Gogerty v. Department of Institutions

• Decision Date: 04 April 1967
• Docket Number: No. 39151,39151
• Citation: 426 P.2d 476,71 Wn.2d 1
• Court: Washington Supreme Court
• Parties: Daniel GOGERTY, Respondent, v. DEPARTMENT OF INSTITUTIONS, Petitioner.

Page 1

71 Wn.2d 1

426 P.2d 476

Daniel GOGERTY, Respondent, v.DEPARTMENT OF INSTITUTIONS, Petitioner.

No. 39151.

Supreme Court of Washington, Department 2.

April 4, 1967.

As Amended April 7, 1967.

Rehearing Denied July 3, 1967.

John J. O'Connell Atty. Gen., Paul J. Murphy, Asst. Atty. Gen., Olympia, for appellant.

Clay Nixon, Yvonne Carroll, and Anthony P. Wartnik, Seattle, for respondent.

HAMILTON, Judge.

Respondent, Daniel Gogerty, was employed by the Department of Institutions as a 'cottage parent' at the Luther Burbank School, a state facility for the care of emotionally disturbed, delinquent boys between the ages of 8 and 16.The length of time in such employment was sufficient to bring respondent within the provisions of the state civil service law.RCW 41.06.

On January 27, 1963, respondent was dismissed from his employment by the superintendent of the school for a number of stated reasons.He duly appealed from his dismissal pursuant to RCW 41.06.170(2), and was afforded a full hearing before the Washington State Personnel Board in accordance with RCW 41.06.180.Following the hearing, and upon the basis of direct and disputed testimony and evidence, the personnel board entered the following findings of fact:

That appellant physically abused one Robert Voghtman, an inmate of Luther Burbank School under appellant's care, contrary to and with full knowledge of the established policy and instructions of the Department of Institutions.(Findings I.)

That appellant verbally abused said Robert Voghtman by making derogatory and profane remarks to him in the presence of other inmates, contrary to and with full knowledge of the established policy of the Department of Institutions.(Findings II.)

That appellant failed and neglected to follow the procedures established by his superior, Mr. Harry Maur(Mower), for the entry of information in the cottage restriction sheet and cottage log relating to disciplinary action taken by appellant towards inmates under his care and supervision.(Findings III.)

That on one occasion appellant entered in the cottage log a statement severely critical and derogatory of the administration of Luther Burbank School.(Findings IV.)

That contrary to repeated counselling and instruction from his superiors, appellant engaged in improper wrestling and horseplay with the children under his care and supervision, frequently causing them to become highly emotional and unruly.(Findings V.)

Based upon these findings, the personnel board sustained respondent's dismissal.

Respondent then appealed from the findings and order of the personnel board to the Superior Court of Thurston County as provided for by RCW 41.06.200.Among the statutory grounds asserted on his appeal was the contention that all of the foregoing findings of fact were:

Contrary to a preponderance of the evidence as disclosed by the entire record.* * * RCW 41.06.200(1)(b).

In accordance with RCW 41.06.210(1), the superior court, sitting without a jury, reviewed the proceedings before the personnel board solely upon the basis of the certified transcript, with exhibits, of the hearing.In doing so, the superior court proceeded upon the theory that the above quoted portion of RCW 41.06.200(1)(b) authorized it to weigh, evaluate and determine the credibility of the witnesses appearing before the board in seeking to ascertain whether the challenged findings of the board were contrary to a preponderance of the evidence.In short, it was virtually the position of the superior court that it could, on the basis of the cold record, retry disputed issues of fact De novo.Following this course, the superior court analyzed the evidence pro and con on each of the findings and concluded that each of the findings was contrary to a preponderance of the evidence.The superior court thereupon reversed the order of the personnel board, reinstated respondent to his position, and entered judgment for his back pay.

Proceeding upon the theory that the statute--RCW 41.06.210(2)--affords no right of appeal to the Department of Institutions(or any other employing department) from a judgment of the superior court in such cases, the Department sought review by way of certiorari.In petitioning for such review, the Department limited its claim of error to a challenge of the jurisdiction and authority of the superior court to base its decision on the credibility of witnesses who appeared in person before the personnel board and whose testimony came before the superior court only in the transcribed record of the proceedings before that board.We have, in granting the Department's petition for a Writ of Certiorari, accordingly limited our review to the single issue presented by the petition.¹

In approaching the question of the nature and extent of the superior court's reviewing authority in these matters, it is necessary to bear in mind that the declared purpose of the legislature in enacting ² the civil service statute(Laws of 1961, Ch. 1,RCW 41.06) was

to establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plan, removal, discipline and welfare of its civil employees, and other incidents of state employment.* * * RCW 41.06.010.

This declared purpose is clearly within the traditional principle of the merit system of public employment, i.e. the delimitation or elimination of the spoils system in the matter of the selection, appointment, discipline and discharge of civil employees.15 Am.Jur.2d 465, Civil Service § 1.Likewise, it is clearly and fairly within the legislative power to enact, without trenching upon the executive branch of government, appropriate statutory provisions regulating the mode and manner of appointment and tenure in public employment.15 Am.Jur.2d 466;Civil Service § 2.And, it is equally true that, in ordinary contemplation, personnel policy and management, either with or without a legislatively prescribed merit system of civil employment, is essentially an administrative or executive function rather than a function historically or traditionally resting with the judicial branch of government.

Thus, in carrying out its declared purpose, and to properly administer the system, the legislature provided for the appointment of an independent 3-member personnel board, with staggered 6-year terms, composed of persons who 'have clearly demonstrated an interest and belief in the merit principle.'RCW 41.06.110.The legislature then invested this board with the power and authority to promulgate and adopt comprehensive rules and regulations, consistent with the purposes and provisions of the merit system and with the best standards of personnel administration, to govern the employment practices of the various state agencies covered by the statute.RCW 41.06.150.It would thus seem clear that the legislature, among other things, contemplated that the personnel board (a) would be devoted to the best interests of the merit system; (b) would be separate from and independent of state agencies providing employment for personnel protected by the merit system; and (c) would be or become, by virtue of background and experience on the job, especially knowledgeable in the field of civil service administration.

Against this background the legislature then provided that an employee aggrieved by disciplinary action taken by his or her employing agency could appeal from such action to the personnel board, and have the appeal heard upon the basis of written charges specifying his alleged misconduct.RCW 41.06.170.To assure a fair and comprehensive hearing before the personnel board, the legislature surrounded the proceeding with such basic due process safeguards as the right to timely notice, the requirement of sworn testimony, the right to counsel, the right to confront and cross-examine adverse witnesses, the right of compulsory process as to witnesses and documentary evidence, the requirement that the testimony be recorded, and the right, in ordinary cases, to a public or private hearing as the employee might choose.RCW 41.06.180.

With respect to the duty and function of the personnel board at the conclusion of any such hearing, the legislature stated:

Within thirty days after the conclusion of the hearing the board shall make and fully record in its permanent records findings of fact, conclusions of law when the construction of a rule, regulation or statute is in question, reasons for the action taken and its order based thereon, which shall be final subject to action by the court on appeal as hereinafter provided, at the same time sending a copy of the findings, conclusions and order by registered mail to the employing agency and to the employee at his address as given at the hearing or to a...