Coupeville School Dist. No. 204 v. Vivian
| Decision Date | 27 February 1984 |
| Docket Number | No. 11419-1-I,11419-1-I |
| Citation | 677 P.2d 192,36 Wn.App. 728 |
| Parties | , 16 Ed. Law Rep. 637 COUPEVILLE SCHOOL DISTRICT NO. 204, a Washington Municipal corporation, Respondent, v. Archie W. VIVIAN, Appellant. |
| Court | Washington Court of Appeals |
Cogdill, Deno & Millikan, W. Mitchell Cogdill, Kent Millikan, Everett, for appellant.
Anderson, Hunter, Dewell, Baker & Collins, G. Douglas Ferguson, Everett, for respondent.
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Archie W. Vivian appeals from a judgment affirming his discharge by the Coupeville School District and reversing the decision of a hearing officer.
Vivian was discharged from his employment with the school district as a secondary school teacher and boy's basketball coach because of an incident involving two 16-year-old girls. Vivian requested a hearing on the matter. Following the hearing, the hearing officer, in an order dated May 1, 1981, determined that the District did not have sufficient cause to discharge Vivian and restored him to his teaching position and awarded reasonable attorneys fees.
The Board of Directors of the District voted to seek judicial review of the findings of fact, conclusions of law and final decision entered by the hearing officer. On May 29, 1981, the District filed its petition for Writ of Certiorari. Thereafter Vivian filed a motion to dismiss the writ on the grounds that it was not timely filed. After having initially granted Vivian's motion to dismiss, the superior court reconsidered its prior ruling and determined the petition was timely filed. The court later entered an order granting the District's motion for summary judgment because there was no genuine issue of material fact and denying Vivian's cross-motion for summary judgment. Thereafter the court awarded judgment in favor of the District and dismissed Vivian's appeal. Vivian appeals from this judgment.
The first issue is whether the District's petition for certiorari was timely filed. No specific statute provides for judicial review by a school district of an adverse ruling in a teacher discipline proceeding. Review is, however, available to school districts by statutory writ of certiorari as authorized by RCW 7.16.040. Kelso Sch. Dist. 453 v. Howell, 27 Wash.App. 698, 700-01, 621 P.2d 162 (1980). No statute or rule states the time in which an application for writ of certiorari must be filed. State ex rel. L.L. Buchanan & Co. v. Washington Pub. Serv. Comm'n, 39 Wash.2d 706, 709, 237 P.2d 1024 (1951). Consequently, courts have long held that a writ of certiorari should be applied for within a reasonable time after the act complained of has been committed. State ex rel. Home Tel. & Tel. Co. v. Kuykendall, 134 Wash. 620, 622, 236 P. 99 (1925). To help determine the reasonableness of the time within which the writ must be filed, courts have applied the following rule:
[W]here the remedy by appeal would not be adequate, or where no appeal is provided, an application for a writ of review must be made at least within the time for appeal.
State ex rel. Clark v. Superior Court, 167 Wash. 481, 484, 10 P.2d 233 (1932). In this case, the most analogous time for appeal is found in RCW 28A.58.460, a statute governing the appeal by school district employees of hearings concerning adverse changes in their status. That statute provides that an employee must appeal within 30 days. By analogy, the reasonable time in which the District had a right to make an application for a writ of certiorari would be the same as that fixed for any appeal by an employee of the District pursuant to RCW 28A.58.460.
The Court of Appeals decision in Vance v. Seattle, 18 Wash.App. 418, 569 P.2d 1194 (1977), cited by Vivian in his brief, is distinguishable on its facts. Unlike this case, in Vance there was absolutely no statute or rule specifically providing either party with the right of direct appeal from the adverse ruling. Inasmuch as the District petitioned for certiorari within the 30 day time period, the superior court did not err in denying Vivian's motion to dismiss because the writ of certiorari was not timely filed.
Review by certiorari was authorized by RCW 7.16.040. The questions to be determined by the court were:
(3) Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.
(4) Whether there was any competent proof of all the facts necessary to be proved, in order to authorize the making of the determination.
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(5) If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence thereof, rendered in an action in a court, triable by a jury, as would be set aside by the court, as against the weight of evidence.
RCW 7.16.120.
An inferior tribunal in making its decision violates a rule of law if it fails to find the ultimate material facts necessary to sustain its conclusion and determination, Andrew v. King County, 21 Wash.App. 566, 574, 586 P.2d 509 (1978), and the decision of a hearing officer may be set aside if the officer is found to have violated constitutional principles, exceeded his statutory jurisdiction or committed clear error of law, or his decision is found to be arbitrary and capricious. Kelso Sch. Dist. 453 v. Howell, supra. The test for competency and sufficiency of the evidence expressed in the last two sections of the certiorari statute, RCW 7.16.120(4) and (5), is essentially the same as that for action which is arbitrary and capricious. Andrew v. King County, supra.
We turn, then, to the decision of the hearing officer in this case. The notice of probable cause for discharge dated May 12, 1980, set forth the following reasons, among others for its issuance:
1. Supplying or permitting two minors, under the age of 21 years, to consume liquor on your premises or premises under your control, on or about December 27, 1979, knowing said minors to be students, potential students or former students of the District contrary to RCW 66.44.270; and/or
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4. In addition to and taken with any of the foregoing causes, your exercise of extremely poor and unprofessional judgment and/or conduct, on or about December 27, 1979, by meeting two (2) minor females, under the age of 17 years, on the school premises and then driving said minors to the privacy of your home and entertaining them both, unchaperoned, while the girls were under the influence of intoxicants, and allowing at least one of them to ingest or imbibe additional intoxicants until she became unconscious and ill, while in your care, and your failure to provide adequate care, assistance, guidance, direction and supervision contrary to RCW 28A.05.010, and accepted standards of professional behavior ...
At the conclusion of the hearing the officer made certain findings of fact, a portion of which is as follows:
5. The following events occurred on December 27, 1979:
A. At about 3:30 to 4:00 p.m., Sondra [B.], a student in one of Petitioner's classes, and Sherri [E.], a former student of Petitioner, both of whom were sixteen years of age at the time, came to Respondent School District coach's office at the new gym to see Petitioner.
B. At that time, Petitioner had just concluded basketball practice in preparation for a basketball game at another school district the following day.
C. The two girls were carrying a large bag which contained a fifth of Jim Beam whiskey. The two girls intentionally carried the bottle in a large bag so that Petitioner would not know that they were carrying a bottle of liquor.
D. The two girls asked Petitioner if they could go to his house where they understood him to have a pool table and play pool. Petitioner consented to this request and drove the two girls in his car to his house, arriving there sometime between 4:00 and 4:30 p.m E. Once at the Petitioner's house, the girls gave him the bottle of whiskey as a Christmas gift.
F. Petitioner told the girls he could not drink with them but, at their urging, he did have a drink from the bottle. Shortly thereafter, the girls started pouring themselves drinks from the bottle. Although Petitioner saw them do this he did not in any way attempt to stop them.
G. Petitioner and the two girls stayed at his house for approximately four and one-half hours talking and playing pool. During that period of time, Petitioner saw the girls refilling their glasses with whiskey at least twice and the entire bottle of whiskey was consumed. Petitioner also saw at least one of the two girls drink beer which he had in the refrigerator and again made no attempt to stop her from doing this.
H. Petitioner did observe that Sherri [E.] was becoming intoxicated and, in fact, warned her against spilling her drink on the pool table. Sometime during the evening [E.] did become intoxicated and, in fact, passed out on one of the beds in the bedroom.
I. Sometime during the [evening], Petitioner discovered that [E.] had passed out on the bed in the bedroom. During the course of his attempting to wake her he found himself in a situation in which [E.] vomited, wet the bed and removed her clothing. After about fifteen or twenty minutes, Petitioner was able to convince [E.] to get [d]ressed and they joined [B.], who had stayed in the rec room where the pool table was. During this period of time, Petitioner was attempting to get [E.] ready to leave and cleaning the mess made by [E.]'s vomiting and wetting the bed.
J. Thereafter, Petitioner drove [B.] and [E.] to the [B.] home where he left them at the front door. From [B.]'s house, [E.] called her mother, ... and told her that she had been raped but she would not tell her mother who had done it. As a result [E.'s mother] informed the police, came to [B.]'s home to pick up her daughter, [E.], and took her to the hospital for an examination.
K. Petitioner did not engage in any sexual misconduct with either girl.
In addition the officer found as...
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