     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
                                                          September 6, 2018

                               2018COA136

No. 18CA0499 Arapahoe Cty Sheriff v Cummings —
Government — County Officers — Sheriff — Deputies

     The division holds that a 2006 amendment to section 30-10-

506, C.R.S. 2017, preserves, to a large extent, the doctrine of at-will

employment for deputy sheriffs, but also grants certain due process

rights to those deputies.

     The division further holds that the statute authorizes sheriffs

to grant other rights to sheriffs’ deputies, but they are not required

to do so.

     Finally, the division holds that clear and conspicuous

disclaimers preclude, as a matter of law, those portions of plaintiff’s

implied contract claim that are not based on the due process rights

granted by section 30-10-506.
COLORADO COURT OF APPEALS                                        2018COA136


Court of Appeals No. 18CA0499
Arapahoe County District Court No. 16CV32444
Honorable Kenneth M. Plotz, Judge


Michael Cummings,

Plaintiff-Appellee,

v.

Arapahoe County Sheriff’s Department and David C. Walcher, individually and
in his capacity as Arapahoe County Sheriff,

Defendants-Appellants.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division A
                         Opinion by JUDGE BERGER
                              Freyre, J., concurs
                         Bernard, J., specially concurs

                         Announced September 6, 2018


Mark S. Bove P.C., Mark S. Bove, Denver, Colorado, for Plaintiff-Appellee

Ronald A. Carl, Arapahoe County Attorney, Daniel C. Perkins, Senior Assistant
County Attorney, Erin L. Powers, Senior Assistant County Attorney, Littleton,
Colorado, for Defendants-Appellants

Hall & Evans, L.L.C., Mark S. Ratner, Denver, Colorado, for Amicus Curiae
Colorado Counties, Inc.
                   I.    Introduction and Summary

¶1   This lawsuit pits the Arapahoe County Sheriff (the Sheriff)

 against one of his former deputies, Michael Cummings, whose

 employment was terminated by the Sheriff. Cummings contends

 that the written employment policies promulgated by the Sheriff

 contained in the Sheriff’s employee manual (the Manual) constitute

 an implied contract of employment that the Sheriff breached when

 he fired Cummings. In denying the Sheriff’s summary judgment

 motion, the district court agreed with Cummings. The Sheriff

 brings this interlocutory appeal under C.A.R. 4.2, challenging the

 district court’s denial of summary judgment.

¶2   Resolution of this appeal requires us to construe section 30-10-

 506, C.R.S. 2017, which governs the employment relationship

 between Colorado’s elected sheriffs and the deputies they appoint.

 It provides in relevant part as follows:

             Each sheriff may appoint as many deputies as
             the sheriff may think proper and may revoke
             such appointments at will; except that a sheriff
             shall adopt personnel policies, including
             policies for the review of revocation of
             appointments. Before revoking an
             appointment of a deputy, the sheriff shall
             notify the deputy of the reason for the



                                    1
             proposed revocation and shall give the deputy
             an opportunity to be heard by the sheriff.

 § 30-10-506.

¶3   In Seeley v. Board of County Commissioners, the Colorado

 Supreme Court authoritatively construed a prior version of this

 statute, holding that sheriffs’ deputies were employees at will and

 that a sheriff “did not possess the statutory authority to limit his

 power to discharge [his deputies] ‘at his pleasure.’” 791 P.2d 696,

 700 (Colo. 1990).

¶4   As was its right, the General Assembly legislatively overruled the

 supreme court’s decision by amending the statute in 2006.

 Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen.

 Assemb., 1st Sess. (Feb. 7, 2006); cf. Gallegos v. Phipps, 779 P.2d

 856, 861 (Colo. 1989) (noting General Assembly’s enactment of

 another statute “for the explicit purpose of” overruling the

 particular case).

¶5   We conclude that the General Assembly legislatively partly

 overruled Seeley because, contrary to Seeley, the General Assembly

 decided to grant certain employment rights to the deputies that are,

 at least in part, inconsistent with the concept of at-will employment



                                    2
 as it is known in Colorado law.1 Hearings on H.B. 1181 before the

 H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess. (Feb. 7, 2006).

 But we also know from the plain language of the amended statute

 that in other respects, the General Assembly intended to preserve

 the doctrine of at-will employment.

¶6   Considering the plain language of the 2006 amendments, the

 legislative history, and commonly recognized rules of statutory

 construction, we conclude that section 30-10-506 does the

 following:

        It grants two unwaivable rights to the deputies: the right of

         notification “of the reason for the proposed revocation” of

         their employment, and “an opportunity to be heard by the

         sheriff” before their employment is terminated.

        It requires each sheriff to “adopt personnel policies,

         including policies for the review of revocation of

         appointments,” but except for the two statutory rights noted



 1 Under Colorado law, an “at will employee” is one whose
 “employment may be terminated by either party without cause and
 without notice, and whose termination does not give rise to a cause
 of action.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo.
 1987).

                                    3
          above, these policies need not be binding and sheriffs may

          reserve their right to depart from such policies in any

          particular case or matter. To that extent, the doctrine of at-

          will employment is preserved.

        It permits a sheriff to promulgate binding employment

          policies, and if the sheriff elects to do so, those policies are

          enforceable in accordance with their terms.


¶7   Applying this construction of section 30-10-506 to the facts

 presented in the Sheriff’s summary judgment motion, but also

 considering the dispositive legal effect of clear and conspicuous

 disclaimers of any contractual relationship, we affirm the district

 court’s denial of summary judgment with respect to the specific

 rights granted by section 30-10-506, but otherwise reverse the

 court’s denial of summary judgment on Cummings’ implied contract

 claim.

            II.     Relevant Facts and Procedural History

¶8   Cummings was a deputy sheriff in Arapahoe County. The Sheriff

 terminated Cummings’ employment, asserting that he violated




                                      4
  several of the Manual’s policies and was dishonest in the course of

  the investigation of the original charges against him.

¶9   After exhausting his remedies within the Sheriff’s department,

  Cummings sued, asserting two claims for relief: wrongful discharge

  in violation of public policy and breach of an implied contract of

  employment based on the employment policies contained in the

  Manual.

¶ 10 Cummings contends that while the Sheriff informed him of the

  reasons for the initial investigation into his conduct, the Sheriff did

  not provide him with notice of the charges that eventually led to his

  termination. He also contends that the Sheriff denied him an

  adequate opportunity to defend himself by not following the

  procedural policies of the Manual during the disciplinary process.

¶ 11 The Sheriff moved to dismiss the wrongful termination claim

  under C.R.C.P. 12(b)(1) based on governmental immunity. The

  district court held a Trinity hearing on the wrongful discharge in

  violation of public policy claim and dismissed that claim with




                                     5
  prejudice.2 See Trinity Broad. of Denver v. City of Westminster, 848

  P.2d 916 (Colo. 1993).

¶ 12 After the district court denied the Sheriff’s motion to dismiss the

  implied contract claim for failure to state a claim, the Sheriff moved

  for summary judgment. He contended that the at-will language in

  section 30-10-506 prevented him from promulgating binding

  personnel policies; that the disclaimers contained both in the

  Manual itself and in separate, yearly disclaimers signed by

  Cummings precluded as a matter of law any implied contract claim;

  and that, in any event, he had not violated any of the Manual’s

  policies.

¶ 13 The district court denied the Sheriff’s motion, holding that there

  was an implied contract of employment. The district court reasoned

  that it was illogical to conclude that the General Assembly would at

  once require sheriffs to promulgate employment policies, but then

  authorize sheriffs to wholly ignore them. Thus, the court held that

  all provisions in an employment manual promulgated by a sheriff

  pursuant to section 30-10-506 were binding and formed an implied



  2   That claim is not before us on this interlocutory appeal.

                                      6
  employment contract. As to the disclaimers, the court ruled that

  they were ineffective because they could not countermand the

  statutory requirement that the policies be binding. And, as to the

  Sheriff’s argument that he did not violate any of the policies, the

  court concluded that disputed issues of material fact precluded

  summary judgment.

¶ 14 Although ordinarily an order denying summary judgment is not a

  final appealable order, the Sheriff petitioned for an interlocutory

  review of the order. Recognizing the internal conflicts within the

  statute, the district court certified its summary judgment order for

  interlocutory appeal under C.A.R. 4.2. Agreeing with the district

  court that the Sheriff met the requirements for an interlocutory

  appeal, and that this is a matter of substantial public concern, we

  granted the petition.

  III.   The District Court Correctly Denied The Sheriff’s Motion for
          Summary Judgment With Respect To The Specific Rights
                        Granted by Section 30-10-506

¶ 15 For the same three reasons that he sought summary judgment in

  the district court, the Sheriff contends that the court erred in

  denying his motion for summary judgment.




                                     7
                        A.    Standard of Review

¶ 16 We review a grant (or, when authorized by law, a denial) of

  summary judgment de novo. Geiger v. Am. Standard Ins. Co. of

  Wisc., 192 P.3d 480, 482 (Colo. App. 2008) (holding that we review

  a denial of summary judgment de novo). “Under C.R.C.P. 56(c),

  summary judgment may be granted if there is no genuine contested

  issue of material fact and the moving party is entitled to judgment

  as a matter of law.” Georg v. Metro Fixtures Contractors, Inc., 178

  P.3d 1209, 1212 (Colo. 2008). We grant the nonmoving party the

  benefit of all favorable inferences that may reasonably be drawn

  from the undisputed facts and resolve all doubts against the moving

  party. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83

  (Colo. 1999).

                  B.   Rules of Statutory Interpretation

¶ 17 Resolution of this appeal requires us to determine the meaning of

  section 30-10-506, which is a question of law that we review de

  novo. Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559,

  563 (Colo. 2009).

¶ 18 In interpreting a statute, we first give the words and phrases of

  the statute their plain and ordinary meanings according to the rules


                                    8
  of grammar and common usage. § 2-4-101, C.R.S. 2017; Jefferson

  Cty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.

  2010). We consider the words and phrases of the statute both in

  the context of the statute itself and in the context of any

  comprehensive statutory scheme of which the statute is a part.

  Jefferson Cty. Bd. of Equalization, 241 P.3d at 935. By applying

  these principles, we attempt to determine the General Assembly’s

  intended meaning of the words and phrases, and harmonize that

  meaning with the comprehensive statutory scheme. Id.

¶ 19 If the statutory language is susceptible to only one reasonable

  meaning, we enforce it as written and do not resort to other rules of

  statutory construction. Vaughan v. McMinn, 945 P.2d 404, 408

  (Colo. 1997). However, if a statute is susceptible to more than one

  reasonable meaning, we employ other tools of statutory

  interpretation, including legislative history, to ascertain the General

  Assembly’s intent. People v. Luther, 58 P.3d 1013,1015 (Colo.

  2002).

      C.   The Implied Contract Exception to At-Will Employment

¶ 20 In Colorado, an employee who is hired for an indefinite period is

  presumed to be an at-will employee, but this presumption may be


                                     9
  rebutted. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711-12

  (Colo. 1987).

¶ 21 Policies contained in an employee manual addressing discipline

  or the termination of employment may, under some circumstances,

  serve as the basis for claims of either a breach of implied contract

  or promissory estoppel. Id. These claims may be asserted by both

  private and public employees. Adams Cty. Sch. Dist. No. 50 v.

  Dickey, 791 P.2d 688, 694 (Colo. 1990).

¶ 22 Employees claiming a breach of an implied contract of

  employment based on an employee manual bear the burden of

  rebutting the presumption of at-will employment. Keenan, 731

  P.2d at 711. To do so, they must demonstrate:

            first, that in promulgating the termination
            procedures the employer was making an offer
            to the employee — that is, the employer
            manifested his willingness to enter into a
            bargain in such a way as to justify the
            employee in understanding that his assent to
            the bargain was invited by the employer and
            that the employee’s assent would conclude the
            bargain, Restatement (Second) of Contracts
            § 24 (1981) — and second, that his initial or
            continued employment constituted acceptance
            of and consideration for those procedures.

  Id.



                                    10
                              D.    Analysis

  1.    Binding Personnel Policies May Be Promulgated by the Sheriff
                         Under Section 30-10-506

¶ 23 Relying on Seeley, the Sheriff contends (and the special

  concurrence apparently agrees) that the retention of the at-will

  employment concept in the statute requires us to hold that all

  policies promulgated by a sheriff relating to the termination of

  deputy sheriffs’ employment are only precatory. To conclude

  otherwise, according to the Sheriff, would write out of the statute

  the Sheriff’s statutory power to terminate at will the employment of

  a deputy.

¶ 24 For two reasons, we reject the Sheriff’s interpretation of section

  30-10-506. First, it is inconsistent with the statute’s conferral on

  the deputies of at least two due process rights. Second, based on

  the amended statutory language, we have no doubt that the

  General Assembly legislatively partly overruled Seeley. See

  Hearings on H.B. 1181 before the H. Local Gov. Comm., 65th Gen.

  Assemb., 1st Sess. (Feb. 7, 2006).

¶ 25 When it amended section 30-10-506, the General Assembly

  combined two contradictory concepts — at-will employment for



                                    11
  deputies, on the one hand, and the requirement that sheriffs

  provide at least some binding employment rights to their deputies,

  on the other. These inherent contradictions render the statute

  susceptible to at least two reasonable understandings; thus, it is

  ambiguous. People v. Jones, 2015 CO 20, ¶ 10.

¶ 26 Our job is to rationally construe the statute to give effect to all,

  not just some, of the words of the statute and to recognize the

  legislative intent to overrule Seeley in part. Luther, 58 P.3d at

  1015.

¶ 27 The statute unambiguously confers two due process rights on the

  deputies: “Before revoking an appointment of a deputy, the sheriff

  shall notify the deputy of the reason for the proposed revocation

  and shall give the deputy an opportunity to be heard by the sheriff.”

  § 30-10-506.

¶ 28 But the statute does more. It also requires sheriffs to “adopt

  personnel policies, including policies for the review of revocation of

  appointments.” Id. The statute says nothing about whether any

  employment policies promulgated by sheriffs, beyond notice and a

  right to be heard, must be binding on the sheriff. We agree with the

  Sheriff that a construction of the statute that all such policies are


                                     12
  binding ignores and essentially writes out the at-will employment

  language. This is what the district court’s construction of the

  statute did, but neither the district court nor this court has that

  authority. Jefferson Cty. Bd. of Equalization, 241 P.3d at 935.

¶ 29 But, if all of the policies, save the two due process rights

  identified above, were precatory, then the at-will employment

  relationship, though modified somewhat, would be preserved.

¶ 30 In Seeley, the supreme court held that the prior version of the

  statute simply did not authorize a sheriff to limit his right to fire his

  deputies at will. 791 P.2d at 700. But the amendments to the

  statute overruled that holding, at least in part. Hearings on H.B.

  1181 before the H. Local Gov. Comm., 65th Gen. Assemb., 1st Sess.

  (Feb. 7, 2006). While the statute does confer on the deputies two

  binding due process rights, nothing in the statute expressly

  requires that all policies adopted by the sheriff are binding.

¶ 31 We reject the district court’s reasoning that it is illogical for the

  General Assembly to require the promulgation of employment

  policies and then permit the sheriff to ignore at least some of those

  policies. As a division of this court observed in Jaynes v. Centura

  Health Corp., precatory employment policies are not useless; they


                                      13
  may serve as “guidelines” for the employer, managers, and his

  employees. 148 P.3d 241, 249 (Colo. App. 2006). We thus reject

  the district court’s conclusion that only binding employment

  policies are meaningful and that all employment policies

  promulgated by the Sheriff must be binding.

¶ 32 But that does not mean that the Sheriff is prohibited by section

  30-10-506 from promulgating binding employment policies.

¶ 33 To summarize, the amended statute requires a sheriff to

  promulgate written employment policies. The sheriff must give his

  deputies the rights of notice and opportunity to be heard. Other

  employment policies promulgated by the sheriff may be, but are not

  required to be, binding. And if the sheriff elects to confer binding

  employment rights on his deputies, those rights are enforceable in

  accordance with their terms.

¶ 34 In this way, “we give effect to every word and render none

  superfluous because we ‘do not presume that the legislature used

  language idly and with no intent that meaning should be given to

  its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d

  565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.




                                    14
  Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597

  (Colo. 2005)).

¶ 35 Our construction of section 30-10-506 finds support in the

  United States District Court for the District of Colorado’s decision in

  Tonjes v. Park County Sheriff’s Office, the only published case that

  has addressed the 2006 version of section 30-10-506. 300 F. Supp.

  3d 1308 (D. Colo. 2018).

¶ 36 In Tonjes, as here, a sheriff’s deputy contended that the sheriff

  was bound by the employee manual’s policies, while the sheriff

  argued that section 30-10-506 and the manual’s disclaimer

  precluded the formation of an implied contract of employment. Id.

  at 1319-20. Consistent with our holding, the federal court held

  that because of the 2006 amendments to section 30-10-506,

  sheriffs have “the ability to adopt policies that limit [their] power to

  terminate (demote, discipline, etc.) employees at will.” Id. at 1319.

   2.    The Written Disclaimers Preclude an Implied Contract Claim
           as a Matter of Law, Except as to the Due Process Rights
           Conferred by Statute and by Those Terms in the Manual

¶ 37 The Sheriff next argues that, even if section 30-10-506 permits

  sheriffs to promulgate binding personnel policies, the disclaimers in

  both the Manual and the separate yearly disclaimers signed by


                                     15
  Cummings preclude, as a matter of law, the formation of an implied

  contract of employment.

¶ 38 The Manual included the following disclaimer:

            These guidelines do not alter the at-will status
            of employees of the Sheriff. The Sheriff may
            terminate members or revoke deputy
            appointments at will, with or without cause.
            No portion of these guidelines or policies shall
            constitute a contract of employment, either
            express or implied, between the Sheriff and the
            member, or the County and the member, nor
            is it a guarantee of employment for a specific
            term or duration.

  Additionally, once a year, Cummings signed a form that reiterated

  the terms of this disclaimer and stated:

            THE SHERIFF’S OFFICE DETENTION
            DIVISION MANUAL IS NOT INTENDED TO
            BE, NOR DOES IT CONSTITUTE A
            CONTRACT BETWEEN THE ARAPAHOE
            COUNTY SHERIFF AND ANY OF HIS
            EMPLOYEES. ALL ARAPAHOE SHERIFF
            EMPLOYEES ARE AT-WILL EMPLOYEES. All
            Arapahoe County Sheriff employees have the
            right to end their work relationship with
            organization with or without advance notice or
            cause. The Arapahoe County Sheriff has the
            same right to end the relationship.

¶ 39 Whether a contract disclaimer is clear and conspicuous is a

  question of law for the court. Jaynes, 148 P.3d at 248. The

  disclaimers in most of the yearly forms signed by Cummings were


                                   16
  written in capitalized letters, bolded, and underlined. We need not

  determine whether the disclaimer in the Manual is clear and

  conspicuous, because the disclaimers in the yearly forms

  undoubtedly are clear and conspicuous under Colorado law. Id.

¶ 40 We next must determine whether these clear and conspicuous

  disclaimers preclude, as a matter of law, Cummings’ implied

  contract claims. Except with respect to the rights expressly granted

  to the deputy sheriffs by statute, we hold that they do.

   a.   The Manual’s Notice of Charges and Opportunity to be Heard
                           Employment Policies

¶ 41 In his response to the Sheriff’s summary judgment motion,

  Cummings specifically contended that the Sheriff violated the

  Manual’s policy (and the statutory mandate) requiring that deputies

  receive timely notice of the reason for their proposed termination.

  While Cummings appears to concede that he received timely notice

  of the initial charges against him, he contends that he did not

  receive proper, timely notice of the additional charges that actually

  led to his termination.

¶ 42 As we held above, a deputy’s right to notice and an opportunity

  to be heard are explicitly protected by section 30-10-506. To the



                                    17
  extent the Manual enforces these statutory rights, the Manual may

  form the basis of an implied contract claim.

¶ 43 Parties may not contract to abrogate statutory requirements and

  thereby contravene the public policy of this state. Peterman v. State

  Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998). “A

  contract provision that violates public policy by diluting,

  conditioning or unduly limiting statutory coverage may be declared

  void and unenforceable.” Id. Thus, to the extent the disclaimers

  purport to waive, as a condition of public employment, the deputies’

  rights to notice and the opportunity to be heard, they contravene

  the express terms of section 30-10-506 and are void as against

  public policy. See id.

¶ 44 Cummings claims that he did not receive the required notice of

  the charges that led to his dismissal, and the Sheriff disputes that

  interpretation of the record. Because the material facts on this

  question are disputed, a trier of fact (in this case a jury) must

  determine whether the Sheriff violated the Manual’s policies

  regarding notice of the charges against Cummings.




                                    18
          b. Other Policies in the Manual and the Disclaimers

¶ 45 Many of the policies contained in the Manual are worded in

  mandatory terms. We now address the purported conflict between

  the disclaimers and the mandatory language used in some of the

  policies, other than those that effectuate the due process rights

  conferred by section 30-10-506.

¶ 46 Several reported Colorado Court of Appeals cases have addressed

  this conflict, but the Colorado Supreme Court has not.

¶ 47 In Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming,

  824 P.2d 1, 3 (Colo. App. 1991), although the employee handbook

  contained a disclaimer of any contractual rights, other documents

  provided to Allabashi contained termination procedures and policies

  requiring just cause for termination. Allabashi testified that she

  relied on those policies and procedures. Id. Relying on Cronk v.

  Intermountain Rural Electric Ass’n, 765 P.2d 619 (Colo. App. 1988),

  and distinguishing Ferrera v. Nielsen, 799 P.2d 458 (Colo. App.

  1990), the division held that the trial court did not err in submitting

  the implied contract claim to the jury. Allabashi, 824 P.2d at 3.

¶ 48 In Cronk, the manual set “forth certain express events which

  might cause the employee to be terminated. In addition, the


                                    19
  manual state[d] that other reasons, not so expressed, could be

  grounds for termination, ‘as long as such legitimate reasons

  constitute just cause.’” 765 P.2d at 623. Noting that “[t]he

  disclaimer upon which the trial court relied was added after the

  plaintiffs commenced their employment with IREA,” and that in

  their summary judgment affidavits, the “plaintiffs asserted that they

  had relied on the employee manual provisions concerning

  termination,” the division held that the trial court erred in granting

  summary judgment to the employer. Id.

¶ 49 In Ferrera, 799 P.2d at 461, the division appears to have reached

  a conclusion contrary to that reached in Allabashi. Ferrera brought

  an action alleging wrongful discharge and both implied contract and

  promissory estoppel claims based on the employee handbook. Id. at

  459. The district court granted summary judgment to the employer

  on the implied contract claim, based on a disclaimer contained in

  the handbook.

¶ 50 The division affirmed on two bases. Id. at 459-61. First, the

  division concluded that the handbook did not either expressly

  require just cause for dismissal or prescribe a progressive discipline

  process. Id. at 461. Rather, the handbook expressly reserved the


                                    20
  right to discharge an employee whose conduct “in the opinion of the

  Company” warrants it. Id.

¶ 51 Second, the division held that “[s]ummary judgment denying

  claims based on a handbook is appropriate if the employer has

  clearly and conspicuously disclaimed intent to enter a contract

  limiting the right to discharge employees.” Id. Concluding that the

  disclaimer was both “sufficiently clear” and “sufficiently

  conspicuous,” the division affirmed the summary judgment. Id.

¶ 52 More recently, a division addressed this question in Evenson v.

  Colorado Farm Bureau Mutual Insurance Co., 879 P.2d 402 (Colo.

  App. 1993). Citing Ferrera, the division stated “[s]uch a

  manifestation of willingness to be bound can be inferred if there is

  no disclaimer in the manual stating that it does not constitute a

  contract or if such disclaimer, though present, is not clear and

  conspicuous.” Id. at 409. But then, the division proceeded to say

  that “[f]urthermore, even if there is a disclaimer in the manual, an

  employer may nevertheless be found to have manifested an intent to

  be bound by its terms if the manual contains mandatory




                                    21
  termination procedures or requires ‘just cause’ for termination.”3

  Id.

¶ 53 If employees could not reasonably construe anything in the

  manual as a promise of either procedural or substantive

  employment rights, an implied contract claim fails irrespective of

  whether there was a clear and conspicuous disclaimer. Jaynes,

  148 P.3d at 248; George v. Ute Water Conservancy Dist., 950 P.2d

  1195, 1198 (Colo. App. 1997).4 This is so because a fundamental

  requirement of all contracts is that the terms of a contract “must be

  sufficiently definite to enable the court to determine whether the

  contract has been performed or not.” Stice v. Peterson, 144 Colo.



  3 Later in the opinion, the division suggests another basis for its
  decision: “[W]hile the disclaimer provisions[] are clear, they were not
  emphasized. Indeed, they contain nothing to make them
  conspicuous.” Evenson v. Colo. Farm Bureau Mut. Ins. Co., 879 P.2d
  402, 409 (Colo. App. 1993).
  4 In both Jaynes v. Centura Health Corp., 148 P.3d 241, 248 (Colo.

  App. 2006), and George v. Ute Water Conservancy Dist., 950 P.2d
  1195, 1198 (Colo. App. 1997), divisions of this court were able to
  avoid either reconciling or disagreeing with the cases cited above.
  In both of those cases, the divisions concluded that the plaintiffs
  failed to cite policies in the employers’ manuals that could be
  construed as a promise of either procedural or substantive rights
  and thus failed to show that the manuals created an implied
  contract or were binding on promissory estoppel principles.
  Jaynes, 148 P.3d at 248; George, 950 P.2d at 1198.

                                    22
  219, 224, 355 P.2d 948, 952 (1960) (quoting Newton Oil Co. v.

  Bockhold, 115 Colo. 510, 518, 176 P.2d 904, 908 (1946)); see also

  Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166

  P.3d 259, 262 (Colo. App. 2007). If the disclaimer is not clear and

  conspicuous, it is wholly ineffective to displace promises contained

  in the handbook that are relied on by the employees. See Ferrera,

  799 P.2d at 461.

¶ 54 To the extent that some divisions of this court have held that

  even when the disclaimer is clear and conspicuous, the case

  nevertheless goes to the jury, we cannot subscribe to that result

  because it gives insufficient weight to a clear and conspicuous

  disclaimer.5 See People v. Smoots, 2013 COA 152, ¶ 20 (holding



  5 We do not eliminate the possibility that evidence other than the
  employee manual and the disclaimer could result in a factual
  question of whether an implied contract has been formed. Indeed,
  these facts seem to be in play in Evenson, 879 P.2d at 409, where
  the division referred to testimony by the company’s managers to the
  effect that they regarded the disciplinary procedures as mandatory
  and treated them as mandatory. Whether viewed as an amendment
  to or an implied revocation of the disclaimer, facts such as those
  may well preclude summary judgment and require the fact finder to
  ultimately determine whether an implied contract was created. See
  I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 887
  (Colo. 1986) (“[I]t is for the jury to determine whether the parties
  have entered into a contract.”). But Cummings neither pleaded

                                   23
  that we are not bound by the decisions of other divisions of this

  court). That result also is not faithful to supreme court cases that

  have repeatedly reaffirmed the doctrine of at-will employment in

  Colorado (subject to several enumerated exceptions). See, e.g.,

  Keenan, 731 P.2d 708.

¶ 55 The purpose of a disclaimer is to inform the employee that the

  employer is not making contractual promises and that the employee

  remains an employee at will. It is difficult to understand how a

  reasonable employee could believe that the employer has made

  contractual promises in the face of a clear and conspicuous

  disclaimer that says exactly the opposite.

¶ 56 Thus, we hold that when a clear and conspicuous disclaimer

  informs an employee that he or she cannot reasonably rely on

  termination procedures or substantive restrictions on termination

  contained in an employee manual, a claim based on an implied

  contract claim ordinarily fails as a matter of law.6




  such circumstances nor supported his summary judgment
  opposition with such evidence.
  6 Because no promissory estoppel claim was pleaded in this case,

  we do not address the legal effects of clear and conspicuous
  disclaimers on such claims.

                                    24
¶ 57 We acknowledge that courts in other states have reached widely

  varying results on this question. See Stephen F. Befort, Employee

  Handbooks and the Legal Effect of Disclaimers, 13 Indus. Rel. L.J.

  326 (1991-92) (collecting cases).

¶ 58 We perceive that the rule we apply here is the majority rule. See

  Fed. Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993) (“A

  disclaimer in an employee handbook, such as the one included by

  Federal Express, negates any implication that a personnel

  procedures manual places a restriction on the employment at will

  relationship.”); see also Davis v. Liberty Mut. Ins. Co., 218 F. Supp.

  2d 256 (D. Conn. 2002); Anderson v. Douglas & Lomason Co., 540

  N.W.2d 277 (Iowa 1995); Byrd v. Imperial Palace of Miss., 807 So.

  2d 433 (Miss. 2001); Woolley v. Hoffmann-La Roche, Inc., 491 A.2d

  1257 (N.J. 1985), modified, 499 A.2d 515 (N.J. 1985); Ruzicki v.

  Catholic Cemeteries Ass’n of Diocese of Pittsburgh, 610 A.2d 495 (Pa.

  Super. Ct. 1992); Bine v. Owens, 542 S.E.2d 842 (W. Va. 2000);

  Bear v. Volunteers of Am., Wyo., Inc., 964 P.2d 1245 (Wyo. 1998).

¶ 59 Other states hold that the existence of a disclaimer, even one

  that is clear and conspicuous, is but one factor in determining

  whether an employee manual forms an implied contract. See, e.g.,


                                      25
  Brace v. Int’l Bus. Machs. Corp., 953 F. Supp. 561, 567 (D. Vt.

  1997); Gonsalves v. Nissan Motor Corp. in Haw., Ltd., 58 P.3d 1196

  (Haw. 2002); Lee v. Canuteson, 573 N.E.2d 318 (Ill. App. Ct. 1991);

  Hunt v. Banner Health Sys., 720 N.W.2d 49 (N.D. 2006); Hodgson v.

  Bunzl Utah, Inc., 844 P.2d 331 (Utah 1992).

¶ 60 In view of the indisputable presence of clear and conspicuous

  disclaimers, we need not determine whether the Manual, in fact,

  creates sufficiently definite promises or rights capable of

  enforcement under contract law. As a matter of law, these

  disclaimers preclude a successful implied contract claim based on

  any rights other than those that effectuate the specific due process

  rights granted by section 30-10-506.

                           IV.   Conclusion

¶ 61 That part of the district court’s summary judgment order

  permitting Cummings to pursue an implied contract claim based on

  rights conferred in the Manual that effectuate the due process

  rights granted by section 30-10-506 is affirmed. In all other

  respects, the district court’s summary judgment order is reversed,

  and on remand the court is directed to grant the Sheriff’s motion for

  summary judgment to that extent.


                                    26
JUDGE FREYRE concurs.

JUDGE BERNARD specially concurs.




                        27
       JUDGE BERNARD, specially concurring.

¶ 62 I agree with the result that the majority reaches: although the

  district court properly denied the sheriff’s motion for summary

  judgment concerning two statutory rights created by section 30-10-

  506, C.R.S. 2017, it erred when it denied the rest of the sheriff’s

  motion. But, as I explain below, I employ a different rationale to

  reach the same result.

                              I.   Introduction

¶ 63 When interpreting a statute, a court focuses on its plain

  language, “construing words and phrases according to the rules of

  grammar and common use.” Roberts v. Bruce, 2018 CO 58, ¶ 8.

  The court’s “central task is to give effect to the General Assembly’s

  intent.” Id. “To this end, [the court will] read the statute as a whole

  and seek to give consistent, harmonious, and sensible effect to all

  its parts.” Id. “The plain language of the statute is the best

  indication of legislative intent, and clear and unambiguous

  language eliminates the need to resort to other principles of

  statutory construction such as legislative history . . . .” People v.

  J.J.H., 17 P.3d 159, 162 (Colo. 2001).




                                     28
¶ 64 “If a statute is clear and unambiguous on its face, then [the

  court] need not look beyond the plain language and must apply the

  statute as written.” McIntire v. Trammell Crow, Inc., 172 P.3d 977,

  979 (Colo. App. 2007). To put it another way, if a court can give

  effect to the ordinary meaning of the words adopted by a legislative

  body, the statute should be construed as written “since it may be

  presumed that the General Assembly meant what it clearly said.”

  Griffin v. S.W. Devanney & Co., 775 P.2d 555, 559 (Colo. 1989). If a

  statute is unambiguous, a court does not “resort to legislative

  history or further rules of statutory construction.” Smith v. Exec.

  Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo. 2010).

¶ 65 My analysis in this case would begin and end with the language

  of section 30-10-506, which I will refer to as “section 506.” As I

  explain below, I think that this language clearly and unambiguously

  describes a legislatively mandated rule that has been in effect in

  Colorado since 1877: sheriffs have the authority to fire their

  deputies at will.

¶ 66 Although the legislature amended section 506 in 2006, I do not

  believe that the amendments altered this rule. I recognize that the

  legislature may have intended to eliminate the rule and to


                                    29
  completely overrule Seeley v. Board of County Commissioners, 791

  P.2d 696, 699 (Colo. 1990). But it is my respectful view that the

  plain language that the legislature employed in section 506

  achieved those purposes only to the extent that section 506 created

  two specific statutory rights, while it otherwise preserved the

  authority of sheriffs to fire deputies at will. For the purposes of this

  case, this means that the rules in the sheriff’s personnel manual

  did not, and could not, override the sheriff’s explicit statutory

  authority to fire the former deputy.

          II.   Comparison of the 1877 Statute and Section 506

¶ 67 As is pertinent to my analysis, the 1877 statute stated: “Each

  sheriff may appoint such and so many deputies as he may think

  proper . . . and may revoke such appointments at his pleasure.”

  G.L. 1877, § 493.

¶ 68 The language that the legislature adopted in 1877, with a few

  minor changes, remained in effect for 129 years. See Ch. 43, sec. 1,

  § 30-10-506, 2006 Colo. Sess. Laws 133 (showing that, before the

  2006 amendment, the statute read, “Each sheriff may appoint as

  many deputies as he may think proper . . . and may revoke such

  appointments at his pleasure.”).


                                     30
¶ 69 As a result of the legislature’s 2006 amendments, section 506

  now says:

              Each sheriff may appoint as many deputies as
              the sheriff may think proper and may revoke
              such appointments at will; except that a sheriff
              shall adopt personnel policies, including
              policies for the review of revocation of
              appointments. Before revoking an
              appointment of a deputy, the sheriff shall
              notify the deputy of the reason for the
              proposed revocation and shall give the deputy
              an opportunity to be heard by the sheriff.

¶ 70 Comparing judicial descriptions of employees who serve at the

  pleasure of an employer and of at-will employees, I conclude that

  there is no significant difference between them. “An employee who

  serves ‘at the pleasure’ of his employer generally may be discharged

  at any time without cause or formal procedure.” Johnson v.

  Jefferson Cty. Bd. of Health, 662 P.2d 463, 471 (Colo. 1983). An at-

  will employee “may be terminated by either [the employee or the

  employer] without cause and without notice.” Crawford Rehab.

  Servs., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997)(quoting

  Cont’l Airlines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987)).

¶ 71 Our supreme court has carefully analyzed the language of the

  1877 statute in a series of cases. I explain those opinions next.



                                    31
                    III.   Cases Analyzing the 1877 Statute

¶ 72 Because counties are political subdivisions of the State of

  Colorado, they only have “such powers as are expressly conferred

  . . . by the constitution and statutes, and such incidental implied

  powers as are reasonably necessary to carry out such express

  powers.” Bd. of Cty. Comm’rs v. Love, 172 Colo. 121, 125, 470 P.2d

  861, 862 (1970), superseded by statute on other grounds, Ch. 213,

  1979 Colo. Sess. Laws 843. In other words, a county department,

  “as a political subdivision of the state, may not by rule or regulation

  abdicate the authority and responsibility delegated to it by the

  legislature.” Johnson, 662 P.2d at 471.

¶ 73 As a result, “a local government may not forbid that which the

  state has explicitly authorized.” Id. This means that, if the

  legislature has given a county official the authority to terminate

  employees at will, then a county’s personnel rules “do not override

  the explicit statutory authority of the [official] to discharge [an

  employee].” Id.

¶ 74 Seeley, 791 P.2d at 699, applied these principles when

  considering the language of the 1877 statute. The supreme court

  concluded that this plain language meant that a sheriff could not,


                                      32
  via the sheriff’s personnel policies collected in a personnel manual,

  “limit his power to terminate deputy sheriffs.” Id. at 700. Those

  policies, the supreme court thought, contravened the 1877 statute,

  and, by doing so, the policies sought to “forbid that which the state

  has explicitly authorized.” Id. (quoting Adams Cty. Sch. Dist. No. 50

  v. Dickey, 791 P.2d 688, 690 (Colo. 1990)). To put it another way,

  the 1877 statute “did not authorize [the sheriff] to limit his

  statutory power to discharge deputy sheriffs at his pleasure.” Id.

¶ 75 Seeley held that a local government entity, such as a sheriff’s

  office, “may limit its power to terminate employees if it possesses

  the requisite statutory authority to do so.” Id. at 699. Only the

  legislature can provide the “requisite statutory authority.”

¶ 76 So what does such “statutory authority” look like? Dickey

  provides one example. In that case, a statute “authorize[d] school

  boards to adopt written policies, rules and regulations.” Dickey,

  791 P.2d at 692. The subjects of the rules and regulations were

  “inherently related to practices affecting the employment,

  promotion, and dismissal of personnel.” Id. The statute did not

  require school boards “to adopt employment termination

  procedures,” but “if they cho[]se to do so the promulgation of such


                                    33
  procedures constitute[d] an authorized exercise of the powers

  granted to school boards” by the statute. Id.

¶ 77 The supreme court was careful to point out that the statutory

  language in Dickey “differ[ed] significantly from statutory provisions

  which have been held to override employment termination

  procedures established by local governments.” Id. The court listed

  three cases to support this distinction.

¶ 78 In Johnson, the statute stated that a county public health officer

  “shall be appointed by the board [of health] to serve at the pleasure

  of the board.” 662 P.2d at 471 (quoting § 25-1-505(1), C.R.S.

  1973). The supreme court thought that this language “expressed

  the legislature’s judgment that county boards of health should have

  the authority to discharge county public health officers ‘at any time

  without cause or formal procedure.’” Dickey, 791 P.2d at 692

  (quoting Johnson, 662 P.2d at 471).

¶ 79 In Kennedy v. Board of County Commissioners, 776 P.2d 1159,

  1160 (Colo. App. 1989), a statute read that “[a]ny persons

  appointed to such offices shall serve at the pleasure of the board of

  county commissioners.” A division of the court of appeals noted




                                    34
  that this language “define[d] the employee as terminable at will and

  [it] supersede[d] any county declaration to the contrary.” Id.

¶ 80 And, in Seeley, the supreme court considered the language in the

  predecessor statute to section 506 that we have quoted above:

  “Each sheriff may appoint as many deputies as he may think proper

  . . . and may revoke such appointments at his pleasure.” 791 P.2d

  at 699 (quoting § 30-10-506, C.R.S. 1986). The court in Dickey

  decided that this language made “deputy sheriffs employees at will,”

  and, as a result, sheriffs had “no power to alter the employment

  status of deputy sheriffs through the promulgation of employee

  manuals.” 791 P.2d 692.

                    IV.   Interpretation of Section 506

¶ 81 Applying the principles of statutory construction that I described

  in the Introduction, I conclude that the language in section 506 is

  plain and clear. I think that it continues the legislatively mandated

  rule that appeared in the 1877 statute: a sheriff may terminate a

  deputy’s appointment “at will.” This means that a sheriff may fire a

  deputy “without cause and without notice,” Crawford Rehab. Servs.,

  Inc., 938 P.2d at 546, and that such a decision “does not give rise to

  a cause of action,” Dickey, 791 P.2d at 691.


                                   35
¶ 82 Next, the legislature also has the authority to “create[] exceptions

  to the employer’s general right to terminate an employee at-will.”

  Crawford Rehab. Servs., Inc, 938 P.2d at 546. I find two of those

  exceptions in section 506: a sheriff must give a deputy (1) notice of

  the reason why he or she is firing the deputy; and (2) an

  opportunity “to be heard by the sheriff.” In other words, section

  506 limits a sheriff’s at-will authority to fire a deputy in these two

  ways. See Crawford Rehab. Servs., Inc., 938 P.2d at 546.

¶ 83 But what is the effect of the language in section 506 that requires

  sheriffs to adopt policies “for the review of revocation of

  appointments”? Does it set out additional exceptions to “the

  employer’s general right to terminate an employee at-will”?

  Crawford Rehab. Servs., Inc., 938 P.2d at 546. I would answer the

  second question “no.”

¶ 84 The requirement that a sheriff must adopt policies for reviewing

  the decision to fire a deputy is not accompanied by language stating

  that a sheriff is bound by those policies, or that the sheriff must

  “follow” or “comply with” them, or that they “control,” “modify,” or

  “limit” the sheriff’s discretion to fire deputies at will. And I cannot

  add such language to section 506 in the course of interpreting it.


                                     36
  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 that simply are not

  there.’” (quoting People v. Benavidez, 222 P.3d 391, 393-94 (Colo.

  App. 2009))); Carruthers v. Carrier Access Corp., 251 P.3d 1199,

  1204 (Colo. App. 2010)(“[W]e will not interpret a statute to mean

  that which it does not express.”).

¶ 85 So what purpose does the requirement in section 506 that

  sheriffs adopt policies “for the review of revocation of appointments”

  serve? I conclude that the policies are “discretionary rather than

  mandatory termination procedures,” Jaynes v. Centura Health

  Corp., 148 P.3d 241, 249 (Colo. App. 2006), because the

  requirement is not accompanied by statutory language requiring

  sheriffs to follow the policies. Cf. Kreimeyer v. Hercules, Inc., 892 F.

  Supp. 1374, 1378 (D.C. Utah 1994) (discretionary personnel

  policies were guidelines or a management tool and did not create an

  implied employment contract).

¶ 86 Because I conclude that the legislatively mandated at-will

  employment rule survived the 2006 amendments, I think the

  supreme court cases that interpreted the 1877 statute still apply to


                                       37
  this case. I would therefore additionally conclude that, although

  the legislature amended the 1877 statute in 2006, the continued

  presence of the legislatively mandated at-will employment rule in

  section 506 means that the resolution of this case is controlled by

  Seeley instead of Dickey. As the supreme court pointed out in

  Seeley, the 1877 statute “explicitly authorize[d] . . . sheriffs to

  discharge deput[ies] . . . at their pleasure.” 791 P.2d at 699.

  Section 506 does the same thing. So section 506 “did not authorize

  [the sheriff] to limit his statutory power to discharge deput[ies] . . .

  at his pleasure.” Seeley, 791 P.2d at 699-700; see Johnson, 662

  P.2d at 471 (“We conclude . . . that the . . . personnel rules, even

  though adopted by the board of health, do not override the explicit

  statutory authority of the board to discharge a public health officer

  appointed by the board.”).

¶ 87 Turning to the statute in Dickey, it did not make an explicit

  reference to school boards having the power to terminate

  employment at will, and it did not state that employees served at

  the pleasure of the school boards. Rather, it gave the school boards

  discretionary powers “[t]o discharge or otherwise terminate the

  employment of any personnel.” Dickey, 791 P.2d at 691. Section


                                     38
  506 is different: it expressly gives sheriffs the authority to terminate

  deputies’ employment at will by clearly stating that sheriffs “may

  revoke” the appointments of deputies “at will.”

¶ 88 The supreme court observed in Kennedy, 776 P.2d at 1160, that

  statutory provisions such as section 506 “have been construed to

  bar claims for breach of contract based on assurances in an

  employee handbook under the rationale that such a statute defines

  the employee as terminable at will and the statute supersedes any

  county declaration to the contrary.” Accord Johnson, 662 P.2d at

  471 (A county’s personnel rules “do not override the explicit

  statutory authority of the [official] to discharge [an employee].”).

  Relying on Seeley, Kennedy, and Johnson, I would therefore

  conclude that section 506 bars the deputy’s claim in this case that

  the sheriff’s employment policies, as embodied in the policy manual,

  created an implied employment contract that the Sheriff breached

  when he fired the deputy.

¶ 89 To summarize, reading the three components of section 506

  together leads me to conclude that (1) the legislature preserved the

  rule that it first adopted in 1877 that sheriffs have the authority to

  terminate deputies’ appointments at will; (2) this authority is now


                                     39
  subject to two exceptions and to two exceptions only; and,

  therefore, (3) the legislature made clear that sheriffs have “no

  [additional] power to alter the employment status of deputy sheriffs

  through the promulgation of employee manuals.” Dickey, 791 P.2d

  at 692.

¶ 90 I would therefore, like the majority, (1) affirm the district court’s

  order denying the sheriff’s motion for summary judgment with

  respect to two specific statutory rights created by section 506; but

  (2) otherwise reverse the court’s order denying the motion.




                                     40
