Wayne Goding, Resp/cross-app v. King County Sheriff's Office, App/cross-resp. ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WAYNE GODING,
DIVISION ONE
Respondent/Cross-Appellant,
No. 72890-3-1
v.
CIVIL SERVICE COMMISSION OF
KING COUNTY; ORDER GRANTING MOTION
TO PUBLISH OPINION
Respondent,
KING COUNTY, a municipal
corporation; KING COUNTY
SHERIFF'S OFFICE, a department
of King County,
Appellants/Cross-Respondents.
The appellant/cross-respondent King County having filed a motion to
publish opinion, and the hearing panel having reconsidered its prior CO
determination and finding that the opinion will be of precedential value; now,
therefore, it is hereby:
ORDERED that the unpublished opinion filed December 14, 2015, shall be
published and printed in the Washington Appellate Reports.
Done this [f^ day of January, 2016.
FOR THE COURT:
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WAYNE GODING,
DIVISION ONE 7^ r
Respondent/Cross-Appellant, V?
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v.
CIVIL SERVICE COMMISSION OF
KING COUNTY; PUBLISHED OPINION
Respondent,
KING COUNTY, a municipal
corporation; KING COUNTY
SHERIFF'S OFFICE, a department
of King County,
Appellants/Cross-Respondents. FILED: December 14, 2015
Dwyer, J. —Under applicable civil service law, when the county sheriff
imposes a severe sanction—such as suspension without pay—upon a
commissioned deputy the disciplinary decision must be made "in good faith for
cause."1 In such a circumstance, the disciplined employee may request that the
local civil service commission review the disciplinary decision in order to ensure
that the sheriffs action complied with the legal standard. If the civil service
commission upholds the sheriffs action, the disciplined employee may seek
judicial review of the commission's decision. This review, however, is extremely
limited. The court may not disturb the decision of the commission unless that
1 RCW 41.14.120.
No. 72890-3-1/2
decision was made arbitrarily or capriciously.2 And where the commission's
decision is "made with due consideration of the evidence presented at the
hearing," its decision is not, as a matter of law, arbitrary or capricious.3
In this case, as a sanction for work-related misconduct, the King County
Sheriff imposed a one-day suspension without pay, coupled with a reassignment
to a less desirable detail, upon Deputy Wayne Goding. After a hearing, the civil
service commission upheld the sheriffs action. Goding sought review in the
superior court, which reversed the commission's decision. Given that the record
makes clear that the commission duly considered the evidence presented atthe
hearing before it, the commission did not act arbitrarily or capriciously in
upholding the sheriffs action. Accordingly, we reverse the decision of the
superior court and reinstate the decision of the civil service commission.
I
Goding was employed as ashuttle deputy in the warrants unit of the
sheriffs office. As a shuttle deputy, Goding, together with his colleague Deputy
Bruce Matthews, was responsible for transporting inmates. This sometimes
involved shuttling inmates to and from the jail and a hospital.
On March 27, 2012, Sheriffs Sergeant Michael Porter sent an e-mail to
several employees, including Goding, discussing "some 'friction' recently
between the jail staff and our staff who work the transport shuttle." In the e-mail,
Porter instructed Goding and the otheremployees that,
*firnia v. Metzler. 33Wn. App. 223, 226, 653 P.2d 1346 (1982).
3state ax rel. Perry v Citv of Seattle. 69 Wn.2d 816, 821, 420 P.2d 704 (1966).
No. 72890-3-1/3
Iexpect any of our people working on the shuttle run to above all
be courteous and professional in all contacts with jail staff.
Anything less than a professional attitude and courtesywill not be
tolerated regardless of the perceived "provocation."
Follow the iail staff directions unless they make a request that is
unsafe or illegal.
Rather than getting into a conflict with jail staff about what you feel
is "not your job", just do what they ask, and bring it to my attention
later if you feel they are asking you to do something that is not
appropriate for whatever reason. Iwill be meeting with the ITR
[Intake, Transfer, and Release] sergeant at the jail weekly to work
out any issues that may come up regarding roles and
responsibilities. We will also expect the same level of professional
courtesy on the part of the jail staff, and Iexpect to be notified
promptly if there are issues regarding their conduct.
At the civil service commission hearing, Sheriffs Captain Joseph Hodgson
recalled that in March 2012, Porter came to his office to notify him that "[tjhere
was some friction between Sheriffs Office personnel and jail staff that needed
some attention."
Over time, Hodgson noticed that Goding and Matthews "seemed to be the
focus of the complaints" from the jail. In fact, during the summer of 2012,
Hodgson received two separate complaints—one involving Matthews and the
other involving Goding—from employees of the King County Department of Adult
and Juvenile Detention alleging that Goding and Matthews failed to properly
comply with requests to complete inmate booking paperwork.4 The complaint
470 U.S. 532, 105S. Ct. 1487, 84 L Ed. 2d 494
(1985).
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No. 72890-3-1/13
After careful consideration I concur with the findings of Major
Stensland, that this allegation should be sustained.
Discipline: One (1) day suspension without pay for violations
associated with [the February 20 incident] to be
imposed and served by December 31, 2013.
Immediate transfer from the Criminal Warrants Unit to
unincorporated patrol.
On October 1, Urquhart issued a personnel order to Goding wherein he
stated,
Deputy Wayne Goding, assigned to the King County Sheriffs
Office, Patrol Operations, Precinct 3, has been found in violation of
General Orders Manual Section 3.00.015(2)(a) - RULES OF
CONDUCT: MISCONDUCT: Insubordination or failure to follow
orders.
Therefore, under authority of R.C.W. 41.14.110 and 41.14.120,
Deputy Wayne Goding, is suspended without pay for one (1) day (8
hours). This discipline will not be imposed until after October 16l,
2013, to give Deputy Wayne Goding, the opportunity to exercise
any appeal rights he may have under the collective bargaining
agreement in effect between King County and the King County
Police Officer's Guild, or the King County Civil Service Rules.
On October 18, Goding provided a written request of appeal to the King
County Civil Service Commission. Athree-day hearing was held during which
the commission heard from seven witnesses and reviewed an array of
documentary evidence.18
Goding testified that he believed the situation involving Phipps was
unique, stating that, "[t]his situation had never, in 11 years, popped up." Goding
estimated that in those 11 years he had "personally handled, you know, 4,000 to
is The hearing was held on January 30, 31, and February 5, 2014. Live testimony from
Hodgson, Myers, Ley, Tibayan-Hickey, Richardson, Urquhart, and Goding was presented.
13
No. 72890-3-1/14
6,000" prisoners. Goding elaborated that "[t]his is the first time Iwas inside the
jail and the sergeant said, '[t]urn him loose, don't - you're not going to wait on
him, you're not going to rebook him.'"19 Goding also testified to his belief that,
[t]here's only two reasons to put someone in handcuffs: one, they're
under arrest; or two, a safety reason, either you think they're going
to assault you or someone else or hurt themselves. So you might
put them in - they call it "officer safety" - is a common term for it,
but for safety reasons putthem in handcuffs, or they're under
arrest. That's the only two reasons that I know you can handcuff
somebody. And if you handcuff somebody, you'd better be able to
explain why you're putting them in handcuffs.
In light of this belief, Goding told the commission, he did not think he had a lawful
reason to handcuff Phipps.
In addition, Goding testified regarding the manner in which he applied the
restraints to Phipps. He denied that he put the chains on in a loose manner as a
sign of disrespect. Instead, Goding testified that,
when Iput the chains around [Phipps], as a compassion for his
pain, Iput them on - and Iwouldn't even say loose. Iput them on
to fit his body. Ididn't snug them up, which Ialmost never do
unless someone is uncooperative, but Iput them on to fit his body,
and Iput the padlock on and put the handcuffs on him. And
because ofthe coveralls and his large stomach and his swollen left
side, the chains slid down to right below his butt. But that was not
the intention to put them on that way. That's just what happened,
when he moved they slid down.
Further, Goding testified that he "put [the chains] on the same way" when he
applied the restraints to Phipps at the jail as he had done when he first restrained
19 Myers told Matthews to "kick [Phipps]." Goding testified that after he received this
instruction from Matthews he
believed that we were going to release [Phipps]. So, that means he's released.
And the only thing we had to arrest him on was a warrant, and the sergeant
declined to book him on the warrant, so now he has nothing to be under arrest.
-14
No. 72890-3-1/15
Phipps in Enumclaw. Goding recalled that once he was outside ofthe jail with
Phipps, he "took the chains off [Phipps], put him in the van unrestrained, and
drove him to the hospital."
Richardson's and Myers' testimony rebutted Goding's characterization of
the situation as unique and confirmed the need to restrain Phipps. Richardson
testified that "[i]n my 24 years, no law enforcement officer has taken issue with
restraining an arrestee going back out, for whatever reason it is." Richardson
elaborated on the need to restrain prisoners in the sally port area,
[w]hile that technically is a secured area of the jail, it's unsecured in
the aspect that police officers step out of their cars and put their
weapons in the trunks of their cars. So they're unholstered, have
their guns in their hands. And that would be - there would be the
main reason that we insist inmates going back out the door are
restrained. Because once they get past that [ ] door, you know,
theoretically, if an officer is standing behind his trunk, which could
be just steps away out that door, putting his weapon into his trunk,
not secured, an inmate could run out and grab it.
Consistent with Richardson's views, Myers testified regarding the practice
of restraining prisoners stating, "[i]t would be whenever we're transporting
anybody in our custody that's aprisoner, that that person would be restrained."
In response to aquestion asking Myers if this policy or practice is communicated
to new officers when they join the criminal warrants unit, Myers testified, "[i]t's a
department policy. So it's actually written into our general orders manual that
we're all responsible for knowing."
Tibayan-Hickey testified that Goding was not "happy about us declining" to
admit Phipps and that a"disagreement" ensued. When asked if Goding pressed
the point with her, she testified,
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No. 72890-3-1/16
[w]ell, he said there was something about the charges for the
inmate were serious and that we should accept him. But, you
know, we said we would accept him, but we needed to get him
medically cleared first before we took him into the jail.
When asked whether she felt comfortable during the interaction with
Goding, Tibayan-Hickey answered that,
[i]t was unusual from the fact... that they were having the
argument. Most of the time we would just, okay, give them the
paperwork, they'd take the paperwork, take the inmate tothe
hospital. But it was a lot of back and forth on why we weren't and
why we should kind of a thing.
When asked whether one deputy was more involved in the argument than
the other, Tibayan-Hickey responded, "I think it was more Goding because
Matthews was on the phone with Ithink his supervisor."
Sheriff Urquhart testified that, in preparing for a Loudermill hearing, he
reviewfs] the case file, Ilook at the statements, Iread the
statements, Iread the Findings and Recommendations, Ilook at
the proposed discipline, Ilook atthe comparable disciplines.
And then before the meeting I confer with the internal
investigations captain, the specific detective that - detective-
sergeant in internal investigations that did the investigation, and I
speak with the HR manager, and Ispeak with our labor attorney.
And just kind of review the case and look at the discipline, those
sorts of things.
The Sheriff also reviewed the investigation itself.
Ilooked at [the investigation] to make sure it was complete and
thorough, to make sure there was just cause, that no stone had
been left unturned. Ialways give the person that's coming in for the
grievance or the Loudermill, as well as their representative, an
opportunity to suggest or to ask for further investigation. That was
not done. Ididn't see anything else that needed to be done. It was
completed within the contractual 180 days. Ihad no issues with the
investigation per se at all.
16-
No. 72890-3-1/17
In reviewing the substance of the claims against Goding, the Sheriff
noticed that
I recall that itwas essentially the same sort of conduct [as a prior
incident of discipline]. A little bit different, but basically getting into
an argument with the jail staff over a prisoner.
By this point in time, if I'm remembering correctly, the
admonition had gone from Deputy Goding's - originally from
Detective Goding's sergeant at the earlier investigation now up to
his captain, who had sent him an e-mail saying, "This type of
conduct is unacceptable. You will do what the jail tells you to do
unless it's unsafe or illegal."
In reaching his conclusion, the Sheriff considered a written statement
provided by Goding wherein Goding maintained his assertion that Officer Ley's
request to restrain Phipps was illegal. As the Sheriff recalled,
[Goding] had been told by his sergeant that if the jail did not
accept this prisoner, he was to take him up to HarborvieW20' and
then leave Harborview, unarrest him. And his argument was that
when he was told in the jail booking area that they would not accept
the prisoner, that atthat point in time the suspect was not under
arrest and, therefore, it would have been illegal for him to handcuff
him as was requested by the jail.
And Itold [Goding] at the time [during the Loudermill
hearing], and Ifeel to this day, that was an illogical and wrong
analysis of the law. [Phipps] was still under arrest and still would
be under arrest until they got to Harborview and they walked away
from him. The warrant was still in existence, it had not been
cleared, it had not been quashed, and he had every right under the
law to put him back in handcuffs.
The Sheriff also found it significant that Goding did not speakdirectly with
Myers about his concern regarding the illegality of restraining Phipps. In light of
20 The Sheriff misremembered the hospital to which Goding had been directed by his
sergeant. This variance is of no significance.
-17-
No. 72890-3-1/18
Goding's failure to speak directly with Myers, the Sheriff asserted his belief to the
commission that,
I think if [Goding had] been as concerned as he told me in the
Loudermill that this was an illegal act, I think he would have made
his concerns much more - would have voiced his concerns more to
his sergeant than he did. He had an opportunity to get on the
phone with Sergeant Myers; he didn't. If this was such a big
Constitutional issue, as you have said and he has said, then Ithink
he would have presented his case more.
I think the fact that he didn't, that he allowed the jail sergeant
to get on the phone and talk to the sergeant, leads me even more
to believe that this was an excuse not to handcuff the prisoner.
Based on his review of the internal investigation file, the Sheriff
determined that Goding "was argumentative" with the jail staff. In addition, the
Sheriff believed that the restraints appeared
[haphazard so that the belly chains were drooping down to the
suspect's knees, and not how we would expect to fully restrain a
prisoner. Again, in a[n] in-your-face type of action to the jail staff,
as it was portrayed in the internal investigations -- investigation.
The Sheriff further testified about the conclusions that he reached after
conducting the Loudermill hearing, stating that there are
[t]wo things Ilook at in a Loudermill. The first was should this case
be sustained or not. And ofcourse Ican overturn the discipline, I
can ask for more investigation. So that's my first decision point.
And I believed that the allegation should be sustained.
And I look at the discipline. And I look at the discipline
obviously from [a] progressive standpoint, but primarily Ilook atthe
discipline to try to determine what is going to change behavior.
That is my goal, is to change behavior. And clearly the first case
that I reviewed regarding Deputy Goding did not change his
behavior. He's still having a problem in the jail.
So Iagreed with the recommended discipline that a one-day
suspension was appropriate and transfer out of the unit was
-18-
No. 72890-3-1/19
appropriate. Ididn't see any other way we could change his
behavior, which was unacceptable to me and unacceptable for
anybody working in the Sheriffs Office.
In response to two questions asking Urquhart if he considered comparable
discipline within the department and past history—which included the prior
written reprimand that Goding had received—before imposing discipline for the
February 20 incident, the Sheriff responded "I did" to both questions.
At the conclusion of the civil service hearing, the commission determined
that Goding's failure to comply with Ley's directive was an act of insubordination,
and that "the County met its burden to establish that the discipline imposed was
made in good faith for cause." It upheld the Sheriffs action.
Goding appealed the commission's decision to the King County Superior
Court. The superior court reversed, ruling that the commission's decision was
"arbitrary and capricious." The superior court ordered that Goding be reinstated
to his position in the criminal warrants unit and be awarded "full back pay."
The Sheriff now appeals.
II
The Sheriff contends that "[t]he Superior Court erred in entering two
orders ruling that the Civil Service Commission acted arbitrarily and capriciously
in finding that the King County Sheriffs discipline of Deputy Wayne Goding was
in good faith for cause under RCW 41.14.120." Br. of Appellant/Cross Resp't at
3. This is so, the Sheriff asserts, because "the Commission's decision was
based on competent evidence and was not arbitrary and capricious." Br. of
Appellant/Cross Resp't at 16. We agree.
-19-
No. 72890-3-1/20
Chapter 41.14 RCW governs "Civil Service for Sheriffs Office." "The
general purpose of this chapter is to establish a merit system ofemployment for
county deputy sheriffs and other employees of the office of county sheriff,
thereby raising the standards and efficiency of such offices and law enforcement
in general." RCW 41.14.010.
The commission is a statutory body "created in each county and in each
combination ofcounties ... to carry out the provisions ofthis chapter." RCW
41.14.030. Its members are appointed by officials outside ofthe police force in
order to ensure independence. RCW 41.14.030. The commission is authorized
"[t]o hear and determine appeals or complaints respecting the allocation of
positions, the rejection of an examinee, and such other matters as may be
referred to the commission." RCW 41.14.060(5).
Our authority to review commission decisions is set forth in RCW
41.14.120. "The judiciary's role in reviewing action taken by the [Civil Service]
Commission is severely limited." Greia v. Metzler, 33 Wn. App. 223, 226, 653
P.2d 1346 (1982). Indeed, "[w]here a tribunal has been established to hold
inquiries and make decisions ... review by the judiciary is limited Xo determining
whether an opportunity was given to be heard and whether competent evidence
supported the charge." State ex rel. Perrv v. Citv of Seattle, 69 Wn.2d 816, 821,
420 P.2d 704 (1966). Specifically, RCW 41.14.120 confines judicial review "to
the determination of whether the order of removal, suspension, demotion, or
discharge made by the commission, was or was not made in good faith for
cause, and no appeal shall be taken except upon such ground or grounds."
-20-
No. 72890-3-1/21
When making this determination, we review the commission's record, notthe
record or decision of the superior court. Greiq. 33 Wn. App. at 226.
RCW 41.14.120 explicitly controls decisions regarding "removal,
suspension, demotion, or discharge" and sets forth the applicable standard of
review. Under RCW 41.14.120, we do not separately review findings of fact or
conclusions of law. Instead, we review the commission's decision as a whole to
determine whether the decision demonstrates that the commission duly
considered the evidence presented at the hearing. Perry. 69 Wn.2d at 821.
The crucial question is whether or not there is evidence to support
the commission's conclusion. Afinding or a conclusion made
without evidence to support it, is, of course, arbitrary. State ex re).
Tidewater-Shaver Barge Lines v. Kuvkendall, 42 Wn.2d 885, 891,
259 P.2d 838 (1953); but it is not arbitrary or capricious if made
with due consideration ofthe evidence presented at the hearing.
See Miller v. Tacoma, 61 Wn.2d 374, 390, 378 P.2d 464 (1963).
Perry, 69Wn.2dat821.
We "must exercise independent judgment to determine whether the
Commission acted arbitrarily, capriciously, or contrary to law." Grejg, 33 Wn.
App. at 226 (citing Benavides v. Civil Serv. Comm'n. 26 Wn. App. 531, 613 P.2d
807 (1980); Eiden v. Snohomish County Civil Serv. Comm'n, 13 Wn. App. 32,
533 P.2d 426 (1975)). But "[a] decision by an administrative commission is not
arbitrary and capricious simply because a trial court and this court conclude, after
reading the record, that they would have decided otherwise had they been the
administrative commission." Perry, 69 Wn.2d at 821. Indeed, the commission's
decision is not arbitrary or capricious if the commission duly considered the
evidence presented at the hearing. Perry, 69 Wn.2d at 821. Reviewing courts
-21 -
No. 72890-3-1/22
are prohibited from "substituting] [their] judgment for the independent judgment
of the civil service commission." Perry. 69 Wn.2d at 821.
The question before the Commission was whether the discipline imposed
on Goding bythe Sheriff was made in good faith, for cause.
On appeal, the question before us is whether the Commission's
decision—wherein it concluded that the discipline imposed by the Sheriff was,
indeed, made in good faith, for cause—was arbitrary or capricious. This decision
must be upheld "if made with due consideration of the evidence presented at the
hearing." Perry. 69 Wn.2d at 821. The record indicates that the commission
gave the evidence due consideration and that its decision was made in light of
the evidence before it.
Goding asserted at the time of the incident, and reiterated in the civil
service hearing, that he was excepted from following Ley's directive because the
request to restrain Phipps was illegal. In reaching its decision, the commission
analyzed Goding's position at length:
The County rejected Goding's position, effectively finding that [the
illegality] enumerated exception to the orders did not apply. Implicit
in the County's finding, and made explicit by Sheriff Urquhart's
testimony, is that Goding did not reasonably believe the exception
applied.
The precise question before the Commission is whether the County
had good cause to reject Goding's position.
The question is a close one, primarily because the handcuff
incident was not overtly argumentative or confrontational, and
lasted just a few minutes. The Commission also took into
consideration that the jail staff did not initiate a complaint about the
handcuffing incident; instead Sgt. Myers was the person who
initiated the complaint and investigation.
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No. 72890-3-1/23
However, after careful consideration, the Commission finds that the
County had good cause to reject Goding's proffered explanation
and determine that he was insubordinate. The overall record does
not support that Goding reasonably believed that the "illegal"
exception applied. The most relevant points are below.
First, even though the circumstances described by Goding as so
unique as to not have occurred in 11 years, they were in fact very
similar to numerous other occasions where prisoners were escorted
back and forth between the jail and the hospital. No other witness
testimony or other evidence—outside of Goding's own statement-
pointed to any previous instance of a prisoner being transported in
and out ofthe sally port area ofthe jail unrestrained.
Second, Goding did not appear to account for or consider the
second justification for handcuffing that he said his training
supplied: officer safety. Testimony and evidence established the
obvious point that transfer through secure areas of a jail facility
where armed law enforcement officers are securing their weapons
and other prisoners are present could present a safety risk. Officer
Ley said that he was surprised and puzzled by Goding's position.
Richardson testified that in 24 years working atthe jail, the need to
restrain unreleased prisoners in this area had never been
questioned. Sgt. Myers testified that this type of incident had never
happened before, and that prisoners are always restrained in and
out of the sally port. Goding did not produce any evidence or
testimony to counter the well-established practice or to dispute the
safety aspect of restraining prisoners in the secure area of the jail.
Third Goding's efforts to address the concern while at the jail were
inconsistent with a belief that it would have been illegal to re-
handcuff Phipps. Goding gave his explanation to Officer Ley- "he
record while less than clear on this point, indicates that he did not
articulate his position directly to Sergeant Richardson, but rather
relied on thefact that Officer Ley had related it to him.
The record is clear, however, that Goding did not speak to his own
sergeant directly about his concern about whether it was lawful to
re-handcuff Phipps. Goding knew that Officer Matthews was
talking to Sgt. Myers on the phone. Goding had the opportunity to
tell Matthews and/or Richardson that he needed to talk to Myers.
But despite his claim that this incident was so unique that it had not
occurred in 11 years of transporting thousands of prisoners and
despite his claim that it was so concerning to him that he initially
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No. 72890-3-1/24
refused to comply with a clear instruction from DAJD Staff, Goding
did not avail himself of the opportunity to talk to Myers directly.
The Commission is sympathetic to Goding's argument that he was
in a bit of a Catch-22, in that he had been admonished numerous
times to follow jail staff direction without challenge or resistance,
but had also been instructed to raise possibly illegal directions to
his supervisor. We do find the fact that the incident was a low-
level, professional exchange, lasting only a few minutes, relevant in
this regard.
However, considered together, it was reasonable for the County to
conclude that if Goding maintained a reasonable conviction that it
would have violated Phipps' constitutional rights to be re-restrained,
that he would have asserted it more forcefully and directly than he
did.
There are otherfacts and circumstances that support this
conclusion. The record establishes that Phipps was rejected for
booking atthe end of Goding's shift. Officer Ley and Jail Health
staff Nurse Hickey stated also that Goding was not happy about the
medical deferral, and was irritated. Jail Health staff Nurse Woodruff
also stated in her IIU interview that Goding was upset. These
observations tend to undercut Goding's position that the only
motivation behind his initial refusal to handcuff Phipps was a
concern about the legality of the action.
In addition, the available information surrounding the manner in
which Goding re-applied the belly chain and handcuffs on Phipps
also casts doubt on the sincerity of his position.
As set forth in the Summary of Facts, there is some dispute as to
whether Goding cuffed Phipps differently the first time than the
second. Sgt. Myers was present atthe first application, and
recalled that Phipps was cuffed properly at that time.
Goding stated that he applied them the same way both times, and
that he absolutely did not re-apply the belly chains intentionally
loosely. Rather, he explained he put them on to fit Phipps['] body
and because of his large belly and medical condition the chains slid
down. He agreed that the belly chain was applied loosely with the
back part hanging to Phipps' knees.
Sgt Richardson also observed that the belly chain was applied
loosely and, in his view, improperly. As described above, he
-24-
No. 72890-3-1/25
believed that Goding re-applied the chain intentionally loosely, in an
expression of defiance.
Sheriff Urquhart credited Sgt. Richardson's account of the
handcuffing, and concluded that Goding's method of placing the
chains on Phipps was an "in your face type ofaction" and an act of
defiance.
It is difficult to discern with any certainty another person's intent.
Nonetheless, given (1) the established history ofa problematic
relationship between Goding and jail staff; (2) the unusual dispute
over a routine matter such as handcuffing a [prisoner] transport out
of the jail; (3) the agreement that the chains were very loosely
applied; and (4) Richardson's observation and contemporaneous
interpretation of Goding's intent, the County acted reasonably in ^
considering this incident as an additional reason to reject Goding's
defense to the allegation of insubordination.
The Commission therefore upholds the County's finding that
Goding was insubordinate.
Was the discipline for good cause?
Goding raised an issue about the scope of the hearing in that the
order issued imposing discipline in this matter does not identify that
it is based on progressive discipline, and does not cite or refer to
the previous discipline....
He is correct. The September 30, 2013 memo [Loudermill Hearing
Results Memorandum] from Sheriff Urquhart to Goding does not
mention the prior discipline or refer to progressive discipline, nor
does the Personnel Order 2013-228 of October 1, 2013, which
imposes the current discipline.
However, Urquhart's Loudermill findings letter does contain the
following sentence: "After careful consideration Iconcur with the
findings of Major Stensland, that this allegation should be
sustained."
CID Commander Major Stensland's 7-24-13 Findings and
Recommendations [Memorandum], forwarded to IIU Commander
Captain Nesel, states: "This is the second sustained incident of
insubordination involving and affecting the working relationship with
the DAJD Staff, and a mutually cooperative atmosphere is critical in
this job. Irecommend that Detective Goding be suspended] for
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No. 72890-3-1/26
one day without pay and that he be immediatelytransferred out of
the Criminal Warrants Unit."
Sheriff Urquhart also stated during his oral testimony that while he
considered the handcuffing incident as a significant stand-alone
issue, he considered the two prior guidance and expectation
memos and the prior written reprimand in determining discipline.
He said that he looked at discipline as both progressive and to
change behavior, and concluded thatthe previous memos and
discipline had not changed Goding's behavior.
While it would have been advisable for the County to have
articulated in the Loudermill memo and the Personnel Order that
progressive discipline was a basis for the decision, the Commission
finds that there is an adequate basis to conclude that the
disciplinary decision was progressive, and built upon previous
warnings and actual discipline of Goding.
Therefore, the Commission's decision is that the discipline imposed
was for good cause.
Finding
Based on the foregoing, the Commission denies Goding's appeal,
and finds that the County met its burden to establish that the
discipline imposed was made in good faith for cause.
Because the record indicates that the commission duly considered all of
the evidence that was presented atthe hearing, fully explained the bases for its
determinations, and based its determinations on its consideration of the
evidence, the superior court erred by concluding that the commission acted in an
arbitrary and capricious manner in determining that the discipline was imposed in
good faith, for cause.
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No. 72890-3-1/27
II
In a cross appeal, Goding contends that the hearing before the
commission was untimely and that, as a result, he is entitled to be treated as the
prevailing party. We disagree.
A
At the beginning of the civil service hearing, a commissioner stated, "I'd
like just to confirm for the record that the parties have stipulated that the appeal
of this matter was timely and in accordance with the rules."21 Neither party
objected.
"It is the duty of counsel for all parties to promptly call the court's attention
to any error in the [proceeding]. Counsel may not secretly nurture an error,
speculate upon afavorable verdict, and then, in the event it is adverse, bring
forth the error as a life preserver...." on appeal. Aqranoff v. Morton, 54 Wn.2d
341,346, 340 P.2d 811 (1959).
The same principle applies to litigation of this sort. Goding in no way
raised an issue of timeliness to the commission, even though invited by the
commission to do so. He now attempts to engage in word play, contending that
the commission only asked about the timeliness of the filing of his appeal, not the
hearing itself. If he harbored a complaint about timeliness, his duty of candor to
21 In his brief, Goding cites to this statement, asserting that "[t]he question posed to
counsel for Mr. Goding, and to which he assented, was whether he agreed that the appeal itself
was timely, not whether the hearing was being conducted on atimely basis. Reply Br. of
Resp'tVCrass-Ap^penama" " " " commissJon pQSed n0 such question t0
Goding's counsel.
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No. 72890-3-1/28
the tribunal required him to clarify the issue with the commission at that time. By
not doing so, he forfeited any claim of error based on the timeliness of the
proceeding.
B
In addition to forfeiting his claim oferror, Goding also waived his claim by
not asserting it before the commission.
Goding was obligated to raise his claim of timeliness prior to the
commencement of the hearing.
"Our cases require issues to befirst raised at the administrative
level" Citizens for Mount Vernon v. Citv of Mount Vernon. 133
Wn.2d 861, 869, 947 P.2d 1208 (1997). Furthermore, "[i]n order for
an issue to be properly raised before an administrative agency,
there must be more than simply a hint or a slight reference to the
issue in the record." King County v Wash. State Boundary Review
Bd, 122 Wn.2d 648, 670, 860 P.2d 1024 (1993).
Requiring resolution of an issue at the administrative level is
more than "'simply a technical rule of appellate procedure; instead,
it serves an important policy purpose in protecting the integrity of
administrative decision making.'" Pac. Land Partners, LLC, v. Dept
of Ecology. 150 Wn. App. 740, 754, 208 P.3d 586 (2009) (quoting
Kino County. 122 Wn.2d at 688).
ABC Holdings, Inc. v. Kittitas County. 187 Wn. App. 275, 282-83, 348 P.3d
1222 (2015), review denied. No. 91878-3 P.3d (Wash. Nov. 4,
2015).
As our Supreme Court has held in the past: "Plaintiff, with full knowledge
of the alleged irregularity, failed to object at any point in the administrative
process. The right to raise the question before the superior court has been
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No. 72890-3-1/29
waived." Hill v. Dep't of Labor & Indus.. 90 Wn.2d 276, 280, 580 P.2d 636 (1978)
(challenge to decision-maker waived); see e&±, Escamilla v. Tri-Citv Metro Drug
Task Force. 100 Wn. App. 742, 750-51, 999 P.2d 625 (2000) (challenge to
timeliness waived), abrogated on other grounds by In re Forfeiture ofOne 1970
Chevrolet Chevelle. 166 Wn.2d 834, 215 P.3d 166 (2009).
Goding did not raise his assertion of untimeliness to the commission. As a
result, on this question, no evidence was taken, no facts were contested, no
factual findings were made, and no ruling was made. In essence, Goding asks
us to reverse a decision that the commission was never called upon to make.
We will not do so.22
The decision of the superior court is reversed. The decision of the King
County Civil Service Commission is reinstated.
HiX"^,)U-
We concur:
UJ,tf - Skfiu^0&,Q^
22 Because Goding is not the prevailing party on appeal, we need not address the
remaining issues set forth in his cross appeal.
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