King County v. King County Personnel Board
| Decision Date | 10 November 2008 |
| Docket Number | 61406-1-I |
| Parties | KING COUNTY, Appellant, v. KING COUNTY PERSONNEL BOARD and DAVID RICHARDSON, Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
If a career service employee prevails in an appeal of a grievance to the King County Personnel Board (the Personnel Board) King County Code (KCC) 3.12.290(C) mandates that the Personnel Board award reasonable attorney fees to the employee. However, KCC 3.12.290(C) also provides that an employee can be considered a prevailing party only if King County (the County) makes a written settlement offer 30 days before the Personnel Board hearing and the award exceeds the County's offer. In this case, there is no dispute that the County did not make a written settlement offer under KCC 3.12.290(C). Nonetheless, the County relies on a literal interpretation of the prevailing party provision in KCC 3.12.290(C) to assert that the Personnel Board erred in awarding attorney fees to career service employees who successfully argued an examination violated the requirements of the King County Code. Alternatively, the County contends the Personnel Board abused its discretion in determining the amount of the attorney fee award. We conclude that the County's literal interpretation of KCC 3.12.290(C) is contrary to the express intent of the King County Council to both liberally construe the King County Code and to encourage the settlement of grievances and results in unlikely, absurd and strained consequences. Consistent with the express intent of the King County Council and other analogous fee-shifting rules and statutes, if the County does not make a written settlement offer 30 days before the Personnel Board hearing and the employee prevails on the merits of a claim in the appeal, the employee is entitled to an award of attorney fees under KCC 3.12.290(C). We affirm the decision of the Personnel Board to award fees and conclude the Personnel Board did not abuse its discretion in determining the amount of attorney fees.
The facts are not in dispute. David Richardson is a sergeant with the King County Department of Adult and Juvenile Detention (DAJD). In October 2004, DAJD posted an announcement for a captain position. In November, a number of qualified candidates, including Richardson, were given the opportunity to take a written examination for promotion to captain. The King County Personnel Guidelines governed the promotion process, including the requirement for the written examination. On December 20, DAJD notified Richardson and several others that they were not selected to advance to the next step. On December 23, Richardson filed a grievance contesting the written examination on the grounds that it violated the Personnel Guidelines. Fourteen other sergeants who took the examination later joined Richardson's grievance (collectively Richardson). In the grievance Richardson sought to invalidate the test and require DAJD to develop an objective test that complies with the Personnel Guidelines. Richardson also requested attorney fees and costs.
At step two of the grievance process, DAJD concluded that the written examination did not violate the Personnel Guidelines and denied the grievance. At the conclusion of the step three grievance hearing, the hearing officer concluded there was "insufficient information . . . to issue a substantive decision on the merits of the grievance." The hearing officer emphasized that the Personnel Board "strongly advises parties to a grievance to attempt settlement" and suggested the parties pursue settlement. When the parties were unable to resolve the grievance, the hearing officer issued a decision denying the grievance.
Richardson then filed an appeal with the Personnel Board. Richardson contested the validity of the written examination and challenged the examination on a number of grounds, including the failure to provide mandatory forms for purposes of challenging questions during the examination. The Personnel Guidelines provide in pertinent part:
An applicant who wishes to challenge a question or item on a written examination must call it to the attention of the test monitor in writing on forms provided for that purpose. The applicant must do this before leaving the examination.[1]
At the beginning of the September 8 hearing before the Personnel Board, the County admitted that it did not have forms available to challenge questions during the written examination, but maintained that there was no violation of the Personnel Guidelines because "[n]o employee came forward with any objection or challenges to the test as it was administered."
At the conclusion of Richardson's presentation, the County moved to dismiss the grievance. The Personnel Board indicated it would be inclined to grant the motion but only if the parties entered "into an agreement to not use this test in the future, cease using the registry that was generated from the test and that all future hiring will strictly comply with the Personnel Guidelines." The County agreed to the conditions set forth by the Personnel Board but Richardson decided to proceed with the hearing.
In a written decision, the Personnel Board concluded that Richardson had established the County violated the requirements of the King County Personnel Guidelines by failing to provide the mandatory forms to challenge the written examination. The Personnel Board also rejected the County's position that Richardson was barred from challenging the violation based on his failure to raise objections at the time of the written examination. However the Personnel Board concluded that the "procedural defect was not sufficient to undermine the validity of the test." The Personnel Board concluded that Richardson was the prevailing party "with respect to the County's failure to provide required forms to complain about testing questions or items, " and ruled that he was entitled to reasonable attorney fees on that claim. Richardson submitted an itemized statement for attorney fees and costs of $9, 343.
The County filed a motion to reconsider the decision to award attorney fees, arguing that Richardson was not a prevailing party under KCC 3.12.290(C). In the "Order Awarding Attorney Fees, " the Personnel Board rejected the County's interpretation and concluded that KCC 3.12.290(C) only prevents the award of attorney fees if a written settlement offer from the County is in effect for 30 days before the hearing. Because the County did not make a written settlement offer, the Personnel Board ruled that "under the circumstances presented appellants are appropriately considered prevailing parties entitled to attorneys fees under King County Code 3.12.290(C)." But the Personnel Board agreed with the County that some of the requested fees did not relate to the claim Richardson prevailed on and reduced the attorney fees award to $5, 277.
The County filed a writ of certiorari, seeking review of the Personnel Board's decision to award attorney fees to Richardson under KCC 3.12.290(C). The superior court agreed with the Personnel Board's interpretation of KCC 3.12.290(C) and denied the writ. The court rejected the County's interpretation of KCC 3.12.290(C) as strained or unlikely because it was contrary to the express policy of encouraging the settlement of grievances. The superior court also noted that under the County's interpretation,
On appeal, the County relies on a literal interpretation of the language in KCC 3.12.290(C) to argue that the Personnel Board erred in awarding attorney fees to Richardson.
When reviewing an administrative decision on appeal, we review the administrative record to determine whether the agency decision was "arbitrary and capricious, or contrary to law." D.W. Close Co., Inc. v. Wash. State Dep't of Labor & Indus., 143 Wn.App. 118, 125, 177 P.3d 143 (2008); King County v. Carter, 21 Wn.App. 681, 687, 586 P.2d 904 (1978). We review questions of statutory interpretation de novo but "accord substantial weight to the agency interpretation" of the regulations and laws the agency is responsible for administering. Everett Concrete Products, Inc. v. Dep't of Labor & Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988); RCW 7.16.120(3). We review issues of fact to determine whether they are supported by substantial evidence and view the evidence in the light most favorable to the nonmoving party. Development Services of America, Inc. v. City of Seattle, 138 Wn.2d 107, 115, 979 P.2d 387 (1999).
The County contends that the Personnel Board's decision to award Richardson attorney fees violates the plain language of KCC 3.12.290(C). Richardson and the Personnel Board assert that the County's interpretation is inconsistent with the mandate to award attorney fees, the requirement to avoid strict construction and liberally construe the Code, and the strong policy to settle grievances.
KCC 3.12.290(C) provides:
The personnel board or the court shall award a career service employee reasonable attorney's fees incurred in any appeal in which the employee is the prevailing party, provided, that the employee shall be considered the prevailing party only where the county has a written settlement offer in effect thirty calendar days prior to the hearing of the personnel board or court and the award obtained by the employee exceeds the terms of that settlement offer; provided further, that such reasonable attorney's fees shall not exceed the actual fees paid by the employee.
Our primary objective in interpreting KCC 3.12.290(C) is...
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