Rosenberg v. Bd. of Educ. of Sch. Dist. 1

1Q95 ROSENBERG, Petitioner, Lewis

The BOARD OF EDUCATION OF

SCHOOL DISTRICT NO. DENVER SCHOOLS, Respondent.

PUBLIC

No. 83SC321.

Supreme Colorado, Court of

En Banc.

Dec.

Rehearing Denied Jan. depositions1 requested denial

officer’s and that proper was a exercise grant a continuance discretion, upheld the teacher’s dismis judgment of the court affirm the sal. We appeals. 13, 1980, Superintendent June On County City 1 in the District School Denver, the Teach- provisions under the Dismissal, Act, and Tenure Employment, er (1973 22-63-117, & section the Denver Supp.), recommended board) (school accept of Education Board charges against Lewis L. two for review Rosenberg, who was as- a tenured teacher Pupil Program for Assistance signed to the with beha- (P.P.A.), program for students a superintendent re- problems.' The vioral from be dismissed quested district for employment with the school his contact with engaging improper sexual elementary student twelve-year-old male discharge properly his failing to and for Bethke, Hobbs, P. Yon- Larry F. William a teacher. responsibilities as duties and Associates, Hall, & da Hobbs/Bethke G. Denver, petitioner. for hearing before a Rosenberg requested a Denver, in section 22- Adler, provided officer as & Semple,

Martin Conklin 63-117(3).2 prehearing confer- After the respondent. for 19, 1980, August on ence held DUBOFSKY, Justice. setting prehearing order officer issued September 29 and for Rosenberg v. granted certiorari We file a list school board to requiring (Colo. Education, P.2d 348 Board of hearing, produced at the of witnesses to be whether a App.1983), to consider testimony to be description a brief pro dismissal in a tenured teacher witness, and a list of from each elicited refusing to allow ceeding erred required also exhibits. the student teacher to take persons a list of to submit alleged to have the teacher was with whom depose, a statement brief he wished denying contact and had sexual depo- subjects to which each subject or the outcome teacher a continuance await directed, memoran- and a would be sition charges. The court of pending deposi- concerning right to take his dum suffered appeals, holding that the teacher its to submit The school board was tions. prejudice no as a result days after the within seven therefor initially requested twelve 1. The teacher receipt Failure of said appeals that of the notice. couit of date of tions and asserted some of the within erred in written the depositions, Here, teacher to file such n deposition. including hearing. student’s to a said time is a waiver of only the denial as error the teacher raises assembly additional general inserted has requested depositions. twelve of one of the regarding teacher’s language in this section deci- pending school board’s compensation 2. Ch. (1985 22-63-117(3), 9 C.R.S. sion. Section 800, 801, provides in CoIo.Sess.Laws Supp.). a hear- entitled to such shall be Such teacher secretary a written with said if he files objections Rosenberg’s request depo- ing on the lips, and the child moaned. sitions and a memorandum supporting principal’s When the assistant unlocked the them. room, door and entered the the student and jumped the teacher up, and Rosenberg 25, 1980, August On Rosenberg sub- picked up his tie from the floor put it required mitted the memorandum and a list on. A psychiatric consultant persons testified of twelve whom he wished to de- such events would have pose.3 September On a detrimental ef- after re- victim, ceiving fect on the the school who board’s was an emotionally memorandum Rosenberg’s and reply, hearing the disturbed child prior officer who had a history of declined to taking authorize the either being oral sexually abused witnessing or depositions because transcription their was activity.5 overt sexual After presenting impracticable given the time restraints.4 several witnesses who testified to Rosen- berg’s compassionate qualities as a teacher At hearing September the on 29 and and the appropriateness physical contact 1980, two teachers testified that on the with students in improving their self-es- 23, 1980, morning May they saw Rosen- teem, Rosenberg’s counsel berg in stated that the P.P.A. rocking classroom Rosenberg would be his final lap. student on his witness. A child’s moan came However, room, because a from the criminal action Rosenberg was and the pending against Rosenberg exchanged student as several a result of kisses. Two statements by student, teachers made and a school nurse testified Rosen- berg’s May on counsel they had advised his saw client not to testify through glass student until after the window matter was disposed classroom, the door to the of on January P.P.A. a narrow 1981. Counsel room formerly kitchen, requested therefore served as a a continuance until af- through fairly silhouetted a ter that sheer curtain date. Because Rosenberg’s coun- covering stage a opening in sel puppet any could not cite case law to support house. The request, teachers testified ap- hearing that for officer denied the proximately thirty minutes was motion for a continuance.6 Criminal rocking the charges against student caressed Rosenberg were dismissed face, Rosenberg’s repeated there 23, 1981, was kiss- February on apparently because Rosenberg requested that he be psychiatrist allowed to 5. The school board’s testified that victim, depose mother, the victim’s the vic- history prob- student had a of behavioral sister, principal, tim’s the school the assistant including stealing, lying, disruptive lems behav- teachers, nurse, principal, two the school two ior, precocious sexual interest. The teacher psychiatrists victim, who had examined the history. was aware of the student’s The student physician 28, 1980, May who had examined the victim on program was enrolled in the P.P.A. in Novem- day incident, of the second and a ber, 1979, by May, but when the incidents assigned social worker to the case. arose, question longer the student was no assigned to the P.P.A. class. noting 4. After that the teacher had asserted that section authorized hearing questioned 6. The taking Rosenberg’s depositions, why ruled: counsel about no motion for a continuance was made earlier. When the officer must note that the learned procedure that counsel had not tion made the motion set forth in C.R.C.P. 30 is in highly thought impracticable fact hearing earlier because he that the statute re- the context of a pursuant quired conducted specific Teacher within a time and was Dismissal, Employment, (cita- waived, and Tenure Act unaware that the time limit had been omitted).... tion officer cannot officer ruled: compel the waiver of time limits [the] in or- law, however, I understand the [A]s it is transcription der to accommodate the against you.... authority there is [I]f deposition and its submission to the witness contrary you ample have had time to look it signature pursuant to C.R.C.P. 30. The up hearing today. before the middle of the hearing officer must therefore decline to au- deny your Under the I circumstances must taking thorize the of the oral motion. this case. normally performed an administrative incompetent

the student deemed providing In addition to testify. hearing officer.” pow- officer with enumerated found that Rosen- ers, 24-4-105(4) permits berg contact with engaged physical had any officer to “take other action authorized in nature and that was “carnal student by agency rule with this article consistent designed fur- “was not motivation” and accordance, practicable, or extent persona] ther or academic interests” procedure with the district courts.” Rosen- recommended that the student and compre- through authorize C.R.C.P. berg for immoral conduct. dismissed discovery, including deposi- pretrial hensive find- reviewing After tions, simplification of is- “to facilitate recommendation, fact ings of surprises trial.” sues and avoid Ricci No- Rosenberg on school board dismissed (Colo.1981). Davis, 627 P.2d vember review, arguing support dis Rosenberg petitioned for Commentators use of depo- in request covery proceedings, to take that the denial of administrative witnesses, including depositions, of some of use al cluding sitions limited of of his dep and the denial though granting or the use of improper. were for a continuance of hear ositions is within the discretion Rosenberg’s dis- appeals affirmed court of Davis, ing K. officer. See 3 Administra missal, Rosenberg holding that suffered no 14.8, (2d at 35-38 ed. tive Law Treatise § hearing prejudice from the officer’s 1980); Koch, 1 C. Administrative Law and that, depositions because to allow 5.44, 5.42, 389, 391 at Practice §§ expedi- system’s interest an of the school Tomlinson, Discovery in Agency Adjudica case, of this tious resolution 103-09, 143-44;8 tion, 89, 1971 Duke L.J. by re- did not her discretion abuse 475, Stewart, 65 Cal.2d Shively see also v. Rosenberg fusing grant to a continuance. 65, Cal.Rptr. (1966). 421 55 217 After P.2d re- alleges now officer's that Rosenberg’s hearing, court held in Ric this deposition and fusal to allow the student’s ci, 1122, depositions P.2d at are 627 that cumulatively grant continuance refusal to hearings permitted in administrative but dis- an of We constituted abuse discretion. depositions is decision to allow agree. of officer. within the discretion I. it was within the discre Because to allow dis tion of the 202, 3, Rosenberg contends that Ch. covery and because does 22-63-117(6), 1979 Colo. Sess. Laws section allege deprivation process, of our due 800, 24-4-105(4), 802,7 section 10 is limited to whether review taking permit the of C.R.S. depositions was officer's refusal to allow proceedings. in teacher dismissal tions an of discretion. A abuse 22-63-117(6) provides “The Section as an of will not be reversed abuse evi- decision may reject or hearing officer receive unless, oaths, and, given totality discretion testimony, administer dence and circumstances at the time factual necessary, subpoena if witnesses.... decision, ex- hearing officer’s decision all may do other acts hearing officer ... ties; (4) permit 22-63-117(6) presiding officer should not amended 7. Section (1985 (5) presiding Supp.). delay; offi deposition 9 cause to the issue before us. good amendment irrelevant cause does not should assure that cer (6) depositions; using no exist for use the limited 8. Tomlinson recommends agency employees it is deposition of unless prevent surprise depositions based in order "seeking significant unprivileged information following conditions: on the by alternative means!" not discoverable conference; (1) prehearing usually only after Tomlinson, Koch, 391, citing supra p. at 1 C. officer; (2) only through presiding 5.44, 103-09, supra p. 143-44. at § par- object opportunity other notice the bounds of ceeded reason. Bennett v. cate officer felt herself Price, 168, 172-73, 167 Colo. P.2d compelled to decline for the (1968). addition, this depositions. 4, supra. See note The im- record, inquiry court’s is limited to the practicability taking and transcribing clearly should an record show such abuse twelve is a valid consideration Adjustment discretion. Board in exercising discretion regarding the tak- 180, 188, Handley, 105 Colo. 95 P.2d depositions. 24-4-105(4); See § cf. (1939). In considering there whether South Trucking Ass’n, Dakota discretion, may has an abuse of been courts N.W.2d at 686-87. consider whether the mis party the law and construed whether the totality Given of the circum alleging an abuse of in a discretion acted stances time at the requested manner. diligent Trucking South Dakota depositions, the twelve we say cannot Ass’n, Dep’t Inc. v. South Dakota officer’s decision “exceed[ed] (S.D. Transportation, 305 N.W.2d Bennett, the bounds of reason.” 167 Colo. 1981); see NLRB v. Interboro Contrac 446 P.2d at 421. In some cases Cir.1970), Inc., (2d tors, 432 F.2d 860-61 require may production fairness denied., rt. U.S. S.Ct. ce records and key witness 28 L.Ed.2d 661 es, especially significant where part the case consists of sworn from Rosenberg alleges that the a few Auberge, witnesses. See La Petite failed to exercise discretion because Inc. v. Island Rhode Comm’n Human misconstrued she both law and fact. for 274, Rights, (R.I.1980). 419 A.2d 280-82 Rosenberg argues hearing that the officer Depositions prevent to serve the unfairness compelled taking deny felt to of the accompanies surprise. that See Interboro depositions because of time limitations in Contractors, 860-61; 22-63-117(5)9 432 F.2d at La Petite and did not therefore case, Auberge, A.2d at 282. In apply deposition discretion to this resolve the however, question. hearing provided We determine was that the with witnesses, did denying officer exercise discretion in list of the board’s school a brief taking depositions. The twelve hear description of the to be elicited ing officer’s order makes that the each, it clear from a list of the and school board’s to take the denied exhibits, including all the school and medi only hearing not because the felt officer eyewitness cal records of all compel she could further of the waiver statements, reports on and what the stu limits, parties time but also because the dent said. The school board’s list witness date, to agreed hearing had it was people included six twelve Rosen time impracticable view of the con berg depose. to wanted taking depo to allow the straints of twelve Although Rosenberg re originally transcription. and their There is no sitions depositions, quested he hearing indication other than the officer’s twelve now claims colloquial use of to indi- denial of only the word “must” that the student’s 800, Rosenberg’s interrelationship In the order for Laws depositions, (5) (8) hearing noted gave twelve officer time subsections limits in right grant specifi- that "to hearing continuances days five to officer conduct the cally subordinated to the time set limitations findings. parties proceed- make C.R.S.1973, 22-63-117(5), forth in as amended." waived time before us restriction fact, September only 1980 the time limita- prehearing at conference. subsection requirement were a be tions that the require a since been amended to The statute has twenty-five days than the hear- held later ing 63-117(5), after days hearing within 30 of the officer’s selection selected, 3, 202, 22- § officer was Ch. sec. findings require and to that of fact 1979 Colo.Sess.Laws and a days adopted by within requirement that the make find- 22-63-117(5) hearing. Section after the selection, ings thirty days within of the officer's (1985 Supp.). 22-63-117(8), sec. Colo.Sess. § Ch. depose Rosenberg to the student was not of discretion. Rosen

tion was an abuse of discretion. an abuse failed, however, any berg has to show hearing offi prejudice resulted from the II. depose let him the student. cer’s refusal to The teacher also asserts that the failure Ricci, (due process 627 P.2d at Cf. permit officer to a continu- infringed right deposition not unless to ance created an intolerable tension between McClel showing prejudice); there is a testify in at the right his his own behalf Andrus, (D.C. land v. F.2d hearing and dismissal his constitutional Cir.1979) (due requires discovery if process pending remain silent Interboro prejudice party); refusal would charges. “may A order a Contractors, (no 432 F.2d at 860 abuse of subject to section 22-63- continuance” * showing prejudice if discretion no 117(5). Ch. § evi through admission of unforeseeable 1979 Colo.Sess.Laws 802.10 word cross-examination). dence or denial makes that it “may” the statute it clear not listed as a witness The student was hearing officer’s was within the discretion district, school and the student did continuance. See grant this case Indeed, Pickholz, Excerpt Parallel Civil testify hearing. at the also from Settlements, Parallel Cases Global Rosen- time the officer denied Jury Agency and Administrative Grand depositions, the student berg’s request for Investigations 950-53 Wilson and potential witness for the was listed as a Matz, Obtaining Ec- Evidence Federal At time the teacher. onomic Crime Prosecutions: An Over- request, no she had denied Meth- Analysis Investigative view and concerning student’s emotion- evidence ods, 703-07 Am.Crim.L.Rev. problems might al lead her to believe interviewing the there would be difficulties here does not assert student,or subpoenaing the student testi- officer’s denial of a contin fy. totality of the circumstanc- pending Given the outcome of criminal uance es, rights;11 charges to allow violated constitutional 22-63-117(6) stay discovery though provides part: in denial of a of civil even 10. Section drug manufacturing corporation in no one may order a continuance respond could without self incrimination. Sev subject of this section. to subsection repug it general assembly eral courts have determined that is not has modified this lan- 22-63-117(6), (1985 guage. give party subject process to Section 9 nant to due to requires Supp.). hearings giving that no con- discipline This section now the choice between may granted "a clear show- keep tinuance ing be absent disciplinary proceedings at good of cause” and that the strong public ing interest silent when there is a findings "[s]pecific fact” a contin- make of when disciplining public employees or doctors. Ar in granted. uance is Stern, (1st Cir.1977), 560 F.2d 477 cert. thurs v. 202, 3, 22-63-117(5), Ch. 1979 Colo. 1034, 768, denied, S.Ct. L.Ed.2d 434 U.S. 98 54 800, 801-02, provides in Sess.Laws (1978); Giampa v. Civil Serv. 782 Illinois selection, Promptly after his offi- 606, 744, Comm'n, Ill.App.3d 44 Ill.Dec. 411 89 give days’ at least seven cer shall the teacher (1980); Flickinger v. Common N.E.2d 1110 hearing, including the written notice of the 84, Pennsylvania, 461 wealth 75 Pa.Commw. place in no event shall and time therefor but (1983); Herberg v. State Board Medi A.2d 336 twenty-five such days be held less than 358, Licensure, 65 Pa.Commw. cal Educ. and officer. after the selection generally have 442 A.2d 411 Courts general assembly has modified this lan- violation to find a fifth amendment refused when, (1985 guage. Section case, testify does as in this the refusal to 9, Supp.). supra. See note automatically v. lead to sanctions. Wimmer denied, Lehman, (4th Cir.), 1402 cert. 705 F.2d right 11. There is no to a continuance of admin 992, 484, 464 U.S. 104 S.Ct. 78 L.Ed.2d proceedings pending the outcome of istrative (5th Knight, 678 F.2d 578 Hoover v. parallel proceedings. In United States criminal Comm’n, 768-769, Cir.1982); 1, 9-11, 763, Kordel, Diebold v. Civil Serv. 397 U.S. 90 S.Ct. Rilliet, Cir.1979); (8th United States v. great public F.2d 697 25 L.Ed.2d 1 because of the Cir.1979); (9th Pal Baxter v. protecting public F.2d 1138 from misla interest in cf. migiano, 47 L.Ed.2d drugs, Supreme 425 U.S. 96 S.Ct. affirmed the beled Court

HQ1 rather, creating stay he asserts that in a tension refused a it found that the right testify to on his plaintiffs between his own prejudiced would be when their at behalf the administrative and witnesses’ memories faded or the witnesses provide a his evidence for available, were not and that the defendant proceeding, criminal the denial of a continu- would not prejudiced be because there discretion, ance constituted an abuse were no criminal charges pending, self-in especially when considered with hear- crimination apply corporation, does not to a ing to allow the company someone respond could tions. discovery, proceedings and the civil were not used to obtain evidence for a criminal variety used Courts have a of considera trial. Id. at 359-60. tions determine whether civil or adminis proceedings stayed pend trative should be In this case the school board could proceedings. criminal In Standard prejudiced by be the failure of witnesses’ States, Sanitary Mfg. Co. v. United memories or the witnesses’ if unavailability U.S. 33 S.Ct. 57 L.Ed. 107 necessary it became to recall them to testi (1912), the Supreme United States Court fy. Although the teacher here had crimi upheld delay a lower court’s refusal to civil charges nal pending and no one else could proceedings under the Sherman Act be testify stead, public his and the requiring delay “might a cause rule result strong school board had a in expe interest injustice great or take from the statute a ditiously concluding proceedings, power deal its compel ... would [and] is no proceed there indication that the civil postponement of the enforcement of ings were initiated to obtain evidence for the civil remedies until exhaustion of Moreover, Rosenberg the criminal trial. prosecutions expiration by or their presentation waited until after the of all lapse time.” Other engaged courts have the evidence to a continuance. in balancing weigh tests in they which Granting a point continuance could employer’s prompt interest resolution presentation conflicting result evi against case employee’s interest or perhaps years apart. dence months in proceeding without risk. Hoover v. Rosenberg’s diligence requesting stay (5th Cir.1982); Knight, 678 F.2d deciding also should considered in Lee, (Mo.Ct. Lang v. 639 S.W.2d stay whether the an denial of that abuse App.1982). Rosenberg suggests that we though Rosenberg Even discretion. apply the factors outlined In re Mid-At agreed forego pay during period Toyota lantic Litigation, Anti-Trust continuance, delay (D.Md.1981), F.R.D. to determine impair would in prompt board’s interest whether the officer’s refusal of a discipline Flickinger of its teachers. v. continuance was an abuse of discretion: Cf. Commonwealth, “(1) 75 Pa.Commw. 461 proceed plaintiff the interest the in A.2d 338 v. ing expeditiously Herberg State with the civil action as Licensure, Board and 65 against prejudice plain balanced the the Medical Educ. (2) 442 413 delay; tiffs on Pa.Commw. A.2d the burden [from] [the] defendants; (3) Accordingly, hold the the convenience to we offi the courts; (4) persons appropriate the cer acted the limits par interest not within litigation; the public denying Rosenberg’s ties to civil her in re discretion quested interest.” The court Toyota Mid-Atlantic continuance.12 (1976) (an may adverse inference S.Ct. or if he is drawn L.Ed.2d proceeding). lawyer disciplinary from one’s silence in a civil party’s A in denied a a student hear violated, however, process rights pending. due are charges are when criminal Gabri testimony Newman, Cir.1978). proceeding (1st if his in a criminal is v. 582 F.2d lowitz by possibility prosecution burdened that the may testimony against use his two in which him in an habit refers to cases Chavez, granted, stays proceeding, People ual criminal courts found that should be but (Colo.), denied, distinguishable. Wehling v. P.2d 1362 cert. 451 U.S. cases are Co- these limits in order to accommodate time the denial of neither separately, Taken deposition and its sub- transcription of a deposition the student’s request to take pur- signature for to the witness mission constituted a continuance denial of nor the The offi- suant to C.R.C.P. togeth- Considered of discretion. an abuse authorize decline to must therefore cer at the time the er, given the facts in ac- depositions this taking of oral ruled twelve hearing officer tion. request for a that the requested and were in seriously until the close flawed view not made was This rationale

continuance rulings requirements did were evidence, hearing officer’s the time the fact that prehearing In her by parties. of reason. not exceed bounds waived order, stated: affirmed. Judgment hearing officer ruling of Upon the provisions Lynn Davidson NEIGHBORS, J., part in dissents amended, 22-63-117, as con- C.R.S. part. in concurs holding of within cerning the NEIGHBORS, Justice, dissenting part findings within 30 adoption of days and concurring offi- of the selection days principles set forth legal agree I that the through the mutual cer, are waivable those opinion are I the court’s parties, it was so agreement However, disagree with I here. pertinent be waived. provisions agreed that to the those standards application of discre- Thus, abused her therefore, and, respectful- case facts of this limitations which by relying on time tion opinion. part of the to that ly dissent denying as a basis had been waived by the presented deposition issue sought by The the teacher. discovery deposition certio- granted upon which we teacher prejudiced Moreover, teacher was narrow one: Whether review is a rari request to take the of his the denial her discretion abused testimony at only student. The tion of the take the the teacher to refusing to allow concerning al- the dismissal with whom the the student deposition of given by teachers contact was leged sexual had sexual alleged to have was teacher of the teacher “silhouettes” who observed the teacher’s contact. was no There and the student. witnesses, in- potential depose twelve al- participants from either of hearing officer cluding the The teacher could leged misconduct. stated: waiving privilege testify without that the must note student against self-incrimination. forth in C.R. procedures testify. set The board con- not called was highly impracticable prejudiced was 30 is fact that the teacher

C.P. tends pur- hearing conducted called the student of a he could have the context possible Dis- as a Employment, and, fact, listed him Teacher had suant to the merit Act, argument 22- has little missal, This and Tenure witness. The student the record. 63-101, as amended. one reviews seq., et when emo- suffering from serious grant contin- clearly officer to continually lying and was problems tional specifically subordinated uances is Obviously, fabricating stories. set forth time limitations circumstances, no reasonable these as amended. called the have attorney would competent of these compel the waiver cannot Education, (5th N.J.Super. 389 A.2d Broadcasting System, 608 F.2d 1084 lumbia denied, N.J. curiam, (App.Div.), Cir.1979), F.2d reh'g per denied certification (1978) (court equitable powers to used (1980) (automatic A.2d 204 of libel case dismissal requested teach- board stay after school invoking penalty the fifth severe a too charges against regarding statement er’s sworn him). during oral amendment grand jury subpoena); Ott v. Board federal

HQ3 deposing student aas witness without first purpose evaluating po-

him for the view, testimony. my

tential the denial constitutes seri-

ous prejudiced abuse discretion which rights substantial the teacher.

Therefore, I judgment would reverse appeals. court of HARVEY, Petitioner-Appellant,

Linda COUNTY

JEFFERSON SCHOOL DIS R-1, Respondent-Appellee.

TRICT NO.

No. 84SA227. Colorado,

Supreme Court of

En Banc.

Dec.

Case Details

Case Name: Rosenberg v. Bd. of Educ. of Sch. Dist. 1

Court Name: Supreme Court of Colorado

Date Published: Dec 9, 1985

Citation: 710 P.2d 1095

Docket Number: 83SC321

Court Abbreviation: Colo.