Opinion
No. 29251-3-II.
Filed April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 01-2-01602-1. Judgment or order under review. Date filed: 07/30/2002. Judge signing: Hon. Wm Thomas McPhee.
Counsel for Appellant(s), Daniel O. Glenn, Glenn Associates PS, 2424 Evergreen Park Dr SW, PO Box 49, Olympia, WA 98507-0049.
Counsel for Respondent(s), Jerome E. Westby, Attorney at Law, 905 Plum St. Bldg 3, PO Box 40108, Olympia, WA 98504-0108.
The Department of Retirement Systems (DRS) found that Neil Q. Good's duties as Executive Director of the Kitsap County Fire Protection District No. 2 (Kitsap District) did not qualify him as a 'supervisory fire fighter' and denied him Law Enforcement Officers and Fire Fighter's (LEOFF) retirement benefits. The Thurston County Superior Court affirmed DRS's final order. Good appeals. Substantial evidence supports DRS's decision, and we affirm.
LEOFF is a statewide retirement system for city and county law enforcement officers and fire fighters. RCW 41.26.040.
FACTS
Good was a fire fighter for a Thurston County Fire Protection District and a member of LEOFF from 1970 through 1988. In 1988, Good became the Executive Director of the Kitsap District. From 1988 to 1995, Good had four contracts with the Kitsap District, none of which describe his duties in detail.
'Executive Director' was a new position responsible for the management of the Kitsap District's business affairs.
Kitsap District is now the Bainbridge Island Fire Department.
Good retired from LEOFF in 1989 at age 50 and began to draw retirement benefits while continuing to work for the Kitsap District. In 1992, Good was readmitted as a member of LEOFF. From 1992 until the end of Good's employment with the Kitsap District, in November 1995, both Good and the Kitsap District made contributions to the LEOFF system.
In February 1992, the Kitsap District reorganized and replaced the 'Fire Chief' with the 'Operations Chief,' who reported to Good as the Executive Director. The Kitsap District also employed Gary Clough as Fire Chief with operational duties. Clough was frequently absent from work on disability leave. In March 1992, Clough retired and was replaced by an Acting Chief. Stickels was hired as Operations Chief in October 1993. Stickels's duties included operational readiness, emergency response, training, and safety.
In November 1995, Good terminated his employment with the Kitsap District and began receiving retirement benefits based on 26 years of service, including the three years between 1992 and 1995 when he worked for the Kitsap District after being readmitted to LEOFF. After an audit in 1998, DRS determined that Good's service with the Kitsap District from 1992 through 1995 did not meet its standards for membership because he was not a 'supervisory fire fighter.' DRS cancelled Good's 1995 retirement, reinstated his 1989 retirement, recalculated his retirement benefit, refunded his LEOFF contribution, and cancelled his LEOFF service credit for 1992-1995.
After DRS denied Good's petition to reverse its decision, Good appealed to DRS's internal hearing officer, asserting that he was qualified for benefits from 1992-1995 as a 'supervisory fire fighter.' Three Kitsap District Fire Captains testified that Good was the Kitsap District command officer in the absence of Clough, that Good responded to major emergency events, and that they would have relinquished control of an emergency scene to Good upon his request.
But testimony also showed that if Good responded to an emergency, he would not have 'assumed command,' but would have given direction to the lead officer. Morever, Stickels testified that he recalled Good coming to a fire only once and, although Good did provide some direction, he would have found it unusual for Good to assume command Good's role on this occasion was advisory in nature.
On August 1, 2001, the hearing officer affirmed DRS's decision. Good appealed to the Thurston County Superior Court, which affirmed DRS's final order. Good now appeals the Thurston County Superior Court's decision, claiming that the hearing officer erred in finding that he was not a supervisory fire fighter and, therefore, was ineligible to receive benefits from 1992-1995.
For reasons that are not entirely clear to us, Good does not argue that DRS was estopped from revoking his benefits. We also note that City of Pasco v. Dep't of Ret. Sys., 110 Wn. App. 582, 42 P.3d 992, review denied, 147 Wn.2d 1017 (2002), on which Good apparently relies, dealt with the wrongful exclusion of an intended beneficiary not a wrongful inclusion.
ANALYSIS Standard of Review
We review DRS's decision directly under the Washington Administrative Procedure Act (APA). RCW 34.05.570(3). We review the hearing officer's decision, not the superior court's determinations. Valentine v. Dep't of Licensing, 77 Wn. App. 838, 844, 894 P.2d 1352, review denied, 127 Wn.2d 1020 (1995). Thus, Good has the burden to show that DRS's final order is invalid. RCW 34.05.570(1)(a).
RCW 34.05.570(3) states:
The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that:
(a) The order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied;
(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;
(c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
(f) The agency has not decided all issues requiring resolution by the agency;
(g) A motion for disqualification under RCW 34.05.425 or 34.12.050 was made and was improperly denied or, if no motion was made, facts are shown to support the grant of such a motion that were not known and were not reasonably discoverable by the challenging party at the appropriate time for making such a motion;
(h) The order is inconsistent with a rule of the agency unless the agency explains the inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency; or
(i) The order is arbitrary and capricious.
We review DRS's Findings of Fact under the 'substantial evidence standard.' RCW 34.05.570(3)(e). Substantial evidence is 'a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.' City of Redmond v. Ctr. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998) (quoting Callecod v. Washington State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510, review denied, 132 Wn.2d 1004 (1997)).
Good's Challenges to DRS findings
Good argues that DRS erred in finding that he did not qualify for LEOFF membership as a 'supervisory fire fighter.' He asserts that DRS's Findings of Fact 24, 33, 40, 49-51, 56, 60, 63-64, 66, 72, 75-76, and 78-79 are not supported by substantial evidence, but he simply attached the challenged findings and cited no legal authority to support his contentions. Thus, under RAP 10.3, we need not consider arguments that do not cite to any legal authority. Branom v. State, 94 Wn. App. 964, 976 n. 31, 974 P.2d 335, review denied, 138 Wn.2d 1023 (1999).
Good appears to argue that although his duties as Executive Director between 1988-1992 may not have initially involved supervisory fire fighting, his duties as Executive Director changed substantially during his employment at the Kitsap District, making him eligible for LEOFF membership from 1992-1995. The Findings of Fact entered by the DRS hearing officer contradict Good's assertion. Because substantial evidence, which includes testimony from members of the Board of Fire Commissioners, Stickels, Good, and written memoranda, supports DRS's Findings of Fact, we cannot substitute our judgment for that of the administrative agency. The record contains substantial evidence supporting DRS's findings that Good challenges. Thus, DRS did not err in holding that Good was not a supervisory fire fighter for purposes of receiving LEOFF retirement benefits.
DRS Conclusions of Law
Good also argues that DRS's Conclusions of Law 14-18, that he was not a 'supervisory fire fighter' under RCW 41.26.030(4)(c) and WAC 415-104-225 , were erroneous. We review DRS's Conclusions of Law de novo, although we give substantial weight to an agency's interpretations of the law that it administers. Renton Educ. Ass'n v. Pub. Employment Relations Comm'n, 101 Wn.2d 435, 441, 680 P.2d 40 (1984) (citing Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 324-26, 646 P.2d 113 (1982)); Heidgerken v. Dep't of Natural Res., 99 Wn. App. 380, 384, 993 P.2d 934, review denied, 141 Wn.2d 1015 (2000).
Membership in the LEOFF system is limited to fire fighters and law enforcement officers. RCW 41.26.040. Under RCW 41.26.030(4) 'fire fighter' is defined as:
(a) Any person who is serving on a full time, fully compensated basis as a member of a fire department of an employer and who is serving in a position which requires passing a civil service examination for fire fighter, and who is actively employed as such;
(b) Anyone who is actively employed as a full time fire fighter where the fire department does not have a civil service examination;
(c) Supervisory fire fighter personnel;
(d) Any full time executive secretary of an association of fire protection districts authorized under RCW 52.12.031. The provisions of this subsection (4)(d) shall not apply to plan 2 members;
(e) The executive secretary of a labor guild, association or organization (which is an employer under RCW 41.26.030(2) as now or hereafter amended), if such individual has five years previous membership in a retirement system established in chapter 41.16 or 41.18 RCW. The provisions of this subsection (4)(e) shall not apply to plan 2 members;
(f) Any person who is serving on a full time, fully compensated basis for an employer, as a fire dispatcher, in a department in which, on March 1, 1970, a dispatcher was required to have passed a civil service examination for fire fighter; and
(g) Any person who on March 1, 1970, was employed on a full time, fully compensated basis by an employer, and who on May 21, 1971, was making retirement contributions under the provisions of chapter 41.16 or 41.18 RCW.
WAC 415-104-225 further describes 'fire fighter' for the purposes of LEOFF membership as follows:
(2) You are a fire fighter if you are employed in a uniformed fire fighter position by an employer on a full-time, fully compensated basis, and as a consequence of your employment, you have the legal authority and responsibility to direct or perform fire protection activities that are required for and directly concerned with preventing, controlling and extinguishing fires.
(a) 'Fire protection activities' may include incidental functions such as housekeeping, equipment maintenance, grounds maintenance, fire safety inspections, lecturing, performing community fire drills and inspecting homes and schools for fire hazards. These activities qualify as fire protection activities only if the primary duty of your position is preventing, controlling and extinguishing fires.
(b) You are a fire fighter if you qualify as supervisory fire fighter personnel.
Neither the legislature nor the courts have defined 'supervisory fire fighter.' DRS asserts that to qualify as a 'supervisory fire fighter' under WAC 415-104-225(2)(b), an applicant must meet the requirements of 'fire fighter' under WAC 415-104-225(2). We agree. To qualify for LEOFF benefits, Good must have had 'the legal authority and responsibility to direct or perform fire protection activities that are required for and directly concerned with preventing, controlling and extinguishing fires.' WAC 415-104-225(2).
The phrase 'supervisory fire fighter' includes two elements a supervisory element and a fire fighter element. Good, as the Executive Director, had supervisory responsibility for the Administrative Assistant, the Facilities and Equipment Coordinator, and the Operations Chief and, therefore, satisfied the 'supervisory' requirement of the phrase 'supervisory fire fighter' under WAC 415-104-225(2)(b). But Good did not present substantial evidence that he was a 'fire fighter' under WAC 415-104-225(2). Good's primary duties were administrative, and the record establishes that the Board of Fire Commissioners did not intend to give Good operational responsibilities. Good's involvement at fire scenes was minimal and advisory. In addition to Executive Director Good, the Fire Department employed a Fire Chief, Operational Chief, or Acting Chief at all times. Good has not proven that he had the responsibility to direct or perform fire protection activities and thus was not a 'supervisory fire fighter' entitled to LEOFF benefits.
Good asserts that the legislature purposefully created the 'supervisory fire fighter' category for LEOFF membership in order to include personnel who were not full-time fire fighters. While this may be true, Good has not established that the direction or performance of fire protection were even part-time duties of his position as Executive Director. Furthermore, under Good's reasoning, any person with an indirect supervisory role over fire fighters would be eligible for LEOFF membership. Nothing suggests that this is what the legislature intended.
Based on the record and issues presented for our review, we affirm DRS's decision finding that Good was not qualified to receive LEOFF credit for the period of his employment as the Executive Director of the Kitsap District from 1992 through 1995 because he did not qualify as a supervisory fire fighter.
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.
BRIDGEWATER, J., and ARMSTRONG, J., concur.