Krishnan v. O'Donnell

• Decision Date: 28 October 2013
• Docket Number: 68877-4-I
• Court: Washington Court of Appeals
• Parties: KANNAN KRISHNAN, Appellant, v. MATTHEW O'DONNELL, in his official capacity as the Dean of the University of Washington's College of Engineering, Respondent.

KANNAN KRISHNAN, Appellant,
v.
MATTHEW O'DONNELL, in his official capacity as the Dean of the University of Washington's College of Engineering, Respondent.

No. 68877-4-I

Court of Appeals of Washington, Division 1

October 28, 2013

UNPUBLISHED OPINION

LEACH, C.J.

Professor Kannan Krishnan appeals a trial court order denying his petition for judicial review of a University of Washington hearing panel's decision denying his reappointment to an endowed chair position. Krishnan alleges that the hearing panel failed to comply with this court's prior opinion on remand when it held a fact-finding hearing. Because Krishnan fails to show that our earlier opinion prohibited the hearing panel from taking additional evidence on remand, we affirm.

FACTS

In 2001, Krishnan accepted an appointment as a tenured and full professor of materials science and engineering at the University of Washington's College of Engineering.^[1] At that time, he also accepted an appointment to the Campbell Endowed Chair for a five-year term with the possibility of renewal.

In 2006, a three-person committee reviewed Krishnan's reappointment. Among other documents, the committee considered four review letters from individuals within the university and six letters from external reviewers. The committee issued a report stating that it did not support reappointment.

The endowed chair guidelines and expectations, which contained the relevant and permissible reappointment considerations, required the dean of the College of Engineering, Matthew O'Donnell, to base his renewal decision, in part, on the review committee's recommendation. After receiving the committee's report, O'Donnell conducted his own independent review, which included review letters from four additional experts in Krishnan's field. O'Donnell decided not to renew Krishnan's appointment as Campbell Chair "'[b]ased on the Review Committee's report and his own analysis of Krishnan's scholarly impact.'"^[2]

After the vice provost for academic personnel found no basis to reverse O'Donnell's decision, Krishnan petitioned a faculty hearing panel to review O'Donnell's decision. The faculty handbook required Krishnan to prove by a preponderance of the evidence that the decision to deny him reappointment was based on factors other than relevant and permissible considerations. The hearing panel heard testimony from one of the review committee members, Professor Sampson Jenekhe.

The panel found that the letters from external reviewers did not support the review committee's "'generally negative opinion"' of Krishnan's research and scholarship and therefore the committee's evaluation of external reviews was flawed.^[3] The panel determined that this flaw "'suggests that its recommendation was affected by irrelevant or impermissible factors.'"^[4] It also concluded that "'the Review Committee ignored much relevant input in reaching its equivocal recommendation and failed to inquire further to clarify some inconsistent information.'"^[5]

The hearing panel found that O'Donnell's decision "'would have also been affected by irrelevant or impermissible factors'" if he had accepted the review committee's recommendation "'without more.'"^[6] "Because the hearing panel found that O'Donnell conducted an independent, impartial, and fair review of Krishnan's scholarship, which formed the basis for his non-renewal decision, it concluded that Krishnan did not prove that O'Donnell's decision was based on factors other than relevant and permissible considerations."^[7] But the hearing panel also concluded that "'[b]ased on the Review Committee's report and his own analysis of Krishnan's scholarly impact, O'Donnell decided not to renew Krishnan's appointment as Campbell Chair.'"^[8] The university's president affirmed the hearing panel's decision.

The superior court dismissed Krishnan's petition to review the agency's action.^[9] Krishnan appealed to this court, claiming that substantial evidence did not support the hearing panel's decision and that the decision was arbitrary and capricious. This court concluded,

Our review of the hearing panel's decision is hindered by inconsistent fact-finding with respect to crucial issues. For example, the hearing panel found that "[b]ased on the Review Committee's report and his own analysis of Krishnan's scholarly impact, O'Donnell decided not to renew Krishnan's appointment as Campbell Chair." But the hearing panel also concluded that O'Donnell's decision was not affected by the flawed review committee report because it found that the results of O'Donnell's independent review formed the basis of his reappointment decision. Both findings cannot be true at the same time: either O'Donnell relied on both or he only based his decision on his own independent review. Here, the evidence in the record would have been sufficient to support either conclusion had the hearing panel made one, but we cannot conduct meaningful judicial review without knowing which conclusion to review.^[10]

In the last sentence of the opinion's introductory paragraph, this court stated, "Because we cannot determine from the record whether the hearing panel found that the review committee report was merely flawed or was actually affected by irrelevant or impermissible considerations, we remand this matter to the hearing panel to conduct a fact finding hearing."^[11]

The university's president denied Krishnan's request to overturn Dean O'Donnell's decision without holding a fact-finding hearing before the hearing panel. At a prehearing conference, Krishnan moved to limit evidence in the hearing to the evidence before the hearing panel when it ruled on his petition for adjudication. In denying the motion, the hearing officer explained,

[Krishnan] acknowledges that there is no direct evidence that the review committee considered impermissible or irrelevant factors, but asks the panel to infer from the misrepresentation of his record that the review committee considered such factors.. . . The panel respectfully rejects [Krishnan's] suggestion; it prefers to take testimony from the committee members to determine the factors they considered, rather than to draw inferences from the current incomplete record

The hearing panel held a fact-finding hearing on December 3, 2010. Krishnan objected to the proceeding, arguing that "the evidence that's necessary to answer the questions that the appellate court's addressed to this panel is in the record that has already been assembled and that we don't have to call anyone." The hearing proceeded despite this objection. Two members of the review committee testified who did not testify at the first hearing, and O'Donnell also testified. Those committee members, Professors Guozhong Cao and Charles Campbell, testified about the committee's interpretation of the reviewers' letters, among other matters. They stated that three of the letters sounded positive, but in fact provided negative evaluations. For example, one letter did not recommend reappointment expressly and contained "faint praise, " while Cao characterized another letter as stating that Krishnan's research output and citation record were low given the level of funding that he received as an endowed chair. Additionally, three out of four potential external reviewers declined to write letters. Krishnan produced no evidence at the hearing. On February 7, 2011, the hearing panel affirmed O'Donnell's decision.

The university's interim president denied Krishnan's subsequent appeal of the hearing panel's decision.^[12] On May 18, 2011, Krishnan filed a petition for judicial review of the interim president's decision in King County Superior Court, which the court dismissed. Krishnan appeals.

STANDARD OF REVIEW

The state Administrative Procedure Act, chapter 34.05 RCW, governs this appeal.^[13] When reviewing an administrative decision, we stand in the same position as the superior court.^[14] As such, we review the hearing panel's decision, not the superior court's ruling.^[15] "We apply a substantial evidence standard to the agency's findings of fact but review de novo its conclusions of law."^[16]Because Krishnan does not challenge the panel's findings of fact, they are verities on appeal.^[17]

Under RCW 34.05.570(3), we will reverse an administrative decision that (1) violates a constitutional provision on its face or as applied, (2) lies outside the agency's lawful authority or jurisdiction, (3) is a result of an erroneous interpretation or application of the law, (4) is not based upon substantial evidence, or (5) is arbitrary or capricious.^[18] Krishnan bears the burden of proving that the hearing panel's decision was improper.^[19]

ANALYSIS

Krishnan claims, "The hearing panel conducted an evidentiary hearing on remand without a legitimate basis for doing so and, in the process, exceeded the scope of the September 28, 2009 decision of the court of appeals and willfully disregarded extensive evidence in the record." In his brief, he states that the panel's decision on remand "failed to comply with the Court's directive, was arbitrary and capricious, and must be reversed." But at oral argument, Krishnan requested a new hearing.

First, Krishnan asserts that the law of the case doctrine "preclude[s] the Hearing Panel's revisiting the findings/conclusions that the Review Committee ignored significant uniformly positive input, that the Review Committee's generally negative opinion of Prof. Krishnan's research and scholarship was not supported by the external letters, and that the report was flawed." Second, Krishnan alleges that "footnote 19 [in this court's 2009 opinion] indicates that such evidence already in the record was sufficient to support a conclusion that if Dean O'Donnell considered the Report, his decision was...