August 20, 2017

Colorado Supreme Court: School District Did Not Give Thing of Value to Any One Candidate

The Colorado Supreme Court issued its opinion in Keim v. Douglas County Public Schools on Monday, July 3, 2017.

Campaign Finance—Fair Campaign Practices Act—Campaign Contributions.

The supreme court reviewed the court of appeals’ conclusion that a school district did not make a prohibited campaign contribution in a school board election campaign under C.R.S. § 1-45-117(1)(a) of Colorado’s Fair Campaign Practices Act and article XXVIII, § 2(5)(a)(IV) of the Colorado Constitution. Under § 2(5)(a)(IV), a “contribution” requires that (1) something of value (2) be given to a candidate, directly or indirectly, (3) for the purpose of promoting the candidate’s nomination, retention, recall, or election. Here, the school district commissioned and paid for a report supportive of the district’s reform agenda using public funds. However, because the school district did not give something, directly or indirectly, to any candidate when it publicly disseminated an email containing a link to the report, the court concluded that the school district did not make a prohibited contribution under these Colorado campaign finance provisions. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: School Board’s Finding of Fact Must Be Warranted by Hearing Officer’s Findings

The Colorado Supreme Court issued its opinion in Ritzert v. Board of Education of the Academy School District No. 20 on Monday, November 23, 2015.

Teacher Employment, Compensation, and Dismissal Act—Procedure for Dismissal—Insubordination.

In this case, the Supreme Court considered whether a school board’s decision to dismiss a non-probationary teacher for insubordination, despite a hearing officer’s recommendation that the teacher be retained, was arbitrary, capricious, or legally impermissible under the Teacher Employment, Compensation, and Dismissal Act of 1990. When a teacher faces charges of insubordination, the hearing officer and school board must consider whether the teacher has intentionally refused to obey a “reasonable order.” The Court held that whether a school district’s order is reasonable is a finding of ultimate fact within the discretion of the governing school board. Still, that finding must be fully warranted by the hearing officer’s findings of evidentiary fact. This requires a school board to assess reasonableness on a case-by-case basis after consideration of all facts found by the hearing officer. The Court concluded that the school board in this case failed to adequately assess the reasonableness of the school district’s order, and therefore its decision to dismiss the teacher for insubordination was arbitrary and capricious. The Court reversed the court of appeals’ judgment and remanded the case to the school board to reinstate the teacher.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evaluative Report Is Not Campaign Contribution

The Colorado Court of Appeals issued its opinion in Keim v. Douglas County School District on Thursday, May 7, 2015.

Campaign Finance—Fair Campaign Practices Act Contribution.

The Douglas County School District (District) is a political subdivision of the state and is subject to the Colorado Fair Campaign Practices Act (FCPA). Petitioner Keim alleged that in 2009, the District began implementing a reform agenda, and that after the 2011 school board election, all seven members of the District’s board supported this agenda, as did their newly appointed superintendent. Keim was a candidate for one of four open positions on the board in the November 2013 election.

On February 6, 2013, the District signed an Independent Contractor Agreement with the American Enterprise Institute (AEI). The AEI Agreement provided a white paper denominated the Hess Report. There were no declared candidates for the board when the AEI Agreement was signed. AEI’s fee was $30,000, paid by the District and the Douglas County School District Foundation. The District’s payment was funded by a grant from the Daniels Fund.

The record reflected that the content of the Hess Report was influenced by the District and that revisions were made to it as requested by the District. The final version of the Hess Report was received in September 2013. It promoted the reform agenda and discussed the current board and how it could fuel reform. It noted that the American Federation of Teachers might spend substantial sums to defeat incumbents in the upcoming election. On September 18, the District included an Internet link to the Hess Report in its weekly e-newsletter, which reached approximately 85,000 Douglas County residents.

Keim filed this action, alleging the District had used public resources “to support a slate of candidates running for school board in violation of the FCPA.” Keim also alleged that District resources were used in the “research, compilation, preparation and dissemination” of the Hess Report, that it was political in nature, and that it was being used to influence the outcome of the election. Following a trial, the administrative law judge (ALJ) determined that by contracting for and disseminating the Hess Report, the District had made a contribution in violation of the FCPA. The District appealed.

The FCPA prohibits political subdivisions from making “any contribution in campaigns involving the nomination, retention, or election of any person to any public office.” “Contribution” is defined in Colo. Const. art. XXVIII, § 2(5) as “[a]nything of value given, directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.” The case turned on the meaning of “given, directly or indirectly, to the candidate.” The Court of Appeals found that this phrase requires that a thing of value be put in the possession of or provided to a candidate or someone acting on the candidate’s behalf, with the intention that the candidate receive or make use of the thing of value provided to promote the candidate’s election.

The Court found that the evidence did not support the ALJ’s conclusion, because the Hess report was not given, directly or indirectly, to a candidate. The order was therefore reversed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Parcel of Land Sold to School District Was Never a Park

The Colorado Court of Appeals issued its opinion in Friends of Denver Parks, Inc. v. City & County of Denver on Thursday, December 26, 2013.

City Land—Park—Common Law—Denver Charter § 2.4.5.

Defendant, the City and County of Denver (City), agreed to transfer a parcel of land (southern parcel) to a school district so that the district could build a school on it. Plaintiffs, an organization called Friends of Denver Parks, Inc. and several other interested parties, tried to file a referendum petition to repeal the ordinance transferring the southern parcel; however, the City’s Clerk and Recorder refused to accept the petition. Plaintiffs then filed a motion for a preliminary injunction to enjoin the City’s transfer of the southern parcel to the school district. The court denied both requests.

On appeal, plaintiffs argued that the trial court erred in denying their requested relief because (1) the City’s conduct over the years had dedicated the southern parcel as a park under the common law; and (2) the City’s charter requires that voters approve the transfer of a “park belonging to the city as of December 31, 1955.” The Court of Appeals disagreed on both counts.

Denver Charter § 2.4.5 sets forth the sole mechanism as of December 31, 1955 for creating parks and transferring parks. The City did not pass an ordinance dedicating the southern parcel as a park pursuant to § 2.4.5 after December 31, 1955. Additionally, the record did not clearly establish that the City, through its unambiguous actions, had demonstrated an unequivocal intent to dedicate the southern parcel as a park on or before December 31, 1955. Therefore, Denver Charter § 3.2.6 authorized the City to sell or transfer it without following the requirements of § 2.4.5, and the trial court did not abuse its discretion when it determined that plaintiffs did not establish a reasonable likelihood of success on the merits of this issue. The order was affirmed.

Summary and full case available here.