SCHOOL DISTRICTS ‑- TEACHERS' CONTRACTS ‑- SUFFICIENCY OF CAUSE FOR NONRENEWAL ‑- PROOF REQUIRED TO ESTABLISH CAUSE
1. "Sufficient cause" for nonrenewal must be of substantial nature.
2. In a hearing to establish "sufficient cause" for nonrenewal of contract witnesses and proof must be produced substantiated by competent evidence.
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April 1, 1955
Mr. Elmer W. Stanley
Washington!tt State School Directors'Association
Old Capitol Building
Olympia, Washington Cite as: AGO 55-57 No. 51
You recently requested an opinion of this office on the following questions, which arise under section 3, chapter 68, Laws of 1955 (amending and replacing what is now RCW 28.67.070):
1. What constitutes "sufficient cause or causes" for the nonrenewal by a school board of the contract of employment of a teacher, principal, supervisor, or superintendent (herein referred to as "employee")?
2. What proof is necessary to establish the facts constituting "sufficient cause" for nonrenewal?
Our conclusions may be generally stated as follows:
1. A school board has "sufficient cause" for nonrenewal of an employee's contract whenever the termination of his employment would be in the best interests of the school district, and this may be by reason of his unfitness for his position, for reasons of economy, or because there is a lack of need for his services, or other cause which is of a substantial nature, and is not frivolous or inconsequential.
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2. In a hearing to determine whether "sufficient cause" exists for nonrenewal of an employee's contract, any relevant evidence may be received and considered by the school board, whether or not it is admissible under legal rules, if it is of a kind on which fair-minded men are accustomed to rely in serious matters, but the employee must, wherever practicable, be confronted with the witnesses against him so that he may cross-examine them, and a decision not to renew must be supported by substantial evidence received at the hearing, includingsome evidence which is competent under legal rules.
1. The pertinent portion of section 3, chapter 68, Laws of 1955, reads as follows:
"The board * * * shall make with each teacher employed by it a written contract, which shall be in conformity with the laws of this state. Every such contract shall be made in duplicate, one copy of which shall be retained by the school district clerkor secretary, and the other shall be delivered to the teacher, after having been approved and registered by the county superintendent.
"Every teacher, principal, supervisor, or superintendent holding a position as such with a school district, hereinafter referred to as 'employee', whose employment contract is not to be renewed by the district for the next ensuing termshall be notified in writing on or before April 15th preceding the commencement of such term of the decision of the board of directors not to renew his employmentwhich notification shall specify sufficient cause or causes for nonrenewal of contract. Every such employee so notified shall, at his or her request made in writing and filed with the clerk or secretary of the board of directors of the district within ten [[Orig. Op. Page 3]] days after receiving such notice, be granted opportunity for hearing before the board of directors of the district, to determine whether or not the facts constitute sufficient cause for nonrenewal of contract. Such board upon receipt of such request shall call the hearing to be held within ten days following the receipt of such request, and shall at least three days prior to the date fixed for the hearing notify the employee in writing of the date, time and place of the hearing. The employee may engage such counsel and produce such witnesses as he or she may desire. The board of directors shall within five days following the conclusion of such hearing notify the employee in writing of its final decision either to renew or not to renew the employment of the employee for the next ensuing term. Any decision not to renew such employment contract shall be based solely upon the cause or causes for nonrenewal specified in the notice to the employee and proved and established at the hearing. If such notificationand opportunity for hearing is not timely given by the district, theemployee 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 employment had actually been renewed by the board of directors for such ensuing term: PROVIDED, That in union high school districts the written notificationand opportunity for hearing shall be given on or before April 30th preceding the commencement of thenext ensuing term." (Provisions added by 1955 law are underlined.)
Prior to the passage of the above law a school board had absolute, uncontrolled discretion whether to renew or not renew an employee's contract. Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, noted in 6 Wash. L. Rev. [[Orig. Op. Page 4]] at 39; Opinion of the Attorney General No. 51-53 No. 384, dated August 21, 1952 [[to Lowell B. Vail, Prosecuting Attorney, Garfield County]]. Now, for the first time, the decision not to renew must be based upon "sufficient cause or causes," and the employee has a right to a hearing on such question.
The law under consideration, as in the case of teachers' tenure laws generally, recognizes the sound public policy of retaining in the public school system competent and capable teachers and supervisory personnel who have become increasingly valuable by reason of their experience. This works to the advantage not only of the employees but of the public and those concerned with the administration of the school system. SeeStapleton v. Huff, N.M., 173 P. (2d) 612. To attain this end the law seeks to eliminate any influence which partisan or purely personal or malicious motives might have on the tenure of school personnel.
We cannot, of course, prescribe a formula which can be mechanically applied to determine in every case whether the facts constitute "sufficient cause" for nonrenewal of a contract. That question will always require the good judgment of the school board. We can, however, offer certain guides for the exercise of such judgment.
Most of the judicial precedent on what constitutes "sufficient cause" for termination of a teacher's or other school employee's employment has involved thedischarge of such person. School boards in this state for many years have had the power to discharge teachers only for "sufficient cause." See RCW 28.58.100 (1) (now found, without change, in section 2, chapter 68, Laws of 1955, amending and replacing RCW 28.58.100). The test now applicable fornonrenewal of an employee's contract is thus expressed in the same terms as the test for discharge of a teacher. This does not mean that the tests themselves must necessarily be the same, since there is a marked difference between the nature and effect of a discharge and the nonrenewal of a contract. A discharge may abruptly break off employment during the term of a contract, when the employee would under ordinary circumstances think his position secure, and thus may operate very harshly. The nonrenewal of a contract, on the other hand, simply terminates employment, on considerable advance notice, at the end of the term of the contract. So far as unfitness of the employee for his position is concerned, however, we see no good reason why different tests should be applied in determining whether the employee should [[Orig. Op. Page 5]] be discharged and in determining whether his contract should be renewed. For as will be seen, a school board has broad discretion on the question whether an employee should be discharged for unfitness, and we do not believe a broader test should be applied where the question is the renewal of his contract.
It is not altogether clear that reasons other than unfitness of the employee for his position constitute sufficient cause for his discharge, under a discharge statute such as ours. See C.J.S., Schools and School Districts, § 202, p. 1083. In a prior opinion this office did express the view that a school board could discharge a teacher "whenever a situation arises which makes such a discharge advisable for the best interests of the district," including a situation wherein the fitness of the person to teach is not in issue, and even though such discharge would result in an actionable breach of contract. Opinions of the Attorney General, 1945-46, p. 1109, dated November 6, 1946. But however that may be, we think that considerations of economy and the need of an employee's further services may definitely constitute "sufficient cause" fornonrenewal of his contract. We cannot believe the legislature meant by this statute to insure the indefinite tenure of qualified school personnel in all cases, for this would in many instances completely hamstring a school board in effecting economy measures or meeting changed conditions within the district.
We conclude, then, that a school board has "sufficient cause" for nonrenewal of an employee's contract whenever such action would be in the best interests of the school district, and this may be by reason of his unfitness for his position, or for reasons of economy, or because there is a lack of need for his continued services, or other cause. The cause must always be of a substantial nature, and not frivolous or inconsequential. State ex rel. Rockwell v. State Bd. of Educ., Minn. 6 N.W. 2d 251, 143 A.L.R. 503. The question of what is sufficient cause is primarily a question for the school board's discretion, and its decision will not be set aside except upon a clear showing of abuse. InFaxon v. School Committee of Boston, Mass., 120 N.E. 2d 772, 774 (1954), the court in defining what was sufficient grounds for dismissal of a teacher, under a statute enumerating specific causes for discharge and "other good cause," said a school board could discharge a teacher on any ground "which is not arbitrary, irrational, unreasonable, or irrelevant to the committee's task of building up and maintaining an efficient school system. See also 78 C.J.S., Schools and School Districts, section 202 p. 1080.
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Some specific cases in which discharges of school personnel have been upheld on the grounds of unfitness to teach may be helpful. InState ex rel. Board of D. S. D. No. 306 v. Preston, 120 Wash. 569, the supreme court upheld a school board's discharge of a teacher and principal where there was evidence to indicate that he was unable to maintain discipline and had not succeeded in teaching his pupils in several subjects and qualifying them in their work to the extent required by their course of study. Further illustrations appear in the following quotation from 78 C.J.S., Schools and School Districts, § 202, at pp. 1080-1083:
"Among the causes which, either under statute or contract or as a proper exercise of discretionary power by the school board, have been held sufficient grounds for dismissal of a teacher, principal or superintendent are included insubordination or violation of the rules and regulations of the school board; lack of cooperation; inability or incompetency; lack of efficiency in teaching or discipline; negligence; membership in a subversive organization or engaging in subversive activities; refusal to waive immunity in appearing or testifying before a court or legislative committee; or improper conduct, or, according to other decisions on the question, immoral or unprofessional conduct."
Illustrative of instances in which nonrenewal for reasons other than lack of fitness would probably be upheld are situations where the teacher's position has been abolished, where the particular kind of service for which he was engaged is discontinued, where there is a decrease in the number of pupils, or where there has been a consolidation of school districts. 78 C.J.S., Schools and School Districts, § 202, p. 1083.
2. The law provides that, upon written request filed within ten days after notification of the initial decision of the school board not to renew the employee's contract, the employee shall, within ten days and upon three days' notice, be granted opportunity for a hearing on the question of cause for nonrenewal, at which the employee may have counsel and call such witnesses [[Orig. Op. Page 7]] as he desires. This is the usual case of an administrative body being called upon to act in a quasi-judicial capacity. The formality incident to a trial in a court of law need not be followed. Under a similar statutory scheme for hearing on the question whether a teacher's contract should be renewed, the Supreme Court of New Mexico said that "The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given." Stapleton v. Huff, N.M., 173 P.2d 612.
The employee must, wherever practicable, be confronted by the witnesses against him so that he may cross-examine them. Stapleton v. Huff, supra. The school board may, however, receive and consider any relevant evidence which is of a kind on which fair-minded men are accustomed to rely on serious matters, even though it would not be admissible under legal rules of evidence, but there must besome evidence, competent under legal rules, to support a decision not to renew the teacher's contract. Willapoint Oysters v. Ewing, 9 Cir. 174 F.2d 676, 690-691 (1949); Rhodes Pharmacal Co. v. Federal Trade Commission, 7 Cir., 208 F.2d 382, 387 (1953); Mazza v. Covicchia, N.J., 105 A.2d 545, 552 (1954); Borgia v. Board of Review, Division of Employment Security, N.J., 91 A.2d 441, 443 (1952); International Broth. of Elec. Workers, Local 35 v. Commission on Civil Rights, Conn., 102 A.2d 366 (1953); Indianapolis and Southern Motor Exp. v. Public Service Commission, Ind. 112 N.E. 2d 864, 868 (1953);Jacoby v. South Carolina State Board of Naturopathic Examiners, S.C., 64 S.E. 2d 138, 149 (1951); Reynolds v. Triborough Bridge and Tunnel Authority, N.Y., 94 N.Y. Supp. 2d 841 (1949); see also 1 Wigmore on Evidence, section 4b, p. 39 et seq. (3rd Ed.); 42 Am.Jur., Public Administrative Law, section 218, compareLeggerini v. Department of Unemployment Compensation, 15 Wn. (2d) 618.
Whatever the reason may be for the nonrenewal of the employee's contract, be it economic or financial or the unfitness of the employee, the facts constituting such cause must be supported by substantial evidence adduced at the hearing. When all of the evidence is in, the school board acts in effect as a jury, weighing the quality and quantity of the evidence on each side, deciding whom to believe where there is a conflict in testimony, and finding what are the facts.
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We hope the above proves helpful to you.
Yours very truly,
JOHN F. HANSLER
Assistant Attorney General