BP BHEAD INT S

AN ACT Relating to certificated employees; amending RCW 28A.405.210, 28A.405.300, and 28A.405.370; adding new sections to chapter 28A.405 RCW; and repealing RCW 28A.405.310, 28A.405.320, 28A.405.330, 28A.405.340, 28A.405.350, 28A.405.360, and 28A.405.380.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 28A.405.210 and 1990 c 33 s 390 are each amended to read as follows:

No teacher, principal, supervisor, superintendent, or other certificated employee, holding a position as such with a school district, hereinafter referred to as "employee", shall be employed except by written order of a majority of the directors of the district at a regular or special meeting thereof, nor unless he or she is the holder of an effective teacher's certificate or other certificate required by law or the state board of education for the position for which the employee is employed.

The board shall make with each employee employed by it a written contract, which shall be in conformity with the laws of this state, and except as otherwise provided by law, limited to a term of not more than one year. Every such contract shall be made in duplicate, one copy to be retained by the school district superintendent or secretary and one copy to be delivered to the employee. No contract shall be offered by any board for the employment of any employee who has previously signed an employment contract for that same term in another school district of the state of Washington unless such employee shall have been released from his or her obligations under such previous contract by the board of directors of the school district to which he or she was obligated. Any contract signed in violation of this provision shall be void.

In the event it is determined that there is ((~~probable~~)) just cause or causes that the employment contract of an employee should not be renewed by the district for the next ensuing term such employee shall be notified in writing on or before May 15th preceding the commencement of such term of that determination, which notification shall specify the cause or causes for nonrenewal of contract. Such determination of ((~~probable~~)) just cause for certificated employees, other than the superintendent, shall be made by the superintendent. Such notice shall be served upon the employee personally, or by certified or registered mail, or by leaving a copy of the notice at the house of his or her usual abode with some person of suitable age and discretion then resident therein. Every such employee so notified, at his or her request made in writing and filed with the president, chair or secretary of the board of directors of the district within ten days after receiving such notice, shall be granted opportunity for hearing pursuant to ((~~RCW 28A.405.310~~)) section 3 of this act to determine whether there is sufficient cause or causes for nonrenewal of contract: PROVIDED, That any employee receiving notice of nonrenewal of contract due to an enrollment decline or loss of revenue may, in his or her request for a hearing, stipulate that initiation of the arrangements for a hearing ((~~officer as provided for by RCW 28A.405.310(4)~~)) under section 3 of this act shall occur within ten days following July 15 rather than the day that the employee submits the request for a hearing. If any such notification or opportunity for hearing is not timely given, the employee entitled thereto shall be conclusively presumed to have been reemployed by the district for the next ensuing term upon contractual terms identical with those which would have prevailed if his or her employment had actually been renewed by the board of directors for such ensuing term.

This section shall not be applicable to "provisional employees" as so designated in RCW 28A.405.220; transfer to a subordinate certificated position as that procedure is set forth in RCW 28A.405.230 shall not be construed as a nonrenewal of contract for the purposes of this section.

Sec. 2. RCW 28A.405.300 and 1990 c 33 s 395 are each amended to read as follows:

In the event it is determined that there is ((~~probable~~)) just cause or causes for a teacher, principal, supervisor, superintendent, or other certificated employee, holding a position as such with the school district, hereinafter referred to as "employee", to be discharged or otherwise adversely affected in his or her contract status, such employee shall be notified in writing of that decision, which notification shall specify the ((~~probable~~)) just cause or causes for such action. Such determinations of ((~~probable~~)) just cause for certificated employees, other than the superintendent, shall be made by the superintendent. Such notices shall be served upon that employee personally, or by certified or registered mail, or by leaving a copy of the notice at the house of his or her usual abode with some person of suitable age and discretion then resident therein. The notice shall contain information about the right to a hearing under section 3 of this act. Every such employee so notified, at his or her request made in writing and filed with the president, chair of the board or secretary of the board of directors of the district within ten days after receiving such notice, shall be granted opportunity for a hearing pursuant to ((~~RCW 28A.405.310~~)) section 3 of this act to determine whether or not there is sufficient cause or causes for his or her discharge or other adverse action against his or her contract status.

In the event any such notice or opportunity for hearing is not timely given, or in the event cause for discharge or other adverse action is not established by a preponderance of the evidence at the hearing, such employee shall not be discharged or otherwise adversely affected in his or her contract status for the causes stated in the original notice for the duration of his or her contract.

If such employee does not request a hearing as provided herein, such employee may be discharged or otherwise adversely affected as provided in the notice served upon the employee.

Transfer to a subordinate certificated position as that procedure is set forth in RCW 28A.405.230 shall not be construed as a discharge or other adverse action against contract status for the purposes of this section.

NEW SECTION. Sec. 3. A new section is added to chapter 28A.405 RCW to read as follows:

(1) An employee aggrieved by a decision of a superintendent or school board to discharge or adversely affect the employee's contract status may appeal the decision to an independent arbitrator. A written notice of appeal shall be submitted to the superintendent within ten days from the receipt of the notice of the decision.

(2) The school board and the employee shall meet within ten calendar days from the receipt of the notice of appeal and select an independent arbitrator to conduct the appeal, or, in the event the parties fail to agree on an independent arbitrator, they shall request the presiding judge in the judicial district in which the public school is located to select the independent arbitrator. The presiding judge shall select the independent arbitrator within five working days from the date of the parties' request.

(3) A qualified independent arbitrator shall be appointed who is knowledgeable about employment practices and school procedures. A person shall not be appointed to serve as the independent arbitrator who has any direct or indirect financial interest in the outcome of the proceeding, has any relationship to any party in the proceeding, is employed by the school board, or is a member of or employed by any professional organization of which the school employee is a member.

(4) Appeals from the decision of the superintendent or school board shall be decided after a hearing before the independent arbitrator. The school board shall have the burden of proving by a preponderance of the evidence that, at the time of the notice of intent to recommend discharge, the local superintendent had just cause to discharge the employee. The school board shall present its evidence first, with the employee presenting his or her evidence thereafter.

(5) The hearing shall be held within thirty working days from the selection of the independent arbitrator. The independent arbitrator shall give written notice of the date, time, and place of the hearing. The notice shall be sent to the employee and the school board.

(6) Each party has the right to be represented by counsel at the hearing before the independent arbitrator.

(7) Discovery shall be limited to depositions and requests for production of documents on a time schedule to be established by the independent arbitrator.

(8) The independent arbitrator may issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may administer oaths. Subpoenas so issued shall be served and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action or in the manner provided by the American arbitration association's voluntary labor arbitration rules if that entity is used by the parties.

(9) The rules of civil procedure shall not apply to the hearing, but the hearing shall be conducted so that both contentions and responses are amply and fairly presented. To this end, the independent arbitrator shall permit either party to call and examine witnesses, cross-examine witnesses, and introduce exhibits. The technical rules of evidence shall not apply, but, in ruling on the admissibility of evidence, the independent arbitrator may require reasonable substantiation of statements or records tendered, the accuracy or truth of which is in reasonable doubt.

(10) An official record shall be made of the hearing. Either party may order a transcript of the record at the party's own expense.

(11) The independent arbitrator shall render a written decision affirming or reversing the action of the superintendent or school board. The decision shall contain findings of fact and conclusions of law. The parties shall receive the written decision of the independent arbitrator within thirty working days from the conclusion of the hearing.

(12) Unless a party can demonstrate prejudice arising from a departure from the procedures established in this section, and RCW 28A.405.210 and 28A.405.300, the departure shall be presumed to be harmless error.

(13) The decision of the independent arbitrator shall be final and binding on both parties and shall be nonappealable except where the decision was procured by corruption, fraud, deception, or collusion, in which case it may be appealed to superior court by filing a notice of appeal.

(14) Each party shall bear its own costs and expenses. The independent arbitrator's fees and other expenses incurred in the conduct of the arbitration shall be assigned at the discretion of the independent arbitrator.

NEW SECTION. Sec. 4. A new section is added to chapter 28A.405 RCW to read as follows:

(1) Payment of compensation to any employee under RCW 28A.405.300 employed by a school board shall terminate as of the date, after a hearing, that a written copy of the decision of the superintendent or school board to discharge or otherwise adversely affect the contract status of the employee is served on the person. If the compensation of the affected person during the term of a written employment contract is to be paid monthly during a twelve-month period for services to be performed during a period less than twelve months, the person shall be entitled to a pro rata share of the compensation payments due for the period during the twelve months in which no services were to be performed.

(2) If the action of the superintendent or school board in discharging or adversely affecting the contract status of an employee is reversed on appeal, payment of compensation to the person shall be reinstated in full but subject to any additional compensation allowed other employees of like qualifications and experience employed by the school district and including reimbursement for compensation during the entire period the compensation was terminated less an offset for any compensation received by the person from a school district during the period the compensation was terminated.

Sec. 5. RCW 28A.405.370 and 1990 c 33 s 400 are each amended to read as follows:

The provisions of chapter 28A.645 RCW shall not be applicable to RCW 28A.405.300 ((~~through 28A.405.360~~)) and sections 3 and 4 of this act.

NEW SECTION. Sec. 6. The following acts or parts of acts are each repealed:

(1) RCW 28A.405.310 and 1990 c 33 s 396, 1987 c 375 s 1, 1977 ex.s. c 7 s 1, & 1975-'76 2nd ex.s. c 114 s 5;

(2) RCW 28A.405.320 and 1990 c 33 s 397, 1969 ex.s. c 34 s 14, & 1969 ex.s. c 223 s 28A.58.460;

(3) RCW 28A.405.330 and 1990 c 33 s 398 & 1969 ex.s. c 223 s 28A.58.470;

(4) RCW 28A.405.340 and 1975-'76 2nd ex.s. c 114 s 6, 1969 ex.s. c 34 s 15, & 1969 ex.s. c 223 s 28A.58.480;

(5) RCW 28A.405.350 and 1990 c 33 s 399, 1975-'76 2nd ex.s. c 114 s 7, 1969 ex.s. c 34 s 16, & 1969 ex.s. c 223 s 28A.58.490;

(6) RCW 28A.405.360 and 1988 c 202 s 26, 1971 c 81 s 71, & 1969 ex.s. c 223 s 28A.58.500; and

(7) RCW 28A.405.380 and 1990 c 33 s 401, 1975-'76 2nd ex.s. c 114 s 8, 1973 c 49 s 3, & 1969 ex.s. c 34 s 18.

NEW SECTION. Sec. 7. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.