McInturff, C.J.
Plaintiff was employed by the Rich-land School Board (hereafter school board) to teach music at Columbia High School. He has taught music since 1965.
At the end of the 1971-72 school year Potter was assigned to teach music at the elementary level due to a levy failure. Since he would have no school activities in the evenings he committed himself to play professionally at various Elks Clubs. In October 1972 plaintiff signed a supplemental contract to supervise the band during evening football and basketball games on the weekend. The principal, Mr. Nash, was accordingly informed of possible conflicts and suggested that plaintiff make an agreement with another music teacher to take his place at the games if he were unable to attend.
On two occasions plaintiff attended the games up to half time and then left due to prior commitments, leaving the keys to the music department with a student band director to give to his replacement teacher, Mr. Ted Baer. Mr. Baer did not show up on two occasions and the students were left with no direct teacher supervision. The first occasion occurred on November 10, 1972, when plaintiff left a football game at half time. Mr. Baer testified he had informed plaintiff that he would be unable to attend the game that evening. The second absence occurred on December 1,1972, when plaintiff left a basketball jamboree at half time. Mr. Baer stated that there could have been a misunderstanding on this latter occasion because of the manner communications were exchanged between the two. Mr. Baer testified that he “stuck [his] head in the office door where [plaintiff] was talking to a student, and told him I wouldn’t be able to be at the game that night.”
Board policy adopted March 29, 1959, required an annual appraisal of each employee which was to be the “subject of individual discussion between the employee and supervisor involved.” The principal gave the plaintiff his annual appraisal on December 1, 1972 (the day of the second incident) , but it was not discussed at that time. The evaluation summary indicated that plaintiff needed to improve his supervision over students and equipment. When the principal, Mr. Nash, discovered that Potter failed to show up at
the second game, it was at that time that he decided to recommend to the superintendent, Robert Eiler, that Potter be discharged.
On January 15, 1973, the school board passed a resolution based upon the recommendation of the superintendent to discharge Mr. Potter. A notice was sent to the plaintiff informing him that the board had determined that there was “probable cause” to discharge plaintiff. The notice specified the causes for discharge.
Mr. Potter requested a closed hearing,
which was held on February 14, 1973. In a 3 to 2 decision the board terminated plaintiff’s contract effective February 16, 1973. Plaintiff appealed to the Superior Court and a trial de novo was held.
The trial court determined that the following causes were supported by sufficient evidence to discharge Mr. Potter under RCW 28A.58.450;
(1) Failure to adequately supervise students assigned to the plaintiff;
(2) Lack of proper concern for the security of District facilities and equipment;
(3) Failure to perform duties as specified in the supplemental contract; and
(4) Failure to meet classes at scheduled times.
The court found that the plaintiff was absent from the November 10 football game and the December 1 basketball jamboree; that plaintiff’s lack of supervision was specifically brought to his attention on December 1; that there were other instances in which plaintiff failed to supervise students or school property during the 1972-73 school year; that lack of supervision of the band during athletic contests was also a problem during the 1971-72 school year; that the plaintiff knew there was no adult who would have supervised for him during his absence from the games; that he knew his responsibilities under his contract and voluntarily chose not to assume them; and that these acts constituted a breach of his contract, providing sufficient grounds for his discharge by the school board. Mr. Vandenberg, principal of Columbia High School and on a leave of absence for 1 year at the time of the trial, testified that he had placed Mr. Potter on probation during the 1970-71 school year in an effort to overcome problems similar to those that occurred during the 1972-73 school year.
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McInturff, C.J.
Plaintiff was employed by the Rich-land School Board (hereafter school board) to teach music at Columbia High School. He has taught music since 1965.
At the end of the 1971-72 school year Potter was assigned to teach music at the elementary level due to a levy failure. Since he would have no school activities in the evenings he committed himself to play professionally at various Elks Clubs. In October 1972 plaintiff signed a supplemental contract to supervise the band during evening football and basketball games on the weekend. The principal, Mr. Nash, was accordingly informed of possible conflicts and suggested that plaintiff make an agreement with another music teacher to take his place at the games if he were unable to attend.
On two occasions plaintiff attended the games up to half time and then left due to prior commitments, leaving the keys to the music department with a student band director to give to his replacement teacher, Mr. Ted Baer. Mr. Baer did not show up on two occasions and the students were left with no direct teacher supervision. The first occasion occurred on November 10, 1972, when plaintiff left a football game at half time. Mr. Baer testified he had informed plaintiff that he would be unable to attend the game that evening. The second absence occurred on December 1,1972, when plaintiff left a basketball jamboree at half time. Mr. Baer stated that there could have been a misunderstanding on this latter occasion because of the manner communications were exchanged between the two. Mr. Baer testified that he “stuck [his] head in the office door where [plaintiff] was talking to a student, and told him I wouldn’t be able to be at the game that night.”
Board policy adopted March 29, 1959, required an annual appraisal of each employee which was to be the “subject of individual discussion between the employee and supervisor involved.” The principal gave the plaintiff his annual appraisal on December 1, 1972 (the day of the second incident) , but it was not discussed at that time. The evaluation summary indicated that plaintiff needed to improve his supervision over students and equipment. When the principal, Mr. Nash, discovered that Potter failed to show up at
the second game, it was at that time that he decided to recommend to the superintendent, Robert Eiler, that Potter be discharged.
On January 15, 1973, the school board passed a resolution based upon the recommendation of the superintendent to discharge Mr. Potter. A notice was sent to the plaintiff informing him that the board had determined that there was “probable cause” to discharge plaintiff. The notice specified the causes for discharge.
Mr. Potter requested a closed hearing,
which was held on February 14, 1973. In a 3 to 2 decision the board terminated plaintiff’s contract effective February 16, 1973. Plaintiff appealed to the Superior Court and a trial de novo was held.
The trial court determined that the following causes were supported by sufficient evidence to discharge Mr. Potter under RCW 28A.58.450;
(1) Failure to adequately supervise students assigned to the plaintiff;
(2) Lack of proper concern for the security of District facilities and equipment;
(3) Failure to perform duties as specified in the supplemental contract; and
(4) Failure to meet classes at scheduled times.
The court found that the plaintiff was absent from the November 10 football game and the December 1 basketball jamboree; that plaintiff’s lack of supervision was specifically brought to his attention on December 1; that there were other instances in which plaintiff failed to supervise students or school property during the 1972-73 school year; that lack of supervision of the band during athletic contests was also a problem during the 1971-72 school year; that the plaintiff knew there was no adult who would have supervised for him during his absence from the games; that he knew his responsibilities under his contract and voluntarily chose not to assume them; and that these acts constituted a breach of his contract, providing sufficient grounds for his discharge by the school board. Mr. Vandenberg, principal of Columbia High School and on a leave of absence for 1 year at the time of the trial, testified that he had placed Mr. Potter on probation during the 1970-71 school year in an effort to overcome problems similar to those that occurred during the 1972-73 school year.
The broad issue is whether there was sufficient cause for discharge. Plaintiff contends that the discharge was illegal and improper because: (1) the defendant school district failed to place the plaintiff on probation during the 1972-73 school year; (2) none of plaintiff’s actions constituted sufficient cause for discharge as they are remediable teaching deficiencies, citing
Wojt v. Chimacum School Dist. 49,
9 Wn. App. 857, 516 P.2d 1099 (1973); (3) the December 1 evaluation was of no force and effect because it was not based on criteria established by the board as required by RCW 28A.67.065, and the evaluation was never discussed with the plaintiff in order to give him an opportunity to remedy the alleged deficiencies; and (4) plaintiff’s absences from the games constituted at most a breach of the supplemental contract and could not be used to discharge plaintiff from his primary teaching contract. RCW 28A.67.074;
Kirk v. Miller,
83 Wn.2d 777, 522 P.2d 843 (1974). It is evident from Mr. Vandenberg’s testimony that plaintiff was placed on probation during the 1970-71 school year for problems similar to those for which he was discharged in the 1972-73 school year. This recurring problem of lack of supervision of students also persisted throughout the 1971-72 school year. Whether or not plaintiff’s shortcomings as a teacher may be labeled remediable teaching deficiencies as that term is used in the
Wojt
case is immaterial. Plaintiff was placed on probation during the 1970-71 school year and did not substantially correct his failure to adequately supervise students during the following two school years. Under these circumstances, a school district may properly discharge a teacher.
We need not decide the legal sufficiency of the December 1 evaluation because it was not necessary for the board to again place plaintiff on probation pursuant to RCW 28A.67.065.
Kirk v. Miller, supra,
held that supplemental contracts covering extracurricular ac
tivities were not governed by the continuing contract law. However, we are not concerned with the continuing contract law, RCW 28A.67.070, as covered in RCW 28A.67.074. We are concerned with grounds for discharge. It is our opinion that
Kirk
does not stand for the proposition that teacher
conduct
occurring during the performance or nonperformance of extracurricular duties may not be used as a basis for discharge. We find that the plaintiff’s failure to adequately supervise students as required by the supplemental contract during athletic contests was properly considered by the board in making its determination to discharge plaintiff from his primary contract.
Plaintiff urges that there is insufficient evidence to support findings of fact Nos. 6, 7, 8, 9, 10 and ll.
As to these findings of fact, we have reviewed the record and find
there is substantial evidence to support them. However, in relation to finding of fact No. 10 the plaintiff contends that his conduct during the 1971-72 school year is irrelevant because it is not material to the plaintiff’s discharge during the 1972-73 school year. This argument is contra to the conclusion reached in the
Wojt
case that a failure of a teacher to substantially correct work-related deficiencies subsequent to an initial probationary period may be used by the school board as a basis for discharge.
See
Annot., 4 A.L.R.3d 1090,1097 (1965).
In connection with finding of fact No. 11 the plaintiff also assigns error to the court’s conclusion of law No. Is to the effect that the establishment of evaluative criteria by the board of directors pursuant to RCW 28A.67.065 was unnecessary. Plaintiff argued in essence that RCW 28A .67.065 and RCW 28A.72.030 required that before the board adopts evaluative criteria there “must” be negotiations between the board and the elected representatives of the certificated employees. RCW 28A.67.065 does not apply in a discharge situation. That statute contemplates the use of evaluative criteria and procedures in connection with placing certificated personnel on probation.
Lastly, plaintiff claims that the board did not make
an independent determination of probable cause. This contention need not be answered since the trial court heard the case “de novo,” and it is clear from the record that its decision was reached independent of any conclusion arrived at by the school board.
Hattrick v. North Kitsap School Dist 400,
81 Wn.2d 668, 504 P.2d 302 (1972);
Wojt v. Chi-macum School Dist. 49, supra.
Judgment of the trial court is affirmed.
Green and Munson, JJ., concur.
Petition for rehearing denied June 11, 1975.
Review denied by Supreme Court July 29, 1975.