Vahle v. City of Lakewood
| Decision Date | 27 October 2020 |
| Docket Number | No. 53317-1-II,53317-1-II |
| Parties | JEREMY VAHLE, an individual, Appellant, v. CITY OF LAKEWOOD, a municipal corporation, Respondent. |
| Court | Washington Court of Appeals |
CRUSER, J. — Jeremy Vahle appeals the trial court's grant of summary judgment in favor of the City of Lakewood (the City). Vahle argues that summary judgment in favor of the City was improper because the City's promotional procedures violated the City's municipal code, our Supreme Court precedent in Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 92 P.3d 243 (2004), and chapter 41.12 RCW's purpose of providing for promotions on the basis of merit. Vahle also argues that summary judgment was improper because the Civil Service Commission (Commission) incorrectly calculated his examination score by failing to give him sufficient credit for his veteran's preference, and he is entitled to damages because the City breached his employment contract and negligently failed to enforce merit-based promotion. Last, assuming he prevails on the merits of his claims, Vahle contends that he is entitled to fees incurred on appeal.
We hold that summary judgment was proper because the promotional procedures set forth in the City's municipal code were superseded by the collective bargaining agreements entered into by the City and the Lakewood Police Independent Guild (LPIG). We further hold that the City's promotional procedures do not violate Seattle Police Officers Guild or chapter 41.12 RCW, and Vahle's breach of contract and negligence claims were properly dismissed. We decline review of whether the Commission incorrectly calculated Vahle's examination score and decline Vahle's request for fees.
Accordingly, we affirm the trial court's grant of summary judgment in favor of the City.
In 2003, the City formed its own police department. LAKEWOOD MUNICIPAL CODE (LMC) 2.14.010. Pursuant to chapter 41.12 RCW, the City created a civil service system to provide civil service rights to employees. Ch. 2.10 LMC. The City established the Commission to draft and administer the civil service rules pertaining to recruitment, promotion, demotion, and employment for the police department. Former LMC 2.10.020 (2003). The Commission enacted the City of Lakewood Civil Service (CLCS) Rules. CLCS rule 1.1. The Commission adopted former CLCS rule 10.6 (2015), referred to as the "rule of five," to fill vacancies for an entry-level officer, a lateral officer, or an internal promotion.1 Clerk's Papers (CP) at 469 (capitalization omitted). Thefollowing details the process for administering the rule of five to fill a vacancy for an internal promotion.
The Commission administered a civil service examination to all promotion candidates. CLCS rule 8.1. The Commission used the exam scores to establish a "Register," or a list of qualified candidates certified for the promotion, ranked in numerical order from the highest scoring candidate to the lowest scoring candidate.2 CP at 449 (former CLCS rule 4.44 (2015)) (capitalization omitted); CLCS rule 4.10. The examination score was calculated based on the points scored on the examination plus an additional percentage for veterans, if applicable. CP at 448 (former CLCS rule 4.28 (2015)).
When the police chief identified an available position, the Secretary-Chief Examiner of the Commission (Secretary) generated a list of the five highest scoring eligible candidates, known as the "certified eligibility list."3 CP at 469 (former CLCS rule 10.6). If multiple positions were available, the Secretary added an additional three candidates for each available position to the certified eligibility list. Id. (former CLCS rule 10.6.1 (2015)). The certified eligibility list was generally effective for one year. CLCS rule 9.8.1. The police chief had discretion to select any of the five highest scoring applicants for the open position, without respect to their relative positions on the list. CP at 468 (former CLCS rule 10.3 (2015)). The City Manager, the appointing authority,approved the police chief's selected candidates. CLCS rule 4.5; CP at 468 (former CLCS rule 10.3); CP at 469 (former CLCS rule 10.6)
When the City passed legislation creating the Commission in 2003, the City provided a process for filling vacancies. Former LMC 2.10.090 (2003). The City delegated the power to make and adopt rules and regulations that effectuate the purposes of chapter 41.12 RCW, but limited the Commission's rule making power by providing the following:
The commission shall have power to make and adopt such rules and regulations as are necessary to effectuate the purposes of this ordinance and Chapter 41.12 RCW; provided, however, that the commission shall have the flexibility to adopt rules different from the express provisions of Chapter 41.12 RCW which effectuate such purposes; and provided further, that such rules shall include a 12-month probationary period and a certification rule of three eligible persons or 15 percent of the eligible persons, whichever is greater.
Former LMC 2.10.090 (emphasis added). Thus, the City mandated the rule of three, but the Commission enacted former CLCS rule 10.6, which provided for the rule of five. The Commission has used the rule of five since its inception.
On September 5, 2006, the Lakewood City Council (City Council) approved the initial collective bargaining agreement between the City and the LPIG. Article 4.01 of the initial agreement stated the following:
Vacancies shall be filled and promotions made in accordance with Lakewood Civil Service Rules.
CP at 535. The City Council approved five successive agreements between the years of 2006 and 2016. Each successive agreement contained the language set forth in Article 4.01.
On October 16, 2017, the City passed Ordinance 674, which amended former LMC 2.10.090. The amendment repealed the City's mandate of the use of the rule of three. The amended ordinance reads as follows:
The Commission shall have power to make and adopt such rules and regulations as are necessary to effectuate the purposes of this chapter and Chapter 41.12 RCW. The Commission shall also have the power to make rules and regulations governing the Commission in the conduct of its meetings and any other matter over which it has authority.
Vahle has been a police officer for the City since 2004. Before becoming a police officer, Vahle served in the United States Air Force. In 2015, Vahle tested to be on the list for promotion to sergeant. In January 2016, the police department had two openings for promotion to sergeant. The Commission certified a list of eight employees eligible for promotion. Vahle was ranked number two on the list. The police chief, Michael Zaro, did not select Vahle for promotion. In July 2016, the police department experienced one opening for promotion to sergeant. Zaro did not select Vahle for the promotion. In August 2016, the police department experienced two more openings for promotion to sergeant. Vahle was again not selected for promotion. From the certified eligibility list, Vahle, as well as the fourth ranked officer and the eighth ranked officer, were not promoted.
In September of 2016, Vahle filed a report to the Human Resources Director for the City (Director), claiming that he was passed over for promotion due to activity protected by the Local Government Whistleblower Protection Act, chapter 42.41 RCW. Vahle claimed that he was passed over for promotion because he previously reported illegal actions of a former officer and participated in an investigation regarding a race discrimination complaint made by a former officer. The Director conveyed Vahle's report to the City Manager, and the City Manager ordered the Director to investigate Vahle's complaint.
On October 5, 2016, the Director issued a report concluding that Vahle's complaint was unfounded. The investigation revealed that Vahle was not passed over for promotion due to his reporting of a former officer's illegal actions or his participation in the investigation of a race discrimination complaint. The Director found that the command staff "lauded" Vahle's report of illegal activity and were unaware of Vahle's statements made during the investigation into racial discrimination. CP at 204. The Director's investigation also revealed that it was common for a police chief to recommend candidates for promotion out of the order set forth on the certified eligibility list. Vahle did not seek review of the Director's conclusion.4
During the investigation, Zaro told the Director that he declined to promote Vahle based on his "lack of judgment and maturity." Id. at 32. Zaro cited to Vahle's conduct of pursuing a romantic relationship with a domestic violence victim while involved in the arrest and prosecution of the victim's former boyfriend as evidence of Vahle's lack of judgment. Zaro also cited an incident where Vahle wore pink shoes while on patrol. According to Vahle, several union members sought a boot allowance as a contract demand. In the course of discussing the allowance, a fellow union member told Vahle that he would pay for his lunch if Vahle wore "obnoxious" shoes to work. Id. at 106. The union president heard the conversation and warned Vahle that if he did so, he would get in trouble. Vahle disagreed because there was not a policy dictating what shoesofficers should wear.5 Following this conversation, Vahle reported to work wearing pink shoes. His conduct was reported to Zaro.
On October 21, 2016, Vahle sent a letter to the Secretary requesting a hearing before the Commission. Vahle sought to appeal the Commission's promotional process on the grounds that the rule of five failed to meet the requirements of chapter 41.12 RCW. Vahle stated that the rule allowed Zaro to promote based on favoritism, contrary to the chapter's purpose of providing for promotion based on merit and the Supreme Court's decision in Seattle Police...
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