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AGLO 1973 No. 49 - April 17, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

SCHOOLS ‑- DISTRICTS ‑- TEACHERS ‑- LEAVES OF ABSENCE

Under RCW 28A.67.900, a school district may grant to a teacher a one year leave of absence, unpaid, when the teacher's position is not being terminated, and at the same time hire a replacement teacher for that person, with the express agreement that the replacement will resign at the end of the year to allow the district to meet its obligation to the original teacher to reassign him in his old position which the district would have agreed to prior to the taking of the unpaid leave of absence.

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                                                                   April 17, 1973

Honorable Charles R. Bryd
Prosecuting Attorney
Okanogan County
P.O. Box 109
Okanogan, Washington 98840                                                                                                               Cite as:  AGLO 1973 No. 49

Dear Sir:

            This is written in response to your recent letter requesting an opinion of this office on the following question:

            ". . .  May a School District grant to a teacher, a one year leave of absence, unpaid, when the teacher's position is not being terminated, and at the same time hire a replacement teacher for that person, with the express agreement that the replacement will resign at the end of the year to allow the District to meet its obligation to the original teacher to reassign him in his old position which the District would have agreed to prior to the taking of the unpaid leave of absence."?

            We answer this question in the affirmative.

                                                                     ANALYSIS

            In your letter you have indicated an awareness of AGO 1973 No. 9 [[to Albert Bauer, State Representative on March 30, 1973]], copy enclosed, involving the general subject of unpaid leaves of absence for teachers employed by school districts in this state.  In that opinion we considered the ramifications of the "continuing contract law" ‑ RCW 28A.67.070 ‑ upon such situations and quoted it in material part on pages 3 and 4.  In essence, this statute provides that all teachers, principals, supervisors, superintendents or other certificated employees of a school district holding positions as such1/ are to be employed only  [[Orig. Op. Page 2]] pursuant to a written contract ". . . limited to a term of not more than one year. . . ."  As explained in another recent opinion, AGO 1973 No. 3 [[to Christopher T. Bayley, Prosecuting Attorney, King County on January 15, 1973]], copy enclosed, any certificated employee who is subject to this statute must be offered a renewal of his or her contract for the next ensuing school year unless, on or before April 15, preceding the commencement of such term, the school district by which the teacher is employed gives formal notice to that employee of "probable cause" for nonrenewal in accordance with procedures detailed in the statute.

            It is with this aspect of the law governing teachers' contracts that you have expressed concern ‑ in terms of the situation giving rise to your question.  You have expressed this concern as follows:

            "It enters my mind that in making such an agreement, the School District may be contracting with both the original teacher and the replacement teacher to commit a future violation of the continuing contract law as it exists in this state."

            Apparently, the same thought occurred to our state legislature during its 1972 extraordinary session ‑ causing it to respond by enacting § 3, chapter 142, Laws of 1972, Ex. Sess., now codified as RCW 28A.67.900, which provides that:

            "Certificated employees subject to the provisions of this chapter shall not include those certificated employees hired to replace certificated employees who have been granted sabbatical, regular, or other leave by school districts.

            "It is not the intention of the legislature that this section apply to any regularly hired certificated employee or that the legal or  [[Orig. Op. Page 3]] constitutional rights of such employee be limited, abridged, or abrogated."

            Recalling that the continuing contract law, RCW 28A.67.070, applies only toteachers, principals, supervisors, superintendents, or other certificated employees, it will be seen that the legislature's solution to the problem of temporary employment to cover periods of leave by regularly employed teachers was simply that of excluding their substitutes or temporary replacements from the definition of a "certificated employee" as the term is used in chapter 28A.67 RCW ‑ and thus from the coverage of this statute.

            It should be understood, however, that this 1972 enactment (RCW 28A.67.900) only applies in cases involving leaves of absence such as described in your question; i.e., situations in which the regular teacher's employment is not being terminated.2/   The premise upon which the statute is obviously based is that this regular teacherwill be returning to the district at the end of his leave period, so that only a temporary replacement is required.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 28A.67.070 uses the terms "teacher" and "certificated employee" interchangeably and applies solely to those employees of a school district required to hold a teaching certificate for purposes of teaching in or administering the common schools.  See, Champion v. Shoreline School District No. 412, King County, 81 Wn.2d 672 (1972), wherein the court at page 676 concluded:

            "Our examination of the school code leads to the conclusion that the legislature, whenever it used the term 'certificated employee' or 'certificated personnel' in the school code, used it with reference to persons who hold teaching certificates. . . ."

2/With respect to such leaves see, in addition to AGO 1973 No. 9, supra, AGO 57-58 No. 49 [[to Paul Klasen, Prosecuting Attorney, Grant County on April 16, 1957]], copy enclosed.

 

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