rulings on permissive intervention are reviewed for an abuse of discretion
How later courts described this case
- rulings on permissive intervention are reviewed for an abuse of discretion
- "An error of law is `an error in applying the law to the facts as pleaded and established.'" (internal quotation marks omitted) (quoting Westerman v. Cary, 125 Wash.2d 277, 302, 892 P.2d 1067 (1994))
- “An error of law is ‘an error in applying the law to the facts as pleaded and established.’ ” (internal quotation marks omitted) (quoting Westerman v. Cary, 125 Wn.2d 277, 302, 892 P.2d 1067 (1994))
- union members not required to exhaust administrative remedies before judicially challenging jurisdiction of Public Employment Relations Commission
Written by the judges who cited it.
The opinion
Alexander, J.
(dissenting) — Although I agree with the majority that the trial court did not err in denying the Union’s motion to intervene and in refusing to require the deputy prosecutors to exhaust administrative remedies, I disagree with its more significant conclusion that deputy prosecutors are exempt from the Public Employees’ Collective Bargaining Act (Act).
As the majority points out, the central issue before us is *659 whether deputy prosecutors fall within the-exception to the definition of public employees as persons “(b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer.” RCW 41.56.030(2)(b). If they do not fall within it, the majority concedes, the Act applies to them.
In holding that the deputy prosecutors fall within the exception, the majority relies on RCW 36.27.040, which is the statute that authorizes the elected prosecuting attorney to appoint deputies. It provides:
The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor’s office .... The prosecuting attorney shall be responsible for the acts of his deputies and may revoke appointments at will.
Despite the language that a prosecutor may revoke the appointment of a deputy “at will,” the majority makes a major leap to a conclusion that deputies are appointed for a “ ‘specified term of office.’ ” Majority op. at 655. What, I ask, is the specified term of office of a person who serves entirely at the pleasure of the appointing authority—is it one day or the entire term of office of the appointing authority? The answer to the question is that it depends on the judgment of the appointing person. The employment relationship, in short, is a classic at will employment relationship and cannot by any stretch be considered employment for the “specified term of office” referred to in RCW 41.56.030(2)(b).
It is readily apparent that the exception does not include deputy prosecutors and was meant, instead, to apply to persons who are appointed to boards or commissions by the executive head or body of a public employer. This would include, for example, persons appointed as regents of our state’s universities (see RCW 28B.20.100 which provides for six-year terms for regents of the University of Washington) or persons appointed to six-year terms on the Fish and Wildlife, Transportation or Gambling Commissions. RCW *660 77.04.030, RCW-47.01.051 and RCW 9.46.040. It was not, in my view, meant to apply to at-will employees of an executive head of a public employer. While there may be good public policy reasons why such persons should be exempt from the jurisdiction of PERC, that is for the Legislature to decide, not this court. Because the Legislature has clearly provided that deputy prosecutors do not fall under the exemption in question, we must respect its judgment. I, therefore, dissent.
Madsen, J., concurs with Alexander, J.