HOUSE BILL 981090
BY REPRESENTATIVES Dean, Allen, Bacon, Dyer, Reeser, Tool, S. Williams, and T. Williams;
also SENATORS Arnold, B. Alexander, and Matsunaka.
CONCERNING TEACHER DISMISSAL.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 2263302
(2), (3), (4) (a), (5), (6) (a), (7) (a), (7) (d), (7) (e), (8),
(9), and (10), Colorado Revised Statutes, are amended to read:
2263302. Procedure for
dismissal judicial review. (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 in section 2263301.
If such a recommendation is made to the board, such
teacher, THE CHIEF ADMINISTRATIVE
OFFICER, within seven
THREE days after the board meeting at which the recommendation
is made, shall be given
MAIL a written notice of intent to dismiss TO THE TEACHER. 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 OR HER 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
BE ADDED AS PROVIDED IN SUBSECTION (6) OF THIS SECTION. The notice
and copy of the charges shall be sent by certified mail to said
teacher at his OR HER 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, such
THE 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
FILED within seven
FIVE WORKING days of the
AFTER 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
THE 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
THE teacher shall continue to receive regular compensation from
the time such teacher
is suspended
until a decision is rendered by the
board RECEIVED THE DISMISSAL RECOMMENDATION FROM THE CHIEF ADMINISTRATIVE
OFFICER PURSUANT TO SUBSECTION (2) OF THIS SECTION UNTIL THE BOARD
ACTS ON THE HEARING OFFICER'S RECOMMENDATION pursuant to subsection
(9) of this section, but in no event beyond one
hundred twenty ONE HUNDRED days.
(4) (a) If THE TEACHER REQUESTS a
hearing, is requested by the teacher,
it shall be conducted before an impartial hearing officer selected
jointly by the teacher and the chief administrative officer. The
hearing officer shall be selected no later than five WORKING days
following the receipt by the chief administrative officer of the
teacher's written notice of objection. If the teacher and the
chief administrative officer fail to agree on the selection of
a hearing officer, they shall request the
chief judge of the judicial district in which the school district
is located to select a list of three hearing officers. The list
of hearing officers shall be given to the teacher and the chief
administrative officer within five days of the request by the
parties. Each party may strike one name from the list and shall
notify the chief judge of the name to be stricken no later than
three days following receipt of the list. The person whose name
is not struck shall be the hearing officer; except that, if more
than one name remains on the list because the parties struck the
same name or because one or both parties failed to strike a name
within the prescribed time period, the chief judge may choose
the hearing officer from the remaining names.
ASSIGNMENT OF AN ADMINISTRATIVE LAW JUDGE BY THE DEPARTMENT OF
PERSONNEL TO ACT AS THE HEARING OFFICER.
(5)(a) Within five
THREE WORKING days of his
AFTER selection, the hearing officer SHALL SET THE DATE OF THE
PREHEARING CONFERENCE AND THE DATE OF THE HEARING, WHICH SHALL
COMMENCE WITHIN THE FOLLOWING THIRTY DAYS. THE HEARING OFFICER
shall give the teacher and the chief administrative officer at
least fourteen days' written notice
of the date
DATES FOR THE PREHEARING CONFERENCE AND for the hearing including
the time and the place therefor. but
in no event shall such hearing commence more than thirty days
after the selection of the hearing officer.
(b) ONE OF THE PURPOSES OF THE PREHEARING
CONFERENCE SHALL BE TO LIMIT, TO THE EXTENT POSSIBLE, THE AMOUNT
OF EVIDENCE TO BE PRESENTED AT THE HEARING.
(c) THE PARTIES AND THEIR COUNSEL SHALL
BE REQUIRED TO ATTEND THE PREHEARING CONFERENCE WITH THE HEARING
OFFICER.
(6) (a) Within ten days of
the AFTER selection of the hearing
officer, the teacher shall provide to the chief administrative
officer a list
COPY of all exhibits to be presented at the hearing and A LIST
OF all witnesses to be called, including the addresses and telephone
numbers of the witnesses. WITHIN SEVEN DAYS AFTER THE TEACHER
SUBMITS HIS OR HER EXHIBITS AND WITNESS LIST, THE CHIEF ADMINISTRATIVE
OFFICER AND THE TEACHER MAY SUPPLEMENT THEIR EXHIBITS AND WITNESS
LISTS. AFTER COMPLETION OF THE SEVENDAY PERIOD, additional
witnesses and exhibits may not be added at
a later date except upon a showing
of good cause.
(7) (a) Hearings held pursuant to
this section shall be open to the public unless either the teacher
or the chief administrative officer requests a private hearing
before the hearing officer, but no findings of fact or recommendations
shall be adopted by the hearing officer in any private hearing.
The procedures for the conduct of the hearing shall be informal,
and rules of evidence shall not be strictly applied except as
necessitated in the opinion of the hearing officer; EXCEPT THAT
THE HEARING OFFICER SHALL COMPLY WITH THE COLORADO RULES OF EVIDENCE
IN EXCLUDING HEARSAY TESTIMONY.
(d) An audiotaped record shall be made
of the hearing, and, if the teacher files an action for review
pursuant to the provisions of subsection (10) of this section,
the teacher and the school district shall share equally in the
cost of transcribing the record; EXCEPT THAT, IF A PARTY IS AWARDED
ATTORNEY FEES AND COSTS PURSUANT TO PARAGRAPH (e) OF SUBSECTION
(10) OF THIS SECTION, THAT PARTY SHALL BE REIMBURSED FOR THAT
PARTY'S SHARE OF THE TRANSCRIPT COSTS BY THE PARTY AGAINST WHOM
ATTORNEY FEES AND COSTS WERE AWARDED.
(e) Any hearing held pursuant to the provisions
of this section shall be completed within ten
SIX WORKING days of its
AFTER commencement, unless the parties
otherwise agree UNLESS EXTENDED BY
THE HEARING OFFICER ON A SHOWING OF GOOD CAUSE, and neither party
shall have more than five
THREE days to present its case in chief. NEITHER PARTY MAY PRESENT
MORE THAN TEN WITNESSES AT THE HEARING, EXCEPT UPON A SHOWING
OF GOOD CAUSE.
(8) The chief administrative officer shall
have the burden of proving that his
THE recommendation for the dismissal 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 ONLY one of the two following recommendations: The teacher
be dismissed or the teacher be retained. A RECOMMENDATION TO
RETAIN A TEACHER SHALL NOT INCLUDE ANY CONDITIONS ON RETENTION.
The findings of fact and the recommendation shall be adopted
ISSUED by the hearing officer in open
session not later than twenty 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 following actions: The teacher be dismissed; the
teacher be retained; or the teacher be placed on a oneyear
probation; but, if the board dismisses the teacher over the hearing
officer's recommendation of retention, the board shall make a
conclusion, giving its reasons therefor, which must be supported
by the record
HEARING OFFICER=S
FINDINGS OF FACT, and such finding
CONCLUSION AND REASONS 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 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.
(b) An action for review shall be commenced
by the service of a copy of the petition upon the board of the
school district and filing the same with the court of appeals
within twenty days after the written order of dismissal made by
the board. The petition shall state the grounds upon which the
review is sought. After the filing of the action for review in
the court of appeals, such action shall be conducted in the manner
prescribed by rule 3.1 of the Colorado appellate rules.
(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 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 was made over the hearing officer's
recommendation of retention, 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.
(d) In the action for review, if the court
of appeals finds any
A SUBSTANTIAL irregularity or error made during the hearing before
the hearing officer, the court shall
MAY remand the case for further hearing.
(e) UPON REQUEST OF THE TEACHER, IF THE
TEACHER IS ORDERED REINSTATED BY THE COURT OF APPEALS, OR UPON
REQUEST OF THE BOARD, IF THE BOARD'S DECISION TO DISMISS THE TEACHER
IS AFFIRMED BY THE COURT OF APPEALS, THE COURT OF APPEALS SHALL
DETERMINE WHETHER THE NONPREVAILING PARTY'S APPEAL OR DEFENSE
ON APPEAL LACKED SUBSTANTIAL JUSTIFICATION. IF THE COURT OF APPEALS
DETERMINES THAT THE NONPREVAILING PARTY'S APPEAL OR DEFENSE ON
APPEAL LACKED SUBSTANTIAL JUSTIFICATION, THE COURT OF APPEALS
SHALL DETERMINE THE AMOUNT OF AND ENTER A JUDGMENT AGAINST THE
NONPREVAILING PARTY FOR REASONABLE ATTORNEY FEES AND COSTS INCURRED
ON APPEAL TO THE COURT OF APPEALS. ANY JUDGMENT ENTERED PURSUANT
TO THIS PARAGRAPH (e) MAY BE SUBJECT TO STAY AS PROVIDED IN RULE
41.1 OF THE COLORADO APPELLATE RULES.
(e) (f) Further
appeal to the supreme court from a determination of the court
of appeals may be made only upon a writ of certiorari issued in
the discretion of the supreme court. UPON REQUEST OF THE TEACHER,
IF THE TEACHER IS ORDERED REINSTATED BY THE SUPREME COURT, OR
UPON MOTION OF THE BOARD, IF THE BOARD'S DECISION TO DISMISS IS
AFFIRMED BY THE SUPREME COURT, THE SUPREME COURT SHALL DETERMINE
WHETHER THE NONPREVAILING PARTY'S APPEAL OR DEFENSE ON APPEAL
TO THE SUPREME COURT LACKED SUBSTANTIAL JUSTIFICATION. IF THE
SUPREME COURT DETERMINES THAT THE NONPREVAILING PARTY'S APPEAL
OR DEFENSE ON APPEAL TO THE SUPREME COURT LACKED SUBSTANTIAL JUSTIFICATION,
THE COURT SHALL DETERMINE THE AMOUNT OF AND ENTER A JUDGMENT AGAINST
THE NONPREVAILING PARTY FOR REASONABLE ATTORNEY FEES AND COSTS
INCURRED ON APPEAL TO THE SUPREME COURT. ANY JUDGMENT ENTERED
PURSUANT TO THIS PARAGRAPH (f) MAY BE SUBJECT TO STAY AS PROVIDED
IN RULE 41.1 OF THE COLORADO APPELLATE RULES.
SECTION 2. Effective
date applicability. This act shall take
effect July 1, 1998, and shall apply to recommendations for dismissal
made on or after said date.
SECTION 3. 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.
____________________________ ____________________________
Charles E. Berry Tom Norton
SPEAKER OF THE HOUSE PRESIDENT OF
OF REPRESENTATIVES THE SENATE
____________________________ ____________________________
Judith M. Rodrigue Patricia K. Dicks
CHIEF CLERK OF THE HOUSE ASSISTANT SECRETARY OF
OF REPRESENTATIVES THE SENATE
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO