Harold Sprouse v. Lewis Co Sheriff's Department

• Court: Court of Appeals of Washington
• Decided: April 30, 2013
• Docket: 42421-5
• Status: Unpublished

Opinion

COURT QFAPEALS DIVISIGM 11

1013 APIR 30 AM 8: 31 ITE

L 1 .-.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

HAROLD SPROUSE, No. 42421 5 II . - -

Respondent,

VA ,

LEWIS COUNTY SHERIFF'S UNPUBLISHED OPINION DEPARTMENT,

Appellant,

LEWIS COUNTY CIVIL SERVICE COMMISSION, and LEWIS COUNTY,

Defendants.

BRINTNALL, QUINN- J. — Harold Sprouse appealed the Lewis County Civil Service

Commission's Commission)decision affirming his termination from the Lewis County Sheriff's (

Department (Sheriffs Department) to the Lewis County Superior Court, and argued that (1)the

decision was not made in good faith for cause and was arbitrary and capricious, and (2)the

decision was contrary to law because it violated the First Amendment and Lewis County's

whistleblower policy. The superior court reversed the Commission's decision and the Sheriff's

Department appeals the superior court's decision. The Commission duly considered all the

evidence presented at the hearing; therefore its decision was not arbitrary and capricious. And because Sprouse's speech was not protected under either the First Amendment or Lewis No. 42421 5 II - -

County's whistleblower policy, the Commission's decision was not contrary to law.

Accordingly, we affirm the Commission's decision.

FACTS

In March 2009, Sprouse was briefly involved in an investigation concerning Lewis

County Sheriff Mansfield. In August, 2009, The Chronicle, a local newspaper, received copies

of police reports related to the investigation. The reports were released without the Sheriff's

Department's authorization. Two highly - ranked members of the Sheriffs Department,

Commander Steven Aust and Chief Civil Deputy Stacy Brown, were assigned to investigate

whether the report had been leaked from within the Sheriff's Department.

At the time, Sprouse was one of several people who had a hard copy of the report in his

possession. Commander Aust obtained the report from Sprouse and had it fingerprinted to

determine if the report had been handled by any unauthorized people. The fingerprinting

revealed two sets of unauthorized fingerprints on the report: Sprouse's adult son, Brad,'and

Sprouse's son's girlfriend. On September 24, 2009, Aust and Deputy Brown interviewed Brad and his girlfriend. The interview revealed that Brad and his girlfriend had unauthorized access to

the report but neither had released the report to the media. Aust and Brown did not inform

Sprouse about the interviews prior to conducting them.

On October 14, 2009, Sprouse received a timed letter of reprimand for failing to properly secure confidential police reports. Under the terms of the reprimand, the letter would be

permanently removed from Sprouse's personnel file after 18 months. On October 17, three days

after receiving the reprimand, Sprouse met with Sergeant Rob Snaza and told Snaza that he

Brad Sprouse's first name is used for clarity.

P No. 42421 5 II - -

believed Commander Aust's, Deputy Brown's investigation was excessive and a form of and

harassment. The next day, Sprouse made a similar report to another sergeant.

The Sheriff's Department conducted a fact -finding inquiry to determine whether Sprouse

had handled his allegations about Commander Aust's and Deputy Brown's allegedly excessive

investigation in an inappropriate manner. While the fact- finding inquiry was being conducted,

Sprouse called Deputy Prosecuting Attorney Jonathan Richardson and told Richardson that he

believed he had been the victim of witness tampering and intimidation. Richardson informed

Prosecuting Attorney Michael Golden of Sprouse's complaint. The complaint was then

forwarded to the Washington State Attorney General's Office and the Washington State Patrol

WSP).WSP Detective Matt Hughes spoke to Richardson and Sprouse and after discussing the

case with other members of the WSP, determined that no further action was necessary.

The Sheriff's Department later became aware of Sprouse's report to Richardson. After

becoming aware of Sprouse's report, the Sheriff's Department began disciplinary proceedings

against Sprouse. Throughout the disciplinary proceedings, Sprouse maintained that he felt he

was subjected to witness tampering and harassment as a result of Commander Aust's and Deputy Brown's investigation. Former RCW 9A. 2. 1994);former RCW 9A. 6. 2003). 120 ( 7 020 ( 4

Ultimately, Sprouse's employment as a deputy sheriff was terminated.

Sprouse appealed his termination to the Commission. The Commission upheld the

termination decision because the Sheriff's Department had proven that " eputy Sprouse, with no D

reasonable basis, communicated a criminal allegation against senior members of the Lewis

County Sheriff's Office to the Prosecuting Attorney and did so in retaliation for disciplinary action taken against him previously, and further that that conduct is grounds for serious

disciplinary action and therefore the termination was imposed in good faith for just cause:" 3 No. 42421 5 II - -

Clerk's Papers (CP) at 184 85. - Sprouse appealed to the Lewis County Superior Court which

reversed the Commission's decision. The Sheriff's Department appeals.

ANALYSIS

The Commission is a statutorily created body whose members are appointed by officials

outside the police force to ensure independence. RCW 41. 2. 030. 1 Our authority to review

Commission decisions is also defined by statute. RCW 41. 4. Under RCW 41. 4. 120. 1 120, 1

t] judiciary's role in reviewing action taken by the [Civil Service] Commission is severely he

limited."Greig v. Metzler, 33 Wn. App. 223, 226, 653 P. d 1346 (1982).Appellate review of a 2

Commission's decision " hall be confined to the determination of whether the order of removal, s

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."RCW 41. 4. 120. 1

On appeal, we review the Commission's record, not the record or decision at the superior court.

Grieg, 33 Wn. App. at 226.

In his briefing, Sprouse cites to the Administrative Procedure Act (APA), 34. 5 ch. 0 I

RCW, and several APA cases to define our standard of review. As a result, Sprouse alleges that

we review findings of fact for substantial evidence and conclusions of law de novo. However, it is clear that ch. 41. 4 RCW governs "Civil Service for Sheriff's Office." Specifically, 1 RCW

120 41. 4.explicitly controls decisions regarding "removal, suspension, demotion, or discharge" 1

and explicitly states the proper standard of review. Under RCW 41. 4. do not separately 120, 1 we

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. See State ex rel. Perry v. City of Seattle, 69 Wn. d 816, 2

821, 420 P. d 704 (1966). 2

M No. 42421 5 II - -

We "must exercise independent judgment to determine whether the Commission acted

arbitrarily, capriciously, or contrary to law."Greig, 33 Wn. App. at 226 (citing Benavides v.

Civil Service Comm'n, Wn. App. 531, 613 P. d 807 (1980); 26 2 Eiden v. Snohomish Cy. Civil

Serv. Comm'n, Wn. App. 32, 533 P. d 426 (1975)). "[ decision by an administrative 13 2 But a]

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. d at 821. Indeed, the Commission's decision is not arbitrary or 2

capricious if the Commission duly considered the evidence presented at the hearing. Perry, 69

Wn. d at 821. 2 Reviewing courts are prohibited from "substitut[ing]their] judgment for the [

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

Sprouse alleges two grounds for reversing the Commission's decision. First, Sprouse

alleges that the Commission's decision was not made in good faith for cause because it was

arbitrary or capricious. Second, Sprouse argues that the Commission's decision was contrary to

law because it violated Sprouse's First Amendment rights and the Lewis County whistleblower

policy. After applying the limited standard of review allowed to us by statute, we are compelled to affirm the Commission.

ARBITRARY AND CAPRICIOUS

Here, the Commission determined that Sprouse's termination was made in good faith for

cause based on its findings that Sprouse had no reasonable basis for his report that his

supervisors engaged in criminal activity. In reaching this conclusion, the Commission

considered, and discounted, Sprouse's belief that the investigation into the leaked report was

intimidating and harassing. Instead, the Commission focused on the fact that Sprouse had

repeatedly been informed that his supervisors did not believe there had been any criminal 5 No. 42421 5 II - -

conduct, the investigation into the sheriff's conduct had already been completed, and Sprouse

had received only minor discipline for failing to secure the report.

Sprouse does not argue that the Commission failed to consider this evidence when

making its decision. Instead, he argues that the Commission failed to correctly interpret the

evidence or improperly assigned weight to the testimony. In other words, Sprouse's argument

that the Commission's decision was arbitrary and capricious is an attempt to persuade us to

weigh the evidence differently and to reach a different conclusion than the Commission. Even if

we agreed with Sprouse's interpretation of the evidence, it is not appropriate for us to reverse the Commission because we would have reached a different conclusion. Furthermore, it is evident

that the Commission duly considered all the evidence and it dismissed other bases for Sprouse's

termination that were not supported by the evidence presented at the hearing. Therefore, as a matter of law,the Commission's decision was not arbitrary and capricious. RCW 41. 4. 120. 1

CONTRARY TO LAW

Sprouse also contends that his report to the prosecutor was protected speech under the First Amendment and the Lewis County whistleblower policy. Sprouse argues that the

Commission's decision should be reversed because the decision is contrary to law. But the

Sheriff's Department correctly argues that Sprouse's speech is not protected under the First

2 The Sheriff's Department presented four reasons for. Sprouse's termination: ( 1) insubordination, 2)disregard of the chain of command, 3) ( ( dishonesty and untruthfulness, and his official to retaliate without any basis in fact." CP at 182. The 4)using " position Commission found that the allegations of dishonesty and untruthfulness were not supported by the ' evidence. The Commission also concluded that the allegations of insubordination and violating the chain of command were improper because reporting a crime to an appropriate authority cannot be insubordinate or violate the chain of command. However, as explained above, the Commission concluded that the retaliatory nature of the report justified Sprouse's termination. 6 No. 42421 5 II - -

Amendment. In addition, Sprouse's report was not a whistleblower complaint. Accordingly,

Sprouse's argument that the Commission's decision was contrary to law fails.

As an initial matter, the Commission determined that " deputy sheriff, who has a good a

faith belief that a crime has been committed in the Sheriff's Office has every right to

communicate that to a representative of the Lewis County Prosecuting Attorney's Office."CP at

184. But the Commission found that Sprouse lacked such a good faith belief that a crime had

been committed and, therefore, his speech was not protected by this right. We note that, whether

the statement was false or made in good faith is not the correct inquiry to determine whether an

employee's First Amendment rights have been violated by an adverse employment action. As

we explain below, the Commission's decision reached the correct legal conclusion and, thus, the

Commission's decision was not contrary to law.

A. FIRST AMENDMENT

The First Amendment prohibits the. government from making any law "abridging the

freedom of speech." U. . CONST. amend. I. Although government employees do not give up S

their First Amendment rights " to comment on matters of public interest,"a government

employee's rights under the First Amendment are limited by the " tate's interests as an employer S in regulating the speech of its employees." Connick v. Myers, 461 U. . 138, 140, 103 S. Ct. S

1684, 75 L.Ed. 2d 708 (1983).Our task, when determining whether a government employer has

violated an employee's First Amendment right, is to seek `a balance between the interests of the "

employee],as a citizen, in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public services it performs through its

employees. "' Connick, 461 U. .at 142 (alteration in original) quoting Pickering v. Bd. ofEduc. S (

of Twp. High Sch. Dist. 205, Will County, Ill., U. . 563, 568, 88 S. Ct. 1731, 20 L.Ed. 2d 391 S 7 No.42421 5 II - -

811 (1968)). Therefore, when a public employee speaks not as a citizen upon matters of public "

concern, but instead as an employee upon matters only of personal interest, absent the most

unusual circumstances, the] court is not the appropriate forum in which to review the wisdom of [

a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

Connick, 461 U. .at 147. S

Recently, the Ninth Circuit distilled the case law establishing government employee

protections under the First Amendment into a five step inquiry. Eng v. Cooley, 552 F.d 1062, - 3

1070 (9th Cir. 2009), cent. denied, 130 S. Ct. 1047 (2010).This inquiry poses five questions:

1)W] [ hether the [employee] spoke on a matter of public concern; ( )whether 2 the [employee] spoke as a private citizen or public employee; ( )whether the 3 employee's] protected speech was a substantial or motivating factor in the adverse employment action; 4) ( whether the state had an adequate justification for treating the employee differently from other members of the general public; and 5)whether the state would have taken the adverse employment action even absent the protected speech.

Eng, 552 F.d at 1070. If the employee fails to show that the matter was of public concern, the 3

speech is unprotected and our inquiry ends.

A matter of public concern relates to "` any matter of political, social, or other, concern to

the community. "' Eng, 552 F. d at 1070 (quoting Johnson v. Multnomah County, Or., F.d 3 48 3

420, 422 (9th Cir.), denied, 515 U. . 1161 (1995).But ` peech that deals with individual cent. S " s

personnel disputes and grievances and that would be of no relevance to the public's evaluation of the performance of governmental agencies is generally not of public concern. "' Eng, 552 F.d at 3

1070 .( internal quotations omitted) quoting Coszalter v. City of Salem, 320 F. d 968, 973 (9th ( 3

Cir.2003)).

Sprouse argues that his statements should be characterized as a matter of public concern

because they related to potential criminal activity and corruption in the Sheriff's Department. 8 No. 42421 5 II - -

But content, form, and given the "` context "' of the statement, the Commission characterized the

statements as a personnel matter related to Sprouse's dissatisfaction with the way in which the

sheriff handled his earlier disciplinary matter. Eng, 552 F.d at 1070 (quoting Johnson, 48 F. d 3 3

at 422). We agree, therefore, that Sprouse's statements were not related to a matter of public

161630TKfill -

Sprouse's statements are not protected speech under the First Amendment insofar as they

relate to adverse employment action because Sprouse did not speak on a matter of public

concern. Because Sprouse's speech was unprotected, the Commission's decision was not

contrary to law.

B. WHISTLEBLOWER POLICY

Sprouse also argues that he was required to make the report to the prosecutor under

Lewis County's whistleblower policy. Sprouse argues that because he believed that the Sheriff's

Department's command staff was engaged in witness tampering and witness intimidation, he had a responsibility to report the perceived improper government action. But the Commission

determined that Sprouse's complaint was not made in good faith but was made in retaliation for earlier disciplinary action taken by the sheriff's office. Accordingly, there was no. improper

government action that would give rise to a requirement to report the action under the Lewis

County whistleblower policy.

9 No. 42421 5 II - -

Under the statutorily prescribed standard of review, we hold that the Commission's

decision was made in good faith for cause. Accordingly, we reverse the superior court and

affirm the Commission's decision.

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 pursuant to RCW 2.6.it is 040, 0

so ordered.

Gt'yL1 t QOINN- BRINTNALL, J. We concur: