T OF A P EALS DIVISION Li

2i1i MAY 28

ST :\TE aI.- SFr

Y

M; 8: 31

llNG ! oN

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UNPUBLISHED OPINION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 of fact 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 of misconduct, 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 of the elements of cause 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 a trooper 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 of the 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 a comment something to the effect of, `The three laziest troopers in this 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 ` open forum' management style to 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. 

2
No. 43744 -9 -II

and recommendation to Chief Batiste, who entered a two -page final order ( First Final Order), 

demoting Divis from sergeant to trooper. 

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

2

The superior court

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

vacated Chief Batiste' s demotion order because it did not comply with RCW 34.05. 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 of facts. 

2 A WSP trooper may appeal an adverse administrative action to the superior court by

apply[ ing] to the superior court ... for a writ of review to have the reasonableness

and lawfulness of the [ WSP] order inquired into and determined. 

The superior court shall review the determination of the 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 of the statute. 

3
No. 43744 -9 -II

On the contrary, the record supports WSP' s assertion that Chief Batiste did not make new

findings of fact. Rather, he merely summarized the 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 some troopers had testified that Divis had " made a statement to

that] effect," the chief was merely summarizing parts of the 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

4 The Trial Board found three of seven allegations of misconduct proven. On appeal, however, 

the superior court dismissed one of the three proven findings, leaving two " sustained" findings, 

on which Chief Batiste ultimately based his final order. CP at 21. 

4
No. 43744 -9 -II

10. 3 (a)( 6). 5

Nevertheless, our review of the 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 sergeant to trooper, ChiefBatiste improperly

relied on a prior 2006 settlement agreement that arose from Divis' s earlier acts of misconduct, 

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 of discipline 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 Proceeding Against 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 for the appellant to present argument to the court why specific findings of

fact are not supported by the evidence and to cite to the record to support that argument."). 

5
No. 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 chief could consider this information in determining the appropriate discipline. 

Divis' s challenge to Chief Batiste' s consideration of Divis' s 2006 misconduct fails. 

A. Standard of Review; Statutory Authority

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

Premera v. Kreidler, 133 Wn. App. 23, 31, 131 P. 3d 930 ( 2006)). 

6 ch. 34.05 RCW. 

7 But because Divis does not assign error to any of the Trial Board' s findings of fact, we need not

apply this substantial evidence standard here. See RAP 10. 3( g), 10.4( f). 

6
No. 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 on factual matters that are complex, technical, and close to the heart ofthe

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 of fact 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 "if the 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 for judicial relief "from an agency order in an

adjudicative proceeding ": 

a) The order, or the 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 of law; 

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 applied the law; 

e) The order is not supported by evidence that is substantial when viewed in

light of the 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 not decided all issues requiring resolution by the agency; 

g) A motion for disqualification under RCW 34. 05.425 or 34. 12. 050 was made

and was improperly denied or, if no 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 of the 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. at 647. 

7
No. 43744 -9 -II

outside the statutory authority or jurisdiction of the 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 meet any of these 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 by written 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. at 647 n.8. 

12 RCW 34.05. 570( 1)( d) provides: " The court shall grant relief only if it determines that a

person seeking judicial relief has been substantially prejudiced by the 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. 

8
No. 43744 -9 -II

misconduct. See, e.g., Zoutendyk v. 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 " if the 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 and principles, such as the APA. See Jackstadt v. Washington State Patrol, 96 Wn. 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

9
No. 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 authority to exercise the same decision making

power as the ALJ unless limited by law or by the review[ ing] officer with 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 chief s 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 decide the nature and extent of discipline for substantiated

acts of misconduct. Instead, for purposes of determining appropriate discipline, the chief may

consider evidence that exceeds the scope of the Trial Board' s findings. 

Moreover, Divis does not assign error to any of the Trial Board' s findings of fact, which

we therefore take as verities on appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699

2005). And to the extent that Chief Batiste' 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 ofEarly 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). 

10
No. 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 of inappropriate and insensitive behavior, and the fact that 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 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 25. 

It is clear from Chief Batiste' s Second Final Order that 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 her findings for those made by the ALJ). 

Years ago, we held that ( 1) instead of imposing 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 of the officer' s prior discipline was not tantamount to using

15CPat28. 

11
No. 43744 -9 -II

hearsay to prove the current charges because it was not admitted to prove the truth of the 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 that the 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' 

reports that Divis' s racially charged comments were becoming more egregious and that previous

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. 

12
No. 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 longer fit to be in a supervisory position. 

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

chief to " determine the proper disciplinary action" for charges of misconduct that the Trial Board

has " sustained." RCW 43. 43. 090. Although AIM requires WSP to address whether the

17 In his Second Final Order, Chief Batiste 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. 

13
No. 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 of which we separately address and reject. 

A. Investigation

Divis first contends that WSP did not conduct its investigation fairly, one of the 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 of Divis' s witnesses; and ( 6) failed to read Divis' s performance reviews. But AIM

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 what they had heard Divis say. But these 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 action would require reversal of Chief Batiste' s Second Final Order. 

14
No. 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 argument fails. 

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. of Appellant at 33 ( quoting AR at 596). 

22 The Trial Board found that Divis commented about " lazy black troopers" and " Aunt Jemima" 

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 a finding about Divis' s intent when he made these comments. 

15
No. 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 of the 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 conduct with which he was charged. Thus, we decline to address

this contention further.24

Divis then contends that the Internal Incident Report failed to identify the 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 merit judicial 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). 

16
No. 43744 -9 -II

on notice of the disciplinary proceedings and the opposing party' s identity; and ( 2) any technical

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 correctly notes, the

WSP Troopers Association' s vice president and a union representative brought these allegations

against Divis; thus, the union was already on notice of the 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). 

17
No. 43744 -9 -II

C. Chief Batiste — Appearance ofFairness Doctrine

Finally, Divis argues that Chief Batiste violated the appearance of fairness doctrine by ( 1) 

making a pre- hearing statement about his lack of confidence in Divis,25 and ( 2) likely prejudging

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. Chief Batiste 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 Chief Batiste 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 involuntarily to a different WSP district and to remove Divis from a supervisory

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. 

18
No. 43744 -9 -II

appearance of fairness 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

demoting Divis from sergeant to trooper.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 deny his request for attorney fees on appeal. 

19