COCODE

22-63-203. Probationary teachers - renewal and nonrenewal of employment contract.

Statute text

(1) (a) Repealed.

(b) For any school district that has implemented the performance evaluation system based on quality standards pursuant to section 22-9-106 and the rules adopted by the state board pursuant to section 22-9-105.5, the provisions of this section shall apply only to probationary teachers and shall no longer apply when the teacher has been granted nonprobationary status as a result of three consecutive years of demonstrated effectiveness, as determined through his or her performance evaluations and continuous employment.

(2) (a) During the first three school years that a teacher is employed on a full-time continuous basis by a school district, such teacher shall be considered to be a probationary teacher whose employment contract may be subject to nonrenewal in accordance with subsection (4) of this section. A school district may also consider a teacher employed on a part-time continuous basis by such district and by a board of cooperative services to be a probationary teacher whose contract may be subject to nonrenewal in accordance with subsection (4) of this section. An employment contract with a probationary teacher shall not exceed one school year.

(b) For purposes of paragraph (a) of this subsection (2):

(I) A probationary teacher who is employed as a teacher in an alternative year program is deemed to be employed on a full-time basis during a school year if he performs services for at least the minimum period during which a pupil must be enrolled in any twelve-month period. The employment of any such probationary teacher as a teacher in such an alternative year program for such minimum period in successive twelve-month periods shall be deemed continuous.

(II) A probationary teacher who is employed after the first day of the academic year is deemed to be employed for a full school year if the period of continuous and uninterrupted employment during that year includes the last one hundred twenty school days of the academic year.

(III) The three consecutive school years of demonstrated effectiveness and continuous employment required for the probationary period shall not be deemed to be interrupted by the temporary illness of a probationary teacher. A leave of absence approved by the board of a school district or a military leave of absence pursuant to article 3 of title 28, C.R.S., shall not be considered to be an interruption of the consecutive years of demonstrated effectiveness and continuous employment required for the probationary period, but the time of such leaves of absence shall not be included in computing the required probationary period.

(IV) The three consecutive school years of demonstrated effectiveness and continuous employment required for the probationary period shall not be deemed to be interrupted by the acceptance by a probationary teacher of the position of chief administrative officer in said school district, but the period of time during which such teacher serves in such capacity shall not be included in computing said probationary period.

(3) A probationary teacher employed by a school district on a full-time basis shall be deemed to be reemployed for the succeeding academic year at the salary that the probationary teacher would be entitled to receive under the general salary schedule, the teacher salary policy, or the combination schedule and policy, whichever is appropriate, unless the board causes written notice to the contrary to be given to said teacher on or before June 1 of the academic year during which said teacher is employed. Such teacher shall be presumed to have accepted such employment for the succeeding academic year unless said teacher causes written notice to the contrary to be given to the board no later than thirty days prior to the commencement of the succeeding academic year.

(3.5) Repealed.

(4) (a) The chief administrative officer of the employing school district may recommend that the board not renew the employment contract of a probationary teacher for any reason he deems sufficient. If the board, based upon such recommendation, does not renew the employment contract of a probationary teacher, such teacher shall be given a written notice of contract nonrenewal.

(a.5) Repealed.

(b) (I) A probationary teacher who is given a written notice of contract nonrenewal may request, and, if requested, shall receive, the reasons for nonrenewal from the chief administrative officer of the employing school district.

(II) It is the intent of the general assembly that the provision to a probationary teacher of the reasons for contract nonrenewal not create any property right or contract right, express or implied. However, a board may, but shall not be required to, agree by contract or school district policy to make the reasons for nonrenewal a grievable action. If a state appellate court or a federal court determines that such a property right has been created and the time for all appeals has passed, this paragraph (b) shall be repealed. The court making such a determination shall be required to transmit a copy of the court's decision to the revisor of statutes. The effective date of the repeal of this paragraph (b) shall be the date the revisor of statutes receives notice from the court that such decision has been made and that the time for all appeals has passed.

(5) A probationary 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.

(6) (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. 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.

History

Source: L. 90: Entire article R&RE, p. 1121, 1, effective July 1. L. 92: (2)(a) amended, p. 475, 8, effective April 29. L. 93: (3) amended, p. 901, 2, effective May 11. L. 95: (3) amended, p. 884, 6, effective July 1. L. 97: (3) amended, p. 399, 2, effective August 15. L. 99: (2)(b)(II) amended, p. 139, 1, effective July 1; (6) added, p. 1104, 9, effective July 1. L. 2010: (1), (2)(b)(III), and (2)(b)(IV) amended and (4)(a.5) added, (SB 10-191), ch. 241, pp. 1073, 1074, 13, 14, effective May 20. L. 2020: (3.5) added, (HB 20-1418), ch. 197, p. 958, 48, effective June 30.

Annotations

Editor's note: (1) This section is similar to former 22-63-110 as it existed prior to 1990.

(2) Subsection (4)(a.5)(I) provided for the repeal of subsection (4)(a.5) upon the implementation of the performance evaluation system in subsection (4)(a.5). The revisor of statutes received notice of the implementation of the performance evaluation system on October 17, 2013.

(3) As of the date of publication, the revisor of statutes has not received the notice referred to in subsection (4)(b)(II), the receipt of which notice will cause the repeal of subsection (4)(b).

(4) Subsection (1)(a) provided for the repeal of subsection (1)(a), effective July 1, 2014. (See L. 2010, p. 1073.)

(5) Subsection (3.5)(b) provided for the repeal of subsection (3.5), effective July 1, 2021. (See L. 2020, p. 958.)

Annotations

Cross references: For the legislative declaration in HB 20-1418, see section 1 of chapter 197, Session Laws of Colorado 2020.

Annotations

ANNOTATION

Annotations

Analysis

I. General Consideration.
II. Notice.
A. In Writing.
B. Timely.
C. Methods of Service.
D. Burden of Proof.
III. Liability.

I. GENERAL CONSIDERATION.

Annotator's note. Since 22-63-203 is similar to 22-63-110 as it existed prior to the 1990 repeal and reenactment of this article, relevant cases construing that provision, as well as cases decided prior to the earliest source of this section, have been included in the annotations to this section.

Purpose of section is to eliminate uncertainty. On obvious purpose of the statute requiring written notice was elimination of uncertainty and possible controversy regarding the future status of a teacher and a school. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964); Norwood v. Sch. Dist. RE-11J, 44 Colo. App. 40, 613 P.2d 343 (1980), aff'd, 644 P.2d 13 (Colo. 1982).

Section held applicable to elementary teacher on probationary status. Colo. Civil Rights Comm'n v. State, 30 Colo. App. 10, 488 P.2d 83 (1971).

In order to effect nonrenewal, a board of education need only give the teacher written notice on or before April 15th of the school year immediately preceding that for which renewal is in question. Durango Sch. Dist. No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980).

No right to annual renewal. A nontenured public school teacher does not have a right to annual renewal of his teaching contract. Durango Sch. Dist. No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980); Bevsek v. Huerfano Sch. Dist. RE-1, 728 P.2d 325 (Colo. App. 1986).

"Deemed reemployed" is a mandatory provision of this section and applies absent required written notice. If a teacher proves that she was employed on a full-time basis but not under continuous tenure, she is "deemed reemployed" unless the written notice is furnished as required. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

Teacher is considered "deemed reemployed" for the year immediately following insufficient notice of termination, and the school board is obligated to compensate him or her for that year of employment, but relief is not available in the form of an additional year of employment if adequate timely, written notice was served prior to that additional year. Hanover Sch. Dist. No. 28 v. Barbour, 171 P.3d 223 (Colo. 2007).

No specification, proof, or reason for nonrenewal is required. Durango Sch. Dist. No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980).

Nonrenewal may not be based on exercise of constitutional rights. A board of education may not base its decision not to renew a teacher's contract on his or her exercise of constitutionally protected rights. Durango Sch. Dist. No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980); Hadley v. Moffat County Sch. Dist. RE-1, 681 P.2d 938 (Colo. 1984).

Issues where nonrenewal purportedly based on exercise on constitutional rights. Where a teacher who had not been renewed claimed the board's decision was based impermissibly on activities protected by the United States constitution, the jury was properly instructed that it was required to determine: (1) Whether constitutionally protected conduct on the teacher's part had been considered by the board when it decided not to renew his teaching contract; (2) whether such conduct, if considered by the board, had been a substantial or motivating factor in the nonrenewal decision; and (3) whether the board would have voted not to renew the contract even if it had not considered constitutionally protected conduct. Durango Sch. Dist. No. 9-R v. Thorpe, 200 Colo. 268, 614 P.2d 880 (1980).

II. NOTICE.

A. In Writing.

Notice of termination of employment must be in writing. Although a teacher may have been informed he would not be reemployed by board intimations or statements concerning his retirement, he was not so informed in writing as required by statute, as is mandatory, and, thus, he falls squarely within the protection of the statute and was automatically reemployed. Robb v. Sch. Dist. No. RE 50(J), 28 Colo. App. 453, 475 P.2d 30 (1970).

The written notice required of this section is not met by merely informing a teacher orally that she is not to be rehired. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

All evidence of oral conversations with the superintendent and others is beyond the issues when determining whether a teach had proper notice of termination of employment. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

B. Timely.

Notice to be valid must also be given within the time fixed by the statute. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

The words "causes written ... to be given", as used in this section, mean that the notice must have been received by the teacher on or before April 15th of the academic year in question. Norwood v. Sch. Dist. RE-11J, 44 Colo. App. 40, 613 P.2d 343 (1980), aff'd, 644 P.2d 13 (Colo. 1982).

Written notice of nonrenewal of employment must be delivered to and received by the teacher on or before April 15 of the academic year during which the teacher is employed. Sch. Dist. RE-11J v. Norwood, 644 P.2d 13 (Colo. 1982).

Else teacher deemed reemployed. Where, on April 15th, a nontenured teacher had not received a letter of termination nor notice of its availability at the post office, she was deemed to have been reemployed for the next academic year. Norwood v. Sch. Dist. RE-11J, 44 Colo. App. 40, 613 P.2d 343 (1980), aff'd, 644 P.2d 13 (Colo. 1982).

Where no notice was sent to teacher that her contract would not be renewed by April 15th, teacher was deemed automatically reemployed for the next academic year and was therefore entitled to tenure upon the first day of performance of services on that fourth year. Day v. Prowers County Sch. Dist. RE-1, 725 P.2d 14 (Colo. App. 1986).

The fact that a teacher by reason of his own absence fails to receive the letter before April 15 cannot defeat the giving of the notice. Ledbetter v. Sch. Dist. No. 8, 163 Colo. 127, 428 P.2d 912 (1967).

Timely delivery may be excused if teacher frustrates delivery by purposeful avoidance. Timely delivery of the notice to the teacher may be justifiable excused when a teacher frustrates the delivery by purposeful avoidance thereof. Sch. Dist. RE-11J v. Norwood, 644 P.2d 13 (Colo. 1982).

Letter of intent to terminate employment contract does not qualify as timely notice of termination. The notice requirement of this section is satisfied only by timely, written notice of a formal decision to terminate an employment contract. A letter to probationary teacher of the board's intent to act at a later meeting is insufficient to fulfill notice requirement. Nor is informal notice through teacher's knowledge of formal public vote on his termination sufficient to fulfill the notice requirement. Hanover Sch. Dist. No. 28 v. Barbour, 171 P.3d 223 (Colo. 2007).

C. Methods of Service.

No particular method of giving notice is specified. While the notice must be in writing, the method of getting the written notice of the teacher is not set out, because the general assembly did not intend any particular method. Ledbetter v. Sch. Dist. No. 8, 163 Colo. 127, 428 P.2d 912 (1967).

Recognized methods may be used. Although the means of giving notice is not set out in the statute, if the school district uses a method recognized as an acceptable one in the law, then the cases setting out the test to be applied to the particular method employed are persuasive. Ledbetter v. Sch. Dist. No. 8, 163 Colo. 127, 428 P.2d 912 (1967).

Personal service or mail. The notice could be personally handed to a teacher, mailed to him by ordinary mail, or sent by registered mail. Ledbetter v. Sch. Dist. No. 8, 163 Colo. 127, 428 P.2d 912 (1967).

D. Burden of Proof.

Board has burden of proof of timely written notice. If the board, in fact, has served a timely written notice upon a teacher, it has the burden of thereafter coming forward with such evidence; until then the teacher is deemed to have been reemployed. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

The general assembly did not intend to cast upon a teacher the burden of proof by ordinary methods that notice had been given. Wooten v. Byers Sch. Dist. No. 32J, 156 Colo. 89, 396 P.2d 964 (1964).

III. LIABILITY.

Failure to satisfy requirements of this section may render board liable. Where a teacher stands ready, willing, and able in every respect to abide by his valid and enforceable contract, but is prevented from doing so by the board of education when it refuses to honor the contract and hires a replacement without informing the teacher of termination of employment, the board is liable to him for damages. Robb v. Sch. Dist. No. RE 50(J), 28 Colo. App. 453, 475 P.2d 30 (1970).

Proper measure of damages. In the face of uncontroverted evidence that a teacher mitigated his damages, and in the face of a total lack of evidence that he could mitigate them any further, the proper measure of damages is the difference between his contract salary and his earnings in mitigation, where the teacher was not given notice of termination of employment as required by this section. Robb v. Sch. Dist. No. RE 50(J), 28 Colo. App. 453, 475 P.2d 30 (1970).

A teacher who is "deemed reemployed" under subsection (3) has no obligation to mitigate the compensation owed him or her by the school district. Hanover Sch. Dist. No. 28 v. Barbour, 171 P.3d 223 (Colo. 2007).