Krishnan v. O'Donnell
Decision Date | 28 October 2013 |
Docket Number | NO. 68877-4-I,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. |
UNPUBLISHED OPINION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'sCollege 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 wasbased 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 onfactors 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.
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 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 thereview 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 substantialevidence, 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 affected by impermissible or irrelevant factors." Third, Krishnan contends that the hearingofficer "focused on the last sentence in the first paragraph of the September 28, 2009 decision as justification for conducting a fact-finding evidentiary...
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