Holdridge v. Board of Education of Keenesburg RE-3

Judge PIERCE

dissenting.

Most of the basic facts are not in dispute in this action. The principal fact that cannot be avoided is that the only written contract of employment that Holdridge had over the many years that she taught in the Keenes-burg Schools was with BOCES. Although there were other contracts between the School District and BOCES that allowed BOCES to provide the services of Holdridge to the School District and that further provided that the School District would pay BOCES for those services, there was never a contract between Holdridge and the School District. Therefore, Holdridge was never a tenured teacher of the district under the Teacher Employment, Compensation, and Dismissal Act. See Nagy v. Board of Education, 31 Colo.App. 45, 500 P.2d 987 (1972).

The power and authority to employ teachers in a school district rests exclusively with its board of education and cannot be delegated. University of Colorado v. Silverman, 192 Colo. 75, 555 P.2d 1155 (1976); Big Sandy School District No. 100-J v. Carroll, 164 Colo. 173, 433 P.2d 325 (1967). The only way Holdridge could have become employed by the School District would have been by action of its board of education at a public meeting by way of roll-call vote. Section 22-32-108(6), C.R.S. (1993 Cum.Supp.); Robb v. School District No. RE 50J, 28 Colo.App. 453, 475 P.2d 30 (1970). That did not occur.

The fact that some of the contracts between Holdridge and BOCES indicate that BOCES would assign her to do service for the School District does not qualify to make her an employee of the School District because the School District was not a party to these contracts. The employment of teachers cannot be delegated to another entity by a school board. Big Sandy School District No. 100-J v. Carroll, supra.

I do not dispute that, once BOCES provided the services of Holdridge to the School District, Holdridge was placed in intimate daily contact with the District and was expected to conform to its policies. That close cooperation is anticipated by the BOCES statute. Section 22-5-105.5(1), C.R.S. (1993 Cum.Supp.). But, such circumstances do not cause a contract to be created here.

Nor can common law principles be used to cancel the clear provisions of the statute as to who is the employer here. Gavend v. City of Thornton, 165 Colo. 182, 437 P.2d 778 (1968); Robb v. School District, supra.

Ratification is the adoption and confirmation by an entity with knowledge of all material facts of a contract entered into on behalf of the entity by another who at the time assumed, without authority, to act as the entity’s agent. Nunnally v. Hilderman, 150 Colo. 363, 373 P.2d 940 (1962). Such a contract can only be ratified under the same authority and formality required to enter into such a contract. Laybourn v. Wrape, 72 Colo. 339, 211 P. 367 (1922). Those formalities were not executed by the School District here, so no ratification occurred.

The facts here are completely inapposite to those in School District No. 25 v. Stone, 14 Colo.App. 211, 59 P. 885 (1900).

I would reverse the ruling of the trial court and hold that Holdridge was not an employee of the School District and, therefore, was not entitled to a hearing under the statute.