Ortblad v. State, 42964
| Decision Date | 10 January 1975 |
| Docket Number | No. 42964,42964 |
| Citation | 530 P.2d 635,85 Wn.2d 109 |
| Parties | , 88 L.R.R.M. (BNA) 3402, 77 Lab.Cas. P 53,748 John ORTBLAD et al., Appellants, v. STATE of Washington et al., Respondents. |
| Court | Washington Supreme Court |
Peterson, Bracelin, Creech & Young, William R. Creech, Seattle, for appellants.
Slade Gorton, Atty. Gen., William G. Boland, Robert E. Hauth, Asst. Attys. Gen., Olympia, for respondents.
This is a class action for injunctive relief, a declaratory judgment, damages, and a writ of mandate. Plaintiffs (appellants), individually and as class representatives, challenge the failure of the defendants (respondents), Director of the Office of Program Planning and Fiscal Management (hereafter referred to as the Budget Director) and the Governor, to follow the merit system salary plan devised by the State Personnel Board.
The essential facts are not in dispute. Plaintiffs are state civil service employees and a union. The State Personnel Board established by the civil service act, RCW 41.06, is required each year to conduct a survey of salary rates in private industry, devise a pay plan for state civil service employees accordingly, and submit the plan to the Budget Director. In 1968, the salary recommendation was approved by the Budget Director and included in the Governor's 1969--71 biennial budget and in the funds appropriated by the legislature. Subsequent recommendations from the Personnel Board to the Budget Director have, however, been reduced before inclusion in budget requests, on the grounds of adverse 'fiscal impact.'
The hub about which plaintiffs' varying claims revolve is their principal contention that the Budget Director is without authority to alter, amend, or modify the salary plan advanced by the Personnel Board. Concluding to the contrary, the trial court granted defendants' motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiffs appeal. We affirm the order of the trial court in part and reverse in part.
Certain procedural matters are preliminary. The defendants urge that this appeal should be dismissed because of the failure of plaintiffs to file a statement of facts certified by the trial judge as required on review of a summary judgment. American Universal Ins. Co. v. Ranson, 59 Wash.2d 811, 370 P.2d 867 (1962); Kataisto v. Low, 73 Wash.2d 341, 438 P.2d 623 (1968). As above noted, this action was disposed of in the trial court not by way of summary judgment but by dismissal for failure to state a claim upon which relief could be granted. Although it is true that, since the trial court considered material beyond the pleadings, I.e., affidavits and interrogatories, such a motion to dismiss would ordinarily be treated as a motion for summary judgment under Civil Rule 56, and so fall within the ambit of Ranson and Kataisto, nevertheless, we are of the view that since the basic operative facts are undisputed and the core issue is one of law, the better reasoning is that employed by the Court of Appeals in Loger v. Washington Timber Prods., Inc., 8 Wash.App. 921, 924, 509 P.2d 1009, 1011 (1973):
No purpose would exist for treating the motion for judgment on the pleadings as one for summary judgment and granting an opportunity to present factual evidence pertinent under CR 56 if whatever might be proven would be immaterial. . . . (W)hen the content of the interrogatories, depositions and admissions would make no difference to the disposition of the motion, whether considered by the trial court or not, then there is no need to convert the motion . . . into a motion for summary judgment . . .
Such is the situation here. Accordingly, we do not dismiss the appeal for failure to file a statement of facts.
The defendants next assert that the trial court properly dismissed without prejudice an incidental claim of unfair labor practices for failure of plaintiffs to exhaust their administrative remedies. In affirming the trial court's order, we agree with this position insofar as any definitive or specific unfair labor practice might be concerned. However, such does not affect this appeal or otherwise interfere with a disposition of the basic issue in controversy. More is involved here than an allegation of unfair labor practice. This action and the issue raised concern the entire scheme of civil service salary plans. Accordingly, we will reach the merits.
Defendants finally contend that any claim of error with respect to the dismissal of plaintiffs' claim for damages is waived because of plaintiffs' failure to specifically assign error to that ruling or to argue such a claim of error in their brief. We agree. ROA I--43 requires that, for consideration by this court, an alleged error must be included in the assignments of error in the appellants' brief. DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 372 P.2d 193 (1962), adds the further requirement that assignments of error must be supported by argument in the brief. While some of plaintiffs' assignments of error are arguably broad enough to include consideration of the claim for damages, no supporting argument on the question of damages is presented. Such a claim of error is therefore waived.
We now proceed to the merits. This controversy results from the status of state civil service employees in Washington, and specifically arises as a result of the failure of the Budget Director to adopt the wage and salary plan devised by the Personnel Board. In 1960, Initiative 207 was passed by the voters and became the state civil service act, RCW 41.06. Its purpose was to establish a merit system of personnel for the State of Washington. A Personnel Board was established and directed among its duties to adopt a salary schedule 'to reflect not less than the prevailing rates in Washington state private industries . . ., such adoption and revision subject to approval by the state budget director in accordance with the provisions of chapter 43.88 RCW; . . .' RCW 41.06.150. 1 Employees are given a right to participate in the development and administration of personnel policies, including 'pay plans.' RCW 41.06.140. 2 Chapter 43.88 gives the Budget Director various powers and duties, including the following (c) Review any pay and classification plans, and changes thereunder, developed by any agency for their fiscal impact: Provided, That none of the provisions of this subsection shall affect merit systems of personnel management now existing or hereafter established by statute relating to the fixing of qualifications requirements for recruitment, appointment, or promotion of employees of any agency. He shall advise and confer with agencies including the legislative budget committee and the legislative council regarding the fiscal impact of such plans and may amend or alter said plans, . . .
Under this scheme, the Budget Director has variously approved the plan as submitted and included it without alteration in the biennial budget submitted to the legislature, or reduced the salary plan on a percentage basis before inclusion in budget requests, on grounds of 'fiscal impact.' Plaintiffs contend that the State has a duty to pay its employees at a rate comparable to that prevalent in private industry and that the plan devised by the Personnel Board is exempt from review or alteration under RCW 43.88.160 because it is a merit system of personnel management. The defendants respond that the merit system exception does not apply to pay plans, and the Budget Director is specifically authorized to alter or amend Personnel Board recommendations on grounds of 'fiscal impact.' RCW 43.88.160(1)(c).
As to the construction of the statutes, we agree with the defendants. The statutes as written clearly give the Budget Director power beyond automatic approval of the plan devised by the Personnel Board. By the terms of the civil service act itself, such approval is to be in accord with RCW 43.88. The relevant language is found in RCW 43.88.160(1)(c), quoted above. Unless the merit system exception of the proviso applies, it is clear that the role of the Budget Director, while not permitting 'piecemeal' alterations of the plan, 3 does include amendment or alteration of such plans because of 'fiscal impact.' We do not think the merit system exception applies to the pay plans developed by the Personnel Board; the proviso refers to systems 'relating to the fixing of qualifications requirements for recruitment, appointment, or promotion of employees of any agency.' No mention of salary schemes is made. It appears from the language that 'qualifications requirements' refers to classification plans rather than pay plans. We conclude that the proviso does not apply, and the Budget Director is not required to adopt automatically the salary plan recommended by the Personnel Board.
However, plaintiffs contend that this scheme results in an abridgment of their collective bargaining rights. The existence of such a right and its statutory implementation are matters of some complication under current Washington statutes. A straightforward interpretation is made very difficult by the fact that the statutory scheme is complex and incomplete. A right of collective bargaining is clearly granted to state civil service employees by the statutes, including the specific right to bargain for wages. The civil service act, RCW 41.06.340, 4 expressly incorporates certain provisions of the public employees collective bargaining act, RCW 41.56.140--41.56.190, by which a public employer's refusal to engage in collective bargaining is denominated an unfair labor practice. 'Public employer' is defined by RCW 41.56.030 as 'any officer, board, commission, council, or other person or body acting on behalf of any public body governed by this chapter as designated by RCW 41.56.020, or any subdivision of such public body.' RCW 41.56.020 defines the scope of the...
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