King Cty.
v.
King Cty. Pers. Bd.

Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division OneNov 10, 2008
147 Wn. App. 1022 (Wash. Ct. App. 2008)

No. 61406-1-I.

November 10, 2008.

Appeal from a judgment of the Superior Court for King County, No. 07-2-18145-8, John P. Erlick, J., entered February 11, 2008.


Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Dwyer, JJ.


UNPUBLISHED OPINION.


If a career service employee prevails in an appeal of a grievance to the King County Personnel Board (the Personnel Board), King County Code (KCC) 3.12.290(C) mandates that the Personnel Board award reasonable attorney fees to the employee. However, KCC 3.12.290(C) also provides that an employee can be considered a prevailing party only if King County (the County) makes a written settlement offer 30 days before the Personnel Board hearing and the award exceeds the County's offer. In this case, there is no dispute that the County did not make a written settlement offer under KCC 3.12.290(C). Nonetheless, the County relies on a literal interpretation of the prevailing party provision in KCC 3.12.290(C) to assert that the Personnel Board erred in awarding attorney fees to career service employees who successfully argued an examination violated the requirements of the King County Code. Alternatively, the County contends the Personnel Board abused its discretion in determining the amount of the attorney fee award. We conclude that the County's literal interpretation of KCC 3.12.290(C) is contrary to the express intent of the King County Council to both liberally construe the King County Code and to encourage the settlement of grievances and results in unlikely, absurd, and strained consequences. Consistent with the express intent of the King County Council and other analogous fee-shifting rules and statutes, if the County does not make a written settlement offer 30 days before the Personnel Board hearing and the employee prevails on the merits of a claim in the appeal, the employee is entitled to an award of attorney fees under KCC 3.12.290(C). We affirm the decision of the Personnel Board to award fees and conclude the Personnel Board did not abuse its discretion in determining the amount of attorney fees.

The facts are not in dispute. David Richardson is a sergeant with the King County Department of Adult and Juvenile Detention (DAJD). In October 2004, DAJD posted an announcement for a captain position. In November, a number of qualified candidates, including Richardson, were given the opportunity to take a written examination for promotion to captain. The King County Personnel Guidelines governed the promotion process, including the requirement for the written examination. On December 20, DAJD notified Richardson and several others that they were not selected to advance to the next step. On December 23, Richardson filed a grievance contesting the written examination on the grounds that it violated the Personnel Guidelines. Fourteen other sergeants who took the examination later joined Richardson's grievance (collectively Richardson). In the grievance, Richardson sought to invalidate the test and require DAJD to develop an objective test that complies with the Personnel Guidelines. Richardson also requested attorney fees and costs.

At step two of the grievance process, DAJD concluded that the written examination did not violate the Personnel Guidelines and denied the grievance. At the conclusion of the step three grievance hearing, the hearing officer concluded there was "insufficient information . . . to issue a substantive decision on the merits of the grievance." The hearing officer emphasized that the Personnel Board "strongly advises parties to a grievance to attempt settlement" and suggested the parties pursue settlement. When the parties were unable to resolve the grievance, the hearing officer issued a decision denying the grievance.

Richardson then filed an appeal with the Personnel Board. Richardson contested the validity of the written examination and challenged the examination on a number of grounds, including the failure to provide mandatory forms for purposes of challenging questions during the examination. The Personnel Guidelines provide in pertinent part:

An applicant who wishes to challenge a question or item on a written examination must call it to the attention of the test monitor in writing on forms provided for that purpose. The applicant must do this before leaving the examination.

KC Personnel Guideline 8.2.

At the beginning of the September 8 hearing before the Personnel Board, the County admitted that it did not have forms available to challenge questions during the written examination, but maintained that there was no violation of the Personnel Guidelines because "[n]o employee came forward with any objection or challenges to the test as it was administered."

At the conclusion of Richardson's presentation, the County moved to dismiss the grievance. The Personnel Board indicated it would be inclined to grant the motion but only if the parties entered "into an agreement to not use this test in the future, cease using the registry that was generated from the test and that all future hiring will strictly comply with the Personnel Guidelines." The County agreed to the conditions set forth by the Personnel Board but Richardson decided to proceed with the hearing.

In a written decision, the Personnel Board concluded that Richardson had established the County violated the requirements of the King County Personnel Guidelines by failing to provide the mandatory forms to challenge the written examination. The Personnel Board also rejected the County's position that Richardson was barred from challenging the violation based on his failure to raise objections at the time of the written examination. However, the Personnel Board concluded that the "procedural defect was not sufficient to undermine the validity of the test." The Personnel Board concluded that Richardson was the prevailing party "with respect to the County's failure to provide required forms to complain about testing questions or items," and ruled that he was entitled to reasonable attorney fees on that claim. Richardson submitted an itemized statement for attorney fees and costs of $9,343.

The County filed a motion to reconsider the decision to award attorney fees, arguing that Richardson was not a prevailing party under KCC 3.12.290(C). In the "Order Awarding Attorney Fees," the Personnel Board rejected the County's interpretation and concluded that KCC 3.12.290(C) only prevents the award of attorney fees if a written settlement offer from the County is in effect for 30 days before the hearing. Because the County did not make a written settlement offer, the Personnel Board ruled that "under the circumstances presented appellants are appropriately considered prevailing parties entitled to attorneys fees under King County Code 3.12.290(C)." But the Personnel Board agreed with the County that some of the requested fees did not relate to the claim Richardson prevailed on and reduced the attorney fees award to $5,277.

The County filed a writ of certiorari, seeking review of the Personnel Board's decision to award attorney fees to Richardson under KCC 3.12.290(C). The superior court agreed with the Personnel Board's interpretation of KCC 3.12.290(C) and denied the writ. The court rejected the County's interpretation of KCC 3.12.290(C) as strained or unlikely because it was contrary to the express policy of encouraging the settlement of grievances. The superior court also noted that under the County's interpretation, "[a]bsent a settlement offer from the County, a prevailing employee would never be entitled to attorney fees. Thus, under King County's interpretation, a settlement offer, in exclusive control of the County, is the sine qua non of an award of fees."

On appeal, the County relies on a literal interpretation of the language in KCC 3.12.290(C) to argue that the Personnel Board erred in awarding attorney fees to Richardson.

When reviewing an administrative decision on appeal, we review the administrative record to determine whether the agency decision was "arbitrary and capricious, or contrary to law." D.W. Close Co., Inc. v. Wash. State Dep't of Labor Indus., 143 Wn. App. 118, 125, 177 P.3d 143 (2008); King County v. Carter, 21 Wn. App. 681, 687, 586 P.2d 904 (1978). We review questions of statutory interpretation de novo but "accord substantial weight to the agency interpretation" of the regulations and laws the agency is responsible for administering. Everett Concrete Products, Inc. v. Dep't of Labor Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988); RCW 7.16.120(3). We review issues of fact to determine whether they are supported by substantial evidence and view the evidence in the light most favorable to the nonmoving party. Development Services of America, Inc. v. City of Seattle, 138 Wn.2d 107, 115, 979 P.2d 387 (1999).

The County contends that the Personnel Board's decision to award Richardson attorney fees violates the plain language of KCC 3.12.290(C). Richardson and the Personnel Board assert that the County's interpretation is inconsistent with the mandate to award attorney fees, the requirement to avoid strict construction and liberally construe the Code, and the strong policy to settle grievances.

KCC 3.12.290(C) provides:

The personnel board or the court shall award a career service employee reasonable attorney's fees incurred in any appeal in which the employee is the prevailing party, provided, that the employee shall be considered the prevailing party only where the county has a written settlement offer in effect thirty calendar days prior to the hearing of the personnel board or court and the award obtained by the employee exceeds the terms of that settlement offer; provided further, that such reasonable attorney's fees shall not exceed the actual fees paid by the employee.

Our primary objective in interpreting KCC 3.12.290(C) is to ascertain and give effect to the intent of the King County Council. See American Continental Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004). The meaning of a statute may be discerned from the statute and related statutory provisions which disclose the intent of the legislative body. Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). We must also harmonize related provisions to effectuate a consistent statutory scheme. Bauer v. Employment Sec. Dep't, 126 Wn. App. 468, 473, 108 P.3d 1240 (2005). Accordingly, we interpret the text as a whole, looking to the general object and express purpose of the legislation. Higgins v. King County, 89 Wn. App. 335, 339, 948 P.2d 879 (1997).

When the plain language is unambiguous, we will construe the provision as written. Bravo v. Dolsen Companies, 125 Wn.2d 745, 752, 888 P.2d 147 (1995). However, in undertaking a plain language analysis, the court must avoid a construction that results in "unlikely, absurd, or strained consequences," because we presume that the legislative body did not intend an absurd result. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003); State, Dep't of Licensing v. Cannon, 147 Wn.2d 41, 57, 50 P.3d 627 (2002); Campbell Gwinn, 146 Wn.2d at 9-10. Our supreme court has created a narrow exception that allows the court to construe a statute to avoid an unlikely, absurd, or strained result when a literal reading undermines the legislative intent and purpose of the statute. State v. Taylor, 97 Wn.2d 724, 728, 730, 649 P.2d 633 (1982). Where the legislative intent is clear, we will construe the statute to correct obvious errors if doing so is "imperative" to make the statute rational. Taylor, 97 Wn.2d at 729. In resolving a question of statutory construction, courts will adopt the interpretation which best advances the legislative purpose. Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990).

The County asserts that under the plain language of KCC 3.12.290(C), an employee can be a prevailing party only if the County decides to make a written settlement offer to resolve the grievance 30 days before the Personnel Board hearing. Here, there is no dispute that the County did not make a written settlement offer 30 days before the Personnel Board hearing. Nonetheless, the County asserts that under KCC 3.12.290(C), Richardson is not entitled to attorney fees.

The County's interpretation is contrary to the express intent of the requirement to liberally construe KCC 3.12.290(C) and the King County Council's mandate to resolve grievances, and results in unlikely, absurd, and strained consequences.

In KCC 1.02.080, the King County Council expressly states that "[t]he King County Code must be liberally construed and may not be limited by a rule of strict construction." The code provision immediately before KCC 3.12.290, KCC 3.12.280, sets forth the King County Council's mandate to resolve grievances before proceeding to the Personnel Board. KCC 3.12.280(A) provides:

The county recognizes the importance and desirability of settling grievances of career service employees promptly and fairly in the interest of continued good employee relations and morale. To accomplish this, every effort will be made to settle grievances at the lowest possible level of supervision.

Consistent with that intent, KCC 3.12.290(C) states that "[t]he personnel board or the court shall award a career service employee reasonable attorney's fees incurred in any appeal in which the employee is the prevailing party. . . ." The King County Council's use of the word "shall" in KCC 3.12.290(C) imposes a mandatory duty. Roberts v. King County, 107 Wn. App. 806, 815, 27 P.3d 1265 (2001). However, KCC 3.12.290(C) also provides that an employee can be considered a prevailing party only when the County makes a written settlement offer 30 days before the hearing and the resulting award to the employees does not exceed the settlement offer, the employee is not entitled to attorney fees.

Under the County's interpretation of KCC 3.12.290(C), the result is that a career service employee can never be a prevailing party unless the County decides to make a settlement offer under KCC 3.12.290(C). The County's interpretation also results in the anomaly of giving the King County Executive the sole discretion to decide whether a career service employee can obtain attorney fees as a prevailing party. The County admits that KCC 3.12.290(C) is "an employee-friendly provision," and that a literal interpretation of the provision creates a disincentive for the County to ever make a settlement offer before the Personnel Board hearing. The County also concedes that the language of KCC 3.12.290(C) is "odd" when compared to analogous civil provisions such as CR 68 and RCW 4.84.270.

CR 68 provides in pertinent part:


[i]f within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and there upon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Under RCW 4.84.270:

[t]he defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280.

To avoid an unlikely, absurd, and strained result from a literal interpretation of KCC 3.12.290(C), we conclude that if the County does not make a written settlement offer 30 days before the Personnel Board hearing and the employee prevails on the merits of a claim, the Personnel Board has the authority to award attorney fees under

KCC 3.12.290(C).

Our interpretation of KCC 3.12.290(C) is also consistent with other fee-shifting rules and statutes that are intended to encourage settlements, provide certainty and avoid unintended results. Wallace v. Kuehner, 111 Wn. App. 809, 823, 46 P.3d 823 (2002); see, e.g., CR 68; RCW 4.84.270.

As an alternative argument, the County asserts that (1) because the Personnel Board did not invalidate the examination, Richardson is not entitled to attorney fees as the prevailing party and (2) the Personnel Board abused its discretion in determining the amount of fees.

Whether a party is a "prevailing party" is a mixed question of law and fact that we review under an error of law standard, giving substantial weight to the agency's view of the law. Kyle v. Williams, 139 Wn. App. 348, 356, 161 P.3d 1036 (2007), rev. denied, 163 Wn.2d 1028, 185 P.3d 1195 (2008); Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P.3d 930 (2006). A plaintiff is considered a "prevailing party" when relief on the merits of a claim "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 937 P.2d 154 (1997).

Here, the Personnel Board specifically found that the County violated Personnel Guidelines by failing to provide forms to challenge the examination. Despite the County's repeated assertion that Richardson should be barred from challenging the violation due to his failure to raise objections at the time of the written examination, the Personnel Board concluded that Richardson carried his burden of proving that the County violated the Personnel Guidelines.

The Board finds that the County did violate applicable Personnel Guidelines by failing to provide test site opportunities for making examination objections. King County Personnel Guidelines 8.2 specifies that:

An applicant who wishes to challenge a question or item on a written examination must call it to the attention of the test monitor in writing on forms provided for that purpose. The applicant must do this before leaving the examination. The test monitor will notify the Director, who will determine the validity of the challenge.

The County does not dispute the fact that forms for making written exam objections were not provided at the test site. We reject the County's curious position that appellants should be barred from challenging this defect due to their failure to raise objections with the test monitor. The County cannot very well take procedural advantage of applicants not having raised objections with the test monitor when it failed to provide the mandated forms on which such objections could be raised.

Personnel Guidelines unequivocally mandate that written forms must be provided at the examination to enable applicants to challenge any exam question or item. The County did not satisfy this basic requirement.

On this record, we conclude that the Personnel Board did not err by awarding Richardson attorney fees as the prevailing party with respect to DAJD's failure to provide the required forms at the examination.

The County also argues that the Personnel Board abused its discretion in determining the amount of fees to award Richardson because it did not segregate fees for unsuccessful claims.

The amount of a fee award is discretionary and we will overturn the award only if there is a manifest abuse of discretion. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987). An abuse of discretion occurs only when the decision is manifestly unreasonable or based on untenable grounds or reasons. Wick v. Clark County, 86 Wn. App. 376, 382, 936 P.2d 1201 (1997).

"If attorney fees are recoverable for only some of the party's claims, the award must properly reflect a segregation of the time spent on issues for which fees are authorized from time spent on other issues." Mayer v. City of Seattle, 102 Wn. App. 66, 79-80, 10 P.3d 408 (2000). However, if the claims are "so related that no reasonable segregation of successful and unsuccessful claims can be made," the Personnel Board need not segregate attorney fees. Hume v. American Disposal Co., 124 Wn.2d 656, 673, 880 P.2d 988 (1994).

Here, the Personnel Board requested a "detailed, itemized statement of reasonable and necessary fees incurred by the employees in their appeal of the test complaint form matter." After considering the County's objections to Richardson's fee statement, the Personnel Board issued a written decision. The Personnel Board determined that several of the items listed were not recoverable and significantly reduced the amount awarded. But the Personnel Board also found that some of the requested fees were inextricably intertwined with the other claims, and it would be "impractical and inconsequential in terms of the amount of the ultimate award" to segregate them. We conclude that there is substantial evidence to support the Personnel Board's decision to award Richardson attorney fees and costs of $5,277.

CONCLUSION

The Personnel Board did not err in awarding Richardson attorney fees as the prevailing party under KCC 3.12.290(C). Nor did the Personnel Board abuse its discretion in determining the amount of the award. Because KCC 3.12.290(C) provides that "the court shall award a career service employee reasonable attorney's fees incurred in any appeal in which the employee is the prevailing party," upon compliance with RAP 18.1, Richard son is entitled to attorney fees on appeal.