State v. K.L.B. ( 2014 )

FILE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 88270-3
Respondent, )
)
v. ) EnBanc
)
K.L.B., )
)
Petitioner. )
) Filed JUN 2 6 2014
C. JOHNSON, J.-The main issue in this case is whether a Sound Transit
fare enforcement officer (FEO) is a "public servant" as defined in RCW
9A.04.110(23). Fifteen-year-old K.L.B. was charged with making a false or
mjsleading statement to FEO Brett Willet under RCW 9A.76.175, which provides
that it is a misdemeanor to knowingly make "a false or misleading material
statement to a public servant." The Court of Appeals affirmed the trial court's
conclusion that under the statute, FEO Willet was a public servant at the time K.L.B.
made the false statement. We hold that under these circumstances, because FEOs are
not government employees, are not officers of government, and do not perform a
State v. K.L.B., No. 88270-3
governmental function, they are not "public servants" as defined by the statute.
Therefore, we reverse the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
Brett Willet and Ben Hill were working as Sound Transit FEOs on Seattle's
Link light-rail train system (the Link). The position of an FEO is a limited-
commission office authorized to issue citations for civil infractions on both light-rail
and heavy-rail trains. Sound Transit contracts with Securitas Security Services to
provide security and fare enforcement services for the Linlc The FEOs wear a
uniform with patches reading "Sound Transit," "security," and "fare enforcement."
Verbatim Report ofProceedings (VRP) at 27-28. They also wear a tool belt, which
includes a radio, handcuffs, and a key ring but does not include a weapon.
On August 6, 2010, the two FEOs entered a train car at the Rainier Beach
station and instructed all passengers to present proof of fare. When FEO Willet
asked K.L.B. and his companions to present proof of fare payment, they gave him
their bus transfers. FEO Willet informed them that while bus transfers used to be
valid on the light-rail, they were no longer accepted. K.L.B. and his companions
said that they were unaware of the change and unfamiliar with the current system.
The three young males were instructed by FEO Willet to exit the train at the next
station. The FEOs asked the three males for identification once they exited the train.
2
State v. K.L.B., No. 88270-3
All three were either unable or unwilling to provide identification. K.L.B. identified
himselfto FEO Willet as Kinds M. Marty. One ofK.L.B.'s companions identified
himself as James .T. King, whiJe the other identified himself as Jamal J. Johnson.
K.L.B. was temporarily detained at the Othello station. The King County
Sheriff's Office was called to assist in identifying K.L.B. and his companions so
they could potentially be cited for fare evasion. Deputy Lee Adams spoke with
K.L.B., and two other deputies spoke with his companions. K.L.B. gave his correct
name and birth date to Deputy Adams after the deputy warned him that it was a
crime to lie to a police officer. Deputy Adams then asked K.L.B. to identify one of
his male companions. He responded .that he did not know his companion's full
name and that he: knew him only as '"Marty."' 1 Clerk's Papers at 43. FEO Willet
informed all three individuals that they might receive citations for fare evasion in
the mail. Deputy Adams returned to the station and used a computer database to
identify the third companion whom K.L.B. identified as "Marty." Deputy Adams
was able to positively identify him within an hour. There was an assault warrant out
for this individual's arrest.
1
K.L.B. originally identif1ed himself as Kinds M. Marty and later identified his companion
by only the first name of Marty.
3
State v: K.L.B., No~ 88270-3
K.L.B. was then charged with two counts of making a false or misleading
statement to a public servant under RCW 9A.76. 175. K.L.B. was found guilty of
making a false statement to FEO Willet (count II). He was found not guilty of
making a false statement to Deputy Adams (count I). K.L.B. was obligated to pay a
crime victim assessment penalty of $75 but received no further punishment.
K.L.B. appealed to Division One of the Court of Appeals, which affirmed his
conviction. State v. K.L.B., noted at 169 Wn. App. 1034, 2012 WL 3065326, at *7,
review granted, 177 Wn.2d 1004 (2013). Here, K.L.B. argues that a Sound Transit
FEO is not a "public servant" as defined in RCW 9A.04.110(23). He also argues
that the definition of "public servant" is unconstitutionally vague and that to convict
a person of making a false or misleading statement to a public servant, the State
must prove that the defendant knew the statement was made to a public servant.
ANALYSIS
K.L.B. was charged with making a false or misleading statement to FEO
Willet under RCW 9A.76.175, which provides in relevant part that "[a] person who
knowingly makes a false or misleading material statement to a public servant is
guilty of a gross misdemeanor." Under RCW 9A.04.110(23), the term "public
servant" is defined as
4
State v. K.L.B., No. 88270-3
any person other than a witness who presently occupies the position of
or has been elected, appointed, or designated to become any officer or
employee of government, including a legislator, judge, judicial officer,
juror, and any person participating as an advisor, consultant, or
otherwise in performing a governmental function.
This case involves statutory interpretation, which is an issue of law reviewed
de novo. The first step in statutory interpretation is to consider the statute's plain
language. If the statute is unambiguous, meaning it is subject to only one reasonable
interpretation, our inquiry ends. State v. Velasquez, 176 Wn.2d 333, 336, 292 P.3d
92 (2013).
Looking at the statutory language, the "list" is specific and express. Police
officers and judges are public servants under RCW 9A.04.110(23), which has been
recognized in cases. State v. Graham, 130 Wn.2d 711, 719, 927 P.2d 227 (1996)
(police); 2 State v. Stephenson, 89 Wn. App. 794, 808-09, 950 P.2d 38 (1998)
Uudges ). The definition also applies to those who hold government office or
employment or who have been selected to do so, but it does not include a candidate
for election as a "public servant." State v. Hendrickson, 177 Wn. App. 67, 75, 311
2
In Graham, two off-duty police officers were working as private security guards when
they searched and arrested the defendant. We held that when the officers stopped the defendant,
they stepped out of their roles as private security guards and into their roles as police officers.
They were identified as police officers, and their status as police officers was known to the
defendant. Therefore, we held that they were public servants.
5
State v. K.L.B., No. 88270-3
P.3d 41 (2013), review denied, 179 Wn.2d 1017, 318 P.3d 280 (2014). The
definition of "public servant" also includes "legislator[s ], judge[ s], judicial
officer[s], [and] juror[s]" who are public employees for purposes of wages, benefits,
or liability. RCW 9A.04.110(23). The main dispute here is whether FEO Willet was
"otherwise ... performing a governmental function" or was an "officer" under the
statutory definition. RCW 9A.04.110(23).
a. FEO Willet was not "otherwise . .. performing a governmental function"
under RCW 9A. 04.11 0(23)
K.L.B. claims that both the trial court and the Court of Appeals improperly
found that FEO Willet was a public servant because this broad interpretation
improperly renders superfluous the phrase "advisor, consultant, or otherwise" as it
appears in RCW 9A.04.110(23). According to K.L.B.'s interpretation, the term
"otherwise" encompasses only positions that are similar in nature to advisors or
consultants. We agree.
Under settled principles of statutory construction, general words accompanied
by specific words are to be construed to embrace only similar objects. Simpson Inv.
Co. v. Dep 't of Revenue, 141 Wn.2d 139, 151, 3 P.3d 741 (2000). 3 This canon
properly applies where there is a list of specific terms followed by a general term,
3
Ejusdem generis.
6
State v. K.L.B., No. 88270-3
i.e., "specific, specific, or general." See Sw. Wash. Chapter, Nat 'l Elec. Contractors
Ass 'n v. Pierce County, 100 Wn.2d 109, 116, 667 P .2d 1092 ( 1983 ). Here, we are
interpreting the phrase "advisor, consultant, or otherwise in performing a
governmental function," 4 in other words, "specific, specific, general." Therefore,
under this canon of interpretation, a person qualifies as a public servant where they
are acting as an advisor, a consultant, or something similar in performing a
governmental function. FEO Willet was not acting as an advisor, a consultant, or
something similar when K.L.B. made a false statement to him. 5
4
The dissent argues that it if we apply ejusdem generis, we must apply it consistently to
the larger list-i.e., the entire statute. The dissent then argues that such a reading would be
nonsensical because "the phrase 'any person participating as an advisor, consultant, or otherwise
in performing a governmental function' would be read to modify the list that includes legislators,
judges, judicial officers, and jurors." Dissent at 4. However, the dissent misunderstands how this
canon applies. Under ejusdem generis, general words accompanied by specific words are to be
construed to embrace only similar objects; this cannon applies when a list of specific terms is
followed by a general term. Here, the dissent has it backwards; "any person participating as an
advisor, consultant, or otherwise in performing a governmental function" would not modify the
other lists, but rather the more specific lists would modify who was an "advisor, consultant, or
otherwise." Applying the canon correctly, "any person participating as an advisor, consultant, or
otherwise" must be similar to a governmental employee, legislature, judge, judicial officer, or
juror. As explained above, FEOs are not governmental employees and are not similar to an elected
official, judicial officer, or juror.
5
The dissent also cites Jongeward v. BNSF Railway, 174 Wn.2d 586, 617, 278 P.3d 157(2012), to argue that ejusdem generis does not apply when interpreting a phrase containing the
word "otherwise." However, this support is misplaced, as the clause at issue in Jongeward differs
from the statutory clause in this case. In Jongeward, the dissent argued that the "canon properly
applies where there is a list of specific terms followed by a general term, i.e., 'specific, specific, or
general."' Jongeward, 174 Wn.2d at 614 (Wiggins, J., dissenting) (citing Sw. Wash. Chapter,
Nat 'l Elec. Contractors Ass 'n, 100 Wn.2d at 116). In Jongeward, we were interpreting the phrase
"cut down, girdle or otherwise injure, or carry off," in other words, "specific, specific or general,
7
State v. K.L.B., No. 88270-3
Under another well-known canon of statutory construction, "a single word in
a statute should not be read in isolation." State v. Roggenkamp, 153 Wn.2d 614, 623,
106 P.3d 196 (2005). 6 Applying this framework, "otherwise" must be read in
conjunction with the other nouns-"advisor" and "consultant." Because "advisor"
and "consultant" modify "in performing a governmental function," we can glean the
legislature's intent that not every person performing a governmental function is to
be considered a public servant under the statute. Only those who are participating as
an advisor, consultant, or something similar in performing a governmental function
are public servants.
The State argued that FEO Willet was clearly performing a government
function-fare enforcement-and that there is no meaningful argument that the
legislature intended to define "public servants" narrowly. However, as K.L.B. points
out, "a court must not interpret a statute in any way that renders any portion
meaningless or superfluous." Jongewardv. BNSF Ry., 174 Wn.2d 586, 601,278
specific." Jongeward, 174 Wn.2d at 615 (Wiggins, J., dissenting). Therefore, the phrase
"otherwise injure" was not to be construed to embrace only similar objects. In contrast, in this case
we are interpreting the phrase "advisor, consultant, or otherwise in performing a governmental
function," in other words, "specific, specific, general." Therefore, the canon does apply and under
the statute, a person qualifies as a public servant only if they were acting as an advisor, a
consultant, or something similar in performing a governmental function.
6
Noscitur a sociis.
8
State v.J(.L.B., No. 88270-3
P.3d 157 (2012) (citing Svendsen v. Stock, 143 Wn.2d 546, 555,23 P.3d 455(2001)). The State's broad interpretation would render superfluous the phrase
"advisor, consultant, or otherwise." If the legislature intended that everyone
performing a governmental function be considered a public servant, the terms
"advisor" and "consultant" would have no separate meaning.
Under the State's logic, any private security officer or individual performing a
police-like governmental function would be a public servant. For example, a private
security guard checking bags before patrons enter a sport stadium would be a public
servant. If a patron made a false statement to such a security guard, then they could
have criminal charges filed against them. Going even further, a vigilante-a person
who is not a police officer but who tries to catch and punish criminals-would be a
"public servant" and it would be a crime to make a false or misleading statement to
such an individual. The State's argument that a "public servant" includes anyone
"performing a governmental function" would ignore modifying language in the
statute. In addition, interpreting the statute this broadly would raise questions as to
the statute's vagueness and overbreadth.
b. FEO Willet was not an ''officer" under RCW 9A. 04.11 0(23)
The State separately argues that FEO Willet meets the definition of "public
servant" as someone who occupies the position of an officer of government. Under
9
State v. K.L.B., No. 88270-3
RCW 9A. 04.11 0(23 ), a "public servant" includes "any person ... who presently
occupies the position of or has been elected, appointed, or designated to become any
officer ... of government." In turn, "officer" is defined as
a person holding office under a city, county, or state government, or the
federal government who performs a public function and in so doing is
vested with the exercise of some sovereign power of government, and
includes all assistants, deputies, clerks, and employees of any public
officer and all persons lawfully exercising or assuming to exercise any
of the powers or functions of a public officer.
RCW 9A.04.110(13) (emphasis added). The Court of Appeals agreed with the State
and held that "[t]he evidence supports that Willet was 'lawfully exercising or
assuming to exercise any of the powers or functions of a public officer' when he
was working as an FEO on August 6, 2010." K.L.B., 2012 WL 3065326, at *3.
It is true that Sound Transit contracted with Securitas to provide fare
enforcement services in accordance with Sound Transit's statutory authority. It is
also true that under RCW 81.112.21 0(2)(b ), FEOs have the authority to (i) request
proof of payment from passengers, (ii) request personal identification from a
passenger who does not produce proof of payment when requested, (iii) issue a
citation under RCW 7.80.070, and (iv) request that a passenger leave the facility
when the passenger has not produced proof of payment. However, these statutory
10
State v. K.L.B., No. 88270-3
privileges do not transform Sound Transit FEOs (who in reality are Securitas
employees) into public officers.
Under the plain language of the statute, an "officer" is a person holding office
who performs a public function and who is vested with some sovereign power of
government. As a private security officer, an FEO is not a public officer under this
language of the statute, as they are not elected, appointed, or designated to hold
office. Therefore, an FEO can possibly be an "officer" only under the second part of
the statute, which provides that an "officer" can include someone "lawfully
exercising or assuming to exercise any of the powers or functions of a public
officer." RCW 9A.04.110(13) (emphasis added). While the State and the Court of
Appeals have pointed out statutory powers granted to Sound Transit and to FEOs
generally, neither has directed us to the person holding public office whose power
the FEOs are lawfully exercising. As mentioned, FEOs do not exercise all powers
police officers have. In essence, they can check riders to verify valid tickets exist
and eject passengers who have not paid. Anything more and the FEO summons the
police. Therefore, a Sound Transit FEO cannot be "exercising or assuming to
exercise any of the powers or functions" of someone that does not exist.
The State also argues that if FEO Willet and his colleagues were not public
servants, passengers could lie to them without legal repercussions, which would
11
State v. K.L.B., No. 88270-3
make it nearly impossible to enforce the fare policy and issue infractions. FEOs
monitor compliance with fare collection. If someone has not paid their fare, they can
be removed from the train and under certain circumstances given a citation.
Alternatively, no reason exists why police officers cannot be summoned when
needed, as occurred in this case. Police officers certainly qualify as public servants
under the statute. K.L.B. was charged with two counts of knowingly making a false
or misleading material statement to a public servant: one count was for his statement
to Deputy Adams, but he was found not guilty of that charge. 7 These "legal
repercussions" are sufficient to deter Sound Transit riders from evading their fares.
CONCLUSION
Because we hold that FEOs are not "public servants" as defined by RCW
9A.04.110, we need not reach the other issues raised by K.L.B. The Court of
7
In fact, while Deputy Adams works for the King County Sheriffs Office, he is
specifically assigned to matters arising from the Link and the heavy-rail train. VRP at 87.
12
State v. K.L.B., No. 88270-3
Appeals is reversed and K.L.B. 's charges are vacated.
WE CONCUR:
\
13
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
No. 88270-3
J.M. JOHNSON, J.* (dissenting)-The majority misapplies the canons
of statutory construction in concluding that fare enforcement officers (FEOs)
are not "public servants" as defined by RCW 9A.04.11 0(23) and dismisses
the defendant's conviction for making a false or misleading statement to a
public servant. Because FEOs fulfill a governmental function and are officers
within the meaning of the relevant statute, I dissent.
ANALYSIS
A Sound Transit Fare Enforcement Officer Whose Employment Is Contracted
Through a Private Security Firm Is a "Public Servant" under RCW
9A.04.110(23)
I agree that the first step in statutory interpretation is to consider the
statute's plain language; often this is the only analysis needed. The majority
accurately states the rules of statutory construction where application of the
canons of construction is necessary. Majority at 5. I disagree with the manner
in which the majority applies these rules to construe the statute.
*Justice James M. Johnson is serving as justice pro tempore ofthe Supreme Court
pursuant to Washington Constitution article IV, section 2(a).
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
K.L.B. was convicted of making a false or misleading statement to a
public servant,· FEO Willet, under RCW 9A.76.175. Under RCW
9A.04.11 0(23), the term "public servant"
means any person other than a witness who presently occupies
the position of or has been elected, appointed, or designated to
become any officer or employee of government, including a
legislator, judge, judicial officer, juror, and any person
participating as an advisor, consultant, or otherwise in
performing a governmental function.
(Emphasis added.) FEO Willet was both an "officer of government" and
"performing a governmental function." Accordingly, FEO Willet was a
public servant and making a false or misleading statement to FEO Willet
violated RCW 9A.76.175.
a. FEO Willet Was "Performing a Governmental Function" under
RCW 9A.04.110(23)
The majority argues that a broad construction of "performing a
governmental function" improperly renders superfluous the phrase "advisor,
consultant, or otherwise" as it appears in RCW 9A.04.110(23). Majority at 6.
According to the majority, the term "otherwise" encompasses only positions
that are similar in nature to advisors or consultants. Id.Two principles historically expressed in Latin guide our analysis:
noscitur a sociis and ejusdem generis. Under noscitur a sociis, "a single word
2
State v. K.L.B., No. 88270-3
Dissent by J .M. Johnson, J.
in a statute should not be read in isolation .... '[T]he meaning of words may
be indicated or controlled by those with which they are associated."' State v.
Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005) (quoting State v.
Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)). Under ejusdem
generis, general words accompanied by specific words are to be construed to
embrace only similar objects. Sw. Wash. Chapter, Nat 'l Elec. Contractors
Ass'n v. Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983). However,
these rules do not, as the majority contends, lead to a narrow interpretation of
"public servant" that excludes FEOs.
The first phrase in the statute is intended to include anyone occupying
the position of an officer or employee of government (regardless of how that
person came to occupy the position, be it through election, appointment, or
designation). 1 Next, the statute provides a list of persons expressly intended
to be included in the definition (legislators, judges, judicial officers, and
jurors). The last item in the statutory definition's list is still another list (that
is, "any person participating as an advisor, consultant, or otherwise in
performing a governmental function"). The majority ignores that this is a list
within a list in arguing against a broad interpretation. If ejusdem generis was
1
There is also an express exclusion of witnesses.
3
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
applied consistently to the first, larger list, then the phrase "any person
participating as an advisor, consultant, or otherwise in performing a
governmental function" would be read to modify the list that includes
legislators, judges, judicial officers, and jurors. However, such a reading is
nonsensical. Consultants and advisors are not anything like legislators,
judges, judicial officers, and jurors. Clearly, the legislature did not adopt this
statute with the intent that ejusdem generis apply.
This court has rejected similar improper ejusdem generis arguments
before as Justice Wiggins noted in his dissent in Jongeward v. BNSF Railway,
174 Wn.2d 586,617,278 P.3d 157 (2012): 2
It does not make sense to apply the rule where a general phrase
is modified by "otherwise." The word "otherwise" means
"different" or "in a different way or manner." WEBSTER's THIRD
NEW INTERNATIONAL DICTIONARY 1598 (2002). This alone
manifests a legislative intent not to limit the general phrase to
things comparable to the specific phrases, and other courts have
refused to apply ejusdem generis to "otherwise" phrases for this
very reason.
Ejusdem generis is unhelpful in interpreting a phrase containing the word
"otherwise" due to its plain language definition. Therefore, "otherwise ... ·
2
In Jongeward, both the majority and the dissent rejected the defendant's ejusdem
generis argument. 174 Wn.2d at 595. The dissent discussed the argument in more depth,
whereas the majority dismissed it out of hand.
4
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
performing a governmental function" is not necessarily limited to categories
of workers similar to advisors and consultants. RCW 9A.04.11 0(23). In fact,
the plain meaning of the word "otherwise" indicates that the term is intended
to apply to those who are "different" from advisors and consultants.
Jongeward, 174 Wn.2d at 595.
Even if the legislature did intend ejusdem generis to apply, the majority
does not apply it correctly in this instance. The list is not the usual "specific,
specific, general" type of list, as the majority asserts. Rather, the list provides
a large number of specific examples with a very broad catchall provision at
the end. That is, the statute applies regardless of whether the person is a
legislator, a judge, a juror, an advisor, a consultant, or anyone else who acts
on behalf of the government.
It is more consistent with other recognized canons of construction to
consider a FEO as "otherwise ... performing a governmental function,"
whether employed directly by the government or contracted through a private
security firm. Knowing this term by the company it keeps indicates that
"otherwise ... performing a governmental function" should be interpreted
consistently with the other examples in the statute. These specific examples
include all employees of government, legislators, and jurors. RCW
5
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
9A.04.110(23). Like these other categories ofpeople, 3 FEOs are ultimately
compensated by the government, albeit indirectly through their private
security firms. Moreover, FEOs are expressly charged by statute with
providing a governmental function. 4
The majority uses the examples of private security guards at sporting
events and vigilantes as evidence that the legislature could not have intended
the statute to apply so broadly. Both of these examples miss the mark because
"security" is not always a governmental function. But, sporting event security
guards and vigilantes perform decidedly nongovernmental functions of
deterring or stopping crime without statutory authority.
FEOs are different from both of these examples because FEOs are
expressly empowered by statute to fulfill the governmental function of writing
citations to enforce governmental policies and rules. No such statute
3
See RCW 2.36.150 (specifying compensation for jurors).
4
Under RCW 81.112.21 0(1), regional transit agencies like Sound Transit may establish a
schedule of fines and penalties for civil infractions under RCW 81.112.220. Failure to
provide proof of fare is one such infraction. Transit agencies "may designate persons to
monitor fare payment who are equivalent to and are authorized to exercise all the powers
of an enforcement officer, defined in RCW 7.80.040. An authority is authorized to employ
personnel to either monitor fare payment, or to contract for such services, or both." RCW
81.112.210(2)(a). Under these provisions, Sound Transit is statutorily authorized to
contract with Securitas to provide fare enforcement services. These FEOs employed by
Securitas are statutorily authorized to request proof of payment from passengers, request
identification from those who do not have proof of payment, issue citations, and ask
passengers to leave the facility. RCW 81.112.210(2)(b).
6
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
authorizes Phoenix Jones 5 or any other private citizen to perform any
governmental function such as arresting, charging, or prosecuting criminals.
Such private actors may call law enforcement officers and observe the
situation until the officers arrive. 6 The legislature has empowered neither
Phoenix Jones nor private security guards with the same statutory authority it
has FEOs.
The plain language of the statute, informed by the canons of
construction cited above, indicates that FEO Willet was, in fact, performing a
governmental function. Moreover, it is improbable that the legislature would
criminalize making a false statement to all government employees, such as
elementary school teachers, but not FEOs expressly charged by statute with
issuing civil infractions for fare evasion. Because FEO Willet was performing
a governmental function under RCW 9A.04.110(23), I would hold that he was
a "public servant" for the purposes of making a false or misleading statement
to a public servant.
5
Phoenix Jones is a notable Seattle resident who dons a superhero costume and "fights
crime" as a vigilante.
6
These restraints actually make Phoenix Jones more closely resemble a witness, which is
expressly excluded from the definition of a "public servant."
7
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
b. FEO Willet Was an "Officer" under RCW 9A. 04.11 0(23)
In addition to performing a governmental function, FEO Willet falls
within the definition of "officer" under RCW 9A.04.110(23). The
Washington Criminal Code defines "officer" as
a person holding office under a city, county, or state government,
or the federal government who performs a public function and in
so doing is vested with the exercise of some sovereign power of
government, and includes all assistants, deputies, clerks, and
employees of any public officer and all persons . lawfully
exercising or assuming to exercise any of the powers or functions
of a public officer.
RCW 9A.04.110(13). Under the plain language ofRCW 9A.04.110(13), FEO
Willet was "lawfully exercising or assuming to exercise . . . powers or
functions of a public officer." As noted, transit agencies "may designate
persons to monitor fare payment who are equivalent to and are authorized to
exercise all the powers of an enforcement officer, defined in RCW 7.80.040.
[A transit] authority is authorized to employ personnel to either monitor fare
payment, or to contract for such services, or both." RCW 81.112.210(2)(a).
An "enforcement officer" is defined as "a person authorized to enforce the
provisions of the title or ordinance in which the civil infraction is established."
RCW 7.80.040. Through these provisions, Sound Transit is statutorily
8
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
authorized to employ directly or contract for the services of officers who are
charged with enforcing the provisions involving civil infractions.
FEOs also fall under chapter 10.93 RCW, the Washington Mutual Aid
Peace Officers Powers Act of 1985. RCW 10.93.020(4) defines "limited
authority Washington peace officer" as "any full-time, fully compensated
officer of a limited authority Washington law enforcement agency empowered
by that agency to detect or apprehend violators of the laws in some or all of
the limited subject areas for which that agency is responsible." See also RCW
10.93.080 (such officers shall have no additional powers by virtue of chapter
10.93 RCW).
I conclude that FEOs fall under several plain language statutory
definitions of "officer" relating to their fare enforcement duties. Interpreting
these provisions consistently with RCW 9A.04.110(23) and RCW
9A.04.110(13) vindicates the legislature's intent to define FEOs as public
servants, whether employed directly by the government or through private
security firms. See State v. Velasquez, 176 Wn.2d 333, 336, 292 P.3d 92(2013) ("related statutory provisions must be harmonized to effectuate a
consistent statutory scheme that maintains the integrity of the respective
9
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
statutes"). FEO Willet satisfies the definition of "officer" found in RCW
9A.04.110(13) and is, therefore, a public servant.
Finally, it makes little sense for the legislature to create the fare
enforcement system but fail to give its officers any workable enforcement
mechanism. Because the majority holds that FEOs are not public servants,
passengers can lie to them without legal repercussions, making it impossible
to enforce the fare policy and issue infractions. 7 Without a passenger's name
and address, it is impossible to issue an infraction for fare evasion.
Because the majority holds that FEOs are not public servants, they are
not subject to the terms of various anticorruption statutes, including bribery
(RCW 9A.68.010), requesting unlawful compensation (RCW 9A.68.020), or
official misconduct (RCW 9A.80.010). The legislature could not have
intended such results when it authorized Sound Transit to designate FEOs. 8
For these reasons, Sound Transit FEOs whose employment is
contracted through private security firms are "public servants" under RCW
9A.04.11 0(23). The majority ignores the legislature's plain intent to
7
The system is, in part, financed by bonds reliant on fare collection.
8
The majority's construction renders FEOs completely impotent in the face of a
dishonest fare dodger because they can summon police officers "when needed." Majority
at 12. If this was the case, the entire statute authorizing FEOs is rendered superfluous
because only police officers can effectively enforce the payment of fares.
10
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
criminalize making a false or misleading statement to FEOs under RCW
9A.76.175. 9
CONCLUSION
We should hold that Sound Transit FEOs, including those whose
employment is contracted through private security firms, are "public servants"
under RCW 9A.04.110(23). The nature of FEO Willet's employment on
August 6, 2010, satisfies the definition in two ways: (1) he was performing a
governmental function and (2) he was an officer of government. Accordingly,
the Court of Appeals should be affirmed and the conviction enforced.
Repayment of the substantial public investment in transit depends on
enforcement of the rules and fares set for that purpose.
9
I take this opportunity to point out that the legislature may reverse the outcome of this
case by amending RCW 9A.04.11 0(23) to expressly include FEOs in the definition of
"public servants" or adjust the form of the sentence so that the catchall term "otherwise
... performing a governmental function" is at the end of the full list, rather than at the
end of the list within a list. See supra p. 3.
11
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.
12
State v. KL.B.
No. 88270-3
MADSEN, C.J. (concurring in dissent)--In a time of fiscal austerity, it is
surprising that King County elected to use its resources to prosecute a young man for his
apparent lack of candor with uniformed officers after being informed that Sound Transit
no longer accepted bus transfers as legitimate fare. The use of considerable public
resources to prosecute such a minor infraction, especially one that can easily be
understood as a crime of poverty, is remarkable. It is more surprising, however, that the
majority can find the Sound Transit fare enforcement officer was performing a
government function, fare enforcement, but that this officer was not a "public servant."
The analysis presented by the majority would define the engineering consultant hired to
design the light-rail as a "public servant" while excluding fare enforcement officer Brett
Willet, interacting with the public and issuing citations on the light-rail, from the same
titular description. I cannot subscribe to the majority's application of the rules of
statutory construction because it leads to an untenable result. Therefore, I join and
concur in the dissent.
No. 88270-3
Madsen, C.J., concurring in dissent
2