Letter Opinion 1970 No. 146

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                                                               November 16, 1970
 
 
 
Honorable Robert C. Ridder
State Senator, 35th District
5809 S. Roxbury
Seattle, Washington 98118
                                                                                                             Cite as:  AGLO 1970 No. 146
 
 
Dear Sir:
 
            This is written in response to your request for our opinion on a question which we paraphrase as follows:
 
            Under existing state law is a school district required, in contracting with its certificated employees, to include extracurricular duties within the basic contract (RCW 28A.67.070) ‑ or may the district, with the concurrence of the employee, use a supplemental contract for this purpose (RCW 28A.67.074)?
 
                                                                     ANALYSIS
 
            RCW 28A.67.070 codifies certain long-standing statutory provisions, most recently amended by the 1969 legislature1/ and then reenacted by § 16, chapter 15, Laws of 1970, which currently read in material part as follows:
 
            "No teacher, principal, supervisor, superintendent, or other certificated employee, holding a position as such with a school district, hereinafter referred to as 'employee', shall be employed except by written order of a majority of the directors of the district at a regular or special meeting thereof, nor unless he is the holder of an effective teacher's certificate or other certificate required by law or the state board of education for the position for which the employee is employed.
 
            "Every board of directors determining that there is probable cause or causes that the employment contract of an employee should not be renewed  [[Orig. Op. Page 2]] by the district for the next ensuing term shall notify that employee in writing on or before April 15th preceding the commencement of such term of that determination of the board of directors, which notification shall specify the cause or causes for nonrenewal of contract.  . . .  If any such notification or opportunity for hearing is not timely given by the district, the employee entitled thereto shall be conclusively presumed to have been reemployed by the district for the next ensuing term upon contractual terms identical with those which would have prevailed if his employment had actually been renewed by the board of directors for such ensuing term."
 
            The same 1969 legislature which most recently amended RCW 28A.67.070, supra, also enacted another, related statute.  See, § 2, chapter 283, Laws of 1969, Ex. Sess.  (codified as RCW 28A.67.074).  This statute reads as follows:
 
            "No certificated employee shall be required to perform duties not described in the contract unless a new or supplemental contract is made, except that in an unexpected emergency the board of directors or school district administration may require the employee to perform other reasonable duties on a temporary basis.
 
            "No supplemental contract shall be subject to the continuing contract provisions of Titles 28A or 28B."  (Emphasis supplied.)
 
            Clearly, these two statutes are in pari materia, and as such, must be construed together in ascertaining legislative intent.  Accord, Olympia State Bank & Trust Co. v. Craft, 56 Wn.2d 546, 354 P.2d 386 (1960), and cases cited therein.
 
            Applying this rule of statutory construction it would appear that the legislature has, in effect, made it possible for the various school districts and their certificated employees to treat the extracurricular duties or activities, as contemplated by your question, in one of two ways:
 
             [[Orig. Op. Page 3]]
            First, these duties and the compensation payable therefor may be included in the basic employment contract executed by the district and its employee under RCW 28A.67.070, supra ‑ the statute commonly characterized and referred to as the "continuing contract law."  And most certainly, if a particular school district, in contracting with one of its certificated employees to perform specific extracurricular duties, determines to include these duties (along with such other duties as the individual in question is to perform) as a part of the district's basic employment contract with the individual, then this entire contract, including the portions thereof relating to the extracurricular assignment, is subject to the provisions of RCW 28A.67.070 regarding renewal or termination.  See, Lande v. South Kitsap School District No. 402, 2 Wn.App. 468, 471 (1970).
 
            Secondly, and on the other hand, a district, with the concurrence of a certificated employee who is otherwise employed by the district pursuant to a basic contract, may utilize a supplemental contract as a means of contracting for the performance of any extracurricular duty under the authority granted by RCW 28A.67.074, supra ‑ in which case, the contract covering these assignments will not be governed by the "continuing contract" provisions of RCW 28A.67.070, supra, because of the express disclaimer contained in RCW 28A.67.074.
 
            We should note that a review of the legislative history of § 2, chapter 283, Laws of 1969, Ex. Sess. (RCW 28A.67.074) supports the construction we have placed on the statutes discussed above.  The original bill on this subject which passed the senate (SB 556) did not contain a provision relative to supplemental contracts.  However, in the house, among the various amendments adopted was one which would have provided:
 
            "NEW SECTION. Sec. 2. All contracts required by RCW 28.67.070 with certificated employees and salaries stated therein shall be determined on a pro rata basis of no less than one‑one hundred-eightieth of the individual's salary base as defined in section 1 of this 1969 amendatory act for each day of duty over one hundred eighty days, except for those cases where extra duty assignments cannot be described on a per diem basis, in which cases the contracts shall specify the compensation for such extra duty.  Every such contract shall  [[Orig. Op. Page 4]] clearly specify by description directly, or by reference, all regular and extra duties which are to be performed by the employee.  Additional duties agreed upon by the school district and employee after the making of the regular contract and compensation therefor shall be appended to the contract by supplemental contract.  No such employee shall be required to perform duties not described in the contract unless a new or supplemental contract is made, except that in an unexpected emergency the board of directors or school district administration may require the employee to perform other reasonable duties on a temporary basis."  (Emphasis supplied.)
 
            The senate refused to concur in the house amendments and asked the house to recede therefrom.  Senate Journal p. 1390.  The house refused (House Journal p. 1583) and asked the senate for a conference thereon.  The bill which was finally adopted and labeled as chapter 283, was the product of a free conference committee.
 
            It is apparent that if the house version of what is now RCW 28A.67.074 had been adopted, all regular and extra duties of certificated employees would have been subject to the provisions of the "continuing contract law" ‑ RCW 28A.67.070.  However, the bill as enacted expressly excludes supplemental contracts from the provisions of "the continuing contract provisions of Titles 28A or 28B."
 
            Therefore, in direct answer to the question paraphrased at the outset, it is our opinion that a school district may, but is not required, in contracting with its certificated employees, to include extracurricular duties within the terms of the basic employment contract.  If they are so included, then the entire contract, including the portions therof relating to extracurricular assignments and compensation, is subject to the provisions of RCW 28A.67.070 regarding renewal or termination.  However, if the district and its certificated employee execute a "supplemental" contract under RCW 28A.67.074 covering the extracurricular assignments, then the supplemental contract is not subject to the provisions  [[Orig. Op. Page 5]] of the continuing contract law.

 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Robert J. Doran
Deputy Attorney General
 
 
Richard M. Montecucco
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, § 2, chapter 15, Laws of 1969, Ex. Sess.; § 12, chapter 34, Laws of 1969, Ex. Sess.; and § 143, chapter 176, Laws of 1969, Ex. Sess.