dissenting:
The issue here is whether a reduction in professional staff work force (RIF) policy promulgated and adopted by the district board of education pursuant to statutory authority applied to the petitioners who were probationary teachers laid off after the policy went into effect. The majority opinion relies on the analysis in Continental Air Lines v. Keenan, 731 P.2d 708 (Colo.1987), involving an at-will, private employee, to find that the RIF policy did not apply to the petitioners.
While certainly there are many similarities between the legal principles applicable to private employment and those applicable to public employment, public employment is subject to the added requirement of procedural due process which does not apply to private employment. I agree that a RIF policy adopted by a private employer is subject to the contract and promissory es-toppel analysis of Keenan and other related cases. See, e.g., Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). However, a personnel policy which has been properly adopted by a governmental entity is subject to a different analysis. Under concepts of procedural due process, such a policy is binding on the public employer and enforceable by the employee. Department of Health v. Donahue, 690 P.2d 243 (Colo.1984).
In Donahue, the plaintiff was a probationary state employee who was discharged without a predisciplinary hearing as required by the personnel regulation. The Department of Health argued that the pre-disciplinary hearing did not apply to a probationary employee who could be dismissed at any time as long as her dismissal was not based on an impermissible reason such as discrimination. Id. at 248. We agreed that a probationary employee had no constitutional entitlement to a hearing before dismissal and that, absent an applicable statute or regulation, the Department’s action would have been proper. Id. at 249. However, we found that the personnel rule requiring a predisciplinary hearing was applicable to probationary employees and that the Department violated Donahue’s procedural due process rights by discharging her without a hearing. We explained:
When the state, however, promulgates a regulation that imposes on governmental departments more stringent standards than are constitutionally required, due process of law requires those departments to adhere to those standards in discharging employees. Perry [v. Sindermann] 408 U.S. 593, 92 S.Ct. 2694 [33 L.Ed.2d 570 (1972)]; Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Mazaleski v. Treusdell, 562 F.2d 701 (D.C.Cir.1977); Shumate v. State Personnel Board, 34 Colo.App. 393, 528 P.2d 404 (1974). Personnel Rule 7-3-1 is such a standard. Nothing in the rule limits the predisciplinary meeting to certified employees only, and we decline to read such a limitation into it.
Id. (footnote omitted).
The case now before us is not a case like Seeley v. Board of County Commissioners, 791 P.2d 696 (Colo.1990), where the majority found that the sheriff was prohibited by statute from adopting a procedural manual restricting his ability to discharge deputy sheriffs. Here the RIF policy adopted by the school board is within its statutory authorization. § 22-32-109(1)(a)-(c) and § 22-32-110(1)(k), 9 C.R.S. (1988). There is no contention that the RIF policy was not properly promulgated. Accordingly, even though the district school board was not obligated to adopt a RIF policy, its decision to do so was within its discretion and the policy is binding on the board until it is altered or amended. Hence, I would conclude that it is enforceable by a teacher to whom it applies.
Whether the RIF policy applies to the petitioners requires turning to the terms of the policy itself to determine if the policy’s coverage is limited to tenured teachers. Paragraphs 4, 5, and 6 provide:
*3854. After consideration of transfers within the areas of certification, reduction of positions will occur in the following order:
a) all probationary teachers
b) least senior tenured teachers
e) progressively up the seniority list.
5. Those teachers who are laid off as a result of the reduction in force will be:
a) considered on a leave of absence for one year
b) allowed to remain in the insurance program at their expense for one year
c) given consideration for substitute teaching for one year
6. Any teachers who are recalled in the following year from the reduction in force will be considered strictly on a seniority basis.
While paragraph 4 makes the distinction between tenured teachers and probationary teachers, paragraphs 5 and 6 do not make such a distinction. The terms “those teachers who are laid off” and “any teachers who are recalled” do not suggest that nontenured teachers are excluded from the policy. The express inclusion of probationary teachers in paragraph 4 which covers the full range of teaching positions strongly suggests that nontenured teachers are included in the policy. Further, attaining seniority is not limited to tenured teachers. In paragraph 3, the policy provides that, “Seniority shall mean the number of years of professional service in this district.” Significantly absent are any terms qualifying the calculation of seniority to tenured teachers. Thus, absent any notice to the contrary, nontenured teachers as well as tenured teachers were entitled to the benefits of the plain meaning of the policy. Donahue, 690 P.2d at 249.
Accordingly, I respectfully dissent. I would reverse the court of appeals.
I am authorized to say that Justice LOHR joins in this dissent.