                                                                                                                            FILED
                                                                                                                           Oi- A° PE iI S
                                                                                                                        DlY! S1O N 1
                                                                                                                 2014 AUG   26     AN   314
      IN THE COURT OF APPEALS OF THE STATE OF WASHIT;                                                                       ti _
                                                                                                                                          I

                                                             DIVISION II ' ,'
                                                                                                                            PU

LYNDA SCHLOSSER,                                                                          No. 44750 79 -II


                                              Appellant,


            v.



BETHEL SCHOOL DISTRICT,                                                              PUBLISHED OPINION


                                              Respondent.


            HUNT, P. J. —              Lynda Schlosser, a certified teacher with the Bethel School District,


appeals the superior court' s order affirming a hearing officer' s decision that the District had

probable cause to " terminate" her employment. She argues that the superior court erred in ruling
                                                 1
that ( 1)    her   post - "     deprivation "        hearing satisfied her due process rights and, therefore, she was

not   entitled         to   a   predeprivation        hearing;   and (   2)   substantial evidence supported the hearing

officer' s       Findings         of   Fact   and     Conclusions   of    Law that Schlosser      was     an "   unsatisfactory"


teacher. The District counters that ( 1) Schlosser was not entitled to a predeprivation hearing; and

 2) the     hearing         officer' s record showed " sufficient cause"             for the District' s declining to renew

her   contract.             We hold that Schlosser was not entitled to a predeprivation hearing, that she

received         due   process, and       that   substantial evidence supported        the   hearing   officer' s   decision. We


affirm the superior court' s affirmance of the hearing officer' s ruling that the District had

probable cause not to renew Schlosser' s teaching contract.




1
    The   parties use           the term " deprivation"       as synonymous with " termination         from   employment,"         in
contrast with nonrenewal of a                    teacher'   s annual contract.
No. 44750 -9 -II



                                                                FACTS


             From the mid -1980s until 1998, Lynda Schlosser taught business in the Clover Park

School District.          In 1998, she began teaching at Bethel High School, where she continued to

teach business         related subjects.        Like all Washington teachers, Schlosser had annual evaluations

                                                                                                   1002: (

that   addressed       seven    teaching       criteria specified     in RCW 28A.405.                          1)   instructional skill;


 2)    classroom       management; (       3)     professional       preparation       and   scholarship; ( 4) efforts toward


improvement          when needed; (       5)    handling    student       discipline   and attendant problems; (              6) interest


in teaching         students;    and (   7) knowledge           of   subject   matter.       A teacher receives a rating of

    Satisfactory" or " Unsatisfactory" in each category and overall. Clerk' s Papers ( CP) at 4.

             From 1998 through 2008, all of Schlosser' s evaluation reports for her teaching at Bethel

High School          were "    Satisfactory."        CP    at   5.   On Schlosser' s May 29, 2009 report, however,

Assistant Principal Susan Mayne                    rated   Schlosser "      Unsatisfactory" for classroom management

and    handling      student    discipline, "    satisfactory" in the other five areas, and " Satisfactory" overall.

CP     at   5.   In a May 27, 2010 report, Mayne rated Schlosser " Unsatisfactory" in instructional skill,

    satisfactory" in     all other areas, and "       Satisfactory"        overall.    CP    at   5.   But in Schlosser' s May 27,

2011 report a year later, Assistant Principal Brad Westering3 rated Schlosser as " Satisfactory" for

her handling of student discipline and her interest in teaching students, but " unsatisfactory" in all

other areas and        overall. CP at 5.




2
    The legislature       amended        RCW 28A. 405. 100 in 2010.                   LAws        OF   2010,   ch.   235, §   202.   The
amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.



3 Although the hearing officer' s decision refers to the Assistant Principal as " Scott Westering,"
CP     at   136, the   record reveals     that his   name       is " Brad   Westering."       CP at 36.




                                                                      2
No. 44750 -9 -II



           In   a    February          1,    2012 letter, Superintendant of Schools Thomas G. Seigel notified

Schlosser           that    based           on     her     performance           evaluations,       her        overall    performance       was




unsatisfactory;            and   he   placed      her    on a   60- school   -day   probation period effective              February   3.   This


letter   also    included         a plan         for Schlosser'       s   improvement.     To implement this plan, the District


hired Connie West, a retired Peninsula School District administrator, to work with Schlosser

                                                                                                4
with     the   goal of      helping her           return   to a " satisfactory"       status.       CP    at   5.    Over the course of four


months, West conducted eight evaluations of Schlosser, all of which were " Satisfactory" in only

one    category— interest in                 teaching          students —and "      Unsatisfactory" in all other categories and

overall.        CP    at   6.    Because of her husband' s medical issues, Schlosser did not attend the last


evaluation session; however, she did attend the others with her union representative, Tom

Cruver.


           On May 11, after receiving West' s and Cruver' s reports, Seigel sent a May 11, 2012

letter to Schlosser notifying her he had " determined that probable cause exist[ ed] to nonrenew

 her] employment with Bethel School District No. 403 effective at the end of the 2011 -12 school

year."         CP    at    1146.      Seigel based his determination                  on   Schlosser'          s "   final evaluation and the


supporting          materials         submitted         by [   her]   evaluators,"    which showed that her performance was


unsatisfactory for the                following      statutory


           Criterion 1:               Instructional skill
           Criterion 2:               Classroom management
           Criterion 3:               Professional preparation and scholarship
           Criterion 4:               Effort toward improvement when needed
           Criterion 5:               Handling student discipline and attendant problems

4 Schlosser does not dispute that this improvement plan met statutory requirements.
5 RCW 28A.405. 100( 1)( a).



                                                                             3
No. 44750 -9 -II


            Criterion 7:           Knowledge of subject matter


CP at 1146.


            Schlosser appealed the Superindendent' s decision to a hearing officer under RCW
              2106,   .              7
28A.405.                  310( 4).       Both Schlosser and the District were represented by counsel at the

hearing. The hearing officer took testimony from Seigel, Mayne, and Westering. After 4 days of

testimony involving 38 exhibits, the hearing officer found that the District had established

probable cause to issue Schlosser a notice of nonrenewal of her teaching contract.

            Schlosser      appealed       the   hearing   officer' s   decision to     superior court, which affirmed.         The


superior      court       ruled    that ( 1)     substantial evidence supported the hearing officer' s decision,

including     his Findings          of   Fact   and   Conclusions      of   Law; (2)   the hearing officer' s decision was not

clearly     erroneous or          arbitrary     and capricious; (   3) Schlosser had received due process in that she


had    an    ample        opportunity to be heard            post- deprivation;         and (   4)     she was not entitled to a


predeprivation        hearing under           RCW 28A. 405. 210. Schlosser now appeals to this court.


                                                             ANALYSIS


                                                           I. DUE PROCESS


            Schlosser first argues that the District' s failure to provide a predeprivation hearing before

deciding not to renew her teaching contract violated her constitutionally protected property

interest in     continued           employment.          The District        counters    that (   1)   Schlosser did not have a


property interest in renewing her contract and, thus, she was not entitled to a hearing before the

6
    The legislature        amended        RCW 28A. 405. 210 in 2010. LAWS                 OF    2010,    ch.   235, § 303, effective
June 10, 2010.              The amendments did not alter the statute in any way relevant to this case;
accordingly, we cite the current version of the statute.

7 Both statutes give an aggrieved teacher an opportunity to appeal a superintendent' s decision to
a hearing officer.


                                                                       4
No. 44750 -9 -II



Superindendent issued his                nonrenewal         decision;   nevertheless, (   2) the District provided her with


due process when it followed the post- deprivation review procedures in chapter 28A.405 RCW.

We agree with the District.


                                       A. Standard of Review; Underlying Principles

          Whether the hearing officer' s decision, or the statute supporting the order, violates

constitutional provisions               is   a question of       law,   which we review      de   novo.   Amunrud v. Bd. of

Appeals, 158 Wn.2d 208, 215, 143 P. 3d 571 ( 2006).                          When reviewing an administrative action,

we sit in the same position as the superior court, applying the standards of the Washington
                                         Act8
Administrative Procedure                         directly   to the record    before the agency.       Tapper v. State Emp' t

Sec.   Dep' t,    122 Wn.2d 397, 402, 858 P. 2d 494.( 1993).                      It is undisputed that the State may not

deprive its      citizens of a     property interest         without procedural     due    process.   Cleveland Bd. ofEduc.

v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d. 494 ( 1985).

          But to determine whether the District deprived Schlosser of due process, we must first

determine       whether a     property interest        existed entitling her       to   such protections.   Wash. Indep. Tel.

Ass' n   v.   Wash. Utils. &           Transp.   Comm'      n,   149 Wn. 2d 17, 29, 65 P. 3d 319 ( 2003);     see also Bd. of

Regents of State Coll.            v.   Roth, 408 U. S. 564, 569, 92 S. Ct. 2701, 33 L. Ed. 2d 548 ( 1972).              Such


property interest is "`           defined by existing rules or understandings that stem from an independent

source        such   as   state   law. '        Loudermill, 470 U.S.         at   538 (   quoting Roth, 408 U.S. at 577).

Schlosser cites no Washington authority holding that a certificated teacher has a property interest

in renewing his or her contract.




8
    Chapter 34. 05 RCW.
No. 44750 -9 -II



       If Schlosser had a property interest entitling her to due process protections, then we must

determine    what process      is due.      Wash. Indep. Tel. Ass' n, 110 Wn. App. 498, 508, 41 P. 3d 1212

 2002) (   citing Mathews v. Eldridge, 424 U.S. 319, 334 -35, 96 S. Ct. 893, 47 L. Ed. 2d 18

 1976)), aff'd,     149 Wn.2d 17 ( 2003). Our legislature created a statutory scheme with heightened

procedural due process protections for discharging school certificated employees in general.

RCW 28A.405. 300 -.380.             But it also promulgated a separate set of statutes governing school

district decisions not to renew contracts of certificated employees, such as teachers; these statutes


provide     for   post- decision    review    of   decisions   not   to   renew   a   teacher'   s   contract.   See RCW


28A.405. 210 -.240.         Schlosser does         not   dispute that the District " follow[ ed] the procedures


outlined    for teacher     evaluation and contract nonrenewal"             under chapter        28A. 405 RCW.      Reply

Br. of Appellant at 4.


           Instead, she argues that Washington' s statutory scheme does not provide due process

because it provides for a hearing only after a school district has decided not to renew a teacher' s

contract, not     before.    When applying chapter 28A.405 RCW and when determining due process

protections,      Washington       courts    distinguish between          nonrenewal      of   teachers'    contracts   and




teachers'    discharge from        employment.       See, e.g., Petroni v. Bd. of Dirs. of Deer Park Sch. Dist.

No. 414, 127 Wn.            App.   722, 729, 113 P. 3d 10 ( 2005) (          holding that procedural protections




                                                               6
No. 44750 -9 -1I



governing discharge do                 not   apply to     nonrenewal of      teacher   contracts).   9 This distinction is fatal

to Schlosser' s claims.


           B. Due Process Not Applicable to Nonrenewal under RCW 28A.405. 210 and . 220


           Schlosser           contends      that   the     continuing     contract    statute,   former RCW 28A.405. 220

           10
 2009),         vests     in   certificated     teachers     a right   essentially identical to " tenure."           Reply Br. of

Appellant       at   9.   She argues that ( 1) the statute specifies teachers are " provisional until they have
                                                    11
completed         three   years of service "             with   satisfactory   performance; (     2) thus, once she completed


three " satisfactory" years with the District, her status as a teacher was no longer " provisional ";

 3) as a result, she has the same property interest in continuing employment as that enjoyed by

tenured teachers; and ( 4) we should extend to her the due process predeprivation protections that


some courts          have      required   for tenured       employees.      Br. of Appellant at 40 -41 ( citing McMillen v.

U.S.D. 380, 253 Kan. 259, 266, 855 P. 2d 896 ( 1993)).                                 Schlosser' s attempt to analogize to


tenure fails because ( 1) tenure is a creation of statutory or contract law, not common law; and ( 2)

Washington does                not provide      tenure for      public employees       of "   common     schools,'     which was




9
     See   also   Barnes         v.   Seattle Sch. Dist. No. 1,            88 Wn. 2d 483, 487 -88, 563 P. 2d 199 ( 1977)

    holding that relief under discharge statute unavailable to employees whose contracts not
renewed         because        of school      district' s   adverse    financial   conditions);    Carlson v. Centralia Sch.
Dist. No. 401, 27 Wn.                 App.    599, 605, 619 P. 2d 998 ( 1980) (           holding that " economic reasons,"
reduction in force because of budget cuts, were probable cause for nonrenewal of teachers'
contracts and the district complied with statutory requirements for nonrenewal, which " derive

from due process requirements ").

10
     The legislature           amended       RCW 28A.405. 220 in 2010. LAWS OF 2010,                   ch.   235, § 203, effective
June 10, 2010.                 The amendments did not alter the statute in any way relevant to this case;
accordingly, we cite the current version of the statute.
11
     Reply Br. of Appellant at 9 -10.



                                                                       7
No. 44750 -9 -II


                                 12
Schlosser'    s status   here.        Kirk   v.   Miller, 83 Wn.2d 777, 778, 780, 522 P. 2d 843 ( 1974) ( quoting


former RCW 28A. 05. 010 ( 1969), recodifzed as RCW 28A.230. 020).


           Washington'     s    statutory     scheme        distinguishes between "     common      school   provisions,"



governed      by   Title 28A RCW,             and "   higher      education,"   governed   by   Title 28B RCW.      As a


teacher in Bethel School District, Schlosser falls under Title 28A RCW:


            Common schools" means schools maintained at public expense in each school
           district and carrying on a program from kindergarten through the twelfth grade or
           any part thereof including vocational educational courses otherwise permitted by
           law.


RCW 28A. 150. 020.              Common schools include public schools, such as Bethel High School.


RCW 28A. 150. 010.


           As our Supreme Court explained 40 years ago:


            T] enure statutes change the common -
                                                law right of boards of education to contract
           with teachers, by changing the system from one of tenure by contract ending
           automatically at the expiration of the contract to one of a permanent tenure period.
           We emphasize that a continuing contract statute such as ours, providing for
           automatic     renewal       of    teachers'      contracts in the absence of notice, does not
           establish tenure for teachers.

                                                            13
Kirk, 83 Wn.2d      at   780 ( emphasis           added).




           Title 28B RCW tenure provisions and cases addressing continued employment of tenured

teachers do not apply to this case; instead, Washington' s applicable statutory scheme includes

specific procedures, "          derive[ d] from due         process,"    governing contract renewal for teachers such

as Schlosser. See Carlson v. Centralia Sch. Dist. No. 401, 27 Wn. App. 599, 605, 619 P.2d 998

12
       Schlosser taught    at    Bethel High School,             a public school.   As a certificated teacher, she was
subject to chapter 28A.405 RCW. See RCW 28A.405. 900.

13 (
       Citing State ex rel. Mary M. Knight Sch. Dist. No. 311 v. Wanamaker, 46 Wn.2d 341, 345,
281. P. 2d 846 ( 1955); 78 C. J. S. Schools              and     School Districts § 180 ( 1952)).




                                                                     8
No. 44750 -9 -II



 1980).     RCW 28A.405. 210 expressly limits a certificated teacher' s contract term to not more

than one year, which one -year term is automatically renewal for an additional year if the

employee        is    not notified    in writing       on or   before   May      15. If a school district decides not to renew


a teacher' s contract for the following school year, the statute requires the district' s May 15

notification to specify the cause for nonrenewal and gives the employee a right to request a
           14
hearing.         RCW 28A.405. 210.


          As we have explained:


           T]he Washington law dealing with teacher rights and responsibilities is not a true
          tenure law.  Under [ former] RCW 28A.67. 070 [ recodified by LAWS OF 1990, ch.
          33, § 4, current version at RCW 28A.405. 210] every teacher under contract with
          the school district has certain reemployment rights which apply with equal force
          to    all   teachers     without reference           to length     of service.     The statute does not create
          tenured and nontenured classes of teachers with reemployment preferences given
          to the former group and denied to the latter.

Peters v. S. Kitsap Sch. Dist. No: 402, 8 Wn. App. 809, 813, 509 P.2d 67, review denied, 82

Wn.2d 1009 ( 1973) (               second     emphasis         added).        Thus, Schlosser had neither tenure rights to


continue her public school employment nor a property interest in continued employment that is

analogous        to tenure        rights.    We hold, therefore, that in following the statutory procedures and

deciding not to renew Schlosser' s teaching contract, the District did not deprive her of a property

interest requiring due process.




14 The District also emphasizes that requiring a pretermination or prenotice of nonrenewal
hearing for           every decision        not   to    renew     a   teacher'   s   contract   would   overburden     schools.   In
support,    the District ( 1)         notes   that "[ i] n the spring of 2009, ...              137 of Washington' s 295 school
districts issued [          reduction   in force]       notices   to   more     than 1800     classroom      teachers —representing
3[   percent]          of   all   teachers    in Washington ";               and (   2)   concludes   that    in 2009, Schlosser' s
interpretation would have required 1800 nonrenewal teacher contract hearings throughout the
state. Br. of Resp' t at 32 ( citing CP at 3234 -238).



                                                                         9
No. 44750 -9 -II



          Nevertheless, we address the alternative issue of whether the District' s following the

statutory    procedures accorded            Schlosser due     process.         Thus, we next assume, without deciding,

that renewal of Schlosser' s teaching contract was a property interest and address whether the

statutory procedures the District followed here ( post- deprivation hearing) comported with due

process requirements.




                   C. Statutory Procedures Meet Constitutional Due Process Requirements

          Schlosser          contends   that ( 1)     the cases on which the District relies predated Loudermill


and, thus, no longer apply; and ( 2) Loudermill required the District to afford her a hearing before

it decided       not    to   renew   her teaching      contract.   15 It is irrelevant that these other cases predated

Loudermill for the            following   reasons:      First, in Loudermill the United States Supreme Court held


that a pretermination hearing was necessary before deciding to discharge a public employee; but

it did   not address nonrenewal              of an annual      contract.        Loudermill, 470 U.S.        at     542.   Second,


Loudermill involved Ohio law,                   not    Washington'      s   statutory   scheme.   Third, the Court neither




15 Schlosser relies on Loudermill for the proposition that an " employee is entitled to be afforded
the opportunity to invoke the discretion of the decision                       maker    before the   adverse action."      Br. of
Appellant        at    21.
                        But her reliance is misplaced because the Loudermill Court noted in passing
that in "[   d] immissals forcause," where " the appropriateness or necessity of the discharge may not

be [   clear,]    the only meaningful opportunity to invoke the discretion of the decisionmaker is
likely to be before the termination takes effect." Loudermill, 470 U. S. at 543 ( emphasis added).
Although the Court discussed the value of a pretermination hearing in dismissals for cause, it
never addressed the question of whether an employer must provide a hearing before declining to
renew an employee' s contract. See Loudermill, 470 U. S. at 543.
           Similarly, when we revisited chapter 28A.405 RCW in 2000, after Loudermill, we held
that former RCW 28A.405. 210' s automatic renewal procedures, though " similar to tenure laws,"
did    not create " a        true tenure law."      Moldt v. Tacoma Sch. Dist. No. 10, 103 Wn. App. 472, 482,
12 P. 3d 1042 ( 2000) (              emphasis    added).     And     although we        held that "[   r] egular    teachers"   are

entitled    to "   a   formal    appeal procedure upon nonrenewal,"                we did not hold that a school district
must hold a pretermination hearing before deciding not to renew a teacher' s contract. Moldt, 103
Wn. App. at 482 ( citing former RCW 28A.405. 210 ( 1996)).



                                                                   10
No. 44750 -9 -II



addressed nor held that post- deprivation procedures deprive employees of due process; on the


contrary, the Court noted that sometimes such procedures may be sufficient to provide due

process. Loudermill, 470 U. S. at 542 n.7.


         Although our Washington State courts have not yet directly addressed the issue before us
                                                                                                                 16
here,   our    Supreme Court has        reviewed        a   former   codification   of   RCW 28A.405. 210,            former


RCW 28A. 67. 070 ( 1970), in the              context of a     budget- driven     reduction   in   staff.   Pierce v. Lake


Stevens Sch. Dist. No. 4, 84 Wn.2d 772, 774 -75, 529. P. 2d 810 ( 1974).                       In Pierce, the court ( 1)


considered that former RCW 28A.67. 070 ( a) required a district to provide notice before deciding

not to renew a contract and (b) entitled an aggrieved employee to request a hearing; and ( 2) held

that the "    procedural requirements of        due     process as    laid down   by the   Supreme Court ...          are met




by   these statutes."        Pierce, 84 Wn.2d      at   777.    Applying our Supreme Court' s Pierce rationale

here, we similarly hold that the District' s post- deprivation review, which followed the statutory

requirements, met procedural due process requirements. Pierce, 84 Wn.2d at 777.


                                               II. SUFFICIENT EVIDENCE


         Schlosser also argues that the hearing officer lacked substantial evidence to support his

conclusion that she was an unsatisfactory teacher, thereby justifying nonrenewal of her teaching

contract.       The District       counters    that the "     numerous evaluations conducted by experienced

administrators       identified    several   deficiencies in Ms. Schlosser'         s   teaching" and gave the hearing

officer substantial evidence on which to base his findings that the District established that




16 The legislature recodified former RCW 28A.67. 070 as RCW 28A.405. 210 according to LAWS
OF   1990,     ch.   33, §    4.   Neither the recodification nor the subsequent amendments to RCW
28A.405. 210 in 1996, 2005, 2009, and 2010, altered the May 15 deadline to notify a teacher that
a school district would not renew his or her contract.




                                                                11
No. 44750 -9 -I1



Schlosser'   s    performance          was    unsatisfactory.         Br.   of   Resp' t   at    18.    We hold that substantial


evidence supported the hearing officer' s decision.

                                                   A. Standards of Review


         We review a hearing officer' s administrative decision to determine whether the officer

acted arbitrarily, capriciously, or contrary to law. Haynes v. Seattle Sch. Dist. No. 1, 111 Wn.2d

250, 255, 758 P. 2d 7 ( 1988).                An " arbitrary and capricious" act means " willful and unreasoning

action   in disregard          of   facts and   circumstances."            Washington Waste Sys.,            Inc. v. Clark County,

115    Wn.2d       74,    81,       794 P. 2d    508 ( 1990).           Where there         is    room      for two      opinions,   an




administrative action is not arbitrary or capricious if the agency rendered its decision honestly

and with due consideration, even if we believe that the agency reached an erroneous conclusion.

Freeman      v.   State, 178 Wn.2d 387, 403, 309 P. 3d 437 ( 2013); Porter v. Seattle Sch. Dist. No. 1,


160 Wn. App. 872, 880, 248 P. 3d 1111 ( 2011).

         We       review   the      hearing   officer' s   factual determinations          under       the "` [   c] learly erroneous '

standard.     Clarke      v.   Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 109 -10, 720 P. 2d 793 ( 1986)

                                                               17).
 quoting former RCW 28A. 58. 480( 5) ( 1976)                           A factual determination is clearly erroneous if it

is   not supported       by    substantial evidence        in the     record.       State v. Jeannotte, 133 Wn.2d 847, 856,


947 P. 2d 1192 ( 1997).              When reviewing the application of the law to the facts, we determine the

applicable law de novo and give deference to the hearing officer' s factual determinations.

Clarke, 106 Wn.2d at 109 -10. Like the superior court sitting in its appellate capacity, we confine

our review of the hearing officer' s decision to the verbatim transcript and the evidence admitted

at the hearing. See RCW 28A.405. 340.


17
     Recodified    as    RCW 28A.405. 340 ( LAWS              OF      1990,   ch.   33, § 4).



                                                                      12
No. 44750 -9 -II



                 B.   Statutory Grounds for Nonrenewal of Teacher' s Contract for Cause

          Our legislature has given a public school superintendent authority to not renew a

certificated employee' s contract            based   on probable       cause.   RCW 28A.405. 210.                If a teacher' s


performance is not satisfactory, the school must establish a probationary period of 60 school
                                            18
days.    RCW 28A.405. 100( 4)( b).               If a teacher' s deficiencies are remediable, the district must

also    provide       the    teacher      with "     a    reasonable     program          for     improvement."            RCW

                                                                                                                30019

28A.405. 100( 4)(     a).    A   finding    of probable      cause   exists   under       RCW 28A.405.                  or RCW


28A. 405. 210 if the teacher fails to              make "    necessary improvement[ s]                during the established

probationary period, as specifically documented in writing with notification to the [ teacher]."

RCW 28A.405. 100( 4)( b).           Deficiencies in a teacher' s professional skill and competency may be

grounds    for   nonrenewal of      the teacher' s       contract.   RCW 28A.405. 100( 4)( b);             see also Myking v.

Bethel Sch. Dist. No. 403, 21 Wn.                  App. 68,    72 -73, 584 P. 2d 413 ( 1978), review denied, 91


Wn.2d 1010 ( 1979).


          The District evaluated Schlosser' s professional skill and competency using the statutory

minimum      criteria: "      Instructional skill; classroom management, professional preparation and


scholarship; effort toward improvement when needed; the handling of student discipline and

attendant problems;          and   interest in   teaching     pupils   and    knowledge         of subject matter."            RCW


28A.405. 100( 1)(     a).    Based on Schlosser' s repeated unsatisfactory ratings in six of the seven

18
     The legislature   amended      RCW 28A.405. 100 in 2010. LAws                   OF   2010,   ch.    235, § 202, effective
June 10, 2010. It       amended     the    statute again    in 2012. LAWS       OF   2012,      ch.   35, § 1, effective June

7, 2012. The amendments did not alter the statute in any way relevant to this case; accordingly,
we cite the current version of the statute.

19
     The legislature        amended    RCW 28A. 405. 300 in 2010.               LAWS      OF    2010,    ch.   235 §    305.    The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.



                                                               13
No. 44750 -9 -II



criteria,   the Superintendent decided             not   to   renew         her   contract.     The hearing officer concluded

that Schlosser' s evaluations gave the Superintendent probable cause, under RCW 28A.405. 210,

not to renew her contract.


                                           C. Unsatisfactory Performance

            Schlosser argues that substantial evidence did not support the hearing officer' s decision

that the District had probable cause to not renew her contract and, therefore, his decision was

                                     Br.         Appellant            45.     She
                                                                                    asserts20




 arbitrary    and capricious."             of                   at                              that the hearing officer lacked

substantial evidence to enter finding of fact 2 ( that Schlosser' s evaluations showed she was
                                                                   321 (

deficient),     and     additional   finding       of    fact               that Schlosser could not have attended a


predeprivation meeting and that it was highly improbable that a different result would have

occurred      had   she   been   afforded such an         opportunity).            Schlosser also contends that the hearing

officer' s conclusion of law 6 ( that due process does not require the Superindendent to hold a


hearing      with   a   teacher before     issuing      a notice       of nonrenewal),          and conclusion of law 3 ( the

overall     conclusion     that the District       proved       that Schlosser         was not     a    satisfactory      teacher),   are




contrary to the weight of the evidence and should be set aside.

                                           1.    Finding      of    fact 2:   evaluations




            Schlosser argues that substantial evidence did not support the hearing officer' s finding of

fact 2 that her           evaluations    showed         she   was      deficient.       The District counters that school



20 Schlosser assigns error to various factual findings and legal conclusions in the hearing
officer' s    decision.     But the hearing officer did not separately number all of his findings and
conclusions.


21
     The hearing officer did not formally designate this statement as a finding of fact; rather, he
prefaced      three of his    findings   of     fact   with   the    statement: "      In   addition,   I   note: ...."      CP at 12.
We treat these statements as findings of fact despite their not having been numbered.



                                                                     14
No. 44750 -9 -II



administrator           Susan         Mayne,       Brad     Westering,           and    Connie       West' s   consistent     evaluations


criticizing Schlosser' s teaching constituted substantial evidence to support this finding.

Although Mayne' s 2009 and 2010 evaluations concluded that Schlosser' s performance was


satisfactory overall, they also included .criticisms about her teaching, which the hearing officer

found to be "          accurate,      fair   and   true."   CP    at   8.   And in 2012, Mayne considered Schlosser to be


     close   to the bottom ' in all evaluation categories. CP at 8.


             Westering' s 2010 and 2011 evaluations raised similar criticisms and found Schlosser' s

performance            to be unsatisfactory          overall.      West' s 2011 and 2012 evaluations included " most of


the   same       findings    as ...     in the prior year" and also evaluated Schlosser as unsatisfactory overall.

CP    at   8.    Westering      concurred          in West'   s evaluations (      covering         January   through   May   2012), thus


providing consistent evaluations of Schlosser' s unsatisfactory performance over a three -year

period. Thus, substantial evidence supports this finding.

                                2. Additional          finding     of   fact 3: predeprivation meeting


                Schlosser next argues that substantial evidence does not support the hearing officer' s

additional finding of fact 3 that it was " highly improbable" that a predeprivation meeting with

the Superindendent would have produced a different result. Br. of Appellant at 47. The hearing
                                                                                       facts22: (

officer      based this      challenged        finding      on   the   following                     1) Schlosser, the evaluators, and


the union representative were scheduled to meet on May 10, 2012, but Schlosser could not attend

because her husband               was    ill; (2)    the District was required to notify Schlosser by May 15, 2012 if

it    chose      not   to   renew      her   contract; (    3)    Schlosser presented no evidence that she could have


attended a meeting with the Superindendent between May 10 and May 15; and ( 4) in light of the

22
     The hearing officer did not assign numbers to these additional findings of fact.



                                                                            15
No. 44750 -9 -II



information before the Superindendent, it is unlikely that a predeprivation meeting would have

produced a different result.


          The   hearing     officer   heard the     following       evidence: (     1) that the short time between the


May 10 final evaluation and the May 15 deadline, along with Schlosser' s husband undergoing

open   heart     surgery, could reasonably have prevented Schlosser from meeting with the

Superindendent before             May   15; (   2) that Schlosser' s teaching was unsatisfactory; and ( 3) that,

according to two evaluators, Schlosser failed to remedy her deficiencies during the probationary

period.   We hold that substantial evidence supported the hearing officer' s factual finding that it

was highly improbable that a predeprivation meeting with the Superindendent would have
                                                        23
produced a      different   result   for Schlosser.


                             3.    Conclusion      of   law 3:   unsatisfactory performance

          Schlosser   assigns error       to the    hearing      officer' s "   overall conclusion that [ she] was not a



satisfactory teacher is contrary to the             weight of       the   evidence    and should   be   set aside."   Br. of


Appellant at 2. The District argues that the evidence from several educators consistently showed

that Schlosser was not qualified and that the Superindendent properly decided against renewing

her teaching     contract.     We     agree with     the District.        Washington courts defer to the expertise of


school principals and administrators in evaluating teacher qualifications:

          Without doubt, . . .   professional educators have more expertise in [ evaluating
          teacher qualifications] than do members of the judiciary.



23 We note, however, that whether Schlosser could have attended a predeprivation meeting and
whether such a meeting would have produced a different outcome matter only if Schlosser had
been entitled to such a meeting. Because chapter 28A.405 RCW does not require a meeting
before a school district decides not to renew a teacher' s contract, Schlosser was not entitled to
such a meeting.




                                                                  16
No. 44750 -9 -1I


Arnim v. Shoreline Sch. Dist. No. 412, 23 Wn. App. 150, 156, 594 P. 2d 1380, review denied, 92

Wn.2d 1022 ( 1979).          Whether sufficient cause exists to nonrenew a teacher' s contract is a legal


conclusion and " should not               be disturbed          unless   it   constitutes an error of     law." Griffith v. Seattle


Sch. Dist. No. 1, 165 Wn.              App.   663, 671, 266 P. 3d 932 ( 2011) (              citing Clarke, 106 Wn.2d at 110),

review denied, 174 Wn.2d 1004 ( 2012).


        Schlosser' s evaluations° were thorough; they comprehensively summarized classroom

topics, the   events    during         the    course       of   the lessons,      and   student    and   teacher   activities.   They

included specific suggestions about how Schlosser could improve her classroom instruction.


They graded Schlosser on the seven statutory criteria and her progress over the course of the

semester, and supported these observations with specific events that occurred during class
                                                                                                                                        24
sessions.     Schlosser'     s    final    evaluation, which             included West'       s   and   Westering'   s   evaluations,



summarized the results of 16 classes over the course of almost 3 months, plus 7 evaluations or


conferences       relating        to   Schlosser'      s    teaching          performance.         These    evaluations      provided


substantial evidence to support the Superindendent' s decision not to renew Schlosser' s teaching

contract.



        The       hearing        officer     also   reviewed         these       evaluations.       He based his decision on


Westering'    s   and   West'      s    evaluations         and    testimonies,         38   exhibits,    and Assistant Principal


Mayne' s and Superindendent Seigel' s testimonies. And Schlosser has not shown that the hearing




24 West and Westering also based their final evaluation on the seven statutory criteria in RCW
28A.405. 100( 1)( a).




                                                                         17
No. 44750 -9 -II


                                                                                           25
officer   willfully   and   unreasonably disregarded facts           and circumstances.          See Washington Waste


Sys., Inc., 115 Wn.2d at 81.


          We hold that ( 1) the hearing officer' s findings of fact that Schlosser was an unsatisfactory

teacher were not clearly erroneous because substantial evidence convincingly showed that
                                         26
Schlosser    was "    unsatisfactory "        over    the   course    of   the   semester; (    2)   substantial   evidence




supports the hearing officer' s overall conclusion that the District was justified in not renewing

Schlosser' s teaching contract; and ( 3) the hearing officer did not act arbitrarily, capriciously, or

contrary to law. See Haynes, 111 Wn.2d at 255.

                                                    III. ATTORNEY FEES


          Schlosser    requests reasonable          attorney' s fees   under     RAP 18. 1.      Because we affirm the


superior court, we deny Schlosser' s request for fees.

          We affirm.




I concur:




25 Schlosser asserts that the evaluators were biased, emphasizing her satisfactory teaching
evaluations for over 25 years and an evaluator' s one -
                                                      time disagreement with her use of the word
  principal. "'   Br.   of   Appellant   at   12:    Schlosser raised this argument before the hearing officer,
who considered and rejected these claims of bias.


26 Clarke, 106 Wn.2d at 109 -10.


                                                              18
No. 44750 -9 -II


        WoRSwIcK, J. (     dissenting) — I respectfully dissent. RCW 28A.405. 310( 8) gives Lynda

Schlosser a property interest in her contract' s renewal. Because she had such an interest,

procedural due process entitled Schlosser to an informal pre- deprivation hearing. See Cleveland

Bd. ofEduc. v. Loudermill, 470 U. S. 532, 545- 46, 105 S. Ct. 1487, 84 L. Ed. 2d 494 ( 1985).


Bethel School District did not provide Schlosser a hearing prior to its decision to nonrenew her

contract, thus violating her procedural due process rights.

                    I. SCHLOSSER HAD A PROPERTY INTEREST IN CONTRACT RENEWAL


         The majority correctly holds that chapter 28A.405 RCW does not provide teachers with

rights analogous to tenure. See Peters v. S. Kitsap Sch. Dist. No. 402, 8 Wn. App. 809, 813, 509

P. 2d 67 ( 1973).    But RCW 28A.405. 310( 8) places substantive procedural restrictions on the


decision maker' s discretion over whether to nonrenew a teacher' s contract, thus giving a teacher

a property interest in his or her contract' s renewal.

          Protected property interests include all benefits to which there is a legitimate claim of

entitlement."    Crescent Convalescent Ctr.        v.   Dep' t of Soc. & Health Servs., 87 Wn. App. 353,

358, 942 P. 2d 981 ( 1997).       A statute creates a legitimate claim of entitlement where it places


substantive procedural restrictions on a decision maker' s discretion. Conard v. Univ. of Wash.,

119 Wn.2d 519, 529 -30, 834 P. 2d 17 ( 1992); Crescent Convalescent Ctr.,                   87 Wn. App. at 358.

Substantive    procedural restrictions are     those    restrictions   containing "'   substantive predicates '   to


guide   the decision   maker' s   discretion   and "`   specific directives to the decision maker that if the


regulations'    substantive predicates are present, a particular outcome must              follow. '   Conard, 119


Wn.2d at 529 -30 ( quoting Ky. Dep' t of Corr. v. Thompson, 490 U.S. 454, 462 -63, 109 S. Ct.

1904, 104 L. Ed. 2d 506 ( 1989)).        A statute stating that an employee can be deprived of



                                                           19
No. 44750 -9 -II



employment only " for cause" constitutes a substantive procedural restriction. See Cain v.

Larson, 879 F. 2d 1424, 1426 ( 7th Cir. 1989). RCW 28A.405. 310( 8) is such a statute.


       RCW 28A.405. 310( 8) states:


       Any final decision by the hearing officer to nonrenew the employment contract of
       the employee, or to discharge the employee, or to take other action adverse to the
       employee' s contract status, as the case may be, shall be based solely upon the
       cause or causes specified in the notice of probable cause to the employee and
       shall be established by a preponderance of the evidence at the hearing to be
       sufficient cause or causes for such action.


 Emphasis   added.)   RCW 28A.405. 310( 8) comprises a substantive predicate to guide the


decision maker' s discretion over whether to nonrenew a teacher' s contract ( i.e., whether the


stated probable cause for the teacher' s nonrenewal is sufficient to warrant such nonrenewal) and

gives a specific directive to the decision maker that if the stated probable cause is not sufficient,


a particular outcome must follow (i.e., renewal of the teacher' s contract).


       Thus, RCW 28A.405. 310( 8) creates a substantive procedural restriction on the decision


maker' s discretion over whether to nonrenew a teacher' s contract, thereby giving a teacher a

property interest in his or her contract' s renewal. This restriction entitles a teacher facing his or

her contract' s nonrenewal to procedural due process protections.


             II. DUE PROCESS ENTITLES SCHLOSSER TO A PRE -DEPRIVATION HEARING


        The majority alternatively assumes arguendo that Schlosser had a property interest in her

contract' s renewal, and then holds that the District' s compliance with chapter 28A.450 RCW' s


post- deprivation hearing procedures satisfied due process. While due process requires a far less

elaborate pre- deprivation hearing where a full post- deprivation hearing exists, such a full post

deprivation hearing does not remove due process' s pre- deprivation hearing requirement.

Loudermill, 470 U.S. at 545 -46; Clements v. AirportAuth. of Washoe County, 69 F. 3d 321, 332


                                                  20
No. 44750 -9 -II


 9th Cir. 1995);      Tellevik v. Real Prop. Known as 31641 W. Rutherford St., 120 Wn.2d 68, 82,

838 P. 2d 111, 845 P.2d 1325 ( 1992).


             Even where a full post- deprivation hearing is available, due process requires a hearing

prior to deprivation of a property interest, absent extraordinary circumstances. Loudermill, 470

U. S.   at   542, 546; Tellevik, 120 Wn.2d     at   83. The "' root requirement' of the Due Process Clause


 is] ` that   an individual be given an opportunity for a hearing before he is deprived of any

significant     property interest. "'   Loudermill, 470 U. S. at 542 ( quoting Boddie v. Conn., 401 U.S.

371, 379, 91 S. Ct. 780, 28 L. Ed. 2d 113 ( 1971)).


             Due process does not always require that this pre- deprivation hearing be a full

evidentiary      hearing.   Tellevik, 120 Wn.2d      at   82 -83. The required scope of the pre- deprivation


hearing      is determined   by balancing   three factors: ( 1) the   private   interest   affected; ( 2)   the risk of


erroneous deprivation of that interest through existing procedures and the probable value, if any,

of additional procedural safeguards; and ( 3) the governmental interest, including costs and

administrative burdens of additional procedures. Loudermill, 470 U.S. at 542 -43; Mathews v.

Eldridge, 424 U. S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976); Tellevik, 120 Wn.2d at 82.


             In Loudermill, the United States Supreme Court balanced these factors to determine what

process was due to two public employees who were terminated without a pre -deprivation


hearing, but who had an opportunity for a full post- deprivation hearing under former OHIO REV.

CODE ANN. § 124. 34 ( 1979). Loudermill, 470 U.S. at 536 -37, 546. The Supreme Court held that


even    though     former OHIO REV. CODE ANN. § 124. 34 provided the public employee with an


opportunity for a full post -deprivation hearing, due process nonetheless required provision of a

pre- deprivation hearing. Loudermill, 470 U.S. at 545 -48.



                                                             21
No. 44750 -9 -II



          But the Supreme Court held that because former OHIO REV. CODE ANN. § 124. 34 gave


the teacher a full post- deprivation hearing, the pre- deprivation hearing need not be elaborate or

formal,   as   long    as   it   provides   the employee with "[ t]he   opportunity to present reasons, either in

person or      in writing, why        proposed action should not    be. taken." Loudermill, 470 U.S. at 546.


The pre- deprivation hearing " need not definitively resolve the propriety of the discharge. It

should be      an   initial      check against mistaken   decisions —essentially,   a determination of whether

there are reasonable grounds to believe that the charges against the employee are true and


support   the   proposed action. i27          Loudermill, 470 U. S. at 545 -46.


          In determining that the post- deprivation hearing met constitutional due process

requirements, the majority distinguishes Loudermill in three ways. I address each in turn.

          First, the majority asserts that whereas the Loudermill Court addressed a decision to

terminate an employee' s contract, Schlosser' s contract was merely nonrenewed. But the

Loudermill Court' s holding applies to any decision that deprives an employee of his or her

property interest in " retaining            employment."    See Loudermill, 470 U. S.    at   542 -43. A teacher


with a property interest in renewal of his or her contract, whose contract is nonrenewed, has been

deprived    of   his   or   her property interest in " retaining   employment."      Thus, the distinction between


discharge and nonrenewal does not remove the need for a pre- deprivation hearing in Schlosser' s

case.




27 The majority mentions the District' s concern that requiring a pre- deprivation hearing to
teachers whose contracts are nonrenewed would overburden schools, given the number of
teachers whose contracts are nonrenewed. Because the pre- deprivation hearings need not be
formal or elaborate, the government interest in avoiding the minimal administrative burden of
these informal hearings does not overcome the public employees' strong private interest in
continued employment and the high risk of erroneous deprivation of that interest without a pre -
deprivation hearing. See Loudermill, 470 U.S. at 544.


                                                              22
No. 44750 -9 -II



          Second, the majority asserts that whereas Loudermill concerned former OHIO REV. CODE

ANN. § 124. 34' s procedural protections, Schlosser' s case concerns chapter 28A.405 RCW' s


procedural protections. But an opportunity for a full post- deprivation hearing exists in both

former OHIO REV. CODE ANN. § 124. 34 and chapter 28A.405 RCW. Given that former OHIO


REV. CODE ANN. §       124. 34' s full post- deprivation hearing did not remove due process' s pre -

deprivation hearing requirement; chapter 28A.405 RCW' s full post- deprivation hearing does not

remove due process' s pre- deprivation hearing requirement.

          Finally, the majority asserts that the Loudermill Court stated that in certain rare cases, due

process does not require a pre- deprivation hearing. But the two cases cited by the Loudermill

Court as examples of this phenomenon were cases in which an extraordinary circumstance, the

need to immediately seize potentially harmful products before they reached consumers, was

present.   See Loudermill, 470 U.S.         at   542   n. 7   ( citing   Ewing   v.   Mytinger &    Casselberry, Inc., 339

U. S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 ( 1950); N. Am. Cold Storage Co. v. Chi., 211 U.S. 306,


29 S. Ct. 101, 53 L. Ed. 195 ( 1908)).           Because the District has not raised extraordinary

circumstances in Schlosser' s case, the holdings of Ewing and North American Cold Storage

Company are inapplicable.

          Instead of applying the Loudermill factors, the majority relies on Pierce v. Lake Stevens

School District Number 4, 84 Wn. 2d 772, 529 P. 2d 810 ( 1974), which predates Loudermill. In


Pierce,    our   Supreme Court    stated   th at "[ t] he     procedural requirements of       due    process ...    are met




by [ Washington' s    statutory   hearing procedures            for   nonrenewal of      teacher'   s contracts],"   despite


those procedures lacking a pre- deprivation hearing opportunity. Pierce, 84 Wn.2d at 775, 777;

see   former RCW 28. 67. 070 ( 1973). Because Pierce was decided before Loudermill, and because




                                                                23
No. 44750 -9 -II



in Pierce, our Supreme Court discussed the necessity of pre- deprivation hearings only in passing,

reliance on Pierce is misplaced. See Pierce, 84 Wn.2d at 775.


       I would hold that Schlosser had a property interest in her contract' s renewal, and that the

District' s failure to provide Schlosser with any pre- deprivation hearing violated due process.
                                28
Thus, I respectfully dissent.




28
  An issue exists as to the remedy available to Schlosser for the District' s failure to provide her
with a pre- deprivation hearing, given the hearing examiner' s finding that if a pre- deprivation
hearing had occurred, " it [is] highly improbable that there would have been any different result."
Clerk' s Papers at 12; see Carey v. Piphus, 435 U.S. 247, 260, 267, 98 S. Ct. 1042, 55 L. Ed. 2d
252 ( 1978); Bullo v. City of Fife, 50 Wn. App. 602, 610, 749 P. 2d 749 ( 1988); Nickerson v. City
ofAnacortes, 45 Wn. App. 432, 440 -41, 725 P. 2d 1027 ( 1986). But at the very least, Schlosser

would be entitled to nominal damages, plus any damages proven to have resulted directly from
the denial of a pre- deprivation hearing. See Carey, 435 U.S. at 263 -64, 267.

                                                 24
