Feldewerth v. Joint School District 28-J, 98CA2279.

• Citation: 3 P.3d 467
• Decision Date: 09 December 1999
• Docket Number: No. 98CA2279.,98CA2279.
• Parties: James J. FELDEWERTH, II, Plaintiff-Appellee, v. JOINT SCHOOL DISTRICT 28-J OF the COUNTIES OF ADAMS AND ARAPAHOE, By and Through its Superintendent of Schools, David L. HARTENBACH, Ed.D., in his official capacity; The Board of Education of Joint School District 28-J of the Counties of Adams and Arapahoe, by and through Barbara Johnson, Patricia P. Lord, Larry L. Yates, Madolyn L. Paroske, John B. Richards, and Barbara Yamrick, all in their official capacity as the individual members of the Board of Education of Joint School District 28-J of the Counties of Adams and Arapahoe, Defendants-Appellants.
• Court: Colorado Court of Appeals

3 P.3d 467

James J. FELDEWERTH, II, Plaintiff-Appellee, v. JOINT SCHOOL DISTRICT 28-J OF the COUNTIES OF ADAMS AND ARAPAHOE, By and Through its Superintendent of Schools, David L. HARTENBACH, Ed.D., in his official capacity; The Board of Education of Joint School District 28-J of the Counties of Adams and Arapahoe, by and through Barbara Johnson, Patricia P. Lord, Larry L. Yates, Madolyn L. Paroske, John B. Richards, and Barbara Yamrick, all in their official capacity as the individual members of the Board of Education of Joint School District 28-J of the Counties of Adams and Arapahoe, Defendants-Appellants.

No. 98CA2279.

Colorado Court of Appeals, Div. II.

December 9, 1999.

Rehearing Denied January 6, 2000.

Certiorari Denied June 19, 2000.

Holland, Kaplan and Pagliuca, P.C., Brian K. Holland, Denver, Colorado, for Plaintiff-Appellee.

Caplan and Earnest LLC, Alexander Halpern, Mark B. Wiletsky, Boulder, Colorado, for Defendants-Appellants.

Opinion by Judge CRISWELL.

In this C.R.C.P. 106(a)(4) proceeding, the defendant, Joint School District 28-J (district), appeals from the judgment of the district court that vacated the district's order dismissing plaintiff, James J. Feldewerth, II, as an assistant principal. We reverse and remand with directions to dismiss plaintiff's complaint.

The record that was made before the board of education (board) prior to plaintiff's termination, discloses that in the spring of 1997 various allegations were made against plaintiff, centered upon his alleged relationship with and conduct towards teachers, other staff members, and students. Because of the nature of those allegations, plaintiff was placed on administrative leave, and the district engaged outside fact-finders to investigate the factual bases for those allegations. Based upon the findings set forth in their written report, charges, looking towards his dismissal, were later filed against plaintiff, and he was ultimately dismissed by the board in January 1998.

During this investigation and afterwards, plaintiff was represented by the same counsel who now appear for him in this court. This representation included negotiating with the board's attorney in an attempt to settle the controversy without a formal dismissal hearing. These negotiations went on for several months before the charges against plaintiff were formally filed.

When no settlement agreement had been reached, charges were filed with the board on December 11, 1997, and plaintiff's counsel was advised of that fact. According to an affidavit presented to the board, counsel for the board spoke by telephone with plaintiff's attorney several days later, and he asked if counsel would accept delivery of certain documents directly. When counsel agreed to accept them, they were delivered to his office later that day, December 18, 1997.

In addition, the board was told that, in an earlier court hearing, plaintiff's attorney had admitted that plaintiff had personally received the documents for his review on the following day, December 19, 1997. Counsel's affidavit also avers that, as a result of this conversation and later delivery of documents, no effort was made to send the documents to plaintiff by certified mail.

Negotiations continued between the parties after this delivery, but plaintiff failed to file any objections with the board within the time specified by the statute. Consequently, on January 7, 1998, the board's attorney notified plaintiff's counsel that, while settlement discussions could still continue, it would be necessary for plaintiff to show good cause to the board for his failure to file timely objections to have a hearing upon those charges.

In response, plaintiff's counsel sent a letter to the district's superintendent in which he generally objected to the proposed dismissal and requested a hearing. In addition, plaintiff commenced a lawsuit against the district, seeking to enjoin it from terminating him. A court hearing was held on plaintiff's request for preliminary injunction shortly before the later board hearing was held the same day. Both plaintiff and his attorney testified, after which that request was denied. The present record does not disclose the ultimate disposition of plaintiff's complaint in that case.

Both plaintiff and his counsel also later appeared before the board in support of his request for a hearing, and he and the board's attorney presented to the board the information summarized above. Thereafter, the board denied his request for a hearing.

Plaintiff then commenced this action pursuant to C.R.C.P. 106(a)(4) to have the court review the board's decision. He asserted that the board's action was improper because: (1) the board's failure to send the documents required by statute to be delivered to him by certified mail meant that the board did not have jurisdiction to proceed, (2) the board itself had no authority to conduct a good cause hearing, but this issue was required to be referred to a hearing officer, and (3) the board was required to adopt a remediation plan for plaintiff before it could terminate him.

In ordering that the board's order of dismissal be vacated, the district court addressed only the first of these issues. In considering that issue, the court concluded that, even though providing the documents to plaintiff's counsel may have imputed notice to plaintiff, such service "did not comply with the strict technical requirements" of the pertinent statute. Hence, it concluded that the board "did not properly invoke jurisdiction over the dismissal action" because of its failure to comply with those requirements.

I.

Both parties agree that plaintiff's action here was properly brought and maintained under C.R.C.P. 106(a)(4) to review the action of a tribunal exercising "quasi-judicial functions." We accept that premise for purposes of our analysis of the issues presented.

However, the parties disagree as to the standard of review that we must apply to the district court's judgment. Plaintiff asserts that we must affirm that judgment unless we conclude that the district court abused its discretion. The district, on the other hand, argues that, in this C.R.C.P. 106(a)(4) action, in which the trial court decided the issues solely on the record made before the lower tribunal, this court must review the cause on a de novo basis. We agree with the district.

C.R.C.P. 106(a)(4)(I) is specific in requiring that the reviewing court decide whether the lower tribunal exceeded its jurisdiction or abused its discretion "based on the evidence in the record before the defendant body or officer." In such a case, therefore, the reviewing court engages in no fact finding; it exercises the same type of review of the tribunal's decision that an appellate court engages in when it reviews a trial court's decision based upon conflicting evidence. See Coleman v. Gormley, 748 P.2d 361 (Colo. App.1987) (in C.R.C.P. 106(a)(4) action, it is lower tribunal and not court that has authority to determine facts).

Further, because the district court exercises no fact finding authority in such cases, the appellate court engages in the same type of record review as did the trial court. It is not, therefore, bound by any determination made by the trial court, but it reviews the issues presented to that court on a de novo basis. See City of Colorado Springs v. Givan, 897 P.2d 753 (Colo.1995) (C.R.C.P. 106(a)(4) action to review propriety of discharge of municipal employee); Empiregas, Inc. v. Pueblo County Court, 713 P.2d 937 (Colo.App.1985) (C.R.C.P.106(a)(4) review of county court action).

Plaintiff's reliance upon Frey v. Adams County School District No. 14, 804 P.2d 851 (Colo.1991), is misplaced. There, because a tenured teacher's certificate had expired, the school board terminated her employment without filing charges or holding a hearing. The teacher sought review in this court under the predecessor of what is now § 22-63-302(10)(b), C.R.S.1999. This court dismissed the petition for review, Frey v. Adams County School District No. 14, 771 P.2d 27 (Colo. App.1989), and the supreme court affirmed on the basis that this court lacks jurisdiction to review a teacher's termination unless the procedures set forth in the pertinent statutes are followed. In doing so, the supreme court noted that, in a case in which those procedures have been ignored, the teacher's proper means of obtaining relief is from the district court under C.R.C.P. 106. The action in Frey, therefore, was not brought under C.R.C.P. 106(a)(4).

Further, unlike Frey, the board here did, indeed, hold a show cause hearing to determine whether plaintiff would be allowed a further hearing on the merits of his objections. While abbreviated, that hearing resulted in the production of a substantial record that the trial court reviewed, and neither party sought to produce further live testimony before the trial court. See Grant v. District Court, 635 P.2d 201 (Colo.1981) (if record insufficient, action should be under C.R.C.P. 57, not under C.R.C.P. 106(a)(4)).

We conclude, therefore, that our review of the board's action in denying a further hearing to plaintiff should be on a de novo basis, and we do not defer to the trial court's resolution of the issues presented.

II.

The district asserts that the trial court erred in concluding that a school board's failure to provide a teacher with notice of charges by means of certified mail, rather than by other, more certain, means of notification, deprives that board of jurisdiction to dismiss a teacher. We agree.

A.

The Colorado Teachers Employment, Compensation, and Dismissal Act of 1990 (the Act), § 22-63-101, et seq., C.R.S.1999, provides that a teacher shall be on probation for the first three years of his or her employment, during which period the superintendent and the board may elect not to renew that teacher's contract for any reason they consider sufficient. While such a probationary teacher may receive a...