Ollie v. Highland School Dist. No. 203

• Decision Date: 18 February 1988
• Docket Number: No. 7906-6-III
• Citation: Ollie v. Highland School Dist. No. 203, 749 P.2d 757, 50 Wn.App. 639 (Wash. App. 1988)
• Parties: , 45 Ed. Law Rep. 273, 3 IER Cases 167 Renee C. OLLIE and the Public School Employees of Highland, an affiliate of the Public School Employees of Washington, Appellants, v. HIGHLAND SCHOOL DISTRICT NUMBER 203, Respondent.
• Court: Washington Court of Appeals

Page 639

50 Wn.App. 639

749 P.2d 757, 45 Ed. Law Rep. 273, 3

IER Cases 167

Renee C. OLLIE and the Public School Employees of Highland an affiliate of the Public School Employees of Washington, Appellants, v. HIGHLAND SCHOOL DISTRICT NUMBER 203, Respondent.

No. 7906-6-III.

Court of Appeals of Washington Division 3, Panel Four.

Feb. 18, 1988.

Eric Nordlof, Public School Employee's of Washington, Pacific, for appellants.

Michael W. Leavitt, Gavin, Robinson, Kendrick, Redman & Pratt, Yakima, for respondent.

McINTURFF, Chief Judge.

The superior court found Mrs. Ollie had been terminated for just cause. We reverse and remand for a new trial.

On June 7, 1985, Renee C. Ollie was terminated from her employment as a library aide in Tieton Middle School, Highland School District 203. Mrs. Ollie was covered by a collective bargaining agreement which provided an employee could be disciplined or discharged for "justifiable cause." Mrs. Ollie filed a grievance for wrongful discharge pursuant to the collective bargaining agreement. The school board denied Mrs. Ollie's grievance.

The trial court, in a de novo review, found Mrs. Ollie was terminated for a number of factors including improper and negative attitude toward staff, degrading the certificated staff in front of students, disobeying district orders, improperly selecting library materials, improper use of work time and improperly keeping a logbook on the activities of other school district personnel. The trial court further found Mrs. Ollie's conduct could not reasonably be corrected.

Prior to the 1984-85 school year Mrs. Ollie received favorable evaluations; but her evaluations for the 1984-85 school year were not favorable. On June 6, 1985, Mr. Jaeger, the Principal of Tieton Middle School, confronted Mrs. Ollie and asked her two questions: "Did you keep a logbook?" and "Have you gotten into any of my confidential information?" Mrs. Ollie admitted keeping a logbook, she denied getting into any confidential information.

Mrs. Ollie was presented with the evaluations and given a letter terminating her as of 4 p.m. June 7, 1985. The letter stated she was being terminated upon review of the annual evaluations by Mrs. Jordan, the school's librarian, and Mr. Jaeger; it stated:

As an aide to the instructional staff at Tieton Middle School, your role needed to be that of supporting, sustaining, aiding, and maintaining a positive atmosphere for the students and staff to work. Much of what has been observed and reported by this staff and by your supervisors indicate that your attitude, behavior and involvement has resulted in just the opposite atmosphere being generated. The staff morale and your effectiveness in working with the certificated staff in the future has seriously been jeopardized.

Before the trial, Mrs. Ollie requested production of performance evaluations of other employees or work records of other employees. The school district refused to produce the records and a motion to compel discovery was denied. During trial a subpoena requesting certain personnel records of employees other than Mrs. Ollie was quashed.

Under these circumstances, are personnel records of other employees discoverable?

The court denied Mrs. Ollie's motion to compel discovery of written personnel/staff evaluations prepared by Mr. Jaeger and Mrs. Jordan during the periods of their employment with the school district. ¹ At trial the court quashed a subpoena duces tecum requesting production of all Highland School District's personnel records where an individual has been disciplined or admonished for job performance or misconduct in the past 5 years.

Highland School District argues the denial of the motion to compel was final since no appeal was taken from the commissioner's ruling denying review. Gould v. Mutual Life Ins. Co., 37 Wash.App. 756, 683 P.2d 207 (1984). Gould interprets RAP 17.7, which deals with procedures to object to a ruling of a commissioner, hence, it is not applicable. Generally, denial of discretionary review does not preclude later review. RAP 2.3(c).

Mrs. Ollie contends the records should be discoverable under CR 26(b)(1) to permit proof she received disparate treatment. She asserts federal precedent allows discovery and the Washington public disclosure act, RCW 42.17, does not preclude discovery. Highland School District claims the trial court did not abuse its discretion in disallowing the discovery, and that the material sought was both privileged and irrelevant to the proceeding.

The trial judge, in his oral opinion denying the motion to compel discovery, stated the only basis for the discharge of Mrs. Ollie, according to the affidavit of Mr. Riggin, Superintendent of Highland Schools, was the fact she was keeping a book on the comings and goings and personal items related to the certificated staff at the Tieton Middle School. Therefore, the trial court reasoned, the evaluations were not relevant to the issue of discharge and were only relevant to the issue of damages if the trial court found insufficient cause for discharge.

CR 26(b)(1) permits discovery of any matter, not privileged, relevant to the subject matter involved in the pending action. The rule is designed to permit a broad scope of discovery. Barfield v. Seattle, 100 Wash.2d 878, 883, 676 P.2d 438 (1984). A court's determination of relevance is reviewed only for abuse of discretion. ²

Mrs. Ollie contends discoverability of personnel records is a question of first impression for the Washington appellate courts. She maintains there is guidance, however, because the Supreme Court has stated decisions interpreting the National Labor Relations Act (NLRA), while not controlling, are persuasive in interpreting state labor acts which are similar or based on the NLRA. State ex rel. Wash. Fed. of State Employees v. Board of Trustees, 93 Wash.2d 60, 67-68, 605 P.2d 1252 (1980), Washington Pub. Employees Ass'n. v. Community College Dist. 9, 31 Wash.App. 203, 208, 642 P.2d 1248 (1982). ³

Highland argues the court had broad discretion regarding discovery; there was no abuse of discretion. Thus, the denial of discovery should be upheld. Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 232, 654 P.2d 673 (1982),aff'd, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), held under CR 26(c) the trial court exercises broad discretion to manage the discovery process in a manner that will implement the goal of full disclosure of relevant information and at the same time afford the participants protection against harmful side effects. Rhinehart, 98 Wash.2d at 228, 232, 654 P.2d 673 considered the court's discretion to restrict pretrial publication of information made available through discovery.

Highland also argues the information was privileged under RCW 42.17.310(1)(b), which provides: "Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy" is exempt from public inspection and copying.

Finally, Highland argues the personnel evaluations are not relevant to Mrs. Ollie's claim under Clark v. Central Kitsap Sch. Dist. 401, 38 Wash.App. 560, 564, 686 P.2d 514, review denied, 103 Wash.2d 1006 (1984). Highland argues whether sufficient cause for discharge exists is a determination based on the facts and circumstances of the case and discipline and evaluation of other persons is not relevant to this determination.

A. Are the evaluations and personnel records privileged?

The purpose of the public disclosure act is to provide a mechanism by which the public can be assured its public officials are honest and impartial in the conduct of their public offices. In re Rosier, 105 Wash.2d 606, 611, 717 P.2d 1353 (1986). The public disclosure act requires that all public records be available for inspection and copying under RCW 42.17.270, with certain exemptions listed in RCW 42.17.310. Cowles Pub'g Co. v. State Patrol, 109 Wash.2d 712, 719, 748 P.2d 597 (1988).

Under RCW 42.17.310(1)(b) to be exempt the information must be personal information, maintained for employees, disclosure of which would violate the employee's right to privacy. Information related to an employee's performance is normally maintained for employees. An unreasonable invasion of privacy is a disclosure which is (a) highly offensive, and (b) of no legitimate concern to the public. ⁴ Hearst Corp. v. Hoppe, 90 Wash.2d 123, 135-36, 580 P.2d 246 (1978). The determination is made in light of the statutory caveat that the information must be disclosed even though embarrassing to public officials or others. Hearst, at 135-36, 580 P.2d 246. Disclosure of the names of officers, their actions while performing public duties or improper off-duty actions in public did not violate the officers' rights to privacy, although disclosure of the officers' names was exempt under another exception, RCW 42.17.310(1)(d). Cowles, 109 Wash.2d at 727-28, 748 P.2d 597. Retirement disability records are not exempt from disclosure and were not subject to deletion of identifying details because release of the records would not cause an unreasonable invasion of personal privacy under the Hearst test. Seattle Fire Fighters Union Local 27 v. Hollister, 48 Wash.App. 129, 137-38, 737 P.2d 1302, review denied, 108 Wash.2d 1033 (1987).

On the other hand, information in job applications which disclosed private and confidential matters pertaining to the applicant's life and past activities were matters of personal privacy, requiring them to be...