### FILED MARCH 15, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE WASHINGTON COUNTIES RISK POOL, apublic entity, Respondent,



### v. TAMARA MARIE CORTER, a married individual, STEVE GROSECLOSE, an individual, and DOUGLAS COUNTY, a municipal corporation, Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 32769-8-111

UNPUBLISHED OPINION

SIDDOWAY, C.J. -AfterTamaraMarie Corterrecovered over $120,000 in damages, fees, and costs in a federal civil rights action against her ex-husband, Douglas County SheriffsDetective Steve Groseclose, the two parties entered into an assignment ofMr. Groseclose's rights against the county and the Washington Counties RiskPool (Risk Pool), and a qualified covenant notto execute under whichMs. Corterwould first pursue recovery ofherjudgments from the county and the Risk Pool. Inresolving this declaratoryjudgmentaction broughtby the Risk Pool as well as
cross claims asserted by the county, Ms. Corter and Mr. Groseclose, the superior court granted summaryjudgmentto the Risk Pool and the county, declaring that neither owed a duty to indemnify Mr. Groseclose against the federaljudgments.No. 32769-8-III Wash. Counties RiskPoolv. Corter

Ms. Corter1argues on appeal that the superior court erred because the county waived its right to deny a duty to indemnify Mr. Groseclose and because the federal court's conclusion that Mr. Groseclose was acting "under coloroflaw" strongly supports

a conclusion that he was acting within the scope ofhis official duties within the meaning ofthe local government indemnification statute, the county's indemnification ordinance, and the Risk Pool'sjoint self-insured liability policy. The evidence presented was insufficient as a matter oflaw to support any waiver by the county. 

### It supports the superior court's conclusion as a matter oflawthat Mr. Groseclose was not acting within the scope ofhis official duties. We affirm. FACTS AND PROCEDURAL BACKGROUND In 2009, Steve Groseclose, a detective with the Douglas County Sheriffs Department, used his access to Spillman, the law enforcement database, to view an incidentreport involving his ex-wife, Tamara Corter. Mr. Groseclose and Ms. Corterhad two sons from their marriage and Ms. Corterhadprimary custody ofbothboys. Mr. Groseclose used information obtained from the incident report, including information about Ms. Corter's health, to support a guardianship petition. Mr. Groseclose had no work-related reason to viewthe incident report.

I While both Ms. Corter and Mr. Groseclose appeal, for simplicity's sake we will treat Ms. Corter, the assignee ofthe claims against the RiskPool and the county, as the sole appellant hereafter. 2No. 32769-8-III Wash. Counties RiskPoolv. Corter

In March 2012, Ms. Corter filed suit against Mr. Groseclose and Douglas County under 42 U.S.C. 

### § 1983, alleging that acting under color ofstate law, her ex-husband had violated her constitutional right to privacy. She alleged that the county failed to properly train or supervise Mr. Groseclose and that it ratified his actions. The county is a member ofthe Washington Counties Risk Pool and is insured through the Risk Pool'sjoint self-insured liability policy. In addition to providing liability insurance to member counties, the policy insures a county'spast and present employees, elected and appointed officials, and volunteers against liability for acts or omissions "while acting or in good faith purporting to act within the scope oftheir official duties for the member county or on its behalf," subjectto and conditioned upon the county's authorization ofindemnification ofsuchpersons in accordance with RCW 4.96.041. Clerk's Papers (CP) at 230. Risk Pool bylaws provide that when the Risk Pool receives notice ofa claim by an entity or individual arguably insured under the policy, it may provide legal counsel for defense ofthe claim and at the same time reserve its right to later determine coverage. If the Risk Pool intends to defend under a reservation ofrights, it must provide the affected party with a concise statement ofreasons for its reservation. Ifa final determination of coverage cannotbe made until the facts are determined by a court oflaw, the Risk Pool's claims manager is required to make a final determination ofcoverage within a reasonable time after the final decision ofthe court. 3No. 32769-8-III Wash. Counties RiskPoolv. Corter

In April 2012, shortly after Ms. Corter filed her complaint, the Risk Pool's claims manager notified Mr. Groseclose that the Risk Pool wouldprovide a legal defense but

was reserving its right to refuse to indemnify him against anyjudgment entered against him. Its notice informed Mr. Groseclose that it would decline to pay ajudgment against him "ifit is found that you were not acting in good faith on behalfofDouglas County at the time ofthe alleged conduct." CP at 1 77. In September 2013, the federal district court dismissed Ms. Corter's claims against the county. Following that dismissal, the Risk Pool notified Mr. Groseclose that it would continue to provide him a defense notwithstanding dismissal ofthe claims against the county, but that the defense remained subjectto the original reservation ofrights. Ajurytrial in the federal action in late October 2013 resulted in ajury verdict that Mr. Groseclose, acting under color oflaw, violated Ms. Corter's constitutional right to privacy and that Ms. Corterhad suffered damages of$60,000. With fees and costs, Ms. Corterultimately obtainedjudgments totaling $121,025.50. On November 6, 2013, the Risk Pool notified Mr. Groseclose .ofits decision to refuse to pay the initialjudgment entered against him on the basis that "atthe time you accessed the Spillman System and obtained the constitutionally protected confidential information regarding Ms. Corter, you were not acting in good faith on behalfofDouglas County." CP at 274. The letter explained Mr. Groseclose's right to appeal that determination, cited to applicable

4No. 32769-8-III Wash. Counties RiskPool v. Corter provisions ofthe Risk Pool bylaws, and informed Mr. Groseclose that he had 30 days from the date ofthe letterto appeal. Twenty-nine days later, Mr. Groseclose and Ms. Corter entered into an assignment ofMr. Groseclose's rights against the county and the Risk Pool in exchange for Ms. Corter's qualified covenant not to execute herjudgments against Mr. Groseclose "unless and until all possible avenues ofsettlement, litigation, and appeals against [the county and/or the Risk Pool/insurers affiliated with the county and its agents] have been completely exhausted and have not resulted in ajudgment or settlement against those parties." CP at 278. In January 2014, the Risk Pool filed a declaratoryjudgment action against Mr. Groseclose, Ms. Corter and the county seeking a declaration that it had no duty to indemnify Mr. Groseclose for thejudgments entered against him in Ms. Corter's action and that it had not breached a duty owed any ofthe defendants. It asserted, among other matters, that neither Mr. Groseclose nor Ms. Corterhad appealed its November 6, 2013 decision denying coverage. The county answered the complaint and filed a cross claim against Mr. Groseclose and Ms. Corter seeking a declaration that it owed no duty to indemnify Mr. Groseclose for thejudgments. Mr. Groseclose and Ms. Corter filed cross claims against the county, seeking a declaration that the county was liable to pay the federaljudgments.



### 5No. 32769-8-III Wash. Counties RiskPoolv. Corter

All parties eventually moved for summaryjudgment. The court granted the motions filed by the Risk Pool and the county, ruling that neither had a duty to indemnify Mr. Groseclose against the federal courtjudgments. Itdenied Ms. Corter's and Mr. Groseclose's cross motions for summaryjudgment and dismissed their cross claim with prejudice. Ms. Corter and Mr. Groseclose appeal. ANALYSIS Ms. Corter argues that the trial court's summaryjudgmentrulings were in error for several reasons. The issues that prove dispositive on appeal are (1) whether the county waived its right to deny indemnification to Mr. Groseclose, and (2) whether, as a matter oflaw, the actions for which Mr. Groseclose was held liable were not within the scope of his official duties. We address the two issues in tum. I. Asa matter of law, the county didnotwaive its right to deny indemnification to Mr. Groseclose We begin with the standard ofreview. When reviewing an order for summary judgment, we engage in the same inquiry as the trial court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summaryjudgment is proper when a moving party shows there is "no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter oflaw." CR 56(c). All facts and inferences will be construed in the light most favorable to the nonmoving party. Jones v. AllstateIns. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summaryjudgment is appropriate "only if,

6No. 32769-8-111 Wash. Counties RiskPoolv. Corter

from all the evidence, a reasonable person could reach only one conclusion." Folsom, 135 Wn.2d at 663. By statute, local governments may adopt legislation under which theirpast or present officers, employees, orvolunteers who are sued for damages arising from acts or omissions "while performing or in good faith purporting to perform his or her official duties" may askthe government entity to defend them at government expense. RCW 4.96.041(1). Ifa past orpresent officer, employee orvolunteer is represented at government expensepursuantto such local legislation and the court hearing the action finds thatthe represented defendant "was acting withinthe scope ofhis orher official duties" and enters ajudgmentagainst him orher, then the statute provides thatthe judgment creditor shall seek satisfaction for nonpunitive damages only from the local governmental entity. RCW4.96.041(4). BeforeMs. Corter's lawsuit, Douglas County had adopted an indemnification ordinance as permitted by RCW 4.96.041, codified in chapter 2.90 ofthe Douglas County Code (DCC). The following sections are relevant to Ms. Corter's argument on appeal: 2.90.020 Request for defense ofclaim. An officer, employee orvolunteermayrequestthat Douglas County defend and paythe necessary expenses ofdefending any claim arising from acts or omissions while performing or in good faith purportingtoperform his or her official duties. Suchrequest shall be in writing and signed bythe person orhis or her attorney, shall be filed with the board ofcounty commissioners, and shall include a summary ofthe claim. Ifthe claim is

7No. 32769-8-III Wash. Counties RiskPool v. Corter pending, then a copy ofthe written claim, demand or lawsuit shall be attached to the request. 2.90.030 Authorizing defense ofclaim. A. Douglas County shall grant the request to defend a claim and pay the necessary expenses ofdefe~se upon a determination thatthe claim is based upon an alleged act or omission ofthe officer, employee orvolunteer which was, or in good faith purported to be, within the scope ofhis orher official duties. Such determination shall be made as follows: 1. By a majority vote ofa quorum ofthe board ofcounty commissioners consisting ofmembers not named as a party to such claim; or 2. Ifa quorum ofunnamed members ofthe board is not possible, then by a written opinion oflegal counsel, otherthan the prosecuting attorney, as selectedby the board. Such legal counsel shall notbe an attorney or member ofa law firm who has performed services withinthe past three years for Douglas County. B. Douglas County shall not defend orpay for the expense ofdefending a claim against an officer, employee orvolunteerbased upon or which alleges unlawfully obtainingpersonal benefits while acting in his orher official capacity. C. Douglas County shall notpay any expenses ofdefending a claim which are paid or incurred by an officer, employee orvolunteerpriorto receipt ofa properwritten request by the board ofcounty commissioners. Douglas County shall notpay any expenses ofdefending a claim in advance ofservices beingrendered or costs being incurred. 2.90.050 Payment ofnonpunitive monetary judgment. When Douglas County has defended a claim against an officer, employee or volunteerpursuantto this chapter and the courthearing the action has found that the officer, employee or volunteer was acting within the scope of his orher official duties, Douglas County shall pay any final nonpunitive monetaryjudgment entered on such claim, after termination ofall appellate 8No. 32769-8-III Wash. Counties RiskPoolv. Corter review, ifany. Pursuantto RCW 4.96.041, ajudgment creditor shall seek satisfaction for a nonpunitive monetaryjudgment only from Douglas County and ajudgment for nonpunitive damages shall not become a lien upon any property ofthe officer, employee or volunteer. (Citations omitted.) Ms. Corter's cross claim against the county was predicated on her allegations that Mr. Groseclose "was represented at the expense ofDouglas County under RCW 4.96.041(1)" and that the county was in violation ofa "requirement in RCW 4.96.041(4)" that it pay the federaljudgments. CP at 61-62 (Cross claim at 

### ,i,i 2, 6). The county denied the allegations contained in paragraphs 2 and 6 ofMs. Corter's cross claim, contending in response thatMr. Groseclose "was represented in the case ofCorter v. Douglas County, etal., by an attorney selected and paid for by the PlaintiffWashington Counties Risk Pool, and that Douglas County paid a deductible to the Plaintiff, which includes all attorney's fees and other defense costs incurred by the Pool up to the County's deductible limit." CP at 54. The construction ofa statute or local legislationpresents a question oflaw, which

we review de novo. Colby v. Yakima County, 133 Wn. App. 386, 389, 136 P.3d 131 (2006) (citingEugster v. City of Spokane, 115 Wn. App. 740, 745, 63 P.3d 841 (2003)). "We must construe legislative enactments to carry out their manifest intent." Id. (quoting Eugster, 115 Wn. App. at 745). Ifa statute's meaning is plain on its face, we give effect to that plain meaning as the expression ofwhat was intended. Trac/one Wireless, Inc. v.

9No. 32769-8-111 Wash. Counties RiskPoolv. Corter Dep'tofRevenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010). "Plain meaning 'is to be discerned from the ordinary meaning ofthe language at issue, the context ofthe statute in which that provision is found, related provisions, and the statutory scheme as a whole.'" Lake v. WoodcreekHomeownersAss 'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009). Ms. Corter did not demonstrate belowthat Mr. Groseclose ever submitted a request that the county authorize defense ofthe action against him orthat the county commissioners ever approved the county's defense ofher ex-husband. She argues that a request for authorization ofa county defense is optional, pointing to the operative language "may request the local government entity to authorize the defense" in RCW 4.96.041(1) (emphasis added). But when the statute is read as a whole, that language merely recognizes that an employee, official or volunteer might notbe interested in a government-provided defense. Ifan employee does want to be defended at government expense, DCC 2.90.030(C) mandates not only that the employee make a request, but that he or she make it in writing, providing that the county "shall not pay any expenses of defending a claim which are paid or incurred by an officer, employee or volunteer prior to receipt ofa proper written request by the board ofcounty commissioners." In this case, an undisputed declaration ofSusan Looker, the Risk Pool claims manager, states that it was the Risk Pool, not the county, that appointed Mr. Groseclose's lawyer to defend him at theRiskPool's expense. CP at 200. Ms. Corter has failed to 10No. 32769-8-III Wash. Counties RiskPoolv. Corter respond with any evidence that the Douglas County Commissioners made the requisite finding that Mr. Groseclose was, or in good faith purported to be acting within the scope ofhis official duties orthat it authorized him to be represented at county expense. She has demonstrated only that the county admits paying to the Risk Pool an apparently unallocated $25,000 deductible. Ms. Corter arg\leS that the county's payment ofthe $25,000 deductible operated as, or was some evidence of, legislative approval ofindemnification ofher ex-husband's legal expenses. And she argues that unlike the RiskPool'sjoint self-insured liability policy, which permits deferral ofa coverage decision, RCW 4.96.041 and the county's ordinance create a "thumbs up" or "thumbs down" decision making process under which, once the legislative authority makes the determination that an employee's acts or omissions "were, or in good faith purported to be, within the scope ofhis or her official duties" and represents the employee at county expense, it is boundto indemnify the employee from all but punitive damages by RCW 4.96.041(4) if"the courthearing the action [finds] that the officer, employee, orvolunteer was acting within the scope of his official duties." RCW 4.96.041(2), (4). On this latter point (that the county can be bound by its initial decision, depending on later events) she is correct. But she is not correct in contending that the county could waive the approval process. Bythe clear terms ofRCW4.96.041 and the county code, it cannot.

11No. 32769-8-111 Wash. Counties RiskPoolv. Corter

To establish that Mr. Groseclose was represented at the expense ofthe county "under RCW 4.96.041(1)," which RCW 4.96.041(4) requires, Ms. Cortermust trace the representation to the required written request. RCW 4.96.041(1) (emphasis added). Even

more importantly, she must show that the local legislative authority granted the request using a procedure created by ordinance orresolution, having found that "the acts or omissions ofthe officer, employee, or volunteer were, or in good faith purported to be, within the scope ofhis orher official duties." RCW4.96.041(2). Underthe county code, where no Douglas County commissioner was named a party to the claim, a determination by a majority vote ofa quorum ofthe board ofcounty commissioners was required. DCC 2.90.030(A)(l).2 None is demonstrated. The county's payment ofthe $25,000 deductible is a red herring. Even ifthere

were evidence that the deductible was regarded by the Risk Pool orthe county as attributable in partto Mr. Groseclose's defense, that would only showthat the county violated DCC 2.90.030(C) by making apayment ofdefense costs before receiving a written request for a defense and that it violated RCW 4.96.041 and DCC 2.90.030(A) by making such a paymentbefore determining that Mr. Groseclose had acted, or in good faith purported to act, within the scope ofhis official duties. Even ifit failed to follow

2 This assumes that since no member ofthe board ofcounty commissioners was named aparty to Ms. Corter's federal lawsuit, a quorum ofthe unnamed commissioners would have been "possible"under DCC 2.90.030(A). 12No. 32769-8-111 Wash. Counties RiskPoolv. Corter

the statutorily and code-requiredprocedures, its failure would not bind it to indemnify Mr. Groseclose. II. Asa matter of law, thefederal action didnotdetermine thatMr. Groseclose was acting within the scope of his officialduties The county does not contend that an employee like Mr. Groseclose could not seek indemnification belatedly, but there is a second reason why, as a matter oflaw, the trial court properly decided the parties' motions for summaryjudgment: the federal action did not determine that Mr. Groseclose was acting within the scope ofhis official duties. A second statutory requirement before the county is bound to answer for a judgment against Mr. Groseclose is that "the court hearing the action has found that the officer, employee, orvolunteer was acting within the scope ofhis orher official duties." RCW 4.96.041(4). Theparties sometimes argue this issue on appeal as ifwe are supposed to analyze the "scope ofofficial duty" issue ourselves, but both the statute and the county code are concerned with what "the court hearing the action has found." 

### Id.; DCC 2.90.050. To determine what the federal court found in this case, we review the verdict and the pertinentjury instructions.3 "Whatthe federal court found" is an issue of law that we review de novo.4

3 We could also review any final rulings by the court on issues to which Mr. Groseclose was a party. The only rulings by the court that have been drawn to our attention on appeal addressed disputes between Ms. Corter and the county, however. 4 Given the nature ofthis inquiry, the parties' dispute over whether collateral 13No. 32769-8-111 Wash. CountiesRiskPoolv. Corter

The relevant record comprises twojury instructions and the verdict form. The court gave the followingjury instruction on acting "under color oflaw":

· A person acts "under color oflaw" when the person acts orpurports to act 1) in the performance ofofficial duties under any state, county, or municipal law, ordinance, orregulation; 2) in some meaningful way either to his governmental status orto the performance ofhis duties; or 3) under pretense ofhis governmental status. CP at 137. Another instruction ofthe court informed thejurythat ifit found that Mr. Groseclose had acted under color oflaw, then Ms. Corter must also establish several other facts by a preponderance ofthe evidence, including that

and [t]he Defendant had no legitimate law enforcementpurpose to access [the] incidentreportpertaining to the Plaintiff;

[t]here was no public need for the Defendant's access to, and disclosure of, the sensitivepersonal medical information regarding the Plaintiff. CP at 138-39. Thejury completed the special verdict form by answering yes to the question: Did the Defendant act under color oflaw when he accessed the March 30, 2009 law enforcement incidentreportvia Spillman?

estoppel is an issue on appeal misses the mark. Whatthe federal court found is a matter ofdirect concern underthe statute and code; whenwe look to whathappened in the federal court, we are not examiningthe federal proceedings for their issuepreclusive effect. 14No. 32769-8-III Wash. Counties RiskPoolv. Corter

CP at 149. 

### It also answered yes to the question: Didthe Defendant's act(s) deprive the Plaintiffofherright to informational privacy underthe U.S. Constitution? CP at 150. Ms. Corterpoints to the fact that the federaljuryreturned a special verdict finding that Mr. Groseclose acted "under color oflaw" and argues that whether someone was acting "undercolor oflaw" is synonymous with whetherhe or she "was acting within the scope ofhis orher official duties." The county and Risk Pool disagree, and argue that "acting within the scope ofhis

orher official duties" should be construed as synonymous to "acting within the scope of employment." The definition of"scope ofemployment" provided by the Restatement (Third) of Agencyhas been held to reflect the meaning given that term by Washington courts:"An employee acts within the scope ofemploymentwhenperformingwork assigned by the employer or engaging in a course ofconduct subject to the employer's control. An employee's act is not within the scope of employment when it occurs within an independent course ofconduct not intended by the employee to serve any purpose ofthe employer." Melin-Schilling v. Imm, 149 Wn. App. 588, 592, 205 P.3d 905 (2009) (quoting RESTATEMENT (THIRD) OF AGENCY§ 7.07(2) (AM. LAW INST. 2006)). What limited case law exists under chapter 4.96 RCW and analogous statutes supports the position ofthe county and Risk Pool. Whatcom County v. State, 99 Wn.

15No. 32769-8-111 Wash. Counties RiskPool v. Corter App. 237, 993 P.2d 273 (2000) addressed whether an employee's acts or omissions fell within the scope ofhis official duties as that term is used in chapter4.92 RCW, a statute dealing with indemnification ofState employees, officials, and volunteers. Chapter4.92 RCW is identically framed in relevant respects to chapter 4.96 RCW. 5 The case involved

a deputy prosecutor sued for negligence and violation ofcivil rights after he advised a corrections officer, in error, that an offender being held on bail for felony violation ofa protection order was eligible for release. Within days, the offender murdered the party protected by the earlier violated order. The county brought a declaratoryjudgment action seeking a declaration that the State, not the county, was required to provide a defense to the deputy prosecutor. Part ofthe analysis on appeal involved defining the deputy prosecutor's functions under state law, in order to determine whether he was acting for the state orthe county in performing the function ofadvising the corrections officer on the offender's right to release. Whatcom, 99 Wn. App. at 243. In holding that the State was required to provide

5 Key provisions in the two chapters are parallel. E.g., RCW 4.92.060 (state defense ofan action for damages may be requested by a state official, employee, or volunteer "arising from acts or omissions while performing, or in good faith purporting to perform, official duties"); .070 (the request shall be granted ifthe attorney general finds that the requestor's "acts or omissions were, or were purported to be in good faith, within the scope ofthat person's official duties"); and .075 (when representation has been authorized; the body presiding overthe action or proceedinghas found that the officer, employee, or volunteer was acting within the scope ofhis orher official duties; and a judgmenthas been entered against him or her pursuantto chapter4.92 RCW or 42 U.S.C. § 1981 et seq.; then thejudgment creditor shall seek satisfaction only from the state). 16No. 32769-8-111 Wash. Counties RiskPoolv. Corter

a defense under RCW 4.96.060 and .070, the court concluded that the prosecutor's advice

was sought by the corrections officerbecause ofthe prosecutor's familiarity with the offender's case, with the result that he was not merely advising a county official but was engaged in action "directly related to his prosecution of[the offender] under state law." Id. at 246-47. The court observed, "It is not necessary that the acts or omissions at issue be part ofthe 'core' prosecutorial function. It is sufficientthat they be directly related to the prosecutor's role in prosecuting violations ofstate law." Id. The court's analysis was essentially an analysis ofthe prosecutor's scope ofemployment. In Hardesty v. Stenchever, 82 Wn. App. 253, 917 P.2d 577 (1996), Division One ofour courthad occasion to address the meaning of"performing

... official duties" as used in RCW 4.92.060 and .075 in the course ofdeciding whether a state employee was entitled to the shield ofthe notice ofclaim statute, RCW 4.92.210(1). The plaintiff, Ms. Hardesty, had commenced an action for medical malpractice arising from her care at the University ofWashington Medical Center. She failed to follow the procedural requirements ofthe notice ofclaim statute and as a result, the trial court dismissed her claims against the State and the medical center. But it denied the request ofthe treating physician, Dr. Stenchever-a State employee-fordismissal ofthe claim asserted against him. On appeal, Dr. Stenchever argued that the actions alleged in the suit were performed within the scope ofhis official duties as a state employee, with the result that 17No. 32769-8-III Wash. Counties RiskPool v. Corter chapter4.92 RCW governed the suit against himjust as it governed the suit against the State and the medical center. Ms. Hardesty conceded that the doctor's complained-of acts and omissions wereperformed "entirely within the scope of[Dr. Stenchever's] employment at the UW"but she argued (as Ms. Corter argues here) that "actions taken within aperson's 'scope ofemployment' are not tantamount to actions taken within the scope ofthat person's 'official duties.'" Id. at 261. The court rejected her argument, holding that as a physician employed by the state, "treatingpatients is [Dr. Stenchever's] 'official' duty. He has no others." Id. Although involving a different context, then, Hardesty explicitly supports the county's and Risk Pool's argument that we should construe "scope ofofficial duties" to mean "scope ofemployment." Ms. Corter nonetheless argues thatLaMon v. City ofWestport, 22 Wn. App. 215, 588 P.2d 1205 (1978) supports her argumentthat the phrase "scope ofofficial duties" should be construed, instead, as having a meaning similarto "under color oflaw." The plaintiffs, Mr. and Ms. LaMon, challenged the city ofWestport's decision to indemnify its chiefofpolice for defense costs incurred in an action the'LaMons had commenced against him in federal court, in which they had claimedthat the police chiefrefused to provide them police protection in violation oftheirright to equal protection. Ms. Corter focuses on the appellate court's discussion in LaMon ofwhy it refused to consider evidence that, after the LaMons' challenge to the city's indemnification decision was resolved in the trial court, the federal court in the underlying action found 18No. 32769-8-III Wash. Counties RiskPoolv. Corter liability and awarded compensationto the LaMons. Id. at 220. One reason offered by the appellate court for refusing to consider this new evidence was that the federaljudge's finding would not render the city's indemnification ofthe police chiefillegal: Plaintiffs admit in this petition that the United States District Court found that the police chiefwas acting under color ofstate law and his office when he engaged in the activity that led that court to find liability. As we have held above, the City ofWestport has the powerto indemnify its officials and employees for attorney fees incurred in suits resulting from an action or failure to act within the scope ofthe employee's or official's duties. The existence ofthe federaljudgmentthus does not per se renderthe action of the city council in indemnifying the police chiefarbitrary or capricious. Id. In addition to "does not per se render the action ofthe city council

... arbitrary or capricious" being less than clear, the decision provides slim support for Ms. Corter for the additional reason that analysis elsewhere in the opinion casts doubt on whether the LaMon courthad the breadth of"color oflaw" in the § 1983 context squarely in mind. After noting that the police chiefmerely omitted to providepolice protection, the court stated,Nothing suggests that the actions ofthe police chiefwere outside the scope ofhis official duties. Certainly hadthe czty been a defendant in this action, it couldnothave escapedliability on the basis that thepolice chief was actingoutside the scope of his duties. LaMon, 22 Wn. App. at 218-19 (emphasis added). In other words, the LaMon court equated "scope ofofficial duties" with "scope ofemployment" and actions giving rise to respondeat superior liability.

19No. 32769-8-III Wash. Counties RiskPoolv. Corter

Even more persuasivethan this limited case law is the manifest intent ofRCW 4.96.041 and the county codeprovisions when read as a whole-an intent markedly different from that behind the scope of"color oflaw" employed in 42 U.S.C. § 1983. By providing in RCW 4.96.041(2) that local governments may only authorize payment of legal defense costs for those officers, employees, and volunteers who are "performing or in good faith purporting to perform [their] official duties," RCW 4.96.041(1), the legislature clearly did not intend to allow local governments to pay the defense costs of rogue employees who abuse their authority to take action that does not serve any purpose ofthe local government. The statutory limitation in RCW 4.96.041(4) that a local government is liable for ajudgment only when the defendant is found in the underlying action to have been "acting within the scope of [their] official duties" is likewise reasonably read to reflect a legislative intentthat local governments not payjudgments imposed againstrogue actors. By contrast, the "undercolor oflaw" standard of42 U.S.C. 

### § 1983 is intendedto provide broad redress for civil rights violations and to include a remedy where an individual acting outside the scope ofthe duties ofhis orher office inflicts damage through an abuse ofstate authority. As illustrated by thejury instructions given in Ms. Carter's federal lawsuit against her ex-husband, "under color oflaw" can include acts while purporting in bad faith to perform official duties, and when acting under "pretense of

... governmental status." CP at 137. Itcan include actions that are prohibited by an 20No. 32769-8-111 Wash. Counties RiskPoolv. Corter employee's government employer but are made possible by virtue ofauthority thatthe employee abuses. McDade v. West, 223 F.3d 1135 (9th Cir. 2000) is illustrative, and factually similarto this case. Ms. West, one ofthe defendants, was an employee ofthe county's district attorney and used her access to the county's database to obtain confidential information about her husband's ex-wife that she provided to her husband, who was also named a defendant. In holding that Ms. West's actions were under color oflaw despite being a violation ofcounty policy, the Ninth Circuit quotedDang Vang v. VangXiongX Toyed, 944 F.2d 476 (9th Cir. 1991): "[A]ctions taken under color ofstate law must be related to the state authority conferred on the actor, even though the actions are not actually permitted by the authority." McDade, 223 F.3d at 1141 (alteration in original) (quotingDang Vang, 944 F.2d at 480). After the Ninth Circuit determined that Ms. West's actions were under color of law and remanded, Ms. McDade and the Wests entered into a settlement agreement under which-as in this case-Ms. West assigned to Ms. McDade any claim that she had against her county employer for indemnification. When the district court entered judgment, it concluded that the county was not obliged to indemnify West. McDade v. West, 60 Fed. App'x 146, 147 (9th Cir. 2003) (unpublished opinion). While California law controlled whether the county was obligated to indemnify Ms. West and, unlike RCW 4.96.041, explicitly conditioned indemnification on a "'scope ofemployment'" 21No. 32769-8-111 Wash. Counties RiskPoolv. Corter standard, see id. (quoting CAL. Gov'TCODE§ 825(a)), we reach the same result given

our construction of"scope ofofficial duties" under RCW4.96.041(4). In orderto find Mr. Groseclose liable in the underlying federal action, thejuryhad to have found under the court's instruction 9Athat Mr. Groseclose "hadno legitimate law enforcementpurpose to access [the] incident report pertaining to [Ms. Corter]" and that "there was nopublic need for [Mr. Groseclose's] access to, and disclosure of, the sensitive personal medical information regarding [Ms. Corter]." CP at 138-39. It therefore found that he was not acting within the scope ofhis official duties within the meaning ofRCW4.96.041(4). Neitherthe county nor the Risk Pool are liable to indemnify him against thejudgments. Having resolved the appeal on this basis, we need not reach the other issues raised by Ms. Corter. Attorney fees The county requests an award ofcosts and fees pursuant to RAP 18.9(a) and RCW 4.84.185 on the basis thatthe appeal is frivolous. An appeal is frivolous ifit presents no debatable issues on which reasonable minds could differ and is so lacking in merit that there is no possibility ofreversal. In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). A civil appellant has a right to appeal under RAP 2.2, and all doubts as to whether the appeal is frivolous should be resolved in favor ofthe appellant. See Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).

22No. 32769-8-III Wash. Counties RiskPoolv. Corter

The appeal presents a case offirst impression and the countypaid an unallocated deductible without ever having occasion to inform Mr. Groseclose that it disclaimed liability for any futurejudgment. While it was Mr. Groseclose's duty to seek a county defense and indemnification-notthe county's duty to explain his rights-we nonetheless decline to find Ms. Corter's appeal frivolous. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, J. 

## j

23