Justice Mullarkey on Contract Enforcement
From Judgepedia
Justice Mullarkey concurred in the majority opinion, authored by Justice Martinez, which, in a 5-2 decision and over the vigorous dissents of Justices Eid, and Rice, found that a teacher whose contract was not renewed, but who did not recive timely notice of this failure to renew, (1) was entitled to an entire year's salary; (2) was under no obligation to attempt to mitigate her damages by finding another job; and (3) was entitled to a year's salary even though he immediately found an equal-paying job.
The dissenting opinion, authored by Justice Allison Eid, objected to the finding that the teacher was entitled to an entire year of back pay where he had not lost a year's salary, since he immediately found another job. The dissent noted that Colorado contracts law is "clear that breach of employment contract damages are to be offset by earnings from alternative employment," and that since this was an employment contract, the court should apply common law contract principles, such as the duty to mitigate damages, and reduce the plaintiff's damages award to the extent that lost earnings were avoided.
* ON OPEN MEETINGS AND GOVERNMENT TRANSPARENCY:"All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times. * * * Important policy decisions cannot be made informally * * *." Consequently, the decision regarding whether to renew the teacher's contract should have been made in public.
*ON PROVIDING NOTICE TO TEACHERS: "[W]hen the decision to terminate a probationary teacher is made at an open meeting, a school board must also provide timely, written notice of termination to the teacher. Failure to provide timely written notice results in the automatic reemployment of the probationary teacher."
*ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "Mitigation is unnecessary in violations of the statute that governs probationary teacher employment situations * * * the statutory requirement of an additional year of employment prevails over the common law preference for mitigation."
*ON DEFERENCE TO THE LEGISLATURE: "For over forty years, some variation of the probationary teacher renewal statute has been state law. During that time, it has never included a mitigation provision for a wrongfully terminated teacher. That is not to say that the General Assembly has lacked the opportunity to include such a provision. Since the statute's adoption in 1963, the General Assembly has amended the specific provision in question over a dozen times, including completely repealing and reenacting the statute in 1990. * * * [W]e believe it would usurp legislative power for us to change our interpretation to require mitigation simply because we might see the statute differently if we were writing on a clean slate today."
*ON COMMON LAW CONTRACT PRINCIPLES: "That the teacher successfully finds alternative work is immaterial to the fact that the teacher is deemed employed by the school district and entitled to compensation. * * * [W]e find persuasive policy reasons for not requiring mitigation by a probationary teacher [whose contract is not renewed]. If, as here, a school board provided inadequate notice of termination beyond the disputed year and the teacher found alternative employment, the school board could wrongfully-terminate a teacher without repercussion. The statute protects the teacher from a board that fails to give timely notification of termination. It is inconsistent with the purpose of [the statute] that a teacher be deemed employed but neither allowed to return to work nor appropriately compensated for the time employed."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "When [a] renewed contract is subsequently breached by the district, as occurred in this case, the probationary teacher is entitled to ordinary contract remedies. These include * * * contract damages. Because mitigation is a longstanding principle of contract damages-a principle that the majority fails to employ in this case-I respectfully dissent from Part II.C.2 of the opinion."
* ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES: "The majority's mistake, in my view, is to omit an important principle of common law contract damages from that remedy-that is, mitigation. Colorado law is clear that breach of employment contract damages are to be offset by earnings from alternative employment. Here, the majority awards a contract damages remedy that mistakenly ignores a longstanding component of the common law."
*ON ADHERENCE TO COMMON LAW CONTRACT PRINCIPLES AND PUBLIC POLICY: "The majority rejects mitigation on a third ground: public policy. It concludes that mitigation would allow school districts to give insufficient notice “without repercussion” and leave probationary teachers not “appropriately compensated.” In my view, mitigation would lead to neither of these results. The goal of contract damages is to place the plaintiff in the same position he or she would have been in had the breach not occurred-not one that is better or worse. As applied to this case, [the terminated teacher] got paid more in his alternative employment than what he would have made at Hanover Junior-Senior High School * * *. The appropriate damages remedy for the breach of Barbour's renewed contract would be the difference between what [the teacher] would have made had he worked at Hanover for a year (including his grant money), and what he did in fact make at his alternative employment (less his increased travel costs)."
