Seattle City Light, Respondent, v. Aaron Swanson, Appellant

lu . y I ..-. < J *••

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

CITY OF SEATTLE, SEATTLE CITY No. 72344-8-1
LIGHT,

Respondent/Cross-Appellant,
PUBLISHED OPINION
v.

AARON SWANSON,

Appellant/Cross-Respondent. FILED: May 9, 2016

Schindler, J. —The Local Government Whistleblower Protection Act, chapter

42.41 RCW, protects employees from retaliation for making a good faith report of

improper governmental action. "Retaliatory action" is defined as either (a) any adverse

change in the terms and conditions of employment or (b) hostile actions by another

employee that "were encouraged by a supervisor or senior manager or official." RCW

42.41.020(3). A local government is exempt from the provisions of the Whistleblower

Protection Act if it adopts a program that meets the intent of chapter 42.41 RCW. The

city of Seattle (City) adopted a whistleblower protection ordinance to implement the
provisions of chapter 42.41 RCW1 but defined "retaliatory action" to mean only "any

unwarranted adverse change in an employee's employment status or the terms and

conditions of employment," former Seattle Municipal Code (SMC) 4.20.850(D) (1994).

Seattle Ordinance 117039 (Feb. 9, 1994).
No. 72344-8-1/2

Seattle City Light employee Aaron Swanson appeals the superior court order

reversing the decision of the administrative law judge (ALJ) that the City violated the

state whistleblower statute, chapter 42.41 RCW. The City contends that because the

former SMC meets the intent of the Whistleblower Protection Act, state law does not

apply. In a cross appeal, the City argues in the alternative that substantial evidence

does not support finding the City violated chapter 42.41 RCW. We hold the former SMC

does not meet the intent of state law to protect City employees from hostile actions by

another employee that were encouraged by a supervisor or senior manager and

substantial evidence supports finding retaliation under chapter 42.41 RCW. We reverse

the superior court and affirm the decision and order of the ALJ but remand to the ALJ to

determine the amount of attorney fees and costs.

FACTS

In February 2009, Seattle City Light (SCL) hired Aaron Swanson as a

"lineworker" apprentice. The apprentice program required approximately 6,000 hours of

training over the course of three years divided into six-month increments or "steps."

The apprentice program included "coursework and exams as well as hands-on training

in the field." Apprentices rotated between the North Service Center and the South

Service Center and "received on-the-job training and monthly evaluations from the crew

chiefs and lineworkers with whom they worked." Failure "to meet expectations" could

lead to the imposition of "Individualized Training Programs" (ITPs) and extension or

cancellation of the apprenticeship.

After graduating from climbing school, Swanson started the first step of the
apprenticeship program on August 26, 2009. During his first year, Swanson "primarily
No. 72344-8-1/3

met expectations" but struggled with climbing skills. In October 2009, Crew Chief

Damian Mims "scored Mr. Swanson as meeting expectations in five out of seven

categories" but stated, "Aaron needs to focus on his climbing skills and technique as

well as practicing knots [and] needs to be more aggressive toward the work." According

to Crew Chief Lance Stotts, Swanson "agreed that he was not climbing as fast as others

were, and that he was not fully comfortable with maneuvers."

During the summer of 2010, Swanson "received scores of 'exceeds expectations'

on his URD (underground work) evaluation." In July 2010, Crew Chief Tom Caddy

evaluated Swanson as meeting or exceeding expectations "in all categories" including

"linework," but noted he needed training on "rigging" and "TRAINING NEEDS TO BE

BETTER."2

In August, journey-level lineworker and instructor Ronald Allen told the

apprentices he planned to give an oral test on the "Safety Standards for Electrical

Workers." The test was not required as part of the apprenticeship program. After they

all failed the test, Allen told the apprentices they needed to take the test again. When

one of the apprentices asked something like, "Would a bottle help?," Allen "responded

affirmatively to the group that a bottle of whiskey would help." On the day of the retest,

every apprentice except Swanson brought a bottle of whiskey to give to Allen. The

other apprentices got a bottle of whiskey for Swanson to give to Allen. Allen accepted a

bottle of whiskey from each apprentice and each apprentice received a passing grade

on the test.

In September 2010, SCL hired Allen as a craft instructor for the apprenticeship

program. "Allen was the lead instructor for testing and training, and worked with

Emphasis in original.
No. 72344-8-1/4

curriculum development and personalized training of apprentices as needed." Union

business manager and Allen's uncle Joe Simpson appointed Allen to the Electrical

Crafts Advisory Committee (ECAC). The ECAC makes recommendations "regarding

the quality/control of all electrical crafts, including the lineworker apprenticeship

program."

At a staff meeting in early 2011, Allen stated the "aim should be getting

apprentices out of the apprenticeship program who were not a good fit." During 2011,

Allen made "negative comments to and/or about" Swanson. Swanson believed Allen

"negatively influenced his . . . daily interactions with the crew" and the March 2011

evaluation of Crew Chief Stotts. Crew Chief Stotts evaluated Swanson "with 'Concerns'

or 'Does Not Meet Expectations' in every aspect, including climbing and rigging."

The City of Seattle Joint Apprenticeship Training Committee (JATC), three union

representatives and three City members, administer the City apprenticeship programs

and make recommendations about advancing apprentices to the next step and

cancelling apprenticeships. On March 30, the JATC voted to extend Swanson's

apprenticeship by an additional six months.

In June, Allen suggested Swanson "look into a different apprenticeship." In July,

Allen "had a flyer delivered to Mr. Swanson containing four new apprenticeship

openings along with the message that Mr. Swanson look into a different

apprenticeship." The July evaluation of Swanson by Crew Chief Michael Brooks rated
Swanson as falling "below expectations for a fourth-period apprentice with regard to

climbing, rigging, and timeliness."
No. 72344-8-1/5

At the end of July, Allen told SCL lineworker Peggy Owens that "the best thing

about going on vacation was having someone fired while he was gone." Allen told

Owens the ECAC "was going to vote to fire someone." At the meeting on August 4, the

ECAC voted to recommend canceling Swanson's apprenticeship.

In late August, Swanson filed a complaint with the Department of Labor and

Industries, SCL Human Resources, and the Seattle Ethics and Elections Committee

(SEEC) reporting Allen "extorted alcohol in exchange for passing test scores."

Swanson "expressed concern that he was receiving poor and/or unfair performance

evaluations because of Mr. Allen." Swanson's complaint was not the first report the

SEEC had received about improper conduct by Allen.

SCL Human Resources conducted an investigation. Meanwhile, Swanson

transferred to the South Service Center "where he felt more comfortable, even though

Mr. Allen also worked out of the South Service Center." Swanson was assigned to

Crew Chief Todd Warren. Warren was on the ECAC and is Allen's friend.

On September 15, Swanson made a "formal complaint" to the JATC. Swanson

reported Allen "abused his position and is working to deny [Swanson's] ability to be a

successful apprentice," and he "has engaged in acts of collusion with Todd Warren . ..

and others in an effort to get [Swanson] fired." When Allen saw Swanson at the South

Service Center on September 19, Allen "became upset and stated, 'You're just a fucking

squeak.'" Later that day, Swanson saw Allen with a copy of the complaint to the JATC

"in hand, showing it to groups of lineworkers on the dock."

Although Warren told the JATC that Swanson "worked too slow," the JATC
"decided against cancellation" of his apprenticeship "because of evidence that Mr.
No. 72344-8-1/6

Swanson had progressed in a number of areas, and because he had not received

adequate individualized instruction under his ITP." After working with another crew,

Swanson's November performance evaluations "showed higher marks."

On December 13, SCL found Allen "improperly accepted alcohol from

apprentices in exchange for a passing test score." SCL sent the investigative report

and determination to the SEEC.

The SEEC interviewed Allen. Allen "was angry, thought the incident was a joke,

and stated 'this is the way we roll.'" Allen "did not take personal responsibility for his

behavior" and "believed SCL passed through too many apprentices at too high a cost,"

a "big shortcoming of the apprenticeship program."

In January 2012, Swanson saw a poster of himself in the hallway of the North

Service Center with the word "RAT" written across his chest. Swanson "did not report it

at the time or take it down because he did not want to cause commotion."

In February, SCL notified Allen "he had been recommended for suspension

without pay for 20 working days for his improper extortion of alcohol." The February

evaluation of Swanson completed by Crew Chief Campy contained "eraser marks on

scores that were altered down." But the March evaluation from Crew Chief Fugate

states Swanson met expectations in all categories except two.

SCL retained lawyer Ronald Knox to investigate whether in addition to accepting

alcohol, Allen solicited alcohol from the apprentices in exchange for a passing grade on

the test and to investigate "Swanson's retaliation claims." Knox issued a report on April

10. Knox found Allen "accepted and received alcohol from all apprentices on test day"

and "on a more probable than not basis," Allen "responded affirmatively when asked,
No. 72344-8-1/7

'Would a bottle help?,' thus accepting alcohol in exchange for passing test scores." The

report did not address Swanson's retaliation claims "because of the reticence of SCL

employees" to talk to him.

On May 2, SCL found Allen violated SCL "Workplace Expectations" and the

City's "Personnel Rules and Code of Ethics." SCL suspended Allen for 20 workdays

effective May 3. The suspension meant Allen was not eligible for promotion for one

year. On May 23, the JATC rejected the recommendation of the ECAC and decided to

advance Swanson to the fifth period, "i.e. primary, 'hot' period," of his apprenticeship.

After Allen returned to work on May 31, Simpson removed Allen from the ECAC

and appointed him to the JATC.

The evaluations completed by Crew Chief Bob Hernandez for June and July

showed Swanson " 'met expectations' for all listed criteria.'" Crew Chief Hernandez

stated," 'He is doing a good job at listening and giving a good effort,'" but noted

Swanson needed to improve his rigging skill.

On July 18, Swanson told the SCL Employee Relations Manager that at a union

meeting on July 12, "Allen became combative," accusing Swanson of "stabbing him in

the back." Swanson said Allen verbally attacked him and tried to provoke a physical

fight.

In August, Swanson overheard Allen tell other lineworkers and a crew chief that

"it was no longerfun working there anymore." When one of the lineworkers gestured
toward Swanson, Allen said, "Don'tworry, we'll take care of him hook, line, and sinker."

In September, someone placed a "Pre-Apprentice Lineworker" (PAL) sticker on

Swanson's locker.
No. 72344-8-1/8

On October 11, SCL Crew Chief Gary Legere evaluated Swanson. The

evaluation states Swanson "Meets Expectations" in 10 out of 14 categories. The

evaluation notes "Concerns" and a "Does Not Meet Expectations" for rigging and

recommends additional ECAC training.

On November 1, the SEEC notified Allen that it intended to file charges against

him for ethics violations. The City ethics rules prohibit the acceptance of gifts "given

with the intent to receive special consideration from a city employee."

On November 5, The Seattle Times published an article on the Internet about the

ethics violation, "Ethics Fines May Follow Gifts of Liquor to City Light Trainer." The

article states, in pertinent part:

A Seattle City Light employee may face penalties under city ethics rules
for accepting bottles of liquor from apprentices in a lineworker training
program for which he administered the test to advance.

Ronald Allen, an instructor for the apprentice program since 2005,
received nine bottles of whiskey or other liquor from trainees who were
about to retake an oral exam that he said some had failed during a
previous attempt.

Wayne Barnett, director of the Seattle Ethics and Elections Commission,
said Allen's actions violate city ethics rules .... "We think that accepting
liquor from people to whom you're about to administer a test is clearly
inappropriate," Barnett said.

Two days later, someone claiming to be Swanson posted an online comment to

the article. The comment states:

Hi my name is Arron [sic] Swanson I was the one that brought all this up to
save my job. I have not been doing well here at the city and this is my
way of proving a point and saving my job that I might not have for much
longer. I am saddened for what I have done to my union brother but it is
already done. Sincerely Arron [sic] Swanson Seattle city light sec.

Swanson did not post the comment and was unable to determine who posted the

8
No. 72344-8-1/9

comment.

On November 9, 2012, Swanson filed a complaint for unlawful whistleblower

retaliation under "SMC 4.20.860 and RCW 42.41.040." Under former SMC 4.20.860(A)

(1994), an employee must file a whistleblower retaliation complaint "within 30 days of

the occurrence alleged to constitute retaliation."

On February 11, 2013, Knox issued a supplemental investigative report finding

Allen inappropriately accepted gifts of alcohol in exchange for a passing grade on the

oral test.

Allen inappropriately accepted gifts of alcohol from nine preapprentices
under circumstances that suggested providing such gifts would assure a
passing grade in an oral examination.

Knox also found Allen retaliated against Swanson and engaged in lobbying

efforts to evaluate Swanson "more poorly than was justified."

The evidence also suggests and Ifind that on a more probable than not
basis, Allen engaged in lobbying activities directed at the Initiating Witness
[Mr. Swanson]. There is evidence that the conduct escalated after the
Initiating Witness provided information to SCL about Allen's alleged
solicitation of alcohol from Apprentices. This involved at least lobbying
efforts with crews to evaluate the Initiating Witness more poorly than was
justified. This conduct appears retaliatory in nature and contrary to SCL
Policy (Rule 1.3.4) and the City of Seattle Code of Ethics. SMC 4.16.070.

Several witnesses told Mr. Knox that Mr. Allen talked with them about Mr.
Swanson. Journey-level workers reported that Mr. Allen lobbied them to
negatively impact Mr. Swanson's evaluations. None of the crew chiefs
admitted being affected by Mr. Allen's lobbying.

But Knox was "unable to conclusively determine specifically which performance

reviews were the result of Mr. Allen's lobbying efforts" and documented "significant
No. 72344-8-1/10

unexpected limitations" regarding the investigation, including the refusal to answer

questions or provide "critical information due to perceived fear of retaliation."

[T]he "considerable and significant unexpected limitations" regarding his
investigation, which included: (a) "extraordinary delays and/or total
refusals" by various journeymen and their union representatives to meet
and/or answer specific questions concerning the various allegations", (b)
"refusal of witness to provide critical information due to perceived fear of
retaliation from other union members," (c) witnesses' fear of speaking
freely to Mr. Knox with the union representative present; and (d) refusal to
give specifics and details due to fear of being identified as the provider,
resulting in limited access and relationship with those who shared the
information with them.

The ALJ conducted an eight-day hearing from February 12 until June 25, 2013

on Swanson's whistleblower retaliation complaint. A number of witnesses testified at

the hearing including Swanson, Allen, Knox, Crew Chief Legere, and Crew Chief
Caddy. The ALJ admitted into evidence over 50 exhibits, including a May 23, 2013
supplemental investigative report of Knox.

The May 23, 2013 supplemental investigative report of Knox addressed "whether
Mr. Allen retaliated against Mr. Swanson at the July 12, 2012 union meeting, and
whether Mr. Legere's performance evaluation approximately three months after this
union meeting was retaliatory." Knox could not determine what occurred at the union
meeting. Knox concluded there was no " 'nexus between the Legere evaluation and the
July 12, 2012 meeting.'"

Knox stated he could not conclusively determine what exactly happened
at the July 12, 2012 union meeting due to the conflicting, credible witness
statements, and that he could "find no independent evidence of a nexus
between the Legere evaluation and the July 12, 2012 meeting." Mr. Knox
found Mr. Swanson credible, and his notes of the incident credible. Mr.
Knox found Mr. Allen and Mr. Warren credible at times, and not credible at
other times. Mr. Knox found Mr. Legere "very" credible. Mr. Knox
concluded, "Based on the evidence available, I do not sustain the

10
No. 72344-8-1/11

allegations of retaliation against Mr. Allen and Mr. Legere associated with
the charges made."

The ALJ issued a detailed 20-page decision, "Findings of Fact, Conclusions of

Law, & Final Order." The ALJ found that after Swanson reported Allen "solicited and

accepted alcohol from apprentices in exchange for a passing grade on an oral exam,"

Allen "lobbied line workers and crew chiefs to downgrade Mr. Swanson's performance

evaluations in an attempt to cancel his apprenticeship." However, because the

whistleblower retaliation complaint was filed in November 2012, the ALJ addressed only

the October 2012 evaluation of Crew Chief Legere. The ALJ found Swanson did not

establish Crew Chief Legere's evaluation was influenced by Allen. The ALJ concluded

the evaluation did not constitute "retaliation against Mr. Swanson under Chapter 42.41

RCW and Chapter 4.20 SMC."

Although Mr. Legere's evaluation was unsatisfactory in that it stated Mr.
Swanson was not performing up to step in all areas, and that he needed
additional training, Mr. Swanson has not established by a preponderance
of the evidence that Mr. Allen in any way influenced Legere's evaluation.
Mr. Swanson's problem areas as identified by Mr. Legere were nothing
new to Mr. Swanson; crew chiefs had made similar comments regarding
Mr. Swanson's rigging skills and preparation for years. In addition, in ten
out of fourteen categories Mr. Legere found Mr. Swanson "Met
Expectations." Mr. Legere circled "ECAC" not to threaten Mr. Swanson's
apprenticeship or hold him back, but to get him the training he needed to
improve, for his own safety and the safety of his fellow lineworkers.

The ALJ found that posting a PAL sticker on Swanson's locker "and the

impersonation of Mr. Swanson to the Seattle Times were undoubtedly hostile actions
taken by SCL employees." However, because the PAL sticker was placed on

Swanson's locker more than 30 days prior to filing the whistleblower retaliation

complaint, the ALJ did not consider it in determining whether SCL retaliated against
Swanson. The ALJ concluded Allen retaliated by "either vocally or tacitly

11
No. 72344-8-1/12

encourage[ing]" the impersonation of Swanson in the Seattle Times online comment, if

not posting the comment himself, in violation of chapter 42.41 RCW. Conclusion of law

5.10 states:

The PAL sticker and the impersonation of Mr. Swanson to the Seattle
Times were undoubtedly hostile actions taken by SCL employees toward
Mr. Swanson that Mr. Allen either vocally or tacitly encouraged, if not
performed himself. Because I find that the PAL sticker was first on Mr.
Swanson's locker earlier than 30 days prior to Mr. Swanson's retaliation
complaint to the Office of the Mayor, I do not consider it in determining
whether SCL violated Chapter 42.41 RCW and Chapter 4.20 SMC.
However, at the time the impersonation of Mr. Swanson to the Seattle
Times took place, Mr. Allen was in a secondary supervisory position with
the City over Mr. [Swanson] because of his participation with the JATC, a
City committee with authority to negatively impact Mr. [Swanson]'s
apprenticeship. Consequently, Mr. Allen's encouragement and/or
commission of the impersonation of Mr. Swanson publicly to the Seattle
Times is actionable retaliation under Chapter 42.41 RCW.

The ALJ recommended suspending Allen for six months and ordered the City to

pay Swanson attorney fees and costs incurred in bringing his whistleblower retaliation

claim under chapter 42.41 RCW.

On October 17, 2013, the City filed a petition for judicial review in superior court.

The City argued the ALJ erred in relying on the state law definition of "retaliatory action"
rather than the definition of "retaliatory action" under former SMC 4.20.850(D). In the

alternative, the City argued substantial evidence did not support finding retaliation under

state law.3

The superior court ruled the ALJ erred "as a matter of law in relying on the

definition of retaliation found in RCW 42.41.020(3)(b)." The court concluded that while

3Allen also filed a petition for judicial review challenging the assessment of a $1,000 fine against
him. Allen argued the fine violated his right to due process. Swanson and the City stipulated the fine
should be stricken.

12
No. 72344-8-1/13

the impersonation of Swanson "may be sufficient to constitute retaliatory action

pursuant to RCW 42.41.020(3)(b), it is insufficient under [former] SMC 4.20.850(D)."

No evidence was presented that the impersonation resulted in any
unwarranted adverse change in Mr. Swanson's employment status or the
terms and conditions of his employment. The ALJ's failure to cite SMC
4.20.850(D) in conjunction with RCW 42.41 appears to be a tacit
acknowledgment of that deficiency.

The court rejected the City's argument that even if the state law definition of

"retaliation" applied, the record did not support finding a SCL employee "posted the

comment or that Mr. Allen encouraged the conduct." The court concluded that "[w]hile

the record on this issue is not well developed, it is clear that the individual who posted

the comment had 'insider' information not known to the general public" and was

"encouraged to act by the behavior and conduct of Mr. Allen."

Given the historical context and Mr. Allen's prior dealings with Mr.
Swanson, a reasonable inference can be drawn that the poster was a City
Light insider who was encouraged to act by the behavior and conduct of
Mr. Allen. Other potential "suspects" may exist, but the burden of proof is
merely a preponderance of the evidence and no other individuals were
identified with similar interests or motives. Accordingly, this Court finds
that the record is sufficient to support the ALJ's factual finding.

The court reversed the decision and order of the ALJ. On reconsideration,

Swanson argued that because the former SMC did not meet the intent of state law to

protect whistleblowers from hostile actions encouraged by a supervisor or senior

manager, the ALJ did not err in relying on the state law definition of "retaliatory action"

under RCW 42.41.020(3)(b). The court denied the motion for reconsideration.

ANALYSIS

Swanson appeals the superior court decision reversing the ALJ. Swanson

contends the ALJ did not err in relying on the state law definition of "retaliatory action"

13
No. 72344-8-1/14

under RCW 42.41.020(3)(b). The City claims that because the former SMC complies

with the intent of state law, the state law definition of "retaliatory action" does not apply.

The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW,

governs our review. In reviewing administrative action, we sit "in the same position as

the superior court" and apply the standards of the WAPA directly to the agency

decision. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). We

will reverse the agency order if the decision is based on an erroneous interpretation or

application of the law. RCW 34.05.570(3)(a). The party challenging an agency decision

must establish error and demonstrate the agency action is invalid. RCW

34.05.570(1)(a).

The interpretation of a statute is a question of law reviewed de novo. City of

Spokane v. Rothwell, 166 Wn.2d 872, 876, 215 P.3d 162 (2009); Ellensburq Cement

Prods.. Inc.. v.Kittitas County. 179 Wn.2d 737, 743, 317 P.3d 1037 (2014). We also

construe a municipal ordinance according to the rules of statutory interpretation.

Ellensburq Cement, 179 Wn.2d at 743.

When interpreting a statute, our objective is to ascertain and give effect to

legislative intent. Ellensburq Cement. 179 Wn.2d at 743. Statutory interpretation

begins with the plain meaning of the statute. Lake v. Woodcreek Homeowners Ass'n,

169 Wn.2d 516, 526, 243 P.3d 1283 (2010). When the meaning of statutory language

is plain on its face, we give effect to that plain meaning as an expression of legislative

intent. City of Spokane v. Spokane County. 158 Wn.2d 661, 673, 146 P.3d 893 (2006).

If the plain language is subject to only one interpretation, our inquiry is at an end. Lake.

169Wn.2dat526.

14
No. 72344-8-1/15

We construe a statute " 'so that all the language used is given effect, with no

portion rendered meaningless or superfluous.'" Rapid Settlements. Ltd. v. Symetra Life

Ins. Co., 134 Wn. App. 329, 332, 139 P.3d 411 (2006) (quoting Prison Legal News. Inc.

v. Dep't of Corr.. 154 Wn.2d 628, 644, 115 P.3d 316 (2005)). We " 'must not add words

where the legislature has chosen not to include them.'" Lake. 169 Wn.2d at 526

(quoting Rest. Dev.. Inc. v. Cananwill. Inc.. 150 Wn.2d 674, 682, 80 P.3d 598 (2003)).

We consider a provision "within the context of the regulatory and statutory scheme as a

whole." ITT Rayonier. Inc. v. Dalman. 122 Wn.2d 801, 807, 863 P.2d 64 (1993) (cited in

Dep't of Ecology v. Campbell & Gwinn. LLC. 146Wn.2d 1, 10-11, 43 P.3d 4 (2002)).

We avoid an interpretation that results in unlikely or strained consequences. Brouqhton

Lumber Co. v. BNSF Rv., 174 Wn.2d 619, 635, 278 P.3d 173 (2012).

The plain and unambiguous intent of the Local Government Whistleblower

Protection Act, chapter 42.41 RCW, is to protect local government employees who

make a good faith report of improper actions taken by officials and employees and

provide remedies for whistleblowers subjected to retaliation for making such reports.

RCW 42.41.010 states:

Policy. It is the policy of the legislature that local government employees
should be encouraged to disclose, to the extent not expressly prohibited
by law, improper governmental actions of local government officials and
employees. The purpose of this chapter is to protect local government
employees who make good-faith reports to appropriate governmental
bodies and to provide remedies for such individuals who are subjected to
retaliation for having made such reports.

RCW 42.41.020(3) defines "retaliatory action" as (a) any adverse change in the

employee's terms or conditions of employment or (b) hostile actions by another

15
No. 72344-8-1/16

employee that were encouraged by a supervisor or senior manager. RCW

42.41.020(3) states:

"Retaliatory action" means: (a) Any adverse change in a local
government employee's employment status, or the terms and conditions
of employment including denial of adequate staff to perform duties,
frequent staff changes, frequent and undesirable office changes, refusal to
assign meaningful work, unwarranted and unsubstantiated letters of
reprimand or unsatisfactory performance evaluations, demotion, transfer,
reassignment, reduction in pay, denial of promotion, suspension,
dismissal, or any other disciplinary action; or (b) hostile actions by
another employee towards a local government employee that were
encouraged by a supervisor or senior manager or official.[4]

RCW 42.41.030(1) gives "[e]very local government employee ... the right to

report . . . information concerning an alleged improper governmental action." RCW

42.41.040(1) makes it unlawful "for any local government official or employee to take

retaliatory action against a local government employee because the employee provided

information in good faith in accordance with the provisions of this chapter that an

improper governmental action occurred."

RCW 42.41.050 provides that if a local government adopts a program that

"meets the intent of this chapter" to protect an employee from reporting alleged

improper governmental actions and retaliation, it "shall be exemptfrom this chapter."

RCW 42.41.050 states:

Any local government that has adopted or adopts a program for reporting
alleged improper governmental actions and adjudicating retaliation
resulting from such reporting shall be exempt from this chapter if the
program meets the intent of this chapter.^
The City argues the exemption applies because the former SMC meets the intent
of the Local Government Whistleblower Protection Act. Swanson asserts the remedy

4 Emphasis added.
5 Emphasis added.

16
No. 72344-8-1/17

for "retaliatory action" under the former SMC does not meet the intent of state law to

protect local government employees from hostile actions of other employees

encouraged by a supervisor or senior manager. Under the plain and unambiguous

language of chapter 42.41 RCW and the former SMC, we agree with Swanson.

The City expressly adopted the whistleblower protection ordinance to implement

state law. Specifically, the state law definition of "retaliatory action," RCW 42.41.030

and RCW 42.41.040, making retaliation unlawful. Former SMC 4.20.800 (1994) states:

Policy — Purpose.
Unless prohibited by State law, City employees are encouraged to
report on improper governmental action to the appropriate City or other
government official, depending on the nature of the improper
governmental action. To assist such reporting and to implement Sections
42.41.030 and 42.41.040 of the Revised Code of Washington ("RCW"),
Sections 4.20.800 through 4.20.860 provide City employees a process for
reporting improper governmental action and protection from retaliatory
action for reporting and cooperating in the investigation and/or prosecution
of improper governmental action in good faith in accordance with this
subchapter.161

The plain language of RCW 42.41.020(3) protects a whistleblower employee not

only from adverse changes to the terms and conditions of employment, but also from

the hostile actions by another employee that were encouraged by a supervisor, senior

manager, or official. By contrast, the plain language of former SMC 4.20.850(D) defines

"retaliatory action" as only an adverse change in the terms and conditions of

employment. Former SMC 4.20.850(D) states:

"Retaliate," and its kindred nouns, "retaliation" and "retaliatory action,"
mean to make, because of an activity protected under section 4.20.810,
any unwarranted adverse change in an employee's employment status or
the terms and conditions of employment including, but not limited to,
denial of adequate staff to perform duties; frequent staff changes; frequent
and undesirable office changes; refusal to assign meaningful work;
unsubstantiated letters of reprimand or unsatisfactory performance

6 Emphasis added.

17
No. 72344-8-1/18

evaluations; demotion, reduction in pay; denial of promotion; transfer or
reassignment; suspension or dismissal; or other unwarranted disciplinary
action.

Because the plain language of former SMC 4.20.850(D) did not provide a remedy

for a whistleblower who is subjected to hostile actions by another employee that are

encouraged by a supervisor, senior manager, or official as required by state law, RCW

42.41.020(3)(b), we conclude the former SMC does not meet the intent of state law.7

Our conclusion that the remedy for a whistleblower reporting hostile actions by

employees encouraged by a supervisor or senior manager as provided under former

SMC 4.20.800 through .860 did not meet the intent of state law is reinforced by the

recent amendment of the SMC. In December 2013, the Seattle City Council added a

provision.that expressly protects employees from retaliation by "a supervisor or superior

who behaves in, or encourages coworkers to behave in, a hostile manner toward the

employee." SMC 4.20.805.

The City's reliance on Woodbury v. City of Seattle, 172 Wn. App. 747, 292 P.3d

134 (2013), to argue the former SMC definition of "retaliatory action" meets the intent of

state law is unpersuasive.

In Woodbury. Seattle Fire Department Deputy Chief Woodbury filed a complaint

against the Seattle Fire Department for failure to submit a bill for services. Woodbury.

172 Wn. App. at 749. Chief Woodbury filed a whistleblower retaliation complaint.

Woodbury. 172 Wn. App. at 749. After the City determined the Seattle Fire Department

7 For the first time at oral argument, the City claimed the definition of "retaliatory action" under
former SMC 4.20.850(D) included hostile actions encouraged by a supervisor. We do not consider
arguments raised for the first time at oral argument. RAP 12.1(a). In any event, the plain and
unambiguous definition under former SMC 4.20.850(D) addressed only "adverse change in an
employee's employment status or the terms and conditions of employment" and not hostile actions as
defined by state law.

18
No. 72344-8-1/19

did not retaliate by demoting him to battalion chief, Woodbury filed an administrative

appeal and a lawsuit against the City. Woodbury. 172 Wn. App. at 749.

We held that because the procedures the City adopted allowing a whistleblower

to file a complaint and report improper governmental conduct with the City and request

an administrative hearing were consistent with state law, Chief Woodbury did not have

the right to file a cause of action in superior court. Woodbury. 172 Wn. App. at 751-52.

RCW 42.41.040(9) explicitly contemplates that the superior court sits in an
appellate role .... Read as a whole, it is clear that RCW 42.41.040 does
not grant local government employees a cause of action in superior court.

Woodbury. 172 Wn. App. at 752. The opinion in Woodbury does not address whether

the SMC met the intent of state law to provide a remedy for a whistleblower subjected to

"retaliatory action" as defined by state law. See Berschauer/Phillips Constr. Co. v.
Seattle Sch. Dist. No. 1. 124 Wn.2d 816, 824, 881 P.2d 986 (1994) ("In cases where a

legal theory is not discussed in the opinion, that case is not controlling on a future case
where the legal theory is properly raised.").

We hold the ALJ did not err in relying on RCW 42.41.020(3)(b) to conclude the

impersonation of Swanson to The Seattle Times was "undoubtedly" a hostile action
"taken by SCL employees toward Mr. Swanson that Mr. Allen either vocally or tacitly
encouraged, if not performed himself."

Even if the definition of retaliatory action under RCW 42.41.020(3)(b) applies, the

City claims the record does not support the finding that the impersonation of Swanson
to The Seattle Times was a hostile action "taken by SCL employees toward Mr.

Swanson that Mr. Allen either vocally or tacitly encouraged." The City argues

substantial evidence does not supportfinding a SCL employee posted the comment,

19
No. 72344-8-1/20

Allen encouraged a SCL employee to post the comment, or Allen was a supervisor

when the comment was posted.

We review the ALJ findings of fact for substantial evidence. Port of Seattle v.

Pollution Control Hearings Bd.. 151 Wn.2d 568, 588, 90 P.3d 659 (2004). Substantial

evidence is a sufficient quantity of evidence to persuade a fair-minded person of the

truth or correctness of the agency action. Port of Seattle. 151 Wn.2d at 588. Our

review for substantial evidence is deferential. See City of Univ. Place v. McGuire. 144

Wn.2d 640, 652-53, 30 P.3d 453 (2001). We will overturn the ALJ findings only if they

are clearly erroneous and we are " 'definitely and firmly convinced that a mistake has

been made.'" Port of Seattle. 151 Wn.2d at 588 (quoting Buechel v. Dep't of Ecology.

125 Wn.2d 196, 202, 884 P.2d 910 (1994)).

We view the "evidence and reasonable inferences therefrom in the light most

favorable to the party who prevailed at the administrative proceeding below." Kirbv v.

Emp't Sec. Dep't. 185 Wn. App. 706, 713, 342 P.3d 1151 (2014): William Dickson Co. v.

Puget Sound Air Pollution Control Agency. 81 Wn. App. 403, 411, 914 P.2d 750 (1996).

We will not substitute our judgment for that of the ALJ regarding credibility of witnesses

or the weight of conflicting evidence. Beattv v. Fish &Wildlife Comm'n. 185 Wn. App.

426, 449, 341 P.3d 291 (2015); Port of Seattle. 151 Wn.2d at 588. Unchallenged

findings are verities on appeal. Postema v. Pollution Control Hearings Bd.. 142 Wn.2d

68, 100, 11 P.3d 726 (2000).

The comment posted in response to the Seattle Times article about the ethics

violation of Allen states:

Hi my name is Arron [sic] Swanson Iwas the one that brought all this up to
save my job. I have not been doing well here at the city and this is my

20
No. 72344-8-1/21

way of proving a point and saving my job that I might not have for much
longer. I am saddened for what I have done to my union brother but it is
already done. Sincerely Arron [sic] Swanson Seattle city light sec.

Substantial evidence supports finding a SCL employee or Allen retaliated against

Swanson by posting the comment. There is no dispute Swanson did not post the

comment. The comment contains information known only to SCL employees.

Specifically, that Swanson reported Allen's improper conduct and that he had struggled

during the apprenticeship program. The unchallenged findings establish SCL

lineworkers and crew chiefs knew Swanson filed a complaint against Allen for soliciting

and accepting a bottle of whiskey from each apprentice in exchange for a passing

grade. The unchallenged record shows Allen lobbied lineworkers and crew chiefs to

give Swanson negative performance evaluations, and after Swanson filed the

complaint, Allen "escalated" his efforts to retaliate against Swanson. Allen made clear

that "we'll take care of [Swanson] hook, line, and sinker."

Substantial evidence also supports finding Allen "was in a secondary supervisory

position" over Swanson. There is no dispute Allen was a member of the JATC and the
JATC had the "authority to negatively impact Mr. [Swansonj's apprenticeship."

Viewing the record in the light most favorable to Swanson, substantial evidence

supports the findings and conclusion that the City retaliated against Swanson in

violation of state law.

21
No. 72344-8-1/22

We reverse the superior court and affirm the decision and order of the ALJ but

remand to determine the amount of attorney fees and costs.8

%JL.vdW
WE CONCUR:

L~^. -/

8The parties do not dispute the provisions of former SMC shall apply to the request for an award
of attorney fees and costs.

22