Rosenberg v. Board of Educ. of School Dist. No. 1, Denver Public Schools

Citation710 P.2d 1095
Decision Date09 December 1985
Docket NumberNo. 83SC321,83SC321
Parties29 Ed. Law Rep. 791 Lewis ROSENBERG, Petitioner, v. The BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 1, DENVER PUBLIC SCHOOLS, Respondent.
CourtSupreme Court of Colorado

Larry F. Hobbs, William P. Bethke, Vonda G. Hall, Hobbs/Bethke & Associates, Denver, for petitioner.

Martin Semple, Conklin & Adler, Denver, for respondent.

DUBOFSKY, Justice.

We granted certiorari in Rosenberg v. Board of Education, 677 P.2d 348 (Colo.App.1983), to consider whether a hearing officer in a tenured teacher dismissal proceeding erred in refusing to allow the teacher to take a deposition of the student with whom the teacher was alleged to have had sexual contact and in denying the teacher a continuance to await the outcome of pending criminal charges. The court of appeals, holding that the teacher suffered no prejudice as a result of the hearing officer's denial of requested depositions 1 and that the hearing officer's refusal to grant a continuance was a proper exercise of discretion, upheld the teacher's dismissal. We affirm the judgment of the court of appeals.

On June 13, 1980, the Superintendent of School District 1 in the City and County of Denver, under the provisions of the Teacher Employment, Dismissal, and Tenure Act, section 22-63-117, 9 C.R.S. (1973 & 1985 Supp.), recommended that the Denver Board of Education (school board) accept for review two charges against Lewis L. Rosenberg, a tenured teacher who was assigned to the Program for Pupil Assistance (P.P.A.), a program for students with behavioral problems. The superintendent requested that Rosenberg be dismissed from his employment with the school district for engaging in improper sexual contact with a twelve-year-old male elementary student and for failing to discharge properly his duties and responsibilities as a teacher.

Rosenberg requested a hearing before a hearing officer as provided in section 22-63-117(3). 2 After the prehearing conference held on August 19, 1980, the hearing officer issued a prehearing order setting the hearing for September 29 and 30, 1980, and requiring the school board to file a list of witnesses to be produced at the hearing, a brief description of the testimony to be elicited from each witness, and a list of exhibits. The hearing officer also required Rosenberg to submit a list of the persons he wished to depose, a brief statement of the subject or subjects to which each deposition would be directed, and a memorandum concerning his right to take depositions. The school board was to submit its objections to Rosenberg's request for depositions and a memorandum supporting them.

On August 25, 1980, Rosenberg submitted the required memorandum and a list of twelve persons whom he wished to depose. 3 On September 11, 1980, after receiving the school board's memorandum and Rosenberg's reply, the hearing officer declined to authorize the taking of oral depositions because their transcription was impracticable given the time restraints. 4

At the hearing on September 29 and 30, 1980, two teachers testified that on the morning of May 23, 1980, they saw Rosenberg in the P.P.A. classroom rocking the student on his lap. A child's moan came from the room, and Rosenberg and the student exchanged several kisses. Two teachers and a school nurse testified that on May 28, 1980, they saw Rosenberg and the student through the glass window in the door to the P.P.A. classroom, a narrow room that formerly served as a kitchen, silhouetted through a fairly sheer curtain covering a stage opening in a puppet house. The teachers testified that for approximately thirty minutes Rosenberg was rocking the student, the student caressed Rosenberg's face, there was repeated kissing on the lips, and the child moaned. When the principal's assistant unlocked the door and entered the room, the student and the teacher jumped up, and Rosenberg picked up his tie from the floor and put it on. A psychiatric consultant testified that such events would have a detrimental effect on the victim, who was an emotionally disturbed child who had a prior history of either being sexually abused or witnessing overt sexual activity. 5 After presenting several witnesses who testified to Rosenberg's compassionate qualities as a teacher and the appropriateness of physical contact with students in improving their self-esteem, Rosenberg's counsel stated that Rosenberg would be his final witness. However, because a criminal action was pending against Rosenberg as a result of statements made by the student, Rosenberg's counsel had advised his client not to testify until after the criminal matter was disposed of on January 5, 1981. Counsel therefore requested a continuance until after that date. Because Rosenberg's counsel could not cite any case law to support his request, the hearing officer denied the motion for a continuance. 6 Criminal charges against Rosenberg were dismissed on February 23, 1981, apparently because the student was deemed incompetent to testify.

The hearing officer found that Rosenberg had engaged in physical contact with the student that was "carnal in nature and motivation" and "was not designed to further the personal or academic interests" of the student and recommended that Rosenberg be dismissed for immoral conduct. After reviewing the hearing officer's findings of fact and recommendation, the school board dismissed Rosenberg on November 25, 1980.

Rosenberg petitioned for review, arguing that the denial of his request to take depositions of some of the witnesses, including the student, and the denial of his request for a continuance were improper. The court of appeals affirmed Rosenberg's dismissal, holding that Rosenberg suffered no prejudice from the hearing officer's refusal to allow the depositions and that, because of the school system's interest in an expeditious resolution of this case, the hearing officer did not abuse her discretion by refusing to grant a continuance. Rosenberg now alleges that the hearing officer's refusal to allow the student's deposition and refusal to grant a continuance cumulatively constituted an abuse of discretion. We disagree.

I.

Rosenberg contends that Ch. 202, sec. 3, section 22-63-117(6), 1979 Colo. Sess. Laws 800, 802, 7 and section 24-4-105(4), 10 C.R.S. (1982), permit the taking of depositions in teacher dismissal proceedings. Section 22-63-117(6) provides in part: "The hearing officer may receive or reject evidence and testimony, administer oaths, and, if necessary, subpoena witnesses.... The hearing officer may ... do all other acts normally performed by an administrative hearing officer." In addition to providing the hearing officer with enumerated powers, section 24-4-105(4) permits the hearing officer to "take any other action authorized by agency rule consistent with this article or in accordance, to the extent practicable, with the procedure in district courts." C.R.C.P. 26 through 37 authorize comprehensive pretrial discovery, including depositions, "to facilitate the simplification of issues and avoid surprises at trial." Ricci v. Davis, 627 P.2d 1111, 1122 (Colo.1981).

Commentators support the use of discovery in administrative proceedings, including the limited use of depositions, although granting or denying the use of depositions is within the discretion of the hearing officer. See 3 K. Davis, Administrative Law Treatise § 14.8, at 35-38 (2d ed. 1980); 1 C. Koch, Administrative Law and Practice §§ 5.42, 5.44, at 389, 391 (1985); Tomlinson, Discovery in Agency Adjudication, 1971 Duke L.J. 89, 103-09, 143-44; 8 see also Shively v. Stewart, 65 Cal.2d 475, 421 P.2d 65, 55 Cal.Rptr. 217 (1966). After Rosenberg's hearing, this court held in Ricci, 627 P.2d at 1122, that depositions are permitted in administrative hearings but that the decision to allow depositions is within the discretion of the hearing officer.

Because it was within the discretion of the hearing officer to allow discovery and because Rosenberg does not allege a deprivation of due process, our review is limited to whether the hearing officer's refusal to allow depositions was an abuse of discretion. A hearing officer's decision will not be reversed as an abuse of discretion unless, given the totality of the factual circumstances at the time of the decision, the hearing officer's decision exceeded the bounds of reason. Bennett v. Price, 167 Colo. 168, 172-73, 446 P.2d 419, 421 (1968). In addition, because this court's inquiry is limited to the record, the record should clearly show such an abuse of discretion. Board of Adjustment v. Handley, 105 Colo. 180, 188, 95 P.2d 823, 826 (1939). In considering whether there has been an abuse of discretion, courts may consider whether the hearing officer misconstrued the law and whether the party alleging an abuse of discretion acted in a diligent manner. South Dakota Trucking Ass'n, Inc. v. South Dakota Dep't of Transportation, 305 N.W.2d 682, 684 (S.D.1981); see NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 860-61 (2d Cir.1970), cert. denied., 402 U.S. 915, 91 S.Ct. 1375, 28 L.Ed.2d 661 (1971).

Rosenberg alleges that the hearing officer failed to exercise discretion because she misconstrued both law and fact. Rosenberg argues that the hearing officer felt compelled to deny the taking of the depositions because of time limitations in section 22-63-117(5) 9 and therefore did not apply discretion to resolve the deposition question. We determine that the hearing officer did exercise discretion in denying the taking of twelve depositions. The hearing officer's order makes it clear that the request to take the depositions was denied not only because the hearing officer felt she could not compel further waiver of the time limits, but also because the parties had agreed to the hearing date, and it was impracticable in view of the time constraints to allow the taking of twelve depositions and their transcription....

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