Wilson v. Nord

• Decision Date: 21 May 1979
• Docket Number: No. 3053-II,3053-II
• Citation: 23 Wn.App. 366,597 P.2d 914
• Parties: Harvard WILSON, Appellant, v. Leonard NORD, Director of Personnel, the Washington State Personnel Board, and Edith Kogenhop, David Stipek and Fred Huleen, its members, the State Department of Social and Health Services, and Charles Morris, the Secretary thereof, Mary Jane Cheap, Paul Hutton, Terry V. Bernard, David L. Henry, Robert Martin and Dennis Barge, Respondents.
• Court: Washington Court of Appeals

Page 366

23 Wn.App. 366

597 P.2d 914

Harvard WILSON, Appellant, v. Leonard NORD, Director of Personnel, the Washington State Personnel Board, and Edith Kogenhop, David Stipek and Fred Huleen, its members, the State Department of Social and Health Services, and Charles Morris, the Secretary thereof Mary Jane Cheap, Paul Hutton, Terry V. Bernard, David L Henry, Robert Martin and Dennis Barge, Respondents.

No. 3053-II.

Court of Appeals of Washington, Division 2.

May 21, 1979.

Dean A. Floyd, Tacoma, for appellant.

Byron L. Brown, Richard A. Heath, Asst. Attys. Gen., Olympia, for respondents.

PEARSON, Chief Judge.

Mr. Wilson appeals from a superior court order dismissing his claim that the Personnel Board acted illegally or arbitrarily and capriciously in allowing certain hearing examiners at the Department of Social and Health Services (DSHS) to retain their upgraded positions without a competitive exam. We reverse the order of dismissal and remand the case back to the Board for additional findings and conclusions.

The facts surrounding this dispute are fairly simple. DSHS employs a number of lawyers, called hearing examiners, who listen to arguments from private individuals or their counsel who request permits from the state or are appealing the denial of certain benefits. In early 1972 the workload of these examiners was such that DSHS was allowed to hire 12 additional lawyers. This increase nearly doubled the size of the hearings office and created a need for more middleline supervisors in the Spokane, Seattle, and Olympia offices. Six persons, who were classified Hearing Examiner II's, were given this responsibility: Messrs. Barge, Hutton, Martin, Henry, Bernard, and Ms. Cheap. Subsequently, they petitioned the Department of Personnel under WAC 356-10-030 for a reallocation upward of their employee classification. Reallocation is a process of determining what classification appropriately applies to a position if it appears that the duties assigned to that position do not comport with the classification schedule describing the position. This determination is made without regard to the individual who holds the position at the time the determination is made.

Sometime in late 1974 the 6 positions were reallocated as Hearing Examiner III positions. ¹ Appellant does not challenge the validity of the reallocation, but directs his argument at the decision to retain the 6 persons who were incumbents at the time of reallocation.

Once a position has been reallocated upward, the general rule is that it will be filled by competition among eligible employees. ² Wilson, who was a Hearing Examiner II in the Hearings Office, sought to compete for one of the 6 positions, but permission was denied. He requested a hearing before the Personnel Board, but this too was denied. ³ The Board stated that the general rule of competition did not apply in this case because the 6 employees already occupying the reallocated positions were entitled to retain these positions under the incumbency rules set forth in WAC 356-10-050(2) and (5).

Wilson then brought an action in Thurston County Superior Court invoking the court's inherent power to review nonjudicial administrative actions. ⁴ The superior court dismissed his complaint on the grounds that Wilson lacked standing to seek review and the court lacked jurisdiction to review the cause of action.

On appeal, Wilson assigns error to all of the trial court's conclusions of law and reasserts his basic contention that the Personnel Board acted illegally or arbitrarily and capriciously by approving the retention of 6 incumbents as Hearing Examiner III's and not requiring a competitive exam. Had the Department ordered a competitive exam, a dozen or more persons would have been eligible to take the exam; however, Wilson was the only one to complain.

The preliminary issue is whether appellant, as a Hearings Examiner II, eligible for promotion to Hearings Examiner III, has standing to challenge the manner in which the incumbents were retained. We think he does. The opportunity to fairly compete for a promotion is an interest protected by the Civil Service Act, RCW 41.06.150. Standing has routinely been granted to eligible persons who claim to have been illegally deprived of this opportunity. See Casebere v. Clark County Civil Serv. Comm'n, 21 Wash.App. 73, 584 P.2d 416 (1978); Green v. Cowlitz County Civil Serv. Comm'n, 19 Wash.App. 210, 577 P.2d 141 (1978). See generally Bolser v. Washington State Liquor Control Bd., 90 Wash.2d 223, 580 P.2d 629 (1978). Appellant's first contention is that the Personnel Board violated RCW 41.06.150(2) by promulgating WAC 356-10-050 which allows an incumbent to assume an upgraded position without competing for it. We hold that the Board acted within its authority when it adopted WAC 356-10-050.

Subsection 15 of RCW 41.06.150 allows the Board to adopt rules and procedures regarding reallocations. WAC 356-10-050 is one of those rules. In effect, it says that the Board has determined no vacancy exists when a position is reallocated upward and an incumbent, meeting certain qualifications, already occupies the position. We have previously indicated that an agency's interpretation of special administrative statutes is entitled to great weight. Port Townsend School Dist. 50 v. Brouillet, 21 Wash.App. 646, 587 P.2d 555 (1978). See also Hama Hama Co. v. Shorelines Hearings Board, 85 Wash.2d 441, 536 P.2d 157 (1975). We think the Personnel Board's special treatment of incumbents whose job responsibilities have been or will be enlarged is reasonable and does not violate the general intent of the legislature that vacancies be filled by competitive examination. Lumpkin v. Department of Social & Health Svcs., 20 Wash.App. 406, 409, 581 P.2d 1060 (1978). In adopting subsection 15 of RCW 41.06.150, the legislature intended that the Board would fill in gaps in the civil service law. WAC 356-10-050 has been in existence in substantially the same form since 1966 and has not been repudiated by the legislature. We can presume, therefore, that the legislature has acquiesced in the Board's interpretation of its authority. Bradley v. Department of Labor & Indus., 52 Wash.2d 780, 329 P.2d 196 (1958).

Appellant's second contention is that even if WAC 356-10-050 is a valid exercise of agency authority, the agency nevertheless acted illegally because it did not comply with the requirements of the rule in making its determination to retain the 6 individual defendants. Before we review the merits of appellant's contention, we must first determine whether the courts have jurisdiction to review this administrative decision. The trial court concluded they do not. We disagree.

It is true that this action is not a "contested case" under the state Administrative Procedure Act, See RCW 34.04.010(3), .130, nor is it a "judicial" action for purposes of the writ of certiorari, RCW 7.16.040, See State ex rel. Hood v. Personnel Bd., 82 Wash.2d 396, 399, 511 P.2d 52 (1973). Furthermore, the Civil Service Act contains no provision for administrative or judicial review for this type of administrative decision. RCW ch. 41.06. However, the absence of a statutory method of review does not foreclose the courts from assuming jurisdiction. Courts have inherent power, under article 4, sections 1 and 6 of our state constitution, to review any final action of an administrative agency. Port Townsend School Dist. 50 v. Brouillet, supra. See State ex rel. Cosmopolis Consol. School Dist. 99 v. Bruno, 59 Wash.2d 366, 367 P.2d 995 (1962). This is not to say that courts are free to substitute their beliefs for those of an agency or to act in a supervisory capacity. Quite the contrary, the scope of review is extremely limited.

(T)he judiciary will only review the actions of an administrative agency to determine if its Conclusions may be said to be, As a matter of law, arbitrary, capricious, or contrary to law.

(Some italics ours.) Reiger v. Seattle, 57 Wash.2d 651, 653, 359 P.2d 151, 152 (1961); Helland v. King County Civil Serv. Comm'n, 84 Wash.2d 858, 863, 529 P.2d 1058 (1975) (citing DuPont-Ft. Lewis School Dist. 7 v. Bruno, 79 Wash.2d 736, 489 P.2d 171 (1971)). See also State ex rel. Perry v. Seattle, 69 Wash.2d 816, 420 P.2d 704 (1966). ⁵

It is sometimes said that the scope of review in nonstatutory review cases carries another limitation, namely, that the asserted illegality must involve a "fundamental right." Our reading of the cases espousing this test convinces us that it is not a further limitation on the scope of review, but simply an alternate formulation of the illegality standard set out in Helland and Reiger.

In many cases applying the fundamental right test, courts find no fundamental right exists because there has been no illegal action. See e. g., Pettit v. Board of Tax Appeals, 85 Wash.2d 646, 652-53, 538 P.2d 501 (1975); State ex rel. Hood v. Personnel Bd., supra, 82 Wash.2d at 402-03, 511 P.2d 52; Citizens Against Mandatory Bussing v. Palmason, 80 Wash.2d 445, 460, 495 P.2d 657 (1972); DuPont-Ft. Lewis School Dist. 7 v. Bruno, supra; State ex rel. DuPont-Ft. Lewis School Dist. 7 v. Bruno, 62 Wash.2d 790, 384 P.2d 608 (1963); Lane v. Ocosta School Dist. 172, 13 Wash.App. 697, 537 P.2d 1052 (1975); Mattox v. Washington State Bd. Against Discrimination, 13 Wash.App. 406, 535 P.2d 470 (1975).

At the same time, other cases readily find a "fundamental" right exists any time a complainant can show that an agency's discretion is limited by constitution, statute, rule, regulation, or case law. See, e. g., Leschi Improvement Council v. Highway Comm'n, 84 Wash.2d 271, 525 P.2d 774 (1974); Port Townsend School Dist. 50 v. Brouillet, supra; Casebere v. Clark County Civil Serv. Comm'n, supra; Green v. Cowlitz County Civil Serv. Comm'n, supra; Butler v. Federal Way School Dist. 210, 17 Wash.App. 288, 562 P.2d 271 (1977).

Thus, the fundamental right limitation boils down to a rule which...