Opinion
No. 72-323
Decided December 26, 1973. Rehearing denied February 26, 1974. Certiorari granted May 6, 1974.
School board transferred tenured teacher from his position as school principal to that of classroom teacher, and teacher brought action alleging that the transfer was ineffective because the board failed to comply with the applicable statutes. From dismissal of plaintiff's complaint, plaintiff appealed.
Affirmed
1. SCHOOLS AND SCHOOL DISTRICTS — Formal Resolution — School Board Meeting — In Effect — Plaintiff — Deemed Unsatisfactory — Present Statute — Not Require — Transfer — Effective. Where minutes of school board meeting reflect a formal resolution approved by roll call vote affording plaintiff an opportunity to resign his position, such action, in substance, deemed plaintiff unsatisfactory in his position as was required by statute in effect when plaintiff acquired tenure, and since the present statute does not contain such a requirement, teacher's contention that his transfer from an administrative position was ineffective is without merit.
2. Failure — Comply — Notice Requirements — Not — Fatal Defect — All Members — Attended. The failure of school board secretary to comply with statutory notice requirements to board members relative to special board meeting is not a fatal defect in the proceedings when the meeting is attended by all of the members composing the board.
3. Transfer — Tenured Teacher — Position as Principal — Type of Decision — School Board — Could Take — Executive Session. School board decision to transfer tenured teacher from his position as principal was type of specific, ad hoc action which the board may take in executive session.
4. School Board — Has Made — Decision to Transfer — Administrative Details — May Be Delegated. Once a school board has made the decision to transfer a teacher, the resulting administrative details such as building and room assignment consistent with the position for which the teacher is qualified properly may be delegated to subordinates.
Appeal from the District Court of the County of El Paso, Honorable Patrick M. Hinton, Judge.
Hobbs and Waldbaum, Larry F. Hobbs Stan M. Connally, for plaintiff-appellant.
Horn, Anderson Johnson, R.E. Anderson, for defendants-appellees.
This case involves the transfer of a tenured teacher from his position as school principal to that of classroom teacher. Plaintiff, Max J. Wheeler, brought suit against School District No. 20 and the individual directors thereof alleging that the transfer was ineffective because the board failed to comply with the applicable statutes. Plaintiff sought injunctive relief and damages. The trial court found for defendants and dismissed plaintiff's complaint. We affirm.
Plaintiff was first employed by the board in 1962, and he acquired tenure when reemployed for the 1966-67 school year. He began his employment in the position of assistant principal and from 1966 to April 27, 1971, he occupied the position of junior high school principal. On March 19, 1971, members of the board consulted with plaintiff concerning complaints received about disciplinary problems at his school. Plaintiff testified that subsequently he made certain efforts to resolve the difficulties. The superintendent of schools conducted an extensive investigation of the situation. On April 27, 1971, plaintiff was asked to attend a meeting of the board. At that time, he was informed that he was being dismissed as principal of the junior high school for the balance of the 1970-71 school year. The minutes of the meeting contain the following entry:
"Mr. Burt Bittner moved and Mr. Tom Huzzey seconded that Mr. Wheeler be afforded the opportunity to resign as principal of Air Academy Junior High and as a teacher."
An addendum to the minutes contains a resolution transferring plaintiff from his position as principal to a position of classroom teacher. The testimony establishes that the special meeting was held without public notice or public attendance. In August 1971, the superintendent of schools assigned plaintiff to the position of elementary school physical education teacher.
This suit was brought on August 30, 1971. At the conclusion of the proceedings, the trial court dismissed plaintiff's complaint. On appeal, he contends that his transfer was ineffective because the action was taken in a procedurally irregular manner, and that the trial court erred as a matter of law in its finding that he was qualified as an elementary school classroom teacher of physical education.
I.
Plaintiff contends that his transfer from his administrative position was ineffective because he has not "deemed unsatisfactory" by the board as required by C.R.S. 1963, 123-18-5. The board points out that this provision of the statute was repealed and reenacted by 1967 Perm. Supp., C.R.S. 1963, 123-18-14(2), which deleted the requirement that a teacher must be "deemed unsatisfactory" before being transferred from an administrative or executive position. In response, plaintiff asserts that since he acquired tenure under the prior statute, the protection afforded by that statute cannot be removed by a subsequent amendment. He argues that the Teacher Tenure Act creates a contractual relationship between the teacher and the board, and that a statutory amendment or repeal which alters those contractual rights constitutes and impairment of contract prohibited by Colo. Const. Art. II, Sec. 11, and U.S. Const. art 1, § 10.
We need not decide whether the board's action was governed by the 1963 or the 1967 version of the statute because the transfer of plaintiff from his administrative position satisfied the requirements of both statutes.
The statute in force when plaintiff acquired tenure, C.R.S. 1963, 123-18-5, stated:
"That a teacher who has been occupying a position of an executive or administrative nature, may if deemed unsatisfactory in such position be returned to regular classroom teaching . . . . "
In Robb v. School District RE 50(j), 28 Colo. App. 453, 475 P.2d 30, we held that a similar transfer was ineffective because the board failed to take any formal action by roll-call vote deeming Robb unsatisfactory in his administrative position. However, the board's action in the instant case does not suffer from the defect that was present in Robb, supra. Here, the minutes of the board reflect a formal resolution approved by roll-call vote affording plaintiff an opportunity to resign his position. Thus, the board took formal action which, in substance, deemed plaintiff unsatisfactory in his position. In the context of the board meeting, the resignation resolution could not be understood in any other way. Accordingly, we conclude that the action of the board satisfied the requirements imposed by C.R.S. 1963 123-18-5, and the Robb case.
The present statute, 1967 Perm. Supp., C.R.S. 1963, 123-18-14(2), states:
"A teacher who has been occupying an executive or administrative position may be assigned to another position for which he is qualified with a reduction in salary if a vacancy exists in such a position . . . . "
A finding that the teacher is unsatisfactory in his administrative position is not a prerequisite to transfer under the statute.
[1] Since the action of the board was sufficient to satisfy the requirement that plaintiff be "deemed unsatisfactory" under C.R.S. 1963, 123-18-5, and since the present statute contains no similar requirement, we conclude that plaintiff's contention on this issue is without merit.
II.
Plaintiff contends that his transfer was ineffective because the meeting of the board was conducted in a procedurally irregular manner.
[2] First, plaintiff asserts that the procedure was defective because the secretary of the board did not give written notice of the special board meeting to each member of the board as required by 1965 Perm. Supp., C.R.S. 1963, 123-30-8(2). The testimony establishes that members of the board received oral notice of the meeting. Further, the record shows that all board members were present and participated in the meeting. The failure to comply with statutory notice requirements is not a fatal defect in the proceedings when the meeting is attended by all of the members composing the board. 1965 Perm. Supp., C.R.S. 1963, 123-30-8(3); 4 E. McQuillin, Municipal Corporations §§ 13.08c, 13.37a.
Secondly, plaintiff asserts that his transfer was ineffective because the action was taken at a board meeting which was not open to the public. The meeting was held in the administration office of the school district. This aspect of meetings of the board is governed by 1965 Perm. Supp., C.R.S. 1963, 123-30-8(5), which reads as follows: "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 decision shall be made by the board while in executive session."
[3] The predecessor of the present statute, C.R.S. 1963, 123-10-18, required that all business be transacted at public meetings and prohibited any voting at an executive session. However, the present statute, quoted above, contemplates that a school board may make some decisions in executive session but commands that "final policy decisions" be made in public meetings. The statute precludes the board from making decisions of a general nature or adopting a broad course of action in an executive session. However, the decision to transfer plaintiff from his position as principal was a type of specific, ad hoc action which the board of education may take in executive session. See City Council of the City and County of Honolulu v. Fasi, 52 Hawaii 3, 467 P.2d 576; Lockheed Aircraft Corp. v. Superior Court, 153 P.2d 966 (Cal. Dist. Ct. App.). Accordingly, we conclude that the action of the board in transferring plaintiff from his position as principal was not procedurally irregular.
III.
[4] Plaintiff next asserts that the authority to reassign him was improperly delegated to the superintendent of schools. Plaintiff concedes that the minutes of the board reflect its decision to transfer him from his position as principal to a position of classroom teacher. Plaintiff maintains, however, that the board did not determine the specific position he was to take and that the superintendent could not properly make that decision. We disagree. A similar argument was made in Frank v. Arapahoe County School District, 31 Colo. App. 479, 506 P.2d 373. There, we held that once the board has made the decision to transfer a teacher, the resulting administrative details such as building and room assignment consistent with the position for which the teacher is qualified properly may be delegated to subordinates.
IV.
Plaintiff next contends that the trial court erred as a matter of law in its finding that he was qualified as an elementary school classroom teacher of physical education. Plaintiff further asserts that his reassignment to a position for which he was not qualified renders the reassignment invalid.
There was considerable testimony adduced at the trial concerning plaintiff's qualifications to teach physical education at the elementary school level. The testimony on this question was contradictory. The trial court found that plaintiff was properly qualified for the position to which he was assigned. From our examination of the record, we conclude that this finding of the trial court was supported by substantial and competent evidence. Accordingly, it will not be disturbed on review. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
We have considered plaintiff's other contentions and find them to be without merit.
The judgment is affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.