      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



JOHANNES MAK,
                                                  No. 75827-6-1
                     Appellant,
                                                  DIVISION ONE
       V.

CITY OF KENT,                                     UNPUBLISHED OPINION

                     Respondent.                  FILED: December 26, 2017


       SPEARMAN, J. — The City of Kent(City) indemnifies an employee against

legal action arising by reason of the fact that he or she is a City employee. While

on duty, Officer Johannes Mak of the Kent Police Department shared information

with a friend about a confidential informant. As a result, Mak became the subject

of an investigation into obstruction of justice. He requested that the City pay his

legal fees related to the investigation. When the City declined to indemnify, Mak

sued. We affirm the trial court's dismissal of the suit.

                                       FACTS

       As a police officer for the City of Kent, Johannes Mak met Mark Bryant,

the owner of a local automobile repair shop, while investigating alarm calls at the

business. Over the course of about ten years, the two men became friends. In
No. 75827-6-1/2

the fall of 2012, the U.S. Drug Enforcement Agency began investigating Bryant

for illegally selling guns and controlled substances. Mak heard from the Kent

Assistant Chief of Police that Bryant's niece had told investigating authorities that

Bryant had two Kent police officers in his pocket.

       Mak related the niece's accusation to Bryant. According to Mak, he

confronted Bryant at his auto shop while he was on duty, arriving in his squad car

and in uniform. Angry that Bryant's niece had maligned his character, Mak

inadvertently revealed that the niece was talking with law enforcement. He did

not write a report on the interaction. Mak admitted that this confrontation was

personal, even though he was on duty when it occurred.

       But according to Bryant and the federal investigators, the men either saw

each other or talked on the phone while at a gun show. At that time, Mak

revealed that Bryant was being investigated, and that Bryant's niece was

cooperating with authorities as a confidential informant. Mak admits calling

Bryant at a gun show while he was off duty, recovering from back surgery at

home. He concedes that their conversation had nothing to do with the course and

scope of his employment, but denies revealing information related to the

investigation. Bryant was later arrested on drug trafficking and firearms charges.

       In September 2013, the U.S. Attorney's Office notified Mak that he was

the target of a Grand Jury investigation for obstruction of justice. The U.S.

Attorney's Office alleged that Mak alerted Bryant to the investigation and




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No. 75827-6-1/3

identified his niece as a confidential informant. Mak was placed on administrative

leave.

         After learning he was under investigation, Mak hired an attorney and

requested that the City pay his legal fees. He made this request pursuant to the

Kent City Code(KCC)2.96.010 indemnifying employees for their legal fees

under certain circumstances. The City denied the request.

         Mak later negotiated a settlement with the U.S. Attorney's Office, which

agreed to not pursue charges, and Mak retired from law enforcement. Mak then

filed suit against the City to recover his attorney fees. The trial court granted

summary judgment to the City, dismissing the lawsuit. Mak appeals.

                                    DISCUSSION

         Mak argues that the Kent City Code requires that the City indemnify him

for his legal fees. He contends that because he learned the identity of the

confidential informant in his role as a police officer, and was on duty when he

confronted Bryant, the City must pay for his legal defense. The City argues that

under the plain language of the Kent City Code, Mak is not entitled to

indemnification because tipping off Bryant was not related to his employment.

         We review a trial court's grant of summary judgment de novo and engage

in the same inquiry as the trial court. Wash. Fed. v. Harvey, 182 Wn.2d 335, 339,

340 P.3d 846(2015). Summary judgment is proper where, viewing the facts in

the light most favorable to the nonmoving party, "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if


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any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." CR 56(c).

       The meaning of a statute is a question of law that we also review de novo.

Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4(2002).

When possible, we derive the legislative intent of a statute solely from the plain

language enacted by the legislature, considering the text of the provision in

question, the context of the statute in which the provision is found, related

provisions, and the statutory scheme as a whole. State v. Evans, 177 Wn.2d 186,

192, 298 P.3d 724(2013)(citing State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d

354 (2010)). A municipal ordinance, like the one at issue here, is construed

according to these rules of statutory construction. World Wide Video, Inc. v. City

of Tukwila, 117 Wn.2d 382, 392, 816 P.2d 18(1991).

       The Kent City Code contains a procedure whereby employees may be

indemnified for legal fees under certain circumstances:

      The city council shall in all cases provide competent legal counsel
      of its choosing, to defend any elected official, officer or employee of
      the city, or the member of any city board or commission who is a
      party, or is threatened to be made a party to any threatened,
      pending or contemplated action, suit or proceeding, whether civil,
      criminal, administrative or investigative, by reason of the fact that
      such person is or was an elected official or officer or employee of
      the city, or member of any city board or commission. The city shall
      pay or indemnify such elected official, officer or employee, or
      member of any city board or commission as against all expenses,
      fees,judgments, fines and amounts paid in settlement actually and
      reasonably incurred by him in connection with such action, suit or
      proceeding, except as otherwise provided in this chapter.




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KCC 2.96.010(emphasis added). The indemnification ordinance requires that the

legal action be related to City employment.

       Viewing the evidence in the light most favorable to Mak, he became the

subject of investigation because he told Bryant that his niece had reported that

he had two Kent officers in his back pocket. Mak acknowledged that his on duty

confrontation with Bryant was of a personal nature, there was no official reason

for it, and that he did not memorialize it with a report. Similarly, his phone

conversation with Bryant occurred while Mak was at home, off duty while

recuperating from surgery, and did not involve official police business. Thus,

although Mak acquired this information as a police officer, he did not share it with

Bryant by reason of the fact that he was a police officer.

       Mak argues that he is entitled to indemnification because he was on duty

when he confronted Bryant. But the plain language of the ordinance is not that

expansive. It indemnifies for an investigation initiated by reason of the fact that

the person is an employee, not for any activity taking place while the employee is

at work. In addition, under this interpretation of the statute, any and every action

by an officer while on duty would require indemnification. As Mak conceded to

the trial court, his interpretation would indemnify a police officer who robbed a

convenience store while on duty.

       This kind of absurd result was rejected in Sanders v. State, 166 Wn.2d

164, 168, 207 P.3d 1245 (2009). In Sanders, a Supreme Court Justice went on

an official visit to a Special Commitment Center during which he engaged in


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 unethical conversations with inmates. Under a different statute than the one at

 issue here, he sought assistance for his defense against allegations of ethical

 violations. Although the statute in that case did not expressly limit its application

 to official acts, the court held that applying the statute "without an official acts

 limitation would lead to a result the legislature obviously did not intend—requiring

 the attorney general to represent a judge before administrative agencies in all

 matters, both official and private." Sanders, 166 Wn.2d at 171-72. In so holding,

 the court concluded that the alleged ethical violations were not official actions

 even though they occurred during an official visit. Id. at 172. Similarly here, being

 on duty does not convert an officer's every action to one done by reason of the

 fact that he is a police officer.1

         Under the plain language of the Kent ordinance, Mak is not entitled to

 indemnification because his actions were not taken by reason of the fact that he

 was a police officer. The trial court did not err by dismissing the suit.

         Affirmed.



                                                                   e
                                                                   , e.-tr•Ni C...."

 WE CONCUR:




           I Mak argues that unlike in Sanders, he was never charged or convicted of any
  wrongdoing. But Sanders analyzes whether the underlying conduct, charged or not, is an official
  action. Id. at 164. Thus, Sanders is instructive even where the accused was not charged or
. convicted of wrongdoing.
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