SCEARCY v. THE CITY OF TACOMA, 26648-2-II (Wash.App. 11-2-2001)

No. 26648-2-II.The Court of Appeals of Washington, Division Two.
Filed: November 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 002099211, Hon. Stephanie A. Arend, October 17, 2000, Judgment or order under review.

Counsel for Appellant(s), Liam M. Golden, Law Offices of Monte Hester, 1008 S Yakima Ste 302, Tacoma, WA 98405.

Counsel for Respondent(s), George S. Karavitis, Assistant City Attorney, P.O. Box 11007, Tacoma, WA 98411.

QUINN-BRINTNALL, J.

The City of Tacoma terminated Lannie Scearcy’s employment for inappropriate conduct. He received a notice of the hearing on the termination proceedings but did not respond. He then appealed his termination to the Tacoma Civil Service Board, which reinstated him after a six-month suspension. He appealed the suspension to Pierce County Superior Court, requesting that it issue a writ of certiorari to review the Board’s decision. The City moved to dismiss the writ and the superior court granted the motion. Scearcy appealed the denial of the writ of certiorari to this court. As he did below, Scearcy has failed to provide this court with sufficient allegations or facts to support the writ. Thus, we affirm the superior court’s decision.

FACTS
Lannie Scearcy, Sr. (Scearcy) was employed by the City of Tacoma from 1977 until January 13, 2000. He worked in the Department of Public Utilities, Water Division. He was terminated from his position because of inappropriate conduct in the workplace, including using racial epithets and profane language, locking a fellow employee in a sani-can, and `horseplay and pranks during the work day that could endanger himself or others.’ Clerk’s Papers at 5.

Scearcy was given Notice of Intent to Terminate Employment on January 6, 2000. The notice contained the procedures for responding to the charges. Scearcy waived his right to a review hearing at that time and was terminated. He then submitted a timely appeal to the Civil Service Board (CSB) alleging a violation of the Tacoma Municipal Code (TMC) 1.24.940 and 1.24.950.[1]

The CSB met three times, on June 5, 7, and 12, 2000, to consider Scearcy’s case. On June 19, 2000, the CSB issued Findings of Fact, Conclusions of Law, and Decision. It found that Scearcy’s conduct warranted discipline but, in light of the Water Division’s poor management practices, that termination was not the appropriate punishment. Instead, the CSB suspended Scearcy for six months starting from the January 13, 2000 termination date.

On July 24, 2000, Scearcy applied to Pierce County Superior Court for a writ of certiorari to review the record of proceedings before the CSB. In his declaration in support of the writ, Scearcy alleged that the CSB erred by failing to impose progressive discipline and by imposing the six-month suspension. He requested the writ be issued `directing the Board to certify its records in this proceedings [sic] to this Court so that the reasonableness and lawfulness of its decision may be inquired into and determined[.]’ Clerk’s Papers at 3. He gave no additional grounds in support of this writ.

The City filed a motion to dismiss the writ on September 14, 2000. At the September 29, 2000 hearing on this motion, Scearcy claimed that the CSB violated a binding union contract that required progressive discipline prior to termination. His brief to the trial court did not contain the progressive discipline materials Scearcy claimed were violated. The court gave Scearcy’s attorney a week to supplement the record with the necessary materials. He did not do so. In addition, Scearcy argued he was singled out and that the CSB imposed more discipline than allowable under TMC 1.24.940. He did not substantiate his allegations with facts. The court granted the City’s motion to dismiss on October 17, 2000.

ANALYSIS
The superior court has inherent power under article IV of the Washington Constitution to review administrative decisions for illegal or arbitrary acts. State ex rel. Dupont-Fort Lewis Sch. Dist. No. 7 v. Bruno, 62 Wn.2d 790, 794, 384 P.2d 608 (1963); Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 221, 643 P.2d 426 (1982). An agency’s violation of the rules that govern its exercise of discretion is considered contrary to law and is as fundamental as the right to be free from arbitrary and capricious action. Pierce County Sheriff v. Civil Serv. Comm’n of Pierce County, 98 Wn.2d 690, 693-94, 658 P.2d 648
(1983). On appeal of a superior court judgment in a certiorari proceeding, we make a de novo review similar to that of the superior court to determine whether the administrative decision was arbitrary and capricious or contrary to law. Thomsen v. King County, 39 Wn. App. 505, 515, 694 P.2d 40 (1985).

There are three potential avenues of appeal from the decision of an administrative agency. `[A] specific statute may authorize appeal. . . . Second, any party may obtain review by a statutory writ of certiorari if the agency is `exercising judicial functions’. RCW 7.16.040. Finally, the courts have inherent constitutional power to review `illegal or manifestly arbitrary and capricious action violative of fundamental rights’.’ Pierce County Sheriff, 98 Wn.2d at 693. A constitutional writ of certiorari is not a matter of right, but discretionary with the court. Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288, 304, 949 P.2d 370 (1998).

Scearcy conceded to the trial court and in his brief to this court that no statutory right to a writ of certiorari existed.

Personnel policy and management is an administrative or executive function rather than a function historically or traditionally resting with the judicial branch of government. Washington Public Employees Ass’n v. Washington Pers. Res. Bd., 91 Wn. App. 640, 650, 959 P.2d 143
(1998). The function of a board hearing and determining appeals from employees who have been dismissed for cause by their employing agency is nonjudicial in nature. State ex rel. Hood v. Washington State Pers. Bd., 82 Wn.2d 396, 401, 511 P.2d 52 (1973). The CSB’s review of personnel policy is not considered a judicial function. The only remaining source of jurisdiction for this court and the trial court in its appellate capacity is the court’s inherent constitutional power. This review is thus limited to a demonstration that the CSB acted either illegally or in an arbitrary and capricious manner.

Review for illegality is restricted to examining whether the agency acted within its authority as defined by the constitution, statutes, and regulations. King County v. Washington State Bd. of Tax Appeals, 28 Wn. App. 230, 242-43, 622 P.2d 898 (1981). Arbitrary and capricious action is defined as willful and unreasoning action without consideration 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 appellant has the burden of perfecting the record so that the reviewing court has before it all of the relevant evidence. Bulzomi v. Dep’t of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994). As shown below, Scearcy provides no information to pursue either avenue.

Scearcy argued to the trial court and to this court that the City violated the rule in the union contract requiring the imposition of progressive discipline prior to termination. He failed to provide a copy of that requirement to the superior court even when given an additional week to obtain the collective bargaining agreement, nor has he included it in his materials on appeal. Thus, this avenue for appeal is foreclosed.[2]

Scearcy’s last avenue for appeal is that the CSB acted in an arbitrary and capricious manner. Scearcy claimed that the CSB failed to require the City to discipline him for `just cause’ and argues that improperly admitting Equal Employment Opportunity (EEO) reports as part of the findings of fact is evidence of this. Scearcy’s argument appears to be that he did not have access to the CSB’s records.[3] He claims a review by this court of the CSB’s record would demonstrate that its acts are arbitrary and capricious. But these unsupported allegations are insufficient to demonstrate arbitrary and capricious CSB action.

Prior to its decision, the CSB conducted three hearings that provided both sides an opportunity to present evidence. The CSB followed its published procedures in making its decision. It considered the failure of the Water Division to adequately supervise its personnel.

The CSB reversed a termination decision in favor of suspension and granted the bulk of the suspension for time already off work. Even excluding allegations from a prior EEO report, there were still substantial undisputed findings supporting the CSB’s decision. This is not the `willful and unreasoning action . . . without consideration and in disregard of facts’ that qualifies as arbitrary and capricious. Pierce County Sheriff, 98 Wn.2d at 695.

Scearcy’s other argument, that the City singled him out for punishment and allowed many others to go unpunished, is also unpersuasive. Even if true, he provided no facts to support this allegation. Moreover, because the CSB cited mismanagement as a ground for mitigating Scearcy’s discipline, it appears the CSB did consider Scearcy’s claim. In any event, the claim that he received unequal treatment and that others were allowed to `get away with it’ is not a defense in a disciplinary action. See Lindemann, Barbara Paul Grossman, Employment Discrimination Law 10-11 (3d ed. 1996) (disparate treatment claim requires proof of employer’s discriminatory intent); see also State v. Terrovonia, 64 Wn. App. 417, 422, 824 P.2d 537 (1992) (an unconstitutional selective prosecution claim requires the defendant show a failure to prosecute those similarly situated and improper motivation). Scearcy’s bare allegations are insufficient to demonstrate that the CSB acted in an arbitrary and capricious manner.

Lastly, Scearcy claimed a violation of his due process rights under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (failure to provide a pretermination hearing to public employee dismissable for cause violates due process). He neglects to mention, however, that he was provided with a pretermination hearing to address the merits of his argument when he first received the Notice of Intent to Terminate Employment. He chose not to attend. Thus, this argument fails as well.

Scearcy has not demonstrated that the CSB acted illegally or in an arbitrary and capricious manner. On this record, the trial court did not err in denying the writ of certiorari. Thus, this court affirms the decision of the Pierce County Superior Court.

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., ARMSTRONG, C.J.