Opinion
No. 73-351
Decided April 9, 1974. Rehearing denied April 30, 1974. Certiorari denied July 1, 1974.
Charged with incompetency, teacher appeared before panel appointed to conduct a hearing on those charges and moved to dismiss the charges and for a bill of particulars. From denial of her motions, teacher sought review, and district court dismissed complaint. Teacher appealed.
Affirmed
1. APPEAL AND ERROR — Authority of Court — Interfere — Teacher Dismissal Proceedings — Not Raised — Court of Appeals — Chooses — Decide Case — That Issue. Although the authority of the court to interfere in the orderly course of dismissal proceedings against a teacher in advance of final action by teacher tenure panel and action thereon by the School Board was not raised by the parties, Court of Appeals, on its own motion, chooses to decide the case on that issue.
2. ADMINISTRATIVE LAW AND PROCEDURE — No Hearings — No Findings — No Action — Board of Education — Denial Teacher's Motions — Not — Final Agency Action — Dismissal of Action — Correct. In situation where there has been no hearings on the merits of the charge of incompetency against teacher nor findings made by the teacher tenure panel and no final action taken by the board of education, the panel's denial of teacher's motion to dismiss the charges and its denial of her motion for a bill of particulars do not constitute final agency action that is subject to judicial review; thus, trial court's dismissal of teacher's action to review those decisions was correct.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Hobbs Waldbaum, Larry F. Hobbs, for plaintiff-appellant.
Henry, Cockrell, Quinn Creighton, Benjamin L. Craig, for defendants-appellees School District No. 1 in the City and County of Denver and State of Colorado and Dr. Louis Kishkunas.
No appearance by defendants-appellees Dr. Oswald C. Abernathy, Dr. Daniel T. Valdez, and Dr. Arthur Partridge.
Pursuant to the Teacher Employment, Dismissal, and Tenure Act, 1967 Perm. Supp., C.R.S. 1963, 123-18-1 et seq., proceedings were initiated against plaintiff by the superintendent of schools making a written recommendation to the Board of Education that plaintiff be dismissed on the grounds of incompetency. Thereafter, the board met and accepted the charges for review, and a panel was appointed for the purpose of conducting a hearing on the charges.
Plaintiff appeared before the panel and moved to dismiss the charges on the grounds that the statement of the charges was not sufficiently explicit to satisfy the requirements of 1967 Perm. Supp., C.R.S. 1963, 123-18-11, and the notice requirements of the Due Process clause of the Fourteenth Amendment. After holding a hearing, the panel denied the motion to dismiss the charges, and plaintiff then filed a motion requesting a bill of particulars as to the charge of incompetency lodged against her, which motion was also denied.
Thereafter, plaintiff filed a complaint in the district court pursuant to C.R.C.P. 106 seeking review of the panel's denial of her motions. The district court ruled that the charges were sufficiently stated and dismissed the complaint. We affirm.
[1] The issue is not raised by the parties as to the authority of the court to interfere in the orderly course of the proceedings in advance of final action by the panel and action thereon by the board. However, on our motion, we are deciding the case on this issue. Moshcetti v. Liquor Licensing Authority, 176 Colo. 281, 490 P.2d 299.
[2] There has been no hearing on the merits of the charge of incompetency nor findings made by the panel and no final action has been taken by the board. To allow judicial review at this state of the proceedings would result in piecemeal review of the Tenure Act proceedings. The denial of the motion to dismiss and motion for bill of particulars by the panel does not constitute final agency action which is subject to judicial review, and thus, even though the trial court dismissed for other reasons, its disposition of the case was correct. Industrial Commission v. Globe Indemnity Co., 145 Colo. 453, 358 P.2d 885; Lorance v. Board of Examiners of Architects, 31 Colo. App. 332, 505 P.2d 47; 2 F. Cooper, State Administrative Law 590.
Judgment affirmed.
JUDGE ENOCH and JUDGE RULAND concur.