Capital letters indicate new material to be added to existing statute.

Dashes through the words indicate deletions from existing statute.

First Regular Session

Sixty-first General Assembly

LLS NO. 97­0630.01 MTJ SENATE BILL 97­168

STATE OF COLORADO

BY SENATOR Blickensderfer

EDUCATION

A BILL FOR AN ACT

CONCERNING THE TERMINATION OF TEACHERS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Requires every teacher to be employed pursuant to an employment contract. Requires every teacher employment contract to be for a definite period not to exceed one year. Provides that a teacher employment contract shall not create any property right or contract right, express or implied, to employment after the expiration of the contract.

Makes every teacher contract subject to nonrenewal on an annual basis. Removes provisions applicable solely to probationary teacher contracts. Authorizes the chief administrative officer of a school district to not renew the employment contract of any teacher for any lawful reason; except that renewal may not be denied based solely on the teacher's compensation or length of service. Provides that a school district need not comply with a teacher's request for the reasons underlying contract nonrenewal. Provides that a school board shall not agree to make the reasons for nonrenewal a grievable action.

Authorizes dismissal of a teacher with or without pay. Limits dismissal without pay to immorality, insubordination, conviction of a felony, or a deferred sentence for a felony. Provides that a teacher dismissed without pay shall not receive any remaining compensation under the employment contract. Authorizes a teacher dismissed without pay to object to the notice of intent to dismiss without pay and to obtain judicial review of the board's determination. Provides that a teacher dismissed with pay shall continue to receive all remaining compensation under the employment contract, and shall not have a right to object or to judicial review.

Provides a procedure for dismissal without pay, and places the burden upon the chief administrative officer to prove that dismissal without pay was proper. Provides that the hearing officer must make a recommendation either for dismissal without pay or dismissal with pay no later than 5 days after the conclusion of the hearing. Requires the board to review the hearing officer's recommendation. Authorizes a teacher dismissed without pay to file an action for review in the court of appeals.

Creates a procedure for dismissal with pay.

Prohibits a school district from entering into any contract inconsistent with the provisions of the act.

Removes references to probationary teachers.

Makes conforming amendments.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  22­60.5­111 (1) (f), Colorado Revised Statutes, 1995 Repl. Vol., is amended to read:

22­60.5­111.  Authorization ­ types ­ applicants' qualifications. (1)  Pursuant to the rules and regulations of the state board of education, the department of education is authorized to issue the following authorizations to persons of good moral character meeting the qualifications prescribed by this section and by the rules and regulations of the state board of education:

(f)  A type VI authorization, temporary, authorizes a school district to employ a person who is certified or licensed as a teacher, special services provider, principal, or administrator in another state and has not successfully completed the assessment of professional competencies to obtain a provisional license under section 22­60.5­201 (1) (b), 22­60.5­210 (1) (a), 22­60.5­301 (1) (a), or 22­60.5­306 (1) (a). A type VI temporary authorization is valid for two years and may not be renewed. The employing school district may include the period during which a person works under a type VI temporary authorization toward the three full years of continuous employment necessary to cease being a probationary teacher pursuant to section 22­63­103 (7).

SECTION 2.  22­63­103 (4), (5), and (7), Colorado Revised Statutes, 1995 Repl. Vol., are amended to read:

22­63­103.  Definitions. As used in this article, unless the context otherwise requires:

(4)  "Dismissal" means the involuntary termination of employment of a teacher PRIOR TO THE EXPIRATION OF A SPECIFIC CONTRACTUAL PERIOD for any reason other than a justifiable decrease in teaching positions.

(5)  "Nonrenewal" means the involuntary termination of employment of a probationary teacher by a board at the expiration of a specific contractual period.

(7)  "Probationary teacher" means a teacher who has not completed three full years of continuous employment with the employing school district and who has not been reemployed for the fourth year.

SECTION 3.  22­63­202 (1) and (3), Colorado Revised Statutes, 1995 Repl. Vol., are amended, and the said 22­63­202 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

22­63­202.  Employment contracts ­ contracts to be in writing ­ duration ­ damage provision. (1)  Except for a part­time or substitute teacher:

(a)  EVERY TEACHER SHALL BE EMPLOYED PURSUANT TO AN EMPLOYMENT CONTRACT;

(b)  Every employment contract entered into by any teacher or chief administrative officer for the performance of services for a school district shall be in writing;

(c)  EVERY EMPLOYMENT CONTRACT SHALL BE FOR A DEFINITE PERIOD NOT TO EXCEED ONE YEAR AND SHALL NOT CREATE ANY PROPERTY RIGHT OR CONTRACT RIGHT, EXPRESS OR IMPLIED, TO EMPLOYMENT AFTER THE EXPIRATION OF THE CONTRACT. THERE SHALL BE NO PRESUMPTION OF EMPLOYMENT AFTER EXPIRATION OF THE CONTRACT.

(3)  A teacher may be suspended temporarily during the contractual period until the date of dismissal as ordered by the board pursuant to section 22­63­302 or may have his OR HER employment contract cancelled during the contractual period when there is a justifiable decrease in the number of teaching positions. The manner in which employment contracts will be cancelled when there is a justifiable decrease in the number of teaching positions may be included in any contract between the board of education of the school district and school district employees. If there is no such contract provision, when a justifiable reduction in the number of teaching positions within a particular endorsement area occurs, the employment contracts of first­year probationary teachers who are occupying such positions shall be cancelled first. Further reductions in the number of teaching positions through the cancellation of employment contracts of second­year and third­year probationary teachers and nonprobationary teachers shall be made in accordance with an established policy of the board of education of the school district. The provisions of this subsection (3) concerning the cancellation of employment contracts shall not create any property right or contract right, express or implied, for second­year and third­year probationary teachers AND SHALL NOT LIMIT THE ABILITY OF THE BOARD OF EDUCATION TO DISMISS OR NOT TO RENEW THE CONTRACTS OF OTHER MORE SENIOR TEACHERS.

(4)  A SCHOOL DISTRICT SHALL NOT ENTER INTO ANY CONTRACT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.

SECTION 4.  22­63­203, Colorado Revised Statutes, 1995 Repl. Vol., is amended to read:

22­63­203.  Renewal and nonrenewal of teacher employment contracts. (1)  The provisions of this section shall apply only to probationary ALL teachers. and shall no longer apply when the teacher has been reemployed for the fourth year.

(2) (a)  During the first three school years that a teacher is employed on a full­time continuous basis by a school district, such teacher shall be considered to be a probationary teacher whose EVERY TEACHER'S employment contract may SHALL be subject to nonrenewal in accordance with subsection (4) of this section. A school district may also consider a teacher employed on a part­time continuous basis by such district and by a board of cooperative services to be a probationary teacher whose contract may be subject to nonrenewal in accordance with subsection (4) of this section. An employment contract with a probationary teacher shall not exceed one school year.

(b)  For purposes of paragraph (a) of this subsection (2):

(I)  A probationary teacher who is employed as a teacher in an alternative year program is deemed to be employed on a full­time basis during a school year if he performs services for at least the minimum period during which a pupil must be enrolled in any twelve­month period. The employment of any such probationary teacher as a teacher in such an alternative year program for such minimum period in successive twelve­month periods shall be deemed continuous.

(II)  A probationary teacher who is employed after the first day of the academic year is deemed to be employed for a full school year if the period of continuous and uninterrupted employment during that year includes the last ninety school days of the academic year.

(III)  The three school years of continuous employment required for the probationary period shall not be deemed to be interrupted by the temporary illness of a probationary teacher. A leave of absence approved by the board of a school district or a military leave of absence pursuant to article 3 of title 28, C.R.S., shall not be considered to be an interruption of the continuous employment required for the probationary period, but the time of such leaves of absence shall not be included in computing the required probationary period.

(IV)  The three school years of continuous employment required for the probationary period shall not be deemed to be interrupted by the acceptance by a probationary teacher of the position of chief administrative officer in said school district, but the period of time during which such teacher serves in such capacity shall not be included in computing said probationary period.

(3)  A probationary teacher employed by a school district on a full­time basis shall be deemed to be reemployed for the succeeding academic year at the salary that the probationary teacher would be entitled to receive under the general salary schedule, the teacher salary policy, or the combination schedule and policy, whichever is appropriate, unless the board causes written notice to the contrary to be given to said teacher on or before June 1 of the academic year during which said teacher is employed. Such teacher shall be presumed to have accepted such employment for the succeeding academic year unless said teacher causes written notice to the contrary to be given to the board on or before July 1.

(4) (a)  The chief administrative officer of the employing school district may recommend that the board not renew the employment contract of a probationary teacher for any LAWFUL reason he THE CHIEF ADMINISTRATIVE OFFICER deems sufficient; EXCEPT THAT THE CHIEF ADMINISTRATIVE OFFICER SHALL NOT RECOMMEND NONRENEWAL OF AN EMPLOYMENT CONTRACT BASED SOLELY ON THE TEACHER'S LEVEL OF COMPENSATION OR LENGTH OF SERVICE. If the board, based upon such recommendation, does not renew the employment contract of a probationary teacher, such teacher shall be given a written notice of contract nonrenewal.

(b) (I)  A probationary teacher who is given a written notice of contract nonrenewal may request and, if requested, shall receive, the reasons for nonrenewal from the chief administrative officer of the employing school district. THE DISTRICT SHALL NOT BE REQUIRED, BY CONTRACT OR OTHERWISE, TO COMPLY WITH SUCH A REQUEST.

(II)  It is the intent of the general assembly that the provision to a probationary teacher of the reasons for contract nonrenewal not create any property right or contract right, express or implied. However, A board may, but shall not be required to, SHALL NOT agree by contract or school district policy to make the reasons for nonrenewal a grievable action. If a state appellate court or a federal court determines that such a property right has been created and the time for all appeals has passed, this paragraph (b) shall be repealed. The court making such a determination shall be required to transmit a copy of the court's decision to the revisor of statutes. The effective date of the repeal of this paragraph (b) shall be the date the revisor of statutes receives notice from the court that such decision has been made and that the time for all appeals has passed.

(5)  A probationary teacher may be suspended temporarily during the contractual period until the date of dismissal as ordered by the board pursuant to section 22­63­302.

(6)  A SCHOOL DISTRICT SHALL NOT ENTER INTO ANY CONTRACT INCONSISTENT WITH PROVISIONS OF THIS SECTION.

SECTION 5.  22­5­117, Colorado Revised Statutes, 1995 Repl. Vol., is amended to read:

22­5­117.  Employment of teacher transferred from school district. Any teacher transferred from employment in a school district which THAT is a member of a board of cooperative services to employment in said board of cooperative services shall retain the employment status he THE TEACHER had attained prior to his OR HER transfer to the board of cooperative services, including credit for years of service as a probationary teacher as provided in article 63 of this title, in the school district from which he OR SHE transferred.

SECTION 6.  22­63­301, Colorado Revised Statutes, 1995 Repl. Vol., is amended to read:

22­63­301.  Dismissal with or without pay. (1)  A teacher may be dismissed for physical or mental disability, incompetency, neglect of duty, WITH OR WITHOUT PAY. REASONS FOR DISMISSAL WITHOUT PAY SHALL BE LIMITED TO immorality, unsatisfactory performance, insubordination, the conviction of a felony or the acceptance of a guilty plea, a plea of nolo contendere, or a deferred sentence for a felony. or other good and just cause. A DISMISSAL FOR ANY OTHER REASON SHALL BE A DISMISSAL WITH PAY. No teacher shall be dismissed for temporary illness, leave of absence previously approved by the board, or military leave of absence pursuant to article 3 of title 28, C.R.S., OR THE TEACHER'S LEVEL OF COMPENSATION OR LENGTH OF SERVICE.

(2)  A TEACHER DISMISSED WITHOUT PAY SHALL:

(a)  NOT RECEIVE ANY REMAINING COMPENSATION UNDER THE EMPLOYMENT CONTRACT THAT WOULD OTHERWISE BE DUE TO THE TEACHER BETWEEN THE DATE OF DISMISSAL AND THE EXPIRATION OF THE EMPLOYMENT CONTRACT; AND

(b)  HAVE A RIGHT TO OBJECT TO A NOTICE OF INTENT TO DISMISS WITHOUT PAY, AND A RIGHT TO OBTAIN JUDICIAL REVIEW OF THE BOARD'S DECISION ON THE OBJECTION, AS SET FORTH IN SECTION 22­63­302.

(3)  A TEACHER DISMISSED WITH PAY SHALL:

(a)  CONTINUE TO RECEIVE ALL REMAINING COMPENSATION UNDER THE EMPLOYMENT CONTRACT AS IF THE TEACHER HAD NOT BEEN DISMISSED; AND

(b)  NOT HAVE A RIGHT TO OBJECT TO SUCH DISMISSAL OR TO OBTAIN JUDICIAL REVIEW THEREOF.

(4)  A SCHOOL DISTRICT SHALL NOT ENTER INTO ANY CONTRACT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.

SECTION 7.  22­63­302 (1), (2), (3), (6) (a), (7) (c), (7) (e), (8), (9), (10) (a), and (10) (c), Colorado Revised Statutes, 1995 Repl. Vol., are amended, and the said 22­62­302 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

22­63­302.  Procedure for dismissal without pay ­ judicial review. (1)  Except as otherwise provided in subsection (11) of this section, a teacher shall be dismissed WITHOUT PAY in the manner prescribed by subsections (2) to (10) of this section.

(2)  The chief administrative officer of the employing school district may recommend that the board dismiss a teacher based upon one or more of the grounds stated WITHOUT PAY, AS PROVIDED in section 22­63­301. If such a recommendation TO DISMISS WITHOUT PAY is made to the board, such teacher within seven days after the board meeting at which the recommendation is made, shall be given a written notice of intent to dismiss WITHOUT PAY. The notice of intent to dismiss shall include a copy of the reasons for dismissal a copy of this article, and all exhibits which the chief administrative officer intends to submit in support of his prima facie case against the teacher including a list of witnesses to be called by the chief administrative officer, addresses and telephone numbers of the witnesses, and all pertinent documentation in the possession of the chief administrative officer relative to the circumstances surrounding the charges. Additional witnesses and exhibits in support of the chief administrative officer's prima facie case may not be added at a later date except on a showing of good cause WITHOUT PAY. The notice and copy of the charges shall be sent by certified mail to said teacher at his THE TEACHER'S address last known to the secretary of the board. The notice shall advise the teacher of his OR HER rights and the procedures under this section.

(3)  If a teacher objects to the grounds given for the dismissal WITHOUT PAY, such teacher may file with the chief administrative officer a written notice of objection and a request for a hearing. Such written notice shall be made within seven days of AFTER the receipt by the teacher of the notice of dismissal. If the teacher fails to file the written notice within said time, such failure shall be deemed to be a waiver of his OR HER right to a hearing and the dismissal shall be final; except that the board of education may grant a hearing upon a determination that the failure to file written notice for a hearing was due to good cause. If the teacher files a written notice of objection, such teacher shall continue to receive regular compensation from the time such teacher is suspended until a decision is rendered by the board pursuant to subsection (9) of this section, but in no event beyond one hundred twenty days.

(6) (a)  Within ten days of the selection of the hearing officer, the teacher shall provide to AND the chief administrative officer SHALL PROVIDE TO EACH OTHER a list of all exhibits to be presented at the hearing and all witnesses to be called, including the addresses and telephone numbers of the witnesses. Additional witnesses and exhibits may not be added at a later date except upon a showing of good cause.

(7) (c)  At any hearing, the teacher has the right to appear in person with or without counsel, to be heard and to present testimony of witnesses and all evidence bearing upon his OR HER proposed dismissal, and to cross­examine witnesses. By entering an appearance on behalf of the teacher or the chief administrative officer, counsel agrees to be prepared to commence the hearing within the time limitations of this section and to proceed expeditiously once the hearing has begun. All school district records pertaining to the teacher shall be made available for the use of the hearing officer or the teacher.

(e)  Any hearing held pursuant to the provisions of this section shall be completed within ten CONSECUTIVE days of its commencement, unless the parties otherwise agree, and neither party shall have more than five days to present its case in chief.

(8) (a)  The chief administrative officer shall have the burden of proving that his OR HER recommendation for the dismissal WITHOUT PAY of the teacher was for the reasons given in the notice of dismissal and that the dismissal was made in accordance with the provisions of this article. Where unsatisfactory performance is a ground for dismissal, the chief administrative officer shall establish that the teacher had been evaluated pursuant to the written system to evaluate certificated personnel adopted by the school district pursuant to section 22­9­106. The hearing officer shall review the evidence and testimony and make written findings of fact thereon. The hearing officer shall make one of the two following recommendations:

(I)  The teacher be dismissed or the teacher be retained WITHOUT PAY; OR

(II)  THE TEACHER BE DISMISSED WITH PAY.

(b)  The findings of fact and the recommendation shall be adopted by the hearing officer in open session not later than twenty FIVE days after the conclusion of the hearing and shall be forwarded to said teacher and to the board.

(9)  The board shall review the hearing officer's findings of fact and recommendation, and it shall enter its written order within twenty days after the date of the hearing officer's findings and recommendation. The board shall take one of the three TWO following actions: The teacher be dismissed the teacher be retained; or the teacher be placed on a one­year probation WITHOUT PAY OR DISMISSED WITH PAY; but, if the board dismisses the teacher WITHOUT PAY over the hearing officer's recommendation of retention DISMISSAL WITH PAY, the board shall make a conclusion, giving its reasons therefor, which must be supported by the record, and such finding shall be included in its written order. The secretary of the board shall cause a copy of said order to be given immediately to the teacher and a copy to be entered into the teacher's local file.

(10) (a)  If the board dismisses the teacher WITHOUT PAY pursuant to the provisions of subsection (9) of this section, the teacher may file an action for review in the court of appeals in accordance with the provisions of this subsection (10), in which action the board shall be made the party defendant. Such action for review shall be heard in an expedited manner and shall be given precedence over all other civil cases, except cases arising under the "Workers' Compensation Act of Colorado", articles 40 to 47 of title 8, C.R.S., and cases arising under the "Colorado Employment Security Act", articles 70 to 82 of title 8, C.R.S. IF THE BOARD DISMISSES THE TEACHER WITH PAY, THE PROVISIONS OF SECTION 22­63­301 (3) SHALL APPLY.

(c)  The action for review shall be based upon the record before the hearing officer. If the decision of the board to dismiss the teacher WITHOUT PAY was in accordance with the recommendation of the hearing officer, the court of appeals shall review such record to determine whether the action of the board was arbitrary or capricious or was legally impermissible. If the decision of the board to dismiss the teacher WITHOUT PAY was made over the hearing officer's recommendation of retention DISMISSAL WITH PAY, the court of appeals shall either affirm the decision of the board or affirm the recommendation of the hearing officer, based upon the court's review of the record as a whole and the court's own judgment as to whether the board's decision or the hearing officer's recommendation has more support in the record as a whole.

(12)  A SCHOOL DISTRICT SHALL NOT ENTER INTO ANY CONTRACT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.

SECTION 8.  Part 3 of article 63 of title 22, Colorado Revised Statutes, 1995 Repl. Vol., is amended BY THE ADDITION OF A NEW SECTION to read:

22­63­303.  Procedure for dismissal with pay. (1)  THE CHIEF ADMINISTRATIVE OFFICER OF THE EMPLOYING SCHOOL DISTRICT MAY RECOMMEND THAT THE BOARD DISMISS A TEACHER WITH PAY, AS PROVIDED IN SECTION 22­63­301.

(2)  IF THE CHIEF ADMINISTRATIVE OFFICER MAKES A RECOMMENDATION TO DISMISS A TEACHER WITH PAY, AND THE BOARD DISMISSES THE TEACHER WITH PAY, THE TEACHER SHALL BE GIVEN A NOTICE OF DISMISSAL WITH PAY, SENT TO THE TEACHER BY CERTIFIED MAIL AT THE TEACHER'S ADDRESS LAST KNOWN TO THE SECRETARY OF THE BOARD, AND SHALL CONTINUE TO RECEIVE COMPENSATION PURSUANT TO THE EMPLOYMENT CONTRACT UNTIL THE EXPIRATION OF THE EMPLOYMENT CONTRACT. THE TEACHER SHALL NOT BE ENTITLED TO ANY ADDITIONAL RELIEF AND SHALL NOT HAVE THE RIGHT TO OBJECT TO THE DISMISSAL OR TO OBTAIN JUDICIAL REVIEW THEREOF.

(3)  IF THE CHIEF ADMINISTRATIVE OFFICER MAKES A RECOMMENDATION TO DISMISS A TEACHER WITH PAY, BUT THE BOARD DECIDES TO DISMISS THE TEACHER WITHOUT PAY, THE PROCEDURE SET FORTH IN SECTION 22­63­302 SHALL APPLY.

(4)  A SCHOOL DISTRICT SHALL NOT ENTER INTO ANY CONTRACT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.

SECTION 9.  Effective date ­ applicability. This act shall take effect July 1, 1998, and shall apply to contracts entered into or renewed on or after said date.

SECTION 10.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.