University of Colorado v. Silverman

• Decision Date: 01 November 1976
• Docket Number: No. C--784,C--784
• Citation: 555 P.2d 1155,192 Colo. 75
• Parties: UNIVERSITY OF COLORADO et al., Petitioners, v. Linda SILVERMAN, Respondent. . En Banc
• Court: Colorado Supreme Court

Page 1155

555 P.2d 1155

192 Colo. 75

UNIVERSITY OF COLORADO et al., Petitioners, v. Linda SILVERMAN, Respondent.

No. C--784.

Supreme Court of Colorado. En Banc.

Nov. 1, 1976.

Rehearing Denied Nov. 22, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Denver, Richard A. Tharp, Boulder, for petitioners.

Cohen & Cohen, Sara-Jane M. Cohen, Boulder, for respondent.

LEE, Justice.

This action arises from an employment contract dispute between petitioners, the University of Colorado and its board of regents and named officials, and respondent, Linda Silverman, a former assistant professor at the University of Colorado. We granted certiorari to review the decision of the court of appeals, Silverman v. University of Colorado, 36 Colo.App. 269, 541 P.2d 93, reversing the trial court's dismissal of the action. On the issues presented for review, we reverse the judgment of the court of appeals.

The university employed respondent to teach for the 1972--73 academic year. In December 1972, she received a letter from an associate dean, advising that her current employment was for a one-year period and that reappointment was subject to two conditions:

1. The renewal of a grant under which she was hired;

2. Evidence of competence and recommendation from the program area and division faculty peers that she be continued in her present position.

Respondent alleges that various university officials assured her she would be rehired.

Respondent was notified, however, by letter dated February 14, 1973, that she would not be reappointed. She was told that the school desired to open the position to other applicants. The same letter stated, 'Your work has been quite satisfactory and (we are) sure the committee would welcome the resubmission of your papers.' This notification of nonreappointment complied with the standard set forth in the University of Colorado Faculty Handbook 1970 in effect at the time of this controversy. Respondent then filed a grievance with the faculty committee on privilege and tenure. The committee recommended to the university president that respondent be reappointed. The president did not respond, nor did he submit the recommendation to the board of regents.

Respondent was not rehired. As a result, in December 1973, she commenced an action in Boulder County district court. She alleged five causes of action, three of which are relevant here: breach of contract, estoppel, and deprivation of property without due process of law. Upon petitioners' motion, the trial court dismissed the action. The court of appeals reversed and remanded the cause for trial.

Petitioners allege that the court of appeals erred in holding (1) that the hiring authority of the board of regents is delegable; (2) that estoppel may be invoked against the university; and (3) that the university president's failure to transmit the recommendation of the faculty committee to the board of regents deprived respondent of property without due process of law. We consider these issues in order.

I.

Respondent's contract claim was essentially that a binding contract of reemployment arose when the two conditions prerequisite to reappointment, as set forth in the December 1972 letter from the associate dean, were satisfied; and that the university breached this contract when it advised respondent of her nonreappointment by the February 1973 letter.

The trial court based its dismissal of respondent's contract claim on C.R.S.1963, 124--2--11, ¹ which provides in part, 'The board of regents shall * * * appoint the requisite number of professors and tutors * * *.' The trial court held that absent action by the regents, no contract with the university could arise. We agree.

The court of appeals, however, reversed, holding that this statute does not prohibit the board of regents from delegating its hiring authority, and that whether delegation had actually occurred was a factual question requiring trial.

In so holding, the court of appeals distinguished Big Sandy Sch. Dist. v. Carroll, 164 Colo. 173, 433 P.2d 325, where it was held that a school board's authority to employ teachers is nondelegable. The court of appeals stressed that, unlike the statute defining the board of regents' authority, the governing statute in Big Sandy, supra, C.R.S.1963, 123--10--19, ² made it the school board's 'duty' to hire teachers.

We do not find the absence of the word 'duty' in C.R.S.1963, 124--2--11, determinative. As we observed in Big Sandy, supra:

'* * * (L)egislative or judicial powers, involving judgment and discretion on the part of the municipal body, which have been vested by statute in a municipal corporation may Not be delegated unless such has been expressly authorized by the legislature. * * *'

Undeniably, the power to hire teachers involves considerable judgment and discretion, whether at the university or high school level. Absent legislative authorization, the board of regents' hiring authority cannot be delegated. See Snider v. Kit Carson Sch. Dist., 166 Colo. 180, 442 P.2d 429.

The court of appeals characterized the letter concerning the prerequisites for reappointment as an offer of employment by an agent of the board of regents, which ripened into a contract binding the board of regents upon satisfaction of the two conditions. In view of our holding that the hiring authority cannot be delegated, no contract could come into being absent affirmative action by the board of regents itself.

II.

Respondent alleged in the alternative that by reason of the December 1972 letter and other representations made to her by faculty members the university was estopped to deny that there was a contract of reemployment. In dismissing this claim, the trial court held estoppel would be 'an inappropriate basis for relief against the University of Colorado and its Board of Regents' because it would divest the board of its statutory hiring power. The trial court added that estoppel is generally not available against a government agency acting in its public capacity.

The court of appeals reinstated respondent's cause of action, pointing out that under our decisions estoppel is applicable against a government agency to prevent manifest injustice.

We note, first, that the doctrine of estoppel is not favored. Susman v. Bank, 117 Colo. 12, 183 P.2d 571; Langley v. Young, 72 Colo. 466, 211 P. 640.

In light of this principle and under the facts of this case, we find no 'manifest injustice' requiring the invocation of the estoppel doctrine. Respondent received adequate notice of the regents' decision not to retain her. She was, in fact, notified well before the March 1 deadline set by the university's Faculty Handbook 1970. The regents' decision not to rehire her, made within their statutory authority, cannot be considered manifestly unjust.

Even if estoppel were appropriate here, respondent could not show the requisite reasonable reliance. Cline v. Boulder, 168 Colo. 112, 450 P.2d 335; 49 A.L.R.3d 28. The Faculty Handbook 1970, cited frequently in respondent's brief, clearly states that the board of regents makes all faculty appointments. Furthermor...