David S. Divis, Appellant V. Washington State Patrol, Respondent (Majority)

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T OF A P EALS DIVISION Li 2i1i MAY 28 M; 8: 31 ST :\TE aI.- SFr llNG ! oN Y IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43744 -941 DAVID S. DIVIS, Appellant, v. UNPUBLISHED OPINION WASHINGTON STATE PATROL, Respondent. HUNT, J. David S. Divis appeals the superior court' s affirmance of the Washington State Patrol Chief John R. Batiste' that we should reverse the s order superior court demoting him from sergeant because Chief Batiste ( 1) to trooper. Divis argues exceeded his authority and wrongly entered his own independent findings of fact that differed from the Washington State Patrol ( WSP) Trial Board' s findings of fact; ( 2) improperly relied on a prior settlement agreement arising from Divis' s earlier acts of misconduct, which settlement agreement was not before the Trial Board; ( 3) failed to weigh the proportionality of his discipline of Divis against his discipline of other troopers in similar situations; and ( 4) lacked just cause to demote him because the investigation was not conducted fairly, one of the elements of cause in the WSP' s Administrative Investigation Manual. authority, we affirm. Holding that Chief Batiste acted within his supervisory No. 43744 -9 -II FACTS The Washington State Patrol (WSP) hired David S. Divis as a trooper in 1989. On March 2, 2006, WSP promoted Divis to sergeant; later that month, WSP assigned him to supervise a trooper detachment in South Seattle. In January 2008, WSP' s Office of Professional Standards Internal Affairs investigated allegations that Divis had made racially insensitive comments in front of his troopers multiple times during 2006 and 2007 and that he had used intimidation techniques to prevent employees from reporting his racially insensitive behavior. WSP initiated disciplinary proceedings, alleging eleven specific violations. An administrative WSP Trial Board conducted a six -day hearing in December 2009 and January 2010. After hearing testimony from 18 witnesses and reviewing over 3, 000 pages of information, the Trial Board ( 1) insensitive A), remarks'; ( determined that WSP had proved three of the alleged racially 2) unanimously agreed that Divis had violated WSP Regulation 8. 00. 010 requiring employees to obey WSP rules of conduct, and WSP Regulation 8. 00. 030 ( A), prohibiting unacceptable conduct by employees; and ( 3) unanimously recommended that Divis be 1 sanctioned by suspending him for 20 working days. The Trial Board forwarded its findings More specifically, in its April 2010 decision, the Trial Board found that WSP had proved ( 1) Divis made a comment something to the effect of, `The three laziest troopers in this detachment happen to be black, ' when he Clerk' compared major s Papers ( CP) league baseball at 178; ( 2) " Divis made a racially insensitive remark Tony Gwynn to Aunt Jemima," CP at 180; and player 3) Divis improperly " used an ` open forum' management style to discuss an individual' s activity, disciplinary issues between detachment members." CP at 185. The Trial Board qualified these findings as follows: WSP did not prove that Divis used the word " lazy," Divis improperly referred to race " when reviewing or discussing employee performance," and performance, and his " Aunt Jemima" comment was " insensitive and was offensive." 2 CP at 179, 180. No. 43744 -9 -II and recommendation to Chief Batiste, who entered a two page final order ( First Final Order), demoting Divis from sergeant to trooper. Divis petitioned the superior court for a 2 writ of review. judicial The superior court dismissed the Trial Board' s finding that Divis had engaged in an open forum management style, vacated Chief Batiste' s demotion order because it did not comply with RCW 34.05. 461( 3) 3, and remanded for entered a new Divis filed additional review and final a new order ( entry On December 2, 2011, Chief Batiste of a new order. again demoting Divis from sergeant to trooper. Second Final Order), Petition for Judicial Writ of Review. The superior court upheld the chief's Second Final Order. Divis appeals. ANALYSIS I. FINDINGS OF FACT Divis first contends that Chief Batiste exceeded his authority under RCW 43. 43. 090 by making his own findings of fact in his Second Final Order that contradicted or exceeded the scope of Divis' the Trial Board' s contentions. s findings, which were binding on him. The record does not support Furthermore, Divis mischaracterizes Chief Batiste' s recitation of the Trial Board' s findings of facts. 2 A WSP trooper may appeal an adverse administrative action to the superior court by apply[ ing] to the superior court ... for a writ of review to have the reasonableness and lawfulness of the [ WSP] order inquired into and determined. The superior court shall review the determination of the chief of the [ WSP] in a summary manner. RCW 43. 43. 100. 3 The legislature amended RCW 34. 05. 461 in 2013. LAws OF 2013, ch. 110 § 2. The amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 3 No. 43744 -9 -II On the contrary, the record supports WSP' s assertion that Chief Batiste did not make new findings of fact. Rather, he merely summarized the Trial Board' s record and findings, and issued his final chief s order the effect, ` Papers ( CP) s term " lazy that] on two ultimately- sustained Second Final Order statement to Clerk' based at stated: " allegations Credible testimony ... against Divis. 4 For example, the confirms that Sergeant Divis made a The three laziest troopers in this detachment happen to be black. "' 22 ( emphasis added). Chief Batiste did not find that Divis had used the "; rather, in noting that some troopers had testified that Divis had " made a statement to effect," Trial Board. the chief was merely summarizing parts of the administrative record before the CP at 22. Thus, Divis is mistaken in his contention that Chief Batiste' s Second Final Order revised the Trial Board' s findings about whether he ( Divis) had used the term " lazy trooper" in a racial context. Br. of Appellant at 17. Similarly, the record does not support Divis' s contention that Chief Batiste found his Divis' Board' s) " s Aunt Jemima" comment to have been racially discriminatory, in contrast to the Trial finding no evidence of discrimination. Br. of Appellant at 18. First, Divis fails to identify what finding in the chief' s Second Final Order was allegedly contrary to the Trial Board' s finding; nor does Divis provide a record citation for such finding, contrary to RAP 4 The Trial Board found three of seven allegations of misconduct proven. On appeal, however, the superior court dismissed one of the three proven findings, leaving two " sustained" findings, on which Chief Batiste ultimately based his final order. CP at 21. 4 No. 43744 -9 -II 10. 3 ( a)( 6). 5 Nevertheless, our review of the record does not reveal any finding by Chief Batiste that Divis' discriminatory. Instead, we find only the chief' s statement that Divis' s s comment was Aunt Jemima" comment " was chief' s statement did insensitive not contradict and was offensive." the Trial Board' s finding CP that "[ at 24. Furthermore, the t] he preponderance of the evidence presented clearly supports that the allegation of Discrimination/ Harassment is CP at 199. Thus, Divis' s first argument fails. unfounded." II. CONSIDERATION OF 2006 SETTLEMENT AGREEMENT Divis next argues that in demoting him from sergeant to trooper, ChiefBatiste improperly relied on a prior 2006 settlement agreement that arose from Divis' s earlier acts of misconduct, which was not Chief Batiste' before the Trial Board. s Second Final Order stated, " Of critical importance to me in making this decision is Sergeant Divis' s previous history of discipline for similar conduct." by another other trooper, female agreement CP at 27. This Second Final Order detailed an earlier complaint against Divis alleged who in the agency "; personnel that Divis' that Divis had ' s conduct had made inappropriate comments about her and this case was resolved in 2006 through a settlement violated WSP Regulation 8. 00. 030 ( A) Unacceptable Conduct. CP at 27. 5 We are not required to search the record for support for a party' s argument. In re Estate of Lint, 135 Wn.2d 518, 532, 957 P. 2d 755 ( 1998) ( courts are not obligated " to comb the record" where counsel has failed to challenge specific findings and support arguments with citations to the record); RAP 10. 3( a)( 6). See also In re Disciplinary Proceeding Against Kamb, 177 Wn.2d quotation marks and citation omitted) ( quoting In re 851, 861, 305 P. 3d 1091 ( 2013) ( internal Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 311, 962 P. 2d 813 ( 1998)) ( " It is incumbent on counsel for the appellant to present argument to the court why specific findings of fact are not supported by the evidence and to cite to the record to support that argument."). 5 No. 43744 -9 -II In connection with the instant allegations against Divis, however, WSP withdrew the allegation and evidence to this 2006 related prior settlement agreement. Thus, WSP did not present to the Trial Board evidence of how Divis' s prior behavior resulted in this settlement agreement, and the Trial Board made no findings relating to this prior settlement agreement or that Divis' s currently alleged misconduct was a " pattern" or " trend." CP at 28. Nevertheless, Divis' s prior misconduct and the resultant settlement agreement were part of the Trial Board' s record; thus, the chief could consider this information in determining the appropriate discipline. Divis' s challenge to Chief Batiste' s consideration of Divis' s 2006 misconduct fails. A. Standard of Review; Statutory Authority Each level of the judiciary reviews administrative decisions in an appellate capacity. Farm Supply Distribs., Inc. v. Wash. Utils. & 1237 ( 1974). When reviewing superior court, applying the directly to the record but review de action, we sit "` in the same position as the the [ Washington Administrative Procedure Act (APA) before the agency.'" 858 P. 2d 494 ( 1993)). " fact[] an administrative standards of 639, 647, 173 P. 3d 275 ( 2007) ( Transp. Comm' n, 83 Wn.2d 446, 448, 518 P.2d 6] Chandler v. Office of Ins. Comm 'r, 141 Wn. App. quoting Tapper v. Employment Sec. Dep' t, 122 Wn.2d 397, 402, We apply a substantial evidence standard to an agency' s findings of novo its conclusions of law." Chandler, 141 Wn. App. at 647 ( citing Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P. 3d 930 ( 2006)). 6 ch. 34. 05 RCW. 7 But because Divis does not assign error to any of the Trial Board' s findings of fact, we need not apply this substantial evidence standard here. See RAP 10. 3( g), 10. 4( f). 6 No. 43744 -9 -II When reviewing factual issues, the deferential to the agency fact finder. substantial evidence standard is highly When an agency determination is based heavily on factual matters that are complex, technical, and close to the heart of the agency' s expertise, we give substantial deference to agency views. Under this standard, evidence must be of a sufficient quantum to persuade a fair minded person of the truth of a declared premise. But [ we do] not weigh the evidence or substitute our judgment regarding witness credibility for that of the agency. Findings of fact to which no error has been assigned are verities on appeal. Chandler, 141 Wn. App. at 648 ( footnotes and citations omitted). We may grant relief "if the party challenging the agency order shows that the order is invalid for one of the reasons set forth in RCW 34. 05. 570( 3)[ 8], " 9 such as where "[ t]he order is 8 RCW 34.05. 570( 3) lists the following grounds for judicial relief "from an agency order in an adjudicative proceeding ": 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; 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, b) or has failed to follow a prescribed procedure; The agency has erroneously interpreted or applied the law; 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 d) e) 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 or capricious. 9 Chandler, 141 Wn. App. at 647. 7 No. 43744 -9 -II outside or ( the statutory authority or jurisdiction of the agency 2) "[ t] he agency has erroneously interpreted where the action complained of has by conferred 11 or applied the law. " caused substantial prejudice. 1o; any provision of law " We may also grant relief RCW 34. 05. 570( 1)( d). 12 Divis fails to meet any of these standards. B. Failure To Assign Error to Trial Board' s Findings of Fact Divis does not dispute that the legislature has authorized the WSP chief to determine what discipline to take against a trooper after receiving the Trial Board' s findings, which here focused on Divis' s proven misconduct. See RCW 43. 43. 090, which provides, in part: After hearing, Such findings the findings shall of the trial board[ be final if the charges 13] shall be submitted to the chief. are not sustained. In the event the charges are sustained the chief may determine the proper disciplinary action and declare it by written order served upon the officer complained of. Neither this statute nor any other statute of which we are aware limits the WSP chief' s broad discretion to determine the type and scope of disciplinary action by confining the chief to only the Trial Board' consider Trial Board' s mission is s findings. narrow Unlike the chief' s broad disciplinary discretion, the limited to finding whether the WSP proved its allegations of 10 RCW 34. 05. 570( 3)( b). 11 12 RCW 34. 05. 570( 3)( d); RCW 34. 05. 570( 1)( d) Chandler, 141 Wn. App. at 647 n.8. provides: " The court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of." 13 WSP' s 2008 Regulation Manual, §§ 13. 00. 010( B)( 2), purpose of the Trial Board is to determine all relevant the Chief." AR at 3101. 8 and facts" 13. 00. 030( A)( 1), and to " provide recommend ... that "[ t]he a penalty to No. 43744 -9 -II misconduct. See, e.g., Zoutendyk v. Washington State Patrol, 27 Wn. App. 65, 72, 616 P. 2d 674 1980), all'd, 95 Wn.2d 693, 628 P.2d 1308 ( 1981). RCW 43. 43. 090 provides that the Trial Board' s findings are final " if the charges are not sustained." ( Emphasis about charges decide the But the statute does not establish the same finality for findings added.) that were sustained. Furthermore, the statute gives the chief broad discretion to discipline for the appropriate sustained charges. When determining the legislature' s intent, however, we do not focus exclusively on chapter 43.43 RCW; we also look to other statutes and principles, such as the APA. See Jackstadt v. Washington State Patrol, 96 Wn. App. 501, 508, 976 P. 2d 190 ( 1999), Washington' administrative APA, s as codified proceeding may involve ... Jackstadt, 96 Wn. App. at chapter 34. 05 RCW, " contemplates that an a reviewing officer [ who] reviews the initial order." 508 ( citing RCW 34. 05. 464( 4)). In trooper disciplinary proceedings before the Trial Board, the WSP chief serves as the reviewing officer and issues a final order. See Jackstadt, 96 Wn. authority ` to modify findings of witness App. or at replace credibility.'" 215 P. 3d 214 ( 2009) ( Our courts have held " that a reviewing officer has the 507 -08. an [ administrative Hardee v. Dep' t law judge' s ( ALJ)] of Soc. & Health Servs., findings, including 152 Wn. App. 48, 59, quoting Regan v. Dep' t of Licensing, 130 Wn. App. 39, 59, 121 P. 3d 731 9 No. 43744 -9 -II 2005)), aff'd, 172 Wn.2d 1, 256 P. 3d 339 ( 2011). 14 Our courts have also interpreted RCW 34.05. 464( 4) as granting a reviewing officer " the authority to exercise the same decision making power as the ALJ unless limited by law or by the review[ ing] officer with notice to all parties." Kabbae v. Dep' t of Soc. & Health Servs., 144 Wn. App. 432, 441, 192 P. 3d 903 ( 2008). Chapter 43. 43 RCW precludes the WSP chief' s reinstating and convicting a trooper of charges that the Trial Board has dismissed; this chapter also limits the chief s authority to discipline the trooper for acts of misconduct that the Trial Board has found were substantiated. But this chapter does not expressly restrict the chief to the Trial Board' s RCW 43. 43. 090. findings in exercising his discretion to decide the nature and extent of discipline for substantiated acts of misconduct. Instead, for purposes of determining appropriate discipline, the chief may consider evidence that exceeds the scope of the Trial Board' s findings. Moreover, Divis does not assign error to any of the Trial Board' s findings of fact, which we therefore take as verities on appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699 And to the extent that Chief Batiste' s following comments can also be characterized as 2005). findings of fact," Divis' s failure to assign error to them by number and citation to record, as RAP 10. 3( a)( 6) and RAP 10. 3( g) require, again means that we may treat them as verities on appeal: 14 Dep' t of Early Learning, 157 Wn. App. 600, 614 -15, 238 P. 3d 74 ( 2010) ( in making a final order, the reviewing judge had the authority to review and revise the portion of See also Islam the ALJ' s initial v. order). finding boards that Kittitas County Appeals v. Dep' reviews serve This principle applies not only to ALJs, but also to administrative fact the same purpose, such as the Conservation Coal., 176 Wn. hearing board decisions t of Soc. & Health Servs., under App. Trial Board here. See Kittitas County v. 38, 46 -47, 308 P. 3d 745 ( 2013) ( Court of the APA, chapter 34. 05 RCW); see also Marcum 172 Wn. App. 546, 559, 290 P. 3d 1045 ( 2012). 10 No. 43744 -9 -II Sergeant Divis' 1) Sergeant Divis to exercise s conduct " more suggests a deeply troubling trend, and a failure by appropriate judgment. I am very concerned about Sergeant Divis' pattern of inappropriate and insensitive behavior, and the fact that he appears to be unable to learn from his This is not Sergeant Divis' first instance of inappropriate and insensitive behavior 2) " related to CP at 28. mistakes." 15 " race and gender, " these were not isolated comments. They were instances of the same reprehensible behavior that Sergeant Divis had also been previously disciplined for, but that disciplinary action clearly was not effective in changing his behavior." CP at 25. It is clear from Chief Batiste' s Second Final Order that he based Divis' s discipline on the two of misconduct acts found by the Trial Board and sustained by the superior court. But in determining the extent and type of discipline, as is his statutory duty under RCW 43. 43. 090, nothing required the chief to limit his consideration to these two findings. On the contrary, it would have been unreasonable for him to have ignored Divis' s prior misconduct, which prior sanctions had failed to remedy. See Chandler, 141 Wn. App. at 650 ( reviewing officer may substitute his or her findings for those made by the ALJ). Years ago, we held that ( 1) instead of imposing the recommended three -day suspension, WSP could dismiss an officer who had " previously been counseled because of his attitude and behavior "; and ( 2) that consideration of the officer' s prior discipline was not tantamount to using 15CPat28. 11 No. 43744 -9 -II hearsay to prove the current charges because it was not admitted to prove the truth of the prior assertions. Zoutendyk, 27 Wn. Arbitrary unreasoning at 72. capricious and action, App. without 16 As we noted in Zoutendyk: action has consideration been and in defined as disregard willful and of facts and Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached. State v. Rowe, 93 Wn.2d 277, 609 P. 2d 1348 ( 1980). Measured by that test, we cannot conclude that the Board' s ultimate conclusion constituted arbitrary circumstances. and capricious action. Zoutendyk, 27 Wn. App. at 72. Similarly, here, once the Trial Board found that Divis committed misconduct, it was within Chief Batiste' s discretion to decide the discipline. See RCW 43. 43. 090. And we cannot say that Chief Batiste acted unfairly, arbitrarily, or capriciously in looking to Divis' s prior employment and disciplinary history in determining the current discipline, rather than making this important decision in a vacuum. For example, Chief Batiste also considered other troopers' reports that Divis' s racially charged comments were becoming more egregious and that previous 16 Zoutendyk involved a state personnel board hearing to review the dismissal of a WSP communications sanction of officer. On appeal, Zoutendyk challenged the board' s imposition of the dismissal, instead of the three -day suspension the hearing examiner had We rejected Zoutendyk' s argument that the board had improperly admitted and hearsay" documents containing evidence that he " had previously been counseled recommended. considered " because of his attitude assertions contained and behavior" in those documents." where they had not been " admitted for truth of the Zoutendyk, 27 Wn. App. at 72. 12 No. 43744 -9 -II attempted rehabilitative discipline and diversity training had failed to correct these behaviors. 17 It was within Chief Batiste' s prerogative to decide that WSP could not tolerate this type of behavior and that Divis was no longer fit to be in a supervisory position. III. PROPORTIONALITY Divis next argues that ( 1) under the WSP' s Administrative Investigation Manual ( AIM), the Trial Board must find that the sanction is proportionate to the offense and comparable to sanctions for similar his to proportionate misconduct; ( offense 2) his or comparable to demotion sanctions from for sergeant others' to trooper was misconduct; and ( not 3) Chief Batiste' s refusal to compare Divis' s discipline to sanctions in other cases, including those that the WSP settled, fails to meet this AIM requirement. We disagree. Divis cites no controlling authority for his argument that AIM requires both the Trial Board and the WSP Chief to compare Divis' s discipline to discipline for other instances of trooper misconduct. On the contrary, the legislature has clearly given sole discretion to the WSP chief to " determine the proper disciplinary action" for charges of misconduct that the Trial Board has " RCW 43. 43. 090. sustained." Although AIM requires WSP to address whether the 17 In his Second Final Order, Chief Batiste emphasized: While his conduct would be inexcusable for any WSP employee, it is particularly egregious coming from a person in Sergeant Divis' position of authority and responsibility. By his comments he communicated intolerance, scorn, and distain They were instances of the same reprehensible behavior that Sergeant Divis had also been previously disciplined for, but that disciplinary action clearly was not effective in changing sic] American troopers.... for his three African - his behavior. CP at 25. 24 - undeterred by Chief Batiste prior inappropriate his conduct stated, " also discipline, and has been, and Sergeant Divis has a pattern of proven misconduct has failed, to date, the impact it has 13 to acknowledge how completely on subordinates." CP at 29. No. 43744 -9 -II discipline is proportionate to the offense and comparable to what another employee would receive, Divis fails to cite authority to show that these AIM requirements preempt the WSP chief' s discretion to impose discipline RCW 43. 43. 090. under Therefore, we do not further consider this argument. RAP 10. 3( a)( 6). IV. FAIRNESS Finally, Divis argues that there was no just cause to demote him, based on several contentions, each of which we separately address and reject. A. Investigation Divis first contends that WSP did not conduct its investigation fairly, one of the elements of cause in WSP' s AIM. LeBlanc, the officer Citing AIM, Divis specifically asserts that Sergeant Charles P. who conducted complainant' s motive or reasons failed to determine the evidence; ( 4) failed to WSP' investigation, ( 1) for coming forward 10 scope and content of use s open ended months after destroyed handwritten questions failed to inquire ' about the when the conduct occurred; ( notes18; interviewing ( 2) 3) relied on hearsay witnesses; ( 5) failed to interview any of Divis' s witnesses; and ( 6) failed to read Divis' s performance reviews. But AIM provides "[ g] uidelines" only for conducting an investigation; it does not establish inviolable procedural requirements that, if not followed, would support a finding that WSP lacked just cause to sanction Divis. AR at 625. 18 The Board heard evidence that the troopers who worked in Divis' s detachment had made contemporaneous handwritten notes reflecting what they had heard Divis say. But these troopers later lost or destroyed their handwritten notes and replaced them with typewritten statements about the content of Divis' s comments. Divis contends that the troopers deliberately destroyed these notes after the investigation commenced. But he provides no support for this assertion; nor does he explain why such action would require reversal of Chief Batiste' s Second Final Order. 14 No. 43744 -9 -II B. Collective Bargaining Agreement ( CBA) Divis next contends that because WSP' s unfair investigation failed to comply with the CBA, the CBA terms prohibited WSP' s disciplinary action, which was unlawful and subject to reversal under RCW 34. 05. 570( 3) Divis first Report" that ( 1) claims 20 the contain ' 19. This argument fails. specific CBA Article allegations 19. 3C against the requires that the " Internal 21; ( employee "' Incident 2) the Trial Board' s findings did not match the Internal Incident Report allegations; and ( 3) therefore, the Trial Board did not comply with CBA procedures. Divis is incorrect: WSP' s Internal Incident Report did contain the specific allegations against Divis, and the Trial Board' s findings did match these Although the Trial Board did not find that Divis intended certain comments as allegations. racial slurs," as alleged, it did conclude that Divis made " insensitive and negative" comments in 22 a racial context. CP at 180, 203. Divis does not show how the Board' s finding, which Chief 19 Washington' s APA, chapter S4. 05 RCW, provides, in part: 3) Review of agency orders in adjudicative proceedings. The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that: c) The agency has engaged in unlawful procedure or decision making process, or has failed to follow a prescribed procedure. RCW 34. 05. 570( 3)( c). 20 ARat596. 21 Br. of Appellant at 33 ( quoting AR at 596). 22 The Trial Board found that Divis commented about " lazy black troopers" and " Aunt Jemima" and that Divis' s comments " included needless references to race, as well as remarks about disciplinary issues." CP at 198, 203. But the Trial Board declined to make a finding about Divis' s intent when he made these comments. contemplated or actual 15 No. 43744 -9 -II Batiste adopted ( and to Divis does which not assign error), violated the CBA. Divis also fails to show why. WSP' s allegedly inadequate investigation and failure to follow its recommended investigation guidelines violated the CBA or his due process rights. Divis also 23 negative " comments violated Trial Board found Divis than the comments) notice of WSP' the Board Trial Board' that the contends the notice requirement a violated would review, as well as him. CP the he that made " insensitive and underlying CBA Article 19. 3C. slightly different regulation ( " That the insensitive and negative" does not violate his CBA Article 19. 3C right to one charged ( "racial slur ") s allegations against finding s at charges 180, 203. Divis was on notice of the facts that brought the WSP. by He cites no authority for the proposition that the Board violated the CBA because it found that Divis' s conduct was slightly less egregious than the conduct with which he was charged. Thus, we decline to address 24 this contention further. Divis then contends that the Internal Incident Report failed to identify the complainant, as required by CBA Article 19. 3A, Br. name and address. ' lists the " Department" properly 23 24 rejected Divis' the at report shall contain "' 35 ( quoting AR complainant, s argument. that the instead Furthermore, ( of at 596). WSP. the complainant' s The Internal Incident Report AR at 500. The Trial Board 1) any error was harmless because Divis was CP at 203. RAP 10. 3( a)( 6) requires McLachlan, 163 Wn. issues if party " does an Appellant of as which states issue ... Wn. App. App. party to support its issues with legal authority. See Regan v. 171, 178, 257 P. 3d 1122 ( 2011) ( Court of Appeals will not address a not provide citation is insufficient to passing treatment of Joy v. Dep' t of Labor & Indus., 170 187 ( 2012) ( quoting West v. Thurston County, 168 Wn. App. 162, merit 614, 629, 285 P. 3d to legal authority. "). Moreover, "' judicial consideration. ' 187, 275 P. 3d 1200 ( 2012)), review denied, 176 Wn.2d 1021 ( 2013). 16 No. 43744 -9 -II on notice of the disciplinary proceedings and the opposing party' s identity; and ( 2) any technical deficiency was CBA Article by cured 19. 5, which states that "[ d] minimis ( minor e or insignificant) variations from the following provisions shall not be the basis for overturning discipline or affect[ ing] the admissibility of evidence." AR at 596. Divis also asserts that because WSP substituted itself as the complainant, without first contacting the WSP Troopers Association, WSP did not comply with the strict requirements of CBA Article 19. 12. CBA Article 19. 12 requires that "[ i]f the Employer decides to substitute the Agency as the complainant, the Employer agrees to contact the Association to discuss the reasons for doing WSP, so." AR this at 597 -98. Divis states that there is no evidence in the record that his advance contact Because CBA Article 19. 12 permits employer, met requirement. Again, Divis misconstrues the CBA requirements. WSP to " substitute [ itself] as the complainant," WSP acted in accordance with AIM in so doing. AR at 598. Furthermore, as WSP correctly notes, the WSP Troopers Association' s vice president and a union representative brought these allegations against Divis; thus, the union was already on notice of the substitution and, consequently, WSP had no need to discuss the reasons for its substitution with the Association. This slight deviation from CBA Article 19. 12 requirements was "[ for overturning discipline or affect[ ing] d] e minimis" and, the admissibility 19. 5). 17 therefore, " of evidence." shall not be the basis AR at 596 ( CBA Article No. 43744 -9 -II C. Chief Batiste Appearance of Fairness Doctrine Finally, Divis argues that Chief Batiste violated the appearance of fairness doctrine by ( 1) making a pre- hearing statement about his lack of confidence in Divis, 25 and ( 2) likely prejudging the case by having already decided to demote Divis before the Trial Board hearing occurred. This argument also fails. Chief Batiste made these statements during a December 3, 2009 hearing in a related arbitration matter. December 7 Order on and May The Trial Board held its hearings in the instant disciplinary matter later, on 9 -11, 2009, 7, 2010, after and on the January arbitrator 21 and 22, 2010. Chief Batiste issued his First Final had issued his April 21, 2010 decision. By the time the Trial Board held its hearings and Chief Batiste issued his First Final Order, Divis likely already knew about Chief Batiste' s statements because Divis had been the grievant in that arbitration in which Chief Batiste had testified. Despite having an opportunity to raise his concerns about Chief Batiste' s fairness at the administrative level, before Chief Batiste entered either his First or Second Final Order, Divis took no action to disqualify Chief Batiste before he entered either order. Because Divis failed to object timely to Chief Batiste' s role in reviewing the Trial Board' s recommendation and in issuing his First and Second Final Orders, we hold that Divis waived this objection; we thus decline to address whether Chief Batiste' s statements violate the 25 Before the Trial Board' s disciplinary proceedings in this case, Chief Batiste testified in a related arbitration matter between WSP and the WSP Troopers Association that he had decided to transfer Divis involuntarily to a different WSP district and to remove Divis from a supervisory position because it contained was his ( Batiste' s) " in the file, that I lost trust detachment." based on the allegations and what' s belief that and confidence Suppl. CP at 461. 18 in [ Divis' s] ability to lead another No. 43744 -9 -II appearance of fairness doctrine. See Hill v. Dep' t of Labor & Indus., 90 Wn.2d 276, 279 -80, 580 P. 2d 636 ( 1978). We affirm the superior court' s affirmance of WSP Chief Batiste' s Second Final Order demoting Divis from sergeant to trooper.26 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 in accordance with RCW 2. 06. 040, it is so ordered. J 26 Because Divis is not the prevailing party on appeal and because he is not entitled to reinstatement, we deny his request for attorney fees on appeal. 19

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