Johannes Mak v. City Of Kent ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JOHANNES MAK,
No. 75827-6-1
Appellant,
DIVISION ONE
V.
CITY OF KENT, UNPUBLISHED OPINION
Respondent. FILED: December 26, 2017
SPEARMAN, J. — The City of Kent(City) indemnifies an employee against
legal action arising by reason of the fact that he or she is a City employee. While
on duty, Officer Johannes Mak of the Kent Police Department shared information
with a friend about a confidential informant. As a result, Mak became the subject
of an investigation into obstruction of justice. He requested that the City pay his
legal fees related to the investigation. When the City declined to indemnify, Mak
sued. We affirm the trial court's dismissal of the suit.
FACTS
As a police officer for the City of Kent, Johannes Mak met Mark Bryant,
the owner of a local automobile repair shop, while investigating alarm calls at the
business. Over the course of about ten years, the two men became friends. In
No. 75827-6-1/2
the fall of 2012, the U.S. Drug Enforcement Agency began investigating Bryant
for illegally selling guns and controlled substances. Mak heard from the Kent
Assistant Chief of Police that Bryant's niece had told investigating authorities that
Bryant had two Kent police officers in his pocket.
Mak related the niece's accusation to Bryant. According to Mak, he
confronted Bryant at his auto shop while he was on duty, arriving in his squad car
and in uniform. Angry that Bryant's niece had maligned his character, Mak
inadvertently revealed that the niece was talking with law enforcement. He did
not write a report on the interaction. Mak admitted that this confrontation was
personal, even though he was on duty when it occurred.
But according to Bryant and the federal investigators, the men either saw
each other or talked on the phone while at a gun show. At that time, Mak
revealed that Bryant was being investigated, and that Bryant's niece was
cooperating with authorities as a confidential informant. Mak admits calling
Bryant at a gun show while he was off duty, recovering from back surgery at
home. He concedes that their conversation had nothing to do with the course and
scope of his employment, but denies revealing information related to the
investigation. Bryant was later arrested on drug trafficking and firearms charges.
In September 2013, the U.S. Attorney's Office notified Mak that he was
the target of a Grand Jury investigation for obstruction of justice. The U.S.
Attorney's Office alleged that Mak alerted Bryant to the investigation and
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identified his niece as a confidential informant. Mak was placed on administrative
leave.
After learning he was under investigation, Mak hired an attorney and
requested that the City pay his legal fees. He made this request pursuant to the
Kent City Code(KCC)2.96.010 indemnifying employees for their legal fees
under certain circumstances. The City denied the request.
Mak later negotiated a settlement with the U.S. Attorney's Office, which
agreed to not pursue charges, and Mak retired from law enforcement. Mak then
filed suit against the City to recover his attorney fees. The trial court granted
summary judgment to the City, dismissing the lawsuit. Mak appeals.
DISCUSSION
Mak argues that the Kent City Code requires that the City indemnify him
for his legal fees. He contends that because he learned the identity of the
confidential informant in his role as a police officer, and was on duty when he
confronted Bryant, the City must pay for his legal defense. The City argues that
under the plain language of the Kent City Code, Mak is not entitled to
indemnification because tipping off Bryant was not related to his employment.
We review a trial court's grant of summary judgment de novo and engage
in the same inquiry as the trial court. Wash. Fed. v. Harvey, 182 Wash. 2d 335, 339,
340 P.3d 846(2015). Summary judgment is proper where, viewing the facts in
the light most favorable to the nonmoving party, "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
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any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." CR 56(c).
The meaning of a statute is a question of law that we also review de novo.
Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4(2002).
When possible, we derive the legislative intent of a statute solely from the plain
language enacted by the legislature, considering the text of the provision in
question, the context of the statute in which the provision is found, related
provisions, and the statutory scheme as a whole. State v. Evans, 177 Wash. 2d 186,
192, 298 P.3d 724(2013)(citing State v. Ervin, 169 Wash. 2d 815, 820, 239 P.3d
354 (2010)). A municipal ordinance, like the one at issue here, is construed
according to these rules of statutory construction. World Wide Video, Inc. v. City
of Tukwila, 117 Wash. 2d 382, 392, 816 P.2d 18(1991).
The Kent City Code contains a procedure whereby employees may be
indemnified for legal fees under certain circumstances:
The city council shall in all cases provide competent legal counsel
of its choosing, to defend any elected official, officer or employee of
the city, or the member of any city board or commission who is a
party, or is threatened to be made a party to any threatened,
pending or contemplated action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that
such person is or was an elected official or officer or employee of
the city, or member of any city board or commission. The city shall
pay or indemnify such elected official, officer or employee, or
member of any city board or commission as against all expenses,
fees,judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding, except as otherwise provided in this chapter.
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KCC 2.96.010(emphasis added). The indemnification ordinance requires that the
legal action be related to City employment.
Viewing the evidence in the light most favorable to Mak, he became the
subject of investigation because he told Bryant that his niece had reported that
he had two Kent officers in his back pocket. Mak acknowledged that his on duty
confrontation with Bryant was of a personal nature, there was no official reason
for it, and that he did not memorialize it with a report. Similarly, his phone
conversation with Bryant occurred while Mak was at home, off duty while
recuperating from surgery, and did not involve official police business. Thus,
although Mak acquired this information as a police officer, he did not share it with
Bryant by reason of the fact that he was a police officer.
Mak argues that he is entitled to indemnification because he was on duty
when he confronted Bryant. But the plain language of the ordinance is not that
expansive. It indemnifies for an investigation initiated by reason of the fact that
the person is an employee, not for any activity taking place while the employee is
at work. In addition, under this interpretation of the statute, any and every action
by an officer while on duty would require indemnification. As Mak conceded to
the trial court, his interpretation would indemnify a police officer who robbed a
convenience store while on duty.
This kind of absurd result was rejected in Sanders v. State, 166 Wash. 2d
164, 168, 207 P.3d 1245 (2009). In Sanders, a Supreme Court Justice went on
an official visit to a Special Commitment Center during which he engaged in
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unethical conversations with inmates. Under a different statute than the one at
issue here, he sought assistance for his defense against allegations of ethical
violations. Although the statute in that case did not expressly limit its application
to official acts, the court held that applying the statute "without an official acts
limitation would lead to a result the legislature obviously did not intend—requiring
the attorney general to represent a judge before administrative agencies in all
matters, both official and private." Sanders, 166 Wash. 2d at 171-72. In so holding,
the court concluded that the alleged ethical violations were not official actions
even though they occurred during an official visit. Id. at 172. Similarly here, being
on duty does not convert an officer's every action to one done by reason of the
fact that he is a police officer.1
Under the plain language of the Kent ordinance, Mak is not entitled to
indemnification because his actions were not taken by reason of the fact that he
was a police officer. The trial court did not err by dismissing the suit.
Affirmed.
e
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WE CONCUR:
I Mak argues that unlike in Sanders, he was never charged or convicted of any
wrongdoing. But Sanders analyzes whether the underlying conduct, charged or not, is an official
action. Id. at 164. Thus, Sanders is instructive even where the accused was not charged or
. convicted of wrongdoing.
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