Fuller v. Employment Sec. Dept. of State of Wash.

• Decision Date: 19 October 1988
• Docket Number: No. 11170-5-II,11170-5-II
• Citation: 762 P.2d 367,52 Wn.App. 603
• Court: Washington Court of Appeals
• Parties: Stephanie FULLER, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE OF WASHINGTON, Respondent.

Page 603

52 Wn.App. 603

762 P.2d 367

Stephanie FULLER, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE OF WASHINGTON, Respondent.

No. 11170-5-II.

Court of Appeals of Washington,

Division 2.

Oct. 19, 1988.

Paul J. Lyon, Walla Walla, for appellant.

Kenneth O. Eikenberry, Atty. Gen., Pat L. DeMarco, Asst. Atty. Gen., Olympia, for respondent.

PETRICH, Judge.

After an unsuccessful attempt at the Superior Court level, Stephanie Fuller appeals the decision of the Personnel Appeals Board (Board) affirming her discharge by the Employment Security Department. She claims that the Board's decision was arbitrary and capricious and was contrary to law. She also claims that she was not provided a pretermination hearing required by Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and thus denied property and liberty interests without due process of law. We affirm.

On May 17, 1985, Stephanie Fuller was discharged from her job as a Job Service Interviewer with the Employment Security Department. Her discharge was based on her admission that she had falsified job placement orders between December 1984 and March 1985. Fuller first admitted falsifying placement orders when interviewed by a claims investigator on April 25, 1985. She signed a sworn statement prepared by the claims investigator that included the admission. Four days later, on April 29, 1985, Fuller repeated her admission in a meeting with the Department's regional director, job service center manager, and operations manager. At this meeting Fuller was informed that, based on her admission, she was being placed on administrative leave with pay pending final termination. She was given an opportunity to submit additional information regarding her conduct; none was forthcoming. Fuller received a letter of termination dated May 1, 1985, notifying her of her suspension without pay pending final termination, which occurred on May 17, 1985.

The standard of review that governs this case is prescribed by RCW 41.64.130. Ballinger v. Department of Social & Health Services, 104 Wash.2d 323, 328, 705 P.2d 249 (1985). RCW 41.64.130 provides for appeals from decisions of the Board which were founded on or contained an error of law, contrary to a preponderance of the evidence, materially affected by unlawful procedure, in violation of the constitution, or arbitrary or capricious. This court reviews the decision of the Board de novo on the record made at the board level, applying the same standard of review as the superior court. Adams v. Department of Social and Health Services, 38 Wash.App. 13, 14, 683 P.2d 1133 (1984); Trucano v. Department of Labor & Indus., 36 Wash.App. 758, 761, 677 P.2d 770 (1984); Wahler v. Department of Social & Health Services, 20 Wash.App. 571, 576, 582 P.2d 534 (1978).

Fuller asserts that the findings are arbitrary and capricious and founded on an error of law. However, she fails to assign error separately to each allegedly improper finding of fact. RAP 10.3(g) and 10.4(c).

As a general rule, unchallenged findings of the trial court will be treated by this court as verities on appeal, and review will be limited to determining whether the findings support the conclusions of law. In re Santore, 28 Wash.App. 319, 323, 623 P.2d 702, review denied, 95 Wash.2d 1019 (1981); McIntyre v. Fort Vancouver Plywood Co., Inc., 24 Wash.App. 120, 123, 600 P.2d 619 (1979). RAP 1.2 permits liberal interpretation of these rules and allows appellate review in spite of technical violations. Thus, appellate review has been granted where proper assignment of error is lacking but the nature of the challenge is clear and the challenged finding is set forth in the party's brief. Green River Community College Dist. 10 v. Personnel Bd., 107 Wash.2d 427, 431, 730 P.2d 653 (1986); Daughtry v. Jet Aeration, Co., 91 Wash.2d 704, 710, 592 P.2d 631 (1979). Whether these rules apply to administrative findings has not been directly resolved. However, in Green River, the Supreme Court, by addressing a failure to assign error to findings of the Higher Education Personnel Board, implied that the pertinent Rules of Appellate Procedure apply to the findings of administrative agencies. See also Hitchcock v. Department of Retirement Systems, 39 Wash.App. 67, 72, 692 P.2d 834 (1984) (failure to designate a specific finding as error in appeal from agency determination did not bar review under RAP 10.3(b) where nature of challenge was clear and challenge to the finding was extensively discussed in the brief). Similarly, we face a failure to assign error to the findings of an administrative agency, the Personnel Appeals Board. However, unlike the parties in Green River and Hitchcock, Fuller has not set forth the challenged findings in her brief. We hold that where, as here, a party fails to assign error properly to the findings of an administrative agency under RAP 10.3(g) and 10.4(c), such findings will be treated as verities on appeal. We will thus limit our review to determine whether the findings support the conclusions of law.

The unchallenged findings reveal the following: (1) Fuller had 8 years of experience in placement activity, was familiar with the definition of placement, and had manuals available for her use; (2) she admitted to a claims investigator she knowingly falsified placement orders; (3) she signed a sworn statement that recites her admission; and (4) she repeated her admission in a meeting with her superiors. These findings support the Board's conclusion that Fuller's actions were willful violations of published agency rules and constituted malfeasance and gross misconduct. ¹

The verities also clearly establish that Fuller's due process rights were protected as required by Cleveland Bd. of Educ. v. Loudermill, supra. Loudermill requires that an employee who has a property interest in his continued employment be afforded due process prior to being deprived of that interest. Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493. Fuller was a classified public employee who could be fired only for cause, pursuant to WAC 354-34-010. She thus possessed a constitutionally protected property interest in her continued employment. See Danielson v. Seattle, 108 Wash.2d 788, 796-97, 742 P.2d 717 (1987). The due process contemplated by Loudermill requires a pretermination hearing providing oral or written notice of the charges against the employee, an explanation of the employer's...