Benavides v. Civil Service Commission of City of Selah

• Decision Date: 24 June 1980
• Docket Number: No. 3444-III-5,3444-III-5
• Citation: 613 P.2d 807,26 Wn.App. 531
• Parties: Ramon BENAVIDES, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF SELAH, Respondent.
• Court: Washington Court of Appeals

Page 531

26 Wn.App. 531

613 P.2d 807

Ramon BENAVIDES, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF SELAH, Respondent.

No. 3444-III-5.

Court of Appeals of Washington, Division 3, Panel Three.

June 24, 1980.

Tim Weaver, Hovis, Cockrill & Roy, Yakima, for appellant.

Douglas D. Peters, Peters, Schmalz, Leadon & Fowler, Selah, for respondent.

McINTURFF, Judge.

The appellant, Ramon Benavides, appeals from his discharge as the Chief of Police for the City of Selah, Washington.

Mr. Benavides was hired as the Chief of Police in February 1978. In April and July 1978 he was the subject of two grievances filed by the officers of the Selah Police Department. On August 8, 1978, Mr. Benavides received a memorandum from the City Manager which outlined areas of needed improvement; ¹ but on September 8, 1978, Mr Benavides was served with a letter of termination. The City Manager stated:

It is with utmost regret that I must terminate your services as Chief of Police for the City of Selah effective at 5:00 p.m. September 9, 1978. You will receive 30 days' termination pay. Best of luck in your future endeavors.

Upon request, the City Manager served Mr. Benavides' attorney with a written statement of accusations on September 22, 1978. ² After hearings before the civil service commission and the superior court, the discharge was affirmed.

On appeal, Mr. Benavides contends he was never properly terminated from the police department because the letter dated September 8, 1978, was not accompanied by written accusations as required by RCW 41.12.090. ³ We find, however, that the defective notice of termination on September 8 was superseded by service of a legally adequate notice on September 22, which contained detailed written accusations as required by the statute. See Martin v. Dayton School Dist. 2, 85 Wash.2d 411, 413, 536 P.2d 169 (1975); accord, Hunter v. Board of Directors of Inchelium School Dist. 70, 14 Wash.App. 177, 180, 536 P.2d 1209 (1975). The second notice was served in advance of the hearing before the civil service commission, and there is no evidence of prejudice to preclude termination.

Addressing the merits, Mr. Benavides contends: (1) there is not sufficient evidence to support his discharge and (2) the evidence demonstrates a lack of good faith on the part of the City.

(T)he judiciary will only review the actions of an administrative agency to determine if its conclusions may be said to be, as a matter of law, arbitrary, capricious, or contrary to law.

Helland v. King County Civil Service Comm'n, 84 Wash.2d 858, 862, 529 P.2d 1058, 1060 (1975), quoting from Reiger v. Seattle, 57 Wash.2d 651, 653, 359 P.2d 151 (1961). Exercising our independent judgment, we apply the same standard of review directly to the record considered by the trial court. Eiden v. Snohomish County Civil Service Comm'n, 13 Wash.App. 32, 37, 533 P.2d 426 (1975).

Under RCW 41.12.090, the civil service commission investigation is:

confined to the determination of the question of whether such . . . discharge was or was not made for political or religious reasons and was or was not made in good faith (f)or cause . . .

Following the hearing, the civil service commission stated:

All members of the commission having agreed that the following accusations are true and are in violation of the provisions of RCW 41.12.080 (41.12.080) and the rules of the civil service commission:

(1) Inefficiency, inattention to duty concerning his position as Police Chief, failure to properly administer the department or to direct those under his command to take care of administrative details necessary for the proper running of a police department and failure to maintain the discipline and respect and confidence of his fellow officers.

(2) Use of City equipment for personal use.

It is further found by the commission that the discharge of Ramon Benavides was not made for political or religious reasons and was made in good faith for cause.

The trial court, with limited review, concluded the discharge was made in good faith and for cause. RCW 41.12.090. Our review of the record discloses substantial and competent evidence to support the discharge. In addition to the testimony of the individual police officers, City Manager Olander, with specific examples, summarized the basic areas of dissatisfaction with Mr. Benavides' performance as Chief of Police:

(1) Lack of follow-up on administrative matters.

(2) Lack of firm and consistent direction to the men and women in the department.

(3) Incompetency in field procedures, i. e., failure to "back up" another officer during potentially dangerous situations.

(4) Failure to motivate and communicate to police personnel.

Mr. Benavides contends the allegation of misuse of City equipment was frivolous but in his words, and as the record discloses, the incident involved driving a newly purchased police car for approximately 50 miles to determine whether there were any "bugs" in it. The contention was not frivolous.

The allegations of bad faith and political motivations for his discharge are unsupported by the record. In this vein, we concur with the observations of the trial court:

It was with considerable interest that I carefully studied the transcript of those proceedings, with the plaintiff's position, that the whole mass of this evidence points to a lack of good faith, in mind also. As counsel indicated, it was difficult for him to point to something specific to indicate that his suspicions, that this discharge was motivated by political or other reasons, were accurate, but that he feels that the accumulation of all the evidence does lead a reviewer to that result. I could not reach the same conclusion as Mr. Weaver as I studied that record. It seems to me as I did so that the record of the facts amply supported the conclusion reached by the commission, and that the commission's determination was made in good faith and was based upon cause, and, therefore, was not arbitrary or capricious.

I am especially interested in Mr. Weaver's pointing to the absence of good faith. The absence of good faith implies, I suppose, bad faith. But counsel does not specify either what the bad faith was, what the motivation for it was, or how the plaintiff was prejudiced in his legal rights in any way by what counsel observes to be an aura throughout the proceedings of bad faith. The court could find none on its own.

In this connection, we note a related appearance of fairness challenge to the civil service commission was abandoned on appeal to this court.

On cross-appeal, the civil service commission contends the court erred in taxing the city for the costs of appeal to superior court. The costs, totaling.$1,294, included $45 for clerk's fee, $340 court reporter's attendance fee, and $908.60 costs of transcription.

Although it is the responsibility of the civil service commission to "make, certify, and file" the civil service investigative transcript with the superior court, the statute is silent as to who pays the costs of transcription. See RCW 41.12.090. ⁴ Addressing a similar situation in Portage Bay-Roanoke Park Community Council v. Shorelines Hearings Bd., 92 Wash.2d 1, 8, 593 P.2d 151 (1979), the court held it was the responsibility of...