FILED APRIL 14, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
MICHAEL F. CRONIN, ) ) No. 33062-1-111 Appellant, ) ) v. ) ) CENTRAL VALLEY SCHOOL ) UNPUBLISHED OPINION DISTRICT, ) ) Respondent. )
FEARING, J. - This appeal tells the story of Sally's Choice. Michael Cronin's
union representative, Sally McNair, demanded a hearing to challenge Cronin's discharge
from employment, but she hesitated in selecting one of two procedural options available
to Cronin. The options were an appeal pursuant to a Washington statute or a grievance
hearing pursuant to a collective bargaining agreement. Because of this hesitation,
Cronin's employer, Central Valley School District, claims Cronin cannot exercise either
choice. The school district also contends McNair lacked any authority to request either
procedure on behalf of Cronin. The trial court agreed with the school district's choice
argument and dismissed Cronin's suit to compel the school district to participate in a No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
statutory proceeding to determine the validity of his discharge from employment. We
reverse and remand for entry of an order compelling the school district to participate in
the statutory hearing.
FACTS
Because the superior court disposed of this case on summary judgment, we rely on
declarations when framing our statement of facts. Appellant Michael Cronin was a
tenured school teacher. For seven years, he taught business classes at University High
School, a school within Spokane's Central Valley School District. Cronin received high
performance evaluations from the school district.
Michael Cronin is a member of the Central Valley Education Association, the
teachers' union for the Central Valley School District. Under the collective bargaining
agreement between the school district and the education association and under statute,
Cronin's employment contract automatically renewed from school year to school year
unless the school district gave notice of nonrenewal by May 15 for the upcoming school
year. A Washington statute establishes criteria by which a school district may refuse
renewal of a contract for performance deficiencies.
The Central Valley School District collective bargaining agreement contained
other provisions relevant to this appeal. Under the Employee Rights Section of the
agreement, "the private and personal life of any employee is not within the appropriate
concern or attention of the District except when it affects the employee's ability to fulfill
2 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
the terms of the employee's contract." Clerk's Papers (CP) at 74. The bargaining
agreement demanded opportunities for the teacher to correct work deficiencies before a
discharge. The agreement read concerning discipline, termination, or nonrenewal:
Section E - Right to Due Process No certificated employee shall be reprimanded, disciplined, or reduced in rank or compensation without just cause. Any such reprimand, discipline, or reduction in rank or compensation shall be subject to the grievance procedure hereinafter set forth, PROVIDED, however, that in cases of nonrenewal, discharge, or actions which adversely affect the employee's contract status, the employee shall select the statutory procedures or the grievance procedure. In the event the employee serves notice to the Board that he/she is appealing the Board's decision according to the statutory provisions, such cases shall be specifically exempted from the grievance procedure. When an allegation is made against an employee, the District shall conduct a preliminary investigation and inform the employee that an allegation has been made. The employee has a right to a meeting regarding the allegation(s). The employee further has the right, upon request, to have an Association representative present.
CP at 5. The language in the first paragraph of Section E concerning the selection
between the statutory procedures or grievance procedure is the key bargaining agreement
provision for purposes of this appeal.
In August 2010, police arrested Michael Cronin for physical control of a vehicle
while under the influence of alcohol. He admits having drank alcohol, but denies earlier
driving the vehicle. He stood outside the car, while the owner of the car left to attend to
some business. The owner left the keys inside the car. Upon his arrest, authorities
released Cronin on condition he undergo twice weekly urinalyses until trial on the charge.
3 I i
No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
The charge lingered for more than one year. Cronin taught through the 2010-11 school
year without incident.
On August 29, 2011, Central Valley School District placed Michael Cronin on
paid administrative leave. The school district did not inform Cronin of the reason for the
leave, but instructed him to remain available for interviews during an investigation of
Cronin's conduct.
Michael Cronin decided to attend a residential alcohol treatment program in Selah.
He recognized an alcohol problem, although he denied drinking alcohol at school or the
alcohol impacting his teaching performance. Cronin wished to preserve his employment
with the school district. He therefore informed school district Assistant Superintendent
for Human Resources and Operations Jay Rowell and High School Principal Daryl Hart
that he voluntarily enrolled in alcohol treatment. Cronin notified the two administrators
that he could return to work at any time and he would cooperate with any investigation.
On September 28, 2011, Michael Cronin pled guilty to physical control of a
vehicle while under the influence of alcohol. The court sentenced him to one hundred
twenty days confinement at Spokane's Geiger Corrections Center. The court allowed
Cronin to undergo alcohol treatment before serving his sentence. Cronin thereafter
successfully finished his one month treatment and received credit toward his sentence for
time spent in treatment.
On October 28, 2011, Michael Cronin commenced serving the remainder of his
4 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
sentence at Geiger Corrections Center. The prison granted him work release privileges.
In a declaration for this suit, Cronin averred that he advised the school district of his
ability to teach while at the corrections center.
On November 18, 2011, Central Valley School District Assistant Superintendent
Jay Rowell sent Michael Cronin a letter informing him of a mandatory meeting on
November 22 at the school district office. Geiger Corrections Center granted Cronin
leave to attend the meeting. Cronin's union representative, Sally McNair, also attended.
McNair's duties included assisting union members with performance issues, disciplinary
proceedings, and grievances. In a declaration, McNair stated that she was often asked to
act on behalf of a union member regarding appeals from discharges and grievances. She
does not disclose the details of the requests or whether she granted a request.
Michael Cronin averred in a declaration that he authorized Sally McNair to speak
with the school district and "act on [his] behalf for all purposes in dealing with the
District." CP at 34. He does not indicate if he granted this authority before the school
district served him a notice of discharge and nonrenewal. He does not specify whether he
informed the school district of the bestowment of authority. In her declaration, Sally
McNair testified that the school district knew she represented Michael Cronin regarding
his placement on administrative leave and the district's investigation of Cronin.
McNair's basis for testifying to the school district's knowledge was McNair's direct
contact with the school district on behalf of Cronin.
5 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
During the November 22 meeting, Jay Rowell asked Michael Cronin of his current
residence, the reason for residing at the residence, and any pending legal issues. Cronin
answered the questions. At this meeting, Cronin discussed his battle with alcoholism, but
insisted the disability did not impact his work performance. Cronin agreed to provide the
school district with documentation confirming his successful completion of alcohol
treatment and his work release authorization from Geiger.
In a November 22, 2011 e-mail message to Jay Rowell, Michael Cronin politely
repeated the answers given during the November 22 meeting. In the message, Cronin
reiterated his availability to teach.
On December 8, 2011, school district representatives met with Michael Cronin at
Geiger Corrections Center. Cronin's union representative Sally McNair attended the
meeting. During the meeting, the school district notified Cronin of its intention to
terminate his employment unless he resigned from employment within one week. On
December 15, 2011, school district representatives returned to Geiger for another
meeting. According to Cronin, he told the school district he would not resign and that he
could return to his teaching position upon his release from Geiger Corrections Center on
January 16, 2012. School district officials deny that Cronin told them of the date of his
release from jail.
On January 6, 2012, Michael Cronin received from Central Valley School District
Superintendent Ben Small, via certified mail, a "Notice of Probable Cause for Discharge
6 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
and Nonrenewal Pursuant to RCW 28A.405.210 and RCW 28A.405.300." CP at 40. The
notice alleged:
1. You have conducted yourself in a manner unbecoming of a teacher employed by Central Valley School District; 2. You have engaged in a pattern of misconduct that includes several alcohol or substance abuse related incidents (at least one of which resulted in your incarceration and others which resulted in your inappropriate and exploitive conduct toward students and others); 3. Your pattern of behavior and the notoriety of your behavior reflects negatively on your ability to perform your job and has a substantial negative impact on your ability to do your job; 4. You have not been available for work and failed to notify the District of that fact; 5. You continue to be unavailable for work; 6. You have not been forthcoming with the District regarding behavior that is job-related and that substantially negatively impacts your ability to do your job.
CP at 40. The notice recognized Sally McNair as Michael Cronin's union representative.
The notice informed Cronin of a ten-day deadline, under Washington statute, to request a
statutory appeal from the discharge and nonrenewal. The school district notice warned
Cronin that he must demand any appeal "in writing" and file it with the school district.
Note that the school district informed Michael Cronin of both discharge from
employment and nonrenewal of his contract for the 2012-13 school year. Although
discharge and nonrenewal are distinct acts, our analysis remains the same for each act
and we will collectively refer to both as a "discharge." Presumably a valid discharge
automatically leads to a nonrenewal of next year's contract.
7 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
Remember that, in alternative to a statutory appeal of the employment dismissal,
the collective bargaining agreement between the Central Valley School District and the
Central Valley Education Association afforded Cronin thirty working days to file a
grievance over his discharge. The school district notice did not prompt Cronin about this
option.
Because of his incarceration, Michael Cronin could not readily contact union
representative Sally McNair. Cronin spoke with friend Terri Anderson and directed her
to immediately notify McNair of the termination notice and instruct McNair to appeal his
termination. Anderson complied, telephoned McNair, and requested she take "whatever
steps were necessary to represent him [Cronin] and preserve his job since he was not in a
position to do so from the confines of Geiger." CP at 74.
On January 11, 2012, union representative Sally McNair hand delivered, to
Central Valley School District Superintendent Ben Small, a request for a statutory
hearing on Michael Cronin's discharge. The request read:
I have received the Notice of Probable Cause for Termination of Mike Cronin's employment dated January 5th, 2012. Pursuant to RCW 28A.405.300 and .310, I am requesting a closed hearing on Mr. Cronin's behalf to determine whether there is sufficient cause for such adverse action. Until counsel has been appointed, I will serve as Mr. Cronin's nominee for a hearing officer. Due to the lack of access to Mr. Cronin, I will also be filing a grievance in order to preserve timelines to both procedures. It is clear the contract requires an election of remedies and it is not our intent to pursue both options, only to allow time to consult with Mr. Cronin so he can determine his desired path. We anticipate notifying the District on or
8 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
before February 10th, 2012 as to Mr. Cronin's decision to pursue either the statutory hearing or the grievance. At that time, either this request or the grievance will be withdrawn.
CP at 93. McNair, not Michael Cronin, signed the letter. McNair's attempt, in the
January 11 letter to reserve the option for Cronin to pursue the grievance, looms large in
this suit.
Sally McNair's January 11 letter referenced Cronin's termination from
employment, but not the nonrenewal of his teaching contract. Before the trial court, the
school district noted McNair's failure to mention the nonrenewal of the contract in her
letter. On appeal, the school district does not contend that Michael Cronin never
challenged nonrenewal of the teaching contract.
On receipt of Sally McNair's letter on January 11, school district Superintendent
Ben Small concluded that McNair' s letter was not a written request by Michael Cronin
for a statutory hearing under chapter 28A.405 RCW for either the discharge or
nonrenewal actions. Therefore, Small did not respond to the letter. Small did not inform
Sally McNair or Michael Cronin that he considered McNair's letter wanting.
On January 16, 2012, Michael Cronin left Geiger Corrections Center. He then
discovered that the school district had cancelled his pay and benefits, both of which
should have continued upon his request for a statutory hearing.
On February 8, 2012, Central Valley Education Association representative Sally
McNair e-mailed Central Valley School District Assistant Superintendent Jay Rowell:
9 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
As a follow-up to my letter from January 11th, 2012, this email is to provide you written notice that Mr. Cronin has decided to pursue the statutory hearing as described in RCW 28A.405.300 as his election of remedy for the notice of probable cause for discharge. He will not be utilizing the grievance procedure.
CP at 94. Neither McNair nor Cronin filed a grievance under the collective bargaining
agreement. The school district did not respond to McNair's February 8 correspondence.
On February 21, 2012, Michael Cronin's attorney, Larry Kuznetz, contacted
Central Valley School District's attorney, Paul Clay, to ascertain why the school district
discontinued Cronin's pay and benefits. Kuznetz believed the school district ceased
payment by accident. Clay forwarded the letter to Assistant Superintendent Jay Rowell
the next day. Rowell maintains that he called Sally McNair on February 22 and informed
her that the school district did not consider her January 11 letter of appeal as a proper
request, that the school district terminated Michael Cronin in January, and that Cronin
was no longer entitled to pay or benefits. McNair denies receiving a call from Rowell
any time after she served the notice of appeal on Superintendent Ben Small.
On February 21, 2012, Central Valley School District Superintendent Ben Small
penned a letter to union representative Sally McNair. McNair received the letter on
February 28. The correspondence read:
Thank you for your correspondence dated January 11, 2012. Any appeal of a Notice of Probable Cause under RCW 28A.405.300 and RCW 28A.405.210 must be undertaken by the employee who receives the Notice. Since you are not the employee who received the Notice, your correspondence does not constitute a valid appeal. Further, your
10 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
correspondence does not mention and thus does not constitute an appeal of the Notice of Probable Cause for Mr. Cronin's Nonrenewal. The employee here, Mr. Cronin, did not timely appeal the Notice of Probable Cause for Discharge or Nonrenewal and thus he has waived his right to a statutory hearing under RCW 28A.405.210 and 28A.405.300. As such, his employment with the District has been terminated.
CP at 95.
PROCEDURE
On March 23, 2012, Michael Cronin filed a declaratory judgment action against
the Central Valley School District. He sought to compel the school district to participate
in a statutory hearing to address the merits of his discharge from employment and
nonrenewal of his teaching contract. He also requested back wages with interest and
double damages for the school district's willful withholding of his salary between the
time of discharge and the statutory hearing. Among other arguments, the school district
contended that, under RCW 28A.645.010, Michael Cronin untimely sued because he did
not sue for his employment dismissal within thirty days of Superintendent Ben Small's
January 6, 2012 notice of discharge and nonrenewal.
The Central Valley School District and Michael Cronin sought a summary
judgment order in each's respective favor. The trial court granted the school district's
motion and dismissed Cronin's suit. The trial court reasoned that it lacked subject matter
jurisdiction. On March 13, 2014, by unpublished opinion, this court reversed the trial
court and remanded for further proceedings. We additionally observed:
11 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
The parties briefed whether Ms. McNair was a proper representative of Mr. Cronin and whether the District improperly withheld wages from Mr. Cronin. Because we hold the summary dismissal of Mr. Cronin's request for declaratory relief was improper and remand for a determination on the merits, we leave these matters for trial court resolution.
CP at 28.
On remand, the parties filed cross motions for summary judgment again. Michael
Cronin asked the court to rule as a matter of law that: (1) Sally McNair was his
authorized representative for the purpose of requesting a statutory hearing, (2) the school
district improperly terminated Cronin's salary and benefits without due process, and (3)
the school district had not followed the collective bargaining agreement's evaluation and
probation requirements before issuing a notice of probable cause for discharge or
nonrenewal. The school district asked the court to rule: ( 1) Michael Cronin failed to
properly request a statutory hearing, (2) Sally McNair lacked authority to file a hearing
request for Cronin, (3) even if McNair had authority, she failed to properly elect a
remedy in her January 11, 2012 letter to the district, (4) McNair only requested a hearing
on discharge and not on nonrenewal, (5) Cronin's second, third, and fourth causes of
action should be dismissed as untimely or for failure to exhaust administrative remedies,
and (6) school district Superintendent Ben Small held authority to issue a nonrenewal
notice.
In support of its motion for summary judgment, the Central Valley School District
filed a declaration from its attorney, Paul Clay, to which declaration Clay attached
12 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
examples of other statutory hearing requests and a Washington Education Association
guide for school employees. Clay declared:
3. . .. I have personally practiced in this area of law for some 25 years. I have had occasion to review numerous statutory hearing requests by employees in response to notices of discharge or nonrenewal under RCW 28A.405.210 and .300. To the best ofmy memory, and based on my personal knowledge, I have not seen a statutory hearing request under RCW 28A.405.210 or .300 by a union representative purporting to act for an employee. 4. Attached collectively as Exhibit A to this Declaration are several representative examples of the form of statutory hearing requests to which I refer, covering a time span of more than the last decade. The Court may take particular notice that in each of the requests, the employee requesting the hearing was then being represented by the very same law firm that represents plaintiff here. 5. Attached as Exhibit B to this Declaration is a Washington Education Association Office of General Counsel publication entitled "Reduction In Force Assistance Guide For School Employees." In my role as general counsel for school districts, I often obtain such publications. This WEA publication admits that employees themselves must file written requests for hearings. The publication includes a sample request for hearing letter, which provides for an employee's signature.
CP at 136-37. Michael Cronin moved to strike Paul Clay's declaration as inadmissible
evidence in violation of CR 56(e). Cronin maintained the declaration and attached
exhibits were irrelevant, lacked foundation, and constituted inadmissible hearsay and
opinion testimony.
The trial court granted partial summary judgment to Michael Cronin by ruling that
Sally McNair possessed authority to file a statutory appeal request. Nevertheless, the
court ruled that McNair's letter failed to elect a remedy between the statutory appeal and
13 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
the collective bargaining agreement grievance process. According to the court, Cronin
did not make the election between the two processes until Sally McNair's February 8 e-
mail message, in which she stated Cronin would not file a grievance. The February 8
election came too late for a statutory hearing, because the selection fell more than ten
days after the discharge notice. Therefore, the trial court granted the school district's
motion for summary judgment and dismissed Cronin's suit. In a written order, the court
listed Paul Clay's November 14, 2014 declaration and attachments thereto as pleadings it
considered. The trial court did not directly rule on Cronin's motion to strike Paul Clay's
declaration.
LAW AND ANALYSIS
On appeal, Michael Cronin assigns error to: ( 1) the trial court's grant of summary
judgment to Central Valley School District on the ground that he failed to timely elect a
remedy, and (2) the trial court's denial of his motion to strike Paul Clay's declaration.
Cronin does not appeal the trial court's refusal to grant him summary judgment on any
issue or claim. The school district cross appeals the trial court's ruling that Sally McNair
held authority to file the demand for a statutory hearing on Cronin's behalf. In the
argument of its brief, the school district also objects to this court's consideration of
portions of a declaration filed on behalf of Michael Cronin.
Paul Clay Declaration
Michael Cronin first assigns error to the trial court's consideration of the
14 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
November 14, 2014 declaration from Paul Clay, and exhibits attached thereto, when
ruling on summary judgment. We follow the lead of many trial courts when asked to
strike testimony in support of and in opposition to a summary judgment motion. We
decline to resolve the assignment of error because its resolution does not impact our
decision on the merits. Principles of judicial restraint dictate that if resolution of another
issue effectively disposes of a case, we should resolve the case on that basis without
reaching the first issue presented. Wash. State Farm Bureau Fed'n v. Gregoire, 162
Wn.2d 284, 307, 174 P.3d 1142 (2007); Hayden v. Mut. ofEnumclaw Ins. Co., 141
Wn.2d 55, 68, 1 P.3d 1167 (2000).
Cronin, Anderson, and McNair Declarations
In a footnote, Central Valley School District objects to purported hearsay
submitted in declarations of Michael Cronin, Terri Anderson, and Sally McNair. In his
declaration, Cronin stated that he asked his friend Terri Anderson to contact McNair and
direct her to take whatever action McNair deemed necessary to preserve his job and to
appeal his termination. Terri Anderson, in her declaration, testified that Cronin asked her
to immediately contact McNair and direct her to take whatever steps she felt necessary
and to appeal his termination from employment. Anderson further declared that she
called McNair and repeated what Cronin told her, including that Cronin wished to appeal
his discharge and take whatever steps were needed to represent him in preserving his job.
In her declaration, McNair repeated Terri Anderson's out of court directions to her to
15 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
take whatever steps were necessary to represent Michael Cronin and preserve his job
since he was not in a position to do so from the confines of Geiger Corrections Center.
On appeal, the Central Valley School District does not show that it objected to the
trial court's use of the Sally McNair, Terri Anderson, and Michael Cronin declarations.
A party may not generally raise a new argument on appeal that the party did not present
to the trial court. RAP 2.5(a); In re Det. ofAmbers, 160 Wn.2d 543, 557 n.6, 158 P.3d
1144 (2007). In its appeal brief, the school district did not assign error to the trial court's
consideration of the three declarations. This court will not review a claimed error unless
it is included in an assignment of error. RAP 10.3(a)(4); RAP 10.3(g); BC Tire Corp. ·v.
GTE Directories Corp., 46 Wn. App. 351, 355, 730 P.2d 726 (1986); Vern Sims Ford,
Inc. v. Hagel, 42 Wn. App. 675, 683, 713 P.2d 736 (1986). A footnote does not suffice.
Moreover, the Central Valley School District misunderstands the application of
the hearsay rule. "' Hearsay' is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." ER 801(c). A statement is not hearsay if it is used only to show the effect on
the listener, without regard to the truth of the statement. State v. Edwards, 131 Wn. App.
611, 614, 128 P.3d 631 (2006). Although the statements of Michael Cronin, Sally
McNair, and Terri Anderson indirectly prove that McNair had authority to act for Cronin,
Cronin presented the declarations to show that the respective speakers uttered the
statements, not for the truth inside the statements.
16 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
A principal' s oral remarks are relevant to determining if another holds authority to
act on his behalf. Little v. Clark, 592 S.W.2d 61, 64 (Tex. Civ. App. 1979). When an
agent's authority comes from the principal's oral directions, the comments made outside
the courtroom loom critical in the resolution of the dispute.
Sally McNair's Authority
If this court invalidates Sally McNair's January 11, 2012 request on behalf of
Michael Cronin, for a statutory appeal of his discharge, the school district wins. The
school district seeks to annul the request on four grounds. First, Terri Anderson's
forwarding of a message from Cronin to McNair granted no authority to McNair. This
first argument examines the factual basis for Sally McNair's authority. Second, McNair
lacked authority to sign the request because only Cronin could prepare and sign the
appeal. This second argument questions McNair's legal authority. Third, McNair lacked
authority to select which of two available procedures Cronin could utilize to enforce his
rights, and therefore she could not select any procedural option. This third contention
again probes the factual underpinning ofMcNair's authority. Fourth, regardless of
McNair's authority to act on Cronin's behalf, because neither McNair nor Michael
Cronin elected between the statutory appeal and the collective bargaining agreement
grievance process until McNair's February 8, 2012 letter, Cronin did not timely select an
appeal process. According to the fourth argument, McNair's reservation of Cronin's
option to file a grievance nullified the request for the statutory appeal either immediately
17 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
or at least until Cronin announced his intention, in the February 8 letter, to forgo the
grievance process. All four arguments overlap. We first address Sally McNair's
authority.
Michael Cronin asserts that Sally McNair possessed authority on his behalf to
demand the statutory appeal from his discharge, and thus her January 11 letter timely
appealed his discharge. Cronin claims that McNair held actual authority by reason of her
position as union representative and by reason of Terri Anderson, at his direction,
informing McNair to perform whatever tasks were needed to preserve his rights to
employment with the school district. Cronin also argues that McNair possessed apparent
authority to demand the appeal. We agree with Cronin that McNair owned actual
authority by reason of Cronin's directions to her. Therefore, we do not address whether
McNair held authority by reason of her position with Cronin's teachers union or whether
McNair acquired apparent authority.
Typically, a question of an agent's authority arises in the context of a third party
seeking to bind the principal for the conduct of the agent and the principal seeking to
avoid liability for the actions of the agent. In other words, the principal, not a third party,
eschews authority. Nearly, if not all, Washington decisions address this context. The
reverse situation surfaces in this appeal. The principal, Michael Cronin, seeks to show
that Sally McNair could sign a statutory hearing request on his behalf. Apparent
authority likely is relevant only when a third party seeks to impose liability on the
18 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
principal, not when the principal contends he granted an agent authority to act.
Agency is the relation that results from the act of one person, called the principal,
who authorizes another, called the agent, to conduct one or more transactions with one or
more third persons and to exercise a degree of discretion in effecting the purpose of the
principal. L. Byron Culver & Assocs. v. Jaoudi Indus. & Trading Corp., 1 Cal. App. 4th
300, 304, 1 Cal. Rptr. 2d 680 (1991). In an agency relationship, whatever an agent does
in the lawful prosecution of the transaction the principal has entrusted to her is the act of
the principal. 3 AM. JuR. 2o Agency § 2 (2016).
The undisputed facts establish that Michael Cronin deputized Sally McNair, his
union representative, to speak with the school district and act on his behalf for all
purposes in dealing with the school district. Cronin further authorized McNair to take
any steps needed to demand a statutory hearing as a result of his discharge and
nonrenewal of employment. The school district does not dispute that Cronin intended to
authorize McNair to act on his behalf.
Central Valley School District minimizes Michael Cronin's grant of power for
Sally McNair to act as a "cryptic hearsay statement" from a friend of his to take whatever
steps McNair felt necessary to appeal the termination and preserve his job. Br. ofResp't
at 28. The school district cites no law that precludes a bestowal of authority through an
intermediary. The school district cites no case that requires legalese, let alone any
specific language, be uttered in order to convey power to act on one's behalf. We decline
19 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
to adopt either suggested rules. Michael Cronin sat in jail and encountered difficulties in
communicating with the school district and his union representative. He undertook the
best steps he considered available to preserve his desired employment. Cronin
reasonably chose as his agent his union representative, who the school district had
already recognized as acting on his behalf.
The school district next argues that the law does not allow any agent to sign a
teacher's request for a statutory hearing of an employment discharge. We disagree.
Any competent person may authorize an agent to act for him or her with the same
effect as if such person were to act in person. 3 AM. JUR. 2o Agency § 9 (2016). When a
duly constituted agent acts in accordance with his instructions, he has power to affect the
legal relations of the principal to the same extent as if the principal had so acted. Am.
Home Assur. Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 318 (2d Cir.
2006); RESTATEMENT (SECOND) OF AGENCY§ 12 cmt. a (1958). One may appoint an
agent for any purpose whatsoever, and this is no less true when the agent assumes to
exercise a statutory right than it is in other cases. State ex rel. Hansen v. Schall, 126
Conn. 536, 12 A.2d 767, 769 (1940). An exception lies when the express terms of the
statute or necessary effect of the act requires the act to be performed by the person only
who is named. State ex rel. Hansen v. Schall, 12 A.2d at 769-70.
In State ex rel. Hansen v. Schall, the relator Julius Hansen, a resident of West
Haven, Connecticut, sought to compel the city clerk to permit his agent to review city
20 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
records. A statute demanded that the clerk open all city books, papers, and documents to
the inspection of any inhabitant of the city. Hansen's agent was not a resident of West
Haven. The city clerk denied access to the records to the designated agent. The
Connecticut Supreme Court of Errors reversed. The court noted the general and
prevailing view that a principal may perform any act through an agent. The statute
opening city records to any inhabitant did not contain any language suggesting that the
inspection could not be conducted through an agent, let alone a nonresident agent.
Michael Cronin sought an appeal of his discharge pursuant to RCW 28A.405.300.
The statute provides, in pertinent portion:
In the event it is determined 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 or her contract status, such employee shall be notified in writing of that 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 president, chair 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 a hearing pursuant to RCW 28A.405 .310 to determine whether or not there is sufficient cause or causes for his or her discharge or other adverse action against his or her contract status.
RCW 28A.405.300 (emphasis added). Notice that the statute requires notice on the
employee "personally" of the notice of discharge from the school district. The statute,
21 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
however, does not demand that the teacher "personally" prepare, sign, or file the demand
for a hearing.
Central Valley School District emphasizes the language in the statute that reads:
"Every such employee so notified, at his or her request" may file a demand for the
statutory hearing. RCW 28A.405.300 (emphasis added). Nevertheless, use of the two
pronouns says nothing about the employee being the only one authorized to prepare and
sign the request for hearing. The language is consistent with the teacher permitting
someone else to prepare and sign the request. The teacher may still deputize someone
else to render "his or her" statutory hearing request.
The Central Valley School District next contends that Sally McNair lacked
authority to choose between a statutory hearing and the grievance process under the
collective bargaining agreement. From this contention, the school district extrapolates
that McNair lacked the authority in the first place to request a statutory hearing. The
school district highlights language from Sally McNair's January 11 letter, in which she
sought to preserve Michael Cronin's option to enforce his employment rights through a
grievance. In the second paragraph of her letter, McNair wrote:
Due to the lack of access to Mr. Cronin, I will also be filing a grievance in order to preserve timelines to both procedures. It is clear the contract requires an election of remedies and it is not our intent to pursue both options, only to allow time to consult with Mr. Cronin so he can determine his desired path. We anticipate notifying the District on or before February 10th, 2012 as to Mr. Cronin's decision to pursue either the statutory hearing or the grievance. At that time, either this request or the
22 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
grievance will be withdrawn.
CP at 94.
The school district contends that Sally McNair, in her January 11 letter, conceded
she lacked authority to select among the two alternatives of a statutory appeal or a union
grievance. The school district reads into the paragraph what it wishes to perceive.
McNair did not expressly declare that she lacked authority to exercise the choice.
Michael Cronin's delegation of express authority to McNair was broad and afforded her
the option to make the selection if she so chose, particularly if the failure to make a
selection endangered his rights. Cronin granted McNair power to perform whatever steps
were needed. Out of precaution, McNair preferred to allow Cronin to select the process
to advocate his rights.
Assuming she lacked authority to choose between the two available procedures,
we discern no reason why Sally McNair could not demand both processes until a later
date. RCW 28A.405.300 does not render a timely appeal from a discharge of a teacher's
employment null because the appeal notice might seek to temporarily preserve
inconsistent rights. The language of the collective bargaining agreement commands a
selection between either the statutory process or the grievance, but the agreement
establishes no deadline for the selection. Nor does the agreement language address the
ramifications of the employee initially requesting both. Lawsuits are full of requests by
litigants for relief well beyond that to which they are entitled, but asking for excessive
23 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
relief does not prevent any relief. When a party is uncertain in which jurisdiction to file
suit and a limitation period will shortly expire, the party may file the suit in two or more
jurisdictions until a resolution of the jurisdictional question. Filing the suit in the wrong
jurisdiction does not annul the validity of the suit in the correct jurisdiction.
The school district argues that it relied on Sally McNair's concession in her
January 11 letter that she lacked power to render a selection between the competing
procedures. We already addressed this contention by noting that McNair did not concede
any absence of authority. Other facts also belie the school district's argument. In his
declaration, Superintendent Ben Small testified that he decided to ignore the appeal
request because the request came from Sally McNair, not from Michael Cronin. The
declaration claims no reliance on any statement from McNair that she lacked authority to
select the hearing process.
Central Valley School District relies on two California cases. In Blanton v.
Womancare, Inc, 38 Cal.3d 396, 696 P.2d 645 (1985), the California Supreme Court held
that an attorney, merely by virtue of his employment as counsel, lacks authority to bind
his client to an agreement for arbitration. In Kanbar v. 0 'Melveny & Meyers, 849 F.
Supp. 2d 902 (N.D. Cal. 2011), the federal court, following Blanton, held that the waiver
of the right to a judicial forum is a decision that belongs to the client and not the client's
attorney. Each case is readily distinguishable. The clients were not given an opportunity
by counsel to make a decision. The principal, not a third party, challenged the agent's
24 No. 33062-1-IH Cronin v. Central Valley Sch. Dist.
authority. Michael Cronin bequeathed Sally McNair unlimited power to protect his
employment rights. Cronin does not question McNair's authority on his behalf.
The Central Valley School District underscores a Washington Education
Association guideline that directs the employee to personally sign any appeal from a
discharge or nonrenewal. The school district also emphasizes other demands for a
statutory hearing signed by the teacher, even when Michael Cronin's counsel represented
the other teacher. Nevertheless, courts declare the law. We are not bound by an
organization's guideline interpreting the law, even if the organization seeks to protect the
interests of a party harmed by the organization's interpretation. Nor are we bound by an
attorney's interpretation of the law. For all we know, Michael Cronin's counsel, in other
appeals, may have, from caution, counseled his clients to personally sign the demand for
an appeal for fear that a school district might assert the incorrect position that only the
teacher may sign.
Effect of Additional Request for Bargaining Agreement Grievance
Once again, Central Valley School District contends Sally McNair's January 11,
2012 letter, regardless of McNair's authority to act for Michael Cronin, did not timely ask
for the statutory appeal afforded by RCW 28A.405.300. According to the school district,
the reservation of the option to seek a grievance nullified the request for the statutory
hearing.
The collective bargaining agreement demanded that the employee select between
25 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
the two alternative procedures. The agreement read:
... [I]n cases of nonrenewal, discharge, or actions which adversely affect the employee's contract status, the employee shall select the statutory procedures or the grievance procedure. In the event the employee serves notice to the Board that he/she is appealing the Board's decision according to the statutory provisions, such cases shall be specifically exempted from the grievance procedure.
CP at 5 (emphasis added).
We repeat our earlier analysis. The language of the agreement does not nullify the
request for the statutory procedure if the employee also temporarily seeks the grievance
procedure, even if the final selection is not within ten days of the discharge. If anything,
the language precludes the grievance procedure if the employee first gives notice of
selecting the statutory procedure.
We construe collective bargaining agreements according to principles of contract
law. Spokane Sch. Dist. No. 81 v. Spokane Educ. Ass'n, 182 Wn. App. 291, 305, 331
P.3d 60 (2014). One such well-established principle is that language in a contract is
given its ordinary meaning unless sufficient reason exists to apply another meaning.
Patterson v. Bixby, 58 Wn.2d 454, 458, 364 P.2d 10 (1961). An interpretation that gives
a reasonable, fair, just and effective meaning to all manifestations of intention is
preferred to an interpretation that leaves a part of such manifestations unreasonable,
imprudent or meaningless. Pub. Util. Dist. No. 1 ofLewis County v. Wash. Pub. Power
Supply Sys., 104 Wn.2d 353, 373, 705 P.2d 1195, 713 P.2d 1109 (1985). This court will
26 No. 33062-1-III Cronin v. Central Valley Sch. Dist.
not interpret contractual provisions in a manner that would render contractual obligations
illusory. Spokane Sch. Dist. No. 81, 182 Wn. App. at 305-06; Taylor v. Shigaki, 84 Wn.
App. 723, 730, 930 P.2d 340 (1997).
The bargaining agreement reads that if an employee requests a statutory hearing,
his case is "exempted from the grievance procedure." "Exempt" means "[f]ree or
released from a duty or liability to which others are held." BLACK'S LA w DICTIONARY
692 ( 10th ed. 2014 ). The agreement logically means that if an employee requests a
statutory hearing, his case is released from the duties and liabilities contained within the
bargaining agreement's grievance procedure.
Both parties rely on Oak Harbor Educucation Association v. Oak Harbor School
District, 162 Wn. App. 254, 259 P.3d 274 (2011) to support their positions. In Oak
Harbor, this court addressed a different issue on nearly identical facts. The Oak Harbor
School District sent James Pruss a notice of probable cause for discharge after a student
accused Pruss of touching her inappropriately during basketball drills. Pruss requested a
statutory hearing and filed a grievance in accordance with the terms of the collective
bargaining agreement governing his employment. Pruss later withdrew the request for a
statutory appeal and sought to proceed with the grievance alone. The school district
refused to participate in the grievance on the ground that Pruss' s election of the statutory
hearing prevented him from filing a grievance. Pruss and the union sued to compel the
school district to submit the question to the grievance arbitrator of whether Pruss's
27 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
grievance was grievable. The trial court granted the school district's motion for summary
judgment and dismissed the union's suit on the ground that Pruss had already committed
to the statutory procedure.
In Oak Harbor Education Association v. Oak Harbor School District, this court
reversed and held that the school district must submit to the grievance arbitrator's
decision as to whether James Pruss could grieve his employment termination. This court
noted the broad language in the collective bargaining agreement that required that the
grievance arbitrator determine what claims were grievable. This court issued no ruling
on what, if any, procedure should be employed by the parties, but deferred this ruling to
the arbitrator.
If Oak Harbor Education Association assists any party to this appeal, the party is
Michael Cronin. The court did not rule that an initial request for both a statutory hearing
and a bargaining agreement grievance quashes the availability of the statutory hearing or
denies the teacher the right to later select the preferable procedure. In a footnote, this
court observed:
The District also asserts that because compliance with the statutory requirements under RCW 28A.405.300 and .310 is mandatory, Pruss's decision to withdraw his request for a statutory hearing resulted in termination. Because the trial court did not address this argument below, we decline to do so. Nonetheless, neither the language of the statute nor the [collective bargaining agreement (CBA)] supports the District's contention that withdrawal of the request to proceed with the statutory appeal has any effect on the grievance process, and case law allows Pruss to challenge his termination under both the statute and the CBA.
28 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
Oak Harbor Educ. Ass 'n, 162 Wn. App. at 262 n.4 (internal citation omitted). The dicta
supports a ruling that Michael Cronin could proceed with both procedures, or, at the least,
the withdrawal of the request for a grievance does not interfere with the request for a
statutory hearing.
Michael Cronin asserts estoppel and other equitable principles for the purpose of
precluding Central Valley School District from avoiding the statutory hearing process.
Cronin also characterizes the collective bargaining agreement as imposing an "election of
remedies." In tum, Cronin argues that the doctrine of election of remedies only requires
the election to be made immediately before or upon entry of a judgment. We question
the application of the election of remedies doctrine in this context. The bargaining
agreement instructed the employee to select between two processes, not remedies. The
collective bargaining agreement directed the employee to choose between the forum or
hearing process, whose end result would be the award of remedies. Because we resolve
the appeal on other grounds, we do not address Cronin's contentions based on equity,
estoppel, or election of remedies.
Central Valley School District argues that Michael Cronin and Sally McNair
caused it prejudice by the attempt by McNair to reserve both the grievance procedure and
the statutory hearing procedure. The school district contends that it needs to know
whether to pay the employee beyond the ten-day deadline for the statutory hearing and
29 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
whether it should hire a substitute or regular employee and that reserving the grievance
procedure interferes with this need. The school district also mentions the prejudice of
facing two costly procedures. Of course, Michael Cronin never intended to use both
procedures and the school district has not engaged in two costly procedures. Instead,
because of the legal positions taken, the school district has incurred significant costs in
attempting to deny Michael Cronin his right to the statutory hearing procedure. The
school district has not identified any additional costs incurred during the purported
twenty-day waiting period.
Central Valley School District also mentions that the statutory hearing procedure
was intended to be an expedited process since the employee continues to receive pay
during the process. The school district complains that the employee delays the process at
least twenty days if the district must wait to learn if the employee selects the grievance
procedure instead. In so arguing, the school district does not recognize that it could have
taken the position that Cronin had elected the statutory hearing procedure, despite an
attempt to reserve the right to exercise the grievance procedure, and the district could
have timely appointed a hearing official. The school district would then have positioned
itself to claim prejudice. Instead, the district took the uncategorical position that the
notice was void, because of the lack of Michael Cronin's signature, regardless of the
attempt to reserve, for twenty days, the grievance hearing. The school district also
ignores its ability to have contacted either Sally McNair or Michael Cronin in the
30 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
meantime to insist on proceeding with the statutory hearing. Sally McNair and Michael
Cronin heard only crickets.
Relief for Michael Cronin
Under the undisputed facts, Michael Cronin timely exercised his right to a
statutory appeal under RCW 28A.405.300. When the facts are not in dispute, this court
may grant summary judgment to the nonmoving party. lmpecoven v. Dep 't ofRevenue,
120 Wn.2d 357, 365, 841 P.2d 752 (1992); Leland v. Frogge, 71 Wn.2d 197, 201, 427
P.2d 724 (1967); Wash. Ass'n of Child Care Agencies v. Thompson, 34 Wn. App. 225,
234, 660 P.2d 1124 (1983). Ifwe may grant the nonmoving party summary judgment,
we should be free to grant judgment to a party who moved for summary judgment below, I but who does not appeal the denial of the summary judgment before this court. We grant
Michael Cronin's request for declaratory relief to the extent the request demands that the
school district participate in the statutory hearing process to resolve the merits of
Cronin's discharge from employment and nonrenewal of his teaching contract.
In his summary judgment motion, Michael Cronin argued that the law entitles him
to pay and benefits pending and regardless of the outcome of the statutory hearing since
he exercised his right to appeal. Cronin may be correct. The trial court did not address
this contention because it ruled the request for the hearing void. The parties do not brief
this issue on appeal. On remand, Michael Cronin may renew his request before the
superior court for pay and benefits pending the hearing on the merits of his discharge and
31 No. 33062-1-111 Cronin v. Central Valley Sch. Dist.
nonrenewal.
CONCLUSION
We reverse the trial court's grant of summary judgment to Central Valley School
District and the trial court's dismissal of Michael Cronin's suit. We grant Michael
Cronin judgment and remand to the trial court for entry of an order compelling the school
district to participate in the statutory hearing process to determine the merits of Cronin's
discharge from employment and nonrenewal of his contract.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, J. j