Opinion
No. 76-196
Decided July 28, 1977. Rehearing denied September 1, 1977. Certiorari granted November 29, 1977.
In proceedings under Teacher Tenure Act, hearing panel ruled that findings of incompetency sufficient to warrant dismissal was not present, but school board rejected panel's findings and, on its own review of evidence presented to panel, discharged the teacher. Teacher appealed from district court dismissal of her petition for review. Reversed
1. SCHOOLS AND SCHOOL DISTRICTS — Tenured Teacher — Disciplinary Proceedings — Evidence Supports Findings — Teacher Tenure Panel — Binding — Board of Education. In disciplinary proceedings against a tenured teacher under the Teacher Tenure Act, if there is evidence to support the findings of a teacher tenure panel constituted pursuant to that act, then the board of education is bound by those findings and is not free to adopt different findings in order to discharge the teacher.
2. Teacher Tenure Panel — Independent Administrative Agency — Find Ultimate Facts — Determine — Existence — Statutory Grounds for Dismissal. Under the Teacher Tenure Act, a teacher tenure panel, rather than being merely an evidence gathering arm of the school board, is essentially an independent administrative agency charged with the responsibility of finding ultimate facts, and its duties are prescribed as, and are limited to, a determination of whether any, or all, of the statutory grounds for dismissal of a "tenured teacher" exists.
3. Teacher Tenure Panel — Independent Agency — Determination — Subject to Judicial Review — Request of — School Board — Teacher. Since a teacher tenure panel constituted under the statute relative to disciplinary proceedings against a tenured teacher is essentially an administrative agency, a determination made by such a panel is subject to judicial review, either at the instance of the teacher after the school board has acted, or of the school board.
4. School Board — Determine — Teacher Tenure Panel Findings — Inadequate — Should Have Remanded — Or — Sought Judicial Review. Where, in disciplinary proceedings against a tenured teacher, board of education reached its own findings and acted thereon after determining that teacher tenure panel's findings were conclusory in nature, the board acted outside its role and function, and the board, after concluding the findings were inadequate, should have remanded the cause back to the panel for more specific findings, or should have sought judicial review.
5. Degree of Incompetence — Tenured Teacher — Warrant Dismissal — Within Determination — Teacher Tenure Panel — Grounds for Dismissal — Proven. The conclusion as to the degree of incompetence of a tenured teacher that is necessary for the teacher's dismissal is part and parcel of the determination to be made by teacher tenure panel as to whether the grounds for dismissal have been proven.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
Hobbs Waldbaum, P.C., Jeffrey I. Sandman, for plaintiff-appellant.
Henry, Cockrell, Quinn Creighton, Benjamin L. Craig, for defendants-appellees.
Plaintiff, Barbara Lovett, was dismissed from her employment as a tenured teacher by the defendant Board of Education of School District No. 1 in Denver. She filed a petition for review in the district court. From that court's judgment dismissing her petition, she appeals. We reverse and remand with directions.
Mrs. Lovett was suspended by the Superintendent of Schools who brought charges against her in which he recommended that she be dismissed because of her incompetency as a teacher. Thereafter, at her request, a teacher tenure panel was constituted, and after lengthy hearings and deliberation, it issued its findings of fact which can be summarized by the last sentence contained therein — "that the charge of incompentency of sufficient degree to warrant dismissal has not been proven." It then unanimously recommended that Mrs. Lovett be reinstated. The board received these findings and recommendation and announced that because the findings were so "sketchy and conclusory in nature," it could not make an evaluation of the proper course of action without first examining the transcript of the proceedings conducted by the panel. The board then issued its own findings, substituting them for those of the panel, and voted unanimously to dismiss Mrs. Lovett.
Mrs. Lovett's challenge to the above procedure requires us to define the precise relationship with the General Assembly intended to create between a teacher tenure panel and a school board in proceedings to adjudicate the rights of tenured teachers under the Teacher Employment, Dismissal, and Tenure Act of 1967. We hold that in substituting its own findings for those of the panel the board misapprehended its role and function as these were envisioned and intended by the General Assembly under the 1967 Act.
In constructing the statute at issue, it is fundamental that we must ascertain and give effect, if possible, to the legislative intent underlying its passage. Cross v. Colorado State Board of Dental Examiners, 37 Colo. App. 504, 552 P.2d 38. If, in attempting to do so, we find that the particular statutory language is unclear and ambiguous, as it is here, we may then, in order to glean some insight into the General Assembly's intent, look to the circumstances surrounding, and the history leading to, its passage. Lohf v. Casey, 330 F. Supp. 356.
Prior to 1949 the statute left to the local school board the decision of whether a tenured teacher was even entitled to a hearing prior to dismissal. Section 239, ch. 146, 1935 C.S.A. In that year, however, the General Assembly expanded the rights of tenured teachers by providing that any such teacher against whom charges had been brought was entitled, upon his request, to a hearing before the school board. Colo. Sess. Laws 1949, ch. 230. And the General Assembly manifested its continuing concern for the rights of tenured teachers when, in 1957, it enacted a statute which enabled all tenured teachers against whom proceedings had been commenced to have a hearing before a panel, one of whose members could be selected by the teacher. This panel, composed of 3 members, was empowered to hear the evidence and make findings of fact. Colo. Sess. Laws, ch. 233. We can only presume from this continuing pattern of statutory changes, resulting in a significant expansion of teacher rights, that the General Assembly intended to harness the school boards' previously unrestricted power of dismissal and to assure tenured teachers of greater protection of their rights than had previously been afforded. See Ridge Erection Co. v. Mountain States Tel. Tel. Co., 37 Colo. App. 477, 549 P.2d 408.
This conclusion as to what purposes our General Assembly intended to accomplish by enacting these statutes is buttressed when we view what was happening in other areas of employee rights at the time of these enactments. See State Highway Commission v. Haase, 189 Colo. 69, 537 P.2d 300; People in the Interest of M.K.A., 182 Colo. 172, 511 P.2d 477. Civil service employees subject to disciplinary action were, as early as 1935, accorded the right to have written charges filed, to have the opportunity to be heard, and to seek judicial review. See § 4, ch. 36, C.S.A. 1935. In 1957 the General Assembly enacted the Colorado Antidiscrimination Act with the stated purpose of protecting all employees from discriminatory and unfair employment practices. Colo. Sess. Laws 1957, ch. 176, p. 492; see State ex rel. Colorado Civil Rights Commission v. Adolph Coors Corp., 29 Colo. App. 240, 486 P.2d 43.
The courts also were moving in the direction of insuring that employees, particularly those with tenure in professional categories such as teachers, were not discharged except for good cause, impartially and fairly determined in accordance with the requirements of due process of law. In 1957 the right of a tenured teacher to continue in employment was held to be a constitutionally protected property right. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; see Note, 10 Vand. L. Rev. 139 (1957).
It was in the climate that the General Assembly enacted the Act of 1967. Its obvious purpose consistent with the emerging pattern was clear: to assure tenured teachers an impartial forum in which they could have an opportunity to defend themselves against charges alleging any of the statutory grounds for dismissal. See generally, Western Alfalfa Corp. v. Air Pollution Variance Board, 35 Colo. App. 207, 534 P.2d 796, aff'd 191 Colo. 455, 553 P.2d 811; § 22-63-116, C.R.S. 1973.
In furtherance of this purpose, the Act of 1967 provides that when a teacher's dismissal is sought by the chief executive officer of the district or by a member of the board, and if the board decides to accept the charges, the teacher is entitled to a hearing before a panel providing the teacher files a timely request therefor. Section 22-63-117(3), C.R.S. 1973. In this written request the teacher has the right to designate one member of the hearing panel. Such member shall, together with a member selected by the board, choose the third and final member. Section 22-63-117(5), C.R.S. 1973. At the hearing, which is thereafter held, the teacher is afforded the right to appear with counsel; to present all evidence bearing upon the reasons for her dismissal and all school district records pertaining to her work; to cross-examine witnesses; § 22-63-117(7), C.R.S. 1973, and to have a complete record and transcript made of all evidence adduced before the panel. Section 22-63-117(8), C.R.S. 1973. After the panel reviews the evidence, it is required to make written findings of fact and based thereon to recommend to the board that the teacher be either dismissed or retained. Section 22-63-117(8), C.R.S. 1973. The board's authority is limited to three possible alternatives: to dismiss, retain, or place the teacher on a one-year probation. Section 22-63-117(10), C.R.S. 1973.
[1] Because the statute is so explicit in enunciating the rights of tenured teachers, and because it specifically requires that, based upon the transcript and record of all the evidence, the panel make written findings of fact to be submitted to the board for review. We conclude that the General Assembly thereby intended that if there is evidence to support the panel's findings, then the board of education is bound by those findings and is not free to adopt different findings in order to discharge the teacher.
For the board to have the power to make its own findings of fact based upon its own review of the record and to thereby discard the panel's findings would be to vitiate the obvious purpose of the Act. If such were the case, the discretionary power of the board would be absolute, the panel's proceedings meaningless, and the tenured teacher would have no greater rights that were accorded a teacher prior to 1957. See Johnson v. Heggie, 362 F. Supp. 851. Indeed, by directing that a Teacher Tenure Panel, constituted in the same manner as an arbitration panel, make the findings of fact upon which dismissal must be based, the General Assembly has recognized that the board itself is not an impartial tribunal, and that its position is that of an adversary.
[2,3] In summary, we hold that the Teacher Tenure Panel is essentially an independent administrative agency charged with the responsibility of finding ultimate facts. It is not merely an "evidence gathering" arm of the school board. Its duties under the statute are prescribed as, and are limited to, a determination of whether any, or all, of the statutory grounds for dismissal of "tenured teachers" exist. To that end it is granted substantially the same powers and has the same due process responsibilities as other administrative fact finding agencies. Section 22-63-117 (5) and (6), C.R.S. 1973. And, it being an independent agency, we hold that the determination of a Teacher Tenure Panel is subject to judicial review, either at the instance of the teacher after the board has acted, or of the school board.
The fact that the Teacher Tenure Panel has the additional responsibility of making a dispositional recommendation to the school board does not alter or affect its independence or the finality of its decision. It may recommend retention even though it has found the statutory grounds for dismissal have been proven. The school board's role is that of the governing body of the district, and it is charged with the responsibility for the orderly administration of school affairs within the school district. Section 22-32-103, 109, 110, C.R.S. 1973. It has the sole power to determine what disposition should be made if a finding has been made that grounds exist entitling the board to dismiss the teacher under the statute. See § 22-63-116, C.R.S. 1973.
As to this dispositional decision the board's discretion remains supreme. See § 22-32-109, 110, C.R.S. 1973. As the governing and policy formulating body of the school district, it may retain the teacher, it may discharge the teacher, or it must place the teacher on a one year probation status. Section 22-63-117(10), C.R.S. 1973. On the other hand, it must retain the teacher if the panel finds that the statutory criteria for discharge have not been met.
We recognize that Dugan v. Bollman, 31 Colo. App. 261, 502 P.2d 1131, stands in part for an entirely different view of the board-panel relationship, then we have enunciated here, and to the extent that this holding is inconsistent therewith, we hereby overrule that case.
[4] In the instant case the board reached its own findings of fact and acted thereon after determining that the panel's findings were conclusory in nature. Such is not the board's role or function as we have said. When the board, after examining the record and the findings, reached the conclusion that the panel's findings were inadequate, the board should have remanded the cause back to the panel for more specific findings of fact, or in the alternative sought judicial review.
[5] We have also examined the findings of the panel, and disagree with the board's conclusion that the findings were inadequate because they were conclusory. We hold that the conclusion as to the degree of incompetence necessary for dismissal is part and parcel of the panel's determination as to whether grounds for dismissal have in fact been proven. However, we agree with the board that there are insufficient findings to support the panel's finding as to the ultimate fact.
Accordingly, we reverse the district court's judgment dismissing Mrs. Lovett's petition for review with directions to remand to the school board for further remand to the panel for more detailed and specific findings of fact.
CHIEF JUDGE SILVERSTEIN concurs.
JUDGE COYTE dissents.