Opinion
No. 35919-7-II.
May 13, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-00148-5, Paula Casey, J., entered February 5, 2007.
Affirmed in part and reversed in part by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
The Department of Corrections (DOC) appeals the trial court's decision vacating the Personnel Appeals Board's (PAB) order upholding Cyndi Walters's dismissal as director of the DOC's Staff Resource Center (SRC). The trial court vacated the PAB's order on the grounds that PAB member, Busse Nutley, violated the appearance of fairness doctrine and Canon 3(D) and (E) of the Code of Judicial Conduct (CJC). Walters argues that if this court holds that there is no appearance of fairness violation and that the trial court erred when it vacated the PAB order on those grounds, the PAB erred when it affirmed her dismissal for violating confidentiality and neglect of duty. Because Walters did not preserve the appearance of fairness issue for appeal, we reach the merits of the PAB's order. We reverse the trial court's order vacating the PAB's order terminating Walters's employment as director of the SRC for violation of the appearance of fairness doctrine. And we also hold that because substantial evidence supports the decision to terminate Walters's employment and we reinstate the PAB's order affirming Walters's termination.
FACTS
Factual Background
A. Walters's Dismissal
From 1998 until her dismissal, Walters served as the Statewide Director of the SRC. Walters had helped develop the pioneering SRC programs and drafted DOC policies on counseling client privacy and the protection of confidential information.
The SRC provides DOC corrections staff with a place to anonymously debrief and consult with counselors about stresses on and off the job that may interfere with work. In order to encourage DOC staff to use the program, DOC assured them and their labor unions that participation in the program would not be used against them in any way. In order to maintain employee privacy, the program's policy directive required that SRC employees maintain the confidentiality of staff access and involvement in the program, including protecting the identities of employees participating in the program. Walters was integral in drafting and developing all policies associated with the program, including the policy that "[a]ll communication relating to staff counseling, intervention, and consulting services with the [SRC] shall be confidential unless otherwise specified by law and/or department policy directive(s)." 1 Clerk's Papers (CP) at 16. Walters was responsible for overseeing, recruiting, hiring, directing, and managing high-level clinical professionals in five regions of the state. As program director, DOC expected Walters to maintain the highest standards of personal, professional, and ethical conduct.
On February 10, 2003, Mary Sutliff, an information technology coordinator, went to Page 3 Walters's office because Walters was having trouble with her telephone and other office equipment. Shortly after Sutliff arrived, Walters initiated a discussion about the recent arrest of DOC Secretary Joseph Lehman Sr.'s son. According to Sutliff, Walters told her that she had just returned from DOC headquarters after responding to the crisis over the arrest. Sutliff testified that Walters then showed her a newspaper article about the arrest, discussed how she had been assisting various individuals in coping with the crisis, named the managers whom she had counseled, and described how they were reacting to the crisis. Walters also remarked that Lehman was "in `hiding'" to avoid discussing the issue. 1 CP at 19.
In January 2003, Lehman's adult son, Joseph Lehman Jr., was arrested for having sexual contact with his infant daughter. He subsequently pleaded guilty to first degree child rape.
Sutliff testified that, while the names "sounded familiar," she was not sufficiently familiar with individuals who worked at headquarters to recall the names. Administrative Record (AR) at 876. Sutliff also testified that she tried to "tune out" the names once she became uncomfortable with the conversation. AR at 890.
Walters denies that this conversation with Sutliff ever took place. Instead, Walters contends that Sutliff appeared distracted by the article on Walters's desk, so Walters asked her if she was aware of the "crisis," and Sutliff said she knew about the incident and some of the DOC staff thought that Lehman should resign. Walters also argues that she did not mention names of any administrators; instead, she claims that she told Sutliff that the emergency response managers, Jocelyn Hofe and Dan Pacholke, might call Sutliff on the main line if they were having difficulty reaching Walters because of her ongoing telephone issues. Walters suggests that Sutliff made up the incident to "get [back at] her" because she and her husband were more popular than Sutliff in high school. AR at 124. Walters graduated from high school in 1973; Walters's husband and Sutliff graduated in 1972. But the PAB believed Sutliff's version of events, and we do not review credibility determinations on appeal. In re Disciplinary Proceeding Against Kuvara, 97 Wn.2d 743, 747, 649 P.2d 834 (1982).
Following their conversation, Sutliff assumed that Walters had provided counseling services to the named administrators and Lehman, and that Walters had first-hand information about Lehman's reaction to the incident. Sutliff was not a confidential member of the SRC but, rather, provided only technical support to Walters. Sutliff knew that the work in the program was confidential and believed that Walters's discussion with her was inappropriate. Because of Walters's role at the SRC, Sutliff was "appalled" that Walters would discuss "something of this magnitude without [it] being warranted." Administrative Record (AR) at 81. Nine days after the conversation, Sutliff reported the discussion to her supervisor, Hayley Shepard, and DOC initiated an investigation.
The DOC investigation revealed that Walters believed that Lehman's son's arrest was an agency crisis, and she had responded to the DOC headquarters as the State Staff Counselor to offer her services. The investigation further revealed that, although Walters offered her services to Lehman, he declined, choosing instead to deal with the matter privately. Walters admitted that she did not meet with Lehman but told DOC investigator James Blodgett that she had met with secretaries and janitors. Walters denied naming any administrators in her conversation with Sutliff or stating that Lehman was "in hiding." Walters also expressed concern that Shepard had coerced Sutliff into making the statement and stated she believed that the supervisors were conspiring against her. Blodgett interviewed witnesses by telephone and ultimately concluded that Walters had made the statements in question to Sutliff.
Marjorie Littrell, Walters's supervisor until March 2003, issued Walters an employee conduct report, in which she found that Walters's conversation with Sutliff violated "[P]olicy 870.800 by sharing information regarding specific individuals [Walters] worked with in an official capacity, or information about staff [she was] aware of from [her] role as the State Director." AR at 95.
Policy 870.800 states, "All communication relating to staff counseling, intervention, and consulting services with the [SRC] shall be confidential unless otherwise specified by law and/or department policy directive(s)." AR at 160.
The appointing authority, Assistant Deputy Secretary Anne Fiala, determined that Walters's statements to Sutliff violated the agency's trust and expectations of her as the director of the SRC and the program's policy directive that ensured confidentiality. Specifically, Fiala stated:
To have violated the confidentiality of any staff member, much less that involving [Lehman] not only constitutes neglect of duty, but is appalling and egregious at best. Additionally, your comments about [Lehman] "hiding out" were inappropriate, indiscreet, and petty gossip beneath someone of your position within this Agency.
AR at 293.
In addition, Fiala concluded that Walters's conduct and the history of correction in her personnel file had irreparably damaged Walters's credibility as a professional who could be trusted to manage a program deemed vital to staff and the agency. Deputy Secretary Eldon Vail supported Fiala's decision. Both Fiala and Vail concluded that, regardless of whether Walters was truthful about having provided counseling services to Lehman and other administrators, she had destroyed her credibility. Fiala and Vail believed that, as the director of the SRC, Walters's comments to Sutliff undermined the program's integrity. As a result, Fiala and Vail concluded that dismissal was the appropriate sanction.
Walters argues that DOC made her the target of "concocted" disciplinary actions for "petty issues" because she complained about "the abusive conduct of a male subordinate and serial litigant." Br. of Resp't at 6, 43. For the first time on appeal, Walters challenges the veracity of these reprimands, claiming they were in violation of the Washington Uniform Healthcare Information Act, Title 70 RCW, as well as various statutes regarding confidential counseling information. But these prior disciplinary actions were not the subject of the PAB hearing. Furthermore, there is no evidence in the record regarding the alleged abusive conduct nor is there any evidence in the record to suggest that the reprimands were without merit.
In October 2003, DOC dismissed Walters from her position, citing the comments she had made to Sutliff about her activities as the State Staff Counselor following the highly-publicized arrest of Lehman's son.
B. The PAB Hearing
Walters appealed her dismissal to the PAB. PAB member Nutley presided over the hearing. Gerald L. Morgen, Vice-Chair, was not present at the hearing. He listened to the recorded proceedings, reviewed the file and exhibits, and participated in the PAB's findings of fact, conclusions of law, and order. After a five-day hearing, the PAB concluded that "[u]nder the totality of the proven facts and circumstances, [DOC] has proven that dismissal is the appropriate disciplinary sanction, and the appeal should be denied." 1 CP at 23.
The PAB went on to find that when Walters went to DOC headquarters following the publicized arrest of Lehman's son, she went in her counseling capacity and subsequently implied to other DOC staff that she would be offering counseling services to Lehman and administrative staff. The PAB also found that Sutliff's testimony at the hearing and throughout the investigative process regarding Walters's disclosures to her was consistent and credible. The PAB found Sutliff had no motive to be untruthful about her discussion with Walters. In addition, the PAB noted discrepancies in Walters's version of events during the disciplinary process, and it found that the evidence did not substantiate her theory that her supervisor and others were conspiring against her.
Walters testified that she denied insinuating to any DOC staff that she had met with Lehman regarding his son's arrest or discussing his reaction to the incident. But in addition to Sutliff's testimony, both Tom Foley, a staff counselor, and Hofe, an emergency response manager, testified that Walters reported that she had spent time with Lehman and other staff regarding the incident and that he was "taking it pretty hard." AR at 1298.
When the PAB affirmed Walters's dismissal, it reasoned that Walters had a definite understanding of the agency policy governing confidentiality in the Staff Counseling Program because she was the program director and had a key role in developing the program and writing Page 7 the policy. In addition, the PAB acknowledged that, while Lehman's son's arrest was highly publicized, Walters's discussion with Sutliff was "highly inappropriate and unethical" even though she did not disclose any specific information that Lehman had related during a counseling session because
the policy clearly states that "all communication relating to staff counseling, intervention, and consulting services shall be confidential." . . . Despite the policy, [Walters] gave DOC employees the impression she went to headquarters to perform counseling services and then proceeded to discuss the situation and specific names of individuals with [Sutliff], which was contrary to the intent of the policy.
1 CP at 23.
When it assessed the appropriate level of discipline, the PAB considered the totality of the credible evidence, Walters's position of responsibility and authority within the DOC, and her history of corrective action. Specifically, the PAB found that an individual in Walters's position Page 8 "must be held to a higher standard and must be a credible and trustworthy resource for DOC employees" and, because her "actions harmed her credibility, damaged her effectiveness as Statewide Director, and undermined the credibility of the Staff Counseling Program," dismissal was appropriate. 1 CP at 23.
Walters had the following history of corrective action:
(1) In June 2002, Walters was the subject of a Whistleblower Complaint investigated by the State Auditor's Office, which found that she had committed misconduct by creating the appearance of using her position for personal gain or using state resources for personal benefit.
(2) In September 2002, Littrell, Walters's supervisor until March 2003, issued Walters a memo of concern regarding issues of travel authorization and mileage reimbursement. Specifically, the memo addressed Walters's use of her personal vehicle instead of the available state vehicle. Also, Littrell reminded Walters that she expected her to provide sufficient explanation for travel reimbursement requests because Walters refused to provide any information, citing confidentiality.
(3) In May 2003, Walters received a letter of reprimand for failing to comply with her supervisor's directives to produce emails related to a public disclosure request that she had known about for over a year. Lynne DeLano, Walters's supervisor after March 2003, reprimanded Walters because Walters asserted confidentiality privilege on documents that she could not identify. DeLano considered Walters's action to be "deliberately evasive and dishonest" and concluded that her actions demonstrated a "lack of integrity." AR at 6.
(4) In June 2003, Walters received a letter of expectations from DeLano in an effort to improve Walters's "communication, accountability, and credibility." AR at 6. Specifically, DeLano asked Walters to provide her with an updated work schedule and calendar for accountability purposes. DeLano also addressed Walters's numerous claims of protection for communications due to confidentiality. DeLano reminded Walters that she was serving as Statewide Director of the Staff Counseling Program and not a staff counselor. DeLano also noted that Walters's credibility was at risk due to her inappropriate use of confidentiality statutes.
(5) In August 2003, Walters received a letter of reprimand from DeLano for her refusal to respond to her supervisor's request for information concerning work activities. Specifically, DeLano reprimanded Walters for failing to disclose to DeLano any details of her work activities in order to allow DeLano to "ensure accountability and performance, as well as to verify [Walters's] claims for excessive hours of work." AR at 7. DeLano's request was limited to names of persons Walters met with, never the content of the discussions. But Walters repeatedly denied DeLano's request, citing confidentiality. DeLano felt that Walters was "unable to separate the [SRC] program from [Walters's] individual role and responsibilities as an employee of the [DOC]." AR at 7.
C. Lehman's Testimony
Walters called Lehman to testify on her behalf. After PAB member Nutley swore Lehman in as a witness, the following exchange took place:
MS. NUTLEY: Thank you. I'd like to acknowledge for the record that Mr. Lehman and I spent time together in the Governor's Cabinet.
MR. LEHMAN: Um-hum.
MS. NUTLEY: So, you know me, Busse Nutley. To my left is Teresa Parsons, who is Special Assistant to the Board. You've been asked today to testify on behalf of the Respondent and you will be asked questions, oh, by the Appellant. I'm sorry. I was in this groove. We've been doing the State's case.
MR. LEHMAN: Right.
MS. NUTLEY: By the Appellant. And Mr. Rose will ask you questions first, followed by questions from Assistant Attorney General Valerie Petrie. I may have questions when they're finished. Mr. Rose, your witness.
MR. ROSE: Yes. Thank you. Good afternoon, Secretary Lehman.
AR at 1058.
After Nutley acknowledged that she had worked with Lehman and that they knew each other, Walters's counsel did not object nor did he ask any follow-up questions about the nature of the relationship between Nutley and Lehman.
Lehman's testimony was limited. He testified that he had served as DOC Secretary since 1997, and he further testified regarding his son's arrest and the subsequent media report in early February 2003. Lehman also testified to Walters's performance strengths and letters of reference he had signed on her behalf. Lastly, Lehman testified that he did not learn of Walters's dismissal until after the fact, and he did not know the specifics of her disciplinary action until shortly before he was to testify at the PAB hearing. The PAB findings of fact and conclusions of law do not reference Lehman's testimony. At the end of DOC's cross-examination, the following exchange took place:
MS. NUTLEY: Thank you, Mr. Lehman, for your time. We appreciate that. And . . .
MR. LEHMAN: Good to see you again.
MS. NUTLEY: [H]opefully, we'll see each other under less formal circumstances.
MR. ROSE: That was efficient.
MS. PETRIE: Yes.
AR at 1068. Again, Walters's attorney did not object nor ask any questions about the nature or extent of Nutley and Lehman's relationship. Procedural History
Walters filed her disciplinary appeal to the PAB on October 20, 2003. The PAB held Walters's hearing on September 9, 10, 15, 16, and October 14, 2004. The PAB issued its order upholding Walters's dismissal and denying her appeal on December 23, 2004. On January 20, 2005, Walters petitioned for judicial review of the PAB order to Thurston County Superior Court under former RCW 41.64.130 (1981).
On June 23, 2006, Walters filed a motion to vacate the PAB order. In this motion, for the first time, she asserted that the tribunal was biased and that Nutley had failed to disclose a relationship with a party. In the motion to vacate, Walters argued that the PAB had denied her a fair hearing and due process because Nutley did not disclose the details of her prior professional relationship with Lehman.
Walters premised her motion to vacate on Nutley's failure to disclose her participation with Lehman as a member of the "Housing for High Risk Offenders: A Partnership for Community Safety" (the Partnership). 4 CP at 625. Walters argued that Nutley's failure created an appearance of partiality because "[t]he negative publicity of the Lehman arrest had a direct impact upon the PAB Member Nutley's own credentials as well as Secretary Lehman's." 4 CP at 609. In addition, Walters contended that "[i]t is also inconceivable that Nutley did not have personal knowledge of the firestorm of publicity about the arrest of Lehman's son since it impacted her own career and former `Partner.'" 4 CP at 609.
The purpose of the Partnership was to address the lack of affordable and stable housing for high-risk sex offenders and dangerous mentally ill offenders. The Partnership was a collaboration of 25 individuals from state, federal, and local agencies, law enforcement, courts, victim's advocates, family advocates, private for-profit and non-profit treatment providers, supporting services providers, and faith-based organizations. It also included 8 to 12 individuals who participated as experts on specialized topics. The Partnership met four times between April 1, 2002 and June 30, 2002.
Nutley served on the Partnership in 2002, based on her cabinet position as the Director of the Office of Community Development, within the Department of Community, Trade and Economic Development. Lehman served on the Partnership based on his cabinet position as Secretary of the DOC. Other state agencies, including the Department of Veteran's Affairs and the Department of Social and Health Services had representatives on the Partnership. Neither Lehman nor Nutley served as chairs of the Partnership. The Partnership issued its final report in July 2002, and Nutley was appointed to the PAB on April 1, 2003.
DOC moved to strike Walters's motion to vacate, arguing that Walters waived any objection to Nutley when Walters's counsel failed to object. In addition, DOC argued that Walters failed to provide specific evidence that Nutley's past connection to Lehman implicated the appearance of fairness doctrine. The trial court found that Nutley's failure to disclose the extent of her past professional relationship with Lehman required vacation of the PAB order under both the appearance of fairness doctrine and the CJC. But the trial court did not enter an order vacating the PAB's order; instead, it informed the parties that it was hesitant to do so because it intended to overturn the PAB on the merits, and it ordered the parties to complete alternative dispute resolution within 30 days.
After mediation failed, the trial court found that Nutley had a duty to disclose to the parties her participation with Lehman in the Partnership and it was not necessary for Walters to show that Nutley's relationship with Lehman actually influenced her decision. Despite the trial court's decision to vacate the PAB order on procedural grounds, the trial court heard argument on the merits. The trial court then issued an "advisory opinion" in which it determined that the PAB erred when it found that Walters violated the confidentiality provision of the DOC's SCR policy because "[w]ithout meeting with Secretary Layman [sic] there was no confidential information to disclose and there could be no violation of the policy." 5 CP at 974.
On February 5, 2007, the trial court granted Walters's motion to vacate the PAB order, with an appended advisory ruling on the merits for remand to the PAB. DOC timely appealed.
When a trial court reviews an administrative agency that entered findings of fact and conclusions of law, the trial court need not also enter findings of fact and conclusions of law. Adams v. Dep't of Soc. Health Servs., 38 Wn. App. 13, 15, 683 P.2d 1133 (1984). We treat the findings and conclusions of the trial court as superfluous and determine de novo whether the administrative agency's order was erroneous as a matter of law. Adams, 38 Wn. App. at 15. Because the trial court vacated the PAB order on procedural grounds, its advisory ruling is superfluous and we review the PAB order de novo. See Adams, 38 Wn. App. at 15.
Effective July 1, 2006, the legislature abolished the PAB and replaced it with the Personnel Resources Board (PRB). The PRB assumed jurisdiction for civil services appeals of state employees not represented under a collective bargaining agreement. Laws of 2002, ch. 354, §§ 213(3), 233(1).
ANALYSIS
Motion to Vacate
DOC contends that the trial court erred when it granted Walters's motion to vacate the PAB decision because Walters (1) failed to preserve for appeal a challenge to Nutley's qualification to hear her case, and (2) failed to support her claim with evidence of actual or potential bias. But the record shows that Nutley did disclose her prior professional relationship with Lehman and Walters failed to timely object and, thus, we will not reach the issue of Nutley's qualifications to hear Walters's case.
A. Preservation For Appeal
Nutley disclosed her prior professional relationship on the Governor's Cabinet with Lehman when Walters called him as her witness and Walters did not object or inquire further into the nature of their relationship. By agreeing to continue with the hearing without objection, Walters waived her right to raise this issue on appeal.
If a litigant proceeds to trial or a hearing despite knowing of a reason for potential disqualification of the judge, she waives the objection and cannot challenge the court's qualification on appeal. Buckley v. Snapper Power Equip. Co., 61 Wn. App. 932, 939, 813 P.2d 125 (citing Brauhn v. Brauhn, 10 Wn. App. 592, 597-98, 518 P.2d 1089 (1974)), review denied, 118 Wn.2d 1002 (1991); see also In re Marriage of Duffy, 78 Wn. App. 579, 582-83, 897 P.2d 1279 (1995) (wife's failure to object to judge's prior working relationship with husband's counsel waives claim on appeal), review denied, 128 Wn.2d 1017 (1996). A party must timely object whether the party seeks disqualification of the judge on either statutory or due process grounds. Brauhn, 10 Wn. App. at 597-98. The objection is considered waived because otherwise a litigant, notwithstanding her knowledge of an allegedly disqualifying factor, can choose to speculate on the successful outcome of the case and then attack a contrary judgment on grounds of bias. Brauhn, 10 Wn. App. at 597-98. This is particularly true where, as here, the witness testified on behalf of the party later claiming to have been prejudiced.
In Hill v. Department of Labor Industries, 90 Wn.2d 276, 580 P.2d 636 (1978), an industrial insurance claimant failed to object during the Board of Industrial Insurance Appeals hearing to the participation of the board's chairman. 90 Wn.2d at 276. Although the chairman had been a supervisor of industrial insurance at the Department of Labor and Industries (L I) at the time L I closed the claimant's claim, the claimant did not object to his participation in the hearing. Hill, 90 Wn.2d at 278. Plaintiff's counsel was aware that the board's chairman had served as an industrial insurance supervisor at the time L I closed the claimant's claim. Hill, 90 Wn.2d at 278. Our Supreme Court held that the plaintiff waived the right to raise the question before the superior court when he failed to object at the administrative hearing. Hill, 90 Wn.2d at 280.
Here, Nutley disclosed that she knew Lehman and that they had served together in the Governor's Cabinet and later she commented to Lehman that she hoped to encounter him under "less formal circumstances." See AR at 1068. Not only did Walters fail to object, Walters's attorney did not ask either Nutley or Lehman — Walters's own witness — any questions regarding the extent or nature of the prior professional relationship between Nutley and Lehman. Like Hill, Walters's failure to object at any point in the administrative process waived her right to raise the issue before the trial court. See 90 Wn.2d at 280.
But even if we were to hold that Walters properly preserved this issue for appeal, Nutley's prior professional relationship with Lehman does not violate the appearance of fairness doctrine, the CJC, or Walters's right to due process. The prior professional relationship between Member Nutley and Secretary Lehman was several years removed and only tangentially related to Walters's dismissal, and there is no objective evidence that Member Nutley was actually or potentially biased. In addition, the CJC does not apply to administrative proceedings; the CJC specifically defines "judge" as
those officers of a judicial system who perform judicial functions and who are subject to the Code of Judicial Conduct, such as justices of the supreme court, judges of the court of appeals, judges of the superior court, judges of any court organized under Titles 3, 35, or 35A RCW, judges pro tempore, court commissioners, and magistrates. The term includes full-time and part-time judges and judges who have been or have not been admitted to the practice of law in Washington.
Although it may be prudent for administrative law judges (ALJ) to strive to conform their conduct to many provisions of the CJC, ALJs operate under the executive branch and are not included in the CJC's definition of judges. Lastly, Walters offers no argument to support her assertion that Member Nutley's disclosure violated her right to due process and this court will not consider inadequately briefed arguments. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)).
B. Findings of Fact
Walters argues that substantial evidence does not support the PAB's finding that she told Sutliff she had been in Olympia to provide counseling services, subsequently mentioned several names of administrators, pointed to an article about Lehman's son's arrest, and then stated that Lehman was "in hiding." We disagree.
We review PAB findings of fact for substantial evidence. Skelly v. Criminal Justice Training Comm'n, 135 Wn. App. 340, 344, 143 P.3d 871 (2006) (citing Ballinger v. Dep't of Soc. Health Servs., 104 Wn.2d 323, 328, 705 P.2d 249 (1985)), review denied, 161 Wn.2d 1010 (2007). We presume that PAB findings are correct and accord them deference. State ex. rel. Hood v. Wash. State Pers. Bd., 82 Wn.2d 396, 400, 511 P.2d 52 (1973), overruled in part by Pierce County Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 658 P.2d 648 (1983). We do not review credibility determinations. In re Disciplinary Proceeding Against Kuvara, 97 Wn.2d 743, 747, 649 P.2d 834 (1982).
Here, Walters assigns error only to the PAB's finding of fact 2.10, which states:
Ms. Sutliff testified [Walters] engaged her in a conversation regarding Mr. Lehman's son, told her she was in Olympia to assist in the "crisis" and mentioned the names of managers at Headquarters. She testified [Walters] also remarked that Mr. Lehman was in "hiding" in order to avoid discussing the issue. Ms. Sutliff also testified that based on [Walters's] comments to her, she believed the purpose for [Walters's] presence at Headquarters was to perform counseling services to staff.
1 CP at 19. Substantial evidence supports this finding. First, Sutliff's sworn testimony supports this version of events. In addition, the PAB found that Sutliff's testimony remained consistent and credible both before the PAB and throughout the investigative process, and it found no motive for Sutliff to be untruthful. In contrast, it found Walters's testimony to be inconsistent and focused on unrelated issues. And, although Walters vehemently denies that the conversation took place as Sutliff describes it, we do not review credibility determinations. See Kuvara, 97 Wn.2d at 747. Substantial credible evidence supports the PAB's finding of fact 2.10.
C. Violation of DOC Policy 870.800
Walters argues that the PAB erred when it affirmed her dismissal because the DOC policy only preserves the confidentiality of communications acquired during a counseling session. Specifically, Walters argues that, because she did not meet with Lehman or any other DOC administrators, there was no specific communication with the SRC and, thus, she could not have violated Policy 870.800. We agree with DOC that the confidentiality policy protects all communication relating to staff counseling, including a potential client's refusal to engage in counseling that a counselor believes is necessary. Here, the PAB found that Walters divulged the names of individuals to whom she offered counseling services who had declined her offer and that she stated her belief that the department was in crisis. Accordingly, she violated the policy.
Walters argues that she "believes" that the burden of proof should be "clear and convincing evidence." Br. of Resp't at 30 n. 6. Walters offers no argument or citation to authority to support her argument. Our Supreme Court recently held that, under the Administrative Procedure Act (APA), "[t]he minimum constitutional standard of proof in a professional disciplinary hearing is clear and convincing evidence," not a preponderance of the evidence. Ongom v. Dep't of Health, 159 Wn.2d 132, 142, 148 P.3d 1029 (2006), cert. denied, 127 S.Ct. 2115 (2007); see also Nguyen v. Dep't of Health, 144 Wn.2d 516, 534, 29 P.3d 689 (2001), cert. denied, 535 U.S. 904 (2002). But the APA does not apply to PAB hearings because the PAB statute, former RCW 41.64.130, contains its own standard. Plus, although former RCW 41.64.130 sets out a preponderance of the evidence test, this court applies a substantial evidence test to the PAB's findings. See Ballinger, 104 Wn.2d at 328.
The policy states that "[ a]ll communication relating to staff counseling, intervention, and consulting services with the [SRC] shall be confidential unless otherwise specified by law and/or department policy directive(s)." 1 CP at 41 (emphasis added).
First, Walters argues that any discussion between her and Sutliff was "legally and ethically permissible" because Sutliff was her administrative aide. Br. of Resp't at 35. But Sutliff was not Walters's aide or assigned clerical staff who necessarily would be privy to confidential information. Littrell's secretary and administrative assistant provided Walters's clerical support. Sutliff provided only technical support for Walters, e.g., assisting Walters to correct problems with her office equipment. Both Fiala and Sutliff testified that Sutliff's duties were limited to providing clerical support for community correction staff, not Walters. Fiala further testified that "there would have been no reason for [Sutliff] to need to know any of that [confidential] information." AR at 1192.
Next, Walters urges us to rearrange the elements of the policy and read it to protect all "communication with the SRC relating to [staff] counseling." Br. of Resp't at 33. Under Walters's interpretation, she could not have violated the policy because she did not obtain or reveal any privileged or confidential information. We disagree.
Grammatically, the phrase "relating to" means all communication "connected" to, or "associated" with, the SRC. See Webster's II New College Dictionary 935 (2d ed. 1995). Thus, the policy protects not only confidential communications occurring during a counseling session but also all communications that identify a person or anything about specific issues regarding that person's contact with the SRC, including communications that identify an individual to whom counseling services were offered and the reason why those services were offered.
Here, testimony at the PAB, including Walters's own testimony, supports DOC's interpretation of the policy; Walters testified that it would be a breach of confidentiality if she revealed "[s]pecific names of people that [she] had seen in a therapeutic type of relationship" to anyone outside the program. AR at 1380. Had Walters actually met with DOC administrators and then subsequently revealed their names, or met with Lehman and revealed both his name and that he was "in hiding," Walters would have admittedly violated the policy. The only difference here is that the named administrators and Lehman rebuffed Walters's offer of counseling services; but the perceived need, the offer of services, the names of those to whom services are offered, and the fact of the rejection of the offer are all communications relating to staff counseling.
The confidentiality policy does not require that there be a counseling relationship; its scope also includes the names of those individuals to whom counseling services were offered and rejected because this is information relating to counseling that falls within the purview of confidential information the policy addresses. Divulging this information is particularly damaging; it reflects poorly on those named individuals rejecting assistance because it suggests that — in Walters's professional opinion — these individuals were in crisis and needed assistance and that they remain in crisis because they refused her help. By revealing the names of individuals to whom she offered, but who refused, counseling services, Walters violated Policy 870.800.
D. Neglect of Duty
We note that, even if Walters's conduct did not violate Policy 870.800, it still constitutes a neglect of her duties. Walters's conduct irreparably damaged her credibility and undermined the effectiveness of the program by giving the impression that she gossiped and revealed names of individuals she claimed to have counseled.
Neglect of duty occurs when an employee has a duty to his or her employer and fails to act in a manner consistent with that duty. McCurdy v. Dep't of Social Health Servs., PAB No. D86-119, at 4 (1987). Walters was a Washington Management Services (WMS) manager and the highest ranking member of the SRC. Her WMS job description required that she have "[s]ufficient maturity and judgment to operate independently" and the ability to "[m]aintain the highest standards of personal/professional and ethical conduct." AR at 375, 378.
Although the PAB did not make a specific finding regarding "neglect of duty," it did find that Walters "had a duty and responsibility to maintain confidentiality as required by [DOC's] policy" and "must be held to a higher standard and must be a credible and trustworthy resource for DOC employees." AR at 12. The PAB went on to find that Walters's actions were "highly inappropriate and unethical" and harmed her credibility, damaged her effectiveness as Statewide Director, and undermined the credibility of the SRC. AR at 12.
Here, Walters's credibility, as the program's director, like the credibility of counselors, was critical to the program's success. If DOC staff did not believe that the counselors were trustworthy, they would not use the program. Walters's decision to volunteer her services as a counselor and then reveal to a person outside the SRC the names of the individuals to whom she offered services as well as the reason why she offered her services was highly inappropriate, unprofessional, and unethical by her own standards. Furthermore, Walters put the credibility of the SRC at risk by discussing names of individuals to whom she offered counseling services and appearing to discuss confidential information regarding Lehman and disparagingly characterizing his conduct as being "in hiding." Because Walters damaged her credibility when she revealed sensitive information, she failed to "[m]aintain the highest standards of personal/professional and ethical conduct" and neglected her duties as director of the SRC. AR at 378. Attorney Fees
Walters asks us to award her attorney fees, arguing that the DOC's appeal is "frivolous" and "taken for the purposes of spite and delay." Br. of Resp't at 48. An appeal is frivolous "if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there is no reasonable possibility of reversal." Delany v. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980)), review denied, 131 Wn.2d 1026 (1997). DOC's appeal was not frivolous, and Walters is not entitled to attorney fees.
We reverse the trial court's order vacating the PAB's order terminating Walters's employment as director of the SRC for violation of the appearance of fairness doctrine. And we hold that substantial evidence supports the decision to terminate Walters's employment and reinstate the PAB's order affirming Walters's termination.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.