Silverman v. University of Colorado, 74--364

Citation541 P.2d 93,36 Colo.App. 269
Decision Date22 July 1975
Docket NumberNo. 74--364,74--364
Parties, 11 Fair Empl.Prac.Cas. (BNA) 1462 Linda SILVERMAN, Plaintiff-Appellant, v. UNIVERSITY OF COLORADO et al., Defendants-Appellees. . III
CourtCourt of Appeals of Colorado

Cohen & Cohen, Sara-Jane M. Cohen, Boulder, for plaintiff-appellant.

John P. Holloway, Richard A. Tharp, Boulder, for defendants-appellees.

RULAND, Judge.

In an action to recover damages and for other relief, plaintiff, Linda Silverman, appeals from a judgment granting defendants' motion to dismiss all five claims of her complaint. We affirm in part and reverse in part.

The only issue for our determination is whether the allegations of the various claims assert a claim for relief. In reaching this determination, we are governed by two basic principles: (1) The material allegations of each claim must be taken as admitted, Cook v. Denver, 128 Colo. 578, 265 P.2d 700; Millard v. Smith, 30 Colo.App. 466, 495 P.2d 234; and (2) dismissal of a claim is proper only if plaintiff is entitled to no relief under any state of facts which may be proved in support of the allegations made. Nelson v. Nelson, 31 Colo.App. 63, 497 P.2d 1284.

We note at the outset that in conjunction with arguments on the motion to dismiss, both plaintiff and defendants relied on various provisions of the University of Colorado 1970 Faculty Handbook. That document has been included in the record on appeal and is referred to in the opinion. The Handbook was prepared for the convenience and information of the faculty. While the preface thereto indicates that the contents do not identify all 'University practices or commitments,' the document purports to include, Inter alia, the 'laws' of the Board of Regents apparently adopted as regulations pursuant to § 23--20--112, C.R.S.1973.

We discuss each claim separately, and in Part VI of the opinion we review the trial court's alternative basis for the order of dismissal, namely, that the relief requested by plaintiff in some of the claims could not be awarded as a matter of law.

I. Contract Claim

Insofar as relevant here, the first claim alleged that on August 28, 1972, pursuant to letter agreement signed by defendant Volsky as vice provost of the University, plaintiff was engaged as an assistant professor in the school of education for the academic year 1972-1973. In December 1972, defendant Olson, associate dean of the school of education, 'acting in his official capacity as an agent' of the University and the Board of Regents, notified plaintiff in writing that she would be reappointed for the academic year 1973--1974 if: (1) The federal grant from which funds were obtained to pay plaintiff were renewed; and (2) evidence were presented of plaintiff's competence and a recommendation from her peers were obtained that she be rehired.

According to the first claim, both of the conditions were satisfied. However, on February 14, 1973, Volsky advised plaintiff in writing that her contract would not be renewed. This letter stated that plaintiff's work had been 'quite satisfactory' but the school of education preferred that the position 'be opened to all interested candidates.' Plaintiff alleged that the University thus breached its contract to reappoint her.

In dismissing the first claim, the trial court relied upon § 23--20--112, C.R.S.1973, which provides:

'The board of regents shall enact laws for the government of the university; appoint the requisite number of professors . . . and determine the salaries of such . . ..'

The trial court construed this statute as vesting exclusive authority in the Board to make faculty appointments, and concluded that absent an allegation by plaintiff of a contract directly with the Board, no contract for teaching services could legally exist. This ruling was erroneous.

Plaintiff specifically alleged that the second letter notifying her of reappointment subject to certain conditions was executed by Olson, acting as an agent of the Board. The statute does not prohibit the Board from appointing an agent to make a written offer of employment to a specific instructor. Defendants' reliance on Big Sandy School District No. 100--j v. Carroll, 164 Colo. 173, 433 P.2d 325, is in-apposite here. The statute at issue there made it the 'duty' of a school board to hire teachers, thus prohibiting delegation of that authority. No similar 'duty' requirement is included in the above-quoted statute.

Additionally, even assuming that Olson was acting beyond his proper authority, the allegations made would entitle plaintiff to prove that the offer of reappointment was ratified by the Board. Indeed, the letter appointing plaintiff to her initial position as assistant professor was signed by Volsky and there is no reference in the letter to authorization from the Board. It is logical to assume the Board ratified this action since plaintiff in fact served as an assistant professor pursuant to that letter. Under these circumstances, we conclude that plaintiff stated a claim for relief.

II. Estoppel Claim

As an alternative to the first claim for relief, plaintiff, in her second claim, incorporated all of the foregoing allegations except that the second letter established a contract for reappointment. Plaintiff then alleged that both before and after she commenced work under her employment contract, defendants Openshaw, dean of the school of education, Hodge, chairman of the division of educational specialists, Kalk, director of the special education program, and Olson, 'acting in their respective official capacities as agents of the Defendant University and the Board of Regents,' advised her that her position was secure for the coming academic year. According to plaintiff, she reasonably relied on these representations to her detriment in that she did not seek other employment. Hence, plaintiff alleges that the University and Board are estopped now to deny that she has a valid contract.

Relying on Orchard City Irrigation District v. Whitten, 146 Colo. 127, 361 P.2d 130, and Beery v. American Liberty Insurance Co., 150 Colo. 499, 375 P.2d 93, the trial ocurt dismissed plaintiff's second claim on the basis that the doctrine of estoppel is not available against a governmental agency 'acting in its public capacity.' However, in those cases application of this rule of governmental immunity was predicated upon the fact that an estoppel would have required the governmental agency to violate the law. See Edwards v. Guthner, 106 Colo. 209, 103 P.2d 6; Van Cleave v. Board of County Commissioners, 33 Colo.App. 227, 518 P.2d 1371. In the case at hand, no basis is now present for concluding that reappointment of plaintiff for the 1973--1974 academic year would have violated any law. Hence, based upon the allegations of plaintiff's second claim the doctrine of estoppel may be invoked if necessary to prevent manifest injustice. See Crawford v. McLaughlin, 172 Colo. 366, 473 P.2d 725; Franks v. Aurora,147 Colo. 25, 362 P.2d 561.

Defendants argue that since plaintiff was charged with notice though the Handbook of the Board's final authority as to her reappointment, she cannot claim reasonable reliance based on the assurances of the individual defendants named above. Assuming, without deciding, that plaintiff had knowledge of such authority, this argument ignores the allegation that these officials were acting as agents of the Board. This allegation would entitle plaintiff to prove, for example, that the Board either authorized or ratified the assurances made by these officials.

In summary, whether the circumstances here call for application of the doctrine of estoppel depends on the evidence adduced during a trial. Therefore, it was error for the trial court to dismiss the second claim.

III. First Procedural Due Process Claim

In the third claim for relief, which incorporated the allegations of the first and second claim, plaintiff further alleged that the Committee on Privilege and Tenure at the University conducted hearings pursuant to University procedures and based thereon entered findings that plaintiff's contractual rights had been violated. The committee recommended plaintiff's reappointment. Its findings and recommendations were forwarded to defendant Thieme, as president and chairman of the Board of Regents, who took no action thereon. By their failure to take any action whatsoever, plaintiff alleges that Thieme, the Board, and the University deprived plaintiff of her property without due process of law in violation of the United States and Colorado Constitutions.

The trial court dismissed the third claim for relief on the basis that plaintiff had failed to allege the existence of a property right or other interest sufficient to entitle her to due process protection and thus defendant Thieme's failure to take formal action in response to the committee's recommendation did not amount to a denial of due process.

As noted above, plaintiff incorporated in this claim her allegation that she had a valid contract with the University for reappointment. In addition to her claim for due process protection of rights accrued under the alleged contract for reappointment, plaintiff asserts that due process protection extends to her right to have Thieme present the committee's findings and recommendation to the Board. Defendants answer that since there is no requirement that the Board take action favorable to plaintiff on the committee's recommendation, there is no property interest involved which qualifies for due process protection. We disagree.

Procedural regulations validly adopted by a governmental agency relative to employment of its employees are binding upon it, even when the action it may take pursuant thereto as to continued employment is discretionary in nature. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Shumate v. State Personnel Board, 34 Colo.App. 393, 528...

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