Alpha Kappa Lambda v. Wash. State Univ., 27374-1-III.

• Decision Date: 17 September 2009
• Docket Number: No. 27374-1-III.,27374-1-III.
• Court: Washington Court of Appeals
• Parties: ALPHA KAPPA LAMBDA FRATERNITY, Appellant, v. WASHINGTON STATE UNIVERSITY, Respondent.

216 P.3d 451

152 Wn. App. 401

ALPHA KAPPA LAMBDA FRATERNITY, Appellant, v. WASHINGTON STATE UNIVERSITY, Respondent.

No. 27374-1-III.

Court of Appeals of Washington, Division 3.

September 17, 2009.

Timothy H. Esser, Esser & Sandberg PLLC, Pullman, WA, for Appellant.

Danielle A. Hess, Washington State University Division, Pullman, WA, for Respondent.

KULIK, J.

¶ 1 Washington State University (WSU) revoked its recognition of the Alpha Kappa Lambda Fraternity (AKL) for five years upon the Student Conduct Board's (Conduct Board) finding that there had been illegal drug and alcohol use and disregard of WSU policies by AKL members. The Whitman County Superior Court upheld the decision and sanction. AKL appeals, arguing that the Conduct Board's findings are not supported by substantial evidence and that the sanction imposed is arbitrary and capricious.

¶ 2 Substantial evidence requires a sufficient quantity of evidence to persuade a fair-minded person that the decision is correct. We conclude that the Conduct Board's decision and sanction were supported by the evidence and that a preponderance of the evidence established AKL's violation. We also conclude that in light of the evidence of AKL members' distribution and use of drugs, the five-year sanction was not arbitrary or capricious. Accordingly, we affirm the decision and sanction of the WSU Conduct Board.

FACTS

¶ 3 Rules Governing Fraternities at WSU. A fraternity recognized by WSU has access to WSU privileges and services, including facility use, organizational and recruiting activities, advising, and training sponsored by various WSU offices. In addition, recognized fraternities are eligible for approval to house freshmen, who are required to live in WSU-approved housing.

¶ 4 In order to be recognized by WSU, a fraternity must sign and comply with the terms of the fraternal organization agreement (FOA). By signing the FOA, the fraternity agrees to a number of requirements, including maintenance of a 2.8 grade point average, employment of a live-in advisor, bi-annual attendance at training for chapter officers, registration of all social functions, and compliance with WSU policies and state and federal laws.

¶ 5 The FOA states that a fraternity will be held accountable for the conduct of its members and guests, and that a fraternity is expected to discipline members who violate the rules and expectations of their chapter or WSU. WSU's standards of conduct for students also address group accountability. They provide:

Sororities, fraternities, and recognized groups shall comply with the standards of conduct for students and with university policies. When a member or members of a student organization violates the standards of conduct for students, the student organization or individual members may be subject to appropriate sanctions authorized by these standards.

WAC 504-26-304.

¶ 6 As part of their bi-annual training, fraternity chapter officers receive a copy of WSU's "Group Accountability Statement," which provides additional detail regarding the circumstances under which a fraternity will be held accountable for the behavior of its members. Clerk's Papers (CP) at 41. The document states:

The conditions under which an organization maintains responsibility for violations of University policies and standards include (but are not limited to):

• the actions constituting the violation were tacitly or overtly condoned by the organization or its officers;

• the organization or its officers should have foreseen yet failed to take reasonable precautions against such actions;

• a policy or practice of the organization was responsible for a violation; or

• the behavior in question was committed by, condoned by or involved organization officers or a significant number of organization members or guests.

In determining whether an organization or its officers failed to take reasonable precautions, the University may take into account the repeated occurrence of relevant other incidents involving the organization.

CP at 41.

¶ 7 Proceedings Involving AKL. On February 5, 2008, Chris Wuthrich, associate director of WSU's office of student conduct, sent a notice of charges to M.W.,¹ the AKL chapter president. In the letter, Mr. Wuthrich expressed concern regarding the alleged drug and drug paraphernalia incidents reported to his office by the Quad Cities Drug Task Force during the fall 2007 term. The letter states that AKL allegedly violated university policies relating to the FOA and alcohol use rules.

¶ 8 The notice set forth the following violations: (1) failure to have a resident advisor (also known as a live-in advisor) physically reside in the chapter house and failure to properly register social functions; (2) furnishing alcohol to minors at chapter-sponsored social events on chapter property and at the "annex"² and the "joint;"³ and (3) use, possession, manufacture, or distribution of marijuana, narcotics, or other controlled substances on AKL property, and at the joint and the annex.

¶ 9 Also on February 5, 2008, Mr. Wuthrich sent a memorandum notifying M.W. that the AKL hearing would be combined with the hearings of five individual AKL members and affiliates, N.H. (AKL's live-in advisor, who allegedly was not living at the chapter house), E.S. (AKL's social chair), B.B. (AKL's new member educator), B.M., and J.B.

¶ 10 Student Conduct Board Hearing. The Conduct Board hearing convened on February 13, 2008. Chapter President M.W., and National Executive Director Jeremy Slivinski represented AKL. N.H. and B.M. were also present, and E.S. participated by telephone.

¶ 11 During the hearing, AKL admitted responsibility for failing to have a live-in advisor. AKL initially pleaded "not responsible" for the charge of furnishing alcohol to minors. CP at 251. Later, however, when the Conduct Board pointed out a photograph showing M.W., a minor, drinking a beer, Mr. Slivinski admitted "we've got underage drinking issues." CP at 305.

¶ 12 Evidence and testimony presented at the hearing showed drug-related activity by AKL officers, members, and guests occurring on AKL property and at AKL-sponsored events. Evidence and testimony also revealed AKL officers' involvement in, and knowledge of, the drug-related activity.

¶ 13 Detective Bryce Nebe and Detective John Patrick from the Quad Cities Drug Task Force testified about several controlled buys of cocaine. One of the buys took place at the joint and another near the annex. Detective Nebe testified as follows:

At that initial meeting, my informant was offered to purchase cocaine from [B.B.] After that was done, we set up controlled buys-first controlled buy actually took place in [B.B.'s] residence ... which is also referred to as "the Joint."

After that one was done, a second controlled buy was arranged. During that controlled buy, Detective Patrick was in a position to see [B.B.] and another unidentified white male exit the Annex, meet my confidential informant at a small parking lot and deliver two grams of cocaine. During the entire investigation, a total of four grams of cocaine was purchased.

CP at 256.

¶ 14 These controlled buys resulted in B.B.'s arrest for two counts of delivery of a controlled substance, cocaine. A search incident to arrest revealed a piece of paper in B.B.'s wallet, containing names and numbers. Based on Detective Nebe's training and experience, he believed the paper to be "crib notes." CP at 256.

¶ 15 The detective explained that people in the business of dealing with illegal narcotics often keep a running total of who owes them money. The crib note indicated that several other AKL members and officers owed B.B. money for drugs, including E.S., N.H., and C.H., who was AKL's risk manager. B.B. later admitted to Detective Nebe that J.V., another AKL member, owed him $140 for two grams of cocaine. N.H. also admitted to Detective Patrick that he owed B.B. money for marijuana, not cocaine. M.W. acknowledged that B.B. was selling drugs out of the joint.

¶ 16 Detective Patrick testified that he arrested E.S. on the front porch of the annex. The detective stated that E.S. was arrested for intimidating a witness after an altercation outside a bar. E.S. had threatened someone for speaking to the police about AKL's drug involvement. B.M., who had witnessed the fight, told police he believed the fight was about people snitching. The detective knew of E.S. because a confidential informant claimed to have bought marijuana and Adderall from E.S. in the AKL fraternity house and on the annex property in the spring of 2007.

¶ 17 Detective Patrick testified that he arrested B.M. for selling drugs after a confidential informant purchased cocaine from him and a search of B.M.'s apartment led to the discovery of significant quantities of Ritalin and Adderall, packaging material, and a digital scale with cocaine residue on it. B.M.'s roommate, J.H. (an AKL member), admitted he had purchased Ritalin and Adderall a couple weeks earlier from B.M.

¶ 18 B.M., a former AKL pledge, had been kicked out of AKL in his freshman year for selling cocaine. However, during the fall of 2007, he remained a frequent guest at AKL parties and participated in AKL events, including a special event at the annex involving his pledge class, at which he wore an AKL t-shirt created for the event. Importantly, M.W. testified that in order to get into an AKL function or party, you had to be a member of AKL or you had to know someone who was a member.

¶ 19 Detective Patrick also testified that he arrested N.H. for tampering with a witness after N.H. tried to prevent a female witness from talking to police about his drug activity. During a search incident to the arrest, police found Adderall and Ritalin in N.H.'s backpack. Text messaging records showed that N.H. told the witness's boyfriend that she needed to stop talking to police about N.H.

¶ 20 Detective Patrick interviewed N.H. following his arrest. During the...