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"). |
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) |
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 |