Shewbert v. Rosand
| Decision Date | 28 July 2015 |
| Docket Number | CASE NO. 3:14-CV-05682 |
| Court | U.S. District Court — Western District of Washington |
| Parties | KAREN SHEWBERT, d/b/a SEQUIM VEHICLE/VESSEL LICENSING, Plaintiff, v. PATRICIA ROSAND, Clallam County Auditor, in her individual and official capacities, Defendant. |
This matter comes before the Court on Defendant's motion for summary judgment. Dkt. 15. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein. Dkt. 18, 21.
Although characterized differently by the parties, the facts are well-documented by the parties' correspondence and are largely undisputed. Plaintiff, Karen Shewbert, owned and operated Sequim Vehicle/Vessel Licensing from 1999 until May of 2012, when Defendant,former Clallam County Auditor, Patricia Rosand, terminated a contract ("the Contract") between Plaintiff and Defendant. Dkt. 16, at 16-35. The Contract appointed Plaintiff to operate a vehicle and vessel licensing agency in Sequim, Washington, in accordance with the Contract, relevant statutes, and policies of the State of Washington Department of Licensing ("DOL"). Dkt. Id., at 16. The Contract was first issued in 1999 and last renewed in 2008, with an expiration date of June 30, 2012. Id., at 17. The Contract differentiated between a material breach of the Contract, which constituted grounds for immediate termination, and a breach of any other provision, also grounds for termination, that required a reasonable opportunity—not to exceed 30 days— for Plaintiff to cure the breach. Id., at 20. By its terms, the Contract also gave Plaintiff the right to appeal any termination to a Review Board convened by DOL, and specified the time for review, composition of the Review Board, burden of proof, remedy, and evidence procedure. Id., at 22.
Following a DOL audit conducted during April 2011, DOL issued a Compliance Review, which identified Plaintiff as noncompliant with DOL Policy/Procedure VEH 7.D. Dkt. 16, at 47-50. The Compliance Review reads in relevant:
The Compliance Review stated that "[w]ithin 60 calendar days . . . the County Auditor [Defendant] or [Defendant's] designee shall discuss remedy requirements . . . and will document corrective actions . . . to ensure continuing compliance[.] Id., at 50.
On June 8, 2011, Defendant's office asked that "starting next month . . . [Plaintiff would] send [Defendant] a copy of [her] checkbook register on a monthly basis . . . to be post dated no later than the second working day of the month." Dkt. 16, at 52. In a letter dated July 5, 2011, Defendant wrote Plaintiff a formal reprimand for her lack of response to the Compliance Review. Id., at 54. According to the letter, Plaintiff had been given until July 1, 2011 to respond to DOL's Compliance Review, but Plaintiff had denied Defendant access to her checking account register because according to Plaintiff, Defendant "ha[d] no right" to Plaintiff's checking account register, and in fact, Plaintiff "ha[d] no intention of complying" with the request. Id. Defendant gave Plaintiff an option to remedy the situation if Defendant would send a copy of her checking account register for May 1, 2011 to June 30, 2011, and requested that Plaintiff provide the checking account register each month until further notice. Id.
Plaintiff responded by letter on July 7, 2011, asking Defendant, Dkt. 16, at 56. Plaintiff by letter dated July 12, 2011 wrote that "it was an abuse of power by the auditor's office to require [Plaintiff] to provide [her] DOL bank register 'on a monthly basis.'" Id., at 61. According to Plaintiff, the audit required Plaintiff to document her corrections made, but "[did] not require [her] to send it [sic] continually every month[.]" Id.
On July 14, 2011, Defendant emailed DOL regarding Plaintiff's checking account register practice, which DOL confirmed was "[not] acceptable," articulating what Plaintiff's check register should include. Dkt. 16, at 67. Defendant conveyed this information to Plaintiff by letter on July 18, 2011. Id., at 71, 72. On September 13, 2011, Defendant thanked Plaintiff for sending herseveral monthly check registers but pointed out a discrepancy, which, according to Defendant, required a copy of Plaintiff's bank reconciliation from bank statements of June, July, and August 2011. Dkt. 16-1, at 22. Plaintiff attempted to call Defendant on September 16, 2011, but was unable to reach Defendant, so by letter she responded to Defendant's concerns. Id., at 25, 26. Defendant replied by letter on September 20, 2011, again requesting bank reconciliation statements. Id., at 32.
On December 14, 2011, Defendant informed Plaintiff of "significant service quality deficiencies," based on an audit by DOL for August 15-31, 2011, and an audit by the Clallam County Auditor for September 6, 2011. Dkt. 16-1, at 38-41. Defendant also reminded Plaintiff of her outstanding request for reconciliation reports, asking for a response within fifteen days. Id., at 39. Plaintiff asked for thirty days to respond, which Defendant allowed. In the same correspondence, Defendant reminded Plaintiff to provide her with checking account registers from September through December 2011 and pointed out an additional service quality deficiency brought to her attention. Id., at 43-46. Plaintiff again asked for additional time to respond, a request that Defendant rejected. Id., at 48-51.
Plaintiff submitted a corrective action plan on January 20, 2012, prior to the extended deadline. Dkt. 16-1, at 53-55. In her letter, Plaintiff also expressed her frustration with Defendant's requests, writing that "[Defendant's] posture is impossible and counter productive," because, according to Plaintiff, Plaintiff made efforts to comply, but felt that she was "out of options." Id., at 54. The corrective action plan was not to Defendant's satisfaction. Id., at 66-68. Defendant wrote in response on February 17, 2011, that "while [she] believes that [Plaintiff's solutions] . . . are a step in the right direction . . . I feel that it important that you and your staff undergo training . . . To that end, my office would be glad to offer training[.]" Id., at 67.Defendant also again reprimanded Plaintiff for her failure to provide financial records, summarizing Defendant's repeated efforts to obtain them. Id., at 68.
On February 24, 2011, Craig Miller, attorney, wrote Defendant to inform her of his retention by Plaintiff. Mr. Miller said that his representation would "almost certainly invoke Ms. Shewbert's right to contest the written reprimand, in accordance with paragraph 11.2.2 [of the Contract]." Dkt. 16-1, at 72. On behalf of Defendant, Deputy Prosecuting Attorney Mark Nichols wrote Mr. Miller on March 1, 2011, in a letter that articulated the basis for Plaintiff's breach of Contract, which "may result in additional discipline up to and including termination of the Contract," as well as newly-discovered service quality deficiencies. Id., at 74, 75.
Mr. Miller and Mr. Nichols met on March 6, 2012, as reflected by their correspondences. Dkt. 16-1, at 79, 80, 84-86. Mr. Miller, in a letter addressed to Mr. Nichols dated March 12, 2012, stated that he "will with this letter [] confirm the various agreements . . . made at our meeting [on March 6, 2012] . . . I appreciate the tenor of that meeting, which sought a mutually agreeable conclusion to a disagreement between our respective clients, hopefully avoiding the necessity of litigation." Id., at 79. Mr. Nichols' response, addressed to Mr. Miller and dated April 3, 2012, acknowledged the meeting but took issue with each of the memorialized items in Mr. Miller's letter and cited an additional quality service violation from March 21, 2012. Id., at 84-86.
On April 30, 2012, Defendant mailed Plaintiff a Notice of Termination, expressing her intent to terminate the Contract with seven calendar days' written notice. Defendant's termination "stem[med] in large part from [Plaintiff's] continued failure to produce copies of check registers and reconciliation reports for . . . [the] DOL checking account." Dkt. 16-1, at 88. By letter on May 1, 2012, DOL terminated Plaintiff as a DOL subagent, effective May 11, 2012, stating that "[t]his termination does not affect your rights to appeal as provided in the contract." Id., at 90. Plaintiff,through her attorney, served her Notice of Appeal on May 2, 2012. Id., at 92. On May 10, 2012, Plaintiff obtained a Temporary Restraining Order on May 10, 2012, which was dissolved as of July 2, 2012. Id., at 99-110. A three-person Review Board, along with counsel for Defendant, Plaintiff, and DOL, convened on June 25, 2012 to review Defendant's termination of the Contract for cause, and after deliberating,...
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