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Raychel v. State Employment Sec. Dep't6/3/2002
Under the Administrative Procedure Act, agency findings in adjudicative proceedings may be based on evidence, including hearsay, which would be inadmissible in a civil trial. However, if the hearing officer bases a finding exclusively on hearsay, he or she must set forth in the order the basis for this determination and whether doing so will unduly abridge the parties' opportunities to confront witnesses and rebut evidence. In this case, the appellant, who was denied unemployment benefits, claims that the agency relied solely on hearsay evidence in finding that her employment was terminated because of misconduct. But she failed to raise the issue of hearsay below and issues not raised before the agency are not reviewable here. Nevertheless, even if we were to review the issue, we would conclude that the agency's findings are not exclusively based on hearsay, but were corroborated by the appellant's own testimony. We affirm.
For approximately six months, Gayle Raychel was employed as a receptionist by Tascor, Inc. Tascor contracted with Microsoft Co. to staff their offices with receptionists. Microsoft required the reception desks to be attended at all times. Tascor terminated Raychel's employment on March 30, 2000 claiming that she had violated company policy and damaged company property.
Raychel sought unemployment compensation from the Employment Security Department and Tascor requested a hearing. A representative of Tascor and Raychel testified at the hearing. Tascor's representative referred to reports contained in Raychel's personnel file. After the hearing, an Administrative Law Judge entered findings of fact and conclusions of law. The ALJ concluded that Raychel's discharge was due to misconduct. Under the Employment Security Act, an employee who is discharged due to misconduct is disqualified from receiving unemployment compensation. RCW 50.20.060. The Commissioner and the superior court affirmed the ALJ's decision. Raychel appeals.
Raychel challenges the decision arguing that the agency's findings are based exclusively on hearsay evidence and that the hearing officer was thus required to determine whether relying solely on hearsay would unduly abridge her right to confront witnesses and rebut evidence. See RCW 34.05.461(4). However, Raychel did not object to any of the evidence or in any way raise the hearsay issue below.
RCW 34.05.554(1) states: "Issues not raised before the agency may not be raised on appeal....". Thus, RCW 34.05.554 precludes our review of issues not raised below. See also King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648, 670, 860 P.2d 1024 (1993); Leschi Imp. Council v. Wash. State Highway Comm'n, 84 Wn.2d 271, 274, 525 P.2d 774, 804 P.2d 1 (1974); Westside Bus. Park, LLC v. Pierce County, 100 Wn. App. 599, 608 n. 5, 5 P.3d 713, review denied, 141 Wn.2d 1023 (2000).
For an issue to be properly raised before an agency "there must be more than simply a hint or a slight reference to the issue in the record." King County, 122 Wn.2d at 670. The record here does not contain even a slight reference to this issue. And for that reason, this court may not review the agency's use of hearsay evidence. But even if we were to review the issue, we would conclude that the findings below were not exclusively based on hearsay.
First of all, it is unclear to what extent Tascor's representative's testimony was hearsay. At some points, it is clear that she is referring to the employee file and has no personal knowledge of a particular incident. But at other times she uses the term 'we' in describing interactions with Raychel and says 'I was having customer complaints' and 'I had to have security in the buildi
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