Nelson v. State

• Decision Date: 11 December 2017
• Docket Number: No. 75559-5-I,75559-5-I
• Court: Washington Court of Appeals
• Parties: CAPTAIN BRUCE NELSON, Appellant, v. STATE OF WASHINGTON and WASHINGTON STATE BOARD OF PILOTAGE COMMISSIONERS, Respondent.

CAPTAIN BRUCE NELSON, Appellant, v. STATE OF WASHINGTON and WASHINGTON STATE BOARD OFPILOTAGE COMMISSIONERS, Respondent.

No. 75559-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 11, 2017

UNPUBLISHED OPINION

DWYER, J. — Captain Bruce Nelson appeals from the order of the superior court affirming the Board of Pilotage Commissioners' final order denying him a pilot's license. On appeal, he contends that several of the Board's findings of fact are not supported by substantial evidence, that the Board's final order was arbitrary and capricious, that the Board failed to conduct rule making in adopting a reporting form used to record his performance during a training program, that the Board engaged in an unlawful procedure or decision-making process in denying him a pilot's license, that the criteria applied by the Board in denying him a pilot's license were vague in violation of his right to due process, that the Board denied him a meaningful opportunity to be heard in a meaningful time, and that two Board commissioners engaged in unlawful ex parte communications with the Board's legal counsel.

Concluding that there was no error, we affirm.

I

The Board of Pilotage Commissioners is charged with training, licensing, and regulating marine vessel pilots operating in the Puget Sound and Grays Harbor pilotage districts. When the Board determines that the pilotage districts require additional pilots to optimize the pilotage service therein, the Board invites those captains who have already demonstrated a high level of experience as sea captains to apply for a pilot's license. Obtaining a pilot's license is a multi-step process involving examinations and, if successful in the examinations, a complex training program. An applicant's invitation to apply for a pilot's license or to participate in the training program does not guarantee that the Board will issue a pilot's license to the applicant.

In 2006, Nelson was invited to apply for a pilot's license. He successfully took the Board's written and simulator examinations, scoring 9th out of 18 applicants. He was then invited to enter into the Board's pilotage training program for the Puget Sound Pilotage District. Nelson's invitation letter detailed a training program that was anticipated to involve 174 trips and was tailored to his experience as a sea captain, aiming to give him exposure to the wide variety of ships and conditions that a pilot in the Puget Sound pilotage district may encounter.

Nelson's training program—along with the training program for other applicants—was overseen both by the Board and a committee of licensed pilots, known as the Training Evaluation Committee. The Committee was designatedby the Board to manage the training program. In that capacity, the Committee tracked the applicants' progress in the training program through direct observation during training trips and a comprehensive review of training trip report forms submitted by supervising pilots after each completed trip.

The training trip report forms allowed the supervising pilot to indicate on a point scale an applicant's effectiveness on that trip with regard to specified categories related to the criteria used by the Board in making licensing and training decisions.¹ In addition, the report forms contained a written comment section wherein the supervising pilot could make specific comments about the trip and the applicant's performance. Each week, the information in each applicant's training trip report forms would be consolidated into a spreadsheet and provided to the applicant. Thereafter, at the end of a training period, the Committee would review the applicant's record and issue its recommendation to the Board as to whether the applicant should be licensed, should not be licensed, or should undergo additional training.

Nelson accepted the training terms in mid-November and his training program commenced in January 2007. Seven months and over 100 training trips later, the Committee reviewed Nelson's performance. The Committee determined that Nelson had performed inconsistently and recommended that theBoard extend Nelson's training program by two months. The Board then considered the Committee's recommendation and unanimously agreed to extend Nelson's training program, adding specific training trips to his training program in an attempt to address the inconsistencies in his performance.

Two months later, the Committee reviewed Nelson's training program performance. On this occasion, the Committee issued a split recommendation to the Board. Three committee members recommended that the Board issue a license to Nelson and two members recommended that he receive additional training. A majority of the Board (4-3) rejected the recommendation of the majority of the Committee members and voted instead to extend Nelson's training program.

Three months later, the Committee reviewed Nelson's performance during the training program and determined that there was a "disconnect" in his ship-handling skills, that he lacked situational awareness, and that he lacked the ability to process "all the necessary information" in confined waterways. With this, the Committee recommended to extend Nelson's training. The Board agreed with the Committee's recommendation and unanimously voted to extend Nelson's training program.²

A month and a half later, the Committee reviewed Nelson's performance and again recommended to extend his training, this time for four additionalmonths. The Board agreed with the Committee's recommendation and extended his training program.

Three months later, Nelson participated in his 221st training trip. This trip involved a grain ship, the Pier 86 grain terminal, and an evaluation of Nelson's docking skills using a tugboat. During that trip, a senior supervising pilot—and member of the Committee—was forced to intervene in Nelson's tugging of the grain ship in order to avoid substantial damage to the grain terminal and to the ship. The supervising pilot managed to reduce the ship's speed, stabilizing it 30 feet away from its docking berth.

One month later, Nelson completed his final training program extension. By that time, he had taken 243 training trips.

The Committee engaged in an extensive review of Nelson's performance during the training program. The Committee determined that he was performing many piloting tasks well. The Committee concluded, however, that Nelson performed inconsistently throughout his extended training program regarding criteria that the Committee viewed as "essential when docking and undocking a ship," specifically, the "critical ship handling elements of speed control, heading control, and the use of tugboats." Relatedly, the Committee noted with concern that there were 11 instances, occurring after Nelson had already completed 80 training trips, where a supervising pilot felt compelled to intervene in Nelson's piloting.

Moreover, the Committee viewed the Pier 86 grain terminal intervention as a "very serious" intervention. It concluded that the training trip was characterizedas relatively easy and that the intervention had occurred near the end of Nelson's training program. The Committee expressed concern that Nelson was not improving as an applicant and, notably, that "there was a significant risk to the public for continuing him in the training program." Therefore, the Committee unanimously recommended that the Board not license Nelson.

The Board elected to defer voting on the Committee's recommendation, allowing Nelson to prepare his own presentation to the Board. In the intervening six months, Nelson requested, gathered, and submitted information to the Board, and, in October 2008, presented his argument. Two months later, the Board unanimously voted to deny issuance of a license to Nelson.

Nelson timely sought an adjudicative proceeding before an administrative law judge (ALJ) to review the Board's decision. The parties conducted extensive discovery and a seven-day hearing resulted. During the hearing, Nelson sought to introduce evidence comparing the Board's evaluation of his performance with that of other similarly situated applicants in the training program who the Board eventually voted to license. The ALJ excluded the evidence, determining that it was not probative. After the hearing, the ALJ issued an initial order affirming the Board's decision not to license Nelson.

Nelson appealed the ALJ's initial order and the Board appointed a review officer to review the initial order and prepare a final order on behalf of the Board. Upon consideration, the review officer affirmed the ALJ's order and issued the Board's final order. The final order incorporated the ALJ's findings of fact andconclusions of law and included additional findings of fact by the reviewing officer.

Nelson appealed the Board's final order to the King County Superior Court, arguing that the ALJ erred by excluding the evidence comparing the Board's evaluation of his performance in the training program with that of other similarly situated applicants. The superior court judge agreed, remanding the case with instructions to allow Nelson to present comparator evidence in an adjudicative proceeding to ensure that the applicants' performance in the training program was measured against objective criteria.

A six-day administrative hearing resulted before the ALJ who presided over the initial hearing. At the hearing, the parties presented evidence comparing the Board's evaluation of Nelson's performance in the training program with that of similarly situated applicants. Thereafter, the ALJ issued an initial order on remand affirming the Board's decision not to license Nelson.

Nelson appealed the ALJ's initial order on remand and the Board appointed a different review officer to review the initial order and prepare the Board's final order. The review officer affirmed the ALJ's initial order on remand and issued the Board's final order. The final order incorporated the...