Wyatt v. University of Washington, 84 Wash. 2d 1

84 Wash. 2d 1 | Wash. | 1974

Utter, J.

— Captain Vernon H. Wyatt appeals from a judgment of dismissal by the Superior Court which affirmed the findings, conclusions and orders of the Higher Education Personnel Board of the University of Washington. The personnel board ruled that Wyatt, as Master of the vessel R. V. Thompson, was properly excluded from the classified service by the Board of Regents of the university and was properly dismissed by the university from his position.

We find that the determination of the Higher Education Personnel Board is a final, nonappealable order and the exemption of the position of Master of the R. V. Thompson from the state personnel law and the higher education personnel law was proper and, accordingly, affirm the trial court.

Appellant was hired by the university on a temporary basis as first officer in naval ocean research for 2 months in 1961. Beginning October 24, 1964, he was employed by them as Master of the Brown Bear. During his service in these positions, he was a member of the classified service under the State Civil Service Law, Laws of 1961, ch. 1. On September 21, 1965, the university received delivery of the research vessel R. V. Thompson, a vessel specifically built for oceanographic research and which is 209-feet long. It replaced the Brown Bear, a vessel half its size and limited in its capacity. In June of 1965, the Board of Regents of the University of Washington, upon recommendation of the Department of Oceanography, exempted from the classified staff two positions within the department, the marine superintendent and the Master of the R. V. Thompson.

Captain Princehouse, who also served as the marine superintendent of the Department of Oceanography, was the initial Master of the R. V. Thompson and received it on behalf of the university in September. The Brown Bear was then retired from service and on January 3, 1966, appellant replaced Captain Princehouse as Master of the R. V. Thompson, where he continued to serve until his termination effective October 15,1970.

Following his dismissal, appellant, on October 21, 1970, filed through his attorney, a “notice of appeal” with the personnel board appealing his dismissal. A motion to dismiss this appeal was made by the university on the ground that appellant’s position as Master of the R. V. Thompson was exempted from the classified staff of the University of Washington at the time the position was created and continued to be so and that the personnel board, therefore, had no jurisdiction to hear his appeal. Appellant then filed a notice of appeal from exemption with the personnel board and they consolidated the two motions for purposes of hearing.

The board entered findings determining that the Board of Regents of the University of Washington “had authority to determine the exempt status of the Master of the R. V. Thompson.” They also found that the regents acted reasonably and properly in determining that the “position of the Master of the R. V. Thompson was declared to be exempt from the classified service on June 18, 1965, and has continued to be so” and that the position “should be” exempt from the classified service. The appeal of the exemption was then dismissed and the board determined it had no jurisdiction to hear the appeal of the dismissal inasmuch as the position was properly exempted from the classified staff of the University of Washington.

The laws relating to appellant’s classification are the State Civil Service Law, RCW 41.06; Laws of 1961, ch. 1, and the State Higher Education Personnel Law, RCW 28B.16. Section 5 of the 1961 act requires the Board of Regents to “designate three (3) of its members as a permanent Personnel Committee ... to enforce and perform for all its non-academic personnel, except those in positions specifically exempted by the governing body on analogy to the exemptions of section 7 of this act, the policies and duties given to the State Personnel Board by [the other appropriate sections of the act].”

Pursuant to this authority, the Board of Regents on June 18, 1965, exempted from the classified staff the position of Master of the R. V. Thompson. The State Higher Education Personnel Law gave to the governing board of each institution the authority to exempt from the act, subject to the employee’s right of appeal' to the Higher Education Personnel Board, classifications involving research activities. RCW 28B.16.040(5). Pursuant to this authority, the Board of Regents continued the exemption of numerous positions within the university previously exempted under the 1961 act, including the position of Master of the R. V. Thompson, on January 16,1970.

The appeal of the exemption by appellant to the Higher Education Personnel Board was under RCW 28B.16.120(3) which provides that “when an appeal is initiated under this subsection the decision of the higher education personnel board shall be final.”

This provision in the statute, for finality of the decision of the Higher Education Personnel Board on the issue of whether their determination is final and nonappealable, is conclusive of this question. Absent arbitrary and capricious action, this court will not interfere with that administrative determination where its jurisdiction has been circumscribed by statute. Deaconess Hosp. v. State Highway Comm’n, 66 Wn.2d 378, 403 P.2d 54 (1965). The apparent theory of the Board of Regents in exempting the position of appellant as Master of the R. V. Thompson was that, in light of the numerous research functions of the vessel, his job as master was more closely analogous to a research position than that of master of a smaller vessel which was part of the classified employment program of the university.

While there are plausible arguments that can be made that this analogy is incorrect, we do not find it so extended as to hold that there has been arbitrary and capricious action by the Board of Regents. State ex rel. Cosmopolis Consol. School Dist. 99 v. Bruno, 61 Wn.2d 461, 378 P.2d 691 (1963). The uniformity of application and reliance upon the presumed expertise of the Higher Education Personnel Board is preserved by this policy of finality and is a proper legislative determination. Gogerty v. Department of Institutions, 71 Wn.2d 1, 426 P.2d 476 (1967). In that case the court recognized that the legislative intent was for the personnel board to become, by virtue of background and experience on the job, especially knowledgeable in the field of civil service administration. Cunningham v. Community College Dist. 3, 79 Wn.2d 793, 489 P.2d 891 (1971).

Appellant argues that the issue in the case is not whether the position as Master of the R. V. Thompson was properly exempted but whether, in fact, he was discharged without the proper procedure when he was changed from captain of the Brown Bear to captain of the R. V. Thompson. Alternately, he claims that even if this was not in fact a discharge, he should have been affirmatively notified that he was moving from a nonexempt to an exempt position. There is nothing in the record to compel this court to hold that appellant was dismissed from his job as Master of the Brown Bear and therefore the civil service rules pertaining to dismissal should have been followed. On the contrary, the record shows the position as Master of the Brown Bear was being eliminated with the retirement of the vessel and that the appointment as Master of the R. V. Thompson was to a position which was already exempted by the Board of Regents.

A member of the classified staff may take “a temporary appointment in an exempt position, with the right to return to his regular position, or to a like position, at the conclusion of such temporary appointment.” Laws of 1961, ch. 1, § 10; RCW 28B.16.050. Appellant has not sought relief under this section of the act and what his rights are, if any, under this provision we do not determine.

Contrary to appellant’s claim, there is no requirement that the Higher Education Personnel Board act before the Board of Regents itself acts to determine exempt classifications in certain categories. To so hold would require the personnel board to review “on appeal” its own determination made prior to the action by the Board of Regents. The statutory procedure followed in this case does give the appellant the right to have the Higher Education Personnel Board review the actions of the Board of Regents in establishing exempt classifications. The personnel board did in fact affirm the action of the regents in creating the exemptions.

Appellant urges that the university had an affirmative duty to notify appellant that he was moving from a classified position to an exempt position. No authority is cited to sustain the imposition of this affirmative duty on the university under the facts of this case and we decline to so hold. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

The judgment is affirmed.¹

Finley, Hamilton, Stafford, and Brachtenbach, JJ., concur.

1 Judge William F. LeVeque participated as a Justice Pro Tempore at the argument of this appeal, but died prior to the filing of the opinion.