Ricci v. Davis, 79

• Decision Date: 04 May 1981
• Docket Number: No. 79,79
• Citation: 627 P.2d 1111
• Parties: Richard RICCI, Plaintiff-Appellant, v. William A. DAVIS, Glenna G. James, Douglas A. Johnson, Edward L. Lord, T. H. Pickens, Doyle K. Seawright, individually and as members of the Board of Education of Joint School District 28-J of the Counties of Adams and Arapahoe, Aurora, Colorado, a/k/a Aurora Public Schools, Defendants-Appellees. SA 386.
• Court: Colorado Supreme Court

Page 1111

627 P.2d 1111

Richard RICCI, Plaintiff-Appellant, v. William A. DAVIS, Glenna G. James, Douglas A. Johnson, Edward L. Lord, T. H. Pickens, Doyle K. Seawright,

individually and as members of the Board of Education of

Joint School District 28-J of the Counties of Adams and

Arapahoe, Aurora, Colorado, a/k/a Aurora Public Schools,

Defendants-Appellees.

No. 79 SA 386.

Supreme Court of Colorado, En Banc.

May 4, 1981.

Cirkal & Sandman, Jeffrey I. Sandman, Denver, for plaintiff-appellant.

Holland & Hart, Bruce W. Sattler, Deborah J. Friedman, Denver, for defendants-appellees.

DUBOFSKY, Justice.

Appellant Richard Ricci (Ricci), a tenured teacher, appeals from an order of the Arapahoe County District Court affirming the decision of the appellee Board of Education of Joint School District 28-J (Board), dismissing him from his teaching position at Hinkley High School in Aurora, Colorado. We affirm.

On August 22, 1977, the chief executive officer of the appellee Joint School District 28-J (District) filed written charges against Ricci with the Board. See section 22-63-117(2), C.R.S.1973. The charges read:

"You, Richard Ricci, are charged with engaging in improper and/or unprofessional conduct with females who are or were, at the time of the incidents, students at Hinkley High School, which conduct constitutes immorality or other good and just cause for your dismissal." ¹

At the time the charges were filed, the Board had received signed, notarized statements from four female students alleging that Ricci had engaged in acts of sexual misconduct with them. An accompanying memorandum from the District stated that the charges were based on the allegations of the four students and the anticipated testimony of a fifth female student. At its regular meeting on August 22, 1977, the Board resolved to accept the charges for review. See section 22-63-117(2).

Immediately thereafter, Ricci was notified of the charges against him. See section 22-63-117(3). In addition to the notice prescribed by the statute, he was also furnished with copies of the four students' written statements and a summary of the expected testimony of the fifth student.

Ricci timely requested a hearing on the charges, see section 22-63-117(3), and a teacher tenure hearing panel (Panel) was convened in accordance with the provisions of section 22-63-117(3) and (5). On August 29, Ricci filed motions to make more definite and certain the charge of "other good and just cause" and to permit him to depose the student complainants. The Panel denied these motions.

On September 16, 17, 18, and 21, 1977, the Panel heard the testimony of numerous witnesses including the five female students and admitted several exhibits into evidence. See section 22-63-117(6) and (7). On October 11, 1977, the Panel issued its findings of fact and recommended, by a majority of 2-1, that Ricci be dismissed. See section 22-63-117(8). The Panel's findings and recommendation and a transcript of the hearing, were received by the Board. Id. On October 24, 1977, the Board, by a 6-1 vote, entered a Resolution and Order of Dismissal. The Resolution recited that the Board had reviewed the Panel's findings of fact and recommendation, had "familiarized itself with such portions of the transcript of the hearing and the exhibits attached as it deem(ed) necessary" and had concluded that Ricci's conduct, as found by the Panel i. e., that "Mr. Ricci kissed a female student and was involved in other incidents in which he touched female students" constituted immorality and good and just cause for dismissal, impaired his ability to perform his duties as a teacher, indicated his general unfitness for teaching and was likely to have an adverse effect on students. See section 22-63-117(9) and (10).

Ricci filed a timely petition for judicial review of the Board's action. See section 22-63-117(11) and section 24-4-106, C.R.S.1973. On June 15, 1979, the district court affirmed the Board's Resolution and Order of Dismissal.

On appeal, Ricci challenges his dismissal on five grounds. 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 the Board from reviewing the transcript for the limited purpose of determining whether the Panel's findings are supported by competent evidence and because the record in no way suggests that the Board based its conclusions of ultimate fact on evidence outside the four corners of the Panel's findings, we hold that the Board acted within its authority when it reviewed the hearing transcript.

Second, Ricci argues that both the Panel's findings of basic fact and the Board's findings of the ultimate facts of "immorality indicating unfitness to teach" and "other good and just cause" are unsupported by substantial evidence. We reject this contention, concluding, first, that the Panel's findings are supported by competent evidence in the record as a whole and, second, that the Board's ultimate determination of immorality indicating unfitness to teach has warrant in the record and a rational basis in law.

Third, Ricci attacks the provision of section 22-63-116 authorizing dismissal of a tenured teacher for "other good and just cause" as unconstitutionally vague. Because we find that the Board validly dismissed Ricci on the independent statutory ground of "immorality" indicating unfitness to teach, we decline to reach this constitutional question.

Fourth, Ricci asserts that the statements of the four female students, submitted to the Board on or before August 22, 1977 to substantiate the charges filed by the District, comprised extra-record evidence which the Board could not constitutionally consider before entering its order of dismissal. We reject this argument, concluding that the Board's preliminary investigation comported with the due process guidelines announced in Weissman v. Board of Education, 190 Colo. 414, 547 P.2d 1267 (1976).

Finally, Ricci contends that the Panel's denial of his motions for a more definite statement and to permit discovery denied him due process of the law. Because we uphold Ricci's dismissal on grounds of "immorality" indicating unfitness to teach rather than "other good and just cause" and because we perceive no significant prejudice to Ricci from the denial of his motion to permit discovery, we hold that the Panel's actions did not constitute reversible error.

I.

Ricci first argues that the Board's admission that it "familiarized itself with such portions of the transcript of the (Panel) hearing ... as it deem(ed) necessary," evidences a departure from the procedures dictated by Blair v. Lovett, supra, and leads inexorably to the conclusion that the Board based its findings of ultimate fact on the "raw" evidence adduced before the Panel as well as or in lieu of the Panel's formal findings of basic fact. We disagree. In Blair we recognized that the legislative scheme embodied in section 22-63-117 was:

"designed to provide substantial protection for the academic freedom of teachers who have achieved tenured status. A primary facet of that protection is the availability at the teacher's request, of an evidentiary hearing panel chosen in a manner to ensure its neutrality."

196 Colo. at 122, 582 P.2d at 671. We therefore concluded:

"In order that this legislative attempt to provide a neutral forum for presentation of evidence will not be merely illusory, it is essential that the panel's role, in hearing and reviewing the evidence, be more than just advisory. Were we to hold that the board of education can disregard the panel's findings of fact and substitute its own, a significant portion, if not all, of the insulation afforded by an impartial hearing panel would be lost.

For these reasons, we hold that the panel's findings of 'basic,' or evidentiary, facts, if supported by competent evidence, are binding on the board of education. The board may not disregard those findings nor substitute its own findings."

Id., 196 Colo. at 123, 582 P.2d at 671 (emphasis added). The mischief Blair was meant to counteract is the heightened risk of biased and inaccurate fact-finding entailed by allowing a school board to overrule or supplement the hearing panel's findings of evidentiary fact on the basis of the board's perusal of a "cold" hearing transcript. However, despite an ambiguous passage, ² our holding in Blair was not intended to preclude a school board from conducting any review whatsoever of the hearing record as we intimated when we twice stated that the hearing panel's findings of evidentiary fact are binding on a school board only if they are supported by competent evidence in that record.

Properly construed, Blair held that although a school board may not conduct a full review of the record intended to supplement or supersede the hearing panel's findings of basic fact, it may review the record for the limited purpose of determining whether the panel's basic factual findings are supported by competent evidence. See Suley v. Board of Education, (Court of Appeals No. 79CA0690, announced March 19, 1981). ³ We therefore hold that is was not per se improper for the Board in this case to review "such portions of the transcript ... as it deem(ed) necessary."

However, as Blair makes clear, a school board is bound by the findings of evidentiary fact made by the hearing panel if those findings are adequately supported in the record of the panel's proceedings. A board may not usurp the panel's exclusive authority to find evidentiary facts by basing its conclusions of ultimate fact in whole or in part on "raw" evidence gleaned from its review of the hearing transcript. ⁴ Moreover, as is more fully explained in the following section of this opinion, a board's ultimate findings must be fully warranted by the basic facts embodied in the panel...