Knudsen v. Wash. State Executive Ethics Bd.
| Decision Date | 13 July 2010 |
| Docket Number | No. 26680-0-III.,26680-0-III. |
| Citation | 156 Wash.App. 852,235 P.3d 835 |
| Parties | Teresa KNUDSEN, an individual, Appellant,v.WASHINGTON STATE EXECUTIVE ETHICS BOARD, an agency of the State of Washington, Respondent. |
| Court | Washington Court of Appeals |
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Teresa Knudsen (Appearing Pro Se), Spokane, WA, for Appellant.
Linda Marie Moran, Attorney at Law, University Place, WA, M.B. Newberry, Office of the Atty. General, Government Compliance and Enforcement, Olympia, WA, for Respondent.
¶ 1 Teresa Knudsen, a college teacher, sent an e-mail from a Spokane Community College (SCC) computer encouraging recipients to urge state legislators to approve two bills that would provide tenure-like protections for part-time college teachers. After a hearing, the Washington State Executive Ethics Board (Board) concluded that Ms. Knudsen violated RCW 42.52.160(1), WAC 292-110-010, and RCW 42.17.190 by her use of state resources for lobbying. On appeal to this court, Ms. Knudsen contends her activities did not violate the prohibitions against using state resources for private benefit, or against lobbying, and the Board's action was unconstitutional. From our de novo review of the Board's order, we conclude that the Board properly determined that Ms. Knudsen violated the statutes prohibiting the use of state resources for private gain and lobbying. And we decline to consider Ms. Knudsen's assertion of constitutional claims because she fails to provide any citation of authority to support them. We affirm the Board's order.
¶ 2 The Board entered findings of fact and conclusions of law. We review the Board's record and its findings of fact and conclusions of law. Valentine v. Dep't of Licensing, 77 Wash.App. 838, 843-44, 894 P.2d 1352 (1995). Here, Ms. Knudsen challenges the decision of the superior court, but has not challenged the findings of the Board. Specifically, she has failed to challenge the Board's findings in her assignments of error. Unchallenged findings are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 808, 828 P.2d 549 (1992). The following facts are based primarily on the Board's findings of fact.
¶ 3 On February 25, 2005, Ms. Knudsen, a college teacher, sent an e-mail from a SCC computer encouraging recipients to urge state legislators to approve two bills that would provide tenure-like protections for part-time college teachers. At the time, Ms. Knudsen was a state employee employed as an adjunct academic adviser at SCC, teaching courses in the English Department. Ms. Knudsen taught English courses until 2005 when her employment ended.
¶ 4 Ms. Knudsen admitted that she sent an e-mail from her SCC computer on February 25, 2005, to “ ‘SCC Faculty,’ ” “ ‘SFCC Faculty,’ ” and “ ‘IEL-Corrections Ed.’ ” Administrative Record (AR) at 194. This e-mail concerned legislation pending before the Washington legislature regarding part-time public employees. Ms. Knudsen admitted that several SCC faculty responded to the e-mail, either in person or by e-mail.
¶ 5 In its findings, the Board quotes this e-mail, in part:
¶ 6 SCC had an “EMPLOYEE ACCEPTABLE USE GUIDELINES FOR CCS TECHNOLOGY RESOURCES,” effective November 24, 1998. AR at 22. The policy allows for occasional and limited personal use of SCC resources when there is no cost to the district, the use does not interfere with the employee's official duties, and the use otherwise complies with all applicable laws and regulations. The policy specifically states that the technology resources shall not be used for commercial, illegal, or political purposes.
¶ 7 Ms. Knudsen did not obtain prior approval before sending the February 25, 2005 e-mail. SCC sent Ms. Knudsen an e-mail reminding her that the de minimis use exception did not apply to political or lobbying activities unrelated to the employee's official duties. The administration informed Ms. Knudsen that the e-mail she sent constituted lobbying that was unrelated to her official duties. The administration asked Ms. Knudsen whether she agreed. She did not. However, Ms. Knudsen presented no evidence that lobbying the legislature was within the scope of her official duties as an English teacher at SCC.
¶ 8 The Board found reasonable cause to believe Ms. Knudsen had violated the ethics in public service act, chapter 42.52 RCW, and scheduled a hearing. During this hearing, Ms. Knudsen admitted that on February 25, 2005, she used a state computer, or state-provided computer, or state-provided Internet access at SCC to send an e-mail message regarding community college faculty salaries and retirement plan funding. She sent the e-mail to “SCC Faculty; SFCC Faculty; IEL-Corrections Ed” so that it would go to all faculty members who had e-mail at the community colleges in Spokane. AR at 18. Ms. Knudsen asked recipients to use their personal, non-state mail to contact legislators about two bills that would provide tenure-like protections for part-time teachers. She included a sample letter that recipients could tailor to their needs.
¶ 9 At the hearing before the Board on January 12, 2007, Ms. Knudsen argued that the e-mail constituted de minimis use under WAC 292-110-010, and that she did not commit a knowing violation of RCW 42.52.160(1). She also asserted that she sent the e-mail on behalf of her union. But Ms. Knudsen also stated, “[the union] had not told the faculty at all about the legislation mentioned in my e-mail and [was] not lobbying the state legislature regarding the legislation mentioned in my e-mail.” AR at 67.
¶ 10 The Board concluded that a preponderance of evidence proved that Ms. Knudsen violated RCW 42.52.160(1) and WAC 292-110-010 in the preparation and distribution of the February 25, 2005 e-mail from her SCC computer. The Board also concluded that the e-mail constituted unauthorized lobbying under RCW 42.17.190 and was intended for the private benefit or gain of Ms. Knudsen or others. The Board determined that chapter 42.52 RCW and WAC 292-110-010 did not support Ms. Knudsen's position, and that her other arguments did not sanction her activity.
¶ 11 Ms. Knudsen appealed to the superior court, which affirmed the Board's decision. This appeal follows.
¶ 12 Judicial review of the Board's final order is governed by chapter 34.05 RCW, the Administrative Procedure Act. RCW 42.52.440. This court stands in the same position as the superior court, reviewing the Board's order independently of the superior court review. RCW 34.05.510. In reviewing an administrative action, we apply the standards of the Administrative Procedure Act directly to the record before the Board. See Valentine, 77 Wash.App. at 843, 894 P.2d 1352. “Because [the Court of Appeals] review[s] the same record on the same basis as the Superior Court, findings of fact and conclusions of law entered by the Superior Court are superfluous.” Id. at 844, 894 P.2d 1352.
¶ 13 Under RCW 34.05.570(3), Ms. Knudsen argues that the Board erroneously interpreted or applied the law, that the law is unconstitutional as applied to her activities, and that SCC acted in an arbitrary or capricious manner. When reviewing for an error of law, the court engages in de novo review of the Board's legal conclusions. Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982). The court must give substantial weight to the Board's interpretation of the Administrative Procedure Act. Ames v. Dep't of Health Med. Quality Assurance Comm'n, 166 Wash.2d 255, 261, 208 P.3d 549 (2009).
¶ 14 When considering a constitutional question, the court engages in a de novo review. Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wash.2d 305, 311, 884 P.2d 920 (1994). A “statute is presumed constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt.” Tunstall ex rel. Tunstall v. Bergeson, 141 Wash.2d 201, 220, 5 P.3d 691 (2000). The same standards apply when the constitutionality of a rule is challenged. Longview Fibre Co. v. Dep't of Ecology, 89 Wash.App. 627, 632-33, 949 P.2d 851 (1998).
¶ 15 E-Mail. The ethics in public service act, chapter 42.52 RCW, was designed to prevent the use of publicly-supplied resources by those in public office or employment for private benefit or gain. See RCW 42.52.900. To achieve this goal, the legislature prohibited the personal use of state resources for private benefit or gain. RCW 42.52.160(1) reads:
No state officer or state employee may employ or use any person, money, or property under the officer's or employee's official control or direction, or in his or her official custody, for the private benefit or gain of the officer, employee, or another.
¶ 16 The legislature authorized the Board to adopt rules providing exceptions for de minimis private use if the activity engaged in was appropriate for the workplace. RCW 42.52.160(3). Accordingly, the Board adopted WAC 292-110-010 which allows de minimis private use of state resources for some activities, while prohibiting private use of state resources for other activities. Significantly, former WAC 292-110-010 (2002) prohibits private use of state resources for lobbying:
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