No. 25022-5-II.The Court of Appeals of Washington, Division Two.
Filed: January 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 98-2-02256-3, Hon. Wm. T. McPhee, August 11, 1999, Judgment or order under review.
Counsel for Appellant(s), Victoria L. Brennan (Appearing Pro Se), 6914 Glen Annie Ln. SW, Olympia, WA 98512.
Counsel for Respondent(s), Michael P. Sellars, L P Division Atty. General’s Office, P.O. Box 40145, Olympia, WA 98504-0145.
ELAINE M. HOUGHTON, J.
Victoria Brennan appeals the decision of the Personnel Appeals Board upholding her termination from The Evergreen State College.
We affirm.
Facts
Brennan first became employed at The Evergreen State College (TESC) in 1981 as a cashier in the Finance and Administration Division. Following her promotion to the position of Fiscal Technician III in the Technical Support and Reporting unit, she accepted the position of Fiscal Technician III in the Student Accounts unit of the Controller’s Office in 1995.
One of Brennan’s responsibilities in that position was to complete a `student accounts entry document’ form, which her supervisor, Colin Orr, reviewed for accuracy upon completion. Personnel Appeals Board Record (PABR) at 8. Between October 23, 1996 and February 7, 1997, Orr found numerous errors in the documents Brennan completed, including wrong account numbers, transposed numbers, incorrect number of credit hours, and incorrect tuition charges or credits.
Brennan also was responsible for completing `journal entries’ forms.
The forms she completed contained incorrect account numbers, incorrect amount numbers, and incorrect code numbers. PABR at 9.
On October 24, 1996, Brennan billed a student for a tuition payment approximately three months after being directed to do so. Her delay caused a delay in posting college credits to the student’s record. The billing card Brennan eventually completed failed to include the student’s name and identification number, which created difficulties in determining where to post the payment.
In January 1997, Brennan failed to note a discrepancy in a student’s account and did not approve the student for registration. The student complained to Orr, who investigated and cleared the student for registration. That same month, Brennan charged a student for credits he was not taking. TESC had to refund the overcharge.
Brennan made numerous additional errors. According to Orr, after 18 months on the job, she failed to have the basic knowledge expected of an employee at her work level. Because of Brennan’s repeated errors, Orr spent more time reviewing and correcting her work than any other employee’s work in the unit. Brennan was never assigned all the duties expected of the Fiscal Technician III position because of her inability to accurately complete the limited assignments she received when she started working in the unit.
Brennan’s performance evaluation for the period of March to September 1996 rated her performance as `Unsatisfactory’ in the categories of Quality of Work, Quantity of Work, Job Knowledge and Working Relationships. PABR at 10. Under the Quality of Work category, the evaluation indicated as follows:
After thirteen months as a Fiscal Technician III . . . your work has not improved and is unsatisfactory. One of the main functions of your position is to balance the non-student receivable on a monthly basis and to provide me with a copy of the aged receivable report. . . . Because of inaccuracy in the report, it caused the year end financial reports to be inaccurate. This is a reflection on the whole college. . . . I am doing work in my office that I should be able to assign to you as Fiscal Technician III. I am unable to do so, because you are not accurately completing the work that you are currently assigned. Because you are not doing the work of your predecessor you have caused your fellow workers to increase their work load. After thirteen months on the job I still have to monitor your work as though you were a Fiscal Technician II.
At this point and time I shouldn’t have to monitor your work at all.
PABR at 10-11. This evaluation followed one for the period of August 1995 to January 1996 that rated Brennan as `Needs Improvement’ in the areas of Quality of Work, Quantity of Work, Job Knowledge and Working Relationships. PABR at 11. The evaluation stated that Brennan’s work was `inconsistent and needs improvement’ and that she was not working at the Fiscal Technician III level. PABR at 11. Brennan’s performance evaluation for the period from September 1994 to August 1995 rated her as `Needs Improvement’ in the areas of Quality of Work, Quantity of Work and Working Relationships. PABR at 11.
Brennan received a pre-disciplinary letter dated March 4, 1997, advising her that TESC was considering dismissing her from her position as a Fiscal Technician III. The letter outlined the charges and included documentation consisting of copies of Brennan’s work with numerous errors identified.
On March 7, 1997, Brennan attended a pre-disciplinary meeting to discuss the allegations in the March 4 letter. Her union representative also attended the meeting, as did the TESC controller and Orr. Brennan provided a written statement addressing the charges and explained, in essence, that she would not have made the errors if given more time.
By letter dated March 12, 1997, Brennan was dismissed. The dismissal letter outlined numerous deficiencies in Brennan’s work and described two incidents of insubordination.
Brennan appealed her dismissal to the Personnel Appeals Board, which affirmed following a hearing on the merits. The Board concluded that the evidence supported TESC’s charge of incompetence but that it did not support the charge of insubordination. The Board further concluded that dismissal was appropriate:
[Brennan] was given ample opportunity to improve her work performance, yet evidence established that the quality of her work continued to decline. Despite repeated guidance and one-on-one training she continued to produce poor quality work. Furthermore, although many of [Brennan’s] errors were corrected prior to being finalized, this does not mitigate the fact that [Brennan] was unable to work at the level expected of an employee with her experience and background. Because of [Brennan’s] demonstrated lack of improvement and lack of understanding of basic Fiscal Technician III duties, and because of the potential negative impact to students and the college, the sanction of dismissal should be affirmed and the appeal should be denied.
PABR at 16.
Brennan appealed the Board’s decision to the Thurston County Superior Court, which affirmed her termination. She now appeals that decision.
Analysis
The standard of review that governs this case is set forth in RCW 41.64.130. Fuller v. Employment Sec. Dep’t, 52 Wn. App. 603, 605, 762 P.2d 367 (1988), review denied, 113 Wn.2d 1005 (1989). RCW 41.64.130 provides for appeals from Board decisions that were (1) founded on or contained an error of law; (2) contrary to a preponderance of the evidence; (3) materially affected by unlawful procedure; (4) in violation of the constitution, or (5) arbitrary or capricious. RCW 41.64.130(1)(a)-(e); Fuller, 52 Wn. App. at 605. This court reviews the decision of the Board de novo on the record made at the board level, applying the same standard of review as the superior court. Adams v. Dep’t of Soc. and Health Servs., 38 Wn. App. 13, 14, 683 P.2d 1133 (1984). Our review thus is necessarily limited to those issues properly before the Board. Trucano v. Dep’t of Labor and Indus., 36 Wn. App. 758, 761, 677 P.2d 770 (1984). In her pro se appeal, Brennan refers to the public duty doctrine, to Washington’s Law Against Discrimination, and to the Industrial Insurance Act in arguing that the Board and the trial court erred in upholding her termination. Because none of these issues was before the Board, they will not be considered here.
Brennan argues further that this court should accept 1750 new exhibits in examining her claims of error. As stated above, however, our review is limited to the record before the Board, and that record did not include the exhibits to which Brennan now refers. Consideration of this evidence pursuant to RAP 9.11 would be both inappropriate and unwarranted. Brennan’s argument that she received ineffective assistance of counsel because these exhibits were not presented to the Board or to the superior court also fails. Assuming that she may assert an ineffective assistance claim in this context, she does not succeed in proving that her attorney was not effective in providing a meaningful hearing. See In re Moseley, 34 Wn. App. 179, 184, 660 P.2d 315, review denied, 99 Wn.2d 1018
(1983); but see Nicholson v. Rushen, 767 F.2d 1426 (9th Cir. 1985) (generally, plaintiff in civil case has no right to effective assistance of counsel).
The superior court found substantial evidence to support the Board’s findings and concluded that the Board’s approval of the sanction of dismissal was not arbitrary or capricious. Because Brennan does not assign error to any of the Board’s findings in her appeal before this court, they are verities. See Fuller, 52 Wn. App. at 605-06. The findings reveal that Brennan made repeated errors despite her previous experience and training, despite the additional supervision and instruction she received, and despite numerous warnings that her job performance required improvement.
These findings support the Board’s conclusion that Brennan was incompetent and that her competence warranted her dismissal. See Trucano, 36 Wn. App. at 761-62 (Board’s decision to opt for dismissal not arbitrary or capricious where made with due consideration of the facts and circumstances).
The findings also establish that Brennan was accorded due process as required by Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Loudermill requires an employee with a property interest in continued employment to be afforded due process before being deprived of that interest. Loudermill, 470 U.S. at 542. Brennan was a civil servant who could only be fired for cause pursuant to WAC 251-11-030. She thus possessed a constitutionally protected property interest in her continued employment. See Danielson v. City of Seattle, 108 Wn.2d 788, 796-97, 742 P.2d 717 (1987).
The due process contemplated by Loudermill requires a pretermination hearing providing oral or written notice of the charges against the employee, an explanation of the employer’s evidence, and an opportunity for the employee to present his or her side of the story. Loudermill, 470 U.S. at 546. In the public employment context, the pretermination hearing need only determine whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. Loudermill, 470 U.S. at 545-46. An informal conference satisfies Loudermill. Danielson, 108 Wn.2d at 798.
Brennan here argues that she was denied due process by the `surprise’ pre-termination hearing that occurred two hours before scheduled. Br. of Appellant at 9. Although the record shows that the March 7 meeting occurred at 11:30 a.m. instead of the originally scheduled 1:30 p.m., it also shows that neither Brennan nor her union representative requested additional time to prepare for the meeting, and that Brennan eventually was given an opportunity to complete her written statement. Brennan was given notice of the charges, an explanation of the employer’s evidence, and an opportunity to present her side of the story both orally and in writing.
There was no due process violation.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, P.J., BRIDGEWATER, J.