DeKoevend v. Board of Educ. of West End School Dist. RE-2

• Decision Date: 01 July 1982
• Docket Number: K,RE-2,M,No. 80CA0150,80CA0150
• Parties: 7 Ed. Law Rep. 727 John F. DeKOEVEND, Petitioner, v. BOARD OF EDUCATION OF WEST END SCHOOL DISTRICTay Crane, Bill Gabriel, Ben Kilgore, Sam Puderbaugh, and Lowell Watson, as members of the Board of Education of West End School Districtontrose County, State of Colorado, Respondents. . II
• Court: Colorado Court of Appeals

Page 743

653 P.2d 743

7 Ed. Law Rep. 727

John F. DeKOEVEND, Petitioner, v. BOARD OF EDUCATION OF WEST END SCHOOL DISTRICT RE-2, Kay Crane, Bill Gabriel, Ben Kilgore, Sam Puderbaugh, and Lowell Watson, as members of the Board of Education of West End School District RE-2, Montrose County, State of Colorado, Respondents.

No. 80CA0150.

Colorado Court of Appeals,

Div. II.

July 1, 1982.

Rehearing Denied July 22, 1982.

Certiorari Granted Nov. 8, 1982.

Dennis E. Valentine, Denver, for petitioner.

Miller & Swearingen, Reese Miller, Richard B. Wagner, Denver, for respondents.

KELLY, Judge.

John DeKoevend was dismissed from his tenured teacher position pursuant to §§ 22-63-116 and 22-63-117, C.R.S.1973, and seeks review of that dismissal in this court pursuant to § 22-63-117(11), C.R.S.1973 (1981 Cum.Supp.). We affirm.

Petitioner was a tenured teacher of fifth and sixth grades at West End School District RE-2 in Montrose County. The superintendent of the District recommended the dismissal of petitioner on August 14, 1979. The charges against DeKoevend included improper physical contact with students, use of improper language toward students, use of improper teaching techniques, failure to maintain proper classroom discipline, and failure to conform to administrative directives.

A hearing was held pursuant to § 22-63-117, C.R.S.1973 (1981 Cum.Supp.). The hearing officer found that, although DeKoevend's physical contact with the students was not sexually provocative, his failure to maintain classroom discipline and to conform to administrative directives constituted neglect of duty and insubordination sufficient to justify dismissal. Respondents, acting as members of the Board of Education (the Board), considered the hearing officer's findings and recommendations in December 1979, and decided to dismiss DeKoevend.

DeKoevend alleges that the hearing officer's findings were insufficiently specific to form a basis for the Board's decision, that there is insufficient evidence to sustain the hearing officer's findings, that his dismissal cannot be based in part upon incidents prior to the school year during which he was dismissed, that the school principal had no authority to set school policy, and that the attendance of the principal and superintendent at the Board's executive session was improper.

I.

In Ricci v. Davis, Colo., 627 P.2d 1111 (1981), the Supreme Court provided guidance concerning the degree of specificity required in the findings of the hearing officer (formerly a three-member panel). In that case, the panel's findings supplied little more than the "irreducible minimum of factual detail needed to enable 'the board, and a court on judicial review, [to] fairly and reasonably determine whether the facts justify dismissal on the charged statutory grounds.' Blair v. Lovett, [196 Colo. 118, 582 P.2d 668 (1978) ]." Ricci, supra, 627 P.2d at 1120, fn. 9. After comparing the findings in Ricci with the findings in the instant case, we conclude that they contain sufficient detail to support the Board's action. In addition, our review of the record reveals sufficient evidence to sustain the hearing officer's findings.

II.

DeKoevend's contention that his dismissal cannot be based in part upon incidents in past school years is without merit. "Rather than being irrelevant, a history of prior disciplinary measures has probative value in deciding whether dismissal for cause is warranted." Robertson v. Board of Education, 39 Colo.App. 462, 570 P.2d 19 (1977). Prior warnings and failure to conform thereto may properly be considered by the Board as evidence of incompetency, insubordination, or other statutory grounds for dismissal found in § 22-63-116, C.R.S.1973.

III.

DeKoevend asserts that the principal lacked the authority to adopt policies, rules, and regulations to implement school policy. We disagree.

The duties of a principal are set forth in § 22-32-126, C.R.S.1973. The statute provides that the principal shall supervise the operation and management of the school, assume administrative responsibilities and instructional leadership for the planning, management, operation, and evaluation of the educational program, and perform such other duties as may be assigned by the superintendent. These administrative responsibilities could not be carried out if the principal was unable to promulgate rules and enforce them.

DeKoevend's reliance on Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967), is misplaced. In that case, a booklet signed by the superintendent contained a rule permitting "reasonable corporal punishment." In reversing the dismissal of a teacher who had "manhandled" a student only once, the court noted that the evidence did not establish whether "the matters and things contained in the booklet were regularly enacted as rules by the school board." The authority of the school board to promulgate such rules was not questioned. Here, the principal had the authority to promulgate rules.

IV.

DeKoevend finally argues that the attendance of the principal and the superintendent at the executive session of the Board was improper. Although § 22-32-108, C.R.S.1973, permits the Board to invite non-members to its executive sessions, this section is limited by Weissman v. Board of Education, 190 Colo. 414, 425, 547 P.2d 1267, 1276 (1976). In Weissman, the Board's attorney, who had prosecuted the dismissal action, was included in the executive session of the Board. The Supreme Court held that, in the future, the Board's attorney "should not be present during the Board's deliberations ... in order to avoid any appearance of impropriety or unfairness."

Since the decision of the Board must be based solely on the fact-findings of the hearing officer, Ricci, supra, the Board could not properly question the principal or the superintendent concerning hearing testimony or other facts outside the record. Cordova v. Lara, 42 Colo.App. 483, 600 P.2d 105 (1979). However, here, as in Weissman, there was substantial evidence supporting the Board's decision, neither the principal nor the superintendent cast a vote, and no substantial prejudice was shown. Accordingly, we follow the Weissman rule and decline to reverse.

The order of dismissal is affirmed.

VAN CISE, J., concurs.

BERMAN, J., dissents.

BERMAN, Judge, dissenting.

I respectfully dissent.

The due process rights of this teacher were violated when the Board "retired in private to deliberate regarding his employment" accompanied by the principal and superintendent who had testified as adverse witnesses against the teacher during the evidentiary hearing. See Weissman v. Board of Education, infra; Commonwealth Department of Education v. Oxford Area School District, 24 Pa.Cmwlth. 421, 356 A.2d 857 (1976). Immediately following the closed meeting ("executive session") the Board returned to the public meeting and voted for dismissal of the teacher without any further discussion.

"The essence of procedural due process is fundamental fairness." Mountain States Telephone & Telegraph Co. v. Department of Labor & Employment, 184 Colo. 334, 520 P.2d 586 (1974). It serves the dual purpose of conveying to the individual the feeling that he has been treated fairly, as well as minimizing the risk of a mistake in deprivation of a property interest. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed. 252 (1978).

In Gonzales v. McEuen, 435 F.Supp. 460 (C.D.Cal.1973), the court held that high school students had been deprived of due process of law when the superintendent, who by statute was chief adviser of the Board, sat with the Board during its deliberations on the issue of the expulsion of the students. The court noted that the superintendent was also "the chief of the 'prosecution' team, to wit, the District." The court based its conclusion on the following analysis:

"Defendants' counsel maintain that Mr. McEuen [superintendent] did not participate in the deliberations and did no more, perhaps, than serve cookies and coffee to the Board members. Whether he did or did not participate, his presence to some extent might operate as an inhibiting restraint upon the freedom of action and expression of the Board. Defendants argue that there is no evidence that Mr. McEuen influenced or biased the Board. Proof of subjective reasoning processes are incapable of corroboration or disproval. Plaintiffs should not be forced to rely upon the memory or sense of fairness of Superintendent McEuen or the Board as to what occurred there. Perhaps Mr. McEuen's physical presence in deliberation becomes more offensive because of the pre-hearing comments which showed something less than...