BENNETT v. WASHINGTON STATE PATROL, 25855-2-II (Wash.App. 6-1-2001)

No. 25855-2-II.The Court of Appeals of Washington, Division Two.
Filed: June 1, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Thurston County, No. 98-2-00563-4, Hon. Wm. T. McPhee, April 3, 2000, Judgment or order under review.

Counsel for Appellant(s), Sverre O. Staurset, Law Offices of Sverre O. Staurset, Floor 2, 724 S Yakima, Tacoma, WA 98405.

Counsel for Respondent(s), Eric A. Mentzer, Attorney Gen Offc, P.O. Box 40126, Olympia, WA 98504-0126.

SEINFELD, P.J.

Former Washington State Patrol Trooper Lonnell Bennett appeals his termination from the Washington State Patrol. He claims a violation of his right to due process occurred when (1) the Patrol failed to adequately inform him of the allegations against him, intentionally withheld discovery materials, and engaged in ex parte communications with the Disciplinary Review Board; and (2) the Disciplinary Review Board admitted polygraph evidence, the deposition testimony of one of the witnesses, and other evidence. He also asserts that the superior court erred when it granted a witness’s motion to prevent the release of her medical records and that we should presume the ruling was prejudicial because the superior court shredded the records following an in camera review. Finding no prejudicial error, we affirm.

FACTS
The Patrol’s Office of Professional Services (OPS) initiated an investigation of Bennett after it learned that he had allegedly sexually harassed and/or sexually assaulted three civilian women while on duty. Following two investigative interviews and two pretermination hearings, the Patrol terminated Bennett for unbecoming conduct, immoral conduct, abuse of position, and untruthfulness. Bennett appealed his termination to the Disciplinary Review Board and it affirmed the termination.

Pretermination Proceedings
On October 26, 1994, Detective Sergeant Glenn Cramer presented Bennett with a `Civil Investigation Advance Notice Form’ and a `WSP Employee Bill of Rights.’ Report of Proceedings (RP) at 2677-78. The notice informed Bennett that the OPS was investigating allegations of `Abuse of Position,’ `Immoral Conduct,’ and `Unbecoming Conduct.’ RP at 2677. It also stated that Bennett had `been informed of the nature of the investigation(s) and provided with information apprising [him] of the allegation(s) contained in the complaint.’ RP at 2677.

The Bill of Rights informed Bennett that he was entitled to be `informed of the nature of the investigation prior to any questioning’ and that he could either answer questions immediately or request up to five days `to consult with an attorney and/or prepare to participate in the investigation.’ RP at 2678. Bennett requested time to prepare and signed both the notice and the Bill of Rights.

Cramer first interviewed Bennett on November 14, 1994. Three representatives from the Washington State Patrol Troopers’ Association (WSPTA) also attended the interview, which focused on Bennett’s contact with Cynthia Ricca and Kristy Leach, two of the alleged victims. At the start of the interview, Will Aitchison of the WSPTA asserted that the October notice failed to inform Bennett of exactly what `incident or incidents’ the OPS intended to address at the interview and, thus, was not proper notice.

Cramer stated that when he gave Bennett the notice, `Bennett asked the question who it involved, and then asked the question if it involved two people, and we told him, yes, it was.’ RP at 2448. Cramer refused to provide Bennett with case reports or witness statements before the interview, but he indicated that he would allow Bennett to review the case files and have time to refresh his memory during the interview.

Cramer interviewed Bennett a second time on January 19, 1995. Two additional Patrol officers and two WSPTA representatives also attended the interview. In this interview, Cramer questioned Bennett about the previous interview and about his contact with Sherry Muckian, the third alleged victim. Bennett and Aitchison both asserted that OPS had not provided Bennett with adequate notice of Muckian’s allegations.[1]
Cramer stated that the October notice also related to Muckian’s allegation.

OPS concluded its investigation on March 16, 1995, and issued an investigative report. Captain Timothy J. Quenzer reviewed the report and determined that the evidence supported termination. On April 17, the Patrol informed Bennett of the specific charges and the proposed discipline and gave him a copy of the investigative file.

Quenzer conducted the first pretermination meeting on May 15. Although Bennett’s counsel was unavailable, Valerie Fanning, a WSPTA representative, attended the meeting. Quenzer conducted a second pretermination meeting on June 13. Both Fanning and Bennett’s attorney attended this meeting.

After the pretermination meetings, Quenzer informed Bennett that the evidence supported termination. Bennett requested review by a Disciplinary Review Board under Article 15 of the Collective Bargaining Agreement (CBA) between the Patrol and the WSPTA.

The Patrol officially terminated Bennett on July 7, 1995.

Posttermination Proceedings
As required under Article 15.C.3.a of the CBA, the Review Board contained two Patrol appointees, two WSPTA appointees, and a neutral chair.

A prehearing conference order required the parties to complete all depositions and submit all discovery before the first day of the hearing. But Bennett apparently conducted no depositions or discovery before the first day of the hearing and, as a result, the Chair allowed additional discovery throughout the hearing process.

During the first two days of the hearing, the Chair and the parties addressed discovery issues, admission of evidence, and admission of Leach’s polygraph test. The Chair admitted the polygraph evidence over Bennett’s objections and ruled on the admissibility of evidence throughout the hearing, admitting approximately 103 exhibits.

Testimony before the full Review Board began April 17, 1996, but Bennett’s attorney became ill and the Chair continued the hearing to May 13. Five days before the re-scheduled hearing date, the Patrol announced the retirement of one of its Review Board members and, pursuant to Article 15.C.3.c of the CBA, the selection of a replacement. The Chair allowed the substitution, but he struck the testimony of Muckian and another witness who had already testified and he ruled that the reconstituted Review Board could not consider their testimony unless the witnesses testified again.

On April 15 and again on May 15, the Chair ordered the Patrol to produce Bennett’s complete personnel file, including any unsubstantiated complaints against Bennett. In response, Carol Smith, counsel for the Patrol, sent a letter to the Review Board members with a copy to Bennett, stating that the Patrol believed that the unsubstantiated complaints were confidential under the Public Records Act and that it would not disclose them until a protective order was in place.

Bennett objected to Smith’s contact with the Review Board members and moved for dismissal. The Chair denied the motion and ordered the Patrol to produce the documents, which it apparently did after Bennett obtained a superior court ruling that the Chair had the authority to compel production.

In September 1996, Bennett learned that Leach had filed a tort claim against the Patrol in March 1996. After the Chair ordered the Patrol to produce all documents related to the claim, the Patrol produced an April 2, 1996, letter from the Attorney General acknowledging the receipt of Leach’s claim and a copy of the claim.

In December 1996, Bennett’s counsel concluded that the Patrol had not provided all the requested documents and requested all additional documents related to Leach’s claim. He renewed this request twice during the first week in January 1997. On January 8, the Patrol submitted approximately 82 pages of additional materials, which indicated that the parties had settled the claim for $150,000.

After receiving these documents, Bennett moved for dismissal, alleging a pattern of due process violations or, in the alternative, for a continuance to allow him to investigate the new information. The Chair granted the continuance and, after giving the Patrol an opportunity to respond, denied the motion to dismiss. Bennett later requested and received an additional continuance in order to depose Leach and to obtain her medical records.

In February 1997, Bennett sent requests for Leach’s medical and psychological records and subpoenas duce tecum to Puget Sound Hospital, Harborview Sexual Assault Center, Genesis House, and Seattle Rape Relief. Leach filed a motion with the Thurston County Superior Court for an order prohibiting disclosure of these records. A superior court judge issued a temporary order prohibiting disclosure and ordering Bennett to show cause as to why the court should not issue a permanent order.

Bennett argued that the Puget Sound Hospital records would show that Leach was using drugs around the time of the alleged incident and, thus, the records were relevant to her credibility because she testified that she was not using drugs then. Bennett also asserted that the records might show that Leach suffered from other mental problems that may have affected her credibility and might relate to her ability to recall and perceive events.

The superior court found that Bennett had not made a showing of special need for the Harborview Sexual Assault, Seattle Rape Relief, and Genessis House records and refused to conduct an in camera review of those records. But the court concluded that he had shown good cause for in camera review of the Puget Sound Hospital records. After reviewing Puget Sound Hospital’s records, the court granted Leach’s motion and informed the parties that it had shredded the records.

The hearing continued through August 28, 1997. At the completion of the testimony, the Patrol moved to admit Muckian’s previous testimony because it had been unable to produce her to testify before the reconstituted Review Board. Bennett objected and also moved to exclude Muckian’s earlier deposition testimony. The Chair denied the Patrol’s motion but refused to exclude Muckian’s deposition, which it had admitted without objection after the new Review Board convened.

On February 5, 1998, the Review Board issued its written findings and sustained Bennett’s termination. The Review Board concluded that the evidence supported the allegations of both Leach and Ricca and that either allegation alone was sufficient to support Bennett’s termination.

Bennett appealed to Thurston County Superior Court, which sustained the Review Board’s decision. This appeal followed.

DISCUSSION I. DUE PROCESS A. Standard of Review
Section 15.C.3.j of the CBA limits our review of the Review Board’s decision to determining whether the Review Board made an error of law under Chapter 34.05 RCW: `The decision of the Board . . . shall be final and binding on the parties, subject to reversal only if the Board has made an error of law under RCW 34.05.’ RP at 4099. We review the Review Board’s action de novo based on the record before the Review Board, and Bennett has the burden of establishing the invalidity of the order and is entitled to relief only if he can show substantial prejudice. RCW 34.05.558;[2] RCW 34.05.570(1)(a), (b), (d).[3]

Apart from his assignment of error related to the in camera review of Leach’s medical records, Bennett’s sole assignment of error is that the Review Board and the trial court denied him his right to due process by not following the relevant statutes, regulations, administrative code, and the CBA requirements.[4] As Bennett has not assigned error to any of the Review Board’s findings of fact, those findings are verities on appeal. RAP 10.3(g); Davis v. Dep’t of Labor Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980); Dept. of Labor Indus. v. Kantor, 94 Wn. App. 764, 772, 973 P.2d 30, review denied, 139 Wn.2d 1002
(1999).

B. Protected Interest and Adequacy of Process
To succeed on a due process claim, Bennett must show that he was: (1) deprived of a property or liberty interest, and (2) denied adequate due process prior to the deprivation of that interest. Danielson v. City of Seattle, 108 Wn.2d 788, 795, 797, 742 P.2d 717 (1987).

The parties agree that Bennett had a property interest in his continued employment. Danielson, 108 Wn.2d at 796 (civil service police officers dischargable only for cause have a protected property interest in continued employment). But the Patrol disagrees with Bennett’s contention that he had a property interest in the Patrol following its own rules related to its investigation and its termination proceedings, that the Patrol violated these rules, and that this denied him due process.

The State’s position has merit as the Washington State Supreme Court overruled in part the case that Bennett relies on, Punton v. City of Seattle Public Safety Comm’n, 32 Wn. App. 959, 650 P.2d 1138 (1982). In Danielson, the Supreme Court stated:

To the extent that the Punton opinion suggests that the Department’s failure to follow its procedures gave rise to a prima facie deprivation of due process, it is overruled. As the Court of Appeals below correctly observed, an agency’s failure to follow its own rules does not per se violate procedural due process, but does so only when the agency’s rules represent minimal due process requirements.

108 Wn.2d at 797 n. 3 (citation omitted). See also Williams v. City of Seattle, 607 F. Supp. 714 (W.D.Wash. 1985) (questioning Punton). Danielson clearly establishes that an agency’s rules and procedures may create a protected property interest. But these rules and procedures do not define the process required to protect that property interest. Instead, we look to federal law to determine whether the plaintiff received minimal due process. 108 Wn.2d at 795, 797 n. 3.

The Patrol argues that the process Bennett received exceeded the minimal due process requirements established in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and reiterated in Danielson. The Patrol is correct.

In Loudermill, the Supreme Court held that although due process requires that an employee receive some kind of hearing before termination, the hearing need not be a full adversarial hearing. 470 U.S. at 545-46. See also Danielson, 108 Wn.2d at 798. The employee is entitled to (1) `oral or written notice of the charges against him,’ (2) `an explanation of the employer’s evidence,’ and (3) `an opportunity to present his side of the story.’ Loudermill, 470 U.S. at 546. See also Williams, 607 F. Supp. at 720; Danielson, 108 Wn.2d at 798; Gibson v. City of Auburn, 50 Wn. App. 661, 665, 748 P.2d 673 (1988).

Before his termination was final, Bennett (1) received a notice outlining the charges; (2) participated in two interviews with Cramer where they discussed the specific allegations; (3) received OPS’s investigative file and was informed that the Patrol had determined that the evidence supported his termination; and (4) participated in two pretermination meetings with Quenzer approximately one month after receiving the investigative file. In every interview or meeting with OPS or the Patrol, Bennett had an opportunity to respond to the allegations and had either a WSPTA representative or his attorney representing him. Additionally, Bennett received a full evidentiary hearing after his termination. Thus, the record here clearly establishes that the Patrol provided Bennett with adequate due process before depriving him of his property interest.

Because the federal due process requirements, rather than the Patrol’s regulations and procedures, establish the relevant due process rights, and the process the Patrol afforded Bennett met these minimal requirements, the individual errors that Bennett alleged alone are not determinative. But even assuming they were, Bennett’s arguments as to these errors are not persuasive.

C. Other Alleged Errors
Bennett argues that it was error to admit Leach’s polygraph results and Muckian’s deposition testimony. But this evidence is not related to Ricca’s allegations. Because the Review Board concluded that Ricca’s allegations alone justified termination, any error did not cause substantial prejudice. See RCW 34.05.570(1)(d).

Bennett also asserts that the Patrol abused discovery (1) when it failed to inform him of Leach’s tort claim and failed to produce all the relevant documentation when ordered to do so, and (2) when it failed to produce the unsubstantiated complaints. But, again, he fails to show substantial prejudice, which we must find before we can impose the sanction of default for these alleged discovery abuses. See Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 228-29, 548 P.2d 558 (1976). The materials related to Leach’s tort claim do not relate to Ricca’s allegations, and Bennett does not show that the Patrol’s delay in producing those materials caused him substantial prejudice.

Further, the Patrol ultimately provided the requested materials and the Chair granted Bennett generous continuances, during which he had ample time to investigate the new information. In fact, Bennett deposed and cross-examined Leach after the Patrol provided these materials. The Review Board’s findings reflect that they considered Leach’s tort claim and settlement in their decision. It also appears that Bennett had time to review and consider the unsubstantiated complaints after he received them and the opportunity to present this information to the Review Board.

Nor can Bennett show that Smith’s direct contact with the Review Board regarding the unsubstantiated complaints caused any prejudice. The Patrol ultimately produced the materials and Bennett was allowed time to review the information once he received it.

Finally, although Bennett asserts that 34 of the 103 exhibits contained hearsay, he fails to designate the specific 34 exhibits. Thus, we cannot conduct a meaningful review of this alleged error. RAP 10.3(a)(3).

II. IN CAMERA REVIEW
Finally, Bennett argues that the superior court committed reversible error when it shredded Leach’s Puget Sound Hospital records after examining them in camera.

Once again, Leach’s records related solely to Leach’s allegations and had no bearing on Ricca’s allegations. As Ricca’s allegations alone would be sufficient to support Bennett’s termination, Bennett has failed to show that the trial court’s denial of access to Leach’s records or the court’s failure to preserve the documents caused prejudice.

Further, Bennett has not shown that he either asked the superior court to preserve the records[5] or made an effort to reconstruct them so that we could conduct a meaningful review of these items.[6]

Because Bennett, as the appellant, has the burden of providing an adequate record on review and has the burden of showing that the superior court’s order denying him access to these records prejudiced him, we will not presume prejudice. RAP 9.6(a); RAP 9.2.

Accordingly, we affirm.

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.

WE CONCUR: BRIDGEWATER, J., QUINN-BRINTNALL, J.