Reconsideration denied January 27, 2014.
Appeal from King County Superior Court. Docket No: 12-2-01940-1. Date filed: 02/16/2012. Judge signing: Honorable Michael C Hayden.
Charles W. Lind (of Patterson Buchanan Fobes & Leitch ), for petitioner.
Douglas M. Wartelle (of Cogdill Nichols Rein ), for respondent.
AUTHOR: Ann Schindler, J. WE CONCUR: James Verellen, J., Linda Lau, J.
[178 Wn.App. 368]
¶ 1 Where a teacher appeals the decision of a school district to not renew a teaching contract under RCW 28A.405.210 and timely requests an administrative hearing, RCW 28A.405.310 sets forth the procedure and deadlines that must be followed to select a hearing officer. The statute authorizes the presiding judge of the superior court to appoint a hearing officer only if the school district and the teacher " fail to agree as to who should be appointed."  James McLain timely appealed the decision of the Kent School District (District) to not renew his teaching contract for the 2010-2011 school year but did not comply with the statutory procedure or deadlines to select a hearing officer and schedule a hearing. Fifteen months later, McLain sought to pursue the appeal and filed a motion to appoint a hearing officer. The presiding judge of King [178 Wn.App. 369] County Superior Court granted the motion and directed the parties to contact the hearing officer within 10 days. Because the undisputed facts establish McLain waived his right to an administrative hearing under chapter 28A.405 RCW, we reverse and vacate the order.
¶ 2 The facts are undisputed. On February 23, 2010, the superintendent of the District notified James McLain of the decision to not renew his teaching contract. The District informed McLain that lack of improvement during the probationary period established probable cause to not renew the teaching contract for the 2010-2011 school year. The notice states McLain must contact the District within 10 days to contest the decision through an administrative hearing under RCW 28A.405.310.
¶ 3 On March 1, Washington Education Association attorney Michael Gawley sent a letter to the District appealing the decision to not renew McLain's teaching contract. Gawley and the attorney for the District discussed the selection of " possible hearing officers and possible resolutions to this matter." But first Gawley wanted to review the documents supporting the decision. The District provided Gawley with approximately 340 pages of documentation concerning the decision to not renew the teaching contract.
¶ 4 In June, Gawley notified the District that " he may no longer represent [McLain]" in the appeal. On July 12, Gawley sent a letter confirming his withdrawal and instructed the District to contact McLain " directly
to make arrangements with respect to the further prosecution of his appeal."
¶ 5 In a letter to McLain dated July 13, the District informed McLain that his contractual relationship with the District would end on August 31 and " [i]f you choose to continue your appeal of the nonrenewal of your teaching contract, you or your legal counsel must contact [the lawyer [178 Wn.App. 370] representing the District] within ten (10) days of receiving this letter" to select a hearing officer and agree on the time line for the appeal under RCW 28A.405.310. The letter states, in pertinent part:
Today, July 13, we received written confirmation that Mr. Gawley no longer represents you and that we are to contact you directly to make arrangements regarding any further appeal.
Your contractual relationship with the Kent School District will end August 31. If you choose to continue your appeal of the nonrenewal of your teaching contract, you or your legal counsel must contact [the lawyer representing the District] within ten (10) days of receiving this letter. At that time, we will confer to agree upon a hearing officer and, once a hearing officer has been selected, confer again on the timeline for your appeal pursuant to RCW 28A.405.310. If you choose not to contest the nonrenewal any further, you may contact Legal Services to notify us of such or simply disregard this notice, in which case the right to a hearing will be deemed waived.
¶ 6 In a letter to the District dated July 27, McLain states, " I am continuing with the appeal of the termination of employment ... . I have secured my own attorney ... . I intend to file suit against [the District] for wrongful termination and discrimination." McLain also requested the District provide " all emails that were in my folder" and stated that his " attorney will also be demanding all papers, letters, evaluations, emails and files." But the letter did not identify the attorney.
¶ 7 In a letter dated August 3, the District acknowledged receipt of the July 27 letter and asked McLain to have his attorney contact the attorney for the District. The letter states, in pertinent part:
I have received your letter dated July 27 notifying us that you are continuing the appeal of your nonrenewal. You stated that you have secured your own attorney, but you did not mention the name or contact information for your counsel. Since you are represented on this matter, it is inappropriate for me to have further direct contact with you. The rules of [178 Wn.App. 371] professional conduct require that our interactions be channeled ...