Opinion
No. 21776
Decided December 26, 1967. Rehearing denied January 15, 1968.
From a judgment of the district court affirming the dismissal of a teacher under tenure by the School Board and by the Colorado Commissioner of Education, the teacher brought error.
Reversed
1. SCHOOLS AND SCHOOL DISTRICTS — Panel Hearing — Charges — Teacher — Statute — Constitution — Delegation of Function — Propriety. C.R.S. 1963, 123-18-7(5) providing for the appointment of a panel to hear the testimony concerning the specifications of charges against a teacher does not offend against section 35, Article V of the Colorado constitution; it is not an unconstitutional delegation of a municipal function to a special commission.
2. Naming of Panel — Violation of Statute — Charges — Teacher — Testimony — Disapproval of Court — Prevention — Rehearing — Negative. Reviewing court is of the view that the procedure used in instant case with reference to the naming of a panel to hear testimony concerning specifications of charges against teacher was not done in accordance with statutory mandate and accordingly voices its disapproval to prevent similar violations in the future; nevertheless, it is of the view that no different result would ensue even if a rehearing were ordered.
3. Discharge — Teacher — Record — Insufficiency — Charges. Reviewing court is of the view that the record is wholly insufficient to sustain discharge of teacher charged with neglect of duty, incompetency and insubordination.
4. Discharge — Teacher — Burden of Proof — Party Making Charge. In a proceeding involving the discharge of a school teacher, the burden of proof is upon those making the charge against the teacher.
5. Teacher — Discharge — Rule — Violation — Lack of Proof. In a proceeding involving the discharge of a teacher with tenure, proof of school board rule and deliberate violation of such rule by teacher was lacking in instant case.
Error to the District Court of El Paso County, Honorable Patrick M. Hinton, Judge.
Young and Young, for plaintiff in error.
Horn, Anderson Johnson, for defendants in error.
This writ of error is directed to a judgment of the district court of El Paso County affirming the dismissal of Bernice Nordstrom, a teacher under tenure, by the School Board of District No. 8 in the county and by the Colorado Commissioner of Education.
Mrs. Nordstrom was a teacher of seventeen years experience, holding a Master of Arts degree in Education. She had taught for six years in School District No. 8, and by reason of that service was entitled to permanent appointment unless discharged for good cause pursuant to the Teacher Tenure Act of Colorado, C.R.S. 1963, 123-18-1 to 9, inclusive.
In the summer of 1963 the superintendent of schools for the district sought termination of Mrs. Nordstrom's employment as a teacher and sent a letter to that effect to the district school board. He set forth six charges against the plaintiff. A copy of the letter and charges were mailed to Mrs. Nordstrom, and a hearing was afforded her, all as provided by pertinent statute, C.R.S. 1963, 123-18-7. The three member panel which convened as provided in the statute and before whom testimony was adduced in an effort to support the charges, found that the evidence was insufficient to substantiate the allegations made against Mrs. Nordstrom. Thereafter, the school board, after reviewing the transcript of the testimony before the 'hearings panel," ruled that the "panel had acted arbitrarily and with abuse of discretion"; it rejected the panel's determination. The board ordered Mrs. Nordstrom's contract cancelled, whereupon Mrs. Nordstrom appealed the decision to the Colorado Commissioner of Education pursuant to C.R.S. 1963, 123-18-7(5)(g). He affirmed the dismissal.
Mrs. Nordstrom brought action in the district court in the nature of certiorari to review the proceedings before the panel, the school board, and the commissioner of education. The district court found that the school board and the commissioner had complied with the statutory requirements for discharge of Mrs. Nordstrom and that the commissioner of education "did not exceed its [sic] jurisdiction or its [sic] discretion." Judgment was, accordingly, entered in favor of the board and against Mrs. Nordstrom.
In her summary of argument, Mrs. Nordstrom urges three grounds for reversal:
I. The "panel hearing" provisions of the statute, C.R.S. 1963, 123-18-7(5), is unconstitutional.
II. If constitutional, the statutory procedure was nevertheless "flagrantly disregarded."
III. The evidence wholly fails to support the charges.
I.
In the matter of the provision for the appointment of a panel to hear the testimony concerning the specifications of charges against a teacher, suffice it to say that the statute does not offend against section 35, Article V of the Colorado constitution. The General Assembly has not delegated to a specific commission (in this case the panel) the functions of the school district (which we have, of course, many times described as being a municipal or quasi-municipal corporation). Plaintiff's argument is wide of its mark: she fails to recognize that the panel has not been delegated any powers whatsoever. It merely conducts the hearing which is transcribed for the school board which by law is the agency empowered to accept or reject the recommendation of the panel. The "municipal function" i.e., whether the teacher's contract should be cancelled, abides in the school board, the duly constituted authority. No cases are cited by plaintiff, and we in our research have found none to support her assertion that the procedure involving a hearing before a panel of three is an unconstitutional delegation of a municipal function to a special commission.
II.
Mrs. Nordstrom contends that if the statutory procedure for the convening of a panel of three is constitutional, the naming of the panel in this instance was not done according to the statute. A review of the procedure used in this case indicates that the statute was violated and the panel was not duly constituted. Mrs. Nordstrom, according to procedure, named her panel member and transmitted his name to the board. However, the selection of the second panel member, which by law is to be made by the board, was, in fact, made by the superintendent of schools. (As to the illegality of a school board's duties being exercised by others, see Big Sandy School District v. Carroll, 164 Colo. 173, 433 P.2d 325. The two panel members then designated a third. The member ostensibly representing the board, being illegally appointed, his participation in the selection of the third member was tainted with his own disqualification. We call attention to the procedure that was used in this case only to indicate our disapproval of it and to be sure that there be no similar violations of the statute in the future. Nevertheless, we hold that there could be no different result than the one which we determine, even if a rehearing was granted under a duly constituted panel, so it would be a useless and meaningless procedure involving an inordinate waste of time and further delay to remand this action back for further hearing before another panel.
III.
This brings us to a determination of the third and controlling argument — that the evidence did not support the charges against Mrs. Nordstrom.
We find that the record is wholly insufficient to sustain her discharge. The superintendent's charges against Mrs. Nordstrom were parenthetically designed by him as: 1. neglect of duty; 2. incompetency; 3. insubordination. The superintendent charged in specification 3 "that Mrs. Nordstrom physically manhandled students in her classroom [incompetency] on a number of occasions" and in 4 "that Mrs. Nordstrom physically manhandled students in her classroom even though action of this sort is definitely against the stated school board policies [insubordination]."
As has been stated, the panel found that there was no evidence to support these or any other charges. The school board, rejecting the panel's determination, ordered Mrs. Nordstrom's discharge on the following grounds:
1. Mrs. Nordstrom's testimony showed she "deliberately violated" the rules of the school board for School District No. 8 concerning corporal punishment;
2. Mrs. Nordstrom's testimony showed that she has a class of problem children, hard to manage;
3. Mrs Nordstrom's testimony impugned "the financial integrity of the school district."
Grounds 2 and 3, upon which the board relied for dismissal, bear no relationship to any of the charges filed against Mrs. Nordstrom. At the time of the hearing she did not know of and was not required to meet any such charges, and we find no authority in the law warranting a teacher's discharge on such grounds.
As to the first ground which the school board relies upon as justifying Mrs. Nordstrom's dismissal, there was no evidence in the record that the school board had passed any rule or regulation which Mrs. Nordstrom had violated. The specification of charges against Mrs. Nordstrom was "the manhandling of students against stated school policies." Introduced into evidence was a booklet containing the following:
"' Colorado School Law permits reasonable corporal punishment.' It is difficult to determine what is meant by 'reasonable.' Corporal punishment shall be administered only as a last resort and shall be done so in the building principal's office by, or witnessed by, the principal. Regardless of this policy, in view of the attitudes of many parents and courts, it is dangerous to administer such punishment. When the action of a child seems to warrant such punishment, a conference of the teacher, parent, and principal should be held to discuss the action and the consequences of any possible recurrence of this action."
It was nowhere established that the matters and things contained in the booklet were regularly enacted as rules by the school board. The "foreword" in the booklet is signed by Dean Fleischauer, Superintendent. The foreword states, among other things, that, "the purpose of this booklet is to provide each faculty member a brief summary of the Main School Board and administrative policies."
[4, 5] It is axiomatic that the burden of proof was upon those making the charge against the teacher. First of all it was required that there be proof of the school board rule and, secondly, that Mrs. Nordstrom deliberately violated a rule of the board. Such proof was lacking. An admission by Mrs. Nordstrom that she had slapped a girl who wouldn't keep quiet was the only testimony on the subject. Such does not substantiate a charge of "manhandling students on several occasions." Nor does the occurrence of an incident substantiate a charge of insubordination or wilful violation of a board rule on which the board relies for its decision.
The judgment of the trial court affirming the cancellation of Mrs. Nordstrom's contract is reversed. The matter is remanded to the district court with directions to enter an order setting aside the school board's cancellation of Mrs. Nordstrom's contract and to order the school board to reinstate her as of the date of the discharge with full tenure privileges.
MR. JUSTICE KELLEY specially concurring.
MR. JUSTICE McWILLIAMS dissenting.