Opinion
No. 34531-5-II.
December 12, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-01522-4, Paula Casey, J., entered February 13, 2006.
Counsel for Appellant(s) Ross P. White Witherspoon Kelley Davenport Toole 422 W Riverside Ste 1100 Spokane, WA, 99201.
Counsel for Respondent(s) Donna Jacobs Stambaugh AGO 1116 W Riverside Ave Spokane, WA, 99201-1106.
Janetta Elizabeth Sheehan Wash Ofc of Attorney General 7141 Cleanwater Dr Sw Po Box 40145 Olympia, WA, 98504-0145.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Penoyar, JJ.
THE Department of Social and Health Services terminated social worker Darrel J. Henn for neglect of duty, willful disregard of agency policy, and gross misconduct. The Personnel Appeals Board affirmed the dismissal, but the superior court then ruled that the evidence did not support the gross misconduct finding. It remanded to the Board to determine whether the remaining two grounds warranted dismissal. The Board found that they did and again affirmed Henn's dismissal, a decision the superior court affirmed. Henn appeals, arguing that the Board erred by upholding his dismissal on grounds other than those charged by the Department, that there was not substantial evidence to support his dismissal, and that dismissal was not an appropriate sanction. Because the Board did not err in finding that Henn neglected his duties and willfully disregarded department policy and the Board did not base its decision on grounds not charged by the Department, we affirm.
FACTS
The Department of Social and Health Services employed Darrell J. Henn as a social worker in the Department's Division of Children and Family Services (Family Services). Henn worked in Family Services' Indian Child Welfare Unit where he investigated allegations of child abuse and neglect.
Department policy requires social workers to respond to referrals classified as "emergent" within 24 hours of the referral and with a high investigation standard. Administrative Record (AR) at 3. Social workers must begin investigating "non-emergent" referrals within 10 days of the referral. AR at 3. Additionally, each referral receives a "risk tag" between 1 and 6. AR at 4. Social workers must use the high investigation standard for referrals with a moderate to high risk tag. The high investigation standard requires the social worker to conduct a face-to-face interview with the child within 10 days of the referral. A social worker must continuously assess the risk of harm to the child throughout the life of the case. Additionally, social workers must provide evidence gathered during the course of an investigation to the attorney general for use in court proceedings concerning the child's placement.
On January 17, 2003, the Department dismissed Henn for neglect of duty, gross misconduct, and willful violation of published agency or Department of Personnel rules. The disciplinary action stemmed from four conduct investigative reports related to three of Henn's cases.
1. E.P.: Sexual Abuse
In April 2002, Family Services received a referral regarding physical abuse and neglect of six-year-old E.P. and her two younger half-siblings. The referral also included an allegation by E.P.'s mother that her boyfriend Earl, the father of the other two children, had sexually abused E.P. Family Services classified the case as emergent with a risk tag of five, high risk.
Social worker Heather Hamasaki was initially responsible for the case, but when Family Services learned that E.P.'s father Michael was Native American, it split E.P.'s case from that of her siblings, and Henn's supervisor assigned him to E.P.'s case. Henn and Hamasaki did not meet to discuss the case. E.P.'s mother later recanted her allegation, and Hamasaki did not investigate it further.
As part of the investigation, Karen Winston, a child interview specialist, interviewed E.P. E.P. described an incident where Earl had inappropriately touched her. Henn did not hear this part of the interview, but he received Winston's written report describing E.P.'s disclosures. Henn stopped by Hamasaki's desk and told her the report was in and that it was "interesting reading," but he did not tell her that E.P. had made her own disclosure of sexual abuse. AR at 5-6.
In July, the court held a hearing to determine whether Earl would receive unsupervised visits with his children, E.P.'s half-siblings. Both Hamasaki and Dannette Allen, the assistant attorney general working on the case, opposed unsupervised visits for Earl, but neither raised E.P.'s allegations of sexual abuse. Henn was present during the hearing but did not mention E.P.'s allegations to either Hamasaki or Allen. The court granted Earl unsupervised visits with his children.
Later in July, while preparing a service plan for E.P., Henn reviewed Hamasaki's individual service safety plan for E.P.'s siblings. He asked Hamasaki why her plan did not address the initial allegations of sexual abuse made by E.P.'s mother, and Hamasaki told him that the mother had recanted her allegations. Henn then told Hamasaki about E.P.'s disclosure during the April interview and said that he must have overlooked informing her earlier. Hamasaki reported Henn for withholding information about sexual abuse allegations against Earl.
2. E.P.: Father's Assault Conviction
In deciding where to place E.P., Henn considered her father, Michael. When Henn interviewed Michael about an assault conviction, Michael explained that the conviction resulted from a "barroom brawl." AR at 5. Henn was not concerned about the incident and did not get the police report to verify Michael's version of what happened. Instead, he decided to place E.P. with Michael.
E.P.'s guardian ad litem, Weston Meyring, was concerned about the nature of Michael's conviction. He reviewed the police report, which showed that the assault was not a barroom fight but that Michael had instead sought out the victim and beat him with a bat. Meyring expressed his concerns to Henn. Still, Henn did not tell Allen, also working on E.P.'s case, about the nature of the assault; he continued to recommend that E.P. be placed with Michael.
Cheryl Wolfe, another assistant attorney general working on E.P.'s case, asked Henn and his supervisor to investigate Michael's assault conviction before a custody hearing for E.P. Henn's supervisor was under the impression that Henn had already investigated the assault conviction. At the custody hearing, Allen was caught off guard when Meyring testified as to the nature of Michael's assault conviction. She felt that Henn's failure to provide her with complete information prevented her from providing adequate legal representation during the hearing. The court placed E.P. with Michael.
3. G.G.: Physical Abuse
In June 2002, Family Services received a referral alleging physical abuse and neglect of G.G., a 14-month-old child. Family Services classified the case as emergent with a risk tag of five, high risk. The referring party had reported that G.G.'s mother kneed G.G. in the head. Henn, who was responsible for G.G.'s case, attempted to contact the referring party but the contact number stated that the caller was unavailable.
Medical records showed that G.G. had "multiple bruises and abrasions." AR at 8. Henn spoke with G.G.'s mother, who denied abusing G.G. But Henn never met with G.G. to determine whether he had any physical signs of abuse. Henn recommended to a child protective team that the Department return G.G. to his mother's custody with a safety plan and other services. Henn returned G.G. to his mother 15 days after he was placed in foster care.
4. F.l.: Medical Neglect
In July 2002, Family Services received a referral regarding F.L., a three-year-old medically fragile child. F.L.'s attending physician alleged that F.L.'s caretakers had failed to take him to a crucial medical appointment. The case was classified as non-emergent but had a risk tag of five, high risk. Again Henn was responsible for the case. He contacted F.L.'s mother and instructed her to get the child to the doctor. After Henn confirmed that the mother had made an appointment with F.L.'s doctor, he took no further action. He did not meet with F.L. or prepare a safety assessment or plan.
Finding of fact 2.25 states that F.L.'s case was classified as emergent. But the referral shows that the case was actually classified as non-emergent. Because the case had a risk tag of five, as a high risk case it still required the high investigation standard.
After investigating all four conduct reports filed against Henn, Ken Kraft, regional administrator of Family Services, determined that Henn should be dismissed. The Board affirmed, finding that Henn committed gross misconduct, neglected his duty, and willfully violated published agency rules or regulations. The Thurston County Superior Court reversed the Board's finding of gross misconduct and remanded for the Board to determine if discharge was still appropriate.
On remand, the Board again upheld Henn's dismissal, finding that Henn's "failure to perform his duties with the primary objective of protecting vulnerable children was egregious and termination will deter other social workers from disregarding the department's requirements regarding child abuse and neglect investigations." Clerk's Papers (CP) at 68. The superior court affirmed.
The principal issues are whether the Board imposed dismissal for reasons the Department did not charge, whether the Board erred in finding that Henn's neglected his duty and willfully violated agency policy, and whether this misconduct warranted dismissal.
ANALYSIS I. Standard of Review
We review a board's decision de novo on the record made at the board level, using the same standards of review the superior court used. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 476, 989 P.2d 1214 (1999) (citing Adams v. Dep't of Soc. Health Servs., 38 Wn. App. 13, 14, 683 P.2d 1133 (1984)); Nelson v. Dep't of Corr., 63 Wn. App. 113, 115, 816 P.2d 768 (1991) (citing former RCW 41.64.130 (2004)). An employee may appeal a board decision if it is: (1) founded on an error of law; (2) contrary to a preponderance of the evidence; (3) materially affected by unlawful procedure; (4) based on a constitutional violation; or (5) arbitrary and capricious. Former RCW 41.64.130(1)(a)-(e) (2004); Dedman, 98 Wn. App. at 476.
Our Supreme Court has held that although former RCW 41.64.130(1)(b) uses the term "preponderance," we must determine whether substantial evidence supports the Board's decision. Ballinger v. Dep't of Soc. Health Servs., 104 Wn.2d 323, 328, 705 P.2d 249 (1985).
We will uphold a board's factual finding if substantial evidence supports it. Ballinger v. Dep't of Soc. Health Servs., 104 Wn.2d 323, 328, 705 P.2d 249 (1985) (citing Gogerty v. Dep't of Insts., 71 Wn.2d 1, 8-9, 426 P.2d 476 (1967)). We treat unchallenged administrative factual findings as verities on appeal. Lawter v. Employment Sec. Dep't, 73 Wn. App. 327, 332-33, 869 P.2d 102 (1994) (citing Ass'n of Capitol Powerhouse Eng'rs v. State, 89 Wn.2d 177, 183, 570 P.2d 1042 (1977)).
We review asserted errors of law de novo, giving substantial weight to the agency's view of the law. Dedman, 98 Wn. App. at 477 (citing Sullivan v. Dep't of Transp., 71 Wn. App. 317, 321, 858 P.2d 283 (1993)). And in reviewing mixed questions of fact and law, we determine the correct law and apply it to the agency's factual findings. Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 330, 646 P.2d 113 (1982).
II. Grounds For Dismissal
Henn contends that the Board erred by upholding his dismissal on grounds other than those the Department charged, thereby substituting its judgment for the Department's.
A. Rejection of "Intentional Incompetence" Evidence
Henn points to the Department's opening statement at the Board hearing that "this is a case about intentional incompetence on the part of Mr. Henn," and Kraft's testimony about Henn's alleged "intentional" acts, arguing that these statements reveal the real reason the Department dismissed him. Br. of Appellant at 12. Henn reasons that because the Board rejected this testimony, it must have affirmed his dismissal on grounds other than those charged.
Henn relies on In re Smith, 30 Wn. App. 943, 639 P.2d 779 (1982), where a county sheriff had dismissed Smith, a deputy sheriff, because of an incident in which several citizens alleged that Smith pointed his pistol at them while driving his personal vehicle. Smith, 30 Wn. App. at 944-45. The county civil service commission made no finding that Smith actually pointed his pistol, but it upheld the dismissal based on a finding that either pointing a pistol or showing off a badge was an act of intimidation. Smith, 30 Wn. App. at 945. We reversed, holding that the commission was limited to investigating the reasons set forth by the appointing power and could not substitute reasons of its own. Smith, 30 Wn. App. at 948-49.
Smith is distinguishable. Here, the Department set forth its grounds for dismissing Henn in Kraft's January 17, 2003 letter: "This disciplinary action is taken pursuant to Washington Administrative Code . . . 356-34-010 (1)(a) Neglect of Duty, (h) Gross Misconduct, and (i) Willful violation of the published employing agency or Department of Personnel rules or regulations." AR at 96. At the Board hearing, the Department referred to the specified charges in its opening statement. And it set forth evidence to support each of these charges. The Board initially affirmed the Department's dismissal solely on the three specified charges. And it based its decision after remand solely on the first and third charges. The Board did not substitute its own reasons for Henn's dismissal when it upheld the dismissal based on the grounds the Department actually charged.
Former WAC 356-34-010 (2004), in effect at the time of this action, provided nine grounds for dismissal or other disciplinary actions against state employees. "Intentional incompetence" is not one of these grounds.
Although the Department's attorney and one of its witnesses characterized Henn's conduct as "intentional incompetence," they used the phrase to explain the Department's theory of the evidence against Henn rather than as a separate charge. Thus, when the Board rejected the Department's references to "deliberate" conduct, it was not finding against the Department on its only "real" charge. AR at 14. The Board simply explained that in finding gross misconduct, neglect of duty, and violation of agency rules, it was not relying on the Department's "intentional incompetence" characterization.
The Department believed that Henn failed to investigate and report on his assigned cases to demonstrate to his superiors that he and other case workers had too many cases to handle.
B. Reversal of Finding of Gross Misconduct
But Henn contends that with the Board's rejection of "intentional incompetence" and the superior court's ruling that the gross misconduct charge failed, the Board had no remaining charges to support the dismissal. Thus, according to Henn, on remand the Board justified dismissal of Henn by merely substituting the word "egregious" for the word "gross" to describe his misconduct, thereby rejecting the superior court's reversal of its decision. Br. of Appellant at 17-19.
The Department explained that it was dismissing Henn on three separate bases: "Singly, any of the causes identified in . . . this letter warrant your dismissal. When all causes are considered, this dismissal is more than justified." AR at 106. Thus, to affirm the dismissal, the Board did not have to accept all three causes. It could, and did, affirm the dismissal for Henn's neglect of duty and willful violation of agency policy. And the Board did not substitute its judgment for that of the Department; the Department found that dismissal was appropriate for any single cause, and the Board found the two remaining grounds sufficient to justify Henn's dismissal.
Moreover, the Board did not merely substitute the word "egregious" for "gross" to describe Henn's misconduct. After noting that it must consider the conduct reports and the underlying facts in determining what sanction was appropriate, the Board stated:
Under the circumstances presented, and in light of the charge of gross misconduct being reversed, we find that our earlier determination to affirm [Henn's] dismissal is still appropriate. [Henn's] failure to perform his duties with the primary objective of protecting vulnerable children was egregious and termination will deter other social workers from disregarding the department's requirements regarding child abuse and neglect investigations.
CP at 68. Thus, the Board used "egregious" to support its finding that Henn's dismissal was an appropriate sanction, not to support its finding that the Department had proved its charges against Henn.
Finally, Henn cites no authority to support his argument that where an agency dismisses an employee for more than one of the grounds former WAC 356-34-010 authorized, the dismissal fails if a reviewing authority invalidates one of the grounds. The WAC's wording, setting out nine distinctly different grounds, strongly suggests otherwise. And Henn's proposed interpretation would penalize an agency employer for disciplining an employee for more than one reason. If the Board or a court rejected even one of the employer's charges, the entire disciplinary proceedings would fail even if the remaining charges had substantial merit.
We conclude that the Board did not base its decision on grounds other than those the Department charged; nor did the Board substitute its judgment for the Department's. Thus, the Board's decision was not based on an error of law or arbitrary and capricious.
C. Findings of Neglect of Duty and Willful Violation of Agency Policy
Henn challenges several of the Board's findings of fact. He did not, however, include an assignment of error to the factual findings but, instead, made this challenge in his procedural history section. He also failed to include the text of the challenged findings in his brief, as RAP 10.4(c) requires. Because Henn failed to properly assign error to the Board's findings of fact, we treat them as verities. See Fuller v. Dep't of Employment Sec., 52 Wn. App. 603, 606, 762 P.2d 367 (1988).
Henn contends that the Board erred in finding that his conduct constituted neglect of duty and willful violation of agency policy. We review the Board's conclusions de novo. Dedman, 98 Wn. App. at 477.
1. E.P.: Sexual Abuse
Henn argues that there was no written policy requiring him to share information with Hamasaki and that his supervisor did not assign him the responsibility to investigate any sexual abuse allegations.
The Board found that Henn did not conduct any further investigation into E.P.'s allegations. Although Henn told Hamasaki that the report detailing the allegations was "interesting reading," he did not inform her of E.P.'s disclosure. AR at 5. Henn was present during a hearing at which Hamasaki and Allen opposed granting Earl unsupervised visits with his children, but he did not inform Hamasaki or Allen of E.P.'s allegations. And when Henn finally informed Hamasaki about the allegations and she asked him why he had not previously told her about them, Henn stated that he "must have overlooked it." AR at 7. The Board further found that Department policy requires social workers to provide evidence gathered in an investigation to the Office of the Attorney General for use in court.
The Board's conclusion was that Henn's actions prevented the Department from properly determining whether Earl was a suitable caretaker for his children and that he thereby neglected his duty and willfully violated agency policy regarding case management and investigation. This was not based on an error of law.
2. E.P.: Father's Assault Conviction
Henn argues that he was not required to obtain the police report regarding Michael's assault conviction and that he never represented that he had.
The Board found that Henn was not concerned with the nature of the conviction and that he thought Michael was an appropriate placement for E.P. Henn accepted Michael's version of the incident and did not obtain a police report. Even after the guardian ad litem informed Henn of the nature of the assault, Henn did not tell Allen the facts of the assault. Henn did not obtain a copy of the police report when his supervisor and Wolfe asked him to do so. Henn's failure to provide Allen with complete information limited her ability to provide effective representation.
The Board's conclusion that Henn's actions prevented the Department from properly determining whether Michael was a suitable caretaker for E.P. and that Henn neglected his duty and willfully violated agency policy regarding case management and investigation was not based on an error of law.
3. G.G.: Physical Abuse
Henn argues that the Board's findings with respect to G.G. do not support a conclusion that he neglected his duty or willfully disregarded agency policy because he merely failed to interview one witness.
The Board found that Henn attempted to call the referring witness to investigate the allegations of abuse but that when he found the phone number no longer in service, he made no further attempts to contact the witness. Henn did not meet with G.G. before he recommended that the Department return G.G. to his mother's custody. Henn saw G.G. only on the day he returned him to his mother after G.G. had spent 15 days in foster care with no visit.
The Board did not err in concluding that Henn's failure to meet face-to-face with G.G. and failure to thoroughly investigate G.G.'s case amounted to neglect of duty and willful violation of agency policy.
4. F.L.: Medical Neglect
Henn argues that, by ensuring F.L. visited the doctor, he took care of the immediate problem.
The Board found that, after Henn contacted F.L.'s mother and instructed her to take F.L. to the doctor, he took no further action. Henn did not visit F.L.'s home, meet face-to-face with F.L., or prepare a safety assessment or plan.
The Board did not err in concluding that Henn's failure to conduct a face-to-face visit with F.L. and failure to conduct a thorough investigation of F.L.'s case constituted neglect of duty and willful violation of agency policy.
Henn specifically testified, with respect to all four conduct reports, that he willfully violated agency policy:
I had to actively decide on a day to day basis in what I was doing which policies and which procedures I needed to follow and which ones I could waive, I mean I guess if you want to go by what Mr. Kraft said, yeah, I willfully neglected to follow through on documentation, and I willfully neglected to follow through on face to face contacts, but I did it in a manner to meet the overall goal . . . of Child Protective Services.
AR at 472-73. While Henn asserted that his failures were due to his burdensome workload, the Board found that Kraft considered this explanation but concluded that Henn did not present any mitigating reasons for failing to carry out his duties. In light of Henn's testimony and Kraft's rejection of his justification, we cannot say it was an error of law for the Board to conclude that Henn's conduct constituted neglect of duty and willful violation of agency policy.
III. Sanction of Dismissal
Henn maintains that the Board erred in affirming his dismissal after the superior court rejected the gross misconduct charge; he reasons that the Department failed to show that he was not amenable to correction or training. He does not state the grounds on which he challenges the Board's determination that dismissal is the appropriate sanction.
Henn has not shown that the Board committed an error of law in upholding his dismissal. Former WAC 356-34-010 provides that neglect of duty and willful violation of agency policy are grounds for dismissal. It was not error for the Board to uphold Henn's dismissal based on these grounds.
And Henn has not shown that the Board's decision was arbitrary and capricious. The Board's actions are arbitrary and capricious if it takes "willful and unreasonable action, without consideration . . . of facts and circumstances." Terhar v. Dep't of Licensing, 54 Wn. App. 28, 34, 771 P.2d 1180 (1989). Even where there may be room for two opinions or we might have reached a different decision, we will not find the Board's action arbitrary or capricious if it was taken honestly and upon due consideration. Trucano v. Dep't of Labor Indus., 36 Wn. App. 758, 761-62, 677 P.2d 770 (1984).
In his letter dismissing Henn, Kraft asserted:
Your lack of commitment to your position has had a negative impact, not only on the clients you serve, but also on the department. You placed the Department and more importantly the three children, [E.P.], [G.G.], and [F.L.], at risk by not meeting timelines or following through to ensure that you met your job responsibilities. Your misconduct is so egregious and contrary to the mission of DCFS to ensure safety of the children that the public entrusts in our care that I find you to be completely untrustworthy. . . . Given my duty to the clients we serve, the public and to our staff to manage our programs in a responsible and trustworthy fashion, I find that your dismissal is the appropriate level of discipline.
AR at 106.
The Board found that Henn engaged in a "pattern of disregard for DSHS's policies, practices and procedures and failed . . . to exercise due professional care in the performance of his social work duties." CP at 68. The Board considered Henn's "failure to perform his duties with the primary objective of protecting vulnerable children" and the likelihood that dismissing Henn would deter other social workers from disregarding their duties. CP at 68. Accordingly, we do not find the Board's decision to uphold Henn's dismissal to be arbitrary and capricious.
Affirmed.
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.
We concur:
Armstrong, J.
Bridgewater, P.J.
Penoyar, J.