Atchison v. Career Service Council of State of Wyo.
| Decision Date | 17 May 1983 |
| Docket Number | No. 5714,5714 |
| Citation | 664 P.2d 18 |
| Parties | Edward M. ATCHISON, Appellant (Petitioner), v. The CAREER SERVICE COUNCIL OF the STATE OF WYOMING, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
Bert T. Ahlstrom, Jr., Cheyenne, for appellant.
Steven F. Freudenthal, Atty. Gen., and Bruce A. Salzburg, Sr. Asst. Atty. Gen., Cheyenne, for appellee.
Before RAPER, THOMAS, ROSE * and BROWN, JJ., and HANSCUM, District judge.
Appellant Edward M. Atchison was a probationary employee of the Department of Health and Social Services (Department). The Department advised appellant that he would have to vacate his position. After he did so, he filed an appeal with appellee Career Service Council (CSC). CSC ruled that appellant's appeal should be dismissed on several grounds, one of which was that appellant had no right to an appeal. The appellant filed a petition for review from this first ruling to the district court, which reversed the CSC and remanded the case for hearing. No party appealed from this district court order. After the hearing, CSC issued an order affirming the Department's action. Appellant again petitioned for review in the district court, which affirmed CSC's order. Appellant is now appealing from the district court order affirming CSC's decision to uphold appellant's separation and dismissal by the Department.
Appellant contends that CSC erred when it upheld the Department's actions, and that the district court erred when it affirmed CSC, in that there was no substantial evidence to support CSC's actions. Specifically, he argues that: (1) CSC erred in finding that the minimum qualifications which were developed for the position of developmental disabilities state program supervisor were lawful; (2) CSC erred in finding that appellant did not qualify for the position; (3) CSC erred in finding that there was an offer of a lateral transfer under applicable personnel rules; and (4) CSC erred in finding that appellant's termination was a nullity.
We affirm.
Edward M. Atchison was employed on November 1, 1977, as a developmental disabilities state program consultant by the Department. At the time appellant interviewed for the consultant position, he was advised that the consultant position would be restructured into two positions to make one position (i.e., the position responsible for adult programs) supervisory over the position which had been allocated for pre-school programs.
Sometime before December 1, 1977, a position description questionnaire was prepared by appellant and his supervisor to reallocate the consultant position held by appellant to a new position of developmental disabilities state program supervisor. Appellant completed an employee qualification statement to the Personnel Division within the Department of Administration and Fiscal Control, which was responsible for reallocating the position and setting minimum qualifications.
On February 2, 1978, the director of the Department of Health and Social Services advised appellant that he failed to qualify for the supervisor position and notified appellant that the Personnel Rules required him to vacate his position within 30 days. On the same day, the Personnel Division notified appellant that he failed to qualify for the supervisor position under the minimum standards which were established.
On February 3, 1978, appellant filed a grievance with the director of the Department and continued working as a consultant until March 3, 1978, which was the date of his separation as set forth in the February 2, 1978, letter. On or about February 23, 1978, appellant met with the director of the Department at which time the director asked appellant to remain in the Department and to accept the second supervised position in the developmental disabilities unit on the condition that appellant qualify for the second position for which the minimum qualifications had not, at that time, been established, and on the further condition that appellant abandon his grievance as to his failure to qualify for the supervisor position. Appellant refused the offer.
Appellant was paid from the date of his separation on March 3, 1978, until June 19, 1978, at which time he was terminated from state employment for performance which was "less than satisfactory." For reasons which will be made more apparent in this opinion, this termination, having been ruled a nullity, is not significant to a resolution of the issues in this appeal.
The issues in this appeal are:
1. Were the minimum qualifications established for the position of developmental disabilities state program supervisor "unlawful" under the standards for judicial review by district courts and this court, under § 9-4-114(c), W.S.1977, Cum.Supp.1982, and § 9-4-115, W.S.1977? 1
2. Were CSC's findings and conclusions that appellant did not qualify for the reallocated position of developmental disabilities state program supervisor "unlawful" under the standards for judicial review by district courts and this court, under §§ 9-4-114(c) and 9-4-115, supra?
3. Were CSC's findings and conclusions that there was an offer of lateral transfer, as mandated by the Personnel Rules, "unlawful" under the standards for judicial review by district courts and this court, under §§ 9-4-114(c) and 9-4-115, supra?
4. Were CSC's findings and conclusions that appellant's termination on June 19, 1978, was a nullity "unlawful" under the standards for judicial review by district courts and this court, under §§ 9-4-114(c) and 9-4-115, supra?
The district court and this court must determine whether CSC's findings, conclusions and order were supported by substantial evidence, thus rendering CSC's action lawful and not subject to being set aside by judicial review. The ultimate legal issue in this appeal is whether any of the agency actions with respect to appellant constitute unlawful actions under any of the subparagraphs of § 9-4-114(c)(ii), supra, 2 such that the agency action must be set aside?
The legislature has determined the scope of review of a final order of an administrative agency by the district court. Section 9-4-114(c), supra.
This court has previously determined the scope of its own review of the district court's action. We will review the agency action as though the appeal were directly to this court from the agency. This court is governed by the same rules of review as was the district court. Board of Trustees of School District No. 4, Big Horn County v. Colwell, Wyo., 611 P.2d 427 (1980), and cases cited thereunder. See also Town of Pine Bluffs v. State Board of Control of State of Wyoming, Wyo., 647 P.2d 1365 (1982).
It is clear that the Personnel Division of the Department of Administration and Fiscal Control is assigned the responsibility to determine minimum qualifications for state positions. Moreover, it is clear that the minimum qualifications for the supervisor position were adopted in accordance with the Personnel Rules (Chapters IX and X). The ostensible purpose for assigning the responsibility for all state positions to the centralized Department of Administration and Fiscal Control is to consider the state system as a whole and to achieve uniformity and fairness in salaries across state government. While input from appellant's supervisors in the Department of Health and Social Services is to be considered by the Personnel Division, it is the Personnel Division which is vested with the ultimate responsibility and obligation to prescribe the minimum requirements for the position. The procedure for reallocating a job position is set forth in the Personnel Rules (at pages 34, 41-42, and 45). A review of the record on appeal disclosed that the applicable procedures were followed.
The critical difference in the reallocated position was the requirement of three years' experience as a consultant, the position which appellant originally assumed. Concededly, appellant did not qualify as to the minimum prescribed experience requirement. The question of whether appellant had "other related * * * experience" as an alternative to the minimum experience requirement is a matter within the discretion of the agency. The testimony of Richard Paul Hodapp, Personnel Supervisor, Selection Supervisor for the Personnel Division of the Department of Administration and Fiscal Control, describes the procedures utilized in determining whether appellant qualified for the reallocated position. A review of the record discloses no basis to disagree with the agency determination that the appellant did not qualify. This court will not substitute its judgment on these matters for that of the administrative agency, nor will this court perform duties assigned by law to administrative boards. McGuire v. McGuire, Wyo., 608 P.2d 1278 (1980).
It has also been held that in the absence of fraud or illegal action, this court should not reverse the final order of CSC in which the qualifications, as established by the Personnel Division, were approved. Toavs v. State ex rel. Real Estate Commission, Wyo., 635 P.2d 1172 (1981).
Appellant next contends that the minimum qualifications for the position of the reallocated developmental disabilities state program supervisor "were absurd, [and] bore no reasonable relation to the position." Such a contention is not a basis to set aside agency action and is limited by § 9-4-114(c), supra. Nowhere in this statute is absurdity a basis or ground for setting aside an agency action.
Assuming, however, for purposes of argument that by this contention appellant means that the minimum qualifications constitute unlawful agency action in that they are "[a]rbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," § 9-4-114(c)(ii)(A), supra, then it is necessary to determine whether the minimum...
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