AGLO 1975 No. 90 - Nov 24 1975
DISTRICTS ‑- SCHOOLS ‑- CONTRACTS ‑- LABOR ‑- LEGAL STATUS OF SUBSTITUTE TEACHERS
(1) An employee organization which has obtained the right, under RCW 28A.72.030, to represent the certificated employees of a school district has the right to represent substitute certificated teachers employed by that school district as well.
(2) Except to the extent that the records involved are required to be made under RCW 42.17.250, et seq., (Initiative No. 276), a school district is not required to provide an employee organization with the names and addresses of its substitute teachers.
(3) The provisions of RCW 28A.67.070 which require school boards to employ teachers by means of "written orders" and to execute "written contracts" with such teachers, do not apply to the employment of substitute teachers.
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November 24, 1975
Honorable Arthur C. Brown
State Representative, First District
6626 N.E. 182nd, Apt. 207
Seattle, Washington 98155 Cite as: AGLO 1975 No. 90
By recent letter you have requested our opinion on several questions pertaining to the legal status of substitute teachers employed by a public school district to replace regularly contracted teachers ". . . who are unable to be present in the classrooms for various reasons" such as ". . . personal illness, personal emergencies, attendance at workshops, institutes and the like, . . ." We paraphrase your questions as follows:
(1) Does an employee organization which has obtained the right, under RCW 28A.72.030, to represent the certificated employees of a school district thereby have the right to represent substitute certificated teachers employed by that school district as well?
(2) If question (1) is answered in the affirmative, is a school district required to provide such an employee organization with the names and addresses of its substitute teachers so that the employee organization may solicit the membership of those teachers and communicate with them for the purpose of representing them in their employment relations with the district?
(3) Do the provisions of RCW 28A.67.070 which require school boards to employ teachers by means of "written orders" and to execute "written contracts" with such teachers, apply to the employment of substitute teachers as above described?
We answer question (1) in the affirmative, question (3) in the negative, and question (2) in the manner set forth in our analysis.
RCW 28A.72.030 provides that:
[[Orig. Op. Page 2]] "Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the certificated employees within its school district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of directors of the school district or a committee thereof to communicate the considered professional judgment of the certificated staff prior to the final adoption by the board of proposed school policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties."
The term "certificated employee" is defined by RCW 28A.72.020 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."
Addressing itself to these statutes, the Pierce County Superior Court recently held, inFranklin Pierce Education Ass'n et al. v. Franklin Pierce School District No. 402, Cause No. 218283, that:
"Under the definition of 'certificated employee,' contained in RCW 28A.72.030, [sic] substitutes do meet the test both as to certification and employment for such time as they are serving."
Based upon this determination, the court then ruled as follows:
"In the absence of any prohibition by statute and having in mind the declaration of purpose, RCW 28A.72.010, and the special requirements to become a substitute, I find no reason in the statutes of our state why FPEA may not negotiate in respect to the substitute teachers."
[[Orig. Op. Page 3]] We are in full agreement with the foregoing superior court ruling which, as we understand it, has not been appealed. On that basis, we answer your first question, as above paraphrased, in the affirmative. Moreover, although the law upon which this question is based, chapter 28A.72 RCW, is due to be replaced by a new teachers' collective bargaining act (chapter 288, Laws of 1975, 1st Ex. Sess.) on January 1, 1976, it would appear to us that certificated substitute teachers will also come within the definition of "employee" under that law. See, § 3(4) thereof which provides:
"The terms 'employee' and 'educational employee' means any certificated employee of a school district, except:
"(a) The chief executive officer of the employer.
"(b) The chief administrative officers of the employer, which shall mean the superintendent of the district, deputy superintendents, administrative assistants to the superintendent, assistant superintendents, and business manager. Title variations from all positions enumerated in this subsection (b) may be appealed to the commission for determination of inclusion in, or exclusion from, the term 'educational employee'.
"(c) Confidential employees, which shall mean:
"(i) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and
"(ii) Any person who assists and acts in a confidential capacity to such person.
"(d) Unless included within a bargaining unit pursuant to section 9 of this 1975 act, any supervisor, which means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if in connection with the foregoing the [[Orig. Op. Page 4]] exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment, and shall not include any person solely by reason of their membership on a faculty tenure or other governance committee or body. The term 'supervisor' shall include only those employees who perform a preponderance of the above‑specified acts of authority.
"(e) Unless included within a bargaining unit pursuant to section 9 of this 1975 act, principals and assistant principals in school districts."
As far as the ability of an employee organization to obtain the names and addresses of substitute teachers is concerned, we would think that such information could be obtained by the employee organization in question through the channels provided for in the "public records" chapter of Initiative No. 276, now codified as RCW 42.17.250-42.17.340 ‑ assuming, of course, that the school district in question maintains some form of written record of the names and addresses of its substitutes. See, AGO 1973 No. 4 [[to Robert B. Schillberg, Prosecuting Attorney, Snohomish County on January 19, 1973]]and AGO 1975 No. 15 [[to Jack G. Nelson, Director, Department of Motor Vehicles on July 17, 1975]], copies enclosed.1/ However, since nothing contained in that law requires a public agency to create a written public record for the sole purpose of then providing a copy of that record to a person requesting same, it follows that if no such written records are maintained in a given case, the employee organization will have to resort to some other approach in order to obtain the names and addresses of the substitute teachers which it desires. We know of no existing statute other than the foregoing which would legally obligate a school district to provide such information to an employee organization. In view of our affirmative answer to your first question, however, we would be rather surprised to find a school district refusing to cooperate, voluntarily, with a duly recognized employee organization seeking the information in question.
[[Orig. Op. Page 5]]Question (3):
Of course, turning to your final inquiry regarding the contract status of substitute teachers, if such teachers were covered by the provisions of RCW 28A.67.070, written records of their employment would be required because of the fact that this statute contains, in its first paragraph, the following provision:
"No teacher, principal, supervisor, superintendent, or other certificated employee, holding a position as such with a school district, hereinafter referred to as 'employee', shall be employed except by written order of a majority of the directors of the district at a regular or special meeting thereof, nor unless he is the holder of an effective teacher's certificate or other certificate required by law or the state board of education for the position for which the employee is employed." (Emphasis supplied.)
Furthermore, RCW 28A.67.070 then goes on to say that:
"The board shall make with each employee employed by it a written contract, . . ." (Emphasis supplied.)
The problem, however, is that RCW 28A.67.900, codifying § 3, chapter 142, Laws of 1972, Ex. Sess., says 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 constitutional rights of such employee be limited, abridged, or abrogated."
Accordingly, teachers employed by a school district to replace certificated employees who have been granted leave by a school district, including "sick" leave under RCW 28A.58.100, are not subject to the above quoted provisions of RCW 28A.67.070. In short, we must answer your final question, which raises this specific issue, in the negative.
[[Orig. Op. Page 6]] It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Note, however, that RCW 42.17.260(5) prohibits a public agency from supplying lists of the names of individuals for commercial purposes unless specifically authorized or directed by law to do so. For a detailed discussion of the scope of both of these underscored terms, see AGO 1975 No. 15 [[to Jack G. Nelson, Director, Department of Motor Vehicles on July 17, 1975]],supra.