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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AMALGAMATED TRANSIT UNION                                        NO. 69641-6-1
LOCAL NO. 1576, INTERNATIONAL
ASSOCIATION OF MACHINISTS                                        DIVISION ONE
AND AEROSPACE WORKERS
DISTRICT 160, and LANCE NORTON,

                   Appellants,


                                                                 PUBLISHED OPINION
SNOHOMISH COUNTY PUBLIC
TRANSPORTATION BENEFIT AREA,
d/b/a COMMUNITY TRANSIT,

                   Respondent.                                   FILED: December 23, 2013


      Leach, C.J. —Amalgamated Transit Union Local No. 1576, International

Association of Machinists and Aerospace Workers District 160, and Lance

Norton (collectively Amalgamated) appeal the trial court's grant of summary

judgment to the Snohomish County Public Transportation Benefit Area, d/b/a

Community Transit. Amalgamated seeks a judgment declaring a provision of

Community Transit's bylaws void. Amalgamated contends that this provision

conflicts with RCW 36.57A.050 because it prohibits a nonvoting board member

from attending any board executive session held to discuss personnel matters.

Because the bylaws prohibit what the state law requires by removing the board
NO. 69641-6-1/2




chair's discretion to determine when the nonvoting member can attend these

executive sessions, we reverse and remand to the trial court for entry of

judgment in favor of Amalgamated.

                                     FACTS


      Community Transit is a public transportation benefit area created to

provide regional transportation services to a portion of Snohomish County.1 The

bylaws of this municipal corporation establish a board of directors to serve as its

legislative authority. Until 2010, nine elected officials selected by the component

cities and Snohomish County comprised this board.

      In 2010, the Washington Legislature amended RCW 36.57A.050 to add a

nonvoting member to public transportation benefit area legislative authorities.2
The amendments granted to certain labor organizations authority to recommend

this new member. A Community Transit representative provided testimony to the

legislature opposing these amendments.

      The current version of RCW 36.57A.050 states,

      The nonvoting member is recommended by the labor organization
      representing the public transportation employees within the local
      public transportation system. If the public transportation employees
      are represented by more than one labor organization, all such labor
      organizations shall select the nonvoting member by majority vote.
      The nonvoting member shall comply with all governing bylaws and
      policies of the authority. The chair or cochairs of the authority shall

       1See RCW 36.57A.010(7), .050.
       2 Laws of 2010, ch. 278, §3.
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NO. 69641-6-1/3



      exclude the nonvoting member from attending any executive
      session held for the purpose of discussing negotiations with labor
      organizations. The chair or cochairs may exclude the nonvoting
      member from attending any other executive session.

      Amalgamated Transit Union Local No. 1576 and International Association

of Machinists and Aerospace Workers District 160 represent certain Community

Transit employees. In August 2010, these unions recommended Lance Norton

as the nonvoting member of Community Transit's governing board.

      Community Transit's governing board conducts monthly meetings. These

include a public portion and may include a closed executive session.             On

September 1, 2011, the board amended its bylaws.             Section 3.3(c) of the

amended bylaws states,

      The Chairperson or the Acting Chairperson shall exclude the
      nonvoting member of the Board from attending any executive
      session held for the purpose of discussing negotiations with labor
      organizations or matters relating to the personnel of Community
      Transit. The Chairperson or the Acting Chairperson may allow the
      nonvoting member to attend an executive session if he or she finds
      that the attendance by the nonvoting member at the executive
      session would be in the best interest of the Corporation or not be
      detrimental to its operations. The decision of the Chairperson or
      Acting Chairperson shall be final and binding. If the non-voting [sic]
      member attends an executive session of the Board of Directors,
      such non-voting [sic] member shall not disclose any information
      obtained in such executive session to anyone and shall not use
      such information to further the interest, either directly or indirectly,
      of any collective bargaining unit or employee(s) of the Corporation.

      On October 27, 2011, Amalgamated sued Community Transit, seeking a

declaratory judgment voiding section 3.3(c) of the amended bylaws because it
NO. 69641-6-1/4




conflicts with RCW 36.57A.050.      In October 2012, the parties submitted cross

motions for summary judgment.3 The trial court granted Community Transit's
motion for summary judgment and denied Amalgamated's motion for summary

judgment.

        Amalgamated appeals.

                             STANDARD OF REVIEW


        We review de novo a trial court's order granting summary judgment.4

When reviewing a summary judgment order, we view all of the evidence in the

light most favorable to the nonmoving party.5 "Summary judgment is appropriate

'if... there is no genuine issue as to any material fact and ... the moving party

is entitled to a judgment as a matter of law.'"6 We also review issues of statutory

interpretation de novo.7

                                    ANALYSIS


        We must decide two issues:      (1) does Amalgamated have standing to

challenge Community Transit's bylaws and (2) does the challenged bylaw conflict


        3 The record does not include these motions.
        4 Columbia Cmtv. Bank v. Newman Park, LLC, 177 Wn.2d 566, 573, 304
P.3d 472 (2013) (citing Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490
(2011)).
        5 Columbia Cmtv. Bank. 177 Wn.2d at 573 (citing Mohr, 172 Wn.2d at
859).
        6 Columbia Cmtv. Bank. 177 Wn.2d at 573 (alterations in original) (quoting
CR 56(c)).
        v State v. Sanchez. 177 Wn.2d 835, 842, 306 P.3d 935 (2013) (citing
Dep't of Ecology v. Campbell & Gwinn. LLC. 146 Wn.2d 1, 9, 43 P.3d 4 (2002)).
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NO. 69641-6-1/5




irreconcilably with RCW 36.57A.050.           We conclude that Amalgamated has

standing and the challenged bylaw is void.

       We address the standing issue first. The Uniform Declaratory Judgments

Act (UDJA), chapter 7.24 RCW, states, "A person . . . whose rights, status or

other legal relations are affected by a statute, municipal ordinance, contract or

franchise, may have determined any question of construction or validity arising

under the instrument, statute, ordinance, contract or franchise and obtain a

declaration of rights, status or other legal relations thereunder."8    To have

standing, a plaintiff "must have some protectable interest that has been invaded

or is about to be invaded."9       "'Standing requirements tend to overlap the
requirements for justiciability under the UDJA.'"10

      We apply a two-part test to determine if a party has standing under the

UDJA.11 '"First, a party must be within the zone of interests to be protected or
regulated by the statute in question. Second, the party must have suffered an




      8 RCW 7.24.020.
      9
        Orion Corp. v. State, 103 Wn.2d 441, 455, 693 P.2d 1369 (1985) (citing
Vovos v. Grant. 87 Wn.2d 697, 699, 555 P.2d 1343 (1976); State ex rel. Hays v.
Wilson. 17 Wn.2d 670, 672-73, 137 P.2d 105 (1943)).
      10 City of Longview v. Wallin. 174 Wn. App. 763, 778, 301 P.3d 45
(quoting Am. Legion Post No. 149 v. Dep't of Health, 164 Wn.2d 570, 593, 192
P.3d 306 (2008)), review denied, 178 Wn.2d 1020 (2013).
      11 Wallin, 174 Wn. App. at 778 (citing Am. Legion Post No. 149. 164
Wn.2d at 593).
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NO. 69641-6-1/6




injury in fact.'"12 The party seeking standing must establish both parts of this
test.13 To establish injury under the UDJA, a party must allege "harm personal to
the party" that is "substantial rather than speculative or abstract."14

       Community Transit does not contest that Amalgamated meets the first

prong of the test but claims that Amalgamated did not suffer an injury in fact. It

alleges, "[Amalgamated] cannot point to a single executive session where the

nonvoting member was unlawfully excluded. Thus, any alleged 'injury' is purely

speculative." Community Transit asserts that because the bylaws limit the chair's

discretion, "[o]nly the board chair, not [Amalgamated], has any possible standing

to complain."

       The record contains no evidence about the purpose for any specific

executive session, but Norton testified by declaration, "Since I began serving on

the Board, I have been excluded from every executive session except one, which

addressed a potential real estate purchase.        I have never participated in an

executive session pertaining to personnel matters. I am the only Board member

who is excluded from these executive sessions."




       12 Wallin, 174 Wn. App. at 778 (internal quotation marks omitted) (quoting
Am. Legion Post No. 149, 164 Wn.2d at 593-94).
       13 Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake. 150 Wn.2d
791,802, 83 P.3d 419 (2004).
       14 Grant County Fire Prot. Dist. No. 5. 150 Wn.2d at 802 (citing Walker v.
Munro, 124 Wn.2d 402, 411, 879 P.2d 920 (1994)).
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NO. 69641-6-1/7




      Although the record does not disclose if the board excluded Norton

because of the amendment to its bylaws, we hold that Amalgamated has

standing to sue. We agree with Amalgamated that a qualitative difference exists

between an absolute bar to attendance at executive sessions addressing

personnel matters and a right to attend those sessions subject to the chair's

discretionary right of exclusion. By statute, Norton had the right to have the chair

decide on a session-specific basis if Norton could attend an executive session

addressing personnel matters other than negotiations with labor organizations.

The unions recommending Norton had a similar right with respect to their chosen

representative. The bylaws eliminated these rights.

       The bylaws impose upon the board the obligation to hire, supervise, and

evaluate Community Transit's chief executive officer. Presumably, the board will

hold future executive sessions to discuss these and other personnel matters.

Even if it did not do so between the time that the board amended its bylaws and

the time that Amalgamated brought this action, the bylaws will undoubtedly result

in Norton's automatic exclusion from these executive sessions in the future.

Amalgamated will not receive the benefit of the chair's exercise of discretion

about attendance.

       We next address the merits of the parties' claims. Amalgamated contends

that section 3.3(c) of Community Transit's governing board's bylaws conflicts

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NO. 69641-6-1/8




irreconcilably with RCW 36.57A.050 and is void. Community Transit claims that

if section 3.3(c) of the board's bylaws conflicts with RCW 36.57A.050, we should

invalidate the statute on equal protection grounds. We agree with Amalgamated

that the bylaw provision conflicts with RCW 36.57A.050 and find Community

Transit's arguments unpersuasive.

      Amalgamated asserts, "The text of RCW 36.57A.050 is clear on its face

and does not require construction." Amalgamated claims,

      RCW 36.57A.050 creates a narrow prohibition on the nonvoting
      labor representative's participation in executive sessions: the
      nonvoting member is prohibited only from attending executive
      sessions pertaining to negotiations with labor organizations. In
      sharp contrast to Section 3.3(c) of the Community Transit bylaws,
      RCW 36.57A.050 gives the Board's Chair discretion to permit the
      nonvoting labor representative to attend executive sessions
      pertaining to all other topics, including those related to personnel
      matters. By eliminating that discretion—and with it the possibility
      that the nonvoting labor representative could participate in
      executive sessions addressing personnel matters—the Community
      Transit bylaws create an irreconcilable conflict with state law.

      We interpret a statute to carry out the legislature's intent.15 To determine
legislative intent, we look to the "plain and ordinary meaning of statutory

language."16 We determine the plain meaning from "'all that the Legislature has




      15 Sanchez, 177 Wn.2d at 842 (citing Campbell & Gwinn. 146 Wn.2d at 9).
      16 Sanchez, 177 Wn.2d at 842.
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NO. 69641-6-1/9




said in the statute and related statutes which disclose legislative intent about the

provision in question.'"17

       A municipal corporation is "'a body politic established by law as an agency

of the state—partly to assist in the civil government of the country, but chiefly to

regulate and administer the local and internal affairs of the incorporated city,

town, or district.'"18 State legislation preempts a local regulation when the state

legislature intends to preempt the field or manifests this intent from necessary

implication.19 We will not interpret a statute to "deprive a municipality of the

power to legislate on particular subjects unless that clearly is the legislative

intent."20 A local regulation conflicts with a statute and the two provisions cannot

coexist when the local regulation "'permits what is forbidden by state law or




       17 Sanchez, 177 Wn.2d at 843 (quoting Campbell & Gwinn, 146 Wn.2d at
11).
      18 HTK Mqmt.. LLC v. Seattle Popular Monorail Auth.. 155 Wn.2d 612,
627-28, 121 P.3d 1166 (2005) (quoting Lauterbach v. City of Centralia, 49 Wn.2d
550, 554, 304 P.2d 656 (1956)).
      19 HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land Servs.,
148 Wn.2d 451, 477, 61 P.3d 1141 (2003) (citing Rabon v. City of Seattle. 135
Wn.2d 278, 289, 957 P.2d 621 (1998); Brown v. City of Yakima, 116 Wn.2d 556,
560, 807 P.2d 353 (1991)).
      20 Southwick. Inc. v. City of Lacev. 58 Wn. App. 886, 891-92, 795 P.2d
712 (1990) (citing State ex rel. Schillberg v. Everett Dist. Justice Court. 92 Wn.2d
106, 108, 594 P.2d 448 (1979)).
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NO. 69641-6-1/10




prohibits what state law permits.'"21 No conflict exists "if the provisions can be

harmonized."22

      The minute entry from the trial court's summary judgment hearing states,

"THE COURT NOTES THAT THE CHAIR HAVING DISCRETION ON A CASE-

BY-CASE BASIS IN PERSONNEL MATTERS IS HIGHLY PROBLEMATIC; AND

WOULD LEAD TO CHARGES OF ARBITRARINESS; THERE IS NO WAY TO

MAKE A DISTINCTION OF WHO CAN PARTICIPATE." Amalgamated argues

that the court "erroneously equated discretion with arbitrariness" because "[a]

public officer can certainly exercise discretion without acting arbitrarily and

capriciously." It concedes that the board has the authority to "give the Chair

some guidance regarding how to decide whether or not to include the nonvoting

member in an executive session" but claims that the board "cannot eliminate that

discretion without running afoul of state law."      Amalgamated contends, "In

contrast, it is the Community Transit Board that acted arbitrarily when it made the

decision to categorically exclude the nonvoting member from all executive

sessions addressing personnel matters without regard to the issues to be

addressed or the circumstances of the executive session in question."




       21 Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151
Wn.2d 428, 433, 90 P.3d 37 (2004) (quoting HJS, 148 Wn.2d at 482).
       22 Parkland Light & Water Co., 151 Wn.2d at 433 (citing HJS, 148 Wn.2d
at 482).
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NO. 69641-6-1/11




      Amalgamated compares this case to Entertainment Industry Coalition v.

Tacoma-Pierce County Health Department23 and Parkland Light & Water Co. v.

Tacoma-Pierce County Board of Health.24 In Entertainment Industry Coalition, a

state statute permitted business owners and lessees to designate public smoking

areas in certain circumstances and places, but a local resolution prohibited

smoking in all indoor public locations.25 The court held that the resolution
conflicted irreconcilably with the state statute and was invalid, reasoning, "The

resolution, by imposing a complete smoking ban, prohibits what is permitted by

state law: the ability of certain business owners and lessees to designate

smoking and nonsmoking locations in their establishments."26
       In Parkland Light & Water, a state statute granted authority to water

districts to decide whether to fluoridate their water systems.27 The court held that

a local resolution requiring certain water purveyors to fluoridate their water was

invalid because it "prohibits what state law permits: the ability of water districts to

regulate the content and supply of their water systems expressly granted to them

by statute."28



       23 153 Wn.2d 657, 105 P.3d 985 (2005).
       24 151 Wn.2d 428, 90 P.3d 37 (2004).
       25   Entm't Indus. Coal.. 153 Wn.2d at 661-63.
       26   Entm't Indus. Coal.. 153 Wn.2d at 664.
       27   Parkland Light & Water. 151 Wn.2d at 432.
       28   Parkland Light & Water, 151 Wn.2d at 433.
                                         -11-
NO. 69641-6-1/12




      Here, RCW 36.57A.050 grants certain authority to the board's chair and

certain rights to the nonvoting board member and those recommending him. The

chair's authority includes discretion to exclude the nonvoting board member from

attending executive sessions not held for the purpose of discussing negotiations

with labor organizations. This means that state law grants the chair discretion to

exclude the nonvoting member from attending executive sessions held for the

purpose of discussing personnel matters. This authority is limited by the chair's

obligation to refrain from arbitrary and capricious decisions.     The nonvoting

member has the right to be evaluated by the chair as an appropriate participant

in these executive sessions. By prohibiting the nonvoting member from attending

all executive sessions held for the purpose of discussing "matters relating to the

personnel of Community Transit," the bylaw provision eliminates this exercise of

authority and the corresponding right that the statute provides.

      Amalgamated cites legislative history indicating the legislature's intent to

"'include somebody from the people that are actually working on a day-to-day

basis with the customers, and seeing the problems, so that they can have an

equal voice with regard to the services that [a transit board] provides.'" We

disagree with the trial court's determination that granting the chair discretion in

personnel matters would lead to arbitrary decisions.29 The chair can and must

       29 We note that under Washington law, "'[f]ailure to exercise discretion is
an abuse of discretion.'" In re Pet, of Mines, 165 Wn. App. 112, 125, 266 P.3d
                                        -12-
NO. 69641-6-1/13




consider on a case-by-case basis the appropriateness of the nonvoting

member's participation in personnel matters addressed in executive session.

       Community Transit points out that RCW 36.57A.050 requires the

nonvoting member to "comply with all governing bylaws and policies of the

authority." But this does not mean that the bylaws can eliminate the authority of

the chair or the rights of nonvoting member/labor organizations granted by

statute.   Community Transit's argument would allow the board to eliminate all

rights of the nonvoting member by bylaw. Therefore, we hold that section 3.3(c)

of the Community Transit governing board's bylaws conflicts with RCW

36.57A.050 and is invalid.


       Finally, Community Transit claims that if we conclude the bylaws conflict

with RCW 36.57A.050, we should invalidate the statute as unconstitutional under

the equal protection clause of the Fourteenth Amendment to the United States

Constitution.   Community Transit argues that the law "arbitrarily elevates the

position of 'chair' above other board members in conflict with the remaining

provisions of RCW 36.57A and sets up two separate classes of board members."

Community Transit's argument ignores its own bylaws and the practical

procedural needs of a legislative body. Its bylaws grant special authority to the

chair to preside at all board meetings, to act as board spokesperson, and to act

242 (2011) (alteration in original) (quoting Bowcutt v. Delta N. Star Corp., 95 Wn.
App. 311, 320, 976 P.2d 643 (1999)), review denied. 173 Wn.2d 1032 (2012).
                                       -13-
NO. 69641-6-1/14




as its representative at meetings of other organizations, committees, and

authorized activities. We have difficulty envisioning the successful operation of a

legislative body where no one has authority to set an agenda, recognize the

order of speakers, or supervise vote taking.        We find Community Transit's

premise that all board members have equal authority on all procedural matters

untenable. We reject its constitutional contention without further analysis.

                                  CONCLUSION


       Because Amalgamated shows that section 3.3(c) of Community Transit's

bylaws conflicts irreconcilably with RCW 36.57A.050, we reverse and remand for

entry of summary judgment in favor of Amalgamated consistent with this opinion.



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