Sullivan v. Department of Transp.

• Decision Date: 15 September 1993
• Docket Number: No. 15130-8-II,15130-8-II
• Citation: 71 Wn.App. 317,858 P.2d 283
• Court: Washington Court of Appeals
• Parties: LaVerne E. SULLIVAN, Evelyn C. DeLange, and Rex Murphy, Appellants, v. DEPARTMENT OF TRANSPORTATION, Respondent. Division 2

Page 317

71 Wn.App. 317

858 P.2d 283

LaVerne E. SULLIVAN, Evelyn C. DeLange, and Rex Murphy, Appellants, v. DEPARTMENT OF TRANSPORTATION, Respondent.

No. 15130-8-II.

Court of Appeals of Washington,

Division 2.

Sept. 15, 1993.

Darrel L. Peeples, Swanson, Parr, Cordes, Younglove & Peeples, Olympia, for appellants

Christine O. Gregoire, Atty. Gen., and Spencer W. Daniels, Asst. Atty. Gen., Olympia, for respondent.

SEINFELD, Judge.

LaVerne Sullivan, Evelyn DeLange, and Rex Murphy, employees of the Department of Transportation, appealed their annual performance evaluations to the Personnel Appeals Board. The Board dismissed the appeals and the employees appealed to Thurston County Superior Court. The Superior Court affirmed the Board. We also affirm.

State law requires annual performance evaluations of state employees. RCW 41.06.169; WAC 356-30-300(1). The administrative rules state that the evaluation "will be conducted" Appellants sought to have the untimely evaluations removed from their files. They argued that this was the appropriate remedy for the Department's failure to complete their evaluations within 60 days of the due dates. When the Department refused to remove the evaluations, the employees appealed to the Personnel Appeals Board.

                during a 60 day period following an employee's "anniversary date" or a different due date established by the employing agency.   WAC 356-30-300(2). 1  The Department performed the appellants' evaluations after the due date:  Sullivan's was 10 days late;  DeLange's was 2 months late;  Murphy's was 3 days late. 2  Appellants characterize the tardy evaluations as "unacceptable".   Presumably, this means that the evaluations were unfavorable
                

The Board granted the Department's motion to dismiss for failure to state a claim for which relief could be granted. For purposes of that motion, the Department conceded and the Board assumed the evaluations to be untimely under WAC 356-30-300(2). In its written ruling, the Board concluded that WAC 356-30-300(2) was directory rather than mandatory and that removing an untimely evaluation from the employee's file would be inconsistent with the purposes and goals of the evaluation program. On appeal to this court, appellants claim an error of law contending that the due date language in WAC 356-30-300(2) is mandatory and that removal of an untimely evaluation is the appropriate remedy. They also contend that the Personnel Appeals Board's order was arbitrary or capricious and materially affected by unlawful procedure.

STANDARD OF REVIEW

Our review of the Personnel Appeals Board's decision is governed by RCW 41.64.130 and .140, not former RCW When reviewing a claimed error of law, we may "essentially substitute [our] judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law." Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983). The Personnel Appeals Board action is arbitrary and capricious if it is "willful and unreasonable action, without consideration and in disregard of facts or circumstances." Terhar v. Department of Licensing, 54 Wash.App. 28, 34, 771 P.2d 1180, review denied, 113 Wash.2d 1008, 779 P.2d 728 (1989). When the Board acts honestly and upon due consideration, its action is not arbitrary or capricious if there is room for two opinions, even if we believe the Board reached an erroneous conclusion. Terhar, 54 Wash.App. at 34, 771 P.2d 1180.

                34.04.130.  Ballinger v. Department of Social & Health Servs., 104 Wash.2d 323, 328, 705 P.2d 249 (1985);  Muije v. Department of  Social & Health Servs., 97 Wash.2d 451, 453, 645 P.2d 1086 (1982).   An employee may appeal a Board decision on the grounds that the order was (among other things) "[f]ounded on or contained an error of law", "[m]aterially affected by unlawful procedure", or "[a]rbitrary or capricious".   RCW 41.64.130(1).   We review the Board decision de novo on the Board's record, applying the same standard of review as the superior court.   Nelson v. Department of Corrections, 63 Wash.App. 113, 115, 816 P.2d 768 (1991)
                

PERSONNEL APPEALS BOARD

Citing to State Liquor Control Bd. v. State Personnel Bd., 88 Wash.2d 368, 379, 561 P.2d 195 (1977), appellants argue that we must give "great weight" to the State Personnel Board's interpretation of the regulation's language, not to the Personnel Appeals Board's interpretation, because the former, not the latter, promulgated WAC 356-30-300. The employees cite to a 1985 State Personnel Board decision holding the language of a precursor to WAC 356-30-300 to be mandatory and requiring removal of an untimely evaluation.

However, the 1985 decision was overruled by more recent Personnel Appeals Board decisions. Furthermore, the The Personnel Appeals Board succeeded the State Personnel Board as the administrative body hearing civil service appeals and, thus, is the administrative body construing merit system rules (Title 356 WAC) in individual cases. See RCW 41.06.170(2), 41.64.010, .090, .900; WAC 358-01-010, -20-020. It is the successor adjudicative body, exercising the interpretive authority previously exercised by the State Personnel Board. Thus its interpretation of merit system rules is entitled to substantial weight. See Terhar, 54 Wash.App. at 32, 35, 771 P.2d 1180.

State Personnel Board no longer has authority to interpret the merit system rules in individual cases.

DIRECTORY STATUTES AND REGULATIONS

The Personnel Appeals Board ³ held that the 60 day time limit in WAC 356-30-300(2) is directory, not mandatory. The employees contend that this was an error of law.

State agencies are required to use standardized procedures and forms "for the appraisal of employee job performance at least annually". RCW 41.06.169. Under the merit system rules,

(1) Agencies shall evaluate the performance of their employees ... at least once a year....

(2) The annual evaluation will be conducted during the sixty-day period following the employee's anniversary date, except an agency can establish, on a consistent basis, a due date which better accommodates the agency's particular needs. The evaluation will cover the period ending with the established due date.

(Italics ours.) WAC 356-30-300.

A court interprets administrative regulations by using the ordinary rules of statutory construction. See State v. Burke, 92 Wash.2d 474, 478, 598 P.2d 395 (1979). The employees argue that use of the words "shall" and "will" in the regulation make the time limits mandatory and require removal and destruction of an untimely evaluation. We disagree; as used here, the terms are directory.

Niichel v. Lancaster, 97 Wash.2d 620, 647 P.2d 1021 (1982), involved statutes stating that a county assessor "shall" list and value all property by May 31, give notice of change in value no later than 30 days after appraisal, and file his or her assessment book on the first Monday of July. The ClallamCounty assessor missed all of these deadlines. A local property owner challenged his property assessment on the basis that the term "shall" is mandatory and that the assessor's failure to perform a mandatory duty made the assessment invalid. 97 Wash.2d at 621-23, 647 P.2d 1021. The Niichel court disagreed.

A statute setting a time within which a public officer is to perform an official act is directory unless the nature of the act or language of the statute make clear that the designation of time limits the power of the officer. Niichel 97 Wash.2d at 623, 647 P.2d 1021. When a "statute is merely a guide for the conduct of business and for orderly procedure rather than a limitation of power," it is directory. 97 Wash.2d at 624, 647 P.2d 1021 (quoting 1A C. Sands, Statutory Construction § 25.03, at 298-99 (4th ed. 1972)). In addition, when the time for or manner of performing the authorized action is not essential to the purpose of the statute, the time and manner provisions are considered directory. 97 Wash.2d at 624, 647 P.2d 1021.

As in Niichel, the regulation here prescribes the procedure to be used in conducting evaluations; it does not purport to limit the power and duty to conduct evaluations. The specified time for performance is not essential to the purpose of the evaluation statute. See 97 Wash.2d at 624, 647 P.2d 1021.

The time limit set forth in WAC 356-30-300(2) is not designed to protect employee interests, but instead establishes an orderly procedure for the regular evaluation of all state employees, as required by RCW 41.06.169. Thus, the 60-day provision of WAC 356-30-300(2) is directory, not mandatory.

REMEDY

The Department's noncompliance with a directory statute does not invalidate the employee evaluations. See Niichel, 97 Wash.2d at 623, 647 P.2d 1021. The general purpose of the state civil service In general, a regulation should "be interpreted consistently with its underlying...