Refai v. Central Washington University

Decision Date13 August 1987
Docket NumberNo. 7525-7-III,7525-7-III
Citation742 P.2d 137,49 Wn.App. 1
Parties, 41 Ed. Law Rep. 1116 Gulammohammed Z. REFAI aka Shahid Refai, Respondent, v. CENTRAL WASHINGTON UNIVERSITY, Appellant.
CourtWashington Court of Appeals

Thomas Chapman, Asst. Atty. Gen., Spokane, for appellant.

Michael Schwab, Schwab, Kurtz & Hurley, Yakima, for respondent.

MUNSON, Judge.

Central Washington University appeals the Superior Court's reversal of a decision by its Board of Trustees (Board) terminating Gulammohammed Z. Refai, Ph.D., 1 a tenured associate professor of history. We reverse the Superior Court.

In September 1981, the president of Central, pursuant to a delegation from the Board, declared a state of financial exigency. This was precipitated by a series of unanticipated financial setbacks, which culminated when the Legislature reduced Central's general fund budget by $3,584,000 later that fall. As a result, Central, through its Board, laid off ten nontenured faculty members. In March 1982, the Legislature again reduced the general fund budget. In April, the Governor ordered further operating budget reductions. As a result of these actions, Central was forced to reduce its budget by an additional $853,000. In addition, the Board learned the budget reduction plan, which was adopted to cover the first budget reduction, fell approximately $50,000 short of its goal, and Central had an approximate $225,000 liability over the remainder of the biennium for its share of the utilities surcharge resulting from the demise of Washington Public Power Supply System plants 4 and 5.

On May 7, 1982 the president of Central wrote to all faculty, civil service, and administrative exempt personnel that the state of financial exigency had continued and become more serious. Pursuant to the provisions of the faculty code, 2 he asked the Faculty Senate Executive Committee (SEC) to evaluate his declaration of continued financial exigency and, if they agreed that cause for faculty layoffs existed, to prepare a layoff plan.

The SEC met on May 12 to evaluate the president's declaration of continued financial exigency. During the May 12 meeting, the president informed them $450,000 had to be cut from Central's instructional budgets. The SEC informed the president by letter dated May 14 they concurred with his declaration of continued financial exigency.

Between May 10 and June 10, the SEC met in closed session several times and developed a proposed layoff plan. The SEC developed the following criteria for determining which departments or programs would be selected for reduction: (1) the role of a department or program vis-a-vis the mission and roles of Central; (2) student needs as reflected by enrollment trends; (3) actual staffing versus positions generated by internal ratio and state formula; (4) academic need, i.e., how many faculty members are needed to offer the necessary variety of courses for a given major or program; (5) potential for efficient reorganization of administrative structure; and (6) programmatic impact.

The SEC reviewed data for all the departments and programs and, based on the above criteria, compiled a list of departments and programs which they felt could sustain faculty layoffs. In the meantime, Central's augmented budget committee determined an additional $167,000 could be cut from various areas of Central's budget, reducing the targeted instruction budget reduction to $283,000. The chairman of the SEC listed ten faculty positions which the SEC determined would have to be eliminated in order to accomplish the $283,000 reduction. These positions would be eliminated on the basis of seniority, i.e., those with the least tenure would go. To lessen the negative impacts on programs and enrollment, the president reduced the proposed position cuts to seven. The difference was made up by utility savings, increased cuts to the physical plant budget, and almost the entire president's reserve budget used to cover unexpected emergencies.

The president met with the affirmative action director and informed her as to the departments or units that would be cut, but did not tell her the names of the people in those positions. The director reviewed the personnel records to see if the layoffs would adversely affect the affirmative action goals of Central and informed the president she had no objection to the proposed layoff plan. The SEC did not consult with the director during its deliberations.

On May 28, the president released the proposed layoff plan to the academic community and invited "written responses" and "comments and suggestions" to be submitted to the Office of the Vice President for Academic Affairs by noon on June 9. The SEC reviewed all the written responses. At a regular faculty senate meeting on June 2, the faculty discussed the proposed layoff plan. The faculty again discussed the plan in an open faculty forum attended by the president and the members of the SEC on June 8. Dr. Refai attended this meeting.

On June 10, the SEC met for the last time concerning the layoff plan. They invited the deans of the College of Letters, Arts and Sciences and School of Professional Studies and the department chairs of each of the affected departments to meet with them individually to discuss the proposed plan before it was sent to the president. The SEC modified its proposed plan by deleting the proposed elimination of the physics position, reasoning that it would be difficult to maintain a physics program without four faculty at a time when Central was moving to strengthen its efforts in technology. The president concurred in dropping the physics position from the layoff list without knowing how the difference would be made up. He learned that all but $1,500 of the difference could be made up from a payment on a defaulted contract; the rest could be made up by small contributions from the budgets of the Graduate Office, Undergraduate Office, and the Vice President for Academic Affairs.

The SEC sent the final draft of the proposed layoff to the president on June 10. On June 17 the president sent notices to the affected faculty indicating that on the basis of seniority in their respective departments they would be laid off effective December 31, 1982 3 for reasons of financial exigency. Dr. Refai received one of the notices.

Dr. Refai requested a formal hearing in a letter dated June 21, 1982. The hearings officer conducted hearings from December 28, 1982 through January 19, 1983 and determined that the closed meetings of the SEC violated RCW 42.30, the Open Public Meetings Act of 1971, and rendered the entire process void. The Board issued resolution 83-3 which adopted the hearings officer's findings of fact and conclusions of law and his proposal for decision, except the Board found no violation of RCW 42.30 and affirmed Dr. Refai's layoff. Dr. Refai petitioned for judicial review; the Superior Court reversed the decision of the Board and ordered Central to reinstate Dr. Refai with back pay effective January 1, 1983. Central appeals.

Standard of Review

Our review is governed by the State Higher Education Administrative Procedure Act, RCW 28B.19, the provisions of which are identical to the Administrative Procedure Act, RCW 34.04. Stastny v. Board of Trustees, 32 Wash.App. 239, 245, 647 P.2d 496, review denied, 98 Wash.2d 1001 (1982), cert. denied, 460 U.S. 1071, 103 S.Ct. 1528, 75 L.Ed.2d 950 (1983). The scope of our review is on the record of the administrative tribunal itself, not of the Superior Court. Clark v. Horse Racing Comm'n, 106 Wash.2d 84, 88, 720 P.2d 831 (1986); Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-25, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983).

RCW 28B.19.150(6) provides:

The court may affirm the decision appealed from, or remand the case for further proceedings; or it may reverse the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

* * *

(d) Affected by other error of law; or

(e) Clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or

(f) Arbitrary or capricious.

We will not disturb the Board's findings of fact unless, after reviewing the entire record, we have a definite and firm conviction a mistake has been committed. Sherman v. Moloney, 106 Wash.2d 873, 880, 725 P.2d 966 (1986); Franklin County, 97 Wash.2d at 324, 646 P.2d 113. We will substitute our judgment, however, for that of the Board's conclusions of law, although we will accord substantial weight to the Board's view of the law. Clark, 106 Wash.2d at 88, 720 P.2d 831.

Financial Exigency

Central first contends the court erred in finding Central's actions in continuing to hire full-time and part-time faculty and its failure to relocate personnel 4 were inconsistent with a financial exigency justifying the termination of a tenured faculty member. In so finding, the court rejected the hearings officer and the Board's finding a state of financial exigency did exist. Although the evidence in support of the Board's finding of a bona fide financial exigency is plentiful, we must also determine whether the state of financial exigency caused Dr. Refai's termination. See American Ass'n of Univ. Professors v. Bloomfield College, 136 N.J.Super. 442, 346 A.2d 615, 617 (1975). He contends the true reason for his termination was Central's desire to cut programs which were obsolete, nontechnological, and nonlucrative. He cites no evidence to support his claim other than the fact that during the state of financial exigency Central hired people to fill new positions in ballroom dance, leisure studies, and in the food services. However, the hiring of faculty is not necessarily inconsistent with a bona fide financial exigency necessitating the...

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