Olson v. University of Washington, 44759

• Citation: 89 Wn.2d 558,573 P.2d 1308
• Decision Date: 26 January 1978
• Docket Number: No. 44759,44759
• Parties: Gordon OLSON, Respondent, v. UNIVERSITY OF WASHINGTON, Appellant.
• Court: United States State Supreme Court of Washington

Page 558

89 Wn.2d 558

573 P.2d 1308

Gordon OLSON, Respondent, v. UNIVERSITY OF WASHINGTON, Appellant.

No. 44759.

Supreme Court of Washington, En Banc.

Jan. 26, 1978.

Slade Gorton, Atty. Gen., James B. Wilson, Senior Asst. Atty. Gen., Seattle, Edwards, Wetherall & Barbieri, Malcolm L. Edwards, Charles K. Wiggins, Seattle (Amicus), for appellant.

Barnett, Pease, Doces & Lewicki, P. S., William Merchant Pease, Seattle, Carroll, Rindal, Caplinger & Kennedy, James E. Kennedy, Seattle (Amicus), for respondent.

HOROWITZ, Associate Justice.

This appeal arises from the dismissal of respondent Gordon Olson from the University of Washington police department for acts of "window-peeking" at residential apartment units while on duty. Respondent appealed to the Higher Educational Personnel Board, but the dismissal was affirmed. He then appealed to the Superior Court for King County, which reversed. The University of Washington's appeal, filed in the Court of Appeals, was certified to this court. We reverse the Superior Court and reinstate the order of the Higher Education Personnel Board dismissing respondent.

Gordon Olson was a police officer at the University of Washington for over 14 years and had attained the rank of sergeant at the time of his dismissal in December 1973. He had a good record of performance until that time. In early December of that year, Chief of University Police Shanahan requested an investigation of respondent's activities during his late night shift because he had received several reports that Olson was engaged in window peeking. Two University detectives observed respondent in full uniform peering through windows of lighted residential apartments in the early morning hours of December 2. These apartments are in a building complex leased in part to the University for office space. Respondent Olson was observed for approximately one hour, and the detectives positively identified him as the person whom they observed.

On December 4 respondent met with Chief Shanahan. The Chief told him about the investigator's report and suggested that formal disciplinary measures would not be taken if respondent agreed to voluntarily request a reduced rank, sign a statement of wrong doing, and seek professional counseling. Respondent, after reading the report, agreed to the plan. He wrote and signed two statements one admitting he had engaged in conduct which was wrong the other requesting a reduction in rank "for personal reasons." A week later, however, respondent informed the Chief he felt the "punishment" he had received was excessive and he intended to "seek redress." Chief Shanahan believed this action to be an abandonment of the voluntary agreement. He therefore promoted respondent to his former rank and initiated formal disciplinary proceedings for the first time by recommending respondent's dismissal to the University. Respondent apparently acquiesced in this proceeding, taking no further steps until the University informed him by letter of his dismissal, effective December 28. He appealed this action to the Higher Education Personnel Board (HEPB). The propriety of the procedures followed by the University, and by the HEPB on respondent's appeal, are not challenged.

The HEPB held two days of hearings on respondent's dismissal, then entered findings, conclusions, and an order affirming the University's action. The Board's findings covered the entire sequence of events, including the agreement between respondent and Chief Shanahan. It concluded respondent's acts of voyeurism constituted malfeasance and/or gross misconduct, and mistreatment or abuse of the public, grounds for dismissal under WAC 251-12-010(6), (7) and (10).

On respondent's appeal of this order in the Superior Court, the court reviewed the transcript and exhibits, heard oral arguments, and entered new findings substantially identical to those of the Board. The Superior Court concluded, however, that Chief Shanahan's conduct in entering into the voluntary arrangement violated respondent's right to due process of law. The trial court reasoned that the informal agreement prevented review of the action through the statutory appeals process, thereby denying respondent his right to due process. The trial court reasoned further that when respondent notified Chief Shanahan of his intent to seek redress, the Chief's conduct in recommending dismissal was arbitrary and capricious because it penalized respondent for exercising his right of appeal. The trial judge therefore reversed the dismissal and remanded to the HEPB, suggesting in his oral opinion that a reduction in rank would be an appropriate disciplinary measure. We have considered all contentions advanced by the parties and by amicus curiae. We do not agree with the conclusions of the trial court, and believe the issues discussed in this opinion are controlling. We therefore reverse and reinstate the Board's order affirming the dismissal.

As a preliminary matter we must determine the appropriate standard for review of the Board's order by the Superior Court. The HEPB was established by RCW Chapter 28B.16, the State Higher Education Personnel Law. The stated purpose of this statute, enacted in 1969, was to establish a system of personnel administration designed specifically to meet the particular needs of employer-employee relations in institutions of higher learning. RCW 28B.16.010. See also Cunningham v. Community College Dist. 3, 79 Wash.2d 793, 798, 489 P.2d 891 (1971). One of the procedures established by the statute is an appeals process for disciplinary measures taken by a university. Sergeant Olson was entitled to appeal his dismissal to the HEPB, and the Board's order in turn could be appealed to the superior court of the county. RCW 28B.16.120-.160. The grounds for appeal to the superior court are stated in RCW 28B.16.150(1)(a)-(e).

The question arises whether the review procedure and standards provided by this specialized statute are subject to the broad provisions of the Administrative Procedure Act, RCW Chapter 34.04. That act, adopted in 1959, was amended in 1967 to require that final agency decisions be reviewed under its provisions only, despite statutory procedures provided elsewhere in the code. Laws of 1967, ch. 237, § 6, p. 1216. The original statute also contained a list of exceptions from its application. Laws of 1959, ch. 234, § 15, p. 1088. Additions have been made to this list, the last having been in 1971, three years after the enactment of the Higher Education Personnel Law. See Laws of 1971, 1st Ex. Sess., ch. 57, § 17, p. 465. The list of exceptions to the application of the Administrative Procedure Act does not include proceedings before the HEPB.

Exceptions to the application of statutes are narrowly construed. Hall v. Corporation of Catholic Archbishop of Seattle, 80 Wash.2d 797, 801, 498 P.2d 844 (1972). However, where the provisions of a general statute are in conflict with the provisions of a specific statute, the specific will prevail. Knowles v. Holly, 82 Wash.2d 694, 702, 513 P.2d 18 (1973). The State Higher Education Personnel Law, enacted two years after the amendment to the Administrative Procedure Act calling for its broad and exclusive application, deals with the matter of higher education personnel specifically. It provides a detailed procedure for review of disciplinary measures. Thus, despite their absence from the list of exceptions to the application of the Administrative Procedure Act, we hold that proceedings before the HEPB are not subject to that act. The provisions of the Higher Education Personnel Law, specifically RCW 28B.16.120-. 160, govern review of the University's disciplinary action, and the proper standards for review of the...