Johnson v. Wash. State Conservation Comm'n

• Citation: 480 P.3d 502,16 Wash.App.2d 265
• Decision Date: 09 February 2021
• Docket Number: No. 54173-4-II,54173-4-II
• Court: Court of Appeals of Washington
• Parties: Eric JOHNSON and Richard Mankamyer, Appellants/Cross Respondents, v. WASHINGTON STATE CONSERVATION COMMISSION and the following in their individual and official capacities: Jim Kropf, Chair; Dean Longrie, Vice-Chair; Harold Crose, Commissioner; Larry Cochran, Commissioner; Daryl Williams, Commissioner; Sarah Spaeth, Commissioner; Perry Beale, Commissioner; Thomas Miller, Commissioner; Executive Director Mark Clark; Policy Director Ron Shultz; John and Jane Does 1-10, Respondents/Cross Appellants.

16 Wash.App.2d 265

480 P.3d 502

Eric JOHNSON and Richard Mankamyer, Appellants/Cross Respondents,

v.WASHINGTON STATE CONSERVATION COMMISSION and the following in their individual and official capacities: Jim Kropf, Chair; Dean Longrie, Vice-Chair; Harold Crose, Commissioner; Larry Cochran, Commissioner; Daryl Williams, Commissioner; Sarah Spaeth, Commissioner; Perry Beale, Commissioner; Thomas Miller, Commissioner; Executive Director Mark Clark; Policy Director Ron Shultz; John and Jane Does 1-10, Respondents/Cross Appellants.

No. 54173-4-II

Court of Appeals of Washington, Division 2.

Filed February 9, 2021

Phyllis Jean Barney, Attorney General's Office, P.O. Box 40117, 2425 Bristol Ct. Sw, Olympia, WA, 98504-0117, Jeffrey Todd Even, Office of The Attorney General, P.O. Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, for Respondents/Cross Appellants.

Shawn Timothy Newman, Attorney at Law, 2507 Crestline Dr. Nw, Olympia, WA, 98502-4327, for Appellants/Cross Respondents.

PUBLISHED OPINION

Worswick, J. ¶ 1 Eric Johnson and Richard Mankamyer (collectively, appellants) were supervisors on the Thurston Conservation District. The Washington State Conservation Commission removed both appellants for malfeasance and neglect of duty. The appellants filed an action in superior court for declaratory and injunctive relief, and for attorney fees.¹ The trial court entered a summary judgment order ruling that the Commission erred when it held the removal hearing under the Open Public Meetings Act (OPMA)² instead of under the Administrative Procedure Act (APA).³ The court also ruled that neither election statutes nor the State Constitution required the appellants to be removed only by a recall election. The court remanded the case to the Commission for further proceedings, and granted appellants leave to request attorney fees at a later date.

¶ 2 The appellants appeal, arguing that (1) the trial court erred when it granted summary judgment by ruling that removal of an elected supervisor under RCW 89.08.200 does not violate article I, section 33 of the Washington Constitution, (2) the trial court erred when it granted summary judgment by remanding the matter to the Commission, and (3) they are entitled to costs and fees under RAP 18.1, the OPMA, and the APA.

¶ 3 The Commission cross appeals, arguing the trial court erred when it ruled that (4) the Commission erroneously held the removal hearing under the OPMA and not the APA, and (5) the appellants were denied procedural rights and were thereby substantially prejudiced.

¶ 4 We affirm the trial court's rulings that the APA applies to removal hearings for conservation district supervisors, the Commission erred when it held the removal hearing under the OPMA rather than the APA, and the removal of elected conservation district supervisors under RCW 89.08.200 does not violate the Washington Constitution. However, we reverse the trial court's ruling that the appellants were denied procedural rights that resulted in substantial prejudice to the appellants. Accordingly, we vacate the trial court's order remanding the matter to the Commission because remand would be futile or impracticable. We also deny the appellants’ request for attorney fees. Thus, we affirm in part, reverse in part, vacate in part, and deny the appellants’ request for attorney fees.

FACTS

¶ 5 Conservation districts are local government entities governed by the Washington State Conservation Commission. RCW 89.08.020. There are 45 conservation districts around the state, including the Thurston Conservation District. RCW 89.08.070. Each conservation district is governed by a board of five supervisors, three of whom are elected and two of whom are appointed by the Commission. RCW 89.08.160, .210, .220. Supervisors serve three year terms. RCW 89.08.200. Supervisors are unpaid, but are entitled to expenses incurred during performance of their duties. RCW 89.08.200.

¶ 6 Eric Johnson was appointed as a supervisor on the Thurston Conservation District in September 2013. Johnson's term as supervisor expired in May 2019.⁴ Richard Mankamyer was elected for a term running from May 2017 to May 2020.

¶ 7 In November 2017, the Commission received a complaint regarding the appellants’ conduct as Thurston Conservation District supervisors.⁵ The Commission informed the appellants that they were being investigated for potential removal from their positions under RCW 89.08.200.⁶ Staff at the Thurston Conservation District also filed complaints against the appellants with the Washington State Human Rights Commission in March 2018. These complaints resulted in the Commission conducting an investigation into the appellants’ conduct covering the time period between January 2016 and June 2018.

¶ 8 In a report issued in July 2018, the Commission set out 11 charges against the appellants. The Commission then held a special meeting in August 2018 to decide whether to hold a public hearing to consider the appellants’ removal. At that meeting, the Commission voted to hold a hearing under the OPMA to determine the appellants’ removal. The appellants requested a hearing under the APA in September 2018.

¶ 9 The Commission responded to the appellants’ request, but informed them that it would not conduct the public hearing as an APA adjudication. Instead, the Commission stated that it would hold the removal hearing under the OPMA. The Commission claimed it had the authority to choose not to conduct an adjudicative proceeding under the APA. See RCW 34.05.416.

¶ 10 The Commission held the removal hearing over the appellants’ objections in February 2019. In a series of prehearing conferences and communications, the appellants and the Commission cooperated in reaching a determination on the procedural and administrative details of the hearing. The appellants were afforded certain procedural rights at the hearing, including representation by counsel, presenting and questioning witnesses, and entering exhibits. At the removal hearing, the Commission voted to remove Johnson and Mankamyer for neglect of duty and malfeasance based on 4 of the 11 charges.

¶ 11 The Commission made findings regarding the 4 charges. First, the Commission found neglect of duty by both appellants because they failed to maintain full and accurate records of district business, resulting in a lack of direction for district staff and a lack of clear district records.

¶ 12 Second, the Commission found neglect of duty by both appellants because they delayed approval of timesheets and signing of checks. This resulted in the district incurring late fees on overdue bills and putting district bank account signing authorities at risk.

¶ 13 Third, the Commission found both appellants committed malfeasance by engaging in inappropriate conduct and making inappropriate comments when working with district staff. The harassment affected, interfered, and interrupted the performance of the district. Regarding this charge, the Commission found that the appellants had failed to implement the recommendations of a risk management specialist, which resulted in increases in insurance rates and deductibles for the district.

¶ 14 Fourth, the Commission found Johnson committed malfeasance when he failed to attend a public hearing. Johnson's failure to attend resulted in a lack of a quorum during a budget meeting regarding the district's rates and charges and ultimately resulted in a loss of nearly a third of the district's annual budget.

¶ 15 Meanwhile, the appellants proceeded against the Commission in court. After learning in September 2018 that they would not be receiving a hearing under the APA, the appellants filed a petition for judicial review in Thurston County Superior Court. The appellants sought declaratory and injunctive relief under 42 U.S.C. section 1983 (civil action for deprivation of rights), the APA, and the OPMA. The Commission removed the case to federal court in October 2018. In March 2019, the United States District Court granted the Commission's motion to summarily dismiss the appellants’ 42 U.S.C. § 1983 claims, and then dismissed the APA and OPMA claims without prejudice.⁷ After the Commission's decision to remove the appellants from the Conservation District, they filed an amended complaint in superior court in April 2019.

¶ 16 The appellants and the Commission then filed cross motions for summary judgment. The trial court granted summary judgment to the appellants, ruling that the hearing was an "adjudicative proceeding" and that the Commission erred when it held the removal hearing under the OPMA rather than the APA. Clerk's Papers (CP) at 130. The court also ruled that the appellants were denied procedural rights which resulted in substantial prejudice. The court ordered that the matter be remanded to the Commission for further proceedings under the APA.⁸

¶ 17 The appellants now appeal the trial court's order of summary judgment and argue that the removal statute, RCW 89.08.200, violates the Washington Constitution as it applies to elected supervisors. The appellants further argue that the trial court's remand of the proceedings to the Commission for adjudication under the APA is futile and impracticable. The appellants also request attorney fees on appeal.

¶ 18 The Commission cross appeals. The Commission assigns error to the trial court's finding that the Commission was required to hold removal hearings under the APA and not the OPMA.⁹ The Commission argues that its removal procedure did not violate either the APA or the OPMA. The Commission also assigns error to the trial court's finding that the appellants were denied procedural rights.¹⁰ The Commission argues that the appellants had no property or liberty interest in their positions and that, accordingly, the procedure it afforded the appellants was sufficient regardless of whether the hearing was held under the OPMA or the APA. Additionally, the Commission argues that even if the procedure it used was flawed, the appellants...