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AGLO 1982 No. 6 - March 17, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- HIGHER EDUCATION PERSONNEL BOARD ‑- CIVIL SERVICE ‑- COLLEGES AND UNIVERSITIES ‑- COMMUNITY COLLEGES ‑- COSTS OF TRANSCRIPT ON APPEAL

(1) The requirement of WAC 251-12-285 that employers pay the initial costs of transcribing the record for appeal under RCW 28B.16.130 is not enforceable in personnel actions arising under RCW 28B.16.120 in view of the Washington Supreme Court's decision in the analogous case of Zoutendyk v. Washington State Patrol, 95 Wn.2d 693, 628 P.2d 1308 (1981).

(2) In the event that the employee prevails on such an appeal, the Higher Education Personnel Board may recover its costs in preparation of the transcript from the employing institution or related board pursuant to RCW 28B.16.130;  if, however, the institution or related board prevails, there is no provision in current law allowing recovery against the employee.

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                                                                  March 17, 1982

Honorable Douglas E. Sayan
Director
Higher Education Personnel Board
1200 Black Lake Blvd., FT-11
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1982 No. 6

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on two questions which we paraphrase as follows:

            (1) Is the requirement of WAC 251-12-285 that employers pay the initial costs of transcribing the record for appeal under RCW 28B.16.130 enforceable in light ofZoutendyk v. Washington State Patrol, 95 Wn.2d 693 (1981)?

            (2) If the rule is not enforceable and the Higher Education Personnel Board must bear the initial costs of the transcript, can it ultimately recover those costs, and under what circumstances?

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            The rule which is being questioned was adopted by the Higher Education Personnel Board in 1977 and reads as follows:

            "WAC 251-12-285Superior court appeals ‑- Statement of facts ‑- Preparation.  (1) When an appellant pursues an appeal into superior court and the appellant wants the statement of fact (written record of oral proceeding at the hearing) included with the certified record, the appellant must pay the cost of the preparation of the statement of fact.  Liability for payment of the cost of the statement of fact used on appeal shall await determination of the appeal, and shall be made by the employing institution if the employee prevails.  In such cases, the appellant will either:

            "(a) Order the statement of fact from the court reporter and direct that the original be transmitted to the HEPB for inclusion on the certified record; or

            "(b) If the proceedings were recorded mechanically, post a deposit with the director in an amount sufficient to cover the reasonable cost of the preparation of the statement of fact as determined by the director.  Prior to transmitting the statement of fact to the court, final adjustment reflecting the actual cost of preparation of the statement of fact will be made.

            "(2) In the event the appellant requests less than the full statement of facts, the respondent may order additional portions and shall be responsible for the cost of such preparation."

            This rule requires an appellant to superior court (employee or institution of higher education) to initially pay the cost of preparation of the transcript or to post a bond with the Higher Education Personnel Board director, in an amount deemed sufficient by him, if the HEPB prepares the transcript.

            The statutory function of the Higher Education Personnel Board concerning the transcript is contained in RCW 28B.16.130 as follows:

             [[Orig. Op. Page 3]]

            ". . . The board shall prepare an official record of the hearing, including all testimony, recorded manually or by mechanical device, and exhibits; but it shall not be required to transcribe such record unless requested by the employee, who shall be furnished with a complete transcript upon payment of a reasonable charge therefor.  Payment of the cost of a transcript used on appeal shall await determination of the appeal, and shall be made by the employing institution or related board if the employee prevails.

            Thus, the Board must prepare an official record of the hearing but need not transcribe it unless requested by the employee.  The employee can obtain for himself a complete transcript upon payment of a reasonable charge therefor.  However, payment of the cost of a transcript used on appeal shall await determination of the appeal, and shall be paid by the institution or related board only if the employee prevails.

            The rule (in effect) attempts to modify this statute by requiring the appellant, whether an employee, institution or related board, initially to pay for the transcript transmitted to the court, or in lieu thereof, to post a bond with the Higher Education Personnel Board before the Board will "transmit to the court a certified transcript" as required by RCW 28B.16.150 within thirty days of the appeal.  It is, however, a cardinal rule of statutory construction that an administrative agency cannot promulgate rules which amend or conflict with statutory enactments.  Fahn v. Cowlitz County, 93 Wn.2d 368, 610 P.2d 857 (1980).

            Moreover, inZoutendyk v. Washington State Patrol, 95 Wn.2d 693, 628 P.2d 1308 (1981) (referred to in your letter), the Washington Supreme Court indeed struck down an administrative practice of the State Personnel Board under a statutory scheme which was then identical to that which governs the Higher Education Personnel Board in the preparation and transmittal of an appeal transcript to the superior court.1/   In so doing the court inZoutendyk said:

            "We agree that RCW 41.06.180 does indicate that the board initially must bear the cost of transcription.  It reads in part:  'The board shall prepare an official record of the hearing . . . Payment of the cost of a transcript  [[Orig. Op. Page 4]] used on appeal shall await determination of the appeal'.  Further support is found in RCW 41.06.200(3) wherein the duties of the Board are outlined.  The Board 'shall transmit to the court a certified transcript' 30 days after notice of appeal."

            Therefore, we are of the opinion that, by analogy, the practice manifested by WAC 251-12-285,supra, is likewise invalid.  Under theZoutendyk rationale neither an employee, an institution of higher education nor a related board can be required to post a bond or otherwise initially pay for the transcript on an appeal to superior court.2/   WAC 251-12-285 is therefore, to that extent, unenforceable.

            Question (2):

            By this question you have asked whether, in the event that the Higher Education Personnel Board must initially pay the costs of the transcript, it can ultimately recover those costs from the parties‑-and, if so, under what circumstances.

            RCW 28B.16.130 itself provides the answer if the employee prevails on his or her appeal to court.  Once again, that statute states in part that:

            ". . . Payment of the cost of a transcript used on appeal shall await determination of the appeal, and shall be made by the employing institution or related board if the employee prevails."

            If, however, the institution or related board prevails, the statute is silent on the Higher Education Personnel Board's ability to recover its costs.  There is no provision allowing recovery against the employee in such a case.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

RICHARD M. MONTECUCCO
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Compare, RCW 28B.16.130, supra, with RCW 41.06.180 as it then read.

2/It is interesting to note that with the enactment of the new Department of Personnel Appeals Board law (chapter 311, Laws of 1981), the comparable statute is now codified as RCW 41.64.110 and has been amended to provide that "[t]he employee shall be reimbursed by the employing agency for the cost of the transcript used on appeal if the employee prevails before the court."

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