Foster v. Carson School Dist. No. 301, Skamantia County

• Decision Date: 03 October 1963
• Docket Number: No. 36619,36619
• Citation: 63 Wn.2d 29,385 P.2d 367
• Court: Washington Supreme Court
• Parties: Harry S. FOSTER, Appellant, v. CARSON SCHOOL DISTRICT NO. 301, SKAMANIA COUNTY, Washington, Respondent.

Page 29

63 Wn.2d 29

385 P.2d 367

Harry S. FOSTER, Appellant, v. CARSON SCHOOL DISTRICT NO. 301, SKAMANIA COUNTY, Washington Respondent.

No. 36619.

Supreme Court of Washington, Department 1.

Oct. 3, 1963.

Foster & Foster, Donald J. Horowitz, Olympia, for appellant.

Robert J. Salveson, Pros. Atty., Skamania County, Stevenson, for respondent.

ROSELLINI, Judge.

This case involves teacher tenure rights. RCW 28.58.450 provides:

'Every board of directors determining that there is probable cause for the discharge of a teacher * * * shall notify such employee of its decision, which notification shall specify the probable cause for discharge. 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 days after receiving such notice, be granted opportunity for hearing before the board of directors of the district, to determine whether or not there is cause for discharge. The 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 such 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 such employee in writing of its final decision. Any decision to discharge such employee shall be based solely upon the cause for discharge specified in the notice of probable cause to the employee and established by a preponderance of the evidence at the hearing to be sufficient cause for discharge.

'In the event such notice and opportunity for hearing is not timely given by the district, or in the event cause for discharge is not established by a preponderance of the evidence at the hearing, such employee shall not be discharged for the duration of his or her contract.

'If such employee does not request a hearing as provided herein, such employee shall be discharged. [1961 c 241 § 2.]'

RCW 28.58.460 provides:

'Any teacher * * * desiring to appeal from any action or failure to act upon the part of a school board relating to the discharge * * * may, within thirty days after his receipt of such decision or order serve upon the clerk of the school board and file with the clerk of the superior court in the county in which the school district is located a notice of appeal which shall also set forth in a clear and concise manner the errors complained of. [1961 c 241 § 3.]'

The appellant was employed as a teacher by the respondent school district under a contract of employment for the school year 1961-1962. On January 12, 1962, he was personally served with a letter signed by the secretary of the board of directors of the school district, stating that at a regular meeting of the board it was unanimously agreed by resolution to discharge him. The letter set forth the 'grounds for dismissal' after stating:

'Your dismissal shall be effective immediately, and you are requested to return to Mr. William F. Shelley, Principal of the Carson Elementary School, the keys, class room grade book and class plan book now in your possession.'

Within thirty days after receipt of this notice, the appellant appealed to the superior court, claiming that the board has erred in discharging him unconditionally without giving him notice of probable cause and an opportunity to be heard.

The appeal was heard upon affidavits, and the trial court determined that the board had acted without authority when it purported to discharge the appellant without giving him ten days' notice of its intention. The court further held, however, that since the discharge was a nullity, the appellant should have disregarded the language purporting to notify him of his discharge and should have requested a hearing within ten days in spite of it. Consequently, the trial court held, the appellant failed to exhaust his administrative remedy, and the discharge became effective ten days after the letter of notification. The court ruled that the school district should pay the appellant his salary for that ten-day period only.

In effect, the trial court held that the respondent had complied with the requirements of the statute. The appellant correctly contends that the court erred in this determination.

The statute expressly provides that if notice of probable cause and an opportunity for hearing is not timely given, a...