MELNICK, J.
¶ 1 Bethel School District (District) nonrenewed Wanda Riley-Hordyk's employment contract, effective at the end of the 2011-2012 school year, because the District closed the online school where she held the position of principal. A hearing officer upheld the District's decision to nonrenew Riley-Hordyk's contract, and the superior court affirmed the hearing officer's decision. Riley-Hordyk appeals from the superior court's order affirming the nonrenewal, arguing that the District's nonrenewal of her contract and its subsequent refusal to transfer her to an
¶ 2. Riley-Hordyk served as a teacher and principal at Bethel High School until issues arose concerning her performance during the 2009-2010 school year. Near the end of the 2009-2010 school year, the District demoted Riley-Hordyk from her principal position at Bethel High School to a subordinate position at the Bethel Online Academy (BOA). Then at the end of the 2009-2010 school year, the District nonrenewed her employment contract because of unprofessional conduct. Riley-Hordyk filed a lawsuit against the District and the parties settled the suit. As part of this settlement, Riley-Hordyk became the principal of the Bethel Online Academy (BOA). The District classified Riley-Hordyk as a secondary principal and paid her at the level of an elementary school principal. She was also subject to the terms, and conditions of the CBA negotiated between the District and the principals' union.
¶ 3 On February 28, 2012, due to financial issues, the District's board of directors unanimously voted to close BOA effective the following school year. The District projected that BOA would lose $330,000 in the 2012-2013 school year because of reduced state funding, administrative burdens, and decreased enrollment. Riley-Hordyk repeatedly requested that the District transfer her into another principal position within the District. Each time, the District refused her request. The District told Riley-Hordyk that she needed to submit an application to be considered for open principal positions and that the CBA did not provide her a right to transfer into one of the positions.
¶ 4 On May 9, the District notified Riley-Hordyk that probable cause existed to nonrenew her employment contract at the end of the 2011-2012 school year. The District informed Riley-Hordyk that her position was being eliminated due to "insufficient revenue to maintain the current level of programs and services in the District." Clerk's Papers (CP) at 381. This elimination occurred because of "the overall financial situation of the District, changes in the school funding formula, student enrollment, and the overall needs of the District." CP at 381. The District stated that Riley-Hordyk's performance did not factor into the decision to nonrenew her contract. The District referred to Riley-Hordyk's contract's nonrenewal as a "[r]eduction in [f]orce" under the CBA.
¶ 5 Despite eliminating Riley-Hordyk's principal position, the total number of principals in the District for the 2012-2013 school year remained unchanged from the previous year because concurrent with its closure of BOA, the District re-opened an elementary school that had been previously closed for renovation. In addition to Riley-Hordyk's position, the District also eliminated six assistant principals' positions. All six displaced assistant principals applied for open positions within the District, and five of them were hired into other positions. Riley-Hordyk applied for a single elementary school principal position, but she did not appear for the interview because she believed that it conflicted with her son's graduation.
¶ 6 Riley-Hordyk appealed her contract's nonrenewal.
The hearing officer's conclusions of law included the following:
Implicitly the hearing officer concluded that sufficient cause
¶ 7 Riley-Hordyk appealed the hearing officer's decision to the Pierce County Superior Court, which affirmed the hearing officer's decision. Riley-Hordyk appeals.
¶ 8 Riley-Hordyk argues that the District's nonrenewal of her contract and its subsequent refusal to transfer her to an open principal position violated the CBA, the continuing contract statute, and our decision in Peters, 8 Wn.App. 809, 509 P.2d 67. Because none of these authorities entitles Riley-Hordyk to the relief she seeks, we hold that the hearing officer did not err by upholding the District's nonrenewal of her contract and the rejection of her requests to transfer to open principal positions . . . Accordingly, we affirm the superior court.
¶ 9 Under RCW 28A.405.340(5), we review a hearing officer's factual determinations under the "clearly erroneous standard." See 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 by substantial evidence in the record, which is evidence sufficient to persuade a fairminded person of the finding's truth or correctness. Campbell v. Emp't Sec. Dep't, 180 Wn.2d 566, 571, 326 P.3d 713 (2014); Clarke, 106 Wash.2d at 121, 720 P.2d 793.
¶ 10 Like the superior court sitting in its appellate capacity, we confine our review of the hearing officer's decision to the verbatim transcript and the evidence admitted at the hearing. See RCW 28A.405.340. We review the hearing officer's findings of fact and conclusions of law; we give no deference to the superior court's decision. Griffith, 165 Wash.App. at 671, 266 P.3d 932.
¶ 11 Riley-Hordyk asserts that the District violated her statutory continuing contract rights by nonrenewing her contract without probable cause. Specifically, she argues that the hearing officer erred by finding financial necessity led to the nonrenewal rather than finding that the District nonrenewed her contract as a means to retaliate against her in bad faith. She further argues that the hearing officer erred by concluding that the renewal was a reduction in force because the number of District principals remained the same in the year after the nonrenewal. We disagree with Riley-Hordyk.
¶ 12 Riley-Hordyk's employment is governed, in part,
¶ 13 An employee's reemployment rights "may be involuntarily cut off only if the statutory procedure is followed." Arnim v. Shoreline Sch. Dist. No. 412, 23 Wn.App. 150, 154, 594 P.2d 1380 (1979). That procedure requires the employer to provide timely notice of nonrenewal, including the probable cause or causes for the nonrenewal, and an opportunity for a sufficient cause hearing.
¶ 14 Here, the District provided Riley-Hordyk with timely notice of nonrenewal, which included the District's reasons for its determination that probable cause existed to terminate her employment. She also received a sufficient cause hearing where she
¶ 15 Riley-Hordyk assigns error to the hearing officer's conclusion of law that the nonrenewal of her contract was supported by sufficient cause. She argues that the hearing officer erred by finding her contract was nonrenewed as a result of financial necessity and that the hearing officer should have found the District retaliated against her in bad faith. We disagree.
¶ 16 The District informed Riley-Hordyk that it was nonrenewing her contract for financial reasons. The District provided the following statement of probable cause to Riley-Hordyk:
CP at 381.
¶ 17 A district's "adverse financial condition" may constitute sufficient cause to nonrenew an employee's contract. Barnes v. Seattle Sch. Dist. No. 1, 88 Wn.2d 483, 487, 563 P.2d 199 (1977). The question of whether specific conditions constitute sufficient cause is a mixed question of law and fact that is subject to de novo review. See Clarke, 106 Wash.2d at 111, 720 P.2d 793.
¶ 18 The hearing officer's conclusion that sufficient cause existed to support the District's nonrenewal of Riley-Hordyk's contract is supported by the foregoing case law and the hearing officer's findings of facts. The hearing officer found that the District in general and BOA in particular were in financial distress. Riley-Hordyk does not assign error to these findings,
¶ 19 The hearing officer also found that the District exercised good faith judgment when it decided to close the BOA.
¶ 20 Given the dire financial straits of the District, the District's decision to close down the BOA, and the resulting elimination of Riley-Hordyk's position, the hearing officer did not err in concluding that sufficient cause existed to nonrenew Riley-Hordyk's contract.
¶ 21 Riley-Hordyk next assigns error to the hearing officer's conclusion of law that the nonrenewal of her contract based on the closure of the BOA constitutes a "reduction in force." Br. of Appellant at 2. She argues that her contract's nonrenewal resulted not from a reduction in force, but out of retaliation for her prior litigation against the District. Further, she argues that the hearing officer's conclusion that the nonrenewal was a reduction in force was error because the number of principals in the District remained unchanged in the year after the nonrenewal.
¶ 22 The term "reduction in force" does not play a pivotal role in this case. Riley-Hordyk's focus on whether a reduction in force occurred is misguided because it does not affect whether the District had probable cause to nonrenew Riley-Hordyk's contract, which is the real issue here. The term reduction in force does not appear in the continuing contract statute, and its only mention in the CBA relates to a right to transfer, which we discuss below. See RCW 28A.405.210. Likewise, the hearing officer's only reference to reduction in force pertains to a potential right to transfer in the CBA. Riley-Hordyk's argument conflates "reduction in force" with probable cause to terminate her contract, but we do not. Reduction in force is not a term that has any bearing on the District's probable cause determination.
¶ 23 Riley-Hordyk argues that pursuant to Peters, 8 Wn.App. 809, 509 P.2d 67, the District was required to offer her any principal positions that opened prior to the expiration of her existing contract. We disagree.
¶ 24 In Peters, we considered what duties, if any, a school district owes to an employee whose contract was nonrenewed for financial reasons, with respect to vacancies that might occur before the expiration of the employee's existing contract. 8 Wash.App. at 815, 509 P.2d 67. We held that a school district "may not approach the task of selecting personnel to fill vacancies that occur after some [employees' contracts] have been nonrenewed without first giving effect to the continuing contract rights of those nonrenewed [employees]." Peters, 8 Wash.App. at 816, 509 P.2d 67. In short, a school district must continue the contracts of those employees who have qualifications that satisfy its needs even if that means reconsidering a nonrenewal. Peters, 8 Wash.App. at 816, 509 P.2d 67.
¶ 25 Riley-Hordyk claims that Peters supports her assertion that the District was required to transfer her into a vacant principal position for which she was qualified. Peters did not, however, involve a collective bargaining agreement that provided the employees' exclusive rights to transfer into open positions. 8 Wash.App. at 810-17, 509 P.2d 67. Indeed, Peters predates the collective bargaining agreement statute (i.e., the Educational Employment Relations Act), chapter 41.59 RCW. These facts are significant because it is well settled that provisions in a collective bargaining agreement do control over certain conflicting statutory provisions.
¶ 26 A union may lawfully bargain away, i.e., "waive," certain statutory rights of represented employees in a collective bargaining agreement, but statutorily created private rights that serve public policy purposes cannot be waived. Shoreline Cmty. Coll. Dist. No. 7 v. Emp't Sec. Dep't, 120 Wn.2d 394, 409-10, 842 P.2d 938 (1992) (holding that a purported waiver of unemployment benefits is void against public policy); Hitter v. Bellevue Sch. Dist. No. 405, 66 Wn.App. 391, 397-99, 832 P.2d 130 (1992) (holding that right to attorney fees was not a minimum substantive guaranty to individual workers and, therefore, collective bargaining provision took precedence over statute that provided attorney fees). For example, in Hitter, we distinguished between "minimum
¶ 27 Riley-Hordyk argues that Peters gives her the right to transfer into an open position. We disagree because Riley-Hordyk's CBA waived the statutory right to transfer discussed in Peters. A statutory right can be waived in a collective bargaining agreement if it is not in the category of minimum substantive guaranties to individual workers. Shoreline Cmty. Coll. Dist. No. 7, 120 Wash.2d at 409-10, 842 P.2d 938; Hitter, 66 Wash.App. at 399, 832 P.2d 130. A right to transfer into an open position after nonrenewal is fundamentally different from rights that courts have interpreted as minimum substantive guaranties to individual workers, such as rights to minimum wage and overtime pay, unemployment benefits, and to be free of discrimination. See Shoreline Cmty. Coll. Dist. No. 7, 120 Wash.2d at 409-10, 842 P.2d 938; Hitter, 66 Wash.App. at 398-99, 832 P.2d 130. Rather, a right to transfer into an open position after nonrenewal is more aligned with rights that may be waived by a collective bargaining agreement, such as the statutory right to reasonable attorney fees in connection with a judgment for wages or salary. See Hitter, 66 Wash.App. at 397-99, 832 P.2d 130; see also Shoreline Cmty. Coll. Dist. No. 7, 120 Wash.2d at 409-10, 842 P.2d 938. We hold that the statutory right to transfer discussed in Peters is not in the category of minimum substantive guaranties to individual workers. Therefore, an employee's statutory right to transfer under the continuing contract statute can be waived or altered by a collective bargaining agreement.
¶ 28 Here, the CBA controls principals' rights to transfer to open positions upon nonrenewal of their contracts: "non-interim administrators in good standing, who lose their positions due to a reduction in force, will be considered for a contract for an open teaching position for which he/she is qualified." CP at 402. The parties to the CBA specifically contemplated a situation like the present case and bargained for a specific outcome that is inconsistent with the result in Peters. Because the right to transfer conferred by Peters is not in "the category of a minimum substantive guaranty to individual workers, which cannot be waived by the exercise of collective rights," we hold that Riley-Hordyk waived any remedy under Peters by entering into the CBA. Hitter, 66 Wash.App. at 399, 832 P.2d 130. We hold that the Peters ruling and rationale did not entitle Riley-Hordyk to transfer to an open position. Riley-Hordyk's right to transfer after a nonrenewal of her contract is controlled solely by the CBA.
¶ 29 Riley-Hordyk next argues that the CBA required the District to transfer her into an open principal position. We disagree.
¶ 30 The only mention in the CBA of a right to transfer is as follows:
CP at 402. The language of the CBA does not support Riley-Hordyk's argument. The CBA provides that where an administrator loses her position due to a reduction in force, she would only be "considered for a contract for an open teaching position." CP at 402 (emphasis added). The first clause of the applicable CBA provision limits Riley-Hordyk's right to transfer to an open teaching position. Under that clause, an administrator like Riley-Hordyk would be considered for an open teaching position only if the Bethel Education Association staff are not also experiencing a reduction in force. The CBA does not provide administrators a right to transfer into open principal positions.
¶ 31 Assuming the most favorable conditions to Riley-Hordyk—that a reduction in force led to Riley-Hordyk's contract being
¶ 32 Because no Spanish teaching positions were open to offer Riley-Hordyk, the District did not violate the duties it owed under the CBA. Because the CBA does not provide Riley-Hordyk a right to transfer to an open principal position within the district, the hearing officer did not err by concluding that the District had no obligation to transfer her to another principal position. Accordingly, we affirm the superior court in affirming the hearing officer.
We concur: WORSWICK, P.J., and SUTTON, J.