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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAVID S. DIVIS, DIVISION II
Appellant,

v. WASHINGTON STATE PATROL, Respondent. No. 43744 - 941

UNPUBLISHED OPINION
HUNT, J. — David S. Divis appeals the superior court's affirmance of the Washington State Patrol Chief John R. Batiste' s order 

### demoting him from sergeant to trooper. Divis argues that we should reverse the superior court because Chief Batiste ( 1) 

### exceeded his authority and 

### wrongly entered his own independent findings offact that differed from the Washington State Patrol ( WSP) Trial Board' s findings of fact; ( 2) 

### improperly relied on a prior settlement agreement arising from Divis's earlier acts ofmisconduct, which settlement agreement was not before the Trial Board; (

### 3) failed to weigh the proportionality of his discipline of Divis against his discipline of other troopers in similar situations; and (4) lacked just cause to demote him 

### because the investigation was not conducted fairly, one ofthe elements ofcause in the WSP's Administrative Investigation Manual. 

### Holding that Chief Batiste acted within his supervisory authority, we affirm.No. 43744 - 9 -II FACTS 

### The Washington State Patrol (WSP) hired David S. Divis as atrooper in 1989. On March 2, 2006, WSP promoted Divis to sergeant; later that month, WSP assigned him to supervise a trooper detachment in South Seattle. 

## In January 2008, WSP's Office of Professional Standards Internal Affairs investigated allegations that Divis had made racially insensitive comments in front of his troopers multiple 

## times during 2006 and 2007 and that he had used intimidation techniques to prevent employees from reporting his racially insensitive behavior. WSP initiated disciplinary proceedings, alleging eleven specific violations. 

### An administrative WSP Trial Board conducted a six - day hearing in December 2009 and January 2010. 

### After hearing testimony from 18 witnesses and reviewing over 3,000 pages of information, the Trial Board ( 1) 

### determined that WSP had proved three ofthe alleged racially insensitive remarks'; ( 

### 2) unanimously agreed that Divis had violated WSP Regulation 8.00.010 A), 

### requiring employees to obey WSP rules of conduct, and WSP Regulation 8.00.030 (A), 

## prohibiting unacceptable conduct by employees; and (3) unanimously recommended that Divis be sanctioned 

### by suspending him for 20 working days. The Trial Board forwarded its findings

1 

## More specifically, in its April 2010 decision, the Trial Board found that WSP had proved (1) Divis made acomment somethingtothe effectof, `Thethree laziesttroopers inthis detachment happen to be black, ' Clerk' s Papers ( CP) at 178; ( 2) " 

### Divis made a racially insensitive remark when he compared major league baseball player 

### Tony Gwynn to Aunt Jemima," CP at 180; and 

### 3) Divis improperly "used an `openforum' management styleto discuss an individual's activity, performance, and 

### disciplinary issues between detachment members." CP at 185. The Trial Board qualified these findings as follows: 

### WSP did not prove that Divis used the word "lazy," Divis 

### improperly referred to race " when reviewing or 

### discussing employee performance," and his " Aunt Jemima" comment was " insensitive and was offensive." CP at 179, 180.
2No. 43744 - 9 -II and recommendation to Chief Batiste, who entered a two - page final order ( First Final Order), 

### demoting Divis from sergeantto trooper.

Divis petitioned the superior court for a judicial writ of review.2 The superior court 

### dismissed the Trial Board'sfinding that Divis had engaged in an open forum management style, 

## vacated ChiefBatiste's demotion orderbecause itdid notcomplywith RCW34.05.461(3)3, and
remanded for additional review and entry of a new order. 

### On December 2, 2011, Chief Batiste
entered a new final order ( Second Final Order), 

### again demoting Divis from sergeant to trooper. Divis filed a new Petition for Judicial Writ of Review. The superior court upheld the chief's Second Final Order. Divis appeals. ANALYSIS I. FINDINGS OF FACT 

### Divis first contends that Chief Batiste exceeded his authority under RCW 43.43.090 by making his own findings of fact in his Second Final Order that contradicted or exceeded the
scope of the Trial Board' s findings, which were 

### binding on him. The record does not support Divis' s contentions. Furthermore, Divis mischaracterizes Chief Batiste' s recitation of the Trial Board' s findings offacts. 

## 2AWSPtroopermayappeal anadverse administrative actiontothe superiorcourtby

apply[

### ing] to the superior court ... for a writ of review to have the reasonableness and lawfulness ofthe [WSP] order inquired into and determined. The superior court shall review the determination ofthe chief of the [WSP] in a summary manner. RCW 43.43. 100. 3 The legislature amended RCW 34.05.461 in 2013. LAws OF 2013, ch. 110 § 2. The 

### amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version ofthe statute.
3No. 43744 - 9 -II 

### Onthe contrary,the record supports WSP' s assertionthat ChiefBatiste did notmake new findings offact. Rather, he merely summarizedthe Trial Board's record and findings,and issued his final order based on two ultimately-sustained allegations against Divis.4 For example, the
chief s Second Final Order stated: " Credible testimony ... confirms that Sergeant Divis made a statement to the effect, ` The three laziest troopers in this detachment happen to be black. "' Clerk' s Papers ( CP) at 22 ( emphasis added). Chief Batiste did not find that Divis had used the term "

### lazy ";

### rather, in noting that sometroopers hadtestifiedthat Divis had "made astatementto that] effect," 

### the chief was merely summarizing parts ofthe administrative record before the Trial Board. CP at 22. Thus, Divis is mistaken in his contention that Chief Batiste' s Second 

### Final Order revised the Trial Board's findings about whether he (Divis) had used the term "lazy trooper" in a racial context. Br. ofAppellant at 17. 

### Similarly, the record does not support Divis's contention that Chief Batiste found his Divis' s) " 

### Aunt Jemima" comment to have been racially discriminatory, in contrast to the Trial Board' s 

### finding no evidence of discrimination. Br. of Appellant at 18. First, Divis fails to 

### identify what finding in the chief's Second Final Order was allegedly contrary to the Trial Board's finding; nor does Divis provide a record citation for such finding, contrary to RAP

4The Trial Board found three ofseven allegations ofmisconduct proven. On appeal, however, 

### the superior courtdismissed one ofthe three proven findings, leaving two "sustained" findings, onwhich ChiefBatiste ultimately based his final order. CP at21.
4No. 43744 - 9 -II 10.3 (a)(6). 5 

### Nevertheless, our review ofthe record does not reveal any finding by Chief Batiste that Divis' s comment was 

### discriminatory. Instead, we find only the chief's statement that Divis's Aunt Jemima" comment " was insensitive and was offensive." CP at 24. Furthermore, the
chief' s statement did not contradict the Trial Board' s 

### finding that "[ t]he preponderance of the 

### evidence presented clearly supports that the allegation of Discrimination/Harassment is
unfounded." CP at 199. Thus, Divis' s first argument fails. II. CONSIDERATION OF 2006 SETTLEMENT AGREEMENT 

### Divis next argues that in demoting him from sergeanttotrooper, ChiefBatiste improperly relied on a prior 2006 settlement agreement that arose from Divis's earlier acts ofmisconduct,
which was not before the Trial Board. Chief Batiste' s Second Final Order stated, " Of critical 

### importance to me in making this decision is Sergeant Divis's previous history ofdiscipline for
similar conduct." CP at 27. This Second Final Order detailed an earlier complaint against Divis 

### by another trooper, who alleged that Divis had ' made inappropriate comments about her and other female personnel in the agency "; this case was resolved in 2006 through a settlement agreement that Divis' s conduct had violated WSP Regulation 8. 00.030 ( A)— Unacceptable Conduct. CP at 27.

5 We are not required to search the record 

### for support for a party' s argument. 

### In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 ( 1998) ( courts are not obligated " to comb the record" where counsel has failed to challenge specific findings and support arguments with citations to the record); RAP 10. 3( a)( 6). 

### See also In re Disciplinary ProceedingAgainst Kamb, 177 Wn.2d 851, 861, 305 P.3d 1091 ( 2013) ( internal quotation marks and citation omitted) (

### quoting In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 311, 962 P.2d 813 ( 1998)) ( " It is 

### incumbent on counsel forthe appellantto present argumentto the courtwhy specific findings of fact are not supported by the evidence andto citeto the record to supportthat argument."). 5No. 43744 - 9 -II In connection with the instant allegations against Divis, however, WSP withdrew the allegation and evidence related to this 2006 prior settlement agreement. Thus, WSP did not present to the Trial Board evidence of how Divis' s prior behavior resulted in this settlement 

### agreement, and the Trial Board made no findings relating to this prior settlement agreement or that Divis' s currently alleged misconduct was a " pattern" or " trend." CP at 28. Nevertheless, Divis' s prior misconduct and the resultant settlement agreement were part of the Trial Board' s 

### record; thus, the chiefcould consider this information in determining the appropriate discipline. Divis' s challenge to ChiefBatiste' s consideration ofDivis' s 2006 misconduct fails. 

### A. Standard ofReview; StatutoryAuthority 

### Each level of the judiciary reviews administrative decisions in an appellate capacity. Farm 

### Supply Distribs., Inc. v. Wash. Utils. & 

### Transp. Comm' n, 83 Wn.2d 446, 448, 518 P.2d 1237 ( 1974). When reviewing an administrative action, we sit "` in the same position as the superior court, applying the standards of the [Washington Administrative Procedure Act (APA)6] 

### directly to the record before the agency.'" 

### Chandler v. Office ofIns. Comm 'r, 141 Wn. App. 639, 647, 173 P.3d 275 (2007) (

### quoting Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 ( 1993)). " 

### We apply a substantial evidence standard to an agency's findings of fact[] but review de novo its conclusions of law." Chandler, 141 Wn. 

### App. at 647 ( citing 

### Premerav. Kreidler, 133 Wn.App.23, 31, 131 P.3d 930 (2006)).
6 ch. 34.05 RCW. 

### 7 Butbecause Divis does not assign errorto anyofthe Trial Board'sfindings offact,weneed not apply this substantial evidence standard here. See RAP 10.3( g), 10.4(f).
6No. 43744 - 9 -II When reviewing factual issues, 

### the substantial evidence standard is highly deferential to the agency fact finder. 

### When an agency determination is based 

### heavily onfactual mattersthatare complex,technical, and closeto the heartofthe agency' s expertise, we give substantial deference to agency views. Under this standard, evidence must be of a sufficient quantum to persuade a fair - minded person of the truth of a declared premise. But [we do] not weigh the evidence or 

### substitute our judgment regarding witness credibility for that of the agency. Findings offact to which no error has been assigned are verities on appeal. 

### Chandler, 141 Wn.App.at 648 (footnotes and citations omitted). 

### We may grant relief "ifthe party challenging the agency order shows that the order is invalid for one of the reasons set forth in RCW 34.05. 570(3)[ 8], " 9 such as where "[ t]he order is 

## 8 RCW 34.05.570(3) lists the following grounds forjudicial relief "from an agency order in an adjudicative proceeding ":

a) The order, orthe statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied; b) 

### The order is outside the statutory authority or jurisdiction of the agency conferred by any provision oflaw; c) 

### The agency has engaged in unlawful procedure or decision - making process, or has failed to follow a prescribed procedure; d) 

### The agency has erroneously interpreted or appliedthe law; e) 

### The order is not supported by evidence that is substantial when viewed in light ofthe whole record before the court, which includes the agency record for 

### judicial review, supplemented by any additional evidence received by the court under this chapter; 

### f) The agency has notdecided all issues requiring resolution bythe agency; g) A motion for disqualification under RCW 34.05.425 or 34. 12.050 was made 

### andwas improperly denied or, ifno motion was made, facts are shown to support the grant of such a motion that were not known and were not reasonably 

### discoverable by the challenging party at the appropriate time for making such a motion; h) 

### The order is inconsistent with a rule ofthe agency unless the agency explains 

### the inconsistency by stating facts and reasons to demonstrate a rational basis for inconsistency; or i) The order is arbitrary or capricious. 

## 9 Chandler, 141 Wn.App.at647.

7No. 43744 - 9 -II

outside the statutory authority orjurisdiction ofthe agency conferred 

### by any provision of law "1o; or (2) "[ t]he agency has erroneously interpreted or applied the law. "11 

### We may also grant relief where the action complained of has caused substantial prejudice. RCW 34.05. 570( 1)( d). 12 Divis 

### fails to meetany ofthese standards.

B. Failure To Assign Error to Trial Board' s Findings of Fact Divis does not dispute that the legislature has authorized the WSP chief to determine 

### what discipline to take against a trooper after receiving the Trial Board's findings, which here focused on Divis' s proven misconduct. See RCW 43.43.090, which provides, in part:

After 

### hearing, the findings of the trial board[

### 13] shall be submitted to the chief. Such findings shall be final if the charges are not sustained. In the event the 

### charges are sustained the chief may determine the proper disciplinary action and declare it bywritten order served upon the officer complained of. 

### Neither this statute nor any other statute of which we are aware limits the WSP chief's broad discretion to determine the type and scope of disciplinary action by confining the chief to consider only the Trial Board' s findings. 

### Unlike the chief's broad disciplinary discretion, the Trial Board' s mission is narrow—

### limited to finding whether the WSP proved its allegations of

10 RCW 34.05.570(3)( b). 11 RCW 34.05. 570(3)( d); 

### Chandler, 141 Wn.App. at647 n.8. 12 RCW 34.05. 570( 1)( d) provides: " 

### The court shall grant relief only if it determines that a 

### person seekingjudicial reliefhas been substantiallyprejudiced bythe action complained of." 13 WSP' s 2008 Regulation Manual, §§ 13. 00.010(B)( 2), and 13. 00.030(A)(1), provide that "[ t]he purpose of the Trial Board is to determine all relevant facts" and to " recommend ... a penalty to the Chief." AR at 3101.
8No. 43744 - 9 -II 

### misconduct. See, e.g.,Zoutendykv. Washington State Patrol,27 Wn.App. 65, 72, 616 P.2d 674 1980), 

### all'

d,95 Wn.2d 693, 628 P.2d 1308 ( 1981). RCW 43.43. 090 provides that the Trial Board' s findings are final " ifthe charges are not sustained." ( Emphasis added.) 

### But the statute does not establish the same finality for findings about charges that were sustained. Furthermore, the statute gives the chief broad discretion to decide the appropriate discipline for the sustained charges. 

### When determining the legislature's 

### intent, however, we do not focus exclusively on chapter 43.43 RCW; we also look to other 

### statutes andprinciples,such astheAPA. SeeJackstadtv. Washington State Patrol, 96Wn.App. 501, 508, 976 P.2d 190 ( 1999),

Washington' s APA, codified as chapter 34.05 RCW, " contemplates that an administrative proceeding may involve ... 

### a reviewing officer [who] reviews the initial order." Jackstadt, 96 Wn. 

### App. at 508 ( citing RCW 34.05.464(4)). 

### In trooper disciplinary proceedings 

### before the Trial Board, the WSP chief serves as the reviewing officer and issues a final order. See Jackstadt, 96 Wn. 

### App. at 507 - 08. 

### Our courts have held "that a reviewing officer has the authority ` to modify or replace an [ administrative law judge' s ( ALJ)] findings, 

### including findings of witness credibility.'" Hardee v. 

### Dep' t ofSoc. & Health Servs., 

### 152 Wn.App. 48, 59, 215 P.3d 214 ( 2009) (

### quoting Regan v. Dep't ofLicensing, 130 Wn.App. 39, 59, 121 P.3d 731

9No. 43744 - 9 -II 2005)), aff'd, 172 Wn.2d 1, 256 P.3d 339 ( 2011). 14 Our courts have also interpreted RCW 

### 34.05.464(4) as granting a reviewing officer "the authorityto exercisethe same decision making power as the ALJ unless limited by law or by the review[ing] officerwith notice to all parties." Kabbae v. 

### Dep' t ofSoc. & Health Servs., 

### 144 Wn.App. 432, 441, 192 P.3d 903 (2008). 

### Chapter 43.43 RCW precludes the WSP chief's reinstating and convicting a trooper of charges that the Trial Board has dismissed; this chapter also limits the chiefs authority to discipline the trooper for acts of misconduct that the Trial Board has found were substantiated. RCW 43. 43.090. 

### But this chapter does not expressly restrict the chief to the Trial Board's 

### findings in exercising his discretion to decidethe nature and extent ofdiscipline for substantiated
acts of misconduct. 

### Instead, for purposes of determining appropriate discipline, the chief may consider evidence that exceeds the scope ofthe Trial Board' s findings. 

### Moreover, Divis does not assign errorto any ofthe Trial Board's findings offact,which wethereforetake as verities on appeal. State v.Stevenson, 128 Wn.App. 179, 193, 114 P.3d 699 2005). 

### And to the extentthat ChiefBatiste's following comments can also be characterized as findings of fact," 

### Divis's failure to assign error to them by number and citation to record, as RAP 10.3(a)(6) and RAP 10.3(g) require, again means that we may treat them as verities on appeal:

14 See also Islam v. 

### Dep' t of

### Early 

### Learning, 157 Wn. 

### App. 600, 614 -15, 238 P.3d 74 (2010) ( in 

### making a final order, the reviewing judge had the authority to review and revise the portion of the ALJ' s initial order). 

### This principle applies not only to ALJs, but also to administrative fact finding boards that serve the same purpose, such as the Trial Board here. 

### See Kittitas County v. Kittitas 

### County Conservation Coal., 176 Wn. 

### App. 38, 46 - 47, 308 P. 3d 745 ( 2013) ( Court of Appeals reviews 

### hearing board decisions under the APA, chapter 34.05 RCW); see also Marcum v. 

### Dep' t ofSoc. & Health Servs., 

### 172 Wn.App. 546, 559, 290 P.3d 1045 (2012). 10No. 43744 - 9 -II 1) Sergeant Divis' s conduct " 

### suggests a deeply troubling trend, and a failure by Sergeant Divis to exercise more appropriate judgment. 

### I am very concerned about Sergeant Divis' pattern ofinappropriate and insensitive behavior, and the factthat he appears to be unable to learn from his mistakes." CP at 28.

2) " This is not Sergeant Divis' first instance of inappropriate and insensitive behavior
related to race and gender, "15 " these were not isolated comments. 

### They were instances ofthe 

### same reprehensible behavior that Sergeant Divis had also been previously disciplined for, but that 

### disciplinary action clearly was not effective in changing his behavior." CP at 25. It is clear from Chief Batiste' s Second Final Orderthat he based Divis' s discipline on the two acts of misconduct found 

### by the Trial Board and sustained 

### by the superior court. But in 

### determining the extent and type of discipline, as is his statutory duty under RCW 43.43.090, nothing required the chief to limit his consideration to these two findings. 

### On the contrary, it would have been unreasonable for him to have ignored Divis' s prior misconduct, which prior sanctions had failed 

### to remedy. 

### See Chandler, 141 Wn. App. at 650 ( reviewing officer may 

### substitute his or herfindings forthose made bythe ALJ). Years ago, we held that (1) instead ofimposing the recommended three - day suspension, WSP could dismiss an officer who had " previously been counseled because of his attitude and behavior ";

### and (2) that consideration ofthe officer's prior discipline was not tantamount to using



### 15CPat28. 11No. 43744 - 9 -II 

### hearsay to prove the current charges because it was not admitted to prove the truth ofthe prior assertions. Zoutendyk, 27 Wn.

### App. at 72. 16 As we noted in Zoutendyk:



### Arbitrary and capricious action has been defined as willful and unreasoning action, without consideration and in disregard of facts and circumstances. 

### Where there is room for two opinions, action is not arbitrary and 

### capricious even though one may believe an erroneous conclusion has been reached. State v. Rowe, 93 Wn.2d 277, 609 P.2d 1348 ( 1980). 

### Measured by that test, we cannot conclude thatthe Board's ultimate conclusion constituted arbitrary and capricious action. 

### Zoutendyk,27 Wn.App. at 72. 

### Similarly, here, once the Trial Board found that Divis committed misconduct, it was within Chief Batiste' s discretion to decide the discipline. See RCW 43. 43. 090. And we cannot 

### say that Chief Batiste acted unfairly, arbitrarily, or capriciously in looking to Divis' s prior 

### employment and disciplinary history in determining the current discipline, rather than making this important decision in a vacuum. For example, Chief Batiste also considered other troopers' 

### reportsthat Divis' s racially charged comments were becoming more egregious andthatprevious



## 16 Zoutendyk involved a state personnel board hearing to review the dismissal of a WSP communications officer. On appeal, Zoutendyk challenged the board' s imposition of the sanction of dismissal, 

### instead of the three - day suspension the hearing examiner had recommended. 

### We rejected Zoutendyk's argument that the board had improperly admitted and considered " 

### hearsay" documents containing evidence that he " 

### had previously been counseled because of his attitude and behavior" where they had not been " admitted for truth of the assertions contained in those documents." 

### Zoutendyk,27 Wn.App. at 72.
12No. 43744 - 9 -II
attempted rehabilitative discipline and 

### diversity training had failed to correct these behaviors. 17 It was within Chief Batiste' s prerogative to decide that WSP could not tolerate this type of 

### behavior and that Divis was no longerfitto be in asupervisoryposition. III. PROPORTIONALITY Divis next argues that ( 1) under the WSP' s Administrative Investigation Manual (AIM), the Trial Board must find that the sanction is proportionate to the offense and comparable to sanctions for similar misconduct; ( 2) his demotion from sergeant to trooper was not proportionate to his offense or comparable to sanctions for others' misconduct; and ( 3) Chief 

### Batiste's refusal to compare Divis's discipline to sanctions in other cases, including those that the WSP settled, fails to meet this AIM requirement. We disagree. 

### Divis cites no controlling authority for his argument that AIM requires both the Trial Board and the WSP Chief to compare Divis' s discipline to discipline for other instances of trooper misconduct. 

### On the contrary,the legislature has clearly given sole discretion to the WSP chiefto "determine the proper disciplinary action" for charges ofmisconductthatthe Trial Board has " sustained." RCW 43.43. 090. Although AIM requires WSP to address whether the 

### 17 In his Second Final Order, ChiefBatiste emphasized: 

### While his conduct would be inexcusable for any WSP employee, it is particularly egregious coming from a person in Sergeant Divis' position of authority and responsibility. 

### By his comments he communicated intolerance, scorn, and distain sic] for his three African - American troopers.... 

### They were instances of the 

### same reprehensible behavior that Sergeant Divis had also been previously 

### disciplined for, but that disciplinary action clearly was not effective in changing his behavior. CP at 24 -

25. Chief Batiste also stated, " Sergeant Divis has a pattern of proven misconduct undeterred 

### by prior discipline, and has failed, to date, 

### to acknowledge how completely inappropriate his conduct has been, and the impact it has on subordinates." CP at 29.
13No. 43744 - 9 -II discipline is proportionate to the offense and comparable to what another employee would 

### receive, Divis fails to cite authority to show that these AIM requirements preempt the WSP chief' s discretion to impose discipline under RCW 43. 43. 090. Therefore, we do not further consider this argument. RAP 10.3( a)(6). IV. FAIRNESS 

### Finally, Divis argues that there was no just cause to demote him, based on several contentions, each ofwhich we separately address and reject. A. Investigation 

### Divis first contends that WSP did not conduct its investigation fairly, one ofthe elements of cause in WSP' s AIM. 

### Citing AIM, Divis specifically asserts that Sergeant Charles P. LeBlanc, the officer who conducted WSP' s investigation, ( 1) failed to inquire ' about the complainant' s motive or reasons for coming forward 10 months after the conduct occurred; (2) failed to determine the scope and content of destroyed handwritten notes18; ( 

### 3) relied on hearsay evidence; ( 4) failed to use open - ended questions when 

### interviewing witnesses; ( 5) failed to 

### interview any ofDivis'switnesses; and (6) failedto read Divis'sperformance reviews. ButAIM provides "[ g] uidelines" 

### only for conducting an investigation; it does not establish inviolable procedural requirements that, if not followed, would support a finding that WSP lacked just cause to sanction Divis. AR at 625. 

### 18 The Board heard evidence that the troopers who worked in Divis's detachment had made 

### contemporaneous handwritten notes reflecting whatthey had heard Divis say. Butthese troopers later lost or destroyed their handwritten notes and replaced them with typewritten statements about the content of Divis' s comments. 

### Divis contends that the troopers deliberately destroyed these notes after the investigation commenced. But he provides no support for this assertion; nor 

### does he explain why such actionwould require reversal ofChiefBatiste's Second Final Order.
14No. 43744 - 9 -II B. 

### Collective Bargaining Agreement (CBA) Divis next contends that because WSP' s unfair investigation failed to comply with the 

### CBA, the CBA terms prohibited WSP' s disciplinary action, which was unlawful and subject to reversal under RCW 34.05.570(3) 

### 19. This argumentfails.

Divis first claims that ( 1) CBA Article 19.3C requires that the " Internal Incident Report" 20 contain ' the specific allegations against the employee "' 21; ( 2) the Trial Board' s findings did not match the Internal Incident Report allegations; and (3) therefore, the Trial Board did not comply with CBA procedures. Divis is incorrect: WSP' s Internal Incident Report did contain the specific allegations against Divis, and the Trial Board' s findings did match these allegations. Although the Trial Board did not find that Divis intended certain comments as racial slurs," as alleged, it did conclude that Divis made " insensitive and negative" comments in

a racial context.22 CP at 180, 203. 

### Divis does not show how the Board's finding, which Chief 19 Washington's APA,chapter S4.05 RCW,provides, in part:

3) Review of agency orders 

### in adjudicative proceedings. The court shall grant 

### relief from an agency order in an adjudicative proceeding only if it determines that: c) 

### The agency has engaged in unlawful procedure or decision - making process, or has failed to follow a prescribed procedure. RCW 34.05. 570(3)( c). 

### 20 ARat596. 

## 21 Br.ofAppellantat33 (quotingARat596). 22The Trial Board found that Divis commented about "lazy blacktroopers" and "AuntJemima" and that Divis' s comments " included needless references to race, as well as remarks about contemplated or actual 

### disciplinary issues." CP at 198, 203. But the Trial Board declined to 

### make afinding about Divis' s intentwhen he made these comments.
15No. 43744 - 9 -II Batiste adopted ( and to which Divis does not assign error), violated the CBA. Divis also fails to 

### show why.WSP's allegedly inadequate investigation and failure to follow its recommended investigation guidelines violated the CBA or his due process rights.

Divis also contends that the Trial Board' s 

### finding that he made " insensitive and negative "23 comments violated the notice requirement underlying CBA Article 19. 3C. That the Trial Board found Divis violated a slightly different regulation ( " insensitive and negative" comments) than the one charged ( " racial slur ") does not violate his CBA Article 19.3C right to
notice of WSP' s allegations against him. CP at 180, 203. Divis was on notice ofthe facts that the Board would review, as well as the charges brought 

### by the WSP. 

### He cites no authority for the proposition that the Board violated the CBA because it found that Divis' s conduct was 

### slightly less egregious than the conductwith which he was charged. Thus, we decline to address this contention further.24 

### Divis then contends that the Internal Incident Reportfailed to identifythe complainant,as required 

### by CBA Article 19.3A, which states that the report shall contain "' the complainant' s

name and address. ' Br. of Appellant at 35 ( quoting AR at 596). The Internal Incident Report lists the " Department" as the complainant, instead of WSP. AR at 500. The Trial Board properly rejected Divis' s argument. Furthermore, (

### 1) any error was harmless because Divis was
23 CP at 203. 24 RAP 10.3( a)(6) requires a party to support its issues with legal authority. See Regan v. McLachlan, 163 Wn. 

### App. 171, 178, 257 P. 3d 1122 ( 2011) ( Court of Appeals will not address issues if party " does not provide citation to legal authority. "). Moreover, "' passing treatment of an issue ... is insufficient to meritjudicial consideration. ' 

### Joy v. 

### Dep' t ofLabor & Indus., 170 Wn.

### App. 614, 629, 285 P.3d 

### 187 ( 2012) (

### quoting West v. Thurston County, 168 Wn. App. 162, 187, 275 P. 3d 1200 (2012)), review denied, 176 Wn.2d 1021 ( 2013).
16No. 43744 - 9 -II 

### on notice ofthe disciplinary proceedings and the opposing party's identity; and (2) anytechnical deficiency was cured 

### by CBA Article 19.5, which states that "[ d] e minimis ( minor or 

### insignificant) variations from the following provisions shall not be the basis for overturning discipline or affect[

### ing] the admissibility of evidence." AR at 596. Divis also asserts that because WSP substituted itself as the complainant, without first 

### contacting the WSP Troopers Association, WSP did not comply with the strict requirements of CBA Article 19. 12. CBA Article 19. 12 requires that "[ 

### i]fthe Employer decides to substitute the 

## Agency as the complainant, the Employer agrees to contact the Association to discuss the

reasons for 

### doing so." AR at 597 - 98. Divis states that there is no evidence in the record that his employer, WSP, met this advance contact requirement. Again, Divis misconstrues the CBA requirements.

Because CBA Article 19. 12 permits WSP to " substitute [ itself] as the complainant," WSP 

### acted in accordance with AIM in so doing. AR at 598. Furthermore, as WSP correctlynotes, the WSP Troopers Association' s vice president and a union representative brought these allegations 

### against Divis; thus, the union was already on notice ofthe substitution and, consequently, WSP had no need to discuss the reasons for its substitution with the Association. This slight deviation from CBA Article 19. 12 requirements was "[ d] e minimis" and, therefore, " shall not be the basis for overturning discipline or affect[

### ing] the admissibility of evidence." AR at 596 (CBA Article 19.5).

17No. 43744 - 9 -II C. Chief Batiste — Appearance ofFairness Doctrine 

## Finally,Divis arguesthat ChiefBatiste violatedthe appearance offairness doctrine by (1) making a pre-

### hearing statement about his lack of confidence in Divis,

## 25 and (2) likelyprejudging the case by having already decided to demote Divis before the Trial Board hearing occurred. This argument also fails. 

### Chief Batiste made these statements during a December 3, 2009 hearing in a related
arbitration matter. 

### The Trial Board held its hearings in the instant disciplinary matter later, on December 7 and 9 -11, 2009, and on 

### January 21 and 22, 2010. ChiefBatiste issued his First Final Order on 

### May 7, 2010, after the arbitrator had issued his April 21, 2010 decision. 

### By the time 

### the Trial Board held its hearings and Chief Batiste issued his First Final Order, Divis likely 

## already knew about Chief Batiste's statements because Divis had been the grievant in that
arbitration in which Chief Batiste had testified. 

### Despite having an opportunity to raise his concerns about Chief Batiste' s fairness at the administrative level, before Chief Batiste entered 

### either his First or Second Final Order, Divis took no action to disqualify ChiefBatiste before he entered either order. 

### Because Divis failed to object timely to Chief Batiste's role in reviewing the Trial Board's recommendation and in issuing his First and Second Final Orders, we hold that Divis waived this objection; we thus decline to address whether Chief Batiste' s statements violate the 

## 25 Before the Trial Board's disciplinary proceedings in this case, Chief Batiste testified in a related arbitration matter between WSP and the WSP Troopers Association that he had decided 

### to transfer Divis involuntarilyto a differentWSP district andto remove Divis from asupervisory position because it was his ( Batiste' s) " belief that — based on the allegations and what' s contained in the file, that I lost trust and confidence in [ Divis' s] 

### ability to lead another detachment." Suppl. CP at 461.
18No. 43744 - 9 -II

appearance offairness doctrine. See Hill v. 

### Dep' t ofLabor & Indus., 90 Wn.2d 276, 279 - 80, 580 P.2d 636 ( 1978). We affirm the superior court' s affirmance of WSP Chief Batiste' s Second Final Order 

## demotingDivisfromsergeanttotrooper.26 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 in accordance with RCW 2.06.040, it is so ordered.

J



## 26 Because Divis is not the prevailing party on appeal and because he is not entitled to reinstatement, we denyhis requestfor attorneyfees on appeal.
19