(concurring in part, dissenting in part) — I agree with the majority's conclusion that an elected official *509should not lose the right to revert to a prior civil service position for purposes of obtaining disability benefits even when he occupied a noncivil service position immediately before taking elective office. I disagree, however, with the majority's award of attorneys' fees against the Department of Retirement Systems as a sanction for bringing a frivolous appeal. Our decision in the first appeal of this case, Boyles v. Washington Law Enforcement Officers' & Fire Fighters' Retirement Bd., 100 Wn.2d 313, 669 P.2d 465 (1983), unequivocally resolved only one legal issue. I do not believe that we should penalize the Department for its efforts to clarify the other issues of this case.
The majority correctly recites the standard for determining whether an appeal warrants imposition of sanctions pursuant to RAP 18.9(a).
In determining whether an appeal is frivolous and was, therefore, brought for the purpose of delay, justifying the imposition of terms and compensatory damages, we are guided by the following considerations: (1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980); see also Millers Cas. Ins. Co. v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983). However, the majority fails to prove that this appeal is frivolous under the Streater v. White, supra, standard.
The majority argues that the issues of the Department's appeal were settled in Boyles. This is not accurate. In Boyles we decided that because Boyles had lost his bid for reelection as sheriff, his disability benefits must be determined by reference to the duties of a deputy sheriff (the last civil service position held by Boyles). To reach this *510decision, we relied in part on the right of a civil service employee to preserve his civil service rank when "on leave of absence by reason of having been elected or appointed to an elective office". RCW 41.04.120. We expressly declined in that case to reach the "broad issue" of whether the statutory or actual description of a sheriff's duties should control the determination of a sheriff's disability benefits. Boyles, 100 Wn.2d at 318 n.3. That issue has not been resolved with respect to either a sheriff's or a deputy sheriff's position until today. We also did not discuss the effect on the protection offered civil servants by RCW 41.04.120 of (1) Boyles' occupation of the civil service exempt position of undersheriff immediately before his appointment as sheriff, or (2) Boyles' failure to affirmatively preserve his civil service status. Again, these issues have not been resolved until today.
The Department's appeal thus presents issues upon which "reasonable minds can differ." For example, Boyles argues in this appeal that the statutory description of a deputy sheriff's position should control the determination of his disability. See Brief of Respondent, at 22-23; see also Boyles v. Washington Law Enforcement Officers' & Fire Fighters' Retirement Bd., 32 Wn. App. 703, 711-13, 649 P.2d 646 (1982), rev'd, 100 Wn.2d 313, 669 P.2d 465 (1983). However, the majority reaches the opposite conclusion: The majority decides that the proper standard is "those duties actually performed by a deputy sheriff presently working in Franklin County." Majority, at 504. It is difficult to characterize as frivolous an appeal in which the court must decide an unclear point of the law.
In addition, the Department's appeal is not so totally devoid of merit that there was no possibility of reversal of the trial court's order. In Boyles we remanded this case, ruling that the courts below had relied on an improper standard. Upon remand the trial court entered an order without remanding the case to the Director for further fact-finding. The Department makes a strong argument at this appeal that if it must refer to the actual duties of a *511Franklin County deputy sheriff to determine Boyles' disability, then this case should be remanded for a determination of what deputy sheriff positions presently exist in Franklin County under the new sheriff's administration. I am not convinced that there was no possibility we would remand this case for further fact-finding on positions available to Boyles.
Finally, we must remember that all doubts must be resolved in the Department's favor. The Department's appeal is not frivolous simply because the Department has not prevailed. We should not penalize the Department for exercising its right to challenge the trial court's disposition after our issuance of mandate. See RAP 12.9. For these reasons I dissent from that portion of the majority's decision that awards attorneys' fees and costs to Boyles pursuant to RAP 18.9.
Brachtenbach, Pearson, Andersen, and Durham, JJ., concur with Utter, J.