    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Certification of
                                                       No. 69662-9-1
THOMAS J. OGDEN,
                                                       DIVISION ONE         as    f>0
                                                                            —    ^jc:
                     Appellant.
                                                       UNPUBLISHED OPI           N£o

                                                                                  >ttm
WASHINGTON STATE CRIMINAL
JUSTICE TRAINING COMMISSION,
                                                       FILED: March 10, 201& §2
                     Respondent.


       Appelwick, J. — Ogden appeals the Criminal Justice Training Commission's

revocation of his peace officer certification and seeks to vacate the default order

entered against him. He argues that once he voluntarily surrendered his certification he

was no longer subject to the Commission's jurisdiction. He further contends that his

hearing date was improperly set and that good cause exists to vacate the default order.

We affirm.


                                         FACTS


      The Washington State Criminal Justice Training Commission (Commission)

provides programs and standards for the training of criminal justice personnel. RCW

43.101.020.    Its powers include the ability to certify peace officers and revoke such

certification. RCW 43.101.095(3).

      On February 8, 2008, the Commission granted Thomas Ogden peace officer

certification. Ogden was a Tacoma police officer until March 23, 2010, when he was

discharged for making false or misleading statements during an internal investigation.
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Certification of
                                                       No. 69662-9-1
THOMAS J. OGDEN,
                                                       DIVISION ONE
                     Appellant.
                                                       UNPUBLISHED OPINION



WASHINGTON STATE CRIMINAL
JUSTICE TRAINING COMMISSION,
                                                       FILED:
                      Respondent.


       Appelwick, J. — Ogden appeals the Criminal Justice Training Commission's

revocation of his peace officer certification and seeks to vacate the default order

entered against him. He argues that once he voluntarily surrendered his certification he

was no longer subject to the Commission's jurisdiction.    He further contends that his

hearing date was improperly set and that good cause exists to vacate the default order.

We affirm.


                                        FACTS


       The Washington State Criminal Justice Training Commission (Commission)

provides programs and standards for the training of criminal justice personnel. RCW

43.101.020.    Its powers include the ability to certify peace officers and revoke such

certification. RCW 43.101.095(3).

       On February 8, 2008, the Commission granted Thomas Ogden peace officer

certification. Ogden was a Tacoma police officer until March 23, 2010, when he was

discharged for making false or misleading statements during an internal investigation.
No. 69662-9-1/2




       The Commission subsequently sought to            revoke Ogden's peace officer

certification. Ogden requested a revocation hearing. His counsel appeared at an initial

prehearing conference, during which the parties set October 19, 2011 as Ogden's

hearing date. The parties later agreed to extend the hearing date to November 4, 2011.

       On August 26, 2011, Ogden attempted to voluntarily surrender his peace officer

certification. The Commission declined to accept the surrender and denied Ogden's

motion to dismiss the proceedings against him.         Ogden also moved for a writ of

prohibition in King County Superior Court, seeking to arrest the proceedings for lack of

jurisdiction. The court denied his writ.

       On October 20, 2011, the parties held another prehearing conference. Ogden's

counsel again represented him. During the conference, the parties agreed to move the

hearing date to December 19-20, 2011. After the conference, the parties discovered

that an important witness had a conflict on those dates and agreed to reschedule for

December 15-16, 2011.

       Shortly before the hearing, Ogden realized that his attorney mistakenly told him

the hearing was December 19-20. Ogden had moved a business trip from December

19 to December 15 to avoid what he thought would be a conflict. Ogden's attorney

informed the Commission about the mix-up and Ogden's expected absence. He noted

that counsel would represent Ogden on the first day of the hearing, but Ogden would be

present on the second. Counsel took full responsibility for the error.
No. 69662-9-1/3




      Ogden also provided a declaration explaining the conflict. He stated that it was

too late to change his travel plans and that his tickets were nonrefundable. Attached

was a copy of his trip itinerary that showed he had a flight reservation for December 15,

but had not yet purchased the ticket. The hearing panel's presiding member replied that

he expected Ogden to appear in person at the hearing as required by WAC 139-06-

100(1).

      The hearing took place on December 15, as scheduled. Ogden was not present,

but was represented by counsel. The panel found Ogden in default for failing to appear

in person.

       Ogden subsequently moved to vacate the default order entered against him. The

Commission denied his motion. Ogden then petitioned King County Superior Court to

vacate the order of default and dismiss the order revoking his peace officer certification.

He argued that the Commission lacked jurisdiction over his hearing, his hearing date

was improperly set, and good cause existed for the court to vacate the default order.

The court affirmed

       Ogden appeals the superior court's ruling

                                      DISCUSSION


       On appeal, Ogden raises the same three arguments as below. He first contends

that the Commission lacked jurisdiction over his revocation hearing after he voluntarily

surrendered his certification.   He further contests his hearing date, arguing that the

presiding panel member scheduled the hearing without the full panel's agreement and

that Ogden did not agree to extend the date to December. Finally, Ogden argues that
No. 69662-9-1/4




good cause existed to vacate the default order, because he understandably relied on

his attorney's misinformation and did everything he could to comply with the hearing

requirements.

I.   Jurisdiction Over Revocation Hearing

        Ogden maintains that, once he surrendered his certification, the Commission's

limited jurisdiction no longer extended to him. We review de novo the decision to grant

or deny a motion to vacate a default order for lack of jurisdiction. Brown v. Garrett, 175

Wn. App. 357, 366, 306 P.3d 1014 (2013).

        A. Collateral Estoppel

        As a threshold matter, the Commission counters that Ogden is collaterally

estopped from challenging jurisdiction, because the superior court already decided the

issue when it denied his petition for a writ of prohibition.        Collateral estoppel bars

relitigation of a particular issue or fact previously determined by a valid and final

judgment. State v. Brvant. 146 Wn.2d 90, 98, 42 P.3d 1278 (2002).              Generally, the

doctrine requires that:

        "(1) the issue decided in the prior adjudication must be identical with the one
        presented in the second; (2) the prior adjudication must have ended in a final
        judgment on the merits; (3) the party against whom the plea of collateral estoppel
        is asserted must have been a party or in privity with a party to the prior litigation;
        and (4) application of doctrine must not work an injustice."

ig\ at 98-99 (internal quote marks omitted) (quoting State v. Williams, 132 Wn.2d 248,

254, 937P.2d 1052(1997)).

        Here, the issue decided in the prior adjudication is identical to the one Ogden

presents in his current appeal: that the Commission lacked jurisdiction over the hearing
No. 69662-9-1/5




after Ogden had surrendered his peace officer certification.           This satisfies the first

element of collateral estoppel.

        The prior adjudication also constituted a final judgment on the merits.              A

petitioner may appeal the denial of a writ of prohibition. RCW 7.16.350. Otherwise, the

court's ruling is a final determination of the parties' rights. See RCW 7.16.020. Ogden

did not appeal the court's denial of his petition. This meets the second element.

        The third element is easily satisfied: Ogden is both the appellant here and was

the plaintiff in the prior litigation.

        Finally, there is no evidence that application of the collateral estoppel doctrine

here would work an injustice. In evaluating this element, courts consider many factors.

Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60

Wash L. Rev. 805, 841 (1984).             These may include: whether the first judgment was

appealable, whether the principal issues were fairly and fully litigated in the former

action, whether there has been a major factual change between proceedings, and

whether the first determination was manifestly erroneous. ]d. at 841-42.

        None of these factors apply here. The court's denial of Ogden's petition was

appealable.      RCW 7.16.350.           Ogden had a full and fair opportunity to present his

argument in the previous proceeding.            He presents no change in facts on this issue

since the prior proceeding. And, Ogden makes no argument, nor does the record

demonstrate, that the superior court's ruling was manifestly erroneous. Ogden will not

suffer injustice from the collateral estoppel doctrine's application here.
No. 69662-9-1/6




       Ogden maintains that his challenge is not subject to collateral estoppel, because

it involves personal jurisdiction.   He cites to Subcontractors & Suppliers Collection

Servs. v. McConnachie. 106 Wn. App. 738, 24 P.3d 1112 (2001). There, the defendant

moved for summary judgment based on improper service. Jd. at 740. The court did not

grant the defendant's motion, but dismissed the plaintiff's case against a codefendant.

Id. The original defendant's case then went to arbitration, after which the defendant

requested a trial de novo.     jd.   At the new trial, the plaintiff argued that collateral

estoppel prohibited the defendant from challenging personal jurisdiction, because

another judge had decided the issue by denying the defendant's motion for summary

judgment, jd. at 744. The appellate court disagreed, stating that the defendant could

challenge lack of personal jurisdiction because he had not waived it. Id.

       Subcontractors is distinguishable from the present case.       There, the previous

decision was a nonfinal order in the same proceeding, jd, at 740.        Here, the court's

denial of Ogden's writ of prohibition was a separate action in which the court rendered a

final decision. Collateral estopped prevents Ogden from challenging the Commission's

jurisdiction on appeal.

       B. Authority to Accept Surrender

       Even so, the Commission's exercise of jurisdiction was proper, because the

regulatory scheme does not permit surrender of a peace officer certification.          The

Commission has the authority to grant, deny, or revoke peace officer certification. RCW

43.101.085(6).    The regulations provide for issuance, denial, revocation, lapse, or
No. 69662-9-1/7




reinstatement of a certification.    See WAC 139-06-130.         Importantly, they do not

contemplate surrender.

        However, as Ogden points out, other regulatory schemes do provide for

certification surrender.    See, e.g.. WAC 181-86-013(4) (professional educator's

certification); WAC 246-10-110(1) (department of health licenses). Ogden focuses on

this discrepancy to suggest that his surrender was therefore also permissible. He draws

the wrong conclusion.

       "Under expressio unius est exclusio alterius, a canon of statutory construction, to

express one thing in a statute implies the exclusion of the other." In re Pet, of Williams,

147 Wn.2d 476, 491, 55 P.3d 597 (2002).            In other words, where the legislature

expressly includes a provision in one statute but not another, we may presume that the

exclusion was intentional. See, e.g.. State v Delgado, 148 Wn.2d 723, 728-29, 63 P.3d

792 (2003); Williams, 147 Wn.2d at 491.           The legislature knew how to include

certification surrender in a regulatory scheme, but declined to do so here. We therefore

conclude that the legislature did not intend for a peace officer to be able to surrender his

certification.


        C. Continuing Jurisdiction

        Furthermore, the Commission retained jurisdiction regardless of Ogden's

surrender. Once a professional disciplinary tribunal lawfully acquires jurisdiction over a

proceeding, its jurisdiction continues until the proceeding concludes.      Nims v. Bd. of

Registration for Prof'l Eng'rs & Land Surveyors, 113 Wn. App. 499, 507, 53 P.3d 52

(2002). In Nims, the disciplinary board brought charges against the appellant when he
No. 69662-9-1/8




held an active engineer's license. Id. at 501-02. He subsequently chose not to renew it.

jd. at 506. The court held that the board retained jurisdiction even after the license's

expiration, jd. at 507.

          Here, as in Nims, the Commission issued charges against Ogden when his

certification was active. However, Ogden attempts to distinguish the present case on a

number of grounds.

          First, he points out that the Nims court was interpreting RCW 18.43.110, which

cross-references the uniform regulation of business and professions act, chapter 18.235

RCW. Nims, 113 Wn. App. at 506-07. Ogden notes that the act grants broad powers

for a board to take corrective action over licensees. This is an important distinction,

Ogden maintains, because the act does not apply to peace officer certifications. But,

the Nims court did not limit its holding to licenses covered by the business and

professions act. See 113 Wn. App. at 507. Nor does it reference the act itself. See id.

Moreover, the ability to take corrective action is merely an additional power that the act

grants.     It does not bear on the board's continuing jurisdiction over a proceeding in

which it properly established authority.

          Ogden also argues that Nims is inapplicable because of its analogy between the

board's powers under RCW 18.43.110 and a court's powers in criminal sentencing and

probation. According to Ogden, this is crucial because, while courts have found license

revocation hearings to be quasi-criminal, none have made such a finding for

certifications. However, the Nims court analogizes to criminal proceedings only in a

footnote where it lists cases in which courts applied similar principles in other contexts.




                                                8
No. 69662-9-1/9




113 Wn. App. at 507 n.17.       It does not base its holding on the criminal nature of

disciplinary proceedings. See id. at 507.

       Furthermore, Ogden fails to demonstrate a meaningful distinction between a

certification and a license.   The Administrative Procedure Act (APA), which governs

Commission proceedings, includes "certification" in the definition of "license."         RCW

34.05.010(9)(a). There is no evident reason to treat them differently. Ogden's attempts

to distinguish the present case are not persuasive.

      The Commission properly exercised jurisdiction over Ogden's hearing.

II. Hearing Date

       Ogden contends that his hearing date was unlawfully established. His challenge

is two-fold. First, he argues that WAC 139-06-070(1) requires the full hearing panel to

set a hearing date, but here, only the presiding member did so. Second, he maintains

that his hearing date exceeded the 180 day limit set by RCW 43.101.155(2).

       We review adjudicative proceedings on the agency record, without consideration

of the findings and conclusions of the superior court. Waste Mgmt. of Seattle, Inc. v.

Utils. & Transp. Comm'n. 123 Wn.2d 621, 633, 869 P.2d 1034 (1994). The court shall

grant relief from an agency order in an adjudicative proceeding only if it determines that

the order falls under one of the nine bases set forth in RCW 34.05.570(3).1 Ogden's


       1 The nine are as follows:
               (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;
               (b) 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, or has failed to follow a prescribed procedure;
               (d) The agency has erroneously interpreted or applied the law;
No. 69662-9-1/10




arguments implicated RCW 34.050.570(3)(d), that the agency erroneously interpreted

or applied the law.

       A. Presiding Member's Authority to Set Hearing Date

       WAC 139-06-070(1) provides, in pertinent part, that "[u]pon receipt of a request

for hearing, the hearing panel shall set the date and time of the hearing." Under WAC

139-06-060(3), the presiding member shall be responsible for conducting prehearing

conferences and any other hearings that may be necessary, and for signing documents

on behalf of the panel. The regulations that govern peace officers do not expressly

delegate to the presiding member the responsibility of setting a hearing date. However,

the Commission adopted the model rules of procedure, which are meant to supplement

the APA. WAC 10-08-001. The model rules give authority to the presiding member

over additional procedural matters, including granting continuances.       WAC 10-08-

090(1 ).2 While it may be necessary to involve the full hearing panel in selecting a date


             (e) 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 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.
RCW 34.05.570(3).
      2 "Postponements, continuances, extensions of time, and adjournments may be
ordered by the presiding officer on his or her own motion or may be granted on timely


                                              10
No. 69662-9-1/11




in order to ensure their availability, we do not read the regulation as requiring that they

collectively vote on the date nor sign a scheduling order.

       During the October 20 prehearing conference, a hearing coordinator facilitated a

discussion about the hearing date. Attorneys for both parties were present, as well as

the hearing panel members. The coordinator suggested a number of dates based on

the availability of counsel and the panel members. Ultimately, there was a consensus

to hold the hearing on December 19-20. Later, upon discovering the witness conflict on

those dates, the parties agreed to the dates of December 15 and 16, 2011.3 The
presiding member then issued a written order reflecting the agreement. This was not a

unilateral action, but a valid exercise of the presiding member's procedural authority.

       B. Counsel's Authority to Extend Hearing Deadline

      Ogden further maintains that his hearing date exceeded the 180 day limit set by

RCW 43.101.155(2). This provision requires the panel to set a revocation hearing date

no more than 180 days after communicating its statement of charges to the peace

officer. Id. However, the parties may mutually agree to extend that period, jd.

       By scheduling the hearing in December, Ogden's counsel agreed to a date

beyond the 180 day limit. Ogden argues that this extension was ineffective, because

his attorney—not Ogden himself—agreed to it. According to Ogden, if his attorney




request of any party, with notice to all other parties, if the party shows good cause."
WAC 10-08-090(1).
      3 The record does not reflect who spoke for the respective parties when
rescheduling the hearing for December 15 and 16. Ogden did not participate personally
in choosing the December 19 and 20 date. Nothing suggests he participated personally
in the change of date.


                                               11
No. 69662-9-1/12




could not represent him at the revocation hearing, his attorney could not represent him

in extending the hearing deadline.

       However, there is an important distinction between counsel's representation at

prehearing conferences and at the hearing itself. WAC 139-06-090 provides that either

the parties or their attorneys shall attend the prehearing conference. By contrast, WAC

139-06-100(1) requires the peace officer to appear in person at the hearing.

      Ogden states that he never personally agreed to an extension. But, he makes no

argument that he had not authorized his counsel to represent him or to agree to an

extension on his behalf. In fact, counsel scheduled Ogden's original hearing date and

extended the deadline once before, both on Ogden's behalf and without his objection.

Counsel's agreement to the December extension was binding on Ogden.

      Ogden's hearing date was properly set.

III. Good Cause

      Finally, Ogden argues that good cause exists under the APA to vacate the

default judgment. The APA does not have a good cause provision for vacating a default

judgment. See RCW 34.05.570; RCW 34.05.440. The closest analog is that that the

order is arbitrary and capricious, which he does not allege.   He has failed to state a

proper basis for relief with his good cause argument.

      However, even if we were to assume that we were reviewing the denial of a

proper motion in the superior court to vacate for good cause, the arguments he makes

fail. The trial court may set aside a default order for good cause shown and upon such

terms as it deems just. CR 55(c)(1). Ogden maintains that good cause exists here,




                                               12
No. 69662-9-1/13




because he did everything in his power to comply with the hearing requirements and

was absent from the hearing through no fault of his own.

       We review a trial court's ruling on a motion to vacate a default order for abuse of

discretion.     In re Estate of Stevens. 94 Wn. App. 20, 29, 971 P.2d 58 (1999). Our

review is limited to the trial court's decision, not the underlying order that the party

seeks to vacate. See Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533

(1980).       We will not disturb the trial court's decision unless it was manifestly

unreasonable or based on untenable grounds or untenable reasons. Mecum v. Pomiak,

119Wn.App.415, 422, 81 P.3d 154(2003).

       A. Efforts to Attend


       At the superior court, Ogden asserted that the Commission erroneously required

him to be present at the entire hearing. Ogden further averred that he did everything he

could to participate in the hearing, including arranging to appear for testimony on the

second day. Ogden did not tie his challenge to one of the nine bases that provide relief

from an agency order under RCW 34.05.570(3). Instead, he argued that good cause

existed under the APA.


          In evaluating the Commission's decision to find Ogden in default, the superior

court applied the APA review standards to Ogden's arguments. Ultimately, the court

upheld the Commission's decision.

       First, the court found that the Commission had not erroneously applied the law by

requiring Ogden's presence.         The court noted that, in that circumstance, the

Commission had the discretion to find Ogden in default.         The relevant regulations




                                               13
No. 69662-9-1/14




demonstrate this.    WAC 139-06-100(1) states that a peace officer shall appear in

person at the hearing and that failure to do so shall constitute default.      It does not

provide for waiver of this requirement by either party. And, while the presiding member

has the authority to waive procedural requirements, he is not required to do so. See

WAC 10-08-200.


       The superior court next addressed the Commission's reasoning for declining to

waive Ogden's presence.       The Commission articulated several reasons, including:

Ogden learned the correct hearing date prior to his trip; Ogden's travel documentation

suggests that he made his flight arrangements after learning the correct hearing date;

and the hearing panel wanted the opportunity to observe Ogden's demeanor during the

entire hearing. The superior court declined Ogden's good cause argument and applied

the proper arbitrary and capricious standard under RCW 34.05.570(3)(i). It concluded

the decision to find Ogden in default was not arbitrary and capricious.

       The record supports the Commission's reasoning and thus the superior court's

decision.   While Ogden based his travel plans on counsel's misinformation, he was

aware of the hearing date—and the consequences of failing to appear—before he left

for his trip. In his declaration, Ogden stated that his tickets were nonrefundable and that

his travel plans could not be changed. But, the itinerary he provided showed that he

had not yet purchased his plane ticket. He does not establish why the meeting was

more important than the hearing, nor that he would experience an actual economic loss.

He does not establish clear prejudice that would make it necessary for the Commission

to accommodate him.      The record supports the superior court's conclusion that the




                                                14
No. 69662-9-1/15




Commission's action was not arbitrary and capricious. The superior court did not abuse

its discretion.


       B. Fault of Attorney

       Ogden further urged the superior court to vacate the order because he

reasonably relied on his counsel's misinformation. Again, he did not attempt to tie his

challenge to a provision of the APA, except to say that good cause existed, which is not

a recognized basis for relief.

       The superior court did not directly address his argument. However, Washington

case law contradicts Ogden's argument.         Courts generally attribute an attorney's

negligence to his or her client. See Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302

(1978). For example, in Lane v. Brown & Haley. 81 Wn. App. 102, 106, 912 P.2d 1040

(1996), the court denied relief even though the appellants' attorney failed to inform them

of a pending summary judgment proceeding.

       On the other hand, in Barr v. MacGugan, 119 Wn. App. 43, 48, 78 P.3d 660

(2003), the court found it proper to vacate a default judgment based on the appellant's

counsel's subpar representation. There, the attorney's work suffered due to his severe

clinical depression, rather than incompetence or deliberate inattention to his workload.

|d at 47.    The court found this to be an extraordinary circumstance, noting that the

attorney's condition caused his client relationship to disintegrate such that it no longer

constituted representation, jd. at 48.

        Here, there is no evidence that counsel's performance suffered due to an

extraordinary circumstance as in Barr. The parties originally decided to hold the hearing




                                               15
No. 69662-9-1/16



on December 19-20. After the conference, the parties rescheduled for December 15-

16. Ogden's counsel mistakenly told him the original date. This was mere negligence

that is attributable to Ogden.

       The record does not demonstrate that the commission acted arbitrarily or

capriciously by not rescheduling the hearing on the basis of attorney negligence in

communicating the scheduled date, especially when Ogden did not prove he had a prior

conflict that made him unable to attend.

       The Commission properly exercised jurisdiction over Ogden and properly

scheduled the hearing.     The superior court did not abuse its discretion in denying

Ogden's motion to vacate the default order. We affirm.




WE CONCUR:




                                              j W u . ^A




                                             16
