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Ahmed v. Department of Social and Health Services8/18/2000
pre-hearing conferences provides:
Any objections or corrections must be filed with the Executive Secretary within 20 days of the date of this statement{.} . . . This Statement becomes part of the official record of the proceedings, and the stipulations will be binding on the parties, unless this statement is modified for good cause.'
Ahmed's counsel sent a notice of objection, dated June 6, 1997, to the Board by facsimile on June 9, 1997. The Board received the original on June 11, 1997. In the notice, he stated that the Board had failed to set the case for hearing and render a final decision within 90 days of his notice of appeal as required by RCW 41.64.100.
Before the Board, Ahmed asked to be reinstated. He argued that he had provided a legitimate medical explanation for each of the incidents for which he was disciplined and that his hearing disability affects his ability to judge and moderate the level of his voice. He also argued that he was terminated for speaking out about his concerns regarding patient care. The Board upheld the termination.
ANALYSIS
I. Jurisdiction
Ahmed first contends that, under RCW 41.64.100, the Board lost jurisdiction of the appeal because it did not render a decision within 90 days of receiving his appeal.
RCW 41.64.100 provides, in part:
(1) In all appeals over which the board has jurisdiction involving reduction, dismissal, suspension, or demotion, the board shall set the case for hearing, and the final decision, including an appeal to the board from the hearing examiner, if any, shall be rendered within ninety days from the date the appeal was first received. (Emphasis added.)
Ahmed argues that, in using the word 'shall,' the Legislature intended the 90-day requirement to be mandatory. Similar arguments have been rejected in three Washington cases. See Giles v. Department of Soc. & Health Servs., 90 Wn.2d 457, 460, 583 P.2d 1213 (1978); Washington State Liquor Control Bd. v. Washington State Personnel Bd., 88 Wn.2d 368, 377-78, 561 P.2d 195 (1977); Ticeson v. Department of Soc. & Health Servs., 19 Wn. App. 489, 492-93, 576 P.2d 78 (1978).
More importantly, Ahmed stipulated to the hearing dates. And RCW 41.64.100(1) provides that an extension to the 90-day period 'may be permitted if agreed to by the employee and the employing agency.' Although Ahmed did file a notice of objection after the pre-conference statement was issued, he failed to object within 20 days as required by the statement. Because the statement was issued on May 19, 1997, Ahmed was required to file his notice of objection with the Board by June 8. Ahmed's notice of objection is dated June 6, but was not received by the Board until June 11. And, even assuming the June 9 facsimile was a valid means of filing the objection, it was sent one day too late. Therefore, Ahmed's jurisdictional argument is without merit.
II. Due Process
Ahmed argues that the nearly 10-month delay in hearing his appeal violated his due process rights. He contends that the 90-day requirement of RCW 41.64.100 is 'nothing other than a legislative proclamation of what is minimally required for due process.' Ahmed's argument is misplaced. Although we look to state law to define a property interest under the due process clause, state law does not define the amount of process that is due. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
Civil service employees who can be discharged only for cause have a constitutionally protected property interest in their employment and are entitl
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