University of Washington v. Manson, 48550-0

• Decision Date: 06 January 1983
• Docket Number: No. 48550-0,48550-0
• Citation: 98 Wn.2d 552,656 P.2d 1050
• Parties: , 8 Ed. Law Rep. 851 UNIVERSITY OF WASHINGTON, Petitioner, v. David G. MANSON, Respondent.
• Court: Washington Supreme Court

Page 552

98 Wn.2d 552

656 P.2d 1050, 8 Ed. Law Rep. 851

UNIVERSITY OF WASHINGTON, Petitioner, v. David G. MANSON, Respondent.

No. 48550-0.

Supreme Court of Washington En Banc.

Jan. 6, 1983.

Kenneth O. Eikenberry, Atty. Gen., Elsa Cole, Asst. Atty. Gen., Seattle, for petitioner.

Francis, Lopez & Ackerman, Jack Ackerman, Seattle, for respondent.

PEARSON, Justice.

The University of Washington appeals the Court of Appeals affirmance of an order of the Higher Education Personnel Board (hereinafter HEPB), reinstating respondent David G. Manson as an employee of the University.

The issue before us concerns the decision of the University not to reinstate Manson, who was presumed to have resigned his position after 3 days' unauthorized absence, and who submitted to the HEPB a letter from his physician stating that his absence was involuntary. We are asked to decide whether the HEPB was correct in reversing the University's decision not to reinstate Manson. We agree with the Court of Appeals that the HEPB's order reinstating Manson was proper.

Respondent David Manson was a classified employee at the University of Washington. Beginning on August 7, 1978, and continuing throughout that week. Manson failed to report to work and failed to call his supervisor to explain his absence. Manson could not be contacted by his supervisor because he had no telephone.

Pursuant to WAC 251-10-180, Manson was presumed to have resigned based on his absence without authorized leave for more than 3 consecutive days. In accordance with this provision, notice was sent to Manson on August 9, 1978, informing him of his right to petition for reinstatement, "upon proof that the absence was involuntary or Within the 7-day petitioning period, Manson wrote a letter to his appointing authority stating, in essence, that his absence was caused by asthma, that his difficulty in breathing disturbed his sleeping pattern and prevented him from realizing the importance of calling his supervisor by 8 a.m., and that such a call would have required a 1-block trip to a public telephone. The letter also stated that a doctor was consulted on August 14, 1978, and that further information would be supplied on request.

                unavoidable," within 7 calendar days after service of the notice.   WAC 251-10-180
                

The appointing authority denied Manson's petition for reinstatement. In addition to Manson's letter, the appointing authority considered several interdepartmental memoranda which revealed: (1) repeated unauthorized absenteeism by Manson; (2) warnings to Manson by his supervisors that he was required to call by 8 a.m. to report his absences; (3) Manson's assurances that his choice not to have a telephone would not hinder his compliance with this policy; (4) reports from Manson's doctors that Manson could control his asthma by taking his prescribed medicine; and (5) an admission by Manson to a supervisor that he could prevent an asthma attack by taking his medication at the onset of recognizable symptoms.

Manson appealed to the HEPB, and attached to his appeal a letter from his physician. The physician's statement, dated September 1, indicated that, although he did not see Manson until August 14, he believed the absence of the prior week to have been involuntary due to the severity of the asthma attack. This letter had not been sent to the appointing authority at the University of Washington.

Originally, Manson's appeal was heard by the Director of HEPB. See WAC 251-12-075. The Director upheld the appointing authority's denial of Manson's petition for reinstatement. He found, inter alia, that Manson was aware that he would be considered on unauthorized absence status unless he called in, and that, although the physician indicated that Manson's absence was involuntary, there was On review by the full Board, this determination was reversed. The HEPB found no requirement under WAC 251-10-180 that employees contact their employer during the period of absence to be eligible for reinstatement, and further found that the physician's statement proved the absence was involuntary. The Board concluded that the rejection of Manson's petition for reinstatement was improper and ordered that Manson be reinstated with all back pay and benefits.

no evidence that the illness was so debilitating as to prohibit him from calling to inform his supervisor of the situation.

Upon appeal, the King County Superior Court reversed the HEPB. The court adopted HEPB's conclusion that Manson was not required to contact his employer during his absence to be eligible for reinstatement under WAC 251-10-180. Nonetheless, the court found that the physician's letter was at no time made available to the appointing authority, and therefore the denial of the petition by the appointing authority, based on the evidence presented, was neither arbitrary nor capricious.

The Court of Appeals, Division One, reversing the trial court, determined that: (1) under RCW 28B.16.120(1) and RCW 28B.16.130, the HEPB may consider evidence beyond that considered by the appointing authority, therefore consideration of the doctor's letter was proper; and (2) the HEPB's decision was not contrary to a preponderance of the evidence or arbitrary or capricious, therefore the trial court exceeded its scope of review when it reversed the board's order. The HEPB's order was reinstated by the Court of Appeals.

The issue presented by this case turns upon the interpretation of the statutes and the administrative rules promulgated thereunder governing personnel administration in state institutions of higher education. ¹

The state Higher Education Personnel Board was created by RCW 28B.16.060. Among the HEPB's duties is the promulgation of rules and regulations "regarding the basis and procedures to be followed for: (1) The dismissal, suspension, or demotion of an employee, and appeals therefrom ..." RCW 28B.16.100.

The statute (RCW 28B.16) includes specific requirements as to the content of rules promulgated by the HEPB:

a. The rules "shall provide for local administration and management by the institutions of higher education" of "(2) [d]ismissal, suspension, or demotion of an employee." RCW 28B.16.101.

b. The rules shall not authorize an institution of higher education to suspend an employee for more than 15 calendar days as a single penalty. RCW 28B.16.120(1).

c. The rules must require that an employee be given written notice of a suspension. RCW 28B.16.120(1).

RCW 28B.16 also specifies the employee's right to appeal to the HEPB. "Any employee who is reduced, dismissed, suspended, or demoted ... shall have the right to appeal to the board not later than thirty days after the effective date of such action." RCW 28B.16.120(2).

The statute provides the parties to such an appeal with rights to an open hearing, to notice, to be represented by counsel, to call witnesses and give evidence, and to cross-examine witnesses. RCW 28B.16.130. Within 30 days of hearing of such an appeal, the HEPB must give written findings of fact, conclusions of law, and an order. RCW 28B.16.140. Either party may appeal from the HEPB's order to the Superior Court (RCW 28B.16.150) and from the superior court to the Court of Appeals and this court. RCW 28B.16.160.

HEPB rules promulgated pursuant to RCW 28B.16.100 provide for the disciplinary actions of demotion, suspension, reduction, and dismissal. The grounds for these disciplinary actions include neglect of duty, inefficiency The rules also provide for appeals by employees from the institution's disciplinary action. Such an appeal must be made in writing within 30 days of such action. WAC 251-12-080. In any such appeal, the institution has the burden of proof. WAC 251-12-240(1). The detailed procedures for hearing such appeals are set out in WAC 251-12-085 through -250.

                incompetence, and willful violation of personnel rules and regulations.   WAC 251-10-110.   Employees must be given 15 days' notice of dismissal.   WAC 251-10-120
                

The rules provide for an additional procedure independent of these disciplinary actions. This is the "presumption of resignation." WAC 251-10-180. Under this provision, an employee may be presumed to have resigned after 3 consecutive days' unauthorized absence. Notice acknowledging the presumption of resignation is to be sent to the employee's last known address. The employee has 7 days from service of this notice to petition the appointing authority for reinstatement "upon proof that the absence was involuntary or unavoidable." If the employee is not reinstated after making such a timely petition, he shall be advised of his right to appeal to the HEPB under WAC 251-12-075. WAC 251-12-075 provides a general right of appeal for violations of any higher education personnel law or rule.

Under WAC 251-12-075, the HEPB has discretion to determine the most appropriate procedure for resolving such an appeal. It may select from three alternatives:

(1) The HEPB may handle the appeal as if it were an appeal from a disciplinary action, under WAC 251-12-080 through 251-12-260.

(2) The HEPB may refer the matter to its Director to investigate and to issue a determination based on his investigation. Either party may within 30 days file written exceptions to the Director's determination. These exceptions will be heard by the full HEPB, which may limit argument to the exceptions or rehear the case in its entirety. The burden of proof in such a hearing of exceptions to the Director's determination is on the party challenging (3) Both parties may be requested to present evidence upon which the HEPB may take action without a hearing.

                the determination.   WAC 251-12-240.
                

In the case before us, the HEPB determined that the second of these three procedures was the most appropriate. The matter was referred to the Director of the HEPB, who determined that the University was correct in refusing to reinstate Manson. The full HEPB reversed the Director's determination and...