the Act. 33

  Colo. App. at 271, 518 P.2d at 303. The division concluded that

  membership on the board of directors of a fire protection district did

  not constitute “active service” entitling the directors to a pension.

  Id. at 272, 518 P.2d at 304. The division held that the official

  duties of the board were solely administrative and that the

  pension’s “active service” requirement “appl[ied] only to those

  actively involved in firefighting.” Id. at 271, 518 P.2d at 303. Agee

  does not address whether the duties of a fire chief are considered

  duties directly involved with the provision of fire protection.

  However, the opinion does support an argument that “attend[ing] a


                                     13
  fire []or participat[ing] in training sessions” constitutes active

  service. Id. at 272, 518 P.2d at 303. The duties Dolan undertook

  as Elk Creek fire chief included both attending fires and

  participating in training sessions. As a result, in our view, any

  conclusion to be drawn from Agee does not support Dolan.

¶ 30        Because nothing in the Act suggests that re-employment at a

  position “directly involved with the provision of . . . fire protection”

  must be limited to “physically fighting fires,” we conclude the

  district court and the Board did not misapply the law in

  determining Dolan was no longer eligible for disability benefits after

  re-employment at Elk Creek.

       2.    Did the Board Rely Upon Competent Evidence to Determine
               Dolan Was Directly Involved With the Provision of Fire
                                    Protection?

¶ 31        In a related argument, Dolan contends that the Board did not

  consider competent evidence in determining his position as fire

  chief directly involved the provision of fire protection. We reject this

  contention.

¶ 32        We note that “[e]valuating witness credibility and the probative

  value and weight of the evidence are solely within the fact-finding

  province of the agency.” Colo. Dep’t of Revenue v. Astro Imports,


                                        14
  Inc., 2016 COA 25, ¶ 8. Thus, Dolan’s argument that the NFIRS

  reports are incompetent evidence because they are inaccurate

  presents a question of probative value and weight left to the

  discretion of the Board.

¶ 33   Dolan argues that the FPPA did not present any witness who

  had first-hand knowledge of what actions he took at fire and

  emergency scenes. However, Dolan introduced nine witnesses who

  testified they had been with Dolan at emergency scenes, and several

  testified that Dolan acted in command at those scenes. And

  Dolan’s employment contract with Elk Creek established his duties

  as fire chief and included the ability, at his discretion, to take

  command of emergency incidents.

¶ 34   We conclude sufficient record evidence exists to support the

  Board’s determination that Dolan’s employment as Elk Creek fire

  chief was employment “the duties of which are directly involved

  with the provision of . . . fire protection.” And because competent

  evidence supports the Board’s decision, we are compelled to affirm

  it. C.R.C.P. 106(a)(4); Ross, 713 P.2d at 1309.




                                     15
                    III.   Motion to Amend Complaint

¶ 35   Dolan asserts the district court erred in denying his motion to

  amend his complaint to add a 42 U.S.C. § 1983 (2012) claim for

  violation of his right to procedural due process. We disagree.

¶ 36   Dolan sought leave to amend his complaint on August 30,

  2013, approximately one year after he filed his initial complaint,

  seven months after the district court initially found in favor of the

  FPPA, and four months after the district court finalized its C.R.C.P.

  106 order. Dolan argued the amendment was appropriate because

  no substantial discovery had taken place and no trial date had been

  set. In the proposed amended complaint, Dolan alleged a “violation

  of [his] procedural due process rights” based on the FPPA’s failure

  to give him “any opportunity to respond or raise affirmative

  defenses to the [Chief Benefit Officer’s] Notice of Determination prior

  to the close of evidence at the administrative hearing.” Thus, Dolan

  contended “the FPPA Rules deprived [him] of a meaningful hearing

  regarding the termination of his disability benefits in violation of the

  Fourteenth Amendment to the United States Constitution and

  Article II, Section 25 of the Constitution of the State of Colorado.”

¶ 37   The district court denied Dolan’s request, concluding:


                                    16
            The Court does not hold that [Dolan] may not
            have a viable due process claim regarding the
            Rules governing the FPPA’s hearing process
            and/or the Board’s discretion in exercising
            those Rules, but does hold that any such claim
            should have been raised in a timely manner
            under Rule 106[a](4). The Court provided
            [Dolan] with ample opportunity to raise and
            address all issues regarding the process
            provided to [him] during the hearings on his
            disability claim before the Board, and only
            now, almost four (4) months after the Court’s
            final Order regarding these Rules 106 issues,
            does [Dolan] raise this claim for the first time.

            Based on this analysis, the Court DENIES
            [Dolan’s] Motion to add his Sixth Claim for
            Relief regarding due process deficiencies
            during the FPPA Board hearings as untimely.

¶ 38   “Under well-established law, leave to amend is a discretionary

  matter which is left to the trial court to determine.” Polk v. Denver

  Dist. Court, 849 P.2d 23, 25 (Colo. 1993). Thus, we will only reverse

  a court’s decision to deny a motion to amend for an abuse of that

  discretion. Id. Under C.R.C.P. 15, “[a] trial court may properly

  deny leave to amend a complaint late in litigation if the proponent

  fails to show that the delay is justified.” Krupp v. Breckenridge

  Sanitation Dist., 1 P.3d 178, 184 (Colo. App. 1999), aff’d, 19 P.3d

  687 (Colo. 2001).




                                    17
¶ 39   A facial challenge to the constitutionality of a regulation is a

  matter for declaratory judgment and is subject to review under

  C.R.C.P. 57. Tri-State Generation & Transmission Co. v. City of

  Thornton, 647 P.2d 670, 676 n.7 (Colo. 1982); accord Kruse v. Town

  of Castle Rock, 192 P.3d 591, 598 (Colo. App. 2008).

¶ 40   An as-applied challenge to the constitutionality of a regulation

  is cognizable under C.R.C.P. 106(a)(4) and must be brought within

  the time limits of C.R.C.P. 106(b). Tri-State, 647 P.2d at 676 n.7;

  see Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543 (Colo.

  1990).

¶ 41   “It is generally presumed that administrative rules and

  regulations comport with constitutional standards and the burden

  is upon the party attacking such provisions to establish their

  invalidity beyond a reasonable doubt.” Sears v. Romer, 928 P.2d

  745, 751 (Colo. App. 1996).

¶ 42   On appeal, Dolan argues his amended complaint presented a

  facial challenge to the FPPA regulations. However, his complaint

  and attached motion do not clearly express a facial challenge.

  Dolan sought “an order determining the FPPA violated [his]

  procedural due process rights,” and his complaint and motion


                                    18
  repeatedly refer to actions taken by the FPPA against him. “A

  constitutional challenge to an ordinance as applied is concerned

  with the application of a general rule or policy ‘to specific

  individuals, interests, or situations’ and is generally a quasi-judicial

  act subject only to C.R.C.P. 106(a)(4) review.” Tri-State, 647 P.2d at

  676 n.7 (quoting Snyder v. City of Lakewood, 189 Colo. 421, 427,

  542 P.2d 371, 376 (1975)). Because Dolan presented the district

  court with an as-applied challenge to the FPPA regulations, the

  court correctly determined that claim was time barred by C.R.C.P.

  106(b).

¶ 43   Even if we were to accept Dolan’s position that his claim

  presented a facial challenge to the FPPA regulations, the court’s

  denial of his claim was not error because Dolan failed to show that

  his delay in bringing the claim was justified. As noted by the court,

  Dolan had ample opportunity to raise this claim during earlier

  proceedings, and he presented the argument for the first time

  months after the court denied his request for relief from the Board’s

  determination. Dolan offers no reason for his substantial delay in

  amending the complaint since the information giving rise to his

  claim was evident to him prior to the Board issuing its final


                                     19
  decision. See Krupp, 1 P.3d at 185. Accordingly, we conclude the

  district court did not abuse its discretion in denying Dolan’s request

  as untimely.

                            IV.    Conclusion

¶ 44   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.




                                    20
