Alexander v. Employment Sec. Dept. of State of Wash.
| Decision Date | 05 September 1984 |
| Docket Number | No. 5701-8-II,5701-8-II |
| Citation | 38 Wn.App. 609,688 P.2d 516 |
| Parties | , 20 Ed. Law Rep. 728 Julene R. ALEXANDER, et al., Appellants, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE OF WASHINGTON, and Department of Social and Health Services of the State of Washington, Respondents. |
| Court | Washington Court of Appeals |
John M. Sells, Asst. Atty. Gen., Olympia, for respondent Employment Sec.
Michael Hanbey, Asst. Atty. Gen., Olympia, for respondent DSHS.
Julene Alexander and other individuals (claimants) who were employed by the Department of Social and Health Services (DSHS) at either the Washington State School for the Deaf or the Washington State School for the Blind, appeal from the trial court's affirmance of the Department of Employment Security Commissioner's denial of unemployment benefits during the summer closure of the schools.
The primary issues are:
(1)(a) Whether the written notices prescribed by the Unemployment Compensation Act, which state that the employee will perform services at the end of the summer months in order to exempt unemployment benefits to an employee off work during the summer, are void as to employees whose continued employment is governed by civil service.
(b) Whether the notices did amount to written assurances of continued employment as required by the statute.
(2) Whether the Blind School and the Deaf School, which provide custodial care and varying degrees of educational services to its residents, depending on the nature and extent of the emotional or physical disability of each resident, are educational institutions so as to invoke the statutory exemption denying unemployment benefits to the claimants during the summer recess for 1978 and 1979.
(3) Whether the claimants, all of whom are civil service employees of the DSHS, and whose services at the Blind School and the Deaf School are other than instructional, research or primarily administrative, are rendering services for an educational institution (other than an institution of higher learning) so as to be ineligible for unemployment benefits while not working during the 1978 and 1979 summer recess.
Additionally, the claimants contend that procedural errors invalidated the proceedings when the appeals tribunal considered additional evidence.
We affirm, holding that the Commissioner properly decided that the Blind School and the Deaf School are educational institutions for the purposes of the statute providing for unemployment benefits; that claimants were performing services for the respective schools; and that the notices were effective when applied to civil service employees and satisfied the statute. We also hold that the manner of considering additional evidence was proper.
During the school terms prior to the 1978 and 1979 summer recess, claimants were employees of DSHS, occupying positions within the Division of Developmental Disabilities of DSHS, and were employed either at the Blind School or at the Deaf School. Most of the claimants occupied positions in the "house parent" classification. Others were employed as cooks, food service aides, teacher's aides, 1 and nurses. The state civil service law, RCW 41.06, applies to each of the claimants.
Prior to the 1978 and 1979 summer recess, claimants received written notices advising them of the summer closure, that they were being placed on "leave without pay" status and that they would be expected to resume their positions at a time to be specified later. A second written notice was issued to all claimants later in the summer informing them of the dates of resumption.
From the denial of unemployment benefits the initial claimants filed individual appeals to the appeal tribunal of the Department of Employment Security. On review sought by DSHS the Commissioner vacated the appeal tribunal's allowance of benefits to these initial claimants and remanded the matter to the appeal tribunal for further hearing. In these earlier proceedings the claimants sought judicial review and the superior court set aside the commissioner's decision and directed the commissioner to make a decision on the merits but authorized the commissioner to order additional evidence. The commissioner consolidated the initial claimants with a later group of claimants whose appeals were still pending before the appeal tribunal. The appeal tribunal after considering additional evidence denied benefits pursuant to the authority in former RCW 50.44.050. The commissioner agreed. From the superior court's affirmance of the commissioner's denial of benefits this appeal followed.
RCW 50.32.120 specifies that judicial review of the commissioner's decision is governed by the procedural requirements of RCW 34.04.130. 2 Furthermore, RCW 50.32.150 provides that the decision of the commissioner shall be prima facie correct.
The claimants' appeal, claiming unlawful procedures at the administrative hearing and challenging the Commissioner's interpretation of the controlling statute, raises questions of law. The error of law standard of review applies and allows the reviewing court to essentially substitute its judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law. Schuh v. Department of Ecology, 100 Wash.2d 180, 667 P.2d 64 (1983); Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Ciskie v. Department of Empl. Sec., 35 Wash.App. 72, 664 P.2d 1318 (1983).
The initial claimants first argue that the Commissioner proceeded unlawfully by ordering the consolidation of additional testimony, from specifically named witnesses, with a hearing of appeals then pending before the appeals tribunal. They maintain that this action permitted a rehearing or "second bite" instead of a presentation of additional evidence. Alternatively, they contend the evidence presented did not follow the Commissioner's directive as to the named witnesses.
Neither action constitutes an unlawful procedure. The Commissioner's authority to order additional evidence was explicitly recognized by superior court order, which claimants elected not to appeal, and by former RCW 50.32.080 3 which provided:
Commissioner's review procedure. After having acquired jurisdiction for review, the commissioner shall review the proceedings in question. Prior to rendering his decision, the commissioner may order the taking of additional evidence by an appeal tribunal to be made a part of the record in the case. Upon the basis of evidence submitted to the appeal tribunal and such additional evidence as the commissioner may order to be taken, the commissioner shall render his decision in writing affirming, modifying, or setting aside the decision of the appeal tribunal and shall mail his decision to the interested parties at their last known addresses.
Claimants are further precluded from now contesting any error on the facts by their decision not to challenge any of the Commissioner's factual determinations. See Anderson v. Department of Ecology, 34 Wash.App. 744, 664 P.2d 1278 (1983). There is no error of law.
Claimants' remaining arguments concern the legal interpretation of former RCW 50.44.050: 4
Benefits payable, terms and conditions. Benefits based on services in employment covered by or pursuant to this chapter shall be payable on the same terms and subject to the same conditions as compensation payable on the basis of their service subject to this title: Provided however, That benefits based on service in an instructional, research or principal administrative capacity in an educational institution shall not be paid to an individual for any week of unemployment suffered after December 31, 1977, which commences during the period between two successive academic years or during the period between two terms, successive or otherwise, or during a period of paid sabbatical leave provided in the individual's contract if the individual performs the services in the first of the academic years or terms and there is a contract or a reasonable assurance that the individual will perform services in the capacity for any educational institution in the second of the academic years or terms; or during any nonwork period occurring during a term that does not diminish the individual's salary for the term. Any employee of a common school district who is presumed to be reemployed pursuant to RCW 28A.67.070 shall be deemed to have a contract for the ensuing term.
Benefits shall not be paid based on services in any other capacity for an educational institution (other than an institution of higher education as defined in section 15 of this amendatory act) for any week of unemployment suffered after December 31, 1977, which commences during the period between two successive academic years or during the period between two terms, successive or otherwise, if the individual performs these services in the first of such academic years or terms and there is an individual contract or an individual written notice to the employee that the individual will perform services for an educational institution (other than an institution of higher education as defined in section 15 of this amendatory act) in the second of the academic years or terms; or during any nonwork period occurring during a term that does not diminish the individual's salary for the term.
(Italics ours.) The claimants' remaining contentions are: (1) that written notices are ineffective when applied to civil service employees or alternatively, that the notices actually received by the claimants did not constitute an enforceable assurance of reemployment; (2) the Blind School and Deaf School are not "educational institutions"; and (3) claimants did not provide services "for" an educational institution.
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