Hamilton v. Kitsap County
| Decision Date | 03 January 2019 |
| Docket Number | 50570-3-II |
| Citation | 7 Wn.App.2d 1004 |
| Court | Washington Court of Appeals |
| Parties | BRETT HAMILTON, a single individual, Appellant, v. KITSAP COUNTY, Respondent. |
UNPUBLISHED OPINION
Brett Hamilton appeals from summary judgment in favor of Kitsap County on his claims of negligent supervision, negligent infliction of emotional distress (NIED), and retaliatory discharge. Hamilton argues the trial court erred in concluding no genuine dispute of any material fact existed on the negligent supervision claim or the retaliatory discharge claim. He also argues the trial court erred because it did not consider emotional damages when ruling on the NIED claim. We affirm.
Hamilton worked as a corrections officer for the Kitsap County Sheriffs Office (KCSO) Corrections Division from 2002 to 2013. He received positive employee-performance reviews, and his employer recognized him as the corrections officer of the year in 2011. Hamilton had no disciplinary history prior to June 2012.
Corrections officers were members of the Kitsap County Correctional Officers Guild (Guild). A Collective Bargaining Agreement (CBA) governed the terms of employment for corrections officers. The CBA included appendix D, the Corrections Officer Bill of Rights (COBR), which provided, among other matters, rights afforded to corrections officers for administrative investigations that potentially involved disciplinary action. The COBR provided, in relevant part that:
In criminal matters, an employee shall be afforded those constitutional rights available to any citizen. In administrative matters ..., [an employee] will be afforded the safeguards set forth in [the COBR].
Clerk's Papers (CP) at 327. As relevant here, the COBR provided that in certain administrative matters an employee must be provided the opportunity to consult with a Guild representative upon request and be questioned while "on duty or during the normal waking hours . . . unless the seriousness of the investigation require[d] otherwise." CP at 327-28.
Corrections Division procedures included the following. When detailing major infractions of the jail's rules, corrections officers had to submit a written incident report before their shift ended. When corrections officers suspected criminal conduct, they would write a report, and a shift supervisor would notify the Port Orchard Police Department (POPD) to conduct an independent criminal investigation. When the corrections officers reported non-criminal infractions, the shift supervisors would write on the report if they assigned a corrections officer to a follow-up investigation.
In the fall of 2011, Hamilton created two petitions entitled "Emergency Injunction." The petitions stated that the KCSO officers who signed the petitions had safety concerns about staffing levels during a particular shift.
Hamilton gave the petitions to Terry Cousins, the Guild president. Hamilton did not know what happened with the petitions, and he did not receive any feedback. Cousins gave the documents to an administrator in the Corrections Division. Cousins discussed the petitions with Ned Newlin, the Chief of the Corrections Division, on December 30, 2011.
The Corrections Division used a company, Telmate, to manage inmate's phone calls and video visits. Inmates paid Telmate directly for the service. In March 2012, Corrections Sergeant Keith Hall e-mailed Telmate that inmates were receiving free remote-video visits because of a suspected software glitch. In the e-mail, Hall noted that Aaron Caseria, an inmate, had one of the highest number of free visits. Telmate replied that it did not want to seek payment for the free visits.
A few weeks later, Hamilton filed an incident report about Caseria exploiting the software glitch to get free video visits. The report contained Caseria's statement that he could not be blamed because the system could be manipulated. Sergeant Craig Dick, the shift supervisor, reviewed this incident report. Dick wrote on the report that Telmate was reviewing the issue. The Corrections Division did not ask Hamilton to follow up on the report.
Hamilton later spoke with Hall and Sergeant Anthony Glover about his incident report. Glover told Hamilton that he could continue to review Caseria's video visits on Telmate and write reports on his findings. Hamilton did not file any other incident reports related to Caseria's Telmate use.
On one occasion, Hamilton saw Caseria's wife, Ashley [1] using a Telmate account registered to Caseria's mother. Hamilton took down the phone number associated with the Telmate account and texted personal messages to Ashley saying, in part, how much he loved her. Hamilton used his son's phone for the texts because he believed it would not show a name on caller ID.
On June 9, 2012, Caseria's mother-in-law died, and Officer Kearney told Hamilton that Caseria found out about the death. Hamilton believed Caseria was lying about the death so he could be furloughed claiming he needed to attend the funeral. Hamilton could not find an obituary for Caseria's mother-in-law. He again texted Ashley, stating how much he loved her. He also called her number. Despite repeated requests, Hamilton never identified himself.
Ashley subsequently called 911 and reported Hamilton's calls and texts. The same day, Hamilton looked up Ashley in the Corrections Division records and saw a new criminal case number. He believed that Ashley had filed a police report about his texts and calls.
Hamilton told Officer Kearney and two other officers about the texts. The other officers expressed their concerns to Hamilton. Hamilton did not have concerns about getting caught because he used somebody else's phone. He did not tell anybody he was conducting an investigation.
Before Kearney's shift ended, Kearney told Dick that Hamilton admitted he texted Ashley. Dick then reported this information to Lieutenant Genie Elton. Neither Dick nor Elton authorized the text messages. Hamilton never discussed his plan to text Ashley with any supervisor. He also did not write an incident report about his actions.
Elton met with Newlin and told him about Hamilton's texts. Newlin told Elton to report Hamilton's conduct to POPD so it could conduct an independent criminal investigation. Newlin also told Elton to have Sergeant Jim McDonough, of KCSO's Office of Professional Standards, check the Corrections Division's records to see if Hamilton had accessed Caseria's or Ashley's records. McDonough reported that Hamilton accessed Ashley's records on two occasions. Hamilton changed the address on file for Ashley on January 22, 2012, and had queried her name on June 10.
POPD had discretion to investigate whether Hamilton acted criminally. The Corrections Division did not have control over POPD's criminal investigation. POPD assigned Detective E.J. Martin to investigate the criminal complaint against Hamilton relating to the text messages.
Elton told Martin that she preferred he interview Hamilton about the text messages away from the Kitsap County Jail. She wanted to avoid workplace disruptions and ensure that Hamilton did not feel that the Corrections Division was pressuring him to incriminate himself. Martin agreed and decided to interview Hamilton at Hamilton's home.
On June 16, Martin went to Hamilton's home. Martin displayed his badge, and Hamilton agreed to speak with Martin. Hamilton repeatedly denied texting Ashley. Two days later, Payne reassigned Hamilton to administrative work because of the criminal investigation.
On June 19, Hamilton contacted Cousins for advice from the Guild. Hamilton admitted to Cousins that he had lied to Martin about the text messages. Cousins told Hamilton to write a truthful statement and give it to Martin.
Hamilton met with Martin and gave him a sworn written statement admitting he sent the texts. In the statement, Hamilton claimed that the texts were part of a follow-up investigation into Caseria's Telmate use. Hamilton told Martin that he lied because he was afraid and did not know if he should talk to Martin.
Shortly thereafter, Newlin told Elton to notify the Bremerton Police Department (BPD) about Hamilton's conduct. Hamilton served as a volunteer reserve officer for BPD. BPD told Hamilton that he could not serve as a reserve officer while he was under investigation.
Ashley filed for a protection order against Hamilton. At a hearing on the order, Hamilton testified that he was conducting an investigation when he texted Ashley but admitted that he did not notify his supervisors. The presiding judge found that Hamilton's texts were harassing and sent without legal authority. The court granted Ashley a permanent protection order against Hamilton.
On August 28, the City of Port Orchard filed a criminal complaint based on POPD's investigation. The complaint charged Hamilton with telephone harassment and making a false statement to a public servant, Martin. Hamilton signed a pretrial diversion agreement in that case.
On March 26, 2013, KCSO terminated Hamilton for misconduct. In the termination letter, Newlin cited violations of KCSO policies, Civil Service Rules, the Corrections Division mission and core values, and Hamilton's oath of office as a corrections officer. Newlin stated that he had no faith in Hamilton's judgment, honesty, or ethics. He believed Hamilton could not effectively conform to standard operating procedures, testify on behalf of the Corrections Division, or represent the Corrections Division positively. The Guild did not seek arbitration even though the CBA allowed for it. BPD subsequently terminated Hamilton from service as a volunteer reserve...
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