IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ELVIRA DAVISON, No. 72463-1-1 DIVISION ONE

UNPUBLISHED OPINION <=> a>k' Respondent, fc:

STATE OF WASHINGTON DEPARTMENT OF EMPLOYMENT SECURITY, i^'t-nl' FILED: August 31, 2015 oo o~ Appellant. 

### Becker, J. —The State ofWashington appeals an order reversing an Employment Security Departmentdecision to deny Elvira Davison unemployment benefits. Because the superior courtfailed to view the administrative decision with appropriate deference, we reverse. A decision by the commissionerofthe Employment Security Department is reviewed underthe Washington Administrative Procedure Act, chapter 34.05 RCW. This court applies the act's standards directly to the administrative record. We will reverse an administrative decision if it is (1) based on an errorof law, (2) not based on substantial evidence, or (3) arbitrary or capricious. Tapperv. State Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). InAugust 2013, the Department denied Davison's application for 

### unemployment benefits. Davison appealed. An administrative lawjudge held a 

### hearing on the appeal inSeptember2013 and denied Davison relief. Davison then petitioned the commissionerofthe Departmentforfurther review. TheNo. 72463-1-1/2 

### commissioner affirmed and adopted the findings of fact and conclusions of law of the administrative lawjudge, including the conclusion thatthe evidence and 

### testimony ofthe employerwas "more logically persuasive than the claimant's." 

### According to testimony at the hearing before the administrative lawjudge, Davison worked as a part-time social workerfor a law firm of public defenders between December 2009 and May 2013. InNovember2012, Trudy Elliott, a firm employee who also served as a court appointed guardian to one ofthe firm's clients, asked Davison for help. Elliott told Davison that the client, a minor, had a bank account listing Elliottas the primary account holder. Elliott said she was 

### moving to Nevada and needed someone to take overthe primary account holder responsibilities. Elliottasked Davison ifshe would act as the primary account holder until a new guardian was appointed. Davison agreed. In May 2013, the client's newly appointed guardian told the firmthat 

### Davison had been withdrawing funds from the client's checking accountwithout permission. The administrative record shows that Davison opened a joint accountwith the minor. Italso shows that on five separate occasions between December 2012 and April2013, Davison transferred money from thejoint accountto her own personal account. Davison was discharged for violating a firm policy requiring all clientfunds to be deposited inthe firm's clienttrust

account. Davison testified that each withdrawal was made to assist the client and at the client's request. Davison explained that she would withdraw moneyfrom her 

### personal account, give it to the client, and then transfer money fromthejointNo. 72463-1-1/3
account to her personal account as a reimbursement. Davison claimed that she


### was unaware ofthe firm's trust account policy and was not given training on how to handle clientfunds. The firm, on the other hand, presented evidence that 

### Davison received a copy ofthe trust account policy contained inan employee handbook when she was hired. The commissionerfound that Davison received a copy ofthe firm's trust account policy, concluded that Davison committed misconduct, and therefore affirmed the Department's decision to deny Davison benefits. 

### The claimant's discharge precipitating conduct has been shown, by a preponderance of substantial and credible evidence of record, to have been inwillful and wanton disregard ofthe rights, title and interests of heremployer. RCW 50.04.294(1)(a). 

### Specifically, said conductwas in violation of a reasonable employer policy, which policy was known to the claimant. RCW 50.04.294(2)(f). Misconduct, as thatterm is contemplated by RCW 50.20.066(1), has been established. Davison petitioned the superiorcourtfor review. Afterfinding the administrative record contained insufficient evidence to conclude that Davison received a copy ofthe firm's trust account policy, the superior court reversed. The court made its own findings and conclusions based on Davison's testimony. According to the superior court, Davison's conduct amounted to negligence, not misconduct. II. Some ofthe Commissioner's findings offact are not supported by substantial evidence. The courtfinds: (1) that there was no evidence oftraining regarding trust account policies; (2) there was an obvious practice ofemployees handling the funds ofclients, acting as guardians, etc.; (3) no one was harmed by Ms. Davison's handling ofthe client's funds for her; and (4) Ms. Davison is not an attorney, and was presented with an emergency when she was asked to open thejoint account.No. 72463-1-1/4

III. The Commissioner's conclusions oflaw constitute an error of law inviolation ofthe Washington Administrative Procedure Act, as 

### Ms. Davison exhibited negligence not likely to cause harm; nor did she exhibit intentional or substantial disregard ofthe employer's interests. 

### The Department appeals, claiming the superiorcourterred by failing to view the commissioner's findings with appropriate deference. 

### Underthe Washington Administrative Procedure Act, agency findings of fact will be upheld ifthey are supported by evidence that is substantial when viewed against the record as a whole. Substantial evidence is evidence "in 

### sufficient quantum to persuade a fair-minded person ofthe truth ofthe declared premises." William Dickson Co. v. Puget Sound Air Pollution Control Agency. 81 Wn. App. 403, 407, 411, 914 P.2d 750 (1996). Davison attempts to escape the rigors of substantial evidence review by emphasizing redeeming facts she presented through her own testimony. She claims she is not asking this courtto reweigh the evidence, rather she is asking this courtto considerthe record as a whole. Davison's misunderstanding ofthe standard ofreview is demonstrated by her assertion that uncontested "facts" are verities on appeal. Brief ofRespondent at 7 n.1. Findings offact are verities on 

### appeal ifthey are uncontested, Tapper. 122 Wn.2d at407, but factual testimony 

### by a witness does not become a verity on appeal by virtue ofbeing unrebutted. It is undisputed thatthe employer had a policy requiring all clientfunds to 

### be placed in a trust account. The key factual finding adopted by the commissioner reads as follows: "Claimantwas given a copy ofthis policy when she was first hired."No. 72463-1-1/5 

### Substantial evidence supports the commissioner's finding that Davison

was given a copy ofthe policy. The firm's former human resource manager 

### testified that she gave Davison a copy ofthe employee manual containing the trust account policy shortly after Davison was hired and witnessed Davison sign

a checklistverifying that she received it. That checklistwas submitted as evidence. In view ofthis testimony, the superiorcourt's determination that the record contains insufficient evidence to prove that Davison received a copy ofthe policy cannot be sustained. The Department contends that based upon the finding that Davison received a copy ofthe policy, the commissionercorrectly concluded that Davison

was discharged for misconduct. RCW 50.04.294(2) identifies several acts ofper se misconduct. These acts are considered misconduct per se because they "signify a willful or wanton disregard for the rights, title, and interests ofthe employer." RCW 50.04.294(2). Itis misconduct per se to violate a company rule "ifthe rule is reasonable and if the claimant knew or should have known ofthe existence ofthe rule." RCW 

### 50.04.294(2)(f)- A regulation states thatthe department "will find thatyou knew
or should have known about a company rule if. . . you were provided a copy or a summary ofthe rule in writing." WAC 192-150-210(5). The commissioner concluded that Davison committed misconduct because the trust account policy was reasonable, Davison knew about it, and her failure to follow it"showed deliberate disregard" for her employer's interests.No. 72463-1-1/6 According to Davison, her violation ofthe trust account policy was not willful. When determining whether an employee's actions were "willful," the focus is not on whetherthe employee intended to harm the employer. Rather, an 

### employee "willfully" commits misconduct ifshe "deliberately or knowingly" violates a reasonable employmentpolicy. WAC 192-150-205(1); Daniels v. Dep't ofEmp'tSec. 168 Wn. App. 721, 728, 281 P.3d 310, review denied, 175Wn.2d 1028(2012). The commissioner correctly concluded that Davison's violation was willful because the policy was known to her. Davison contends the firm's trust account policy, which is predicated upon 

### the Washington Rules ofProfessional Conduct, is unreasonable when applied to
a nonlawyer like herself. We disagree. 

### Acompany policy is reasonable if it is related to an employee'sjob duties,

a normal business requirement or practice for an occupation or industry, or is required by law or regulation. WAC 192-150-210(4). Davison worked as a social 

### worker in a law office, a setting in which lawyers may be held accountable forthe conduct ofnonlawyer employees. RPC 5.3. Itwas reasonable for the firm to 

### extend its trust account policies to all staff, notjust lawyers. Davison emphasizes that she was not given training aboutwhy the rule was important, but the commissionerwas not required to acceptthat as an excuse for not following the 

### rule. The rule is simple and easy to understand without extensive explanation.No. 72463-1-1/7
Davison contends the commissioner should have concluded that her 

### conductwas the result ofinadvertence or ordinary negligence, not disqualifying misconduct. By statute, "misconduct" does not include: 

### (a) Inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity; 

### (b) Inadvertence or ordinary negligence inisolated instances; or 

### (c) Good faith errors injudgmentor discretion. RCW 50.04.294(3)(a)-(c). 

### Davison cites two cases in which the commissioner allowed a discharged employee to receive unemployment benefits despite the employee having failed to follow the employer's directions. The first is Kirbvv. Employment Security Department. 179 Wn. App. 834, 320 P.3d 123, review denied, 181 Wn.2d 1004 (2014).In Kirbv, the employee failed to comply with the employer's unreasonable request because she was legitimately confused by a break in communication that the commissioner attributed to the employer. Kirbv, 179Wn. App. at 845-50. Davison, by contrast, failed to complywith a reasonable company rule, not an employer's unreasonable directions. Moreover, Davison does not claim she violated the policy because she was confused—she claims any violation was inadvertentbecause she had no knowledge ofthe policy or its requirements. As discussed above, however, that argument is foreclosed by the commissioner's factual finding that she did know ofthe policy. Moreover, Davison's violation was
not an isolated instance of misconduct. She transferred the client's funds into her own account on five separate occasions over several months without seekingNo. 72463-1-1/8 

### advice aboutwhetheritwas an acceptable way to handle a client's funds. Contraryto the superiorcourt's finding, no emergencyjustified Davison's actions. The second case isAlbertson's, Inc. v. EmploymentSecurity Department. 102 Wn. App. 29, 15 P.3d (2000). InAlbertson's, the grocer alleged that its former employee committed misconductbypurchasing out-of-date meat at a discounted price in violation of a company policy. The commissionerfound that 

### Albertson's written policies regarding out-of-date meat sales to employees "were at best unclear, and were inconsistentwith company practice." Albertson's, 102 

### Wn. App. at 42. Inthe presentcase, the policy is clear. Itprovides: "Any time

an .. . employee receives monies from a client or on behalfof a client, the funds must be deposited inthe clienttrust account." Italso states, "the Controller is to 

### receive all client funds" and describes the firm's process formaking deposits and withdrawals. And unlike in Albertson's, here the commissioner did not find an inconsistent company practice. Thejudgmentofthe superiorcourt is reversed, and the commissioner's ruling is reinstated. Because we reinstate the decision ofthe commissioner, 

### Davison is not entitled to an award ofattorney fees. Reversed.

WE CONCUR: 

# ••X> ,sj~J- ^^^W/!^CJC

8