by Julie Pelegrin
In December of 2015, we told you about the case of Masters v. School District No. 1, in which several teachers who were placed on unpaid leave by the Denver Public School District (DPS) sued the district for violating what they claimed were statutory rights to continued employment. Specifically, they claimed that the teacher employment statute creates a private contract between the teachers and the school district, and certain provisions of S.B.10-191 (S.B. 191) unconstitutionally interfere with that contract. They also claimed that the teacher employment statutes create a property interest in continued employment, which S.B. 191 unconstitutionally takes away.
S.B. 191 includes several provisions, one of which says that a teacher cannot be placed at a public school unless the principal of the school and two teachers who represent the school staff agree to the placement. This is called the “mutual consent” provision—both the employer (principal) and the employee (teacher) have to agree to the placement. S.B. 191 also says that, if a teacher who is displaced cannot secure a mutual consent placement within the shorter of 12 months or two hiring cycles, the school district may place the teacher on indefinite unpaid leave until he or she secures such a placement. Once the teacher secures a mutual consent placement, the school district must reinstate the teacher’s salary and benefits at the level they would have been at if the teacher had not gone on unpaid leave. To further refresh your memory regarding S.B. 191 and the facts of the Masters case, check out “Court Continues Consideration of S.B.191 Provisions for Unpaid Leave”.
In December of 2015, the Colorado Court of Appeals sided with the teachers, agreeing that S.B. 191’s unpaid leave provisions interfered with the teachers’ employment contract and unconstitutionally deprived them of a property interest in their salaries and benefits. But, we noted at the end of our article that DPS had just filed for review by the Colorado Supreme Court.
The Court granted review and on March 12 of this year handed down its decision reversing the court of appeals. Unlike the court of appeals, the Court decided that the teacher employment law passed in 1990 (the 1990 law) not only removed the word tenure, but also removed any legitimate expectation that a teacher may have in continued employment with the school district. For this reason, the teacher employment law does not create a contractual relationship between teachers and their employing school districts. And the teacher employment law does not give teachers a vested property interest in salary and benefits, so placing the teachers on unpaid leave does not violate their constitutional right to due process.
No Contractual Relationship
The teachers argued that the 1990 law created a contractual relationship between teachers and their employing school districts and that the provisions of S.B. 191 unconstitutionally interfere with that contract by allowing the school district to place them on unpaid leave.
In considering this claim, the Court found that, to interpret a statute as creating a contract, there must be specific language indicating that the General Assembly intended to create a contract that it would be unable to interfere with later. The teacher employment law in place before 1990 (the old law) used the word “tenure.” By definition, a teacher who has tenure cannot be summarily fired and thus has an expectation of continued employment. The old law also used entitlement language, stating that under certain circumstances a teacher was “entitled” to employment as a teacher. So the Court agreed with the court of appeals that the old law created a contractual relationship.
But when the General Assembly rewrote the teacher employment law in 1990, it removed the word tenure and it removed any references to an entitlement or to the duration of employment. The Court found that, by removing these references when the General Assembly passed the 1990 law, the General Assembly specifically did not intend to create an employment contract for teachers that it could not interfere with later. The 1990 law did not create a contractual relationship between teachers and their employing school districts. Therefore, the mutual consent requirements of S.B. 191 do not unconstitutionally interfere with a contract.
No property interest in salary and benefits
The Court also considered the teachers’ claim that they have a property interest in receiving their salaries and benefits that the school district cannot take away without due process—providing them at least notice and an opportunity to be heard.
The Court agreed that the constitution states a person cannot be deprived of “life, liberty, or property, without due process of law.” However, the constitution doesn’t define property; it is defined by rules or understandings that come from an independent source, such as state law. So, again, the Court looked at the 1990 law to determine whether it creates a property interest that is protected by the constitution. And they concluded that it does not.
As mentioned before, the 1990 law does not use the term “tenure” or other words of entitlement or other suggestions that employment—and the right to receive salary and benefits as a result of employment—is guaranteed to continue for any length of time. The General Assembly removed all of that language in 1990, and therefore the teacher employment statute does not create a property interest in salary and benefits. For this reason, when DPS placed the teachers on unpaid leave, it did not violate their due process rights because their expectation of receiving salary and benefits is not protected by due process.
It’s interesting to note that the Supreme Court decided a similar case at the same time that it decided the Masters case. Johnson v. School District No. 1 also involved a teacher—Linda Johnson—who sued DPS after they placed her on unpaid leave when she could not secure a mutual consent placement. She brought her case in federal court, claiming a violation of the federal constitutional guarantee of due process. The federal district court found that, since her employment was not actually terminated, she was not deprived of a property interest. She appealed the decision to the Tenth Circuit Court of Appeals, and they certified the legal questions to the Colorado Supreme Court.
The Court took the same approach in the Johnson case that they took in the Masters case and came to the same conclusion. In Johnson, they specifically found that, in passing the 1990 law and specifically removing the word “tenure” and the durational and entitlement language, the General Assembly intentionally eliminated any property interest in salary and benefits for teachers.
Application of the mutual consent requirement
The Johnson case addressed another interesting question concerning the mutual consent provision. Ms. Johnson argued that the mutual consent requirement should apply only if a teacher was removed from a school for one of the reasons listed in the statute: an enrollment decrease; restructuring for turnaround; phasing out a program; reducing programs; or reducing buildings, including closures, consolidations, or reconstitutions.
In Ms. Johnson’s case, DPS had tried to fire her in 2008, but after her termination hearing, the hearing officer recommended that she be retained. So DPS assigned her to a probationary position at a school building for the 2009-10 school year, which was extended for the next year. She was assigned to a different school for the 2010-11 school year. Throughout this time, Ms. Johnson tried to secure a permanent position, but was unable to do so. At the end of the 2010-11 school year, DPS put her on indefinite unpaid leave under the mutual consent provisions of S.B.191.
Ms. Johnson argued that, because she was not displaced for one of the causes listed in the statute, she should not be subject to the mutual consent placement requirements. However, in interpreting the statute, the Court found that the reasons for displacement listed in the statute were not exclusive. In applying various canons of statutory construction, the Court concluded that, in reading the statute as a whole, it appears the General Assembly intended the mutual consent provisions to apply regardless of the reason for which the teacher was displaced,. And to hold that mutual consent applies if the teacher was displaced because of one of the listed reasons, which have nothing to do with the teacher’s performance, but does not apply if the teacher was displaced specifically because of her performance would be absurd.
So, it appears that the constitutionality and application of the mutual consent provision of S.B.191 are settled issues. And, going forward, it appears that a teacher cannot claim to have a property right in his or her employment, salary, or benefits.