                                                                                                    T   OF A    P EALS
                                                                                                  DIVISION Li
                                                                                          2i1i MAY 28        M; 8: 31

                                                                                          ST :\TE aI.- SFr     llNG ! oN
                                                                                            Y




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

DAVID S. DIVIS,                                                          No. 43744 -941


                                  Appellant,


         v.



WASHINGTON STATE PATROL,                                          UNPUBLISHED OPINION


                                  Respondent.


         HUNT, J. —    David S. Divis appeals the superior court' s affirmance of the Washington

State Patrol Chief John R. Batiste'     s order   demoting him from    sergeant   to trooper.   Divis argues


that   we should reverse   the   superior court   because Chief Batiste ( 1)   exceeded his authority and

wrongly entered his own independent findings of fact that differed from the Washington State

Patrol ( WSP) Trial Board' s findings of fact; ( 2) improperly relied on a prior settlement

agreement arising from Divis' s earlier acts of misconduct, which settlement agreement was not

before the Trial Board; ( 3)     failed to weigh the proportionality of his discipline of Divis against

his discipline of other troopers in similar situations; and ( 4) lacked just cause to demote him

because the investigation was not conducted fairly, one of the elements of cause in the WSP' s

Administrative Investigation Manual.           Holding that Chief Batiste acted within his supervisory

authority,    we affirm.
No. 43744 -9 -II



                                                            FACTS


            The Washington State Patrol (WSP) hired David S. Divis as a trooper in 1989. On March

2, 2006, WSP promoted Divis to sergeant; later that month, WSP assigned him to supervise a

trooper detachment in South Seattle.


            In January 2008, WSP' s Office of Professional Standards Internal Affairs investigated

allegations that Divis had made racially insensitive comments in front of his troopers multiple

times during 2006 and 2007 and that he had used intimidation techniques to prevent employees

from reporting his racially insensitive behavior. WSP initiated disciplinary proceedings, alleging

eleven specific violations.




             An administrative WSP Trial Board conducted a six -day hearing in December 2009 and

January       2010.    After hearing testimony from 18 witnesses and reviewing over 3, 000 pages of

information, the Trial Board ( 1)              determined that WSP had proved three of the alleged racially

insensitive       remarks'; (   2) unanimously agreed that Divis had violated WSP Regulation 8. 00. 010

     A),   requiring employees to obey WSP rules of conduct, and WSP Regulation 8. 00. 030 ( A),

prohibiting unacceptable conduct by employees; and ( 3) unanimously recommended that Divis
be     sanctioned     by    suspending him for 20 working days.                 The Trial Board forwarded its findings




 1
     More specifically, in its April 2010 decision, the Trial Board found that WSP had proved ( 1)
     Divis made a comment something to the effect of, `The three laziest troopers in this detachment
happen to be black, '           Clerk'   s   Papers ( CP)   at   178; ( 2) "   Divis made a racially insensitive remark
when        he   compared major    league baseball      player         Tony    Gwynn to Aunt Jemima," CP at 180; and

     3) Divis improperly " used an ` open forum' management style to discuss an individual' s activity,
performance,        disciplinary issues between detachment members." CP at 185. The Trial
                      and

 Board qualified these findings as follows: WSP did not prove that Divis used the word " lazy,"
 Divis improperly referred to race " when reviewing or discussing employee performance," and
 his " Aunt Jemima"          comment was "       insensitive     and was offensive."      CP at 179, 180.




                                                                   2
No. 43744 -9 -II



and recommendation to Chief Batiste, who entered a two -
                                                       page final order ( First Final Order),

demoting Divis from sergeant to trooper.
                                                                                                2
         Divis     petitioned   the    superior    court    for   a   judicial   writ of review.     The superior court


dismissed the Trial Board' s finding that Divis had engaged in an open forum management style,

vacated Chief Batiste' s demotion order because it did not comply with RCW 34.05. 461( 3) 3, and
remanded     for   additional review and          entry   of a new order.         On December 2, 2011, Chief Batiste

entered a new       final   order (   Second Final Order),         again demoting Divis from sergeant to trooper.

Divis filed   a new     Petition for Judicial Writ           of   Review.        The superior court upheld the chief's


Second Final Order. Divis appeals.


                                                          ANALYSIS


                                                   I. FINDINGS OF FACT


          Divis first contends that Chief Batiste exceeded his authority under RCW 43. 43. 090 by

making his own findings of fact in his Second Final Order that contradicted or exceeded the

scope of    the Trial Board'      s   findings,   which were          binding    on   him.   The record does not support


Divis'   s contentions.      Furthermore, Divis mischaracterizes Chief Batiste' s recitation of the Trial


Board' s findings of facts.




2 A WSP trooper may appeal an adverse administrative action to the superior court by
          apply[ ing] to the     superior court ...        for a writ of review to have the reasonableness
          and lawfulness of the [ WSP] order inquired into and determined.
          The superior court shall review the determination of the chief of the [ WSP] in a
          summary manner.
RCW 43. 43. 100.

3
    The legislature         amended     RCW 34. 05. 461           in 2013.       LAws OF 2013,       ch.   110 §   2.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.




                                                                  3
No. 43744 -9 -II



             On the contrary, the record supports WSP' s assertion that Chief Batiste did not make new

findings of fact. Rather, he merely summarized the Trial Board' s record and findings, and issued
                                                                                                           4
his final         order   based    on   two ultimately- sustained        allegations    against   Divis.       For example, the


chief s      Second Final Order               stated: "   Credible testimony ...     confirms that Sergeant Divis made a


statement to          the effect, `      The three laziest troopers in this detachment happen to be black. "'


Clerk'   s       Papers ( CP)     at   22 (   emphasis added).      Chief Batiste did not find that Divis had used the


term " lazy         "; rather, in noting that some troopers had testified that Divis had " made a statement to

 that]   effect,"         the chief was merely summarizing parts of the administrative record before the

Trial Board.           CP    at   22.    Thus, Divis is mistaken in his contention that Chief Batiste' s Second


Final Order revised the Trial Board' s findings about whether he ( Divis) had used the term " lazy

trooper" in a racial context. Br. of Appellant at 17.


             Similarly, the record does not support Divis' s contention that Chief Batiste found his

 Divis'      s) "   Aunt Jemima" comment to have been racially discriminatory, in contrast to the Trial

Board'       s    finding no      evidence       of   discrimination.    Br.   of   Appellant   at   18.   First, Divis fails to


identify what finding in the chief' s Second Final Order was allegedly contrary to the Trial

Board' s finding; nor does Divis provide a record citation for such finding, contrary to RAP




4 The Trial Board found three of seven allegations of misconduct proven. On appeal, however,
the superior court dismissed one of the three proven findings, leaving two " sustained" findings,
on which Chief Batiste ultimately based his final order. CP at 21.



                                                                     4
No. 43744 -9 -II


                  5
10. 3 ( a)( 6).


          Nevertheless, our review of the record does not reveal any finding by Chief Batiste that

Divis'   s comment was              discriminatory. Instead, we find only the chief' s statement that Divis' s

 Aunt Jemima"              comment " was            insensitive   and       was   offensive."    CP     at   24.    Furthermore, the


chief' s statement          did   not contradict        the Trial Board' s         finding   that "[   t] he preponderance of the


evidence presented clearly supports that the allegation of Discrimination/ Harassment is

unfounded."             CP at 199. Thus, Divis' s first argument fails.


                                 II. CONSIDERATION OF 2006 SETTLEMENT AGREEMENT


           Divis next argues that in demoting him from sergeant to trooper, ChiefBatiste improperly

relied on a prior 2006 settlement agreement that arose from Divis' s earlier acts of misconduct,

which was not            before the Trial Board.            Chief Batiste'         s   Second Final Order          stated, "   Of critical


importance to me in making this decision is Sergeant Divis' s previous history of discipline for

similar conduct."            CP at 27. This Second Final Order detailed an earlier complaint against Divis


by    another         trooper,   who      alleged   that Divis had '         made inappropriate comments about her and


other    female         personnel       in the agency ";      this case was resolved in 2006 through a settlement


agreement             that Divis'   s   conduct      had   violated     WSP Regulation 8. 00. 030 ( A)—Unacceptable


Conduct. CP at 27.




5
  We are not required to search the record for support for a party' s argument. In re Estate of
Lint, 135 Wn.2d 518, 532, 957 P. 2d 755 ( 1998) ( courts are not obligated " to comb the record"
where counsel has failed to challenge specific findings and support arguments with citations to
the   record);        RAP 10. 3(    a)(   6).   See also In re Disciplinary Proceeding Against Kamb, 177 Wn.2d
 851, 861, 305 P. 3d 1091 ( 2013) ( internal                  quotation marks and citation omitted) ( quoting In re


Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 311, 962 P. 2d 813 ( 1998)) ( " It is
incumbent on counsel for the appellant to present argument to the court why specific findings of
fact are not supported by the evidence and to cite to the record to support that argument.").


                                                                        5
No. 43744 -9 -II



         In connection with the instant allegations against Divis, however, WSP withdrew the

allegation      and evidence    related    to this 2006     prior   settlement agreement.             Thus, WSP did not


present to the Trial Board evidence of how Divis' s prior behavior resulted in this settlement

agreement, and the Trial Board made no findings relating to this prior settlement agreement or

that Divis' s currently       alleged misconduct was           a " pattern"   or "   trend."     CP   at   28.   Nevertheless,


Divis' s prior misconduct and the resultant settlement agreement were part of the Trial Board' s


record; thus, the chief could consider this information in determining the appropriate discipline.

Divis' s challenge to Chief Batiste' s consideration of Divis' s 2006 misconduct fails.

                                 A. Standard of Review; Statutory Authority

          Each level of the judiciary reviews administrative decisions in an appellate capacity.

Farm     Supply    Distribs., Inc.   v.    Wash. Utils. &      Transp. Comm' n, 83 Wn.2d 446, 448, 518 P.2d

1237 ( 1974).       When reviewing          an administrative       action, we       sit "`   in the same position as the

                                                                                                                                6]
superior court,     applying the     standards of   the [ Washington Administrative Procedure Act (APA)



directly   to the   record    before the agency.'"        Chandler v. Office of Ins. Comm 'r, 141 Wn. App.

639, 647, 173 P. 3d 275 ( 2007) (          quoting Tapper v. Employment Sec. Dep' t, 122 Wn.2d 397, 402,

858 P. 2d 494 ( 1993)). "        We apply a substantial evidence standard to an agency' s findings of

fact[]    but   review   de   novo   its   conclusions    of    law."   Chandler, 141 Wn.              App.      at   647 ( citing


Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P. 3d 930 ( 2006)).




6 ch. 34. 05 RCW.

7 But because Divis does not assign error to any of the Trial Board' s findings of fact, we need not
apply this      substantial evidence standard       here. See RAP 10. 3( g), 10. 4( f).




                                                               6
No. 43744 -9 -II



       When reviewing factual issues, the                substantial evidence standard is highly
       deferential to the agency fact finder.            When an agency determination is based
       heavily on factual matters that are complex, technical, and close to the heart of the
       agency'   s expertise,     we    give   substantial   deference to agency         views.   Under this
       standard, evidence must be of a sufficient quantum to persuade a fair -
                                                                             minded
       person of   the truth     of a   declared   premise.      But [ we do] not weigh the evidence or
       substitute our judgment regarding witness credibility for that of the agency.
       Findings of fact to which no error has been assigned are verities on appeal.


Chandler, 141 Wn. App. at 648 ( footnotes and citations omitted).

       We may grant relief "if the party challenging the agency order shows that the order is
                                                                             8], " 9
invalid for   one of   the   reasons set   forth in RCW 34. 05. 570( 3)[               such as where "[   t]he order is




8 RCW 34.05. 570( 3) lists the following grounds for judicial relief "from an agency order in an
adjudicative proceeding ":
        a)    The order, or the statute or rule on which the order is based, is in violation of
        constitutional provisions on its face or as applied;
        b)   The order is outside the statutory authority or jurisdiction of the agency
        conferred by any provision of law;
         c) The agency has engaged in unlawful procedure or decision -  making process,
        or has failed to follow a prescribed procedure;
        d) The agency has erroneously interpreted or applied the law;
        e)  The order is not supported by evidence that is substantial when viewed in
       light of the whole record before the court, which includes the agency record for
       judicial review, supplemented by any additional evidence received by the court
        under this chapter;

         f) The agency has not decided all issues requiring resolution by the agency;
         g)   A motion for disqualification under RCW 34. 05. 425 or 34. 12. 050 was made
        and was improperly denied or, if no motion was made, facts are shown to support
        the grant of such a motion that were not known and were not reasonably
        discoverable by the challenging party at the appropriate time for making such a
        motion;

         h) The order is inconsistent with a rule of the agency unless the agency explains
        the inconsistency by stating facts and reasons to demonstrate a rational basis for
        inconsistency; or
         i) The order is arbitrary or capricious.

9 Chandler, 141 Wn. App. at 647.


                                                             7
No. 43744 -9 -II


                                                                                                                               1o;
outside    the statutory authority       or   jurisdiction   of   the agency   conferred        by   any   provision of   law "

                                                                                               11
or (   2) "[ t] he agency has erroneously interpreted             or applied   the law. "           We may also grant relief
                                                                                                                        12
where     the   action complained of      has    caused substantial prejudice.          RCW 34. 05. 570( 1)( d).             Divis


fails to meet any of these standards.

                        B. Failure To Assign Error to Trial Board' s Findings of Fact

           Divis does not dispute that the legislature has authorized the WSP chief to determine


what discipline to take against a trooper after receiving the Trial Board' s findings, which here

focused on Divis' s proven misconduct. See RCW 43. 43. 090, which provides, in part:

           After    hearing,   the findings      of   the trial board[   13] shall be submitted to the chief.
           Such findings       shall   be final if the     charges    are not sustained.             In the event the

           charges are sustained the chief may determine the proper disciplinary action and
           declare it by written order served upon the officer complained of.

Neither this statute nor any other statute of which we are aware limits the WSP chief' s broad

discretion to determine the type and scope of disciplinary action by confining the chief to

consider        only the Trial Board'     s   findings.    Unlike the chief' s broad disciplinary discretion, the

Trial Board'       s mission   is   narrow—     limited to finding whether the WSP proved its allegations of




10 RCW 34. 05. 570( 3)( b).

11
     RCW 34. 05. 570( 3)( d);       Chandler, 141 Wn. App. at 647 n.8.
12
       RCW 34. 05. 570( 1)( d)      provides: "       The court shall grant relief only if it determines that a
person seeking judicial relief has been substantially prejudiced by the action complained of."
13
     WSP'   s   2008 Regulation Manual, §§ 13. 00. 010( B)( 2),             and   13. 00. 030( A)( 1),       provide   that "[ t]he

purpose of        the Trial Board is to determine         all relevant   facts"   and   to "   recommend ...       a penalty to
the Chief." AR at 3101.




                                                                  8
No. 43744 -9 -II



misconduct. See, e.g., Zoutendyk v. Washington State Patrol, 27 Wn. App. 65, 72, 616 P. 2d 674

 1980),   all'd, 95 Wn.2d 693, 628 P.2d 1308 ( 1981).

          RCW 43. 43. 090 provides that the Trial Board' s findings are final " if the charges are not

sustained." (   Emphasis      added.)       But the statute does not establish the same finality for findings

about charges    that were     sustained.       Furthermore, the statute gives the chief broad discretion to


decide the   appropriate     discipline for the        sustained charges.          When determining the legislature' s

intent, however, we do not focus exclusively on chapter 43.43 RCW; we also look to other

statutes and principles, such as the APA. See Jackstadt v. Washington State Patrol, 96 Wn. App.

501, 508, 976 P. 2d 190 ( 1999),


          Washington'    s   APA,          codified    as     chapter     34. 05     RCW, "   contemplates     that   an



administrative   proceeding may involve ...                 a reviewing officer [ who] reviews the initial order."

Jackstadt, 96 Wn.       App.   at   508 ( citing RCW 34. 05. 464( 4)).             In trooper disciplinary proceedings

before the Trial Board, the WSP chief serves as the reviewing officer and issues a final order.

See Jackstadt, 96 Wn.        App.     at   507 -08.    Our courts have held " that a reviewing officer has the

authority ` to modify        or     replace   an [    administrative     law judge' s ( ALJ)]      findings,   including

findings   of witness   credibility.'"       Hardee    v.   Dep' t   of Soc. & Health Servs.,    152 Wn. App. 48, 59,

215 P. 3d 214 ( 2009) (      quoting Regan v. Dep' t of Licensing, 130 Wn. App. 39, 59, 121 P. 3d 731




                                                                9
No. 43744 -9 -II



                                                                         14
2005)), aff'd, 172 Wn.2d 1,                 256 P. 3d 339 ( 2011).            Our courts have also interpreted RCW


34.05. 464( 4) as granting a reviewing officer " the authority to exercise the same decision making

power as the ALJ unless limited by law or by the review[ ing] officer with notice to all parties."

Kabbae      v.   Dep' t of Soc. &        Health Servs.,   144 Wn. App. 432, 441, 192 P. 3d 903 ( 2008).

            Chapter 43. 43 RCW precludes the WSP chief' s reinstating and convicting a trooper of

charges that the Trial Board has dismissed; this chapter also limits the chief s authority to

discipline the trooper for acts of misconduct that the Trial Board has found were substantiated.

RCW 43. 43. 090.               But this chapter does not expressly restrict the chief to the Trial Board' s

findings in exercising his discretion to decide the nature and extent of discipline for substantiated

acts of misconduct.              Instead, for purposes of determining appropriate discipline, the chief may

consider evidence that exceeds the scope of the Trial Board' s findings.


            Moreover, Divis does not assign error to any of the Trial Board' s findings of fact, which

we therefore take as verities on appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699

 2005).      And to the extent that Chief Batiste' s following comments can also be characterized as

 findings        of   fact,"    Divis' s failure to assign error to them by number and citation to record, as

RAP 10. 3( a)( 6) and RAP 10. 3( g) require, again means that we may treat them as verities on

appeal:




14
     See   also    Dep' t of Early Learning, 157 Wn. App. 600, 614 -15, 238 P. 3d 74 ( 2010) ( in
                  Islam    v.

making a final order, the reviewing judge had the authority to review and revise the portion of
the ALJ' s initial         order).      This principle applies not only to ALJs, but also to administrative fact
finding     boards that         serve   the same purpose, such as the         Trial Board here.   See Kittitas County v.
Kittitas     County       Conservation Coal., 176 Wn.             App.    38, 46 -47, 308 P. 3d 745 ( 2013) ( Court of
Appeals      reviews       hearing      board decisions   under   the APA,     chapter   34. 05 RCW); see also Marcum
v.   Dep'   t of Soc. & Health Servs.,          172 Wn. App. 546, 559, 290 P. 3d 1045 ( 2012).

                                                                  10
No. 43744 -9 -II



              1)     Sergeant Divis'        s      conduct "   suggests a deeply troubling trend, and a failure by

Sergeant Divis to            exercise       more        appropriate   judgment.    I am very concerned about Sergeant

Divis' pattern of inappropriate and insensitive behavior, and the fact that he appears to be unable

to learn from his          mistakes."       CP at 28.


          2) "        This is not Sergeant Divis' first instance of inappropriate and insensitive behavior

                                            15 "
related   to       race   and gender, "             these   were not   isolated   comments.      They were instances of the

same reprehensible behavior that Sergeant Divis had also been previously disciplined for, but

that   disciplinary        action      clearly     was not effective   in changing his behavior."        CP at 25.


          It is clear from Chief Batiste' s Second Final Order that he based Divis' s discipline on the

two    acts        of misconduct        found      by   the Trial Board     and sustained   by   the   superior court.   But in


determining the extent and type of discipline, as is his statutory duty under RCW 43. 43. 090,

nothing       required      the   chief    to limit his      consideration    to these two findings.       On the contrary, it

would have been unreasonable for him to have ignored Divis' s prior misconduct, which prior


sanctions          had failed     to    remedy.         See Chandler, 141 Wn. App. at 650 ( reviewing officer may

substitute his or her findings for those made by the ALJ).

          Years ago, we held that ( 1) instead of imposing the recommended three -day suspension,

WSP could dismiss an officer who had " previously been counseled because of his attitude and

behavior ";         and ( 2) that consideration of the officer' s prior discipline was not tantamount to using




15CPat28.


                                                                       11
No. 43744 -9 -II




hearsay to prove the current charges because it was not admitted to prove the truth of the prior
                                                              16
assertions.    Zoutendyk, 27 Wn.            App.   at   72.         As we noted in Zoutendyk:


                     Arbitrary       and    capricious             action   has   been    defined     as    willful   and
         unreasoning         action,       without      consideration         and    in   disregard        of facts   and
         circumstances.   Where there is room for two opinions, action is not arbitrary and
         capricious even though one may believe an erroneous conclusion has been
         reached. State v. Rowe, 93 Wn.2d 277, 609 P. 2d 1348 ( 1980).    Measured by that
         test, we cannot conclude that the Board' s ultimate conclusion constituted arbitrary
         and capricious action.



Zoutendyk, 27 Wn. App. at 72.

         Similarly, here, once the Trial Board found that Divis committed misconduct, it was

within   Chief Batiste'      s   discretion to decide the discipline. See RCW 43. 43. 090. And we cannot


say that Chief Batiste acted unfairly, arbitrarily, or capriciously in looking to Divis' s prior

employment and disciplinary history in determining the current discipline, rather than making

this important decision in           a vacuum.       For example, Chief Batiste also considered other troopers'


reports that Divis' s racially charged comments were becoming more egregious and that previous




16 Zoutendyk involved a state personnel board hearing to review the dismissal of a WSP
communications            officer.     On appeal, Zoutendyk challenged the board' s imposition of the
sanction      of    dismissal, instead of the three -day suspension the hearing examiner had
recommended.          We rejected Zoutendyk' s argument that the board had improperly admitted and
considered "       hearsay" documents containing evidence that he " had previously been counseled
because    of      his   attitude    and   behavior"      where        they had     not   been " admitted for truth of the
assertions contained         in those documents."              Zoutendyk, 27 Wn. App. at 72.



                                                                      12
No. 43744 -9 -II


                                                                                                                               17
attempted rehabilitative              discipline   and   diversity training      had failed to    correct   these behaviors.


It was within Chief Batiste' s prerogative to decide that WSP could not tolerate this type of


behavior and that Divis was no longer fit to be in a supervisory position.

                                                     III. PROPORTIONALITY


             Divis next argues that ( 1) under the WSP' s Administrative Investigation Manual ( AIM),


the Trial Board must find that the sanction is proportionate to the offense and comparable to


sanctions       for       similar     misconduct; (      2)   his    demotion     from    sergeant    to    trooper was   not


proportionate         to   his   offense   or comparable        to   sanctions   for   others'   misconduct; and (   3) Chief


Batiste' s refusal to compare Divis' s discipline to sanctions in other cases, including those that

the WSP settled, fails to meet this AIM requirement. We disagree.


             Divis cites no controlling authority for his argument that AIM requires both the Trial

Board and the WSP Chief to compare Divis' s discipline to discipline for other instances of

trooper      misconduct.           On the contrary, the legislature has clearly given sole discretion to the WSP

chief to " determine the proper disciplinary action" for charges of misconduct that the Trial Board

has "    sustained."          RCW 43. 43. 090.            Although AIM requires WSP to address whether the




17 In his Second Final Order, Chief Batiste emphasized:
         While his conduct would be inexcusable for any WSP employee, it is particularly
         egregious coming from a person in Sergeant Divis' position of authority and
             responsibility.        By his comments he communicated intolerance, scorn, and distain
              sic]                         American troopers....
                     for his three African -                         They were instances of the
             same reprehensible behavior that Sergeant Divis had also been previously
             disciplined for, but that disciplinary action clearly was not effective in changing
             his behavior.
CP      at      25.
             24 -         Chief Batiste     also    stated, "   Sergeant Divis has a pattern of proven misconduct
undeterred           by    prior    discipline,    and    has failed, to date,         to acknowledge how completely
inappropriate his           conduct     has been,   and   the impact it has      on subordinates."     CP at 29.




                                                                     13
No. 43744 -9 -II



discipline is proportionate to the offense and comparable to what another employee would


receive, Divis fails to cite authority to show that these AIM requirements preempt the WSP

chief' s    discretion to impose discipline          under       RCW 43. 43. 090.       Therefore, we do not further


consider this argument. RAP 10. 3( a)( 6).

                                                      IV. FAIRNESS


           Finally, Divis argues that there was no just cause to demote him, based on several

contentions, each of which we separately address and reject.


                                                     A. Investigation


           Divis first contends that WSP did not conduct its investigation fairly, one of the elements

of cause         in WSP' s AIM.          Citing AIM, Divis specifically asserts that Sergeant Charles P.

LeBlanc, the         officer   who       conducted   WSP'    s    investigation, ( 1)    failed to inquire ' about the


complainant' s motive or reasons             for coming forward 10          months after    the   conduct occurred; (    2)


                                                         destroyed handwritten
                                                                                         notes18;   (




failed to determine the           scope and content of                                                  3) relied on hearsay

evidence; (       4) failed to     use   open -
                                              ended   questions       when   interviewing     witnesses; (      5) failed to


interview any of Divis' s witnesses; and ( 6) failed to read Divis' s performance reviews. But AIM

provides "[       g] uidelines"    only for conducting an investigation; it does not establish inviolable

procedural requirements that, if not followed, would support a finding that WSP lacked just

cause to sanction Divis. AR at 625.



18 The Board heard evidence that the troopers who worked in Divis' s detachment had made
contemporaneous handwritten notes reflecting what they had heard Divis say. But these troopers
later lost or destroyed their handwritten notes and replaced them with typewritten statements
about      the   content of   Divis'   s comments.    Divis contends that the troopers deliberately destroyed
these notes after the investigation commenced. But he provides no support for this assertion; nor
does he explain why such action would require reversal of Chief Batiste' s Second Final Order.



                                                                 14
No. 43744 -9 -II



                                        B.   Collective Bargaining Agreement ( CBA)

            Divis next contends that because WSP' s unfair investigation failed to comply with the

CBA, the CBA terms prohibited WSP' s disciplinary action, which was unlawful and subject to

reversal under        RCW 34. 05. 570( 3)          19. This argument fails.

            Divis first       claims     that ( 1)    CBA Article      19. 3C    requires   that the " Internal     Incident

            20                                                                                 21; (
Report"           contain '    the      specific   allegations   against   the   employee "'           2) the Trial Board' s


findings did not match the Internal Incident Report allegations; and ( 3) therefore, the Trial Board


did   not   comply      with   CBA       procedures.      Divis is incorrect:     WSP' s Internal Incident Report did


contain the specific allegations against Divis, and the Trial Board' s findings did match these

allegations.         Although the Trial Board did not find that Divis intended certain comments as


 racial slurs,"       as alleged, it did conclude that Divis made " insensitive and negative" comments in

                 22
a racial context.             CP   at   180, 203.     Divis does not show how the Board' s finding, which Chief



19 Washington' s APA, chapter S4. 05 RCW, provides, in part:
        3) Review of agency orders in adjudicative proceedings.                             The court shall grant

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


             c)     The agency has engaged in unlawful procedure or decision -
                                                                             making process,
            or has failed to follow a prescribed procedure.
RCW 34. 05. 570( 3)( c).


20 ARat596.

21 Br. of Appellant at 33 ( quoting AR at 596).

22 The Trial Board found that Divis commented about " lazy black troopers" and " Aunt Jemima"
and    that Divis'      s   comments "        included needless references to race, as well as remarks about
contemplated or actual disciplinary issues." CP at 198, 203. But the Trial Board declined to
make a finding about Divis' s intent when he made these comments.



                                                                  15
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Batiste   adopted ( and         to   which       Divis does         not assign error),       violated the CBA. Divis also fails to


show why. WSP' s allegedly inadequate investigation and failure to follow its recommended

investigation guidelines violated the CBA or his due process rights.


          Divis     also       contends      that the          Trial Board'       s   finding      that    he    made "   insensitive and

          23
negative "   comments violated                    the   notice requirement            underlying CBA Article 19. 3C.             That the


Trial Board found Divis                    violated      a   slightly different            regulation ( "   insensitive and negative"


comments)         than the     one charged ( "racial slur ")                  does not violate his CBA Article 19. 3C right to


notice of    WSP'     s allegations against              him. CP         at   180, 203.         Divis was on notice of the facts that


the Board        would review, as well as                the    charges       brought      by    the WSP.       He cites no authority for

the proposition that the Board violated the CBA because it found that Divis' s conduct was


slightly less egregious than the conduct with which he was charged. Thus, we decline to address
                                 24
this contention further.


          Divis then contends that the Internal Incident Report failed to identify the complainant, as

required    by     CBA Article 19. 3A,              which states          that the     report shall contain "'          the complainant' s


name and address. '              Br.   of   Appellant          at   35 ( quoting AR         at   596).    The Internal Incident Report


lists the " Department"               as   the    complainant,          instead       of   WSP.      AR     at   500.     The Trial Board


properly    rejected       Divis'    s argument.         Furthermore, (          1) any error was harmless because Divis was


23
     CP at 203.

24
     RAP 10. 3(     a)(   6)   requires      a party to support its issues with legal authority. See Regan v.
McLachlan, 163 Wn.               App.       171, 178, 257 P. 3d 1122 ( 2011) ( Court of Appeals will not address
issues if party " does          not provide citation                to legal authority. "). Moreover, "'            passing treatment of
an   issue ...     is insufficient to        merit      judicial                Joy v. Dep' t of Labor & Indus., 170
                                                                      consideration. '

Wn.    App.      614, 629, 285 P. 3d             187 ( 2012) ( quoting West v. Thurston County, 168 Wn. App. 162,
187, 275 P. 3d 1200 ( 2012)), review denied, 176 Wn.2d 1021 ( 2013).




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No. 43744 -9 -II



on notice of the disciplinary proceedings and the opposing party' s identity; and ( 2) any technical

deficiency      was    cured     by     CBA Article          19. 5,    which       states   that "[ d]     e     minimis ( minor   or




insignificant) variations from the following provisions shall not be the basis for overturning

discipline   or affect[   ing]   the admissibility        of evidence."          AR at 596.


          Divis also asserts that because WSP substituted itself as the complainant, without first


contacting the WSP Troopers Association, WSP did not comply with the strict requirements of

CBA Article 19. 12.        CBA Article 19. 12             requires     that "[   i]f the Employer decides to substitute the

Agency as the complainant, the Employer agrees to contact the Association to discuss the
reasons   for   doing   so."     AR    at   597 -98. Divis states that there is no evidence in the record that his


employer,       WSP,    met    this   advance      contact    requirement.           Again, Divis misconstrues the CBA


requirements.




          Because CBA Article 19. 12               permits   WSP to "       substitute [    itself]   as   the   complainant,"   WSP


acted in accordance with AIM in so doing. AR at 598. Furthermore, as WSP correctly notes, the

WSP Troopers Association' s vice president and a union representative brought these allegations


against Divis; thus, the union was already on notice of the substitution and, consequently, WSP

had no need to discuss the reasons for its substitution with the Association. This slight deviation

from CBA Article 19. 12           requirements was "[           d] e   minimis" and,        therefore, "       shall not be the basis


for overturning discipline            or affect[   ing]   the admissibility        of evidence."       AR at 596 ( CBA Article


19. 5).




                                                                      17
No. 43744 -9 -II



                             C. Chief Batiste —Appearance of Fairness Doctrine


         Finally, Divis argues that Chief Batiste violated the appearance of fairness doctrine by ( 1)

making   a pre-    hearing   statement about      his lack       of confidence   in Divis,   25 and ( 2) likely prejudging

the case by having already decided to demote Divis before the Trial Board hearing occurred.

This argument also fails.


         Chief Batiste made these statements during a December 3, 2009 hearing in a related

arbitration matter.      The Trial Board held its hearings in the instant disciplinary matter later, on

December 7     and    9 -11, 2009,     and on   January     21    and   22, 2010. Chief Batiste issued his First Final


Order   on   May    7, 2010,   after   the   arbitrator    had issued his April 21, 2010 decision. By the time


the Trial Board held its hearings and Chief Batiste issued his First Final Order, Divis likely

already knew about Chief Batiste' s statements because Divis had been the grievant in that
arbitration   in   which     Chief Batiste had testified.               Despite having an opportunity to raise his

concerns about Chief Batiste' s fairness at the administrative level, before Chief Batiste entered


either his First or Second Final Order, Divis took no action to disqualify Chief Batiste before he

entered either order.




         Because Divis failed to object timely to Chief Batiste' s role in reviewing the Trial

Board' s recommendation and in issuing his First and Second Final Orders, we hold that Divis

waived this objection; we thus decline to address whether Chief Batiste' s statements violate the



25 Before the Trial Board' s disciplinary proceedings in this case, Chief Batiste testified in a
related arbitration matter between WSP and the WSP Troopers Association that he had decided
to transfer Divis involuntarily to a different WSP district and to remove Divis from a supervisory
position     because it      was   his ( Batiste'   s) "    belief that —based on the allegations and what' s
contained     in the file, that I lost trust               and   confidence     in [ Divis'   s]   ability to lead another
detachment."        Suppl. CP at 461.




                                                                  18
No. 43744 -9 -II



appearance of    fairness doctrine. See Hill   v.   Dep' t of Labor   & Indus., 90 Wn.2d 276, 279 -80, 580


P. 2d 636 ( 1978).


        We affirm the superior court' s affirmance of WSP Chief Batiste' s Second Final Order


demoting Divis from sergeant to trooper.26
        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                               J




26 Because Divis is not the prevailing party on appeal and because he is not entitled to
reinstatement, we deny his request for attorney fees on appeal.



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