*1 custody disputes present agonizing Child parties situation of the and the children judges. for trial decisions court While it might may be. New evidence need to be undoubtedly would be better for the children concerning introduced the current circum every parent if divorced maintained close parties stances of the and of the children.12 geographic emotional and ties to their chil- Thus, we conclude that the trial court’s order dren, the realities of life after divorce often must be overturned.13 custody interfere. After award of is en- tered, give the court should deference to the V. decisions parent made the custodial We therefore reverse the court of not substitute its own for that of decision. return this case to the court of parent absent some reason to do so. appeals with directions to remand it to the parents Neither the child nor the benefit trial court for a on the motions repeat appearances
from before the court or permit deny removal of the if uncertainty children still thereby. from the caused In- stead, at If uncertainty only issue. Chobot still desires remove serves to threaten the stability the children parties’ oppos- child’s to New York and Francis undermine the it, acceptance original es the trial court custody. award of must consider the issue under the rubric of the standard for removal The trial court here made no as outlined herein. finding specific physical or emotional harm that would result if they the children
moved to New York with their mother. The gave weight no relationship be parent
tween the custodial and the children primarily upon
and focused geographical
advantages to remaining the children of Although
Fort Collins. the trial court did finding enter a change of environ ADAMS COUNTY SCHOOL DISTRICT moving ment to New York 50, Petitioner, NO. significantly “would impair [the children’s] development,” emotional it is unclear wheth v. er the trial court expanding upon HEIMER, Respondent. Jan analysis truly best interests or was address endangerment No. standard. Because we 94SC706. application have clarified of the standards of Colorado, Supreme Court of section 14-10-131 and accorded the custodial En Banc. parent presumption, we must direct that this case be remanded for the trial court’s June analysis under these standards. Since three years elapsed following entry have
trial subject court order that is the of this
appeal, we are uncertain present what the analysis respect
12. The with to the oldest child 13. We also note that the trial court entered a different, may living because she has order, been contingent custody depen- modification of joint custody Parenting under a decree and Joint upon moving Change dent Chobot to New York. years. Plan for the party last three Should either custody may only be ordered based on circum- previous they wish to revisit the motions as relate existing change being stances at the time the child, to the oldest the trial court will need to contemplated. An automatic order of modifica- consider all relevant evidence. We reverse and inappropriate. tion in the future is thus A court changing remand the trial court order oldest cannot determine what will be in the child's best custody child's because we are unable to deter- Koenig Koenig, interests in the future. applied mine proper whether the trial court (Mo.Ct.App.1989). S.W.2d that, recognize age standard. We because of her circumstances, the trial court not be called to reconsider new motions or find them moot.
I. 7, 1992, Superintendent On December County-Westminster of the Adams School District charges against filed written Heimer *3 recommending with the Board that Heimer incompetency, be dismissed for neglect of duty, unsatisfactory performance, insubordi- good just nation or other and cause.1 Pursu- 22-63-302(3), (1995), ant to section 9 C.R.S. requested evidentiary Heimer hearing be- impartial fore an hearing officer. After a day hearing, hearing nine officer entered findings establishing grounds of fact two for dismissal: neglect insubordination and duty. Despite findings, these hearing officer recommended retention of the teach- recommendation, er. In the hearing offi- “[tjhese explained acts, cer when consid- Jackson, P.C., Semple & Semple Martin ered the context of all of the reasons for Denver, Mooney, and Patrick B. for Petition- terminated, which she was do not stand er. themselves as cause for dismissal.” Association, Colorado Education Martha The Board reviewed the officer’s Houser, Lawler, Gregory R. Sharyn J. E. findings of fact pursu- and recommendation Dreyer, Cathy Cooper, Bradley L. C. Bar- ant to (1995), tels, Aurora, Maikovieh, Aurora, William J. and entered an dismissing order Heimer for Respondent. for insubordination neglect duty. and incorporated Board Boards, certain of Colorado Association of School findings in its Order Kingsbery, Lauren B. of Dismissal to for Amicus Curiae Col- support its explained decision. The Board orado Association of School Boards.
that its totality review of the of the evidence indicated that Opinion Justice KOURLIS Heimer did have delivered the deficiencies teaching in her which Court. should have been cor- rected improve and that Heimer did not after granted We certiorari to review Heimer v. attempts at remediation. Education, Board County-West- Adams The court undertook review of minster School District 895 P.2d the Board’s order under (Colo.App.1994), section 22-63- ap- which the court of 302(10)(c), C.R.S. peals appeal by reversed the decision of the Board of Heimer. The determined County-Westmin- Education of the Adams (the Board) proceed statute directed it to ster School District to dismiss follows: Jan position Heimer from her as a- non-
probationary pursuant to the Teach- Act], Under the new statute [1990 we Employment, er Compensation, and proceed Dismiss- must compare then the conclu- (or §§ al -403, facts) Act of 22-63-101 to sions adopted by ultimate We reverse the board of education with the offi- supported remand the case cer’s of fact. If the with directions to review the Board’s decision supported by conclusions are not arbitrary, determine if it capricious, findings, such the board’s decision must be legally impermissible. vacated. charges alleged 1. The written ships. charges alleged that Heimer had also that Heimer (1) instruction; (2) been deficient in: classroom supervisors failed to follow directives from her long (3) range planning; and short classroom and school administrators. management; interpersonal relation- (4)Whether hand, erred If, other both conclu- on the and those of concluding officer’s rec- sions of supported by rationally support are more in the rec- ommendation has findings, we to com- will be those contrary decision of ord than the board force pare to balance the of each of education. body’s conclusions. affirm deter Educ., County- Adams Heimer Board in this mination that record consisted No. Sch. Dist. Westminster case of the since (Colo.App.1994). implementing In this party challenged findings. these neither “rec procedure, review the court defined the addition, recognize that edu we boards of to be the purposes ord” for primary responsibility hiring cation have *4 Ultimately, findings of fact. officer’s firing and in their teachers school districts. that: court concluded R-1, Snyder County Sch. v. Dist. Jefferson hearing officer determined [B]eeause (Colo.1992). 624, 842 P.2d 681 Because we did, fact, engage in that Heimer certain 22-68-302(10)(c), that 9 conclude neglect duty, acts insubordination and principle, this we C.R.S. embraces say is we cannot that the board’s decision for additional review. reverse and remand supported by findings those legally person reasonable could reach the that no that Heimer should be termi- conclusion II. Hence, that we cannot conclude nated. This is a teacher dismissal case: the first must be ultimate determination such to reach this court since enactment case any legal it founda-
vacated because
lacks
Employment, Compensation,
Teacher
tion.
1990,
and Dismissal Act of
sections 22-63-
hearing
offi-
Our conclusion
[is]
(1995) (hereinafter
Act”).2
101 to -403
“1990
support
finds more
cer’s recommendation
upon
here called
to evaluate the role
We are
record than does the board’s deci-
assigned
the 1990 Act to the court of
sion. ...
by a
reviewing
a decision made
Heimer,
(emphasis
origi-
P.2d at
895
160
a
over
board of education to dismiss
teacher
nal).
deter-
Because
hearing
a
officer that
recommendation of
hearing
mined that the
officer’s recommen-
retained.
dation rather than
Board’s decision had
support
more
in the
it
reversed
provides
a
Act
teacher who
The 1990
dismissing Heimer
her
Board’s order
from
subject
has
a chief administrative
been the
position and ordered reinstatement.
of dismissal
officer’s recommendation
granted
court
certiorari
review:
This
impartial
hearing
an
hear-
request a
before
(1)
erred
Whether
(1995).
22-63-302(3),
§
9
officer.
C.R.S.
concluding
that its review of
hearing
charged by
officer is
the statute
findings
hearing
limited
exhibits,
evidence,
hearing
reviewing
with
when a school board dismisses a teacher
§
making
written
of fact.
22-63-
contrary to the
officer’s recom-
(1995).
302(8),
9 C.R.S.
officer
party
mendation
neither
asserts
teach-
is to recommend to the board that the
evidentiary
support;
lack
those
er
be retained or dismissed. Id.
either
(2)
appellate
respon-
review of
Whether
The board must then
employment
requires
dent’s
def-
findings of fact and recommendation
by a
erence to decisions made
board of
22-63-302(9),
order.
9
education;
and enter written
(1995). If the board orders dismissal
appellate
court must re-
Whether
over the
officer’s rec-
the teacher
ground
specific
view school board’s
retention,
is di-
ommendation
dismissing
after a
conclusion,
retention;
giving its
has
to arrive at a
recommended
rected
[and]
District,
prior to
Snyder
County
the case had arisen
v.
School
the 1990 Act because
Jefferson
(Colo.1992),
apply
passage.
we
P.2d 624
declined to
its
therefor,
reasons
sup-
legislature. Snyder
which reasons must be
v.
County Sch.
Jefferson
ported by
R-1,
(Colo.1992).
the record.
Id.
Dist.
842 P.2d
To
so,
do we first
statutory language
look to the
circumstances,
Under those
the teacher
interpret statutory
terms in accordance
appeals.
seek recourse in the court of
plain
with their
meaning.
and obvious
Ber
Section
Comm’rs,
trand v.
County
Board
872 P.2d
22-63-302(10)(e) provides as follows:
(Colo.1994).
Furthermore,
when
(e) The action for review shall be based
possible, statutes should be construed so as
the record before the
officer.
questions
to avoid
of their constitutional va
If the decision of the board to dismiss the
lidity.
Thomas,
People
867 P.2d
teacher was in accordance with the recom-
(Colo.1994); Perry
Park Water & Sani
mendation of the
Corp.,
tation Dist. v. Cordillera
shall review such record to de-
(Colo.1991).
termine whether the action of the board
The issue here is whether or not the stat-
arbitrary
capricious
or was
preserves
ute
and is
ap-
consistent with the
impermissible. If the decision of the board
propriate
responsibilities
allocation of
among
to dismiss the teacher was made over the
hearing officer,
board,
and the court
hearing officer’s recommendation of reten-
*5
appeals.
If the
usurp
statute were read to
tion,
the court of
shall either af-
board,
the role of the
by elevating
either
firm the decision of the board or affirm the
hearing officer’s
equal
recommendation to an
recommendation of the
plane
by
with the board
requiring
decision or
upon
based
the court’s review of the record
give
to decline to
defer-
as a whole and
the court’s own
decision,
ence to the board
then the constitu-
as to whether the board’s decision or the
tionality of the statute would be in doubt.3
hearing officer’s recommendation has more
support in
In determining
the record as a
whole.
intent of the
Act, a
precursors
brief review of the
to the
Thus,
when the court of
is review-
initially
1990 Act is
instructive. The 1990
ing a board’s decision of dismissal that
is
replaced
Act
Employment,
the Teacher
Dis
consistent
with the
officer’s recom-
missal,
1967,
§§
Tenure Act of
22-63-
mendation, the court is to determine whether
-118,
(1988
101 to
9
Supp.)
C.R.S.
& 1989
arbitrary,
the board action
capricious,
was
or
(hereinafter
Act”).
“1967
Under the 1967
legally impermissible. We must determine
Act, a teacher could obtain review of board
here what standard the court is to use when
pursuant
24-4-106(11),
action
to section
10A
reviewing a decision of the board that
is
(1988),
C.R.S.
of the State Administrative
contrary
to a
officer’s recommenda-
(hereinafter APA).
Procedure
§
Act
22-63-
tion of retention.
117(11),
(1988).
Section 24^U
106(ll)(e)
APA,
turn,
in
directed the
A.
to review board action in
primary
Our
construing
task in
24-4r-106(7),
accordance with section
10A
give
(1988).4
statutes is to
effect to the intent of the
Essentially,
C.R.S.
section 24r-4r-
3.
error,
We have concerns about whether such a con-
If the court finds no
it shall affirm the
impermissible
struction
delega-
would cause an
[board’s] action.
If it finds that the [board’s]
arbitrary
tion of the school
capricious,
action is
or
a denial of
statutory right,
Greeley
contrary
officer. See
City
right,
Police Union v.
Council
to constitutional
419, 423,
790,
power, privilege,
Greeley,
immunity,
191 Colo.
or
553 P.2d
excess
statu-
792
(1976);
jurisdiction,
398,
tory
authority, purposes,
Hansford,
Nordstrom v.
or limita-
164 Colo.
tions,
401,
397,
procedures
not in accord with the
question
435 P.2d
398
We also
procedural limitations
this article or as other-
might
legisla-
whether such a construction
vest
law,
required by
clearly
wise
an abuse or
un-
authority
tive
separation
in the court of
violative of
discretion,
warranted
findings
exercise of
based
powers principles.
See Federal Ra-
clearly
of fact that are
erroneous
Co.,
464,
dio Comm’n v. General Elec.
281 U.S.
record, unsupported by
the whole
469,
substantial
389, 390-91,
(1930);
50 S.Ct.
791
courts were
ap
be dismissed and
106(7),
required the court
applied,
.
give deference to the board’s decision
dismissing a
peals
board decisions
to review
arbitrary, capricious, or
utilising an
Hence,
statutory and
law
common
of review.
impermissible standard
legally
Act
context within which we
the 1990
Dist.,
County Sch.
Snyder v.
See
Jefferson
replete
is
with use of
deferential arbi
(Colo.1992);
624,
n.
Blaine v.
629
7
P.2d
842
trary, capricious,
impermissible
County
RE No.
Sch. Dist.
1,
Moffat
court review
school board
standard
(Colo.1988).
1280, 1292
Act did not
The 1967
clearly
1990
dismissal decisions. The
Act
of the board’s
distinguish between review
judicial
that standard for
review of
embraces
it did or did
on the basis of whether
action
dismissing a
action
tenured teacher
with the
officer’s recom
not concur
such action is
accordance with the
when
By
ap
directing the
mendation.
hearing officer’s recommendation.
22-63-
arbitrary, capricious,
apply
302(10)(c).
peals
Thus,
as in cases determined
re
legally impermissible
pursuant
standard
amended
1979,
cases,
whose dismissal
recom
assessing
the 1967 Act
all
view
by
hearing officer and ordered
mended
great deference
required the court to afford
by
arguing
the board
limited to
dismissing teachers.
board decisions
to school
fact-finding
at the
evidence adduced
Assembly amended section
The General
support
did
in 1979.
fact,
if
fact or
even
3, 22-63-117,
1979 Colo. Sess.
sec.
ch.
support
did not
supported
County
Blaine,
Blaine v.
P.2d
Laws
of dismissal. See
sanction
Moffat
(Lohr, J.,
concurring
P.2d
at 1294-95
and dissent
RE No.
District
School
ing).
(Colo.1988),
this
we held
*6
essentially
Act
incor
to the 1967
amendment
court
in the
now be-
of
ease
by
prior
our
porated principles established
a school
orders
fore us held that when
board
Board
Edu
in deKoevend v.
decisions
though
a teacher even
a
the dismissal of
RE-2,
End
Dist.
688
cation West
School
hearing officer has recommended the reten-
(Colo.1984),
Davis,
22-63-302(10)(e)
627 P.2d
teacher,
219
Ricci v.
P.2d
of the
section
tion
Lovett,
(Colo.1981),
apply
196
a
requires
and Blair
the court of
to
wholly
Specifically,
court
new standard.
the
We
Eng’r v. Castle 856 P.2d (Colo.1993) (stating when General As- B. sembly adopts legislation, presumed it is agree We do final sentence of cognizant judicial precedent relating 22-63-302(10)(c) requiring the court subject inquiry). matter under Such con- to affirm the recommendation of the only struction would questions raise the decision of the board based on statute, inconsistency internal in the but support determination of which has more importantly more would raise constitutional confusing. supra the record is p. construing difficulties.6 In legislation we language way can be read interpretations seek to avoid con- invoke super- transforms the court of into a stitutional deficiencies. Committee Bet- for board, weighing officer recom- ter Health Care All Colo. Citizens v. against mendation the board decision and (Colo.1992). Meyer, 830 P.2d We solomonically exercising its own conclude that Assembly the General intended making when a final determination. Such an the court of to review the decision of interpretation seriously would undermine the a school board to dismiss a cases role of the elected school board. Alternative- where the officer has recommended 22-63-302(10)(c) ly, language of section retention of the teacher the same arbi- can be ap- construed to direct the court of trary, capricious, legally impermissible peals truly to determine whether there was applicable standard to cases wherein a school adequate support in the record for the board’s determination to dismiss a teacher thereby preserving board’s decision ap- coincides with the officer’s recom- propriate deference to the school board. mendation. light In history5, and find, support further for this construc particularly most light of the rich context tion of the Assembly’s statute the General of case law within which the Act must be phrase judgment.” choice “own analyzed, we conclude that the General As- Public Utilities Commission v. Northwest sembly did not require intend to Corp., 154, 170, Water 168 Colo. *7 adopt to arbitrary, (1969), the deferential 271 interpreted we requiring a statute legislative history Dist., Our review of the (App.1979); of House Brinson v. School 223 Kan. 1159, 465, enacting 602, Bill (1978); the bill the 1990 has Lafay 576 P.2d 606 Rubin v. provided regarding legislative Bd., no 1003, information the (La. ette Parish Sch. 649 So.2d 1011 enacting 22-63-302(10)(c). intent in Mahan, We do Ct.App.1994); Thomas v. 886 S.W.2d early note that an 199, draft of House Bill 1159 con- (Mo.Ct.App.1994); 202 v. School Yanzick following language: tained 23, the 375, "Neither the 431, Dist. No. 196 Mont. 641 P.2d 438 hearing officer’s (1982). recommendation nor the deci- minority jurisdictions, legis In a of state greater sion of the board shall be entitled to provided judicial latures have for de novo review 1159, weight before the court.” H.B. 57th Gen. See, e.g., of board of education decisions. Lin Assem., Sess., 2d. 1 State Colorado House Dist., 838, (Alaska stad v. Sitka Sch. 863 P.2d 841 Journal 695 The deletion of this lan- 1993); Berlin-Boylston Regional Assad v. Sch. guage legisla- from the final Act indicates some Comm., 649, 357, 406 Mass. 550 N.E.2d 359 tive intent to maintain deference to a board deci- (1990); Cooper County v. Williamson Bd. of sion. Educ., 176, (Tenn.1987), 746 S.W.2d 180 cert. denied, 916, 500 U.S. 111 S.Ct. (1991). Although statutory L.Ed.2d 100 6. We the further note that we have found no other differ, jurisdiction schemes appellate that in all of the de authorizes an novo review court to jurisdictions, compare place and such review balance the decision a takes before a school court, Furthermore, dismissing against appellate a trial not an the court. recom although jurisdictions majority mendation of officer. some The characterize their re jurisdictions novo, procedure limit view review of board as de of education the courts in fact inquiry decisions to dismiss teacher to a limit their determination to whether the board acted arbitrary, contrary of whether the board’s action was ca to law or abused its discretion. See See, pricious, contrary Educ., e.g., to law. Board Dale v. Board 316 N.W.2d Lammle, (S.D.1982). Educ. v. 122 Ariz. statute, 22-68-302, 9 C.R.S. independent section “exercise to court the (1995), makes various to the rec- the as not references the and facts” judgment on law (7)(d), the re- In subsection statute ord. of discretion stan with an abuse inconsistent to audiotaped record made of quires the be Lastly, we note that of review. dard hearing before the which a hear the between makes distinction statute for is to be transcribed review. Sub- a board record and ing officer “recommendation” (10)(e) provides that action for “[t]he suggests section The use of these terms “decision.” upon the shall be based record before review the board “decision.” clear deference (10)(c) addition, pro- the officer.” 22-63-302(10)(c) conclude that section be based “rec- vides that review shall on the practical result simply acknowledges that Hence, it is ord as a whole.” clear that appeals’ court of exercise of record, consisting transcript of the entire authority a determination that will be review hearing, as the will be retained the teacher recommendation, and the deci- recommended, will or that the teacher officer sion, appeals. will be before the based on the board decided dismissed scope around question here revolves as to whether decision required review court arbitrary, capricious, decision is the board’s undertake. to find impermissible. We decline legally purposes The references to the for describing that language used that appellate in the 1990 Act are simi- review that us to assume result should cause Act. 22-63- to those the 1967 Section lar upset Assembly two dec- intended General (1988), 117(11), Act 9 C.R.S. the 1967 in- enactments and ades of on appellate review “shall be directed terpretation. the record made before administrative 22-63-302(10)(c) construed, judge re- section law the board.”9 Because So similar, in statutory in both quires language determine acts is governed by interpreting whether informs all cases statute case law Act ordering of a conduct in our determination. the board’s arbitrary, capricious, distinguished The 1967 Act and re- therefore reverse impermissible. We those of the officer’s duties irom board. Sec to the court of mand (1988), 22-63-117(8), tion that standard. under required to “re statute testimony and make the evidence and
view thereon.” To further of fact written III. providing impartial a fair goal of hearing, anticipate the issue Because we remand, to “review issue the board
will
we next address
arise
*8
findings
and recommendation”
panel’s
of fact
grant
and determine
one of our
of certiorari
Although
order.
the
then enter its own
scope
purposes
of the
the
record
findings
ulti
its own
empowered
action.7
make
appeals’ review
board
fact,
the
the board
appeals that the mate
statute
agree with the court of
We
solely
hearing
officer’s
hearing
find
so based
limited
officer’s
do
record is
Lovett, 196
findings
fact.
also Blair v.
nei
fact and recommendation when
ings of
(hold
118, 123,
671
P.2d
questions
findings.8
party
those
Colo.
ther
addition,
22-63-117(11)
§
Act
of Ae 1967
part
supra,
apply the
7.
II
we
9.In
As discussed in
appellate
legally
govern
arbitrary, capricious,
impermissible
Aat the
or
Arected
APA
24-4-106(7),
§
order-
10A
of review to all board decisions
decisions. Under
standard
APA,
(1988),
ing
appellate
dismissal.
courts were
of the
C.R.S.
portions
Ae
record or such
“to review
whole
by any party” to deter-
cited
Aereof
adequacy
party
of the
has contested
Neither
among
action was
wheAer Ae board’s
mine
argued
under
or
it is insufficient
legally
things arbitrary, capricious,
im-
22-63-302,
(1995),
or
other
due to the absence
p.
supra
790 note 4.
permissible. See
the notice.
hearing
findings
adequately
officer’s
supports
of evi-
hearing
officer’s
board).10
dentiary
binding
fact are
findings,
on the
ap
then the focus of the court of
peals must shift to a determination of wheth
Davis,
(Colo.
In Ricci v.
P.2d
arbitrary, capri
er the board’s decision is
1981),
question
we considered the
of the
cious,
legally impermissible
light
in
of the
proper scope
purposes
of the record for
hearing
findings
officer’s
of fact.
appellate review of board decisions under the
case,
party
In this
neither
1967 Act.
held that
contested the
a court could review
fact,
hearing
findings
they
officer’s
nor
the entire record to
if
did
hearing
determine
allege
any
there
findings
“irregularity
was
supported by
officer’s
were
substan
Ricci,
during
hearing
error made
tial
before the
evidence.
purposes review of the board’s (1995), applicable 9 C.R.S. to board decisions (as distinguished conclusion hearing from the ordering despite officer’s findings) officer’s solely consisted retention requires recommendation officer’s formal of basic or to determine whether the action of evidentiary fact. Id. arbitrary, the board was capricious, legally impermissible. Therefore, we remand the similarity
Because of the between case to the court of for review of the 1990 Act regarding and the 1967 Act board’s decision arbitrary, under the capri- finding fact role of the officer and cious or impermissible board, standard conclusive role of the holding our 22-63-302(10)(c).13 Therefore, Ricci pur remains viable law. 22-68-302(10)(e), suant to section 9 C.R.S. Act, SCOTT, J., of the 1990 specially in part concurs review the including part. entire dissents in hearing transcript and SCOTT, specially Justice concurring in recommendation,
findings and in order to part dissenting part. determine whether the officer’s find ings supported were by substantial evid statutory Under the scheme of the Teach- raised, ence.11 If that issue is not or if Employment er Compensation and Dismissal satisfied that -405, §§ the record Act of 22-63-101 to that, 10. We note in the 1990 the board is any determine irregularities whether there were directed solely upon to make its decision based during or errors made warranting of fact and recom- remand. mendation. West’s C.R.S.A. *9 (1995). requirement preserves This the 22-63-302(10)(d), (1995). § 12. 9 C.R.S. finding officer’s fact function and the reaching board’s function of ultimate conclu- light of our resolution of issue number two 13. sions. grant of our of certiorari and our remand to the 11. We note only that the court propriety of need to review the of the parties specifi- undertake this review if one of the arbitraiy, Board's dismissal of Heimer under the cally alleges improprieties regarding capricious, legally impermissible the standard of review, proceedings. officer's or the The court we decline to reach issues three and four appeals may of also consider the grant entire record to of our of supra p. certiorari. See 789. eountable, (the indepen- and not (1995) Act”), elected officials the chief administra- “1990 of dent officers. may the dismissal tive recommend officer in grounds the stated section a teacher in “a 22-63-301, set forth which must be I § 22-63- of to dismiss.” notice intent
written (1995). objects 302(2), If a teacher 9 C.R.S. granting order certiorari included the Our of grounds given, the Board Education to the following question: ‘Whether the teacher, only the the but after dismiss in concluding erred that its review of the [has met] administrative officer “chief the is to the record limited proving that his recommendation burden of ,”1 majority findings... The states: “[w]e the of teacher was for for the dismissal the affirm the court determination of in of dismissal and given the notice reasons this case of the that the consisted made accordance that the dismissal was party since neither § 22- of the 1990 Act. provisions” with the Maj. challenged findings.” op. these at 789. added). 63-302(8) (emphasis thorough A ex- Nonetheless, key item administra- indicates that the amination of the record by prepared proceedings tive is the Notice “Notice”) (the to was of intent dismiss notice parties the officer.2 chief administrative part Be- not a of the record below. made questioned No- not the absence of the have in the the Notice was included cause the of tice from the record before cannot be sus- the Board’s action Notice, Nevertheless, a without appeals. the are unable to deter- tained as we therefore review, contemplated by full fair as the grounds is on the mine whether dismissal statute, cannot occur. Act. with the 1990 stated or accordance Thus, agree I of the court A However, I of should reversed. respect- join majority opinion. the I cannot us, addressing facts Before before that fail fully to directions on remand dissent pro- of the teacher dismissal brief discussion supplement proceedings
to to require may prove helpful. Under the cedure permit as to a full and fair review. record so [only] be dismissed “a teacher shall by to Moreover, majority, prescribed I manner subsections because unlike (10)” 22-63-302, section plain language of last sen- find that the 22-63-302(1) added). 22-63-302(10)(c) (emphasis § In accor- of section violates tence subsections, those chief ad- separation powers III dance with doctrine Article Constitution, employing school I strike ministrative of the Colorado would by proceedings I do district initiate dismissal from the statute. would sentence recommending to local school board that impermissibly so sentence because one teacher based grants to “the board dismiss a grounds 22- of the stated policy more public effect as to retention 63-301,” given a “shall be dismissal decisions. The Colorado Constitu- § 22-63- to dismiss.” authority in local written notice intent reposes tion such 302(2). boards, politically ac- school which consist copy parties ns and reasons for dismissal and 1. not raised before mendation While the have questions of notice or whether as timeliness attached ... as re- 22-63-302 C.R.S. are defective, question I believe the Additionally, the Notice quired by letter states statute.” sufficiency by the record exclusion copies all that the School District exhibits implicated by first is raised the Notice if not are a list of to submit and witnesses intends question upon granted which we certiorari. However, complete copy of the stat- included. Notice, including utory exhibits a list informing Su- Heimer District A letter witnesses, no part not a the record. I have is perintendent at- dismissal recommendation by believe that the Notice reason to ex- Motion for Dismissal as tached Heimer's met; however, 22-63-302(2) without was not it states that "constitutes hibit A. letter Notice, including items mandated required by Section notice of intent dismiss *10 irregularities and § has 22-63-302(2) the record copy “[a] C.R.S.” and complete. containing Superintendent’s recom- is not letter
The Notice copy “shall include a contemplated Board’s written by order as 22-63-302(9). reasons for dismissal.” Id. If the teacher Review of the Notice objects, hearing “shall be conducted before only is the determining means of this. 22-63-302(4). impartial hearing § an officer.” When, here, the Notice is not in the “irregularity” exists and a review- The Notice initiates the teacher dismissal ing court cannot determine whether the chief 22-63-302(2). process. § 22- Section statutory administrative officer has 63-302(8) met the part: states in relevant “The chief burden nor whether the Board’s written or- administrative officer shall have the burden der sets forth a basis for dismissal consistent proving that his recommendation for the Hence, view, my with the Notice. dismissal of the teacher was for the reasons action of upheld the Board cannot be given in this the notice of dismissal and that the record. dismissal was made in accordance with the
provisions of this article.” Because the chief is, fact, administrative officer’s action B decision which result in termination “[wjhether granted certiorari to decide dismissal, grounds given based on the for the concluding erred in § see it is the Notice that is its review of the record is limited to the by § reviewed see 22-63- findings officer’s when a 302(3) school & contrary dismisses a teacher explicit Under the 1990 provisions, Act’s hearing officer’s recommendations and nei- Notice frames the officer’s rec- party ther findings asserts that those lack Board, § ommendation made to the see 22- evidentiary Thus, support.” proper 63-302(2), objection and limits a teacher’s question to be asked is appeal whether on right and appeal. majority What the does reviewing only court need findings review the address, not substantially but impor- remains granting the ALJ. Our order certiorari tant, is the fact that the “chief administrative right however, raises question; the ma- officer shall proving have the burden of jority wrong reaches the conclusion. his recommendation for the dismissal ... ” given was for the reasons in the .... notice majority The reasons that because the 22-63-302(8). findings dispute, are the Board’s deci- upheld sion can Board, then, if even its decision must is not “review the Notice, findings recommendation, accordance with the of fact as mandated and 22-63-302(8). by section order,” ... shall enter Such a result taking its written majority’s occasioned dismissal, retention, willingness one of three actions: 22-63-302(9). ignore probation. If, the clear here, command of sections 22-63- 302(2),22-63-302(8), 22-63-302(10)(d). Board “dismisses the teacher over the hear- retention, officer’s recommendation of majority’s holding, which does not ad- conclusion, board shall make a giving its 22-63-302(10)(d), dress section may be mis- therefor, reasons which supported must be read to appellate conclude that an ” by the record.... Id. sponte not sua insufficiency address the Here, presumably before the court of Thus, parties record. what and attor- appeals, the record does not include the No- neys today they proceed learn is that at then- 22-63-302(2). tice as defined in section If peril they own if challenge do not the chief carry administrative officer fails to of fact adequacy or the burden, statutory or if the Board does the record. Notice, not act in conformance with the process Thus, must be terminated. II critical appellate review of the Board’s dismissal action is whether case, the chief adminis- In the instant trative statutory officer has carried that bur- entered establishing fact two den and whether the grounds reasons for dismissal for dismissal: insubordination and stated in the Notice are neglect duty. consistent with the Maj. op. Any at 788. one of *11 law, by provide organization of school discharge under may result offenses these size, in of 22-63-301, districts of convenient each section shall established a board of edu- rec- which be Despite the officer’s 1990 Act. cation, more to consist of three or directors corrected that matters could be ommendation by termination, qualified to be the electors of elected than the drastic means less the district. Said directors shall have con- dismissed. that Heimer be Board ordered public in the schools trol instruction 22- Maj. Pursuant to section op. at 788-89. of of respective their districts. 63-302(10), Board’s de- appealed the Heimer incorrectly presumes majority cision. added.) Nevertheless, (Emphasis section forms a the officer’s decision that 22-63-302(10)(c) states: understandable, appeal. for this While basis upon The action for review shall be based grant of the before us on based on issues If the record before the officer. certiorari, approach such an leads the the the decision of board dismiss contrary, how- To the majority’s rationale. the teacher was accordance with recom- ever, opposed action as the it’s the Board’s the mendation of the court is that hearing officer’s recommendation to de- shall review such record review. the action of termine whether the board arbitrary capricious or was was Ill impermissible. the decision the board If made the to dismiss the over 22-63-302(10)(e), Construing the section reten- recommendation that the Act allows court of held tion, shall either af- supplant a local board’s decision to a court to the the decision the board affirm firm judg- discharge employee the with its own hearing officer, recommendation disagree. I ment. upon based the court’s review the own as a whole and court’s A decision or the as whether public retain or dismiss The decision to has recommendation public determi- policy school teacher effects as a whole. support more the record ac- reposed politically in the properly nation added.) (Emphasis last sentence of sec- representatives people, countable 22-63-302(10)(e) effectively grants the tion However, under board of education. local power to retain or dis- Assembly removes the 1990 General teacher; therefore, im- charge a the statute do- policymaking proper from its decision permissibly conflicts with the constitutional education, main, mis- local it must be subservient. provision to which places government in a branch of Court, v. 166 Colo. Sanders District independent, the that is intended to remain (1968) (noting 647-48 admits, judiciary. majority As the final “constitutionally granted power to the Gener- 22-63-302(10)(c) “simply sentence of section inferior Assembly to thus establish courts al acknowledges practical result limi- judicial subject is to certain officers exercise tations which are themselves embedded authority a determination will be Constitution”); People rel. ex the Colorado hearing officer be as the teacher will retained Scott, 59, 64-65, 120 P. 52 Colo. Griffith recommended, will or that be (under VI, 126, 128 article section decided_” Maj. dismissed the board general assembly create is authorized to “the op. 793. at review, express no there is a court of authority re- The court’s make teacher jurisdiction limitation constitutional spites decisions article tention or dismissal a court thus conferred such be IX, Constitution, 15 of the Colorado created, it must if the act is unconstitutional which states: jurisdiction sought to con- be because expressly] prohib- by implication [or ferred districts —board
Section
School
shall,
degree by
other constitutional
assembly
ited
some
general
of education. The
*12
(citation
provisions”)
omitted);
judiciary,
see also Mo-
properly
function more
re-
Comm’n,
Corp.
bile Oil
v. Federal Power
political
served to the
govern-
of
branches
283,
45,
is,
U.S.
311 & 311 n.
94 S.Ct.
2347 ment. That
the statute directs the court
& 2347 n.
(recogniz-
L.Ed.2d 72
appeals
of
to “either affirm the decision of
equity
judicial
a court’s
or
authority as
the board or ...
the recommendation of the
distinguished
legislative
from the exercise of
based
...
the court’s
authority by a non-Article III
court under
own
as to
...
[which]
has more
statutory grant where
conflicting support
there is no
the record as a whole.”
22-63-
302(10)(c).
provision).
Constitutional
result,
As a
the last sentence of
22-63-302(10)(c)
section
delegates legislative
appeals,
The court of
“pursu
established
authority
appeals
to the court of
and meta-
ant to section 1 of article VI of the state
morphosizes the
court of
into super
constitution,”
13-4-101,
(1995
6A C.R.S.
board of education or ultimate arbitrator
Supp.),
judicial power
is invested with
only.
with
authority
to substitute its “own
Pate,
(Colo.
People
See
878 P.2d
judgment” for that of the Board and ulti-
1994). Thus, it
authority
does not have
mately to
public
control instruction in the
public policy determinations,
make
and it can
schools.
legislative
neither exercise
nor executive
In an effort to overcome Heimer’s consti-
powers. See Federal Radio Comm’n. v. Gen
challenge,
tutional
majority suggests
Co.,
464, 469,
eral Electric
281 U.S.
50 S.Ct.
judgment”
definition,
“own
explicit
lacks
389, 390-91,
(1930) (the
and
Courts do legislative powers. See General
executive or Co., 469, 50 at 390- 281 U.S. at S.Ct.
Electric
91; Hufnagel, Kort v.
(Colo.1986). termi- to retain or decision public is not a
nate school teacher not power and therefore is one Colorado, PEOPLE State ability expertise to exer- courts have the nor Plaintiff-Appellant, grants A a court the cise. statute judgment,” choosing be- its to use “own supports, tween two decisions that record Jr., Daniel ROCCAFORTE Michael S. empowers political court resolve Petroleum, Roccaforte Martin policy and thus makes public matters Inc., Defendants-Appellees. political actor-the an- the ultimate judgments be of how court should titheses No. 96SA52. political Unlike arbitrators exercised. Colorado, Supreme Court branches, are to make courts called En Banc. genesis have their a rec- rulings that will principle provide product ognized legal June intellectually reasoning that that reflects politically Legal rea- coherent and neutral. judg-
soning should bind the court nonjudi- ability not the to exercise
ments and subscribe, effect, to power. I
eial cannot
authority that violates the distribution III provisions of Article of our state
powers
constitution.
IV sum, cannot agree
In I However, remand affirmed. whether on otherwise, Heimer, a with Jan service,
twenty-five years of dis- cannot be reviewing long the Board as as the
missed any irregularity” record.
court “finds
Here, the did include the statuto- Notice; hence,
rily required cannot out in with the
be carried accordance 22-63-302(10)(c), addition,
Act. separation pow- violates doctrine of the
ers Colorado Constitution.