       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

COLLIN WILLIAMS,
                                                 No. 71194-6-1
                     Respondent,
                                                 DIVISION ONE
              v.



SEATTLE SCHOOL DISTRICT NO. 1,                   UNPUBLISHED OPINION

                     Appellant.                  FILED: April 27, 2015


       Becker, J. — The Seattle School District decided not to renew the

teaching contract of veteran certified teacher Collin Williams. A hearing officer

determined that the District had sufficient cause for its decision. Williams

appeals, arguing that the District used inapplicable criteria to evaluate him.

Because Williams agreed to participate in the District's new teacher evaluation

system, we reject this claim. The record also supports the hearing officer's

determination that Williams failed to achieve the required level of proficiency

during his probation period. We affirm.

                                      FACTS

       The Seattle School District first employed Collin Williams as a full-time

middle school teacher in 1991. In May 2011, toward the end of the 2010-2011

school year, the assistant principal at Williams's school conducted an annual

evaluation of Williams. The evaluator rated Williams as less than proficient in
No. 71194-6-1/2



each of four criteria: planning and preparation, classroom environment,

instruction, and professional responsibility. This evaluation also included a 60-

day support plan designed to assist Williams in achieving proficient ratings in the

2011-2012 school year. The plan called for periodic reviews to assess his

progress.

      A new assistant principal became Williams's primary evaluator at the

outset of the following school year. The assistant principal prepared five reports

based on classroom observations that took place during the support period,

between October and December 2011. At the end of the support period, the

evaluator again rated Williams as below proficient in each category and

recommended a performance improvement plan.

       In January 2012, the district superintendent notified Williams that he would

be placed on probation for 60 days in order to remediate his performance

deficiencies. The assistant principal was again one of Williams's evaluators

during his probation. During Williams's probation, the assistant principal

prepared three progress reports and ultimately concluded that Williams had

become proficient in one category, but otherwise remained not proficient.

       A second evaluator independently reviewed Williams's performance

during his probation. The second evaluator also prepared three progress reports

and at the end of the probationary period, determined that Williams was not

proficient in any of the four areas. In May 2012, the District informed Williams of

its decision not to renew his employment contract for the 2012-2013 school year

because he failed to make necessary improvement during his probation and,
No. 71194-6-1/3



specifically, because he did not achieve proficient ratings in all four categories as

required for a teacher of his experience level.

       Williams requested a hearing. See RCW 28A.405.310. During a two-day

hearing, a hearing officer considered the testimony of six witnesses and

numerous exhibits and found, by a preponderance of the evidence, that the

District had sufficient cause for its decision not to renew Williams's contract.

Williams appealed to the superior court, and the superior court affirmed. See

RCW 28A.405.320. Williams now appeals to this court.

                             EVALUATION CRITERIA

       According to RCW 28A.405.340, a hearing officer's decision to uphold an

adverse action regarding a teacher's contract may be overturned only ifthe

decision: (1) violates constitutional provisions, (2) exceeds the statutory authority

or jurisdiction of the board or hearing officer, (3) was rendered according to

unlawful procedures, (4) is affected by an error of law, (5) is clearly erroneous in

view of the entire record and the public policy contained in the act of the

legislature authorizing the decision or order, or (6) is arbitrary or capricious. We

review the factual determinations of a hearing officer to determine whether those

determinations are clearly erroneous. Clarke v. Shoreline Sch. Dist. No. 412,

106 Wn.2d 102, 109, 720 P.2d 793 (1986). Unchallenged factual findings of the

hearing officer are verities on appeal. Tapper v. Emp't Sec. Dep't, 122 Wn.2d

397, 407, 858 P.2d 494 (1993). We review the findings and conclusions of the

hearing officer, owing no deference to the superior court's decision. See, e.g.

Clarke, 106 Wn.2d at 110-11.
No. 71194-6-1/4



         Williams contends that the District used the wrong criteria to evaluate him.

In particular, he claims he should not have been evaluated using criteria set forth

in an evaluation tool called the Professional Growth and Evaluation system

because before the 2012-2013 school year, the District had not fully adopted this

system.

         The hearing officer's findings expressly address this argument. The

version of RCW 28A.405.100 in effect at the time of the relevant events in this

case required each public school district to adopt a new comprehensive system

to evaluate classroom teachers and to implement that system within a span of

three years beginning with the 2010-2011 school year. See former RCW

28A.405.100(1)(b), (7)(b) (2010). In accordance with this statutory directive, the

District and the Seattle teachers' union agreed to adopt a new teacher evaluation

system in the 2010-2013 Collective Bargaining Agreement. The hearing officer

found:


         While the [Collective Bargaining Agreement] provided a phase-in of
         the [Professional Growth and Evaluation system] over a three year
         period, Mr. Williams requested to voluntarily participate in the
         [Professional Growth and Evaluation] system and its comprehensive
         evaluation procedures for the 2010-2011 school year (Ex. 5) even
         though he could have remained under the old system until the
         [Professional Growth and Evaluation] system was fully implemented.

Finding of Fact 11.

         The hearing officer determined that the District properly evaluated

Williams under the criteria established by the Professional Growth and

Evaluation system and Williams's claim that he should have been evaluated

under the system previously used by the District "has been waived because Mr.
No. 71194-6-1/5



Williams voluntarily requested participation" in the new system. "While the

results of that participation were certainly not to his liking or what he expected,

that does not change the legal impact of his decision."

       Williams does not challenge the hearing officer's factual findings or legal

determinations. The hearing officer's finding that Williams requested to be

evaluated under the new system is based on an "Individual Voluntary Request"

form that Williams signed on November 4, 2010. The form states:

       I am requesting pursuant to Article XI, Section H of the Collective
       Bargaining Agreement, as an individual certificated staff member,
       to voluntarily participate in the Professional Growth and Evaluation
       system. I acknowledge I will be placed on a comprehensive
       evaluation of the [Professional Growth and Evaluation] system for
       2010-11.


       Williams makes two arguments as to why, despite his signature on this

document and his testimony that he voluntary chose to participate in the new

evaluation system, the District should have evaluated him under the system that

was being replaced. First, he contends that the form is not valid because it was

signed on November 4, 2010, and that under the "Date of Request" line, the

document contains the following pre-printed language "Deadline: Must be

received by SEA and SPS Regional Executive Director on or before October 15,

2010." Second, he claims that even if valid, the form requested participation in

the new system for only one year, the 2010-2011 school year.

       A chief problem with these arguments is that Williams did not raise them

below. At the hearing, Williams asserted that the request form had no effect

because the District had no authority to adopt criteria that were inconsistent with

the requirements of the governing statute, RCW 28A.405.100. Williams now
No. 71194-6-1/6



simply claims that the hearing officer misinterpreted the scope of his written

request. He does not allege any manifest errors affecting a constitutional right,

and this court need not consider the arguments raised for the first time on

appeal. RAP 2.5(a).

       But even if Williams had properly raised these claims below, the language

of the document does not support his subjective interpretation of it. Consistent

with his testimony at the hearing, the document clearly demonstrates Williams's

intent to participate in the new evaluation system. We fail to see how the

deadline date for receipt by certain District personnel affects or invalidates that

request. The document does not state what, if any, consequence will occur if the

document is received by the identified District employee after October 15, 2010.

Likewise, nothing in the document indicates that Williams's request to opt into the

new system expired at a particular point or required renewal for the 2011-2012

school year.

       As the hearing officer noted, article XI, section H of the Collective

Bargaining Agreement provided for Williams's voluntary participation. That

section of the agreement set forth the implementation of the new evaluation

system. For the 2010-2011 school year, "Level One" schools, new District

employees, and employees in their first four years of teaching were required to

be evaluated under the new system. A school not yet required to implement the

system could do so upon two-thirds vote of certificated staff. Individual staff

members could also voluntarily opt into the new system, and those who did so

qualified for certain District positions.
No. 71194-6-1/7



       For the 2011-2012 school year, the agreement required all employees in

"Level Two" schools to adopt the new system. And again, schools and individual

staff members could voluntarily move onto the new system early. In the final

phase, the 2012-2013 school year, the agreement required "all remaining

employees" to be evaluated according to the new system.

       The agreement does not state a deadline for an individual staff member to

opt into the new system. And nothing in the agreement suggests that an

individual teacher's or a school's voluntary participation in the new system before

such participation is mandatory is temporary or reversible. The agreement does

not mention reversion to the previous system or renewal of a prior request to

participate. Instead, the agreement provides that teachers and schools move

into the new system either according to the mandatory schedule or before, by

request. In sum, neither the form Williams signed nor the agreement by which

the District adopted the new teacher evaluation tool supports Williams's claim

that his request was invalid because it was not signed by a specific date or

because his request was valid only for the 2010-2011 school year.

                   SUFFICIENT CAUSE FOR NONRENEWAL

      Williams also contends that the District lacked sufficient cause not to

renew his contract. Public school district superintendents have authority under

RCW 28A.405.210 to not renew a certificated employee's contract based on

probable cause. "Lack of necessary improvement during the established

probationary period, as specifically documented in writing with notification to the
No. 71194-6-1/8



probationer!,]... shall constitute grounds for a finding of probable cause under

RCW 28A.405.300 or 28A.405.210." Former RCW 28A.405.100(4)(a) (2010).

       But here again, Williams fails to acknowledge or challenge the relevant

findings of the hearing officer. The hearing officer found that under the

Professional Growth and Evaluation system adopted by the District, teachers are

evaluated in four "domains," each with five or six "observable components."

Findings of Fact 7, 8. The hearing officer further found that there are four ratings

available for each component: unsatisfactory, basic, proficient, and distinguished

and that "teachers with four or more years of experience, such as Mr. Williams,

must be proficient in all domains." Finding of Fact 10.

       According to the hearing officer's findings, none of the three evaluators

rated Williams as proficient in all domains. In fact, only one evaluator rated

Williams as proficient in any domain. Accordingly, based on the evidence

presented, the hearing officer found "that, at the conclusion of the probationary

period, Mr. Williams was not proficient in all four domains as required" by the

Professional Growth and Evaluation system. Finding of Fact 42. And based on

this finding, the hearing officer determined that the District satisfied its burden of

proving that Williams was "not proficient in all four domains" and there was

"sufficient cause for the non-renewal" of Williams's teaching contract. Conclusion

of Law 4.


       Williams's evaluations gave the superintendent probable cause, under

RCW 28A.405.210, not to renew his contract. Williams points to evidence that

he attempted to comply with the support plan and the performance improvement


                                           8
        No. 71194-6-1/9



        plan. He also claims there is no evidence that his teaching deficiencies were not

        remediable or that he materially breached a promise to teach. Williams does not

        explain how these asserted facts relate to the statutory standard of probable

        cause or to the evaluative criteria adopted by the District. He does not allege,

        much less establish, proficiency in all four domains, which is undisputedly

        required under the Professional Growth and Evaluation system.

                There is substantial evidence in the record that Williams failed to achieve

        proficiency in all four domains during his probation. Accordingly, the hearing

        officer and superior court did not err in concluding that the District had sufficient

        cause not to renew Williams's contract.

                Affirmed.




                                                                  d*e£s '
        WE CONCUR:                                                           ZJ

             I f* U< e n^       ^j"




        :n
Z-'     CD

.::•    cr>

•r:
         S
t,.-

?.:      r-


o
         Hi

 \ ~-
         cr>
