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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                                                   .£—   •:-~z
WAYNE GODING,
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                                                  DIVISION ONE                     ya*


      Respondent/Cross-Appellant,                                                        r;;;r
                                                                                   V?
                                                  No. 72890-3-1                    ro    C-? -

                 v.



CIVIL SERVICE COMMISSION OF
KING COUNTY;                                      UNPUBLISHED OPINION

                      Respondent,

KING COUNTY, a municipal
corporation; KING COUNTY
SHERIFF'S OFFICE, a department
of King County,

       Appellants/Cross-Respondents.               FILED: December 14, 2015



       Dwyer, J. — Under applicable civil service law, when the county sheriff

imposes a severe sanction—such as suspension without pay—upon a

commissioned deputy the disciplinary decision must be made "in good faith for

cause."1 In such a circumstance, the disciplined employee may request that the

local civil service commission review the disciplinary decision in order to ensure

that the sheriff's action complied with the legal standard. If the civil service

commission upholds the sheriff's action, the disciplined employee may seek
judicial review of the commission's decision. This review, however, is extremely
limited. The court may not disturb the decision of the commission unless that

       1 RCW41.14.120.
No. 72890-3-1/2



decision was made arbitrarily or capriciously.2 And where the commission's

decision is "made with due consideration of the evidence presented at the

hearing," its decision is not, as a matter of law, arbitrary or capricious.3
       In this case, as a sanction for work-related misconduct, the King County

Sheriff imposed a one-day suspension without pay, coupled with a reassignment

to a less desirable detail, upon Deputy Wayne Goding. After a hearing, the civil

service commission upheld the sheriff's action. Goding sought review in the

superior court, which reversed the commission's decision. Given that the record
makes clear that the commission duly considered the evidence presented at the

hearing before it, the commission did not act arbitrarily or capriciously in
upholding the sheriff's action. Accordingly, we reverse the decision ofthe
superior court and reinstate the decision ofthe civil service commission.
                                                I


       Goding was employed as a shuttle deputy in the warrants unit of the
sheriff's office. As a shuttle deputy, Goding, together with his colleague Deputy

Bruce Matthews, was responsible for transporting inmates. This sometimes

involved shuttling inmates to and from the jail and a hospital.

       On March 27, 2012, Sheriff's Sergeant Michael Porter sent an e-mail to

several employees, including Goding, discussing "some 'friction' recently
between the jail staff and our staff who work the transport shuttle." In the e-mail,
Porter instructed Goding and the other employees that,


        2Greia v. Metzler. 33 Wn. App. 223, 226, 653 P.2d 1346 (1982).
        3 State ex rel. Perrv v. Citv of Seattle. 69 Wn.2d 816, 821, 420 P.2d 704 (1966).
No. 72890-3-1/3



      I expect any of our people working on the shuttle run to above all
      be courteous and professional in all contacts with jail staff.
      Anything less than a professional attitude and courtesy will not be
      tolerated regardless of the perceived "provocation."

      Follow the iail staff directions unless they make a request that is
      unsafe or illegal.



       Rather than getting into a conflict with jail staff about what you feel
       is "not your job", just do what they ask, and bring it to my attention
       later if you feel they are asking you to do something that is not
       appropriate for whatever reason. Iwill be meeting with the ITR
       [Intake, Transfer, and Release] sergeant at the jail weekly to work
       out any issues that may come up regarding roles and
       responsibilities. We will also expect the same level of professional
       courtesy on the part of the jail staff, and Iexpect to be notified
       promptly if there are issues regarding their conduct.
       At the civil service commission hearing, Sheriff's Captain Joseph Hodgson

recalled that in March 2012, Porter came to his office to notify him that "[tjhere

was some friction between Sheriff's Office personnel and jail staffthat needed

some attention."

       Over time, Hodgson noticed that Goding and Matthews "seemed to be the
focus of the complaints" from the jail. In fact, during the summer of 2012,
Hodgson received two separate complaints—one involving Matthews and the
other involving Goding—from employees of the King County Department of Adult
and Juvenile Detention alleging that Goding and Matthews failed to properly
comply with requests to complete inmate booking paperwork.4 The complaint


       4The first complaint, received from Jail Captain Jerry Hardy on July 17, 2012, alleged
that Matthews defied a request to properly fill out inmate booking paperwork. The second
complaint, which was communicated to Hodgson in an e-mail that he received from Porter on
No. 72890-3-1/4



against Goding alleged that he was "argumentative and unprofessional" when

interacting with a jail employee.5

        In response to these complaints, Jail Captain Jerry Hardy spoke with

Hodgson regarding Hardy's intention to restrict Goding's and Matthews' "freedom
to roam" the jail. Hodgson recalled that Hardy "justfelt that they were so

disruptive and they were so hostile toward jail staff, that they—his assessment
was that they couldn't be trusted to roam around and work with jail staff in

random places."

        On August 8, 2012, Hodgson "wrote out an e-mail providing my
expectation as to how [Matthews and Goding] conduct themselves and the
directions that they would take when they were at the jail." In the e-mail,
Hodgson specifically instructed Matthews and Goding that,
        I have been informed of conflict that exists between the two of you
        and staff at the RJC [Regional Justice Center] Jail. This conflict
        goes back to some point prior to my arrival in CID [Criminal
        Investigation Division], According to what I have been told, the
        issues revolve around your perceived resistance to compliance with
        jail policies and requests. Italked to Sergeant Porter shortly after
        my arrival in CID and at my direction, he explained to each of you
        that the jail facility is the domain ofthe jail staff and thatwe do not
        make the rules there and we do not dictate or dispute policy
        there. If you are asked to complete a task or observe a procedure
        in order to complete processing of prisoners, the expectation is that
        you will complete that task, as requested, without criticism or
        resistance. If you have concerns regarding the necessity, propriety,
        or practicality of that task or request, you are expected to bring the

August 8, 2012, alleged that Goding had defied a request to properly fill out inmate booking
paperwork.
        5At the hearing, in response to a question asking if anyone, other than Matthews or
Goding, had trouble with the policies regarding inmate booking paperwork, Hodgson testified that,
"several detectives told me they didn't understand why Matthews and Goding were having so
 much trouble, that they'd never had issues."
No. 72890-3-1/5



         issue to the attention of Sergeant Porter. He and I will address the
         concerns with RJC Jail Command. These issues will not be worked
         out by you with jail staff at ITR. If you have concerns that are of an
         emergent, safety nature and cannot wait, you are expected to notify
         Sergeant Porter or me immediately, so some type of resolution can
         be reached immediately.



         [T]he expectation set forth by Sergeant Porter and being reiterated
         by me at this time is that you do not express your side of these
         arguments to jail staff. The reality is that by not pursuing
         concerning issues via proper channels, you are weakening your
         position.161
That same day, Porter sent an e-mail to Goding and Matthews stating that

Captain Hardy "has asked me to pass on his decision that both of you be
restricted to areas of the jail which are necessary for your transportfunctions."

         On August 14—in a meeting attended by Goding, Matthews, Porter,
Hodgson, and Sheriff Sergeant Bob Lurey—Goding and Matthews detailed their
version of events and voiced their concerns.7 Hodgson "reaffirmed the same


         6In response to a question asking Hodgson what his intent was in sending the e-mail, he
testified,

             [t]o putsome sort of an end to any inappropriate behavior that was being
             engaged in, and to provide some guidance to the detectives as to how to handle
             conflicts or disagreements at the RJC.

             In response to a question asking what kind ofconduct he was worried about at
the jail, Hodgson further testified,

             [essentially, anything unprofessional. Certainly argumentative conduct,
             resistance to policy, resistance to reasonable requests, resistance to - or
             failure to understand that the jail has different expectations and different policies
             than we do, and that it is their facility and they do set the rules there.

             7Hodgson testified thatthe concerns expressed by Goding and Matthews were that,
             [b]oth detectives felt like, to a greatextent, the jail staff did not like them or, for
             lack of a better term - and I don't want to say this is what they said, but I can't
             think of a betterway to describe it - butthat the jail staff had it in for them, and
No. 72890-3-1/6



expectations that I established in the e-mail, that they would comply with jail

requests unless it was a dire situation of officer safety or emergent in some way

that was going to place somebody in jeopardy or place somebody's career in

jeopardy, at which time they were notified that they should immediately contact

Sergeant Porter or myself to get resolution."

       In December 2012, following an internal investigation, Sheriff Captain

Scott Somers, an Internal Investigation Unit Commander, issued Goding a

written reprimand for his failure to properly complete required inmate booking

paperwork.8

       On February 20, 2013, near the end of Goding's shift, Goding and

Matthews were instructed by Sheriff's Sergeant Christopher Myers to transport a

suspectwith a felony warrant from Enumclaw to the Regional Justice Center jail

in Kent.

       When Goding and Matthews arrived in Enumclaw to pick up the suspect,

Harlan Phipps, Phipps was not restrained. Goding put restraints on Phipps and

        the jail staff was intentionally making things more difficult for them for some
        reason and constantly changing rules and changing expectations
       8Thewritten reprimand was served on Goding by Hodgson in a meeting on December 5,
2012 thatwas attended by Matthews, Goding, Hodgson and Myers. Hodgson testified about the
substance of the conversation during that meeting:

                There was conversation regarding, again, the fact that the jail staff was
        continually shifting the rules on them and making their lives difficult.
                And then we ended up talking some more about expectations and
        basically focused, to a greatextent in the end, on improving relationships, and
        the fact that the ball was very much in their court and they had the ability and the
        opportunity, should they choose to, to improve the relationships down there.
        That was my belief at the time.

      Later, Hodgson testified that the advice he gave Matthews and Goding during the
December 5 meeting concerning interactions with the jail staff "was [for] them to perform
the duties expected at the highest level."
No. 72890-3-1/7



placed him in the Sheriff's van.9 At the civil service commission hearing, Myers

recalled that, prior to Matthews' and Goding's departure with Phipps, Myers

"anticipated that we were going to have difficulties booking Mr. Phipps, and Itold

them that if we had difficulties booking Mr. Phipps to please give me a call

because I wanted to talk to the medical staff and find a way we can somehow get

him booked into jail."

       Once at the jail, the staff removed Phipps' restraints and two nurses

examined him. Jail Officer Michael Ley, Goding, and Matthews were nearby as

Phipps was being examined. Following the examination, the nurses informed
Matthews and Goding that, for medical reasons, they were declining to admit

Phipps into the jail.10 One ofthe nurses observed "a lot of eye rolling by
Detective Goding when he received the news [that] Phipps was declined."
       Matthews telephoned Myers to inform him ofthe nurses' refusal to admit
Phipps. Matthews gave the telephone to one of the nurses who spoke with
Myers. Myers then spoke again with Matthews. Myers instructed Matthews to
"take Mr. Phipps to Valley Medical Center and release custody of him there."
Matthews relayed this instruction to Goding.

       As Ley assisted in gathering Phipps' belongings, he noticed that Phipps
was not restrained. Ley requested that Goding handcuff Phipps prior to escorting



        9The restraints had two separate components: a waist chain and a set of handcuffs.
        10 Ley testified that it is "not usually a happy situation" when the jail declines to admit a
prisoner "because [the officers are] going to probably have to transport this person an additional
place and watch over them, make sure that they're seen. And they're going to - it's going to
cause them extra time and delay in the booking process."
No. 72890-3-1/8



him through the jail. Goding refused to comply with Ley's request, asserting that

it would be illegal for him to handcuff Phipps.

        Ley then approached Jail Sergeant David Richardson and asked him to
reiterate to Goding the jail's policy regarding restraining inmates. At the civil
service commission hearing, Richardson recalled that, "I went over and, you

know, first told [Goding] that, yes, that is policy, that yes, he does need to restrain
the individual going back out the door. And [Goding's] comment was he's not
going to do it unless his sergeant tells him to."11 Richardson testified that
Goding's tone of voice was "[j]ust kind of matter of fact. Just like his mind had
been made up."12

         Richardson then asked if Myers was at work. Matthews, who was still
speaking with Myers, passed the telephone to Richardson. Richardson spoke
with Myers, who agreed that Phipps should be restrained. Richardson then
"indicated to Deputy Goding that Sergeant Myers agreed with me" by using a
thumbs-up signal. Richardson recalled that when he relayed Myers' agreement
to Goding, "Deputy Goding took my word for it" that Phipps needed to be

             11 In response to a question asking how he interpreted Goding's statement, Richardson
testified:

             Well, Iwas standing there in uniform, obviously Iwas a sergeant. So Itook that
             as being a jail sergeant wasn't good enough, and that [Goding] wanted to hear it
             from a - either - you know, his sergeant.

             12 In response to a question asking what impression Goding's actions and words left
 Richardson with that day, he stated,

             the general impression was that he thought he's a Sheriffs deputy and we're
             jailers, and he can do what he wants and that he doesn't have to abide by our
             rules, that he's just above us. That was the general impression that Igot.
No. 72890-3-1/9



restrained.13 Goding did not seek to speak with Myers regarding the legality of

handcuffing Phipps.14

       Richardson then observed Goding handcuff Phipps and "put waist

restraints back on [Phipps], but he did so in a - I'd call it very unsecure manner.

It was, like, a defiant kind of, 'Okay. Well, if I have to do it I'll do it, but I'm just

doing it for show.'" It appeared to Richardson that "the chain was so loose ....

the back was hanging down around [Phipps'] knees."15
       Goding and Matthews then escorted Phipps out of the jail and transported

him to the hospital.

       The next day, Myers met separately with several people regarding the
incident, including Goding, Richardson, and Porter. Myers first met with Goding.
When Myers asked Goding what he would have done had Myers not been
available by telephone, Goding told him that "I would have done it."16 Myers



        13 In response to a question asking Richardson if there was any hesitation ordelay by
Goding between the time that he received a thumbs-up and the time that Goding put the
restraints on Phipps, Richardson testified, "I don't think there was. Ithink he - again, he took my
word that his sergeant had agreed with me, and he did it."
        Goding testified that after receiving the thumbs up from Richardson, "I immediately
started handcuffing [Phipps]."
          14 Goding testified at the hearing that, "I seem to remember wanting to talk to Sergeant
Myers, and Sergeant Richardson got on the phone and gave me the thumbs up."
          Goding's testimony contradicted a statement that he made during an earlier internal
investigation interview concerning the incident. Therein, Goding stated that he did not want to
speak to Myers regarding his concern about the legality of handcuffing Phipps.
          15 In response to a question asking if Hodgson knew how much time had elapsed
between Goding being initially asked to restrain Phipps and ultimately doing so, Hodgson
testified' "No, but I- my generally [sic] understanding, it wasn't more than a few minutes."
          Goding testified that the time elapsed was "I think two, three minutes. Definitely less than
five. Two to three minutes."
        16At the civil service hearing, Goding testified that his response to Myers' question was
"Well, Iguess Iwould have handcuffed him because otherwise Iwould have been stuck atthat
door for - you know, until the next day because they weren't going to pop the door open."
No. 72890-3-1/10



clarified to Goding "that his prisoner still has a warrant for his arrest and is in his

custody until he is released, in this case at Valley Medical Center."

       Next, Myers spoke with Richardson.

       Richardson told me about the incident and said this was similar to
       previous incidents with Detective Goding. Sgt. Richardson told me
       that after hearing [that] I said to restrain his prisoner, Detective
       Goding placed the waist chains on so loose they were hanging
       around the prisoner's legs.

       Myers then spoke with Porter.

       Porter told me that both he and Captain Hodgson had both given
       Detective Goding an email in which these expectations were laid
       out. Sgt. Porter told me that Detective Goding was told to follow all
       jail policies and jail staff instructions and if there was an issue he
       was to carry out the task and then later report it to his chain of
       command.

       In March 2013, Myers filed a complaint against Goding with the Internal
Investigations Unit of the Sheriff's Office. The complaint alleged that Goding
exhibited "insubordination or failure to follow orders," in connection with the

incident on February 20. Specifically, the complaint alleged that Goding "refused
to restrain a prisoner at the direction of King County Jail staff and [a] sergeant
prior to movement, thus failing to obey a direct written order as written in an
email to [Goding] from CAPTAIN Joseph Hodgson, dated August 8, 2012."
        The internal investigation followed. During the course of the investigation,
several individuals were interviewed, including the two jail nurses who examined

 Phipps, Cathy Woodruff and Rosemarie Tibayan-Hickey.
        Woodruff recalled that "[Matthews and Goding] were upset that they were
 not able to book [Phipps] and they asked me several times why Icouldn't book

                                            10
No. 72890-3-1/11



him and I said I couldn't release a lot of details, because of HIPPA, but that he

needed [to be] seen by a doctor beforehand." When questioned further,

Woodruff noted that Goding exhibited "some eye rolling and just, you know kind

of terse statements, 'Well, I'm going to have to talk to my Sergeant and you'll

have to explain it to my Sergeant.'"

       Tibayan-Hickey recalled that Goding was "irritated" by the decision of the
nurses not to admit Phipps. In addition, she stated that Goding was "[p]ersistent

in us changing our... decision on deferring him."
       At the conclusion of the internal investigation, Sheriff's Captain D.J. Nesel,

an Internal Investigation Unit Commander, sent a memorandum to Sheriff's Major
Ted Stensland notifying Stensland that "[t]he Internal Investigations Unit has
completed their investigation       The case file is being sentto you for review.
Please consider yourfindings and recommendations."
       In response, Stensland wrote a "Findings and Recommendations"
memorandum regarding the allegation that Goding's conduct on February 20 was
an act of "insubordination or failure to follow orders." Therein, Stensland

expressed his findings, after reviewing the internal investigation case file and
discussing the incident with the Internal Investigation Unit Advisory Committee:
       Ifind that Det. Goding knowingly disregarded previous clear
       supervisory direction regarding following DAJD [Department of
       Adult and Juvenile Detention] directives, later admitted that he
       would have eventually followed the directive had he notforced the
       issue to be decided by his supervisor, and then applied the
       restraints improperly effectively disregarding the intent ofthe policy
       that prisoners be secured when being escorted out ofthe facility.
       Therefore I recommend this allegation be SUSTAINED.


                                          11
No. 72890-3-1/12



          This is the second sustained incident of insubordination involving
          and affecting the working relationship with DAJD Staff, and a
          mutually cooperative atmosphere is critical in this job. I
          recommend that Detective Goding be suspended for one day
          without pay, and that he be immediately transferred out of the
          Criminal Warrants Unit.

          Subsequently, Nesel issued a "Loudermill117' Notification" memorandum

wherein he communicated Stensland's finding and disciplinary recommendation

to Goding. In addition, Nesel informed Goding that he was "entitled to a

Loudermill hearing with Sheriff [John] Urquhart to respond to this

recommendation and provide any information you would like him to consider

before making a final decision in this matter."

          Goding requested a hearing before the Sheriff.

          On September 30, 2013, following the hearing, Sheriff Urquhart issued a

"Loudermill Hearing Results" memorandum. Therein, Urquhart communicated

his conclusion to Goding.

          On August 8, 2012 you were told in an e-mail from Captain
          Hodgson that, "If you are asked to complete a task or observe a
          procedure in order to complete the processing of prisoners, the
          expectation is that you will complete that task, as requested,
          without criticism or resistance."

          Furthermore, in a meeting on August 14, 2012 attended by your
          then-sergeant and your Guild representative Mr. Lurry, [sic] you
          were told to follow the direction of jail staff "unless the direction was
          a direct violation of our policies or was an officer safety issue." This
          was not the case in this incident and you did not follow the direction
          of jail staff until told to do so by your sergeant.

          ALLEGATION:        Rules of Conduct - Insubordination or Failure
          to Follow Orders GOM 3.00.015(2)(a)

          17 Cleveland Bd. of Educ. v. Loudermill. 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494
(1985).

                                               -12-
No. 72890-3-1/13




          After careful consideration I concur with the findings of Major
          Stensland, that this allegation should be sustained.

          Discipline: One (1) day suspension without pay for violations
                         associated with [the February 20 incident] to be
                         imposed and served by December 31, 2013.

                         Immediate transfer from the Criminal Warrants Unit to
                         unincorporated patrol.

          On October 1, Urquhart issued a personnel order to Goding wherein he

stated,

          Deputy Wayne Goding, assigned to the King County Sheriff's
          Office, Patrol Operations, Precinct 3, has been found in violation of
          General Orders Manual Section 3.00.015(2)(a) - RULES OF
          CONDUCT: MISCONDUCT: Insubordination or failure to follow
          orders.

          Therefore, under authority of R.C.W. 41.14.110 and 41.14.120,
          Deputy Wayne Goding, is suspended without pay for one (1) day (8
          hours). This discipline will not be imposed until after October 16th,
          2013, to give Deputy Wayne Goding, the opportunity to exercise
          any appeal rights he may have under the collective bargaining
          agreement in effect between King County and the King County
          Police Officer's Guild, or the King County Civil Service Rules.

          On October 18, Goding provided a written request of appeal to the King

County Civil Service Commission. Athree-day hearing was held during which
the commission heard from seven witnesses and reviewed an array of

documentary evidence.18

          Goding testified that he believed the situation involving Phipps was

unique, stating that, "[t]his situation had never, in 11 years, popped up." Goding
estimated that in those 11 years he had "personally handled, you know, 4,000 to

          18 The hearing was held on January 30, 31, and February 5, 2014. Live testimony from
Hodgson, Myers, Ley, Tibayan-Hickey, Richardson, Urquhart, and Goding was presented.

                                              -13-
No. 72890-3-1/14



6,000" prisoners. Goding elaborated that "[t]his is the first time I was inside the

jail and the sergeant said, '[t]urn him loose, don't - you're not going to wait on

him, you're not going to rebook him.'"19 Goding also testified to his belief that,

       [t]here's only two reasons to put someone in handcuffs: one, they're
       under arrest; or two, a safety reason, either you think they're going
       to assault you or someone else or hurt themselves. So you might
       put them in - they call it "officer safety" - is a common term for it,
       but for safety reasons put them in handcuffs, or they're under
       arrest. That's the only two reasons that I know you can handcuff
       somebody. And ifyou handcuff somebody, you'd better be able to
       explain why you're putting them in handcuffs.

In light of this belief, Goding told the commission, he did not think he had a lawful

reason to handcuff Phipps.

       In addition, Goding testified regarding the manner in which he applied the

restraints to Phipps. He denied that he put the chains on in a loose manner as a

sign of disrespect. Instead, Goding testified that,

       when I put the chains around [Phipps], as a compassion for his
       pain, I put them on - and Iwouldn't even say loose. I put them on
       to fit his body. I didn't snug them up, which I almost never do
       unless someone is uncooperative, but I put them on to fit his body,
       and I put the padlock on and put the handcuffs on him. And
       because of the coveralls and his large stomach and his swollen left
       side, the chains slid down to right below his butt. But that was not
       the intention to put them on that way. That's just what happened,
       when he moved they slid down.

Further, Goding testified that he "put [the chains] on the same way" when he
applied the restraints to Phipps at the jail as he had done when he first restrained
       19 Myers told Matthews to "kick [Phipps]." Goding testified that afterhe received this
instruction from Matthews he

       believed that we were going to release [Phipps]. So, that means he's released.
       And the only thing we had to arrest him on was a warrant, and the sergeant
        declined to book him on the warrant, so now he has nothing to be under arrest.


                                               14
No. 72890-3-1/15



Phipps in Enumclaw. Goding recalled that once he was outside of the jail with

Phipps, he "took the chains off [Phipps], put him in the van unrestrained, and

drove him to the hospital."

       Richardson's and Myers' testimony rebutted Goding's characterization of

the situation as unique and confirmed the need to restrain Phipps. Richardson

testified that "[i]n my 24 years, no law enforcement officer has taken issue with

restraining an arrestee going back out, for whatever reason it is." Richardson

elaborated on the need to restrain prisoners in the sally port area,

       [w]hile that technically is a secured area of the jail, it's unsecured in
       the aspect that police officers step out of their cars and put their
       weapons in the trunks of their cars. So they're unholstered, have
       their guns in their hands. And that would be -- there would be the
       main reason that we insist inmates going back out the door are
       restrained. Because once they get past that [ ] door, you know,
       theoretically, if an officer is standing behind his trunk, which could
       be just steps away out that door, putting his weapon into his trunk,
       not secured, an inmate could run out and grab it.

       Consistent with Richardson's views, Myers testified regarding the practice

of restraining prisoners stating, "[i]t would be whenever we're transporting
anybody in our custody that's a prisoner, that that person would be restrained."
In response to a question asking Myers if this policy or practice is communicated
to new officers when they join the criminal warrants unit, Myers testified, "[i]t's a

department policy. So it's actually written into our general orders manual that
we're all responsible for knowing."

       Tibayan-Hickey testified that Goding was not "happy about us declining" to
admit Phipps and that a "disagreement" ensued. When asked if Goding pressed
the point with her, she testified,

                                         -15-
No. 72890-3-1/16



      [w]ell, he said there was something about the charges for the
      inmate were serious and that we should accept him. But, you
      know, we said we would accept him, but we needed to get him
      medically cleared first before we took him into the jail.

      When asked whether she felt comfortable during the interaction with

Goding, Tibayan-Hickey answered that,

      [i]t was unusual from the fact. . . that they were having the
      argument. Most of the time we would just, okay, give them the
      paperwork, they'd take the paperwork, take the inmate to the
      hospital. But it was a lot of back and forth on why we weren't and
      why we should kind of a thing.

      When asked whether one deputy was more involved in the argument than

the other, Tibayan-Hickey responded, "I think it was more Goding because

Matthews was on the phone with I think his supervisor."

      Sheriff Urquhart testified that, in preparing for a Loudermill hearing, he

      reviewfs] the case file, I look at the statements, I read the
      statements, I read the Findings and Recommendations, I look at
      the proposed discipline, I look at the comparable disciplines.

              And then before the meeting I confer with the internal
      investigations captain, the specific detective that - detective-
      sergeant in internal investigations that did the investigation, and I
      speak with the HR manager, and I speak with our labor attorney.
      And just kind of review the case and look at the discipline, those
      sorts of things.

      The Sheriff also reviewed the investigation itself.

      I looked at [the investigation] to make sure it was complete and
      thorough, to make sure there was just cause, that no stone had
      been left unturned. I always give the person that's coming in for the
      grievance or the Loudermill, as well as their representative, an
      opportunity to suggest or to ask for further investigation. That was
      not done. I didn't see anything else that needed to be done. It was
      completed within the contractual 180 days. I had no issues with the
       investigation per se at all.


                                       -16
No. 72890-3-1/17



       In reviewing the substance of the claims against Goding, the Sheriff

noticed that

       I recall that it was essentially the same sort of conduct [as a prior
       incident of discipline]. A little bit different, but basically getting into
       an argument with the jail staff over a prisoner.

              By this point in time, if I'm remembering correctly, the
       admonition had gone from Deputy Goding's -- originally from
       Detective Goding's sergeant at the earlier investigation now up to
       his captain, who had sent him an e-mail saying, "This type of
       conduct is unacceptable. You will do what the jail tells you to do
       unless it's unsafe or illegal."

       In reaching his conclusion, the Sheriff considered a written statement

provided by Goding wherein Goding maintained his assertion that Officer Ley's

request to restrain Phipps was illegal. As the Sheriff recalled,

               [Goding] had been told by his sergeant that if the jail did not
       accept this prisoner, he was to take him up to Harborview[20] and
       then leave Harborview, unarrest him. And his argument was that
       when he was told in the jail booking area that they would not accept
       the prisoner, that at that point in time the suspect was not under
       arrest and, therefore, it would have been illegal for him to handcuff
       him as was requested by the jail.

             And I told [Goding] at the time [during the Loudermill
       hearing], and Ifeel to this day, that was an illogical and wrong
       analysis of the law. [Phipps] was still under arrest and still would
       be under arrest until they got to Harborview and they walked away
       from him. The warrant was still in existence, it had not been
       cleared, it had not been quashed, and he had every right under the
       law to put him back in handcuffs.

       The Sheriff also found it significant that Goding did not speak directly with

Myers about his concern regarding the illegality of restraining Phipps. In light of



       20 The Sheriff misremembered the hospital to which Goding had been directed by his
sergeant. This variance is of no significance.

                                           -17-
No. 72890-3-1/18



Goding's failure to speak directly with Myers, the Sheriff asserted his belief to the

commission that,

       I think if [Goding had] been as concerned as he told me in the
       Loudermill that this was an illegal act, I think he would have made
       his concerns much more - would have voiced his concerns more to
       his sergeant than he did. He had an opportunity to get on the
       phone with Sergeant Myers; he didn't. Ifthis was such a big
       Constitutional issue, as you have said and he has said, then I think
       he would have presented his case more.

              I think the fact that he didn't, that he allowed the jail sergeant
       to get on the phone and talk to the sergeant, leads me even more
       to believe that this was an excuse not to handcuff the prisoner.

       Based on his review of the internal investigation file, the Sheriff

determined that Goding "was argumentative" with the jail staff. In addition, the

Sheriff believed that the restraints appeared

       [haphazard so that the belly chains were drooping down to the
       suspect's knees, and not how we would expect to fully restrain a
       prisoner. Again, in a[n] in-your-face type of action to the jail staff,
       as it was portrayed in the internal investigations - investigation.

       The Sheriff further testified about the conclusions that he reached after

conducting the Loudermill hearing, stating that there are

       [t]wo things I look at in a Loudermill. The first was should this case
       be sustained or not. And of course I can overturn the discipline, I
       can ask for more investigation. So that's my first decision point.
       And I believed that the allegation should be sustained.

              And I look at the discipline. And I look at the discipline
       obviously from [a] progressive standpoint, but primarily I look at the
       discipline to try to determine what is going to change behavior.
       That is my goal, is to change behavior. And clearly the first case
       that I reviewed regarding Deputy Goding did not change his
       behavior. He's still having a problem in the jail.

             So I agreed with the recommended discipline that a one-day
       suspension was appropriate and transfer out of the unit was

                                         -18-
No. 72890-3-1/19



      appropriate. I didn't see any other way we could change his
      behavior, which was unacceptable to me and unacceptable for
      anybody working in the Sheriff's Office.

       In response to two questions asking Urquhart if he considered comparable

discipline within the department and past history—which included the prior

written reprimand that Goding had received—before imposing discipline for the

February 20 incident, the Sheriff responded "I did" to both questions.

      At the conclusion of the civil service hearing, the commission determined

that Goding's failure to comply with Ley's directive was an act of insubordination,

and that "the County met its burden to establish that the discipline imposed was

made in good faith for cause." It upheld the Sheriff's action.

       Goding appealed the commission's decision to the King County Superior

Court. The superior court reversed, ruling that the commission's decision was

"arbitrary and capricious." The superior court ordered that Goding be reinstated

to his position in the criminal warrants unit and be awarded "full back pay."

       The Sheriff now appeals.

                                          II


       The Sheriff contends that "[t]he Superior Court erred in entering two

orders ruling that the Civil Service Commission acted arbitrarily and capriciously

in finding that the King County Sheriff's discipline of Deputy Wayne Goding was

in good faith for cause under RCW 41.14.120." Br. of Appellant/Cross Resp't at

3. This is so, the Sheriff asserts, because "the Commission's decision was

based on competent evidence and was not arbitrary and capricious." Br. of

Appellant/Cross Resp't at 16. We agree.

                                       -19-
No. 72890-3-1/20



      Chapter 41.14 RCW governs "Civil Service for Sheriff's Office." "The

general purpose of this chapter is to establish a merit system of employment for

county deputy sheriffs and other employees of the office of county sheriff,

thereby raising the standards and efficiency of such offices and law enforcement

in general." RCW 41.14.010.

      The commission is a statutory body "created in each county and in each

combination of counties ... to carry out the provisions of this chapter." RCW

41.14.030. Its members are appointed by officials outside of the police force in

order to ensure independence. RCW 41.14.030. The commission is authorized

"[t]o hear and determine appeals or complaints respecting the allocation of

positions, the rejection of an examinee, and such other matters as may be

referred to the commission." RCW 41.14.060(5).

       Our authority to review commission decisions is set forth in RCW

41.14.120. "The judiciary's role in reviewing action taken by the [Civil Service]

Commission is severely limited." Greiq v. Metzler, 33 Wn. App. 223, 226, 653

P.2d 1346 (1982). Indeed, "[w]here a tribunal has been established to hold

inquiries and make decisions . . . review by the judiciary is limited to determining

whether an opportunity was given to be heard and whether competent evidence

supported the charge." State ex rel. Perry v. City of Seattle, 69 Wn.2d 816, 821,

420 P.2d 704 (1966). Specifically, RCW 41.14.120 confines judicial review "to

the determination of whether the order of removal, suspension, demotion, or

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

cause, and no appeal shall be taken except upon such ground or grounds."

                                        -20-
No. 72890-3-1/21



When making this determination, we review the commission's record, not the

record or decision of the superior court. Greiq, 33 Wn. App. at 226.

      RCW 41.14.120 explicitly controls decisions regarding "removal,

suspension, demotion, or discharge" and sets forth the applicable standard of

review. Under RCW 41.14.120, we do not separately review findings of fact or

conclusions of law. Instead, we review the commission's decision as a whole to

determine whether the decision demonstrates that the commission duly

considered the evidence presented at the hearing. Perry, 69 Wn.2d at 821.

      The crucial question is whether or not there is evidence to support
      the commission's conclusion. A finding or a conclusion made
      without evidence to support it, is, of course, arbitrary. State ex rel.
      Tidewater-Shaver Barge Lines v. Kuvkendall, 42 Wn.2d 885, 891,
      259 P.2d 838 (1953); but it is not arbitrary or capricious if made
      with due consideration of the evidence presented at the hearing.
      See Miller v. Tacoma, 61 Wn.2d 374, 390, 378 P.2d 464 (1963).

Perry, 69 Wn.2d at 821.

      We "must exercise independent judgment to determine whether the

Commission acted arbitrarily, capriciously, or contrary to law." Greiq, 33 Wn.

App. at 226 (citing Benavides v. Civil Serv. Comm'n, 26 Wn. App. 531, 613 P.2d

807 (1980); Eiden v. Snohomish County Civil Serv. Comm'n, 13 Wn. App. 32,

533 P.2d 426 (1975)). But "[a] decision by an administrative commission is not

arbitrary and capricious simply because a trial court and this court conclude, after

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

administrative commission." Perry. 69 Wn.2d at 821. Indeed, the commission's

decision is not arbitrary or capricious ifthe commission duly considered the

evidence presented at the hearing. Perry, 69 Wn.2d at 821. Reviewing courts

                                       -21 -
No. 72890-3-1/22



are prohibited from "substitut[ing] [their] judgment for the independent judgment

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

      The question before the Commission was whether the discipline imposed

on Goding by the Sheriffwas made in good faith, for cause.

      On appeal, the question before us is whether the Commission's

decision—wherein it concluded that the discipline imposed by the Sheriff was,

indeed, made in good faith, for cause—was arbitrary or capricious. This decision

must be upheld "if made with due consideration of the evidence presented at the

hearing." Perry, 69 Wn.2d at 821. The record indicates that the commission

gave the evidence due consideration and that its decision was made in light of

the evidence before it.

       Goding asserted at the time of the incident, and reiterated in the civil

service hearing, that he was excepted from following Ley's directive because the
request to restrain Phipps was illegal. In reaching its decision, the commission

analyzed Goding's position at length:

       The County rejected Goding's position, effectively finding that [the
       illegality] enumerated exception to the orders did not apply. Implicit
       in the County's finding, and made explicit by Sheriff Urquhart's
       testimony, is that Goding did not reasonably believe the exception
       applied.

       The precise question before the Commission is whether the County
       had good cause to reject Goding's position.

       The question is a close one, primarily because the handcuff
       incident was not overtly argumentative or confrontational, and
       lasted just a few minutes. The Commission also took into
       consideration that the jail staff did not initiate a complaint about the
       handcuffing incident; instead Sgt. Myers was the person who
       initiated the complaint and investigation.

                                        -22-
No. 72890-3-1/23




      However, after careful consideration, the Commission finds that the
      County had good cause to reject Goding's proffered explanation
      and determine that he was insubordinate. The overall record does
      not support that Goding reasonably believed that the "illegal"
      exception applied. The most relevant points are below.

      First, even though the circumstances described by Goding as so
      unique as to not have occurred in 11 years, they were in fact very
      similar to numerous other occasions where prisoners were escorted
      back and forth between the jail and the hospital. No other witness
      testimony or other evidence—outside of Goding's own statement—
      pointed to any previous instance of a prisoner being transported in
      and out of the sally port area of the jail unrestrained.

      Second, Goding did not appear to account for or consider the
      second justification for handcuffing that he said his training
      supplied: officer safety. Testimony and evidence established the
      obvious point that transfer through secure areas of a jail facility
      where armed law enforcement officers are securing their weapons
      and other prisoners are present could present a safety risk. Officer
      Ley said that he was surprised and puzzled by Goding's position.
      Richardson testified that in 24 years working at the jail, the need to
      restrain unreleased prisoners in this area had never been
      questioned. Sgt. Myers testified that this type of incident had never
      happened before, and that prisoners are always restrained in and
      out of the sally port. Goding did not produce any evidence or
      testimony to counter the well-established practice or to dispute the
      safety aspect of restraining prisoners in the secure area ofthe jail.
      Third, Goding's efforts to address the concern while at the jail were
      inconsistent with a belief that it would have been illegal to re-
      handcuff Phipps. Goding gave his explanation to Officer Ley. The
      record, while less than clear on this point, indicates that he did not
      articulate his position directly to Sergeant Richardson, but rather
       relied on the fact that Officer Ley had related it to him.

      The record is clear, however, that Goding did not speak to his own
       sergeant directly about his concern about whether it was lawful to
       re-handcuff Phipps. Goding knew that Officer Matthews was
       talking to Sgt. Myers on the phone. Goding had the opportunity to
       tell Matthews and/or Richardson that he needed to talk to Myers.
       But despite his claim that this incident was so unique that it had not
       occurred in 11 years oftransporting thousands of prisoners, and
       despite his claim that it was so concerning to him that he initially
                                        -23-
No. 72890-3-1/24



      refused to comply with a clear instruction from DAJD Staff, Goding
      did not avail himself of the opportunity to talk to Myers directly.

      The Commission is sympathetic to Goding's argument that he was
      in a bit of a Catch-22, in that he had been admonished numerous
      times to follow jail staff direction without challenge or resistance,
      but had also been instructed to raise possibly illegal directions to
      his supervisor. We do find the fact that the incident was a low-
      level, professional exchange, lasting only a few minutes, relevant in
      this regard.

      However, considered together, it was reasonable for the County to
      conclude that if Goding maintained a reasonable conviction that it
      would have violated Phipps' constitutional rights to be re-restrained,
      that he would have asserted it more forcefully and directly than he
      did.

      There are other facts and circumstances that support this
      conclusion. The record establishes that Phipps was rejected for
      booking at the end of Goding's shift. Officer Ley and Jail Health
      staff Nurse Hickey stated also that Goding was not happy about the
      medical deferral, and was irritated. Jail Health staff Nurse Woodruff
      also stated in her IIU interview that Goding was upset. These
      observations tend to undercut Goding's position that the only
      motivation behind his initial refusal to handcuff Phipps was a
      concern about the legality of the action.

      In addition, the available information surrounding the manner in
      which Goding re-applied the belly chain and handcuffs on Phipps
      also casts doubt on the sincerity of his position.

      As set forth in the Summary of Facts, there is some dispute as to
      whether Goding cuffed Phipps differently the first time than the
      second. Sgt. Myers was present at the first application, and
      recalled that Phipps was cuffed properly at that time.

      Goding stated that he applied them the same way both times, and
      that he absolutely did not re-apply the belly chains intentionally
      loosely. Rather, he explained he put them on to fit Phipps['] body
      and because of his large belly and medical condition the chains slid
      down. He agreed that the belly chain was applied loosely with the
       back part hanging to Phipps' knees.

       Sgt. Richardson also observed that the belly chain was applied
       loosely and, in his view, improperly. As described above, he

                                        -24-
No. 72890-3-1/25



      believed that Goding re-applied the chain intentionally loosely, in an
      expression of defiance.

      Sheriff Urquhart credited Sgt. Richardson's account of the
      handcuffing, and concluded that Goding's method of placing the
      chains on Phipps was an "in your face type of action" and an act of
      defiance.

      It is difficult to discern with any certainty another person's intent.
      Nonetheless, given (1) the established history of a problematic
      relationship between Goding and jail staff; (2) the unusual dispute
      over a routine matter such as handcuffing a [prisoner] transport out
      of the jail; (3) the agreement that the chains were very loosely
      applied; and (4) Richardson's observation and contemporaneous
      interpretation of Goding's intent, the County acted reasonably in
      considering this incident as an additional reason to reject Goding's
      defense to the allegation of insubordination.

      The Commission therefore upholds the County's finding that
      Goding was insubordinate.

      Was the discipline for good cause?

      Goding raised an issue about the scope of the hearing in that the
      order issued imposing discipline in this matter does not identify that
      it is based on progressive discipline, and does not cite or refer to
      the previous discipline. . . .

      He is correct. The September 30, 2013 memo [Loudermill Hearing
      Results Memorandum] from Sheriff Urquhart to Goding does not
      mention the prior discipline or refer to progressive discipline, nor
      does the Personnel Order 2013-228 of October 1, 2013, which
      imposes the current discipline.

      However, Urquhart's Loudermill findings letter does contain the
      following sentence: "After careful consideration I concur with the
      findings of Major Stensland, that this allegation should be
      sustained."

      CID Commander Major Stensland's 7-24-13 Findings and
      Recommendations [Memorandum], forwarded to IIU Commander
      Captain Nesel, states: "This is the second sustained incident of
      insubordination involving and affecting the working relationship with
      the DAJD Staff, and a mutually cooperative atmosphere is critical in
      this job. I recommend that Detective Goding be suspended] for

                                        -25-
No. 72890-3-1/26



      one day without pay and that he be immediately transferred out of
      the Criminal Warrants Unit."

      Sheriff Urquhart also stated during his oral testimony that while he
      considered the handcuffing incident as a significant stand-alone
      issue, he considered the two prior guidance and expectation
      memos and the prior written reprimand in determining discipline.
      He said that he looked at discipline as both progressive and to
      change behavior, and concluded that the previous memos and
      discipline had not changed Goding's behavior.

      While it would have been advisable for the County to have
      articulated in the Loudermill memo and the Personnel Order that
      progressive discipline was a basis for the decision, the Commission
      finds that there is an adequate basis to conclude that the
      disciplinary decision was progressive, and built upon previous
      warnings and actual discipline of Goding.



      Therefore, the Commission's decision is that the discipline imposed
      was for good cause.



      Finding

      Based on the foregoing, the Commission denies Goding's appeal,
      and finds that the County met its burden to establish that the
      discipline imposed was made in good faith for cause.

       Because the record indicates that the commission duly considered all of

the evidence that was presented at the hearing, fully explained the bases for its

determinations, and based its determinations on its consideration of the

evidence, the superiorcourt erred by concluding that the commission acted in an
arbitrary and capricious manner in determining that the discipline was imposed in
good faith, for cause.




                                        26
No. 72890-3-1/27




       In a cross appeal, Goding contends that the hearing before the

commission was untimely and that, as a result, he is entitled to be treated as the

prevailing party. We disagree.

                                                 A


       At the beginning of the civil service hearing, a commissioner stated, "I'd

like just to confirm for the record that the parties have stipulated that the appeal

of this matter was timely and in accordance with the rules."21 Neither party

objected.

       "It is the duty of counsel for all parties to promptly call the court's attention

to any error in the [proceeding]. Counsel may not secretly nurture an error,

speculate upon a favorable verdict, and then, in the event it is adverse, bring

forth the error as a life preserver. . . ." on appeal. Aaranoff v. Morton, 54 Wn.2d

341,346, 340 P.2d 811 (1959).

       The same principle applies to litigation of this sort. Goding in no way

raised an issue of timeliness to the commission, even though invited by the

commission to do so. He now attempts to engage in word play, contending that

the commission only asked about the timeliness of the filing of his appeal, not the
hearing itself. If he harbored a complaint about timeliness, his duty of candorto


        21 In his brief, Goding cites to this statement, asserting that "[t]he question posed to
counsel for Mr. Goding, and to which he assented, was whether he agreed that the appeal itself
was timely, not whether the hearing was being conducted on a timely basis." Reply Br. of
Resp't/Cross-Appellant at 2.
        An examination of the record indicates that the commission posed no such question to
Goding's counsel.

                                               -27-
No. 72890-3-1/28



the tribunal required him to clarifythe issue with the commission at that time. By

not doing so, he forfeited any claim of error based on the timeliness of the

proceeding.

                                           B


         In addition to forfeiting his claim of error, Goding also waived his claim by

not asserting it before the commission.

         Goding was obligated to raise his claim of timeliness prior to the

commencement of the hearing.

         "Ourcases require issues to be first raised at the administrative
         level." Citizens for Mount Vernon v. City of Mount Vernon, 133
         Wn.2d 861, 869, 947 P.2d 1208 (1997). Furthermore, "[i]n order for
         an issue to be properly raised before an administrative agency,
         there must be more than simply a hint or a slight reference to the
         issue in the record." King County v. Wash. State Boundary Review
         Bd\, 122 Wn.2d 648, 670, 860 P.2d 1024 (1993).



                 Requiring resolution ofan issue at the administrative level is
         more than "'simply a technical rule ofappellate procedure; instead,
         it serves an important policy purpose in protecting the integrity of
         administrative decision making.'" Pac. Land Partners. LLC, v. Dep't
         of Ecology. 150 Wn. App. 740, 754, 208 P.3d 586 (2009) (quoting
         King County. 122 Wn.2d at 688).

ABC Holdings. Inc. v. Kittitas County. 187 Wn. App. 275, 282-83, 348 P.3d

1222 (2015), review denied, No. 91878-3,           P.3d      (Wash. Nov. 4,
2015).

         As our Supreme Court has held in the past: "Plaintiff, with full knowledge
of the alleged irregularity, failed to object at any point in the administrative
 process. The right to raise the question before the superior court has been

                                            28
No. 72890-3-1/29



waived." Hill v. Dep't of Labor & Indus.. 90 Wn.2d 276, 280, 580 P.2d 636 (1978)

(challenge to decision-maker waived); see e.g.. Escamilla v. Tri-Citv Metro Drug

Task Force. 100 Wn. App. 742, 750-51, 999 P.2d 625 (2000) (challenge to

timeliness waived), abrogated on other grounds by In re Forfeiture of One 1970

Chevrolet Chevelle. 166 Wn.2d 834, 215 P.3d 166 (2009).

       Goding did not raise his assertion of untimeliness to the commission. As a

result, on this question, no evidence was taken, no facts were contested, no

factual findings were made, and no ruling was made. In essence, Goding asks

us to reverse a decision that the commission was never called upon to make.

We will not do so.22

       The decision of the superior court is reversed. The decision of the King

County Civil Service Commission is reinstated.


                                                         •^~}^){l-
We concur:



UJ,^                                              yrf) 9AhM,



        22 Because Goding is not the prevailing party on appeal, we need not address the
remaining issues set forth in his cross appeal.

                                                  -29-
