Eyre v. Big Bend Community College

Edgerton, J.*

(dissenting) — I dissent. The trial judge correctly decided that the arbitrator did not have authority to order reinstatement of Donald Eyre subsequent to the *161board of trustees' decision denying Mr. Eyre tenure. His judgment should be affirmed. The majority opinion which would reverse that decision relies on North Beach Educ. Ass'n v. North Beach Sch. Dist. 64, 31 Wn. App. 77, 639 P.2d 821 (1982) to support that conclusion. The case is distinguishable from this one.

It deals with arbitration proceedings on behalf of a provisional schoolteacher employed under RCW 28A.67.072. In that case the court announced that an arbitrator may have discretion to fashion remedies for proved grievances of a provisional schoolteacher concerning procedure preliminary to a final renewal or nonrenewal decision, but it expressly restricts that exercise of discretion. It holds that remedy must be short of reinstatement and must not impinge on any other statutory exclusive power of the school board over employment matters. This case, however, is governed by RCW 28B.50.852, which provides:

The appointing authority . . . shall provide for the award of faculty tenure following a probationary period not to exceed three consecutive regular college years, excluding summer quarter . . .

(Italics mine.) Mr. Eyre was employed under this latter statute and his employment was governed by it. Thus, his term as a teacher automatically terminated if tenure was not given him. This was not necessarily so for the teacher in the North Beach case, for the statute under which she was hired provided in its first paragraph:

[E]very 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".

RCW 28A.67.072. So, by the terms of that statute, provisional employment is not limited to a specific period of time. RCW 28B.50.852, on the contrary, does expressly limit the probationary period to a term not to exceed 3 *162consecutive regular college years.

That such is the case is noted in Smith v. Greene, 86 Wn.2d 363, 545 P.2d 550 (1976). There, the court stated at page 367:

Since under RCW 28B.50.852 and 28B.50.856 a probationary appointment does not continue beyond 3 years, at which time the trustees make the "final decision" on tenure (cf. Bowing v. Board of Trustees, 85 Wn.2d 300, 304, 534 P.2d 1365 (1975)), any expectancy of tenure is unreasonable. Appellant's "faculty appointment for a designated period of time" was subject to termination "without cause upon expiration of the probationer's terms of employment." (Italics ours.) RCW 28B.50-.851(3). Under the terms of his third 1-year contract with Community College District No. 17, appellant's appointment ended in June 1974.

(Footnote omitted.)

Also, the cases cited from other jurisdictions in support of the opinion above do not treat the precise question here present and so are not apposite. While they approve an arbitrator's "fashioning a remedy" in some cases, they deal with different factual situations which do not involve a statute such as the Washington provision here in question. If the tenure review committee failed to comply with article 21 of Mr. Eyre's employment contract, violation was contractual and apart from the statutory authority of the trustees. If a remedy is called for, it must not be by abrogating the statute. If, under the contract and the law, there is no remedy available suitable to the situation, it is up to the Legislature to create one. Neither the arbitrator nor the court should invent a remedy that contravenes statutory law. Corrective measures are a legislative function, not a judicial one.

RCW 28B.50.856 unequivocally gives the power to the board of trustees, the appointing authority, to grant or deny tenure, to order or refuse renewal of a teaching employment contract. It provides:

The probationary faculty appointment period shall be one of continuing evaluation of a probationer by a review *163committee. The evaluation process shall place primary importance upon the probationer's effectiveness in his appointment. The review committee shall periodically advise each probationer, in writing, of his progress during the probationary period and receive the probationer's written acknowledgment thereof. The review committee shall at appropriate times make recommendations to the appointing authority as to whether tenure should or should not be granted to individual probationers: Provided, That the final decision to award or withhold tenure shall rest with the appointing authority, after it has given reasonable consideration to the recommendations of the review committee.

Mr. Eyre's employment contract expressly reserves to the board its statutory authority. Article 3 of that contract provides:

A. The board, on its own behalf and behalf of the public and the appointing authority, hereby retains and reserves unto itself all power, right, authority, duties, and responsibilities conferred upon and vested in it by the laws and constitution of the State of Washington and of the United States, including, but without limiting, the generality of the following right:
2. To hire all employees and, subject to the provisions of law, to determine their qualifications and the conditions for their continued employment, or their dismissal or demotion;

The fact the arbitrator denied he overreached and usurped the board's authority and function when he restored Mr. Eyre to his job for a year, overruling the board's denial of tenure, does not make it so, for that is exactly what he did. The arbitrator seems to base his ruling on his conclusion that Mr. Eyre did not receive coaching or assistance from the evaluation committee to overcome such deficiencies it may have considered he had. If so, neither did he seek the help not given him. It would appear that he might have slept on his rights. The fact is he was evaluated each year and, according to the arbitrator, was given a satisfactory rating in all eight categories used for grading a teacher's proficiency. However, despite such passing marks, the *164board had the power to deny tenure, and this it did.

Mr. Eyre presented his complaint to the board. The letter of its chairman, Dr. DeVries, shows that this was done and his complaints were considered by the board.2 When, in pursuance of the grievance procedures under his employment contract, article 27(f), Mr. Eyre met with the board in step three, his record, letters, and an oral presentation were given the board. Notwithstanding this, the board decided not to renew Mr. Eyre's contract. It gave consideration to the evaluation reports and to claimant's case for renewal and came up with a negative response. This it could do.

Rather than North Beach, it is Causey v. Board of Trustees, 30 Wn. App. 649, 638 P.2d 98 (1981) which controls here. There, the court said at page 652:

In reaching a tenure decision, the board of trustees does not have to state either the evidence relied on or the reasons for the decision. See Smith v. Greene, 86 Wn.2d 363, 369, 545 P.2d 550 (1976). The board alone makes the final tenure decision after giving reasonable consideration to the recommendations of the tenure review committee. RCW 28B.50.856.

*165Here, the board met the responsibility imposed upon it by law and decided not to grant tenure. It likewise determined the facts did not disclose a grievance and accordingly there should be no step four arbitration. Mr. Eyre then brought suit to compel arbitration and the trial court decided:

The legal issue presented for decision is not whether the Board's decision is correct, but rather whether the tenure review board complied with the requirements of Article XXI. Mr. Eyre contended there were "irregularities" and that the process was not "correctly and fairly applied" to him. The Board found to the contrary.

The trial judge held the purpose of article 27 in the contract is to require a procedure to determine the merits of opposite contentions involving application of the contract. However, in directing arbitration, he restricted the arbitrator's consideration and decision to the sole issue of the arbitrability of whether the tenure review board complied with article 21. Excluded from his consideration was the question of the board's ultimate denial of tenure. When the arbitrator disregarded the court's order and violated it by exceeding his lawful powers, the board again affirmed its position that tenure should be denied by seeking an order setting aside the arbitrator's decision. The trial judge set aside the arbitrator's ruling, holding that the arbitrator had grossly exceeded his jurisdiction and that the board had the sole and exclusive right to decide whom it would hire. From that decision, Mr. Eyre appealed, and again the board, by defending against the appeal, reiterated its position that its denial of tenure should stand. Moreover, the arbitrator's gratuitous, unsubstantiated attack on the board as being made up of unqualified personnel dealing with subjects unfamiliar to them is not a proper basis for the arbitrator's decision. Nor is his statement that " [t]he Board invariably rubber stamps the recommendations of the Committee" (the faculty review committee). Even if these things were true, the board, under the law, would still have the authority to make the decision of nonrenewal that it did and the *166arbitrator could not lawfully interfere with its exercise of that power.

Judge Ralph P. Edgerton is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.

The letter further provides: "Had the Board determined that the Employment contract and Negotiated Policies were not properly applied in your particular situation, the Board may have considered the matter grievable and subject to Article XXVII, Grievance Procedure in the Employment Contract and Negotiated Policies.

"However, after giving due consideration to the record, your letters, and oral presentation during the Board's executive session, the Board unanimously has concluded, (1) that no irregularities occurred in the application of your tenure review procedures, and (2) that all requirements under Article XXI and WAC 231R-128, 010-130 were properly met.
"Therefore, based on its consideration of the record, it is the Board's determination that the Employment Contract and Negotiated Policies were properly applied and followed in your particular situation. It is the Board's conclusion that tenure review procedures which culminated in the Board's denial of tenure for you, were conducted in a proper and regular manner and that no evidence has been presented which would lead the board to conclude that those procedures were not followed or misapplied."