Divis v. Wash. State Patrol

Decision Date28 May 2014
Docket NumberNo. 43744-9-II,43744-9-II
CourtWashington Court of Appeals
PartiesDAVID S. DIVIS, Appellant, v. WASHINGTON STATE PATROL, Respondent.
UNPUBLISHED OPINION

HUNT, J.David S. Divis appeals the superior court's affirmance of the Washington State Patrol Chief John R. Batiste's order demoting him from sergeant to trooper. Divis argues that we should reverse the superior court because Chief Batiste (1) exceeded his authority and wrongly entered his own independent findings of fact that differed from the Washington State Patrol (WSP) Trial Board's findings of fact; (2) improperly relied on a prior settlement agreement arising from Divis's earlier acts of misconduct, which settlement agreement was not before the Trial Board; (3) failed to weigh the proportionality of his discipline of Divis against his discipline of other troopers in similar situations; and (4) lacked just cause to demote him because the investigation was not conducted fairly, one of the elements of cause in the WSP's Administrative Investigation Manual. Holding that Chief Batiste acted within his supervisory authority, we affirm.

FACTS

The Washington State Patrol (WSP) hired David S. Divis as a trooper in 1989. On March 2, 2006, WSP promoted Divis to sergeant; later that month, WSP assigned him to supervise a trooper detachment in South Seattle.

In January 2008, WSP's Office of Professional Standards Internal Affairs investigated allegations that Divis had made racially insensitive comments in front of his troopers multiple times during 2006 and 2007 and that he had used intimidation techniques to prevent employees from reporting his racially insensitive behavior. WSP initiated disciplinary proceedings, alleging eleven specific violations.

An administrative WSP Trial Board conducted a six-day hearing in December 2009 and January 2010. After hearing testimony from 18 witnesses and reviewing over 3,000 pages of information, the Trial Board (1) determined that WSP had proved three of the alleged racially insensitive remarks1; (2) unanimously agreed that Divis had violated WSP Regulation 8.00.010 (A), requiring employees to obey WSP rules of conduct, and WSP Regulation 8.00.030 (A), prohibiting unacceptable conduct by employees; and (3) unanimously recommended that Divis be sanctioned by suspending him for 20 working days. The Trial Board forwarded its findingsand recommendation to Chief Batiste, who entered a two-page final order (First Final Order), demoting Divis from sergeant to trooper.

Divis petitioned the superior court for a judicial writ of review.2 The superior court dismissed the Trial Board's finding that Divis had engaged in an open forum management style, vacated Chief Batiste's demotion order because it did not comply with RCW 34.05.461(3)3, and remanded for additional review and entry of a new order. On December 2, 2011, Chief Batiste entered a new final order (Second Final Order), again demoting Divis from sergeant to trooper. Divis filed a new Petition for Judicial Writ of Review. The superior court upheld the chief's Second Final Order. Divis appeals.

ANALYSIS
I. FINDINGS OF FACT

Divis first contends that Chief Batiste exceeded his authority under RCW 43.43.090 by making his own findings of fact in his Second Final Order that contradicted or exceeded the scope of the Trial Board's findings, which were binding on him. The record does not support Divis's contentions. Furthermore, Divis mischaracterizes Chief Batiste's recitation of the Trial Board's findings of facts.

On the contrary, the record supports WSP's assertion that Chief Batiste did not make new findings of fact. Rather, he merely summarized the Trial Board's record and findings, and issued his final order based on two ultimately-sustained allegations against Divis.4 For example, the chief's Second Final Order stated: "Credible testimony . . . confirms that Sergeant Divis made a statement to the effect, 'The three laziest troopers in this detachment happen to be black.'" Clerk's Papers (CP) at 22 (emphasis added). Chief Batiste did not find that Divis had used the term "lazy"; rather, in noting that some troopers had testified that Divis had "made a statement to [that] effect," the chief was merely summarizing parts of the administrative record before the Trial Board. CP at 22. Thus, Divis is mistaken in his contention that Chief Batiste's Second Final Order revised the Trial Board's findings about whether he (Divis) had used the term "lazy trooper" in a racial context. Br. of Appellant at 17.

Similarly, the record does not support Divis's contention that Chief Batiste found his (Divis's) "Aunt Jemima" comment to have been racially discriminatory, in contrast to the Trial Board's finding ho evidence of discrimination. Br. of Appellant at 18. First, Divis fails to identify what finding in the chief's Second Final Order was allegedly contrary to the Trial Board's finding; nor does Divis provide a record citation for such finding, contrary to RAP10.3(a)(6).5

Nevertheless, our review of the record does not reveal any finding by Chief Batiste that Divis's comment was discriminatory. Instead, we find only the chief's statement that Divis's "Aunt Jemima" comment "was insensitive and was offensive." CP at 24. Furthermore, the chief's statement did not contradict the Trial Board's finding that "[t]he preponderance of the evidence presented clearly supports that the allegation of Discrimination/Harassment is unfounded." CP at 199. Thus, Divis's first argument fails.

II. CONSIDERATION OF 2006 SETTLEMENT AGREEMENT

Divis next argues that in demoting him from sergeant to trooper, Chief Batiste improperly relied on a prior 2006 settlement agreement that arose from Divis's earlier acts of misconduct, which was not before the Trial Board. Chief Batiste's Second Final Order stated, "Of critical importance to me in making this decision is Sergeant Divis's previous history of discipline for similar conduct." CP at 27. This Second Final Order detailed an earlier complaint against Divis by another trooper, who alleged that Divis had "'made inappropriate comments about her and other female personnel in the agency'"; this case was resolved in 2006 through a settlement agreement that Divis's conduct had violated WSP Regulation 8.00.030 (A)—Unacceptable Conduct. CP at 27.

In connection with the instant allegations against Divis, however, WSP withdrew the allegation and evidence related to this 2006 prior settlement agreement. Thus, WSP did not present to the Trial Board evidence of how Divis's prior behavior resulted in this settlement agreement, and the Trial Board made no findings relating to this prior settlement agreement or that Divis's currently alleged misconduct was a "pattern" or "trend." CP at 28. Nevertheless, Divis's prior misconduct and the resultant settlement agreement were part of the Trial Board's record; thus, the chief could consider this information in determining the appropriate discipline. Divis's challenge to Chief Batiste's consideration of Divis's 2006 misconduct fails.

A. Standard of Review; Statutory Authority

Each level of the judiciary reviews administrative decisions in an appellate capacity. Farm Supply Distribs., Inc. v. Wash. Utils. & Transp. Comm'n, 83 Wn.2d 446, 448, 518 P.2d 1237 (1974). When reviewing an administrative action, we sit "'in the same position as the superior court, applying the standards of the [Washington Administrative Procedure Act (APA)6] directly to the record before the agency.'" Chandler v. Office of Ins. Comm'r, 141 Wn. App. 639, 647, 173 P.3d 275 (2007) (quoting Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)). "We apply a substantial evidence standard to an agency's findings of fact[7] but review de novo its conclusions of law." Chandler, 141 Wn. App. at 647 (citing Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P.3d 930 (2006)).

When reviewing factual issues, the substantial evidence standard is highly deferential to the agency fact finder. When an agency determination is based heavily on factual matters that are complex, technical, and close to the heart of the agency's expertise, we give substantial deference to agency views. Under this standard, evidence must be of a sufficient quantum to persuade a fair-minded person of the truth of a declared premise. But [we do] not weigh the evidence or substitute our judgment regarding witness credibility for that of the agency. Findings of fact to which no error has been assigned are verities on appeal.

Chandler, 141 Wn. App. at 648 (footnotes and citations omitted).

We may grant relief "if the party challenging the agency order shows that the order is invalid for one of the reasons set forth in RCW 34.05.570(3)8,"9 such as where "[t]he order isoutside the statutory authority or jurisdiction of the agency conferred by any provision of law"10; or (2) "[t]he agency has erroneously interpreted or applied the law."11 We may also grant relief where the action complained of has caused substantial prejudice. RCW 34.05.570(1)(d).12 Divis fails to meet any of these standards.

B. Failure To Assign Error to Trial Board's Findings of Fact

Divis does not dispute that the legislature has authorized the WSP chief to determine what discipline to take against a trooper after receiving the Trial Board's findings, which here focused on Divis's proven misconduct. See RCW 43.43.090, which provides, in part:

After hearing, the findings of the trial board[13] shall be submitted to the chief. Such findings shall be final if the charges are not sustained. In the event the charges are sustained the chief may determine the proper disciplinary action and declare it by written order served upon the officer complained of.

Neither this statute nor any other statute of which we are aware limits the WSP chief's broad discretion to determine the type and scope of disciplinary action by confining the chief to consider only the Trial Board's findings. Unlike the chief's broad disciplinary...

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