22-63-202. Employment contracts - contracts to be in writing - duration - damage provision - repeal.
(1) Except for a part-time or substitute teacher, every employment contract entered into by any teacher or chief administrative officer for the performance of services for a school district shall be in writing.
(2) (a) A teacher or chief administrative officer and the board may mutually agree to terminate the teacher's or chief administrative officer's employment contract at any time.
(b) Each employment contract executed pursuant to this section shall contain a provision stating that a teacher or chief administrative officer shall not terminate his or her employment contract with the board without the agreement of the board unless:
(I) If the teacher or chief administrative officer intends to terminate his or her employment contract for the succeeding academic year, the teacher or chief administrative officer gives written notice to the board of his or her intent no later than thirty days prior to the commencement of the succeeding academic year or, if a school district operates an alternative year program, not less than thirty days before the commencement of services under the employment contract; or
(II) If the teacher or chief administrative officer intends to terminate his or her employment contract for the current academic year after the beginning of the academic year, the teacher or chief administrative officer shall give written notice to the board of his or her intent at least thirty days prior to the date that the teacher or chief administrative officer intends to stop performing the services required by the employment contract.
(b.5) Each employment contract executed pursuant to this section shall contain a provision stating that a teacher or chief administrative officer shall accept the terms of the employment contract for the succeeding academic year within thirty days of receipt of the contract, unless the teacher or chief administrative officer and the district have reached an alternative agreement. If a teacher or chief administrative officer does not accept the terms of the employment contract within thirty days of receipt, the district shall be authorized to open the position to additional candidates.
(c) Each employment contract executed pursuant to this section shall contain a damages provision whereby a teacher or chief administrative officer who violates the provision required by paragraph (b) of this subsection (2) without good cause shall agree to pay damages to the school district, and the board thereof shall be authorized to collect or withhold damages from compensation due or payable to the teacher or chief administrative officer, in an amount equal to the lessor of:
(I) The ordinary and necessary expenses of a board to secure the services of a suitable replacement teacher or chief administrative officer; or
(II) One-twelfth of the annual salary specified in the employment contract.
(c.5) (I) The general assembly finds that, for the fair evaluation of a principal based on the demonstrated effectiveness of his or her teachers, the principal needs the ability to select teachers who have demonstrated effectiveness and have demonstrated qualifications and teaching experience that support the instructional practices of his or her school. Therefore, each employment contract executed pursuant to this section shall contain a provision stating that a teacher may be assigned to a particular school only with the consent of the hiring principal and with input from at least two teachers employed at the school and chosen by the faculty of teachers at the school to represent them in the hiring process, and after a review of the teacher's demonstrated effectiveness and qualifications, which review demonstrates that the teacher's qualifications and teaching experience support the instructional practices of his or her school.
(III) (A) Any active nonprobationary teacher who was deemed effective during the prior school year and has not secured a mutual consent placement shall be a member of a priority hiring pool, which priority hiring pool shall ensure the nonprobationary teacher a first opportunity to interview for a reasonable number of available positions for which he or she is qualified in the school district.
(B) When a determination is made that a nonprobationary teacher's services are no longer required for the reasons set forth in subparagraph (VII) of this paragraph (c.5), the nonprobationary teacher shall be notified of his or her removal from the school. In making decisions pursuant to this paragraph (c.5), a school district shall work with its local teachers association to develop policies for the local school board to adopt. If no teacher association exists in the school district, the school district shall create an eight-person committee consisting of four school district members and four teachers, which committee shall develop such policies. Upon notice to the nonprobationary teacher, the school district shall immediately provide the nonprobationary teacher with a list of all vacant positions for which he or she is qualified, as well as a list of vacancies in any area identified by the school district to be an area of critical need. An application for a vacancy shall be made to the principal of a listed school, with a copy of the application provided by the nonprobationary teacher to the school district. When a principal recommends appointment of a nonprobationary teacher applicant to a vacant position, the nonprobationary teacher shall be transferred to that position.
(C) This subparagraph (III) shall take effect at such time as the performance evaluation system based on quality standards established pursuant to this section and the rules promulgated by the state board pursuant to section 22-9-105.5 has completed the initial phase of implementation and has been implemented statewide. The commissioner shall provide notice of such implementation to the revisor of statutes on or before July 1, 2014, and each July 1 thereafter until statewide implementation occurs.
(IV) If a nonprobationary teacher is unable to secure a mutual consent assignment at a school of the school district after twelve months or two hiring cycles, whichever period is longer, the school district shall place the teacher on unpaid leave until such time as the teacher is able to secure an assignment. If the teacher secures an assignment at a school of the school district while placed on unpaid leave, the school district shall reinstate the teacher's salary and benefits at the level they would have been if the teacher had not been placed on unpaid leave.
(V) Nothing in this section shall limit the ability of a school district to place a teacher in a twelve-month assignment or other limited-term assignments, including, but not limited to, a teaching assignment, substitute assignment, or instructional support role during the period in which the teacher is attempting to secure an assignment through school-based hiring. Such an assignment shall not constitute an assignment through school-based hiring and shall not be deemed to interrupt the period in which the teacher is required to secure an assignment through school-based hiring before the district shall place the teacher on unpaid leave.
(VI) The provisions of this paragraph (c.5) may be waived in whole or in part for a renewable four-year period by the state board of education pursuant to section 22-2-117, provided that the local school board applying for the waiver, in conjunction with the superintendent and teachers association in a district that has an operating master employment contract, if applicable, demonstrates that the waiver is in the best interest of students enrolled in the school district, supports the equitable distribution of effective teachers, and will not result in placement other than by mutual consent of the teacher in a school district or public school that is required to implement a priority improvement plan or turnaround plan pursuant to article 11 of this title. Notwithstanding the provisions of this paragraph (c.5), a waiver shall not be granted for a request that extends the time for securing an assignment through school-based hiring for more than two years.
(VII) This paragraph (c.5) shall apply to any teacher who is displaced as a result of drop in enrollment; turnaround; phase-out; reduction in program; or reduction in building, including closure, consolidation, or reconstitution.
(d) The department of education may suspend the license, endorsement, or authorization of a teacher or chief administrative officer who fails to provide the notice required by paragraph (b) of this subsection (2) and who abandons, fails, or refuses to perform required services pursuant to an employment contract, without good cause.
(3) A teacher may be suspended temporarily during the contractual period until the date of dismissal as ordered by the board pursuant to section 22-63-302 or may have his or her employment contract cancelled during the contractual period when there is a justifiable decrease in the number of teaching positions. The manner in which employment contracts will be cancelled when there is a justifiable decrease in the number of teaching positions shall be included in any contract between the board of education of the school district and school district employees or in an established policy of the board, which contract or policy shall include the criteria described in section 22-9-106 as significant factors in determining which employment contracts to cancel as a result of the decrease in teaching positions. Effective February 15, 2012, the contract or policy shall include consideration of probationary and nonprobationary status and the number of years a teacher has been teaching in the school district; except that these criteria may be considered only after the consideration of the criteria described in section 22-9-106 and only if the contract or policy is in the best interest of the students enrolled in the school district.
(4) (a) Notwithstanding the provisions of section 24-72-204 (3)(a), C.R.S., upon a request from a school district or a school concerning a person applying for a position as a teacher, a school district may disclose to the requesting school district or school the reason or reasons why a teacher left employment with the original school district. Upon the specific request of a school district at which a teacher has applied for employment, a school district may disclose any pertinent performance record or disciplinary record of a teacher that specifically relates to any negligent action of the teacher that was found to have endangered the safety and security of a student or any disciplinary record that relates to behavior by the teacher that was found to have contributed to a student's violation of the school district's conduct and discipline code. The information disclosed pursuant to this paragraph (a) shall only be disclosed to personnel authorized to review the personnel file in the school district or school and to the person applying for a position as a teacher.
(b) No employment contract executed pursuant to this section shall contain a provision that restricts or prohibits a school district from disclosing to another school district or school the reason or reasons why a teacher left employment with the original school district or from disclosing to another school district any of the teacher's disciplinary or performance records pursuant to paragraph (a) of this subsection (4).
Source: L. 90: Entire article R&RE, p. 1120, 1, effective July 1. L. 93: (3) amended, p. 894, 25, effective May 6; (2)(a) amended, p. 900, 1, effective July 2. L. 97: (2)(a) amended, p. 398, 1, effective August 15. L. 99: (4) added, p. 1104, 8, effective July 1. L. 2000: (4) amended, p. 1965, 10, effective June 2; (2)(b) amended, p. 1860, 68, effective August 2. L. 2006: (2) R&RE, p. 924, 4, effective July 1. L. 2009: (2)(b.5) added, (SB 09-256), ch. 294, p. 1553, 7, effective May 21. L. 2010: (2)(c.5) added and (3) amended, (SB 10-191), ch. 241, pp. 1070, 1073, 11, 12, effective May 20.
Editor's note: (1) This section is similar to former 22-63-107 as it existed prior to 1990.
(2) (a) The revisor of statutes received the notice referred to in former subsection (2)(c.5)(II) that caused the repeal of that provision, effective June 27, 2013.
(b) The revisor of statutes received the notice referred to in subsection (2)(c.5)(III) that allowed that provision to become effective June 27, 2013.
Subsection (2)(c.5) applies to all displaced nonprobationary teachers, not just nonprobationary teachers who are displaced for enrollment- or program-based reasons listed in subsection (2)(c.5)(VII). This includes any teacher unable to secure a mutual consent assignment. Johnson v. Sch. Dist. No. 1, 2018 CO 17, 413 P.3d 711.
Nonprobationary teachers who are placed on unpaid leave pursuant to subsection (2)(c.5)(IV) have no vested property interest in salary and benefits and are therefore not being deprived of a state property interest. General assembly removed references to "tenure" and other entitlement and durational language in 1990 and 2010 amendments to act. Johnson v. Sch. Dist. No. 1, 2018 CO 17, 413 P.3d 711.
District did not violate teachers' right to due process by placing nonprobationary teachers on unpaid leave. Teachers placed on unpaid leave do not have a property interest in salary and benefits. Sch. Dist. No. 1 v. Masters, 2018 CO 18, 413 P.3d 723.
The general assembly is not bound to maintain "forced placement" system under 1990 act. The language of the act is not sufficient to overcome the presumption that the general assembly did not intend to create a contractual relationship with teachers. The act is devoid of the entitlement and durational language included in its predecessor statute. Sch. Dist. No. 1 v. Masters, 2018 CO 18, 413 P.3d 723.
Law reviews: For comment, "Who May Hire Teachers: How Mutual Consent Fits Into the Current Colorado Hiring Framework", see 85 U. Colo. L. Rev. 229 (2014).
Annotator's note. Since 22-63-202 is similar to 22-63-107 as it existed prior to the 1990 repeal and reenactment of this article and to repealed laws antecedent to CSA, C. 146, 249, a case construing those provisions has been included in the annotations to this section.
Constitutionality. This section does not violate the due process clause where former teachers had deductions taken from their paychecks by a board of education pursuant to this section to recover the costs of their replacements, despite board's failure to hold an administrative hearing on the matter. Action for breach of contract was available to resolve disputes concerning the board's deductions under this section. Stackhouse v. Sch. Dist. No. 1, 919 P.2d 902 (Colo. App. 1996).
This section was enacted to prevent capricious interference by either party in the contract to teach, a contract in which the public has an interest. Sch. Dist. No. 1 v. Parker, 82 Colo. 385, 260 P. 521 (1927).
The term "ordinary and necessary expenses" is limited to actual cash outlays and does not include overhead for purposes of calculating maximum damages. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027 (Colo. 2006).
The public has an interest in contracts to teach. A contract to teach in the public schools differs from the ordinary contract in that the public has an interest in it, and in not having it capriciously interfered with by either party. Sch. Dist. No. 1 v. Parker, 82 Colo. 385, 260 P. 521 (1927).
Being placed on unpaid leave while awaiting a mutual consent position to become available is distinct from outright dismissal. Teachers who have been placed on unpaid leave have not effectively been discharged or dismissed from their teaching positions. Rather, by enacting SB 10-191, the legislature exercised its plenary power to amend and diminish the property rights of certain nonprobationary teachers. Masters v. Sch. Dist. No. 1, 2015 COA 159, __ P.3d __.
Nonprobationary teachers have a due process right to a hearing prior to being placed on unpaid leave during which the teacher may attempt to show that the purported reason for which he or she was placed on unpaid leave was not the actual reason or that the placement was arbitrary or unreasonable. Masters v. Sch. Dist. No. 1, 2015 COA 159, __ P.3d __.
Trial court erred in entering summary judgment, as the issue of the amount of ordinary and necessary expenses incurred by the board in replacing plaintiffs was disputed. Board was required to prove that the amount it withheld did not exceed the ordinary and necessary expenses incurred in securing a suitable replacement for a particular teacher. Stackhouse v. Sch. Dist. No. 1, 919 P.2d 902 (Colo. App. 1996).