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22-63-302. Procedure for dismissal - judicial review.

Statute text

(1) Except as otherwise provided in subsection (11) of this section, a teacher shall be dismissed in the manner prescribed by subsections (2) to (10) of this section.

(2) The chief administrative officer of the employing school district may recommend that the board dismiss a teacher based upon one or more of the grounds stated in section 22-63-301. If such a recommendation is made to the board, the chief administrative officer, within three days after the board meeting at which the recommendation is made, shall mail a written notice of intent to dismiss to the teacher. The notice of intent to dismiss shall include a copy of the reasons for dismissal, a copy of this article, and all exhibits which the chief administrative officer intends to submit in support of his or her prima facie case against the teacher including a list of witnesses to be called by the chief administrative officer, addresses and telephone numbers of the witnesses, and all pertinent documentation in the possession of the chief administrative officer relative to the circumstances surrounding the charges. Additional witnesses and exhibits in support of the chief administrative officer's prima facie case may be added as provided in subsection (6) of this section. The notice and copy of the charges shall be sent by certified mail to said teacher at his or her address last known to the secretary of the board. The notice shall advise the teacher of his or her rights and the procedures under this section.

(3) If a teacher objects to the grounds given for the dismissal, the teacher may file with the chief administrative officer a written notice of objection and a request for a hearing. Such written notice shall be filed within five working days after receipt by the teacher of the notice of dismissal. If the teacher fails to file the written notice within said time, such failure shall be deemed to be a waiver of the right to a hearing and the dismissal shall be final; except that the board of education may grant a hearing upon a determination that the failure to file written notice for a hearing was due to good cause. If the teacher files a written notice of objection, the teacher shall continue to receive regular compensation from the time the board received the dismissal recommendation from the chief administrative officer pursuant to subsection (2) of this section until the board acts on the hearing officer's recommendation pursuant to subsection (9) of this section, but in no event beyond one hundred days; except that the teacher shall not receive regular compensation upon being charged criminally with an offense for which a license, certificate, endorsement, or authorization is required to be denied, annulled, suspended, or revoked due to a conviction, pursuant to section 22-60.5-107 (2.5) or (2.6). If the final disposition of the case does not result in a conviction and the teacher has not been dismissed pursuant to the provisions of this section, the board shall reinstate the teacher, effective as of the date of the final disposition of the case. Within ten days after the reinstatement, the board shall provide the teacher with back pay and lost benefits and shall restore lost service credit.

(4) (a) If the teacher requests a hearing, it shall be conducted before an impartial hearing officer selected jointly by the teacher and the chief administrative officer. The hearing officer shall be selected no later than five working days following the receipt by the chief administrative officer of the teacher's written notice of objection. If the teacher and the chief administrative officer fail to agree on the selection of a hearing officer, they shall request assignment of an administrative law judge by the department of personnel to act as the hearing officer.

(b) Hearing officers shall be impartial individuals with experience in the conducting of hearings and with experience in labor or employment matters.

(c) Expenses of the hearing officer shall be paid from funds of the school district.

(5) (a) Within three working days after selection, the hearing officer shall set the date of the prehearing conference and the date of the hearing, which shall commence within the following thirty days. The hearing officer shall give the teacher and the chief administrative officer written notice of the dates for the prehearing conference and for the hearing including the time and the place therefor.

(b) One of the purposes of the prehearing conference shall be to limit, to the extent possible, the amount of evidence to be presented at the hearing.

(c) The parties and their counsel shall be required to attend the prehearing conference with the hearing officer.

(6) (a) Within ten days after selection of the hearing officer, the teacher shall provide to the chief administrative officer a copy of all exhibits to be presented at the hearing and a list of all witnesses to be called, including the addresses and telephone numbers of the witnesses. Within seven days after the teacher submits his or her exhibits and witness list, the chief administrative officer and the teacher may supplement their exhibits and witness lists. After completion of the seven-day period, additional witnesses and exhibits may not be added except upon a showing of good cause.

(b) Neither party shall be allowed to take depositions of the other party's witnesses or to submit interrogatories to the other party. The affidavit of a witness may be introduced into evidence if such witness is unavailable at the time of the hearing.

(7) (a) Hearings held pursuant to this section shall be open to the public unless either the teacher or the chief administrative officer requests a private hearing before the hearing officer, but no findings of fact or recommendations shall be adopted by the hearing officer in any private hearing. The procedures for the conduct of the hearing shall be informal, and rules of evidence shall not be strictly applied except as necessitated in the opinion of the hearing officer; except that the hearing officer shall comply with the Colorado rules of evidence in excluding hearsay testimony.

(b) The hearing officer may receive or reject evidence and testimony, administer oaths, and, if necessary, subpoena witnesses.

(c) At any hearing, the teacher has the right to appear in person with or without counsel, to be heard and to present testimony of witnesses and all evidence bearing upon his proposed dismissal, and to cross-examine witnesses. By entering an appearance on behalf of the teacher or the chief administrative officer, counsel agrees to be prepared to commence the hearing within the time limitations of this section and to proceed expeditiously once the hearing has begun. All school district records pertaining to the teacher shall be made available for the use of the hearing officer or the teacher.

(d) An audiotaped record shall be made of the hearing, and, if the teacher files an action for review pursuant to the provisions of subsection (10) of this section, the teacher and the school district shall share equally in the cost of transcribing the record; except that, if a party is awarded attorney fees and costs pursuant to paragraph (e) of subsection (10) of this section, that party shall be reimbursed for that party's share of the transcript costs by the party against whom attorney fees and costs were awarded.

(e) Any hearing held pursuant to the provisions of this section shall be completed within six working days after commencement, unless extended by the hearing officer on a showing of good cause, and neither party shall have more than three days to present its case in chief. Neither party may present more than ten witnesses at the hearing, except upon a showing of good cause.

(8) The chief administrative officer shall have the burden of proving that the recommendation for the dismissal of the teacher was for the reasons given in the notice of dismissal and that the dismissal was made in accordance with the provisions of this article. Where unsatisfactory performance is a ground for dismissal, the chief administrative officer shall establish that the teacher had been evaluated pursuant to the written system to evaluate licensed personnel adopted by the school district pursuant to section 22-9-106. The hearing officer shall review the evidence and testimony and make written findings of fact thereon. The hearing officer shall make only one of the two following recommendations: The teacher be dismissed or the teacher be retained. A recommendation to retain a teacher shall not include any conditions on retention. The findings of fact and the recommendation shall be issued by the hearing officer not later than twenty days after the conclusion of the hearing and shall be forwarded to said teacher and to the board.

(9) The board shall review the hearing officer's findings of fact and recommendation, and it shall enter its written order within twenty days after the date of the hearing officer's findings and recommendation. The board shall take one of the three following actions: The teacher be dismissed; the teacher be retained; or the teacher be placed on a one-year probation; but, if the board dismisses the teacher over the hearing officer's recommendation of retention, the board shall make a conclusion, giving its reasons therefor, which must be supported by the hearing officer's findings of fact, and such conclusion and reasons shall be included in its written order. The secretary of the board shall cause a copy of said order to be given immediately to the teacher and a copy to be entered into the teacher's local file.

(10) (a) If the board dismisses the teacher pursuant to the provisions of subsection (9) of this section, the teacher may file an action for review in the court of appeals in accordance with the provisions of this subsection (10), in which action the board shall be made the party defendant. Such action for review shall be heard in an expedited manner and shall be given precedence over all other civil cases, except cases arising under the "Workers' Compensation Act of Colorado", articles 40 to 47 of title 8, C.R.S., and cases arising under the "Colorado Employment Security Act", articles 70 to 82 of title 8, C.R.S.

(b) An action for review shall be commenced by the service of a copy of the petition upon the board of the school district and filing the same with the court of appeals within twenty-one days after the written order of dismissal made by the board. The petition shall state the grounds upon which the review is sought. After the filing of the action for review in the court of appeals, such action shall be conducted in the manner prescribed by rule 3.1 of the Colorado appellate rules.

(c) The action for review shall be based upon the record before the hearing officer. The court of appeals shall review such record to determine whether the action of the board was arbitrary or capricious or was legally impermissible.

(d) In the action for review, if the court of appeals finds a substantial irregularity or error made during the hearing before the hearing officer, the court may remand the case for further hearing.

(e) Upon request of the teacher, if the teacher is ordered reinstated by the court of appeals, or upon request of the board, if the board's decision to dismiss the teacher is affirmed by the court of appeals, the court of appeals shall determine whether the nonprevailing party's appeal or defense on appeal lacked substantial justification. If the court of appeals determines that the nonprevailing party's appeal or defense on appeal lacked substantial justification, the court of appeals shall determine the amount of and enter a judgment against the nonprevailing party for reasonable attorney fees and costs incurred on appeal to the court of appeals. Any judgment entered pursuant to this paragraph (e) may be subject to stay as provided in rule 41 of the Colorado appellate rules.

(f) Further appeal to the supreme court from a determination of the court of appeals may be made only upon a writ of certiorari issued in the discretion of the supreme court. Upon request of the teacher, if the teacher is ordered reinstated by the supreme court, or upon motion of the board, if the board's decision to dismiss is affirmed by the supreme court, the supreme court shall determine whether the nonprevailing party's appeal or defense on appeal to the supreme court lacked substantial justification. If the supreme court determines that the nonprevailing party's appeal or defense on appeal to the supreme court lacked substantial justification, the court shall determine the amount of and enter a judgment against the nonprevailing party for reasonable attorney fees and costs incurred on appeal to the supreme court. Any judgment entered pursuant to this paragraph (f) may be subject to stay as provided in rule 41 of the Colorado appellate rules.

(11) (a) The board of a school district may take immediate action to dismiss a teacher, without a hearing, notwithstanding subsections (2) to (10) of this section, pending the final outcome of judicial review or when the time for seeking review has elapsed, when the teacher is convicted, pleads nolo contendere, or receives a deferred sentence for:

(I) A violation of any law of this state or any counterpart municipal law of this state involving unlawful behavior pursuant to any of the following statutory provisions: Sections 18-3-305, 18-6-302, and 18-6-701, C.R.S., or section 18-6-301, C.R.S., or part 4 of article 3, part 4 of article 6, and part 4 of article 7 of title 18, C.R.S.; or

(II) A violation of any law of this state, any municipality of this state, or the United States involving the illegal sale of controlled substances, as defined in section 18-18-102 (5), C.R.S.

(b) A certified copy of the judgment of a court of competent jurisdiction of a conviction, the acceptance of a guilty plea, a plea of nolo contendere, or a deferred sentence shall be conclusive evidence for the purposes of this subsection (11).

History

Source: L. 90: Entire article R&RE, p. 1123, 1, effective July 1; IP(11)(a), (11)(a)(I), and (11)(b) amended, p. 1032, 23, effective July 1. L. 98: (2), (3), (4)(a), (5), (6)(a), (7)(a), (7)(d), (7)(e), (8), (9), and (10) amended, p. 297, 1, effective July 1. L. 2000: (8) amended, p. 1860, 70, effective August 2. L. 2003: (11)(a)(I) amended, p. 2521, 10, effective June 5. L. 2004: (3) amended, p. 433, 1, effective April 13. L. 2011: (3) amended, (HB 11-1121), ch. 242, p. 1060, 8, effective August 10. L. 2012: (11)(a)(II) amended, (HB 12-1311), ch. 281, p. 1626, 67, effective July 1. L. 2013: (10)(b) amended, (HB 13-1126), ch. 58, p. 192, 4, effective July 1. L. 2016: (10)(e) and (10)(f) amended, (SB 16-189), ch. 210, p. 763, 40, effective June 6.

Annotations

Editor's note: This section is similar to former 22-63-117 as it existed prior to 1990.

Annotations

Cross references: In 2011, subsection (3) was amended by the "Safer Schools Act of 2011". For the short title, see section 1 of chapter 242, Session Laws of Colorado 2011.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Dismissal Procedures.
A. Preliminary Procedures.
B. Presiding Officer at Hearing.
C. Board of Education.
D. Noncompliance.
E. Dismissal.
III. Judicial Review.
IV. Remedies for Wrongful Dismissal.

I. GENERAL CONSIDERATION.

Law reviews. For note, "The Right of Teachers Employed in the Colorado Public School System to Notice and Hearing Before Dismissal", see 31 Dicta 341 (1954). For comment on the application of res judicata to agencies with parallel jurisdiction in light of Umberfield v. Sch. Dist. 11, see 52 Den. L.J. 595 (1975).

Annotator's note. Since 22-63-302 is similar to 22-63-117 as it existed prior to the 1990 repeal and reenactment of this article, cases construing that provision, as well as cases decided under provisions similar thereto, have been included in the annotations to this section.

Purpose of section. The language of this section, and its history as well, indicates the clear purpose of the general assembly to throw certain safeguards around a teacher of the requisite years of service. The tenure assurances of the legislation were not conceived to prevent assaults from private sources, for no power to hurt is lodged there, but to map out a course of procedure for a school board when addressing itself to charges, whencesoever emanating, against a teacher. Roe v. Hanington, 97 Colo. 113, 47 P.2d 403 (1935).

Teacher tenure act sets up procedural scheme for dismissal of tenured teachers. It provides for a full adversary hearing wherein a teacher, after notice of the charges against him, is given the opportunity to challenge those charges. The teacher has the right to counsel, to present all evidence bearing on the reasons for the proposed dismissal, the right to cross-examine witnesses, and the right to discover and put in evidence any school district records. Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

The proceedings under the teacher tenure act and subsequent judicial review give a tenured teacher contesting his dismissal an opportunity to raise all defenses, judicial, statutory, or constitutional, available to him, before a panel with plenary power to consider and accept or reject such claims. Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

Teacher tenure act does not create any additional substantive rights of academic freedom but merely establishes procedural protections of such rights already implicit in the constitution. Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).

Procedures prescribed by the teacher tenure act afford a tenured teacher due process of law. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

This section applies only to dismissals, not to nonrenewals of contracts due to decreased enrollment. Howell v. Woodlin Sch. Dist. R-104, 198 Colo. 40, 596 P.2d 56 (1979).

Board vested with power to terminate school district personnel. The power to terminate the employment of school district personnel is expressly vested in each school district's board of education. Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978).

Dismissal of tenure teachers must be for reasons and by procedures specified. Teachers who acquire tenure are guaranteed by law that they cannot be dismissed from their positions as teachers except for certain reasons and in accordance with a statutory provision for notice and hearings. Draper v. Sch. Dist. No. 1, 175 Colo. 216, 486 P.2d 1048 (1971).

However much a teacher may have offended, he can only be dismissed in the manner provided by law. Sch. Dist. No. 1 v. Parker, 82 Colo. 385, 260 P. 521 (1927).

This section provides for notice and hearing prior to the summary discharge of a teacher. Boatright v. Sch. Dist. No. 6, 160 Colo. 163, 415 P.2d 340 (1966).

A teacher under permanent tenure can be dismissed only after the formal hearing set forth in this section. Sch. Dist. No. 1 v. Parker, 82 Colo. 385, 260 P. 521 (1927); Sch. Dist. No. 1 v. Thompson, 121 Colo. 275, 214 P.2d 1020 (1950).

Nowhere does this section say that a teacher's right to a hearing is conditioned upon his ability to pay for it. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

Court was in error in holding that appellant was required to pay any of the costs associated with the dismissal hearing. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

Cost for recording evidence. The only reference to costs contained in this section is to the effect that costs for recording the evidence adduced at the hearing shall be borne by the school district. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

The general assembly did not intend to penalize teachers who exercise their statutory -- indeed their constitutional -- right to a hearing. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

Injunction does not lie to restrain a school board from discharging a teacher. Sch. Dist. No. 1 v. Carson, 9 Colo. App. 6, 46 P. 846 (1896).

Mere acceptance for review of charges against teacher is not policy decision under statute forbidding board's making of policy decisions in executive session. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

Proceedings constitute adequate remedy at law. The proceedings under the teacher tenure act and subsequent judicial review give a tenured teacher contesting his dismissal an opportunity to raise all defenses, judicial, statutory, or constitutional available to him, before a panel with plenary power to consider and accept or reject such claims, and therefore provide an adequate remedy at law which precludes equitable relief. Frankmore v. Bd. of Educ., 41 Colo. App. 416, 589 P.2d 1375 (1978).

When res judicata operates as bar to relitigation. Where a teacher had a full adversary hearing before the teacher tenure panel, which had the power to determine all his claims of religious discrimination, the doctrine of res judicata operates as a bar to the relitigation of issues which the teacher raised or could have raised in the hearing before that panel and on judicial review. To hold otherwise could result in an anomalous situation where the same reviewing court would be compelled to affirm opposite results of the two administrative bodies. Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

Collateral estoppel precludes relitigation of the grounds for terminating a tenured teacher in a hearing for unemployment compensation benefits where a board of education votes to terminate a teacher after a full administrative hearing and finding of facts, even though the board's action is still subject to review. Jefferson County Sch. Dist. v. Indus. Comm'n, 698 P.2d 1350 (Colo. App. 1984).

Although this section grants a great deal of discretion to school boards in deciding whether to renew probationary teachers' contracts, 22-32-110 (4)(c) creates a limitation on the school board's discretion. Section 22-32-110 (4)(c) prohibits the school board from basing its renewal decision on any actions taken by the probationary teacher in good faith and in compliance with the school district's discipline code. McIntosh v. Bd. of Educ. of Sch. Dist. No. 1, 999 P.2d 224 (Colo. App. 2000).

For prior inapplicability of this section to nontenured teachers, see Sch. Dist. No. 1 v. Thompson, 121 Colo. 275, 214 P.2d 1020 (1950).

Applied in Benke v. Neenan, 658 P.2d 860 (Colo. 1983); Indus. Comm'n v. Moffat Cty, Sch. D. Re No. 1, 732 P.2d 616 (Colo. 1987).

II. DISMISSAL PROCEDURES.

A. Preliminary Procedures.

The requirement for notice by certified mail simply to provide proof of service and of the date of service. Because this requirement is not jurisdictional, providing actual notice to the teacher by other means is also proper. Feldewerth v. Joint Sch. Dist. 28-J, 3 P.3d 467 (Colo. App. 1999).

The board of education shall determine whether a teacher's failure to file a request for a hearing is due to good cause. Subsection (3) is clear on this point. The teacher's argument that the hearing officer should determine whether good cause exists is incorrect, because the hearing officer is not appointed until the board of education determines whether to grant the late request for a hearing. Feldewerth v. Joint Sch. Dist. 28-J, 3 P.3d 467 (Colo. App. 1999).

B. Presiding Officer at Hearing.

Annotator's note. Annotations referring to a hearing panel refer to the body which conducted hearings prior to 1979 when the duty was transferred to a hearing officer. The term "hearing officer" was changed in 1987 to "administrative law judge".

The panel hearing provision of this section is constitutional, as the general assembly has not delegated to a special commission the functions of the school district, which is a municipal or quasi-municipal corporation. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

The panel has not been delegated any powers whatsoever; rather, it merely conducts the hearing which is transcribed for the school board which by law is the agency empowered to accept or reject the recommendation of the panel. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Powers. The teacher tenure panel is granted substantially the same powers and has the same due process responsibilities as other administrative fact finding agencies. Lovett v. Blair, 39 Colo. App. 512, 571 P.2d 731 (1977), aff'd, 196 Colo. 118, 582 P.2d 668 (1978).

The hearing panel alone is empowered to assess credibility, weigh conflicting evidence and draw factual inferences from the testimony and exhibits introduced by the parties. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Panel may consider denial of statutory and constitutional rights. Although the teacher tenure panel is empowered to recommend only that the teachers be retained or that the teachers be dismissed, in reaching those recommendations it is clear that the panel may consider the denial of statutory and constitutional rights. Otherwise the teacher's right to present all the evidence bearing upon the reasons for his proposed dismissal and the broad judicial review of the school board's action based upon the panel's recommendation would be rendered nugatory. Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

It is not within the authority of the reviewing panel to terminate a teacher's employment. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

The authority to dismiss a teacher rests with the school board by statute, and it may not delegate this power to another body. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967); Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

The sole function of the reviewing panel is to review the evidence presented, make findings and conclusions, and report the same to the school board, so that it may make proper disposition of the particular case. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

The duties of the panel are limited to reviewing the evidence presented, making findings, making a recommendation to retain or dismiss, and reporting the same to the board. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

In a proceeding for disciplinary action against a tenured teacher, hearing officer did not abuse discretion in denying teacher's motion for discovery and refusing to grant a continuance of the proceedings pending the outcome of criminal action against teacher. Rosenberg v. Bd. of Educ., 677 P.2d 348 (Colo. App. 1983), aff'd, 710 P.2d 1095 (Colo. 1985).

When informed that charges are made, a teacher has the right to request that a review panel be established to hold hearings on the substance of the charges. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

Once a review panel is established, evidence proving the charges must be presented and the teacher must be given an opportunity to rebut and offer evidence in his own behalf. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

It is illegal for the superintendent of schools to appoint a panel member. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

But it does not call for a new panel and hearing where there could be no different result. The member ostensibly representing the board being illegally appointed by the superintendent of schools, his participation in the selection of the third member was tainted with his own disqualification; nevertheless, where there could be no different result, even if a rehearing were granted under a duly constituted panel, it would be a useless and meaningless procedure involving an inordinate waste of time and further delay to remand the action back for further hearing before another panel. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Panel's ultimate findings of fact not binding on board. Basic evidentiary facts found by the panel are binding on the board if supported by competent evidence in the record, however, any ultimate findings of fact are not binding on the board because it, not the panel, has the power to determine what facts constitute the statutory grounds for dismissal. Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978); Suley v. Bd. of Educ., 633 P.2d 482 (Colo. App. 1981).

Ultimate facts are stated in terms of the statutory standard, and an ultimate finding may be and usually is mixed with ideas of law or policy. The ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Subject to judicial review, the board, not the hearing officer, has the power to determine what facts constitute the statutory grounds for dismissal. Ware v. Morgan County Sch. Dist. RE-3, 719 P.2d 351 (Colo. App. 1985).

Findings of basic facts are by panel. The panel's findings of basic, or evidentiary, facts, if supported by competent evidence, are binding on the board of education, and the board may not disregard those findings nor substitute its own findings; if the board determines that the panel's findings are insufficient to enable the board to make its final decision, it must remand the matter for more specific findings by the panel which heard the evidence -- it may not simply review the record and issue its own findings. Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978).

The hearing panel alone has "basic" or evidentiary fact-finding authority, and, if supported by competent evidence, these evidentiary findings of fact are binding on the school board. Hudson v. Bd. of Educ., 655 P.2d 853 (Colo. App. 1982).

The findings of the hearing panel are binding on a board of education if supported by substantial and competent evidence in the record and furnish the sole basis for the board's findings of ultimate facts. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Finding that evidence insufficient to terminate is one of ultimate fact. A panel finding that the evidence is insufficient to terminate a teacher is a finding of ultimate fact, and thus is not binding on the board. Suley v. Bd. of Educ., 633 P.2d 482 (Colo. App. 1981).

It is immaterial that some hearsay evidence is admitted at the hearing where there is wholly competent evidence more than sufficient to establish the charges, and the teacher himself also introduces hearsay evidence. Fahl v. Sch. Dist. No. 1, 116 Colo. 277, 180 P.2d 532 (1947).

Insufficient findings by panel remedied by remand. If a hearing panel's findings of basic fact are insufficiently explicit or detailed to enable a school board to make findings of ultimate fact, the proper remedy is a remand to the panel for more specific findings. A board may not review the record to answer unanswered questions or supply omitted information. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

A nonpublic meeting of the panel to "review the evidence and testimony" which was received at a prior public hearing is not a violation of either former 29-9-101 or this section. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

Although the panel must adopt its findings and recommendations in an open session, there is no equivalent requirement that the panel's review of the evidence occur at a public meeting. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

C. Board of Education.

The duties of the school board are to receive the report of the findings and conclusions made by the reviewing panel and then make an independent evaluation of the proper course of action to take, either concurring with or rejecting the panel's recommendations. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

The school board has the sole power to determine what disposition should be made if a finding has been made that grounds exist entitling the board to dismiss the teacher under this section. Lovett v. Blair, 39 Colo. App. 512, 571 P.2d 731 (1977), aff'd, 196 Colo. 118, 582 P.2d 668 (1978).

Board to act on findings of majority of panel. The report of the panel is and must be the report of the majority of the panel, and the findings of the majority of the panel are the findings of the panel that are binding on the board. Cordova v. Lara, 42 Colo. App. 483, 600 P.2d 105 (1979).

Board not to rely on recommendations of school staff. Where members of a school board voted for discharge of a teacher at least partially based on the recommendations of the school staff, consideration of this information was improper. Cordova v. Lara, 42 Colo. App. 483, 600 P.2d 105 (1979). But see Willis v. Widefield Sch. Dist. No. 3, 43 Colo. App. 197, 603 P.2d 962 (1979).

Preliminary inquiry by board. This section contemplates a full and impartial hearing by the panel and review by the board. The board may therefore make such preliminary inquiry as is not inconsistent with its later ability to make an impartial review of the evidence adduced by the panel. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

A board may properly conduct a limited preliminary inquiry to determine if there is any real substance to a charge against a teacher. The formal hearing process can be both time-consuming and costly, and may subject a teacher to great embarrassment. These adverse consequences may be avoided by a measure of prehearing familiarity with the case. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

This section authorizes a board of education which has been asked to discipline or dismiss a tenured teacher to conduct a limited preliminary inquiry to determine if there is any real substance to the charges against the teacher. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Board must do nothing in preliminary inquiry that would serve to remove appearance of fairness from its eventual determination. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

Such as presence of board's attorney. A school board's attorney, who has taken part in the adversary proceedings in the role of prosecutor, should not be present during the board's deliberations. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).

School board must consider findings, rather than just conclusions, of appointed panel, for statutory authority to dismiss teacher rests exclusively with board by statute. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

The board's failure to consider findings would be unlawful delegation of its power to the panel. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

Board bound by panel's findings of fact. A school board is bound by the findings of evidentiary fact made by the hearing panel if those findings are adequately supported in the record of the panel's proceedings. A board may not usurp the panel's exclusive authority to find evidentiary facts by basing its conclusions of ultimate fact in whole or in part on raw evidence gleaned from its review of the hearing transcript. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

The board of education may not make additional findings of evidentiary fact to supplement the hearing officer's written findings. But, such additional findings constituted harmless error where there were sufficient facts in the hearing officer's findings to support the board's decision to dismiss. Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).

If supported by competent evidence. Although a school board may not conduct a full review of the record intended to supplement or supersede the hearing panel's findings of basic fact, it may review the record for the limited purpose of determining whether the panel's basic factual findings are supported by competent evidence. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

While the board may not review the panel's full evidentiary record and make its own findings of fact, it may review the record to ascertain that the panel's findings are supported by the evidence. Suley v. Bd. of Educ., 633 P.2d 482 (Colo. App. 1981).

The board is not bound by the hearing officer's findings of ultimate fact. Ware v. Morgan County Sch. Dist. RE-3, 719 P.2d 351 (Colo. App. 1985).

And, subject to judicial review, the board, not the hearing officer, has the power to determine what facts constitute the statutory grounds for dismissal. Ware v. Morgan County Sch. Dist. RE-3, 719 P.2d 351 (Colo. App. 1985).

Finding ultimate facts is the exclusive prerogative of school boards. Because these boards have the responsibility of implementing and carrying out the educational programs of their respective communities, they must have the case-by-case authority to define the limits of such broad general grounds for dismissal as "incompetency" and "immorality" in the educational context. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).

And, for the same reasons, school boards must have the case-by-case authority to define the limits of the ground of dismissal of "neglect of duty" in the educational context. Blaine v. Moffat County Sch. Dist. Re. No. 1, 709 P.2d 96 (Colo. App. 1985).

Failure of board to make an ultimate finding as to the statutory basis for a teacher's dismissal prevents court from evaluating board's order and, thus, necessitated reversal of lower court decision upholding the dismissal. DeKoevend v. Bd. of Educ., 688 P.2d 219 (Colo. 1984).

Board is to consider only evidence adopted as finding of fact, and may not conduct a full review of the evidence. Thompson v. Bd. of Educ., 668 P.2d 954 (Colo. App. 1983).

Finding that the teacher's action in "tapping" a student on the head with a pointer was not unreasonable and inappropriate physical discipline was a conclusion of ultimate fact that the board was free to set aside. Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).

If a school board is unable to reach a decision based upon the "basic" findings of fact in the panel report, the board's proper remedy is to remand that report to the hearing panel for clarification. Hudson v. Bd. of Educ., 655 P.2d 853 (Colo. App. 1982).

Board's findings and decision are entitled to presumption of regularity, although this presumption is rebuttable. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

No independent judgment by the school board was exercised, where the brief cursory report of the reviewing panel merely stated a conclusion that plaintiff's employment should be terminated, the facts, evidence, and findings used to reach such a conclusion were absent, and the board merely gave formal ratification to the panel's recommendations. Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

Reading of transcript of panel proceedings is not required. Where the panel in its report to board made extensive and detailed findings that specified and condensed four days of testimony, and these findings were explicit and solidly based on substantial evidence as shown by record, and members of school board were thoroughly familiar with findings, as well as conclusions, of panel before making their decision at open meeting, fact that they did not go beyond panel's findings and personally read entire transcript of proceedings before panel is not error and did not constitute delegation of power of dismissal to panel. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

Grounds for dismissal must be those charged or related thereto. Two of the grounds upon which the board relied for dismissal, that the teacher had a class of problem children which were hard to manage and that the teacher's testimony impugned the financial integrity of the school district, bear no relationship to any of the charges filed, and since at the time of the hearing, she did not know of and was not required to meet any such charges, there was no authority in the law warranting a teacher's discharge on such grounds. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Board's attorney not allowed to be present after prosecuting case. Where the school board's attorney who had prosecuted petitioner's case before the hearing officer was not only present during the board's deliberations, but also substantially influenced the decision of the board, the teacher is denied due process. Lockhart v. Bd. of Educ., 668 P.2d 959 (Colo. App. 1983), aff'd in part and rev'd in part on other grounds, 687 P.2d 1306 (Colo. 1984).

Board's attorney may make statements to school board when there is no unilateral exclusion of the teacher's attorney from the deliberative process of the board. Mondragon v. Poudre Sch. Dist. R-1, 696 P.2d 831 (Colo. App. 1984).

Presence during the board's deliberative process of school superintendent and principal who had substantial interest in the board's decision regarding dismissal violated teacher's due process right to a fair and impartial determination by the board. DeKoevend v. Bd. of Educ., 688 P.2d 219 (Colo. 1984).

Inclusion of exhibits in record not admitted in disciplinary hearing. Where nothing in the record indicated school board improperly considered the unadmitted exhibits, teacher failed to show prejudice by inclusion of exhibits in the record. Rosenberg v. Bd. of Educ., 677 P.2d 348 (Colo. App. 1983).

Absent gross abuse of discretion by the board, the courts will not interfere with its decisions on teacher dismissals. Ruger v. Knight, 104 Colo. 33, 88 P.2d 118 (1939); Engelbrecht v. Jefferson County Sch. Dist. R-1, 687 P.2d 985 (Colo. App. 1984).

Twenty-day period for filing notice of appeal commences to run when the board enters its final order. Cottman v. Aurora Pub. Sch. Bd. of Educ., 42 P.3d 31 (Colo. App. 2000).

D. Noncompliance.

Noncompliance with statutory procedures nullifies a teacher's dismissal. Where the school board fails to comply with the proper procedural steps in terminating the employment of a teacher plaintiff, its action in terminating the teacher's employment is a nullity. Sch. Dist. No. 26 v. McComb, 18 Colo. 240, 32 P. 424 (1893); Sch. Dist. No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315 (1971).

Improper procedural steps in terminating teacher entitles the teacher to back salary. A teacher who was discharged by a school board after a hearing not complying with the requirements of this section was entitled to salary for the remainder of the school term for which he was employed, where he was unable to find other employment for the remainder of that term. Sch. Dist. No. 13 v. Mort, 115 Colo. 571, 176 P.2d 984 (1947).

The absence of oath or affirmation by the witnesses does not make a hearing ineffective. Sch. Dist. No. 1 v. Thompson, 121 Colo. 275, 214 P.2d 1020 (1950).

Order of dismissal valid even where noncompliance with statutory deadline where record indicates good cause for not complying with the time requirement, no prejudice to the teacher, and the order was correct. Engelbrecht v. Jefferson County Sch. Dist. R-1, 687 P.2d 985 (Colo. App. 1984).

Teacher not prejudiced by charges which were too brief. Though the charges against a teacher were too brief as originally filed, the teacher was not prejudiced thereby where the charges were supplemented by an additional communication from the school superintendent and by conferences at which full disclosures were made, and the opportunity was given to inspect the records and files of the school board before the hearing. Fahl v. Sch. Dist. No. 1, 116 Colo. 277, 180 P.2d 532 (1947).

Where dismissal proceeding is dismissed by agreement of parties as not complying with this section, it is not "res judicata" in subsequent dismissal proceeding brought by school board pursuant to this section. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

School board may nullify prior void proceedings by reconsideration in accordance with section. A school board may reconsider its action in dismissing a teacher; and, if the original proceedings were void for failure to give the teacher the requisite notice and hearing, the board may treat them as a nullity, and discharge the teacher after notice and hearing properly held. Snider v. Kit Carson Sch. Dist. R-1, 166 Colo. 180, 442 P.2d 429 (1968).

E. Dismissal.

School patrons may request the removal of a teacher and state grounds for removal to board in writing. Hoover v. Jordon, 27 Colo. App. 515, 150 P. 333 (1915).

The burden of proof is upon those making the charge against a teacher. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Standard of proof in dismissal actions is preponderance of the evidence. Madril v. Sch. Dist. No. 11, 710 P.2d 1 (Colo. App. 1985).

Where it is alleged that a teacher broke a rule of the board of education, it was first required that there be proof of the school board rule and, secondly, that the teacher deliberately violated a rule of the board. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

A school committee may regulate a teacher's classroom speech if: (1) The regulation is reasonably related to a legitimate pedagogical concern and (2) the school provided the teacher with notice of what conduct was prohibited. A teacher is entitled to notice of what classroom conduct is prohibited, and a school district cannot retaliate against speech that it did not prohibit. Wilder v. Bd. of Educ., 944 P.2d 598 (Colo. App. 1997), aff'd, 960 P.2d 695 (Colo. 1998).

Where teacher was notified of charges against her and she and her counsel were aware of meaning of charges and presented adequate defense in her behalf and there was no evidence that she was prejudiced by absence of additional specifications, charges were adequate to put teacher on notice of evidence to be presented against her and motion for bill of particulars was properly denied. Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131 (1972).

Where there was no suggestion that the hearing actually afforded the teacher was only a "pretended hearing", and no challenge was made to the ultimate finding of the school board that good cause for dismissal did in fact exist, the dismissal after a hearing was lawful. Snider v. Kit Carson Sch. Dist. R-1, 166 Colo. 180, 442 P.2d 429 (1968).

A history of prior disciplinary measures has probative value in deciding whether dismissal for cause is warranted. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

Use of events occurring prior to first suspension as basis for subsequent dismissal. Where there is no evidence in the record that the suspension of a teacher or his subsequent reinstatement was intended as an adjudication on the merits of any charge against him, or that it was a disciplinary action by the superintendents, events occurring prior to the first suspension can be used as a basis for a subsequent dismissal. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).

Findings sufficient to support dismissal on the ground of insubordination. Thompson v. Bd. of Educ., 668 P.2d 954 (Colo. App. 1983); Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).

The occurrence of one incident does not substantiate a charge of insubordination or wilful violation of a board rule on which the board relies for its decision. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Tenured teacher must be paid his or her salary until the board enters an order of dismissal. Harvey v. Jefferson County Sch. Dist. No. R-1, 710 P.2d 1103 (Colo. 1985) (decided under law in effect prior to 1983 amendment).

Because tenure is a vested and substantive right which cannot be impaired by the retrospective application of a statute, 1983 amendments to the act, which limited the accrual of salary during suspension and which were passed prior to the entering of an order on petitioner's dismissal, had no effect on the amount of back pay due petitioner. Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).

III. JUDICIAL REVIEW.

The 1979 amendment of subsection (11) gives the court of appeals original jurisdiction for appellate review of all cases where a school board order in a dismissal proceeding has been entered prior to the effective date of the amendment. Suley v. Bd. of Educ., 633 P.2d 482 (Colo. App. 1981).

The change in the review procedure effected by the 1979 amendment to subsection (11) was procedural, and since there was no expressed intent to delay the effective date of the amendment, it became effective immediately. Suley v. Bd. of Educ., 633 P.2d 482 (Colo. App. 1981).

Court of appeals has original jurisdiction under the teacher tenure act to review the dismissal of a tenured teacher. Talbot v. Sch. Dist. No. 1, 700 P.2d 919 (Colo. App. 1984).

General assembly provided for broad judicial review of any order of the board of education under this act. Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974).

Judicial review is merely remedy for wrongful state agency action; it is not necessary for a plaintiff to await disposition of such a state action prior to the initiation of an action based upon 42 U.S.C. 1983. Gilbert v. Sch. Dist. No. 50, 485 F. Supp. 505 (D. Colo. 1980).

Tenured teacher's action for review of his dismissal based upon federal civil rights statutes, 42 U.S.C. 1983, was properly brought in district court and the teacher was not required to exhaust administrative remedies before bringing an action based on the statute. Talbot v. Sch. Dist. No. 1, 700 P.2d 919 (Colo. App. 1984).

Record on review. Although a school board's findings of ultimate fact must be sustained if warranted in the record, the record, for purposes of judicial review of those findings, consists solely of the formal findings of basic or evidentiary fact made by the hearing panel and forwarded to the board. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

While a reviewing court may scrutinize the transcript of the hearing before the panel to ascertain whether the panel's findings of basic fact are supported by substantial or competent evidence, it may not review the hearing record to determine whether the board's findings are warranted. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Standard of judicial review. In order for a reviewing court to find that an administrative tribunal has abused its discretion, the record must clearly show such abuse. Rosenberg v. Bd. of Educ., 677 P.2d 348 (Colo. App. 1983).

Denial of motion not final agency action. The denial of the motion to dismiss and motion for bill of particulars by the panel does not constitute final agency action which is subject to judicial review. Lovett v. Sch. Dist. No. 1, 33 Colo. App. 434, 523 P.2d 152 (1974).

Where there had been no hearing on the merits of the charge of incompetency nor findings made by the panel and no final action had been taken by the board, to allow judicial review at this state of the proceedings would result in piecemeal review of the tenure act proceedings. Lovett v. Sch. Dist. No. 1, 33 Colo. App. 434, 523 P.2d 152 (1974).

No basis for judicial review. Where teacher was discharged from her job by letter and not by order of the board of education, there is no final order within meaning of the statute for the court of appeals to review. Snyder v. Jefferson Cty. Sch. Dist. No. 1, 707 P.2d 1049 (Colo. App. 1985).

Issues never presented to or ruled upon by the hearing officer are not preserved for appellate review. Appellate court will decline to consider issues raised for the first time on appeal. Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo. App. 2002).

Where tenured teacher received actual notice of termination, action for review of the dismissal was barred as untimely where it was not filed within the 45 days during which the teacher was required to seek review pursuant to this section and 24-4-106 (11). Talbot v. Sch. Dist. No. 1, 700 P.2d 919 (Colo. App. 1984).

As reenacted, this section authorizes teachers to appeal only school board decisions of dismissal. This section does not give jurisdiction to the court to consider appeals of school board decisions placing a teacher on probation. Holdridge v. Bd. of Educ., 881 P.2d 448 (Colo. App. 1994).

The court of appeals shall determine in all cases governed by this section whether the board of education's conduct in ordering dismissal of a teacher was arbitrary, capricious, or legally impermissible regardless of whether or not the board's decision is consistent with the hearing officer's recommendation. Adams County Sch. Dist. 50 v. Heimer, 919 P.2d 786 (Colo. 1996); Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).

The court of appeals may review the entire record, including the hearing transcript and the hearing officer's findings and recommendation, in order to determine whether the hearing officer's findings were supported by substantial evidence. If that issue is not raised or if the court of appeals is satisfied that the record adequately supports the hearing officer's findings, then the court of appeals must shift its focus to determine if the board's decision is arbitrary, capricious, or legally permissible in light of the hearing officer's finding of fact. Adams County Sch. Dist. 50 v. Heimer, 919 P.2d 786 (Colo. 1996).

Attorney fees awarded to school district pursuant to subsection (10)(e) because teacher's appeal of dismissal "lacked substantial justification". Court applied the meaning of 13-17-102 (2) and (4) and awarded attorney fees because: (1) Hearing officer found multiple grounds for dismissal; (2) teacher raised several issues for the first time on appeal; and (3) there was no justifiable legal basis to contest the hearing officer's conclusion of neglect of duty and insubordination. Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo. App. 2002).

IV. REMEDIES FOR WRONGFUL DISMISSAL.

If wrongfully dismissed, the teacher's remedy is an action for damages. Sch. Dist. No. 1 v. Carson, 9 Colo. App. 6, 46 P. 846 (1896).

Damages equal to remaining salary under contract. Where a teacher is discharged, without cause shown, as provided by this section, he is entitled to salary for the balance of the term of his contract. Sch. Dist. No. 25 v. Youberg, 77 Colo. 202, 235 P. 351 (1925).

School superintendent may receive damages. Where a school superintendent who is regularly employed, and who is ready, willing, and able to perform his duties, including teaching, but is denied the privilege by his employer, he is entitled to his damages thereby sustained. Cheyenne County High Sch. v. Graves, 87 Colo. 52, 284 P. 1026 (1930).

Damages may be minimized by showing amount teacher earned or could have earned during remaining period of contract. Where the teacher has made out a cause of action for wrongful discharge, which is supported by the evidence, the only thing left for the board of education to do, in order to prevent full recovery by the teacher for the remaining time under the contract, is to diminish the sum by introducing evidence, if it could, showing the teacher had earned other money during that period, or that he had remained idle and made no reasonable effort to find other employment, which facts, if proven, could be used by the board to minimize the loss for which it was liable. Sch. Dist. No. 3 v. Nash, 27 Colo. App. 551, 140 P. 473 (1914).

A school teacher, wrongfully discharged, and securing employment in a different locality, is entitled to an allowance for expenses reasonably incurred in seeking new employment and for an increase in his expenses, occasioned by the removal to the new locality; and he may show such increase in his expenses, without pleading it, but the expense of removing the teacher's family to the new locality cannot be considered unless specially pleaded. Sch. Dist. No. 3 v. Nash, 27 Colo. App. 551, 140 P. 473 (1914).


PART 4
COMPENSATION