concurring in part and dissenting in part:
I agree with the majority’s explication of the relative duties and powers of the hearing officer and the school board and with its construction of the 1979 amendment to section 22-63-117(10), 9 C.R.S. (1983 Supp.). I also agree that the school board acted within the bounds of its authority in finding as an ultimate fact that Patricia Blaine’s conduct in this case amounted to neglect of duty under section 22-63-116, 9 C.R.S. (1987 Supp.). However, in my opinion the school board abused its discretion by dismissing Blaine instead of imposing one of the other available options of retention or probation. I therefore respectfully dissent.
A school board’s function in reviewing a hearing officer’s findings of fact and recommendations is not at an end when it concludes that the evidentiary facts found by the hearing officer justify a finding of ultimate fact by the school board that one of the grounds for dismissal specified in section 22-63-116 has been established. The board then must “take one of the three following actions: The teacher be dismissed; the teacher be retained; or the teacher be placed on a one-year probation; ...” § 22-63-117(10), 9 C.R.S. (1983 Supp.). In selecting the appropriate action, the school board exercises a discretionary function. Consistent with the board’s responsibility for administration of the school, it is appropriate that such discretion be broad.
This is not to say, however, that the board’s authority to select the appropriate action following a finding of grounds for dismissal is absolute and unreviewable. Rather, as the majority recognizes, both the ultimate fact found and the sanction selected must be warranted by the eviden-tiary findings of the hearing officer. Majority op. at 1290-91. Moreover, the legislature has provided for broad judicial review of any order of the board under the Teacher Tenure Act. See Umberfield v. School Dist. No. 11, 185 Colo. 165, 171-72, 522 P.2d 730, 733 (1974). Section 22-63-117(11), 9 C.R.S. (1983 Supp.), provides that judicial review is governed by section 24-4-106(11), 10 C.R.S. (1982). Section 24-4-106(11)(e) provides that the standard of review as set forth in section 24-4-106(7) applies to appeals brought under subsection (11). Section 24-4-106(7) authorizes a reviewing court to set aside a school board’s order if it constitutes “an abuse or clearly unwarranted exercise of discretion.” In the present case, I believe that the severe sanction of dismissal is not warranted by the evidentiary findings and that the school board exceeded the limits of its admittedly broad discretion in discharging Patricia Blaine from her employment as a tenure teacher.
The school board accepted all of the hearing officer’s findings of evidentiary fact. Blaine was head cheerleader sponsor for *1295student cheerleaders in the Moffat County School District. She accompanied eight female student cheerleaders to a district basketball tournament in Grand Junction. There, while eating pizza with the student cheerleaders in Blaine’s motel room, Blaine consumed a beer but did not offer beer to any of the students. Later in the evening, Blaine and her assistant discovered a party in progress in one of the two rooms in which the cheerleaders were staying. Some of the cheerleaders were drinking beer. Blaine had no prior knowledge of the party and had given no prior approval to anyone for the conduct of the party or for beer to be obtained or consumed at the party. Blaine was inexperienced in how to handle the situation with which she was confronted. She first attempted to get the cheerleaders to stop consuming beer by discussing with them the possible discipline which could be imposed upon the students, Blaine and her assistant. When this proved unsuccessful, Blaine elected to stay with the students and take no further action to attempt to stop the beer drinking. She participated in a game at the cheerleaders’ invitation and consumed one-half bottle of beer in the course of that activity. The hearing officer found that Blaine would in the future take action to stop such activity and report any students participating therein.
The picture presented by the hearing officer’s findings and the evidence upon which they were based was that of an inexperienced chaperone confronted with a volatile situation involving students away from home and consuming alcohol in their motel room. The evidence reflects without contradiction that the motel was occupied by basketball teams and cheerleading squads from various schools in attendance at the district basketball tournament. On the night of the party, students were roaming the hallways, moving from room to room and jumping off the second floor balconies. Blaine’s assistant described the scene in the motel as “total chaos.” Blaine elected a non-confrontive approach that resulted in the persons under her supervision remaining safe in their room. Admittedly, she erred in judgment in joining the cheerleaders in drinking and in not taking more aggressive action to terminate the consumption of alcohol. Blaine’s actions, however, were the actions of a concerned and well intentioned but inexperienced chaperone. She was described by the superintendent of schools as a good teacher. Whatever mistakes she made were the product of her attempt to control the cheerleaders during a potentially dangerous night of high school partying.
Blaine’s conduct simply did not warrant the devastating sanction of dismissal of a tenure teacher. While the board could properly conclude that Blaine was guilty of neglect of duty, it was not required to dismiss her. The board had the option to retain Blaine or place her on probation. In my opinion, the board abused its broad discretion by dismissing Blaine when a different course of action was both available and amply justified. Therefore, even though I agree with the majority’s explanation of the law, I dissent from its affirmance of the teacher’s dismissal and would reverse the judgment of the court of appeals.
I am authorized to say that Justice KIRSHBAUM and Justice MULLARKEY join in this concurrence and dissent.