State ex rel. West v. City of Seattle

• Decision Date: 21 March 1963
• Docket Number: No. 36255,36255
• Citation: 61 Wn.2d 658,379 P.2d 925
• Court: Washington Supreme Court
• Parties: STATE of Washington on the relation of Marie K. WEST, Respondent, v. The CITY OF SEATTLE, and the Civil Service Commission of the City of Seattle, and Malcolm E. McLaren, Dorothy Leavell, and George Mathieu, Commissioners, Appellants.

Page 658

61 Wn.2d 658

379 P.2d 925

STATE of Washington on the relation of Marie K. WEST, Respondent, v. The CITY OF SEATTLE, and the Civil Service Commission of the City of Seattle, and Malcolm E. McLaren, Dorothy Leavell, and George Mathieu Commissioners, Appellants.

No. 36255.

Supreme Court of Washington, Department 2.

March 21, 1963.

A. C. Van Soelen, Corp. Counsel, Jerry F. King, Asst. Corp. Counsel, Seattle, for appellants.

Gerald D. Hile, Seattle, for respondent.

DONWORTH, Justice.

This is an appeal by the city of Seattle and its Civil Service Commission from the judgment and decree of the superior court in a proceeding instituted by respondent, an employee in the classified civil service, who was discharged effective as of January 4, 1955, from her position as Clerk II in the lighting department, to obtain a court review of the validity of her removal from the city's employ. The trial court ordered respondent's reinstatement to her position.

This controversy has been in litigation for more than eight years. The responsibility for this unreasonable delay is a matter of dispute between counsel, but, regardless of the cause, the effect upon the litigants is most regrettable. ¹

The essential facts giving rise to this dispute may be stated as follows:

January 10, 1955--A report of separation from service (dated January 5) which stated the reasons for respondent's dismissal from employment was filed with the Civil Service Commission. It was signed in typewriting 'Paul J. Raver, Supt. ss/ D. E. Forsander (Appointing Officer)' and stated:

'M K West has been discharged for 'disregarding the warning by the Supervisor to discontinue the practice of coming to work obviously under the influence of intoxicating liquor. For frequent unexplained absences from office during working hours; often being equal to nearly half the total working time. Poor work with many mistakes, requiring much time by other personnel, to find and correct. Very uncooperative with other personnel, and sullen and unsociable when corrected. It is my opinion this employee was treated with more consideration than deserved.', and for the good of the service.'

Dr. Raver was (and still is) the superintendent of lighting and has authority under the city charter to appoint and discharge employees of the department of lighting, subject to the provisions of the city charter relating to the classified civil service.

January 11, 1955--Respondent made written demand upon the Civil Service Commission for an investigation as to the reasons for her dismissal.

February 17 to April 1, 1955--Three hearings were held by the commission. Appellant was present at these hearings and was represented by counsel.

April 7, 1955--Minutes of the commission contain the following:

"The Commission finds that Paul J. Raver, Superintendent of Lighting, through his authorized representative, had grounds and evidence upon which he based his dismissal of Marie K. West, and the Commission finds that there is no proof that the Superintendent acted in an arbitrary or capricious manner in so doing."

June 6, 1955--Respondent applied to the superior court for a writ of certiorari to review the commission's findings. In her application, she alleged that:

'The findings of Civil Service Commission set forth above was patently in error, under all the evidence taken before said Civil Service Commission in said investigation, in that:

'(1) Article XVI, Sec. 12, and Article VII, Sec. 8, of said Charter only authorized the removal of affiant by Paul J. Raver, Superintendent of Lighting, the appointing power, who personally did not remove her, nor authorize her specific removal; and

'(2) Article XVI, Sec. 12, of the said Charter did not authorize the said appointing power, Paul J. Raver to delegate the power of removal of affiant to any person whomsoever, nor did any other provision of the Charter authorize the said appointing power to delegate such power of removal; and

'(3) The said removal of affiant was not in compliance with Article XVI, Sec. 12 of said Charter in that the said notice of dismissal of affiant purported to be effective on January 3, 1955, was not filed with the Civil Service Commission of Seattle until January 10, 1955, by the Lighting Department of the City of Seattle, and was not filed by the said Paul J. Raver, the appointing power; and

'(4) Each of the reasons for the dismissal of affiant filed by said lighting department with said Civil Service Commission were each legally insufficient cause for dismissal of affiant under said Charter and under the Civil Service Rules purportedly adopted pursuant thereto, with reference to dismissals of civil service employees; and

'(5) The issues before said Civil Service Commission were

'(a) Whether each of the reasons for the dismissal of affiant were legally sufficient for such purpose '(b) Whether her dismissal had been by the appointing power of the said lighting department,

'(c) Whether the reasons for said dismissal were timely filed with the said Civil Service Commission by the said department of lighting as required by the said charter,

'(d) Whether the said lighting department proved, by competent and substantial evidence before said Civil Service Commission any of said charges set forth in said reasons for the dismissal of affiant, and

'(e) The issues set forth in the said findings of said Civil Service Commission were not the only issues before said commission, and

'(6) The said findings of the said Civil Service Commission are erroneous and wholely insufficient in law to sustain said dismissal of affiant under all the evidence presented to said Civil Service Commission.'

Appellants demurred to respondent's application for certiorari.

September 16, 1955--After argument, the demurrer was sustained and, upon respondent's refusal to plead further, her application for certiorari was dismissed. She then appealed to this court.

April 11, 1957--This court rendered its decision holding that Rule 1 of the Civil Service Commission, purporting to authorize the superintendent to delegate the power of removal, was null and void, and reversed the trial court's judgment of dismissal (50 Wash.2d 94, 309 P.2d 751). Concerning the problem now before us, we said:

'The demurrer should have been overruled. It is suggested that, after the abortive dismissal by a subordinate, the superintendent himself dismissed appellant. But that does not appear upon the face of the appellant's affidavit and cannot be considered. The answer must be served with the demurrer and a defendant may not answer after the demurrer is overruled. State ex rel. Brown v. Warnock, 12 Wash.2d 478, 122 P.2d 472. Because of the unusual situation here presented, however, leave is granted the respondent, if it is so advised, to answer.' (Italics ours.)

August 13, 1957--Appellants filed their answer in the superior court. Besides certain denials, the answer contained two affirmative defenses I. 'That said Marie K. West was removed as of January 1, 1955 by the Superintendent of Lighting, the appointing officer, and a statement in writing of the reasons therefor was filed with the Civil Service Commission; which removal the Superintendent of Lighting thereafter personally approved and ratified and such approval and ratification was testified to before the Civil Service Commission on April 1, 1955 by said Superintendent of Lighting.'

II. This affirmative defense consisted of a transcript of the proceedings before the Civil Service Commission in its investigation of respondent's dismissal.

March 17, 1961--Respondent filed her reply denying the allegations contained in the first affirmative defense and admitting those contained in the second affirmative defense.

July 28, 1961--After hearing the cause, the superior court entered its judgment and decree in which it declared that respondent's purported dismissal was illegal and void, as were also the written findings of the Civil Service Commission purporting to sustain her dismissal. The court further

'ORDERED, ADJUDGED AND DECREED that respondents shall forthwith cause the relator Marie K. West to be immediately reinstated and reemployed as a Clerk II in the classified civil service of the city of Seattle, Washington, or the legal equivalent thereof, such reinstatement and reempoloyment to be effective as of the start of the working day in said department of lighting on January 4, 1955, with all of the rights, privileges, benefits and civil service credits then and thereafter appertaining thereto from and after said date and with the same effect as if relator had never ceased her said employemtn with said department of lighting and without prejudice of any kind or character to relator by virtue of her said void dismissal and said investigation by, and said void findings of, said Civil Service Commission and the proceedings in this court.'

The case is now before us for a second time, the city and its Civil Service Commission having appealed from the superior court's judgment and decree.

In their brief, appellants state that, as appears from the trial court's oral opinion, its disposition of the case was based solely upon its finding of fact that respondent's dismissal was not by Paul J. Raver, Superintendent of Lighting, and upon the court's conclusion that for that reason the dismissal was void. The vital issue on this appeal is the same issue which we held could not be considered on the first appeal because the city's demurrer did not reach it.

We accept allellants' statement of the issue as being correct and, therefore, find it necessary only to consider and decide that question.

The findings of fact of the trial court which relate to the question before us are No. 8 and No. 9, which read as follows:

'The findings of Civil Service Commission set forth above were in error, under all the evidence taken, and exhibits before said Civil Service Commission in said investigation, in...