reviewing the merits of a challenge to a finding on appeal despite technical violations of RAP 10.3 where the nature of the challenge was clear and the challenge to the finding extensively discussed in the appellate briefing
How later courts described this case
- reviewing the merits of a challenge to a finding on appeal despite technical violations of RAP 10.3 where the nature of the challenge was clear and the challenge to the finding extensively discussed in the appellate briefing
- failure to designate a specific finding of fact as error in an appeal from agency determination did not bar appellate review under *34 RAP 10.3 where nature of the challenge was clear and the challenge to the finding was extensively discussed in the brief
- failure to designate a specific finding as error in appeal from agency determination did not bar review under RAP 10.3(b) where nature of challenge was clear and challenge to the finding was extensively discussed in the brief
Written by the judges who cited it.
The opinion
Green, A.C.J.
(dissenting) — I am constrained to disagree with the majority's application of the standard of review and, therefore, dissent.
The majority characterizes the questions involved as mixed questions of law and fact. Mixed questions exist "'where there is dispute both as to the propriety of the inferences drawn by the agency from the raw facts and as to the meaning of the statutory term'." They require determining the meaning of the statute and how it applies to the facts. Franklin Cy. Sheriff's Office v. Sellers, 97 Wn.2d 317, 330 , 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983) (quoting Daily Herald Co. v. Department of Empl. Sec., 91 Wn.2d 559, 561 , 588 P.2d 1157 (1979)). Both parties agree earnable compensation for determining retirement benefits is based on salary for personal services rendered. RCW 41.32.010(ll)(a). Hence, there is no dispute concerning the meaning of the statute. The majority does not apply that definition to the payments here except to note the statute did not specifically exclude them from earnable compensation. Instead, they conclude the payments should be included in earnable compensation because of the treatment given them by the parties.
That treatment is the gravamen of Dr. Hitchcock's appeal. He asserts, and the majority agrees, the Department of Retirement Systems is estopped to deny Dr. Hitchcock is entitled to have the payments in lieu of transportation expenses included in computing his retirement *78 benefits because (1) the school board intended that the payments be part of his salary and (2) Mr. Reiley, then assistant director of the Department, assured him the payments would be treated as earnable compensation in computing retirement benefits. The Department's findings of fact on these two issues are critical to the review here and, in my opinion, determinative of this appeal. Thus, the questions involved are purely factual, not mixed.
The director's unchallenged findings state Mr. Reiley advised Dr. Hitchcock the payments in lieu of transportation expenses would qualify as "earnable compensation" if the school district had determined they were for personal services. He further found, however, the school district's purpose in providing for the payments "was not to compensate [Dr. Hitchcock] in the form of salary for personal services rendered" but was "to reimburse [him] for local business expenses in a negotiated flat amount rather than to require [him] to submit claims for actual expenses as they were incurred." In light of the director's finding that the payments were not intended to be for personal services, Mr. Reiley's statement was not inconsistent with the Department's position that these payments are not includable in earnable compensation. Therefore, the Department's conclusion that equitable estoppel was not established is correct. See Beggs v. Pasco, 93 Wn.2d 682, 689 , 611 P.2d 1252 (1980).
The majority concludes the Department's findings are clearly erroneous. Because of recent pronouncements by the Supreme Court, I am compelled to dissent on the majority's application of that standard here. As pointed out, the clearly erroneous standard allows reversal of the agency's findings if, after reviewing the record, the court is left with a definite and firm conviction a mistake has been made. Renton Educ. Ass'n v. Public Empl. Relations Comm'n, 101 Wn.2d 435, 440 , 680 P.2d 40 (1984). Despite language in Franklin Cy. Sheriff's Office v. Sellers, supra at 324, that the standard allows for a broader, more intensive review of an agency's factual determinations, based on the entire *79 record, the court in Sellers made it clear that appellate courts may not reweigh evidence. Citing Thorndike v. Hes-perian Orchards, Inc., 54 Wn.2d 570 , 343 P.2d 183 (1959), the Sellers court, at pages 324-25, held this court may not reconcile conflicting evidence which has already been ruled upon by the fact-finding tribunal. Enforcing this pronouncement in Schuh v. Department of Ecology, 100 Wn.2d 180, 184 , 667 P.2d 64 (1983), the court overturned the Court of Appeals reversal of an agency determination where the agency's findings were supported by substantial evidence. The question here, then, is whether the Department's findings are supported by the evidence or reasonable inferences from the evidence.
Dr. Hitchcock's contract with the school board for the first 3 years of his employment as a superintendent stated:
That, in consideration of a salary of $33,500 to be paid the first year and $33,500 to be paid each of the next two years, said Superintendent agrees to perform faithfully the duties of Superintendent of Schools and to serve as Executive Officer of the Board of Education. The annual salary shall be paid in equal installments in accordance with the policy of the Board governing payment of other professional staff members in the District.
That the Board of Education shall provide the Superintendent with $1,800 annually in lieu of transportation in the performance of his official duties within Spokane County and for other local expenses in connection with his service as Superintendent during his employment under this contract.
(Italics mine.)
Although there was testimony the board intended that all the money paid to Dr. Hitchcock be used for computing his retirement benefits, the inescapable fact is that the payments in lieu of transportation expenses were and in subsequent contracts continued to be listed separately from Dr. Hitchcock's basic salary. The Department could thus infer from these contracts that the payments were advance reimbursement for anticipated expenses, not payments for per *80 sonal services. Further, there is evidence in the record which supports the director's finding that although there was not an exact accounting of transportation expenses, the amounts provided for in the contracts were not unreasonable in light of what Dr. Hitchcock's actual expenses might be. This court is not permitted under Sellers to ignore the director's findings which are supported by the evidence to obtain a different result. See Schuh, at 184.
While there is evidence in the record persuasively supporting Dr. Hitchcock's argument, this court cannot ignore the Supreme Court's strong admonition in Sellers and Schuh against reweighing the evidence presented to an agency fact finder. Since there is substantial evidence to support the director's findings, I am constrained to affirm.
Review denied by Supreme Court February 21, 1985.