Moffat County School District Re-No. 1 v. Industrial Commission

VAN CISE, Judge. Petitioner, Moffat County School District RE-No. 1 (school district), seeks review of the Industrial Commission’s award of full unemployment compensation benefits to respondent Patricia Blaine (teacher) pursuant to § 8-73-108(4), C.R.S. (1985 Cum.Supp.). We set aside the order. In October 1983, following a hearing pursuant to the Teacher Employment, Dismissal, and Tenure Act, § 22-63-101 et seq., C.R.S. (1985 Cum.Supp.), a hearing officer entered findings and a recommendation that the teacher not be dismissed from her position as a tenured high school English teacher. In November 1983, the board of education (board) of the school district adopted the hearing officer’s findings of evidentiary facts but reversed his findings of ultimate facts and his recommendation. Instead, it determined, based on the hearing officer’s findings of evidentiary facts, that the teacher was guilty of neglect of duty and ordered her dismissal. The teacher petitioned this court for review, and the order of dismissal was affirmed in Blaine v. Moffat County School District RE-No. 1, 709 P.2d 96 (Colo.App.1985). In July 1984, while judicial review was pending, the teacher filed for unemployment compensation. A referee determined that the school district was responsible for the separation, that the teacher was discharged at the convenience of the school district, and that insufficient grounds existed for the denial of unemployment benefits based on the separation. The Commission affirmed. On review, the parties agree that the doctrine of collateral estoppel is applicable to this unemployment action. They also agree: (1) that the issue for decision in this action is identical with the one previously presented in the teacher dismissal case— the cause for the teacher’s separation from employment; (2) that the same parties were involved in both actions; (3) that both had a full and fair opportunity to litigate the issue in the dismissal case; and (4) that there was a final judgment on the merits in that case. Therefore, the referee properly held that relitigation was precluded and that the decision on the issue in the dismissal case was conclusive in the unemployment action. See Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974), and Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). However, the school district contends, and we agree, that the referee and the Commission erred in regarding the eviden-tiary and ultimate findings of fact and the recommendation of the hearing officer as the “final judgment” in the dismissal case, and in disregarding the ultimate findings of the board that the teacher was guilty of neglect of duty. The board, and not the hearing officer, has the power to determine what facts constitute the statutory grounds for dismissal. Ricci v. Davis, 627 P.2d 1111 (Colo.1981); Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978). And, the hearing officer's recommendation was just that, a recommendation and nothing more. Blair v. Lovett, supra. The board’s determination constituted the “final judgment” upon which collateral estoppel is based. Jefferson County School District No. R-1 v. Industrial Commission, 698 P.2d 1350 (Colo.App.1984). And, the affirmance of the board’s order on review in this court preserved the [997] finality of that judgment. By that ruling, the teacher was disqualified from a full award of benefits. See § 8-73-108(5)(e)(VII), (VIII), and (IX), C.R.S. (1985 Cum.Supp.). Also, the referee erred in basing his ruling in part on the alleged behavior of, and the unequal disciplinary sanction imposed by the board on, the non-teacher employee who was involved, to a lesser degree, in the same incident that caused the teacher’s dismissal. For a discussion of that issue, see Blaine v. Moffat County School District RE. No. 1, supra. See also, Ramirez v. Civil Service Commission, 42 Colo.App. 383, 594 P.2d 1067 (1979). The Commission’s order is set aside and the cause is remanded for further proceedings consistent with this opinion. SMITH, J., concurs. STERNBERG, J., dissents.