Opinion
Hobbs & Waldbaum, Larry, F. Hobbs, Stan M. Connally, Denver, for plaintiff-appellant.
John W. Lentz, Anderson, Smedley & Pittam, Samuel A. Anderson, Littleton, for defendants-appellees.
COYTE, Judge.
Plaintiff was hired by Adams-Arapahoe Joint School District #32 as a teacher from August 26, 1969, to June 1, 1970. He was in his first year or employment with the District when it voted not to rehire him for the coming school year. He sought a permanent injunction to compel the School District to re-employ him. The court denied the injunction but awarded him costs. Plaintiff appeals and defendant School District cross-appeals. We affirm.
Pursuant to 1967 Perm.Supp., C.R.S.1963, 123--18--10, the renewal of plaintiff's contract as a nontenured teacher was automatic, unless he was notified to the contrary before April 15th. At the time of his employment, the following clause was included along with other rules and regulations in a booklet entitled 'Adams-Arapahoe School District 32J Board Policy':
'Probationary teachers may not be re-employed under the following circumstances; . . . (2) When the teacher is considered for other sufficient reasons to be unsuited or unsatisfactory to the Adams-Arapahoe School District 32--J, in which case before action is taken, the teacher will be confronted with the evidence against him, together with its source, and will be given an opportunity to answer, and if he so desires, an audience with the Board. No teacher will be dropped on the basis of information anonymously proferred to the Board.' (Policy 5, par. 6)
On March 23, 1970, the Board of Education of Adams-Arapahoe School District 32--J took formal action against the re-employment of plaintiff for the following school year and notified plaintiff of its action by certified mail.
On April 3, 1970, the Board voted to repeal Policy 5 stated above. On April 9, 1970, the Board again took formal action not to re-employ the plaintiff and notified plaintiff of its action by certified mail. The plaintiff attended a Board meeting on April 18, 1970, at which the Board's failure to re-employ him for the following school year was discussed.
Plaintiff wrote to the Board on May 15, 1970, requesting that he be granted the protection of the procedures available under Policy 5 of the School District. Upon receipt of plaintiff's letter, the Board took formal action suspending him from any further teaching duties with full pay to the end of his contract term. Plaintiff then filed a motion for preliminary injunction in the District Court of Arapahoe County and, after hearing, the court ordered the Board to give plaintiff notice of the reasons for its failure to re-employ him and, if requested, a hearing at which he would 'have the opportunity to appear and present evidence pursuant to the rules which govern administrative hearings in the State of Colorado.' Pursuant to the court's order, a hearing was held on July 29, 1970, and continued to August 5, 1970, before the Board of Education, which then made findings and ordered that his contract not be renewed. These findings and order were returned to the court and the plaintiff moved for a permanent injunction, which was denied.
Plaintiff contends that, because of bias and prejudice of the Board members and because of the Board's use of 'special counsel', he was denied a fair and impartial hearing. He contends that the trial court had ordered the hearing be in accordance with the Administrative Code and that, in accordance with 1969 Perm.Supp., C.R.S. 1963, 3--16--4(3), the school board members had an obligation to disqualify themselves from participating in the hearing.
Plaintiff's right to a hearing arose by virtue of Policy 5, par. 6, of the School Board and the order of the trial court. The procedures prescribed by the administrative code did not apply to this hearing. The court merely required that the procedures prescribed by the code serve as a guide to the conduct of this hearing. Strict adherence to the provisions therein was not required. Under Policy 5, which had been adopted by the Board, plaintiff was entitled to an audience with the Board. The Board was the only body authorized to hear plaintiff and also the only one with the power to re-employ him, 1965 Perm.Supp., C.R.S.1963, 123--30--9(7); thus, the Board was the tribunal before which plaintiff was entitled to the hearing which he had requested.
Plaintiff had prepared affidavits challenging the impartiality of each Board member. Although some members stated that some of the allegations in the affidavits were true, such statements were inconclusive since the admitted allegations could be true without necessarily creating prejudice.
Plaintiff asserts that the Board's prejudice is shown by the testimony of the new superintendent of the School District that plaintiff's re-employment at that late date could 'present a problem' and by the fact that the Board, having reviewed certain student records previously, did not re-examine such records upon their being submitted by the plaintiff as evidence. These matters are insufficient to establish bias or prejudice on the part of the Board.
Mr. Bowles, 'special counsel' for the Board, was employed and utilized in an advisory capacity by the Board. It was entitled to hire an attorney of its choice to advise it during the course of the hearing. We perceive no error or prejudice to plaintiff either in the hiring of Mr. Bowles or in the conduct of Mr. Bowles during the hearing.
The plaintiff was granted the hearing to which he was entitled, and we agree with the finding of the district court that there was no showing by the evidence that the Board denied plaintiff a fair and impartial hearing by being arbitrary or capricious, biased or prejudiced during the hearing.
If notification is timely, statutory and case law in Colorado do not require that cause be given for not re-employing a nontenured teacher. 1967 Perm.Supp., C.R.S.1963, 123--18--10; School District No. 1 v. Thompson, 121 Colo. 275, 214 P.2d 1020. However, under the School District's policies, which were incorporated into plaintiff's contract, the Board must have reasonable cause to consider the teacher to be unsuited or unsatisfactory to the District. The Board at the conclusion of the hearing found that plaintiff was unsuitable and unsatisfactory as a teacher. The court determined that the evidence adduced at the hearing supported the findings of the Board.
There was a conflict in the evidence at the hearing between that of the lay witnesses and that of the professional educators. Plaintiff contends that the testimony of educators should be given more weight than that of lay witnesses. We disagree. The credibility and weight to be accorded the witnesses was for determination by the trier of the facts, in this case the Board of Education. Young v. Burke, 139 Colo. 305, 338 P.2d 284; McWilliams v. Garstin, 70 Colo. 59, 197 P. 246. The evidence in the record most favorable to the position of the Board supports the findings of the Board that plaintiff's performance as a teacher was unsuitable and unsatisfactory. This being so, the court properly denied plaintiff's motion for permanent injunction.
On cross-appeal, the defendants assert that the Board possessed legal authority to repeal Policy 5, par. 6, during the term of plaintiff's contract. We agree that the policy could be and was repealed. However, plaintiff's contract could not be unilaterally modified by the action of the Board in repealing the policy during the term of the contract. Grizzly Bar, Inc., v. Hartman, 169 Colo. 178, 454 P.2d 788.
The court awarded costs to the plaintiff in the amount of $131 covering service of process and service of subpoena, docket fee, and witness fees and mileage. Defendants assert that plaintiff is not entitled to costs on the basis of C.R.Civ.P. 54(d):
'Costs. Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law. . . .'
A school district is a body corporate which may sue and be sued. 1965 Perm.Supp., C.R.S.1963, 123--30--1. There is no statutory prohibition against the assessment of costs in the present action. The awarding of costs was within the discretion of the trial judge, who did not abuse his discretion by awarding costs incurred by the plaintiff in securing the hearing to which he was found to be entitled. Boulder & White Rock Ditch and Reservoir Co. v. Boulder, 157 Colo. 197, 402 P.2d 71.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.