Washington Federation of State Emp. v. State Personnel Bd.

• Decision Date: 23 April 1979
• Docket Number: No. 3314-II,3314-II
• Citation: 23 Wn.App. 142,594 P.2d 1375
• Parties: WASHINGTON FEDERATION OF STATE EMPLOYEES, Appellant, v. STATE PERSONNEL BOARD, State of Washington, and Dr. Eugene Wiegman, Director, Office of Community Development, State of Washington, Respondents.
• Court: Washington Court of Appeals

Page 142

23 Wn.App. 142

594 P.2d 1375

WASHINGTON FEDERATION OF STATE EMPLOYEES, Appellant, v. STATE PERSONNEL BOARD, State of Washington, and Dr. Eugene Wiegman, Director, Office of Community Development, State of Washington, Respondents.

No. 3314-II.

Court of Appeals of Washington, Division 2.

April 23, 1979.

As Changed May 24, 1979.

Edward E. Younglove, Olympia, for appellant.

Kenneth W. Elfbrandt, Asst. Atty. Gen., Olympia, for respondents.

REED, Acting Chief Judge.

The Washington Federation of State Employees appeals from the superior court's denial of its application for writ of certiorari, the dismissal of its complaint for declaratory judgment and the superior court's conclusion that the order of the State Personnel Board, which exempted two positions from civil service classification, was not arbitrary and capricious. We affirm.

In September 1977 the Governor requested that the State Personnel Board exempt two positions in the Office of Community Development from civil service classification pursuant to the Board's authority under RCW 41.06.070(22). After holding public hearings on November 3, 1977, the Board granted the exemption request. The two positions, each entitled "Employment Training Assistant Administrator," had been created in July 1977 within the classified service. Responsibilities included helping to direct and implement the Comprehensive Employment and Training Act (CETA) program in the state and, as such, incumbents reported to the head of the Division of Employment and Training within the Office of Community Development. ¹ At the time the exemption request was made, the Division of Employment and Training consisted of approximately 35 civil service employees. When the Board granted the exemption request, two permanent employees in the classified service occupied these recently created positions on an "acting" basis. After entry of the exemption order, the same two employees continued to hold the positions.

RCW 41.06.070(22) empowers the State Personnel Board to grant up to 175 exemptions from civil service classification, in addition to those positions specifically made exempt by the legislature in RCW 41.06.070(1)-(21), upon the request of the Governor or other elected official. RCW 41.06.070(22) authorizes the Board to grant the exemption request if it determines, after holding public hearings, that the position involves substantial responsibility for the formulation of agency or executive policy or controls the operation of an agency or subdivision thereof. The statute also provides that the Board's determination shall be final. ²

As a result of the Board's exemption order, civil service employees within the bargaining unit represented by the Washington Federation of State Employees were subject to loss of the possibility of future promotion into the two positions by competitive examination. The union sought judicial review of the Board's exemption order in superior court, alternatively by writ of certiorari or declaratory judgment, and claimed that the Board's action was arbitrary and capricious.

Three issues are presented on appeal: (1) did the superior court err by denying the union's application for writ of certiorari; (2) did the superior court err in dismissing the union's complaint for declaratory judgment; and (3) did the superior court err in concluding as a matter of law that the Board's actions were not arbitrary and capricious?

The union first asserts that the State Personnel Board was performing a quasi-judicial function when it declared the two positions to be exempt from civil service classification, and that the decision is subject to review by statutory writ of certiorari. We agree with the superior court that the Personnel Board's action was not quasi-judicial in nature. A statutory writ of certiorari authorized by RCW 7.16.040 may only be used to review actions of agencies exercising quasi-judicial functions. State ex rel. Hood v. Personnel Bd., 82 Wash.2d 396, 399, 511 P.2d 52 (1973). It may not be used to obtain judicial review of purely legislative, executive or ministerial acts of the agency. State ex rel. New Washington Oyster Co. v. Meakim, 34 Wash.2d 131, 208 P.2d 628 (1949); Lumpkin v. Department of Social & Health Serv., 20 Wash.App. 406, 412, 581 P.2d 1060 (1978). Our courts have developed a four-part test to determine whether or not an action of an administrative agency is quasi-judicial: (1) whether a court could have been charged with making the agency's decision; (2) whether the action is one which historically has been performed by courts; (3) whether the action involves the application of existing law to past or present facts for the purpose of declaring or enforcing liability; and (4) whether the action resembles the ordinary business of courts as opposed to that of legislators or administrators. Standow v. Spokane, 88 Wash.2d 624, 631, 564 P.2d 1145, Appeal dismissed, 434 U.S. 992, 98 S.Ct. 626, 54 L.Ed.2d 487 (1977); Francisco v. Board of Directors, 85 Wash.2d 575, 579-81, 537 P.2d 789 (1975). Accord, King County v. Carter, 21 Wash.App. 681, 686-87, 586 P.2d 904 (1978).

When the action of the State Personnel Board is examined in light of this test, it must be concluded that the Board's action was not quasi-judicial. Clearly, a court could not have been charged with making the decision of whether or not to grant the exemption. The power to grant the exemption was not historically exercised by courts but originated in RCW 41.06.070(22) which granted the power to the agency. The Board did not apply law to past or present facts; rather, it made a quasi-legislative policy determination of prospective application after holding a legislative fact-finding hearing. Thus, its actions did not resemble the ordinary business of courts. The union argues that the Board was engaging in statutory interpretation, historically a function performed by courts, when it determined that the two positions were responsible for the formulation of agency policy and thus were eligible for exemption under the statute. We do not agree. The Board did not engage in statutory interpretation when it made its decision any more than any administrative agency interprets its enabling act when it carries out its delegated legislative power. We conclude that the function of the Board in determining whether or not to grant an exemption from civil service classification is nonjudicial in nature. Consequently, the Board's decision is not subject to review pursuant to RCW 7.16.040.

The union next contends that, even if the Board's decision is not subject to review under a statutory writ of certiorari, the superior court was empowered to review the decision under its inherent judicial power since a fundamental right was involved. In spite of any legislative restrictions on judicial review, we recognize that even quasi-legislative agency action is subject to the inherent power of courts to review agency action when the action is outside the scope of its statutory authority or is so arbitrary and capricious that it does violence to a fundamental right. State ex rel. Hood v. Personnel Bd., supra, 82 Wash.2d at 401-02, 511 P.2d 52; State ex rel. Cosmopolis Consol. School Dist. 99 v. Bruno, 59 Wash.2d 366, 369, 367 P.2d 995 (1962); Port Townsend School Dist. 50 v. Brouillet, 21 Wash.App. 646, 587 P.2d 555 (1978). No allegation has been made that the Board exceeded its statutory authority, and the superior court did not err in refusing to find a fundamental right. A fundamental right exists when the agency does not have discretion in making its determination once certain minimum statutory qualifications are met, Port Townsend School Dist. 50 v. Brouillet, supra at 651, 587 P.2d 555, or when a fundamental right is otherwise created by the statute. Green v. Civil Serv. Comm'n, 19 Wash.App. 210, 216, 577 P.2d 141 (1978). RCW 41.06.070(22) gives the Board discretion to grant an exemption after an overall evaluation of facts presented by the Governor and by others participating in the public hearings. Under the statute no one has a substantive right to demand that an exemption be given or withheld. Instead, the Board makes a quasi-legislative policy determination when it decides whether or not to grant an exemption from civil service classification.

The union argues that civil service employees within the collective bargaining unit which the union represents have a "fundamental right" not to have future promotional opportunities denied to them in an illegal or arbitrary and capricious manner. We do not agree that the...