Opinion
No. 22831-2-III
Filed: December 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No: 02-2-00716-8. Judgment or order under review. Date filed: 02/20/2004. Judge signing: Hon. Lesley a Allan.
Counsel for Appellant(s), Steven Craig Lacy, Attorney at Law, PO Box 7132, East Wenatchee, WA 98802-0132.
Stewart Robert Smith, Attorney at Law, 222 Eastmont Ave, PO Box 7132, East Wenatchee, WA 98802-0132.
Counsel for Respondent(s), Maureen Flannery Guinan, Attorney at Law, 139 S Worthen St, PO Box 19, Wenatchee, WA 98807-0019.
Phillip Randolph Johnson, Johnson Gaugroger Drewelow, PO Box 19, Wenatchee, WA 98807-0019.
Bonnie Powell was a teacher for the Cascade School District. In 2001, she was suspended with pay pending investigation for inappropriate conduct with a student. Ms. Powell then received a notice of suspension. She requested a hearing and the hearing officer found sufficient cause for her discharge. The superior court affirmed this decision. Claiming the hearing officer did not follow proper procedure, she was not afforded effective assistance of counsel, and the decision to discharge her was not supported by the record, Ms. Powell appeals. We affirm.
Ms. Powell, an art teacher at Cascade High School, often led student groups on European tours. In April 2001, she took three students to Europe. One of the students was 18-year-old Joe Chambers. Ms. Powell thought of him as a son. During the summer of 2001, she hired Joe to do odd jobs around her house and occasionally house sit. Ms. Powell had alcohol at her home, but instructed Joe not to drink it.
Ms. Powell applied for an overseas teaching position. Ms. Powell, Joe and his mother decided that if Ms. Powell got the position, he would accompany her overseas and finish his education abroad. Ms. Powell needed someone to accompany her because she suffered from type 1 diabetes and was prone to hypoglycemic episodes. Joe also accompanied her to Philadelphia for the interview. Upon arriving at the hotel, Ms. Powell discovered the room had only one bed. When the rollaway did not arrive, Joe slept on the couch. She did not get the overseas position.
Marty Carlson, a colleague, was suspicious of the relationship between Ms. Powell and Joe. Ms. Carlson told William Wadlington, Cascade High's principal, that she believed Ms. Powell had engaged in inappropriate conduct with the student.
On September 24, 2001, Mr. Wadlington interviewed Joe. He admitted having sex with Ms. Powell while in Europe. He also said he spent the night at Ms. Powell's on one occasion after the trip and she came into the room where he was sleeping and fondled him. Joe also claimed that Ms. Powell offered to share a bed with him on the Philadelphia trip. Ms. Powell claimed that Joe, an admitted drug and alcohol abuser, was not credible.
On September 25, 2001, the district gave Ms. Powell a notice of suspension. She then asked the district to provide her notice of the specific allegations against her. On October 3, the district faxed a letter outlining eight allegations against her, including having sex with Joe, making sexual advances towards him, engaging in an inappropriate pattern of behavior with him, having supplied alcohol to him, traveling with and staying at a hotel with him, and planning to travel and stay with him overseas.
On October 8, Ms. Powell responded to these allegations. She denied having sexual intercourse with Joe and supplying him with alcohol; however, she admitted knowing he was drinking on the European trip. She claimed Joe's parents signed a consent form acknowledging that students on the trip might drink alcohol.
On October 19, 2001, the district gave Ms. Powell a notice of discharge. She requested a hearing, whereupon the hearing officer found sufficient cause for discharge. The superior court affirmed that determination. This appeal follows.
Ms. Powell first contends the hearing officer applied an incorrect standard of review. The decision of a hearing officer may be reversed if it was made upon unlawful procedure or affected by other error of law. McCorkle v. Sunnyside Sch. Dist. No. 201, 69 Wn. App. 384, 391, 848 P.2d 1308 (citing RCW 28A.405.340(3), (4)), review denied, 122 Wn.2d 1012 (1993).
On October 19, 2001, the district sent Ms. Powell a notice of discharge, which stated that there was probable cause for discharge against her contract status pursuant to RCW 28A.405.300. The notice also informed her she had a right to request a hearing pursuant to RCW 28A.405.310. On October 24, Ms. Powell requested such a hearing.
At that hearing, the district had the burden of proving by a preponderance of the evidence the charges set forth in the notice of discharge. Sargent v. Selah Sch. Dist. No. 119, 23 Wn. App. 916, 920, 599 P.2d 25, review denied, 92 Wn.2d 1038 (1979); see also RCW 28A.405.310(8). Contrary to Ms. Powell's assertion, there was nothing reflected in the hearing officer's decision that indicated application of an improper standard of review. At several points in the decision, the hearing officer properly set forth the standard of review and repeatedly recognized the district had the burden of proof. There was no error.
Ms. Powell next claims that her due process rights were violated because she received ineffective assistance of counsel. In civil cases, the constitutional right to counsel is limited to cases in which the litigant's physical liberty is threatened or where a fundamental liberty interest is at stake. In re Dependency of Grove, 127 Wn.2d 221, 237, 897 P.2d 1252 (1995); see also In re Matter of Moseley, 34 Wn. App. 179, 184, 660 P.2d 315 (due process includes the right to counsel if significant liberty interest is involved), review denied, 99 Wn.2d 1018 (1983). A financial interest is not deemed fundamental in a constitutional sense. Grove, 127 Wn.2d at 238.
Ms. Powell's physical liberty was not threatened in these proceedings. Her job was, at most, a financial or property interest. This is not a fundamental liberty interest for purposes of a constitutional right to counsel. The right to counsel does not automatically attach.
Ms. Powell, however, asserts the discharge proceeding was quasi-criminal in nature and she thus had a right to counsel. She relies on Nguyen v. Department of Health, Medical Quality Assurance Commission, 144 Wn.2d 516, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904 (2002), where Dr. Nguyen's license to practice medicine was revoked by the Commission. He sought review to determine if the Commission applied the proper standard of proof. Id. at 520. The court held that Dr. Nguyen's professional license was a constitutionally protected property interest entitled to due process protections. Id. at 523. It also noted that a professional license revocation proceeding was quasi-criminal in nature and entitled to due process protections. Id. Consequently, the court determined a higher standard of proof was required in a revocation proceeding to comport with constitutional requirements. Id. at 534.
Nguyen does not control here. Unlike Dr. Nguyen, Ms. Powell was not faced with losing her certificate to teach; rather, she was losing her current position. The court in Nguyen noted this difference:
The interest of the medical practitioner in a professional disciplinary proceeding is obviously much greater than that which would be implicated by the mistaken rendition of a mere money judgment against him. It is much more than the loss of a specific job.
Id. at 534. Ms. Powell was not facing the same type of property loss and was accordingly not entitled to the same heightened protections as those set forth in Nguyen.
There is also no constitutional right to public employment. Wright v. Mead Sch. Dist. No. 354, 87 Wn. App. 624, 628, 944 P.2d 1 (1997), review denied, 134 Wn.2d 1011 (1998). Consequently, Ms. Powell does not have a constitutionally protected property right in her teaching position. Under RCW 28A.405.300, a teacher must be given notice and opportunity for a hearing before discharge. Daly v. Shelton Sch. Dist. 309, 3 Wn. App. 348, 351, 475 P.2d 897 (1970). The record shows Ms. Powell was afforded both. There is no due process violation.
Ms. Powell claims the hearing officer's decision was clearly erroneous. Whether a teacher actually engaged in certain conduct or was deficient in her practices or methods is a factual question. Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 110, 720 P.2d 793 (1986). Thus, a hearing officer's findings of fact will not be disturbed unless clearly erroneous. Id.
Ms. Powell does not assign specific error to any of the findings of fact made by the hearing officer. She asserts the officer could not have believed certain witnesses because they lacked personal knowledge of the facts to which they testified. She also claims the student's testimony was not credible because he was an admitted alcohol and drug user. But these arguments relate to witness credibility. We will not substitute our judgment for that of the factfinder on questions of credibility. Pryse v. Yakima Sch. Dist. No. 7, 30 Wn. App. 16, 23, 632 P.2d 60, review denied, 96 Wn.2d 1011 (1981).
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.
SCHULTHEIS, J. and KURTZ, J., concur.