McInturff, C.J.
Mitchell C. Meyers appeals the summary dismissal of his declaratory judgment which granted nonrenewal of his teaching contract with the Newport Consolidated Joint School District No. 56-415 (District) for violating a teachers' residency policy.
Mr. Meyers was hired as a provisional certificated school teacher for the 1978-79 school year. During his employment interview in the summer of 1978 he was informed that a condition of employment was residence within the boundaries of the District.
This was apparently agreeable to Mr. Meyers since he moved into a residence 2 to 3 miles from the school where he would be teaching.
Later that fall, Mr. Meyers learned his residence was not only outside the perimeter of the District, but also in the state of Idaho. In October 1978, Darrell Olson, the Newport School Superintendent, advised Mr. Meyers of the need to comply with the residency policy. At that time, there was a shortage of housing in the Newport area.
In April 1979 Mr. Meyers found a home at Diamond Lake, approximately 7 miles from the school, but within the boundary of the District. Mr. Meyers alleges he told the Superintendent of his planned relocation and of his desire to avoid the summer rental rates at Diamond Lake by delaying his move until September 1, 1979. He maintains
this met with the approval of Mr. Olson who assured him his contract would not be revoked if he obtained housing within the District by September 1, 1979. Mr. Olson denies making this statement and asserts he told Mr. Meyers that failure to comply would result in nonrenewal of his contract.
On May 15, 1979, Mr. Meyers was served with a notice of nonrenewal. The stated grounds were Mr. Meyers' failure to comply with the acknowledged residency policy and Mr. Olson's instructions to move within the District. Pursuant to RCW 28A.67.072
Mr. Meyers scheduled an informal meeting with the Superintendent. Mr. Olson's refusal to reverse his decision was appealed to the District board of directors which also determined not to renew the contract on the basis of noncompliance with the residency requirements.
The Newport Educational Association filed a grievance on behalf of Mr. Meyers on June 6,1979. The grievance was
dismissed following arbitration on November 9, 1979. Mr. Meyers filed an action on July 24, 1979 seeking a declaratory judgment that the residency policy and RCW 28A.67-.072 were unconstitutional and also asserting the District was equitably estopped from denying Mr. Meyers complied with the residency requirement. Both parties moved for summary judgment. The court initially ruled Mr. Meyers' failure to appeal the adverse ruling of the arbitrator did not bar him from pursuing this action.
The court further ruled both the residency policy and RCW 28A.67.072 were constitutional.
Initially, Mr. Meyers claims RCW 28A.67.072, the provisional teachers statute, is violative of both the state and federal constitutions since it denies provisional teachers a right to a hearing and appeal following the nonrenewal of their teaching contract and is an improper classification. Mr. Meyers argues since nonprovisional teachers may appeal a decision based on probable cause under RCW 28A.67.070,
a provisional teacher should also be allowed to appeal the decision that there was sufficient reason for nonrenewal under RCW 28A.67.072.
A hearing is required if a person is deprived of a property interest. Property interests are defined by rules
which stem from state law.
Bishop v. Wood,
426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976);
State ex rel. Swartout v. Civil Serv. Comm'n, 25
Wn. App. 174, 182, 605 P.2d 796 (1980). Generally, there is no constitutional "property" interest in public employment.
Giles v. Department of Social & Health Servs.,
90 Wn.2d 457, 461, 583 P.2d 1213 (1978).
Although the legislature provided that nonprovisional teachers may appeal a school board's decision to discharge them, RCW 28A.67.070 also states: "This section shall not be applicable to 'provisional employees' as so designated in RCW 28A.67.072", which begins:
Notwithstanding the provisions of RCW 28A.67.070 . . . 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.
(Italics ours.) Appellate courts must give effect to the intent of the legislature ascertained from the statute as a whole and interpreted in terms of the general object and purpose of the legislation.
Strenge v. Clarke,
89 Wn.2d 23, 29, 569 P.2d 60 (1977). It is apparent the legislature intended a separate classification for provisional teachers as contrasted with nonprovisional teachers. That there must be a reason for nonrenewal of a provisional teaching contract does not elevate a provisional teacher's rights to those accorded a nonprovisional teacher. We do not equate the terms "probable cause" under RCW 28A.67.070 with "reasons" under RCW 28A.67.072; many reasons may not equal probable cause. Since the legislature specifically did not extend the right to appeal for provisional teachers, no right is afforded.
Bishop v. Wood, supra.
Since Mr. Meyers' employment is not a fundamental right, classification between nonprovisional and provisional teachers is analyzed under the 3-pronged rational basis test enunciated in
Equitable Shipyards, Inc. v. State,
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McInturff, C.J.
Mitchell C. Meyers appeals the summary dismissal of his declaratory judgment which granted nonrenewal of his teaching contract with the Newport Consolidated Joint School District No. 56-415 (District) for violating a teachers' residency policy.
Mr. Meyers was hired as a provisional certificated school teacher for the 1978-79 school year. During his employment interview in the summer of 1978 he was informed that a condition of employment was residence within the boundaries of the District.
This was apparently agreeable to Mr. Meyers since he moved into a residence 2 to 3 miles from the school where he would be teaching.
Later that fall, Mr. Meyers learned his residence was not only outside the perimeter of the District, but also in the state of Idaho. In October 1978, Darrell Olson, the Newport School Superintendent, advised Mr. Meyers of the need to comply with the residency policy. At that time, there was a shortage of housing in the Newport area.
In April 1979 Mr. Meyers found a home at Diamond Lake, approximately 7 miles from the school, but within the boundary of the District. Mr. Meyers alleges he told the Superintendent of his planned relocation and of his desire to avoid the summer rental rates at Diamond Lake by delaying his move until September 1, 1979. He maintains
this met with the approval of Mr. Olson who assured him his contract would not be revoked if he obtained housing within the District by September 1, 1979. Mr. Olson denies making this statement and asserts he told Mr. Meyers that failure to comply would result in nonrenewal of his contract.
On May 15, 1979, Mr. Meyers was served with a notice of nonrenewal. The stated grounds were Mr. Meyers' failure to comply with the acknowledged residency policy and Mr. Olson's instructions to move within the District. Pursuant to RCW 28A.67.072
Mr. Meyers scheduled an informal meeting with the Superintendent. Mr. Olson's refusal to reverse his decision was appealed to the District board of directors which also determined not to renew the contract on the basis of noncompliance with the residency requirements.
The Newport Educational Association filed a grievance on behalf of Mr. Meyers on June 6,1979. The grievance was
dismissed following arbitration on November 9, 1979. Mr. Meyers filed an action on July 24, 1979 seeking a declaratory judgment that the residency policy and RCW 28A.67-.072 were unconstitutional and also asserting the District was equitably estopped from denying Mr. Meyers complied with the residency requirement. Both parties moved for summary judgment. The court initially ruled Mr. Meyers' failure to appeal the adverse ruling of the arbitrator did not bar him from pursuing this action.
The court further ruled both the residency policy and RCW 28A.67.072 were constitutional.
Initially, Mr. Meyers claims RCW 28A.67.072, the provisional teachers statute, is violative of both the state and federal constitutions since it denies provisional teachers a right to a hearing and appeal following the nonrenewal of their teaching contract and is an improper classification. Mr. Meyers argues since nonprovisional teachers may appeal a decision based on probable cause under RCW 28A.67.070,
a provisional teacher should also be allowed to appeal the decision that there was sufficient reason for nonrenewal under RCW 28A.67.072.
A hearing is required if a person is deprived of a property interest. Property interests are defined by rules
which stem from state law.
Bishop v. Wood,
426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976);
State ex rel. Swartout v. Civil Serv. Comm'n, 25
Wn. App. 174, 182, 605 P.2d 796 (1980). Generally, there is no constitutional "property" interest in public employment.
Giles v. Department of Social & Health Servs.,
90 Wn.2d 457, 461, 583 P.2d 1213 (1978).
Although the legislature provided that nonprovisional teachers may appeal a school board's decision to discharge them, RCW 28A.67.070 also states: "This section shall not be applicable to 'provisional employees' as so designated in RCW 28A.67.072", which begins:
Notwithstanding the provisions of RCW 28A.67.070 . . . 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.
(Italics ours.) Appellate courts must give effect to the intent of the legislature ascertained from the statute as a whole and interpreted in terms of the general object and purpose of the legislation.
Strenge v. Clarke,
89 Wn.2d 23, 29, 569 P.2d 60 (1977). It is apparent the legislature intended a separate classification for provisional teachers as contrasted with nonprovisional teachers. That there must be a reason for nonrenewal of a provisional teaching contract does not elevate a provisional teacher's rights to those accorded a nonprovisional teacher. We do not equate the terms "probable cause" under RCW 28A.67.070 with "reasons" under RCW 28A.67.072; many reasons may not equal probable cause. Since the legislature specifically did not extend the right to appeal for provisional teachers, no right is afforded.
Bishop v. Wood, supra.
Since Mr. Meyers' employment is not a fundamental right, classification between nonprovisional and provisional teachers is analyzed under the 3-pronged rational basis test enunciated in
Equitable Shipyards, Inc. v. State,
93 Wn.2d 465, 478, 611 P.2d 396 (1980):
(1) Does the classification apply alike to all members within the designated class? (2) Does some basis in reality exist for reasonably distinguishing between those within and without the designated class? (3) Does the classification have a rational relation to the purpose of the challenged statute?
First, it is clear RCW 28A.67.072 applies alike to all first-year teaching employees in the district. Second, a probationary period is a legitimate precondition to bestowing benefits of public employment.
Ross v. Department of Social & Health Servs.,
23 Wn. App. 265, 271, 594 P.2d 1386 (1979). Third, a rational basis exists because of the need for a probationary period in which an employer may observe the performance of the provisional employee before the conferral of greater procedural protections under RCW 28A.67.070. Thus, we conclude there is a rational basis for the constitutionality of RCW 28A.67.072. Absent a direct collision between the legislation and the constitution, we are constrained to uphold the judgment of the legislature rather than substitute ours. As stated by Mr. Justice Holmes:
I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.
Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton,
273 U.S. 418, 446, 71 L. Ed. 718, 47 S. Ct. 426, 433-34, 58 A.L.R. 1236 (1927) (dissenting opinion). It is up to the legislature, not the courts, to decide the wisdom and utility of legislation.
Ferguson v. Skrupa,
372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A.L.R.2d 1347 (1963). We find no error.
Moreover, although no right to judicial review exists, we
do not find a lack of due process.
A provisional teacher may appeal the merits of his or her case to the superintendent
and ultimately the school board. Additionally, limited review under a writ of certiorari may, under certain circumstances, be accorded.
Standow v. Spokane,
88 Wn.2d 624, 630, 564 P.2d 1145 (1977).
Next, Mr. Meyers alleges the residency policy infringes on his freedom of travel. We disagree.
There are two types of residency requirements: durational and continual. The durational type requires a person, as a condition precedent to the conferral of a benefit or a right, to reside in a particular area for a specified length of time. Durational (waiting period) residency requirements have been struck down as unconstitutional because they classify residents into groups who have fulfilled the residency requirements and those who have not.
King v. New Rochelle Mun. Housing Auth.,
442 F.2d 646, 648 (2d Cir. 1971);
Cole v. Housing Auth.,
435 F.2d 807 (1st Cir. 1970). On the other hand, continual residency requires a person to reside in a particular area for continued employment. This type of residency requirement has been held not to burden the fundamental right to travel.
Duranceau v. Tacoma,
27 Wn. App. 777, 780, 620 P.2d 533 (1980);
Guttu v. East Grand Forks,
294 N.W.2d 735, 736 (Minn. 1980).
Since
the instant residency policy allows teachers to be hired so long as they move within the district in a reasonable amount of time, it is continual and thus does not violate a fundamental right.
Our analysis of the residency policy therefore hinges upon the rational basis test.
Equitable Shipyards, supra.
It is understandable that the school board desires teachers to live within the district for the purpose of community involvement and in order to educate their children within the district in which they work.* ****
See Ector v. Torrance,
10 Cal. 3d 129, 514 P.2d 433, 109 Cal. Rptr. 849 (1973),
cert. denied,
415 U.S. 935, 39 L. Ed. 2d 493, 94 S. Ct. 1451 (1974). In
Ector
the Supreme Court of California upheld a municipal employee residency requirement noting:
Among the governmental purposes cited in these decisions or now urged by amici curiae are the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee per
formance by greater personal knowledge of the city's conditions and by a feeling of greater personal stake in the city's progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees' salaries. We cannot say that one or more of these goals is not a legitimate state purpose rationally promoted by the municipal employee residence requirement here in issue.
Ector v. Torrance, supra
at 10 Cal. 3d at 135, 109 Cal. Rptr. at 852. Many of these reasons may be recognized as a basis for the instant residency policy, including the ability to vote within the community. We find the residency policy, on its face, passes constitutional muster.
Mr. Meyers also asserts the residency policy is unconstitutional as applied to him because he lived within the community serviced by the District.
When an enactment is challenged upon the ground it is unconstitutional as applied, the person making such a challenge has the burden of demonstrating unequal application.
See County of Dane v. McManus,
55 Wis. 2d 413, 198 N.W.2d 667, 674 (1972);
Yick Wo v. Hopkins,
118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). It is undisputed the policy was applied equally to all teachers. Although some unfairness to Mr. Meyers may be present, he has shown no infringement upon his constitutional guaranties. It must be recognized that laws are to some extent inherently unequal. Almost every legislative enactment involves some disparity in treatment, since few, if any affect every one in the same manner.
We cannot find the application here unconstitu
tional.
Mr. Meyers also maintains the trial court erred in denying his equitable estoppel claim based upon his alleged conversation with the school superintendent. The record does not indicate Mr. Meyers actually presented his estoppel claim to the board.
If it was not before the board, it was also not properly before the trial court. It was Mr. Meyers' responsibility to raise his defenses at the board level. A reviewing court cannot pass upon issues not actually decided by an administrative agency.
Wahler v. Department of Social & Health Servs.,
20 Wn. App. 571, 576, 582 P.2d 534 (1978);
see also Shufeldt v. Department of Labor & Indus.,
57 Wn.2d 758, 359 P.2d 495 (1961).
Moreover, if the estoppel claim was before the board, it was therefore considered and a review of that decision is precluded by RCW 28A.67.072. We find no error by the trial court.
Judgment of the Superior Court is affirmed.
Green and Roe, JJ., concur.
Reconsideration denied March 12, 1982.
Review denied by Supreme Court May 21, 1982.