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AGO 1968 No. 7 - February 15, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS - SCHOOLS - CERTIFICATED EMPLOYEES - NURSES.

(1) A person who is certificated as a school nurse by the state board of education under the Washington Administrative Code (WAC) 18-84-075 through 090, but who does not hold a certificate which will entitle her to be assigned to a teaching position as a certified teacher, is not a "certificated employee" for the purposes of chapter 143, Laws of 1965.

(2) A school nurse, who is not employed in a supervisory capacity for a school district, and is not employed as a teacher, is not covered by the provisions of RCW 28.58.450 or RCW 28.67.070.

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                                                                February 15, 1968

Honorable Ronald L. Hendry
Pierce County Prosecuting Attorney
County-City Building
930 South Tacoma Avenue
Tacoma, Washington 98402

                                                                                                                   Cite as:  AGO 1968 No. 7

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Does a school nurse who, although certificated as a school nurse by the state board of education under WAC 18-84-075 through 18-84-090, does not hold a certificate which would entitle her to be assigned to a teaching position requiring the services of a certificated teacher, nevertheless qualify as a "certificated employee" for the purposes of chapter 143, Laws of 1965, commonly referred to as the professional negotiations act?

            (2) Is such a school nurse, when not employed in a supervisory capacity, covered by the provisions of RCW 28.58.450 or RCW 28.67.070?

            We answer both questions in the negative, for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            Chapter 143, Laws of 1965 (chapter 28.72 RCW), commonly referred to as the professional negotiations act, relates generally to the right of school district certificated personnel to confer and negotiate with their district directors through use of a representative employee organization.  The purpose of this legislation is spelled out in § 1 as follows:

            "It is the purpose of this act to strengthen methods of administering employer-employee relations through the establishment of orderly methods of communication between certificated employees and the school districts by which they are employed."

            The term "certificated employee" is defined by § 2 of the act to mean:

            ". . . any employee holding a regular teaching certificate of the state and who is employed by any school district with the exception of the chief administrative officer of each local district."

            Thus, the answer to your first question is dependent upon whether the certificate held by a school nurse, under the provisions of WAC 180-84-074 through 180-84-090, is susceptible to being characterized as a "regular teaching certificate of the state."

            The state board of education is empowered by RCW 28.04.120(4), to "supervise the issuance of normal diplomas and teachers' certificates,and determine the types and kinds of certificates necessary for the several departments of the common schools."  (Emphasis supplied.) Pursuant to this authority, the state board has adopted a number of rules which have been codified as chapter 180-84 [[chapter 180-84 WAC]]of the Washington Administrative Code (WAC), providing standards for specialized personnel employed in the common schools.  WAC 180-84-010 contains an enunciation of certain basic principles relative to the purposes served by these specialized personnel.  This rule provides, in material part, as follows:

            ". . .

            "(2) It is recognized that in the modern school program there is need for the services of  [[Orig. Op. Page 3]] specialized personnel whose preparation is different basically from that of the classroom teacher, and that such personnel should be certified to do the work assigned.  Although such special certification will not entitle the holder to be assigned to a teaching position which requires the services of a certificated teacher, it should entitle the school district to claim credit for an educational unit on the same basis as a certificated teacher.

            ". . ." (Emphasis supplied.)

            Among the specialized personnel who are covered by these rules, and by the special certificates issued thereunder, are school nurses.  See, WAC 180-84-075 through 180-84-090, which contain the certification requirements for school nurses.  These certification requirements differ fundamentally from the certification requirements for teachers, which are basically set forth in statutes which have been codified as chapters 28.67 and 28.70 RCW.1/

             Thus, it seems clear that although school nurses who are employed by the public schools in our state do hold a form of certificate granted by the state board of education, the certificate which is granted to a school nurse under WAC 180-84-075 through 180-84-090,supra, is not the same certificate as is granted to a regular classroom teacher.  Since the term "certificated employee," for purposes of the 1965 professional negotiations act, is limited by § 2 thereof to school employees ". . . holding a regular teaching certificate of the state . . ." it thus follows that this term does not include a school nurse who, although certificated as a school nurse, does not  [[Orig. Op. Page 4]] hold a certificate which would entitle her to be assigned to a teaching position.2/

             Question (2):

            Your second question has to do with the applicability of RCW 28.58.450 and RCW 28.67.070 to such school nurses as we are here considering.  The first of these statutes, which relates to the discharge of certain school district employees, commences with the following provision:

            "Every board of directors determining that there is probable cause for the discharge of a teacher, principal, supervisor, or superintendent shall notify such employee of its decision, which notification shall specify the probable cause for discharge. . . ."

            RCW 28.67.070, which relates to the formalities of employment contracts for certain school district employees, is also limited in application to these four classes of employees; i.e., teachers, principals, supervisors, or superintendents.  Taken together these two statutes, commonly known as teacher tenure statutes, were enacted to protect the specified classes of school district employees from arbitrary dismissals and to give to them an opportunity to present evidence and argument as to the basis for a decision to discharge them or not to renew their contracts.  See,Foster v. Carson School Dist., 63 Wn.2d 29, 385 P.2d 367 (1963).

            Obviously, in order for a school nurse to be covered by these statutory provisions, it would be necessary that she be employed either as a principal, superintendent, a teacher, or a supervisor.  It is readily apparent that a school nurse is  [[Orig. Op. Page 5]] neither a principal nor a superintendent.  Nor, as we have seen, is she regarded or certificated as a teacher.  Finally, for purposes of your question, you have stipulated that she is not employed as a supervisor.

            Accordingly, it must follow that such a school nurse is not covered by the provisions of either RCW 28.58.450, supra, or RCW 58.67.070, supra.3/

             We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS C. McKINNON
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Compare, for illustrative purposes, the decision of the Kentucky supreme court in Board of Education of Bowling Green v. Simmons, 245 Ky. 493, 53 S.W. 2d 940 (1932), which concerned the question of validity of the appointment of a school nurse.  among the issues raised was whether such a nurse was required to be certificated teacher.  The court answered this question in the negative, pointing out that the character and nature of the services to be performed by a nurse do not call for nor require the educational qualifications of an instructor or teacher.

2/In thus disposing of your first question, we make no attempt to answer the question of whether a school nurse, who also holds a regular teaching certificate of the state, would thereby qualify as a "certificated employee" for purposes of the professional negotiations act, without regard to the nature of her current employment.  This issue is beyond the scope of the present opinion.

3/Compare Bourne v. Bd. of Education of city of Roswell, 46 N.M. 310, 128 P.2d 733 (1942), in which a school nurse seeking to require the defendant school district to execute renewal contract, argued that she was also a teacher within the meaning of the teacher tenure statutes similar to RCW 28.58.450 and 28.67.070, supra.  However, the court denied this contention, saying:

            "The plaintiff, in the course of her employment, doubtless did instruct the pupils in the principles necessary to the care of their health, which is a very important work, and thus was in a sense a teacher.  She may have been qualified to teach, but she was not a 'teacher' nor one certified as qualified to teach in the sense those words and phrases are used in the statute, since she did not 'hold a teacher's certificate'."  (128 P.2d 738.)

            See, also,State ex rel. Shoreline Etc. v. Sup. Ct., 55 Wn.2d 177, 182, 346 P.2d 999 (1959).

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