Punton v. City of Seattle Public Safety Com'n

• Decision Date: 15 September 1982
• Docket Number: No. 11072-1-I,11072-1-I
• Citation: 32 Wn.App. 959,650 P.2d 1138
• Court: Washington Court of Appeals
• Parties: Delmus PUNTON, Respondent, v. CITY OF SEATTLE PUBLIC SAFETY COMMISSION, Appellant.

Page 959

32 Wn.App. 959

650 P.2d 1138

Delmus PUNTON, Respondent, v. CITY OF SEATTLE PUBLIC SAFETY COMMISSION, Appellant.

No. 11072-1-I.

Court of Appeals of Washington,

Division 1.

Sept. 15, 1982.

Rehearing Denied Oct. 15, 1982.

Douglas Jewett, Seattle City Atty., Susan Rae Sampson, Asst. City Atty., Seattle, for appellant.

Clinton, Fleck, Glein & Linville, Larry Linville, Seattle, for respondent.

JAMES, Judge.

The Seattle Public Safety Civil Service Commission (Commission) appeals from a superior court order in a certiorari proceeding, reinstating Delmus Punton as an officer of the Seattle Police Department. We affirm in part and reverse in part.

Following an investigation of several incidents occurring during June 1980, the Seattle Police Chief on September 22 dismissed Punton based upon charges of conduct unbecoming an officer, disobedience of a superior's order, allowing unauthorized persons to ride in his patrol car, and using unnecessary force in detaining a citizen for identification purposes. Dismissal was imposed in light of Punton's prior adverse disciplinary record.

Punton was not advised of the charges or afforded a hearing at any time before receiving his notice of dismissal. The Chief's decision was reviewed by disciplinary panels within the Department. The panels sustained three of the specific charges but recommended suspension instead of dismissal. The Chief reviewed the panels' recommendation and adhered to his earlier decision to dismiss Punton.

Punton filed an appeal with the Commission, whose hearings are "confined to the determination of the question of whether [the] removal, suspension, demotion, or discharge was made in good faith for cause." Seattle Municipal Code § 4.08.100A. Punton there argued that the failure to provide a pretermination hearing rendered his discharge constitutionally invalid. The Commission concluded that Punton's dismissal was made in good faith for cause and affirmed the Chief's decision.

Punton next obtained a writ of certiorari, alleging that his discharge "was not in good faith, nor for cause, nor in conformance with due process." Punton again pressed his argument that failure to provide a pretermination hearing denied him due process and also argued that the Chief's action constituted a violation of 42 U.S.C. § 1983, ¹ although he filed no pleading relying upon section 1983.

The trial judge found that substantial evidence supported the dismissal on each of the five grounds upon which the Chief relied. The trial judge concluded, however, that a pretermination hearing was required by the Department's manual and by the collective bargaining agreement between the City and the Seattle Police Officers' Guild. The trial judge further concluded:

4. Because a pretermination hearing is intended to assure the Chief of Police access to all information before a decision is reached and discipline implemented, the omission of a pretermination hearing cannot be subsequently cured by a post-termination hearing in this case.

5. Delmus Punton's expectation of continued employment with the City of Seattle is a property interest protectable by due process.

6. Delmus Punton's interest in his good name and ability to freely seek gainful employment [e]lsewhere is a liberty interest protectable by due process.

7. Neither contention nor evidence was presented to the court which would warrant omission of a pretermination hearing in this case.

8. Omission of the pretermination hearing violated Delmus Punton's State and U.S. Constitutional rights to due process of law.

Conclusions of law 4-8. The trial judge ordered Punton's reinstatement to the Seattle Police Department, with back pay, and ordered that Punton's personnel records be "corrected" to indicate his termination was reversed by the Superior Court as contravening procedural due process. The trial judge also awarded Punton attorney's fees for the administrative and Superior Court proceedings under authority of 42 U.S.C. § 1988. ²

The Commission first contends that the trial judge exceeded the permissible scope of review permitted in certiorari proceedings. Relying upon Olson v. University of Washington, 89 Wash.2d 558, 573 P.2d 1308 (1978), the Commission argues that where, as here, administrative action is appealable to a reviewing body and that body's review is statutorily limited, the trial judge can review by certiorari only the proceedings before the reviewing body and may not consider the original action. Assuming that the Commission's determination was proper within its sphere (i.e., the discharge was "made in good faith for cause", Seattle Municipal Code § 4.08.100A), review of Punton's remaining contentions by writ of certiorari would be precluded. We do not agree.

The questions which are to be determined by the trial judge in a proceeding under a statutory writ of certiorari include:

(2) Whether the authority, conferred upon the body or officer in relation to that subject matter, has been pursued in the mode required by law, in order to authorize it or to make the determination.

(3) Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.

RCW 7.16.120(2), (3).

Allegations that a body or officer charged with decision-making authority failed to comply with its governing rules or regulations promulgated pursuant to its rule-making authority or acted in an unconstitutional manner are properly before the superior court pursuant to RCW 7.16.120(2) and (3). Moreover, "[t]he superior court also has power, under article 4, sections 1 and 6 of our state constitution, to review by writ of certiorari judicial and nonjudicial actions of an administrative agency." King County v. State Board of Tax Appeals, 28 Wash.App. 230, 237, 622 P.2d 898 (1981). Thus, the courts possess inherent appellate jurisdiction to determine if agency action was illegal and violative of fundamental rights. Williams v. Seattle School Dist. 1, 97 Wash.2d 215, 643 P.2d 426 (1982); Mentor v. Nelson, 31 Wash.App. 615, 644 P.2d 685 (1982).

If an intermediate or reviewing administrative body is empowered to determine only certain narrow issues, this establishes only that a plaintiff does not obtain review of other issues relating to procedurally improper, illegal, or unconstitutional action which he may raise under RCW 7.16.040 and RCW 7.16.120 before initiating proceedings in superior court. The legislature has not restricted the scope of the statutory writ of certiorari when the intermediate administrative body has a limited scope of review, and the courts will not imply such a limitation.

Olson v. University of Washington is not to the contrary. There, formal disciplinary proceedings were instituted after the officer decided to reject an informal disciplinary procedure proposed by his chief. His due process claim was predicated solely on the alleged impropriety of that proposal. Unlike here, in Olson there was no contention

that the procedures followed by the University and the [Higher Education Personnel Board] were improper.... No nexus between the conduct of [the Chief] questioned here and the Board's affirmance of the University's decision to dismiss respondent [was] shown.

Olson v. University of Washington, supra 89 Wash.2d at 563, 573 P.2d 1308.

The Commission next contends that Punton has no constitutional right to a pretermination hearing under the due process clauses of the federal or state constitutions, and that no right to a pretermination hearing is granted by the Department's regulations or the collective bargaining agreement. The Commission argues, then, that the trial judge erred in concluding Punton was deprived of a property right without due process of law. We do not agree.

To determine if due process requirements apply, it must first be established that the plaintiff was deprived of an interest which can be characterized as "property" or "liberty." Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Commission concedes that, as a permanent civil service employee who could be discharged only for cause, Punton possessed a property right in his continued employment. ³

Next it must be determined what "process" is "due"; here, whether a pretermination hearing was required. Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 901-02, 47 L.Ed.2d 18 (1976). In Ticeson v. Department of Social & Health Servs., 19 Wash.App. 489, 576 P.2d 78 (1978), we held that the dismissal of a permanent civil service employee in compliance with RCW 41.06.170 did not deprive her of procedural due process with respect to her property right to continued public employment. The procedures established by RCW 41.06.170 are substantially identical to those followed in Punton's case, for RCW 41.06.170 affords neither a right to a pretermination hearing nor a right to predismissal notice of the charges. ⁴ As a matter of constitutional law, Ticeson is dispositive of Punton's due process claims concerning his property right to continued public employment unless, as we herein conclude, the Department has adopted more stringent requirements and the failure to follow those requirements amounts to a deprivation of due process. ⁵

Pursuant to article 6, section 4 of the Seattle City Charter, the Police Department promulgated its Manual of Rules and Procedures (hereinafter Manual ). Its provisions "are to be observed continuously by the entire Department." Manual § 1.01.010.

When a complaint against an officer is received, investigated, and "classified as being sustained", the Manual specifies the following procedures:

3) The accused is notified immediately and in writing.

a) When disciplinary action is intended by the Chief of Police, he shall ensure that the accused is immediately notified of the intended discipline and of his right to a disciplinary hearing if such exists.

Except in those cases where felony...