(dissenting) — The issues here are whether civil servants have a right of action against their government employer for wrongful constructive discharge, and whether they may obtain meaningful redress in courts of *455law for employment-related torts. I would hold the government employer to the same legal standard as any private employer and dissent from the decision of the majority which relegates civil servants to second class citizenship.
At the conclusion of a month-long jury trial by their peers, plaintiffs Reninger and Cohen recovered nearly a half million dollar judgment against the State on two independent grounds: wrongful constructive discharge and tortious interference with business expectancy. To reverse this jury verdict it would therefore be necessary to conclude both claims are barred as a matter of law as, without dispute, this verdict is amply supported by substantial evidence.
The claims of wrongful constructive discharge and tortious interference with business expectancy are separate, and distinct, and each is based upon its own particular facts.
Wrongful Constructive Discharge
The claim for wrongful constructive discharge relates to termination of Reninger and Cohen from Department of Corrections (DOC) employment as a result of their temporary reassignments to hazardous duties. This reassignment chronologically followed, but was distinct from, employment discipline imposed upon them for allegedly misplacing firearms. Hence maintenance of this cause of action is perfectly consistent with a determination of the Personnel Appeals Board that they had misplaced the firearms as well as the DOC order that, as a disciplinary measure, these persons should be temporarily demoted for four months with reduction of pay—but not fired. However, they were fired in fact when they could not have been fired in law. Such is the very essence of wrongful constructive discharge.
This postdiscipline reassignment was a decision of supervisory staff, and was never reviewed administratively. It was that unilateral reassignment which resulted in the constructive discharge.
The majority therefore completely misstates the basis of *456the constructive discharge claim which is in no way dependent upon any finding that the discipline was unjustified, much less that they were “set up.” Compare Majority at 447.
Contrary to the claim of the majority, this wrongful constructive discharge does “contravene public policy” (Majority at 447) because pursuant to the civil service statute, a civil servant may not be fired absent the requisite procedure which ends in a formal determination that firing is appropriate. But there was neither such procedure undertaken nor determination made that they be fired. To the contrary Reninger and Cohen were constructively terminated, as found the jury, and wrongfully so, because their termination was in violation of the civil service statute as they were fired in fact under circumstance where they could not be fired in law. Notwithstanding, the majority overturns the jury determination that these employees were victims of wrongful constructive discharge solely because the majority mistakenly asserts “Reninger and Cohen have not alleged or proved they were terminated for a reason that contravenes public policy.” Majority at 446. I beg to differ.
In Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 233, 685 P.2d 1081 (1984), we held an employer can be liable in tort if he or she discharges an employee for a reason that contravenes a clear legislatively or judicially recognized mandate of public policy.7 Determining what qualifies as a clear mandate of public policy is a question of law. Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 937, 913 P.2d 377 (1996). There are four elements of a wrongful termination tort. The plaintiffs must prove (1) the existence of a clear public policy; (2) that discouraging the conduct in which they engaged would jeopardize the public policy; (3) that the dismissal violated the public policy; and (4) that no overriding justification for the dismissal existed. Id. at 941.
As the Supreme Court of Wisconsin stated, “[Pjublic *457policy must be evidenced by a constitutional or statutory provision.” Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834, 840 (1983). Here, the jury found Cohen and Reninger were forced into intolerable conditions when they were transferred to remote cellblocks housing dangerous inmates, necessarily concluding their resignations were the result of a constructive discharge. Such factual finding was well within the province of the jury and certainly based on substantial evidence.
Dismissal of Cohen and Reninger, civil servants, by DOC violates public policy unless accomplished through overt compliance with the civil service statute and regulations. According to administrative code provisions in effect at the time, adopted pursuant to RCW 41.06.186, plaintiffs could be dismissed only for specific reasons, WAC 356-34-010, and pursuant to a specified procedure. For example, the DOC must notify an employee in writing of the specified charges within 15 calendar days prior to the effective date of the dismissal. WAC 356-34-040.
While the DOC followed correct procedures for temporary demotion, it neither sought nor purported to follow procedures necessary to effect an outright dismissal. Nor was dismissal the overt sanction imposed. However, termination by constructive discharge was the result (as found the jury) when Cohen and Reninger both resigned rather than report to their temporary assignments in dangerous work areas. These discharges were therefore unsupported by, and contrary to, statutory and administrative provisions which allowed temporary demotion but not outright termination. In sum, if an employee has a legal right not to be fired, then he or she also has a legal right not to be constructively discharged. Such is the universal rule for both public and private employees. Compare, e.g., Fleming v. Pima County, 141 Ariz. 149, 685 P.2d 1301, 1305-06 (1984) (civil servant has valid claim against government employer for constructive discharge).
These public employees were constructively discharged in violation of specific provisions of the civil service statute. *458Such is a matter of public interest since (1) any discharge in violation of statute is of public cbncern, and (2) the civil service statute, in particular, was enacted precisely to accomplish an alleged public purpose. Therefore constructive discharge of a public employee in violation of an applicable statute is a much more straightforward violation of “public policy” than is the termination of a private employee for whistle-blowing activity not in clear violation of an express statutory mandate. Compare Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002 (1989) (“[AJbsent some prior legislative or judicial expression on the subject,” public policy may nonetheless be violated by discharge for whistle blowing.) (quoting Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984)).
By its holding the majority consigns civil servants to second-class citizenship. The majority denies civil servants any remedy for wrongful discharge in violation of statute, effectively immunizing government employers from accountability for violations of state law, but without statutory authority, and contrary to the statutory repeal of sovereign immunity. RCW 4.92.090. Such a doubtful step is for the legislature, not the courts. Compare Const, art. I, § 12 (“No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”).
Tortious Interference with Business Expectancy
The majority sets aside a half million dollar verdict against co-workers for tortious interference with business expectancy, asserting the administrative decision of the Personnel Appeals Board, although never judicially reviewed, bars the tortious interference claim as a matter of law.8
*459The majority’s opinion on this point is particularly problematic when we recall that the co-workers were not even parties to the Personnel Appeals Board (PAB) hearing, and the PAB had no jurisdiction to even consider a cause of action for tortious interference with business expectancy, much less provide a remedy in damages. Nonetheless, it is true Cohen and Reninger were parties to the PAB proceeding and the PAB entered a finding of fact inconsistent with their tortious interference claim. But that is not necessarily fatal.
The party who asserts collateral estoppel has the burden to prove it. McDaniels v. Carlson, 108 Wn.2d 299, 303-04, 738 P.2d 254 (1987); Bradley v. State, 73 Wn.2d 914, 917, 442 P.2d 1009 (1968).
Affirmative answers must be given to the following questions before collateral estoppel is applicable:
(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (4) Will the application of the doctrine *460not work an injustice on the party against whom the doctrine is to be applied?
Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165 (1983) (quoting Lucas v. Velikanje, 2 Wn. App. 888, 894, 471 P.2d 103, review denied, 78 Wn.2d 994 (1970)). Sometimes an aspect of the fourth question is recast as: “In the prior trial, did the party against whom the estoppel is asserted have interests at stake that would call for a full litigational effort?” 14 Lewis H. Orland & Karl B. Tegland, Washington Practice § 373, at 763 (5th ed. 1996). Additionally, for an issue to be precluded it must have been actually litigated and necessarily determined in the prior litigation. Peterson v. Department of Ecology, 92 Wn.2d 306, 312, 596 P.2d 285 (1979).
Attempts to attach preclusive effect to administrative determinations are particularly problematic.
[A]dministrative decisions are particularly vulnerable to challenge when they are tendered as preclusive in subsequent litigation because of the settings in which they are rendered. This conclusion arises for a variety of reasons: the informality of some administrative proceedings; the vagueness of party and joinder concepts in others; the scanty record made in still others; and, perhaps most importantly, the fear that the governmental agencies would be forced to engage in countless appeals to avoid being hound by adverse decisions.
14 Lewis H. Orland & Karl B. Tegland, supra, § 359, at 721-22.
The “final judgment” element of the doctrine references a final judgment of a court having subject matter and in personam jurisdiction. 1 Restatement (Second) of Judgments §§ 1, 17 (1980). Nevertheless we have afforded preclusive effect to final adjudicatory determinations of an administrative agency where other elements of the doctrine are satisfied and procedural prerequisites are met, giving due regard to the “magnitude and complexity of the matter in question” as well as the “urgency with which the matter must be resolved.” 2 Restatement (Second) of Judgments § 83(2)(e) *461(1980). But we have further conditioned the doctrine’s applicability to administrative determinations upon analysis of several different factors to include:
(1) whether the agency acting within its competence made a factual decision; (2) agency and court procedural differences; and (3) policy considerations.
State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961 (1980).
Assuming the elements of collateral estoppel are otherwise present, interrelated considerations of the limited nature of the administrative proceeding, the lack of incentive to litigate at the administrative level, the great disparity between available administrative and judicial relief, as well as the public policy against discouraging individuals from utilizing available administrative remedies, provide more than adequate basis to affirm this trial court’s ultimate determination not to bar this claim for reasons of collateral estoppel.
Civil servants who are dissatisfied with employment disciplinary measures imposed by supervisory personnel are afforded a quick and easy optional appeal to the Personnel Appeals Board to contest the propriety of that discipline. RCW 41.64.090. As was the case here, the Board may expedite the procedure by employing a hearing examiner “to preside over hearings and make recommended decisions . . . .” WAC 358-30-020. By rule the hearings are informal, and technical rules of evidence do not apply. WAC 358-30-030(2). The Board may restore to the employee those employment rights and benefits wrongfully withheld, WAC 358-30-180, however, it lacks jurisdiction to grant relief beyond that.
Here Cohen and Reninger appealed a four-and-one-half-month temporary demotion (February 10, 1989 to June 29, 1989) with commensurate reduction in pay amounting to approximately $300 per month. See Exs. 22, 31. The maximum either could have recovered would have been about $1200 had they maintained their employment during the entire four-and-one-half-month period; however, they quit after little more than one month.
*462Although Cohen and Reninger appealed the demotion prior to its effective date, that appeal did not stay the imposition of the discipline nor did it encompass the temporary transfer, much less its destination—the independent cause of their constructive discharge. When Cohen and Reninger each quit their employment with DOC in March 1989 they had to date experienced a cumulative pay loss of little more than $300 each. That would have been the upper limit of recovery had they been totally successful before the PAB.
The PAB hearing did not even occur until June and August 1989, long after the temporary demotion, transfer, and termination had already transpired. And the final PAB decision was not rendered until several months after that. However, included within the PAB decision was a factual finding that three shotguns were left in the range building between October 18 and October 22, 1988, that the “only rational explanation” for the shotguns being there was that Cohen and Reninger failed to account for them after the training was conducted and that “[t]here was no evidence that anyone else had access to the weapons during the time in question,” nor “credible evidence of collusion among others to implicate them.” Clerk’s Papers (PAB’s “Findings, Conclusions and Order of Board Following Hearing on Exceptions” (Mar. 15, 1990)) at 66.
Although co-workers were not party to the proceeding, and the most Cohen and Reninger could gain had they been successful in the proceeding was little more than $300 each, co-workers claim that the half million dollar jury verdict rendered against them as a result of the ensuing lengthy and complex civil litigation must be set aside as a matter of law.
Were that the result, several consequences would logically follow—all bad.
Those similarly situated to Cohen and Reninger would probably forgo any administrative appeal for fear the much more substantial superior court remedy for tortious interference would be barred by a possible adverse adminis*463trative result. Such was precisely the reason the United States Courts of Appeals for the Ninth Circuit reversed a dismissal on collateral estoppel grounds under analogous, if not less aggravated, circumstances in Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1284 (9th Cir. 1986).
Henry Mack was fired by South Bay Beer Distributors, Inc. He subsequently sought but was denied state unemployment insurance benefits, the administrative appeals board affirming the denial, finding Mack was justifiably fired due to his conduct. However thereafter Mack brought suit in federal district court alleging the real reason for his dismissal was age discrimination in violation of the Age Discrimination in Employment Act and in further breach of a state employment contract. The district court dismissed his substantial state and federal claims in deference to the adverse administrative determination on employment benefits; however, the United States Court of Appeals reversed holding such result would (1) be unfair to the employee and (2) undermine the very purpose of the administrative process.
[A]n employee’s incentive to litigate an unemployment benefits claim is generally much less than his incentive to litigate a discrimination claim where generally the stakes are much higher. When the amount in controversy in the first action is much less than the amount in controversy at the second, preclusion would be unfair. Restatement (Second) of Judgments] § 28(5), comment (j) (1982).
Mack, 798 F.2d at 1284 (emphasis added). Evidencing concern that the administrative process would be overwhelmed, the United States Court of Appeals adopted a second independent ground for reversed, holding implicitly
an employee with a federal discrimination claim might have to decide to forego state unemployment benefits rather than risk an adverse ruling that could have preclusive effect on a federal discrimination claim that he may not be adequately prepared to litigate before the Board. Moreover, the potentially higher awards at stake in discrimination claims could compel both employers and employees to litigate every unemployment *464benefits claim as if it encompassed a discrimination suit. Should this come to pass the Board may find it difficult to adjudicate unemployment benefit claims expeditiously. Consequently, an unemployed worker would be without benefits for a longer period of time than would be the case if his appeal had been decided without the additional delay created by determining a discrimination claim.
Id.
Each of these considerations applies with equal, if not greater, force to the case before us. Not only would claimants be effectively forced out of the administrative process but, if they remained in it, the process would be overwhelmed with litigation primarily aimed not at recovery of the comparatively meager benefits available in a quick, easy, and informal procedure but rather the painful erection and/or avoidance of issue preclusion for the purpose of future litigation, even with third parties.
These same concerns have also been credited in our jurisdiction. For example we declined to collaterally estop a felony prosecution for welfare fraud notwithstanding a prior inconsistent administrative result. State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997). Holding collateral estoppel under those circumstances works an injustice, thereby violating the fourth prong of the doctrine, we observed such would have “broad consequences” and “would result in longer administrative hearings and greater delays since the State would ‘be required to marshall all of the prosecution’s potential witnesses and evidence at the administrative level.’ ” Williams, 132 Wn.2d at 258 (quoting People v. Sims, 32 Cal. 3d 468, 651 P.2d 321, 337, 186 Cal. Rptr. 77 (1982) (Kaus, J., dissenting) (emphasis added), superseded by statute as stated in People v. Preston, 43 Cal. App. 4th 450, 50 Cal. Rptr. 2d 778 (1996)). We refused to apply collateral estoppel under those circumstances because it would force undue expenditure of resources on administrative matters and,
[a]s a result, the State most likely would consider foregoing administrative hearings even though such hearings allow it to *465recoup financial losses resulting from fraud. Public policy militates against this. We therefore reverse the Court of Appeals and hold that the doctrine of collateral estoppel does not bar the State from prosecuting Williams.
Williams, 132 Wn.2d at 258 (emphasis added).
Although we declined to avoid the collateral estoppel bar on policy grounds in Shoemaker v. City of Bremerton, 109 Wn.2d 504, 513, 745 P.2d 858 (1987), we did recognize the validity of the policy principle, while refusing to apply it to those less egregious facts. There a deputy chief of police, Joe Shoemaker, petitioned the Bremerton Civil Service Commission for reinstatement after reduction in rank and salary. The commission rejected his claim that he was demoted as an unlawful retaliation. His subsequent civil rights action was dismissed on collateral estoppel grounds, a result affirmed by this court.
Shoemaker argues that the Commission’s finding should not be given collateral estoppel effect as a matter of public policy because the disparity between the relief offered by the administrative agency and the federal district court would lead litigants to forgo their administrative remedies for fear of preclusion in other, more substantial claims. See, e.g., Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986). This is a persuasive argument, depending on the actual disparity.
Shoemaker, 109 Wn.2d at 513 (emphasis added). The court, however, found the specific disparity in Shoemaker between the available administrative remedy (which would have included reinstatement and back pay) and the judicial one (which would provide the equivalent relief plus “uncertain[ ]” damages for emotional distress) “is not as great as the disparity of relief in Mack. As a result, collateral estoppel in this case does not violate public policy or work an injustice because of disparity in relief.” Shoemaker, 109 Wn.2d at 513. Thus the Shoemaker exception proved the rule set forth in Mack by not applying it to facts less compelling.
*466The judicial standard against which the actual disparity in potential relief is measured is a prospective and objective one. It is the same standard the reasonable person would apply when choosing between availing oneself of a potential administrative remedy or, on the other hand, forgoing the administrative remedy for fear collateral estoppel would bar a subsequent judicial one. If the incentive to seek administrative relief is reasonably offset by the risk of a collateral estoppel bar, the disparity of potential remedy is too great, and judicial imposition of the bar is improper on public policy grounds.
The majority opinion illustrates and accentuates the exact vice which this public policy doctrine is intended to avoid. Rather than even applying an objective standard, the majority relies upon the subjective decision of Reninger and Cohen to actively participate in this administrative hearing as exactly the reason their subsequent claim in tort against their co-workers should be barred. See Majority at 451. Had Reninger and Cohen not appealed the adverse employment action to the PAB in the first place, however, there could be no basis upon which a collateral estoppel bar could be asserted, nor would there be any basis for a claim that their failure to exhaust an even adequate administrative remedy could bar a tort action against a third person. Thus, the majority’s message is clear: Avoid administrative tribunals at all cost!9
Moreover the majority confuses “incentive to litigate” (Majority at 454) with the actual litigation undertaken. *467These considerations are very different. Compare Mack, 798 F.2d at 1284 (“incentive to litigate”); Williams, 132 Wn.2d at 258 (“would result in longer administrative hearings”); Shoemaker, 109 Wn.2d at 513 (“would lead litigants to forgo their administrative remedies”) (emphasis added). The fact that Reninger and Cohen actively participated in the administrative proceedings under these circumstances demonstrates only their failure to adequately predict the majority’s holding that collateral estoppel attaches. Had this judicial aberration been accurately foretold they would not only have refrained from litigation at the administrative level, but their sanity would have been suspect had they proceeded to do so. But in the future informed litigants in the position of Reninger and Cohen will avoid the administrative process like the plague.
Conclusion
I would hold civil servants, just as private employees, may not be constructively discharged from their employment under circumstances where the law forbids their employer from formally terminating them. Additionally I would protect their legal right to their day in court to pursue their tort claims against third persons before a jury of their peers. But what the jury has awarded, the majority has taken away. I dissent.
Smith, J., concurs with Sanders, J.
This case does not concern constructive discharge as a breach of an employer’s express or implied employment contract. Compare Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 876 P.2d 1022, 1030, 32 Cal. Rptr. 223, 231 (1994).
The majority also seems to suggest, without deciding, that perhaps a government worker cannot assert a tortious interference claim against a co-worker, citing Houser v. City of Redmond, 91 Wn.2d 36, 586 P.2d 482 (1978) and other authorities. Houser does not stand for the proposition that an employee is im*459mune from liability if he acts within the scope of his duties. In Houser, the plaintiff sued the City of Redmond for tortious interference with contract hut did not name as additional defendants those employees who committed the tort on behalf of their municipal employer. We held Redmond was not hable because it could not, as a matter of law, interfere with its own contract. Dicta, however, suggested co-workers were similarly immune from liability if they acted within the scope of their employment. Id.; see also Eserhut v. Heister, 52 Wn. App. 515, 521, 762 P.2d 6 (1988) (“On appeal, the court stated in dictum that if the actions of the coemployees were not within the scope of their employment, then they were third parties who were potentially hable for the tort.”). Notwithstanding, it is the estabhshed rule in Washington an employee who commits the tort of interference with the contractual relations of his coemployees is hable regardless of the scope of his duties and regardless whether or not he acted within the scope of his duties. See Eserhut, 52 Wn. App. at 519 (“[I]f the elements of the tort are otherwise met, then the coemployees can be held hable for intentionally interfering with [plaintiff’s] employment with [the employer].”); accord Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430, 434 (1987) (co-worker tortiously interfered with plaintiff’s contract with employer; no discussion of scope of duties). Remand would therefore be unnecessary because the scope of the coworker’s duties is irrelevant. Moreover, the case upon which Houser rehed, Hein v. Chrysler Corp., 45 Wn.2d 586, 600, 277 P.2d 708 (1954), specifically dechned to address whether an agent acting within the scope of his duties may tortiously interfere with his employer’s contract.
The majority also states: “Very little of significance distinguished the administrative proceedings in this case from a formal jury trial in superior court.” Majority at 451. Apparently the majority sees no “significant” distinction between an independent judiciary and a proceeding captive to the executive branch, much less of the fundamental right to jury trial. Compare Washington Const, art. IV § 6 (“Jurisdiction of superior courts . . . The superior court shall have original jurisdiction in all cases at law . . . .”) and Const, art. I, § 21 (“The right of trial by jury shall remain inviolate . . . .”) (emphasis added). Thus the majority denies Officers Reninger and Cohen their day before an independent court of law, and substitutes a factual finding made by a member of the executive branch for that of the jury. Such is not only “significant,” it strikes at the very heart of our tort system. Cf. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 780 P.2d 260 (1989) (statute which caps damages awarded by jury is unconstitutional).