Oral Argument April 11, 2014
Appeal from Pierce County Superior Court. Docket No:
12-2-14163-6. Judge signing: Honorable Kittyann Van Doorninck. Judgment or order under review. Date filed: 04/08/2013.
Richard H. Wooster (of Kram & Wooster PS ), for appellant.
William A. Coats (of Vandeberg Johnson & Gandara LLP ), for respondent.
Authored by J. Robin Hunt. Concurring: Rich Melnick. Dissenting: Lisa Worswick.
[183 Wn.App. 283] ¶ 1 Lynda Schlosser, a certified teacher with the Bethel School District, appeals the superior court's order affirming a hearing officer's decision that the District had probable cause to " terminate" her employment. She argues that the superior court erred in ruling that (1) her post-" deprivation"  hearing satisfied her due process rights and, therefore, she was not entitled to a predeprivation hearing; and (2) substantial evidence supported the hearing officer's Findings of Fact and Conclusions of Law that [183 Wn.App. 284] Schlosser was an " unsatisfactory" teacher. The District counters that (1) Schlosser was not entitled to a predeprivation hearing; and (2) the hearing officer's record showed " sufficient cause" for the District's declining to renew her contract. We hold that Schlosser was not entitled to a predeprivation hearing, that she received due process, and that substantial evidence supported the hearing officer's decision. We affirm the superior court's affirmance of the hearing officer's ruling that the District had probable cause not to renew Schlosser's teaching contract.
¶ 2 From the mid-1980s until 1998, Lynda Schlosser taught business in the Clover Park School District. In 1998, she began teaching at Bethel High School, where she continued to teach business related subjects. Like all Washington teachers, Schlosser had annual evaluations that addressed seven teaching criteria specified in RCW 28A.405.100: (1) instructional skill; (2) classroom management; (3) professional preparation and scholarship; (4) efforts toward improvement when needed; (5) handling student discipline and attendant problems; (6) interest in teaching students; and (7) knowledge of subject matter. A teacher receives a rating of " Satisfactory" or " Unsatisfactory" in each category and overall. Clerk's Papers (CP) at 4.
¶ 3 From 1998 through 2008, all of Schlosser's evaluation reports for her teaching at Bethel High School were " Satisfactory." CP at 5. On Schlosser's May 29, 2009 report, however, Assistant Principal Susan Mayne rated Schlosser " Unsatisfactory" for classroom management and handling student discipline, " satisfactory" in the other five areas, and " Satisfactory" overall. CP at 5. In a May 27, 2010 report, Mayne rated Schlosser " Unsatisfactory" in instructional [183 Wn.App. 285] skill, " satisfactory" in all other areas, and " Satisfactory" overall.
CP at 5. But in Schlosser's May 27, 2011 report a year later, Assistant Principal Brad Westering rated Schlosser as " Satisfactory" for her handling of student discipline and her interest in teaching students, but " unsatisfactory" in all other areas and overall. CP at 5.
¶ 4 In a February 1, 2012 letter, Superintendent of Schools Thomas G. Seigel notified Schlosser that based on her performance evaluations, her overall performance was unsatisfactory; and he placed her on a 60-school-day probation period effective February 3. This letter also included a plan for Schlosser's improvement. To implement this plan, the District hired Connie West, a retired Peninsula School District administrator, to work with Schlosser with the goal of helping her return to a " satisfactory" status. CP at 5. Over the course of four months, West conducted eight evaluations of Schlosser, all of which were " Satisfactory" in only one category--interest in teaching students--and " Unsatisfactory" in all other categories and overall. CP at 6. Because of her husband's medical issues, Schlosser did not attend the last evaluation session; however, she did attend the others with her union representative, Tom Cruver.
¶ 5 On May 11, after receiving West's and Cruver's reports, Seigel sent a May 11, 2012 letter to Schlosser notifying her he had " determined that probable cause exist[ed] to nonrenew [her] employment with Bethel School District No. 403 effective at the end of the 2011-12 school year." CP at 1146. Seigel based his determination on Schlosser's " final evaluation and the supporting materials submitted by [her] evaluators," which showed that her [183 Wn.App. 286] performance was unsatisfactory for the following statutory criteria:
Criterion l: Instructional skill
Criterion 2: Classroom management
Criterion 3: Professional preparation and scholarship
Criterion 4: Effort toward improvement when needed
Criterion 5: Handling student discipline and attendant problems
Criterion 7: Knowledge of subject matter
CP at 1146.
¶ 6 Schlosser appealed the Superintendent's decision to a hearing officer under RCW 28A.405.210, .310(4). Both Schlosser and the District were represented by counsel at the hearing. The hearing officer took testimony from Seigel, Mayne, and Westering. After 4 days of testimony involving 38 exhibits, the hearing officer found that the District had established probable cause to issue Schlosser a notice of nonrenewal of her teaching contract.
¶ 7 Schlosser appealed the hearing officer's decision to superior court, which affirmed. The superior court ruled that (1) substantial evidence supported the hearing officer's decision, including his Findings of Fact and Conclusions of Law; (2) the hearing officer's decision was not clearly erroneous or arbitrary and capricious; (3) Schlosser had received due process in that she had an ample opportunity to be heard post-deprivation; and (4) she was not entitled to a predeprivation hearing under RCW 28A.405.210. Schlosser now appeals to this court.
[183 Wn.App. 287] ANALYSIS
I. Due Process
¶ 8 Schlosser first argues that the District's failure to provide a predeprivation hearing before deciding not to renew her teaching contract violated her constitutionally protected property interest in continued employment. The District counters that (1)
Schlosser did not have a property interest in renewing her contract and, thus, she was not entitled to a hearing before the Superintendent issued his nonrenewal decision; nevertheless, (2) the District provided her with due process when it followed the post-deprivation review procedures in chapter 28A.405 RCW. We agree with the District.
A. Standard of Review; Underlying Principles
¶ 9 Whether the hearing officer's decision, or the statute supporting the order, violates constitutional provisions is a question of law, which we review de novo. Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006). When reviewing an administrative action, we sit in the same position as the superior court, applying the standards of the Washington Administrative Procedure Act directly to the record before the agency. Tapper v. State Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). It is undisputed that the State may not deprive its citizens of a property interest without procedural due process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
¶ 10 But to determine whether the District deprived Schlosser of due process, we must first determine whether a property interest existed entitling her to such protections. Wash. Indep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n, 149 Wn.2d 17, 29, [183 Wn.App. 288] 65 P.3d 319 (2003); see also Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such property interest is " 'defined by existing rules or understandings that stem from an independent source such as state law.'" Loudermill, 470 U.S. at 538 (quoting Roth, 408 U.S. at 577). Schlosser cites no Washington authority holding that a certificated teacher has a property interest in renewing his or her contract.
¶ 11 If Schlosser had a property interest entitling her to due process protections, then we must determine what process is due. Wash. Indep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n, 110 Wn.App. 498, 508, 41 P.3d 1212 (2002) (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), aff'd, 149 Wn.2d 17. Our legislature created a statutory scheme with heightened procedural due process protections for discharging school certificated employees in general. RCW 28A.405.300-.380. But it also promulgated a separate set of statutes governing school district decisions not to renew contracts of certificated employees, such as teachers; these statutes provide for post-decision review of decisions not to renew a teacher's contract. See RCW 28A.405.210-.240. ...