George Goodwin, Plaintiff-appellee, v. Charles Crockett, Individually and As Undersheriff Offremont County, Colorado, Defendant-appellant, 959 F.2d 245 (10th Cir. 1992)

Defendant-Appellant Charles Crockett appeals after a jury found that he and his co-defendant, William A. DeBekker, deprived plaintiff George Goodwin of his first amendment rights when they terminated him from his employment as a deputy sheriff of Fremont County, Colorado. The jury awarded both compensatory and punitive damages pursuant to 42 U.S.C. § 1983. The issue presented to us is whether defendant Crockett, the undersheriff, possessed the statutory authority under Colorado law to terminate a deputy sheriff. We hold he did not possess that authority, and he therefore cannot be liable for depriving plaintiff of his federally protected rights.¹ 

In this appeal, we do not attempt to resolve any disputed questions of fact. The appellant has not provided us with a record of the trial, and thus we accept the jury verdict that plaintiff was discharged for exercising his first amendment rights.²  We resolve only the legal issue of whether the undersheriff can be held liable under the undisputed facts.³  This issue was presented to the district court in defendants' motion for directed verdict and motion for judgment notwithstanding the verdict. The court summarily denied both motions.

The facts surrounding plaintiff's discharge are as follows: Plaintiff was discharged on November 5, 1986. At the time, Sheriff DeBekker was on vacation. Before he left town, the sheriff instructed Undersheriff Crockett to draft a termination letter discharging plaintiff because he called the sheriff an expletive. The undersheriff drafted the letter listing completely different reasons for the termination and gave this letter to the plaintiff during the sheriff's absence.

Plaintiff concedes that Sheriff DeBekker "ordered" his termination and that it was the sheriff's statutory duty to appoint deputies and revoke those appointments. However, he argues that the undersheriff is liable because he drafted the letter of termination, providing his own reasons for the discharge, and because he was empowered by statute to assume the sheriff's duties when the sheriff was out of the county.

Our review of the relevant Colorado statutes, case law, and the Colorado Constitution, convinces us that only Sheriff DeBekker had the power to terminate a deputy sheriff. Colorado law states clearly it is the sheriff's duty to appoint his deputies and that he may revoke those appointments. Colo.Rev.Stat. § 30-2-106 (1986) (" [u]ndersheriffs and deputy sheriffs shall be appointed by the sheriffs of their respective counties"); Colo.Rev.Stat. § 30-10-506 (1986) (" [e]ach sheriff may appoint as many deputies as he may think proper ... and may revoke such appointments at his pleasure"); Colo.Rev.Stat. § 30-10-510 (1986) (" [e]very appointment of an undersheriff or of a deputy sheriff, and every revocation of such appointment, shall be in writing, under the hand of the sheriff").

The Colorado Supreme Court has stated that sections 30-2-106 and 30-10-506 "indicate that the General Assembly intended to grant the sheriff exclusive power to appoint deputies." Tihonovich v. Williams, 582 P.2d 1051, 1055 (Colo.1978). That court has also adopted the rule that "powers and duties of officers are prescribed by the Constitution or by statute ... and must be executed in the manner directed and by the officer specified," and that those duties cannot be assumed by other officers. Skidmore v. O'Rourke, 383 P.2d 470, 474 (Colo.1963).

Thus, since the Colorado legislature has specified that the sheriff may revoke his appointments of deputies and has not conferred such authority on the undersheriff or any other officer, that power is exclusive and may not be assumed by the undersheriff.

Plaintiff has directed our attention to two statutes he claims gave the undersheriff the power to effect plaintiff's termination. Section 30-10-505 provides that " [w]hen a vacancy occurs in the office of sheriff of any county, the undersheriff of such county shall in all things execute the office of sheriff until a sheriff is appointed or elected and qualified." Colo.Rev.Stat. § 30-10-505 (1986). Section 30-10-106 provides that

[w]hen any coroner is required to act as sheriff, or any other officer in this state is required to perform any duties belonging to any other office, for the time being, he shall have the same powers in respect to that duty as are given by law to the officer whose duties he performs, and shall be entitled to receive the same compensation for his services.

Colo.Rev.Stat. § 30-10-106 (1986).

Section 30-10-505 does not apply to the situation before us. Section 30-10-105 lists eight events which cause a county office to become vacant. Colo.Rev.Stat. § 30-10-105 (1986). A vacation out of the county is not one of those reasons. Id. Accordingly, Undersheriff Crockett was not executing the office of sheriff when plaintiff was terminated.

Section 30-10-106 does not apply because the undersheriff is not an "officer." Article XIV, Section 8, of the Colorado Constitution lists eight county officers, including the sheriff and the coroner; the undersheriff is not included. Furthermore, the statute provides for the officer performing the duties to receive the same compensation as the sheriff. Undersheriff Crockett could not have been paid the sheriff's salary simply because the sheriff was on vacation in another county.⁴ 

In sum, on November 5, 1986, there was no vacancy in the office of the sheriff of Fremont County. Only Sheriff DeBekker had the authority to discharge, terminate, or revoke the appointment of his deputy sheriff, George Goodwin. As a matter of law, Charles Crockett, the undersheriff, is not liable for depriving plaintiff of his first amendment rights. The judgment of the United States District Court for the District of Colorado entered against defendant Crockett is REVERSED and the case is REMANDED for proceedings consistent with this order and judgment.