Opinion
No. 33146-2-II.
June 27, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-2-08358-9, Ronald E. Culpepper, J., entered April 15, 2005.
Counsel for Appellant(s), Richard H. Wooster, Mann Johnson Wooster McLaughlin, 820 a St Ste 550, Tacoma, WA 98402-5220.
Counsel for Respondent(s), Jayne Lyn Freeman, Attorney at Law, 800 5th Ave Ste 4141, Seattle, WA 98104-3189.
Kelly Marie Wiley, Keating Bucklin McCormick Inc, 800 5th Ave Ste 4141, Seattle, WA 98104-3175.
Affirmed by unpublished opinion per QuinnBrintnall, C.J., concurred in by Houghton and Hunt, JJ.
Michael Buesing appeals the superior court's order granting summary judgment to his former employer and supervisor. Buesing maintains that his employment required a for-cause termination and, thus, his release without cause violated his collective bargaining rights and his right to procedural due process. He also maintains that his release violated his right to free speech. We affirm.
FACTS
Buesing was laterally hired as a police officer by the Sumner Police Department (SPD) in August 2002. As part of his employment, he joined the Sumner Police Guild, which had a collective bargaining agreement (CBA) with the City of Sumner. SPD's job offer was conditioned on Buesing's satisfactory completion of a 12-month probationary period. Both the City's administrative regulations and the City's Civil Service Commission regulations set the probationary period at 12 months. Under either regulation, an officer can be released without cause during the probationary period.
In May 2003, SPD Chief Colleen Wilson instructed Buesing to investigate a complaint by Darlene Wenzel. Wenzel had contacted the SPD 10 to 12 times to complain that a neighbor had 'cars coming and going and making noise and keeping her up all night and lots of juveniles in and out of the residence.' 2 Clerk's Papers (CP) at 198. Wilson told Buesing that the home Wenzel was complaining about was a rental property owned by a member of the Sumner City Council. According to Buesing, he told Wilson that he did not have the experience to handle the matter.
Due to a sex crime investigation and his regular patrol duties, Buesing did not promptly investigate Wenzel's complaints. He also failed to keep a scheduled appointment with Wenzel. After Buesing was ordered by a superior to 'tak[e] the chief's directive seriously,' he was taken off the sex crime investigation. 2 CP at 185. Wilson told Buesing to request assistance from two specific SPD officers if needed.
Buesing then surveilled the house at issue and contacted the renter. He ended his investigation in early July 2003, shortly after the renter told him that she was moving out and Wenzel's complaints were therefore moot.
In late July 2003, Buesing was informed that he had not successfully completed his probation period and that he would not be permanently appointed to the SPD. Wilson told Buesing that he had not developed the necessary judgment and decision-making skills expected of an SPD officer. Wilson later testified in more detail to the reasons for Buesing's release: numerous citizen complaints regarding Buesing's parking citation practices; reports of Buesing making racist comments; complaints from SPD officers that Buesing was not open to coaching; Buesing's statements that police officers deserved special treatment; reports that Buesing was acting paranoid and stockpiling weapons; and Buesing's handling of the Wenzel matter.
After his termination, Buesing sued the City and Wilson for breach of contract and violation of his procedural due process and First Amendment rights. He maintained that his release from employment required cause because the 12-month probationary period was unenforceable under the CBA and chapter 41.12 RCW. Buesing also contended that the failure to hold a pre-release hearing violated his procedural due process rights. As to his First Amendment claim, Buesing asserted that he had been released for 'rais[ing] an issue of concern regarding a property owned by a City council member.' 1 CP at 4.
The superior court granted summary judgment for the City and Wilson, concluding that Buesing had no rights as a probationary employee and that his constitutional rights were not violated. Buesing appeals.
ANALYSIS
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). A summary judgment motion accepts all facts and reasonable inferences from them in the light most favorable to the nonmoving party. Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). In a motion for summary judgment, the nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain; the nonmoving party must set forth specific facts that sufficiently rebut the moving party's contention that there is no genuine issue of material fact. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). We review a summary judgment order de novo. Owen, 153 Wn.2d at 787.
Enforceability of the 12-Month Probationary Period
Buesing maintains that the 12-month probationary period was unenforceable under both chapter 41.12 RCW and the CBA between the City and the Sumner Police Guild. We disagree.
Chapter 41.12 RCW
Every city, town, or municipality with a police force of three or more officers must govern its police department through a civil service system. RCW 41.12.010; Samuels v. City of Lake Stevens, 50 Wn. App. 475, 478, 749 P.2d 187, review denied, 110 Wn.2d 1031 (1988). Chapter 41.12 RCW sets forth a framework for a police department civil service system, but its provisions do not apply if the city, town, or municipality has established its own civil service system that 'substantially accomplish[es]' the purposes of the chapter. RCW 41.12.010. Under RCW 41.12.100, the probationary period for civil service employees is three to six months, during which the employee can be terminated for unfit or unsatisfactory performance. See Arbogast v. Town of Westport, 18 Wn. App. 4, 6, 567 P.2d 244 (1977), review denied, 89 Wn.2d 1017 (1978).
In Arbogast, we upheld a town's 12-month probationary period, reasoning that it substantially accomplished the purposes of chapter 41.12 RCW. We stated that '[t]he purpose of a probationary period in a civil service system is to give the appointing official an opportunity to determine whether or not the probationer is efficient and competent.' Arbogast, 18 Wn. App. at 6. We thus concluded that because the town's population fluctuated depending on the season, a longer probationary period provided the police department with a more accurate and complete representation of the employee's abilities. Arbogast, 18 Wn. App. at 6-7.
Following Arbogast, Division One upheld a city's 12-month probationary period in Samuels. Like Arbogast, Division One set forth the purpose of a probationary period as 'allow[ing] the employer to evaluate the employee's performance and enabl[ing] the employer to discharge that employee if it appears during the probationary period that he is going to be unsatisfactory.' Samuels, 50 Wn. App. at 479. The court concluded: 'A 1-year probationary period actually serves the purpose of having such a period better than a 6-month probationary period.' Samuels, 50 Wn. App. at 479.
Buesing offers no compelling argument to rebut the conclusion that the City's 12-month probationary period substantially accomplishes the purposes of chapter 41.12 RCW. See Rabon v. City of Seattle, 135 Wn.2d 278, 287, 957 P.2d 621 (1998) (party challenging a local enactment bears the heavy burden of establishing the enactment's invalidity). We disagree with Buesing that 12 months is an 'excessively long' period that keeps employees in an 'unreasonable state of flux.' Br. of Appellant at 22. Although we acknowledge that an unreasonably long probationary period may be unenforceable as against public policy in some circumstances, when law enforcement seeks to fully assess whether an officer is efficient and competent, it is better served by a 12, rather than 3 or 6, month probationary period. We see no reason to depart from Arbogast and Samuels, and we conclude that under RCW 41.12.010, the City's 12-month probationary period satisfies the terms of RCW 41.12.100.
The Collective Bargaining Agreement
Buesing alternatively argues that even if the City's 12-month probationary period was generally enforceable, the terms of the CBA between the City and the Sumner Police Guild control the duration of his probation. Contract law governs the interpretation of a public employment collective bargaining agreement. Keeton v. Dep't of Soc. Health Servs., 34 Wn. App. 353, 360, 661 P.2d 982, review denied, 99 Wn.2d 1022 (1983). Summary judgment is appropriate to resolve contract interpretation issues if the contract is unambiguous. In re Estates of Wahl, 99 Wn.2d 828, 831, 664 P.2d 1250 (1983); Anderson Hay Grain Co. v. United Dominion Indus., 119 Wn. App. 249, 255, 76 P.3d 1205 (2003). A contract is unambiguous if, when the contract is considered as a whole, it is not fairly susceptible to more than one reasonable interpretation. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 666, 15 P.3d 115 (2000). A contract interpretation is not reasonable if it renders some of the contract language meaningless or ineffective. Better Fin. Solutions, Inc. v. Transtech Elec., Inc., 112 Wn. App. 697, 711, 51 P.3d 108 (2002).
Here, the CBA provides that an employee may be terminated only for just cause. But it also provides that '[a]ll lateral hire employees shall serve a probationary period of twelve (12) months and shall have no seniority rights during this period, but shall be subject to all other clauses of this Agreement.' 1 CP at 148. Buesing reasons that because the CBA does not define the terms of the probationary period, it must be assumed that probationary employees, like all other employees, can be terminated only for just cause. But Buesing's interpretation would render meaningless the CBA's requirement that lateral hire employees serve a 12-month probationary period.
Under Buesing's interpretation, the probationary period would be relevant only as concerns the CBA's grievance procedure, which is the only other CBA provision mentioning the probationary period. But the grievance procedure itself suggests that a probationary employee can be released without cause by providing that the bargaining unit may not file a grievance for employees released during their probationary period. Further, although the CBA does not detail the conditions of the probationary period, it does state that '[a]ll matters not specifically treated by the language of this Agreement may be administered for its duration by the City in accordance with such policy and procedure as the City may determine.' 1 CP at 136. Thus, under this CBA provision, the City and its civil service commission had the right to enact the challenged provisions permitting a release of probationary employee without cause.
Buesing has not shown that the City's 12-month probationary period is unenforceable under either Chapter 41.12 RCW or the CBA. We therefore conclude that the SPD had a right to release Buesing without cause and the superior court correctly granted the City summary judgment on Buesing's breach of contract claim.
Buesing's Procedural Due Process Claim
A procedural due process claim under 42 U.S.C. § 1983 requires the plaintiff to establish a constitutionally protected liberty or property interest, a governmental deprivation of the interest, and a lack of process. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A public employee has a property interest in his employment if he has a legitimate claim of continued entitlement to the job. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987). A police officer serving his probationary period under civil service regulations has no constitutionally protected property interest in his continued employment. State ex rel. Swartout v. Civil Serv. Comm'n, 25 Wn. App. 174, 182, 605 P.2d 796, review denied, 93 Wn.2d 1021, cert. denied, 449 U.S. 992 (1980); see also Portman, 995 F.2d at 904 (a mere expectation of continued employment does not create a property interest; an at-will employee has no property interest in his job).
Here, Buesing had no legitimate claim of continued entitlement to his job. He was specifically informed that permanent employment was conditioned on his satisfactory completion of a 12-month probationary period. Because Buesing failed to satisfactorily complete probation, he had not acquired a property interest in his employment and he was not constitutionally entitled to a due process hearing. The superior court correctly granted summary judgment to the City and Wilson on Buesing's procedural due process claim.
Buesing's First Amendment Claim
To prevail on his claim under 42 U.S.C. § 1983 that he was released for exercising his First Amendment rights, Buesing was required to show (1) that he exercised his right to speech; (2) that the speech involved a matter of public concern; (3) that the speech was a substantial or a motivating factor in his termination; and (4) that Buesing's interest in exercising his free speech right outweighed the government's interest in promoting public service efficiency. White v. State, 131 Wn.2d 1, 10, 929 P.2d 396 (1997). Buesing maintains that because the Wenzel matter and his release were so close in time, he must have been released for raising 'questions to Chief Wilson regarding use of a council member's property for unlawful purposes and the propriety of using an investigator with no undercover experience and not bringing in an outside agency.' Br. of Appellant at 32. We disagree.
Buesing's First Amendment claim relies entirely on speculation and assertions undermined by his own admissions. In maintaining that the timing of his release raises a presumption that he was released because of the Wenzel matter, Buesing overlooks the fact that the Wenzel investigation concluded a month before his probationary period ended. In addition, Buesing conceded that it was Wilson, not he, who reported that Wenzel's complaints involved a rental home owned by a member of the city council. Buesing also acknowledged that he was repeatedly told to treat the investigation seriously; that he was relieved of another work commitment so he could better pursue the matter; and that he was told to request assistance from experienced SPD officers if needed. Buesing offers no explanation for why it was inappropriate for SPD to handle the Wenzel matter or why Wilson would have released him for requesting outside assistance. The superior court correctly granted summary judgment to the City and Wilson on this claim because Buesing failed to set forth specific facts that sufficiently established a disputed material issue of fact regarding his First Amendment claim.
In a statement of additional authorities, Buesing called our attention to a case recently issued by the United States Supreme Court, Garcetti v. Ceballos, 2006 U.S. LEXIS 4341 (U.S. May 30, 2006). In that case, a deputy district attorney raised concerns with his superiors about serious inaccuracies in a police affidavit used to obtain a search warrant. After his concerns were overruled, and after he was subject to employment decisions that he considered retaliatory, the deputy district attorney sued his employer for violating his civil rights under 42 U.S.C. § 1983. In concluding that the attorney did not have a First Amendment claim, the Court held that 'when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.' Ceballos, 2006 U.S. LEXIS 4341, at *21.
The superior court properly granted summary judgment because Buesing presented only speculative and inconsistent evidence regarding whether he was released because he voiced concerns about the Wenzel matter. Without proper evidence on this threshold matter, it is unnecessary for us to determine whether Buesing's speech was made pursuant to his official duties. Ceballos is not helpful to Buesing.
In his deposition, Buesing testified that he believed that drug transactions were going on in the home. He therefore opined that the home could be seized and that in order to avoid such a result, Wilson and the council member conspired to keep the matter in-house and to have Buesing released when he suggested that outside help was appropriate. Buesing has not raised this testimony in his briefing and he offered no evidence of his conspiracy theory to the superior court.
Attorney Fees on Appeal
The City and Wilson request attorney fees pursuant to RAP 18.1 and 42 U.S.C. § 1988. We may award attorney fees under RAP 18.1 if applicable law grants a party the right to recover reasonable attorney fees. 42 U.S.C. § 1988 permits an award of attorney fees on appeal to the prevailing party on claims brought pursuant to 42 U.S.C. § 1983. See Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 128, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079 (1993). But a prevailing defendant is entitled to attorney fees under 42 U.S.C. § 1988 only when the plaintiff's claims are groundless, frivolous, or unreasonable. Wash. State Republican Party v. Wash. State Pub. Disclosure Comm'n, 141 Wn.2d 245, 289, 4 P.3d 808 (2000). Buesing's appeal does not meet this threshold and we decline the City and Wilson's request for attorney fees.
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 2.06.040, it is so ordered.
HOUGHTON, J. and HUNT, J., concur.