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                                  ENGROSSED SUBSTITUTE HOUSE BILL NO. 776

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                                                           AS AMENDED BY THE SENATE

                                                                            C 375 L 87

State of Washington                              50th Legislature                              1987 Regular Session

By House Committee on Education (originally sponsored by Representatives Cole, Holm, Taylor, Betrozoff, Ebersole, Brough, May, Amondson, Schoon, Silver and L. Smith)

Read first time 3/4/87 and passed to Committee on Rules.

AN ACT Relating to the qualifications and expenses of hearing officers in cases involving school employees; and amending RCW 28A.58.455.

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

        Sec. 1.  Section 5, chapter 114, Laws of 1975-'76 2nd ex. sess. as amended by section 1, chapter 7, Laws of 1977 ex. sess. and RCW 28A.58.455 are each amended to read as follows:

          (1) Any employee receiving a notice of probable cause for discharge or adverse effect in contract status pursuant to RCW 28A.58.450, as now or hereafter amended, or any employee, with the exception of provisional employees as defined in RCW 28A.67.072, receiving a notice of probable cause for nonrenewal of contract pursuant to RCW 28A.67.070, as now or hereafter amended, shall be granted the opportunity for a hearing pursuant to this section.

          (2) In any request for a hearing pursuant to RCW 28A.58.450 or 28A.67.070, as now or hereafter amended, the employee may request either an open or closed hearing.  The hearing shall be open or closed as requested by the employee, but if the employee fails to make such a request, the hearing officer may determine whether the hearing shall be open or closed.

          (3) The employee may engage counsel who shall be entitled to represent the employee at the prehearing conference held pursuant to subsection (5) of this section and at all subsequent proceedings pursuant to this section.  At the hearing provided for by this section, the employee may produce such witnesses as he or she may desire.

          (4) In the event that an employee requests a hearing pursuant to RCW 28A.58.450 or 28A.67.070, as now or hereafter amended, a hearing officer shall be appointed in the following manner:  Within ((ten)) fifteen days following the receipt of any such request the board of directors of the district or its designee and the employee or employee's designee shall each appoint one nominee((, each of whom shall be a member in good standing of the Washington state bar association.  Within five days following the appointment of such nominees they)).  The two nominees shall jointly appoint a hearing officer who shall be a member in good standing of the Washington state bar association or a person adhering to the arbitration standards established by the public employment relations commission and listed on its current roster of arbitrators.  Should said nominees fail to agree as to who should be appointed as the hearing officer, either the board of directors or  the employee, upon appropriate notice to the other party, may apply to the presiding judge of the superior court for the county in which the district is located for the appointment of such hearing officer, whereupon such presiding judge shall have the duty to appoint a hearing officer ((who shall be a member in good standing of the Washington state bar association and)) who shall, in the judgment of such presiding judge, be qualified to fairly and impartially discharge his or her duties.  Nothing herein shall preclude the board of directors and the employee from stipulating as to the identity of the hearing officer in which event the foregoing procedures for the selection of the hearing officer shall be inapplicable.  The district shall pay all fees and expenses of any hearing officer selected pursuant to this subsection.

          (5) Within five days following the selection of a hearing officer pursuant to subsection (4) hereof, the hearing officer shall schedule a prehearing conference to be held within such five day period, unless the board of directors and employee agree on another date convenient with the hearing officer.  The employee shall be given written notice of the date, time, and place of such prehearing conference at least three days prior to the date established for such conference.

          (6) The hearing officer shall preside at any prehearing conference scheduled pursuant to subsection (5) of this section and in connection therewith shall:

          (a) Issue such subpoenas or subpoenas duces tecum as either party may request at that time or thereafter; and

          (b) Authorize the taking of prehearing depositions at the request of either party at that time or thereafter; and

          (c) Provide for such additional methods of discovery as may be authorized by the civil rules applicable in the superior courts of the state of Washington; and

          (d) Establish the date for the commencement of the hearing, to be within ten days following the date of the prehearing conference, unless the employee requests a continuance, in which event the hearing officer shall give due consideration to such request.

          (7) The hearing officer shall preside at any hearing and in connection therewith shall:

          (a) Make rulings as to the admissibility of evidence pursuant to the rules of evidence applicable in the superior court of the state of Washington.

          (b) Make other appropriate rulings of law and procedure.

          (c) Within ten days following the conclusion of the hearing transmit in writing to the board and to the employee, findings of fact and conclusions of law and final decision.  If the final decision is in favor of the employee, the employee shall be restored to his or her employment position and shall be awarded reasonable attorneys' fees.

          (8) Any final decision by the hearing officer to nonrenew the employment contract of the employee, or to discharge the employee, or to take other action adverse to the employee's contract status, as the case may be, shall be based solely upon the cause or causes specified in the notice of probable cause to the employee and shall be established by a preponderance of the evidence at the hearing to be sufficient cause or causes for such action.

          (9) All subpoenas and prehearing discovery orders shall be enforceable by and subject to the contempt and other equity powers of the superior court of the county in which the school district is located upon petition of any aggrieved party.

           (10) A complete record shall be made of the hearing and all orders and rulings of the hearing officer and school board.

                                                                                                                           Passed the House April 22, 1987.

                                                                                                                                         Speaker of the House.

                                                                                                                           Passed the Senate April 16, 1987.

                                                                                                                                       President of the Senate.