Opinion
No. 32962-0-II.
May 9, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-01609-3, Chris Wickham, J., entered March 7, 2005.
Counsel for Appellant(s), Sandra Harris (Appearing Pro Se), 3425 South 176th St No. 102, Sea-Tac, WA 98188.
Counsel for Respondent(s), David W. La Raus, Attorney at Law, 7141 Cleanwater Dr SW, PO Box 40145, Olympia, WA 98504-0145.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton and Bridgewater, JJ.
Sandra Harris appeals her dismissal from employment at the Department of Corrections for secretly tape recording a meeting with her supervisors, playing the recording for two co-workers, and then attempting to influence an investigation into her conduct. We affirm.
FACTS
Harris's Employment at the DOC
Sandra Harris (Harris) was a Community Corrections Officer II (CCO II) at the Department of Corrections (DOC), Lakewood Minimum Management Unit, and had been employed at the DOC for six years. As a CCO II, Harris worked with offenders and had many responsibilities. She supervised court-imposed conditions, determined offenders' risk levels, and notified the court, parole board, and hearing officers when an offender violated his sentence. At the DOC, Harris was a member of the Washington Federation of State Employees and covered by a Collective Bargaining Agreement (CBA) that implemented DOC Policy Directive 857-005 outlining the DOC process for reporting and investigating alleged employee misconduct. Under the policy, the DOC used Employee Conduct Reports (ECR) to investigate and report misconduct.
Even before her dismissal from the DOC, Harris had a history of personnel issues. On January 31, 2001, she was disciplined for demonstrating inappropriate behavior toward an offender, the offender's attorney, and an administrative assistant. After this incident, Harris agreed to a professional mental health evaluation and took a six-month leave without pay to pursue counseling. The DOC paid for her counseling.
The First ECR
On October 30, 2002, Harris met with Regional Administrator Jim Blodgett, Human Resource Manager Mary Gallagher, and Union Representative Sherri-Ann Burke to discuss her returning to work at the DOC. Blodgett explained his behavioral expectations for Harris during the meeting and in a letter on October 31.
At the end of the meeting, Harris blew up, or 'unloaded' on Blodgett. Administrative Record (AR) at 171. She said that Blodgett 'was out to get her, and she was very rude, very loud, very inappropriate.' AR at 171. Blodgett was surprised and disappointed at her outburst because it was the type of inappropriate behavior that Harris had demonstrated throughout her employment at the DOC.
During this same meeting, Harris concealed a tape-recording device in her pocket and recorded the meeting. She did not inform Blodgett, Gallagher, or Burke she was recording the meeting or get their permission to do so. After the meeting, Harris went out to lunch with two other DOC employees, Jane Golson and Theresa Paulson, and played the tape.
On November 12, 2002, the DOC management learned of Harris's behavior on October 30, initiated an ECR, and began investigating into her conduct.
The Second ECR
During the investigation, Harris admitted that she recorded the October 30 meeting and that she played the tape for Golson and Paulson. However, she only admitted to playing the tape for three minutes, not the entire lunch. Harris denied any wrongdoing.
After speaking with the investigator, Harris called Golson. According to the report:
[Harris] called [Golson] and told [Golson] to tell [the investigator] that the tape was only played for 3 minutes rather than 45. Ms. Golson related that she told Ms. Harris that she would not lie. Further, Ms. Harris asked her to speak with Theresa [Paulson] prior to our scheduled meeting so that she would report the same information.
Ex. 2 to AR at 078. Golson verified the accuracy of this statement in her testimony to the Personnel Appeals Board (PAB). Golson also testified that Harris never said to her, 'I want you to lie.' AR at 195.
On December 18, 2002, the DOC initiated a second ECR against Harris for attempting to deceive an investigation, for attempting to persuade Golson to provide incorrect information, and for attempting to influence the investigation.
Harris's Dismissal
The disciplinary investigator submitted her reports to DOC management on December 2 and December 23, 2002. On February 7, 2003, appointing authority Mark Kuzca reviewed the ECRs and determined that Harris had demonstrated misconduct. On March 7, 2003, Kuzca met with Harris to give her an opportunity to provide additional information on her actions. He described her behavior during the meeting as rude and unprofessional. She left the meeting abruptly and slammed the door behind her.
Kuzca determined Harris violated DOC Policy Directive 800.010 and that termination was the only appropriate discipline due to her pattern of inappropriate behavior.
DOC policy 800.010 states that employees must adhere to a 'Code of Ethics and statement of values that exemplify standards and principles that serve to guide individual behavior' and refers to the Employee Handbook for explanation. The Handbook further explains that 'high moral and ethical standards among correctional employees are essential . . . [including] unfailing honesty, respect for dignity and individuality of human beings, and a commitment to professional and compassionate service.' Ex. 4 to AR at 110. At the beginning of her employment, on October 16, 1996, Harris signed to acknowledge that she had read and reviewed the DOC policies and Handbook.
Kuzca dismissed Harris from employment effective May 14, 2003.
Procedural Facts
Harris filed an appeal of her termination to the PAB. The PAB affirmed and found that Harris had committed misconduct that she was on notice that further instances of misconduct could lead to discipline, and that she should have had a heightened awareness of the need to behave in a professional and respectful manner. Harris appealed to the superior court. The trial court held oral argument and affirmed the PAB's decision.
ANALYSIS I. Standard of Review under the Administrative Procedures Act
We review a PAB decision de novo, using the same standards of review as the superior court. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 476, 989 P.2d 1214 (1999). We review an administrative agency decision based on the record made at the administrative hearing and not the record at the superior court. Buechel v. Dep't of Ecology, 125 Wn.2d 196, 202, 884 P.2d 910 (1994). A Board decision is improper if it (1) is founded on or contains an error of law, (2) is contrary to the evidence, (3) is materially affected by unlawful procedure, (4) is based on a constitutional violation, or (5) is arbitrary and capricious. RCW 41.64.130(1)(a)-(e).
II. Reviewing the Findings of Fact Attempting to Influence
Harris does not assign error to any particular finding of fact, but she seems to dispute the finding that she attempted to influence Golson to support Harris's version of how long the tape-recording was played. Harris contends that there is no evidence she attempted to influence Golson because she and Golson were friends and they were never advised they could not talk to each other.
The DOC counters that this court should affirm all findings of fact because Harris does not assign error to any specific finding as the Rules of Appellate Procedure (RAP) require. The DOC further explains that, even if Harris complied with the RAP, the evidence supports the PAB's findings.
A petitioner must give a separate assignment of error for each finding of fact she contends was improper and include reference to the finding by number. RAP 10.3(g). Pro se litigants are also expected to comply with the rule requiring citation to legal authority. State Farm Mut. Auto. Ins. Co. v. Avery, 114 Wn. App. 299, 310, 57 P.3d 300 (2002).
Generally, unchallenged factual findings are treated as verities on appeal and appellate review is limited to determining whether the factual findings support the legal conclusions. Fuller v. Dep't of Employment Sec., 52 Wn. App. 603, 606, 762 P.2d 367 (1998) (citing In re Santore, 28 Wn. App. 319, 323, 623 P.2d 702; McIntyre v. Fort Vancouver Plywood Co., 24 Wn. App. 120, 123, 600 P.2d 619 (1979)). However, RAP 1.2 permits liberal interpretation of this rule and appellate review has been granted where proper assignment of error is lacking but where the nature of the challenge is clear and set forth in the party's brief. Fuller, 52 Wn. App. at 605 (citing Green River Cmty. College Dist. 10 v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 431, 730 P.2d 653 (1986); Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 710, 592 P.2d 631 (1979)).
Although Harris does not specifically assign error to any finding, she does cite to finding of fact 2.19 in the argument section of her reply brief. We therefore will review her argument.
We review a factual challenge to a PAB decision only to determine if any competent, relevant, and substantive evidence exists, which if true, would, within the bounds of reason, directly or circumstantially support the challenged finding. Dedman, 98 Wn. App. at 477 (quoting Ballinger v. Dep't of Social Health Serv., 104 Wn.2d 323, 328, 705 P.2d 249 (1985)). Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth of a particular matter. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000) (citing Callecod v. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)).
Here, Golson credibly testified that Harris called her and told her to tell the investigator that the women only listened to the tape for three minutes when they actually listened to the tape for the entire lunch, which was 45 minutes. Harris also told Golson to talk with Paulson so she would also tell the investigator the tape was only played for three minutes. Golson's testimony and the investigative report is competent, relevant, substantive evidence to persuade a fair-minded person that Harris attempted to persuade Golson to tell the investigator inaccurate information and influence the investigation. We therefore affirm the PAB's finding.
III. Reviewing the Conclusions of Law
We review asserted errors of law de novo while giving substantial weight to an administrative agency's interpretation of its own rules and law authorizing agency action. Dedman, 98 Wn. App. at 477 (citing Sullivan v. Dep't of Transp., 71 Wn. App. 317, 321, 858 P.2d 283 (1993)). In other words, we give an agency's interpretation of its own rule great weight, but that interpretation remains subject to the court's independent review. Thomas v. Dep't of Social Health Serv., 58 Wn. App. 427, 432, 793 P.2d 466 (1990) (citing Weyerhaeuser Co. v. Dep't of Ecology, 86 Wn.2d 310, 315, 545 P.2d 5 (1976); Tenhar v. Dep't of Licensing, 54 An. App. 28, 32, 771 P.2d 770 (1989)). Appointing authorities may demote, suspend, reduce in salary, or dismiss a permanent employee for numerous activities including, 'Neglect of duty', 'Gross misconduct', and 'Willful violation of the published employing agency or department of personnel rules or regulations.' Former WAC 356-34-010 (1)(a), (h), (i) (1991).
A. Neglect of Duty, Gross Misconduct, Policy Violation
In its order, the PAB defined neglect of duty, gross misconduct, and willful violation of a policy:
4.4 Neglect of duty is established when it is shown that an employee has a duty to his or her employer and that he or she failed to act in a manner consistent with that duty. McCurdy v. Dep't of Social Health Services, PAB No. D86-119 (1987).
4.5 Gross misconduct is flagrant misbehavior which adversely affects the agency's ability to carry out its functions. Rainwater v. School for the Deaf, PAB No. D89-004 (1989). Flagrant misbehavior occurs when an employee evinces willful or wanton disregard of his/her employer's interest or standards of expected behavior. Harper v. WSU, PAB No. RULE-00-0040 (2002).
4.6 Willful violation of published employing agency or institution or Personnel Resources Board rules or regulations is established by facts showing the existence and publication of the rules or regulations, Appellant's knowledge of the rules or regulations, and failure to comply with the rules or regulations. Skaalheim v. Dep't of Social Health Services, PAB No. D93-053 (1994).
AR at 8-9.
Harris argues she had no duty to the DOC because she had not been at work for eight months and was not an employee. She further argues that her conduct did not rise to the level of gross misconduct because the DOC's interests were not harmed by her taping the meeting. Harris also argues she violated no specific policy, because there is no policy against tape-recording meetings. Harris would like to be reinstated to her position at the DOC.
The DOC argues that Harris was still an employee during her leave of absence and that the DOC paid all her medical bills during this time. The DOC also argues that Harris had a duty to be respectful and to treat her co-workers with dignity, respect, and professionalism, and that she was explicitly instructed of this duty both in writing and in the October 30 meeting.
The DOC also argues that Harris's secret recording constituted gross misconduct, displayed her complete disrespect for management, showed a pattern of bad judgment, and demonstrated her lack of trustworthiness. The DOC argues that, although there is no specific policy against tape recording meetings, under the DOC ethics policy, employees are to adhere to high moral and ethical standards. The DOC explains that it is impossible to specify each and every unethical behavior in the ethics policy.
The DOC has a specific policy regarding ethical standards. The record shows Harris had a history of policy violations and unprofessional conduct, even before secretly tape recording the meeting. Further, a CCOII has a special ethical duty in light of her contact with the public, offenders, and courts. Harris was on notice that her behavior was not appropriate. Since substantial weight is given to the PAB's interpretation of its own rules and law, we affirm Harris's dismissal.
B. Violation of the Collective Bargaining Agreement Regarding Timelines
Harris next argues that her dismissal was not valid because the DOC failed to follow necessary timelines in the CBA for disciplinary procedures. Specifically, she argues that the DOC violated the CBA by not issuing a finding of misconduct within 30 days of completing the investigation. The investigation of the first ECR was completed on December, 2, 2002, and the second ECR investigation was completed on December 23. On February 7, 2003 (well past the 30 day deadline), DOC management determined that discipline was necessary.
Article 12.2 of the CBA outlines the timelines for investigating employee misconduct. It states that the office head shall review and determine if misconduct occurred within 30 days. The DOC admits the 30 day deadline was not met but argues the violation is not grounds for invalidating Harris's dismissal because the violation did not prejudice Harris.
In Goodman v. Employment Sec. Dep't, PAB Case No. D89-067 (1993), the PAB reversed an employee's discipline because his employer violated the CBA and the violation prejudiced the employee. The PAB specifically noted that the CBA violation was not 'de minimis.' Goodman at 5. In Goodman, the PAB limited its finding to the particular facts, stating that their finding 'does not mean that any breach of the [collective bargaining] agreement would automatically invalidate discipline.' Goodman at 5. Furthermore, in Garner v. DOC, PAB No. 92-129 (1993), the PAB explained that, when determining if failure to comply with a disciplinary policy is cause to set aside disciplinary action, the PAB must consider (1) the intent of the policy violated, (2) the nature of the conduct on discipline is based, and (3) the prejudice the employee suffered.
Here, DOC management admits it violated the 30 day timeline, but it argues that Harris was not prejudiced by its violation. Harris states that she is a 'stickler' for deadlines and that management should have to abide by the timelines. AR at 232. However, Harris does not assert that she suffered any prejudice.
Because we give substantial weight to an administrative agency's interpretation of its rules and the law authorizing agency action, we affirm the PAB's finding that no prejudice existed and that Harris's dismissal cannot be invalidated due to the DOC's violation. Dedman, 98 Wn. App. at 477.
IV. Arbitrary and Capricious
A PAB decision is arbitrary and capricious if it is willful, unreasonable, and made without consideration and in disregard of facts or circumstances. Dedman, 98 Wn. App. at 477 (citing Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn.2d 9, 29, 978 P.2d 481 (1999)). However, where there is room for two opinions, an agency action is not arbitrary and capricious even if one may believe an erroneous conclusion has been reached. Pierce County Sheriff v. Civil Serv. Comm'n of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648 (1983) (citing State v. Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980)).
Harris argues that the PAB decision was arbitrary and capricious because the PAB 'automatically sides with management' and is biased in favor of DOC management. Reply Br. of Appellant at 1. The PAB relied on extensive factual findings in coming to its conclusion that dismissal was the appropriate discipline for Harris. Harris had already been disciplined for two incidents of rude behavior and was on notice that further instances of misconduct could lead to further discipline. She held a position at the DOC that required trust and independent judgment, and she demonstrated a repeated pattern of divisive and untrustworthy conduct. The PAB's decision is neither unreasonable nor made without consideration of facts or circumstances and was not arbitrary or capricious.
V. Due Process and Protected Speech
In her introduction, Harris argues that her right to due process was violated but she does not cite to the record or to any supporting legal authority. Public employees who can be discharged only for cause have a constitutionally protected property interest in their employment and cannot be fired without due process. Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S. Ct. 1807, 1811, 138 L. Ed. 2d 120 (1997) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972)). The process due can be provided by a pre-termination opportunity to respond, coupled with a post-termination administrative procedure. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 547-48, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). On March 7, 2003, Harris was given an opportunity to respond and present additional information to DOC management before she was disciplined and dismissed from employment. Harris also had a full hearing before the PAB on April 13, 2004. Furthermore, RAP 10.3(a)(5) requires litigants to cite to legal authority and reference the relevant parts of the record in the argument section, which Harris does not do. We are not persuaded by Harris's due process argument.
In her reply brief, Harris argues that her criticism of DOC during the October 30 meeting was 'protected speech'. Reply brief at 9. She cites to a federal Sixth Circuit case, NLRP v. Honda of Am. Mfg., 73 Fed. Appx. 810, 174 L.R.R.M. 2992 (Sixth Cir. 2003). It is not clear how this case relates to Harris because it deals with the National Labor Relations Act and employees' rights to organize and form labor unions. The October 30 meeting did not concern Harris's ability to form, join, or be a member of a labor union. This court dismisses Harris's protected speech argument because she does not cite to relevant legal authority under RAP 10.3(a)(5).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.