No. 89SC234Supreme Court of Colorado.
Decided January 14, 1991. Rehearing Denied February 4, 1991.
Certiorari to the Colorado Court of Appeals
George C. Price, P.C., George C. Price, Douglas J. McGinty, Craig H. Russell, Donald K. Gallagher, for Petitioner.
Hall Evans, Alan Epstein, Thomas N. Alfrey, Kathleen G. Lanterman, for Respondents.
EN BANC
JUSTICE LOHR delivered the Opinion of the Court.
[1] This case presents issues concerning the procedure for review of a decision of a school board to terminate the employment of a tenure teacher because of the expiration of her teacher’s certificate. The Board of Education of Adams County School District No. 14 (school board) terminated the employment of Carol Frey, a tenure teacher, withoutPage 852
a hearing because her teacher’s certificate had expired. Frey appealed to the Colorado Court of Appeals, which dismissed the appeal for lack of jurisdiction. Frey v. Adams County School Dist. No. 14, 771 P.2d 27
(Colo.App. 1989). We agree that the court of appeals lacked jurisdiction to review the school board’s action and therefore affirm the judgment dismissing the appeal.
I.
[2] Carol Frey was a tenure teacher who had been employed by the Adams County School District for approximately ten years.[1] Her teacher’s certificate expired early in May of 1987. The school board terminated her employment by action taken at a regular meeting on May 12, 1987. Frey was notified by a letter from a school district official dated May 14, 1987, stating in relevant part:
II.
[5] A person who is employed as a teacher in the same school district for three full academic years and who is thereafter re-employed in that school district for the next academic year acquires tenure as a teacher in that district. § 22-63-112, 9 C.R.S. (1988); see § 22-63-102, 9 C.R.S. (1988) (defining “tenure teacher” as “any teacher who has acquired tenure status in a school district pursuant to law”).
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[8] The procedure for dismissal of a tenure teacher is set forth in section 22-63-117, 9 C.R.S. (1988).[4] Charges must be proffered by the chief executive officer of the school district or any member of the board of education and accepted for review by the board. § 22-63-117(2). The teacher must be given notice of the charges, specified information concerning the evidence supporting them, and notice of the right to a hearing. § 22-63-117(3). Upon timely request by the teacher, a hearing must be conducted before an administrative law judge. § 22-63-117(5), (6), (7). A record and transcript must be made of the hearing. § 22-63-117(8). The administrative law judge must make written findings of fact and recommend that the teacher be dismissed or retained. Id. A copy of the findings and recommendation must be furnished to the teacher. Id.Notice must be given to the teacher of the time and place of the meeting at which the board of education will consider the findings and recommendation. § 22-63-117(9). At such meeting the board of education must review the findings and recommendation and enter its written order dismissing the teacher, retaining the teacher or placing the teacher on a one-year probation. § 22-63-117(10). [9] The procedure by which a teacher may obtain appellate review of the action of the board of education is governed by statute. Section 13-4-102(2)(l), 6A C.R.S. (1987), provides that the Colorado Court of Appeals shall have initial jurisdiction to “[r]eview decisions of the board of education proceedings for the dismissal of a teacher, as provided in section 22-63-117, C.R.S.”[5] Section 22-63-117(11) provides: “The teacher may file an action for review in the court of appeals by appropriate proceedings under section 24-4-106(11), C.R.S., in which action the board of education of the employing school district shall be made the party defendant. Such review shall be on the record made before the administrative law judge and the board.” [10] Section 24-4-106(11), 10A C.R.S. (1988), is part of the State Administrative Procedure Act and prescribes the procedures for prosecuting such an appeal and the standard of review to be applied. [11] It is undisputed that Frey was a tenure teacher before the expiration of her teacher’s certificate. It is also undisputed that Frey was not accorded a hearing before her dismissal by the school board. The issue is whether the procedures prescribed in section 22-63-117 for dismissal of tenure teachers and appellate review of such dismissals are applicable to her circumstances.
A.
[12] The school board contends, and the court of appeals held, that Frey is not entitled to review of her dismissal by filing an action in the court of appeals under section 22-63-117(11) because that section applies only to the dismissal of tenure “teachers” and Frey lost her status as a teacher when her certificate expired. This position is based upon the definition of “teacher” in section 22-63-102(9) of the Act, which provides:
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relevant provisions of the Act and is not consistent with the constitutional protections accorded to tenure teachers.[7] As Frey points out, if the statute is to be read literally, a board of education could deprive a person of status as a teacher by terminating that person’s employment, because the definition in § 22-63-102(9) describes a teacher as one “who is employed to instruct, direct, or supervise the instructional program.” (Emphasis added.) Such a fundamentally unfair result could not have been intended by the legislature. See §2-4-201(1)(c), 1B C.R.S. (1980) (it is presumed that legislature intended just and reasonable result). This serves to illustrate that an unbendingly literal reading of the definitional sections of the Act does not supply the key to legislative intent. We look instead to the overall legislative plan with respect to teacher certification and termination of employment of tenure teachers to determine whether a hearing is required in order to terminate the employment of a tenure teacher whose teacher’s certificate has expired. See, e.g., Martinez v. Continental Enterprises, 730 P.2d 308, 315 (Colo. 1986) (“statute is to be construed as a whole to give consistent, harmonious and sensible effect to all its parts”).
[16] Teacher certification is required in Colorado in order to provide quality education in the schools of the state and, among other reasons, to safeguard the welfare of children “against unqualified, incompetent and immoral teachers.” § 22-60-102, 9 C.R.S. (1988). The procedure for obtaining and maintaining certification is set forth in the Teacher Certification Act of 1975, §§ 22-60-101 to -117, 9 C.R.S. (1988 and 1990 Supp.). Various types of certificates are issued depending upon the educational background and teaching experience of the applicant. See § 22-60-104, 9 C.R.S. (1988 and 1990 Supp.). Teacher’s certificates are issued for a specified term and expire if not renewed. § 22-60-104(7). Renewal requires, in part, evidence of completion of certain educational credits. § 22-60-107, 9 C.R.S. (1988). A board of education may not enter into a contract with a person as a teacher, with exceptions not applicable here, unless such person holds or is entitled to hold a teacher’s certificate or letter of authorization.[8] § 22-63-103, 9 C.R.S. (1988). A teacher must hold a valid certificate or letter of authorization at all times while employed by a school district and forfeits all claim to compensation out of school district moneys for services performed during a time when such authorization was lacking. §22-63-104, 9 C.R.S. (1988). [17] In order to acquire status as a “teacher” under the definition in §22-63-102(9), it is necessary that a person become certified. Milan v. Aims Junior College Dist., 623 P.2d 65, 67 (Colo.App. 1980). The only explicit statutorily imposed sanction for loss of certification during a contract of employment is loss of the right to compensation. § 22-63-104, 9 C.R.S. (1988). Nothing in the statutes suggests that expiration of a teacher’s certificate held by a person employed as a tenure teacher automatically results in loss of right to employment. [18] With limited exceptions not applicable here,[9] a tenure teacher has the right toPage 855
a hearing before the sanction of dismissal can be imposed. § 22-63-117(1), (3). The Act comprehensively enumerates the reasons for dismissal of a teacher who has acquired tenure. § 22-63-116, 9 C.R.S. (1988). This indicates intent to limit the bases for dismissal. See In re Marriage of Van Inwegen, 757 P.2d 1118, 1120 (Colo.App. 1988) (“When a statute specifies a particular application in a specific instance, it is ordinarily to be construed as excluding from its operation all other situations not specified.”); Meyer v. Charnes, 705 P.2d 979, 982
(Colo.App. 1985) (“where a statute specifies particular situations in which it is to apply, the statute is ordinarily to be construed as excluding from its operation all other situations not specified.”). The Act does not specifically list loss of certification as a ground for dismissal of a tenure teacher. In view of the central importance of certification to the statutory scheme, however, we believe that the term “other good and just cause” in section 22-63-116 is sufficiently encompassing to include issues surrounding the expiration of a teacher’s certificate, thereby requiring that the procedure prescribed in section 22-63-117 be followed before a tenure teacher can be dismissed for loss of certification.[10]
(1956); see also de Koevend v. Board of Educ. of West End School, 688 P.2d 219, 227-28 (Colo. 1984) (irregular procedures violated tenure teacher’s “due process right to a fair and impartial determination by the board.”); cf. Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972) (teacher without tenure and without contractual right to renewal of employment has no protectible interest in reemployment). The state cannot deprive a person of such a right without due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Howell, 198 Colo. at 45-46, 596 P.2d at 60. [20] In Howell we held that “a grant of tenure by its nature engenders a reasonable and objective expectancy of continued employment . . . despite the fact that the General Assembly has provided that a grant of tenure does not guarantee continued employment under all circumstances.” Howell, 198 Colo. at 45, 596 P.2d at 60; see § 22-63-115, 9 C.R.S. (1988) (tenure teacher is entitled to position of employment as a teacher in school district where tenure acquired and while possessing valid teacher’s certificate until achieving retirement age or being dismissed pursuant to law). Therefore, in Howell, even though the statute provided for the cancellation of an employment contract with a tenure teacher
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“when there is a justifiable decrease in the number of teaching positions,” § 22-63-112(3), the teacher was still entitled to a hearing on questions of reasonableness and preference. Howell, 198 Colo. at 46, 596 P.2d at 60; see also Loudermill, 470 U.S. at 541 (“`[w]hile the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.'”) (quoting Powell, J., concurring, in Arnett v. Kennedy, 416 U.S. 134, 167 (1974) (brackets in Loudermill)); Board of Educ. of Taos Mun. Schools v. Singleton, 712 P.2d 1384, 1389 (N.M.App. 1985) (tenured teacher does not lose right to notice and a dismissal hearing with loss of certification), cert. denied, 713 P.2d 556 (N.M. 1986) Lynch v. Nyquist, 343 N.Y.S.2d 179, 182 (1973) (“Certification requirements, however, may not be employed to erode the protections afforded tenured teachers, since the tenure statutes provide the exclusive method for dismissal for those teachers.”).
[21] Even where termination is for expiration of a teacher’s certificate, factual inquiries are necessary to determine, among other things, if the certificate has, in fact, expired, and whether such expiration constitutes “good and just cause.”[11] In Howell we said: [22] “[S]ince the statute requires that the contracts of nontenured teachers should be cancelled before those of tenured teachers, there were factual determinations to be reviewed at a hearing including whether Howell was qualified to fill positions held by nontenured teachers and whether teachers could have been assigned different courses so as to allow Howell’s retention. Regarding such issues, due process requires that Howell not be forced to submit to ex parte determinations affecting his continued enjoyment of a constitutionally protected property right.” [23] 198 Colo. at 46, 596 P.2d at 60. Where the governmental action threatens deprivation of a significant property interest “[a]dministrative agencies have the obligation, as do the courts, to be fundamentally fair to the individual in the resolution of [the] legal dispute.” de Koevend, 688 P.2d at 227. B.
[24] The question remains whether section 22-63-117(11) authorizes review in the court of appeals when a tenure teacher is discharged without a hearing contrary to the requirements of section 22-63-117. Section 22-63-117(11), 9 C.R.S. (1988), provides:
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such a record, the court of appeals would be unable to perform the review contemplated by § 22-63-117(11). We therefore conclude that § 22-63-117(11) does not provide the procedure for review of a school board’s failure to hold a hearing before dismissal of a tenure teacher.
C.
[27] Inability to obtain review under § 22-63-117(11) of a dismissal ordered without compliance with the procedures prescribed by § 22-63-117 does not leave an adversely affected teacher without a remedy. A school board must comply with that statute in order to dismiss a tenure teacher. In the absence of proceedings under § 22-63-117 that produce a record suitable for review, an aggrieved tenure teacher may bring an action in district court under C.R.C.P. 106 to obtain relief for discharge under circumstances not in compliance with § 22-63-117. See generally de Koevend, 688 P.2d at 228-30 (discussing remedy for permitting school superintendent and principal, but not the teacher, to be present during the board of education review of the findings and recommendation of the administrative law judge).
D.
[28] Our decision today is consistent with the decision of the Colorado Court of Appeals in Snyder v. Jefferson County School Dist. No. 1, 707 P.2d 1049 (Colo.App. 1985). In that case, a tenure teacher was discharged by a letter from a school administrator because she was unable to produce a valid teacher’s certificate. The board of education had not ordered the dismissal. The teacher sought review under section 22-63-117(11) and filed a motion in the court of appeals to remand the case to the board of education for a hearing under section 22-63-117. The court of appeals held that “[a]bsent an order by the board [of education], there is not a final order, and [the court of appeals] lacks jurisdiction to review any administrative actions which have occurred.”Snyder, 707 P.2d at 1050. The court noted that an aggrieved teacher has a remedy under C.R.C.P. 106 in the district court for refusal of the school board to take final action.
III.
[30] We affirm the judgment of the court of appeals dismissing the action for review filed by the petitioner, Carol Frey, under section 22-63-117(11) of the Teacher Employment, Dismissal and Tenure Act of 1967.
prohibits a school district from entering into a contract with a person not holding a teacher’s certificate.
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