Widder v. Durango School Dist. No. 9-R
| Decision Date | 23 February 2004 |
| Docket Number | No. 02SC497.,02SC497. |
| Citation | 85 P.3d 518 |
| Parties | Keith WIDDER, Petitioner, v. DURANGO SCHOOL DISTRICT NO. 9-R, a Colorado school district; and Board of Education of Durango School District No. 9-R, a Colorado school district board of education, Respondent. |
| Court | Colorado Supreme Court |
Colorado Education Association, Sharyn E. Dreyer, Martha R. Houser, Gregory J. Lawler, Cathy L. Cooper, Charles F. Kaiser, Denver, Colorado, Attorneys for Petitioner.
Semple, Miller & Mooney, P.C., Patrick B. Mooney, Denver, Colorado, Attorneys for Respondent.
Ken Salazar, Attorney General, Alan J. Gilbert, Solicitor General, Frank R. Johnson, Assistant Attorney General, Environmental Quality Unit, Natural Resources and Environment Section, Denver, Colorado, Attorneys for Amicus Curiae for the State of Colorado.
Halpern Clancy, L.L.C., Alexander Halpern, Boulder, Colorado, Attorneys for Amici Curiae Colorado Association of School Boards and Colorado Association of School Executives.
In 1984, the Colorado General Assembly enacted a provision requiring every school district to adopt a discipline code to "deal with disorderly students in a manner which allows other students to learn in an atmosphere which is safe, conducive to the learning process, and free from unnecessary interruption."1 In 1991, the General Assembly declared that "[a] teacher or any other person who acts in good faith and in compliance with the discipline code adopted by the board of education ... shall not have his contract nonrenewed or be subject to any disciplinary proceedings, including dismissal, as a result of such lawful actions."2 Two years later, the General Assembly added the requirement that each discipline code be in writing and include, among other things, "policies and procedures for the use of acts of reasonable and appropriate physical intervention or force in dealing with disruptive students."3
In the spring of 1999, Petitioner Keith Widder (Widder) was terminated from his job as a custodian for the Durango School District (the District), following pre-termination proceedings at the District level. He claims that the termination violated section 22-32-110(4)(c), 7 C.R.S. (1999), the provision in place at that time protecting teachers and other persons from dismissal for acts taken in good faith and in compliance with a school district's discipline code.4 Widder filed an action in the district court seeking relief on that basis. Following a de novo hearing, the trial court found that Widder's termination violated the statute, and thus ordered reinstatement and back pay with statutory interest.
The court of appeals vacated the trial court's order, concluding that the trial court erred in conducting a de novo hearing to determine whether Widder was discharged in violation of section 22-32-110(4)(c), and should rather have deferred to the District's findings and conclusions. Widder v. Durango Sch. Dist. No. 9-R, 60 P.3d 741, 743 (Colo.App.2002).
The issue before us in this case is whether the General Assembly intended to supercede a school district's authority to make the decision, in the first instance, about whether an employee's actions were consonant with school district policies. Specifically, we granted certiorari to determine whether a school district employee who was dismissed for cause is entitled to judicial review of the School Board's determination that his conduct was not protected under the statute; and if so, what the correct standard of review should be. We now affirm in part, reverse in part, and remand with instructions to return the case to the District in order to make findings of fact and enter conclusions of law responsive to the principles set forth in this opinion.
Keith Widder was a custodian at Miller Middle School in Durango, Colorado.5 On April 29, 1999, Widder intervened in an incident between two boys, in which one of the boys was pushing the other. Widder squatted down in front of the boy whom he perceived to be the aggressor and struck the boy with his own forehead—or "head-butted" him. Widder then told the boy that After that comment, the boys walked away and Widder returned to the boiler room.
A few minutes after the incident, the boy went to Marc Cooper, the Assistant Principal of Miller Middle School, and reported that Widder had "head-butted" him. Meanwhile, Widder contacted his attorney before informing anyone from the school about what had happened. Fifteen minutes after the incident, Assistant Principal Cooper summoned Widder to his office. At that meeting, Widder admitted to bumping heads with a student and stated that he "certainly could have handled [the situation] better." Widder declined to make a written statement.
On the same day as the incident, Widder received a letter from Copper Stoll, the principal at Miller Middle School. That letter informed Widder that he was suspended without pay pending an investigation of the incident at 9:45 a.m. on April 29, 1999, and that such suspension was in compliance with the DSPA Master Agreement (a collective bargaining agreement between the Durango Support Personnel Association and the District). The letter also indicated that depending upon the outcome of the investigation, there could be additional disciplinary action including termination.
An investigation took place, and on May 20, 1999, the Interim Superintendent of the District, Dr. Joel Jones, sent Widder a letter advising him that Jones would be recommending to the Board of Education that Widder's employment be terminated effective June 3, 1999. Dr. Jones stated that the basis for his recommendation was the investigative report conducted by the District concluding that Widder made "inappropriate physical contact with the child in question." Dr. Jones notified Widder that he was entitled to a hearing provided that he request the hearing within three days of the notice by contacting Jones in writing or by telephone. The letter further indicated that Widder would be entitled to representation at the hearing.
Pursuant to the DSPA Master Agreement, referred to in the initial suspension letter, Widder was entitled to certain pre-termination procedures. He was entitled to, and received, a copy of the complaint, information regarding the procedures used in the investigation and the ultimate resolution from the investigation. He was also entitled to, and received, two weeks' notice of termination and an opportunity to request a hearing. Lastly, he was entitled to, and received, a hearing before the Superintendent or his or her designee, at which he was present and represented by counsel. The contract required that the Superintendent or his or her designee make findings of fact and render a decision. The DSPA agreement also outlined certain prohibited reasons for termination, such as unlawful discrimination on the basis of race, creed, color, national origin, sex, marital status, age, disability, veteran's status or membership or non-membership, or participation or non-participation in the activities of the employee organization. Widder does not contend that the procedures set forth in the contract were in any way abrogated. Therefore, although Widder may have been an at will employee with respect to the absence of a "for cause" provision in his contract, he was contractually entitled to pretermination process that would not apply to a purely at will employee,6 and there were certain reasons for which he could not be terminated: some of which were outlined in the contract itself, and some of which fall under statutory or constitutional mandate.
Widder's hearing occurred on July 9, 1999. He was represented by counsel. Dr. Judy Michalski, the Interim Superintendent for the District from June to July of 1999, presided over the hearing. Widder appeared but chose not to testify. Rather, Widder's attorney spoke on his behalf and submitted a notebook of documents for Michalski's consideration. Michalski also considered written statements of the two involved students. There was no transcribed record made of the hearing.
After the hearing, Michalski issued a one-page memorandum outlining the evidence presented at the hearing and her findings based on that evidence. She recited ten items of evidence that she had reviewed, including: statements from students and teachers; administrative policies on Exclusions, Corporal Punishment, Suspension/Expulsion of Students; the investigative report; and a statement from Widder.7 Dr. Michalski found the following:
After reviewing the above documentation and listening to the arguments, statements, and questions. My findings are as follows: to uphold Dr. Joel Jones [sic] recommendation of termination based on the evidence that there was a headbut and that, based on my assessment of the credibility and weight of the evidence, it was deliberate or the result of Widder's inappropriate conduct.
Dr. Michalski submitted her recommendation to the Board of Education. The Board of Education approved Michalski's recommendation and Widder's employment with the District was terminated.
Following his termination, Widder filed a complaint in the District Court for La Plata County. Widder's allegations against the District included a breach of contract claim and a claim based on the District's violation of section 22-32-110(4)(c).
The District moved for judgment on the pleadings pursuant to C.R.C.P. 12(c). The trial court granted the District's motion. Specifically, the trial court ruled that Widder failed to allege facts to support an implied contract claim. Further, the trial court ruled that a violation of section 22-32-110(4)(c) did not create a private right of action. However, the trial court, relying on McIntosh v....
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