WSR 01-04-063

OFFICE OF THE GOVERNOR


[ Filed February 5, 2001, 2:05 p.m. ]

February 2, 2001


Samuel P. Harvey

6420 Illihee Road NE

Bremerton, WA 98311


Re: RCW 34.05.330(3) appeal of the November 29, 2000 denial by the Washington Department of Labor and Industries (the "Department") of that certain petition to repeal WAC 296-19A regarding vocational rehabilitation, dated October 15, 2000 (the "Petition").

Dear. Mr. Harvey:


Thank you for your letter dated December 16, 2000 and received by our office on December 19, 2000, appealing the Department's decision to deny the Petition.


Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal and the relevant statutes and regulations, and affirm the Department's decision.


It is our policy to intervene in matters presented to the Governor under RCW 34.05.330(3) only when we believe the agency whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also our policy not to second-guess the thoughtful and deliberate decisions of a state agency, so long as those decisions are well founded under the law. This is an extremely high standard of review.


The Department has a proper basis for its decision to deny the Petition for the reasons described below. We have responded to each of your arguments in turn:


1. The goal of vocational services: In Item 1, Point 1 of the Petition, you argue that the Department's rule (WAC 296-19A-020) is in conflict with RCW 51.32.095. You argue that once the Department decides to provide vocational services, the priorities in RCW 51.32.095(2) dictate the services to be provided by the Department and the order in which they are to be provided, and the Department's rule is inconsistent with the statutory mandate. The Department clearly has discretion to determine whether to offer vocational services. When it decides to do so, it does apply the nine priorities listed in the statute. It is important to note that the statute prefaces the list of priorities with the following language.


"When in the sole discretion of the supervisor or the supervisor's designee vocational rehabilitation is both necessary and likely to make the worker employable at gainful employment, then the following order of priorities shall be used." (emphasis added)

The statute thus in fact indicates that the goal of vocational services is services "likely to make the worker employable at gainful employment." While you may have a differing construction of the statute, the Department has interpreted the statute reasonably and in good faith.


2. Legislative Activity: In Item 1, Point 2 of the Petition you express concern that the rules defined in WAC 296-19A-020(1) are weak because the Department has also sought to clarify this issue by seeking statutory amendments in the legislature. The Department's decision whether or not to clarify statutes does not in any way diminish the fact the Department has the authority to implement the rules, or imply that the current interpretation is unauthorized.


3. Placement Services as a Requirement: In Item 1, Point 3 of the Petition you argue that the statute, RCW 51.32.095(2), requires job training and placement, but WAC 296-19A-110 does not list those as required services. The rule does not list any individual services as required; it is prefaced with the phrase "may include, but are not limited to." Furthermore, RCW 51.32.095(2) does not specifically list services that are to be provided. The statute sets forth outcomes in a list of priorities. "Short term retraining and job placement" is one of several outcomes on the list. Again, the Department has interpreted the statute reasonably and in good faith.


4. Credentials for Department employees: In Item 2 of the Petition you argue that the rules governing credentials for vocational counselors apply differently to public and private parties. Your letter to the Department of October 15, 2000 indicates a concern that the Department will not make the adjustments necessary for Department staff to obtain the credentials spelled out in the rules. While we understand your concern, education and training policy of the Department is covered under collective bargaining agreements between employees and the Department and negotiations are going on now in an attempt to resolve these concerns.


5. Small business impact: In Item 3 of the Petition you argue that the small business impact statement is flawed for several reasons. Our review indicates that the Department surveyed the vocational rehabilitation industry and that the survey did include small providers. The results clearly indicated per employee costs were lower for small business even when "outlier" data is included in the final tabulation. The Department went beyond its minimum its statutory obligations, and acted reasonable and in good faith.


6. Due Process; Intimidation: In Item 4 of the Petition you indicate that the Department did not follow due process requirements when WAC 296-19A was being adopted, and Department employees were intimidated from testifying. Our review indicates that the requirements set forth in Chapter RCW 34.05 pertaining to announcing the rule-making process and mailing announcements of the public hearings to all Washington-registered vocational counselors, including Department staff, were followed. Allegations regarding participation by Department employees in the hearing process are again matters covered by collective bargaining agreements. Irrespective the settlement of your individual grievance with the Department, the Department had adequate information to satisfy due process requirement in adopting the rule.


7. Conclusion: Many of your arguments are based on your interpretation of various statutes and rules when compared to the Department's interpretation. Statutes and rules are nearly always subject to various interpretations by those who read them. It is clear that in all instances argued in your appeal, the Department has made reasonable interpretations of the statutes in good faith, and did not act arbitrarily or capriciously. Accordingly, your appeal is denied. Thank you for your extensive efforts and profound commitment to improve our assistance to injured workers in Washington.


Sincerely,

Everett H. Billingslea

General Counsel

cc: Dennis W. Cooper, Code Reviser
Tim Martin, Co-Chief Clerk, House of Representatives
Cindy Zehnder, Co-Chief Clerk, House of Representatives
Tony Cook, Secretary of the Senate
Gary Moore, Director, Department of Labor & Industries

Washington State Code Reviser's Office