1998.05.14 - Denver Ass_n of Educ. Office Personnel v. School Dist

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Denver Ass'n of Educ. Office Personnel v. School Dist. No. 1, 972 P.2d 1047
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Denver Ass'n of Educ. Office Personnel v. School Dist. No. 1
Court of Appeals of Colorado, Division Two
May 14, 1998, Decided
No. 96CA1491
Reporter
972 P.2d 1047; 1998 Colo. App. LEXIS 124; 163 L.R.R.M. 2179; 1998 Colo. J. C.A.R. 2397

Denver Association of Educational Office Personnel,
Plaintiff-Appellant and Cross-Appellee, v. School District
No. 1 in the City and County of Denver, State of
Colorado; and The Board of Education of School District
No. 1, Defendant-Appellee and Cross Appellant.
Subsequent History: [**1] Rehearing Denied June
11, 1998. Released for Publication March 16, 1999.
Prior History: Appeal from the District Court of the City
and County of Denver. Honorable Larry J. Naves, Judge.
No. 94CV967.
Disposition: JUDGMENT REVERSED AND CAUSE
REMANDED WITH DIRECTIONS.

Core Terms
negotiations, school district, parties, reopen, salaries,
collective bargaining agreement, provisions, changes,
trial court, budget, tentative agreement, reclassification,
annual, summary judgment, requires, multi-year,
employees, increases, recommendation, funding,
salaries and benefits, budget process, initiate, provides,
salaried employee, conditional, benefits, Finance,
issues, existing agreement

Case Summary
Procedural Posture
Plaintiff Denver Association of Educational Office
Personnel (DAEOP) sought review of the judgment of
the District Court of the City and County of Denver
(Colorado) which held that the DAEOP was not entitled
to damages in its action alleging breach of a collective
bargaining agreement. Defendant school district
cross-appealed from a summary judgment entered in
favor of DAEOP as to the issue of breach of contract.
Overview

The DAEOP alleged that the school district violated the
multi-year collective bargaining agreement when it
denied a wage increase. The trial court granted the
DAEOP's motion but denied the district's motion for
summary judgment, finding that the district had
breached the agreement. The trial court held that the
DAEOP was not entitled to damages. On appeal, the
court reversed the denial of the district's motion. Noting
the public policy of preventing deficit spending, codified
at Colo. Rev. Stat. 22-32-110(5) (1997), the court
concluded that the negotiation provision properly
allowed for adjustments based on budget changes at
the state and local level. The court held that any
provision of a multi-year collective bargaining
agreement that limited good faith requests to reopen
negotiations as to compensation and benefits within a
reasonable period after the party became aware of the
need, as a consequence of a legal budget adoption
process at the state or local level, was void as against
public policy and unenforceable. By refusing the district's
request to reopen negotiations the DAEOP waived its
rights to negotiate and was required to abide by the
salary determinations.
Outcome
The court reversed the trial court's judgment that denied
the school district's motion for summary judgment in the
DAEOP's action, which alleged breach of the collective
bargaining agreement. The court remanded for entry of
summary judgment in favor of the school district and
against DAEOP. The court did not considers DAEOP's
contention finding that the reversal rendered them moot.

LexisNexis® Headnotes
Civil Procedure > Appeals > Summary Judgment Review >
General Overview
Civil Procedure > Appeals > Summary Judgment Review >
Standards of Review

Julianna Wade

Page 2 of 10
972 P.2d 1047, *1047; 1998 Colo. App. LEXIS 124, **1
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > General Overview
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > Genuine Disputes
Civil Procedure > ... > Summary Judgment > Entitlement
as Matter of Law > Materiality of Facts

HN1 Summary judgment is a drastic remedy and will be
granted only when the record clearly establishes the
absence of any genuine issue of material fact.
Civil Procedure > Appeals > Standards of Review > General
Overview
Contracts Law > Contract Interpretation > General
Overview
Contracts Law > Contract Interpretation > Ambiguities &
Contra Proferentem > General Overview
Contracts Law > Contract Interpretation > Intent
Contracts Law > Defenses > Ambiguities & Mistakes >
General Overview
Labor & Employment Law > Collective Bargaining & Labor
Relations > Enforcement of Bargaining Agreements
Labor & Employment Law > Collective Bargaining & Labor
Relations > Interpretation of Agreements

HN2 The construction of an unambiguous contract is a
question of law for the court. In order to determine
whether a trial court properly interpreted the collective
bargaining agreement, an appellate court looks primarily
to the language of the agreement to determine and give
effect to the intentions of the parties. Written contracts
that are complete and free from ambiguity will be found
to express the intention of the parties and will be
enforced according to their plain language. Extraneous
evidence is admissible to prove that intent only when
there is ambiguity in the terms of the contract. Moreover,
ambiguity is not created merely because the parties
disagree on the interpretation of the contract.
Contracts Law > Contract Interpretation > General
Overview
Contracts Law > Defenses > Public Policy Violations
Labor & Employment Law > Collective Bargaining & Labor
Relations > Enforcement of Bargaining Agreements

HN3 Agreements reached between teachers'
associations and school districts are intertwined with
the public policy regarding public school spending, as
codified in Colo. Rev. Stat. § 22-1-101 (1997) et seq.,
because such agreements must yield to that legislatively

established policy. Therefore, a court must construe the
collective bargaining agreement in harmony with the
codified public policy.
Contracts Law > Defenses > Public Policy Violations
Business & Corporate Compliance > ... > Labor &
Employment Law > Collective Bargaining & Labor
Relations > Bargaining Subjects
Labor & Employment Law > ... > Employment Contracts >
Conditions & Terms > General Overview

HN4 Colo. Rev. Stat. § 22-32-110(5) (1997) provides:
No board of education shall enter into an agreement
with any group, association, or organization
representing employees of the district which commits
revenues raised or received pursuant to Article 53 of
this title for a period of time in excess of one year unless
such agreement includes a provision which allows for
the reopening of the portion of the agreement relating to
salaries and benefits.
Contracts Law > Contract Conditions & Provisions >
General Overview
Contracts Law > Defenses > Public Policy Violations
Labor & Employment Law > Collective Bargaining & Labor
Relations > Enforcement of Bargaining Agreements
Business & Corporate Compliance > ... > Labor &
Employment Law > Collective Bargaining & Labor
Relations > Bargaining Subjects

HN5 Any provision of a multi-year collective bargaining
agreement is void as against public policy and,
therefore, unenforceable, if it limits any party to such
agreement from requesting in good faith to reopen
negotiations concerning issues of compensation and
benefits within a reasonable period after that party
becomes aware of the need therefor as a consequence
of the legal budget adoption process at either the state
or local level. The limitations set forth in such provisions,
however, remain enforceable as to issues subject to
negotiation other than compensation and benefits.
Counsel: William J. Maikovich, Aurora, Colorado;
Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer,
Cathy L. Cooper, Bradley C. Bartels, Colorado
Education Association, Denver, Colorado, for
Plaintiff-Appellant and Cross-Appellee.
Semple & Mooney, P.C., Martin Semple, Patrick B.
Mooney, Denver, Colorado, for Defendant-Appellee and
Cross-Appellant..

Julianna Wade

Page 3 of 10
972 P.2d 1047, *1047; 1998 Colo. App. LEXIS 124, **1
Judges: Opinion by JUDGE JONES. Taubman, J.,
concurs. Criswell, J., dissents.
Opinion by: JONES

Opinion
[*1049] In this action alleging breach of a collective

bargaining agreement, plaintiff, Denver Association of
Educational Office Personnel (DAEOP), appeals from a
judgment finding that it was not entitled to damages.
Defendants, School District No. 1 in the City and County
of Denver and its governing body, the Board of
Education of School District No. 1 (collectively the
School District), cross-appeal from a summary judgment
entered in favor of DAEOP as to the issue of breach of
contract. We [**2] reverse the summary judgment and,
thus, need not address plaintiff's appeal.
This dispute concerns DAEOP's contention that the
School District violated the parties' multi-year collective
bargaining agreement and reclassification plan when it
unlawfully denied DAEOP members a wage increase in
September 1993.
DAEOP is the exclusive bargaining representative of a
unit of noncertified employees of the School District. It
entered into a collective bargaining agreement with the
School District effective January 1, 1991, through
August 31, 1994. The agreement governed the wages,
salaries, hours, and other terms and conditions of
employment of DAEOP members.
Article 14 of the agreement contains provisions
regarding salaries. This article provides that then
existing salaries of DAEOP members would be
increased by 3.5% each year. It also provides that, if the
parties should agree on a reclassification plan, the
provisions of the plan would be in lieu of the scheduled
salary increases for successive periods commencing,
respectively, September 1991, 1992, and 1993.
Following the execution of the collective bargaining
agreement, the parties agreed upon such a
reclassification plan.
In April [**3] 1993, the School District attempted to
reopen negotiations concerning salary and wage
provisions scheduled to take effect September 1, 1993.
In a letter to DAEOP, dated April 8, 1993, the School
District stated that it was requesting that the parties
reopen negotiations because of an unexpected financial
shortfall caused by the impact of Colo. Const. art. X, 20

(TABOR Amendment), and the failure of the General
Assembly fully to fund the School Finance Act for the
1993-1994 school year. The letter indicated that the
need possibly to maintain "current salary levels by not
implementing any salary increases for the 1993-1994
budget" was noted on April 1, 1993, in a meeting to
review "the current status of the budget process" held
by the district superintendent and the school board.
While the record does not reflect that it challenged the
underlying reasons for the School District's perceived
need to reopen negotiations, DAEOP refused to
negotiate pursuant to the request of the School District.
The School District subsequently adopted the previous
year's salary schedules for the 1993-1994 school year
instead of the schedule provided for in the
reclassification agreement.
DAEOP filed suit, [**4] claiming that the School District
had breached the collective bargaining agreement and
school board policies by unlawfully refusing to pay the
salary increases for the 1993-1994 school year.
The School District responded with a motion for
summary judgment, arguing that its attempt to negotiate
complied with the agreement and, therefore, that
DAEOP had waived its right to relief by refusing to
negotiate. DAEOP filed a cross-motion for partial
summary judgment, arguing that the School District's
request for negotiations was untimely and that,
therefore, the School District's noncompliance with the
salary provisions constituted a breach of contract.
The trial court granted DAEOP's motion and denied the
School District's motion, finding that the School District
had breached the collective bargaining agreement as a
matter of law. A trial was held on the issue of damages,
resulting, in part, in a finding that salaried employees
were not entitled to damages. DAEOP subsequently
filed a motion for a new trial, which the trial court denied.
On appeal, DAEOP asserts that the trial court erred in
finding that DAEOP salaried members were not entitled
to damages, in denying a motion to compel [**5] its
request for discovery, and in denying its motion for a
[*1050] new trial. On cross-appeal, the School District
contends that the trial court erred in granting DAEOP's
motion for summary judgment. We agree with the
School District and, therefore, do not reach the merits of
DAEOP's contentions.
I.

Julianna Wade

Page 4 of 10
972 P.2d 1047, *1050; 1998 Colo. App. LEXIS 124, **5
The School District contends that the trial court erred in
granting summary judgment in favor of DAEOP on the
issue of breach of contract. It argues that the trial court
erroneously found that the School District did not comply
with the collective bargaining agreement provisions
concerning the reopening of negotiations and thereby
breached the agreement by not instituting the agreed
upon salary increase. We agree with the School District.

absence of any genuine issue of material fact.
Dominguez Reservoir Corp. v. Feil, 854 P.2d 791 (Colo.
1993). See C.R.C.P. 56. The parties contend, and we
agree, that there are no genuine issues as to any
material facts with respect to the issues before us and,
thus, that this dispute may be determined by resolution
of the parties' duties under the collective bargaining
agreement.

Article 4 of the collective bargaining agreement,
governing annual negotiations, provides:

HN2 The construction of an unambiguous contract is a
question of law for the court. Fibreglas Fabricators, Inc.
v. Kylberg, 799 P.2d 371 (Colo. 1990). In order to
determine whether the trial court properly interpreted
the collective bargaining agreement, we look primarily
to the language of the agreement to determine and give
effect to the intentions of the parties. See USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo. 1997).

Request for negotiations will be made by the Association
to the Board, or by the Board to the Association, between
March 1 and March 7 of each year during the term of
this Agreement.
....
4.1.10 Tentative agreements reached as a result of
such negotiations will be reduced to writing and will
have conditional written approval of both parties pending
final adoption [**6] and approval of the School District
budget. After such adoption and approval, the final
Agreement will be signed by the Board and Association
and will become an addendum to this Agreement. If
changes in this tentative Agreement are necessary as a
result of a legal budget adoption process, the Agreement
will be subject to negotiation. (emphasis added)
The trial court relied on the introductory language of this
article to conclude that the School District was required
to request negotiations between March 1 and March 7,
and that, by failing to make a timely request, it waived its
rights to bargain over wages.
The School District maintains that the provision in the
agreement for a March 1 to March 7 negotiation period
does not comply with 22-32-110(5), C.R.S. 1997, which
requires that provisions for reopening negotiations as to
compensation be included in all multi-year collective
bargaining agreements, and that, consequently, under
certain circumstances, this language in the agreement
cannot restrict the School District's ability to initiate
negotiations regarding salaries past the March 7
deadline. Instead, the School District relies on the last
sentence of 4.1.10 as authorization [**7] to initiate
negotiations after March 7 based on necessary changes
in the budget. Again, we agree with the School District.
A. Standard of Review
HN1 Summary judgment is a drastic remedy and will be
granted only when the record clearly establishes the

Written contracts that are complete and free from
ambiguity will be found to express the intention of the
parties and will be enforced [**8] according to their plain
language. Extraneous evidence is admissible to prove
that intent only when there is ambiguity in the terms of
the contract. Moreover, ambiguity is not created merely
because the parties disagree on the interpretation of
the contract. USI Properties, Inc. v. Simpson, supra.
[*1051] B. Construction of the Collective Bargaining
Agreement

HN3 Agreements reached between teachers'
associations and school districts are intertwined with
the public policy regarding public school spending, as
codified in 22-1-101, et seq., C.R.S. 1997, because
such agreements must yield to that legislatively
established policy. See Littleton Education Ass'n v.
Arapahoe County School District No. 6, 191 Colo. 411,
553 P.2d 793 (1976). Therefore, we must construe the
collective bargaining agreement here in harmony with
the codified public policy.
The guiding policy behind the statutes regarding school
district funding is that of the prevention of deficit
spending. Section 22-44-115(1), C.R.S. 1997.
Accordingly, the statute mandates that no school district
may commit funds by contract which are in excess of an
annual appropriation. See 22-44-115(3), C.R.S. 1997.
In addition, school districts [**9] are required to adopt
salary schedules and budgets on an annual basis. See
22-63-401, C.R.S. 1997.
The General Assembly has ensured that school districts
comply with the requirements of 22-44-115(3) and

Julianna Wade

Page 5 of 10
972 P.2d 1047, *1051; 1998 Colo. App. LEXIS 124, **9
22-63-401 by requiring them to include a provision
mandating annual negotiations in any contract
concerning wages and salaries that exceeds one year
in duration. This requirement, which is at the heart of the
present dispute, is set forth at HN4 22-32-110(5),
C.R.S. 1997, and provides:
No board of education shall enter into an agreement
with any group, association, or organization
representing employees of the district which commits
revenues raised or received pursuant to Article 53 of
this title for a period of time in excess of one year unless
such agreement includes a provision which allows for
the reopening of the portion of the agreement relating to
salaries and benefits.
This statute was recently interpreted by a division of this
court in Denver Classroom Teachers Ass'n v. School
District No. 1, 911 P.2d 690 (Colo. App. 1995)(DCTA).
Though written after the court here had acted,
nevertheless, the opinion's interpretation of the statute
is instructive in this case.
The dispute [**10] in the DCTA case arose from a
factual situation that, in some respects, is similar to the
one here. The teachers association filed suit against the
school district and board of education, alleging breach
of a collective bargaining agreement caused by the
school district's failure to adopt a wage increase. As
here, the school district attempted to renegotiate the
salary provisions but the teachers association refused.
There, the court granted the school district's
cross-motion for summary judgment on the ground that
language in the contract complying with 22-32-110(5)
permitted the school district to initiate negotiations
concerning salaries and benefits. As to the requirements
of 22-32-110(5), the court stated:
These provisions of state law [22-63-401 and
22-44-115(3)] made it incumbent upon the parties to
allow for annual reopening of salary and benefit
provisions that could result from changes in the funds
available to, or the needs of, the District.
DCTA, supra, 911 P.2d at 695 (emphasis added).
The holding in DCTA suggests that in order to further
the legislative intent behind 22-32-110(5), contractual
provisions allowing for annual negotiations must do
more than simply provide [**11] for the reopening of
negotiations during some agreed upon period each

year. Rather, as specifically indicated in DCTA, the
negotiation provision must have the flexibility to allow
for adjustments in the agreement based on "changes in
the funds available to, or needs of, the district." These
"changes" are those produced by the budget adoption
process at the state and local level, which process is,
generally, outside of the control of either party to these
kinds of collective bargaining agreements.
Furthermore, a restriction on the requirements
necessary to satisfy 22-32-110(5) is inconsistent with
the legislative intent of the statutory scheme regarding
school financing, to wit: to ensure that the state and the
individual school districts maintain fiscal integrity and
that they, in effect, not write a check in one year that
they cannot cash in a [*1052] future year. Consequently,
contractual negotiation provisions which do not provide
the flexibility envisioned by the General Assembly, with
respect to compensation and benefits, fail to promote
the object of the law and, therefore, do not satisfy
22-32-110(5). See In Interest of R.C., 775 P.2d 27
(Colo. 1989).
Here, the trial court found that [**12] the above-quoted
language of Article 4 of the collective bargaining
agreement, specifying the March 1 to March 7 period for
requesting negotiations, complied with 22-32-110(5).
However, the record reflects that the allotted negotiation
period of March 1 to March 7 does not take into
consideration that the annual budget of the school
district typically is adopted after March 7, and indeed,
after the General Assembly appropriates funding for the
public schools. Hence, because this provision requires
the school district to initiate negotiations regarding
salaries and benefits before being apprised of any
changes in its available funds, it cannot comply with the
requirements of 22-32-110(5).
We find, however, that the above-quoted language
specifying that the agreement will be subject to
negotiation as to compensation and benefits if changes
are the result of a "legal budget adoption process" is
consistent with the School Finance Act.
By its plain meaning, this language contemplates
negotiations which necessarily result from changes in
the budget. Furthermore, this language is identical to
the contractual provision which the DCTA court found to
be in compliance with 22-32-110(5). Accordingly, [**13]
we conclude that this provision permits either party to
initiate negotiation of salaries and benefits when budget
changes so require.

Julianna Wade

Page 6 of 10
972 P.2d 1047, *1052; 1998 Colo. App. LEXIS 124, **13
In addition, this provision permits the parties to initiate
negotiations as to salaries and benefits in the narrow
circumstance of budget changes. Therefore, it may be
construed harmoniously with the introductory language
in Article 4, which we interpret as a restriction on
negotiations involving issues other than salary and
benefits. See Pepcol Manufacturing Co. v. Denver
Union Corp., 687 P.2d 1310 (Colo. 1984).
The record here indicates that the School District sought
to reopen the agreement as to salaries after weighing
the impact of the TABOR amendment, and after budget
realities revealed that anticipated financial support
would not be forthcoming, both of which factors made it
extremely difficult for the School District to comply with
the wage increase as contemplated by the agreement.
Because we find that the School District's initiation of
these negotiations was permissible pursuant to the
language in Article 4.1.10 read in pari materia with
relevant statutes, we conclude that, in refusing the
School District's reasonable request to reopen
negotiations, [**14] DAEOP waived its right to negotiate
and that it must abide by the School District's
determination of salaries for the 1993-94 school year.
In summary, based on the relevant statutes respecting
School District budgeting and matters of salaries,
wages, and benefits, we conclude that HN5 any
provision of a multi-year collective bargaining
agreement is void as against public policy and,
therefore, unenforceable, if it limits any party to such
agreement from requesting in good faith to reopen
negotiations concerning issues of compensation and
benefits within a reasonable period after that party
becomes aware of the need therefor as a consequence
of the legal budget adoption process at either the state
or local level. The limitations set forth in such provisions,
however, remain enforceable as to issues subject to
negotiation other than compensation and benefits.
DAEOP's contentions are rendered moot by our reversal
of the trial court's denial of the school district's motion
for summary judgment and, therefore, we do not
consider them.
The judgment is reversed, and the cause is remanded
for entry of summary judgment in favor of the school
district and against DAEOP, and for further proceedings
[**15] consistent with this opinion.
JUDGE TAUBMAN concurs.
JUDGE CRISWELL dissents.

Dissent by: CRISWELL

Dissent
[*1053] JUDGE CRISWELL dissenting.

In my view, the trial court correctly decided all of the
issues presented to it. Hence, I dissent from the
majority's reversal of the trial court's judgment.
On June 5, 1991, the parties (School District and
DAEOP) entered into a written collective bargaining
agreement. The agreement was made retroactive to
January 1, 1991, and was to continue in effect until
August 31, 1994 --a term of some three years and eight
months.
This agreement called for a salary increase for both
salaried and hourly employees of 3.5%, retroactive to
January 1, 1991. It also called for like 3.5% increases
on the first day of September in 1991, 1992, and 1993.
However, it required the parties to attempt to work out
the details of a reclassification plan, and if they did so,
the wage increases resulting from that plan would be in
lieu of the increases called for by the agreement. It
required that the cost of such reclassification plan would
"not exceed the cost" of those negotiated increases.
One section of the parties' agreement, entitled "Annual
Negotiations," contains some 18 [**16] subsections
which, collectively, establish a detailed procedure to be
used by the parties in their future negotiations. That
procedure provides for the following:
-"Between March 1 and March 7 of each year during the
term of [the agreement]," either party may make a
"request for negotiations." Such a request may relate to
such subjects as "salaries, wages, hours and conditions
of employment."
-The parties will then enter into negotiations which must
be "finalized by June 1 of each year unless extended by
mutual consent."
-"Tentative agreements reached as a result of such
negotiations" are to be reduced to writing, and those
agreements will have "the conditional written approval"
of the parties, "pending final adoption and approval of
the School District budget."
-However, if changes in "this tentative Agreement are
necessary as a result of a legal budget process, %the
agreement will be subject to negotiation."

Julianna Wade

Page 7 of 10
972 P.2d 1047, *1053; 1998 Colo. App. LEXIS 124, **16
-After the final adoption and approval of any "tentative
Agreement," the "final agreement" will be signed by the
District and the Association, and it will become an
"addendum to this Agreement." (all emphasis supplied)
It is undisputed that, after its negotiation in 1991, [**17]
each of the parties signed the present agreement, and
each implemented its terms.
In the late summer of 1991, representatives of the
DAEOP presented a proposed reclassification plan to
the School District for salaried employees only. In
addition, the DAEOP contemplated that there would
also be annual increases of 3.75% on September 1,
1992, and September 1, 1993, for those employees.
The total cost of the two negotiated annual increases of
3.5% for September 1992 and 1993 for these employees
and the total cost of the reclassification plan alone were
substantially equal. The cost of the proposed increases
of 3.75% in 1992 and 1993, however, when added to
the cost of the reclassification plan, would have
increased the total costs to the School District during
those two years by some $ 700,000.
The School District agreed to the reclassification plan,
but its approval was based on the DAEOP's
representation that its cost did not exceed the cost of
the annual increases described in the agreement. It
denied that it agreed to pay any additional costs.
Nevertheless, it gave its salaried employees a 3.75%
raise, effective September 1, 1992. Later, however,
when it computed its costs for [**18] such payment, it
refused to give a similar increase in 1993.
In addition, on April 8, 1993, the School District wrote a
letter to the DAEOP, saying that, as "strictly a
precautionary measure," it wanted "to reopen, if
necessary, the portions of the Collective Bargaining
Agreements relating to salaries for the fiscal year
1993-1994." The DAEOP, however, refused to reopen
the agreement, asserting that, because negotiations
were to start in March 1994 for a new contract, it would
"not be [*1054] beneficial" to enter into negotiations in
the summer of 1993.
On September 1, 1993, the School District failed to
provide to the hourly employees the 3.5% raise called
for by the agreement. Likewise, the salaried employees
did not receive the 3.75% raise that the DAEOP
contends they were entitled to receive as of that date.

And, these two failures led to the DAEOP's filing of its
complaint in this case.
As to the claim of the salaried employees, who were the
subject of the reclassification plan, the trial court, after a
trial, determined that the parties did not have a meeting
of the minds with respect to the 3.75% raise on
September 1, 1993. It found, however, that both parties
understood that the [**19] reclassification plan was to
comply with the requirement that its cost not exceed the
cost for the increases for which it was to substitute.
Based upon this mutually acknowledged premise, the
trial court concluded that the only reasonable
interpretation to place upon the parties' agreement with
respect to the reclassification plan was that the salaried
employees were not entitled to any increases beyond
those called for by that plan itself.
In my opinion, this conclusion is supported, if, indeed,
not compelled, by the evidence in this case. Hence,
while the majority does not reach this issue, it is clear to
me that the trial court's judgment upon this question is
entitled to affirmance.
In contrast, the trial court determined, on summary
judgment, that, because the School District had failed to
request negotiations in a timely fashion, i.e., "between
March 1 and March 7," as the clear and unambiguous
provisions of the parties' agreement required, it had no
right not to honor the agreement that called for a 3.5%
wage increase for hourly employees on September 1,
1993.
Relying upon Denver Classroom Teachers Ass'n v.
School District No. 1, 911 P.2d 690 (Colo. App. 1995)
(DCTA I), the [**20] School District argues that the
provision of the agreement requiring negotiations in the
event that the "legal budget process" requires changes
in the "tentative Agreement" required the DAEOP here
to enter into negotiations to amend the existing
agreement at any time that the School District asserted
that some financial consideration warranted it.
I agree with the School District that the division in DCTA
I concluded that the identical language in another
agreement between the parties contained such a
requirement. In my opinion, however, the division in
DCTA I erred in reaching that conclusion.
The language of the parties' agreement respecting
future negotiations is clear and unambiguous. If either
party wants to reopen the agreement while it is in effect,

Julianna Wade

Page 8 of 10
972 P.2d 1047, *1054; 1998 Colo. App. LEXIS 124, **20
a request therefor must be made between March 1 and
March 7. Negotiations must commence at that time and
be completed by June 1. Any further agreement
reached, however, will be only "tentative," and the
parties' approval will be "conditional" upon completion
of the budget process. If that process does not require
any amendments to the tentative agreement, the parties
will sign it after the budget is adopted, and it will become
[**21] the "final agreement." However, if the "tentative
agreement" that the parties have previously only
conditionally approved requires changes because of
the budget process, the parties have agreed to negotiate
changes to that agreement.

Section 22-32-110(5) is part of the statute that sets forth
the powers and duties of a local board of education. It
was added to those statutes in 1989, Colo. Sess. Laws
1989, ch. 184 at 965-966, and provides that:
No board of education shall enter into an agreement
with any group, association, or organization,
representing employees of the district which commits
revenues raised or received pursuant [**23] to [the
Public School Finance Act] for a period of time in excess
of one year unless such agreement includes a provision
which allows for reopening of the portion of the
agreement relating to salaries and benefits. (emphasis
supplied)

Under these provisions, the agreement at issue here is
not a "tentative Agreement." It is an agreement that was
finally approved, adopted, and signed by the parties in
1991. Its provisions requiring negotiation of a "tentative
Agreement," therefore, have no applicability to the
existing agreement. Those provisions refer only to a
"tentative Agreement" reached by the parties as a result
of future negotiations instituted pursuant to its terms.

It is to be noted that this statute does not purport to
dictate the terms of any "provision . . . for reopening"; it
merely requires that some provision be agreed upon by
the parties to every multi-year collective bargaining
agreement. While the statute itself does not expressly
say so, I am willing to assume that it requires that any
multi-year agreement allow for a reopening on an annual
basis.

In DCTA I, the agreement at issue, unlike the pertinent
provisions here, did not authorize the School District to
demand negotiations during its term; such negotiations
could occur only by the "mutual consent" of both parties.
Hence, unless the language referring to negotiations of
a tentative agreement authorized the School District to
"reopen" the underlying agreement, the agreement in
that case would have been illegal under 22-32-110(5),
C.R.S. 1997. Such consideration may have influenced
the division's [*1055] construction [**22] of the
agreement then before it.

A provision allowing for "reopening" is one that is
commonly found in a collective bargaining contract in
the private sector. Such a provision commonly calls for
the agreement to renew itself annually unless, on or
before a specified time, one of the parties gives notice
of a desire to modify or to terminate it. And, if a notice is
not given in the manner or at the time called for, neither
party has an obligation to negotiate any changes; the
agreement continues in effect. See Irwin v. Carpenters
Health & Welfare Trust Fund, 745 F.2d 553 (9th Cir.
1984); [**24] Salisbury v. Kroyer Heating & Air
Conditioning, 683 F. Supp. 177 (N.D. Ohio 1986). See
also 29 U.S.C. 158(d)(1)(1994) (National Labor
Relations Act does not require a party to an existing
agreement to negotiate changes unless written notice
is given 60 days or more before termination date).
Indeed, it has been said that the courts will "strictly
construe" the language requiring such notice. Irvin v.
Carpenters & Welfare Trust Fund, supra, 745 F.2d at
557.

Based on the plain language of the agreement here,
however, I agree with the trial court that the provision
authorizing negotiations over changes to a "tentative
agreement" is not a provision authorizing further
negotiations over the terms of the present agreement.
Consistent with that interpretation, I conclude that,
because the agreement required the School District to
make a demand for negotiations between March 1 and
March 7 of any year, its demand on April 8 was untimely.
Hence, I would also conclude that nothing in the parties'
agreement required the DAEOP to honor the School
District's untimely request to negotiate.
The issue presented, therefore, is whether 22-32-110(5)
required such negotiations. The majority concludes that
it did. I disagree.

I do not contend, of course, that the parties here are
bound by the law relating to private employers and
private labor organizations. I do suggest, however, that,
at the time of the adoption of the pertinent statute, it was
common for a bargaining agreement that "allows for
reopening" to condition the right to reopen upon the
presentation of a notice to the other party within a
specified period.

Julianna Wade

Page 9 of 10
972 P.2d 1047, *1055; 1998 Colo. App. LEXIS 124, **24
Further, at the time of the adoption of 22-32-110(5), the
General Assembly was well aware that several of the
school districts in the state had already executed
multi-year contracts containing reopener clauses. See
Tape Recording of Senate Debate on S.B. No. 256,
57th General Assembly, First Session (May 1, 1989).
Given these circumstances, [**25] then, I simply cannot
conceive that, in enacting the simple requirement that a
multi-year contract contain "a provision which allows for
reopening," the General Assembly intended to prohibit
local boards of education and local organizations
representing their employees from agreeing upon a
provision that follows the format of reopening provisions
that are in common use.
The majority apparently agrees that the face of the
statute does not reflect such an intent. However, it
concludes, based on "the [*1056] legislative intent
behind" the statute, that any reopener provision must
allow a school district to renegotiate a presently existing
agreement whenever it determines that there will be a
"change" in the funds available to it. Hence, the majority
concludes that such a provision must allow the School
District to renegotiate even after the "budget process"
has been completed. I detect no such legislative intent.
I note, first, that the majority has failed to describe what
it is about "a provision which allows for the reopening"
that it does not understand or which it claims is
ambiguous. Yet, absent such a determination, reference
to a statute's legislative history is inappropriate.
Mountain [**26] City Meat Co. v. Oqueda, 919 P.2d 246
(Colo. 1996); People v. Andrews, 871 P.2d 1199 (Colo.
1994).
Nevertheless, even if it were proper to consider the
legislative history, that history, I submit, does not support
the majority's conclusion.
First, contrary to the impression given by the majority,
the statute at issue here was not designed to grant
authority to a school district that it did not previously
possess. All school districts in this state have always
had the authority to negotiate a provision that would
allow a contract to be reopened at any time. And, they
still possess that authority. Rather, as the Senate
opponents to the bill that became 22-32-110(5) argued,
it restricted a local school district's authority.
Further, there is no indication either in the hearings on
the pertinent bill or in the floor debates that the bill's

proponents were motivated by some desire to protect
local school districts from the effect of contract
provisions that those districts might voluntarily agree
upon. On the contrary, in the Senate debate, Senator
Meiklejohn, a leading sponsor of the bill, emphasized
that, under a reopening provision, either of the parties
would be able to exercise [**27] the reopening right
created by the agreement. See Tape Recording of
Senate Debate on S.B. 256, 57th General Assembly,
First Session (May 1, 1989).
The only substantive reason for the adoption of the
statute was given by Senator Meikeljohn, who said that
its adoption had been recommended by the Colorado
Commission on School Finance. A review of that
recommendation and of the commission's discussions
leading to that recommendation do not reflect any desire
to allow a school district to change a contract provision
in light of new revenue forecasts. Rather, the
recommendation arose from a concern that, so long as
individual school districts could use a multi-year
employee contract as a major reason to seek additional
funding, disparities in funding among the various
districts would continue. Hence, the commission staff
initially recommended legislation that would have
outlawed such multi-year contracts. The commission
itself, however, modified this recommendation and
recommended only that "all contracts over one year
must contain a one-year reopener for salaries and
benefits." See Staff Summary for Meetings of Colorado
Commission on School Finance (December 13, 1988,
and March 22, 1989).
[**28] Hence, the recommended legislation was
intended to limit a school district's authority so that the
basis for a district's request for additional funding would
be eliminated. The underlying reasoning was that, if
each school district were required to negotiate a yearly
reopener clause, it could not then rely upon the
existence of a multi-year contract to justify a request for
further funding.

Nothing within any of these background materials
suggests that, if a school district voluntarily negotiates a
provision setting a time frame for either of the parties to
reopen the agreement, but fails to observe those limits,
the time limits will be unenforceable. All that is statutorily
required is that the parties incorporate into their
agreement a right to reopen that either of them may
exercise.
Finally, to the extent that the statute does seek to allow
changes to existing agreements as a result of budgetary

Julianna Wade

Page 10 of 10
972 P.2d 1047, *1056; 1998 Colo. App. LEXIS 124, **28
changes, that purpose is fully served by the agreement
at issue here. So long as a request to reopen is made in
a timely fashion, that agreement requires negotiations
and provides that no final agreement will result until the
budget process is complete. While such a request must
be [**29] made before all budgetary information [*1057]
might be available, that poses no great obstacle. Indeed,
the request actually made by the School District here
was made as "a precautionary measure."
In my view, nothing within 22-32-110(5) or its legislative
history prevents the enforcement of the parties'
voluntary agreement establishing a time limit within
which a request to reopen negotiations must be made.
Hence, I also conclude that the trial court's entry of

judgment against the School District on this issue was
proper.
However, I also agree with the trial court that the DAEOP
was not entitled to a damage award based upon salaries
paid to the employees represented by it after the
terminal date of the pertinent agreement. As the trial
court concluded, such damages would not have resulted
from the breach of the present agreement. If higher
wage rates were required to be paid after that date, it
would be only because of some succeeding agreement
that has not been placed in issue.
Based upon the foregoing, therefore, I would affirm the
trial court's judgment.

Julianna Wade