Colorado’s second-highest court concluded last month that a former law enforcement officer cannot sue his employer under one police accountability law for reporting its misconduct finding to another agency, as required under a different police accountability law.

Officer Michael Oliveira sued leaders of the Lochbuie Police Department under Senate Bill 217, also known as the Enhance Law Enforcement Integrity Act (ELEIA). Enacted in 2020, the law permits lawsuits against police officers for violations of rights under the state constitution. Oliveira alleged Lochbuie police leadership reported a faulty finding of misconduct to the Peace Officer Standards and Training (POST) Board, violating his right to due process.

But a three-judge Court of Appeals panel declined to recognize Oliveira’s claim that one government agency transmitting false statements to another agency and affecting a person’s reputation amounts to a constitutional violation. In a May 15 opinion, Judge Timothy J. Schutz noted Colorado mandates that law enforcement agencies report an officer’s dishonesty to POST.

“POST and ELEIA serve a common purpose: to facilitate the employment of quality law enforcement officers across Colorado who are truthful and respect the constitutional rights of the public,” he wrote. Allowing legal claims under one law for the reports made mandatory by another law “would incentivize law enforcement agencies and their employees not to robustly comply with POST reporting requirements. This was not the General Assembly’s intent when enacting ELEIA.”

Following an investigation by multiple Lochbuie police employees, the town’s chief terminated Oliveira. He had misused his work phone for personal communications with a woman, and the investigation found he dishonestly portrayed the nature and extent of the interaction. The police department also reported the details to POST, whose database lists Oliveira as “terminated for cause” and as having a policy violation involving dishonesty.

Oliveira sued, alleging the department’s finding was incorrect and based on faulty information. If he had received a hearing, Oliveira contended, he never would have been terminated.

Pursuant to the 2020 ELEIA law, he claimed the defendants violated his right to due process by reporting the misconduct to POST, causing “embarrassment.” He also alleged the report amounted to defamation.

In May 2024, Weld County District Court Judge Todd Taylor dismissed the lawsuit. Taylor determined the lack of a hearing did not violate Oliveira’s rights, and the report to POST did not amount to a violation because “intra-governmental dissemination of information related to a public employee’s discharge” cannot sustain a claim of reputational damage.

Taylor added that because Oliveira failed to allege Lochbuie acted “willfully and wantonly,” the defendants were entitled to immunity on his defamation claim.

Oliveira then turned to the Court of Appeals.

“Plaintiff has a liberty interest in protecting his reputation for purposes of obtaining employment,” wrote attorney Robert M. Liechty about Oliveira’s due process claim. “Defendants should not be able to avoid liability from this claim simply because their defamatory statement was made to a governmental agency.”

In the appellate panel’s opinion, Schutz noted no court has found Colorado’s constitution recognizes a due process claim where government employers spread false information about an employee’s termination and negatively affect their reputation. However, federal courts have permitted such claims, so long as the communication is not “intra-governmental” from one agency to another.

Schutz wrote that even if the Colorado Constitution recognized a parallel circumstance, the misconduct report from a local police department to POST fell within the intra-governmental exception.

Public employers “are often tasked with making reports for the public’s benefit that may impact a former employee’s future employability. The recognition and importance of these reporting obligations provides the foundation of the intra-governmental exception,” he elaborated.

As for whether the Lochbuie defendants acted in a “willful and wanton” manner by reporting Oliveira to POST and defaming him, Schutz concluded the evidence of Oliveira’s actions supported the department’s response to the cell phone investigation.

The case is Oliveira v. Ohlinger et al.