Keith WIDDER, Petitioner, v. DURANGO SCHOOL DISTRICT NO. 9-R, a Colorado school district; and Board of Education of Durango School District No. 9-R, a Colorado school district board of education, Respondent.
No. 02SC497.
Supreme Court of Colorado, En Banc.
Feb. 23, 2004.
As Modified on Denial of Rehearing March 15, 2004.
Finally, our interpretation of section 16-3-203 harmonizes with section 16-3-202(4), which provides immunity from civil liability for any citizen who, in good faith, reports “the commission or suspected commission of any crime or [gives] other information to aid in the prevention of any crime.”
IV. Application
In the case at hand, the Wheat Ridge Police Department and Department of Social Services investigated and found no evidence of domestic violence or child abuse at the Davis household. In Davis‘s ensuing lawsuit against Schwankl, however, the jury found that Schwankl reported the suspected crimes in good faith and that Schwankl‘s action was not “willful, wanton, and malicious.” Moreover, Schwankl was attempting to stop domestic violence and child abuse-crimes that are frequently secretive and repetitive. In her call to the police, she stated that “I think there might be domestic violence, but also some sexual violence going on” and that there were “multiple concerns.” Although the alleged incident on August 9, 1999, triggered Schwankl‘s call, she ultimately acted because she believed that the events had occurred multiple times and would continue occurring if the authorities did not step in. Thus, after speaking with a domestic violence counselor, she decided to call the police to prevent future episodes that she believed could endanger Davis‘s wife or children.
Because Schwankl acted in good faith to prevent what she believed to be future crimes against other people, and she successfully defended herself in a defamation suit arising from her intervention, she is entitled to court costs and reasonable attorney fees under section 16-3-203. Therefore, we reverse the court of appeals.
V. Conclusion
We reverse the court of appeals’ decision, Davis v. Schwankl, 70 P.3d 509 (Colo.App. 2002), and hold that section 16-3-203 benefits people who successfully defend themselves against civil actions resulting from the defendants’ seeking, in good faith, to prevent a crime in progress or a future crime. Because Schwankl‘s case satisfies all of the elements of section 16-3-203, we direct the court of appeals to return the case to the trial court to enter an order awarding Schwankl the attorney fees and costs she has incurred in this litigation.
Justice BENDER does not participate.
Semple, Miller & Mooney, P.C., Patrick B. Mooney, Denver, Colorado, Attorneys for Respondent.
Ken Salazar, Attorney General, Alan J. Gilbert, Solicitor General, Frank R. Johnson, Assistant Attorney General, Environmental Quality Unit, Natural Resources and Environment Section, Denver, Colorado, Attorneys for Amicus Curiae for the State of Colorado.
Halpern Clancy, L.L.C., Alexander Halpern, Boulder, Colorado, Attorneys for Amici Curiae Colorado Association of School Boards and Colorado Association of School Executives.
Justice KOURLIS delivered the Opinion of the Court.
I. Introduction
In 1984, the Colorado General Assembly enacted a provision requiring every school district to adopt a discipline code to “deal with disorderly students in a manner which allows other students to learn in an atmosphere which is safe, conducive to the learn-
In the spring of 1999, Petitioner Keith Widder (Widder) was terminated from his job as a custodian for the Durango School District (the District), following pre-termination proceedings at the District level. He claims that the termination violated
The court of appeals vacated the trial court‘s order, concluding that the trial court erred in conducting a de novo hearing to determine whether Widder was discharged in violation of
The issue before us in this case is whether the General Assembly intended to supercede a school district‘s authority to make the decision, in the first instance, about whether an employee‘s actions were consonant with school district policies. Specifically, we granted certiorari to determine whether a school district employee who was dismissed for cause is entitled to judicial review of the School Board‘s determination that his conduct was not protected under the statute; and if so, what the correct standard of review should be. We now affirm in part, reverse in part, and remand with instructions to return the case to the District in order to make findings of fact and enter conclusions of law responsive to the principles set forth in this opinion.
II. FACTS
Keith Widder was a custodian at Miller Middle School in Durango, Colorado.5 On April 29, 1999, Widder intervened in an incident between two boys, in which one of the boys was pushing the other. Widder squatted down in front of the boy whom he perceived to be the aggressor and struck the boy with his own forehead-or “head-butted” him. Widder then told the boy that “[t]here‘s always someone bigger then you. Now get out of here.” After that comment, the boys walked away and Widder returned to the boiler room.
A few minutes after the incident, the boy went to Marc Cooper, the Assistant Principal of Miller Middle School, and reported that Widder had “head-butted” him. Meanwhile, Widder contacted his attorney before informing anyone from the school about what had happened. Fifteen minutes after the incident, Assistant Principal Cooper summoned
On the same day as the incident, Widder received a letter from Copper Stoll, the principal at Miller Middle School. That letter informed Widder that he was suspended without pay pending an investigation of the incident at 9:45 a.m. on April 29, 1999, and that such suspension was in compliance with the DSPA Master Agreement (a collective bargaining agreement between the Durango Support Personnel Association and the District). The letter also indicated that depending upon the outcome of the investigation, there could be additional disciplinary action including termination.
An investigation took place, and on May 20, 1999, the Interim Superintendent of the District, Dr. Joel Jones, sent Widder a letter advising him that Jones would be recommending to the Board of Education that Widder‘s employment be terminated effective June 3, 1999. Dr. Jones stated that the basis for his recommendation was the investigative report conducted by the District concluding that Widder made “inappropriate physical contact with the child in question.” Dr. Jones notified Widder that he was entitled to a hearing provided that he request the hearing within three days of the notice by contacting Jones in writing or by telephone. The letter further indicated that Widder would be entitled to representation at the hearing.
Pursuant to the DSPA Master Agreement, referred to in the initial suspension letter, Widder was entitled to certain pre-termination procedures. He was entitled to, and received, a copy of the complaint, information regarding the procedures used in the investigation and the ultimate resolution from the investigation. He was also entitled to, and received, two weeks’ notice of termination and an opportunity to request a hearing. Lastly, he was entitled to, and received, a hearing before the Superintendent or his or her designee, at which he was present and represented by counsel. The contract required that the Superintendent or his or her designee make findings of fact and render a decision. The DSPA agreement also outlined certain prohibited reasons for termination, such as unlawful discrimination on the basis of race, creed, color, national origin, sex, marital status, age, disability, veteran‘s status or membership or non-membership, or participation or non-participation in the activities of the employee organization. Widder does not contend that the procedures set forth in the contract were in any way abrogated. Therefore, although Widder may have been an at will employee with respect to the absence of a “for cause” provision in his contract, he was contractually entitled to pre-termination process that would not apply to a purely at will employee,6 and there were certain reasons for which he could not be terminated: some of which were outlined in the contract itself, and some of which fall under statutory or constitutional mandate.
A. ADMINISTRATIVE PROCEEDINGS
Widder‘s hearing occurred on July 9, 1999. He was represented by counsel. Dr. Judy Michalski, the Interim Superintendent for the District from June to July of 1999, presided over the hearing. Widder appeared but chose not to testify. Rather, Widder‘s attorney spoke on his behalf and submitted a notebook of documents for Michalski‘s consideration. Michalski also considered written statements of the two involved students. There was no transcribed record made of the hearing.
After the hearing, Michalski issued a one-page memorandum outlining the evidence presented at the hearing and her findings based on that evidence. She recited ten items of evidence that she had reviewed, including: statements from students and teachers; administrative policies on Exclusions, Corporal Punishment, Suspension/Expulsion of Students; the investigative report;
After reviewing the above documentation and listening to the arguments, statements, and questions. My findings are as follows: to uphold Dr. Joel Jones [sic] recommendation of termination based on the evidence that there was a headbut and that, based on my assessment of the credibility and weight of the evidence, it was deliberate or the result of Widder‘s inappropriate conduct.
Dr. Michalski submitted her recommendation to the Board of Education. The Board of Education approved Michalski‘s recommendation and Widder‘s employment with the District was terminated.
B. TRIAL COURT PROCEEDINGS
Following his termination, Widder filed a complaint in the District Court for La Plata County. Widder‘s allegations against the District included a breach of contract claim and a claim based on the District‘s violation of
The District moved for judgment on the pleadings pursuant to
After an evidentiary hearing, the trial court ruled from the bench in favor of Widder. The trial court determined that Widder acted in good faith and that his actions were in compliance with the District‘s Conduct and Discipline Code, which was entered into evidence. The trial court ordered that Widder be reinstated and awarded back pay plus statutory interest.
C. COURT OF APPEALS PROCEEDINGS
The court of appeals vacated the trial court‘s judgment and remanded the case with instructions to reinstate the School Board‘s order terminating Widder. The court of appeals held that the trial court erred in determining de novo the facts underlying Widder‘s mandamus action. Widder, 60 P.3d at 743. The court of appeals recognized that
III. ANALYSIS
A.
The specific statute that we are called upon to interpret appears in the portion of
Subsection (4) of
A teacher or any other person who acts in good faith and in compliance with the discipline code adopted by the board of education . . . shall not have his contract nonrenewed or be subject to any disciplinary proceedings, including dismissal, as a result of such lawful actions, nor shall the actions of such person be reflected in any written evaluation or other personnel record concerning such person.
Unlike the sections of the statute that provide immunity from civil or criminal liability for actions taken in good faith and in compliance with a conduct and discipline code, the section dealing with protection from adverse employment action contains no implementing provisions. In the context of civil liability, subsection (4)(II) states that “[t]he court shall dismiss any civil action resulting from actions taken by a teacher or any other person pursuant to the discipline code upon a finding by the court that the person acted in good faith and in compliance with such discipline code.” (emphasis added). Similarly, in the context of criminal immunity, subsection (4)(III) states that “it shall be an affirmative defense in [a] criminal action that the teacher or such other person was acting in good faith and in compliance with the discipline code.” (emphasis added). Absent such direction in the employment setting, it falls to us to give effect to the protection in the way we believe most closely implements the legislative intent.
We begin by noting that
Black‘s Law Dictionary, 752 (7th ed.1999), defines “immunity” as: “[a]ny exemption from a duty, liability, or service of process; esp., such an exemption granted to a public official.” The use of the term immunity in connection with employment decisions is somewhat anomalous. Indeed, even when the General Assembly is dealing with such fundamental employment issues as protection from termination for reasons of disability, race, creed, color, sex, age, national origin or ancestry, it categorizes those protections as discriminatory or unfair employment practices-not immunities. See
Because it is the seminal legislation that addresses the employment of teachers in public schools, we look to the Teacher Employment, Compensation, and Dismissal Act of 1990,
The statutory protection at issue in this case is in one way broader than the TECDA in that it covers all employees of the school district rather than just tenured teachers. Conversely, the protections and procedures it provides are in no way as specific as the TECDA. Both statutes implement public policy. The clear public policy of the statute at issue in this case is to encourage educators and school employees to intervene in situations involving disruptive behavior, violence, and bullying in school. All actions in intervention must, however, be in compliance with a “conduct and discipline code which is based upon the principle that every student is expected to follow accepted rules of conduct and to show respect for and to obey the persons in authority in the school.”
Also,
We take from the comparison between
B.
As we have noted, we interpret
Widder was an employee who had no right to continued employment, and who could be discharged without cause. He did, as noted above, have certain contractual rights not normally associated with at will employees. Traditionally, the law has accorded employers, including government agencies, broad discretion in the discharge of employees who are terminable at will. Fremont RE-1 Sch. Dist. v. Jacobs, 737 P.2d 816, 820 (Colo.1987). The general rule is that, absent a violation of constitutional rights, judicial review is not available to second-guess the firing of an employee who is terminable at will. Id. Such an employee may be dismissed without cause. Id.; see also Adams County Sch. Dist. No. 50 v. Dickey, 791 P.2d 688, 691 (Colo.1990) (because at will employees may be terminated without cause and without notice, termination does not give rise to a cause of action). Absent statutory or contractual requirements, at will employees are not even entitled to notice or a hearing when facing dismissal.
The fact is that the District was free to dismiss Widder without cause, unless such dismissal violated
Here, although no statute required pre-termination process, it is undisputed that the DSPA Master Agreement provided for such procedures, and that Widder did receive notice and a hearing before Michalski at which he was represented by counsel.12
C.
The School Board is a separate entity, with duties to administer its School District and to enforce applicable statutes, rules and policies. When a party seeks court oversight of the activities of such a governmental entity, it is Rule 106 of the Colorado Rules of Civil Procedure that sets forth the framework of such review. Here, that rule contains both the remedy that Widder urges and the remedy that the District urges.
On the other hand,
Widder maintains that the decision by the School Board as to whether or not his actions were taken in good faith and in compliance with the Conduct and Discipline Code is not susceptible to the limited review provided by
Widder argues that because there is no state or local law requiring notice and a hearing, a school board‘s determination cannot be characterized as quasi-judicial and therefore judicial review under
In Cherry Hills Resort Dev. Co. v. City of Cherry Hills Vill., 757 P.2d 622, 626 (Colo.1988), we expressly rejected Widder‘s argument that unless a notice and hearing is mandated by statute, an agency‘s action cannot be characterized as quasi-judicial in nature. We went on to state:
Eggert thus clearly stands for the proposition that it is the nature of the decision rendered by the governmental body, and not the existence of a legislative scheme mandating notice and a hearing, that is the predominant consideration in determining whether the governmental body has exercised a quasi-judicial function in rendering its decision.
Id. at 627. In Cherry Hills, we recognized that the existence of a statute or ordinance mandating notice and a hearing is “a clear signal that the governmental decision is to be regarded as quasi-judicial for the purpose of judicial review under
The central focus, in our view, should be on the nature of the governmental decision and the process by which that decision is reached. If, for example, the governmental decision is likely to adversely affect the protected interests of specific individuals, and if a decision is to be reached through the application of preexisting legal standards or policy considerations to present or past facts presented to the governmental body, then one can say with reasonable certainty that the governmental body is acting in a quasi-judicial capacity in making its determination.
Id.
Thus, in determining whether a school board is performing a quasi-judicial function, our inquiry must focus on the nature of the governmental decision and the process by which that decision is reached. Sherman v. City of Colorado Springs Planning Comm‘n, 763 P.2d 292, 295-96 (Colo.1988). “Quasi-judicial” decision making, as its name connotes, bears similarities to the adjudicatory function performed by courts. Cherry Hills, 757 P.2d at 625-26.
A school district‘s decision about whether to terminate an employee who claims that he acted in good faith and in compliance with a conduct and discipline code certainly involves a determination of the rights, duties, or obligations of specific individuals on the basis of the application of presently existing standards (i.e. the conduct and discipline code) to past or present facts. The clear questions to be resolved are: (1) what did the employee
The existence or absence of an adequate record is not pivotal in determining whether the decision itself was quasi-judicial. Indeed, under
In the event the court determines that the governmental body, officer or judicial body has failed to make findings of fact or conclusions of law necessary for a review of its action, the court may remand for the making of such findings of fact or conclusions of law.
See also Bd. of County Comm‘rs of Larimer County v. Conder, 927 P.2d 1339, 1350 (Colo. 1996) (Where a board fails to make adequate findings in the record, it is appropriate for the trial court to remand the case to the board with directions to make findings of fact or conclusions of law necessary for the subsequent review of its action.).
D.
The Board‘s decision to terminate Widder was a quasi-judicial decision that is properly reviewed under
We thus turn to the record we have of the hearing before Michalski to determine whether, under
Additionally, Michalski never addressed the relevant issues of Widder‘s good faith and his compliance with the conduct and discipline code. Indeed, the record of that proceeding does not even include a copy of the District‘s conduct and discipline code.14 Specifically, there should have been findings of fact and conclusions as to whether Widder was acting in good faith and whether his actions were indeed in compliance with Rule
Rule 16.1 of the District‘s code provides:
Any persons employed by the district may, within the scope of his employment, use reasonable and appropriate physical intervention or force when reasonably necessary, e.g.:
16.1.1 To restrain a student from an act of wrong-doing.
16.1.2 To quell a disturbance threatening physical injury to others.
16.1.3 To obtain possession of weapons or other dangerous objects upon a student or within the control of a student.
16.1.4 For the purpose of self-defense.
16.1.5 For the protection of persons or property.
16.1.6 For the preservation of order.
Absent such findings and conclusions, a court cannot undertake an appropriate review. A school board must make the initial determination of whether the employee‘s actions were taken in good faith and in compliance with the internal regulations implemented by each school district. Only after that determination is made is it even possible to conclude whether the statutory protection from dismissal is triggered. If an employee engages in a particular act that the employee contends is protected under
The issue here is not whether school boards are entitled to determine for themselves whether an employee is protected by the statute. Rather, school boards, through the application of their conduct and discipline codes, must make findings of fact and enter conclusions. Michalski‘s one-page memorandum provides an insufficient record to allow a court to conduct meaningful judicial review as to whether the School Board abused its discretion.
Because the District failed to make those determinations in this case, we cannot merely require Widder to certify the record of documents upon which Michalski relied in reaching her decision and review that record for adequacy. Rather, the case must be remanded back to the District under
We therefore affirm the court of appeals’ decision that de novo review was not appropriate. School boards, not courts, retain discretion over their employees and over the enforcement of their own conduct and discipline codes, absent a showing of abuse. We do not, however, agree with the court of appeals’ reinstatement of the termination order. The record is inadequate to allow the trial court or this court to determine the basis for the District‘s decision and whether that basis violated the statute. The appropriate remedy is to remand the matter to the District to correct that deficiency, such that the district court may then engage in the limited review contemplated by Rule
IV. CONCLUSION
We believe our decision today implements
Justice RICE dissents, and Justice HOBBS and Justice BENDER join in the dissent.
Justice RICE dissenting.
At issue in this case is whether a statute intended to protect school employees from dismissal by the school district board of education (the “School District” or “District“), based on an employee‘s action purportedly taken in good faith and in compliance with the District‘s discipline code, allows the District itself to determine whether the employee‘s conduct is so protected. The majority today answers that question in the affirmative, providing for only the most deferential review of the District‘s decision. Because I believe that this result renders the underlying statute virtually meaningless, I respectfully dissent.
In 1991, Colorado‘s General Assembly passed into law “A Bill for an Act Concerning the Protection of Persons Acting in Good Faith Under the Discipline Code Adopted by a School District.” H.B. 91-1203, 58th Gen. Assemb.; Reg. Sess. (Colo.1991);
A teacher or any other person who acts in good faith and in compliance with the conduct and discipline code adopted by the board of education pursuant to paragraph (a) of subsection (2) of this section shall not have his contract nonrenewed or be subject to any disciplinary proceedings, in-
cluding dismissal, as a result of such lawful actions....
This court has been called upon to determine what remedy, if any, the Immunity Statute provides to a District employee who has been dismissed by the District in contravention of this Statute. The majority holds that an employee may challenge a District‘s ruling only under
Because, in essence, the majority allows the District to determine the limits of its own authority-a function uniquely reserved to the courts-I disagree with its holding. See Hawes v. Colo. Div. of Insurance, 65 P.3d 1008, 1015 (Colo.2003) (“‘A cardinal principle of American constitutionalism is that those who are limited by law should not be empowered to decide on the meaning of the limitation: foxes should not guard henhouses.’ “) (quoting Cass R. Sunstein, After the Rights Revolution 224 (1990)); Social Sec. Bd. v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718 (1946) (“An agency may not finally decide the limits of its statutory power. That is a judicial function.“). Rather, because I find that this Statute creates a very specific form of immunity, I would hold that any employee-regardless of employment status and regardless of the nature of procedure initially provided by the School District-who has been dismissed in contravention of the Statute is entitled to de novo judicial review of the District‘s decision.
I. ANALYSIS
A. Immunity
Our primary goal in interpreting a statute is to ascertain and give effect to the intent of the General Assembly. Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.2002); Showpiece Homes Corp. v. Assurance Co. of America, 38 P.3d 47, 51 (Colo. 2001). Where the statutory language is clear and unambiguous, we need not resort to the interpretive rules of statutory construction. Concerned Parents, 47 P.3d at 313. However, where, as here, the language of the statute is ambiguous, we may turn to other sources, including the title of the statute, to determine the General Assembly‘s intent. Id. Additionally, we must analyze any ambiguous language in context with, and with regard to, its intended purpose as manifested by the statutory scheme as a whole. Wilczynski v. People, 891 P.2d 998, 1001 (Colo. 1995). In doing so, we strive to give consistent, harmonious, and sensible effect to all the Statute‘s parts. State v. Nieto, 993 P.2d 493, 501 (Colo.2000).
Here, although the Statute has failed to provide an express remedy, the title of the Statute makes plain the General Assembly‘s intent. The bill which became the Immunity Statute was titled, as introduced and as passed, “A Bill for an Act Concerning the Protection of Persons Acting in Good Faith Under the Discipline Code Adopted by a School District.” H.B. 91-1203. Thus, in passing the Immunity Statute, the General Assembly intended to protect District employees from adverse consequences, including dismissal, arising out of their good faith actions.
The majority treats the Statute “as an exception to a school board‘s discretion in the area of hiring and firing,” rather than as a form of immunity for employees, despite the fact that the entire Statute is couched in terms of immunity and despite the fact that the subsection at issue creates an express exemption from a liability-that of adverse employment consequences-so as to fall within the very definition of “immunity” cited to by the majority. Maj. op. at 524-525; Black‘s Law Dictionary 752 (7th ed.1999) (defining “immunity” as “[a]ny exemption from a... liability....“). I therefore fundamentally disagree with the majority‘s characterization of the issue before us today.
In my opinion, the Statute in fact creates several forms of immunity-immunity from civil suit, immunity from criminal prosecution, immunity from child abuse charges, and immunity from adverse employment consequences. Indeed, since its initial passage in 1991, the legislature has highlighted its intention that this Statute be treated as an Immunity Statute by adding the title “Immunity” to the subsection we address today. Cf. BQP Industries, Inc. v. State Bd. of Equalization of State of Colo., 694 P.2d 337, 344 (Colo.App.1984) (“[A]lthough subsequent legislative pronouncement of intent is not part of the legislative history, such statements may be considered in construing the statute in question.“). Thus, the Statute at issue today plainly creates immunity for school employees, and should be construed accordingly. As with all other forms of immunity, then, we must determine the applicability of this Statute to an employee de novo. See North Colorado Medical Center, Inc. v. Nicholas, 27 P.3d 828, 838 (Colo.2001) (reviewing de novo the question of whether a medical center was immune from suit under the Health Care Quality Improvement Act because “immunity under the HCQIA is a question of law for the court to decide“).
B. Insufficiency of Abuse of Discretion Review
Having rejected any sort of immunity analysis, however, the majority instead treats the initial termination decision as a quasi-judicial action because it “certainly involves a determination of the rights, duties or obligations of specific individuals on the basis of the application of presently existing standards . . . to past or present facts.” Maj. op. at 527-528; see Cherry Hills Resort Dev. Co. v. City of Cherry Hills Vill., 757 P.2d 622, 627 (Colo.1988). As such, the majority concludes that the decision is subject to review only under the abuse of discretion standard provided for in
While the termination decision resembles, in some respects, a quasi-judicial proceeding, I find that the absence of an impartial decision-maker prohibits such a conclusion or, at the very least, establishes that the purported quasi-judicial proceeding did not comport with due process. A quasi-judicial proceeding must be conducted in accordance with procedural due process. Soon Yee Scott v. City of Englewood, 672 P.2d 225, 227 (Colo.App.1983); see also, e.g., Douglas County Bd. of Com‘rs v. Public Utilities Com‘n of State of Colo., 829 P.2d 1303, 1310 (Colo.1992) (“When an agency acts in a quasi-judicial capacity, procedural due process requires that the agency give notice and afford a hearing to affected individuals.“). Crucial to the notion of due process is that a hearing be conducted by an impartial officer, who is held to the same standards as a judge. See, e.g., In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.“); Wells v. Del Norte Sch. Dist. C-7, 753 P.2d 770, 772 (Colo.App.1987) (“When administrative proceedings are quasi-judicial in nature, agency officials should be treated as the equivalent of judges.“). Although there exists a presumption of integrity, honesty, and impartiality in favor of those serving in quasi-judicial capacities, a party who demonstrates a personal, financial, or official stake in the decision on the part of the decision-maker overcomes that presumption. See First Bank v. Dep‘t of Regulatory Agencies, 852 P.2d 1345, 1353 (Colo.App.1993).
Here, the General Assembly passed the Immunity Statute in order to protect District employees not only from civil and criminal liability, but also from improper termination by the District.
Moreover, the General Assembly‘s intent to deprive the District of discretion under these very circumstances is made plain by considering the Immunity Statute in light of the greater legislative scheme regarding School Districts and their generally broad authority. See Wilczynski v. People, 891 P.2d 998, 1001 (Colo.1995) (holding that the purpose of an ambiguous statute may be determined by reference to the greater statutory scheme). In particular, the Immunity Statute carved out a narrow exception to the otherwise broad discretion given to Districts in the dismissal of employees. As the majority rightfully notes, in the absence of the Immunity Statute, Districts have the specific power “[t]o discharge or otherwise terminate the employment of any personnel.”
Given the General Assembly‘s determination that such discretion should be removed from School Districts under these circumstances, the District certainly had “an official stake” in the outcome of the termination hearing. See First Bank, 852 P.2d at 1345. Thus, I am unable to find even a semblance of impartiality in a proceeding wherein the District itself determines whether the employee is in fact protected from termination by the District. Due to this inherent bias in the decision-maker, the hearing given by the District either is not quasi-judicial in nature, thereby rendering review under
In fact, this case plainly demonstrates why de novo review, and not abuse of discretion, is necessary under the Immunity Statute. In particular, the glaring disparities between the District‘s findings and the trial court‘s findings highlight the pitfalls of deference to a School District‘s own conclusions. In a one-page memorandum, the District‘s interim superintendent ruled to uphold the District‘s recommendation of termination. According to her sole finding of fact, the superintendent concluded “that there was a headbut [sic] and that, based on [her] assessment of the credibility and weight of the evidence, it was deliberate or the result of Widder‘s inappropriate conduct.” (emphasis added). Thus, it appears that the “hearing officer” simply reaffirmed the District‘s decision to terminate Widder, notwithstanding her own finding that the contact may not have been deliberate.
The trial court, however, reached the opposite conclusion, based on evidence which was equally available to, if not relied upon by, the School District. The trial judge expressly noted that he did not “find any evidence to sustain the notion that the head contact . . . was deliberate,” rejecting as not credible the testimony of the complaining student-the only witness to testify that the contact was intentional. The trial judge further determined “that the term head-butt originated with [the complaining student] out of desire to take revenge on Mr. Widder. . . .” As such, the trial judge concluded that “Mr. Widder acted in good faith, and . . . in compliance with the discipline code which authorizes any employee of the district to intervene and use reasonable force as necessary.” Thus, at the conclusion of the de novo review, the trial judge found that the Statute did in fact protect Widder from dismissal by the District. Clearly then, the application of de novo review below served to uphold the protections created by the General Assembly when it passed the Immunity Statute.
In short, the majority‘s deferential abuse of discretion approach provides no safeguards for the employee who, ultimately, is the one for whom the Immunity Statute was passed. Thus, I believe a stronger remedy, in the form of de novo review of a School District‘s decision, is necessary in order to effectuate the purpose of the Immunity Statute.
C. De Novo Review Under Rule 57
Importantly, de novo review is necessary regardless of the proceedings provided at the School District level, if any. A District may simply determine that the protections of the Statute are not triggered at all, or may summarily conclude that the employee did not act in good faith or in compliance with the District‘s discipline code. Yet, under the majority‘s approach, it remains unclear what
On the other hand, even taking the majority approach as requiring some form of hearing whenever a colorable claim of protection under the Statute is raised,17 an employee‘s rights are still not guaranteed. Allowing the District to make findings of fact, and reviewing its ultimate decision only for abuse of discretion, provides no check on the District‘s ability to violate the Statute. A District has no incentive to make any factual finding that the employee did act in good faith and in compliance with the discipline code, and then to take action against that employee regardless of the factual finding. Yet that is the only scenario wherein an abuse of discretion standard would be likely to overturn the District‘s post-hearing termination of the employee. Thus, de novo review is essential in effectuating the purpose of the Immunity Statute.
In my opinion, the most appropriate remedy is to allow an employee to challenge the School District‘s decision under a
Under
The goal of
In other situations where a school board has violated a statutorily imposed duty,
Similarly, the court of appeals has ordered that a declaratory judgment be entered in a teacher‘s favor where it found that the defendant school district had violated the teacher‘s statutory right to tenure. Day v. Prowers County School Dist. RE-1, 725 P.2d 14 (Colo.App.1986). The defendant school district argued that they had transferred the teacher‘s contract to another district, and thereby cut off the teacher‘s right to acquire tenure under the statutory scheme at issue. Day, 725 P.2d at 14. The court of appeals disagreed, finding that the defendant district‘s transfer of the teacher‘s contract to another district, while the teacher continued to teach within the defendant district, did not sever the teacher‘s position as an employee of the defendant district so as to prevent the teacher from attaining tenure under the statutory scheme. Id. at 16. Consequently, the court of appeals ordered that a “judgment declaring that [the teacher] has acquired tenure within defendant school district” be entered. Id. at 14-15. Thus, declaratory judgments have been brought against school districts in order to interpret and enforce statutorily imposed duties and to protect the rights of those district employees affected by the statutes.
Finally, in a case analogous to the instant case, the court of appeals allowed declaratory relief for a plaintiff challenging two corporations who refused to hire her as a respiratory therapist based on her epilepsy. Silverstein v. Sisters of Charity of Leavenworth Health Serv. Corp., 38 Colo.App. 286, 559 P.2d 716 (1976). Although it ruled that the plaintiff was not entitled to bring a private cause of action under Colorado‘s relevant anti-discrimination statute because the statute‘s provision for a criminal penalty necessarily precluded a private right of action, id. at 289, the court of appeals found that declaratory relief was appropriate under the circumstances. Id. at 291. The court ruled that the plaintiff‘s action “seek[ing] a judgment regarding the applicability of the state act to the challenged employment policy” fell “clearly within the legislative intent.” Id. Thus, the plaintiff‘s claim that the defendants’ hiring policies unlawfully denied her employment merited declaratory relief under
Here,
II. CONCLUSION
Thus, in my view, a District employee alleging that the District‘s decision to fire him was in violation of his rights under the Immunity Statute is entitled to seek declaratory relief under
I am authorized to state that JUSTICE HOBBS and JUSTICE BENDER join in the dissent.