Appeal of Butner
| Decision Date | 03 January 1985 |
| Docket Number | No. 5851-III-4,5851-III-4 |
| Citation | 693 P.2d 733,39 Wn.App. 408 |
| Parties | In the Matter of the Appeal of Lieutenant Glenn BUTNER, Appellant. City of Pasco, Respondent. |
| Court | Washington Court of Appeals |
Edward H. McKinlay, McKinlay & Hultgrenn, Pasco, for appellant.
Greg A. Rubstello, Pasco City Atty., Pasco, for respondent.
Lt. Glenn Butner appeals his discharge from the Pasco police department, contending: (1) we should review his case de novo; (2) the Civil Service Commission (Commission) erroneously considered certain polygraph examination results; (3) the Commission was biased; (4) the Commission incorrectly based his discharge on a violation of an order not to speak to the press; and (5) the Commission abused its discretion in upholding the discharge instead of ordering less drastic sanctions. We affirm.
The Commission's findings of fact are not challenged. Butner was discharged after 19 1/2 years with the Pasco police department. For approximately 3 years prior to the discharge, Butner and Chief Vandiver experienced continuing and increasing difficulties. Many of these difficulties concerned Butner's relationship with Humphrey Ross (a convicted felon and an informant). While several grounds were given as the bases for discharge, we will only consider those grounds which the Commission found to be substantiated. Specifically:
(1) Butner represented to the chief that Ross needed sitz baths for health problems and would check him out of jail, ostensibly for that purpose, for periods of time ranging from 35 minutes to 8 1/2 hours. Sometimes they went to the home of Ross' wife, other times to Ross' girl friend's home. The Commission found Butner intentionally deceived the chief, the sheriff, and the deputy prosecutor regarding the need for these baths.
(2) Butner took it upon himself to transport Ross, a state prisoner, to Shelton for a hearing before the parole board, at City expense. Butner attempted to keep the trip a secret from the chief. The Commission found this incident further substantiated the charge that the relationship between Ross and Butner was improper and incompatible with the role of a law enforcement officer.
(3) Butner intervened "almost as Humphrey Ross' private police force" in a domestic matter between Ross and another man. The Commission found the incident to be a continuation of the improper relationship between Butner and Ross, not compatible with proper law enforcement and tending to cause injury to the public service.
(4) At Ross' request, Butner procured release of certain prostitutes from jail on condition they leave the City. The Commission found this to be "another link" in the charge of an improper relationship which was detrimental to the public service.
(5) When he learned the sheriff was investigating Ross, Butner accused the sheriff of investigating Butner. The Commission found his conduct "at the least discourteous."
(6) On two occasions, Butner violated the chief's direct order that Butner have no further contact with Ross.
(7) The Commission found each example set forth in the notice of discharge of Butner's "unprofessional and insubordinate attitude" to be well substantiated by the evidence. These include Butner's admitted distrust of the chief, taking a city car for personal business and then not admitting it when questioned by the chief, violating a direct order not to discuss a certain matter with anyone, calling the undersheriff a derogatory name, and violating a direct order to turn over certain documents to the chief.
The Commission upheld Butner's discharge, and the Superior Court affirmed. Additional facts are set forth below.
Butner first contends the appropriate standard of review here is de novo. RCW 41.12.090 provides the sole ground for appeal shall be whether the discharge was made in good faith for cause. Appellate review under RCW 41.12.090 is de novo only in the sense this court independently examines the administrative record, exclusive of the trial court's findings. Greig v. Metzler, 33 Wash.App. 223, 653 P.2d 1346 (1982); Skold v. Johnson, 29 Wash.App. 541, 630 P.2d 456 (1981); Benavides v. Civil Serv. Comm'n, 26 Wash.App. 531, 613 P.2d 807 (1980); Eiden v. Snohomish Cy. Civil Serv. Comm'n, 13 Wash.App. 32, 533 P.2d 426 (1975).
Our review is limited to determining whether the Commission acted arbitrarily, capriciously, or upon an inherently wrong basis. State ex rel. Perry v. Seattle, 69 Wash.2d 816, 420 P.2d 704 (1966); Greig v. Metzler, supra; Benavides v. Civil Serv. Comm'n, supra; In re Hahn, 12 Wash.App. 243, 529 P.2d 484 (1974). Under the arbitrary and capricious standard, we must uphold the Commission unless we find willful and unreasoning action in disregard of the facts and circumstances. Skagit Cy. v. Department of Ecology, 93 Wash.2d 742, 613 P.2d 115 (1980). Furthermore, the Commission's unchallenged findings are verities on appeal. Skold v. Johnson, supra. It is in this context we review this case.
Butner next contends the Commission erroneously considered results of two polygraph examinations, and this error permeated the Commission's analysis and result. The polygraph examiner believed both Ross and Butner were deceptive in answering whether Ross was paying Butner to cover up illegal activities. While the deceptive answers were given as one basis for discharge, no facts of any illegal payments are in evidence. There was no stipulation regarding admissibility, and Butner maintained he had been assured the polygraph results would be used as an investigative tool only, and would not be used in any hearings.
At the beginning of the hearing, the Commission ruled it would not require the witnesses to testify in any particular order. Therefore, the City was allowed to present foundation testimony regarding the reliability and accuracy of the polygraph equipment before presenting any testimony about whether Butner had fully consented to take the examination. See RCW 49.44.120. 1 The Commission did not decide the polygraph results would be inadmissible until its final ruling despite a pretrial motion by Butner and several renewed motions to suppress.
Witnesses for the City were allowed to testify about the significance to them of the polygraph results. While several grounds were listed in the notice of discharge, Chief Vandiver testified the polygraph results were among the more significant factors in that they corroborated the inference of an improper relationship between Ross and Butner. Chief Vandiver testified the discharge was based on a series of events over time, no one of which would justify discharge. He testified grounds independent of the polygraph which would justify discharge were Butner's role in the release of prostitutes from jail, his violation of a direct order to turn over certain documents to the chief, and Butner's mishandling of a dispute between Ross and another man.
City Manager Kraft testified the polygraph results were "like putting a straw on the camel's back." However, Kraft also testified the polygraph results were not the determinative factor in the decision to discharge Butner. Kraft stated the decision was based on a "culmination" of the bad relations between the chief and Butner, including Butner's reluctance to communicate and to carry out the chief's orders.
On the other hand, Butner presented several witnesses who testified either to his reputation for truthfulness or that they would believe Butner over a polygraph.
The investigator who negotiated with Butner for the polygraph failed to appear at the hearing, although the City had indicated from the beginning of the hearing he would testify. The Commission ruled the conditions under which Butner agreed to take the polygraph examination were not adequately established.
Regarding Ross' polygraph results, the Commission ruled testimony about them would not be hearsay and consent was not an issue. However, the Commission further ruled that to admit the evidence as proof of illegal payments without Butner having the opportunity to cross-examine 2 "would be setting a dangerous precedent," and declined to admit Ross' polygraph results into evidence.
The City trod on dangerous ground when it raised the issue of the polygraph results. The only pertinent point to...
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