*1 case, of this precluded Under the circumstances statements prior inconsistent the imposition The statute find no abuse of discretion evidence. of the admission presumptive these circum- concurrent sentences 613 under over CRE controls charges. People, supra. range on these two Montoya v. stances. allegations have examined the other V. error set forth defendant and rule be without merit. them to presen- that the Defendant claims matters, improper and sentences on the report contains The convictions tence during forgery the sentenc and theft are affirmed. causing prejudice charges him kidnap- degree for second ing proceedings. conviction reversed, remanded ping and the cause is is that defendant was The record reflects charge proper for a new trial on that opportunity to refute the contents given an instructions. report prior to sentenc- presentence of the took note of the of- ing. The trial court DUBOFSKY, JJ., CRISWELL Thus, the trial court fered corrections. concur. 16-11-102(5), complied with § 8A), defendant was afforded opportunity to take issue with ample report.

contents objec- all of his Having failed to state time, precluded tions at that defendant appeal. raising objections People, 178 Colo. v. See Wolford (1972). Therefore, we find no FREDRICKSON, Appellant, merit in this contention.

VI. SCHOOL DISTRICT DENVER PUBLIC 1, Appellee. NO. that the sen- Finally, defendant asserts of three concurrent terms of five tence No. 90CA421. address this con-

years is excessive. We Appeals, Colorado Court forgery as to the convictions for tention Div. II. affirm, and as to those and theft which we find no abuse of discretion. convictions May 1991. Rehearing Denied June 1991. nature, Sentencing, by very is a its requires discretionary decision which 28, 1991. Certiorari Denied Oct. and the strik weighing of various factors ing of a fair accommodation between or cor need for rehabilitation

defendant’s society’s treatment and interest rective Watkins, People safety and deterrence. v. (1980). 163, 613 P.2d 633 200 Colo. Here, defendant was convicted of carry pre two Class felonies which sumptive range sentence of from two defendant, sentencing eight years. prior his criminal his trial court considered offense, tory the nature of the includ of the victim ing the vulnerable condition personal his promotion defendant’s expense of the victim’s trust. benefit at the *2 Price, George George C.

Law Offices Denver, Price, appellant. for C. Jackson, P.C., Semple, Semple Martin & Nachman, Pringle, Dwight L. Franklin A. Denver, appellee. Judge JONES.

Opinion by appeals from an order Education of the Denver Board of (Board) terminating her em- Schools Public Denver tenured teacher with ployment as a (District). District No. Public School instructions that and remand with reverse reinstated. Fredrickson be Board, 18,1989, pursuant to April On 9), (1988 22-63-117(2), Repl.Vol. C.R.S. § charges of dismissal accepted for review hear- elected a Fredrickson. 22-63- charges pursuant ing 9). 117(5), hearing, Administrative After Finding (AU) Judge issued his Law con- The AU Fact and Recommendation. proven the District had cluded that “insubordination,” charges of statutory good and duty,” and “other “neglect presence in the dismissal, about his recommended commented cause” for building. dismissal. Fredrickson's Tepper by “It was F.S.’s report the ALJ’s Board considered parent that Fredrickson had shaken F.S. *3 the the case to ALJ and remanded violently. upon based the evi- respect to findings of fact with hearing, presented at the the Ad- dence issues of remediation. Judge finds that Fre- ministrative Law remand, the the Board’s AU Pursuant to slightly. drickson shook F.S.’s shoulders hearing and then issued conducted another in he cited a num- findings which additional involving of the incidents “As a result instituted the of remedial efforts ber 1989, A.M., January Tep- on F.S. and dismissal. prior to Fredrickson’s repri- gave Fredrickson a letter of per then, again, recommended The ALJ once letter, that Tepper mand. In that stated dismissed. that Fredrickson be against Fre- allegations had been made 18, 1990, adopted January the Board On ‘regarding inappropriate drickson ALJ’s and his recommendation you physically handled manner which of dismissal. disciplinary reasons’. The children for following relevant facts ‘phys- reprimand concluded that were established the AU: ically disciplining a child is behavior year Fre- “During the 1988-89 school unacceptable that and must cease.’ employed by the District at drickson was “At the time written Kepner Middle school. Fredrickson has Fredrickson, Tepper provided to dis- was employed as a substitute or a full- been Fredrickson the alternatives cussed with Sep- the District since time teacher disciplinary responding to to situations tember, 1967. discussed physical force. It was with January Fredrickson had “On Fredrickson was student A.M. in her class. A.M. was aware, among various alternatives repeatedly out of his seat and did not she could call the office for assistance had classroom), take his seat until he been warned (using intercom in the call an down, times. he did sit counselor, several When of an- obtain the assistance placed her his advisor, Fredrickson hand over other teacher or student send stay him forearm on his desk and told to room, send students students out of light pres- utilized seated. Fredrickson building, disciplinary room the putting sure in her hand over A.M.’s Fredrickson herself could leave or that forearm. the room. These alternatives good aspects force are

“The did not establish that evidence management instruction. A.M., hit as claimed Fredrickson Nevertheless, 7, 1989, parent. February A.M.’s the matter had “On Fredrickson Marjorie Tepper, Kep- was in her class. students A.B. G.M. principal, Tepper told Fredrick- ner’s noticed these two students attempted at that time that under no circum- to take a writing notes and attempted stances should Fredrickson ever use of A.B.’s hand. A.B. note out discipline having by push- a stu- taken physical measures to avoid the note away slapping dent. hand ing or occasions, or three but two 14,1989, Fredrickson was “On her. to take the note from son was able duty and noticed student F.S. on lunch A.B., taking the note from lunchroom he should “After seated when the aisle between routinely at- drickson walked down have been elsewhere. F.S. desks, heading toward the building two rows of tempted to sneak into the when room. At this time G.M. outside. Fredrick- back of the he should have been slapped Fredrickson in lightly struck or put her hands on his shoulders while lunchroom, shook him and the back. F.S. sat struck, “The contact with A.B. “Upon being of a serious standing in G.M. nature. Nei- and saw A.B. turned around injured ther in any student was fashion hands held in the air in the aisle with her immediately they after the incident fashion, non-threatening deny as if to laughing were observed to be about the Thinking having struck Fredrickson. upset by matter. Neither student was struck that A.B. was the one who had this incident....” her, Fredrickson hit A.B. on the shoulder open hand: this contact was with an Fredrickson contends that the evidentia- tap, push light, in the nature of a facts, AU, ry established do not shove. support the Board’s ultimate *4 insubordination, neglect duty, of or other struck, being step A.B. took a “Upon good just cause for dismissal. We why had hit back and asked agree. her. Fredrickson stated that she had hit A.B. because A.B. had hit Fredrickson. Although findings a school board’s A.B. informed Fredrickson that she had of ultimate fact sustained if must be war G.M., record, record, by point struck at which pur been ranted for gave tap poses judicial findings, of review of those drickson turned and G.M. with findings solely consists the formal her hand. evidentiary by panel basic or fact made “Fredrickson admits that she was judge. or administrative law Ricci v. physical safety concerned with her at the (Colo.1981). Thus, Davis, 1111 627 P.2d time that she made contact with G.M. review, sustained on the board’s ulti be Additionally, Fredrickson did not fear fully mate must warranted be against any that A.B. would take action hearing officer’s fact, In her. neither A.B. nor G.M. fact. County Blaine v. School Dis Moffat any physical threatened contact (Colo.1988). P.2d trict RE No. Fredrickson, they with did not advance record, ap- From our review of the it is toward and Fredrickson parent that each of the three stated bases safely away could have walked from the for dismissal—insubor- striking incident without either student. dination, neglect duty, and other admission, By her own premised upon her fail- cause—are her struck these students because of be- 18, 1989, comply ure to with the necessary lief that it was to show the flatly which and un- get they away students that could not physical equivocally prohibited the use of hitting making physi- a teacher. In discipline. we see no valid rea- students, cal contact with these Fredrick- why punished Fredrickson should be reacting son states that she was failing for to follow a directive which cir- fact that she had struck some- been rights provid- her and duties as cumscribes one. policies, ed under the District’s own written occurred, incident “After above especially reason- when room, A.B. and G.M. left the without prudent. able and permission, the incident to limited The District has set forth certain later, Tepper. Approximately 10 minutes circumstances under which a teacher Tepper’s Fredrickson was called into of- against a principal may use force told, protection, fice and was for her own student. circumstance is set One such incident, to write a statement about the 1214(VI)(C)(1) Policy forth District which she did. Neither in this statement provides as follows: any Tepper nor in discussion with did responsible “Principals and teachers are Fredrickson state that she believed her- of order within the for the maintenance any person self or other be Authority to classroom and the school. danger from A.B. or G.M. prudent force and use reasonable and purposes maintain- restraint Accordingly, delegated by the Board in the back. we conclude that ing order ... encountered the circumstances personnel.” to certificated of Education amounted to a breach of classroom order, thereto, or at least a serious threat Furthermore, Policy justifying, requiring, if not the use of rea- that, 1214(VI)(B)(4) engaged provides when prudent sonable and force to reestablish or responsibilities, “teach- in their duties and order. maintain force as is neces- ers use reasonable conclusion, light our now ad- protect from an assault sary to themselves dress the three stated bases for Fredrick- battery]_” implication a More- [and son’s dismissal. students, over, certain conduct such “fighting, by implication bat- assault [and A. tery], menacing” “expressly for- are [and] Insubordination to disci- subject bidden and ... student [a] plinary Policy action” under District term “insubordination” as set 1214(VII)(A)(4). “imports 22-63-116 forth willful obey intentional refusal a reasonable Each of the student behaviors referred to superior particular order of a lawful on a least, very reflects at the a break- above *5 Morgan County occasion.” Ware v. in, of, to, or threat a down breach serious RE-3, School District No. 748 P.2d 1295 state of order in the classroom or school (Colo.1988). and, therefore, requires conduct a The order at issue here is the teacher in furtherance of the maintenance from Fredrick- of order. principal principal in son’s noted The issue before us is whether the cir- previously that she had advised Fredrick- encountered cumstances physically to touch child for “not ever a requiring amounted to a situation the main- disciplinary reasons.” tenance order. stated, principal quali- without conclude, law, as a matter of fication, We that such “behavior is unac- threat to order that a serious exists when ceptable and must cease.” student, provoca ever a without reasonable superi- conclude that an order a hostile, tion, angry, touches a teacher a if, here, or cannot it un- be reasonable as refractory, or otherwise unconsented to equivocally authority divests a teacher of property during on or school manner within expressly granted pursuant to that teacher hours, during sponsored school school policies. to a school district’s own written activities. And, given because the order to Fredrick- reasonable, logically it was follows interpreted This rule need not be en- that she could not have been “insubordi- couraging the use of force or restraint failing obey nate” in to such an order. teachers, even when such force or restraint Rather, by defining, pursu- is authorized. Furthermore, we conclude that the force policy, District’s written ant to the certain applied force which the may require circumstances which or at “light, AU described as in the nature of a order,” “maintaining shove,” least authorize tap, push or and as “not of a nature,” may thoughtfully pru- serious rule assist teachers more reasonable Thus, dent under the circumstances. to “use to determine whether reasonable drickson cannot have been insubordinate restraint,” prudent force and as autho- because of the use of unreasonable or im- rized, purposes. for those prudent force or restraint. Here, fact, evidentiary as matter of that, session, AU found while class was in B. pushed slapped one student Neglect Duty appropriately son’s hand as Fredrickson at- tempted intercept being passed, a note Neglect duty occurs when a carry obligations while another student struck Fredrickson teacher fails out responsibilities in connection with fact. Forbes v. See R-1, sponsored supra. activ- and other school Poudre School District County Blaine v. School ities. Moffat The order Board of Education 1, supra. RE No. District terminating employment is reversed, and the cause is remanded to the re Again, because Board with instructions that Fredrickson manner autho sponded to this incident in a as a full be reinstated tenured teacher with policies, by the District’s written rized own pay and back benefits. cannot be conclude that such carry out her characterized as “failure to HODGES*, JJ„ RULAND and concur. obligations responsibilities” in the classroom. RULAND, J., specially concurs. Therefore, Board’s we conclude that the Judge specially concurring. RULAND finding duty is un neglect ultimate I concur with result reached of eviden- supported AU’s opinion. sepa- I majority write tiary fact. See Forbes v. Poudre School rately I announced because believe the rule R-1, (Colo.1990). majority opinion goes far. too sum, touching I of a conclude the mere C. manner, angry standing in an teacher alone, deemed, Other Good and Just Cause not be as a matter of law, to constitute a serious threat to order Colorado courts have not defined every in the school the classroom the term “other cause.” Instead, a serious case. constitute *6 jurisdictions interpreted the Other have threat to order the classroom or the any bearing a rea phrase to include cause school, I than one stu- believe that more relationship sonable to a teacher’s fitness the time physically present dent must be at discharge Spurlock her v. duties. touching occurs. Trustees, (Wyo. Board 699 of 1985); Education, v. Board 136 foresee factual situa- Welch One can various 552, (App.1983). Ariz. P.2d physically in which a is tions teacher interpreted angry has also been to include term touched a student is but who substantially materially touching pose conduct which and not threat does a serious performance. Endicott affects Mott v. either to the teacher or to order 308, 199, cases, No. 105 Wash.2d or in the In those School school. (1986). response 713 P.2d 98 be a the teacher Thus, seven-year-old stu- inappropriate. a again, only conduct at issue Once personal problems severe dent with appropriate here is the and authorized ac- might place to the one are known teacher being struck tions Fredrickson took after privacy of hand on the teacher’s arm in the interrupting students who two were anger frustra- expressing an office order of a classroom in session. We find case, In that tion. a nothing in the of the ALJ only it might inappropriate, be but support a that Fredrick- could conclusion by the generate subsequent could disorder adversely impacted actions her fit- son’s the school. student in the classroom and discharge or that those ness duties materially Thus, substantially actions affect- a situation in which absent Thus, performance. acting prevent protect the Board’s ed her teacher is assault, finding that I rule an- ultimate Fredrickson’s actions an would limit the opinion factual sce- constituted “other cause” for nounced in this supported dismissal is not the AU’s nario in which more than one student * 10B). 24-51-1105, Sitting by assignment Justice under the Chief § VI, 5(3), provisions Colo.Const. art. proscribed conduct oc-

present when the curs. SCHMIDT, Jerry Hagen, Ha Alice Gerald Weber, Nauman, gen, Ray Irvin Robert Wenande, TLI, Inc., W. Colorado Corporation, Plaintiffs-Appellants,

v. FRANKEWICH, Esq., K. M. John Palmeri, Jones, Jones, Esq., Close &

Brown, corporation a chartered Nevada, Steele,

State White professional corporation of the State Colorado, Defendants-Appellees.

No. 89CA1501. Appeals, Colorado Court Div. I. June 1991. Rehearing July Denied 1991. Certiorari Denied Oct. 1991.