    FILE


   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                  )
                                      )      No. 88270-3
                   Respondent,        )
                                      )
      v.                              )      EnBanc
                                      )
K.L.B.,                               )
                                      )
                   Petitioner.        )
                                      )      Filed         JUN 2 6 2014


      C. JOHNSON, J.-The main issue in this case is whether a Sound Transit

fare enforcement officer (FEO) is a "public servant" as defined in RCW

9A.04.110(23). Fifteen-year-old K.L.B. was charged with making a false or

mjsleading statement to FEO Brett Willet under RCW 9A.76.175, which provides

that it is a misdemeanor to knowingly make "a false or misleading material

statement to a public servant." The Court of Appeals affirmed the trial court's

conclusion that under the statute, FEO Willet was a public servant at the time K.L.B.

made the false statement. We hold that under these circumstances, because FEOs are

not government employees, are not officers of government, and do not perform a
State v. K.L.B., No. 88270-3


governmental function, they are not "public servants" as defined by the statute.

Therefore, we reverse the Court of Appeals.

                          FACTS AND PROCEDURAL HISTORY

      Brett Willet and Ben Hill were working as Sound Transit FEOs on Seattle's

Link light-rail train system (the Link). The position of an FEO is a limited-

commission office authorized to issue citations for civil infractions on both light-rail

and heavy-rail trains. Sound Transit contracts with Securitas Security Services to

provide security and fare enforcement services for the Linlc The FEOs wear a

uniform with patches reading "Sound Transit," "security," and "fare enforcement."

Verbatim Report ofProceedings (VRP) at 27-28. They also wear a tool belt, which

includes a radio, handcuffs, and a key ring but does not include a weapon.

      On August 6, 2010, the two FEOs entered a train car at the Rainier Beach

station and instructed all passengers to present proof of fare. When FEO Willet

asked K.L.B. and his companions to present proof of fare payment, they gave him

their bus transfers. FEO Willet informed them that while bus transfers used to be

valid on the light-rail, they were no longer accepted. K.L.B. and his companions

said that they were unaware of the change and unfamiliar with the current system.

The three young males were instructed by FEO Willet to exit the train at the next

station. The FEOs asked the three males for identification once they exited the train.

                                            2
State v. K.L.B., No. 88270-3


All three were either unable or unwilling to provide identification. K.L.B. identified

himselfto FEO Willet as Kinds M. Marty. One ofK.L.B.'s companions identified

himself as James .T. King, whiJe the other identified himself as Jamal J. Johnson.

      K.L.B. was temporarily detained at the Othello station. The King County

Sheriff's Office was called to assist in identifying K.L.B. and his companions so

they could potentially be cited for fare evasion. Deputy Lee Adams spoke with

K.L.B., and two other deputies spoke with his companions. K.L.B. gave his correct

name and birth date to Deputy Adams after the deputy warned him that it was a

crime to lie to a police officer. Deputy Adams then asked K.L.B. to identify one of

his male companions. He responded .that he did not know his companion's full

name and that he: knew him only as '"Marty."' 1 Clerk's Papers at 43. FEO Willet

informed all three individuals that they might receive citations for fare evasion in

the mail. Deputy Adams returned to the station and used a computer database to

identify the third companion whom K.L.B. identified as "Marty." Deputy Adams

was able to positively identify him within an hour. There was an assault warrant out

for this individual's arrest.




       1
         K.L.B. originally identif1ed himself as Kinds M. Marty and later identified his companion
by only the first name of Marty.


                                                3
State v: K.L.B., No~ 88270-3


      K.L.B. was then charged with two counts of making a false or misleading

statement to a public servant under RCW 9A.76. 175. K.L.B. was found guilty of

making a false statement to FEO Willet (count II). He was found not guilty of

making a false statement to Deputy Adams (count I). K.L.B. was obligated to pay a

crime victim assessment penalty of $75 but received no further punishment.

      K.L.B. appealed to Division One of the Court of Appeals, which affirmed his

conviction. State v. K.L.B., noted at 169 Wn. App. 1034, 2012 WL 3065326, at *7,

review granted, 177 Wn.2d 1004 (2013). Here, K.L.B. argues that a Sound Transit

FEO is not a "public servant" as defined in RCW 9A.04.110(23). He also argues

that the definition of "public servant" is unconstitutionally vague and that to convict

a person of making a false or misleading statement to a public servant, the State

must prove that the defendant knew the statement was made to a public servant.

                                      ANALYSIS

      K.L.B. was charged with making a false or misleading statement to FEO

Willet under RCW 9A.76.175, which provides in relevant part that "[a] person who

knowingly makes a false or misleading material statement to a public servant is

guilty of a gross misdemeanor." Under RCW 9A.04.110(23), the term "public

servant" is defined as




                                           4
State v. K.L.B., No. 88270-3


      any person other than a witness who presently occupies the position of
      or has been elected, appointed, or designated to become any officer or
      employee of government, including a legislator, judge, judicial officer,
      juror, and any person participating as an advisor, consultant, or
      otherwise in performing a governmental function.

       This case involves statutory interpretation, which is an issue of law reviewed

de novo. The first step in statutory interpretation is to consider the statute's plain

language. If the statute is unambiguous, meaning it is subject to only one reasonable

interpretation, our inquiry ends. State v. Velasquez, 176 Wn.2d 333, 336, 292 P.3d

92 (2013).

       Looking at the statutory language, the "list" is specific and express. Police

officers and judges are public servants under RCW 9A.04.110(23), which has been

recognized in cases. State v. Graham, 130 Wn.2d 711, 719, 927 P.2d 227 (1996)

(police); 2 State v. Stephenson, 89 Wn. App. 794, 808-09, 950 P.2d 38 (1998)

Uudges ). The definition also applies to those who hold government office or

employment or who have been selected to do so, but it does not include a candidate

for election as a "public servant." State v. Hendrickson, 177 Wn. App. 67, 75, 311




       2
         In Graham, two off-duty police officers were working as private security guards when
they searched and arrested the defendant. We held that when the officers stopped the defendant,
they stepped out of their roles as private security guards and into their roles as police officers.
They were identified as police officers, and their status as police officers was known to the
defendant. Therefore, we held that they were public servants.


                                                  5
State v. K.L.B., No. 88270-3


P.3d 41 (2013), review denied, 179 Wn.2d 1017, 318 P.3d 280 (2014). The

definition of "public servant" also includes "legislator[s ], judge[ s], judicial

officer[s], [and] juror[s]" who are public employees for purposes of wages, benefits,

or liability. RCW 9A.04.110(23). The main dispute here is whether FEO Willet was

"otherwise ... performing a governmental function" or was an "officer" under the

statutory definition. RCW 9A.04.110(23).

       a. FEO Willet was not "otherwise . .. performing a governmental function"
          under RCW 9A. 04.11 0(23)

       K.L.B. claims that both the trial court and the Court of Appeals improperly

found that FEO Willet was a public servant because this broad interpretation

improperly renders superfluous the phrase "advisor, consultant, or otherwise" as it

appears in RCW 9A.04.110(23). According to K.L.B.'s interpretation, the term

"otherwise" encompasses only positions that are similar in nature to advisors or

consultants. We agree.

       Under settled principles of statutory construction, general words accompanied

by specific words are to be construed to embrace only similar objects. Simpson Inv.

Co. v. Dep 't of Revenue, 141 Wn.2d 139, 151, 3 P.3d 741 (2000). 3 This canon

properly applies where there is a list of specific terms followed by a general term,


       3
           Ejusdem generis.


                                             6
State v. K.L.B., No. 88270-3


i.e., "specific, specific, or general." See Sw. Wash. Chapter, Nat 'l Elec. Contractors

Ass 'n v. Pierce County, 100 Wn.2d 109, 116, 667 P .2d 1092 ( 1983 ). Here, we are

interpreting the phrase "advisor, consultant, or otherwise in performing a

governmental function," 4 in other words, "specific, specific, general." Therefore,

under this canon of interpretation, a person qualifies as a public servant where they

are acting as an advisor, a consultant, or something similar in performing a

governmental function. FEO Willet was not acting as an advisor, a consultant, or

something similar when K.L.B. made a false statement to him. 5


       4
            The dissent argues that it if we apply ejusdem generis, we must apply it consistently to
the larger list-i.e., the entire statute. The dissent then argues that such a reading would be
nonsensical because "the phrase 'any person participating as an advisor, consultant, or otherwise
in performing a governmental function' would be read to modify the list that includes legislators,
judges, judicial officers, and jurors." Dissent at 4. However, the dissent misunderstands how this
canon applies. Under ejusdem generis, general words accompanied by specific words are to be
construed to embrace only similar objects; this cannon applies when a list of specific terms is
followed by a general term. Here, the dissent has it backwards; "any person participating as an
advisor, consultant, or otherwise in performing a governmental function" would not modify the
other lists, but rather the more specific lists would modify who was an "advisor, consultant, or
otherwise." Applying the canon correctly, "any person participating as an advisor, consultant, or
otherwise" must be similar to a governmental employee, legislature, judge, judicial officer, or
juror. As explained above, FEOs are not governmental employees and are not similar to an elected
 official, judicial officer, or juror.

       5
          The dissent also cites Jongeward v. BNSF Railway, 174 Wn.2d 586, 617, 278 P.3d 157
(2012), to argue that ejusdem generis does not apply when interpreting a phrase containing the
word "otherwise." However, this support is misplaced, as the clause at issue in Jongeward differs
from the statutory clause in this case. In Jongeward, the dissent argued that the "canon properly
applies where there is a list of specific terms followed by a general term, i.e., 'specific, specific, or
general."' Jongeward, 174 Wn.2d at 614 (Wiggins, J., dissenting) (citing Sw. Wash. Chapter,
Nat 'l Elec. Contractors Ass 'n, 100 Wn.2d at 116). In Jongeward, we were interpreting the phrase
"cut down, girdle or otherwise injure, or carry off," in other words, "specific, specific or general,


                                                    7
State v. K.L.B., No. 88270-3


       Under another well-known canon of statutory construction, "a single word in

a statute should not be read in isolation." State v. Roggenkamp, 153 Wn.2d 614, 623,

106 P.3d 196 (2005). 6 Applying this framework, "otherwise" must be read in

conjunction with the other nouns-"advisor" and "consultant." Because "advisor"

and "consultant" modify "in performing a governmental function," we can glean the

legislature's intent that not every person performing a governmental function is to

be considered a public servant under the statute. Only those who are participating as

an advisor, consultant, or something similar in performing a governmental function

are public servants.

       The State argued that FEO Willet was clearly performing a government

function-fare enforcement-and that there is no meaningful argument that the

legislature intended to define "public servants" narrowly. However, as K.L.B. points

out, "a court must not interpret a statute in any way that renders any portion

meaningless or superfluous." Jongewardv. BNSF Ry., 174 Wn.2d 586, 601,278




specific." Jongeward, 174 Wn.2d at 615 (Wiggins, J., dissenting). Therefore, the phrase
"otherwise injure" was not to be construed to embrace only similar objects. In contrast, in this case
we are interpreting the phrase "advisor, consultant, or otherwise in performing a governmental
function," in other words, "specific, specific, general." Therefore, the canon does apply and under
the statute, a person qualifies as a public servant only if they were acting as an advisor, a
consultant, or something similar in performing a governmental function.

       6
           Noscitur a sociis.


                                                  8
State v.J(.L.B., No. 88270-3


P.3d 157 (2012) (citing Svendsen v. Stock, 143 Wn.2d 546, 555,23 P.3d 455

(2001)). The State's broad interpretation would render superfluous the phrase

"advisor, consultant, or otherwise." If the legislature intended that everyone

performing a governmental function be considered a public servant, the terms

"advisor" and "consultant" would have no separate meaning.

      Under the State's logic, any private security officer or individual performing a

police-like governmental function would be a public servant. For example, a private

security guard checking bags before patrons enter a sport stadium would be a public

servant. If a patron made a false statement to such a security guard, then they could

have criminal charges filed against them. Going even further, a vigilante-a person

who is not a police officer but who tries to catch and punish criminals-would be a

"public servant" and it would be a crime to make a false or misleading statement to

such an individual. The State's argument that a "public servant" includes anyone

"performing a governmental function" would ignore modifying language in the

statute. In addition, interpreting the statute this broadly would raise questions as to

the statute's vagueness and overbreadth.

       b. FEO Willet was not an ''officer" under RCW 9A. 04.11 0(23)

       The State separately argues that FEO Willet meets the definition of "public

servant" as someone who occupies the position of an officer of government. Under


                                            9
State v. K.L.B., No. 88270-3


RCW 9A. 04.11 0(23 ), a "public servant" includes "any person ... who presently

occupies the position of or has been elected, appointed, or designated to become any

officer ... of government." In turn, "officer" is defined as

      a person holding office under a city, county, or state government, or the
      federal government who performs a public function and in so doing is
      vested with the exercise of some sovereign power of government, and
      includes all assistants, deputies, clerks, and employees of any public
      officer and all persons lawfully exercising or assuming to exercise any
      of the powers or functions of a public officer.

RCW 9A.04.110(13) (emphasis added). The Court of Appeals agreed with the State

and held that "[t]he evidence supports that Willet was 'lawfully exercising or

assuming to exercise any of the powers or functions of a public officer' when he

was working as an FEO on August 6, 2010." K.L.B., 2012 WL 3065326, at *3.

      It is true that Sound Transit contracted with Securitas to provide fare

enforcement services in accordance with Sound Transit's statutory authority. It is

also true that under RCW 81.112.21 0(2)(b ), FEOs have the authority to (i) request

proof of payment from passengers, (ii) request personal identification from a

passenger who does not produce proof of payment when requested, (iii) issue a

citation under RCW 7.80.070, and (iv) request that a passenger leave the facility

when the passenger has not produced proof of payment. However, these statutory




                                           10
State v. K.L.B., No. 88270-3


privileges do not transform Sound Transit FEOs (who in reality are Securitas

employees) into public officers.

      Under the plain language of the statute, an "officer" is a person holding office

who performs a public function and who is vested with some sovereign power of

government. As a private security officer, an FEO is not a public officer under this

language of the statute, as they are not elected, appointed, or designated to hold

office. Therefore, an FEO can possibly be an "officer" only under the second part of

the statute, which provides that an "officer" can include someone "lawfully

exercising or assuming to exercise any of the powers or functions of a public

officer." RCW 9A.04.110(13) (emphasis added). While the State and the Court of

Appeals have pointed out statutory powers granted to Sound Transit and to FEOs

generally, neither has directed us to the person holding public office whose power

the FEOs are lawfully exercising. As mentioned, FEOs do not exercise all powers

police officers have. In essence, they can check riders to verify valid tickets exist

and eject passengers who have not paid. Anything more and the FEO summons the

police. Therefore, a Sound Transit FEO cannot be "exercising or assuming to

exercise any of the powers or functions" of someone that does not exist.

       The State also argues that if FEO Willet and his colleagues were not public

servants, passengers could lie to them without legal repercussions, which would


                                           11
State v. K.L.B., No. 88270-3


make it nearly impossible to enforce the fare policy and issue infractions. FEOs

monitor compliance with fare collection. If someone has not paid their fare, they can

be removed from the train and under certain circumstances given a citation.

Alternatively, no reason exists why police officers cannot be summoned when

needed, as occurred in this case. Police officers certainly qualify as public servants

under the statute. K.L.B. was charged with two counts of knowingly making a false

or misleading material statement to a public servant: one count was for his statement

to Deputy Adams, but he was found not guilty of that charge. 7 These "legal

repercussions" are sufficient to deter Sound Transit riders from evading their fares.

                                          CONCLUSION

       Because we hold that FEOs are not "public servants" as defined by RCW

9A.04.110, we need not reach the other issues raised by K.L.B. The Court of




       7
         In fact, while Deputy Adams works for the King County Sheriffs Office, he is
specifically assigned to matters arising from the Link and the heavy-rail train. VRP at 87.


                                                 12
    State v. K.L.B., No. 88270-3


    Appeals is reversed and K.L.B. 's charges are vacated.




    WE CONCUR:




\




                                               13
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.




                                    No. 88270-3

       J.M. JOHNSON, J.* (dissenting)-The majority misapplies the canons

of statutory construction in concluding that fare enforcement officers (FEOs)

are not "public servants" as defined by RCW 9A.04.11 0(23) and dismisses

the defendant's conviction for making a false or misleading statement to a

public servant. Because FEOs fulfill a governmental function and are officers

within the meaning of the relevant statute, I dissent.

                                      ANALYSIS

A Sound Transit Fare Enforcement Officer Whose Employment Is Contracted
Through a Private Security Firm Is a "Public Servant" under RCW
9A.04.110(23)

        I agree that the first step in statutory interpretation is to consider the

statute's plain language; often this is the only analysis needed. The majority

accurately states the rules of statutory construction where application of the

canons of construction is necessary. Majority at 5. I disagree with the manner

in which the majority applies these rules to construe the statute.




 *Justice James M. Johnson is serving as justice pro tempore ofthe Supreme Court
 pursuant to Washington Constitution article IV, section 2(a).
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.




       K.L.B. was convicted of making a false or misleading statement to a

public servant,· FEO Willet, under RCW 9A.76.175.               Under RCW

9A.04.11 0(23), the term "public servant"

       means any person other than a witness who presently occupies
       the position of or has been elected, appointed, or designated to
       become any officer or employee of government, including a
       legislator, judge, judicial officer, juror, and any person
       participating as an advisor, consultant, or otherwise in
       performing a governmental function.

(Emphasis added.) FEO Willet was both an "officer of government" and

"performing a governmental function."           Accordingly, FEO Willet was a

public servant and making a false or misleading statement to FEO Willet

violated RCW 9A.76.175.

        a.     FEO Willet Was "Performing a Governmental Function" under
               RCW 9A.04.110(23)

        The majority argues that a broad construction of "performing a

governmental function" improperly renders superfluous the phrase "advisor,

consultant, or otherwise" as it appears in RCW 9A.04.110(23). Majority at 6.

According to the majority, the term "otherwise" encompasses only positions

that are similar in nature to advisors or consultants. Id.

        Two principles historically expressed in Latin guide our analysis:

noscitur a sociis and ejusdem generis. Under noscitur a sociis, "a single word



                                            2
State v. K.L.B., No. 88270-3
Dissent by J .M. Johnson, J.




in a statute should not be read in isolation .... '[T]he meaning of words may

be indicated or controlled by those with which they are associated."' State v.

Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005) (quoting State v.

Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)).                Under ejusdem

generis, general words accompanied by specific words are to be construed to

embrace only similar objects. Sw. Wash. Chapter, Nat 'l Elec. Contractors

Ass'n v. Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983). However,

these rules do not, as the majority contends, lead to a narrow interpretation of

"public servant" that excludes FEOs.

         The first phrase in the statute is intended to include anyone occupying

the position of an officer or employee of government (regardless of how that

person came to occupy the position, be it through election, appointment, or

designation). 1 Next, the statute provides a list of persons expressly intended

to be included in the definition (legislators, judges, judicial officers, and

jurors). The last item in the statutory definition's list is still another list (that

is, "any person participating as an advisor, consultant, or otherwise in

performing a governmental function"). The majority ignores that this is a list

within a list in arguing against a broad interpretation. If ejusdem generis was


1
    There is also an express exclusion of witnesses.


                                                   3
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



applied consistently to the first, larger list, then the phrase "any person

participating as an advisor, consultant, or otherwise in performing a

governmental function" would be read to modify the list that includes

legislators, judges, judicial officers, and jurors. However, such a reading is

nonsensical.     Consultants and advisors are not anything like legislators,

judges, judicial officers, and jurors. Clearly, the legislature did not adopt this

statute with the intent that ejusdem generis apply.

       This court has rejected similar improper ejusdem generis arguments

before as Justice Wiggins noted in his dissent in Jongeward v. BNSF Railway,

174 Wn.2d 586,617,278 P.3d 157 (2012): 2

       It does not make sense to apply the rule where a general phrase
       is modified by "otherwise." The word "otherwise" means
       "different" or "in a different way or manner." WEBSTER's THIRD
       NEW INTERNATIONAL DICTIONARY 1598 (2002). This alone
       manifests a legislative intent not to limit the general phrase to
       things comparable to the specific phrases, and other courts have
       refused to apply ejusdem generis to "otherwise" phrases for this
       very reason.

Ejusdem generis is unhelpful in interpreting a phrase containing the word

"otherwise" due to its plain language definition. Therefore, "otherwise ... ·



2
 In Jongeward, both the majority and the dissent rejected the defendant's ejusdem
generis argument. 174 Wn.2d at 595. The dissent discussed the argument in more depth,
whereas the majority dismissed it out of hand.


                                             4
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.




performing a governmental function" is not necessarily limited to categories

of workers similar to advisors and consultants. RCW 9A.04.11 0(23). In fact,

the plain meaning of the word "otherwise" indicates that the term is intended

to apply to those who are "different" from advisors and consultants.

Jongeward, 174 Wn.2d at 595.

       Even if the legislature did intend ejusdem generis to apply, the majority

does not apply it correctly in this instance. The list is not the usual "specific,

specific, general" type of list, as the majority asserts. Rather, the list provides

a large number of specific examples with a very broad catchall provision at

the end. That is, the statute applies regardless of whether the person is a

legislator, a judge, a juror, an advisor, a consultant, or anyone else who acts

on behalf of the government.

       It is more consistent with other recognized canons of construction to

consider a FEO as "otherwise ... performing a governmental function,"

whether employed directly by the government or contracted through a private

security firm. Knowing this term by the company it keeps indicates that

"otherwise ... performing a governmental function" should be interpreted

consistently with the other examples in the statute. These specific examples

include all employees of government, legislators, and jurors.                RCW


                                            5
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



9A.04.110(23). Like these other categories ofpeople, 3 FEOs are ultimately

compensated by the government, albeit indirectly through their private

security firms.     Moreover, FEOs are expressly charged by statute with

providing a governmental function. 4

       The majority uses the examples of private security guards at sporting

events and vigilantes as evidence that the legislature could not have intended

the statute to apply so broadly. Both of these examples miss the mark because

"security" is not always a governmental function. But, sporting event security

guards and vigilantes perform decidedly nongovernmental functions of

deterring or stopping crime without statutory authority.

       FEOs are different from both of these examples because FEOs are

expressly empowered by statute to fulfill the governmental function of writing

citations to enforce governmental policies and rules.                No such statute



3
 See RCW 2.36.150 (specifying compensation for jurors).
4
  Under RCW 81.112.21 0(1), regional transit agencies like Sound Transit may establish a
schedule of fines and penalties for civil infractions under RCW 81.112.220. Failure to
provide proof of fare is one such infraction. Transit agencies "may designate persons to
monitor fare payment who are equivalent to and are authorized to exercise all the powers
of an enforcement officer, defined in RCW 7.80.040. An authority is authorized to employ
personnel to either monitor fare payment, or to contract for such services, or both." RCW
81.112.210(2)(a). Under these provisions, Sound Transit is statutorily authorized to
contract with Securitas to provide fare enforcement services. These FEOs employed by
Securitas are statutorily authorized to request proof of payment from passengers, request
identification from those who do not have proof of payment, issue citations, and ask
passengers to leave the facility. RCW 81.112.210(2)(b).


                                               6
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



authorizes Phoenix Jones 5 or any other private citizen to perform any

governmental function such as arresting, charging, or prosecuting criminals.

Such private actors may call law enforcement officers and observe the

situation until the officers arrive. 6 The legislature has empowered neither

Phoenix Jones nor private security guards with the same statutory authority it

has FEOs.

       The plain language of the statute, informed by the canons of

construction cited above, indicates that FEO Willet was, in fact, performing a

governmental function. Moreover, it is improbable that the legislature would

criminalize making a false statement to all government employees, such as

elementary school teachers, but not FEOs expressly charged by statute with

issuing civil infractions for fare evasion. Because FEO Willet was performing

a governmental function under RCW 9A.04.110(23), I would hold that he was

a "public servant" for the purposes of making a false or misleading statement

to a public servant.




5
  Phoenix Jones is a notable Seattle resident who dons a superhero costume and "fights
crime" as a vigilante.
6
  These restraints actually make Phoenix Jones more closely resemble a witness, which is
expressly excluded from the definition of a "public servant."


                                               7
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



       b.     FEO Willet Was an "Officer" under RCW 9A. 04.11 0(23)

       In addition to performing a governmental function, FEO Willet falls

within the definition of "officer" under RCW 9A.04.110(23).                   The

Washington Criminal Code defines "officer" as

       a person holding office under a city, county, or state government,
       or the federal government who performs a public function and in
       so doing is vested with the exercise of some sovereign power of
       government, and includes all assistants, deputies, clerks, and
       employees of any public officer and all persons . lawfully
       exercising or assuming to exercise any of the powers or functions
       of a public officer.

RCW 9A.04.110(13). Under the plain language ofRCW 9A.04.110(13), FEO

Willet was "lawfully exercising or assuming to exercise . . . powers or

functions of a public officer." As noted, transit agencies "may designate

persons to monitor fare payment who are equivalent to and are authorized to

exercise all the powers of an enforcement officer, defined in RCW 7.80.040.

[A transit] authority is authorized to employ personnel to either monitor fare

payment, or to contract for such services, or both." RCW 81.112.210(2)(a).

An "enforcement officer" is defined as "a person authorized to enforce the

provisions of the title or ordinance in which the civil infraction is established."

RCW 7.80.040.         Through these provisions, Sound Transit is statutorily




                                            8
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.




authorized to employ directly or contract for the services of officers who are

charged with enforcing the provisions involving civil infractions.

       FEOs also fall under chapter 10.93 RCW, the Washington Mutual Aid

Peace Officers Powers Act of 1985. RCW 10.93.020(4) defines "limited

authority Washington peace officer" as "any full-time, fully compensated

officer of a limited authority Washington law enforcement agency empowered

by that agency to detect or apprehend violators of the laws in some or all of

the limited subject areas for which that agency is responsible." See also RCW

10.93.080 (such officers shall have no additional powers by virtue of chapter

10.93 RCW).

       I conclude that FEOs fall under several plain language statutory

definitions of "officer" relating to their fare enforcement duties. Interpreting

these provisions consistently with RCW 9A.04.110(23) and RCW

9A.04.110(13) vindicates the legislature's intent to define FEOs as public

servants, whether employed directly by the government or through private

security firms. See State v. Velasquez, 176 Wn.2d 333, 336, 292 P.3d 92

(2013) ("related statutory provisions must be harmonized to effectuate a

consistent statutory scheme that maintains the integrity of the respective




                                          9
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



statutes"). FEO Willet satisfies the definition of "officer" found in RCW

9A.04.110(13) and is, therefore, a public servant.

       Finally, it makes little sense for the legislature to create the fare

enforcement system but fail to give its officers any workable enforcement

mechanism. Because the majority holds that FEOs are not public servants,

passengers can lie to them without legal repercussions, making it impossible

to enforce the fare policy and issue infractions. 7 Without a passenger's name

and address, it is impossible to issue an infraction for fare evasion.

       Because the majority holds that FEOs are not public servants, they are

not subject to the terms of various anticorruption statutes, including bribery

(RCW 9A.68.010), requesting unlawful compensation (RCW 9A.68.020), or

official misconduct (RCW 9A.80.010).                The legislature could not have

intended such results when it authorized Sound Transit to designate FEOs. 8

        For these reasons, Sound Transit FEOs whose employment is

contracted through private security firms are "public servants" under RCW

9A.04.11 0(23).       The majority ignores the legislature's plain intent to



 7
   The system is, in part, financed by bonds reliant on fare collection.
 8
   The majority's construction renders FEOs completely impotent in the face of a
 dishonest fare dodger because they can summon police officers "when needed." Majority
 at 12. If this was the case, the entire statute authorizing FEOs is rendered superfluous
 because only police officers can effectively enforce the payment of fares.


                                               10
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.



criminalize making a false or misleading statement to FEOs under RCW

9A.76.175. 9

                                     CONCLUSION

       We should hold that Sound Transit FEOs, including those whose

employment is contracted through private security firms, are "public servants"

under RCW 9A.04.110(23). The nature of FEO Willet's employment on

August 6, 2010, satisfies the definition in two ways: (1) he was performing a

governmental function and (2) he was an officer of government. Accordingly,

the Court of Appeals should be affirmed and the conviction enforced.

       Repayment of the substantial public investment in transit depends on

enforcement of the rules and fares set for that purpose.




9
 I take this opportunity to point out that the legislature may reverse the outcome of this
case by amending RCW 9A.04.11 0(23) to expressly include FEOs in the definition of
"public servants" or adjust the form of the sentence so that the catchall term "otherwise
... performing a governmental function" is at the end of the full list, rather than at the
end of the list within a list. See supra p. 3.


                                                11
State v. K.L.B., No. 88270-3
Dissent by J.M. Johnson, J.




                               12
State v. KL.B.




                                       No. 88270-3


       MADSEN, C.J. (concurring in dissent)--In a time of fiscal austerity, it is

surprising that King County elected to use its resources to prosecute a young man for his

apparent lack of candor with uniformed officers after being informed that Sound Transit

no longer accepted bus transfers as legitimate fare. The use of considerable public

resources to prosecute such a minor infraction, especially one that can easily be

understood as a crime of poverty, is remarkable. It is more surprising, however, that the

majority can find the Sound Transit fare enforcement officer was performing a

government function, fare enforcement, but that this officer was not a "public servant."

The analysis presented by the majority would define the engineering consultant hired to

design the light-rail as a "public servant" while excluding fare enforcement officer Brett

Willet, interacting with the public and issuing citations on the light-rail, from the same

titular description. I cannot subscribe to the majority's application of the rules of

statutory construction because it leads to an untenable result. Therefore, I join and

concur in the dissent.
No. 88270-3

Madsen, C.J., concurring in dissent




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