Opinion
Rehearing Denied Sept. 11, 1973.
Page 122
Hobbs & Waldbaum, Larry F. Hobbs, Stan M. Connally, Denver, for plaintiffs-appellants.
Karowsky, Witwer & Oldenburg, Charles A. Karowsky, Greeley, for defendants-appellees.
COYTE, Judge.
This case involves a decision by the school district not to renew the employment contracts of two nontenured teachers. In the lower court, plaintiffs challenged the manner in which the decision was reached and the sufficiency of notification. The trial court ruled that the actions of the school board complied with the applicable statutes and upheld the right of the district not to renew plaintiff's contract. Plaintiffs appeal. We reverse.
The essential facts are not in dispute. During the 1970--71 academic year plaintiffs were employed by the district as public school classroom teachers on a fulltime, nontenured basis. Plaintiffs were among 20 teachers in the district who received identical letters dated March 2, 1971, signed by Franklin H. Bressler, the personnel director of the school district, advising them that in accordance with 1967 Perm.Supp., C.R.S.1963, 123--18--10, they would not receive a teaching contract for the 1971--72 school year.
Mr. Bressler testified that he sent the letters after certain consultations with the board at an executive session on February 24, 1971; that at that meeting he had read the list of names of teachers who were to receive notice that their contract would not be renewed and reviewed with the board the contents of the letter of notification; and that the president of the board asked whether the notices should be sent and that all members of the board indicated agreement, either by saying 'Yes' or by nodding their heads affirmatively. The letters were mailed on March 1, 1971.
On March 10, 1971, at a regular board meeting, the board properly approved by roll-call vote a resolution which is reported in the minutes as follows:
'71--40 It was movedl by Director Singer and seconded by Director Wheeler that the list of persons recommended for employment as teachers for the 1971--72 school year be accepted as presented. (List in its entirety will be typed in Permanent Minute Book):
'Voting aye: Directors Ankeney, Marich, Rieker, Singer and Wheeler
'Motion carried.'
Bressler testified that the resolution was adopted in response to the presentation of what he called his 'personnel packet' which included, among other things, the names of all teachers who were to be offered teaching contracts for the 1971--72 school year, the names of the 20 teachers who had been given notice of non-renewal, and a copy of the notice.
On the ground that the board failed to comply with the applicable statutes, plaintiffs sought judicial relief from the action of the board in the form of a writ of mandamus to compel the board to recognize their status as teachers for the following school year. They also sought damages and injunctive relief on the ground that the board had failed to renew their teaching contracts for constitutionally impermissible reasons. The court held a hearing on plaintiffs' claim for relief in mandamus and at the conclusion of plaintiffs' presentation of evidence granted the motion of the board to dismiss the show cause order. Upon conclusion of plaintiffs' presentation of evidence at the subsequent trial on the second claim for relief, the court granted the board's motion for dismissal. The court entered judgment for the board, denied all relief to plaintiffs, and plaintiffs brought this appeal.
They contend the notice given was not authorized by the board and was therefore ineffective. The testimony disclosed that the board considered the question of non-renewal of certain employment contracts at the executive session held on February 24, 1971. 1965 Perm.Supp., C.R.S.1963, 123--30--8(6), governs the manner in which the board votes as follows:
'All voting at any meeting Shall be by roll call. The manes of the members shall be called alphabetically, and each member present shall orally vote 'Aye' or 'No' upon each question unless excused from voting by the board for good cause. Election of the president and vice-president may be by secret ballot.' (emphasis supplied)
The statute requires that the board act by roll-call vote in any meeting, and specifies the procedural formalities involved in a roll-call vote. Such statutory requirements are mandatory rather than directory, and any action taken without compliance with the statute is a nullity. Gavend v. Thornton, 165 Colo. 182, 437 P.2d 778; Robb v. School District RE 50(J), 28 Colo.App. 453, 475 P.2d 30. The failure of the board to comply with the statutory procedure for voting was a fatal defect in the proceedings at the executive session held on February 24, 1971. Accordingly, the action taken at that meeting was ineffective to authorize sending the notices of non-renewal.
The board argues that despite any defects in the proceedings at the executive session on February 24, 1971, the notices of non-renewal were ratified by the action of the board at the regular meeting held on March 10, 1971. The resolution passed at that meeting makes no reference to the teachers whose contracts would not be renewed. Nor does it suggest that the board intended thereby to ratify Mr. Bressler's prior action when he sent the notices of non-renewal. In his testimony, Mr. Bressler, without objection by plaintiffs, offered an explanation of the action of the board when it approved the resolution. That testimony does not establish that the board had the intent to ratify the notices. In the absence of an explicit and unequivocal manifestation of the board's intention to ratify the prior unauthorized acts of the director of personnel, the resolution adopted by the board at the meeting on March 10, 1971, was ineffective to confer validity upon the notices of non-renewal sent on March 2, 1971. Accordingly, we hold that plaintiffs did not receive timely notices of non-renewal that originated with the board as required by 1967 Perm.Supp., C.R.S.1963, 123--18--10.
In light of our disposition of this issue, it is not necessary for us to consider plaintiffs' other contentions.
The judgment is reversed and cause remanded with directions to hold further proceedings not inconsistent herewith.
SILVERSTEIN, C.J., and PIERCE, J., concur.