AGO 84-5.

• Case Date: March 29, 1984
• Court: Colorado

Colorado Attorney General Opinions 1984. AGO 84-5. March 29, 1984Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 84-5 AG Alpha No. ED AD AGAMN Calvin M. Frazier Commissioner of Education Department of Education 303 West Colfax Avenue Denver, CO 80203 RE: Amendments to Teacher Employment, Dismissal, and Tenure Act, C.R.S. 1973, 22-63-101 et seq.Dear Dr. Frazier: I am writing in response to your request for a formal legal opinion concerning amending or repealing the Teacher Tenure Act. QUESTIONS PRESENTED AND CONCLUSIONS Without addressing any specific legislation or policy objective, your inquiry raises two questions: Can the general assembly substantially change the status of someone who is already a tenure teacher by repealing or amending the Teacher Employment, Dismissal, and Tenure Act, C.R.S. 1973, 22-63-101 et seq.? My conclusion is that under certain circumstances the general assembly may substantially change or repeal the Teacher Tenure Act so as to apply to tenure teachers. Can the general assembly amend the Tenure Act to allow different dismissal and review procedures to be utilized? My conclusion is that the legislature can provide the opportunity for such pilot projects, but may not mandate them. ANALYSIS The initial inquiry must be whether the Teacher Tenure Act provides contractual rights to those teachers who have gained tenured status, i.e., a vested property right, or whether this legislation merely is a statement of legislative policy curtailing the power of local school districts. See Phelps v. Board of Education of the Town of West New York, 300 U.S. 319 (1937); Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938). Several Colorado Supreme Court cases indicate that the Teacher Tenure Act provides contractual rights to those teachers who have already gained tenure status. Maxey v. School District, 158 Colo. 583, 408 P.2d 970 (1965). Accord Marzec v. School District, 142 Colo. 83, 349 P.2d 699 (1960). See Howell v. Woodlin School District, 198 Colo. 40, 596 P.2d 56, 60 (1979) ("by its nature /the grant of tenure/ engenders a reasonable and objective expectancy of continued employment ... even though not a guarantee under all circumstances" and is a "constitutionally protected property right."). The prohibition against passing laws which impair the obligation of contracts applies only to those contractual rights which have vested. In this instance the right of tenure would vest when the teacher entered the fourth year of continuous teaching as provided by C.R.S. 1973, 22-63-112. Vested rights, however, do not "accrue to thwart the reasonable exercise of the police power for the public good." Lakewood Pawnbrokers, Inc. v. Lakewood, 183 Colo. 370, 517 P.2d 834 (1974) and Ohlson v. Phillips, 304 F. Supp. 1152 (D. Colo. 1969), aff'd, 397 U.S. 317, reh'g denied, 397 U.S. 1081. This is because all rights are held subject to the police power and neither the state nor its political subdivisions can contract the...