Johnson v. Sch. Dist. No. 1 in the Cnty. of Denver

• Decision Date: 12 March 2018
• Docket Number: Supreme Court Case No. 15SA281
• Citation: 413 P.3d 711
• Parties: Lisa M. JOHNSON, Plaintiff-Appellant, v. SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER and State of Colorado and Board of Education of School District No. 1 in the County of Denver and State of Colorado, Defendants-Appellees.
• Court: Colorado Supreme Court

413 P.3d 711

Lisa M. JOHNSON, Plaintiff-Appellant,

v.SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER and State of Colorado and Board of Education of School District No. 1 in the County of Denver and State of Colorado, Defendants-Appellees.

Supreme Court Case No. 15SA281

Supreme Court of Colorado.

March 12, 2018

Attorneys for Plaintiff-Appellant: Colorado Education Association, Kris Gomez, Sharyn E. Dreyer, Denver, Colorado, National Education Association, Alice O'Brien, Eric A. Harrington, Washington, DC

Attorneys for Defendants-Appellees: Semple, Farrington & Everall, P.C., M. Brent Case, Holly Ortiz, Jonathan P. Fero, Mary B. Gray, Denver, Colorado

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.^*

¶1 We accepted jurisdiction over two certified questions of law from the United States Court of Appeals for the Tenth Circuit.¹ See C.A.R. 21.1. The questions stem from an action brought by teacher Linda Johnson against Denver School District No. 1 ("the District") and the District's Board of Education, in which Johnson argues that by placing her on unpaid leave, the District breached her contract and violated her due process rights. The federal district court concluded that because Johnson was placed on unpaid leave, rather than terminated, she was not deprived of a property interest.

Johnson v. Sch. Dist. No. 1, No. 12-CV-02950-MSK-MEH, 2014 WL 4462999, at *5–6 (D. Colo. Sept. 10, 2014). Johnson appealed that decision to the Tenth Circuit, which then certified the questions of law to us.

¶2 To answer the certified questions we examine the history of and the amendments to the statutes governing the processes for teacher hiring, transfer, and termination. In particular, we look to whether paragraph (c.5) in section 22-63-202(2), C.R.S. (2017)—which provides in subparagraph (IV) that a district may place nonprobationary teachers who are unable to secure a mutual-consent assignment on unpaid leave—applies either (1) to all nonprobationary teachers, or (2) only to those who are displaced for certain reasons enumerated in subparagraph (VII), which can be characterized as enrollment- or program-based decisions. We also look to whether a nonprobationary teacher placed on unpaid leave has a property interest in salary and benefits such that her placement on unpaid leave deprives her of a state property interest. After analyzing the statutory history and the current statutory language, we hold that the provisions of section 22-63-202(2)(c.5) apply to all displaced nonprobationary teachers, not just nonprobationary teachers who are displaced because of a reduction in enrollment or an administrative decision to eliminate certain programs—that is, the reasons stated in subparagraph (VII). We further hold that nonprobationary teachers who are placed on unpaid leave have no vested property interest in salary and benefits, meaning a nonprobationary teacher who is placed on unpaid leave under subparagraph (IV) is not deprived of a state property interest.

I. Facts and Procedural History

¶3 Over fifty years ago, the General Assembly enacted the Teacher Employment, Dismissal, and Tenure Act of 1967 ("TEDTA"). Ch. 435, sec. 1, §§ 123-18-1 to - 18, 1967 Colo. Sess. Laws 976. Among other things, TEDTA reaffirmed the then-existing status of a "tenure teacher" that had been codified in the Teacher Tenure Act of Colorado, ch. 212, sec. 3, 1953 Colo. Sess. Laws 559, 559–60. § 22-63-102(11), C.R.S. (1988).² Under TEDTA, a teacher who maintained continuous employment in the same school district for three academic years became tenured upon being retained for a fourth academic year. § 22-63-112(1), C.R.S. (1988). With limited exceptions, a tenured teacher was "entitled to a position of employment as a teacher" during her continuous service in the district where she became tenured. § 22-63-115(1), C.R.S. (1988). TEDTA permitted dismissal of a tenured teacher only for certain, enumerated reasons that qualify as good cause:

The grounds for dismissal of a tenure teacher shall be physical or mental disability

, incompetency, neglect of duty, immorality, conviction of a felony or the acceptance of a guilty plea or a plea of nolo contendere to a felony, insubordination, or other good and just cause. No tenure teacher shall be dismissed for temporary illness, leave of absence previously approved by the board, or military leave of absence pursuant to article 3 of title 28, C.R.S.

§ 22-63-116, C.R.S. (1988). TEDTA also established procedures to dismiss a tenured teacher. See § 22-63-117(1)–(11), C.R.S. (1988). TEDTA remained the law for more than twenty years.

¶4 But the General Assembly supplanted TEDTA by enacting the Teacher Employment, Compensation, and Dismissal Act of 1990 ("TECDA"). Ch. 150, sec. 1, §§ 22-63-101 to –403, 1990 Colo. Sess. Laws 1117. Unlike its predecessor, TECDA did not define "tenure teacher"; in fact, it mentioned the word "tenure" only once (and in a manner irrelevant to the questions before us).³ Compare §§ 22-63-101 to - 118, C.R.S. (1988), with §§ 22-63-101 to - 403, C.R.S. (1990). Instead, TECDA created a distinction between "probationary" and "nonprobationary" teachers, defining the former as "a teacher who has not completed three full years of continuous employment with the employing school district and who has not been reemployed for the fourth year." § 22-63-103(7), C.R.S. (1990). But TECDA retained TEDTA's language on transferring teachers within a school district, providing that "[a] teacher may be transferred upon the recommendation of the chief executive officer of a school district from one school ... to another within the school district," so long as the teacher is qualified for her new position and does not suffer a salary reduction. Compare § 22-63-114(1), C.R.S. (1988), with § 22-63-206(1), C.R.S. (1990). And it retained for-cause grounds for teacher dismissal and a dismissal procedure. See §§ 22-63-301 to - 302, C.R.S. (1990).

¶5 Twenty years after it enacted TECDA, the General Assembly enacted Senate Bill 10-191 ("SB 191"). Ch. 241, 2010 Colo. Sess. Laws 1053. As relevant here, SB 191 amended the TECDA sections that pertain to employment contracts and teacher transfer. To the section that governs employment contracts, section 22-63-202, SB 191 added paragraph (c.5). Under that new paragraph, "each employment contract ... shall contain a provision stating that a teacher may be assigned to a particular school only with the consent of the hiring principal and with input from at least two teachers employed at the school." § 22-63-202(2)(c.5)(I), C.R.S. (2017). SB 191 labels such an assignment a "mutual consent assignment." E.g., § 22-63-202(2)(c.5)(IV). Also under paragraph (c.5), nonprobationary teachers who have not secured a mutual-consent assignment but who were deemed effective during the prior school year become members of a "priority hiring pool," ensuring them the first opportunity to interview for a "reasonable number of available positions for which [they are] qualified in the school district." § 22-63-202 (2)(c.5)(III)(A). But if a nonprobationary teacher fails to secure a position after the longer of twelve months or two hiring cycles, the teacher is placed on unpaid leave until she secures an assignment.⁴ § 22-63-202(2)(c.5)(IV). Finally, subparagraph (VII) of paragraph (c.5) provides that this new paragraph "shall apply to any teacher who is displaced as a result of drop in enrollment; turnaround; phase-out; reduction in program; or reduction in building, including closure, consolidation, or reconstitution." § 22-63-202 (2)(c.5)(VII).

¶6 Furthermore, to the section that governs teacher transfer, section 22-63-206, SB 191 made a single alteration: the addition of subsection (5). In that subsection, the General Assembly clarified that "[n]othing in [ section 22-63-206 ] shall be construed as requiring a receiving school to involuntarily accept the transfer of a teacher. All transfers to positions at other schools of the school district shall require the consent of the receiving school." § 22-63-206(5), C.R.S. (2017).

¶7 In sum, TECDA—the law in effect since 1990, as amended by SB 191 in 2010—is devoid of tenure-related language. See §§ 22-63-101 to - 403. It instead distinguishes between "probationary" and "nonprobationary" teachers, § 22-63-103(7), and lacks any system of forced teacher placement. Indeed, under TECDA's mutual-consent assignment process, teacher contracts shall provide that a "teacher may be assigned to a particular school only with the consent of the hiring principal and with input from at least two teachers employed at the school." § 22-63-202(2)(c.5)(I). A teacher who is unable to secure a mutual-consent assignment for the longer of twelve months or two hiring cycles is placed on unpaid leave. § 22-63-202(2)(c.5)(IV). The unpaid-leave provision is the focal point of the questions before us.

¶8 Lisa Johnson, the plaintiff in the federal action, argues that a nonprobationary teacher who is placed on unpaid leave pursuant to SB 191's provisions suffers a breach of contract under TECDA and a deprivation of due process. Johnson is a nonprobationary teacher who has taught for the District since 1991.⁵ In June 2008, the District issued a written recommendation to dismiss Johnson from the Godsman Elementary School for performance-related reasons. Following a hearing, an administrative law judge entered an order recommending that the District retain Johnson. The District, in response, entered an order retaining Johnson for a one-year probationary period.⁶ It then assigned Johnson to a temporary, one-year position for the 2009–10 school year. During that year, Johnson unsuccessfully applied for a long-term position through the District's school-based hiring process. The District assigned Johnson to a second one-year position at the same school for the 2010–11 school year, during which time she was again unable to obtain a long-term position through the District's school-based hiring...