Denver’s sheriff does not have the final say over payroll, meaning the union representing sheriff’s deputies could not hold the city liable for his refusal to deduct campaign-related dues from members’ paychecks, the federal appeals court based in Colorado ruled on Thursday.

The Fraternal Order of Police Lodge 27 decided to impose a $50 assessment on sheriff’s deputies for three months in 2018 to fund an initiative for an elected sheriff in Denver. The change would have come about through an amendment to the city charter, given that the mayor has the authority to appoint the sheriff. Ultimately, voters never saw a ballot measure to amend the charter.

When the city declined to process the additional charge to deputies and then-Sheriff Patrick Firman agreed with that decision, the FOP filed a federal lawsuit, alleging Denver violated their free speech rights by limiting their ability to fund a political cause.

But the U.S. Court of Appeals for the 10th Circuit found that Firman was not the ultimate policymaker on payroll issues, so the union could not hold the city liable based on the sheriff’s response.

“Simply put, the Denver City Charter thoroughly constrains the sheriff from wielding authority – much less final policymaking authority – over payroll-deduction-related decisions,” wrote Judge Jerome A. Holmes for a three-member panel of the 10th Circuit.

The FOP had attempted to implement the $50 assessment by notifying the payroll division. The city already deducted FOP dues from employees, and the payroll division initially proceeded with the request. However, Jennifer Cockrum, human resources director for the Department of Public Safety, then informed the FOP that the assessment was not a regular dues payment and the city had no obligation to collect it on behalf of the union without an employee’s consent.

The city reportedly received about 60 objections from sheriff’s employees after the first month’s charge, after which it halted the deduction.

Under the collective bargaining agreement with the union, the FOP president filed a grievance, which made its way to Firman. The sheriff agreed the $50 payment was not part of the union dues and rather “a matter between the FOP and its members.” He denied the grievance.

The union and its board members responded by filing a federal lawsuit claiming a violation of their First Amendment rights.

“By cutting off the funding at the initial stage, defendant was able to stifle the entire campaign,” the union leaders wrote in court filings. “The evidence shows that the decision to cancel the dues deduction was ratified by an employee with final policymaking authority.”

In January 2020, U.S. District Court Judge Christine M. Arguello tossed the lawsuit. She found that Firman was not Cockrum’s supervisor. Instead, the executive director for the Denver Department of Public Safety would have had final policymaking authority over payroll. Liability for Denver, therefore, could not result from how Firman handled the union’s grievance.

On appeal to the 10th Circuit, the attorney for the plaintiffs argued that Arguello’s ruling had provided a “roadmap” for governments to avoid liability for First Amendment lawsuits.

“All they’ll have to do is let a lower-level employee who’s not a final policymaker make a decision, and let a review of that decision be conducted outside of that employee’s supervisory chain of command,” said Lucas Lorenz at oral arguments.

Holmes responded in the opinion that the sheriff may well have been able to weigh in on grievances related to payroll disputes, but that did not mean he had the ultimate say about the policy.

“Notably, the deputies could have pursued their grievance to … an arbitration board. But they elected not to do so,” Holmes wrote in the court’s order. “And their inaction in not pursuing the third and final step could not – through some process of alchemy – transform the sheriff’s step two decision into a ‘final’ one.”

The city maintained it had not discriminated on the basis of the union’s view on the elected sheriff proposal, and instead was concerned about potential liability for withholding employees’ money for the assessment.

The case is Jackson et al. v. City and County of Denver.