Forbes v. Poudre School Dist. R-1, R-1

• Decision Date: 23 April 1990
• Docket Number: A,R-1,No. 88SA352,88SA352
• Citation: 791 P.2d 675
• Parties: 60 Ed. Law Rep. 957 Kenneth E. FORBES, Appellant and Cross-Appellee, v. POUDRE SCHOOL DISTRICTppellee and Cross-Appellant.
• Court: Colorado Supreme Court

Page 675

791 P.2d 675

60 Ed. Law Rep. 957

Kenneth E. FORBES, Appellant and Cross-Appellee, v. POUDRE SCHOOL DISTRICT R-1, Appellee and Cross-Appellant.

No. 88SA352.

Supreme Court of Colorado En Banc.

April 23, 1990.

As Modified June 1, 1990.

Larry F. Hobbs, P.C., Larry F. Hobbs and Kay R. McKim, Denver, for appellant and cross-appellee.

Caplan and Earnest, Gerald A. Caplan, Alexander Halpern and Alan J. Canner, Boulder, for appellee and cross-appellant.

Justice KIRSHBAUM delivered the Opinion of the Court.

Kenneth E. Forbes, appellant, has appealed an order of the Poudre School District R-1 (the District), acting through its Board of Education (the Board), that he be placed on a one-year period of probation while carrying out his responsibilities as a tenured teacher at Rocky Mountain High School. Forbes asserts that the Board had no authority under sections 22-63-101 to -118, 9 C.R.S. (1988), of the Teacher Tenure Act (hereinafter the Act) to place him on probation. ¹ The Board has filed a cross-appeal asserting that the appeal must be dismissed because Forbes failed to name the Board as a party to the appeal. ² We reverse the Board's order.

I

The basic facts giving rise to this controversy are not in dispute. They were determined after lengthy administrative proceedings conducted pursuant to the Act by an administrative law judge (ALJ). The ALJ entered two sets of findings and recommendations, one on April 1, 1987, consisting of forty-one pages, the other on June 18, 1987, consisting of nineteen pages. The Board has not taken exception to any of the ALJ's findings of fact.

Forbes was initially employed by the District in September of 1959. In the fall of 1973, he was appointed social studies teacher at Rocky Mountain High School. He taught various social studies courses at the high school level from 1973 to 1986.

During the 1984-85 academic year, an assistant principal at Rocky Mountain High School performed an evaluation of Forbes' teaching skills. The evaluation recommended retention of Forbes but indicated that improvement was needed in five areas relating to competence and teaching methods.

During that same academic year, the Board employed a new principal at the high school, Thomas MacKenzie. In August 1985, MacKenzie asked Forbes to prepare and submit an improvement plan. On September 25, 1985, after making three observations of Forbes' classes, MacKenzie met with the attorney then advising the District apparently to seek advice on how to dismiss Forbes.

After that meeting MacKenzie became increasingly critical of Forbes' conduct. On February 10, 1986, MacKenzie informed Forbes that he believed Forbes should not continue at the school. Forbes requested a sabbatical leave on February 15, 1986, to take courses to update his teaching methods to satisfy MacKenzie's demands. Although his name was initially included on a list of teachers nominated for such leave, the District's superintendent of schools took the unprecedented step of removing Forbes' name from the list.

In March 1986, MacKenzie created a "help team" consisting of himself, the administrator who had performed the 1984-85 evaluation, and three other members to monitor Forbes' performance. On March 7, 1986, MacKenzie informed Forbes of the formation of the help team, directed Forbes to submit lesson plans on a daily basis, and gave Forbes an evaluation form recommending Forbes' dismissal.

In May 1986, the help team formally determined that Forbes should be dismissed. On September 17, 1986, the superintendent of the District issued a charging letter recommending Forbes' dismissal on grounds of "incompetence, neglect of duty, insubordination and good and just cause." The Board accepted the charges on September 22, 1986, and suspended Forbes with pay the next day. Forbes requested an administrative hearing concerning the Board's action, pursuant to section 22-63-117(3) of the Act and an administrative proceeding commenced before the ALJ on January 5, 1987.

On April 1, 1987, the ALJ issued detailed findings and recommendations to the effect that the evidence did not support the charges filed against Forbes. The ALJ concluded that the District failed to establish incompetency, insubordination, neglect of duty, or any other cause for dismissal ³ and recommended that Forbes be retained. With respect to the alleged incompetence of Forbes, the ALJ found that although Forbes did not employ certain methods and theories preferred by MacKenzie, the teaching methods Forbes used were effective in the classroom. With regard to the charge of insubordination, the ALJ found that Forbes "was slow to follow some instructions given by a person legally unauthorized to give them." ⁴ With regard to the charge of alleged neglect of duty, the ALJ specifically found that "at most, the District proved a minor past pattern of impromptitude." The ALJ also found that MacKenzie probably made up his mind in late September of 1985 to seek Forbes' dismissal and that his subsequent conduct was designed to achieve that goal.

On April 27, 1987, the Board reviewed the ALJ's findings and recommendations, determined that certain of those findings were not supported by the record, and remanded the matter to the ALJ for further review of the following matters:

1. The frequency of the teacher's tardiness for classes from 1980 through the time of the teacher's suspension from duty on Sept. 22, 1986, including the amounts of time, if any, the teacher was late and

2. For the same period, the frequency and duration of periods when the teacher left his classroom unattended.

The Board also directed the ALJ to review certain evaluations of Forbes made by members of the help team.

After reexamining the record of the hearing, the ALJ issued supplemental findings and recommendations on June 18, 1987. The ALJ concluded that specific criticisms of Forbes enunciated by the members of the help team should be accorded little or no credibility because the group was formed to document MacKenzie's charges of incompetency rather than to impartially evaluate or assist Forbes. The ALJ specifically found that allegations that Forbes was excessively tardy and that without justification left his classroom unattended were not supported by the evidence. The ALJ again concluded that the evidence did not support the sanction of dismissal and recommended Forbes' retention.

On August 3, 1987, the Board entered its final order. The Board specifically found that "the record does not support an ultimate finding of fact requiring dismissal." However, the Board also stated that Forbes' conduct constituted "serious neglect of duty" and ordered that Forbes "be placed on a one-year probation for the 1987-88 school year subject to the terms and conditions of this resolution and that any violations will constitute an independent ground for additional disciplinary action." It gave no reasons for this determination, stating only its opinion that it was authorized by "Colorado statutes governing tenure proceedings" to place Forbes on probation.

II

Forbes argues that the findings of evidentiary fact entered by the ALJ and adopted by the Board do not support the imposition of probation. The Board contends that a determination in the course of administrative proceedings instituted under the Act to place a tenured teacher on probation need not be based on the findings of fact made by the ALJ during such proceedings. Alternatively, the Board argues that the order in this case is supported by the ALJ's evidentiary findings. We agree with Forbes and reject the Board's contentions.

A

We have previously observed that the Act is designed in part to provide a tenured teacher with a fair and responsible process of administrative adjudication when a school board accepts formal charges that the teacher's conduct warrants dismissal. Blaine v. Moffat County School Dist. RE-1, 748 P.2d 1280, 1286 (Colo.1988); Blair v. Lovett, 196 Colo. 118, 122-23, 582 P.2d 668, 671 (1978); Umberfield v. School Dist. No. 11, 185 Colo. 165, 171-72, 522 P.2d 730, 733 (1974). Before a teacher may be disciplined under the Act, formal administrative proceedings must be initiated by means of a written recommendation containing specific charges against the teacher. § 22-63-117(1). A school board may reject the charges, but if it accepts the charges the teacher is entitled to have them determined by an independent ALJ after an evidentiary administrative proceeding. § 22-63-117(5). Only upon the conclusion of such administrative process is a board authorized to take any action against a tenured teacher. § 22-63-117(10). During the administrative process the party asserting charges against a teacher has the burden of establishing those charges by a preponderance of the evidence. Nordstrom v. Hansford, 164 Colo. 398, 435 P.2d 397 (1967).

Under section 22-63-117(10) of the Act, evidentiary findings entered by an ALJ are binding on the reviewing school board if supported by the record and the board may not go beyond the four corners of those findings to discover some new evidentiary basis for an ultimate determination. Blaine, 748 P.2d at 1288; deKoevend v. Board of Educ., 688 P.2d 219, 225-26 (Colo.1984); Ricci v. Davis, 627 P.2d 1111, 1116-17 (Colo.1981). The Act also requires the ALJ to make independent findings of ultimate fact and to recommend either dismissal or retention of the teacher. § 22-63-117(8); Blaine, 748 P.2d at 1287. A school board has the responsibility to make its own ultimate findings of fact, which may differ from the ultimate findings of fact entered by the ALJ, but any ultimate findings entered by a board must be fully warranted by the evidentiary findings determined by the ALJ. Id. at 1291; see Suley v. Board of Educ. of Jefferson County School District No. R-1, 633 P.2d 482 (Colo.App.1981), cert. denied. If a board adopts an ultimate finding of fact recommending dismissal contrary to the ALJ's recommendation of retention,...