Opinion
No. 70-622
Decided August 29, 1972. Rehearing denied October 11, 1972. Certiorari denied December 4, 1972.
Tenured teacher brought action challenging school board's procedures by which it terminated her employment. From district court judgment upholding the termination, teacher appealed. Affirmed
1. SCHOOLS AND SCHOOL DISTRICTS — Initial Action — Termination of Employment — Not Comply — Statutes — Res Judicata — Not Preclude — New Action. Where initial action for termination of employment of tenured teacher was abandoned as not being in compliance with the statutes, school board was not precluded, by application of res judicata, from initiating new proceedings to terminate teacher's employment.
2. Mere Acceptance — Charges Against — Tenured Teacher — Not "Policy" Decision — Not at Public Meeting — Not Error. Since the mere acceptance by the school board of the charges against tenured teacher was not a "policy" decision, the board committed no error in not having a public meeting when the charges were accepted.
3. Teacher and Counsel — Aware of Charges — Defense Presented — No Prejudice — Absence — Additional Specifications — Charges Adequate — Put on Notice. Since, from a review of the record, it is apparent that both the accused teacher and her counsel were well aware of the meaning of the charges against her and that an adequate defense was presented in her behalf by several witnesses who attempted to rebut the charges, there is no indication that teacher was prejudiced by the absence of additional specifications as to the charges and the charges were adequate to put teacher on notice of the evidence to be presented against her.
4. School Board — Concurrence — Panel's Recommendation — Not — Abuse of Discretion — No Delegation — Power of Dismissal. Where school board had before it sufficient information from report of its investigative panel to make an independent evaluation before adopting a course of action, no abuse of discretion was shown by its concurrence with the panel's recommendation, and, thus, the power of dismissal granted by statute was not delegated by the board.
Appeal from the District Court of Adams County, Honorable Oyer G. Leary, Judge.
F. E. Dickerson, John T. Dugan, for plaintiff-appellant.
Edward B. Towen, Morgan Smith, for defendants-appellees.
This dispute arose out of the termination of employment of Edna Dugan, a tenured teacher in School District No. 12, Adams County, Colorado. The school board, effective August 18, 1969, terminated Miss Dugan's employment in the school district. Pursuant to 1967 Perm. Supp., C.R.S. 1963, 123-18-17(11), she petitioned to the district court to reverse this determination. The district court upheld the dismissal. Miss Dugan now brings this appeal.
Miss Dugan contends, in part, that there was no compliance with statutory proceedings. 1967 Perm. Supp., C.R.S. 1963, 123-18-17. Reference hereafter will be only to the subsection number of that statute.
I.
Miss Dugan claims that the school board was precluded from terminating her employment since it initiated an action which was subsequently abandoned as not being in compliance with the statutes. Specifically, on April 10, 1969, the school board commenced dismissal proceedings, pursuant to the Teacher Tenure Act, as provided prior to the 1967 amendments thereto. This action was dismissed by agreement of the parties.
Her claim is essentially that the school board dismissed her on April 10, and, that, since this would have been without compliance to the proper procedures as provided in the 1967 amendments, it could not thereafter initiate new proceedings. We reject this contention.
[1] The Colorado Supreme Court has previously held an error in proceedings which results in those proceedings being a nullity does not preclude or taint subsequent proceedings arising out of the same factual situation. Snider v. Kit Carson School District, 166 Colo. 180, 442 P.2d 429. The dismissal of the original proceedings was not res judicata to the later action by the board.
II.
Miss Dugan also contends that the school board did not comply with the statutory scheme for dismissing a tenured teacher. We disagree.
On May 19, 1969, the school board met in an executive session and, on the formal recommendation of its chief executive officer that Miss Dugan's employment be terminated, initiated new proceedings against her. At that meeting, formal charges were accepted for review in the manner prescribed by 123-18-17(2).
On May 22, 1969, Miss Dugan received a copy of the charges against her and a copy of the applicable statutes. See 123-18-17(3). A panel was appointed, pursuant to 123-18-17(5), to hear the charges. On June 6, 1969, hearings commenced and the unanimous findings of the panel, issued on August 6, 1969, recommended that she be discharged. See 123-18-17(8)(a). As mentioned above, the board, after reviewing the panel's findings, (123-18-17(10)), subsequently adopted these findings and terminated Miss Dugan's employment.
Miss Dugan argues that all statutory requirements were not met.
[2] Specifically, she complains that the school board committed a procedural error when it accepted the charges against her for review in an executive session on May 19, 1969. She cites 1965 Perm. Supp., C.R.S. 1963, 123-30-8(5), which states, in pertinent part,
"All regular and special meetings of the board shall be open to the public, . . . . At any regular or special meeting the board may proceed in executive session, at which only those persons invited by the board may be present, but no final policy decisions shall be made by the board while in executive session."
It is Miss Dugan's contention that, because the meeting on May 19, 1969, was not a public meeting, acceptance of the charges was erroneous. However, the mere acceptance of charges for review was not a "policy" decision. See Lockheed Aircraft Corp. v. Superior Court, 153 P.2d 966 (Cal.Ct.App.). Rather, it set in motion the procedure leading to the eventual policy decision on August 18, 1969, when, pursuant to the findings of the panel, the decision to terminate Miss Dugan's employment was actually made. The August 18th meeting was a public meeting, conducted fully under the requirements of the statute. We find no error in not having a public meeting when the charges were accepted.
Miss Dugan argues that her situation is the same as that set forth in Robb v. School District RE 50 (J), 28 Colo. App. 453, 475 P.2d 30. That case is distinguishable. It concerned the interpretations of the provisions of C.R.S. 1963, 123-18-5, regarding transfers. There, a conclusive policy decision was made by the board determining that the plaintiff was unsatisfactory in his position as a principal, and there was no indication that any vote was taken by the board, as the statute requires, to "deem" the plaintiff as unsatisfactory.
III.
Miss Dugan then contends that the school board's charges did not adequately set forth the nature of the evidence to be presented against her, and that her motion for a bill of particulars and to make more specific should have been granted. She was notified of the charges against her on May 22, 1969. They were as follows:
"(a) Ineffective and inadequate teaching of her students.
"(b) Ineffective and inadequate maintenance of discipline.
"(c) Continued use of inadequate and ineffective teaching aids and materials.
"(d) Failure to grade students accurately.
"(e) Failure to maintain a proper relationship with parents and to counsel the parents toward improved performance by their children.
"(f) Failure to use new and improved teaching methods and materials.
"(g) Failure to accept and adhere to recommendation by her superiors and counselors, aimed at improving her performance."
It is apparent from a review of the record that both Miss Dugan and her counsel were well aware of the meaning of these charges, and that an adequate defense was presented in her behalf through several witnesses who attempted to rebut the charges.
[3] There is no indication that Miss Dugan was prejudiced by the absence of additional specifications. The fact situation here is closely analagous to that in Fahl v. School District No. 1, 116 Colo. 277, 180 P.2d 532, where the court stated:
"It is quite apparent that, the nature of the charges considered, the minute factual details apparently expected by Fahl could not well have been given without pleading evidence, and even so would have added nothing of service to him beyond the information of which he was already possessed."
Accordingly, we hold that the charges were adequate to put Miss Dugan on notice of the evidence to be presented against her.
IV.
Miss Dugan further claims that the school board did not properly review the findings of the panel in arriving at its decision to discharge her. The statute provides that the board shall "review the panel's findings of fact and recommendation and it shall enter its written order." 123-18-17(10). It has been held by this Court that the school board must consider the findings, rather than just the conclusions, of the appointed panel, for the statutory authority to dismiss a teacher rests exclusively with the board by statute. A board's failure to consider the findings would be an unlawful delegation of its power to the panel. School District No. 50 v. Witthaus, 30 Colo. App. 41, 490 P.2d 315. But, here, there has been no such delegation.
The panel, in its report to the board, made extensive and detailed findings that specified and condensed the four days of testimony. These findings were explicit and solidly based on substantial evidence as shown by the record. The members of the school board were thoroughly familiar with the findings, as well as the conclusions, of the panel before making their decision at an open meeting. Under these circumstances, the fact that they did not go beyond the panel's findings and personally read the entire transcript of the proceedings before the panel is not error.
[4] The school board had before it sufficient information from the report of the panel to make an independent evaluation before adopting a course of action. No abuse of discretion has been shown in its concurrence with the panel's recommendation. Therefore, the power of dismissal granted in 123-18-17(1) was not delegated by the board.
V.
We have reviewed the other allegations of error made by Miss Dugan and find them to be without merit. The school board complied with the procedural safeguards outlined in 1967 Perm. Supp., C.R.S. 1963, 123-18-17 and 1965 Perm. Supp., C.R.S. 1963, 123-30-8(5).
Judgment affirmed.
JUDGE COYTE and JUDGE ENOCH concur.