by the trial court the trial court found as a matter of fact the doctor bucy was terminated on february fifteenth twenty thirteen more precisely found that there was no contr evidence that is that the evidence permitted only one conclusion correct february fifteenth what would what is your evidence to the contrary that evidence is what the board chair sad on january twenty second instance what the board i'm sorry that who said the board chair the richland school district board chairman on january twenty second came out of the meeting at which that action was taken and said that dr b c's employment was terminated quote effective immediately if you're talking about something that reflected in a news release or a news article right you don't have an affidavit from  exclude that evidence at the trial court most importantly the board chair mr janssens never submitted anapa david denying that that's what he said that while there were there were two or three required on summary judgment rick jansons the board chair is the only person to talk to the press so the only reasonable inference is that the only place the press could a got that information was from rick janssen what do we make of the january thirtieth letter the january thirtieth letter was an attempt to close the barn door after the how or the horse was already out when they when there the district realized that it violated dr busey's rights under state law and under louder mel in taking the action that it said it took on january twenty second they decided to try to backtrack  and undo what they did and sent this january thirty letter what's your bottom line complaint that he didn't get a hearing no the bottom line complaint is that he did not get notice of the charges against him did not get an explanation of the evidence and support or whatever those charges were unless the january thirtieth letter counts and you're just saying we have to ignore that because of what a newspaper article reported from an unknown source at a meeting that because as i understand your position if the february date is a good date then due process was given in terms of the notice of january thirtieth and the opportunity there after to challenge the terminations is am i right about that that you're not challenging the sufficiency of that notice substantively if january thirty a proper notice then it was sufficient ok but let's remember that it's not just the statements of janson it's also the press release issued by the the richland school district board on january twenty two that press relief was in title and i quote and this is easy our one hundred ninety quote the richland school board terminates dr jim as superintendent and quote which doesn't give a date does it but it was issued on january twenty two no but it says the board members voted to terminate him but it doesn't say when they voted surely they did but that doesn't mean that's the effective it's we vote in november for a president but the president doesn't come into office till january so the fact that the press releases they have voted i don't really see where on the date the releases issued exactly but  except that it goes on to say that the results stated above will be set forth in more detail and i letter of terminations which is being drafted by the attorney representing the school board so it's clearly prospective a news re already happened on january twenty second or does that reflect as the district argues now and as the trial court accepted that it's going to be a letter of probable cause to terminate and i would suggest when you look at that evidence in this case which dr busey's affidavit says this board had been told by him what that statutory procedure was under state law and what the louder male terminating you weep we terminated you and goes to the press and says it's effective immediately i think it's a reasonable inference to look at the language that the board use that violated state law so you want us to believe part of the press statement about the initial action of the board but not as entirety no i want you to believe it and then its entirety well doesn't excuse me excuse me if we ask the questions you give the answers i'm sorry yes as my colleague the presiding judge asked you and said doesn't that press release say later on that this is subject to counsel drafting the appropriate legal letter to be sent to your client are we to disregard their your honor that's one interpretation of that statement in the press release another interpretation of that statement in the press release as he's been terminated and we're going to confirm that terminations which is already occurred effective immediately by a letter yes i have one more question for you about to say that he was no longer eligible after february first that is it's four again forward looking and telling him that as in as of march he won't hit curve ridge a it doesn't really tell us much either way on that certainly that's a reasonable inference my time is up i would just ask this court not to set a precedent that a summary judgment can be based on a fiction contrary to what of an elected public official announces at the time of the action at the very least when an elected public official says we did this and we did it effective immediately that should create a genuine issue of fact on whether the person's due process rights have been violated thank you  i believe so so that if the statement to the press is correct they said they were terminating dr abusee but a letter would follow to meet legal guidelines or whatever right correct were you that lawyer i was not your honor i was not brought in until the lawsuit was filed so all you have to do is shaped the history hopefully recount it accurately so i'm going  that was the great difference between being a litigator and a business moire litigator its history and you can't change history but a business where history dissipated we don't have we don't make the facts we deal with the fast exactly so going back to this two part analysis the first one as i said did the school district comply with the statutory requirements under r c to be twenty eight a four hundred five three hundred and then if not there's a second part of the analysis is and that is did mr dr bucy receive due process nonetheless well it's obvious it's obvious the board you know tried to comply with the statutory requirements the question is you know did they do it after the fact you know that was after the term issue because they realized they had made a mistake it's possible for the board to act you know contrary to the rules and say ok you're fired immediately right and understand until the question is do the reasonable inferences from the facts support that in especially the one news article that says the terminations effective immediately know and i'll tell you why first of all i want to jump back real quickly before i directly answer that and that is just to point out that since the briefing in this case we do have a ninth circuit court of appeals decision i believe authored by judge hawkins that says that the statutory process for discharging school understand the point to a specific one which is spin confirmed today and all rises or falls on whether there was in fact a terminations in january before they notice and the process occurred because if it didn't happen till february the part of the process misappropriating that's what i understand so it all rises and falls on january twenty two versus february fifteenth i agree with the slate exception and i'll try to answer both questions now in that is this we have an admission by dr bucy that that january thirtieth letter was sufficient so there's no argument about that with that in mind we supreme court said is that in that case there was a legally defective notice that was provided to the teacher and what happened then is the teacher filed suit actually  appeals court and on the same day the school district sent out what the washington supreme court said was a legally effect of notice of discharge under the statute and then the court went on to say that the subsequent legally effective notice can replace the prior in effective notice and thereby comply with the statute can you tell us from the record yes or no whether when the doctor you see received the february fourth letter he was represented by counsel yes thank you and so so we go back then if we if and i don't believe that the board violated the statute by making the announcement to do it on january twenty second but even if this court said that there was a question of fact in that regard then you look at the january thirtieth two thousand and thirteen letter that wouldn't notice which said you have this is probable cause to discharge but you have a hearing and so he was provided on january thirtieth undisputed with the right to have a hearing before a third party neutral hearing officer to determine whether or not the discharge would go forward or not so he had that right to that hearing before discharge and going back to something your honor said during mr ayers questioning something about dr bucy being paid through february fifteenth i think the record actually is that he was paid through february twenty seventh and rights to a hearing before the board before terminations could occur and on feb twenty first i believe attorney craig stevens who was attorney for the school district sent  jumping back then to that jet the january twenty second date although i don't think it matters because of the admittedly effective legal notice on january thirtieth as it relates to what the board did on january twenty second if you go back to the statute they did what they were required to do that's the end of their process they are required to take a vote and make a decision whether they believe they have sufficient cause for discharge and it's not a it's not a vote that we might have it or we may have it and we're going to give you the letter it is a definitive action that they are required to take we vote we have sufficient cause for discharge then they are required under the statute to provide the statutory notice which is exactly what they did in this case well you know you're describing what a board should do under the law and the board did it afterwards the question is though did they make the decision before they did that that he was fired isn't that the point that the play of the dispute when they decided to terminat they did make that decision they made the only decision the board is required or allowed to make but i see you're again talking what the law permits boards you know like other entities many times act contrary to the law that the question did because all the board can do is take that vote they can do to question what they did you say what they can do under the law questions boards act illegally sometimes and i'm saying that what they can do under the law is what they did do so the question is whether either under washington law or under the due process analysis they were required to issue the notice on the date of the meeting or whether they could do it later  yes that's that question that were present and i think if in the statute if you read it in its entirety i think it makes it clear that they make the decision that they have probable cause and then give notice subsequently to the i think could do it the same day if they have their lawyer sitting there and have a letter ready i agree there is no time line in the statute that says when they need to or have to send airport authority and washoe county in the ninth circuit said quote in the context of a proof of process do they terminated public employee a full post deprivation hearing does not substitute for the required pre term anation hearing i think it's clear that there's a question of fact as to what the board dead on january twenty two that question has to be resolved in dr b c's favor for summary judgment second  w twenty eight for a five point three hundred states that quote in the event any such notice is not timely given such employee shall not be discharged or otherwise adversely in fact a fact it in his or her contract status for the duration of the contract what happens if you win then we go back and we have a trial and there's a determination  contrary to washington state law what happens well and then we go back to trial board meets again and proceeds to terminate your client and give your client notice and he has twice i think you are for the hearing twenty years because if we accepted that hearing we would waive the rights in the remedy that are stated in our city debbie twenty eight four zero five three hundred if you read that statute it employee shall not be discharged or otherwise adversely effected in his or her contract so if the notice isn't given or if so it's your position that they would have to issue the letter the same da the meeting or instead of saying we terminated you effective immediately say we voted the probable cause exists to terminate follow the statute they didn't follow the statu as mr mcfarlane just admitted in this argument they did have their attorney present in this executive session and i you know those are interesting speculation but that's really way