Dugan v. Bollman
This text of 502 P.2d 1131 (Dugan v. Bollman) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Edna DUGAN, Plaintiff-Appellant,
v.
Henry BOLLMAN et al., Defendants-Appellees.
Colorado Court of Appeals, Div. II.
F. E. Dickerson, John T. Dugan, Denver, for plaintiff-appellant.
Edward B. Towey, Morgan Smith, Denver, for defendants-appellees.
Selected for Official Publication.
*1132 PIERCE, Judge.
This dispute arose out of the termination of employment of Edna Dugan, a tenured teacher in School District No. 12, Adams County, Colorado. The school board, effective August 18, 1969, terminated Miss Dugan's employment in the school district. Pursuant to 1967 Perm.Supp., C.R.S.1963, XXX-XX-XX(11), she petitioned to the district court to reverse this determination. The district court upheld the dismissal. Miss Dugan now brings this appeal.
Miss Dugan contends, in part, that there was no compliance with statutory proceedings. 1967 Perm.Supp., C.R.S.1963, XXX-XX-XX. Reference hereafter will be only to the subsection number of that statute.
I.
Miss Dugan claims that the school board was precluded from terminating her employment since it initiated an action which was subsequently abandoned as not being in compliance with the statutes. Specifically, on April 10, 1969, the school board commenced dismissal proceedings, pursuant to the Teacher Tenure Act, as provided prior to the 1967 amendments thereto. This action was dismissed by agreement of the parties.
Her claim is essentially that the school board dismissed her on April 10, and, that, since this would have been without compliance to the proper procedures as provided in the 1967 amendments, it could not thereafter initiate new proceedings. We reject this contention.
The Colorado Supreme Court has previously held an error in proceedings which results in those proceedings being a nullity does not preclude or taint subsequent proceedings arising out of the same factual situation. Snider v. Kit Carson School District, 166 Colo. 180, 442 P.2d 429. The dismissal of the original proceedings was not res judicata to the later action by the board.
II.
Miss Dugan also contends that the school board did not comply with the statutory scheme for dismissing a tenured teacher. We disagree.
On May 19, 1969, the school board met in an executive session and, on the formal recommendation of its chief executive officer that Miss Dugan's employment be terminated, initiated new proceedings against her. At that meeting, formal charges were accepted for review in the manner prescribed by 123-18-17(2).
On May 22, 1969, Miss Dugan received a copy of the charges against her and a copy of the applicable statutes. See XXX-XX-XX(3). A panel was appointed, pursuant to XXX-XX-XX(5), to hear the charges. On June 6, 1969, hearings commenced and the unanimous findings of the panel, issued on August 6, 1969, recommended that she be discharged. See XXX-XX-XX(8) (a). As mentioned above, the board, after reviewing the panel's findings (XXX-XX-XX(10)), subsequently adopted these findings and terminated Miss Dugan's employment.
Miss Dugan argues that all statutory requirements were not met.
Specifically, she complains that the school board committed a procedural error when it accepted the charges against her for review in an executive session on May 19, 1969. She cites 1965 Perm.Supp., C.R. S.1963, 123-30-8(5), which states, in pertinent part,
"All regular and special meetings of the board shall be open to the public,. . . . At any regular or special meeting the board may proceed in executive session, at which only those persons invited by the board may be present, but no final policy decisions shall be made by the board while in executive session."
It is Miss Dugan's contention that, because the meeting on May 19, 1969, was not a public meeting, acceptance of the charges was erroneous. However, the mere acceptance of charges for review was not a "policy" decision. See Lockheed Aircraft *1133 Corp. v. Superior Court, 153 P.2d 966 (Cal.Ct.App.). Rather, it set in motion the procedure leading to the eventual policy decision on August 18, 1969, when, pursuant to the findings of the panel, the decision to terminate Miss Dugan's employment was actually made. The August 18th meeting was a public meeting, conducted fully under the requirements of the statute. We find no error in not having a public meeting when the charges were accepted.
Miss Dugan argues that her situation is the same as that set forth in Robb v. School District RE 50(J), 28 Colo.App. 453, 475 P.2d 30. That case is distinguishable. It concerned the interpretations of the provisions of C.R.S.1963, 123-18-5, regarding transfers. There, a conclusive policy decision was made by the board determining that the plaintiff was unsatisfactory in his position as a principal, and there was no indication that any vote was taken by the board, as the statute requires, to "deem" the plaintiff as unsatisfactory.
III.
Miss Dugan then contends that the school board's charges did not adequately set forth the nature of the evidence to be presented against her, and that her motion for a bill of particulars and to make more specific should have been granted. She was notified of the charges against her on May 22, 1969. They were as follows:
"(a) Ineffective and inadequate teaching of her students.
(b) Ineffective and inadequate maintenance of discipline.
(c) Continued use of inadequate and ineffective teaching aids and materials.
(d) Failure to grade students accurately.
(e) Failure to maintain a proper relationship with parents and to counsel the parents toward improved performance by their children.
(f) Failure to use new and improved teaching methods and materials.
(g) Failure to accept and adhere to recommendation by her superiors and counselors, aimed at improving her performance."
It is apparent from a review of the record that both Miss Dugan and her counsel were well aware of the meaning of these charges, and that an adequate defense was presented in her behalf through several witnesses who attempted to rebut the charges.
There is no indication that Miss Dugan was prejudiced by the absence of additional specifications. The fact situation here is closely analogous to that in Fahl v. School District No. 1, 116 Colo. 277, 180 P.2d 532, where the court stated:
"It is quite apparent that, the nature of the charges considered, the minute factual details apparently expected by Fahl could not well have been given without pleading evidence, and even so would have added nothing of service to him beyond the information of which he was already possessed."
Accordingly, we hold that the charges were adequate to put Miss Dugan on notice of the evidence to be presented against her.
IV.
Miss Dugan further claims that the school board did not properly review the findings of the panel in arriving at its decision to discharge her.
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502 P.2d 1131, 31 Colo. App. 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugan-v-bollman-coloctapp-1972.