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AGO 1977 No. 23 - December 09, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- CONTRACTS ‑- PROBATIONARY PERIOD FOR PROVISIONAL SCHOOL EMPLOYEES

The completion of a probationary period under RCW 28A.67.065 is not a pre‑condition to the nonrenewal of a provisional school district employee during his or her first year of employment under RCW 28A.67.072.

                                                              - - - - - - - - - - - - -

                                                                December 9, 1977

Honorable Curtis Ludwig
Prosecuting Attorney
Benton County
P.O. Box 510
Prosser, Washington 99350

                                                                                                                 Cite as:  AGO 1977 No. 23

ATTN:  !ttDennis D. Yule,

            Deputy Prosecuting Attorney

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Does RCW 28A.67.072, relating to certain school district employees, require that a "provisional employee" (as defined therein) be placed on probationary status by February 1 of a given school year in accordance with the provisions of RCW 28A.67.065 in order then to be nonrenewed?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 28A.67.072 provides, in material part, as follows:

            "Notwithstanding the provisions of RCW 28A.67.070 as now or hereafter amended, every person employed by a school district  [[Orig. Op. Page 2]] in a teaching or other nonsupervisory certificated position shall be subject to nonrenewal of employment contract as provided in this section during the first year of employment by such district.  Employees as defined in this section shall hereinafter be referred to as 'provisional employees'.

            "In the event the superintendent of the school district determines that the employment contract of any provisional employee should not be renewed by the district for the next ensuing term such provisional employee shall be notified thereof in writing on or before May 15th preceding the commencement of such school term, which notification shall state the reason or reasons for such determination.  Such notice shall be served upon the provisional employee personally, or by certified or registered mail, or by leaving a copy of the notice at the place of his or her usual abode with some person of suitable age and discretion then resident therein.  The determination of the superintendent shall be subject to the evaluation requirements of RCW 28A.67.065, as now or hereafter amended.

            ". . .

            "This section applies to any person employed by a school district in a teaching or other nonsupervisory certificated position after June 25, 1976.  This section provides the exclusive means for nonrenewing the employment contract of a provisional employee and no other provision of law shall be applicable thereto, including, without limitation, RCW 28A.67.070, and chapter 28A.88 RCW, as now or hereafter amended."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            As earlier explained in AGO 1977 No. 13 [[to Curtis Ludwig, Prosecuting Attorney of Benton County, on June 8, 1977]], copy enclosed, this statute is a recent enactment1/ which, by its terms, establishes the exclusive means of nonrenewing the employment contracts of school district "provisional employees."  This new statute constitutes an exception to RCW 28A.67.070, the continuing contract law, which previously applied to all school district certificated employees.  Its primary purpose, quite apparently, is to establish a form of probationary period which new employees must serve before they are entitled to the more significant protections against contract nonrenewals which RCW 28A.67.070 affords.

            In AGO 1977 No. 13,supra, we concluded that a person newly employed by a school district in a teaching or other supervisory certificated position remains a "provisional employee," within the meaning of RCW 28A.67.072, supra, for a twelve‑month (or 365 day) period commencing on the date of his employment and ending one year later.  In addition, we there advised that the special procedures for contract nonrenewal which are provided for under the new statute in the case of provisional school district employees

            ". . . may only be utilized if notice of nonrenewal is given by not later than the May 15th date which falls within the term of an individual's first year of employment as above defined."

            Your present question, in essence, is a follow-up to our earlier opinion and it involves, basically, the final sentence of the second paragraph of RCW 28A.67.072,supra, which we have above underscored and here repeat for ease of reference as follows:

            "The determination of the superintendent shall be subject to the evaluation requirements of RCW 28A.67.065, as now or hereafter amended."

            Although RCW 28A.67.065 predated the enactment of RCW 28A.67.072,supra, it was substantially amended by § 3, chapter 114, Laws of 1975, 2nd Ex. Sess.,supra, as a part of the same act by which RCW 28A.67.072 was adopted.  Because of its  [[Orig. Op. Page 4]] length it would unduly burden this opinion to quote its provisions in full, However, in brief summary, RCW 28A.67.065 ‑

            (1) Directs the state superintendent of public instruction to adopt minimum evaluation criteria for certificated school employees based on several legislatively mandated categories of evaluations;

            (2) Requires common school districts to adopt evaluation criteria which must include the minimum criteria established by the state superintendent;

            (3) Requires evaluation of all employees at least twice a year and all new employees during their first 90 days of employment;

            (4) Establishes the parameters for use of the foregoing evaluation criteria;

            (5) Provides for a probationary period ". . . beginning on or before February 1st and ending no later than May 1st . . ." and, in detail, prescribes the parameters for the utilization, operation and function of that probationary period ‑ including a legislative specification that failure by an employee to complete a probationary period may be invoked as probable cause to nonrenew a certificated employee under RCW 28A.67.070 (the continuing contract law);

            (6) Requires that local school districts develop evaluation criteria and procedures for all superintendents, principals and other administrators;

            (7) Provides every certificated employee with the opportunity to have a confidential conference with his supervisor to critique the performance of the latter; and

            (8) Provides that any person required to perform an evaluation under the statute who fails to accomplish that task may, himself, be nonrenewed or discharged for that failure.

             [[Orig. Op. Page 5]]

            Your question is whether item (5) ‑ the prescribed probation period requirement of RCW 28A.67.065 ‑ is applicable to provisional employees under RCW 28A.67.072; and in resolving that question in the light of the foregoing legislation, we must be guided by the applicable principles of statutory construction.  In this case there would appear to us to be four such rules which are particularly pertinent.  First and foremost, of course, legislative intent is to be deduced, if possible, from the face of the statute.Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965).  Similarly, words used in a statute are to be given their ordinary meaning unless a contrary intent appears.  Foremost Dairies v. State Tax Comm'n, 75 Wn.2d 758, 453 P.2d 870 (1969).  Third, statutes inpari materia are to be construed together.  Champion v. Shoreline Sch. Dist., 81 Wn.2d 672, 504 P.2d 304 (1972).2/   And finally, no construction should be given to a statute which leads to gross injustice or absurdity.  Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).

            Applying these rules of construction to the statutes here involved we initially, but most importantly, note that the language of reference in RCW 28A.67.072,supra, states only that the decision of the school superintendent to nonrenew a provisional employee ". . . shall be subject to the evaluation requirements of RCW 28A.67.065, as now or hereafter amended."  (Emphasis supplied)  Yet, as above noted, RCW 28A.67.065 actually deals with both evaluation requirements and a prescribed probationary period.  Thus, if the legislature, in enacting RCW 28A.67.072, had intended the probationary period also to be a precondition to nonrenewal of a provisional employee it could easily have said so.  It could, for example, have said "the evaluation and probationary period requirement," or simply "the requirements of RCW 28A.67.065" shall be applicable in the nonrenewal of a provisional employee.  Instead, however, the legislature chose to qualify its reference to RCW 28A.67.065 by expressly including only the evaluation requirements of that preexisting statute.  We would take this to mean that what the legislature here intended was simply that a school superintendent, who is required by RCW 28A.67.065 to evaluate his new employees within the first 90 days of employment and at least twice during the school year, must consider the results of that evaluation in making his determination to nonrenew a provisional employee under RCW 28A.67.072,supra.

             [[Orig. Op. Page 6]]

            The same conclusion appears also to be supported by so much of RCW 28A.67.065 as says that:

            ". . .

            ". . .  Lack of necessary improvement [in a probationary period] shall be specifically documented in writing with notification to the probationer and shall constitute grounds for a finding of probable cause under RCW 28A.58.450 or 28A.67.070, as now or hereafter amended.

            ". . ."

            Yet, if the legislature had intended to require the completion of that same prescribed probationary period prior to the nonrenewal of a provisional school employee it would seemingly also have gone on to reference RCW 28A.67.072,supra, within this same sentence of RCW 28A.67.065.

            Third, a conclusion that the February 1 to May 1 probationary period provided for in RCW 28A.67.065 does not apply to provisional school employees is clearly in line with the above‑noted principle that absurd results are to be avoided whenever possible in construing an act of our legislature.  Noting, once again, so much of AGO 1977 No. 13, supra, as concluded that a provisional employee who is to be nonrenewed under RCW 28A.67.072 must be given notice of nonrenewal on or before May 15 of the first year (i.e., twelve‑month period) of employment, it will readily be seen that in a given case the inclusion of that probationary period requirement could entirely frustrate the obvious purpose of that statute.  Consider for example, the case of an individual newly employed by a school district on March 15 of a given year ‑ or six weeks after the deadline for commencement of the statutorily prescribed probation period.  If we were to conclude that the probationary period is a pre‑condition to nonrenewal, such an employee would, under that analysis, have to be placed on probation six weeks before he or she was ever hired.

            And finally, reading the two statutes in pari materia, there seems to us to be the rather obvious factor that under RCW 28A.67.072 the entire "first year of employment," or so much thereof as precedes a given May 1st, is in reality a  [[Orig. Op. Page 7]] probationary period.  Accord, AGO 1977 No. 13,supra.  Therefore, to add the further probationary period provided for in RCW 28A.67.065 in the case of provisional employees would simply be redundant.

            We thus conclude, on the basis of all of the foregoing arguments, that the proper answer to your question (as above paraphrased) is in the negative;i.e., a probationary period under the terms of RCW 28A.67.065 is not a precondition to the nonrenewal of a provisional employee under RCW 28A.67.072.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


RICHARD A. FINNIGAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, chapter 114, Laws of 1975-76, 2nd Ex. Sess.

2/This principle is especially true for the provisions of Title 28A RCW since RCW 28A.98.140 directs that all of the sections of that title be construed in pari materia.

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