Ames v. City of Fircrest

• Decision Date: 14 September 1993
• Docket Number: No. 15624-5-II,15624-5-II
• Citation: 71 Wn.App. 284,857 P.2d 1083
• Parties: Ron AMES and Helen AMES, husband and wife, Appellants, v. CITY OF FIRCREST, a municipal corporation; and Don Morrison and "Jane Doe" Morrison, husband and wife, Respondents. Division 2
• Court: Washington Court of Appeals

Page 284

71 Wn.App. 284

857 P.2d 1083

Ron AMES and Helen AMES, husband and wife, Appellants, v. CITY OF FIRCREST, a municipal corporation; and Don Morrison and "Jane Doe" Morrison, husband and wife, Respondents.

No. 15624-5-II.

Court of Appeals of Washington,

Division 2.

Sept. 14, 1993.

Stephen L. Bulzomi, Messina Bufalini Bulzomi, Tacoma, for appellants

John F. Kennedy, and Law Office of John Francis Kennedy, Tacoma, for respondents.

SEINFELD, Acting Chief Judge.

Ron Ames, the Chief of Police of the City of Fircrest, appeals a summary judgment dismissing his claims of defamation, breach of contract, violation of civil rights, and "wrongful action" against Fircrest and its manager, Don Morrison. Ames's action is based upon Morrison's release of information to the Morning News Tribune. The trial court accepted Fircrest's theory that it was required to grant disclosure to the press under the public disclosure act and rejected Ames's theory that the investigative records exemption to the act applied in this situation. We affirm.

In November 1989, the Pierce County Prosecuting Attorney's Office, in conjunction with the sheriff's department, conducted a criminal investigation of the Fircrest Police Department. Fircrest requested the investigation because certain Fircrest police officers had alleged improprieties committed or allowed by Department management.

The prosecutor's office completed its investigation on February 15, 1990. It concluded that some de minimis violations of statute might have occurred, but it found no evidence of criminal intent. Although the prosecutor's office On March 19, 1990, Morrison and Fircrest Mayor Armand Yapachino met with Ames to tell him that they had decided to conduct an internal follow-up investigation of the Department and Ames's conduct and that during the pendency of the internal investigation, Fircrest was placing Ames on administrative leave. Also on March 19, Fircrest appointed Neil Moloney as acting chief of police and gave him the responsibility to conduct the internal investigation of the police department. Moloney completed this task by mid-April. The internal investigation focused on the conduct of Ames, Lieutenant Norman Neal, and Sergeant John Cheesman. Moloney concluded that the conduct of Ames, Neal, and Cheesman violated police department rules, Fircrest rules, civil service rules, and state law, but found no criminal intent or intent to act for personal gain.

declined to file charges, it suggested an internal review of Fircrest police procedures and conduct.

Morrison reviewed the internal findings with Moloney and then with the city council. Morrison and Mayor Yapachino then sent Ames a letter informing him that the two investigations revealed violations of law, other wrongdoing, and mismanagement so serious that "the full range of disciplinary actions may be applied, including termination." The letter stated that the potential disciplinary actions it discussed were "separate from any criminal charges that may be filed."

Before Fircrest took any further disciplinary action against Ames, Fircrest and Ames engaged in settlement discussions. Special counsel for Fircrest, P. Stephen Di Julio, drafted a settlement agreement (titled "joint statement") intended to resolve the conflict. Ames's attorney, David Murdach, proposed modifying the agreement to prohibit release of the investigation records. Di Julio refused to make this change. Ames signed the agreement on May 22, 1990.

The agreement (joint statement) recited the violations of local and state laws uncovered during the investigation: improper The agreement also provided that Fircrest and Ames would issue the press release attached to the agreement. The press release summarized the agreement between Ames and Fircrest and revealed no details of the investigation.

                record keeping, evidence handling, and property management.   It also stated there was no evidence of criminal intent.   Ames agreed to improve procedures, and both parties agreed not to retaliate against each other or persons involved in the investigation.   Fircrest agreed not to file criminal charges.   Ames accepted responsibility for the mismanagement, and Fircrest recognized his record of service.   Although Ames was suspended without pay for 30 days, he received credit for the time he was on leave during the investigation and so did not miss any additional days.   He also forfeited a 1990 performance pay adjustment
                

Morning News Tribune reporter Jill Leovy asked both Morrison and Ames for more details on the investigation. Morrison began preparing a notebook of selected investigation records, with some names obscured, for release to the press. Ames did not know Morrison was doing this.

On June 11, 1990, Leovy filed a written request for disclosure of the "Fircrest P.D. internal investigation". Morrison released "expurgated" case summaries and "related" material. The entire investigation record was not then released. ¹ At the time of disclosure, Morrison indicated he had blotted out some names to protect confidentiality.

Morrison gave Leovy a "case summary" and a "case summary addendum" that detailed particular instances of misconduct attributed to Ames. Morrison apparently also released other "related" material. The record before this court does not contain this material.

On June 13, 1990, Leovy's story appeared in the Morning News Tribune. It named Ames as responsible for specific instances of misconduct. Although investigators believed On October 19, 1990, Ames filed a complaint against Fircrest and Morrison alleging four causes of action related to the release of information: deprivation of civil rights, "wrongful action", breach of contract, and defamation. The defendants moved for summary judgment of dismissal.

                Ames had committed the specific instances of misconduct, Fircrest apparently made no final or formal determination of responsibility or guilt.   According to Ames, Fircrest never proved the allegations mentioned in the article
                

The trial court decided that the public disclosure act, RCW 42.17, required release of the documents and that the investigative records exemption was not applicable. It therefore granted Fircrest's motion for summary judgment. Ames sought review in the state Supreme Court. The Supreme Court transferred the cause to this court.

STANDARD OF REVIEW

When reviewing an order of summary judgment, we perform the same inquiry as the trial court. Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash.2d 640, 646, 835 P.2d 1030 (1992). The trial court may not replace the jury by weighing facts or deciding factual issues. Babcock v. State, 116 Wash.2d 596, 598-99, 809 P.2d 143 (1991); Hemenway v. Miller, 116 Wash.2d 725, 731, 807 P.2d 863 (1991). It must consider all of the facts and reasonable inferences from them in the light most favorable to the nonmoving party and grant summary judgment only if reasonable persons could reach but one conclusion. Simpson Tacoma Kraft Co., 119 Wash.2d at 646, 835 P.2d 1030; Eriks v. Denver, 118 Wash.2d 451, 456, 824 P.2d 1207 (1992). The moving party is entitled to summary judgment only if the submissions to the court "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c).

A material fact is a fact upon which the outcome of the action depends. Eriks v. Denver, 118 Wash.2d at 456, 824 P.2d 1207. "[T]he moving party bears the initial burden of showing the absence of an issue of material fact." Young v. Key Pharmaceuticals,

                Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989).   If a defendant movant meets this burden, the plaintiff must respond by making a prima facie showing of the essential elements of its case.  Young, 112 Wash.2d at 225-26, 770 P.2d 182.   The plaintiff cannot rely on allegations in the pleadings or assertions, but must present competent evidence by affidavit or otherwise.  Young, 112 Wash.2d at 225-27, 770 P.2d 182.   If the plaintiff fails to make such a showing, there is no genuine issue of fact as to the essential element in question and the trial court should grant the defendant's motion for summary judgment.  112 Wash.2d at 225, 770 P.2d 182.   Absent proof of an essential element of the plaintiff's case, all other facts are immaterial.  Young, 112 Wash.2d at 225, 770 P.2d 182
                

PUBLIC DISCLOSURE ACT

Ames premises all four of his causes of action on the theory that the defendants acted wrongfully in releasing the investigative file to the Morning News Tribune. The parties agree that if the public disclosure act required Fircrest to release the records, the release was not wrongful, and the trial court properly granted summary judgment. For purposes of this appeal, we assume, without deciding, that Fircrest's voluntary release of the records would have violated the "joint statement" and defamed Ames. ²

The public disclosure act, RCW 42.17, "is a strongly worded mandate for broad disclosure of public records." ³ Spokane Police Guild v. Liquor Control Bd., 112 Wash.2d 30, 33, 769 P.2d 283 (1989). The courts are to construe it liberally to promote full access to public records. RCW 42.17.010(11). When reviewing agency action,

[c]ourts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.

RCW 42.17.340(3). Conversely, we construe statutory exemptions from disclosure narrowly. Dawson v. Daly, 120 Wash.2d 782, 789, 845 P.2d 995 (1993). ⁴

Under the act, "[e]ach agency ... shall make available for public inspection and copying all public records" unless disclosure of the record is specifically exempted or prohibited. RCW 42.17.260(1). "Agency" includes cities and towns and departments thereof. RCW 42.17.020(1). The Legislature defined "public record" broadly, RCW 42.17.020(27),...