Simmons v. Vancouver School Dist. No. 37

• Decision Date: 06 August 1985
• Docket Number: No. 6554-1-II,6554-1-II
• Citation: 704 P.2d 648,41 Wn.App. 365
• Parties: , 27 Ed. Law Rep. 347 Charles L. SIMMONS, Appellant, v. VANCOUVER SCHOOL DISTRICT NO. 37, Respondent.
• Court: Washington Court of Appeals

Page 365

41 Wn.App. 365

704 P.2d 648, 27 Ed. Law Rep. 347

Charles L. SIMMONS, Appellant, v. VANCOUVER SCHOOL DISTRICT NO. 37, Respondent.

No. 6554-1-II.

Court of Appeals of Washington,

Division 2.

Aug. 6, 1985.

Review Denied Oct. 4, 1985.

Gilbert H. Kleweno, Boettcher, LaLonde, Kleweno, Witteman & Schreiber, Vancouver, Catherine O'Toole, Washington Educ. Ass'n, Federal Way, for appellant.

Dennis R. Duggan, Gallup & Duggan, Vancouver, for respondent.

REED, Acting Chief Judge.

Charles L. Simmons appeals his dismissal from employment as a junior high school teacher with Vancouver School District No. 37 (District). The dismissal was based upon Simmons' insubordination and violation of District regulations pertaining to the corporal punishment of students. We affirm.

According to the hearing officer's unchallenged findings of fact, Charles L. Simmons has been employed by the District as a teacher since the 1975-76 school year. His initial performance reviews generally were favorable. On May 21 1980, while Simmons was teaching at Lewis Junior High School, he received an evaluation in which he was advised to improve his classroom discipline and to use the "referral system," i.e., to refer students to the administrative office for discipline. Simmons' evaluator also instructed him to be assertive in the classroom, but not to touch a student in anger.

The District transferred Simmons to Jason Lee Junior High School for the 1980-81 school year. During an orientation meeting between faculty and administration, Simmons and other faculty members were told that a school district regulation required that corporal punishment be administered only by administrative personnel. ¹

On December 18, 1980, Simmons with his hand struck a student, one Feyen, on the jaw. The next day, the school's acting principal, Mr. Doenecke, delivered to Simmons a letter which stated in part:

The purpose of this letter is to officially admonish you for using an inappropriate action to correct a classroom management problem....

It must be clearly understood that in the future no form of physical action that could be labelled forceful is to be used by you as a disciplinary measure....

It is necessary to point out to you that any further acts where you direct physical force against a student will be considered direct insubordination and may result in more serious disciplinary measures as outlined in Vancouver School District Policy 4118. These disciplinary measures may include suspension without pay or separation. ²

During a conference, Doenecke also told Simmons that the striking of Feyen's head violated state law. ³ Doenecke also told Simmons that although classroom discipline by teachers was encouraged, the use of physical force toward a student was not allowed, and that Simmons should have referred Feyen to the administrative office for discipline.

On April 10, 1981, Simmons met with Mr. Hoke, principal of Jason Lee Junior High School. They discussed Hoke's evaluation of Simmons' classroom performance. Hoke recommended that Simmons be more assertive in keeping the students working on their lessons. In an evaluation report delivered to Simmons on May 4, 1981, Hoke requested that Simmons take a course in assertive discipline. Simmons declined. That same day, while disciplining a student, one Swihart, Simmons pinched the skin area between Swihart's neck and shoulder, causing a red mark. In a notice of suspension dated May 7, 1981, Simmons was told that the grounds for his suspension were unprofessional conduct, "utilization of excessive, unnecessary and improper physical force upon a student for discipline reasons," and "[a]ssault and battery upon a student that was not legally justified." Simmons expressly waived his right to a hearing and accepted the suspension.

During the last week of September 1981, Simmons struck a student, one Weise, in the chest during a disciplinary incident. The hearing examiner found that the blow was not violent, but that it caught Weise by surprise, causing him to cry. On October 6, 1981, Simmons disciplined one Brown by squeezing the boy's shoulder in a manner similar to that he had employed with Swihart. The hearing officer found that the action involved slight pressure and was not administered in anger. In another disciplinary action on October 7, 1981, Simmons, with the back of his open hand, slapped Brown on the chest, causing him to lose his breath.

On October 13, 1981, the District's superintendent, Mr. Parsley, stated in a letter to Simmons that, based upon Simmons' use of physical contact when disciplining Feyen, Swihart, Weise, and Brown, as well as the nondisciplinary striking of another student, Parsley had determined that there was probable cause to discharge Simmons for unprofessional conduct, insubordination, use upon students of excessive force for disciplinary reasons, and assaults upon students.

On December 9 and 10, 1981, a hearing was held to determine whether there was sufficient cause for Simmons' discharge. The hearing officer found that Simmons was aware of the referral system and that after his suspension from employment, Simmons knew or should have known of "the serious nature of any physical discipline if used in a classroom setting." He also found that Simmons had been informed that the pinching of Swihart's neck violated school district policy. He stated that none of the disciplinary incidents occurring after the suspension involved excessive force, and that "the incidents taken alone without reference to each other would not have justified Mr. Simmons [sic] termination."

The hearing officer stated in his written opinion that the school administration "was being affected by the conflict over [the] following of school policies regarding school discipline," but that "the school district did not prove by a preponderance of the evidence that Mr. Simmon's [sic] teaching performance was materially and substantially affected by his classroom [disciplinary] conduct." He stated, however, that, when a discharge is based upon insubordination or a violation of a rule, it is not necessary to consider whether the teacher's misconduct affected his teaching efficiency or teaching performance, and held that Simmons' use upon Brown of a disciplinary measure almost identical to that for which he was suspended "was a clear violation of the [District's] regulations and [was] justification for discharge based on violation of the rule or insubordination." Simmons' discharge was affirmed by the Superior Court.

Our review is based upon the record of the hearing, not that of the Superior Court. RCW 28A.58.480, .500. See, e.g., Coupeville Sch. Dist. 204 v. Vivian, 36 Wash.App. 728, 677 P.2d 192, review denied, 101 Wash.2d 1018 (1984); Potter v. Kalama Sch. Dist. 402, 31 Wash.App. 838, 644 P.2d 1229 (1982). Cf. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113, cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983) (review under RCW 34.04.130(6) is on the record of the administrative tribunal). The scope of our review is prescribed by RCW 28A.58.480. ⁴ Pryse v. Yakima Sch. Dist. 7, 30 Wash.App. 16, 21, 632 P.2d 60, review denied, 96 Wash.2d 1011 (1981); RCW 28A.58.500. ⁵ The standards of review prescribed by RCW 28A.58.480 are identical to those prescribed by RCW 34.04.130(6), part of Washington's Administrative Procedures Act (APA). Therefore, we construe RCW 28A.58.480 consistently with the APA. See Pryse, 30 Wash.App. at 21, 632 P.2d 60.

Under RCW 28A.58.480(5), a court reviewing the factual determinations of a hearing officer inquires whether those determinations are "clearly erroneous in view of the entire record as submitted and the public policy contained in [RCW 28A.58.450 and RCW 28A.58.455]...." RCW 28A.58.480(5). See Sellers, 97 Wash.2d at 324-25, 646 P.2d 113; Pryse, 30 Wash.App. at 21-23, 632 P.2d 60. Issues of law are reviewed de novo, i.e., under the error of law standard, the reviewing court may determine "what the law is." Sellers, 97 Wash.2d at 325-26, 646 P.2d 113; Potter, 31 Wash.App. at 840, 644 P.2d 1229; Adams v. Clover Park Sch. Dist. 400, 29 Wash.App. 523, 525, 629 P.2d 1336 (1981). Review of the application of the law to the facts involves a combination of the above two standards of review: a reviewing court makes a de novo determination of the law that is applicable, but gives deference to the hearing officer's factual determinations, reviewing them under the 'clearly erroneous" standard. See Sellers, 97 Wash.2d at 329-30, 646 P.2d 113.

Simmons concedes that he engaged in the conduct that the hearing officer determined violated Regulation 5159.5, the District's rule pertaining to corporal punishment of students. ⁶ He contends that the term "corporal punishment" means only spankings, and therefore that because he did not spank the students, he did not violate any law or District regulation. His only basis for this argument is the following exchange between Doenecke and the hearing officer:

EXAMINER NICHOLS: Basically when you're talking corporeal [sic] punishment you're talking about paddling?

THE WITNESS: That's right.

EXAMINER NICHOLS: Is there any other form of corporeal [sic] punishment that's being used?

THE WITNESS: No.

Only by a perverse interpretation of Doenecke's testimony can his statements be construed to define "corporal punishment" as Simmons contends. When read in context, Doenecke was stating that "paddling" was the only form of corporal punishment that the District used on students. Corporal punishment plainly means physical, as opposed to pecuniary, punishment. Black's Law Dictionary 306 (5th Ed.1979).

Even if Simmons was ignorant of the meaning of the term "corporal punishment," there is no question that in the letters and conferences he was told what conduct was prohibited. He had sufficient notice of what conduct was proscribed, Stastny v. Board of Trustees, 32 Wash.App. 239, 253, 647 P.2d 496, ...