¶ 1 Hillary Buechler appeals the dismissal of her claims against Wenatchee Valley College (WVC) and two of its administrators. The claims challenged disciplinary action taken against Ms. Buechler for sharing prescription medication for her migraine headaches with two classmates. On material facts that were undisputed, the trial court correctly concluded that the evidence did not support Ms. Buechler's claims for relief. For that reason, and because Ms. Buechler demonstrates no error by the trial judge in failing to recuse herself, we affirm.
¶ 2 Hillary Buechler was enrolled in the nursing program at WVC until she was dismissed from the program in August 2009 for sharing three prescription pills (Flexeril and Ritalin) with classmates. Ms. Buechler had been prescribed both medications to treat her rapid onset migraines.
¶ 3 Ms. Buechler's sharing of her prescription medication first came to the attention of the college administration when Jennifer Capelo, nursing administrator for WVC's nursing program and associate dean of allied health, received a phone call from the parent of a nursing student, who reported that her daughter had seen Ms. Buechler provide prescription drugs to fellow students. Later the same day, two nursing students came to Dean Capelo's office, unsolicited, to report that they had seen Ms. Buechler give prescription drugs to two classmates.
¶ 4 Dean Capelo telephoned Ms. Buechler about the students' allegations the same afternoon. Ms. Buechler did not deny that she shared prescription drugs with fellow students and, at Dean Capelo's request, provided a written statement the following day. Her signed statement read:
Clerk's Papers (CP) at 382.
¶ 5 Dean Capelo forwarded Ms. Buechler's statement, statements she had obtained from the two students who approached her on August 4, and a statement from the student who received the Ritalin tablet, to Marco Azurdia, vice-president of student development for WVC. Dean Capelo also reported Ms. Buechler's actions to the Washington Department of Health in light of Ms. Buechler's licensure, at the time, as a certified nurse assistant.
¶ 6 Mr. Azurdia asked that Ms. Buechler meet with him on August 31. He considered
¶ 7 Ms. Buechler attended the August 31 meeting with her lawyer. She did not deny giving the drugs to the students and, when asked, stood by her August 5 written statement. After hearing her out, Mr. Azurdia told Ms. Buechler and her lawyer he had decided that her conduct warranted dismissal from the nursing program, although not from the college. He told her that she was entitled to appeal his decision.
¶ 8 In a letter sent the same day, Mr. Azurdia stated that based on Ms. Buechler's admissions, "[t]he college is proceeding with disciplinary actions against you." CP at 351. He itemized the provisions of the college's student handbook, nursing handbook, and The American Nurses Association Code of Ethics that he believed she had violated. The letter stated that due to the listed violations, "the college is suspending you from the nursing program immediately." Id. It concluded:
Id.
¶ 9 Ms. Buechler did not appeal Mr. Azurdia's decision. Instead, she filed the action below.
¶ 10 Ms. Buechler's complaint, which named WVC and Dean Capelo as defendants (Mr. Azurdia was later named a defendant by amendment), alleges claims for (1) negligent dismissal from the nursing program in violation of WVC's disciplinary procedures and requirements, (2) violation of her constitutional rights to due process and equal protection, (3) failure to comply with promises of specific treatment in specific circumstances, and (4) promissory estoppel.
¶ 11 In particular, Ms. Buechler alleged that WVC implemented disciplinary action contrary to the procedure provided by Title 132W of the Washington Administrative Code (WAC). As a result, she asserted, she was "deprived of the ability to confront her accusers, to cross examine them, to know the evidence presented against her or to a timely hearing in a meaningful manner before her removal from the Nursing Program." CP at 6.
¶ 12 A few months after Ms. Buechler's action was filed, Superior Court Judge Lesley Allan, to whom the case was assigned, wrote the parties' lawyers, advising them that between 1990 and 1998 she had served as an assistant attorney general, assigned to represent WVC. She also disclosed that she believed she knew Dean Capelo as the owner of a quilt store the judge had frequented before the store closed. The judge concluded:
CP at 204. Ms. Buechler's lawyer responded the following week, stating he did not feel the judge needed to recuse herself.
¶ 13 Several weeks later, the parties filed cross motions for summary judgment. After taking several issues under advisement, the trial court granted summary judgment dismissing all of Ms. Buechler's claims. Ms. Buechler appeals.
¶ 14 Ms. Buechler assigns error to what she characterizes as several holdings of the trial court. In substance, she appeals the court's dismissal of her first three claims. She also assigns error to Judge Allan's failure to recuse herself, "placing the burden instead upon Buechler to move for a new judge." Br. of Appellant at 2.
¶ 15 In arguing on appeal that WVC violated her "due process rights," Ms. Buechler
¶ 16 The trial court dismissed Ms. Buechler's claims on summary judgment. "The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993).
¶ 17 WVC is a public institution of higher education. RCW 28B.50.040(15). As such, and as alleged by Ms. Buechler's complaint, its disciplinary proceedings are agency actions governed by the Administrative Procedure Act, chapter 34.05 RCW. RCW 34.05.010(2). WVC's board of trustees is required to enforce rules prescribed by the state board for community and technical colleges and is authorized to adopt its own rules, including rules relating to discipline. RCW 28B.50.140(13). The parties agree that the controlling discipline rules are those set forth in chapter 132W-115 WAC (Code of Student Conduct — Wenatchee Valley College). They disagree whether the applicable rules were followed by Mr. Azurdia.
¶ 18 Ms. Buechler argues that the rules did not authorize Mr. Azurdia, unilaterally, to dismiss her from the nursing program. She contends that in the case of serious disciplinary action — including dismissal from a professional program — the disciplinary rules require that she first receive a hearing before the academic regulations committee (ARC), a committee recognized and delegated responsibility in a number of provisions of chapter 132W-115 WAC. Ms. Buechler also reads Mr. Azurdia's August 31 letter as charging her, among other code of conduct violations, with distributing "illicit" drugs and violating the code of conduct in classroom and clinical situations — charges for which, she argues, he had no evidence.
¶ 19 WVC insists that Mr. Azurdia was authorized to dismiss Ms. Buechler from the nursing program unilaterally. The following regulations are supportive of its position that Mr. Azurdia could, at his option, either refer Ms. Buechler's disciplinary case to the ARC in the first instance or make a unilateral decision, in which case she could appeal to the ARC. The italicized language from the following provisions is relied upon by WVC:
(Emphasis added.)
¶ 20 For her part, Ms. Buechler cites other sections of chapter 132W-115 WAC that, it can be argued, call into doubt whether the dean or designee has authority to take such serious disciplinary action unilaterally. For example, WAC 132W-115-110(6) qualifies the dean's authority under subsection (4)(e), above, by providing that "summary suspension" of a student is only appropriate where the dean has cause to believe that the student "[p]resents an imminent danger either to himself or herself, other persons on the college campus or to the educational process" and has either committed a felony or violated a provision of chapter 132W-115 WAC. Where this heightened standard is satisfied, the remaining subsections of the rule contemplate that the suspended student will receive a probable cause hearing, with any continued suspension requiring the written approval of the president of the college. WAC 132W-115-110(7)-(13). While WVC now refers to the sanction imposed against Ms. Buechler as dismissal from the nursing program — and dismissal is what, in substance, it appears to have been — Mr. Azurdia's written confirmation of his decision stated "the college is suspending you from the nursing program immediately." CP at 352 (emphasis added).
¶ 21 The two sections of the WAC that follow 132W-115-110 address procedures to be followed by the ARC in handling charges of "serious disciplinary violations," "where suspension or summary suspension from college can result." WAC 132W-115-120, -130. They can be read to apply only when a serious disciplinary matter is referred or appealed to the ARC. But a colorable argument can be made from chapter 132W-115 WAC in its entirety that, reasonably read, the rules do not permit a dean who cannot summarily suspend a student unilaterally without triggering an automatic hearing or review, may nonetheless permanently dismiss a student from a professional program unilaterally without triggering any of the same safeguards. See also WAC 132W-112-130 (stating the students subject to disciplinary action "are entitled to a hearing, the procedures of which guarantee that the student will receive fair treatment" and "[p]ending action on college... charges, the status of a student will not be altered").
¶ 22 The issue before us is not how to reconcile these provisions, however. Under the procedure as understood by WVC — and WVC's reading is defensible, given the provisions it relies on — it explicitly notified Ms. Buechler that she had a right to appeal. Ms. Buechler was told in person and by letter that she had the right to appeal. Both WVC's student handbook and the nursing handbook laid out the steps to appeal. Disputes over the meaning of ambiguous procedural
¶ 23 WVC has created the ARC, a body that includes faculty, student, and administrative representatives, and has authorized it to hear student appeals of discipline decisions. By failing and refusing to appeal, Ms. Buechler deprived WVC of what it intended as a process of review should errors be made at the first stage of the disciplinary process.
¶ 24 A party may generally seek judicial review of administrative action only after exhausting all of the administrative remedies available within the agency whose action is being challenged. RCW 34.05.534; McConnell v. City of Seattle, 44 Wn.App. 316, 321, 722 P.2d 121 (1986). "Exhaustion is required when: (1) a claim is cognizable in the first instance by an agency alone; (2) the agency has clearly established mechanisms for the resolution of complaints by aggrieved parties; and (3) the administrative remedies can provide the relief sought." Milligan v. Thompson, 90 Wn.App. 586, 596, 953 P.2d 112 (1998) (citing S. Hollywood Hills Citizens Ass'n for Pres. of Neighborhood Safety & Env't v. King County, 101 Wn.2d 68, 73, 677 P.2d 114 (1984)).
¶ 25 The exhaustion doctrine advances a number of sound policies; among others, it avoids premature interruption of the administrative process, provides for full development of the facts, and gives an agency the opportunity to correct its own errors. Harrington v. Spokane County, 128 Wn.App. 202, 209-10, 114 P.3d 1233 (2005).
¶ 26 Ms. Buechler nonetheless argues that because she brought a claim under § 1983, it was unnecessary for her to exhaust her administrative remedies. WVC does not contend that exhaustion is a defense to her § 1983 claim;
¶ 27 Alternatively, Ms. Buechler argues that her failure to appeal Mr. Azurdia's decision should be excused on grounds of futility. A court may relieve a petitioner of the exhaustion requirement if exhaustion would be futile. RCW 34.05.534(3)(b). Whether exhaustion of administrative remedies would be futile is a question for the court. Beard v. King County, 76 Wn.App. 863, 871, 889 P.2d 501 (1995) (citing Estate of Friedman v. Pierce County, 112 Wn.2d 68, 77, 768 P.2d 462 (1989)).
¶ 28 It has been said that exhaustion is excused as futile when "`the available administrative remedies are inadequate, or if they are vain and useless.'" Orion Corp. v. State, 103 Wn.2d 441, 458, 693 P.2d 1369 (1985) (quoting 4 ROBERT M. ANDERSON, AMERICAN LAW OF ZONING § 26.10 (2d ed. 1977)). Futility that will excuse exhaustion arises only in rare factual situations. Dils v. Dep't of Labor & Indus., 51 Wn.App. 216, 219, 752 P.2d 1357 (1988). A plaintiff's subjective belief that an internal administration procedure is futile is insufficient to establish futility. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 133, 769 P.2d 298 (1989). Futility is not shown by speculation that appeal would have been futile. See Beard, 76 Wash.App. at 871, 889 P.2d 501 (plaintiffs could not ask court to excuse their failure to apply for promotion based on speculation that decision maker was biased against them).
¶ 29 According to Ms. Buechler, futility is evident here because Mr. Azurdia sat on the ARC and his initial decision would have "poisoned" the process. Br. of Appellant at 36. To begin with, the evidence establishes that Mr. Azurdia's role would be to present information to the panel, not to sit as
¶ 30 We next address the trial court's dismissal of Ms. Buechler's civil rights claim asserted under 42 U.S.C. § 1983. Section 1983 provides in relevant part:
A state agency or individual acting in his or her official capacity is not a "person" for purposes of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Ms. Buechler can assert a civil rights claim only against Dean Capelo and Mr. Azurdia in their individual capacities.
¶ 31 Dean Capelo and Mr. Azurdia concede that they were acting under the color of state law. They dispute whether Ms. Buechler is relying on a right secured by the Constitution or federal law. We conclude that we need not resolve the issue of Ms. Buechler's liberty or property interest because her claim was properly dismissed on summary judgment on another basis: she was provided as much due process as the Fourteenth Amendment requires. Cf. Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 85, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (resolving a claim on the same grounds).
¶ 32 "`Once it is determined that due process applies, the question remains what process is due.'" Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Even where a hearing is required, "the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved." Id. at 578-79, 95 S.Ct. 729. The plaintiffs in Goss were nine high school students who were suspended from school without the opportunity, either before or after the suspension decision, to respond to the charges against them. The United States Supreme Court held that the responsible school official must listen to a suspended student's version of the events either before suspension or thereafter — depending on the circumstances. Id. at 596, 95 S.Ct. 729 (Powell, J., dissenting). The Court explained that the essential requirement was not the manner of hearing the student out so much as a requirement that "in being given an opportunity to explain his version of the facts ... the student first be told what he is accused of doing and what the basis of the accusation is." Id. at 582, 95 S.Ct. 729 (majority). The notice of the charges required by Goss was, in the first instance, notice of the substance of the charges, not presentation of the evidence, for Goss states that it is only if "he denies the [charges]" that the student is due "an explanation of the evidence the authorities
¶ 33 The reasoning of Goss leads inescapably to the conclusion that if an institution bases its discipline solely on facts that are admitted by a student in an initial meeting, no further predeprivation hearing is required. See Cole v. Newton Special Mun. Separate Sch. Dist., 676 F.Supp. 749, 752 (S.D.Miss.1987) (when a student admits to the conduct giving rise to a suspension the need for a fact-finding hearing is obviated (citing Montoya v. Sanger Unified Sch. Dist., 502 F.Supp. 209 (E.D.Cal.1980); Black Coalition v. Portland Sch. Dist. No. 1, 484 F.2d 1040, 1045 (9th Cir.1973))), aff'd, 853 F.2d 924 (5th Cir.1988).
¶ 34 That is what happened here — WVC has consistently maintained that Mr. Azurdia's decision was based entirely on matters admitted in Ms. Buechler's statement, which she affirmed in meeting with him. Ms. Buechler argues that Mr. Azurdia drew unwarranted conclusions from her statement and imposed unwarranted discipline, but those objections would be addressed in an appeal from his decision — an appeal that was available to Ms. Buechler but that she declined to pursue. From WVC's perspective there was no need to test Ms. Buechler's own admissions through a predeprivation fact-finding hearing.
¶ 35 Ms. Buechler does not view the federal authority on which we rely as controlling, however. She argues that in her case, the rules set forth in chapter 132W-115 WAC are the Fourteenth Amendment minimums, relying on language in Ritter v. Board of Commissioners of Adams County Public Hospital District No. 1, 96 Wn.2d 503, 509, 637 P.2d 940 (1981). In that case, a physician with staff privileges at a public hospital argued that he had an implied contractual interest in continued privileges and thereby a protectable property interest. In the course of rejecting his argument, the Ritter court quoted from Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), which states:
¶ 36 In what proves here to be an unfortunate paraphrase, the Ritter court substituted "A due process property interest exists" for the language that precedes "if" in the quotation above. Ritter, 96 Wash.2d at 509, 637 P.2d 940. From this, Ms. Buechler argues that she has "a due process property interest" in state discipline rules and that those rules — for her — become minimum due process under the federal constitution. The argument confuses apples — a property interest, which is normally created by a state statute or rule,
¶ 37 Ms. Buechler's third dismissed claim asserted that "WVC's failure to comply with ... promises for specific treatment in specific circumstances as outlined in [its student handbook] violates the Doctrine of DePhillips v. Zolt Construction Co., 136 Wn.2d 26, 35, 959 P.2d 1104, 1109 (1998)." CP at 317. Her lawyer confirmed at oral argument that her complaint seeks an extension of the principles reviewed in DePhillips
¶ 38 DePhillips examined the conceptual grounding of the cause of action based on a promise of specific treatment in specific circumstances that was first articulated in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 233, 685 P.2d 1081 (1984), in order to explain why the six-year statute of limitations for breach of a written contract did not apply.
¶ 39 The cause of action was recognized as modifying, in appropriate circumstances, the otherwise terminable at will nature of the employment relationship. Observing that "the principal, though not exclusive, reason employers issue [employee policy manuals] is to create an atmosphere of fair treatment and job security for their employees," the court held in Thompson that "[t]his may create an atmosphere where employees justifiably rely on the expressed policies and, thus, justifiably expect that the employers will do the same." 102 Wash.2d at 299-30, 685 P.2d 1081. The court concluded that "if an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship." Id. at 230, 685 P.2d 1081.
¶ 40 The cause of action on a promise of specific treatment in specific circumstances is a direct response to terminable at will employment. The education relationship — here, the postsecondary setting, where a student pays tuition for the promise of academic grades and credit for performance in accordance with course requirements and school policies — does not share the same terminable at will character. The education relationship is primarily contractual in nature. Marquez v. Univ. of Wash., 32 Wn.App. 302, 305, 648 P.2d 94 (1982). The cause of action for specific treatment in specific circumstances is appropriately confined to the terminable at will employment context unless and until our Supreme Court decides otherwise.
¶ 41 Finally, Ms. Buechler contends that Judge Allan should have unilaterally recused herself from this matter rather than disclosing her prior associations and inviting the parties to request her recusal.
¶ 42 Ms. Buechler submits that we should review Judge Allan's decision not to recuse herself for abuse of discretion, citing Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn.App. 836, 840, 14 P.3d 877 (2000). But in that case, the appellant made a motion asking that the trial judge recuse himself. Here, Judge Allan was never asked. We are at a loss as to how Ms. Buechler is entitled to appeal this issue at all.
¶ 43 RAP 2.5(a) states the general rule for appellate disposition of issues not raised in the trial court: appellate courts will not entertain them. State v. Guzman Nunez, 160 Wn.App. 150, 157, 248 P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012). Nonetheless, because RAP 2.5(a) is discretionary and because we can provide closure on this issue for Judge Allan and the parties, we choose to address it.
¶ 44 Under the Code of Judicial Conduct (CJC), a judge shall disqualify herself in a proceeding in which the judge's impartiality might reasonably be questioned. CJC Canon 2.11. Among the circumstances in which a judge should disqualify herself under the CJC are where the judge served as a lawyer in the matter in controversy or served in
¶ 45 Disqualification was not required here. Rather, CJC Canon 2.11 cmt. 5 suggests the appropriate conduct of a judge in Judge Allan's situation:
This is what the judge did. There is no suggestion that she did not disclose all of the relevant information.
¶ 46 Ms. Buechler nonetheless insists that the judge's decision to leave recusal up to the parties put Ms. Buechler in a "Catch-22" circumstance of "either (a) accepting her offer to recuse, and potential later consequences in unrelated matters for having done so; or (b) refusing Judge Allan's offer, and proceeding with a judge who felt it necessary in the first instance to disclose the prior representation relationship." Br. of Appellant at 40. The suggestion that there would be "potential later consequences in unrelated matters" is not only unsubstantiated but unexplained. If the implication is that Judge Allan or her colleagues would retaliate in other matters, then it reflects, in our view, a serious misunderstanding of the motivation of a trial judge who believes a matter is not disqualifying but makes disclosure in fairness to the parties. We also remind counsel of the obligation not to recklessly impugn the integrity of the court. RPC 8.2(a).
¶ 47 Ms. Buechler requested an award of reasonable attorney fees and expenses on appeal, citing 42 U.S.C. § 1983 and 42 U.S.C. § 1988(b). Because Ms. Buechler is not the prevailing party, her request for an award of fees is denied.
¶ 48 Affirmed.
WE CONCUR: KORSMO, C.J., and CULP, J.P.T.
CP at 344 (italics omitted).
