                                                                                 COURT      QFAPEALS
                                                                                          DIVISIGM 11

                                                                               1013 APIR 30        AM 8: 31
                                                                               ITE

                                                                                L 1 .-.




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II


HAROLD SPROUSE,                                                      No. 42421 5 II .
                                                                               - -


                              Respondent,

      VA ,




LEWIS COUNTY SHERIFF'S                                          UNPUBLISHED OPINION
DEPARTMENT,

                              Appellant,

LEWIS COUNTY CIVIL SERVICE
COMMISSION, and LEWIS COUNTY,

                              Defendants.


            BRINTNALL,
       QUINN-                J. —       Harold Sprouse appealed the Lewis County Civil Service

Commission's Commission)decision affirming his termination from the Lewis County Sheriff's
               (

Department (Sheriffs Department) to the Lewis County Superior Court, and argued that (1)the

decision was not made in good faith for cause and was arbitrary and capricious, and (2)the

decision was contrary to law because it violated the First Amendment and Lewis County's

whistleblower policy. The superior court reversed the Commission's decision and the Sheriff's

Department appeals   the   superior   court's decision.     The Commission duly considered all the

evidence presented at the hearing; therefore its decision was not arbitrary and capricious. And
because   Sprouse's speech    was     not   protected   under either the First Amendment      or   Lewis
No. 42421 5 II
          - -



County's whistleblower policy, the             Commission's          decision was not contrary to law.

Accordingly, we affirm the Commission's decision.

                                                  FACTS


         In March 2009, Sprouse was briefly involved in an investigation concerning Lewis

County Sheriff Mansfield. In August, 2009, The Chronicle, a local newspaper, received copies

of   police reports   related to the   investigation. The reports were released without the Sheriff's

Department's     authorization.        Two highly -
                                                  ranked members of the Sheriffs Department,

Commander Steven Aust and Chief Civil Deputy Stacy Brown, were assigned to investigate

whether the report had been leaked from within the Sheriff's Department.

         At the time, Sprouse was one of several people who had a hard copy of the report in his

possession. Commander Aust obtained the report from Sprouse and had it fingerprinted to

determine if the report had been handled            by    any unauthorized     people. The fingerprinting

revealed two sets of unauthorized         fingerprints   on   the   report: Sprouse's adult   son,   Brad,'and

Sprouse's son's girlfriend. On September 24, 2009, Aust and Deputy Brown interviewed Brad
and his girlfriend. The interview revealed that Brad and his girlfriend had unauthorized access to

the   report but neither had released the report         to the media.     Aust and Brown did not inform


Sprouse about the interviews prior to conducting them.

         On October 14, 2009, Sprouse received a timed letter of reprimand for failing to properly
secure    confidential   police reports. Under the terms of the reprimand, the letter would be

permanently removed from Sprouse's personnel file after 18 months. On October 17, three days

after receiving the reprimand, Sprouse met with Sergeant Rob Snaza and told Snaza that he



  Brad Sprouse's first name is used for clarity.

                                                         P
No. 42421 5 II
          - -



believed Commander Aust's, Deputy Brown's investigation was excessive and a form of
                         and

harassment. The next day, Sprouse made a similar report to another sergeant.

       The Sheriff's Department conducted a fact -finding inquiry to determine whether Sprouse

had handled his allegations about Commander Aust's and Deputy Brown's allegedly excessive

investigation in an inappropriate manner. While the fact-
                                                        finding inquiry was being conducted,

Sprouse called Deputy Prosecuting Attorney Jonathan Richardson and told Richardson that he

believed he had been the victim of witness tampering and intimidation. Richardson informed

Prosecuting Attorney Michael Golden of Sprouse's complaint.          The complaint was then

forwarded to the Washington State Attorney General's Office and the Washington State Patrol

WSP).WSP Detective Matt Hughes spoke to Richardson and Sprouse and after discussing the

case with other members of the WSP, determined that no further action was necessary.

       The Sheriff's Department later became aware of Sprouse's report to Richardson. After

becoming aware of Sprouse's report, the Sheriff's Department began disciplinary proceedings

against Sprouse.   Throughout the disciplinary proceedings, Sprouse maintained that he felt he

was subjected to witness tampering and harassment as a result of Commander Aust's and Deputy
Brown's   investigation.   Former RCW 9A. 2. 1994);former RCW 9A. 6. 2003).
                                      120 (
                                        7                     020 (
                                                                4

Ultimately, Sprouse's employment as a deputy sheriff was terminated.

       Sprouse appealed    his termination to the Commission.    The Commission upheld the

termination decision because the Sheriff's Department had proven that " eputy Sprouse, with no
                                                                      D

reasonable basis, communicated a criminal allegation against senior members of the Lewis

County Sheriff's Office to the Prosecuting Attorney and did so in retaliation for disciplinary
action taken against him previously, and further that that conduct is grounds for serious

disciplinary action and therefore the termination was imposed in good faith for just cause:"
                                               3
    No. 42421 5 II
              - -



    Clerk's Papers (CP) at 184 85.
                               -          Sprouse appealed to the Lewis County Superior Court which

    reversed the Commission's decision. The Sheriff's Department appeals.

                                                    ANALYSIS


           The Commission is a statutorily created body whose members are appointed by officials

    outside the   police   force to   ensure   independence.      RCW 41. 2.
                                                                      030.
                                                                        1      Our authority to review

    Commission decisions is also defined          by   statute.   RCW 41. 4. Under RCW 41. 4.
                                                                      120.
                                                                        1              120,
                                                                                         1

    t] judiciary's role in reviewing action taken by the [Civil Service] Commission is severely
     he

    limited."Greig v. Metzler, 33 Wn. App. 223, 226, 653 P. d 1346 (1982).Appellate review of a
                                                          2

    Commission's decision " hall be confined to the determination of whether the order of removal,
                          s

    suspension, demotion, or discharge made by the commission, was or was not made in good faith

    for cause, and no appeal shall be taken except upon such ground or grounds."RCW 41. 4.
                                                                                    120.
                                                                                      1

    On appeal, we review the Commission's record, not the record or decision at the superior court.

    Grieg, 33 Wn. App. at 226.

           In his briefing, Sprouse cites to the Administrative Procedure Act (APA), 34. 5
                                                                                   ch. 0
I

    RCW, and several APA cases to define our standard of review. As a result, Sprouse alleges that

    we review findings of fact for substantial evidence and conclusions of law de novo. However, it
    is clear that ch. 41. 4 RCW governs "Civil Service for Sheriff's Office." Specifically,
                        1                                                                        RCW

    120
    41. 4.explicitly controls decisions regarding "removal, suspension, demotion, or discharge"
      1

    and explicitly states the proper standard of review. Under RCW 41. 4. do not separately
                                                                   120,
                                                                     1 we

    review findings of fact or conclusions of law. Instead, we review the Commission's decision as

    a whole to determine whether the decision demonstrates that the Commission duly considered

    the evidence presented at the hearing. See State ex rel. Perry v. City of Seattle, 69 Wn. d 816,
                                                                                            2

    821, 420 P. d 704 (1966).
              2

                                                           M
No. 42421 5 II
          - -



       We "must exercise independent judgment to determine whether the Commission acted

arbitrarily, capriciously, or contrary    to law."Greig,      33 Wn. App. at 226 (citing Benavides v.

Civil Service Comm'n, Wn. App. 531, 613 P. d 807 (1980);
                    26                   2             Eiden v. Snohomish Cy. Civil

Serv. Comm'n, Wn. App. 32, 533 P. d 426 (1975)). "[ decision by an administrative
             13                 2              But a]

commission is not arbitrary and capricious simply because a trial court and this court conclude,

after reading the record, that they would have decided otherwise had they been the administrative

commission." Perry, 69 Wn. d at 821. Indeed, the Commission's decision is not arbitrary or
                         2

capricious if the Commission duly considered the evidence presented at the hearing. Perry, 69

Wn. d at 821.
  2              Reviewing courts are prohibited from "substitut[ing]their] judgment for the
                                                                      [

independent judgment of the civil service commission."Perry, 69 Wn. d at 821.
                                                                  2

        Sprouse alleges   two   grounds   for   reversing   the Commission's decision.   First, Sprouse

alleges that the Commission's decision was not made in good faith for cause because it was

arbitrary or capricious. Second, Sprouse argues that the Commission's decision was contrary to

law because it violated Sprouse's First Amendment rights and the Lewis County whistleblower

policy. After applying the limited standard of review allowed to us by statute, we are compelled
to affirm the Commission.


ARBITRARY AND CAPRICIOUS


        Here, the Commission determined that Sprouse's termination was made in good faith for

cause based on its findings that Sprouse had no reasonable basis for his report that his

supervisors engaged      in   criminal   activity.   In reaching this conclusion, the Commission

considered, and discounted, Sprouse's belief that the investigation into the leaked report was

intimidating   and   harassing. Instead, the Commission focused on the fact that Sprouse had

repeatedly been informed that his supervisors did not believe there had been any criminal
                                                      5
No. 42421 5 II
          - -



conduct, the investigation into the sheriff's conduct had already been completed, and Sprouse

had received only minor discipline for failing to secure the report.

          Sprouse does not argue that the Commission failed to consider this evidence when

making    its decision.   Instead, he argues that the Commission failed to correctly interpret the

evidence or improperly assigned weight to the testimony. In other words, Sprouse's argument

that the Commission's decision was arbitrary and capricious is an attempt to persuade us to

weigh the evidence differently and to reach a different conclusion than the Commission. Even if

we agreed with Sprouse's interpretation of the evidence, it is not appropriate for us to reverse the
Commission because we would have reached a different conclusion. Furthermore, it is evident

that the Commission duly considered all the evidence and it dismissed other bases for Sprouse's

termination that were not supported by the evidence presented at the hearing. Therefore, as a
matter of law,the Commission's decision was not arbitrary and capricious. RCW 41. 4.
                                                                              120.
                                                                                1

CONTRARY TO LAW


          Sprouse also contends that his report to the prosecutor was protected speech under the
First Amendment and the Lewis              County whistleblower policy.       Sprouse argues that the

Commission's decision should be reversed because the decision is contrary to law. But the


Sheriff's Department correctly argues that Sprouse's speech is not protected under the First



2
    The     Sheriff's   Department presented        four   reasons   for. Sprouse's   termination: (   1)
insubordination, 2)disregard of the chain of command, 3)
                 (                                    ( dishonesty and untruthfulness, and
               his official              to retaliate without any basis in fact." CP       at   182.   The
4)using
   "                          position
Commission found that the allegations of dishonesty and untruthfulness were not supported by
the ' evidence.    The Commission also concluded that the allegations of insubordination and
violating the chain of command were improper because reporting a crime to an appropriate
authority    cannot be    insubordinate   or   violate the chain of command.    However, as explained
above, the Commission concluded that the retaliatory nature of the report justified Sprouse's
termination.
                                                       6
No. 42421 5 II
          - -



Amendment. In addition,            Sprouse's report   was    not   a   whistleblower   complaint. Accordingly,

Sprouse's argument that the Commission's decision was contrary to law fails.

         As an initial matter, the Commission determined that " deputy sheriff, who has a good
                                                              a

faith belief that a crime has been committed in the Sheriff's Office has every right to

communicate that to a representative of the Lewis County Prosecuting Attorney's Office."CP at

184. But the Commission found that Sprouse lacked such a good faith belief that a crime had

been committed and, therefore, his speech was not protected by this right. We note that, whether

the statement was false or made in good faith is not the correct inquiry to determine whether an

employee's First Amendment rights have been violated by an adverse employment action. As

we explain below, the Commission's decision reached the correct legal conclusion and, thus, the

Commission's decision was not contrary to law.

         A.        FIRST AMENDMENT


         The First Amendment prohibits the. government from making any law "abridging the

freedom of speech." U. . CONST. amend. I. Although government employees do not give up
                     S

their First Amendment            rights " to   comment   on    matters     of   public interest,"a   government

employee's rights under the First Amendment are limited by the " tate's interests as an employer
                                                               S
in   regulating   the   speech   of its   employees." Connick v. Myers, 461 U. . 138, 140, 103 S. Ct.
                                                                             S

1684, 75 L.Ed. 2d 708 (1983).Our task, when determining whether a government employer has

violated an employee's First Amendment right, is to seek `a balance between the interests of the
                                               "

employee],as a citizen, in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public services it performs through its

employees. "' Connick, 461 U. .at 142 (alteration in original) quoting Pickering v. Bd. ofEduc.
                            S                                  (

of Twp. High Sch. Dist. 205, Will County, Ill., U. . 563, 568, 88 S. Ct. 1731, 20 L.Ed. 2d
                                              391 S
                                                         7
No.42421 5 II
         - -



811 (1968)).
          Therefore, when a public employee speaks not as a citizen upon matters of public
                     "

concern, but instead as an employee upon matters only of personal interest, absent the most

unusual circumstances, the] court is not the appropriate forum in which to review the wisdom of
                       [

a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

Connick, 461 U. .at 147.
              S

         Recently, the Ninth Circuit distilled the case law establishing government employee

protections under the First Amendment into a five step inquiry. Eng v. Cooley, 552 F.d 1062,
                                                  -                                 3

1070 (9th Cir. 2009),
                    cent. denied, 130 S. Ct. 1047 (2010).This inquiry poses five questions:

         1)W]   [ hether the [employee] spoke on a matter of public concern; ( )whether
                                                                               2
         the [employee] spoke as a private citizen or public employee; ( )whether the
                                                                          3
         employee's]     protected speech was a substantial or motivating factor in the
         adverse employment action; 4) ( whether the state had an adequate justification for
         treating the employee differently from other members of the general public; and
         5)whether the state would have taken the adverse employment action even
         absent the protected speech.

Eng, 552 F.d at 1070. If the employee fails to show that the matter was of public concern, the
          3

speech is unprotected and our inquiry ends.

         A matter of public concern relates to "`
                                               any matter of political, social, or other, concern to

the   community. "' Eng, 552 F. d at 1070 (quoting Johnson v. Multnomah County, Or., F.d
                              3                                                    48 3

420, 422 (9th Cir.), denied, 515 U. . 1161 (1995).But ` peech that deals with individual
                  cent.           S               " s

personnel disputes and grievances and that would be of no relevance to the public's evaluation of
the   performance   of   governmental agencies   is   generally   not of public   concern. "'   Eng, 552 F.d at
                                                                                                          3

1070 .(
     internal quotations omitted) quoting Coszalter v. City of Salem, 320 F. d 968, 973 (9th
                                  (                                        3

Cir.2003)).

         Sprouse argues that his statements should be characterized as a matter of public concern

because they related to potential criminal activity and corruption in the Sheriff's Department.
                                                        8
No. 42421 5 II
          - -


But             content, form, and
      given the "`                        context "'   of the statement, the Commission characterized the

statements as a personnel matter related to Sprouse's dissatisfaction with the way in which the

sheriff handled his earlier disciplinary matter. Eng, 552 F.d at 1070 (quoting Johnson, 48 F. d
                                                           3                                3

at 422). We agree, therefore, that Sprouse's statements were not related to a matter of public

161630TKfill
        -




          Sprouse's statements are not protected speech under the First Amendment insofar as they

relate to adverse employment action because Sprouse did not speak on a matter of public

concern.       Because Sprouse's speech was unprotected, the Commission's decision was not

contrary to law.

          B.      WHISTLEBLOWER POLICY


           Sprouse also argues that he was required to make the report to the prosecutor under

Lewis County's whistleblower policy. Sprouse argues that because he believed that the Sheriff's

Department's command staff was engaged in witness tampering and witness intimidation, he had
a   responsibility to report    the   perceived improper government         action.   But the Commission


determined that Sprouse's complaint was not made in good faith but was made in retaliation for
earlier    disciplinary   action taken   by   the sheriff's office.   Accordingly, there was no. improper

government action that would give rise to a requirement to report the action under the Lewis

County whistleblower policy.




                                                          9
No. 42421 5 II
          - -



       Under the statutorily prescribed standard of review, we hold that the Commission's

decision   was   made in   good   faith for   cause.   Accordingly, we reverse the superior court and

affirm the Commission's decision.


       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 2.6.it is
                                                                                  040,
                                                                                   0

so ordered.




                                                             Gt'yL1
                                                               t
                                                         QOINN-
                                                              BRINTNALL, J.
We concur:




                                                       10
