DISTRICTS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- CONTRACTS ‑- NONRENEWAL OF CONTRACTS OF PROVISIONAL SCHOOL EMPLOYEES

DISTRICTS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- CONTRACTS ‑- NONRENEWAL OF CONTRACTS OF PROVISIONAL SCHOOL EMPLOYEES

(1) A person newly employed by a school district in a teaching or other supervisory certificated position remains a "provisional employee," within the meaning of RCW 28A.67.072, for a twelve‑month (or 365 day) period commencing on the date of his employment and ending one year later.

(2) The procedures for contract renewal which are provided for under RCW 28A.67.072 in the case of provisional school district employees may only be utilized if notice of nonrenewal is given by not later than the May 15th date which falls within the term of an individual's first year of employment as above defined.

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                                                                    June 8, 1977

Honorable Curtis Ludwig
Prosecuting Attorney
Benton County
P.O. Box 510
Prosser, Washington 99350

                                                                                                                 Cite as:  AGO 1977 No. 13

Dear Sir:

            By letter previously acknowledged you requested our opinion regarding the meaning of the phrase "first year of employment" in RCW 28A.67.072.  For purposes of this response we paraphrase your questions as follows:

            (1) For what period of time does a person newly employed by a school district in a teaching or other nonsupervisory certificated position remain a "provisional employee" within the meaning of RCW 28A.67.072?

            (2) By what May 15th date must notice of nonrenewal of the contract of a "provisional employee" be given in order to be effective for the purposes of RCW 28A.67.072?

             [[Orig. Op. Page 2]]

            We answer both questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            The statute giving rise to your questions, RCW 28A.67.072, is a recent enactment1/ which, by its terms, establishes the exclusive means of nonrenewing the employment contracts of school district "provisional employees."  This new statute constitutes an exception to RCW 28A.67.070, the continuing contract law, which previously applied to all school district certificated employees.

            One of the apparent purposes of RCW 28A.67.072 is to establish a form of probationary period which new employees must serve before they are entitled to the more significant protections against contract nonrenewals which RCW 28A.67.070 affords.  Thus, RCW 28A.67.072 limits the hearing rights of a "provisional employee," in contesting his or her nonrenewal, to an informal conference with the superintendent of the school district and provided only for a limited review of the superintendent's decision by the board of directors of the district.  In marked contrast, the continuing contract law, RCW 28A.67.070, grants "employees" as defined therein the right to contest an intended nonrenewal pursuant to a quasi judicial administrative hearing and to appeal the administrative level decision to superior court.  Also, in the event that the alleged "probable cause" for nonrenewal consists of ". . . a lack of sufficient funds or a loss of levy election . . .," such employees may appeal directly to superior court.  RCW 28A.58.515.

            On the other hand, the two statutes, RCW 28A.67.070 and 28A.67.072, do parallel each other in one important respect.  In language almost identical to that found in the former, the latter also requires that "provisional employees" be provided nonrenewal notices on or before May 15 preceding the commencement of the next ensuing school term.  Accordingly, both statutes evince as one of their central purposes the elimination of uncertainty in the employment plans of both employees and school districts.  See,Robel v. Highline Public Sch. Dist., 65 Wn.2d 477, 398 P.2d 1 (1965).

            Bearing these preliminary points in mind we turn, now to  [[Orig. Op. Page 3]] the controlling language of RCW 28A.67.072 itself.  This new statute reads, in pertinent part, as follows:

            "Notwithstanding the provisions of RCW 28A.67.070 as now or hereafter amended, every person employed by a school district in a teaching or other nonsupervisory certificated position shall be subject to nonrenewal of employment contract as provided in this section during the first year of employment by such district.  Employees as defined in this section shall hereinafter be referred to as 'provisional employees.'

            "In the event the superintendent of the school district determines that the employment contract of any provisional employee should not be renewed by the district for thenext ensuing term such provisional employee shall be notified thereof in writing on or before May 15th preceding the commencement of such school term, which notification shall state the reason or reasons for such determination.  Such notice shall be served upon the provisional employee personally, or by certified or registered mail, or by leaving a copy of the notice at the place of his or her usual abode with some person of suitable age and discretion then resident therein.  The determination of the superintendent shall be subject to the evaluation requirements of RCW 28A.67.065, as now or hereafter amended."  (Emphasis supplied.)

            Question (1):

            Your first question concerns the meaning of the phrase "first year of employment" as used in the opening paragraph of the statute.  Does that phrase mean:

            (a) A calendar year;

            (b) A twelve‑month (or 365 day) period commencing on the date of employment and ending precisely twelve months, or 365 days, later;

            (c) A "school year" which, as defined in RCW 28A.01.020 ". . . shall begin on the first day of September and end with the last day of August.";

            (d) A "year" of approximately nine months during which school is normally in session ‑ commencing  [[Orig. Op. Page 4]] in early September of a given year and ending in early June of the following calendar year;

            (e) A "contract" year ‑ meaning, simply, the period covered by the employee's first employment contract; or, finally,

            (f) The first period of 12-months during which an individual is actually working on the job ‑ discounting such months as July and August when school is not in session?

            In responding to this question we must look to and be guided by the applicable rules of statutory construction which have been developed and enunciated by the courts over the years.  Perhaps the most basic of those rules, as expressed in Schneider v. Forcier, 67 Wn.2d 161, 163, 406 P.2d 935 (1965), is that:

            ". . . first resort is to the context and subject matter of the legislation, consistent with the recognized canon of statutory construction and interpretation that the legislative intent is first to be deduced, if possible, from what it said. . . ."

            Similarly, the courts have instructed on numerous occasions that words used in a statute are to be given their ordinary meaning unless a contrary intent appears.  Foremost Dairies v. State Tax Comm'n, 75 Wn.2d 758, 453 P.2d 870 (1969), and cases cited.  At the same time, care must be taken to avoid the incongruous in construing a statute for, as explained by the court in such cases as Wilson v. Lund, 74 Wn.2d 945, 947, 447 P.2d 718 (1968), and other cases cited therein,

            "It is a rule of such universal application as to need no citation of sustaining authority that no construction should be given to a statute which leads to gross injustice or absurdity."

            Also of significance here is the principle that in the event of an ambiguity, resort may be made to the legislative history of a law.  Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965).  And finally, insofar as the immediate question is concerned, we would make note of the rule which requires that statutes in pari materia be construed together.  See, e.g.,Champion v. Shoreline Sch. Dist., 81 Wn.2d 672, 504 P.2d 304 (1972).  Statutes are in Pari materiawhen  [[Orig. Op. Page 5]] they relate to the same thing, or to the same class of persons or things.  State ex rel. American Piano Co. v. Sup'r Court, 105 Wash. 676, 178 Pac. 827 (1919).  In addition, see, RCW 28A.98.040 which expressly provides that:

            "The provisions of this title, Title 28A RCW, shall be construed in pari materia even though as a matter of prior legislative history they were not originally enacted in the same statute.  The provisions of this title shall also be construed in pari materia with the provisions of Title 28B RCW, and with other laws relating to education.  This section shall not operate retroactively."

            Applying these principles of statutory construction to the language of RCW 28A.67.072, supra, we conclude that the proper answer to your first question is alternative (b), above; i.e., the phrase "first year of employment" as it appears therein means a twelve‑month (or 365 day) period commencing on the date of employment and ending precisely one year later.  Thus, for example, if a given individual is first employed by a school district in a teaching or other nonsupervisory certificated position on August 15 of a given year, that individual will remain a provisional employee until August 15 of the following year ‑ at which time (if his contract has not been nonrenewed pursuant to RCW 28A.72.072) he will become a "regular" school district employee subject thereafter to the provisions of RCW 28A.67.070, the continuing contract law, as opposed to those of RCW 28A.67.072, supra.

            In a sense, we have arrived at the foregoing interpretation of RCW 28A.67.072 by a process of elimination.  Thus, to begin with, we have ruled out alternative (a) ‑ a "calendar" year ‑ both because of the context in which the term here appears and because of the incongruity which would result from that interpretation.  Accord, Sims v. Bremerton, 190 Wash. 62, 66 P.2d 863 (1937), wherein the court, at pp. 63-64, made the following pertinent observation:

            "Ordinarily, the term 'year,' when used in a statute, is presumed to refer to the calendar year.  Virginia-Carolina Chemical Co. v. Wellbrock, 143 S.C. 51, 141 S.E.  [[Orig. Op. Page 6]] 103.  But if the context in which it is used indicates that the legislative intent was otherwise, the term may be construed to mean 'fiscal year,' a period of three hundred sixty-five days, or twelve months.  United States v. Dickson, 40 U.S. 141; Hops v. Poe, 25 Cal.App. 451, 143 Pac. 1072; Glasgow v. Rowse, 43 Mo. 479; In re The Providence Voters, 13 R.I. 737; Paetz v. State, 129 Wis. 174, 107 N.W. 1090;People ex rel. v. Escheman, 63 Colo. 227, 165 Pac. 260;United States v. Mabel Elevator Co., 17 F. (2d) 109; Ex Parte Hewlett, 22 Nev. 333, 40 Pac. 96;Bradley v. Esmeralda County, 32 Nev. 159, 104 Pac. 1058, Ann.Cas. 1912C, 680."

            Here the term "year" is used exclusively in context with the employment of "provisional" school district employees who, as a matter of common knowledge, are normally employed for an annual school term that commences on or about September first and significantly overlaps portions of two calendar years.  We cannot believe that the legislature intended to ignore that traditional employment period practice.  Furthermore, to construe "year" as here meaning "calendar year" could be taken to mean that a person first employed on, for example, September 1 of 1977, would remain a provisional employee until January 1, 1979, because of a necessity to have served continuously during the entire period of a calendar year ‑ an interpretation resulting in an absurdity or, at least, something close thereto.  Thus, we would also reject that approach under the rule of Wilson v. Lund, supra, and similar cases.

            Turning, next, to alternatives (c) and (d), we rule out both of them on the basis, primarily, of the legislative history of the statute.  As initially considered and passed by the House of Representatives in the form of House Bill No. 1364, the measure spoke in terms of an individual's ". . . firstschool year of employment by such district . . ."  (Emphasis supplied.)  And, according to recorded debate on the floor of the house, that terminology was apparently understood to mean a normal teaching year

            "'. . . starting two days before school begins, when teachers normally have their initiative day, when they get the program and go to the classroom, and extends to the last day of school which should be a 180  [[Orig. Op. Page 7]] or 182-day contract.'"2/

             Likewise, as then considered and amended by the Senate, the bill continued to speak in terms of "school years" although the Senate version called for a person to remain a "provisional employee" during ". . . the first full three consecutive school years of employment . . ."  (Emphasis supplied.)3/   Following passage of the Senate version of the proposed law, however, the House refused to concur in the Senate amendments and, accordingly, the bill was then referred to a conference committee.  In turn, the final version of the measure, as enacted, was the product of a conference committee report which deleted the qualifying word "school" and also returned the time span covered to a single year.4/   Thus, as enacted, the law provides that a person is to remain a "provisional employee" only ". . . during the first year of employment . . ." with a given school district.

            Had the legislature intended either to key RCW 28A.67.072, supra, to the statutory definition of "school year" in RCW 28A.01.020,supra, or to the customary nine‑month school term, it seemingly would not have acquiesced in the critical language change inherent in the conference committee report.  Moreover, it seems highly significant to note, in addition, that in a later section of the same bill the contrasting term "school year" was retained.  See, RCW 28A.67.073, which codifies § 9 of chapter 114, supra (SHB No. 1364) and governs the transfer of certain administrators to subordinate positions.  There the legislature expressly qualified the word "year" with the term "school" no less than three times.

            We also perceive, as the legislature apparently did, that there was good reason not to qualify the word "year" in RCW 28A.67.072, supra, with the term "school" as it selectively chose to do in RCW 28A.67.073.  Had the word "year" in RCW 28A.67.072, supra, been so qualified, another incongruity would have likely resulted.  For example, a person newly employed on May 16th would then be employed during his or her first "school year" or nine‑month school term, but such period would, at the latest, expire on August 31st without any  [[Orig. Op. Page 8]] opportunity to either implement the May 15th notice requirement or the literal evaluation requirements of RCW 28A.67.072,supra.5/

             The principles ofpari materia and that absurdities are to be avoided also serve to rule out (e),supra ‑ the possibility that the term "year" in RCW 28A.67.072 means whatever period is encompassed by a person's first employment contract.  The legislature has likewise selectively used the qualified phrase "contract year" when speaking of the particular time period encompassed by an employee's first employment contract.  See, again, for example, RCW 28A.67.073,supra, codifying § 9 of the same act.  Once more, therefore, the legislature would have had an easy pattern to follow if its intent, in enacting RCW 28A.67.072, supra, had been to relate the term of a person's status as a "provisional employee" to the actual term of his initial employment contract.  Furthermore, if that had been intended it would seem to us that the legislature would have then followed suit by establishing nonrenewal procedures geared to whatever the initial contract period of a given individual might be instead of the May 15th nonrenewal notice deadline and the probationary period of February 1 through May 1 actually established by RCW 28A.67.072, supra, as read together with RCW 28A.67.065.

            Lastly, we have considered and ruled out alternative (f), supra ‑ the possibility that the term "year" means the first twelve‑month period during which an individual actually works or performs services ‑ discounting such customary "vacation" periods as July and August.  Had that been the true intent of the legislature it doubtless could have found different words to express that intent as well.  Surely, the legislature was aware of the phenomenon of summer vacations for school district employees and it would have expressly acknowledged that recognition if it had intended that those  [[Orig. Op. Page 9]] periods during which many schools are not in session were to be excluded from the measurement of a "provisional employee's" ". . . first year of employment by such district. . . ."  In fact, according to recorded debate on the House floor, the House actually did consider and reject a proposed floor amendment to House Bill No. 1364 that would have substituted "after the completion of twelve full months of classroom teaching" for "during the first school year of employment."6/

             Therefore, in summary, our direct answer to your first question, as above paraphrased, is that a person newly employed by a given school district in a teaching or other nonsupervisory certificated position remains a "provisional employee," within the meaning of RCW 28A.67.072, for a twelve‑month (or 365 day) period commencing on the date of employment and ending one year later.  That, simply stated, is what the law, as finally passed by the legislature, says to us in accordance with the common and ordinary meaning of the unqualified word "year" as used therein.

            Question (2):

            Your second question, repeated for ease of reference asks:

            "By what May 15th date must notice of nonrenewal of the contract of a 'provisional employee' be given in order to be effective for the purposes of RCW 28A.67.072?"

            The pertinent portion of RCW 28A.67.072, supra, requires that if it is intended that the contract of a provisional employee

            ". . . not be renewed . . . for the next ensuing term such provisional employee shall be notified thereof in writing on or before May 15th preceding the commencement of such school term, . . ."

            As we indicated at the outset, one of the central purposes of both RCW 28A.67.072 and the preexisting "continuing contract law," RCW 28A.67.070, is to eliminate uncertainty  [[Orig. Op. Page 10]] in the employment plans of both school districts and their certificated employees.  If this purpose is to be achieved in the case of provisional employees, the statutory notice must be provided on or before the May 15th date which occurswithin their first year of employment.

            The alternative would be to conclude that this notice may be provided after the first year of employment has elapsed.  But if that alternative construction were accepted, it would be permissible (for example) to implement RCW 28A.67.072,supra, in the case of a person newly employed on September 1, 1977, by providing notice of nonrenewal as late as May 15, 1979 ‑ eight and one‑half months and almost a full "school term" following the expiration of his or her "first year of employment."  Such a construction of the statute would frustrate one of its central purposes and certainly result in an absurdity for, by that time, the employee in question would simply no longer be a provisional employee at all.

            Reading RCW 28A.67.070 and 28A.67.072 together it thus is our opinion that the critical point to be determined in each case (insofar as the applicability of the two statutes is concerned) is the status occupied by the employee in question on any May 15th date.  If, at that time, he is still a "provisional employee" then his contract may be nonrenewed in accordance with the procedures set forth in RCW 28A.67.072.  But if, instead, the employee is (or will by that time be) a full-fledged school district certificated employee then nonrenewal, if desired, will have to be achieved through an application of the procedures set forth in RCW 28A.67.070.