Michael F. Cronin v. Central Valley School District
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Opinion
NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED NOVEMBER 17, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON MICHAEL F. CRONIN, ) No. 37939-6-III ) Appellant, ) ) ORDER GRANTING v. ) MOTION TO PUBLISH AND ) MOTION FOR EXTENSION CENTRAL VALLEY SCHOOL DISTRICT, ) OF TIME ) Respondent. )
THE COURT has considered respondent’s motion to publish the court’s opinion
filed on August 25, 2022, and is of the opinion the motion to publish should be granted.
Therefore,
IT IS ORDERED the motion to publish is granted. The opinion filed by the court
on August 25, 2022, shall be modified on page 1 to designate it is a published opinion
and on page 73 by deletion of the following language:
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.
IT IS FURTHER ORDERED that pursuant to RAP 18.8(a), the respondent’s
motion for extension of time to file the motion to publish is granted.
PANEL: Judges Staab, Pennell, and Fearing
FOR THE COURT:
________________________________ LAUREL SIDDOWAY CHIEF JUDGE For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED AUGUST 25, 2022 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. 37939-6-III Appellant, ) ) v. ) ) UNPUBLISHED OPINION CENTRAL VALLEY SCHOOL ) DISTRICT, ) ) Respondent. )
STAAB, J. — Michael Cronin was a teacher with the Central Valley School District
(District) from 2005 to 2012. In January 2012, the District issued a notice of probable
cause for discharge and nonrenewal of Cronin’s employment based on six identified
causes. Following a lengthy legal dispute over whether Cronin was entitled to a statutory
hearing, the parties participated in a sufficient cause hearing that lasted more than 12
days. The hearing officer found that the District proved four of the identified causes by a
preponderance of the evidence and concluded that sufficient cause existed for Cronin’s
nonrenewal and discharge. Cronin appealed to the Spokane County Superior Court,
which affirmed the hearing officer’s decision. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37939-6-III Cronin v. Central Valley Sch. Dist.
On appeal to this court Cronin raises six issues. He contends that he is entitled to
entry of a judgment revising the hearing officer’s decision and reinstatement because:
(1) the notice of probable cause was vague and inadequate, allowing the hearing officer
to rely on misconduct not specified in the notice, (2) the District presented evidence it did
not have at the time it issued the probable cause notice, (3) the hearing officer violated
the appearance of fairness doctrine, (4) the evidence does not support the finding that the
statement of the student known as S.M. corroborated the deposition testimony of the
student known as H.Z., (5) the hearing officer committed an error of law by ruling that
the allegations set forth in the parties’ 2010 Settlement Agreement were verities and
could not be relitigated, and (6) the hearing officer erred by determining there was
sufficient cause for termination where there was no nexus between Cronin’s off-duty
alcohol-related conduct and his teaching effectiveness. Cronin also argues he is entitled
to an award of attorney fees.
We reject Cronin’s arguments on appeal and affirm the hearing officer’s
conclusion that sufficient cause existed to discharge Cronin and not renew his contract.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
BACKGROUND
A. BACKGROUND FACTS1
At the sufficient cause hearing, the District alleged that Cronin’s off-duty conduct
and his on-campus conduct justified termination and nonrenewal. Between 2004 and
2011, Cronin was arrested five times on alcohol-related charges. He was charged four
times with driving under the influence of alcohol and/or drugs (DUI) and physical control
of a vehicle while under the influence of alcohol and/or drugs. He was also charged with
obstructing an officer and resisting arrest with allegations that he was under the influence
of alcohol at the time of the arrest. The District also produced evidence that restraining
orders had been issued against Cronin during this time and that he had been banned from
a local bakery for inappropriate language and requests. The allegations about his on-
campus conduct include working while intoxicated, harassing staff members, and
inappropriately touching students. We set forth the allegations in chronological order.
February 19, 2004 arrest for DUI
Cronin’s first documented contact with law enforcement was on February 19,
2004. Cronin was pulled over for speeding and eventually arrested for DUI. His blood-
alcohol content was 0.145 and 0.158. At the time of this arrest, Cronin was working as a
1 Cronin assigns error to two of the hearing officer’s 119 findings of fact. The rest of the findings are therefore verities on appeal. See, e.g., In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.2d 147 (2004). The facts are taken from the hearing officer’s findings unless noted otherwise.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
teacher for Spokane Public Schools. Several weeks after pleading guilty to a reduced
charge of negligent driving, Cronin submitted his application for employment with the
District. He did not disclose the conviction on his application but did disclose it
on a subsequent disclosure form. The hearing officer found that Cronin did not
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED NOVEMBER 17, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON MICHAEL F. CRONIN, ) No. 37939-6-III ) Appellant, ) ) ORDER GRANTING v. ) MOTION TO PUBLISH AND ) MOTION FOR EXTENSION CENTRAL VALLEY SCHOOL DISTRICT, ) OF TIME ) Respondent. )
THE COURT has considered respondent’s motion to publish the court’s opinion
filed on August 25, 2022, and is of the opinion the motion to publish should be granted.
Therefore,
IT IS ORDERED the motion to publish is granted. The opinion filed by the court
on August 25, 2022, shall be modified on page 1 to designate it is a published opinion
and on page 73 by deletion of the following language:
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.
IT IS FURTHER ORDERED that pursuant to RAP 18.8(a), the respondent’s
motion for extension of time to file the motion to publish is granted.
PANEL: Judges Staab, Pennell, and Fearing
FOR THE COURT:
________________________________ LAUREL SIDDOWAY CHIEF JUDGE For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILED AUGUST 25, 2022 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. 37939-6-III Appellant, ) ) v. ) ) UNPUBLISHED OPINION CENTRAL VALLEY SCHOOL ) DISTRICT, ) ) Respondent. )
STAAB, J. — Michael Cronin was a teacher with the Central Valley School District
(District) from 2005 to 2012. In January 2012, the District issued a notice of probable
cause for discharge and nonrenewal of Cronin’s employment based on six identified
causes. Following a lengthy legal dispute over whether Cronin was entitled to a statutory
hearing, the parties participated in a sufficient cause hearing that lasted more than 12
days. The hearing officer found that the District proved four of the identified causes by a
preponderance of the evidence and concluded that sufficient cause existed for Cronin’s
nonrenewal and discharge. Cronin appealed to the Spokane County Superior Court,
which affirmed the hearing officer’s decision. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37939-6-III Cronin v. Central Valley Sch. Dist.
On appeal to this court Cronin raises six issues. He contends that he is entitled to
entry of a judgment revising the hearing officer’s decision and reinstatement because:
(1) the notice of probable cause was vague and inadequate, allowing the hearing officer
to rely on misconduct not specified in the notice, (2) the District presented evidence it did
not have at the time it issued the probable cause notice, (3) the hearing officer violated
the appearance of fairness doctrine, (4) the evidence does not support the finding that the
statement of the student known as S.M. corroborated the deposition testimony of the
student known as H.Z., (5) the hearing officer committed an error of law by ruling that
the allegations set forth in the parties’ 2010 Settlement Agreement were verities and
could not be relitigated, and (6) the hearing officer erred by determining there was
sufficient cause for termination where there was no nexus between Cronin’s off-duty
alcohol-related conduct and his teaching effectiveness. Cronin also argues he is entitled
to an award of attorney fees.
We reject Cronin’s arguments on appeal and affirm the hearing officer’s
conclusion that sufficient cause existed to discharge Cronin and not renew his contract.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
BACKGROUND
A. BACKGROUND FACTS1
At the sufficient cause hearing, the District alleged that Cronin’s off-duty conduct
and his on-campus conduct justified termination and nonrenewal. Between 2004 and
2011, Cronin was arrested five times on alcohol-related charges. He was charged four
times with driving under the influence of alcohol and/or drugs (DUI) and physical control
of a vehicle while under the influence of alcohol and/or drugs. He was also charged with
obstructing an officer and resisting arrest with allegations that he was under the influence
of alcohol at the time of the arrest. The District also produced evidence that restraining
orders had been issued against Cronin during this time and that he had been banned from
a local bakery for inappropriate language and requests. The allegations about his on-
campus conduct include working while intoxicated, harassing staff members, and
inappropriately touching students. We set forth the allegations in chronological order.
February 19, 2004 arrest for DUI
Cronin’s first documented contact with law enforcement was on February 19,
2004. Cronin was pulled over for speeding and eventually arrested for DUI. His blood-
alcohol content was 0.145 and 0.158. At the time of this arrest, Cronin was working as a
1 Cronin assigns error to two of the hearing officer’s 119 findings of fact. The rest of the findings are therefore verities on appeal. See, e.g., In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.2d 147 (2004). The facts are taken from the hearing officer’s findings unless noted otherwise.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
teacher for Spokane Public Schools. Several weeks after pleading guilty to a reduced
charge of negligent driving, Cronin submitted his application for employment with the
District. He did not disclose the conviction on his application but did disclose it
on a subsequent disclosure form. The hearing officer found that Cronin did not
intentionally misrepresent the arrest in order to obtain employment. The hearing officer
did find that during his deposition, Cronin “refused to admit that he was driving under the
influence . . . . Instead, Cronin asserted legalistic hair-splitting arguments to support his
opinion that he was not under the influence of alcohol.” Clerk’s Papers (CP) at 3
(Finding of Fact (FF) 11). While this arrest and conviction occurred before Cronin began
working for the District, the hearing officer found that the conduct was relevant as part of
a pattern of alcohol-related arrests and other legal issues in which “Cronin continued to
deny responsibility for his decisions and he failed to acknowledge that his conduct
impacted his employment with the School District and his relationship with other
teachers, parents, and students.” CP at 3 (FF 9).
December 2, 2007 arrest for DUI
On December 2, 2007, Cronin was arrested for his second DUI. The hearing
officer found that Cronin hit a parked car while under the influence of alcohol and left the
scene. After a witness contacted law enforcement, Cronin was stopped approximately
three miles from the accident. Cronin told the officer that he hit a car when it pulled out
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
in front of him and the other driver left the scene after providing a driver’s license. After
observing signs of intoxication, Cronin was arrested for DUI.
After his arrest, Cronin was argumentative and threatening. Cronin asked Deputy
Scott Bonney whether he had children in school, stated he had once been a prosecutor for
Spokane County, threatened to sue Deputy Bonney, and asked if there was anything he
could do to get out of a DUI. Testing of his blood returned an alcohol content of 0.166.
In his response to prehearing discovery, Cronin described his actions: “the road
was icy and I slid into a parked, unattended car on a narrow street.” CP at 4 (FF 20).
However, the hearing officer found that Deputy Bonney credibly testified that the roads
were not icy on that day and the road was not a narrow street. During his deposition and
at the hearing, Cronin admitted he was under the influence of alcohol but would not
admit that his blood-alcohol content was over the legal limit. The hearing officer found
that Cronin “refuses to acknowledge his alcohol problem, fails to accept responsibility for
his conduct, and he continues to provide excuses.” CP at 5 (FF 24).
April 2, 2008 arrest for DUI
Four months later, and while the 2007 charges were still pending, Cronin was
arrested for his third DUI. Washington State Patrol Trooper Antonio Olivas testified that
he observed Cronin’s vehicle stopped in the middle of an intersection and then saw the
car weave as it drove away. Following laboratory testing, Cronin was charged with
driving under the influence of Ambien, a prescription drug. Cronin characterized his
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
offense as turning left when the intersection was signed for no left turn. The hearing
officer found this explanation to be part of a continuing pattern by Cronin of attempting
to mischaracterize his criminal charges, driving circumstances, and culpability.
On April 9, 2008, Cronin resolved his 2007 and 2008 charges for DUI. He
pleaded guilty to a reduced charge of first degree negligent driving for the 2008 DUI and
entered a deferred prosecution on the 2007 DUI, agreeing to abide by conditions
including that he not commit any alcohol and/or drug related offenses during the period
of deferral.2 Cronin did not advise the District of these new charges, and Jay Rowell,
assistant superintendent for the District, did not learn about either the December 2007 or
the April 2008 arrest until an article discussing the arrests was published in the
Spokesman-Review in 2009. Rowell learned the full details of these arrests in October
2011 when he reviewed a file on Cronin from the Office of Professional Practices (OPP).
Harassing conduct directed at Hardenbrook
On November 20, 2008, Cronin took one of his classes on a field trip. Sara
Hardenbrook, a school bus driver employed by the District, drove the class there. When
she dropped off the class, she gave Cronin her cell phone number so he could call her
2 In his written findings, the hearing officer found that Cronin “received a deferred prosecution for this incident and fulfilled all of the obligations of his deferred prosecution.” CP at 5 (FF 22). This finding conflicts with the hearing officer’s memorandum opinion in which he notes that the deferred prosecution was eventually revoked and Cronin was convicted and sentenced on the DUI. Neither party challenges this finding. The inconsistency does not impact our analysis and we make note of it for accuracy purposes only.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
when the class was ready to be picked up. When she returned to pick up the class, Cronin
asked about her marital status, whether she was happily married, and invited her to join
him and his friends for drinks. Cronin stood very close to her during this conversation,
and Hardenbrook felt he was flirting with her.
After dropping the class off, Hardenbrook drove the bus back to the garage. She
noticed several missed phone calls and text messages from Cronin at this time.
Hardenbrook felt uncomfortable and texted Cronin to stop calling her. He called at least
one more time after she asked him to stop. Hardenbrook filed a harassment complaint
with the District, and the principal of University High School, Daryl Hart, gave Cronin a
verbal reprimand and told him to stop calling Hardenbrook. Cronin had no further
contact with Hardenbrook.
Allegations of misconduct in fall of 2008
On January 29, 2009, the District placed Cronin on administrative leave to
investigate an allegation that on October 17, 2008, Cronin inappropriately touched
student J.S. by rubbing her stomach and came to school under the influence of alcohol.
During the investigation, the District interviewed J.S. and student J.B., who witnessed the
touching incident. The District also interviewed several students in Cronin’s transition
assistance program (TAP) class who raised the allegation that Cronin may have been
intoxicated during class.
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
During the investigation, the District learned of another incident involving Cronin
that also occurred on October 17, 2008. Jan Pierce, who worked as a secretary at
University High School, alleged that Cronin inappropriately touched her. Rowell
interviewed Pierce as part of his investigation. Pierce alleged that Cronin came to her
desk, put his head on her shoulder, and placed his hand on her upper inner thigh. Pierce
pushed him away and informed the administration of the incident.
Shanda Shepherd, owner of the Rocket Market in Spokane and a parent of former
University High School students, also came forward with complaints about Cronin, who
was a customer at her store. Rowell interviewed Shepherd as part of his 2009
investigation. According to Shepherd, Cronin would show up to the store after he had
been drinking and ask Shepherd to pour alcohol into a Coke cup to hide his drinking from
students and parents, a request Shepherd denied as illegal. Cronin again asked for his
alcohol to be poured into a Coke cup and, after he was refused, did so himself. He also
harassed customers. Eventually, Shepherd had to “‘ban’” Cronin from Rocket Market.
CP at 8 (FF 44). Shepherd later testified that following these incidents, she asked the
school to remove Cronin from the senior project board at University High School that
would grade her daughter’s senior project.
On February 11, 2009, Cronin had a notice and opportunity meeting with the
District to discuss the ongoing investigation.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
That same day, Cronin’s ex-girlfriend filed her second petition for a restraining
order against Cronin. She filed her first petition in July 2008 because Cronin was calling
her 30 to 100 times per day on weekends, holidays, and vacations, and made a
threatening comment regarding her new relationship. After their relationship improved,
she revoked her petition because she did not want to hurt Cronin in his employment.
However, he began harassing her in late January 2009 when she was in the hospital,
leading to the second petition for a restraining order.
Written Reprimand
On May 12, 2009, the District issued a letter of reprimand (Written Reprimand) to
Cronin. The Written Reprimand indicated that it was addressing the allegations of
inappropriate touching of J.S., and directed him to “(1) refrain from any physical contact
with all students at all times; and (2) communicate in a professional and respectful
manner with all students at all times.” Appellant’s Ex. 7. The 2009 Written Reprimand
warned that, “failure to adhere to above directives will be considered insubordination and
lead to further disciplinary action up to and including dismissal.” Appellant’s Ex. 7.
At the time the District issued the 2009 Written Reprimand, the District decided to
deal with the allegations regarding Cronin’s alcohol-related misconduct by supporting
him in alcohol treatment. He was receiving outpatient treatment at Colonial Clinic when
he received the 2009 Written Reprimand, and the District placed him on administrative
leave. Based on discussions Rowell had with Cronin’s union representative, Sally
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
McNair, the District wanted to enter into a return-to-work agreement with Cronin to
address his alcohol-related issues when he returned from the 2009-2010 school year.
Rowell and McNair began negotiating such an agreement at the beginning of the school
year in 2009, but eventually McNair informed Rowell that Cronin would not be entering
into any return-to-work agreement.
First two Spokesman-Review articles
The following fall, on September 23, 2009, the Spokesman-Review published an
article about Cronin titled “Teacher back after rebuke for behavior.” Resp’t’s Ex. 21.
The article discussed allegations that Cronin came to school under the influence of
alcohol, inappropriately touched Pierce and student J.S., and that Cronin received a
Written Reprimand. The article also mentioned the April 2008 DUI charge amended to
first degree negligent driving. The article was the first time the District became aware of
this criminal charge. After the article was published, the District received complaints
from community members about Cronin’s return to the classroom.
On October 17, 2009, the Spokesman-Review published another article about
Cronin titled “Teacher has legal woes,” reporting that Cronin had been charged with
driving under the influence three times since 2004 and that he had multiple restraining
orders entered against him, with one as recent as February 2009. Resp’t’s Ex. 23. This
was the first time the District became aware that Cronin had a protection order against
him. The article also rehashed the allegations that led to the Written Reprimand, adding
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the allegation that Cronin was banned from the Rocket Market due to his drinking and
harassment of staff and customers.
Events leading up to Settlement Agreement
On October 21, 2009, Rowell met with Cronin to discuss the allegations regarding
Cronin coming to school under the influence, Cronin’s legal issues outside of school that
he failed to disclose to the District, and questions regarding his truthfulness in his
employment application. On November 17, Cronin filed a grievance against the District,
claiming the District was attempting to discipline him again for the allegations that arose
during the 2008-2009 school year. The District responded to the grievance, indicating
the Written Reprimand from May 2009 only addressed the allegations of touching student
J.S., not the alcohol-related conduct, and the District believed the alcohol-related issues
were going to be addressed through Cronin’s alcohol treatment and a return-to-work
agreement. The District suggested the parties enter into a settlement agreement under
which the District would agree that the Written Reprimand provided discipline both for
inappropriately touching a student and the issues regarding Cronin’s alcohol-related
conduct if he agreed to withdraw his grievance.
In January 2010, the District, Central Valley Education Association, and Cronin
signed a “Settlement Agreement,” agreeing that the 2009 Written Reprimand acted as
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
discipline for both Cronin inappropriately touching student J.S. and the allegation that he
was under the influence at school.3 Appellant’s Ex. 11.
Fourth DUI charge (physical control)
On August 4, 2010, at around 1:40 a.m., Spokane police received a report that a
Jeep Wrangler was parked in the middle of a road in Spokane. Officer Scott Haney
found Cronin standing by the passenger side of the vehicle. The vehicle’s doors were
open, the keys were in the ignition, the headlights were on, and the driver’s seat was
positioned in a manner that fit Cronin. The officer observed that Cronin appeared to be
under the influence. Cronin resisted arrest and was arrested for physical control of a
motor vehicle while under the influence of alcohol after refusing to submit to a blood test.
At the sufficient cause hearing, Cronin produced evidence that his friend, Teresa
Anderson, had been driving the Jeep. Anderson and Cronin offered inconsistent stories
for how the Jeep ended up parked in the intersection, who was driving, and why they
were out driving. The hearing officer found that neither Anderson nor Cronin were
credible as to the incident.
3 The hearing officer also found that under the Settlement Agreement, the 2009 Written Reprimand acted as discipline for the “‘other issues’” raised to that point, including the Jan Pierce incident, allegations of use of alcohol by TAP students, the Sara Hardenbrook matter, and the Rocket Market incidents. CP at 11 (FF 63). Cronin did not assign error to this finding.
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Allegations of touching student H.Z.
In fall 2010, Cronin reportedly touched a female student, H.Z., in an inappropriate
manner. According to H.Z., while she was a student in one of his accounting classes,
Cronin asked her if her foster father had ever been inappropriate with her. The question
made H.Z. feel very uncomfortable. H.Z. alleged that Cronin also rubbed her arm and
back on two separate occasions, stroked her feet with his feet, and would stand a few
inches behind her so that his crotch would have been in her face had she turned around.
According to H.Z., Cronin touched other female students besides her and treated girls
differently than the boys, interacting more with the girls, touching them, and standing
closer to them. In her deposition, H.Z. testified that Cronin’s behavior was “‘weird,’”
and “‘inappropriate,’” and that she would have been uncomfortable seeking out Cronin
after class to answer any questions about the course. CP at 14 (FF 78).
During the spring semester of the 2010-2011 school year, H.Z. had two encounters
with Cronin when she was no longer in his class. In the first encounter, she was walking
down the hall in front of Cronin’s classroom when he saw her and came outside to get her
attention. H.Z. did not respond and kept walking. The next day, Cronin caught up to
H.Z. when she was walking to lunch and asked her why she had been rude the previous
day. She responded that she did not have to say “‘hi’” to him, and he replied, “‘Well,
good luck with that,’” before walking away. CP at 15 (FF 82).
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Following these incidents, H.Z. and her mother came to University High School to
speak with an administrator. According to H.Z., this occurred sometime in spring 2011.
She initially spoke to Sherry Clark, the assistant principal at that time. At the beginning
of the meeting, H.Z. or her mother told Clark about how Cronin had touched H.Z. and
made her feel uncomfortable. At that point, Clark stopped the meeting so she could
involve the principal, Daryl Hart, because Clark did not supervise or evaluate Cronin.
When Hart joined the meeting, neither he nor Clark asked H.Z. to repeat what she had
already told Clark, but they instead asked her to continue her story. Accordingly, Hart
did not hear about the incidents of inappropriate touching but only heard about the
hallway encounters. After the meeting, Hart told Cronin not to have any more contact
with H.Z.
H.Z.’s report about the inappropriate touching was not reported to the District.
Assistant Superintendent Rowell found out about the allegations the following year when
the Spokesman-Review published an article about H.Z.’s allegations, and H.Z.’s mother
contacted the District to report how upset she was with the handling of her daughter’s
complaint.
Arrest for obstructing and resisting arrest
On August 29, 2011, the Pend Oreille County Sheriff’s Office responded to a
report of a vehicle driving erratically on Highway 2. The responding deputies found
Cronin in the passenger seat and his friend Nanci Stocker in the driver’s seat. When
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cronin exited the vehicle, stumbling in the process, one of the responding deputies
noticed a strong odor of alcohol coming from the vehicle. As the officers attempted to
investigate the driver’s intoxication, Cronin violated multiple requests by the officers to
not interfere. After telling the officers that Stocker had suffered a traumatic brain injury
that might affect her ability to perform field sobriety tests and that he would be acting as
Stocker’s attorney, Cronin continued to interfere with statements such as “‘Nanci, do not
say a fucking thing!’” and “‘Nanci, do not do anything. Fuck them.’” CP at 17 (FF 91,
92). After the deputies advised Cronin he was under arrest for obstruction, Cronin
jumped into the vehicle and attempted to evade being handcuffed. Following his arrest,
Cronin made several comments to law enforcement, including, “‘You will get yours,’”
“‘I bet your mother is proud of you,’” and “‘I will own your job.’” CP at 17 (FF 95).
The District learned about Cronin’s arrest that same day and placed him on paid
administrative leave. Rowell notified Cronin of his leave status by letter. The letter
stated the District would be investigating a number of arrests and issues that
“demonstrate a disregard of generally accepted professional standards.” Appellant’s
Ex. 19. The letter also gave specific directives for Cronin to follow on leave and stated
that Cronin would be given notice “of specific allegations and an opportunity to respond
to them.” Appellant’s Ex. 19.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Resolution of physical control charge
On September 29, 2011, Cronin pleaded guilty to physical control of a motor
vehicle while under the influence of alcohol for the incident from August 2010. He was
sentenced to 364 days in jail with 94 days suspended, 150 days of electronic home
monitoring, and a 120-day mandatory minimum jail sentence. As part of his probation,
Cronin was required to enroll in treatment. The judge acknowledged that Cronin was
scheduled to begin in-patient treatment the next day and ordered him to check into jail
within 24 hours of leaving the treatment facility.
Events leading up to discharge
In October 2011, Assistant Superintendent Rowell requested and obtained
investigative records on Cronin kept by the OPP. The OPP file included police reports,
law enforcement records, court records pertaining to Cronin’s 2004, 2007, 2008, and
2010 arrests, and court records on the protection orders obtained by Cronin’s ex-
girlfriend. The file also included notes from various interviews, including interviews
with student J.S. about inappropriate touching, interviews with students about Cronin
being under the influence at school, and interviews with the school’s secretary, Pierce,
and Shepherd, the owner of Rocket Market. The file also contained the harassment
complaint filed by Hardenbrook and notes from an interview OPP had with Cronin in
May 2010.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On October 8, 2011, while Cronin was in treatment, the Spokesman-Review
published the first article in the second series of articles discussing Cronin’s legal issues
and arrests, titled “U-Hi teacher to be jailed.” Resp’t’s Ex. 42. The article noted that
Cronin was sentenced to serve nearly one year in jail and that additional charges from the
August 2011 Pend Oreille County arrest were pending. Rowell testified that he relied on
the information in this article in part for his “Notice of Probable Cause for Discharge and
Nonrenewal” (Notice). Resp’t’s Ex. 64.
On October 13, Cronin’s friend, Teresa Anderson, phoned Rowell and said that
Cronin was in treatment. She claimed that the newspaper article published on October 8
was inaccurate and that Cronin would not be confined to a correctional facility. Rowell
told Anderson he could not communicate about Cronin without a signed release. That
same day, the Spokesman-Review published an article titled “U-Hi teacher receives jail
term.” Resp’t’s Ex. 45. The article rehashed the facts pertaining to Cronin’s 2010 and
2011 arrests, as well as his prior arrests for alcohol-related misconduct.
Two days later, on October 15, the Spokesman-Review published another article
titled “U-Hi student alleges Cronin touched her,” discussing H.Z.’s allegations. Resp’t’s
Ex. 47. H.Z. denied talking to the reporter and believed her mother was the source of the
article. This was the first time the District became aware of the allegations that Cronin
inappropriately touched H.Z. Although several attempts were made, the District was
unable to set up an interview with H.Z., who was no longer attending classes on campus.
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On October 28, Cronin was required to report to jail. That same day, Cronin’s
friend Anderson e-mailed Rowell and represented that Cronin had completed inpatient
treatment and would be going to Colonial Clinic for further treatment. She did not
address the judgment and sentence requirement that Cronin report to jail.
On November 4, Rowell performed an internet search and learned that Cronin was
an inmate at the Geiger Corrections Center. This was the first time Rowell learned that
Cronin was in jail. A few days later, Rowell sent a letter to Cronin notifying him that he
had not been able to reach him by phone because his phone had been disconnected and
that Cronin was absent without leave because of his failure to communicate with the
District.
Notice of Probable Cause for Nonrenewal and Discharge
Cronin and Rowell met on November 22 at the District office. Before the
meeting, Rowell sent Cronin a letter outlining the allegations that he intended to discuss
with Cronin at the meeting. These allegations included:
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 alcohol or substance abuse related incidents and boundary invasion incidents (at least one of which resulted in your incarceration);
3. Your pattern of 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;
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
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;
7. You have not been forthcoming with the District regarding your availability for work.
Resp’t’s Ex. 56.
Rowell’s meeting notes indicate that he met with Cronin and Cronin’s union
representative, McNair, and Director of Human Resources Neva Ringwald. The notes
indicate that they discussed each of the identified allegations point by point and that
Cronin was given a chance to respond and ask questions.
Following the November 22 meeting, Rowell spoke with Superintendent Ben
Small and recommended discharging Cronin. Small agreed. Rowell testified that when
making the recommendation of probable cause for discharge, he considered “everything
that we dealt with previously in the 2009 issue, things that I had discovered through the
course of 2011, including massive records that I had from OPP, the different instance[s]
of the DUIs, the details of those, as well as harassment issues with other females.”
Report of Proceedings (RP) at 85-86. Rowell indicated that he also considered the
newspaper articles, but he believed the most significant allegation was the one made by
H.Z.
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Rowell set up another meeting with Cronin on December 9, 2011, to let him know
the District had decided to recommend discharge. He also gave Cronin some time to
decide whether he wanted to resign in lieu of discharge. On December 15, Cronin stated
he would not be resigning.
On January 5, 2012, Rowell issued a “Notice of Probable Cause for Discharge and
Nonrenewal” (Notice). Resp’t’s Ex. 64. The Notice identified six grounds for
nonrenewal and discharge almost identical to the grounds set forth in Rowell’s November
letter to Cronin.
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 other 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;
6. You have not been forthcoming with the District regarding your behavior that is job-related and that substantially negatively impacts your ability to do your job.
Resp’t’s Ex. 64.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Postnotice procedure
Following issuance of the Notice, a lengthy legal battle ensued between Cronin
and the District regarding whether he complied with the statutory requirement for
requesting a sufficient cause hearing. Over the course of numerous motions and three
appeals, this court determined that Cronin’s request for a hearing was timely and
complied with the statutory requirements and ordered the trial court to enter an order
compelling the District to participate in the statutory hearing process.4 Following a failed
attempt to seek review by the Supreme Court, the District engaged in the statutory
hearing process with Cronin.
Sufficient Cause Hearing
The hearing officer was an attorney agreed to by the parties. The parties
conducted extensive discovery before the hearing according to RCW 28A.405.310(6),
including written discovery and depositions, motion practice, motions in limine, and
letter decisions by the hearing officer regarding evidentiary disputes. In the written
discovery, Cronin asked the District to state all facts on which the District based each of
its identified causes in the Notice. The hearing took place in November and December
4 See Cronin v. Cent. Valley Sch. Dist., No. 31360-3-III (Wash. Ct. App. Mar. 13, 2014) (unpublished), www.courts.wa.gov/opinions/pdf/313603.unp.pdf; Cronin v. Cent. Valley Sch. Dist., No. 33062-1-III (Wash. Ct. App. Apr. 14, 2016) (unpublished), www.courts.wa.gov/opinions/pdf/330621.unp.pdf; Cronin v. Cent. Valley Sch. Dist., 12 Wn. App. 2d 99, 456 P.3d 843, review denied, 195 Wn.2d 1030, 468 P.3d 617 (2020).
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
2018 and lasted more than 12 days. The District presented testimony from more than 30
witnesses.
(a) Comments relevant to the appearance of fairness issue
During the hearing, the District called Shanda Shepherd, the owner of the Rocket
Market, as a witness. When asked to explain why she banned Cronin from the store, she
stated Cronin called one of her employees a “faggot,” and Cronin immediately objected
on hearsay and relevancy grounds. RP at 771. The hearing officer agreed, stating,
“Yeah, that’s not going to come in.” RP at 771. Despite this ruling, the District tried to
interject the evidence again, asking the witness whether she ever learned about Cronin
making disparaging comments to her workers. She responded, “One of my employees
refused to sell him alcohol, and he called him a faggot.” RP at 775. Cronin immediately
moved to strike and in response to the District’s argument that the evidence was
admissible, the hearing officer stated:
No, I don’t think it is. But I guess here’s where I’m coming to, guys: I get it, and I understand why you’re offering it. My oldest son is gay, so I don’t appreciate the comment at all. And if he’d said it in front of me he’d be sitting on his rear end with a fist in his face. And that’s probably inappropriate for a lawyer too, but I would not have taken it kindly. But, at the same time, I’d like to get this hearing done some time this century. And if we’re going to bring up every single small thing and introduce it not through the person that heard it but through a second or third person, we’re going to be here a long time. ....
22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
And I’m not saying anybody lied. I’m just saying, you know, we have Rules of Evidence for a reason. So for that reason, I’m going to exclude it. And I’m not prejudging whether you did or didn’t say it, sir. I’m just saying in my particular case it would have been offensive for lots of reasons, including how it might speak to my son, who I dearly love.
RP at 776-77.
Later in the hearing, the hearing officer allowed Cronin to deny using the
homophobic slur even though the evidence of it had been excluded:
[Cronin’s Attorney:] All right. There was discussion by Shanda Shepherd in her testimony, and you were asked about . . . disparaging comments by [the District’s attorney]. Did you make disparaging comments about one of the employees being a faggot? [Cronin:] No. [District’s Attorney]: I’m going to object. Asked and answered. .... [Hearing Officer]: Well, because it’s not in the record, and he’d like it in the record. So I’m going to allow that. [Cronin’s Attorney]: And it was raised about disparaging remarks, so it’s— [Hearing Officer]: Yeah, so I’m going to allow it. [By Cronin’s Attorney:] Did you make such a comment? [Cronin:] No, I don’t use that word, and I have many reasons I don’t use that word. .... . . . And that is a word I don’t use. And just the implication that I would use the word faggot I sense as prejudicial to me.
RP 2349-50.
Later, in response to Cronin’s testimony, the hearing officer stated:
Well, I’m going to do a full disclosure here. Because I got all huffy on the record when this came up the first time, and I mentioned my son as gay.
23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
I’ve used that word. Certainly not as a child, but as a teenager. And, hopefully, like many people, you grow up, you gain some understanding, you evolve—I think that’s President Obama’s term, evolve—and you understand how terms like that can be destructive. So whether you ever used it, did use it, didn’t use it, I appreciate your explanation here and why you don’t think you used it. But I got a little hot on the record, so I want to be fair, open and honest and not leave you guys hanging thinking “Well, [the hearing officer] has never used that word, and he got really offended.” I have, stupidly, and understand now probably more than ever, thanks to my son, why that’s inappropriate. Wouldn’t use it again.
RP at 2350-51.
(b) Evidence relevant to challenged finding on H.Z.’s testimony
By stipulation, the District also presented a statement from student S.M., which
the OPP obtained during its investigation into H.Z.’s allegations of inappropriate
touching. The hearing officer later found that S.M.’s statement corroborated H.Z.’s
testimony. Cronin assigns error to this finding.
In her statement, S.M. did not recall H.Z. being in the same accounting class.
However, S.M. did witness Cronin rub students’ arms or shoulders but in a “kinda of
good to see you like rub your shoulder” rather than in a sexual manner. Resp’t’s Ex. 89.
She never saw him rubbing feet but did see him “fake trip” over feet as a joke, that he
would sometimes stand “just directly behind a student almost touching their back with his
front,” and that he “was a bit more social with girls.” Resp’t’s Ex. 89. She stated that
she did not hear other girls complain about Cronin rubbing shoulders/arms, but they did
say he “would stand over their computer desks when they had low cut shirts.” Resp’t’s
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Ex. 89. S.M. indicated that Cronin never engaged in this conduct with her, and she never
witnessed him do it to other girls but that she had heard stories.
(c) Evidence on the Hoagland 5 factors
The District presented testimony from additional witnesses, including six of the
law enforcement officials involved in Cronin’s various alcohol-related arrests. The
District also presented testimony from staff members Pierce and Hardenbrook and
Cronin’s ex-girlfriend.
Both the District and Cronin presented witness testimony regarding Cronin’s
ability to be a role model. Rowell testified that high school students are “[v]ery
impressionable young people looking to their teachers and adults as role models and what
they need to emulate” and that he considered the adverse impact Cronin’s conduct could
have on students in his position as a teacher and Distributive Education Clubs of America
(DECA) advisor. RP at 318. He also stated that the District expects its teachers to be
“excellent role models,” and he did not know how Cronin could engage in these
behaviors and still be a role model. RP at 348.
Robin Barnhart, an assistant principal at another high school in the District who
had served as a DECA advisor, testified about the important role a DECA advisor serves
in setting an example for their students. Barnhart testified that based on Cronin’s history,
5 Hoagland v. Mount Vernon Sch. Dist. No. 320, 95 Wn.2d 424, 429, 623 P.2d 1156 (1981).
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
including his various alcohol-related arrests, he could not be trusted to serve in that role
or make the right decisions with students. Linda Thompson, a parent of two children
who attended University High School in the past and an employee of the Greater Spokane
Substance Abuse Council, testified that she felt teachers “need to hold strong ethics,
strong integrity. They’re teaching our children to grow up and live in society and obey
the laws and live lives with integrity,” and that someone with several DUIs is not
someone who is obeying the law or who could serve as a good role model and educator.
RP at 1205.
Rowell also testified that (1) he had to send out correspondence to school
administrators regarding how to deal with questions about Cronin because staff reported
concerns about parents and students asking questions following the publication of
Cronin’s arrest in August 2011, (2) parents expressed concerns to the District about
bringing Cronin back to the classroom, (3) parents told the District they did not want
Cronin teaching their children, (4) another teacher at the high school expressed concern
to District administration about Cronin returning to school, and (5) Rowell could no
longer trust Cronin given his repeated misconduct and his dishonesty, he had grave
concerns about his return to the classroom, and would need to keep a close eye on him in
the event he returned to teaching. According to Rowell, there was no written
documentation memorializing the phone calls from parents regarding Cronin, but there
were numerous calls. Shepherd and Thompson, both parents of former University High
26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
School students, testified they would not want Cronin teaching their children or
grandchildren based partly on his off-duty conduct. The District also elicited testimony
from Trooper Jon McKee, Deputy Scott Bonney, Trooper Antonio Olivas, and Officer
Matt McKay that as members of the law enforcement community, they would not want
Cronin teaching their children based on his arrest record and how he conducted himself
during the arrests.
Cronin presented several witnesses, including several individuals who were
teachers with the District at the same time as Cronin. Collectively, these witnesses
testified that Cronin was a good teacher and could be a good role model if he could
overcome his alcohol issues and not have further incidents. Cronin testified that he could
serve as a role model, despite his identified issues because “[t]he best role models are not
perfect” and believes his experiences enhance his ability to relate to students on every
issue. RP at 1943.
(d) Hearing officer’s decision
The hearing officer issued an opinion concluding that the District had met its
burden of proving sufficient cause to not renew Cronin’s teaching contract and discharge
him as of January 5, 2012. The hearing officer held that in deciding the matter, he
considered “only the evidence discussed in the Findings of Fact and did not give any
weight or consideration to events that occurred after January 5, 2012.” CP at 1-2. The
hearing officer found that the Notice was sufficient to apprise Cronin of the allegations
27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
against him and that Cronin had an adequate opportunity through discovery to learn about
the specific conduct addressed in the Notice.
The hearing officer found that the District’s witnesses, including H.Z. and the
various police officers, were more credible than Cronin and found that S.M.’s statement
corroborated H.Z.’s testimony. The hearing officer also found that despite his various
arrests and other legal issues, Cronin “failed to acknowledge that his conduct impacted
his employment with the School District and his relationship with other teachers, parents,
and students.” CP at 3 (FF 9).
Based on the findings, the hearing officer determined that the District had met its
burden of proving causes 1, 2, 3, and 6 in the Notice but failed to prove causes 4 and 5.
The hearing officer concluded that Cronin’s inappropriate touching of female students
and his off-duty misconduct outlined in causes 1, 2, 3, and 6 was egregious. He also
concluded that none of Cronin’s misconduct is remediable. The hearing officer applied
the Hoagland factors to the facts as found and determined that Cronin’s conduct
materially and substantially affected his teaching performance, efficiency, and
effectiveness.
ANALYSIS
A. STANDARD OF REVIEW
Cronin appealed to the Spokane County Superior Court pursuant to
RCW 28A.405.320, raising 55 assignments of error. The superior court affirmed the
28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
hearing officer. Cronin timely appealed to this court and raises 8 assignments of error
and 6 issues. While he assigns error to two of the hearing officer’s findings of facts, his
arguments to this court center primarily on the sufficiency of the Notice, evidentiary
rulings, hearing irregularities, and the hearing officer’s conclusions of law.
We apply the standard of review set forth in RCW 28A.405.340. A hearing
officer’s decision to uphold an adverse change in a teacher’s contract may be overturned
only if the reviewing court finds the “substantial rights of the employee may have been
prejudiced” because the decision was:
(1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the board or hearing officer; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or (6) Arbitrary or capricious.
RCW 28A.405.340.
This court reviews a hearing officer’s factual determinations under the “clearly
erroneous” standard. RCW 28A.405.340(5); see also Clarke v. Shoreline Sch. Dist. No.
412, 106 Wn.2d 102, 109-10, 720 P.2d 793 (1986) (relying on former statute); Griffith v.
Seattle Sch. Dist. No. 1, 165 Wn. App. 663, 670, 266 P.3d 932 (2011). A factual
determination is clearly erroneous if it is not supported in the record by substantial
evidence, which is evidence sufficient to persuade a fair-minded person of the finding’s
29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
truth or correctness. Campbell v. Emp’t Sec. Dep’t, 180 Wn.2d 566, 571, 326 P.3d 713
(2014). Errors of law are reviewed de novo. RCW 28A.405.340(4); Clarke, 106 Wn.2d
at 109. We give no deference to the hearing officer’s application of the law to the facts
and review the conclusions of law de novo. Clarke, 106 Wn.2d at 109-10.
Like the superior court sitting in its appellate capacity, our review of the hearing
officer’s decision is confined to the verbatim transcript and the evidence admitted at the
hearing. See RCW 28A.405.340. This court reviews the hearing officer’s findings of
fact and conclusions of law; it owes no deference to the superior court’s decision.
Griffith, 165 Wn. App. at 671.
B. SUFFICIENCY OF NOTICE OF PROBABLE CAUSE
The first issue we address is whether the District’s Notice was legally sufficient.
If so, we also consider whether the hearing officer relied on misconduct not alleged in the
Notice to uphold the District’s termination of Cronin.
On appeal, Cronin argues that the Notice did not meet the statutory requirements
to specify the probable causes for discharge because it was vague. Cronin claims the
hearing officer’s decision regarding the sufficiency of the Notice was based on unlawful
procedure or “[a]ffected by other error of law,” under RCW 28A.405.340(3), (4), and
also faults the hearing officer for allowing the District to rely on specific instances of
misconduct that were not identified in the Notice as a basis for his termination.
30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The District provided Cronin with a statutory notice of probable cause for
discharge and nonrenewal pursuant to RCW 28A.405.210 and RCW 28A.405.300. The
superintendent signed the Notice and referenced the ongoing investigation and Cronin’s
November interview in which Rowell shared the allegations and allowed Cronin to
discuss the allegations. The Notice identified six grounds for nonrenewal and discharge.
The hearing officer found that the District proved allegations 1, 2, 3, and 6. The proven
allegations indicated:
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 other 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;
....
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.
Within the Notice, the superintendent stated that based on his investigation,
including the information gathered during Cronin’s interview, “I find that you have
31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
indeed engaged in the conduct and behavior described to you in meetings and described
above.” Resp’t’s Ex. 64. The Notice concluded by asserting:
Based on the above, it is my conclusion that the above-referenced conduct, individually and/or in the aggregate: (1) Is unprofessional, inappropriate, flagrant, egregious, based on substantial poor judgment, and a flagrant disregard of generally recognized professional standards; (2) Lacks any positive educational aspect or legitimate professional purpose; (3) Has a material and substantial adverse affect on your ability to deal with students, parents, and other staff members; (4) Actually impairs your performance as a teacher.
Cronin challenged the legal sufficiency of this Notice before the hearing officer,
arguing that it was statutorily deficient and vague. The hearing officer denied the motion,
noting that “[t]he statute and case law clearly contemplates that the parties will undertake
discovery” and that the prehearing discovery afforded Cronin appropriate notice to satisfy
his constitutional right to notice. CP at 292.
We first consider whether the Notice was legally sufficient. The nonrenewal
statute, RCW 28A.405.210, provides that if it is determined that there is probable cause
or causes not to renew the employment contract, the employee shall be notified, and the
notification shall specify the cause or causes for nonrenewal. Similarly, the discharge
statute, RCW 28A.405.300, provides that in the event it is determined there is probable
cause or causes to discharge a teacher, the teacher “shall be notified in writing of that
decision, which notification shall specify the probable cause or causes for such action.”
32 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
(Emphasis added). The statutes do not provide further guidance on what degree of
specificity satisfies the notice requirement. To determine the level of specificity in the
Notice, we must interpret the statute. Our review of this issue is therefore de novo.
Travelers Cas. & Sur. Co. v. Wash. Trust Bank, 186 Wn.2d 921, 930, 383 P.3d 512
(2016).
While neither party cites any cases deciding notice sufficiency under the discharge
statute, the District identifies a number of cases examining this issue in the context of the
nonrenewal statute. In Pierce v. Lake Stevens School District No. 4, 84 Wn.2d 772, 774-
75, 529 P.2d 810 (1974), a number of teachers received notice of nonrenewal under
former RCW 28A.67.070 (1973) (the predecessor to RCW 28A.405.210), indicating their
contracts were not being renewed due to budgetary limitations. A group of teachers
appealed, arguing the notices did not meet the requirements of due process because the
notices did not set forth in detail why they, rather than other teachers, were selected for
nonrenewal.
On review, our Supreme Court first noted that the statutory requirements for
nonrenewal satisfied the procedural requirements of due process, observing that under the
doctrine set forth in Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570
(1972), it is not necessary to “detail the reasons for [a teacher’s] nonrenewal in the notice
of termination, if these reasons are made known to him upon his request and he is given
an opportunity to present evidence and dispute the propriety of the determination.”
33 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Pierce, 84 Wn.2d at 777. The court observed that the notice advised the appellants that
the reason for nonrenewal was curtailment of the educational program due to insufficient
funds. Id. at 777-78. The court also held there was no showing the appellants were
prejudiced by the districts’ failure to formally advise them of the criteria used to select
teachers for nonrenewal where they received a trial de novo and had a full opportunity to
contest the application of the criteria to them. Id. at 778. The court held that “[w]e do
not think it was the intent of the legislature to require that the application of each element
of the criteria for nonrenewal be detailed in the notice. Such a notice would clearly be
impractical and unnecessary.” Id.
In reaching this decision, Pierce relied on Robel v. Highline Public Schools,
District No. 401, 65 Wn.2d 477, 479, 398 P.2d 1 (1965). In Robel, a notice was sent to a
teacher specifying that the reason for proposed nonrenewal was “‘a recommendation
made by your principal to the effect that your teaching has been unsatisfactory,’” and
“‘that repeated conferences with you have failed to bring about the desired
improvement.’” Id. at 479. In determining the notice was sufficient, the Supreme Court
noted that it was clear that there was a series of communications, conferences, and
discussions over a nine-month period between the teacher, her principal, and the
personnel director about classroom planning, control and discipline, the teacher’s
efficiency in those areas, and parental complaints. Robel, 65 Wn.2d at 485. The court
held that where the letters from the principal made reference to the position taken by the
34 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
principal and the teacher’s lack of conformity, and the teacher admitted the reasons given
by the principal for his nonrenewal recommendation were communicated to her, “[t]he
issues in controversy were thus rather clearly drawn.” Id. Pierce characterized Robel as
adopting a “functional approach,” to the question of whether sufficient cause was stated
in the notice, looking at the information the teacher received prior to the notice. Pierce,
84 Wn.2d at 778-79.
Similarly, in Carlson v. Centralia School District No. 401, 27 Wn. App. 599, 619
P.2d 998 (1980), the court looked at whether the reasons for nonrenewal were made
known to the teacher upon his request. The teachers in that case worked at a detention
facility operated by the Department of Social and Health Services. The district
supervised the program and all the appellants were certificated employees of the district.
After the district developed fiscal issues related to the administration of the Maple Lane
School, its board of directors passed a resolution terminating the district’s involvement
with the school. The district subsequently sent the appellant teachers notices stating in
part:
“You are hereby advised and given notice that on April 19, 1978, the above-named . . . Directors duly made a decision that [the District] will not be continuing the administration of the Maple Lane school program following the completion of the 1977-78 school term. As a result, the undersigned Superintendent has determined that sufficient cause exists for the non-renewal of your contract for the ensuing term and terms thereafter.”
Id. at 602 (alterations in original).
35 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
On appeal, the teachers challenged the legal sufficiency of the nonrenewal notices
under former RCW 28A.67.070 (1975). Division Two of this court held that although the
notice did not specify the economic reasons that motivated the district’s decision, it did
state that the nonrenewal was based on the fact that the Maple Lane program had been
terminated and concluded “[t]his is all the statute requires.” Id. at 605. The court further
observed:
Despite its failure to specify the precise reasons behind the District’s decision, the notice does refer plaintiffs to their statutory rights. A district’s notice need not detail the reasons for a teacher’s nonrenewal if these reasons are made known to him upon his request. Pierce v. Lake Stevens School Dist. [No.] 4, [84 Wn.2d] at 782. . . .
Here the plaintiffs did assert their statutory rights to a hearing and to an appeal to superior court. At the hearing, the reasons for the District’s decision were made clear. Plaintiffs make no showing that they were prejudiced by the notice’s lack of specificity. We therefore hold the notice of contract nonrenewal was sufficient to satisfy the requirements of RCW 28A.67.070.
Id.
Although Cronin was given notice of discharge and nonrenewal, inexplicably he
only challenges the notice of discharge on appeal. He argues that Pierce, Carlson, and
Robel do not apply to notices of discharge because they interpreted former versions of the
36 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
nonrenewal statute, RCW 28A.405.210.6 He contends that since the discharge statute
uses different language, the notification standard for discharge must be different.
We disagree and note that the difference in language is insignificant for the
purpose of notice sufficiency. Both statutes require a determination of probable cause
before an employee can be notified of either discharge or nonrenewal. Both statutes
require that the notice include the cause or probable cause for discharge or nonrenewal.
If the teacher requests a statutory hearing, both statutes require the hearing officer’s
determination of sufficient cause to be based “solely upon the cause or causes specified in
the notice of probable cause.” RCW 28A.405.310(8). The only difference between the
two statutes with respect to the contents of the notice is that the discharge statute
(RCW 28A.405.300) requires the notice to specify the “probable cause” for such action,
whereas the nonrenewal statute (RCW 28A.405.210) requires the notice to “specify the
cause or causes for nonrenewal of contract.”
6 The statutory language of the version of the nonrenewal statute former RCW 28A.67.070 in effect when Pierce and Carlson were decided provided in relevant part that the notice of nonrenewal “shall specify the cause or causes for nonrenewal of contract.” See LAWS OF 1970, ch. 15, § 16; Carlson, 27 Wn. App. at 604. The version in effect when Robel was decided in 1965 differed slightly, providing in part that the notice shall specify “sufficient cause for nonrenewal of contract.” Robel, 65 Wn.2d at 481 (citing LAWS OF 1961, ch. 241, § 1). In comparison, the version of the discharge statute in effect when Cronin’s notice was issued in January 2012 provides in relevant part that the notice shall “specify the probable cause or causes for such action.” RCW 28A.405.300.
37 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The statutory language is relatively similar, and Cronin provides no analysis or
authority for treating them differently. Under both statutes, the notice serves the same
function: to apprise the teacher of the District’s grounds for the adverse employment
action. Thus, the functional approach that is already applied to notices of nonrenewal
should also be applied to notices of discharge. Under this approach, the notice of
discharge does not need to include detailed reasons for the discharge so long as the
reasons are made known to the teacher upon his request, and the teacher is “given an
opportunity to present evidence and dispute the propriety of the determination.” Pierce,
84 Wn.2d at 777.
Cronin contends that even if the functional approach is applied to notices of
discharge, Robel, Pierce, and Carlson are factually distinguishable. Specifically, Cronin
points out that the unsatisfactory character of Robel’s teaching had been communicated
to her before the notice was served and the issues had been clearly drawn. It is certainly
true that the District’s Notice could have been more specific with respect to the particular
instances of misconduct it believed constituted probable cause. However, we find that
the Notice complied with the statute under a functional approach.
During his employment with the District, Cronin had several meetings with
Rowell to discuss and consider the allegations, including a meeting to discuss the
allegations set forth in the Notice. In light of these meetings, the issues were “clearly
drawn” for Cronin, sufficient to put him on notice of the specific allegations of
38 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
misconduct referred to by the Notice. Accordingly, even though the Notice did not
specify each instance of misconduct on which the six causes were based, Cronin was
informed as to which specific incidences the District was relying on to support the
identified causes.
However, even if we were to find that Cronin was not fully notified of the specific
allegations of misconduct, he received functional due process after the Notice was issued.
Cronin fails to demonstrate any prejudice from the District’s failure to include more
specific details in the Notice. See Pierce, 84 Wn.2d at 777. The specific reasons for his
discharge were made known to Cronin and he had the chance to conduct prehearing
discovery and respond during a de novo hearing. Like the teachers in Pierce and
Carlson, Cronin received the necessary due process required by the statute’s notice
requirement and he makes no showing of prejudice. Under RCW 28A.405.340(3) and
(4), he fails to demonstrate the hearing officer’s determination that the Notice was
sufficient under RCW 28A.405.300 and was based on unlawful procedure or “[a]ffected
by other error of law” or that it prejudiced any of his substantial rights.
Cronin also claims that the hearing officer violated RCW 28A.405.310(8) by
considering instances of misconduct that were not explicitly described in the District’s
Notice. If a teacher requests a hearing, the final decision by the hearing officer to
nonrenew or discharge an employee “shall be based solely upon the cause or causes
specified in the notice of probable cause.” RCW 28A.405.310(8). Pursuant to the
39 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
statutory language, the scope of inquiry as to whether sufficient cause exists for discharge
“is defined by the causes specified by the [district].” Woodall v. Freeman Sch. Dist., 136
Wn. App. 622, 631, 146 P.3d 1242 (2006) (citing Wojt v. Chimacum Sch. Dist. No. 49,
9 Wn. App. 857, 860, 516 P.2d 1099 (1973)). “The notice must specify the cause or
causes. It need do no more, but it must reflect a decision of probable cause, not a
judgmental conclusion that the [district’s] mind is closed.” Martin v. Dayton Sch. Dist.
No. 2, 85 Wn.2d 411, 412, 536 P.2d 169 (1975) (district’s initial discharge notice was
legally defective because “it stated the school board’s decision to terminate—as
a fait accompli—rather than a notice of probable cause for discharge as required by
RCW 28A.58.450”).
As shown above, the District did not need to detail each instance of misconduct in
the Notice. Moreover, a review of the record demonstrates that the hearing officer
limited the evidence to those instances of misconduct that Rowell was aware of and relied
on when determining probable cause existed under the six identified allegations. Cronin
provides no support from the record to demonstrate that the hearing officer relied on any
instances of conduct not identified during his November 2011 meeting with Rowell.
Finally, Cronin makes a vague argument about the delay between the allegations
and the eventual hearing. He suggests that the delay violated his constitutional rights and
argues that the appropriate remedy is to set aside the action. This issue is not well
developed in the briefing, and we decline to consider it. “Parties raising constitutional
40 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
issues must present considered arguments to this court.” State v. Johnson, 119 Wn.2d
167, 171, 829 P.2d 1082 (1992). “‘[N]aked castings into the constitutional sea are not
sufficient to command judicial consideration and discussion.’” Id. (internal quotation
marks omitted) (quoting In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)).
Cronin cites generally to the Washington State Constitution and cases involving violation
of speedy trial rights or violation of attorney-client privilege. He cites no applicable case
law and provides little considered argument on this issue, and thus fails to provide
sufficient argument or citation to legal authority to support this contention.
Cronin fails to demonstrate that reversal is required under RCW 28A.405.340(3)
or (4) based on the hearing officer’s determination that the Notice was sufficient under
RCW 28A.405.300. The District could rely on those instances of misconduct Rowell was
aware of and referenced in the Notice.
C. EVIDENCE OBTAINED AFTER NOTICE OF PROBABLE CAUSE
The second issue we address is whether the hearing officer committed error by
considering evidence obtained by the District after the Notice was served.
After the District issued its Notice, the District continued gathering evidence and
conducting discovery. At the sufficient cause hearing, the District was allowed to present
evidence that it did not have when it issued the Notice. Cronin contends that this was
error because the Notice must specify the causes for the adverse action, and the hearing
officer’s decision must be based solely on the causes set forth in the Notice. Specifically,
41 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
he contends that the District did not obtain the depositions or statements from several
witnesses until after it issued the Notice and, therefore, the evidence from these witnesses
should not have been admitted.
The issue raised by Cronin involves statutory interpretation. When engaged in
statutory interpretation, this court’s review is de novo and the goal is to discern
legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43
P.3d 4 (2002). The best source of legislative intent is the words used in the statute, along
with context and related statutes. State v. Barnes, 189 Wn.2d 492, 495-96, 403 P.3d 72
(2017).
RCW 28A.405.300 requires the District to “specify” the cause or causes for
discharge, and RCW 28A.405.310(8) mandates that the hearing officer’s decision be
based “solely upon the probable cause or causes specified in the notice.” However, the
plain language of the statutes does not limit the District to the evidence identified in the
Notice (nor does it require the District to set forth all evidence supporting the probable
cause or causes in the Notice). Cronin’s argument conflates evidence of misconduct with
incidents of misconduct.
Under RCW 28A.405.310(8), the District may not present or rely on a new cause
or new incident that was not identified in the Notice. But Cronin does not cite any
authority to support his position that the statute prohibits evidence gathered after the
Notice regarding instances of misconduct included in the Notice.
42 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In this case, the hearing officer interpreted RCW 28A.405.310 to allow evidence
about the misconduct identified in the Notice but excluded evidence of misconduct that
occurred after the Notice. This interpretation comports with the clear language of the
statute. RCW 28A.405.310(6) explicitly provides for discovery to occur after the notice
is issued and before the statutory hearing occurs. Once an employee requests a sufficient
cause hearing, a hearing officer is appointed. RCW 28A.405.310(4). Within 5 days of
selection, the hearing officer “shall schedule a prehearing conference to be held within
such five day period, unless the board of directors and employees agree on another date
convenient with the hearing officer.” RCW 28A.405.310(5). At the prehearing
conference, the hearing officer is authorized to issue subpoenas or subpoenas deuces
tecum, authorize the taking of prehearing depositions, and provide additional methods of
discovery authorized under the applicable civil rules. RCW 28A.405.310(6)(a)-(c). The
hearing officer shall also establish the date for the hearing to commence, which is to
occur within 10 days following the date of the prehearing conference unless the employee
requests a continuance. RCW 28A.405.310(6)(d).
While Cronin is correct that the timeline for discovery is relatively short, and the
statute contemplates that the District will investigate and acquire evidence prior to issuing
the probable cause notice, the statute expressly provides for limited prehearing
discovery. In light of this statutory provision, Cronin’s proffered interpretation of
RCW 28A.405.310(8) does not make sense. Under his reading of the statute, the District
43 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
could conduct discovery after issuing the Notice, but it would not be allowed to introduce
evidence acquired during discovery.
The plain language of RCW 28A.405.300 and .310(8) does not require the District
to gather all evidence and interview all witnesses before issuing the Notice. Nor do the
statutes prohibit the District from presenting evidence obtained after issuing the Notice,
so long as the evidence pertained to the misconduct known and identified in the Notice.
D. INTERPRETATION OF CR 2A SETTLEMENT AGREEMENT
The third issue we address is whether the hearing officer erred in determining that
the misconduct addressed in the parties’ prior CR 2A Settlement Agreement was a verity
and could not be relitigated at the hearing.
In 2009, the District issued the Written Reprimand that addressed the allegations
by student J.S. of inappropriate touching. The Written Reprimand summarized the
allegations and directed Cronin to “(1) refrain from any physical contact with all students
at all times; (2) communicate in a professional and respectful manner with all students at
all times.” Appellant’s Ex. 7. When the Written Reprimand was issued, the District
chose to deal with allegations that Cronin was intoxicated at work by supporting him in
treatment. When Cronin returned to work in September, he refused to sign a return-to-
work letter addressing the alcohol-related issue. Cronin later filed a grievance, claiming
that the District was attempting to discipline him again for allegations that arose in the
2008-2009 school year.
44 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
To resolve these differences, the parties entered into a CR 2A Settlement
Agreement in 2010. The parties agreed that the Written Reprimand would serve as
discipline for both the inappropriate touching of J.S. and the allegations that Cronin was
under the influence at school. The Settlement Agreement also provided that neither party
would “grieve, challenge or appeal any matter or action related to Cronin’s prior Letter of
Reprimand, any matter or action pertaining to such prior Letter of Reprimand, or any
matter or action referenced or pertaining to this Agreement.” Appellant’s Ex. 11.
Before the hearing, the hearing officer ruled that Cronin could not relitigate the
issues covered in the Settlement Agreement and the 2009 Written Reprimand and further
clarified that neither party would be allowed to introduce evidence to prove or disprove
the J.S. incident and the allegations of being under the influence at school. During the
hearing, the hearing officer clarified that he considered the Settlement Agreement an
admission by Cronin that the misconduct occurred. In his written findings of fact, the
hearing officer found:
Based upon the Hearing Officer’s October 26, 2018 Letter Decision, I accepted as a factual verity that Mr. Cronin inappropriately touched [J.S.] in the DECA store on October 17, 2008, when he rubbed her stomach. Further, I accepted as a factual verity that Mr. Cronin was under the influence of alcohol on school grounds during the 2008-2009 school year.
CP at 7 (FF 38).
45 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The hearing officer allowed the District to present the testimony of J.S. and the
allegations of being under the influence at work to demonstrate what conduct Rowell
considered when determining probable cause and for possible relevance under Hoagland.
Cronin assigns error to the hearing officer’s ruling that the misconduct outlined in
the CR 2A Settlement Agreement was a verity and could not be relitigated at the hearing.
He does not assign error to any of the related findings of fact. On appeal, Cronin argues
that the Settlement Agreement was not an admission by Cronin that he committed the
misconduct. Specifically, he notes that throughout the Settlement Agreement, the parties
use the term “alleged alcohol use.” Appellant’s Ex. 11. Cronin continues that the ruling
prejudiced him because the hearing officer concluded that “Cronin’s inappropriate
touching of female students . . . is egregious,” and the only other student besides H.Z.
was the allegation contained in the Written Reprimand. CP at 23 (Conclusion of Law
(COL) 13).
Washington courts interpret settlement agreements in the same way they interpret
other contracts. McGuire v. Bates, 169 Wn.2d 185, 188, 234 P.3d 205 (2010). “The
touchstone of contract interpretation is the parties’ intent.” Tanner Elec. Coop v. Puget
Sound Power & Light, 128 Wn.2d 656, 674, 911 P.2d 1301 (1996). The courts do not
discern the parties’ intent from the language of the contract alone:
In Washington, the intent of the parties to a particular agreement may be discovered not only from the actual language of the agreement, but also from “viewing the contract as a whole, the subject matter and objective of
46 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of respective interpretations advocated by the parties.”
Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 580-81, 844 P.2d
428 (1993) (quoting Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990)). If
“only one reasonable inference can be drawn from the extrinsic evidence,” we can
determine the contract’s meaning as a matter of law. Id. at 582.
When interpreting contracts, the courts give words their “‘general and ordinary
accepted meaning and connotation’ unless otherwise defined by the parties or by the
dictates of the context.” Blue Mountain Mem’l Gardens v. Dep’t of Licensing, Cemetery
Bd., 94 Wn. App. 38, 43, 971 P.2d 75 (1999) (quoting Keeton v. Dep’t of Soc. & Health
Servs., 34 Wn. App. 353, 360-61, 661 P.2d 982 (1983). “Washington follows the
‘objective manifestation theory’ of contract interpretation, under which the focus is on
the reasonable meaning of the contract language to determine the parties’ intent.” Viking
Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 712-13, 334 P.3d 116 (2014).
Therefore, the “subjective intent of the parties is generally irrelevant if the intent can be
determined from the actual words used.” Brogan & Anensen, LLC v. Lamphiear, 165
Wn.2d 773, 776, 202 P.3d 960 (2009). “If a contract provision’s meaning is uncertain or
is subject to two or more reasonable interpretations after analyzing the language and
considering extrinsic evidence (if appropriate), the provision is ambiguous.” Viking
Bank, 183 Wn. App. at 713. If the contract is ambiguous, we construe it against the
47 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
drafter. Id. If the parties drafted the contract together, the courts “adopt the
interpretation that is the most reasonable and just.” Id.
Within the Settlement Agreement, the parties agreed that the Written Reprimand
would suffice as discipline for concerns related to “Cronin’s misconduct with a female
student” and “Cronin allegedly being under the influence of alcohol while at work.”
Appellant’s Ex. 11. The parties dispute the effect of language within the Settlement
Agreement that neither party will “grieve, challenge or appeal any matter or action
related to Cronin’s prior Letter of Reprimand, any matter or action pertaining to such
prior Letter of Reprimand, or any matter or action referenced or pertaining to this
Agreement.” Appellant’s Ex. 11.
We agree with the hearing officer that the Settlement Agreement’s plain language
precluded the parties from relitigating whether these incidents occurred. By giving up his
right to “challenge” any matter pertaining to the Written Reprimand or the Settlement
Agreement, Cronin was waiving his right to “dispute or call into question” these matters.
BLACK’S LAW DICTIONARY 288 (11th ed. 2019). If Cronin wanted to challenge the
allegations, he could have appealed the Written Reprimand or exercised his rights
through the pending grievance. He gave up these rights by signing the Settlement
Agreement. Cronin could also have included language in the Settlement Agreement that
he was not waiving his right to challenge the allegations in the future or that he was not
admitting any wrongdoing but was entering into the Settlement Agreement to resolve the
48 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
issues. But this language was not added to the Settlement Agreement. While the
Settlement Agreement does not clearly state that Cronin admitted the allegations, he did
agree to be disciplined for them.
Even if the hearing officer’s decision was erroneous, any error was harmless.
While Cronin challenges the underlying allegations, he does not challenge that he was
disciplined for the allegations and that he was counseled to “refrain from any physical
contact with all students at all times” and “communicate in a professional and respectful
manner . . . .” Appellant’s Ex. 7. The Written Reprimand also warned Cronin that a
failure to follow these directives could result in additional disciplinary action. Moreover,
he was warned about his off-duty alcohol-related conduct during his 2009 meetings with
Rowell. The fact that Cronin was accused of this conduct and the subsequent warnings
he received about future conduct are verities and could be considered in the context of
Cronin’s misconduct after entering into the Settlement Agreement. See, e.g., Sargent v.
Selah Sch. Dist. No. 119, 23 Wn. App. 916, 920-21, 599 P.2d 25 (1979) (considering
teacher’s prior discipline for similar misconduct and apparent disregard for school
policy); Simmons v. Vancouver Sch. Dist. No. 37, 41 Wn. App. 365, 377, 704 P.2d 648
(1985) (upholding teacher discharge based, in part, on the aggregate effect of prior
misconduct for which teacher was disciplined and noting teacher had the opportunity to
correct issues and failed to do so); see also McCorkle v. Sunnyside Sch. Dist. No. 201, 69
Wn. App. 384, 391-92, 848 P.2d 1308 (1993) (hearing officer’s consideration of prior
49 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
complaints against teacher that did not result in any formal discipline did not constitute
an error of law).
Finally, Cronin also argues that the impact of the hearing officer’s error can be
seen in findings of fact 41 and 63, which found that the Settlement Agreement covered
the Jan Pierce incident and the Rocket Market incident. However, Cronin did not assign
error to these findings of fact, which are therefore verities on appeal. Moreover, he does
not explain how these alleged errors prejudiced his substantial rights in the context of the
entire record and the hearing officer’s sufficient cause determination.
E. CORROBORATING H.Z.’S TESTIMONY
The fourth issue we consider is whether substantial evidence supports the hearing
officer’s finding of fact that the report of student S.M. corroborated the deposition
testimony of H.Z.
H.Z. testified in her deposition that Cronin made inappropriate comments toward
her, touched her inappropriately, and stood too close to her in a position that made her
uncomfortable. She also observed that Cronin touched other female students and treated
girls differently from boys by interacting with them more, touching them, and standing
closer. The District presented a statement by S.M. She was a student in Cronin’s
accounting class but did not recall H.Z. being in the same class. S.M. recalled seeing
Cronin touch other students in a nonsexual way and indicated that he “was a little bit
more social with girls.” Resp’t’s Ex. 89.
50 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cronin assigns error to the hearing officer finding that H.Z.’s testimony was
corroborated by S.M. and argues that the evidence does not support this finding. In
finding of fact 80, the hearing officer found that S.M. reported that “Cronin rubbed
female students’ shoulders—including hers—stood close to female students, and treated
female students differently than male students.” CP at 14 (FF 80). Cronin assigned error
to this finding but did not challenge this finding in his briefing.
Fact-based findings are reviewed under the clearly erroneous standard set forth in
RCW 28A.405.340(5). A hearing officer’s finding of fact should not be disturbed
“unless clearly erroneous.” Clarke, 106 Wn.2d at 110. A finding of fact is clearly
erroneous if it is not supported by substantial evidence in the record, which is “evidence
sufficient to persuade a fair-minded person of the finding’s truth or correctness.” Riley-
Hordyk v. Bethel Sch. Dist., 187 Wn. App. 748, 755, 350 P.3d 681 (2015).
The testimonies of H.Z. and S.M., taken together, are sufficient to persuade a fair-
minded person of the truth of the hearing officer’s findings that S.M.’s statement
corroborates H.Z.’s testimony as to how Cronin interacted with female students and the
fact that he treated the girls differently than the boys. Cronin fails to demonstrate that the
hearing officer’s findings on this point are clearly erroneous.
F. APPEARANCE OF FAIRNESS DOCTRINE
The fifth issue we address is whether the hearing officer violated the appearance
of fairness doctrine by commenting that he would have punched Cronin.
51 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cronin argues his hearing violated the appearance of fairness doctrine due to the
comment by the hearing officer, “My oldest son is gay, so I don’t appreciate the comment
at all. And if [Cronin] said it in front of me he’d be sitting on his rear end with a fist in
his face.” RP at 776. Cronin contends that this comment destroyed any appearance of
neutrality and that no reasonably prudent, disinterested observer would conclude that
Cronin received a fair and impartial hearing. He also claims this constituted an error of
law under RCW 28A.405.340(4).
As an initial matter, we note that Cronin did not object to the comment at the
hearing. Under RAP 2.5(a), this court “may refuse to review any claim of error which
was not raised in the trial court.” Washington courts have generally recognized that an
appearance of fairness objection is deemed waived when not raised in the trial court.
See, e.g., State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998); In re Welfare of
Carpenter, 21 Wn. App. 814, 820, 587 P.2d 588 (1978). However, even if we consider
the issue, we do not find prejudice sufficient to require a new hearing.
As a certificated employee, Cronin’s employment could not be revoked without
the procedural due process outlined in RCW 28A.405.300 and .310. An essential
requirement of due process is “[a] fair trial in a fair tribunal.” In re Murchison, 349 U.S.
133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955). “Under the appearance of fairness
doctrine, a judicial proceeding is valid only if a reasonably prudent, disinterested
observer would conclude that the parties received a fair, impartial, and neutral hearing.”
52 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010) (citing State v. Bilal, 77 Wn.
App. 720, 722, 893 P.2d 674 (1995)).
The courts presume that judicial hearings and judges are fair. In re Disciplinary
Proceeding Against King, 168 Wn.2d 888, 904, 232 P.3d 1095 (2010). “Hearing officers
are not judges, but we trust and empower them to preside over proceedings, take
evidence, make findings of fact, and do other duties analogous to the role of a judge. The
presumption of fairness for judges likewise applies to hearing officers in attorney
disciplinary proceedings.” Id.; see also Neravetla v. Dep’t of Health, 198 Wn. App. 647,
670, 394 P.3d 1028 (2017) (presumption is that administrative decision-makers perform
their duties properly). If hearing officers do not appear to be fair, they must disqualify
themselves. ELC 2.6(d)(4)(A).
Our Supreme Court has observed that generally, the appearance of fairness is not
violated based on an isolated comment or incident. In re Disciplinary Proceeding
Against Haskell, 136 Wn.2d 300, 317, 962 P.2d 813 (1998). In Haskell, the attorney
argued on appeal that the hearing officer violated the appearance of fairness where
(1) the hearing officer questioned one of the attorney’s witnesses, grilled her about
“false documents,” and argued with the witness, taking on the role of advocate, and
(2) requested that a witness retrieve accounting records to refresh her recollection. Id. at
314-15. After holding the comments were not improper, our Supreme Court noted that
even if the hearing officer acted improperly,
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[the actions] were isolated incidents that took place in a lengthy hearing and did not detract from the overall fairness of the proceeding. As [the Washington State Bar Association] notes, the hearing lasted nine days and it generated over 2,000 pages of transcript. Although there may be instances where a single incident or comment may be sufficient to lead a reasonably prudent person to believe a proceeding is unfair, the two incidents that have been called to our attention are not significant enough, when viewed in isolation or against the whole record, to justify a new hearing. Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 973 (1st Cir. 1991) (“Charges of bias should not be based on a few isolated comments, but rather on the record as a whole.”).
Haskell, 136 Wn.2d at 317.
Unlike the conduct at issue in Haskell, the hearing officer’s comment in this case
was certainly improper where he injected his personal feelings, tied to his love and
concern for his son, into the proceedings by stating he would have punched Cronin for
making the alleged comment. However, this one comment occurred in the context of a
long hearing, lasting more than 12 days and generating over 2,500 pages of transcript.
The hearing officer made the improper comment in granting Cronin’s objection to
exclude evidence and noted that it was probably an inappropriate thing to say when
making the comment. He contemporaneously commented that the case would go on too
long if “every single small thing [is] introduce[d] . . . through a second or third person,”
apparently characterizing the allegation as a “small thing” and minimizing its
significance despite his intense reaction. RP at 776. The hearing officer also
subsequently allowed Cronin to deny on the record that he used the homophobic slur,
even though he excluded the evidence from Shepherd. The hearing officer acknowledged
54 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
that he got “huffy” when the allegation first came up and “got a little hot on the record.”
RP at 2350-51. He further acknowledged that he had regrettably used the slur in the past.
Cronin points to no other instance in the hearing or any of the hearing officer’s letter
rulings where the hearing officer made an inappropriate comment or appeared biased.
Cronin argues that Haskell and the case it relies on, Malave-Felix, are
distinguishable because both of those cases involved a judicial officer acting in its usual
function. He contends that when a judicial officer makes a personal attack against a
party, such a comment destroys the appearance of a fair and impartial trial, no matter the
length of the trial. He argues this case is more akin to State v. Lemke, 7 Wn. App. 2d 23,
434 P.3d 551 (2018); Fogelman v. State, 648 So. 2d 214 (Fla. Dist. Ct. App. 1994); State
v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (Neb. 1998); and Mejia v. United States, 916
A.2d 900 (D.C. 2007), all requiring reversal based on a judicial officer’s improper
personal attacks on a party. However, as set forth below, each of these cases is
distinguishable from the current matter.
Lemke concerned a criminal defendant who was admitted to adult drug treatment
court. 7 Wn. App. 2d at 25. During several hearings, the judge made the following
comments: “‘I think you’re a fucking addict and maybe you need treatment. . . . You
can’t even give me a clean date you’re so fucked up,’” “‘I’m starting to get a little bit
pissed as I think about it more and more. I’d rather you just use rather than lie to me
through masking,’” and “‘So not only is he an addict, he’s also a liar and thief. Done.’”
55 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Id. at 25-26. At a subsequent hearing, the judge refused the defendant’s request for a
residential drug offender sentencing alternative, stating, “‘You, sir, are just a criminal,
that’s all you are, you’re just a criminal. . . . You, the odds say, are going to die in
prison.’” Id. at 27. On appeal, Division One held that reversal was required, noting that
“[n]o judge wielding the power of the State in any courtroom has any good reason to call
a litigant a ‘fucking addict’ and ‘just a criminal.’” Id. at 27-28. Unlike Cronin’s hearing,
Lemke did not concern a single, isolated statement but a series of disparaging comments
attacking the defendant’s character, many of which were made in the context of denying
the defendant’s motions or requests.
In Fogelman, a Florida criminal case, the reviewing court found the trial judge
improperly commented on the defense expert witness in front of the jury and erred by
denying the defendant’s motion for disqualification based on the judge’s comment to
other attorneys “‘to the effect that what [the defendant] did to the victim [P.L., the victim
in the other case], if she were my daughter I would kill him.’” 648 So. 2d at 220 (some
alterations in original). The reviewing court first noted the comment “showed a complete
absence of neutrality” and “showed a strong personal bias, which he tied to his concerns
as a parent.” Id. The court found that the comment, coupled with the judge’s improper
witness comments and conduct throughout the proceeding that appeared highly critical of
the defense team, led the court to find that the judge’s neutrality could be reasonably
questioned. Id. Although Fogelman involved a similarly improper comment, the
56 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
violation of appearance of fairness was not based on that single comment. Instead, the
entire record demonstrated bias throughout the proceedings, and the comment was not
made in the context of ruling in the defendant’s favor.
In Pattno, the male defendant appealed after pleading guilty to sexual assault of a
male child, claiming the trial judge violated the Nebraska Code of Judicial Conduct.
254 Neb. at 737. During sentencing, the trial judge noted details about the relationship
between the defendant and his victim, then read a biblical excerpt condemning
homosexuality, stated he had considered the circumstances of the case and the
“‘nature . . . of the defendant,’” and found that imprisonment was necessary to protect
the public. Id. at 736 (alteration in original). The reviewing court held that where the
court followed up the improper introduction of the scripture with a statement that he had
considered the “‘nature’” of the defendant, a reasonable person could have questioned
the judge’s impartiality. Id. at 742. The improper comments in Pattno did not occur
during a lengthy proceeding during which the judge otherwise demonstrated impartiality
but instead occurred at a sentencing hearing following a guilty plea. Moreover, the
comments were not made during the course of ruling in the defendant’s favor, and they
appear directly related to the judge’s sentencing decision, indicating this personal bias
motivated the judge’s decision.
Finally, in Mejia, another criminal case, the defendant was convicted of
misdemeanor sexual abuse following a bench trial during which his nine-year-old niece
57 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
testified that he climbed on top of her and tried to remove her clothing. 916 A.2d at 901.
During a discussion regarding when to schedule sentencing, the judge improperly stated:
[A]nd in thinking about this as I thought about this yesterday and last night and thought about this this morning, . . . there are perhaps, . . . some cultural issues that I’m not really clear about. I know that in countries like El Salvador and even, . . . in frankly places in the surrounding jurisdiction, there are very young girls who are 12 and 13, 14 and 15 who are married of black descent. And I’m not clear whether or not there is, I don’t know, and maybe that’s something that counsel can, can help me with that there is a, I’m certainly not suggesting that it’s cultural in general, that all people feel this way. But I have not been real clear about the issue of sexualizing young girls at a very early age. And whether or not any of that is happening and whether or not that’s part and parcel of, of what was going on here. I don’t know when Mr. Mejia came to this country. I don’t know how long he had been there, what his status is. Obviously I do appreciate that by virtue of this, because I heard it on the witness stand, there may be some immigration implications that are adverse to him and to his family. But I mean, you know, she is, I mean she’s . . . a beautiful but little girl. So I am prepared to hear it if you wish to do it now. Otherwise, we’d need to just defer sentencing for a time specific, and then I can hear it then.
Id. at 902.
Again, unlike the current case, these comments were not made in the context of
ruling in the defendant’s favor and there is no information regarding the length of the
hearing or whether there were other indicia of impartiality. The hearing officer in the
present matter acknowledged the improper nature of his comment and attempted to
rectify it by allowing Cronin to expressly deny the conduct. In contrast, there is no
indication in the Mejia court that the court recognized its comments were problematic.
58 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
This case is more akin to Haskell, even though the hearing officer’s improper
comment is much more problematic than the conduct at issue in Haskell. As the Haskell
court noted, context matters when considering the appearance of fairness, and the
surrounding context in this case provides many indicia of impartiality on the hearing
officer’s part. The isolated comment was made while ruling in Cronin’s favor to exclude
any evidence that he used the slur and it occurred during the course of a 12-day hearing
where there are no other allegations of inappropriate conduct or bias. Although Haskell
recognized the possibility that there may be an instance where a single comment or
statement is sufficient to satisfy a reasonably prudent person to believe a proceeding is
unfair, Cronin fails to demonstrate that this is that instance. The hearing officer’s lone
improper comment was insufficient to satisfy a reasonably prudent person that the
proceeding was unfair. Moreover, to the extent Cronin claims this constituted an error of
law under RCW 28A.405.340(4), Cronin makes no argument that he was prejudiced and
failed to demonstrate a violation of substantial rights.
G. NEXUS BETWEEN CONDUCT AND TEACHING PERFORMANCE
The final issue we address is whether the hearing office applied the correct
standard in upholding the District’s decision to terminate Cronin.
Cronin contends that the hearing officer applied the wrong standard in upholding
the District’s decision to terminate his employment. He contends that the hearing officer
failed to consider whether his off-duty conduct affected his performance as a teacher and
59 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
incorrectly relied on notoriety to justify terminating a teacher who was a recovering
alcoholic. He also contends that the allegations of on-duty misconduct, namely the
inappropriate touching of H.Z., was too remote, uncorroborated, and insufficient to
provide cause for termination.
Since this issue addresses whether the facts as found by the hearing officer are
legally sufficient to provide cause to terminate Cronin, our review is de novo. Griffith,
165 Wn. App. at 670-71.
The employment contract of a nonprovisional teacher may not be terminated
except for “sufficient cause.” RCW 28A.405.300; see also RCW 28A.405.310(8).
Sufficient cause must be established by a preponderance of the evidence. RCW
28A.405.310(8). The statute does not define what constitutes “sufficient cause.”
Courts have defined the phrase differently, depending on whether the alleged misconduct
was remediable. See Hoagland v. Mount Vernon Sch. Dist. No. 320, 95 Wn.2d 424, 428,
623 P.2d 1156 (1981) (sufficient cause in the context of a nonremediable teaching
deficiency “to mean a showing of conduct which materially and substantially affects the
teacher’s performance”); Clarke, 106 Wn.2d at 113 (“The term ‘sufficient cause’ under
RCW 28A.58.099 has been limited by court interpretation to prohibit discharge for a
‘remediable teaching deficiency’, unless school authorities comply with the requirements
of RCW 28A.67.065(1).”).
60 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In Hoagland, the Supreme Court considered whether off-duty conduct (conviction
for grand larceny by possession) was sufficient cause, as a matter of law, to support
termination. In noting that the statute does not provide per se grounds for discharge and
it would violate due process to discharge a teacher without showing actual impairment to
performance, the court held that there must be a nexus between the off-duty conduct and
the teacher’s performance. Hoagland, 95 Wn.2d at 429-30. The court found that
teaching effectiveness is the “touchstone for all dismissals.” Id. at 430. In order to
determine if misconduct actually impairs teaching, the court promulgated eight factors
relevant to establishing sufficient cause:
(1) the age and maturity of the students; (2) the likelihood the teacher’s conduct will have adversely affected students or other teachers; (3) the degree of the anticipated adversity; (4) the proximity or remoteness in time of the conduct; (5) the extenuating or aggravating circumstances surrounding the conduct; (6) the likelihood that the conduct may be repeated; (7) the motives underlying the conduct; and (8) whether the conduct will have a chilling effect on the rights of the teachers involved or of other teachers.
Id. at 429-30.
Five years later, in Clarke, the court applied the Hoagland factors to deficient
performance (as opposed to off-duty conduct) and clarified the appropriate standard: “the
general rule emanating from Washington case law is this: Sufficient cause for a teacher’s
discharge exists as a matter of law where the teacher’s deficiency is [irremediable] and
(1) materially and substantially affects the teacher’s performance; or (2) lacks any
61 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
positive educational aspect or legitimate professional purpose.” Clarke, 106 Wn.2d at
113-14 (internal citations omitted). Under the two-part test outlined in Clarke, the courts
consider the Hoagland factors in determining the first alternative, “whether a teacher’s
conduct substantially undermines a teacher’s effectiveness.” Fed. Way Sch. Dist. No. 210
v. Vinson, 172 Wn.2d 756, 772, 261 P.3d 145 (2011).
In Vinson, the Supreme Court reaffirmed that conduct must be irremediable before
either of the alternative Clarke findings are made. Vinson, 172 Wn.2d at 772. Only in
the most egregious cases can sufficient cause be found without applying the Clarke test
or Hoagland factors. Id. at 773-74.
Cronin raises several arguments to support his assertion that the hearing officer
failed to apply the correct standard. As an initial matter, we note that the hearing officer
concluded that Cronin’s conduct was egregious. Cronin does not assign error to this
conclusion. Under Vinson, sufficient cause may be found for discharge without
application of Clarke and Hoagland where the conduct was egregious such that the
sufficient cause determination may be made as a matter of law. Theoretically, Cronin’s
challenge to the hearing officer’s analysis under Clarke and Hoagland is moot.
Nevertheless, since the District does not advance this argument and the hearing officer
applied the Hoagland factors, we will consider Cronin’s challenge of the court’s
application of Clarke and Hoagland.
62 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cronin argues that the hearing officer applied the wrong standard because he did
not find a nexus between Cronin’s conduct and a concern for student health, safety, or
welfare. This argument misstates the standard. While the Clarke court noted that
students’ health, safety, and welfare is a “common thread” running through cases on
teacher discipline, the court did not hold that this common thread was a requisite finding.
106 Wn.2d at 114. Instead, the requisite finding is the nexus between the teacher’s
conduct and performance. See Vinson, 172 Wn.2d at 771 (The Hoagland factors “were
designed to ensure that if a teacher’s conduct outside the profession is the basis for
dismissal, the conduct has some nexus to performance of duties as a teacher.”).
Cronin also contends that the District was driven to discharge him because of the
negative newspapers articles and argues that bad press is not a sufficient basis to
terminate a teacher. The hearing officer found the newspaper articles relevant for several
reasons, including reactions to the conduct of students and teachers. Under Hoagland, a
hearing officer should consider the likelihood that the teacher’s conduct will adversely
affect students or teachers. Hoagland, 95 Wn.2d at 429. Otherwise, the hearing officer
found that the District proved four of the six charges of misconduct, each one providing
sufficient cause to discharge Cronin. Cronin was not discharged for bad press.
Turning to the hearing officer’s application of the Clarke standard, Cronin
contends that his conduct was remediable, and the District failed to show that his conduct
impacted his teaching effectiveness. In applying Clarke and Hoagland, the first part of
63 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the analysis is determining whether the misconduct is remediable. “A deficient teaching
conduct, practice or method which can be characterized as ‘remediable’ is one that is
reasonably correctable.” Van Horn v. Highline Sch. Dist. No. 401, 17 Wn. App. 170,
176, 562 P.2d 641 (1977) (citing Wojt, 9 Wn. App. at 863). Generally speaking,
remediable conduct applies to classroom teaching deficiencies instead of off-duty
conduct. See Wojt, 9 Wn. App. at 861-62 (inability to maintain discipline and deficient
teaching methods constitute remediable teaching deficiencies).
Here, the hearing officer did not error in concluding that Cronin’s misconduct was
irremediable. Cronin proffers no argument that his off-duty conduct or inappropriate
touching of students was a deficient teaching conduct, practice, or method. As the
hearing officer noted, to the extent that Cronin’s off-duty conduct was remediable, the
District complied with its obligation by granting Cronin paid leave to obtain treatment in
2009.
Nor does Cronin provide any analysis on how inappropriately touching a student is
remediable. On the contrary, Washington courts have recognized that the protection
provided by RCW 28A.405.100 against summary discharge for deficiencies in teaching
and classroom-related performance does not prevent a teacher’s dismissal for conduct
such as physically abusing students or conduct that is otherwise not involved with the
professional qualities of teaching. See Simmons, 41 Wn. App. at 376 (inappropriate
touching of students not within the purview of teacher evaluation statute); Potter v.
64 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Kalama Pub. Sch. Dist. No. 402, 31 Wn. App. 838, 842, 644 P.2d 1229 (1982) (noting
that evaluation statute deals with categories such as “instructional skill; classroom
management; professional preparation and scholarship; . . . handling of student discipline
and attendant problems; and interest in teaching pupils and knowledge of subject matter,”
and that there is an “obvious distinction” between conduct involved with the professional
qualities of teaching and teacher’s inappropriate touching of female students).
The hearing officer did not commit error in concluding that Cronin’s misconduct
was irremediable.
Once misconduct is determined to be irremediable, sufficient cause to discharge a
teacher exists if the conduct “(1) materially and substantially affects the teacher’s
performance, or (2) lacks any positive educational aspect or legitimate professional
purpose.” Clarke, 106 Wn.2d at 113-14 (internal citations omitted). In this case, after
applying the Hoagland factors, the hearing officer concluded that Cronin’s misconduct,
both off-duty and on-campus, materially and substantially affected his teaching
performance.
Cronin argues generally that the hearing officer failed to analyze how any of his
off-duty conduct affected his teaching ability. But other than the remoteness argument
considered below, he does not challenge the hearing officer’s application of any
particular Hoagland factor to the factual findings. As noted above, the Hoagland factors
were specifically promulgated to ensure that courts consider how off-duty misconduct
65 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
impacts a teacher’s effectiveness. Hoagland, 95 Wn.2d at 428-29. In other words, the
hearing officer’s unchallenged application of the Hoagland factors is sufficient to support
the conclusion that Cronin’s misconduct materially affected his teaching performance.
Even if we consider the hearing officer’s application of the Hoagland factors, we
conclude that he did not error in finding that Cronin’s off-duty conduct materially
affected his teaching performance. The hearing officer’s conclusion that Cronin could
not serve as a role model based on his off-duty conduct was not based solely on the fact
that Cronin had a criminal conviction. The hearing officer found that Cronin had a
pattern of alcohol-related arrests. Despite these arrests and other legal issues, “[he]
continued to deny responsibility for his decisions and he failed to acknowledge that his
conduct impacted his employment with the School District and his relationship with other
teachers, parents, and students.” CP at 3 (FF 9). The hearing officer also found that
Cronin’s illegal activities were widely publicized and that the District received
complaints about Cronin’s return to the classroom. Moreover, Rowell testified he felt
Cronin could not serve as a role model given his behaviors, he had grave concerns about
Cronin’s return to the classroom, and he felt he could not trust him in the role as teacher
and DECA advisor. An assistant principal at another school in the district testified that
Cronin could not be trusted to make the right decisions with students based on his
conduct. Two parents of former District students testified that they would not want
Cronin teaching their children or grandchildren.
66 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The facts surrounding Cronin’s situation differ markedly from those present in
Hoagland. Cronin did not have a single conviction but a series of alcohol-related arrests
and subsequent convictions, and he was required to serve jail time. The arresting officers
presented credible evidence that Cronin repeatedly broke the law, obstructed justice, and
threatened law enforcement officers. The hearing officer found that Cronin had a pattern
of denying responsibility for his decisions. Unlike Hoagland, Cronin’s off-duty conduct
generated considerable negative publicity, which turned his private conduct into a public
matter that reflected poorly on the District. Cronin did not have the support of the school,
parents and students, and the community. Instead, there was evidence of an adverse
reaction from the community to Cronin’s off-duty conduct and the prospect of his
continuing in the role of a teacher in light of that conduct. Cronin’s reliance on
Hoagland to demonstrate insufficient cause fails.
Finally, even assuming the hearing officer’s conclusions under the Hoagland
factors were somehow erroneous, the conclusions pertaining to the inappropriate
touching of students provide independent grounds for Cronin’s discharge and
nonrenewal. Cronin argues the allegations of inappropriate touching are legally
insufficient because there was no allegation that Cronin tried to meet H.Z. after school,
that he acted drunk, or otherwise tried to molest her. Cronin fails to cite any authority
supporting his claim that these aggravating factors are necessary for sufficient cause.
Inappropriately touching a student after being specifically instructed not to do so is
67 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
legally sufficient to support discharge and nonrenewal under RCW 28A.405.210 and
RCW 28A.405.300.
Cronin also contends that H.Z.’s allegations are uncorroborated but does not
challenge the finding of fact that the conduct occurred. He contends that the District was
unaware of H.Z.’s allegations when it terminated him and therefore the allegations cannot
constitute sufficient cause, but he does not challenge the hearing officer’s finding to the
contrary. The District was aware of the allegations and included the misconduct as part
of its Notice. The fact that the District obtained more evidence about the allegations after
the Notice was served does not undermine the notice provided to Cronin.
The only Hoagland factor that Cronin specifically challenges is the proximity or
remoteness of the conduct.7 Cronin argues that all of the alleged conduct was remote by
the time of the hearing.
The fourth factor under Hoagland considers the “remoteness in time of the
conduct.” 95 Wn.2d at 429. Courts permit consideration of prior acts of misconduct
extending back a reasonable time when determining the existence of sufficient cause.
Sargent, 23 Wn. App. at 924 (sufficient cause for discharge may be evaluated in light of
the teacher’s record as a whole, permitting consideration of prior acts of teacher
misconduct). However, dissimilar and remote incidents of misconduct should not be
7 Cronin fails to assign error to the hearing officer’s conclusion of law on this factor.
68 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
considered. Butler v. Lamont Sch. Dist. No. 246, 49 Wn. App. 709, 717, 745 P.2d 1308
(1987).
When considering the proximity or remoteness of the conduct, the hearing officer
concluded:
Several of the arrests and alcohol related behaviors occurred several years before Mr. Cronin was terminated. [J.S.’s] complaint was addressed in the Written Reprimand and it should have acted as fair warning to Mr. Cronin about his future conduct. The same can be said for the Settlement Agreement as it incorporated the Written Reprimand and discussed the issues with alcohol. Yet, Mr. Cronin continued to have alcohol related arrests and issues, including while driving, while dealing with law enforcement and in his personal relationships with women. When these events and [H.Z.’s] complaints are considered, it is clear that these events were proximal to the District’s decision to issue the Notice of Probable Cause and to terminate. The above discussion supports the District’s bases 1, 2, 3, and 6 for termination.
CP at 25 (COL 13D). Cronin asserts that the hearing officer erred by ignoring the
District’s unlawful delay in providing the hearing. He does not cite any case law to
support his argument that remoteness relates to the hearing date rather than the date of the
probable cause notice.
In Washington, courts have generally considered the length of time between the
misconduct and the disciplinary decision to determine whether conduct is too remote to
consider as grounds for the adverse action. In Sargent, this court held that the teacher’s
misconduct going back six years before the discharge decision could be considered where
the acts demonstrate a continuing pattern of deficiency. 23 Wn. App. at 921-24. In
69 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
contrast, in Butler, it was error for the trial court to consider past incidents that occurred 2
and 3 years before the discharge decision based on their dissimilarity and remoteness to
the current misconduct and because there was evidence those deficiencies had been
remedied. 49 Wn. App. at 717. In Wright v. Mead School District No. 354, 87 Wn. App.
624, 629, 944 P.2d 1 (1997), a Division Three case abrogated on other grounds by
Vinson, 172 Wn.2d 756, the teacher engaged in sexual conduct with students when he
was employed by a different school district 7 to 10 years before he received the notice of
discharge. This court, relying on cases from other jurisdictions involving past sexual
misconduct, held that the conduct could form a basis for sufficient cause, noting that
Washington’s discharge statute does not have a limitations period. 87 Wn. App. at 633.
The District suggests this court follow California’s approach, expressly holding
that this factor “considers when the teacher’s conduct occurred in relation to the school’s
disciplinary decision,” rather than when the conduct occurred in relation to the statutory
hearing. Crawford v. Comm’n on Prof’l Competence of Jurupa Unified Sch. Dist.,
53 Cal. App. 5th 327, 341, 267 Cal. Rptr. 3d 520 (2020). California uses the Morrison
factors, established in Morrison v. State Board of Education, 1 Cal. 3d 214, 229, 461 P.2d
375 (1969), when determining whether a teacher’s conduct affects his effectiveness as a
teacher, and these factors are nearly identical to the Hoagland factors. Indeed, the
Washington Supreme Court looked to Morrison when adopting the Hoagland factors.
Hoagland, 95 Wn.2d at 429-30. We agree and adopt the reasoning in Crawford and hold
70 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
that the proximity factor concerns the temporal relationship between the conduct and the
disciplinary action.
Cronin further contends that even if the length of time pertains to the Notice rather
than the hearing, the alleged incidents with J.S., Jan Pierce, and H.Z. were too remote
where they occurred 3 years and 1.5 years, respectively, before the discharge decision.
However, this argument fails under Sargent and Wright. In Sargent, the court held prior
misconduct going back 6 years was admissible where the acts were similar and
demonstrated a continuing pattern of misconduct (and the teacher was previously
disciplined for the similar conduct). 23 Wn. App. at 921-24. Similarly, in Wright, the
district could present evidence that occurred 7 to 10 years prior to the notice. 87 Wn.
App. at 633. Here, where the touching misconduct occurred only 3 to 1.5 years prior to
the Notice, and the incidents were part of a pattern of boundary issues, the hearing officer
did not commit an error of law by considering the allegations by J.S. and H.Z.
Finally, as part of his challenge to the hearing officer’s determination of sufficient
cause, Cronin asserts a due process violation based on the delay between issuing the
Notice and when the hearing occurred. He cites the United States and Washington
constitutional prohibitions against the deprivation of life, liberty, or property without due
process of law and notes that “[n]umerous other states recognize that delay in
administrative proceedings that cause actual prejudice may result in a due process
violation.” Appellant’s Br. at 45.
71 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Cronin cites no applicable Washington law in support of this argument.
Moreover, there is a fatal defect in his argument where, despite acknowledging the
requirement of “actual prejudice” to recover under such a claim of due process violation,
he offers no argument regarding how the delay in the statutory hearing actually
prejudiced him. Cronin makes no argument that evidence was lost during the delay, that
any witnesses were no longer available or their recollections were unreliable due to the
lapse in time, or that any witness’s testimony was materially different from the facts
contained in the statements, police reports, and articles in the District’s possession at the
time the Notice was issued.
The hearing officer’s unchallenged conclusion that Cronin’s conduct was
egregious is legally sufficient to support sufficient cause without applying Clarke or the
Hoagland factors. Even considering the Hoagland factors, the hearing officer did not
error in concluding that Cronin’s conduct was irremediable and materially affected his
teaching performance, thus constituting sufficient cause to support his discharge.
H. ATTORNEY FEES ON APPEAL
Cronin requests that he be awarded back pay, costs, and attorney fees pursuant to
RCW 28A.405.310(7)(c) and RCW 28A.405.350 in the event this court reverses the
hearing officer’s decision. Since we are affirming, we do not award attorney fees and
costs.
72 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Affirmed.
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.
Staab, J.
WE CONCUR:
Pennell, J. ~~,.:r. Fearing, J.
Related
Cite This Page — Counsel Stack
Michael F. Cronin v. Central Valley School District, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-f-cronin-v-central-valley-school-district-washctapp-2022.