### FILED MARCH 13,2014 Inthe Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE MICHAEL F. CRONIN, ) No. 31360-3-111 ) Appellant, ) ) 

### v. ) ) CENTRALVALLEY SCHOOL DISTRICT, ) UNPUBLISHED OPINION ) Respondent. ) BROWN, J. - Teacher Michael Cronin appealsthetrial court's decision to summarily dismiss his declaratory suit seeking to require the Central Valley School District (District) to comply with his requestfor a statutory discharge hearing. Thetrial court reasoned the complaintwas untimely and it lacked subject matterjurisdiction. Mr. Cronin contends the court erred in finding thetime limit setforth in RCW28A.645.010 precluded his action. We agreewith Mr. Cronin, and reverse. FACTS On January 5, 2012, while Mr. Cronin was incarcerated for a driving underthe influence conviction, the District notified him it had probable causefor his discharge and probable causefor nonrenewal ofhis contract. The notice informed Mr. Cronin he had the righttotimelyfile a notice ofappeal. Mr. Cronin belongs to the WashingtonNo. 31360-3-111 Cronin v. Central Valley SchoolDist.
Education Association 0NEA) and the Central Valley Education Association (CVEA). The collective bargaining agreement between the District and Mr. Cronin requires an employee who is discharged and/or nonrenewed to either pursue a grievance procedure that leads to arbitration or a statutory hearing under chapter 28A.405 RCW. On January 11, 2012, Sally McNair, a UniServ1 representative with the WEA, wrote the District, on Mr. Cronin's behalf, stating, "I have received the Notice of Probable Cause for Termination of Mike Cronin's employment
.... I am requesting a closed hearing on Mr. Cronin's behalfto determine whether there is sufficient cause for such adverse action." Clerk's Papers (CP) at 48. Ms. McNairfurther stated, "Due to the lackofaccess to Mr. Cronin, Iwill also be filing a grievance in order to preserve timelines to both procedures." Id. The District failed to respond. On February 8, 2012, Ms. McNair notified the District that Mr. Cronin "has decided to pursue the statutory hearing as described in RCW 28A.405.300 as his election of remedy for the notice of probable causefor discharge. He will not be utilizing the grievance procedure." CP at 49. The District again failed to respond. Mr. Cronin obtained counsel. On February 21,2012, Mr. Cronin's attorney contacted the District about its lack of response. On that same day, the District drafted a letter stating it would not be responding to Mr. Cronin's request for a hearing because such requests must be made

1 WEA UniServ representatives assist regional teachers in such areas as bargaining, contract enforcement, and grievances. http://www.washingtonea.org 

### 2No. 31360-3-111 Cronin v. Central Valley SchoolDist. by "the employee who receives the notice." CP at 50. This letterwas received by Ms. McNair and forwarded to Mr. Cronin's attorney on February 28, 2012. On March 23, 2012, Mr. Cronin sued for declaratory relief, contending the District
was required to respond to his request for a hearing on the finding ofprobable cause to discharge and nonrenewal. He requested wages from January 1, 2012 through the proceedings. Both parties requested summaryjudgment. The court granted the District's request and denied Mr. Cronin's request, finding it lacked subject matterjurisdiction to hearthe matter because itwas notfiled within 30 days ofthe aggrieved action as required by RCW28A.645.010(1). After he unsuccessfully attempted reconsideration, Mr. Cronin appealed. ANALYSIS The issue is whetherthe trial court erred in summarily dismissing Mr. Cronin's declaratory suit on lack ofsubject matterjurisdiction because itwas untimely. We review de novo a trial court's summaryjudgmentdecision in a declaratory judgment action. Internet Comty. 

### &Entm't Corp. v. Wash. State Gambling Com'n, 169 Wn.2d 687, 691,238 P.3d 1163 (2010). Likewise, appellate courts review de novo questions ofa court's subject matterjurisdiction. Cole v. Harveyland, LLC, 163 Wn. App. 199,205,258 P.3d 70 (2011). RCW 28A.645.010 grants the superior courtjurisdiction to review a decision by a school board. All that is required is that an aggrieved person file and serve a notice of

3No. 31360-3-111 Cronin v. Central Valley SchoolDist. appeal setting forth the errors complained ofwithin 30 days. Id. at RCW 28A.645.010(1). Upon properfiling ofthe notice ofappeal, the superior court obtains subject matterjurisdiction. Clark v. Selah Sch. Dist. No. 119,53Wn. App. 832, 837, 770 P.2d 1062 (1989). RCW28A.645.010(1) partly provides, "Any person ... aggrieved by anydecision
ororder ofany school official or board, within thirty days afterthe rendition ofsuch decision ororder, orofthe failure to act upon the same ... mayappeal the same to the superior court." (Emphasis added.) RCW28A.645.010(2) states that appeals "by teachers
...from the actions ofschool boards with respect to discharge
... orfailure to renew their contracts
... shall be governed bythe appeal provisions ofchapters 28A.400 and 28A.405 RCW(2)

... andin allothercases shallbe governedbychapter 28A.645 RCW" (Emphasis added.) Here, Mr. Cronin requested declaratory reliefafterthe District refused to appoint
a nomineefor a hearing on the District's finding ofprobable cause. This was his remedy election under RCW28A.405.300, which states that an employee "within ten days after receiving such notice [of a change in contract status], shall be granted opportunityfor a hearing pursuant to RCW28A.405.310." RCW28AA05.310 specifies the hearing procedure. "In the eventthat an employee requests a hearing
... a hearing officershall be appointed in thefollowing manner: Within fifteen days following the
. 2 Chapter28A.400 RCW requires employees to be notified oftheir right to appeal (RCW28A.400.340) and chapter28A.405 RCW requires employees to appeal a notice a probable cause to terminate and/or nonrenewal within 10 days (RCW 28A.405.210 and .300). 

### 4No. 31360-3-111 

### Cronin v. Central Valley SchoolDist. receipt ofany such request the board ofdirectors ofthe district or its designee and the employee oremployee's designee shall each appoint one nominee. The two nominees shall jointly appoint a hearing officer." RCW 28A.405.31

### O. The District refused to comply with the hearing procedure setforth in RCW 28A.405.310. Mr. Cronin's suitto compel the District's compliance is not an action on the probable cause finding. Thus, the time limit set forth in chapter 28A.405 RCWdoes not apply. This action would fall underthe "all othercases" category expressly mentioned in RCW 28A.645.01 0(2)(a), which carry a 30-daytime limit to file an appeal. By comparison, in 

### Porierv. Seattle SchoolDist. No.1, 160Wn. App. 872, 881, 248 P.3d 1111 (2011), citizens filed suit against a school district, challenging the district's approval ofa math textbook series for use in the district's high schools. One of the issues was the selection ofcommittee members to review the series. 

### Id. The citizens argued teachers and community members willing to publicly question reform methodologywere pointedly excluded from the committee. 

### Id. Division One ofthis court held, 'The record does not supportthis allegation, and even ifit did, there was not a timely challenge to the committee selection process." 

### Id.; see RCW 28A.645.010. While the court's statement is dicta, it nevertheless shows the interpretation that an objection to the failure to nominate (in 

### Poriera committee memberand in this case a nominee to pick a hearing officer) must be made within RCW 28A.645.010's 30-day time limit.



### 5No. 31360-3-111 Cronin v. Central Valley SchoolDist.
Based on the above, RCW 28A.645.010(1)'s 30-day time limit applies here. The next question, then, is whether Mr. Cronin's action was within 30 days of"any decision" bythe District. RCW28A.645.010(1). On January 5,2012, the District notified Mr. Cronin it had probable cause for discharge and probable cause for nonrenewal. On January 11,2012, Ms. McNairsent a letterto the District stating, "I have received the Notice of Probable Cause for Termination of Mike Cronin's employment.
. .. I am requesting a closed hearing on Mr. Cronin's behalfto determine whetherthere is sufficient cause for such adverse action." CP at48. The District did not respond. On February 8,2012, Ms. McNair again notified the Districtthat Mr. Cronin "has decided to pursue the statutory hearing as described in RCW 28A.405.300 as his election ofremedy for the notice of probable cause for discharge. He will not be utilizing the grievance procedure." CP at 49. The District again chose notto respond. Mr. Cronin then obtained counsel. On February 21, 2012, Mr. Cronin's attorney contacted the District about its lack of response. On that same daythe District drafted a letter stating it would not be responding to Mr. Cronin's request for a hearing because such requests must be made by "the employee who receives the notice." CP at 50. This letterwas received by Ms. McNair and forwarded to Mr. Cronin's attorney on February 28,2012. On March 23, 2012, Mr. Cronin sued for declaratory reliefto compel the District to elect a nominee.



### 6No. 31360-3-111 Cronin v. Central Valley SchoolDist.
RCW 28A645.010(1) states, "Any person ... aggrieved by anydecision
. .. of any school official or board, within thirty days afterthe rendition ofsuch decision
... may appeal." (Emphasis added.) Our Supreme Court has observed that this provision "means what it says." Haynes v. Seattle Sch. Dist. No.1, 111 Wn.2d 250, 251, 758 P.2d 7 (1988) (construing identical predecessorstatute, former RCW 28A .88.010). Nothing in RCW 28A645.010 authorizes an appeal from a mere failure to respond; rather, there must be a decision, order, orfailure to act. The District argues its failure to act in January made the March appeal untimely. But, the District's February 21,2012 letter informing Mr. Cronin that it would not comply with RCW 28A405.310(4) was the rendition ofa decision, triggering the 30-day period to appeal. In Derrey v. Toppenish SchoolDistrictNo. 202,69 Wn. App. 610, 613, 849 P.2d 699 (1993), a retired school maintenance supervisor brought an action againstthe school districtfor breach ofcontract and negligent misrepresentation, stemming from reduction of his pension benefits. The superior court dismissed the action as untimely. Id. at 613. This court, however, held the district's letterto the retired worker asserting no basis existed upon which to hold the district responsible fora reduction in his pension was a '"decision''' within the meaning of RCW 28A88.010 (RCW28A645.010's identical predecessor). Id. at 613. Thus, the lettertriggered the 30-day time period. Similarly, here, the decision appealed was the District's decision asserting Mr. Cronin did not properly elect his remedy received on February 28,2012. This letter is an unequivocal rejection ofMr. Cronin's request for a hearing and constituted a


### 7No. 31360-3-111 Cronin v. Central Valley SchoolDist.
"decision ororder" within the meaning of RCW28A.645.010. Mr. Cronin's remedy at that pointwas an action in the superior court, timely filed on March 23, 2012. Thus, we reason the trial court had subject matterjurisdiction to hearthe matter and erred in concluding otherwise. Therefore, the court erred in granting the District's request for summaryjudgment and not reaching the merits of Mr. Cronin's declaratory suit. The parties briefed whether Ms. McNairwas a proper representative of Mr. Cronin and whetherthe District improperly withheld wages from Mr. Cronin. Because
we hold the summarydismissal ofMr. Cronin's request for declaratory reliefwas improper and remand for a determination on the merits, we leave these mattersfortrial court resolution. See Fisher v. Aldi Tire, Inc., 78Wn. App. 902, 910, 902 P.2d 166 (1995) (holding an award ofattorneyfees was premature because "it has merely been established thatfurther proceedings are needed.") Reversed and remanded forfurther proceedings. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuant to RCW 2.06.040.

Brown, 

### J. WE CONCUR:



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