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Butler v. Board of County Commissioners for San Miguel County.

2021 COA 32. No. 19CA1913. Lawful Activities Statute—Freedom of Legislative and Judicial Access Act.

March 11, 2021


Butler and his former brother-in-law, Spor, worked in different districts within the San Miguel County’s Road and Bridge Department (County). Spor and his wife became involved in a contested divorce, and Spor and Butler began having issues at work. Butler was promoted to district supervisor, conditioned on his successful completion of a one-year probationary period and not having any negative interactions with Spor at work.

Shortly after his promotion, Butler took approved time off from work to testify at a parenting time hearing between Spor and his wife. Butler was not subpoenaed but went voluntarily at the request of his sister-in-law and her attorney. Butler testified about the unpredictable nature of the County’s on-call work. Spor was awarded significantly less parenting time than he had sought.

Spor filed a complaint at work. The County investigated and demoted Butler to his prior position at a lower rate of pay as a result of his decision to testify. Butler sued under the Lawful Activities Statute and the Freedom of Legislative and Judicial Access Act (Access Act). The trial court found that the Lawful Activities Statute does not apply to demotions and granted the County’s motion to dismiss on that claim. The court also concluded that the hearing testimony was not protected because it wasn’t provided at the request of a court and granted the County’s motion for summary judgment on the Access Act claim.

On appeal, the parties disputed whether the Lawful Activities Statute’s prohibition on termination of employment due to an employee’s lawful off-duty conduct extends to an employee’s demotion. The Court of Appeals determined that this statute does not apply to an employee’s demotion to another position for the same employer. Accordingly, because Butler alleged that he was demoted, the trial court did not err in dismissing this claim.

The parties also disputed whether the Access Act protects an employee who testifies as a witness in a court proceeding when called by a party or counsel to the proceeding but without an order, subpoena, or other formal court-issued request. Under the Access Act, an employer is prohibited from penalizing an employee for testifying before a court, and it is not necessary that such testimony be under subpoena or other formal court-issued request. Therefore, the trial court erred in granting summary judgment because Butler created a triable issue of fact by presenting evidence that he was called by a party or a party’s attorney and was permitted by a judicial officer to testify as a witness in a court proceeding.

The entry of summary judgment on the Access Act claim was reversed and the case was remanded for further proceedings on that claim. The judgment was affirmed in all other respects.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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