Lovett v. Blair
| Decision Date | 28 July 1977 |
| Docket Number | No. 1,No. 76-196,1,76-196 |
| Citation | 571 P.2d 731,39 Colo.App. 512 |
| Parties | Barbara J. LOVETT, Plaintiff-Appellant, v. Omar D. BLAIR, Robert L. Crider, Theodore Hackworth, Katherine W. Schomp, Bernard Valdez, Virginia Rockwell, and Naomi Bradford, Individually and as members of the Board of Education of School District, in and for the City and County of Denver, and State of Colorado, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Hobbs & Waldbaum, P. C., Jeffrey I. Sandman, Denver, for plaintiff-appellant.
Henry, Cockrell, Quinn & Creighton, Benjamin L. Craig, Denver, for defendants-appellees.
Plaintiff, Barbara Lovett, was dismissed from her employment as a tenured teacher by the defendant Board of Education of School District No. 1 in Denver. She filed a petition for review in the district court. From that court's judgment dismissing her petition, she appeals. We reverse and remand with directions.
Mrs. Lovett was suspended by the Superintendent of Schools who brought charges against her in which he recommended that she be dismissed because of her incompetency as a teacher. Thereafter, at her request, a teacher tenure panel was constituted, and after lengthy hearings and deliberation, it issued its findings of fact which can be summarized by the last sentence contained therein "that the charge of incompetency of sufficient degree to warrant dismissal has not been proven." It then unanimously recommended that Mrs. Lovett be reinstated. The board received these findings and recommendation and announced that because the findings were so "sketchy and conclusory in nature," it could not make an evaluation of the proper course of action without first examining the transcript of the proceedings conducted by the panel. The board then issued its own findings, substituting them for those of the panel, and voted unanimously to dismiss Mrs. Lovett.
Mrs. Lovett's challenge to the above procedure requires us to define the precise relationship which the General Assembly intended to create between a teacher tenure panel and a school board in proceedings to adjudicate the rights of tenured teachers under the Teacher Employment, Dismissal, and Tenure Act of 1967. We hold that in substituting its own findings for those of the panel the board misapprehended its role and function as these were envisioned and intended by the General Assembly under the 1967 Act.
In construing the statute at issue, it is fundamental that we must ascertain and give effect, if possible, to the legislative intent underlying its passage. Cross v. Colorado State Board of Dental Examiners, Colo.App., 552 P.2d 38. If, in attempting to do so, we find that the particular statutory language is unclear and ambiguous, as it is here, we may then, in order to glean some insight into the General Assembly's intent, look to the circumstances surrounding, and the history leading to, its passage. Lohf v. Casey, 330 F.Supp. 356.
Prior to 1949 the statute left to the local school board the decision of whether a tenured teacher was even entitled to a hearing prior to dismissal. Section 239, ch. 146, 1935 C.S.A. In that year, however, the General Assembly expanded the rights of tenured teachers by providing that any such teacher against whom charges had been brought was entitled, upon his request, to a hearing before the school board. Colo.Sess.Laws 1949, ch. 230. And the General Assembly manifested its continuing concern for the rights of tenured teachers when, in 1957, it enacted a statute which enabled all tenured teachers against whom proceedings had been commenced to have a hearing before a panel, one of whose members could be selected by the teacher. This panel, composed of 3 members, was empowered to hear the evidence and make findings of fact. Colo.Sess.Laws, ch. 233. We can only presume from this continuing pattern of statutory changes, resulting in a significant expansion of teacher rights, that the General Assembly intended to harness the school boards' previously unrestricted power of dismissal and to assure tenured teachers of greater protection of their rights than had previously been afforded. See Ridge Erection Co. v. Mountain States Tel. & Tel. Co., Colo.App., 549 P.2d 408.
This conclusion as to what purposes our General Assembly intended to accomplish by enacting these statutes is buttressed when we view what was happening in other areas of employee rights at the time of these enactments. See State Highway Commission v. Haase, Colo., 537 P.2d 300; People in the Interest of M.K.A., 182 Colo. 172, 511 P.2d 477. Civil service employees subject to disciplinary action were, as early as 1935, accorded the right to have written charges filed, to have the opportunity to be heard, and to seek judicial review. See § 4, ch. 36, C.S.A.1935. In 1957 the General Assembly enacted the Colorado Antidiscrimination Act with the stated purpose of protecting all employees from discriminatory and unfair employment practices. Colo.Sess.Laws 1957, ch. 176, p. 492; see State ex rel. Colorado Civil Rights Commission v. Adolph Coors Corp., 29 Colo.App. 240, 486 P.2d 43.
The courts also were moving in the direction of insuring that employees, particularly those with tenure in professional categories such as teachers, were not discharged except for good cause, impartially and fairly determined in accordance with the requirements of due process of law. In 1957 the right of a tenured teacher to continue in employment was held to be a constitutionally protected property right. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; see Note, 10 Vand.L.Rev. 139 (1957).
It was in this climate that the General Assembly enacted the Act of 1967. Its obvious purpose consistent with the emerging pattern was clear: to assure tenured teachers an impartial forum in which they could have an opportunity to defend themselves against charges alleging any of the statutory grounds for dismissal. See generally, Western Alfalfa Corp. v. Air Pollution Variance Board, 35 Colo.App. 207, 534 P.2d 796, aff'd, Colo. 553 P.2d 811; § 22-63-116, C.R.S.1973.
In furtherance of this purpose, the Act of 1967 provides that when a teacher's dismissal is sought by the chief executive officer of the district or by a member of the board, and if the board decides to accept the charges, the teacher is entitled to a hearing before a panel providing the teacher files a timely request therefor. Section 22-63-117(2)(3), C.R.S.1973. In this written request the teacher has the right to designate one member of the hearing panel. Such member shall, together with a member selected by the board, choose the third and final member. Section 22-63-117(5), C.R.S.1973. At the hearing, which is thereafter held, the teacher is afforded the right to appear with counsel; to present all evidence bearing upon the reasons for her dismissal and all school district records pertaining to her work; to cross-examine witnesses; § 22-63-117(7), C.R.S.1973, and to have a complete record and transcript made of all evidence adduced before the panel. Section 22-63-117(8), C.R.S.1973. After the panel reviews the evidence, it is required to make written findings of fact and based thereon to recommend to the board that the teacher be either dismissed or retained. Section 22-63-117(8), C.R.S.1973. The board's authority is limited to three possible alternatives: to dismiss, retain, or place the teacher on a one-year probation. Section 22-63-117(10), C.R.S.1973.
Because the statute is so explicit in enunciating the rights of tenured teachers, and because it specifically requires that, based upon the transcript and record of all the evidence, the panel make written findings of fact to be submitted to the board for review. We conclude that the General Assembly thereby intended that if there is evidence to support the panel's findings, then the board of education is bound by those findings and is not free to adopt different findings in order to discharge the teacher.
For the board to have the power to make its own findings of fact based upon its own review of the record and to thereby discard the panel's findings would be to vitiate the obvious purpose of the Act. If such were the case, the discretionary power of the board would be absolute, the panel's proceedings meaningless, and the tenured teacher would have no greater rights than were accorded a teacher prior to 1957. See Johnson v. Heggie, 362 F.Supp. 851. Indeed, by directing that a Teacher Tenure Panel, constituted in the same manner as an arbitration panel, make the findings of fact upon which dismissal must be based, the General Assembly has recognized that the board itself is not an impartial tribunal, and that its position is that of an adversary.
In summary, we hold that the Teacher Tenure Panel is essentially an independent administrative agency charged with the responsibility of finding ultimate facts. It is not merely an "evidence gathering" arm of the school board. Its duties under the statute are prescribed as, and are limited to, a determination of whether any, or all, of the statutory grounds for dismissal of "tenured teachers" exist. To that end it is granted substantially the same powers and has the same due process responsibilities as other administrative fact finding agencies. Section 22-63-117(5) and (6), C.R.S.1973. And, it being an independent agency, we hold that the determination of a Teacher Tenure Panel is subject to judicial review, either at the instance of the teacher after the board has acted, or of the school board.
The fact that the Teacher Tenure Panel has the additional responsibility of making a dispositional recommendation to the school board does not alter or affect its independence or the finality of its decision. It may recommend retention even though it has found the statutory grounds for dismissal have been proven. The school...
To continue reading
Request your trial
-
deKoevend v. Board of Educ. of West End School Dist. RE-2
...... Lee v. State Board of Dental Examiners, 654 P.2d 839, 844 (Colo.1982); Ricci, 627 P.2d at 1118; Blair v. Lovett, 196 Colo. 118, 124 n. 13, 582 P.2d 668, 672 n. 13 (1978). These findings of evidentiary fact "are binding on a board of education if ......
-
Ricci v. Davis, 79
...... First, he contends that the Board's review of portions of the hearing transcript conflicts with our holding in Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978), and impermissibly "tainted" its findings of ultimate fact. Because we do not read Blair to prohibit ......
-
Lockhart v. Board of Educ. of Arapahoe County School Dist. No. 6
...... Although only final administrative actions are reviewable by this court, § 24-4-106(2), C.R.S. (1982 Repl. Vol. 10); Lovett v. School District No. 1, 33 Colo.App. 434, 523 P.2d 152 (1974), in cases arising under the Teacher Tenure Act, the final order subject to review ... See § 22-63-101, et seq., C.R.S.; Lovett v. Blair, 39 Colo.App. 512, 571 P.2d 731 (1977), aff'd, 196 Colo. 118, 582 P.2d 668 (1978). III. Petitioner next contends that the Board erred ......
- Allen v. Charnes