Opinion
No. 29912-7-II.
Filed: February 10, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-2-01183-4. Judgment or order under review. Date filed: 12/30/2002.
Counsel for Appellant(s), Valarie Standefer Zeeck, Gordon Thomas Honeywell, PO Box 1157, Tacoma, WA 98401-1157.
Counsel for Respondent(s), Elizabeth Delay Brown, Atty Generals Ofc/LP Division, 905 Plum St. SE Bldg 3, PO Box 40145, Olympia, WA 98504-0145.
Amicus Curiae on behalf of Washington State Patrol Lieutenants Association, Leann K. Paluck, Attorney at Law, 950 Pacific Ave Ste 450, Tacoma, WA 98402-4499.
Colleen M. McIntyre appeals her termination from the Washington State Patrol (WSP). She contends, primarily, that she did not receive notice of the specific violations for which she was terminated. We agree, holding that the WSP failed in its obligation under the Collective Bargaining Agreement (CBA) to provide notice of the specific violations. The order of termination is therefore reversed.
Colleen M. McIntyre served the WSP for 22 years. During her tenure, she served in a variety of positions, some of which were supervisory and required an active knowledge of WSP regulations. By the end of her career, she had attained the ranks of Lieutenant and Captain. On July 2, 2002, the WSP Chief terminated McIntyre's employment for violating several WSP regulations.
The WSP's Regulation Manual provides that `[e]mployees with an assigned state take-home vehicle shall reside within 35 miles of their specific workplace or their primary base of operations.' Clerk's Papers at 841. McIntyre lived in Sumner, Washington, and her permanent duty station was the WSP's General Administration building in Olympia, Washington. The distance between home and office, measured by road miles, was about 45 miles. McIntyre drove her take-home vehicle to work every day.
In this opinion, `road miles' measures the miles of road or highway between geographic locations.
On August 26, 1999, WSP Chief Annette M. Sandberg issued a Memorandum of Understanding (MOU) emphasizing compliance with the residency requirement. The MOU stated that `[a]ny lieutenant or captain . . . who lives beyond the 35 mile residency requirement . . . will be required to park their personally assigned patrol vehicle at either a WSP office or the local police department closest to their residence that complies with the 35 mile residency requirement.' CP at 866.
In early 2001, WSP's Office of Professional Standards received information suggesting that McIntyre had violated numerous WSP regulations, including the residency requirement. Internal Affairs commenced an investigation, and McIntyre gave a tape-recorded interview on May 15, 2001. Investigating officers inquired whether McIntyre was in compliance with the Sandberg MOU. She replied that she was. Acknowledging that the road miles distance was about 45 miles, McIntyre explained that she measured the distance by drawing a straight line on a state map and then comparing the line to the map's mileage scale. McIntyre's method resulted in a distance of less than 35 miles. She stated that `my understanding' of the appropriate method of measurement allowed measurement by `air miles.' CP at 250.
`Air miles' measures the straight line or as-the-crow-flies distance between geographic locations.
Immediately following the May 15 interview, the Office of Professional Standards sent McIntyre a second letter alleging that she had violated several regulations. This letter, however, contained an additional allegation:
This letter was also dated May 15. It will be referred to as the May 15 document.
On May 15, 2001, you were untruthful during your interview with Internal Affairs investigators regarding directives you received sometime in 1999 from Chief Annette M. Sandberg and Commander James W. LaMunyon regarding the use of your assigned patrol car for the purpose of commuting from your permanent duty station to your residence.
If proven true, this conduct would violate the Washington State Patrol's policy on the following 2001 regulation:
8.00.300 Truthfulness.
CP at 268.
Investigating officers continued the interview on May 30, and McIntyre was further questioned about the residency requirement. She maintained, once again, that the air miles measurement method was permissible under WSP regulations; and she stated that the Sandberg MOU was not a `directive.' CP at 349.
The Office of Professional Standards concluded its investigation of the complaint against McIntyre, and Deputy Chief Maurice C. King became the appointing authority for the case. In that capacity, King issued his administrative insight on November 8, 2001. The insight listed seven points of untruthfulness, including that McIntyre was untruthful when (1) she said that she had complied with the residency requirements and (2) she indicated that the Sandberg MOU was not a directive.
McIntyre's case then went to the WSP Trial Board. The Trial Board functions as the ultimate fact-finder within the WSP, and it recommends a penalty to the WSP Chief. In McIntyre's case, the Trial Board concurred with all but two of King's untruthfulness findings. It recommended termination as the appropriate remedy. The Chief adopted the Trial Board's findings and conclusions and ordered McIntyre's employment terminated.
McIntyre appealed her order of termination to the Thurston County Superior Court, which reversed on all but two untruthfulness findings. But, finding that `a single violation [of Regulation 8.00.300 Truthfulness] results in termination,' the court ultimately affirmed the termination order. McIntyre appeals.
We review the order terminating McIntyre's employment from the same vantage point as the superior court, applying the Administrative Procedure Act (APA) standards directly to the record before the agency. See Manke Lumber Co. v. Diehl, 91 Wn. App. 793, 801-02, 959 P.2d 1173 (1998), review denied, 137 Wn.2d 1018 (1999). The APA standards allow us to grant relief from the order if we find that (1) the order, facially or as applied, violates a constitutional provision, (2) the order is outside the agency's statutory authority or jurisdiction, (3) the order is not supported by substantial evidence, (4) the order is arbitrary or capricious, (5) the order is inconsistent with an agency rule, (6) the agency has engaged in an unlawful procedure or has not followed a prescribed procedure, or (7) the agency has interpreted or applied the law incorrectly. RCW 34.05.570(3)(a)(b)(c)(d)(e)(h)(i). But we may order relief only if we find that McIntyre `has been substantially prejudiced by the action complained of.' RCW 34.05.570(1)(d).
The CBA, article 8, section B 8, requires that `[p]rior to any questioning, the employee being investigated shall be informed in writing of . . . the specific violations alleged, and the department rules or regulations allegedly violated.' CP at 92 (emphasis omitted).
We first note that the WSP concurs and concedes that it must comply with this provision and that `members of the WSPLA (Washington State Patrol Lieutenants' Association, which includes McIntyre) are promised and have a clear expectation that they will be disciplined in strict accordance with the negotiated provisions of the CBA.' Resp'ts Response to Br. of Amicus Curiae at 1. As we agree and find dispositive the CBA provisions bearing on notice, we feel it unnecessary to examine McIntyre's claim under the Administrative Investigation Manual (AIM) as well.
McIntyre does not dispute whether the May 15 document sufficiently notified her of the rule or policy that she had been accused of violating. Rather, she challenges the adequacy of the factual allegations of misconduct, or `specific violations,' contained in the May 15 document. On this score, the WSP contends that it adequately alleged McIntyre's specific violations by the statement that she was untruthful `regarding directives [she] received sometime in 1999 from Chief Annette M. Sandberg and Commander James W. LaMunyon regarding the use of [her] assigned patrol car for the purpose of commuting from [her] permanent duty station to [her] residence.' CP at 268. We conclude that this statement was not adequate factual notice of McIntyre's violations under the standard of specificity envisioned and required by the CBA, article 8, section B 8.
The first challenged finding is that McIntyre was untruthful when she said that she had complied with the residency requirements. In contrast, the allegation that the WSP now contends imparted sufficient notice concerned the `use' of McIntyre's patrol car for commuting purposes. While her patrol car use and her compliance with the residency requirements were certainly related concepts, the CBA requires more than an identifiable or discoverable link between the allegation and the ultimate finding of a violation. It requires notice of the specific violation alleged. By no reasonable construction of the phrase `specific violation' can we determine that the allegation concerning use adequately apprised McIntyre of the violation that the Trial Board ultimately found. Therefore, as to the first challenged finding, McIntyre did not receive notice consistent with the CBA's clear commands.
As to the second point of untruthfulness, the May 15 document alleged untruthfulness `regarding directives [McIntyre] received sometime in 1999 from Chief Annette M. Sandberg.' CP at 268. The Trial Board ultimately found untruthfulness in McIntyre's indication that `the MOU is not a directive.' CP at 849.
As with the first untruthfulness finding, we may, with the benefit of hindsight, be able to deconstruct the May 15 allegation to a form that would be acceptable under the CBA's notice provisions, for we do not intimate that the Sandberg `directive' and the Sandberg MOU were unrelated concepts. But this deductive conclusion, which is attainable only after ponderous reflection, was not one that McIntyre was required to make under the CBA. The CBA required notice of the specific violation, and we hold that the violation alleged was not the specific violation that the Trial Board ultimately found. Therefore, McIntyre did not receive sufficient notice of the second point of untruthfulness.
By failing to adhere to the CBA's notice provision, the WSP `has failed to follow a prescribed procedure.' RCW 34.05.570(3)(c). This failure substantially prejudiced McIntyre's ability to mount a meaningful defense. The untruths that the WSP ultimately relied on for McIntyre's termination were extremely focused, brief points of testimony from a lengthy interview, and they were not acceptably discernable from the allegations in the May 15 document.
Reversed and ordered that McIntyre be reinstated.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.