*1 Although duty the court has a on jury fully every issue

instruct

presented, the issue mistake was trial, nor

here at was there presented indicate would that defend

evidence which money mistakenly

ant believed be result,

longed to him. As a there was no plain People error.

error much less See 24,

Mackey, 185 Colo.

Judgment affirmed. BABCOCK, JJ.,

KELLY and concur. BLAINE, Petitioner,

Patricia

MOFFAT COUNTY SCHOOL 1, RE. NO.

DISTRICT

Respondent.

No. 83CA1375. Appeals,

Colorado Court

Div.

Sept. 1985.

Rehearings Denied Oct. 1985. Denied Moffat

Certiorari 21, 1986.

Jan. in Blaine

Certiorari Granted 21, 1986.

Jan. *2 Ass’n., George Price, Educ.

Colorado C. Aurora, petitioner. for Thornberry,

Thomas Craig, C. for re- spondent. CISE, Judge.

VAN Petitioner, (teacher), Patricia Blaine seeks review an order of the (board) Education respondent, Moffat County (district), School District RE. 1No. which her as dismissed a tenured teacher. We affirm.

In addition to regular high school teaching activities, the teacher was a cheer- sponsor, leader for which she received ex- pay. superintendent tra The district rec- dismissal, ommended her charging her with neglect duty that, acting while sponsor cheerleader at a district basketball Junction, tournament in Grand she allowed cheerleaders, including those under age, to drink beer in a motel room where they staying, were all drank even with them. alleged It was this that violation her duty provide “to health, general safety and welfare of all of said cheerleaders and to insure that policies.” students abided school These charges accepted no- review and given request- tice was to the She teacher. hearing, ed a and a was convened 22-63-117, pursuant and conducted to § (1984 Cum.Supp.). “Findings In his of fact and recommen- hearing, dations” after the the hear- issued ing officer summarized exhibits and testimony each then witness. He made facts,” “evidentiary findings of (1) prior were: the teacher had no knowl- edge of party the student cheerlead- gave prior approval no ers’ room and to anyone party a be for such for beer to there; (2) obtained or she first consumed party learned of the she entered noise; (3) investigate prior to to room party, teacher drank beer while eating pizza with student cheerleaders room, her own but she did not offer beer any they of the students there and time; (4) any drink in her room at attempted get ular instances of teacher’s party, at the teacher conduct....” drinking discussing Davis, (Colo.1981). Ricci v. the students to And, discipline which could be we must take possible care to restrict (5) sponsors; unduly nei- power on the students and to terminate employ- cosponsor took ther the teacher nor the personnel ment of school district statutori- *3 stop the ly to to students from vested in district boards of education. drink; (6) continuing the teacher drank Lovett, to v. 196 P.2d Blair Colo. 582 668 at half a bottle of beer with the students mind, principles With these in we (7) party; inexpe- the teacher was the find no of discretion here. abuse this type in how to handle of situa- rienced tion, would take to but in the future any report par- it would students and 22-63-117(10), The teacher asserts that § hearing officer rec- ticipating therein. The (1984 Cum.Supp.) requires C.R.S. that retained, the teacher be but in- ommended where, here, as the district dismisses the formally suggested the board consider oth- hearing teacher over the officer’s recom- discipline that on the er similar to retention, it mendation of must make a cosponsor, day suspen- a non-teacher five specific conclusion in its order “that the sion. hearing findings officer’s of fact are not adopted hearing the The board officer’s supported by the record made before him.” findings fact, rejected evidentiary of but that, argues She since there was no such Instead, recommendations. it conclud- his and, fact, adopted the conclusion board neglect guilty

ed that the teacher was of of findings, his the board’s dismissal order duty and ordered dismissal. disagree. must be reversed. We reading A literal of the statute seems to I. read, support the teacher’s contention. So challenge The teacher does not the suffi- only a hearing board can differ with a ciency the support of the evidence to evi- if it officer’s recommendations differs with dentiary findings by the hear- made fact; if, here, agrees of it his ing adopted by and the board. officer fact, findings of with his it must follow his Also, that she admits that she knew con- However, interpre- recommendations. that beverages by sumption of alcoholic stu- general does not assem- tation meet supervision was dents while under her con- achieving “just bly’s presumed intent of trary policy to and to state law and board result,” 2-4-201(l)(c), and reasonable § policy she not and that enforce that C.R.S., existing nor does it conform law However, she contends that those law. of on the duties and functions the fact-find- support do the board’s ultimate facts proceedings. er and board dismissal neglect finding guilty she was that duty and should be dismissed. We dis- specific power has the agree. terminate the discharge “to otherwise any hearing employment personnel.” Section by

The facts as found 22-32-110(l)(h), There no indica by fully the teacher C.R.S. officer and admitted delegate finding legislative of ne tion of a intent to support the board’s ultimate authority hearing Blair neglect to a officer. v. glect duty. Whether this hearing Lovett, supra. The is to justify is a officer sufficiently serious to dismissal board, make review evidence and matter within discretion of evidentiary findings, fact. These when ad subject judicial review for abuse of record, However, by reviewing equately supported are bind “a that discretion. Davis, supra. v. compar ing its on board. Ricci may freely substitute court including the findings, recommen for the Ultimate atively judgment uninformed dations, on binding are not the board be appraisal the harm experienced officer, hearing it, has partic- and not community by cause on the school inflicted power script. to determine what facts consti- The board counters that the teach- grounds statutory tute the er pay dismissal. should its attorney fees because her Davis, supra; Lovett, v. petition Ricci Blair for review is frivolous ground- and Education, supra; Suley v. Board agree less. We with the teacher and dis- hearing 482 (Colo.App.1981). P.2d of- agree with the board. is just ficer’s recommendation a recommen- 22-63-117(8), (1984 Section Cum. Lovett, and nothing dation more. Blair Supp.) provides pertinent part: supra. transcript “A and record shall be made We therefore hold that the statu of all testimony evidence received tory phrase applies relied on the teacher officer.... The costs for only to the in which situation recording of evidence paid by shall be rejecting officer’s recommenda the school district.” retention, *4 tion of does so on basis that the Therefore, pay the board must tran- the support findings the record does not his of script. See Weissman v. Board Edu- of evidentiary phrase inapplica fact. The is cation, (1976). 190 Colo. 547 P.2d 1267 where, here, adopts the ble board the See also deKoevend Edu- of hearing evidentiary officer’s of cation, (Colo.1984) 4). (fn. P.2d 688 219 fact. Although we affirm the or board’s dismissal, der of regard we do not the III. petition frivolous, groundless, for review as The teacher her next contends that termi- or Realty, vexatious. See Western United was of improper nation because the un- Isaacs, (Colo.1984); Inc. v. equal disciplinary sanctions on the 13-17-101, (1984 Cum.Supp.). § disagree. two cheerleader sponsors. We cosponsor library clerk, was a V. Together teacher, not teacher. with the contention, Contrary to the teacher’s the she witnessed student cheerleaders con applied board the correct standard re- of suming they beer at the motel where all view. See deKoevend v. Board Edu- of staying during an official school func (fn. cation, 4). supra tion. She did the not stu The order affirmed and the cause is consuming report dents from such remanded directions that the district with However, activity. different from the pay hearing transcript. for the costs of the teacher, cosponsor the drink with not disciplined by impo students. She J., SMITH, concurs. day suspension of a from sition five employment. STERNBERG, J., dissents. The teacher’s more seri- violations were STERNBERG, Judge, dissenting. cospon- ous than those of non-teacher And, event, in any sor. administrative view, my In agencies impose can different sanctions on adopted officer which were persons similar committing offenses with- provide school board no basis violating equal protection out law of of the ordering the board dismissal or the States under Colorado United recognize teacher. I that under Blair v. Constitution. Ramirez v. Service Civil Lovett, (1978), Colo. P.2d 668 196 582 Commission, Colo.App. 383, 42 594 P.2d fact, evidentiary if only findings of basic or evidence, supported binding on are of the hear- and the recommendation

IV. However, ing binding. if the officer is support ac- evidentiary findings do not teacher contends that also tion board—here dismissal of pay the of the tran- of the should cost rubberstamp To this de- teacher —the board’s should be board. career act such upheld. stroying based on. de minimis gives conduct undue deference to the point the re- There must be a at which power. I would hold that these viewing responsibility asserts its court findings do so punish- not warrant drastic a language interpret apply statutory and ment. governing agency actions such as this. questions statutory in- “Undoubtedly reasons, respectfully these I For dissent terpretation, especially arising in opinion. the majority from judicial proceedings, the first instance

are for court to resolve. [Citations question But where the is one

omitted.] specific application a broad statu-

tory proceeding in an term in a administering

agency the statute must if, initially, reviewing

determine agen-

courts is limited function ... [The accept- ...

cy's] determination is to be ed it has ‘warrant the records’ if Colorado, The PEOPLE State (emphasis a reasonable basis law.” Plaintiff-Appellee, added) *5 v. National Labor Relations Publication, Inc., 111, 64 Hearst 322 U.S. WASHINGTON, Marshall L. 851, (1944), quoted L.Ed. 1170 S.Ct. Defendant-Appellant.. Davis, (Colo.1981). Ricci No. 83CA1050. of ultimate fact “[T]he fully must be warranted the evidentia- Appeals, Colorado Court (em ry findings officer.” Div. added) phasis v. Board Edu deKoevend cation, (Colo.1984). P.2d 219 There Sept. 1985. fore, ground if we must decide Oct. 1985. Rehearing Denied dismissal, neglect duty, fully warrant findings. ed under these offi-

cer, adopted by all of majority opinion. are in the set forth specific evidentiary findings were

Seven

made, nearly all of which tend to minimize culpability of the teacher’s conduct. only damning finding real is that

teacher drank half bottle of beer with party and and the

students at the that she

co-sponsor no action to took consuming small from students still remained

amount party light In of the was discovered. findings, considering all the find-

other

ings together, I am of view that teach- dismissing of the stand, fully cannot because it is not

er thus, there is by the record and

warranted

no reasonable basis