Case 1:18-cv-00126-STV Document 1 Filed 01/17/18 USDC Colorado Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF COLORADO

CASE NO. 1:18-cv-00126

MICHAEL GUNTER, SCOTT HUGHES, JASON DURAN, EDDIE PADIA, DAN

POLITICIA, CARLOS MONTOYA, ROBERT WINCKLER, DAVID ABEYTA, DUANE
PARTON, ERIC LEE, BART MALPASS, MYLOUS YEARLING, BRIAN MCNEIL,
MARK LUNG, JOE HUMPHREY, LAURA FRANKLIN, CURTIS FRANKLIN, TRAVIS
JACKSON, DANIEL GILES, WILLIAM CASH, RICHARD BLEA, CRYSTAL
RAYMOND, KURT BARNES, LORETTA BEAUVAIS, STEVE BISHOP, JIM BOUTIN,
KEVIN BRAY, CARRIE BRAY, JEFFREY COOK, LARRY DALE, MICHAEL DORE,
ANTHONY GALLEGOS, ROBERT GARCIA, ANDREW GATHJE, PATRICK HAYDEN,
GABE JORDAN, DAVID MARTINEZ, JARED PURDY, DOUGLAS SAVAGE and LUKE
PALMATIER

Plaintiffs,

v.

THE CITY AND COUNTY OF DENVER, a Colorado municipal corporation; and the POLICE
PROTECTIVE ASSOCIATION OF THE CITY & COUNTY OF DENVER, COLORADO

Defendants.
____________________________________________________________________________

COMPLAINT
____________________________________________________________________________

INTRODUCTION

1. This is a civil rights action pursuant to 42 U.S.C. § 1983, seeking equitable

relief, declaratory relief, equitable restitution, nominal damages, and other relief to prevent

and/or redress the deprivation, under color of Colorado law, of Plaintiffs’ rights, privileges and

immunities under the United States Constitution. Defendants have deprived, and are

threatening to continue to deprive, Plaintiffs of their constitutional rights. Specifically,

Defendants have failed to comply with “the constitutional requirements for the…collection of

agency fees.” Teachers Local No. 1 v. Hudson, 475 U.S. 292, 310 (1986). This demand for

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payment and collection of so-called “fair share” or agency fees has been conducted in a manner

which violates Plaintiffs’ First, Fifth, and Fourteenth Amendment rights as set forth by the

United States Supreme Court in Hudson, supra.

JURISDICTION AND VENUE

2. This action arises under the Constitution and laws of the United States,

particularly the First, Fifth, and Fourteenth Amendments to the United States Constitution. The

jurisdiction of this Court, therefore, is invoked under 28 U.S.C. § 1331.

3. This is also an action under the Federal Civil Rights Act of 1871, 42 U.S.C.

§1983, to redress the deprivation, under color of state law, of rights, privileges, and immunities

secured to Plaintiffs by the Constitution of the United States, particularly the First, Fifth, and

Fourteenth Amendments thereto. The jurisdiction of this Court, therefore, is invoked under 28

U.S.C. § 1343, pursuant to which this Court may grant: a) nominal damages for the violation

of Plaintiffs’ First, Fifth, and Fourteenth Amendment rights; b) restitution of any fees collected

from Plaintiffs, and other equitable relief; c) preliminary and permanent injunctive relief

against any further attempts at collections and demands for payment of agency fees; and d)

reasonable attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988.

4. This is also a case of actual controversy where Plaintiffs are seeking a declaration

of their rights under the Constitution of the United States. Under 28 U.S.C. §§ 2201 and 2202,

this Court may declare the rights of Plaintiffs and grant further necessary and proper relief based

thereon, including preliminary and permanent injunctive relief, pursuant to Rule 65,

FED.R.CIV.P.

5. Pursuant to 28 U.S.C. §§ 1391(b) and 1392, venue is proper in this Court

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because Defendants either reside and/or have offices and conduct their business in the

judicial district of the United States District Court for the District of Colorado.

PARTIES

6. Plaintiffs, Michael Gunter, Scott Hughes, Jason Duran, Eddie Padia, Dan

Politicia, Carlos Montoya, Robert Winckler, David Abeyta, Duane Parton, Eric Lee, Bart

Malpass, Mylous Yearling, Brian McNeil, Mark Lung, Joe Humphrey, Laura Franklin, Curtis

Franklin, Travis Jackson, Daniel Giles, William Cash, Richard Blea, Crystal Raymond, Kurt

Barnes, Loretta Beauvais, Steve Bishop, Jim Boutin, Kevin Bray, Carrie Bray, Jeffrey Cook,

Larry Dale, Michael Dore, Anthony Gallegos, Robert Garcia, Andrew Gathje, Patrick Hayden,

Gabe Jordan, David Martinez, Jared Purdy, Douglas Savage, and Luke Palmatier (hereinafter

collectively “Plaintiffs”) are, and were at all times mentioned herein, individuals employed as

Police Officers by Defendant, City & County of Denver, in its Police Department. As such, they

are public employees, and each is an “Officer” within the meaning of Article 2 of the Collective

Bargaining Agreements between the City and County of Denver and the Denver Police Protective

Association, 2013-2014 and 2015-20171 (hereinafter “CBA”). See CBA 2013-2014 attached hereto

as Exhibit 1; See CBA 2015-2017 attached hereto as Exhibit 2.

7. Plaintiffs are in a “Bargaining Unit” as defined as “all officers in positions of the

classified service of the Police Department of the City, except the Chief of Police, Deputy

Chiefs, Division Chiefs, and Commanders”. CBA at pg. 3.

8. Plaintiffs are not, or were not at the relevant material time, members of the

Denver Police Protective Association (hereinafter “DPPA”).

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For purpose of this lawsuit, the relevant provisions of the respective CBA’s (i.e. 2013-2014 and 2015-2017) are
virtually identical.

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9. Defendant City & County of Denver (hereinafter the “City”) is a municipality and

an instrumentality of the State of Colorado. As such, the City has enacted a City Charter, a

portion of which authorizes it to enter into agreements governing the terms and conditions of

Plaintiffs’ (and others’) employment, including a “fair share” or “Check Off and Fair Share”

article, with the DPPA, which it has recognized and certified as the employees’ exclusive

representative for purposes of collective bargaining. CBA. at pg. 2.

10. Defendant, DPPA is a labor union and has been recognized by the City as the

“sole and exclusive bargaining agent” of all employees in the relevant bargaining unit for

purposes of negotiating subjects specified in §9.8.3(B) and (D) of the Denver City Charter.

11. Pursuant to the Colorado Secretary of State Summary, the DPPA is a non-profit

corporation formed and in good standing under the laws of the State of Colorado. Upon

information and belief, the DPPA conducts its business and operations within the State of

Colorado and within the District of Colorado.

CAUSE OF ACTION

12. Acting in concert under color of state law — to-wit, the Denver City Charter,

Defendant DPPA and the City have entered into a CBA, effective by its terms for 2013-2017,

controlling the terms and conditions of Plaintiffs’ (and others) employment. The relevant

provisions of the 2013-2014 and 2015-2017 CBA’s are incorporated by reference and attached

hereto as Exhibit 1 & Exhibit 2.

13. Pursuant to Article 5, the CBA contains a “fair share” or “Check off and Fair

Share” article, which provides in pertinent part that:

5.1 …any officer who is not an active member of the Association (i.e.

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defined at the DPPA) shall tender to the Association the officer’s fair share

of the cost of negotiating and administering this Agreement, including all

costs germane to collective bargaining and/or to the collective bargaining

process.

5.3 The City agrees to deduct the Association membership dues,

assessments and fair share payments from the pay of such officers who

individually request in writing that such deductions shall be made on a

form agreeable to the City. The Association shall certify to the City the

amount to be deducted.

5.4 The Association agrees that it will indemnify and save the City harmless

from all suits, actions, and claims against the City or persons acting on behalf of

the City whether for damages, compensation, or any combination thereof, arising

out of the City’s compliance with the terms of this Article. The Association shall

reimburse the City for any and all reasonable costs and reasonable attorney’s fees

arising out of the defense of any such action against the City. The City agrees to

cooperate with the Association and its counsel concerning any such litigation.

See Exhibit 1 & Exhibit 2 at Article 5 for the complete CBA language.

14. As non-members subject to a “fair share” provision, Plaintiffs are entitled to

receive appropriate procedural safeguards to protect their constitutional rights prior to the

demand for or collection of any fees.

15. To be clear, Plaintiffs do not challenge the constitutionally or object to the

concept of “fair share” assessments being tendered to the Association.

16. Plaintiffs’ lodge objection on four (4) grounds: 1. DPPA’s failure to provide

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advanced notice prior to the demand and collection of fees; 2. DPPA’s failure to advance the

constitutional procedures required in Hudson; 3. DPPA’s failure to provide an adequate

explanation of the basis for the fee; and, 4. DPPA’s assessment and collection of fair share dues

that are not germane to collective bargaining and/or to the collective bargaining process.

17. Prior to the demand for and collection of fair share fees for the years 2014,

2015, or 2016 Plaintiffs did not receive, the constitutional procedures required in Hudson, or an

adequate basis for the fee.

18. On or about February 17, 2017, undersigned counsel on behalf of certain Plaintiffs

sent a letter to the DPPA requesting, in relevant part: 1. That the DPPA provide a Fair Share

accounting to each of the Fair Share bargaining unit members; 2. An adequate explanation of the

basis for the fee that was charged; 3. The DPPA’s procedures to challenge the Fair Share fee; 4. That

the DPPA escrow the amounts reasonably in dispute while the challenges are pending; and 5. Copies

of the DPPA’s notice of the fair share fee to the City for the years 2014, 2015, and 2016. See Letter

dated February 17, 2017 attached hereto as Exhibit 3.

19. On or about March 3, 2017, the DPPA responded, in relevant part, that “it has come

to my attention that formal notice of fair share amount was not sent out for the years 2015 and 2016.”

See DPPA’s Letter dated March 3, 2017 attached hereto as Exhibit 4. The DPPA’s letter is

tantamount to an admission that it failed to send out timely and adequate fair share notice as required

by Hudson.

20. To date, the DPPA has failed and continues to fail to provide the non-members

with formal notice of fair share amount for 2014, an adequate explanation of the basis for the fee

that was charged for 2014, or notice of the procedures or an opportunity to challenge the fair share

amount for 2014.

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21. On or about May 5, 2017, undersigned counsel on behalf of certain Plaintiffs sent

another letter to the DPPA stating in relevant part, “we have no evidence that the DPPA ever provided

Notice to the non-members for 2014.” See Letter dated May 5, 2017 attached hereto as Exhibit 5.

22. Since that time, undersigned counsel has sent multiple emails requests for a copy of

the notice of fair share amount for 2014 purportedly sent to the non-members and the DPPA has failed

to provide a copy of the Notice or any evidence that such Notice was ever sent to the non-members

for 2014.

23. To date, the DPPA has failed and continues to fail to provide the non-members

with formal notice of fair share amount for 2014, an adequate explanation of the basis for the fee

that was charged for 2014, or notice of the procedures or an opportunity to challenge the fair share

amount for 2014.

24. On or about March 3, 2017, the DPPA, by and through its counsel, sent the Statement

of Allocable Expenditures and Allocation of Expenditures Between Chargeable and Non-Chargeable

Expenditures dated December 31, 2014 (hereinafter “2014 Fair Share Statement”). See Statement of

Allocable Expenditures and Allocation of Expenditures Between Chargeable and Non-Chargeable

Expenditures attached hereto as Exhibit 6.

25. To date, the 2014 Fair Share Statement has never been sent to the non-members.

26. Moreover, the 2014 Fair Share Statement does not include any procedure or

opportunity to challenge the fair share amount for 2014. The DPPA has expressly refused to provide

the Plaintiffs with an opportunity to challenge the 2014 Fair Share fees through arbitration.

27. As such, Plaintiffs did not receive, prior to the demand for and collection of fees in

2014, full and complete procedural safeguards which are required by the United States Supreme

Court’s decision in Hudson, supra.

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28. Moreover, the 2014 Fair Share Statement fails to provide an adequate explanation of the

basis of the fee charged for 2014. Plaintiffs did not receive information including, but not limited to,

the following:

a. Adequate notice and explanation of the amount of the agency fee, or total

union expenditures allocated into understandable, useful chargeable, and non-

chargeable categories, verified by an independent auditor;

b. Complete financial information about the chargeable and non-chargeable

expenses of its affiliates; and

c. An opportunity to object and to challenge the amount of its fee before an

impartial decision-maker without unnecessary and needlessly complex

procedural requirements; and

d. Adequate advance reduction of the fee, or any advance reduction

whatsoever.

29. The City collected “fair share” fees from Plaintiffs for 2014, 2015, and 2016

based, in part, on representations made by the DPPA to the City.

30. Accordingly, the DPPA has improperly and illegally assessed fair share amounts

for the years 2014, 2015, and 2016.

31. The demands for and collection of fees by the City and the DPPA from

Plaintiffs, acting under color of state law, without providing all of the procedural protections

required under the United States Constitution, violates their privileges, and immunities granted

by the First, Fifth, and Fourteenth Amendments to the United States Constitution, and in

violation of 42 U.S.C. § 1983.

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CLAIM FOR RELIEF

(Violation of 42 U.S.C. § 1983 and the Constitution of the United States)

32. Plaintiffs’ constitutional rights have been violated in that they were not

provided with the constitutional protections, as enunciated by the Supreme Court in

Hudson in the DPPA’s 2014, 2015, and 2016 fair share assessments, specifically:

a. to be provided with all of the pre-demand and pre-collection safeguards

and procedures that will ensure that none of their wages are either collected or

spent for improper purposes; and

b. to pay only their pro rata share of the DPPA and/or its affiliates’ costs

of dues germane to collective bargaining, contract administration, and

grievance adjustment.

33. Plaintiffs’ decisions to remain nonmembers of the union and object to the

collection of dues not germane to bargaining from the DPPA and its affiliates is an exercise of

their rights to freedom of speech, association, petition, belief, and thought guaranteed against

state action by the First, Fifth, and Fourteenth Amendments to the United States Constitution.

34. Defendants’ failure to provide for adequate notice and objection procedures

prior to demanding and/or collecting agency fees from Plaintiffs violates their First, Fifth, and

Fourteenth Amendment rights under the United States Constitution and the Hudson decision,

in that Defendants have demanded fees even though:

a. the DPPA failed to provide adequate notice and explanation of the

amount of the agency fee, or total union expenditures allocated into

understandable, useful chargeable, and non-chargeable

categories, verified by an independent auditor;

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b. the DPPA failed to provide complete financial information about the

chargeable and non-chargeable expenses of its affiliates; and

c. the DPPA failed to provide non-members with an opportunity to object

and to challenge the amount of its fee before an impartial decision-

maker without unnecessary and needlessly complex procedural

requirements; and

d. the DPPA failed to provide nonmembers with an adequate advance

reduction of the fee, or any advance reduction whatsoever.

35. Defendants have not provided Plaintiffs with constitutionally sufficient

information to allow them to gauge the propriety of the DPPA’s fee.

36. Defendants have deprived, and threaten to continue to deprive, Plaintiffs of

their First, Fifth, and Fourteenth Amendment rights, as enunciated and specified in Hudson,

to be provided the appropriate safeguards and procedural protections prior to the demand for

and collection of any agency fees.

37. Specifically, by demanding and/or collecting agency or “fair share” fees from

Plaintiffs notwithstanding its failure to comply with “the constitutional requirements for the ...

collection of agency fees,” Hudson, 475 U.S. at 310.

38. Defendants have deprived, and threaten to continue to deprive, Plaintiffs of their

First, Fifth, and Fourteenth Amendment rights, as enunciated and specified in Hudson, by

collecting dues that are not germane to collective bargaining, contract administration, and/or

grievance adjustment. Defendants have violated the aforementioned civil rights law and

Plaintiffs’ fundamental constitutional freedoms.

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WHEREFORE, Plaintiffs pray judgment as follows:

A. For actual damages in the full amount of monies collected in the DPPA’s 2014,

2015 and 2016 –fair share assessments, and prior to providing all of the protections required

by the Supreme Court in Hudson, plus interest, and nominal exemplary damages under 42

U.S.C. § 1983, for depriving Plaintiffs of their rights, privileges, and immunities secured by

the Constitution of the United States;

B. For equitable relief, restitution of all fair share fees taken or collected, plus

interest;

C. For issuance of a declaratory judgment, pursuant to 28 U.S.C. § 2201,

declaring:

1. that Defendants have failed to comply with Hudson, supra, and thus, the

2014 fair share collection of and demand for payment of 2014, 2015 and 2016

fair share fees therefore violates the First, Fifth, and Fourteenth Amendment to

the Constitution of the United States and 42 U.S.C. § 1983; and

2. that any money actually collected from Plaintiffs by Defendants and

those working in concert with them, under color of the CBA, has been illegally

collected in violation of the First, Fifth, and Fourteenth Amendments to the

Constitution of the United States and 42 U.S.C. § 1983;

D. For costs, including reasonable attorneys’ fees under 42 U.S.C § 1988; and

E. Such other and further relief as the Court may deem just and proper.

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DATED: January 17, 2018.

ELKUS & SISSON, P.C.

/s/Donald C. Sisson
Donald C. Sisson
Reid J. Elkus
Lucas Lorenz
501 S. Cherry Street, Suite #920
Denver, Colorado 80246
(303) 567-7981
dsisson@elkusandsisson.com
relkus@elkusandsisson.com
llorenz@elkusandsisson.com
Attorneys for Plaintiffs

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