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Ahmed v. Department of Social and Health Services8/18/2000
ed to due process upon termination. Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997) (citing Board of Regents v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)). The process due can be provided by a pre-termination opportunity to respond, coupled with a post-termination administrative procedure. Loudermill, 470 U.S. at 547-48. 'At some point, a delay in the post-termination hearing would become a constitutional violation.' Loudermill, 470 U.S. at 547. But, unless the employee offers some 'indication that his wait was unreasonably prolonged,' a nine-month delay is not per se unconstitutional. Loudermill, 470 U.S. at 547.
Here, much of the delay was apparently attributable to the appointment and substitution of counsel and to scheduling conflicts. Ahmed has not shown that his hearing was unreasonably delayed. We, therefore, reject his due process claim.
Ahmed also contends that he was prejudiced by the delay because witnesses Moses and Long could not remember events and had to refer to their written statements. Moses did ask to refer to her notes to 'remember the chain of events.' And, Ahmed's attorney objected that she should not be allowed to use her notes unless she was completely unable to remember events. The Board allowed her to refresh her memory but did not let her read from her notes. See ER 612. Ahmed has not shown that he was prejudiced by this. Moses was an adverse witness. Any loss of her memory would hurt the agency, not Ahmed. And, if she testified differently than her earlier statement, Ahmed's attorney could point this out on cross-examination.
Similarly, Nurse Long was concerned with the chronology of events and was afraid he would get things out of order. Ahmed's attorney objected, 'I would ask that we get his recollection to the extent he is able before he attempts to revive it by returning to his statement.' Again, the Board allowed Long to review his notes but not to read from them. And, as with Moses, Ahmed has not shown that he was prejudiced by the witness's reference to his notes.
III. Standard of Review
An aggrieved employee may challenge a Board decision on grounds it is (1) founded on an error of law; (2) contrary to the evidence; (3) materially affected by unlawful procedure; (4) based upon a constitutional violation; or (5) arbitrary or capricious. RCW 41.64.130(1)(a)-(e). We review the Board decision de novo, applying the same standard of review as the superior court. Goodman v. Employment Sec. Dep't, 69 Wn. App. 98, 102, 847 P.2d 29 (1993) (citing Adams v. Department of Soc. & Health Servs., 38 Wn. App. 13, 14, 683 P.2d 1133 (1984)); see RCW 41.64.140.
An action is arbitrary and capricious if it is 'willful and unreasonable' and is taken 'without consideration and in disregard of facts or circumstances.' Terhar v. Department of Licensing, 54 Wn. App. 28, 34, 771 P.2d 1180 (1989); see Sullivan v. Department of Transp., 71 Wn. App. 317, 321, 858 P.2d 283 (1993). An action is not arbitrary and capricious when 'there is room for two opinions' and the decision is made 'honestly and upon due consideration.' Terhar, 54 Wn. App. at 34.
We review factual findings to determine whether ''there exists . . . any competent, relevant and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings.'' Ballinger v. Department of Soc. & Health Servs., 104 Wn.2d 323, 328, 705 P.2d 249 (1985) (quoting Gogerty v. Department of Insts., 71 Wn.2d 1, 8-9,
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