Francisco v. Board of Directors of Bellevue Public Schools, Dist. No. 405

• Decision Date: 05 August 1974
• Docket Number: No. 2026--I,2026--I
• Court: Washington Court of Appeals
• Parties: Randy Lee FRANCISCO, Respondent, v. BOARD OF DIRECTORS OF the BELLEVUE PUBLIC SCHOOLS, DISTRICT NO. 405, Appellant.

Page 763

11 Wn.App. 763

525 P.2d 278

Randy Lee FRANCISCO, Respondent, v. BOARD OF DIRECTORS OF the BELLEVUE PUBLIC SCHOOLS, DISTRICT NO. 405, Appellant.

No. 2026--I.

Court of Appeals of Washington, Division 1.

Aug. 5, 1974.

As Changed Aug. 14, 1974.

Rehearing Denied Sept. 25, 1974.

Review Denied Nov. 19, 1974.

Siderius, Lonergan & Crowley, C. R. Lonergan, Jr., Seattle, for appellant.

Cogdill & Deno, W. Mitchell Cogdill, Everett, for respondent.

JAMES, Judge.

Respondent Randy Lee Francisco was employed by appellant Board of Directors of the Bellevue Public Schools, District No. 405 for the 1970--1971 school year pursuant to RCW 28A.58.100 and RCW 28A.67.070. These statutes require that all common school teachers hold an 'effective teacher's certificate' and that they be 'employed by . . . a written contract . . . limited to a term of not more than one year.'

On October 23, 1970, Francisco was given written notice by the board that it had determined that 'there is probable cause which is sufficient for your discharge as a teacher with the Bellevue School District.' The notice, which specified three grounds for the decision to discharge, advised Francisco as required by RCW 28A.58.450 of his right to a hearing before the board to determine 'whether or not there is sufficient cause or causes for his . . . discharge . . .'

RCW 28A.58.450 requires that before discharge a teacher must be given a written notice specifying 'the probable cause or causes for such action' and that a decision to discharge a teacher

shall be based solely upon the cause or causes for discharge specified in the notice of probable cause to the employee and established by a preponderance of the evidence at the hearing to be sufficient cause or causes for discharge or other adverse action against his Contract status.

(Italics ours.) The 'hearing' contemplated by the statute is held by the board of directors of the school district, unless pursuant to RCW 28A.58.515, the teacher elects to appeal the board's notification of probable cause for discharge 'directly to the superior court of the county in which the school district is located . . .'

A teacher who has requested an initial hearing before the board may appeal an adverse decision of the board to the superior court pursuant to RCW 28A.58.460. RCW 28A.58.480 provides that '(a)ny appeal to the superior court by an employee shall be heard de novo by the superior court.'

Francisco elected to request a hearing before the board. A board hearing was held and thereafter, as required by RCW 28A.58.450, Francisco was notified in writing of the board's final decision to 'discharge (him) from (his) Contract as a teacher with the Bellevue School District.' (Italics ours.)

Francisco thereafter perfected his appeal to the superior court. The trial judge rejected the board's contention that her function should be limited to a determination as to whether or not a preponderance of the evidence considered by the board supported its decision. She determined that RCW 28A.58.480 required a 'de novo' hearing in the full and literal sense of the phrase. She admitted into evidence the complete transcript of the board hearing and permitted the calling of additional witnesses and the admission of additional exhibits. The trial judge made 36 findings of fact and concluded that the charges against Francisco had not been 'established by a preponderance of the evidence' as required by RCW 28A.58.450. Thereafter, a judgment appropriate to her conclusion was entered.

On appeal to us, the board's attack upon the trial court's ruling is twofold. The board first contends that the 'de novo' requirement of RCW 28A.58.480 contemplates a limited review of the record of the hearing before the board to determine if the evidence considered by the board supports its ultimate ruling. Similar contentions have been rejected by our Supreme Court and by both Divisions 2 and 3 of the Court of Appeals. Hattrick v. North Kitsap School Dist. 400, 81 Wash.2d 668, 504 P.2d 302 (1972); Denton v. South Kitsap School Dist. 402, 10 Wash.App. 69, 516 P.2d 1080 (1973); Reagan v. Board of Directors, 4 Wash.App. 279, 480 P.2d 807 (1971). We also agree that the legislative intent is clear that a discharged teacher have a full de novo review on the merits in a new trial in superior court.

The board's principal argument, however, is that if by the enactment of RCW 28A.58.480 the legislature intended to provide a full judicial review on the merits, the statute is unconstitutional. This question was not considered in any of the three cited cases.

The board principally relies upon two decisions of our Supreme Court. The first is Household Finance Corp. v. State, 40 Wash.2d 451, 244 P.2d 260 (1952). Household Finance concerns the administration of Washington's Small Loan Act, RCW 31.08, and specifically RCW 31.08.260 which provides for an appeal to the Thurston County Superior Court from an order of the supervisor of banking denying his application for or revoking or suspending a license to engage in the business of making 'small' loans. The critical sentence of RCW 31.08.260 is, 'A trial shall be had in said superior court De novo.' (Italics ours.)

In summary, the holding of Household Finance, 40 Wash.2d at 454, 244 P.2d 260 is that the licensing and regulation of small loan companies is an exercise of an Administrative function of government and therefore Judicially reviewable only to determine 'whether or not the supervisor had acted arbitrarily, capriciously, or contrary to law.' The court said at 456, 244 P.2d at 263:

We are constrained to hold that the portion of Rem.Supp.1941, § 8371--23, which purports to vest in the superior court for Thurston county the right to reverse on a trial De novo a decision of the supervisor with reference to the granting of such a license and, in effect, to substitute its judgment for that of the supervisor as to whether or not a license should issue, is Unconstitutional as an attempt to vest a nonjudicial power in a constitutionally created court. We must reject this expansion of the court's power as firmly as we would resist a reduction of its rightful authority.

(Italics ours.)

The second case relied upon by the board is State ex rel. Hood v. State Personnel Bd., 82 Wash.2d 396, 511 P.2d 52 (1973). Hood concerns the administration of the State Civil Service Law, RCW 41.06, and specifically RCW 41.06.200 which provides that a state employee who has been dismissed may appeal to the Thurston County Superior Court from the state personnel board's order approving his dismissal. RCW 41.06.210 provides that the review in superior court shall be upon the 'basis' of the record of the hearing before the personnel board and that the court may reverse the board's ruling if the employee's objection is 'well taken on any of the grounds' asserted in his appeal. Among the grounds for appeal permitted by RCW 41.06.200 is that the board's ruling is '(c)ontrary to a preponderance of the evidence as disclosed by the entire record . ..'

In Gogerty v. Department of Institutions, 71 Wash.2d 1, 8, 426 P.2d 476, 480 (1967), it is held that the judicial review afforded a state civil service employee by RCW 41.06.200 is not a de novo hearing and 'that the personnel board's findings of fact on disputed issues . . . carry into the superior court a prima facie presumption of correctness, . . .'

In essence, we are persuaded that the legislature envisioned the application of a rule somewhat akin to the 'substantial evidence rule', and a judicial review somewhat analogous to this court's review of the factual findings of a superior court. Any broader or more inclusive judicial review, embracing or approaching the concept of a de novo review of factual disputes, would have the tendency to minimize the administrative function and expertise of the personnel board, render futile the statutory requirement that the board make findings of fact, and thrust the superior court into the role of a super personnel board.

Gogerty v. Department of Institutions, Supra at 9, 426 P.2d at 480.

In Hood, an employee appealed his dismissal by the liquor control board to the personnel board which, after a hearing on the merits, reinstated the employee. Because RCW 41.06.200 provides only for an appeal by a state employee, the liquor control board sought judicial review in superior court by way of certiorari. The trial court heard the case on its merits and affirmed the personnel board's order of reinstatement. The case reached the Supreme Court by way of review of a decision of the Court of Appeals, 6 Wash.App. 872, 497 P.2d 187 (1972). The Supreme Court held 82 Wash.2d on page 403, 511 P.2d on page 56: 'that the trial court lacked jurisdiction to issue the writ of certiorari and thus had no power to decide the matter on its merits.' The rationale for the court's ruling on pages 400, 401, 511 P.2d on pages 54, 55 is that

the Personnel Board's function in hearing and deciding appeals of employees, who have been dismissed for cause by their employing agencies, is a nonjudicial function

and

(t)hat being the case, the Superior Court lacked statutory jurisdiction to issue the writ of certiorari provided by RCW 7.16.040. ¹

The court concludes that, absent 'statutory jurisdiction,' the trial court could entertain an appeal by the liquor control board only by the exercise of its inherent constitutional power to determine whether the personnel board acted illegally or engaged in arbitrary and capricious action violative of fundamental rights. The court does not consider whether the scope of an employee's 'statutory' right of appeal is similarly limited by the rule of Household Finance v State, Supra. But as we have pointed out, Gogerty v. Department of Institutions, Supra holds that a civil service employee's judicial review is not de novo.

The rulings we have discussed pose a difficult problem. Can the school board's entertainment of an appeal by...