Hanover School District No. 28 v. Bruce W. Barbour
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ADVANCE SHEET HEADNOTE
November 5, 2007
No. 06SC446, Hanover School District No. 28 v. Bruce W.
Barbour.– Education Law – Statutory Interpretation –
Probationary Teacher Termination – Timely Notice – Reemployment
– Mitigation – Injunctive Relief – Open Meetings Law
In this appeal, a school board seeks to reverse the court
of appeals’ finding that it failed to provide timely written
notice of termination to a probationary teacher, and as a
consequence, owed the teacher a year of reemployment and back
pay for a lost year of employment.
The Supreme Court affirms the court of appeals’ ruling that
section 22-63-203(3), C.R.S. (2007) mandates that a school board
provide timely written notice of termination by the June 1
deadline and that such notice must arise from a public meeting
of the school board.
The court holds that the Hanover School
Board failed to provide timely written notice to Barbour by the
deadline.
The Supreme Court further affirms the court of
appeals’ determination that the Supreme Court’s ruling in School
District RE-11J, Alamosa County v. Norwood requires that the
teacher receive back pay, without need to mitigate the damages,
for the school year or years the teacher lost before being
provided timely written notice of termination.
The Supreme Court reverses the court of appeals’ ruling
that the teacher should be reinstated for the school year
following the end of litigation.
Instead, the Supreme Court
holds that the teacher is deemed reemployed for the school year
following the school board’s failure to give the required
notice.
However, the teacher is not deemed reemployed for
subsequent school years if the school board provides timely
written notice regarding those future years of employment.
Further, if the school year for which the teacher is deemed
reemployed has passed, back pay and benefits are the appropriate
remedy.
2
SUPREME COURT, STATE OF COLORADO
Two East 14th Avenue
Denver, Colorado 80203
Case No. 06SC446
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 05CA1573
Petitioner:
HANOVER SCHOOL DISTRICT NO. 28, in the County of El Paso and State
of Colorado,
v.
Respondent:
BRUCE W. BARBOUR.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART
EN BANC
November 5, 2007
Opinion Modified, and as Modified, Petition for Rehearing DENIED.
EN BANC
December 3, 2007
Semple, Miller, Mooney, and Farrington, P.C.
Patrick B. Mooney
Stephen G. Everall
Denver, Colorado
Attorneys for Petitioner
Colorado Education Association
Sharyn E. Dreyer
Denver, Colorado
Attorneys for Respondent
JUSTICE MARTINEZ delivered the Opinion of the Court.
JUSTICE EID concurs in part and dissents in part, and JUSTICE
RICE joins in the concurrence and dissent.
2
In this appeal, we review the court of appeals’ opinion in
Barbour v. Hanover School District No. 28, 148 P.3d 268 (Colo.
App. 2006).
There, the court of appeals affirmed a judgment in
favor of plaintiff, Bruce W. Barbour (“Barbour”), awarding
reemployment, back pay, and other damages for the failure on the
part of Hanover School Distict Board of Education (“Board”) to
comply with the requirements of the Teacher Employment,
Compensation, and Dismissal Act (“TECDA”).
§ 22-63-203(3),
C.R.S. (2007).
We affirm the court of appeals’ holding that the Board
failed to provide Barbour proper notice that his 2003-2004
employment contract would not be renewed.
We also affirm the
court’s holding that Barbour was not obligated to mitigate
damages.
However, we reverse the court of appeals’ holding that
Barbour be reemployed for the 2006-2007 school year or any
subsequent year.
Instead, we conclude that Barbour is deemed
reemployed for the 2004-2005 school year and therefore the Board
must compensate him for back pay and benefits lost during that
school year.
I. Facts and Procedural History
Barbour was a probationary teacher employed by the Board on
a year-to-year basis.
His contract for the 2003-2004 school
year was to expire on June 1, 2004.
On April 7, 2004, the Board
held a special meeting to discuss various items, including the
3
renewal of probationary teachers.
The first few moments of the
meeting were held in public, then the Board moved into executive
session.
No minutes of the executive session were taken and the
topics of discussion for the executive session were not publicly
announced prior to the meeting.
While in executive session, the
Board discussed whether to renew Barbour’s 2003-2004 employment
contract for the 2004-2005 school year.
The next day, the Board superintendent sent Barbour a
memorandum entitled “Letter of Intent,” which stated in its
entirety, “I regretfully must inform you that the Hanover Board
of Education does not plan to offer you a teaching contract for
the 2004-2005 school year.”
Barbour requested a meeting with the Board superintendent
to discuss the reasons for the Board’s proposed plan not to
renew his contract.
Barbour was told that the Board planned to
dismiss him but that the final vote would not be held until the
Board met in May.
On May 18, 2004, the Board held a special public meeting to
discuss various agenda items including teacher retention.
At
this meeting, the Board publicly adopted a motion to renew all
probationary teachers contracts with the exception of Barbour’s
contract.
Eight days later, in another special meeting open to
the public, the Board unanimously approved the reissue of all
4
revised teacher contracts for the 2004-2005 school year, with
the exception of Barbour’s contract, which was not renewed.
The Board did not notify Barbour after either the May 18 or
May 26 meetings that action had been taken regarding the renewal
of his employment contract.
Barbour did not request
clarification as to his status but instead retained counsel.
Barbour’s attorney then contacted the Board on or about June 14,
2004, demanding that Barbour be reemployed for the 2004-2005
school year.
The Board declined to reemploy Barbour.
Subsequently, Barbour secured employment in the Falcon School
District.
While paying more than his position at Hanover
Junior-Senior High School, the change of employment meant an
increase of seventy-seven miles to Barbour’s daily commute and
his loss of three federal and private grants.
On August 23, 2004, Barbour filed suit alleging that the
Board could not terminate him because it failed to properly
notify Barbour that his contract was not being renewed, as
required by the TECDA. 1
One month later, on September 21, 2004,
the Board met and voted in public session to ratify its previous
decision not to renew Barbour’s 2003-2004 contract, and also not
to renew Barbour’s 2004-2005 contract, if the court found that
such a contract existed.
The next day, the superintendent sent
1
Barbour requested both injunctive and declaratory relief. He
also claimed breach of contract and sought damages arising from
the statutory violation.
5
a letter notifying Barbour of the ratification of its earlier
decision not to renew his contract and its decision not to renew
his 2004-2005 contract for the 2005-2006 school year.
The
September 22, 2004 letter states in part:
The Hanover School District Board of Education has
adopted a resolution ratifying its previous nonrenewal
of your employment contract and nonrenewing any
contract or contract right you may now have regarding
employment with the school district.
This letter was Barbour’s first formal notice that any contract
he had with the Hanover School District was not renewed.
When,
in the spring of 2005, Barbour’s attorney questioned whether a
contract between the Board and Barbour still existed, the Board
instructed the superintendent to send Barbour another letter,
confirming that his 2004-2005 contract was not renewed.
On May
25, 2005, the superintendent mailed this second letter to
Barbour.
Barbour confirmed that he received this letter prior
to the June 1 automatic contract renewal deadline.
Barbour moved for summary judgment regarding the lack of
notice, claiming that the Board’s failure to notify him after
the May 26, 2004 Board meeting, where the Board voted not to
renew his contract, violated section 22-63-203(3).
The trial
court granted Barbour’s motion for summary judgment on the
question of whether the Board gave proper notice that Barbour’s
contract would not be renewed.
The trial court found that the
Board’s discussion regarding whether to renew Barbour’s 2003-
6
2004 employment contract for the 2004-2005 school year was not a
formal decision and “could not have caused” the letter of intent
to be sent.
Because the superintendent’s letter of intent came
as a direct result of the April 7 executive session and not a
public meeting, the court concluded that Barbour never received
notice that his contract was not renewed.
A subsequent bench trial was scheduled to determine
remedies.
In preparation for this trial, the parties stipulated
to several facts.
First, they stipulated that the Board voted
not to renew Barbour’s employment contract on May 26, 2004, but
no written notice of his renewal status was sent to Barbour
prior to the June 1 deadline, as required under section 22-63203(3).
The parties also stipulated that the Board met in open
session and adopted a resolution in September 2004 ratifying its
earlier decision not to renew Barbour’s 2003-2004 contract and
not renewing his 2004-2005 contract if the court found that such
a contract existed.
The parties further stipulated that written
notice of the Board’s adoption of this resolution was provided
to Barbour in September 2004.
Finally, the parties stipulated
that an additional letter, notifying Barbour that he was
terminated for the 2005-2006 school year, was sent to Barbour in
May 2005.
After the bench trial, the court awarded Barbour back pay
in the amount he would have earned while working for the Hanover
7
School District for the 2004-2005 school year, reimbursement and
indemnification for two federal grants and one private grant
Barbour received while employed by Hanover, commuting costs to
and from Barbour’s new place of employment, and reinstatement
for the 2005-2006 school year as a probationary teacher.
The
Board appealed.
The court of appeals affirmed the trial court’s ruling,
holding that the superintendent’s letter of April 8, 2004, was
legally insufficient to provide proper notice that Barbour’s
contract would not be renewed because it did not result from a
properly held public meeting.
In addition, the court of appeals
determined that the Board failed to provide Barbour written
notice of its decision not to renew Barbour’s contract at the
May 18 and May 26 meetings.
Thus, the Board violated section
22-63-203(3), which mandates timely, written notification that
the contract is not renewed, when it failed to provide Barbour
written notice that his 2003-2004 employment contract would not
be renewed for the 2004-2005 school year.
As for relief under
the statute, the court of appeals affirmed the trial court’s
awards including full back pay and benefits for the 2004-2005
school year.
Although the trial court ordered reemployment for
the 2005-2006 school year because the 2004-2005 school year had
already begun and litigation was ongoing, the court of appeals
went further, returning the case to the trial court with an
8
order that Barbour be rehired for the 2006-2007 school year
because the appeal extended into the 2005-2006 school year.
The Board petitioned for certiorari on three issues. 2
The
Board did not appeal the court of appeals’ rulings affirming
reimbursement of the lost federal grants and commuting costs.
We granted the petition to review the decision of court of
appeals.
II. Analysis
First, the Board argues that section 22-63-203(3) does not
require a second written notice after the teacher is given
written notice of the Board’s intention not to renew his
teaching contract.
Second, the Board claims that Barbour should
not be allowed to receive full back pay without offset of his
earnings from alternative employment.
Finally, the Board
challenges the court of appeals’ finding that the language of
section 22-63-203(3) requires that the Board rehire Barbour.
2
We granted certiorari for the following issues:
1) Whether a school district is required by section
22-63-203(3), C.R.S. (2006), to give a nonrenewed probationary
teacher a second written notice after the teacher has been
given a written notice of intention to nonrenew and has had
actual notice of the nonrenewal.
2) Whether a probationary teacher who has been improperly
nonrenewed is entitled to recover full back pay without offset
of earnings from alternative employment.
3) Whether a court may order the reemployment of a probationary
teacher after the term of his contract has ended and he has
been awarded a damages remedy for the school district’s failure
to employ him for the contract term.
9
We first explain that the Board’s determination that
Barbour’s contract not be renewed while in executive session
violated the Open Meetings Law and is thereby not binding.
Next, we consider whether the Board has complied with the
statutory requirement of written notice of a decision by the
Board not to renew Barbour’s contract.
Finally, we determine
the remedies available to Barbour in the absence of adequate
notice.
A. Open Meetings Requirement
The Open Meetings Law was conceived to “afford the public
access to a broad range of meetings at which public business is
considered.”
Benson v. McCormick, 195 Colo. 381, 383, 578 P.2d
651, 652 (1978).
We have read these provisions to give
citizens “a greater opportunity to become fully informed on
issues of public importance so that meaningful participation in
the decision-making process may be achieved.”
Cole v. People,
673 P.2d 345, 347 (Colo. 1983).
Open meetings are those meetings that concern matters
related to the policy-making function of that body.
Colo. Civil
Rights Comm’n ex rel. Ramos v. Regents of the Univ. of Colo.,
759 P.2d 726, 733 (Colo. 1988).
The Open Meetings Law requires
that any meeting of a public body where formal action is taken
must be open to the public.
§ 24-6-402(2)(b), C.R.S. (2007).
Specifically, section 24-6-402(2)(b) states that:
10
All meetings of a quorum or three or more members of
any local public body, whichever is fewer, at which
any public business is discussed or at which any
formal action may be taken are declared to be public
meetings open to the public at all times.
§ 24-6-402(2)(b).
Upon a two-thirds vote of the members, however, the local
public body may meet in a private, executive session.
402(3).
§ 24-6-
While in executive session, the members may discuss
policies, but they are limited in their policy making authority
and may not adopt positions or make formal decisions.
Id.
While section 24-6-402(4) provides a list of topics that may be
considered at an executive session, see section 24-6-402(4)(a)(h), statutes governing specific local public bodies can limit
these topics.
For instance, the applicable statute identifying
the powers of school boards, section 22-32-108(5), C.R.S.
(2007), states that no final policy decisions may be agreed to
in executive session:
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
. . . but no final policy decisions shall be made by
the board while in executive sessions.
§ 22-32-108(5).
We have previously determined that important policy decisions
cannot be made informally.
Gavend v. City of Thornton, 165
Colo. 186, 188, 437 P.2d 780, 782 (1968).
In Gavend, we held
that an informal vote to approve an annexation, made in
11
executive session, was not binding because the formal decisions
of a public entity cannot be made in executive session.
780.
Id. at
Similarly, the formal decision not to renew a teacher’s
contract cannot be made in executive session.
Here, the Board met on April 7, 2004, first in open session
and then, for a much longer time, in executive session.
The
Board concedes that the question of whether to renew Barbour’s
contract was only discussed in the executive session of the
April 7 meeting.
Following that meeting, the Board
superintendent, acting at the behest of the Board, wrote Barbour
a letter entitled “Letter of Intent,” which stated in its
entirety, “I must regretfully inform you that the Hanover Board
of Education does not plan to offer you a teaching contract for
the 2004-2005 school year.”
The Board does not contend that its actions at the April 7
executive session amount to a policy decision or formal action.
The Board agrees that the actual decision not to renew Barbour’s
contract was not made until the May 18 and May 26 meetings.
The
Board claims that the letter it asked the superintendent to send
Barbour was notice of the Board’s intent to act at a later time
to terminate his contract.
Nevertheless, the Board argues that
the superintendent’s letter of April 8, 2004, was notice to
Barbour that his contract would not be renewed and that “a
second notice” was not required by section 22-63-203(3).
12
We agree that any decision not to renew Barbour’s contract
made by the Board in executive session could have no binding
effect.
Section 22-32-108(5) prohibits formal action or policy
making during executive session.
Because the decision not to
renew a teacher is a final policy decision that can only be made
at a public meeting, any Board actions during the April 7
executive session were inconsequential.
Moreover, any and all
communications with Barbour arising from that meeting could not
have the effect of notifying him of his renewal status.
We reject the Board’s contention that despite the lack of
effect of any action taken by the Board during the executive
session, the superintendent’s letter of April 8, 2004 was notice
that Barbour’s contract would not be renewed, satisfying the
notice requirement of section 22-63-203(3).
B. Notice Required by Section 22-63-203(3)
Although school boards have broad authority to terminate
probationary teachers under section 22-63-203(3) when the
decision to terminate a probationary teacher is made at an open
meeting, a school board must also provide timely, written notice
of termination to the teacher.
§ 22-63-203(3).
Failure to
provide timely written notice results in the automatic
reemployment of the probationary teacher.
reads in part:
13
Section 22-63-203(3)
A probationary teacher employed by a school district
on a full-time 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 . . . 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.
§ 22-63-203(3) (emphasis added).
The statute specifies that a
writing is timely if a probationary teacher is provided notice
that the contract will not be renewed prior to June 1 of the
succeeding academic year.
In the absence of such notice, the
teacher is automatically reemployed by operation of law for the
following academic year and is considered employed for the
succeeding school year regardless of whether the teacher
actually performs work for the school district.
This statute became law in 1990, replacing the thenexisting probationary teacher renewal statute, which was
identical in substance but enforced a notification date of April
15.
While this court has not previously interpreted section 22-
63-203(3), it has interpreted the pre-1990 statute.
In that
case, School District RE-11J, Alamosa County v. Norwood, 644
P.2d 13, 18 (Colo. 1982), we found that the statute required
that timely, written notice of termination be given to the
teacher on or before April 15.
Norwood concerned the attempted termination of a
probationary teacher by verbal advisement.
14
Id. at 15.
The
Alamosa County School Board argued that even absent written
notice, the verbal notification coupled with an additional
written notice coming several days after the April 15 deadline
complied with the statute.
Id.
We were unpersuaded.
We held
that the plain language of the statute required timely, written
notice.
Id. at 18.
In the case before us, the Board gave a written advisement
after its April 7 executive session, some six weeks before the
renewal decisions were made.
No additional written notice was
provided to Barbour after the May 26 meeting where Barbour’s
contract was terminated.
The Board contends that the April 8
letter, issued before the renewal decision, fulfilled its
obligation to provide proper notice.
The letter, entitled
“Letter of Intent,” states that “the Hanover Board of Education
does not plan to offer you a teaching contract for the 2004-2005
school year.”
The Board argues that this letter expresses the
Board’s intent to terminate Barbour’s contract at some future
time and is thus legally sufficient to meet the statutory
requirement that “the Board causes written notice to the
contrary to be given . . . on or before June 1.”
203(3).
§ 22-63-
We do not agree.
A school board must provide a probationary teacher with a
timely writing stating in clear terms that the board has
terminated the contract.
This notice must inform the teacher
15
that the Board has made a definitive decision not to renew the
teacher for the upcoming school year.
Here, the Board, through
a letter by its superintendent, notified Barbour only that the
Board was, at that point, not planning to renew his contract.
Notice of a “plan” to vote at a later time to terminate a
contract does not meet the statute’s mandate for a timely,
written notice of termination.
Instead, it is merely
notification that the Board may soon decide to undertake the
legally sufficient action to formally end the contract.
Until
that formal action is taken and unequivocal notice of
termination is made, the statute requires that the probationary
teacher be deemed reemployed.
Thus, when the Board failed to
provide Barbour written notice that his contract was not
renewed, he was reemployed for the 2004-2005 school year.
The Board further argues that even if the April 8 letter
was insufficient legal notice of termination, the May 18 and May
26 public votes not to renew Barbour’s contract, coupled with
Barbour’s apparent knowledge of his impending termination,
complied with the notice requirement.
We are unpersuaded.
The essential element of section 22-62-203(3) is timely,
written notice of termination following an official vote by the
Board.
No such notice was provided to Barbour.
Despite this,
the Board argues that the superintendent’s April 8 letter to
Barbour, combined with several other factors, rises to
16
compliance with the statute.
Among these additional factors are
the Board’s claims that Barbour had informal notice that his
contract was not renewed in the form of a meeting with the
superintendent in the weeks following receipt of the April 8
letter and that Barbour had actual notice of termination through
his presence at the May 18 and May 26 school board meetings when
the Board terminated his contract – claims that Barbour
disputes.
Further, the Board argues that these factors serve to
ratify the Board’s letter of April 8.
We disagree and find the
Board’s claim of compliance without merit.
There can be no compliance with the essential elements of
section 22-63-203(3) without timely, written notice of a Board’s
final decision.
Such timely, written notice was not provided to
Barbour after the May 26 Board vote.
In its absence, the Board
cannot now claim that its unofficial writing of six weeks
earlier suffices or that various other factors combine to supply
the missing timely written notice.
School boards have broad authority to terminate
probationary teachers.
They must do so within the provisions of
section 22-63-203(3), however, including timely, written notice
of termination.
Here, the Board failed to provide a timely
writing and thus cannot claim that its actions rise to
compliance or that other factors served to ratify its earlier
insufficient notice.
17
C. Remedies for Violation of Section 22-63-203(3)
Having found that section 22-63-203(3) requires timely,
written notice that Barbour’s contract was not renewed following
the final vote by the Board, we turn to the remedies due Barbour
for the Board’s violation of the statute.
The Board asks that
we overturn the court of appeals’ holdings that Barbour receive
full back pay without offset of earnings from his alternative
employment and that he receive reinstatement at Hanover JuniorHigh School for the 2006-2007 school year.
The remedy for violating section 22-63-203(3) is the
teacher’s reemployment for the succeeding school year.
Because
it was too late to reinstate Barbour for the 2004-2005 school
year, the trial court interpreted this statute to require that
Barbour be reemployed for the school year following the court’s
decision, the 2005-2006 school year.
This order was stayed
while the court of appeals considered the case.
Upon finding
for Barbour, the court of appeals also interpreted the statute
to require that Barbour be reemployed for the school year
following litigation and remanded the case to the trial court to
order Barbour’s one-year reemployment occur during the 2006-2007
school year.
We must now decide if Barbour is entitled a year of
employment after all appeals are completed.
We make this
decision after considering the Board’s September 2004 and May
18
2005 letters providing Barbour with written notice that his
contract would not be renewed for the year following the 20042005 school year for which he might be deemed reemployed.
Additionally, we must decide whether the common law
principle of mitigation applies to the statutory remedies
provided in section 22-63-203(3) to determine whether Barbour’s
employment with the Falcon School District mitigates his loss,
thereby limiting the Board’s liability.
1. Reemployment for an Additional School Year
Section 22-63-203(3) states that “a probationary teacher
employed by a school district on a full-time basis shall be
deemed to be reemployed for the succeeding academic year” unless
the teacher is given proper notice that the contract is not
renewed.
§ 22-63-203(3).
The trial court interpreted this
language as requiring Barbour’s reinstatement for the 2004-2005
school year.
Because litigation was ongoing when the 2004-2005
school year began, however, reinstatement for that school year
was impossible.
So, the trial court awarded employment for the
2005-2006 school year.
This remedy was again delayed when the
Board appealed to the court of appeals.
In affirming the trial
court, the court of appeals went one step further and instructed
the Board to employ Barbour for the 2006-2007 year.
Now, the
Board asks that we overrule the court of appeals and find that
reemployment should not be ordered when damages and back pay
19
have been awarded and the Board has given proper notice of
termination for the 2005-2006 school year.
We agree with the
Board and find that the court of appeals overstepped its
authority in ordering the Board to rehire Barbour for the 20062007 school year.
While we have found that Barbour was deemed
reemployed for the 2004-2005 school year, the Board’s letters of
September 2004 and May 2005, notifying Barbour that he was not
renewed for 2005-2006 even if the court found in his favor
regarding the 2004-2005 school year, foreclosed the renewal of
his existing employment contract for 2005-2006 or beyond.
Thereby, the employment mandated by the trial court for the
2005-2006 school year exceeded the authority to provide relief
for the 2004-2005 school year.
Further, the court of appeals
exceeded its authority when it ordered Barbour be employed for
the 2006-2007 school year.
Instead, we find that the statutory
remedy available to Barbour is that he be deemed reemployed for
the 2004-2005 school year and that he receive back pay and
benefits for the 2004-2005 school year.
The statute implicated by the Board’s failure to give
notice, section 22-63-203(3), states that in the absence of
proper notice “a probationary teacher . . . shall be deemed to
be reemployed for the succeeding academic year.”
203(3).
§ 22-63-
The question is what form this “deemed” employment
takes and the meaning of the phrase “succeeding academic year.”
20
We addressed a similar situation in Norwood, 644 P.2d at 18.
There, as here, the school board failed to give proper notice
that a teacher’s contract would not be renewed.
awarded both back pay and reemployment.
The trial court
We affirmed.
In his
answer brief, Barbour argues that Norwood is controlling and
requires that this court affirm the trial court’s award of both
back pay and reemployment.
In Norwood, we did not specifically address whether
reemployment is required, even years after the violation, when
reemployment may no longer be available because the school year
at issue has been completed.
Moreover, there is no indication
in Norwood that the Alamosa Board raised the question of whether
the reemployment remedy is available beyond the school year at
issue by sending Norwood proper notice that the teacher’s
contract for the following year would not be renewed.
Thus, our
opinion in Norwood affirmed the court of appeals decision that
Norwood was entitled to have been reemployed “for the next
academic year,” after seven years of litigation, without further
clarification.
Norwood at 18.
Here, despite the failure to give notice regarding the
2004-2005 school year, the Board did provide Barbour proper
timely notice that his contract would not be renewed for 20052006 or future school years.
Courts do not have the authority
to require reinstatement beyond the school year at issue where,
21
as here, the Board has foreclosed that remedy.
Reinstatement is
only available where the trial court enjoins the Board’s
unauthorized termination in time for the school year in question
or the Board does not undertake steps to terminate the teacher’s
contract for the succeeding and all future school years.
While
reinstatement may not always be possible, the statute makes
clear that a wrongfully terminated teacher is nonetheless deemed
reemployed.
Here, the trial court did not enjoin the Board from
terminating Barbour’s contract prior to the 2004-2005 school
year.
He was nonetheless “deemed reemployed” for that school
year.
Further, because the Board’s September 2004 and May 2005
letters properly notified Barbour that any and all contractual
relationships between him and the Board were terminated, Barbour
could not be reemployed beyond the 2004-2005 school year.
The
2004-2005 school year having passed, reinstatement was not
possible.
Consequently, the trial court erred when it awarded
Barbour employment for the 2005-2006 school year despite the
Board’s timely, written notice that, regardless of the
litigation outcome, Barbour would not be retained beyond the
2004-2005 contract year.
We also find that the court of appeals
erred when it exceeded its authority by extending the trial
court’s order of reinstatement to the 2006-2007 school year.
22
Thus, we find that Barbour was deemed reemployed for the
2004-2005 school year but that relief in the form of an
additional year of employment is not available at this late
date.
Although the 2004-2005 school year has passed, Barbour is
nonetheless deemed reemployed and the Board is obligated to
compensate him in the amount he would have received had he
actually worked the 2004-2005 school year for the Hanover School
District.
2. Mitigation
Finally, we must decide whether full back pay for a teacher
who is deemed reemployed after successfully proving that the
school board failed to provide proper notice should be reduced
by income earned in alternative employment.
The Board cites
authority from this and other jurisdictions in support of the
proposition that the damages owed to Barbour by Hanover School
District should be offset by the compensation he received while
employed by the Falcon School District.
See Milliken-Dees v.
Salem City Sch. Dist. Bd. of Ed., 855 N.E.2d 932 (Ohio Ct. App.
2006); Western Grove Sch. Dist. v. Strain, 707 S.W.2d 306 (Ark.
1986); Dep’t of Health v. Donahue, 690 P.2d 243 (Colo. 1984).
In particular, the Board looks to the general, long-held
proposition that in contract disputes between employers and
employees, where employees are wrongfully terminated, they have
an obligation to mitigate damages.
23
See Fair v. Red Lion Inn,
943 P.2d 431 (Colo. 1997); Corfman v. McDevitt, 111 Colo. 437,
142 P.2d 383 (1943); Saxonia M. and R. Co. v. Cook, 7 Colo. 569,
4 P. 1111 (1884).
However, the Board’s summary of the general principle does
not address the statutory remedy provided here and contradicts
our only case on point.
Norwood, 644 P.2d at 17-18.
In
Norwood, we held mitigation is unnecessary in violations of
section 22-63-203(3), the statute that governs probationary
teacher employment situations.
Id.
While that opinion does not
elaborate on the underlying rationale, it specifically concludes
that the statutory requirement of an additional year of
employment prevails over the common law preference for
mitigation.
Id.
The conclusion reached in Norwood that
mitigation is inapplicable to violations of the teacher’s
automatic reemployment statute directly contradicts the result
reached in an earlier decision of the court of appeals in Robb
v. School District No. RE 50(J), 28 Colo. App. 453, 455, 475
P.2d 30, 31 (1970), which contained no explanation of this
result.
Norwood is controlling, and we decline to overrule it.
In Norwood, the Alamosa County School Board failed to
provide timely, written notice that the teacher’s contract would
not be renewed.
Norwood, 475 p.2d at 31.
We held that the
school board must compensate a wrongfully terminated teacher
with full back pay without mitigation for a lack of proper
24
notice.
We found mitigation was not necessary because the
common law obligation to mitigate was superseded by the
statute’s language requiring automatic reemployment.
In the
absence of automatic reemployment, we found that the Board was
obligated to pay lost wages, regardless of the teacher’s success
in finding alternative employment.
Id.
Even if we, like the court of appeals, were inclined to
interpret this statute differently today, the fact that the
General Assembly has not changed the statute to require
mitigation following Norwood dissuades us from this approach.
For over forty years, some variation of the probationary teacher
renewal statute has been state law.
During that time, it has
never included a mitigation provision for a wrongfully
terminated teacher.
That is not to say that the General
Assembly has lacked the opportunity to include such a provision.
Since the statute’s adoption in 1963, the General Assembly has
amended the specific provision in question over a dozen times,
including completely repealing and reenacting the statute in
1990.
Three of the aforementioned amendments came in the years
immediately following our decision in Norwood, and none of those
amendments addressed mitigation.
Because the General Assembly
could easily have overruled Norwood on this issue by adding a
mitigation requirement in the twenty-five years since we
interpreted this statute and has elected not to do so, we
25
believe it would usurp legislative power for us to change our
interpretation to require mitigation simply because we might see
the statute differently if we were writing on a clean slate
today.
Instead, while the statute does not require mitigation, it
does provide that the teacher is deemed reemployed even when the
teacher’s status is determined by litigation that extends past
the start of the school year.
Thus, when the school year has
already started, the statute imposes the legal fiction that the
teacher is “deemed reemployed” even though he does not actually
work that year.
As an employee of the school district, the
teacher deemed reemployed is entitled to compensation for the
school year for which he did not receive timely written notice.
That the teacher successfully finds alternative work is
immaterial to the fact that the teacher is deemed employed by
the school district and entitled to compensation.
Beyond the statute and our interpretation of it in Norwood,
we find persuasive policy reasons for not requiring mitigation
by a probationary teacher terminated under section 22-63-203(3).
If, as here, a school board provided inadequate notice of
termination beyond the disputed year and the teacher found
alternative employment, the school board could wrongfullyterminate a teacher without repercussion.
The statute protects
the teacher from a board that fails to give timely notification
26
of termination.
It is inconsistent with the purpose of section
22-63-203(3) that a teacher be deemed employed but neither
allowed to return to work nor appropriately compensated for the
time employed.
Thus, we find that because the statute deems wrongfully
terminated teachers as reemployed until such time as they are
provided timely notice of termination, the failure by the Board
to give Barbour timely notice of termination meant that he was
deemed reemployed for the 2004-2005 school year.
As a duly
employed teacher of the Hanover School District, he was entitled
to compensation without working for the school year for which he
did not receive timely written notice because the school
district did not allow him to return to work as required by the
section 22-63-203(3).
Further, because he was “deemed employed”
by the district, he had no obligation to mitigate the
compensation owed to him under section 22-63-203(3).
We
therefore affirm the court of appeals’ holding that Barbour is
due one year’s salary and benefits for the Board’s failure to
renew his contract for the 2004-2005 school year.
III. Conclusion
We affirm the court of appeals’ holding that the Hanover
School Board failed to give Barbour timely written notice that
his contract would not be renewed.
However, we reverse the
court of appeals’ holding that Barbour must be employed for one
27
year after completion of this appeal because the Board provided
timely notice of termination for the 2005-2006 school year and
instead order that Barbour be paid the appropriate back pay for
the loss of the 2004-2005 school year without offsetting those
wages by the salary he collected at another school.
28
JUSTICE EID concurs in part and dissents in part, and JUSTICE
RICE joins in the concurrence and dissent.
29
JUSTICE EID, concurring in part and dissenting in part.
The majority holds that when a school district fails to
properly notify a probationary teacher that his or her teaching
contract will not be renewed for the following year as required
by the Teacher Employment, Compensation and Dismissal Act
(“TECDA”), sections 22-63-101 to -403, C.R.S. (2007), the
probationary teacher is entitled to compensation in the form of
full back pay and benefits without any deduction for income
earned in mitigation.
The TECDA provides a specific remedy for
such insufficient notice -- namely, that a probationary teacher
is “deemed to be reemployed for the succeeding academic year.”
We have long held that this remedy renews the probationary
teacher’s contract for the succeeding academic year by operation
of law.
In my view, that is all that the statute does.
When
that renewed contract is subsequently breached by the district,
as occurred in this case, the probationary teacher is entitled
to ordinary contract remedies.
These include specific
performance in the form of reinstatement (which the majority
correctly concludes is not available in this case) and contract
damages.
Because mitigation is a longstanding principle of
contract damages -- a principle that the majority fails to
employ in this case -- I respectfully dissent from Part II.C.2
of the opinion.
1
I.
Section 22-63-203(3), C.R.S. (2007), states that if a
school district does not follow the proper procedures for
notifying a probationary teacher that his or her employment
contract will not be renewed for the following school year, the
probationary teacher is “deemed to be reemployed for the
succeeding academic year.”
As we have long held, this provision
creates a new one-year employment contract by operation of law.
Sch. Dist. RE-11J, Alamosa County v. Norwood, 644 P.2d 13, 14
(Colo. 1982) (affirming district court’s conclusion that where
probationary teacher did not receive timely notice, her
“contract for employment was automatically renewed for the
[following] school year”); see also Julesburg Sch. Dist. No. RE1 v. Ebke, 193 Colo. 40, 42, 562 P.2d 419, 421 (1977) (The
statute “creates a contract by law between the school board and
its teachers.”); Marzec v. Fremont County Sch. Dist. No. 2, 142
Colo. 83, 86, 349 P.2d 699, 701 (1960) (The statute “makes a
contract for the parties by operation of the law, where
otherwise none would exist.”) (citation omitted).
Indeed, in
his complaint, Barbour acknowledged his rights under the TECDA
as contractual, alleging as a claim for relief a breach of
contract created by law under the statute based on the Board’s
2
insufficient notice and its refusal to rehire him for the 20042005 school year.
Today, we affirm the court of appeals’ ruling that Barbour
received insufficient notice in this case, maj. op. at 11-19;
the question then becomes one of remedy.
Id. at 19.
As noted
above, the statute provides that the remedy for insufficient
notice of non-renewal is the renewal of the probationary
teacher’s contract by operation of law for a new one-year
period.
At that point, the probationary teacher has a new one-
year contract -- but that is all he or she has.
remedy is at its end.
The statutory
If the school district fails to honor
that contract, as occurred in this case, the district has
breached the contract and ordinary contract remedies apply.
These include specific performance (that is, reinstatement to
the probationary teacher’s previous position) or contract
damages in the form of back pay and benefits.
I agree with the majority that reinstatement is not an
option in this case.
Id. at 23.
As the majority points out,
the parties were engaged in litigation during the 2004-2005
year, thus ruling out reinstatement during that year, and the
Board properly complied with the notice requirements to inform
Barbour that he would not be reemployed during the succeeding
academic years.
Id. at 20-24.
Because reinstatement is not an
option, the majority correctly concludes that damages (in the
3
form of back pay and benefits) are the only remaining remedy in
this case.
Id. at 24.
The majority’s mistake, in my view, is to omit an important
principle of common law contract damages from that remedy -that is, mitigation.
Colorado law is clear that breach of
employment contract damages are to be offset by earnings from
alternative employment.
See, e.g., Fair v. Red Lion Inn, 943
P.2d 431, 439 (Colo. 1997) (holding that injured employee has
duty to mitigate damages flowing from breach of implied
employment contract by accepting other employment); Dep’t of
Health v. Donahue, 690 P.2d 243, 250 (Colo. 1984) (awarding back
pay with offset for alternative earnings where probationary
employee was discharged without following proper procedures
under state personnel rule).
Here, the majority awards a
contract damages remedy that mistakenly ignores a longstanding
component of the common law.
Robb v. School District No. RE 50(J) addresses a situation
virtually identical to Barbour’s.
In that case, the plaintiff
teacher brought an action against the school district for breach
of an employment contract based on the district’s alleged
failure to properly notify him under the TECDA that his teaching
contract was terminated.
31 (1970).
28 Colo. App. 453, 455, 475 P.2d 30,
The school district had hired another teacher to
fill the position, so reinstatement was not possible.
4
As a
result, damages in the form of lost earnings were awarded, but
the plaintiff’s earnings from his alternative employment were
applied as an offset.
Id. at 461, 475 P.2d at 33.
Likewise, as
the majority acknowledges, Barbour cannot be reinstated because
any right to reinstatement was limited to the 2004-2005 school
year.
Thus, he is entitled to his lost earnings from that year,
but as in Robb, those earnings are subject to offset by his
substitute income.
II.
The majority rejects the mitigation principle for three
reasons, none of which is persuasive.
First, it takes the position that the statute itself
requires full back pay and benefits without mitigation when
there has been insufficient notice of nonrenewal.
28.
Maj. op. at
The statute, however, nowhere states that back pay without
mitigation is required as a remedy for insufficient notice.
Indeed, the only remedy specified by the statute for
insufficient notice is the renewal of the teacher’s contract by
operation of law -- that is, the probationary teacher “shall be
deemed to be reemployed for the succeeding academic year.”
The
statute simply does not address what happens once the
probationary teacher has been awarded a contract renewal by
operation of law but the district refuses to honor it.
As noted
above, the remedy for such a breach is supplied by the common
5
law in the form of specific performance (in the form of
reinstatement) or contract damages, including mitigation.
I thus agree with the majority that the TECDA does not
mention mitigation, maj. op. at 26, but to me that fact is
irrelevant.
The statute only creates a new one-year contract by
operation of law; it does not provide any remedy for breach of
that contract.
Contrary to the majority’s suggestion, id.,
there would be no reason for the General Assembly to add a
mitigation requirement to a contract damages remedy when the
statute does not speak of that remedy in the first place.
If
common law contract damages apply to a breach of the renewed
contract, we need to look at the rules of common law contract
damages in their entirety, including mitigation.
Second, the majority relies on our decision in Norwood.
In
that case, the school district sought to terminate the
employment of Norwood, a probationary teacher, pursuant to the
prior version of the TECDA.
However, the written notice of
termination did not reach Norwood until after the statutory
deadline.
644 P.2d at 14, 16-17.
Norwood commenced an action
seeking a declaration that “she was automatically reemployed as
a teacher for the [subsequent] school year and for a mandatory
injunction reinstating her to her teaching position with full
fringe benefits, back pay, and all statutory entitlements.”
at 14.
The court upheld the trial court’s finding that the
6
Id.
termination notice was improper under the TECDA and further
upheld the award of reinstatement with back pay and fringe
benefits.
Id. at 18.
The vast majority of the court’s opinion discusses the
timeliness of the district’s notice.
Its mention of a remedy is
limited to two paragraphs at the end of the opinion, which
state:
Finally, the school district asserts that the
district court ordered an award of back pay and
fringe benefits without any evidence to sustain
the order.
It predicates this assertion on its
misconception that Norwood’s action was for a
wrongful dismissal and that, therefore, the
proper measure of damages is the difference
between the teacher’s salary and her earnings in
mitigation
during
the
period
of
wrongful
discharge.
Petitioner
misstates
the
nature
of
this
declaratory action, which is not one for damages,
but
rather
is
grounded
on
the
automatic
reemployment statute relating to non-tenured
teachers and which sought a mandatory injunction
reinstating her to the teaching position she
held, as provided by the statute.
The award of
back pay and fringe benefits follows by operation
of
law
upon
her
reinstatement.
We
find
petitioner’s argument to be without merit.
Id. at 17-18 (emphasis added).
Thus, in Norwood, we stated that mitigation in that case
was not an issue due to the nature of Norwood’s particular
declaratory action, “which [was] not one for damages” but rather
sought a reinstatement to the teaching position she held.
at 18.
Norwood actually was reinstated to her teaching
7
Id.
position, and her award of back pay and fringe benefits -presumably for that portion of the year that she had missed -simply “follow[ed] by operation of law upon her reinstatement.”
Id.
The Norwood court therefore did not -- and could not, given
the circumstances of the case -- reach the question posed here,
which is whether mitigation is applicable when reinstatement is
not an option and common law contract damages supply the remedy
for breach of the renewed contract.
Although we rejected the
district’s characterization of Norwood’s claim as one for
damages, we did not reject the district’s argument that, had
Norwood’s action been one for damages, mitigation would be
appropriate.
In other words, we rejected the district’s
description of Norwood’s claim (as one for damages), but not its
statement of the law that mitigation would have applied had its
description of Norwood’s claim been correct.
In sum, there is
no need to “overrule” Norwood on this point, as the majority
posits, maj. op. at 25; Norwood is simply inapplicable.
Importantly, the majority limits Norwood to its facts (that
is, to situations in which reinstatement is possible in the year
following the notice violation) when it addresses the
reinstatement issue in this case.
Maj. op. at 22-23.
As noted
above, in Norwood, we awarded both reinstatement and full back
pay.
Here, Barbour contends that he is entitled to just that --
back pay for the school year following improper notice, 2004-
8
2005, as well as reinstatement in a subsequent year.
The
majority properly rejects this view by noting that Norwood “did
not specifically address” whether reinstatement is required in
every case.
Id. at 22.
Ultimately, it holds that Barbour
cannot receive both reinstatement and back pay because, unlike
in Norwood, reinstatement for the year following the notice
violation is impossible.
Id. at 22-23.
In my view, if Norwood
is to be limited to its facts regarding reinstatement and back
pay, it should be so limited in the context of mitigation as
well.
The majority rejects mitigation on a third ground: public
policy.
It concludes that mitigation would allow school
districts to give insufficient notice “without repercussion” and
leave probationary teachers not “appropriately compensated.”
Id. at 28.
In my view, mitigation would lead to neither of
these results.
The goal of contract damages is to place the
plaintiff in the same position he or she would have been in had
the breach not occurred -- not one that is better or worse.
Donahue, 690 P.2d at 250; Lanes v. O’Brien, 746 P.2d 1366, 1373
(Colo. App. 1987).
As applied to this case, Barbour got paid
more in his alternative employment than what he would have made
at Hanover Junior-Senior High School, but “the change of
employment meant an increase in Barbour’s daily commute of
seventy-seven miles and his loss of three federal and private
9
grants.”
Maj. op. at 6.
The appropriate damages remedy for the
breach of Barbour’s renewed contract would be the difference
between what Barbour would have made had he worked at Hanover
for a year (including his grant money), and what he did in fact
make at his alternative employment (less his increased travel
costs).
This is “appropriate” compensation for Barbour under
longstanding common law contract damages.
App. at 461, 475 P.2d at 33.
See Robb, 28 Colo.
It also means that, contrary to
the majority’s concern, the school district’s insufficient
notice will have a “repercussion” in the form of a damage award
it must pay.
III.
The statutory remedy for the district’s improper
notification of Barbour is a one-year contract renewal by
operation of law.
When the district refused to honor that
renewed contract, Barbour’s remedy was common law contract
damages.
Because the majority determines that mitigation -- a
longstanding principle of contract damages -- is inapplicable to
this case, I respectfully dissent with respect to Part II.C.2 of
its opinion.
I am authorized to state that JUSTICE RICE joins in this
concurrence and dissent.
10
Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Court’s homepage at
http://www.courts.state.co.us/supct/supctcaseannctsindex.htm
Opinions are also posted on the Colorado Bar Association
homepage at www.cobar.org.
ADVANCE SHEET HEADNOTE
November 5, 2007
No. 06SC446, Hanover School District No. 28 v. Bruce W.
Barbour.– Education Law – Statutory Interpretation –
Probationary Teacher Termination – Timely Notice – Reemployment
– Mitigation – Injunctive Relief – Open Meetings Law
In this appeal, a school board seeks to reverse the court
of appeals’ finding that it failed to provide timely written
notice of termination to a probationary teacher, and as a
consequence, owed the teacher a year of reemployment and back
pay for a lost year of employment.
The Supreme Court affirms the court of appeals’ ruling that
section 22-63-203(3), C.R.S. (2007) mandates that a school board
provide timely written notice of termination by the June 1
deadline and that such notice must arise from a public meeting
of the school board.
The court holds that the Hanover School
Board failed to provide timely written notice to Barbour by the
deadline.
The Supreme Court further affirms the court of
appeals’ determination that the Supreme Court’s ruling in School
District RE-11J, Alamosa County v. Norwood requires that the
teacher receive back pay, without need to mitigate the damages,
for the school year or years the teacher lost before being
provided timely written notice of termination.
The Supreme Court reverses the court of appeals’ ruling
that the teacher should be reinstated for the school year
following the end of litigation.
Instead, the Supreme Court
holds that the teacher is deemed reemployed for the school year
following the school board’s failure to give the required
notice.
However, the teacher is not deemed reemployed for
subsequent school years if the school board provides timely
written notice regarding those future years of employment.
Further, if the school year for which the teacher is deemed
reemployed has passed, back pay and benefits are the appropriate
remedy.
12
SUPREME COURT, STATE OF COLORADO
Two East 14th Avenue
Denver, Colorado 80203
Case No. 06SC446
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 05CA1573
Petitioner:
HANOVER SCHOOL DISTRICT NO. 28, in the County of El Paso and State
of Colorado,
v.
Respondent:
BRUCE W. BARBOUR.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART
EN BANC
November 5, 2007
Modified Opinion.
Marked Revisions Shown.
Semple, Miller, Mooney, and Farrington, P.C.
Patrick B. Mooney
Stephen G. Everall
Denver, Colorado
Attorneys for Petitioner
Colorado Education Association
Sharyn E. Dreyer
Denver, Colorado
Attorneys for Respondent
JUSTICE MARTINEZ delivered the Opinion of the Court.
JUSTICE EID concurs in part and dissents in part, and JUSTICE
RICE joins in the concurrence and dissent.
2
In this appeal, we review the court of appeals’ opinion in
Barbour v. Hanover School District No. 28, 148 P.3d 268 (Colo.
App. 2006).
There, the court of appeals affirmed a judgment in
favor of plaintiff, Bruce W. Barbour (“Barbour”), awarding
reemployment, back pay, and other damages for the failure on the
part of Hanover School Distict Board of Education (“Board”) to
comply with the requirements of the Teacher Employment,
Compensation, and Dismissal Act (“TECDA”).
§ 22-63-203(3),
C.R.S. (2007).
We affirm the court of appeals’ holding that the Board
failed to provide Barbour proper notice that his 2003-2004
employment contract would not be renewed.
We also affirm the
court’s holding that Barbour was not obligated to mitigate
damages.
However, we reverse the court of appeals’ holding that
Barbour be reemployed for the 2006-2007 school year or any
subsequent year.
Instead, we conclude that Barbour is deemed
reemployed for the 2004-2005 school year and therefore the Board
must compensate him for back pay and benefits lost during that
school year.
I. Facts and Procedural History
Barbour was a probationary teacher employed by the Board on
a year-to-year basis.
His contract for the 2003-2004 school
year was to expire on June 1, 2004.
On April 7, 2004, the Board
held a special meeting to discuss various items, including the
3
renewal of probationary teachers.
The first few moments of the
meeting were held in public, then the Board moved into executive
session.
No minutes of the executive session were taken and the
topics of discussion for the executive session were not publicly
announced prior to the meeting.
While in executive session, the
Board discussed whether to renew Barbour’s 2003-2004 employment
contract for the 2004-2005 school year.
The next day, the Board superintendent sent Barbour a
memorandum entitled “Letter of Intent,” which stated in its
entirety, “I regretfully must inform you that the Hanover Board
of Education does not plan to offer you a teaching contract for
the 2004-2005 school year.”
Barbour requested a meeting with the Board superintendent
to discuss the reasons for the Board’s proposed plan not to
renew his contract.
Barbour was told that the Board planned to
dismiss him but that the final vote would not be held until the
Board met in May.
On May 18, 2004, the Board held a special public meeting to
discuss various agenda items including teacher retention.
At
this meeting, the Board publicly adopted a motion to renew all
probationary teachers contracts with the exception of Barbour’s
contract.
Eight days later, in another special meeting open to
the public, the Board unanimously approved the reissue of all
4
revised teacher contracts for the 2004-2005 school year, with
the exception of Barbour’s contract, which was not renewed.
The Board did not notify Barbour after either the May 18 or
May 26 meetings that action had been taken regarding the renewal
of his employment contract.
Barbour did not request
clarification as to his status but instead retained counsel.
Barbour’s attorney then contacted the Board on or about June 14,
2004, demanding that Barbour be reemployed for the 2004-2005
school year.
The Board declined to reemploy Barbour.
Subsequently, Barbour secured employment in the Falcon School
District.
While paying more than his position at Hanover
Junior-Senior High School, the change of employment meant an
increase of seventy-seven miles to Barbour’s daily commute and
his loss of three federal and private grants.
On August 23, 2004, Barbour filed suit alleging that the
Board could not terminate him because it failed to properly
notify Barbour that his contract was not being renewed, as
required by the TECDA. 3
One month later, on September 21, 2004,
the Board met and voted in public session to ratify its previous
decision not to renew Barbour’s 2003-2004 contract, and also not
to renew Barbour’s 2004-2005 contract, if the court found that
such a contract existed.
The next day, the superintendent sent
3
Barbour requested both injunctive and declaratory relief. He
also claimed breach of contract and sought damages arising from
the statutory violation.
5
a letter notifying Barbour of the ratification of its earlier
decision not to renew his contract and its decision not to renew
his 2004-2005 contract for the 2005-2006 school year.
The
September 22, 2004 letter states in part:
The Hanover School District Board of Education has
adopted a resolution ratifying its previous nonrenewal
of your employment contract and nonrenewing any
contract or contract right you may now have regarding
employment with the school district.
This letter was Barbour’s first formal notice that any contract
he had with the Hanover School District was not renewed.
When,
in the spring of 2005, Barbour’s attorney questioned whether a
contract between the Board and Barbour still existed, the Board
instructed the superintendent to send Barbour another letter,
confirming that his 2004-2005 contract was not renewed.
On May
25, 2005, the superintendent mailed this second letter to
Barbour.
Barbour confirmed that he received this letter prior
to the June 1 automatic contract renewal deadline.
Barbour moved for summary judgment regarding the lack of
notice, claiming that the Board’s failure to notify him after
the May 26, 2004 Board meeting, where the Board voted not to
renew his contract, violated section 22-63-203(3).
The trial
court granted Barbour’s motion for summary judgment on the
question of whether the Board gave proper notice that Barbour’s
contract would not be renewed.
The trial court found that the
Board’s discussion regarding whether to renew Barbour’s 2003-
6
2004 employment contract for the 2004-2005 school year was not a
formal decision and “could not have caused” the letter of intent
to be sent.
Because the superintendent’s letter of intent came
as a direct result of the April 7 executive session and not a
public meeting, the court concluded that Barbour never received
notice that his contract was not renewed.
A subsequent bench trial was scheduled to determine
remedies.
In preparation for this trial, the parties stipulated
to several facts.
First, they stipulated that the Board voted
not to renew Barbour’s employment contract on May 26, 2004, but
no written notice of his renewal status was sent to Barbour
prior to the June 1 deadline, as required under section 22-63203(3).
The parties also stipulated that the Board met in open
session and adopted a resolution in September 2004 ratifying its
earlier decision not to renew Barbour’s 2003-2004 contract and
not renewing his 2004-2005 contract if the court found that such
a contract existed.
The parties further stipulated that written
notice of the Board’s adoption of this resolution was provided
to Barbour in September 2004.
Finally, the parties stipulated
that an additional letter, notifying Barbour that he was
terminated for the 2005-2006 school year, was sent to Barbour in
May 2005.
After the bench trial, the court awarded Barbour back pay
in the amount he would have earned while working for the Hanover
7
School District for the 2004-2005 school year, reimbursement and
indemnification for two federal grants and one private grant
Barbour received while employed by Hanover, commuting costs to
and from Barbour’s new place of employment, and reinstatement
for the 2005-2006 school year as a probationary teacher.
The
Board appealed.
The court of appeals affirmed the trial court’s ruling,
holding that the superintendent’s letter of April 8, 2004, was
legally insufficient to provide proper notice that Barbour’s
contract would not be renewed because it did not result from a
properly held public meeting.
In addition, the court of appeals
determined that the Board failed to provide Barbour written
notice of its decision not to renew Barbour’s contract at the
May 18 and May 26 meetings.
Thus, the Board violated section
22-63-203(3), which mandates timely, written notification that
the contract is not renewed, when it failed to provide Barbour
written notice that his 2003-2004 employment contract would not
be renewed for the 2004-2005 school year.
As for relief under
the statute, the court of appeals affirmed the trial court’s
awards including full back pay and benefits for the 2004-2005
school year.
Although the trial court ordered reemployment for
the 2005-2006 school year because the 2004-2005 school year had
already begun and litigation was ongoing, the court of appeals
went further, returning the case to the trial court with an
8
order that Barbour be rehired for the 2006-2007 school year
because the appeal extended into the 2005-2006 school year.
The Board petitioned for certiorari on three issues. 4
The
Board did not appeal the court of appeals’ rulings affirming
reimbursement of the lost federal grants and commuting costs.
We granted the petition to review the decision of court of
appeals.
II. Analysis
First, the Board argues that section 22-63-203(3) does not
require a second written notice after the teacher is given
written notice of the Board’s intention not to renew his
teaching contract.
Second, the Board claims that Barbour should
not be allowed to receive full back pay without offset of his
earnings from alternative employment.
Finally, the Board
challenges the court of appeals’ finding that the language of
section 22-63-203(3) requires that the Board rehire Barbour.
4
We granted certiorari for the following issues:
1) Whether a school district is required by section
22-63-203(3), C.R.S. (2006), to give a nonrenewed probationary
teacher a second written notice after the teacher has been
given a written notice of intention to nonrenew and has had
actual notice of the nonrenewal.
2) Whether a probationary teacher who has been improperly
nonrenewed is entitled to recover full back pay without offset
of earnings from alternative employment.
3) Whether a court may order the reemployment of a probationary
teacher after the term of his contract has ended and he has
been awarded a damages remedy for the school district’s failure
to employ him for the contract term.
9
We first explain that the Board’s determination that
Barbour’s contract not be renewed while in executive session
violated the Open Meetings Law and is thereby not binding.
Next, we consider whether the Board has complied with the
statutory requirement of written notice of a decision by the
Board not to renew Barbour’s contract.
Finally, we determine
the remedies available to Barbour in the absence of adequate
notice.
A. Open Meetings Requirement
The Open Meetings Law was conceived to “afford the public
access to a broad range of meetings at which public business is
considered.”
Benson v. McCormick, 195 Colo. 381, 383, 578 P.2d
651, 652 (1978).
We have read these provisions to give
citizens “a greater opportunity to become fully informed on
issues of public importance so that meaningful participation in
the decision-making process may be achieved.”
Cole v. People,
673 P.2d 345, 347 (Colo. 1983).
Open meetings are those meetings that concern matters
related to the policy-making function of that body.
Colo. Civil
Rights Comm’n ex rel. Ramos v. Regents of the Univ. of Colo.,
759 P.2d 726, 733 (Colo. 1988).
The Open Meetings Law requires
that any meeting of a public body where formal action is taken
must be open to the public.
§ 24-6-402(2)(b), C.R.S. (2007).
Specifically, section 24-6-402(2)(b) states that:
10
All meetings of a quorum or three or more members of
any local public body, whichever is fewer, at which
any public business is discussed or at which any
formal action may be taken are declared to be public
meetings open to the public at all times.
§ 24-6-402(2)(b).
Upon a two-thirds vote of the members, however, the local
public body may meet in a private, executive session.
402(3).
§ 24-6-
While in executive session, the members may discuss
policies, but they are limited in their policy making authority
and may not adopt positions or make formal decisions.
Id.
While section 24-6-402(4) provides a list of topics that may be
considered at an executive session, see section 24-6-402(4)(a)(h), statutes governing specific local public bodies can limit
these topics.
For instance, the applicable statute identifying
the powers of school boards, section 22-32-108(5), C.R.S.
(2007), states that no final policy decisions may be agreed to
in executive session:
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
. . . but no final policy decisions shall be made by
the board while in executive sessions.
§ 22-32-108(5).
We have previously determined that important policy decisions
cannot be made informally.
Gavend v. City of Thornton, 165
Colo. 186, 188, 437 P.2d 780, 782 (1968).
In Gavend, we held
that an informal vote to approve an annexation, made in
11
executive session, was not binding because the formal decisions
of a public entity cannot be made in executive session.
780.
Id. at
Similarly, the formal decision not to renew a teacher’s
contract cannot be made in executive session.
Here, the Board met on April 7, 2004, first in open session
and then, for a much longer time, in executive session.
The
Board concedes that the question of whether to renew Barbour’s
contract was only discussed in the executive session of the
April 7 meeting.
Following that meeting, the Board
superintendent, acting at the behest of the Board, wrote Barbour
a letter entitled “Letter of Intent,” which stated in its
entirety, “I must regretfully inform you that the Hanover Board
of Education does not plan to offer you a teaching contract for
the 2004-2005 school year.”
The Board does not contend that its actions at the April 7
executive session amount to a policy decision or formal action.
The Board agrees that the actual decision not to renew Barbour’s
contract was not made until the May 18 and May 26 meetings.
The
Board claims that the letter it asked the superintendent to send
Barbour was notice of the Board’s intent to act at a later time
to terminate his contract.
Nevertheless, the Board argues that
the superintendent’s letter of April 8, 2004, was notice to
Barbour that his contract would not be renewed and that “a
second notice” was not required by section 22-63-203(3).
12
We agree that any decision not to renew Barbour’s contract
made by the Board in executive session could have no binding
effect.
Section 22-32-108(5) prohibits formal action or policy
making during executive session.
Because the decision not to
renew a teacher is a final policy decision that can only be made
at a public meeting, any Board actions during the April 7
executive session were inconsequential.
Moreover, any and all
communications with Barbour arising from that meeting could not
have the effect of notifying him of his renewal status.
We reject the Board’s contention that despite the lack of
effect of any action taken by the Board during the executive
session, the superintendent’s letter of April 8, 2004 was notice
that Barbour’s contract would not be renewed, satisfying the
notice requirement of section 22-63-203(3).
B. Notice Required by Section 22-63-203(3)
Although school boards have broad authority to terminate
probationary teachers under section 22-63-203(3) when the
decision to terminate a probationary teacher is made at an open
meeting, a school board must also provide timely, written notice
of termination to the teacher.
§ 22-63-203(3).
Failure to
provide timely written notice results in the automatic
reemployment of the probationary teacher.
reads in part:
13
Section 22-63-203(3)
A probationary teacher employed by a school district
on a full-time 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 . . . 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.
§ 22-63-203(3) (emphasis added).
The statute specifies that a
writing is timely if a probationary teacher is provided notice
that the contract will not be renewed prior to June 1 of the
succeeding academic year.
In the absence of such notice, the
teacher is automatically reemployed by operation of law for the
following academic year and is considered employed for the
succeeding school year regardless of whether the teacher
actually performs work for the school district.
This statute became law in 1990, replacing the thenexisting probationary teacher renewal statute, which was
identical in substance but enforced a notification date of April
15.
While this court has not previously interpreted section 22-
63-203(3), it has interpreted the pre-1990 statute.
In that
case, School District RE-11J, Alamosa County v. Norwood, 644
P.2d 13, 18 (Colo. 1982), we found that the statute required
that timely, written notice of termination be given to the
teacher on or before April 15.
Norwood concerned the attempted termination of a
probationary teacher by verbal advisement.
14
Id. at 15.
The
Alamosa County School Board argued that even absent written
notice, the verbal notification coupled with an additional
written notice coming several days after the April 15 deadline
complied with the statute.
Id.
We were unpersuaded.
We held
that the plain language of the statute required timely, written
notice.
Id. at 18.
In the case before us, the Board gave a written advisement
after its April 7 executive session, some six weeks before the
renewal decisions were made.
No additional written notice was
provided to Barbour after the May 26 meeting where Barbour’s
contract was terminated.
The Board contends that the April 8
letter, issued before the renewal decision, fulfilled its
obligation to provide proper notice.
The letter, entitled
“Letter of Intent,” states that “the Hanover Board of Education
does not plan to offer you a teaching contract for the 2004-2005
school year.”
The Board argues that this letter expresses the
Board’s intent to terminate Barbour’s contract at some future
time and is thus legally sufficient to meet the statutory
requirement that “the Board causes written notice to the
contrary to be given . . . on or before June 1.”
203(3).
§ 22-63-
We do not agree.
A school board must provide a probationary teacher with a
timely writing stating in clear terms that the board has
terminated the contract.
This notice must inform the teacher
15
that the Board has made a definitive decision not to renew the
teacher for the upcoming school year.
Here, the Board, through
a letter by its superintendent, notified Barbour only that the
Board was, at that point, not planning to renew his contract.
Notice of a “plan” to vote at a later time to terminate a
contract does not meet the statute’s mandate for a timely,
written notice of termination.
Instead, it is merely
notification that the Board may soon decide to undertake the
legally sufficient action to formally end the contract.
Until
that formal action is taken and unequivocal notice of
termination is made, the statute requires that the probationary
teacher be deemed reemployed.
Thus, when the Board failed to
provide Barbour written notice that his contract was not
renewed, he was reemployed for the 2004-2005 school year.
The Board further argues that even if the April 8 letter
was insufficient legal notice of termination, the May 18 and May
26 public votes not to renew Barbour’s contract, coupled with
Barbour’s apparent knowledge of his impending termination,
complied with the notice requirement.
We are unpersuaded.
The essential element of section 22-62-203(3) is timely,
written notice of termination following an official vote by the
Board.
No such notice was provided to Barbour.
Despite this,
the Board argues that the superintendent’s April 8 letter to
Barbour, combined with several other factors, rises to
16
compliance with the statute.
Among these additional factors are
the Board’s claims that Barbour had informal notice that his
contract was not renewed in the form of a meeting with the
superintendent in the weeks following receipt of the April 8
letter and that Barbour had actual notice of termination through
his presence at the May 18 and May 26 school board meetings when
the Board terminated his contract – claims that Barbour
disputes.
Further, the Board argues that these factors serve to
ratify the Board’s letter of April 8.
We disagree and find the
Board’s claim of compliance without merit.
There can be no compliance with the essential elements of
section 22-63-203(3) without timely, written notice of a Board’s
final decision.
Such timely, written notice was not provided to
Barbour after the May 26 Board vote.
In its absence, the Board
cannot now claim that its unofficial writing of six weeks
earlier suffices or that various other factors combine to supply
the missing timely written notice.
School boards have broad authority to terminate
probationary teachers.
They must do so within the provisions of
section 22-63-203(3), however, including timely, written notice
of termination.
Here, the Board failed to provide a timely
writing and thus cannot claim that its actions rise to
compliance or that other factors served to ratify its earlier
insufficient notice.
17
C. Remedies for Violation of Section 22-63-203(3)
Having found that section 22-63-203(3) requires timely,
written notice that Barbour’s contract was not renewed following
the final vote by the Board, we turn to the remedies due Barbour
for the Board’s violation of the statute.
The Board asks that
we overturn the court of appeals’ holdings that Barbour receive
full back pay without offset of earnings from his alternative
employment and that he receive reinstatement at Hanover JuniorHigh School for the 2006-2007 school year.
The remedy for violating section 22-63-203(3) is the
teacher’s reemployment for the succeeding school year.
Because
it was too late to reinstate Barbour for the 2004-2005 school
year, the trial court interpreted this statute to require that
Barbour be reemployed for the school year following the court’s
decision, the 2005-2006 school year.
This order was stayed
while the court of appeals considered the case.
Upon finding
for Barbour, the court of appeals also interpreted the statute
to require that Barbour be reemployed for the school year
following litigation and remanded the case to the trial court to
order Barbour’s one-year reemployment occur during the 2006-2007
school year.
We must now decide if Barbour is entitled a year of
employment after all appeals are completed.
We make this
decision after considering the Board’s September 2004 and May
18
2005 letters providing Barbour with written notice that his
contract would not be renewed for the year following the 20042005 school year for which he might be deemed reemployed.
Additionally, we must decide whether the common law
principle of mitigation applies to the statutory remedies
provided in section 22-63-203(3) to determine whether Barbour’s
employment with the Falcon School District mitigates his loss,
thereby limiting the Board’s liability.
1.3.
Reemployment for an Additional School Year
Section 22-63-203(3) states that “a probationary teacher
employed by a school district on a full-time basis shall be
deemed to be reemployed for the succeeding academic year” unless
the teacher is given proper notice that the contract is not
renewed.
§ 22-63-203(3).
The trial court interpreted this
language as requiring Barbour’s reinstatement for the 2004-2005
school year.
Because litigation was ongoing when the 2004-2005
school year began, however, reinstatement for that school year
was impossible.
So, the trial court awarded employment for the
2005-2006 school year.
This remedy was again delayed when the
Board appealed to the court of appeals.
In affirming the trial
court, the court of appeals went one step further and instructed
the Board to employ Barbour for the 2006-2007 year.
Now, the
Board asks that we overrule the court of appeals and find that
reemployment should not be ordered when damages and back pay
19
have been awarded and the Board has given proper notice of
termination for the 2005-2006 school year.
We agree with the
Board and find that the court of appeals overstepped its
authority in ordering the Board to rehire Barbour for the 20062007 school year.
While we have found that Barbour was deemed
reemployed for the 2004-2005 school year, the Board’s letters of
September 2004 and May 2005, notifying Barbour that he was not
renewed for 2005-2006 even if the court found in his favor
regarding the 2004-2005 school year, foreclosed the renewal of
his existing employment contract for 2005-2006 or beyond.
Thereby, the employment mandated by the trial court for the
2005-2006 school year exceeded the authority to provide relief
for the 2004-2005 school year.
Further, the court of appeals
exceeded its authority when it ordered Barbour be employed for
the 2006-2007 school year.
Instead, we find that the statutory
remedy available to Barbour is that he be deemed reemployed for
the 2004-2005 school year and that he receive back pay and
benefits for the 2004-2005 school year.
The statute implicated by the Board’s failure to give
notice, section 22-63-203(3), states that in the absence of
proper notice “a probationary teacher . . . shall be deemed to
be reemployed for the succeeding academic year.”
203(3).
§ 22-63-
The question is what form this “deemed” employment
takes and the meaning of the phrase “succeeding academic year.”
20
We addressed a similar situation in Norwood, 644 P.2d at 18.
There, as here, the school board failed to give proper notice
that a teacher’s contract would not be renewed.
awarded both back pay and reemployment.
The trial court
We affirmed.
In his
answer brief, Barbour argues that Norwood is controlling and
requires that this court affirm the trial court’s award of both
back pay and reemployment.
In Norwood, we did not specifically address whether
reemployment is required, even years after the violation, when
reemployment may no longer be available because the school year
at issue has been completed.
Moreover, there is no indication
in Norwood that the Alamosa Board raised the question of whether
the reemployment remedy is available beyond the school year at
issue by sending Norwood proper notice that the teacher’s
contract for the following year would not be renewed.
Thus, our
opinion in Norwood affirmed the court of appeals decision that
Norwood was entitled to have been reemployed “for the next
academic year,” after seven years of litigation, without further
clarification.
Norwood at 18.
Here, despite the failure to give notice regarding the
2004-2005 school year, the Board did provide Barbour proper
timely notice that his contract would not be renewed for 20052006 or future school years.
Courts do not have the authority
to require reinstatement beyond the school year at issue where,
21
as here, the Board has foreclosed that remedy.
Reinstatement is
only available where the trial court enjoins the Board’s
unauthorized termination in time for the school year in question
or the Board does not undertake steps to terminate the teacher’s
contract for the succeeding and all future school years.
While
reinstatement may not always be possible, the statute makes
clear that a wrongfully terminated teacher is nonetheless deemed
reemployed.
Here, the trial court did not enjoin the Board from
terminating Barbour’s contract prior to the 2004-2005 school
year.
He was nonetheless “deemed reemployed” for that school
year.
Further, because the Board’s September 2004 and May 2005
letters properly notified Barbour that any and all contractual
relationships between him and the Board were terminated, Barbour
could not be reemployed beyond the 2004-2005 school year.
The
2004-2005 school year having passed, reinstatement was not
possible.
Consequently, the trial court erred when it awarded
Barbour employment for the 2005-2006 school year despite the
Board’s timely, written notice that, regardless of the
litigation outcome, Barbour would not be retained beyond the
2004-2005 contract year.
We also find that the court of appeals
erred when it exceeded its authority by extending the trial
court’s order of reinstatement to the 2006-2007 school year.
22
Thus, we find that Barbour was deemed reemployed for the
2004-2005 school year but that relief in the form of an
additional year of employment is not available at this late
date.
Although the 2004-2005 school year has passed, Barbour is
nonetheless deemed reemployed and the Board is obligated to
compensate him in the amount he would have received had he
actually worked the 2004-2005 school year for the Hanover School
District.
2.4.
Mitigation
Finally, we must decide whether full back pay for a teacher
who is deemed reemployed after successfully proving that the
school board failed to provide proper notice should be reduced
by income earned in alternative employment.
The Board cites
authority from this and other jurisdictions in support of the
proposition that the damages owed to Barbour by Hanover School
District should be offset by the compensation he received while
employed by the Falcon School District.
See Milliken-Dees v.
Salem City Sch. Dist. Bd. of Ed., 855 N.E.2d 932 (Ohio Ct. App.
2006); Western Grove Sch. Dist. v. Strain, 707 S.W.2d 306 (Ark.
1986); Dep’t of Health v. Donahue, 690 P.2d 243 (Colo. 1984).
In particular, the Board looks to the general, long-held
proposition that in contract disputes between employers and
employees, where employees are wrongfully terminated, they have
an obligation to mitigate damages.
23
See Fair v. Red Lion Inn,
943 P.2d 431 (Colo. 1997); Corfman v. McDevitt, 111 Colo. 437,
142 P.2d 383 (1943); Saxonia M. and R. Co. v. Cook, 7 Colo. 569,
4 P. 1111 (1884).
However, the Board’s summary of the general principle does
not address the statutory remedy provided here and contradicts
our only case on point.
Norwood, 644 P.2d at 17-18.
In
Norwood, we held mitigation is unnecessary in violations of
section 22-63-203(3), the statute that governs probationary
teacher employment situations.
Id.
While that opinion does not
elaborate on the underlying rationale, it specifically concludes
that the statutory requirement of an additional year of
employment prevails over the common law preference for
mitigation.
Id.
The conclusion reached in Norwood that
mitigation is inapplicable to violations of the teacher’s
automatic reemployment statute directly contradicts the result
reached in an earlier decision of the court of appeals in Robb
v. School District No. RE 50(J), 28 Colo. App. 453, 455, 475
P.2d 30, 31 (1970), which contained no explanation of this
result.
Norwood is controlling, and we decline to overrule it.
In Norwood, the Alamosa County School Board failed to
provide timely, written notice that the teacher’s contract would
not be renewed.
Norwood, 475 p.2d at 31.
We held that the
school board must compensate a wrongfully terminated teacher
with full back pay without mitigation for a lack of proper
24
notice.
We found mitigation was not necessary because the
common law obligation to mitigate was superseded by the
statute’s language requiring automatic reemployment.
In the
absence of automatic reemployment, we found that the Board was
obligated to pay lost wages, regardless of the teacher’s success
in finding alternative employment.
Id.
Even if we, like the court of appeals, were inclined to
interpret this statute differently today, the fact that the
General Assembly has not changed the statute to require
mitigation following Norwood dissuades us from this approach.
For over forty years, some variation of the probationary teacher
renewal statute has been state law.
During that time, it has
never included a mitigation provision for a wrongfully
terminated teacher.
That is not to say that the General
Assembly has lacked the opportunity to include such a provision.
Since the statute’s adoption in 1963, the General Assembly has
amended the specific provision in question over a dozen times,
including completely repealing and reenacting the statute in
1990.
Three of the aforementioned amendments came in the years
immediately following our decision in Norwood, and none of those
amendments addressed mitigation.
Because the General Assembly
could easily have overruled Norwood on this issue by adding a
mitigation requirement in the twenty-five years since we
interpreted this statute and has elected not to do so, we
25
believe it would usurp legislative power for us to change our
interpretation to require mitigation simply because we might see
the statute differently if we were writing on a clean slate
today.
Instead, while the statute does not require mitigation, it
does provide that the teacher is deemed reemployed without
regard to whether even when the teacher’s status is determined
by litigation that extends past the start of the school year has
already started.
Thus, when the school year has already
passedstarted, the statute imposes the legal fiction that the
teacher is “deemed reemployed” even though he does not actually
work that year.
As an employee of the school district, the
teacher deemed reemployed is entitled to compensation for the
school year for which he did not receive timely written notice.
That the teacher successfully finds alternative work is
immaterial to the fact that the teacher is deemed employed by
the school district and entitled to compensation.
Beyond the statute and our interpretation of it in Norwood,
we find persuasive policy reasons for not requiring mitigation
by a probationary teacher terminated under section 22-63-203(3).
If, as here, a school board provided inadequate notice of
termination beyond the disputed year and the teacher found
alternative employment, the school board could wrongfullyterminate a teacher without repercussion.
26
The statute protects
the teacher from a board that fails to give timely notification
of termination.
It is inconsistent with the purpose of section
22-63-203(3) that a teacher be deemed employed but neither
allowed to return to work nor appropriately compensated for the
time employed.
Thus, we find that because the statute deems wrongfully
terminated teachers as reemployed until such time as they are
provided timely notice of termination, the failure by the Board
to give Barbour timely notice of termination meant that he was
deemed reemployed for the 2004-2005 school year.
As a duly
employed teacher of the Hanover School District, he was entitled
to compensation without working for the school year for which he
did not receive timely written notice because the school
district did not allow him to return to work as required by the
section 22-63-203(3).
Further, because he was “deemed employed”
by the district, he had no obligation to mitigate the
compensation owed to him under section 22-63-203(3).
We
therefore affirm the court of appeals’ holding that Barbour is
due one year’s salary and benefits for the Board’s failure to
renew his contract for the 2004-2005 school year.
III. Conclusion
We affirm the court of appeals’ holding that the Hanover
School Board failed to give Barbour timely written notice that
his contract would not be renewed.
27
However, we reverse the
court of appeals’ holding that Barbour must be employed for one
year after completion of this appeal because the Board provided
timely notice of termination for the 2005-2006 school year and
instead order that Barbour be paid the appropriate back pay for
the loss of the 2004-2005 school year without offsetting those
wages by the salary he collected at another school.
28
JUSTICE EID concurs in part and dissents in part, and JUSTICE
RICE joins in the concurrence and dissent.
29
JUSTICE EID, concurring in part and dissenting in part.
The majority holds that when a school district fails to
properly notify a probationary teacher that his or her teaching
contract will not be renewed for the following year as required
by the Teacher Employment, Compensation and Dismissal Act
(“TECDA”), sections 22-63-101 to -403, C.R.S. (2007), the
probationary teacher is entitled to compensation in the form of
full back pay and benefits without any deduction for income
earned in mitigation.
The TECDA provides a specific remedy for
such insufficient notice -- namely, that a probationary teacher
is “deemed to be reemployed for the succeeding academic year.”
We have long held that this remedy renews the probationary
teacher’s contract for the succeeding academic year by operation
of law.
In my view, that is all that the statute does.
When
that renewed contract is subsequently breached by the district,
as occurred in this case, the probationary teacher is entitled
to ordinary contract remedies.
These include specific
performance in the form of reinstatement (which the majority
correctly concludes is not available in this case) and contract
damages.
Because mitigation is a longstanding principle of
contract damages -- a principle that the majority fails to
employ in this case -- I respectfully dissent from Part II.C.2
of the opinion.
1
I.
Section 22-63-203(3), C.R.S. (2007), states that if a
school district does not follow the proper procedures for
notifying a probationary teacher that his or her employment
contract will not be renewed for the following school year, the
probationary teacher is “deemed to be reemployed for the
succeeding academic year.”
As we have long held, this provision
creates a new one-year employment contract by operation of law.
Sch. Dist. RE-11J, Alamosa County v. Norwood, 644 P.2d 13, 14
(Colo. 1982) (affirming district court’s conclusion that where
probationary teacher did not receive timely notice, her
“contract for employment was automatically renewed for the
[following] school year”); see also Julesburg Sch. Dist. No. RE1 v. Ebke, 193 Colo. 40, 42, 562 P.2d 419, 421 (1977) (The
statute “creates a contract by law between the school board and
its teachers.”); Marzec v. Fremont County Sch. Dist. No. 2, 142
Colo. 83, 86, 349 P.2d 699, 701 (1960) (The statute “makes a
contract for the parties by operation of the law, where
otherwise none would exist.”) (citation omitted).
Indeed, in
his complaint, Barbour acknowledged his rights under the TECDA
as contractual, alleging as a claim for relief a breach of
contract created by law under the statute based on the Board’s
2
insufficient notice and its refusal to rehire him for the 20042005 school year.
Today, we affirm the court of appeals’ ruling that Barbour
received insufficient notice in this case, maj. op. at 11-19;
the question then becomes one of remedy.
Id. at 19.
As noted
above, the statute provides that the remedy for insufficient
notice of non-renewal is the renewal of the probationary
teacher’s contract by operation of law for a new one-year
period.
At that point, the probationary teacher has a new one-
year contract -- but that is all he or she has.
remedy is at its end.
The statutory
If the school district fails to honor
that contract, as occurred in this case, the district has
breached the contract and ordinary contract remedies apply.
These include specific performance (that is, reinstatement to
the probationary teacher’s previous position) or contract
damages in the form of back pay and benefits.
I agree with the majority that reinstatement is not an
option in this case.
Id. at 23.
As the majority points out,
the parties were engaged in litigation during the 2004-2005
year, thus ruling out reinstatement during that year, and the
Board properly complied with the notice requirements to inform
Barbour that he would not be reemployed during the succeeding
academic years.
Id. at 20-24.
Because reinstatement is not an
option, the majority correctly concludes that damages (in the
3
form of back pay and benefits) are the only remaining remedy in
this case.
Id. at 24.
The majority’s mistake, in my view, is to omit an important
principle of common law contract damages from that remedy -that is, mitigation.
Colorado law is clear that breach of
employment contract damages are to be offset by earnings from
alternative employment.
See, e.g., Fair v. Red Lion Inn, 943
P.2d 431, 439 (Colo. 1997) (holding that injured employee has
duty to mitigate damages flowing from breach of implied
employment contract by accepting other employment); Dep’t of
Health v. Donahue, 690 P.2d 243, 250 (Colo. 1984) (awarding back
pay with offset for alternative earnings where probationary
employee was discharged without following proper procedures
under state personnel rule).
Here, the majority awards a
contract damages remedy that mistakenly ignores a longstanding
component of the common law.
Robb v. School District No. RE 50(J) addresses a situation
virtually identical to Barbour’s.
In that case, the plaintiff
teacher brought an action against the school district for breach
of an employment contract based on the district’s alleged
failure to properly notify him under the TECDA that his teaching
contract was terminated.
31 (1970).
28 Colo. App. 453, 455, 475 P.2d 30,
The school district had hired another teacher to
fill the position, so reinstatement was not possible.
4
As a
result, damages in the form of lost earnings were awarded, but
the plaintiff’s earnings from his alternative employment were
applied as an offset.
Id. at 461, 475 P.2d at 33.
Likewise, as
the majority acknowledges, Barbour cannot be reinstated because
any right to reinstatement was limited to the 2004-2005 school
year.
Thus, he is entitled to his lost earnings from that year,
but as in Robb, those earnings are subject to offset by his
substitute income.
II.
The majority rejects the mitigation principle for three
reasons, none of which is persuasive.
First, it takes the position that the statute itself
requires full back pay and benefits without mitigation when
there has been insufficient notice of nonrenewal.
28.
Maj. op. at
The statute, however, nowhere states that back pay without
mitigation is required as a remedy for insufficient notice.
Indeed, the only remedy specified by the statute for
insufficient notice is the renewal of the teacher’s contract by
operation of law -- that is, the probationary teacher “shall be
deemed to be reemployed for the succeeding academic year.”
The
statute simply does not address what happens once the
probationary teacher has been awarded a contract renewal by
operation of law but the district refuses to honor it.
As noted
above, the remedy for such a breach is supplied by the common
5
law in the form of specific performance (in the form of
reinstatement) or contract damages, including mitigation.
I thus agree with the majority that the TECDA does not
mention mitigation, maj. op. at 26, but to me that fact is
irrelevant.
The statute only creates a new one-year contract by
operation of law; it does not provide any remedy for breach of
that contract.
Contrary to the majority’s suggestion, id.,
there would be no reason for the General Assembly to add a
mitigation requirement to a contract damages remedy when the
statute does not speak of that remedy in the first place.
If
common law contract damages apply to a breach of the renewed
contract, we need to look at the rules of common law contract
damages in their entirety, including mitigation.
Second, the majority relies on our decision in Norwood.
In
that case, the school district sought to terminate the
employment of Norwood, a probationary teacher, pursuant to the
prior version of the TECDA.
However, the written notice of
termination did not reach Norwood until after the statutory
deadline.
644 P.2d at 14, 16-17.
Norwood commenced an action
seeking a declaration that “she was automatically reemployed as
a teacher for the [subsequent] school year and for a mandatory
injunction reinstating her to her teaching position with full
fringe benefits, back pay, and all statutory entitlements.”
at 14.
The court upheld the trial court’s finding that the
6
Id.
termination notice was improper under the TECDA and further
upheld the award of reinstatement with back pay and fringe
benefits.
Id. at 18.
The vast majority of the court’s opinion discusses the
timeliness of the district’s notice.
Its mention of a remedy is
limited to two paragraphs at the end of the opinion, which
state:
Finally, the school district asserts that the
district court ordered an award of back pay and
fringe benefits without any evidence to sustain
the order.
It predicates this assertion on its
misconception that Norwood’s action was for a
wrongful dismissal and that, therefore, the
proper measure of damages is the difference
between the teacher’s salary and her earnings in
mitigation
during
the
period
of
wrongful
discharge.
Petitioner
misstates
the
nature
of
this
declaratory action, which is not one for damages,
but
rather
is
grounded
on
the
automatic
reemployment statute relating to non-tenured
teachers and which sought a mandatory injunction
reinstating her to the teaching position she
held, as provided by the statute.
The award of
back pay and fringe benefits follows by operation
of
law
upon
her
reinstatement.
We
find
petitioner’s argument to be without merit.
Id. at 17-18 (emphasis added).
Thus, in Norwood, we stated that mitigation in that case
was not an issue due to the nature of Norwood’s particular
declaratory action, “which [was] not one for damages” but rather
sought a reinstatement to the teaching position she held.
at 18.
Norwood actually was reinstated to her teaching
7
Id.
position, and her award of back pay and fringe benefits -presumably for that portion of the year that she had missed -simply “follow[ed] by operation of law upon her reinstatement.”
Id.
The Norwood court therefore did not -- and could not, given
the circumstances of the case -- reach the question posed here,
which is whether mitigation is applicable when reinstatement is
not an option and common law contract damages supply the remedy
for breach of the renewed contract.
Although we rejected the
district’s characterization of Norwood’s claim as one for
damages, we did not reject the district’s argument that, had
Norwood’s action been one for damages, mitigation would be
appropriate.
In other words, we rejected the district’s
description of Norwood’s claim (as one for damages), but not its
statement of the law that mitigation would have applied had its
description of Norwood’s claim been correct.
In sum, there is
no need to “overrule” Norwood on this point, as the majority
posits, maj. op. at 25; Norwood is simply inapplicable.
Importantly, the majority limits Norwood to its facts (that
is, to situations in which reinstatement is possible in the year
following the notice violation) when it addresses the
reinstatement issue in this case.
Maj. op. at 22-23.
As noted
above, in Norwood, we awarded both reinstatement and full back
pay.
Here, Barbour contends that he is entitled to just that --
back pay for the school year following improper notice, 2004-
8
2005, as well as reinstatement in a subsequent year.
The
majority properly rejects this view by noting that Norwood “did
not specifically address” whether reinstatement is required in
every case.
Id. at 22.
Ultimately, it holds that Barbour
cannot receive both reinstatement and back pay because, unlike
in Norwood, reinstatement for the year following the notice
violation is impossible.
Id. at 22-23.
In my view, if Norwood
is to be limited to its facts regarding reinstatement and back
pay, it should be so limited in the context of mitigation as
well.
The majority rejects mitigation on a third ground: public
policy.
It concludes that mitigation would allow school
districts to give insufficient notice “without repercussion” and
leave probationary teachers not “appropriately compensated.”
Id. at 28.
In my view, mitigation would lead to neither of
these results.
The goal of contract damages is to place the
plaintiff in the same position he or she would have been in had
the breach not occurred -- not one that is better or worse.
Donahue, 690 P.2d at 250; Lanes v. O’Brien, 746 P.2d 1366, 1373
(Colo. App. 1987).
As applied to this case, Barbour got paid
more in his alternative employment than what he would have made
at Hanover Junior-Senior High School, but “the change of
employment meant an increase in Barbour’s daily commute of
seventy-seven miles and his loss of three federal and private
9
grants.”
Maj. op. at 6.
The appropriate damages remedy for the
breach of Barbour’s renewed contract would be the difference
between what Barbour would have made had he worked at Hanover
for a year (including his grant money), and what he did in fact
make at his alternative employment (less his increased travel
costs).
This is “appropriate” compensation for Barbour under
longstanding common law contract damages.
App. at 461, 475 P.2d at 33.
See Robb, 28 Colo.
It also means that, contrary to
the majority’s concern, the school district’s insufficient
notice will have a “repercussion” in the form of a damage award
it must pay.
III.
The statutory remedy for the district’s improper
notification of Barbour is a one-year contract renewal by
operation of law.
When the district refused to honor that
renewed contract, Barbour’s remedy was common law contract
damages.
Because the majority determines that mitigation -- a
longstanding principle of contract damages -- is inapplicable to
this case, I respectfully dissent with respect to Part II.C.2 of
its opinion.
I am authorized to state that JUSTICE RICE joins in this
concurrence and dissent.
10
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