WAIVER OF RIGHTS

DISTRICTS ‑- SCHOOLS ‑- EMPLOYEES ‑- CONTRACTS ‑- WAIVER OF RIGHTS

(1) A school district may not offer employment to a certificated employee under circumstances not covered by either RCW 28A.67.900 or the second paragraph of RCW 28A.67.074 by tendering a contract to that individual which contains a condition that the employee waives his rights under RCW 28A.67.070 or 28A.58.450.
 
(2) If an employee signs such a contract, that waiver condition is not valid or enforceable.

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                                                                   May 27, 1974

Honorable Frances C. North
State Representative, 47th District
Box 441
North Bend, Washington 98045                                                                                                               Cite as:  AGLO 1974 No. 59

Dear Representative North:
 
            By recent letter you have asked for our opinion on the following three questions:
 
            "1. May a school district offer employment to a certificated employee under circumstances not covered by either RCW 28A.67.900 or the second paragraph of RCW 28A.67.074 by tendering a contract to that individual which contains a condition that the employee waives his rights under RCW 28A.67.070 or 28A.58.450?
 
            "2. If an employee signs such a contract, is that waiver condition valid or enforceable?
 
            "3. Would the fact that the employee will be assigned to teach in a special program, such as one that is federally funded, or to teach only part of the school year affect your answer to question (1) and (2)?"
 
            We answer all three of these questions in the negative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            RCW 28A.67.070 codifies certain long-standing statutory provisions relating to the employment of certificated teachers by public school districts in this state.  Insofar as is material, this statute, commonly referred to as the continuing contract law, provides 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  [[Orig. Op. Page 2]] 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 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."
 
            Next to be noted is RCW 28A.67.074, codifying § 2, chapter 283, Laws of 1969, Ex. Sess., which provides that:
 
            "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.)
 
            RCW 28A.67.900, to which reference is also made in your first question, deals with the meaning of the term "certificated employee" as used in the continuing contract law, and provides as follows:
 
             [[Orig. Op. Page 3]]
            "Certificated employees subject to the provisions of this chapter shall not include those certificated employees hired to replace certificated employees who have been granted sabbatical, regular, or other leave by school districts.
 
            "It is not the intention of the legislature that this section apply to any regularly hired certificated employee or that the legal or constitutional rights of such employee be limited, abridged, or abrogated."
 
            And lastly, insofar as the statutes you have cited are concerned, RCW 28A.58.450 provides that:
 
            "Every board of directors determining that there is probable cause or causes for a teacher, principal, supervisor, superintendent, or other certificated employee, holding a position as such with the school district, hereinafter referred to as 'employee', to be discharged or otherwise adversely affected in his contract status, shall notify such employee in writing of its decision, which notification shall specify the probable cause or causes for such action.  Such notices shall be served upon that employee personally, or by certified or registered mail, or by leaving a copy of the notice at the house of his or her usual abode with some person of suitable age and discretion then resident therein.  Every such employee so notified, at his or her request made in writing and filed with the chairman of the board or secretary of the board of directors of the district within ten days after receiving such notice, shall be granted opportunity for hearing before the board of directors of the district, to determine whether or not there is sufficient cause or causes for his or her discharge or other adverse action against his contract status.  In the request for hearing, the employee may request either an open or closed hearing.  . . ."
 
            In AGLO 1974 No. 31 [[to Arthur Eggers, Prosecuting Attorney, Walla Walla County on March 15, 1974 an Informal Opinion AIR-74531]], copy enclosed, we concluded that this last quoted statute is not a part of the "continuing contract law" that is referred to in the second paragraph of RCW 28A.67.074, supra, and, accordingly, is applicable even in the case of the supplemental contract executed under the provisions of the first paragraph of that statute.
 
             [[Orig. Op. Page 4]]
            With the foregoing provisions in mind, we turn, now, to your questions.
 
            Questions (1) and (2):
 
            We shall treat these two questions together, as both raise essentially the same legal issue.  May a school district, as a part of its basic employment contract with a certificated employee under circumstances not covered by either RCW 28A.67.900 or the second paragraph of RCW 28A.67.074, require that employee to "waive" his or her rights under the continuing contract law, RCW 28A.67.070, or the discharge statute, RCW 28A.58.450?  And if an employee signs a contract containing such a waiver provision, is the waiver valid or enforceable?
 
            We base our negative answer to both of these questions upon the principles set forth by our state supreme court in a long line of cases involving purported waivers by public employees of all or a part of their statutorily prescribed salaries, wages or other compensation.  See, Rhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647 (1917): Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020 (1934); State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P.2d 602 (1935); Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936); State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937); State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938); Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939); Malcolm v. Yakima Etc. School Dist., 23 Wn.2d 80, 159 P.2d 394 (1945); and, most recently, Vallet v. Seattle, 77 Wn.2d 12, 459 P.2d 407 (1969).  In all of these cases the court has uniformly held not only that (1) a public employer may not legally require the execution of such a waiver by his employees as a condition of employment but, as well, that (2) such a waiver if executed, is void and unenforceable.
 
            Although these cases involved salaries or other tangible forms of compensation, it seems to us that their basic rationale is equally applicable to any purported blanket waiver of such statutory-contractual rights as are provided for with respect to certificated school district employees by RCW 28A.67.070 and RCW 28A.58.450, supra.  Accord, AGO 65-66 No. 79 [[to Norwood Cunningham, State Representative on March 24, 1966]], copy enclosed.1/   Moreover, both of  [[Orig. Op. Page 5]] these statutes, aside from their impact upon the contractual relationship between a school district and its certificated employees, impose mandatory obligations upon the board of directors of every school district in this state which could, in any event, only be modified by an ensuing act of the legislature2/ - and not by some purported contractual provision.  Accordingly, based upon the foregoing, we have no hesitation in answering both of your first two questions in the negative.
 
            Question (3):
 
            By this question you have asked:
 
            "3. Would the fact that the employee will be assigned to teach in a special program, such as one that is federally funded, or to teach only part of the school year affect your answer to question (1) and (2)?"
 
            We know of no basis for saying that any of these factors would have any bearing upon the ability of a school district to require a waiver of rights arising under either RCW 28A.67.070 or RCW 28A.58.450 by a certificated school district employee whose basic employment contract is governed by these two statutes.  Thus, we also answer this question in the negative.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***
 
1/We are here speaking, it will be noted, of a contract form which contains an express waiver of the teacher's rights under RCW 28A.67.070 or RCW 28A.58.450 ‑ and not merely the voluntary execution by a teacher of a "new" contract containing substantive terms of employment less favorable than he or she would, perhaps, have been entitled to as a continuation of his or her contract with the school district involved for the previous school year.  As to the latter, see, Lande v. South Kitsap Sch. Dist., 2 Wn.App. 468, 469 P.2d 982 (1970), and AGO 1973 No. 3 [[to Christopher T. Bayley, Prosecuting Attorney, King County on January 15, 1973]], copy enclosed, at pp. 5-6.
 
2/Cf., Initiative No. 293, a proposed ballot measure currently in circulation.