No. 85CA0606Colorado Court of Appeals.
Decided December 19, 1985. Rehearings Denied February 13, 1986. Certiorari Granted Industrial Commission April 21, 1986 (86SC84).
Review of Order from the Industrial Commission of the State of Colorado
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Thomas C. Thornberry, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Christa Taylor, Assistant Attorney General, for Respondents Industrial Commission and Colorado Division of Employment.
Skaalerud Price, George C. Price, for Respondent Patricia Blaine.
Division II.
Opinion by JUDGE VAN CISE.
[1] Petitioner, Moffat County School District RE-No. 1 (school district), seeks review of the Industrial Commission’s award of full unemployment compensation benefits to respondent Patricia Blaine (teacher) pursuant to § 8-73-108(4), C.R.S. (1985 Cum. Supp.). We set aside the order. [2] In October 1983, following a hearing pursuant to the Teacher Employment, Dismissal, and Tenure Act, § 22-63-101 et seq., C.R.S. (1985 Cum. Supp.), a hearing officer entered findings and a recommendation that the teacher not be dismissed from her position as a tenured high school English teacher. [3] In November 1983, the board of education (board) of the school district adopted the hearing officer’s findings of evidentiary facts but reversed his findings of ultimate facts and his recommendation. Instead, it determined, based on the hearing officer’s findings of evidentiary facts, that the teacher was guilty of neglect of duty and ordered her dismissal. The teacher petitioned this court for review, and the order of dismissal was affirmed in Blaine v. Moffat County School District RE-No. 1, 709 P.2d 96, (Colo.App. No. 83CA1375, September 5, 1985). [4] In July 1984, while judicial review was pending, the teacher filed for unemployment compensation. A referee determined that the school district was responsible for the separation, that the teacher was discharged at the convenience of the school district, and that insufficient grounds existed for the denial of unemployment benefits based on the separation. The Commission affirmed. [5] On review, the parties agree that the doctrine of collateral estoppel is applicable to this unemployment action. They also agree: (1) that the issue for decision in this action is identical with the one previously presented in the teacher dismissal case — the cause for the teacher’s separation from employment; (2) that the same parties were involved in both actions; (3) that both had a full and fair opportunity to litigate the issue in the dismissal case; and (4) that there was a final judgment on the merits in that case. Therefore, the referee properly held that relitigation was precluded and that the decision on the issue in the dismissal case was conclusive in the unemployment action. See Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974), and Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). [6] However, the school district contends, and we agree, that the referee and the Commission erred in regarding the evidentiary and ultimate findings of fact and the recommendation of the hearing officer as the “final judgment” in the dismissal case, and in disregarding the ultimate findings of the board that the teacher was guilty of neglect of duty. The board, and not the hearing officer, has the power to determine what facts constitute the statutory grounds for dismissal. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Blair v. Lovett, 196 Colo. 118, 582 P.2d 668(1978). And, the hearing officer’s recommendation was just that, a recommendation and nothing more. Blair v. Lovett, supra. [7] The board’s determination constituted the “final judgment” upon which collateral estoppel is based. Jefferson County School District No. R-1 v. Industrial Commission, 698 P.2d 1350 (Colo.App. 1984). And, the affirmance of the board’s order on review in this court preserved the
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finality of that judgment. By that ruling, the teacher was disqualified from a full award of benefits. See § 8-73-108(5)(e)(VII), (VIII), and (IX), C.R.S. (1985 Cum. Supp.).
[8] Also, the referee erred in basing his ruling in part on the alleged behavior of, and the unequal disciplinary sanction imposed by the board on, the non-teacher employee who was involved, to a lesser degree, in the same incident that caused the teacher’s dismissal. For a discussion of that issue, see Blaine v. Moffat County School District RE. No. 1, supra. See also, Ramirez v. Civil Service Commission, 42 Colo. App. 383, 594 P.2d 1067(1979). [9] The Commission’s order is set aside and the cause is remanded for further proceedings consistent with this opinion. [10] JUDGE SMITH concurs. [11] JUDGE STERNBERG dissents. [12] JUDGE STERNBERG dissenting. [13] I am in disagreement with the majority opinion for several reasons, and therefore respectfully dissent.
I.
[14] The issues involved in terminating the employment of a tenured teacher and awarding of less than full benefits under an unemployment compensation claim are not so nearly identical as to allow application of the doctrine of collateral estoppel.
II.
[17] Determination of whether the facts of a case warrant dismissal of a teacher is one of ultimate fact, a mixed question of law and fact. Thompson v. Board of Education, 668 P.2d 954 (Colo.App. 1983). In the teacher tenure proceeding leading to dismissal of the teacher, the hearing officer made detailed findings of evidentiary fact leading to the conclusion by the hearing officer that the facts did not justify discharge of the teacher. The school district adopted the findings of the hearing officer but discharged the teacher. See Blaine v. Moffat County School District RE. No. 1., 709 P.2d 96, (Colo.App. No. 83CA1375, September 5, 1985)
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fact are to be used as a weapon to deny full unemployment compensation benefits to the teacher by application of the doctrine of collateral estoppel. Indeed, as the teacher argues, a more logical and stronger case can be made for applying the doctrine to the determinations and recommendations of the hearing officer who, after all, was present during the contested hearing in the matter and had the opportunity to observe the manner and demeanor of the witnesses, and to draw inferences from this live testimony. Moreover, as noted in the dissenting opinion i Blaine v. Moffat County School District RE. No. 1, supra, in my view, the evidentiary findings made by the hearing officer do not support the action of the board.
III.
[19] Finally, in my opinion, the majority opinion in this case is contrary to the holding of this court in City of Colorado Springs v. Industrial Commission, (Colo.App. No. 85CA0345, December 12, 1985). There, an employee of the city had been discharged for unsatisfactory performance and conduct unbecoming a city employee. Pursuant to city procedures the discharge was upheld by the city manager and then by the municipal court. The employee filed a claim for unemployment compensation benefits. Over the argument of the city that collateral estoppel should preclude the commission from redetermining the reasons for discharge, the commission held the doctrine not to be applicable and awarded the employee full unemployment benefits. The basis of this court’s affirmance of the full award of benefits, and refusal to apply collateral estoppel, was that the city did not have subject matter jurisdiction concerning unemployment benefits.