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City of Lakewood v. Brace6/24/1996
EN BANC
We granted certiorari in The City of Lakewood, et al. v. Brace, 899 P.2d 301 (Colo. App. 1995), in which the court of appeals dismissed the petitioners' appeal of a partial summary judgment order because that order was not a final, appealable judgment. The petitioners before the court are: the City of Lakewood (Lakewood); Walter C. Kane and James M. Zelenski (individual defendants); and Linda Shaw, Gordon Garrett, Norma Beard, David Larkin, Linda Morton, Tom Leadabrand, Harold Scatterday, Dennis Mateski, and Kathy Stapleton, members of the City Council of Lakewood. The respondent is Richard W. Brace (Brace), a former employee of Lakewood. In brief, Brace instituted this action against the petitioners for his suspension and ultimate termination from Lakewood employment. Brace's complaint raised both state law claims (tort and contract) and federal claims under 42 U.S.C. section 1983 (1994) (1983 or federal claims). The petitioners answered, asserting immunity under the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to -120, 10A C.R.S. (1988 & 1995 Supp.).
The petitioners moved for summary judgment. The motion was denied in part and granted in part by the trial court. Subsequently, the petitioners sought our review of the court of appeals' decision dismissing their appeal of the trial court's order. Four grounds are before us on certiorari review: (1) whether the court of appeals erred in dismissing their appeal of the order denying summary judgment on the qualified immunity defense to Brace's federal claims; (2) if so, whether they are entitled to judgment as a matter of law on that defense; (3) whether the court of appeals erred in dismissing their appeal from the order denying summary judgment on the sovereign immunity defense to Brace's state law claims; and (4) if so, whether the trial court erred in denying summary judgment on the sovereign immunity defense based on the existence of material issues of fact. We reverse the judgment of the court of appeals and return the case to that court with instructions to remand to the trial court for reconsideration of the summary judgment motion in light of our decision.
I.
Brace was employed by Lakewood in various capacities from August 1983 until he was suspended and ultimately terminated in November 1991. Sometime in April or May 1984, Brace was promoted to the position of Acting Housing Manager of Lakewood. Commencing September 1, 1984, Brace was appointed Executive Director and Secretary to the Board of Commissioners of the Lakewood Housing Authority (LHA). During the relevant time period, Walter C. Kane (Kane) held the position of City Manager of Lakewood and James S. Zelenski (Zelenski) held the position of Assistant City Manager of Lakewood. Both Kane and Zelenski are individual defendants. On April 21, 1991, Kane directed Brace to transfer $3,011,300 from the City of Lakewood's Private Activity Bond Allocation to the Arapahoe County Single Family Mortgage Revenue bond issue for 1991. At the time, Kane was also serving as the Senior Vice President of Hanifen, Imhoff, Inc., which had been designated as the investment bank for the Arapahoe County Single Family Mortgage Revenue bond issuance. Kane was also the Account Executive in charge of that issuance. Brace perceived Kane's position with Hanifen, Imhoff, Inc. and his affiliation with the bond issuance on behalf of Lakewood to be a conflict of interest. Thus, along with his direct supervisor, David Clark, Brace raised this as a concern to the Lakewood City Attorney's office.
On October 14, 1991, Zelenski suspended Brace from his position as Housing Manager of Lakewood for two days for
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