January 2, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-01697-1, Wm. Thomas McPhee, J., entered September 8, 2006.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Armstrong, J.
Arnold Melnikoff appeals the Washington Personnel Appeals Board's (PAB) decision upholding the Washington State Patrol's (WSP) termination of his employment as a forensic scientist 3. He argues that substantial evidence does not support the PAB's findings of fact and that the findings are arbitrary and capricious. He also contends that its conclusions of law are erroneous and that his termination violates WSP policies and rules. Finally, he argues that the WSP's termination procedures violated his due process rights. We affirm.
Melnikoff began his job as a forensic scientist 3 at the WSP in September 1989. A forensic scientist 3 performs complex analyses on physical evidence in criminal cases, interprets results, prepares written reports, and testifies in court as an expert witness. See Washington State Patrol, Forensic Career Opportunities, http://www.wa.gov/wsp/hrd/forensic.htm (last visited Dec. 3, 2007). While working for the WSP, he received satisfactory or above average job evaluations. From 1970 to 1989, Melnikoff established and was the manager of the Montana Criminalistics Laboratory (MCL). In 1975, he took a hair and fiber examination course from the Federal Bureau of Investigation (FBI) and, after a few years of practice, he began performing hair analysis for MCL.
Melnikoff testified as the State's hair analysis expert in State v. Bromgard while working at MCL and in State v. Kordonowy in 1990. See generally State v. Bromgard, 261 Mont. 291, 294, 862 P.2d 1140 (1993); State v. Kordonowy, 251 Mont. 44, 47-48, 823 P.2d 854 (1991). Kordonowy and Bromgard were convicted and their convictions were upheld on appeal, but they were later exonerated by deoxyribonucleic acid (DNA) evidence. See State v. Bromgard, 285 Mont. 170, 172, 948 P.2d 182 (1997); Bromgard, 261 Mont. at 295; Kordonowy, 251 Mont. at 45.
In 2002, Peter Neufield, co-director of the Innocence Project, complained about Melnikoff, alleging that he had engaged in scientific fraud while employed by the MCL based on his testimony in the Bromgard case. The WSP investigated these allegations as well as Melnikoff's Kordonowy testimony. Following its investigation and a Loudermill hearing, the WSP terminated Melnikoff's employment, which the PAB and the Thurston County Superior Court affirmed.
The Innocence Project is a legal clinic at the Benjamin N. Cardozo School of Law where law students handle case work with the supervision of attorneys and other staff. "The project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice." Innocence Project, About the Organization, http://www.innocenceproject.org/about/ (last visited Dec.3, 2007).
II. Montana Trial Testimony
A. State v. Bromgard
Melnikoff's Bromgard testimony formed the basis of the allegations of incompetence and misconduct that were reviewed by WSP investigators and the PAB. Thus, we briefly outline its relevant portions.
Melnikoff testified in Bromgard as MCL's trace evidence expert. He testified that the head and pubic hair found at the crime scene matched Bromgard's head and pubic hair. He reached his conclusion based on his case work and understanding about the chances of microscopically distinguishing Bromgard's hair from someone else's hair. From his experience in 700 cases involving head hair and in 500 cases involving pubic hair, he determined that there is "less than one chance in a hundred that two people's hair cannot be microscopically distinguished, either head or pubic hair," i.e., there is a 1 in 100 chance that the head hair found at the crime scene would match someone else's head hair and that there was a 1 in 100 chance that the pubic hair found at the crime scene would match someone's else's pubic hair. Administrative Record (AR) at 553.
Although, technically, the correct terminology is that the hair is microscopically indistinguishable, we use the term match for reader ease.
His experience was that in his "over 700 cases involving head hair," he had only "five or six cases where [he] could not distinguish the head hair between two individuals"; and that in his "close to 500 cases" involving pubic hair, there were "only three times pubic hair standards from two individuals submitted in the case could not be distinguished." AR at 552. Thus, he estimated that the probability was less than 1 in 100 that two people's hair would not match (5 or 6 in 700 = about 1 in 100; 3 in 500 = about 1 in 100).
Melnikoff also believed that finding both head and public hair on an object "are actually two mutually exclusive events because they come from different areas of the body, and their characteristics are not necessarily the same." AR at 553. Because he believed that these are two independent events, he used statistical concepts to testify that the two probabilities could be multiplied together. He thus derived the probability figure of a 1 in 10,000 chance that both the head and pubic hair found at the crime scene would match someone other than Bromgard.
On cross examination, the defense questioned him about whether a nationally recognized probability number existed for trace evidence relating to head and pubic hair found at a crime scene. Melnikoff replied that there was not, but a Canadian study existed that "was a lot more specific" than his case research and that "came out with one chance in 3,000," i.e., that there was a 1 in 3,000 chance that a random head hair would match the examined head hair. AR at 562. He also testified that the same chance applied to pubic hair.
B. State v. Kordonowy
Melnikoff performed hair analyses in Kordonowy while employed by the MCL, but he testified as an expert in the case while employed by the WSP in 1990. He testified that Kordonowy's head and pubic hair matched the hairs found at the crime scene. Melnikoff's testimony regarding the chances that the person who committed the crime was Kordonowy was similar to his Bromgard testimony, i.e., he testified that the likelihood that two hairs, head or pubic, would match another person's hairs was about 1 in 100. And again, he testified that because the hairs came from separate areas of the body, they were independent occurrences, so he multiplied these probabilities together, yielding an approximate 1 in 10,000 chance that someone's hairs, besides Kordonowy's, would match the hairs found at the crime scene. He again based his probability determination on his own case work, as well as conversations with other hair examiners, and the work of another forensic scientist whom he had hired from Georgia and who used the same statistic.
Melnikoff stated that he based the number 1 in 100 on "over seven hundred cases, approximately, in Montana, and [he] had seven or eight cases where by chance [he] came across individuals in the same case [that he] couldn't tell their hair apart." AR at 524.
The defense asked Melnikoff whether any other studies reported the same probabilities. He answered:
The only two papers that I know that have been published have been published by a hair examiner that works for the [Royal Canadian Mounted Police] in Edmonton, Alberta. His last name is Gaudett [sic]. I think his first name is Paul. And he wrote several articles where he looked at hair from a hundred people and then looked at the various variations in their hair and then compared individual hairs to see the probability of matching two hairs from two different people. It's a very complicated process, but he came out one chance in three thousand for head hair and about one chance in a thousand for pubic hair, and I think he's overblowing it. I think that's better than you can really do. So I just base it on my own experience, and I told you what that was.
AR at 529.
III. Termination of WSP Employment
Neufeld complained about Melnikoff because Bromgard, an Innocence Project client, had been exonerated by DNA evidence. In his written complaint, Neufeld suggested that Melnikoff "should be immediately removed from active case work and that an audit of his Washington State forensic work should be undertaken." AR at 419.
Neufeld supported his allegations with a blind peer review of Melnikoff's Bromgard testimony by Richard Bisbing of McCrone Associates, Inc., Harold Deadman of George Washington University, Max Houck of West Virginia University, Skip Palenik of Microtrace, and Walter Rowe of George Washington University. The WSP investigated the allegations and explored the ramifications of the investigation's conclusions on the WSP laboratory and Melnikoff's ability to testify as a reliable expert witness.
Melnikoff's name was supposed to be redacted from the transcripts the panel reviewed, but Max Houck of West Virginia University, one of the reviewers, stated in an interview with the WSP that Melnikoff's name had not been redacted from one of the transcripts.
The peer review panel did not write their formal findings, but signed a draft that Neufeld provided.
Detective Sergeant Kristene O'Shannon interviewed Neufeld, Rowe, Houck, Deadman, Bisbing, and Joseph Olsen, a labor and risk manager for the WSP. O'Shannon also interviewed Barry Gaudette, the Canadian forensic scientist that Melnikoff referred to in his previous trial testimony, after he reviewed Melnikoff's testimony in Bromgard and Kordonowy. In addition, O'Shannon attempted to contact Dr. Larry Howard, a forensic scientist that Melnikoff claimed used statistics in trial testimony, but she was unable to do so. She did not compel an interview with Melnikoff but told him that he could voluntarily appear for an interview as part of the WSP's Internal Affairs (IA) investigation, which he declined to do. Upon completion of O'Shannon's investigative report, Marty Knorr, the appointing authority, issued a predetermination letter indicating that the alleged violations were proven and that he was contemplating a dismissal sanction.
Gaudette had used known hair samples in a research project in which he concluded that, on average, the probability of dissimilar head hairs being found to be similar to a given source of head hair was 1 in 4500. And for pubic hairs, the average number was 1 in 800.
Melnikoff's name was redacted from the transcripts that Gaudette reviewed.
The appointing authority is authorized to take any warranted disciplinary action against an employee who is the subject of an IA investigation, in this case, Melnikoff.
Thereafter, the WSP conducted a Loudermill hearing that included Melnikoff, his personal attorney, and his union attorney. Following the Loudermill hearing, Knorr determined that the WSP should terminate Melnikoff because he "engaged in misconduct involving [his] testimony, case analysis, and statistical comparisons when [he] testified in Montana, while employed by the WSP, in January, 1990." AR at 264. Knorr concluded that Melnikoff's "inaccurate, incorrect, misleading and confused statements in the Kordonowy trial demonstrate[d] neglect of duty, unsatisfactory performance, incompetence, unbecoming conduct, gross misconduct and a violation of the code of ethics." AR at 266. In summary, he concluded that Melnikoff's Kordonowy testimony has "resulted in a complete lack of confidence in [him] as a forensic scientist and expert witness" and that termination was warranted. AR at 271.
IV. Melnikoff's Appeal
Melnikoff appealed the WSP's termination decision to the PAB. It held a three-day hearing to review the charges. Melnikoff was represented by counsel; the PAB heard from both the WSP's and Melnikoff's witnesses and admitted other evidence both parties offered. The PAB affirmed Melnikoff's termination.
Melnikoff appealed the PAB's ruling to the Thurston County Superior Court, which affirmed the PAB's decision. Melnikoff now appeals to us.
Melnikoff contends that the PAB erred when it entered findings of fact 5.1, 5.2, 5.3, and 5.4. Melnikoff also argues that the PAB erroneously entered conclusions of law 6.1, 6.7, and 6.9.
I. Standard of Review
Melnikoff was a permanent employee and could only be removed for cause, including neglect of duty, incompetence, gross misconduct, or a violation of WSP rules. Former WAC 356-05-245 (Supp. 1984-85); Former WAC 356-34-010 (1990). It is the WSP's burden before the PAB to prove that Melnikoff neglected his duty, was inefficient or incompetent, or committed gross misconduct. Former WAC 358-30-170 (Supp. 1996). If the PAB affirms the termination, the employee may appeal the decision on the basis that the order was:
Former WAC 356-05-245 defines a permanent employee as one "who has successfully completed a probationary period and has had no break in service."
Former WAC 356-34-010 provides:
(1) Appointing authorities may demote, suspend, reduce in salary, or dismiss a permanent employee under their jurisdiction for any of the following causes:
(a) Neglect of duty.
(f) Conviction of a crime involving moral turpitude.
(g) Malfeasance. (h) Gross misconduct. (i) Willful violation of the published employing agency or department of personnel rules or regulations.
Former WAC 358-30-170 (2005) provides: "At any hearing on appeal from a . . . dismissal the appointing authority shall have the burden of supporting the charges upon which the action was initiated. At any other hearing, the party filing the action shall have the burden of proof."
(a) Founded on or contained an error of law, which shall specifically include error in construction or application of any pertinent rules or regulations;
(b) Contrary to a preponderance of the evidence as disclosed by the entire record with respect to any specified finding or findings of fact;
(c) Materially affected by unlawful procedure;
(d) Based on violation of any constitutional provision; or
(e) Arbitrary or capricious.
Former RCW 41.64.130(1), repealed by Laws of 2002, ch. 354, section 404, governed appellate court review of the PAB decisions. Sullivan v. Dep't of Transp., 71 Wn. App. 317, 320-21, 858 P.2d 283 (1993). The repeal of former RCW 41.64.130 was effective on July 1, 2006. Laws of 2002, ch. 354, § 411(4). The PAB was abolished and its powers and duties were transferred to the Washington Personnel Resources Board. RCW 41.06.111(1). But the transfer of power did "not affect the validity of any act performed before July 1, 2006." RCW 41.06.111(5). Thus, this case was not affected because the actions of the PAB occurred before July 1, 2006.
"We review the PAB's decision de novo, but we use the same standards of review as did the superior court." Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 476, 989 P.2d 1214 (1999); see also Skelly v. Criminal Justice Training Comm'n, 135 Wn. App 340, 344, 143 P.3d 871 (2006), review denied, 161 Wn.2d 1010 (2007).
II. Challenge to Substantial Evidence to Support PAB's Findings of Fact
A. Standard of Review
On appeal, we presume the PAB findings of fact are correct and we do not review them de novo but, rather, apply a substantial evidence test similar to that used when we review a superior court's findings of fact. Ballinger v. Dep't of Soc. and Health Servs., 104 Wn.2d 323, 328, 705 P.2d 249 (1985); Gogerty v. Dep't of Insts., 71 Wn.2d 1, 8-9, 426 P.2d 476 (1967). As Gogerty states, the substantial evidence test is satisfied if there exists "any competent, relevant and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings." Gogerty, 71 Wn.2d at 8-9. The aggrieved party may overcome the presumption that the PAB's findings of fact are correct only if it appears
Even though former RCW 41.64.130(b) seemingly propounds a preponderance of the evidence test, we apply a substantial evidence test on review. Ballinger v. Dep't of Soc. and Health Services, 104 Wn.2d 323, 328, 705 P.2d 249 (1985); Gogerty v. Dep't of Insts., 71 Wn.2d 1, 8-9, 426 P.2d 476 (1967). Here, the PAB made its findings based on a preponderance of the evidence. We do not review those findings de novo, but rather we determine whether the PAB's findings were supported by substantial evidence. See Ballinger, 104 Wn.2d at 328; Gogerty, 71 Wn.2d at 8-9.
"[T]he administrative procedure act, does not apply per se to decisions of the Personnel Board since the Personnel Board statute, RCW 41.64.130, contains its own standard of review." Ballinger, 104 Wn.2d at 328. But we note that recently the Washington State Supreme Court held under the Administrative Procedure Act, "[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. Dept. of Health, 159 Wn.2d 132, 142, 148 P.3d 1029 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2115, 167 L. Ed. 2d 815 (2007); see also Nguyen v. Dep't of Health, 144 Wn.2d 516, 534, 29 P.3d 689 (2001). Here, neither party argues that the PAB should have applied the clear and convincing standard of proof so we do not address it. See Ang v. Martin, 154 Wn.2d 477, 486-87, 114 P.3d 637 (2005); RAP 10.3(a)(6), 10.3(g) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record: we will only review a claimed error included in an assignment of error or clearly disclosed in an associated issue).
from the record as a whole, that the quantum of competent and supportive evidence upon which the personnel board predicated a challenged finding or findings of fact was so meager and lacking in probative worth, and the opposing evidence so overwhelming, as to dictate the conclusion that the pertinent finding or findings did not rest upon any sound or significant evidentiary basis.
Gogerty, 71 Wn.2d at 8.
B. Finding of Fact 5.1
In finding of fact 5.1, the PAB concluded that a preponderance of the evidence shows that Melnikoff's Kordonowy testimony "demonstrated a lack of understanding of the science and statistics related to the field of hair analysis and probability calculations." AR at 26. Melnikoff argues that the record does not support this finding because the PAB did not acknowledge that there were differing opinions about the science of, and the use of statistics in, hair analysis in 1990.
Melnikoff's appellate briefs are extremely convoluted. Although he provides a standard of review section of the brief, he does not adequately apply that law to his arguments nor does he make separate arguments for each finding of fact. We have attempted to allocate his arguments to the proper finding of fact. And we address his arguments under the proper review standard.
Dr. Barry Logan, director of the WSP Forensic Laboratory Services Bureau, testified that he did not believe that the statistics Melnikoff provided in Kordonowy were acceptable in the field of hair analysis. Houck testified that he was taught that, and his review of the scientific literature about hair analysis showed that, statistics should not be used in hair comparisons for the purposes of establishing statistical significance in trial testimony. Because of hair's unique properties, those properties cannot be quantified and "are not amendable to statistical significance testing." AR at 756. Houck also believed that Gaudette thought it was inappropriate to testify that reliable probability statistics exist in the field of hair analysis.
In addition, Bisbing testified that, in 1977, the FBI taught that statistics should not be used in trial testimony. He also testified that he believed statistics should not be used in trial testimony because such statistics would mislead the jury, but some scientists use or have used statistics during trial testimony. Deadman, who taught approximately 50 courses on hair or fiber analysis from 1977 to 1987, testified that statistics were never taught to be used in testifying about whether the hairs of a particular person matched a particular known sample. Furthermore, when interviewed by the WSP, Gaudette stated that the way Melnikoff calculated the probabilities and the way that he used statistics in court were not acceptable practices in the field of hair examinations at the time of his testimony or now.
Because Gaudette passed away before the PAB hearing, the PAB relied on Gaudette's transcribed interview with O'Shannon and a letter that he sent to WSP Lieutenant Darrin Grondel. Melnikoff objected to its reliance on these documents, but the PAB overruled the objection and Melnikoff does not challenge the admissibility of the evidence on appeal.
"We give great weight to the hearing officer's evaluation of the credibility and veracity of witnesses." In re Disciplinary Proceeding against Marshall, 160 Wn.2d 317, 332, 157 P.3d 859 (2007). Here, although both the State and Melnikoff presented some conflicting evidence, it was not so overwhelming as to persuade us that substantial evidence does not support finding of fact 5.1. See Ballinger, 104 Wn.2d at 328-29. Relevant and competent evidence, if accepted as true, sufficiently supports the PAB's finding of fact 5.1. See Ballinger, 104 Wn.2d at 328.
C. Finding of Fact 5.2
Melnikoff next argues that substantial evidence does not support finding of fact 5.2 because: (1) the PAB did not acknowledge the differing opinions in the field of hair analysis in 1990; (2) his testimony in Kordonowy was consistent with the science of hair analysis at the time; and (3) his testimony was sufficient for a forensic scientist.
The PAB's finding of fact 5.2 states:
[Melnikoff's] testimony during the Kordonowy trial was not at the level expected of a forensic scientist providing expert level testimony. The preponderance of the credible evidence supports that [Melnikoff's] testimony regarding hair analysis was inconsistent with the scientific principles of hair analysis at that time and demonstrated a lack of fundamental understanding regarding human hair comparisons.
AR at 26.
Houck and Bisbing testified that the use of statistics in 1990 was not proper expert witness testimony. And Deadman testified that it was less common in the late 1980s for experts to use statistics when testifying about hair analysis and that the consensus was that experts should not use probability numbers when testifying. Gaudette told WSP investigators that, while a forensic scientist may cite peer reviewed figures in testimony, it is inappropriate "to directly apply those numbers to any given case without going in to [sic] [or] looking at factors in that particular case [that] might have made the evidence stronger than was the case." AR at 355.
Peer review relates to research that other experts in the same field read, study, and comment on, before it is published in a generally accepted journal in the field of study.
But the PAB also heard from Bisbing that, in the 1980s, he thought many people tried to use Gaudette's studies in trial testimony and that he assumed that it is still going on. And Dr. Larry Howard, one of Melnikoff's witnesses, testified that he used the 1 in 100 statistic when testifying in court. Furthermore, Michael Howard, a self-employed forensic scientist who was another Melnikoff witness, testified that he tried not to use statistics when testifying about hair analyses during the 1980s, but that a captain in the Oregon State Crime Laboratory used statistics in hair analysis testimony during the early to mid-1970s.
We have already held that substantial evidence supports PAB's finding of fact 5.1 that Melnikoff's testimony in Kordonowy demonstrated a lack of understanding of the science and statistics in the field of hair analysis and probability calculations. With regard to finding of fact 5.2, the PAB heard evidence that, although from time to time statistics were used in testimony about hair analysis, Melnikoff's testimony in Kordonowy was not consistent with the science of hair analysis in 1990. Because an expert is expected to testify concerning accepted practices in the scientific field, not occasional practices, we conclude that substantial evidence supports the PAB's finding of fact 5.2.
D. Finding of Fact 5.3
Melnikoff contends that substantial evidences does not support finding of fact 5.3 because Dr. Larry Howard testified that it was appropriate to multiply the probability of head and pubic hairs found at the crime scene matching another individual's hairs as independent variables. Finding of fact 5.3 states:
[Melnikoff] demonstrated his incompetence when, without any scientific basis, he concluded that head and pubic hairs are independent of each other. He then erroneously multiplied the individual probabilities together, reaching the incorrect statistical conclusion that there was a "less than 1 in 10,000 chance" that some other individual would have both head hair and pubic hair which matched Kordonowy's.
AR at 26 (citation omitted).
Contrary to Melnikoff's contention, Dr. Howard testified that he did not believe that Melnikoff should have multiplied the probabilities relating to head and pubic hair together to derive the 1 in 10,000 probability because finding them together does not constitute independent events. But he did opine that if a person considered the events independent, the probability numbers could be multiplied together: "I saw Gaudette . . . in the same person . . . multiply? them as independent variables. . . . Well, yes — it, you know, that could happen if . . . you consider the . . . head and [pubic] hair? . . . microscopic appearance as unrelated." AR at 920 (emphasis added).
Melnikoff testified that in Kardonowy, a Gaudette study formed the basis of his belief that it was proper to multiply the probability of a head hair matching someone else's head hair (1 in 100), by the probability of a pubic hair matching someone else's pubic hair (1 in 100), resulting in a 1 in 10,000 chance that another person's head and pubic hair would match hairs found at the crime scene. Melnikoff relied on a 1973 article, co-authored by Gaudette: Gaudette, B.D. Keeping, E.D., An Attempt at Determining Probabilities in Human Scalp Hair Comparison, 19 Journal of Forensic Sciences 3 (1974). The paper attempted to answer the question frequently asked at trial: "What are the chances that [the hair found at a crime scene] could have originated from someone else?" AR at 605. The paper provided "a first estimate of the probabilities of hairs from different sources being similar" and expressed hope that the study would stimulate similar work. AR at 605. In summary, the article stated:
It is estimated that if one human scalp hair found at the scene of a crime is indistinguishable from at least one of a group of about nine dissimilar hairs from a given source, the probability that it could have originated from another source is very small, about 1 in 4500. If, instead of one hair, n mutually dissimilar human scalp hairs are found to be indistinguishable from those of a given source, this probability is then estimated to be (1/4500)n, which is negligible for n = 3 or more.
AR at 611. Because Gaudette did not "put any limitations in this particular [paper] about multiplying these numbers together," Melnikoff deduced that he could multiply his two probability numbers together. AR at 991.
We do not opine about whether Melnikoff's deduction from Gaudette's study was proper.
Michael Howard testified that, although he did not disagree that there could be a 1 in 10,000 chance that both head and pubic hair would match another individual, he did not agree with Melnikoff's methodology to derive the probability number because he did not think Melnikoff should have multiplied the two probabilities together. And no witness agreed with Melnikoff that finding both head and pubic hairs at a crime scene were independent events that justified multiplying their probabilities of occurrence together. Gaudette stated that the two events were not independent and that multiplying the two probabilities together was "unjustified." AR at 357.
Here, the only evidence supporting Melnikoff's methodology is his own testimony and Dr. Howard's testimony that if you assumed that finding head and pubic hair were independent events (which Dr. Howard did not), one would multiply their probabilities together. We hold that competent, relevant, and substantive evidence, if accepted as true, supports PAB's finding of fact 5.3 and, therefore, substantial evidence supports it. See Ballinger, 104 Wn.2d at 328.
E. Finding of Fact 5.4
Melnikoff argues that substantial evidence does not support finding of fact 5.4 because his testimony was consistent with Gaudette's research and Bisbing testified that Gaudette provided statistical comparisons when testifying in hair analysis cases and wrote articles about the use of statistics in hair analysis cases. PAB's finding of fact 5.4 states:
[Melnikoff's] testimony during the Kordonowy trial was supposed to provide the court with accurate scientific information and his opinions as an expert; however, the evidence supports his inability to interpret and correctly cite Dr. Gaudette's studies and distinguish between the number of cases he analyzed versus the number of samples he examined.
AR at 27.
Melnikoff admitted during his PAB testimony that he misquoted Gaudette's study. Gaudette confirmed this in his interview with, and letter to, the WSP. And Bisbing testified that Melnikoff did not properly cite Gaudette's research and that, although he had once cited Gaudette's research during trial testimony when he felt compelled to provide a statistical number, he believed it was improper for Melnikoff to have directly applied Gaudette's statistics to the facts of his cases in Montana.
Bisbing also testified that there is a difference between the number of cases and number of hair comparisons. Gaudette stated that the number of comparisons performed, not the number of cases, was important. But Melnikoff testified that the word cases is very nebulous in the scientific community and that it could actually mean the number of comparisons he did.
Gaudette also told WSP investigators that Melnikoff's forensic hair evidence in Kordonowy and Bromgard was unreliable based on the number of times Melnikoff was able to distinguish known hair samples from different people within the same case. His testimony was flawed because: (1) Melnikoff took the "figures off the top of his head," which provided inconsistent trial testimony about the number of times he could not distinguish between two individual's hairs; (2) he used estimates of the number of cases he had examined as the basis of his statistics; and (3) he did not keep an accurate tally of those cases. AR at 352. Furthermore, Gaudette said that his research studies were done "mainly to give people a feeling for the value of hair evidence . . . in a general sense" and that it is inappropriate to directly apply numbers from any peer reviewed article to any given case without looking at the unique facts of each case. AR at 357.
We hold that relevant and competent evidence supports the PAB's finding of fact 5.4. See Ballinger, 104 Wn.2d at 328. Although conflicting evidence was also introduced, it does not persuade us that finding of fact 5.4 does not have a substantial evidentiary basis. See Ballinger, 104 Wn.2d at 328-29.
III. Arbitrary and Capricious Findings
Melnikoff also appeals the PAB's decision on the basis that its findings of fact were arbitrary and capricious because the findings relied solely on Neufeld's peer review and did not give consideration to other scientific opinions. We may review the evidence to determine whether the PAB's decision was arbitrary and capricious, but our review is "very narrow, however, and one who seeks to demonstrate that action is arbitrary and capricious must carry a heavy burden." Pierce County Sheriff v. Civil Serv. Comm'n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983); see also Dep't of Corrections v. Pers. Appeals Bd., 92 Wn. App. 484, 490, 967 P.2d 6 (1998). Arbitrary and capricious action is "`willful and unreasoning action, without consideration and in disregard of facts and circumstances. Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached.'" Pierce County Sheriff, 98 Wn.2d at 695 (quoting State v. Rowe, 93 Wn.2d 277, 284, 609 P.2d 1348 (1980)).
The PAB heard testimony from the WSP's witnesses as well as Melnikoff's experts and admitted the exhibits that Melnikoff believed supported his position. Melnikoff provides no evidence that the PAB did not consider his supporting testimony or his exhibits, nor can we find any such evidence in the record. The testimony and exhibits presented to the PAB left room for two opinions and the PAB agreed with the WSP's position. See Pierce County Sheriff, 98 Wn.2d at 695. Therefore, we hold that the PAB's findings of facts were not arbitrary and capricious.
IV. PAB's Conclusions of Law
A. Standard of Review
We review the PAB's alleged errors of law de novo, but we give substantial weight to its conclusions of law. Skelly, 135 Wn. App. at 344; Dedman, 98 Wn. App. at 477. On review of mixed questions of fact and law, we "establish? the relevant facts, determin[e] the applicable law, and then apply? that law to the facts." Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 403, 858 P.2d 494 (1993).
B. Conclusion of Law 6.1
PAB's conclusion of law 6.1 states that it "has jurisdiction over the parties and the subject matter." AR at 27. Melnikoff argues that the PAB did not have personal or subject matter jurisdiction over him because the basis of the WSP's decision to terminate his employment was his Kordonowy testimony that he gave in Montana while on leave from his WSP job. He also argues that WSP is time-barred from terminating him because he testified in Montana during his first year probationary period and, thereafter, the WSP evaluated his work and found it acceptable.
In his appellate brief, Melnikoff claims that "[t]hough newly employed [when he testified in Kordonowy] by the WSP, the WSP made it clear to Mr. Melnikoff that it does not consider Mr. Melnikoff to be working for the WSP when he is subpoenaed by another agency." Br. of Appellant at 13. Melnikoff did not provide a record citation for this allegation and we could not find any support for this allegation in the record. At the PAB hearing, Melnikoff did not testify about whether he had to take any kind of leave to provide testimony in Montana. But at oral argument, Melnikoff stated that he was on leave while testifying in Montana.
Melnikoff provides no legal support for his argument that the PAB lacked personal or subject matter jurisdiction over him. We will not address issues that are unsupported by argument or authority. Ang v. Martin, 154 Wn.2d 477, 486-87, 114 P.3d 637 (2005); see also RAP 10.3(a)(6), 10.3(g) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record; we will only review a claimed error included in an assignment of error or clearly disclosed in an associated issue). In addition, the PAB has general jurisdiction over personnel appeals and the statute does not contain a limitations period on the PAB's jurisdiction. Former RCW 41.64.090 (1994), repealed by Laws of 2002, ch. 354, § 404. See generally Wright v. Mead Sch. Dist. No. 354, 87 Wn. App. 624, 633, 944 P.2d 1 (1997) (sexual conduct with a student in another district occurring seven to ten years earlier was not too remote and provided sufficient cause to terminate Wright).
Former RCW 41.64.090 provided:
(1) The board shall have jurisdiction to decide appeals filed on or after July 1, 1981, of employees under the jurisdiction of the Washington personnel resources board pursuant to RCW 41.06.170, as now or hereafter amended.
(2) The board shall have jurisdiction to decide appeals filed on or after July 1, 1993, of employees of institutions of higher education and related boards under the jurisdiction of the Washington personnel resources board pursuant to RCW 41.06.170. An appeal under this subsection by an employee of an institution of higher education or a related board shall be held in the county in which the institution is located or the county in which the person was employed when the appeal was filed.
Melnikoff also claims that the WSP violated his due process rights by disciplining him for remote prior conduct, but he provides no argument for this allegation. Melnikoff's main due process argument is that Knorr was not an impartial decision maker and that the WSP violated his due process rights during the pretermination investigation. See section VI. infra. We will not address issues that are unsupported by argument or authority. See Ang, 154 Wn.2d at 486-87; RAP 10.3(a)(6), 10.3(g). Therefore, we also do not address whether disciplining Melnikoff for his prior conduct violates his due process rights.
C. Conclusion of Law 6.7
Conclusion of law 6.7 states:
[The WSP] has met its burden by a preponderance of the credible evidence that [Melnikoff's] testimony in the Kordonowy trial did not meet the standards of practice expected of a fully qualified and competent forensic examiner and was contrary to the scientific principles and practices of hair analysis. [Melnikoff] was an experienced forensic examiner; however, his testimony in Kordonowy of statistical probabilities was erroneous, which is especially disturbing considering [Melnikoff's] knowledge, experience, training and education, including a minor in mathematics. [Melnikoff's] testimony was not that of a competent forensic hair examiner and discredited his crucial role in the courtroom. As an expert witness, [Melnikoff] was in a position to influence a jury with his testimony regarding his analysis and knowledge of evidence. [Melnikoff's] failure to provide accurate testimony based on his own professional experience, his failure to accurately cite scientific research and his seeming inability to understand probabilities and statistics supports the charge of incompetence and undermines his ability to continue to represent the WSP in the capacity of a forensic scientist. Although [the WSP] has failed to establish that [Melnikoff] neglected his assigned duties or that he violated WSP policies, [the WSP] has proven [Melnikoff's] actions rise to the level of gross misconduct.
AR at 28. This is labeled as a conclusion of law but it contains several findings of fact that (1) partly reiterate the PAB's earlier findings, which we have already held are supported by substantial evidence, (2) adds specific findings related to Melnikoff's ability to represent the WSP as a forensic scientist, and (3) considers that the WSP proved gross misconduct by Melnikoff.
The finding that Melnikoff was incompetent and committed gross misconduct supports the conclusion that Melnikoff's employment should have been terminated. Melnikoff does not dedicate a section of his brief to these issues, though he assigns error to conclusion of law 6.7. We will not address issues that are unsupported by argument or authority. See Ang, 154 Wn.2d at 486-87; RAP 10.3(a)(6), 10.3(g). Thus, we do not discuss this assignment of error.
Regardless, we would uphold conclusion of law 6.7. Melnikoff does not challenge the PAB's definition of incompetence or gross misconduct so the only issue is whether the PAB findings of fact satisfy its definitions. In its order, the PAB defined incompetence and gross misconduct as a matter of law:
6.3 Incompetence presumes a lack of ability, capacity, means, or qualification to perform a given duty. Plaisance v. Dep't of Social and Health Services, PAB No. D86-75 (Kent, Hrg. Exam.), aff'd by Board (1987).
6.4 Gross misconduct is flagrant misbehavior which adversely affects the agency's ability to carry out its functions. Rain water v. School for the Deaf, PAB No. D89-004 (1989).
AR at 27. There was substantial evidence to support the PAB's finding that Melnikoff's testimony was contrary to scientific principles and practices of hair analysis; that his statistical analysis was erroneous; and that he misquoted scientific research, rising to the level of incompetence. Melnikoff's Kordonowy testimony resulted in the WSP being unable to use Melnikoff as an expert witness, a required function of his job as a forensic scientist. Thus, the findings of fact support conclusion of law 6.7.
D. Conclusion of Law 6.9
The PAB concluded:
The appointing authority presented persuasive testimony that [Melnikoff's] incompetent testimony in his capacity as an expert witness irreparably harmed [Melnikoff's] reputation as a credible expert witness and forensic scientist. Under the circumstances, the appointing authority concluded that [Melnikoff] could not withstand the close scrutiny necessary of an expert witness providing a court and jury with scientific information. Under the facts and circumstances of this case, we conclude that [the WSP] has proven that the sanction of dismissal is appropriate, and the appeal of Arnold Melnikoff should be denied.
AR at 29. Conclusion of law 6.9 is a mixed question of fact and law and, therefore, we conduct a mixed review. See Tapper, 122 Wn.2d at 403. Melnikoff argues that the facts and circumstances of his case do not warrant dismissal because he is no longer performing hair analysis and he has provided exemplary service while working for the WSP.
We agree with Melnikoff that he is no longer performing hair analysis comparisons and the record indicates that he has consistently and adequately performed his duties for the WSP in the area of chemical analysis. But a forensic scientist's work and trial testimony is subject to intense scrutiny in the criminal justice system. Any forensic scientist may be called to provide expert testimony in court. See Washington State Patrol, Forensic Career Opportunities, http://www.wa.gov/wsp/hrd/forensic.htm (last visited Dec. 3, 2007). And here, the issue for the WSP was whether Melnikoff could be an effective and credible expert witness following the exposure of his erroneous testimony in Kordonowy.
Logan testified that, in his opinion, Melnikoff is no longer an effective expert witness:
[H]e now carries with him a lot of baggage as a result of the testimony he gave in the Kordonowy and the associated cases in Montana that call in to question his judgment and his objectivity and his ability to give trustworthy and accurate testimony. So it would be in my opinion impossible to mitigate that in court, that's something that in every case he went to testify in[,] be it a drug case, or another chemistry case or methamphetamine lab case[,] that the court would have to explore and present information about his prior conduct and that allow the jury to assess what weight they would give his conduct in the instant case based on his history. And that is something that prosecuting attorney's [sic] in part of the state service[d] by Spokane Crime Laboratory do not want to have to deal with[;] it complicates the case to the point where Mr. Melnikoff would not be an effective and it would jeopardize their ability to prosecute the case. AR at 727.
Furthermore, Logan testified that he spoke with the executive director of the Washington Association of Prosecuting Attorneys who is "responsible for coordinating policy, legislative issues for the elected prosecutors in all 39 counties" and who indicated that some elected prosecutors expressed reservations to him about Melnikoff's ability to be a good expert witness. AR at 738. In particular, the prosecutors for Benton County, Kittitas County and Pend Oreille County were concerned about Melnikoff's ability to provide expert testimony.
Melnikoff provided general letters of support from various prosecutors, including some from Benton, Kittitas, and Pend Oreille Counties. And Logan admitted that after these allegations were brought against Melnikoff, Melnikoff testified in a United States District Court case wherein the trial judge did not allow inquiry into the Kordonowy testimony. Melnikoff, however, did not provide testimony about this issue, present witnesses to testify about the continuing viability of his testimony, or provide any trial transcripts. Rather, he only mentioned this fact in his response to the predetermination decision by Knorr:
U.S. Dist. Court Judge Nielsen ruled in July 2003 that Mr. Melnikoff's testimony in Montana was not an issue after he reviewed transcripts in the [ Bromgard], [ Bauer] and [ Kordonowy] cases, and did not allow the defense to challenge Mr. Melnikoff's credibility in the case of [ United States v. Kenneth R. Olsen].
We located an unpublished memorandum decision of the Ninth Circuit in the case referred to by Melnikoff that we do not cite in deference to U.S. Court of Appeals, 9th Circuit Rule 36-3(a), which states "[u]npublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, and collateral estoppel." See also RAP 10.4(h) ("A party may not cite as an authority an unpublished opinion of the Court of Appeals"); Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 577 n. 10, 964 P.2d 1173 (1998). We note that 9th Circuit Rule 36-3(c)(ii) states that unpublished cases can be cited for "factual purposes, such as to show . . . the existence of a related case." Regardless, the WSP does not challenge Melnikoff's testimony.
Although one court ruled that Melnikoff's testimony was not impaired by a remote incident of misconduct, Melnikoff presented no witnesses to testify about the continuing viability of his expert testimony in state court. Giving due consideration to the weight of the evidence on the type of misconduct and scientific error that Melnikoff committed in the Kordonowy trial leads us to conclude that the sanction of dismissal was warranted because of the likelihood that his future status as a credible scientific witness for the WSP is seriously impaired. In summary, the WSP's dismissal of Melnikoff was an appropriate sanction.
V. Alleged Violation of WSP's Policies
Melnikoff argues that his termination was erroneous because the WSP did not follow its own regulations, specifically, that it did not follow the 11 elements of just cause it must use when disciplining an employee. Although we may substitute our judgment for that of the administrative body, we accord substantial weight to the PAB's view of the applicable facts and guidelines or policies. Sullivan, 71 Wn. App. at 321. Brian Jones, former commander of the WSP's Office of Professional Standards, testified that the 11 elements of just cause are found in the Administrative Investigations Manual, but he does not characterize them as policies of the WSP, rather they are guidelines for the appointing authority to consider to ensure that their findings are fair.
Melnikoff generally alleges that the WSP did not follow its own policies. He does not provide citation to policies or rules and does not articulate his exact argument. The parties explained during oral argument that the alleged WSP policy violations referred only to the WSP's internal audit of Melnikoff's work. Because the audit results did not lead to termination of Melnikoff's WSP employment, neither party designated the policies for the record on appeal. Therefore, we address only Melnikoff's arguments related to the WSP guidelines.
Melnikoff argues that the WSP did not follow the fourth guideline regarding just cause: "Is the discipline contemplated non-discriminatory or similar to what another employee in a comparable situation would receive?" AR at 293. He argues that he was not treated in the same manner as other forensic scientists who testified in criminal cases before they were employed by the WSP and then, while working for the WSP, the defendants in those criminal cases were exonerated by DNA or other evidence.
During the PAB hearing, Jones attempted to answer hypotheticals Melnikoff's counsel posed about other scientists' cases. He testified that the decision to bring disciplinary action against an employee depends on the circumstances of each case. Logan testified that, while there was another forensic scientist 3 who may have committed misconduct in another state that resulted in convicted persons being released because of improper procedure, the WSP did not receive a formal complaint to trigger an investigation. Furthermore, Jones related that a federal civil suit against that scientist resulted in a finding that the scientist did not commit misconduct. And, finally, when the WSP audited that scientist's work, it found no problems. Thus, Logan determined that no further action was necessary against that particular forensic scientist.
Because we accord substantial weight to the PAB's view of the law, with only slight evidence in the record on this issue and no evidence of a similar circumstance, we cannot hold that Melnikoff's termination is founded on an error of law under former RCW 41.64.130(1)(a) because the WSP did not follow its own guidelines.
VI. Violation of Melnikoff's Due Process Rights
Melnikoff argues that his due process rights were violated because: (1) WSP IA investigators did not contact his experts; (2) Knorr did not contact his experts; (3) Knorr refused to consider the scientific articles he submitted; (4) Knorr wrote the predetermination letter before contacting Melnikoff; and (5) Knorr was biased by the audit of Melnikoff's WSP chemistry cases.
Melnikoff was a permanent employee of the WSP and could be removed only for cause. Former WAC 356-05-245; Former WAC 356-34-010. Therefore, he had a property right in continued employment protected by due process. Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987).
The "root" requirement of the due process clause is that a deprivation of property be preceded by notice and an opportunity for hearing appropriate to the nature of the case. Loudermill, [470 U.S.] at 542. "This principle requires `some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Loudermill, [470 U.S.] at 542 (quoting Board of Regents v. Roth, [ 408 U.S. 564,] 569-70[, 92 S.Ct. 2701, 33 L. Ed. 2d 548 (1972)]). A court must balance the competing interests at stake in determining the form of the pre-termination hearing necessary for due process purposes. Loudermill, [U.S. 470] at 542-543.
. . . In public employee cases, the pretermination hearing need not definitively resolve the propriety of the discharge, but should serve as an initial check against mistaken decisions — to determine whether there are reasonable grounds to believe the charges against the employee are true and support the proposed action. Loudermill, [U.S. 470] at 545-46. "The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." (quoting Loudermill, [470 U.S.] at 546).
Danielson, 108 Wn.2d at 797-98.
The WSP gave Melnikoff notice of the charges against him. O'Shannon indicated that she was unable to contact Dr. Larry Howard, the forensic scientist that Melnikoff indicated used statistics when he testified, but Howard testified before the PAB. The WSP did not compel a taped interview from Melnikoff. Instead, it allowed him to voluntarily make a statement, which he chose to not do. Knorr and Jones testified that, while this was unusual, it did not violate any WSP policies. Melnikoff provides no reference to any policy that was violated and we cannot identify any such WSP policy during the IA phase.
Following issuance of the predetermination letter and notice to Melnikoff, Knorr held a Loudermill hearing and heard two days of testimony. Melnikoff was represented by counsel and successfully presented evidence persuading Knorr to not pursue any issues relating to his chemical analysis work at the WSP. Melnikoff's employment was terminated only after the Loudermill hearing. We are not persuaded that Melnikoff's due process rights were violated by it. He was given notice, an explanation of WSP's evidence, and an opportunity to present his own evidence.
Furthermore, after his termination, the PAB heard three days of testimony, including testimony from Melnikoff's experts. It also admitted his scientific articles and letters of support from various prosecutors, and it did not consider the audit of his WSP work. Together, the Loudermill hearing and the PAB hearing safeguarded Melnikoff's due process rights. See Danielson, 108 Wn.2d at 797-98; Fuller v. Dep't of Employment Sec., 52 Wn. App. 603, 608, 762 P.2d 367 (1988).
We affirm the WSP's termination of Melnikoff's employment.
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.