Appeal from Superior Court of Cowlitz County. Docket No: 96-2-00260-8. Date filed: 03/29/96. Judge signing: Hon. Randolph Furman. Judgment Date: 3/29/96. Oral Argument Date: 10/23/96.
As Corrected January 31, 1997.
Authored by Barbara A. Madsen. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders.
The opinion of the court was delivered by: Madsen
MADSEN, J. -- This case involves the interplay between a provision of the public disclosure act, RCW 42.17.295, and a provision of the state civil service law, RCW 41.06.450(1)(a), and whether these provisions provide an exemption from disclosure a State Patrol report investigating citizen complaints regarding the City of Kalama's police chief. This court concludes that RCW 42.17.295 and RCW 41.06.450(1)(a) do not create an exemption in this case and reverses the trial court order denying disclosure.
Mike Pennington was hired as the Kalama police chief by Mayor Glen Munsey in March of 1994. According to the affidavit submitted by the Mayor, complaints regarding the police chief began at a city council meeting in the spring of 1995. At the meeting, a citizen complained that when he went to the police station to collect property which had been seized during his son's arrest the police chief treated him in a threatening, intimidating, and otherwise unprofessional manner. The police chief denied the citizen's version of the encounter and an unidentified third party who was present substantiated the police chief's statements.
After the city council meeting, the Mayor and other council members continued to receive complaints from citizens regarding the Chief's enforcement of the law and in particular, about the Chief's alleged aggressiveness. In the spring of 1995, citizens asked the city council to have an outside investigator look into alleged mistreatment by Kalama police officers that occurred during a drug arrest and to investigate other prior incidents involving the Chief. Initially, it was the Mayor who conducted the investigation and he determined that the allegations were without merit and that an outside investigation was not warranted.
It was not until citizens complained that the Mayor was "too close to the Chief" that the Mayor requested the State Patrol to investigate the citizen complaints. Clerk's Papers (CP) at 37. The State Patrol made it clear to the Mayor that they were not conducting a criminal investigation. In October of 1995, the State Patrol finished its investigation and delivered the report to the City. According to the Patrol Captain's letter to the Mayor, the report contained no "Conclusions or recommendations." CP at 44. The report consists of three volumes of witness statements and backup documentation. The report dealt with five categories of complaints including failure to exhibit courtesy to the public, failure to follow proper complaint receiving procedures, use of excessive force, lack of telephone courtesy, and prejudicial conduct.
The Mayor, Councilman Doug Reel and Councilwoman Mary Gillespie read the report. After the Mayor reviewed the report, he concluded that the allegations were unfounded and false. Although the Mayor exonerated the Chief of any wrongdoing, he set several "goals" for 1996 for the Chief and his department. CP at 40. These "goals" included requiring the Chief and his department to attend classes in cultural sensitivity and community oriented policing and asked the Chief to refer to Kalama as "our town" instead of "my town" and to "be very careful in the use of any ethnic comments." CP at 45.
In February of 1996, Nora Amren, a citizen of Kalama, requested a copy of the State Patrol's report on the Chief. The City of Kalama denied the request. Following the City's denial, Amren filed the present action seeking a writ of mandamus directing the City to produce the report under the public disclosure act, RCW 42.17.250. Pursuant to RCW 42.17.340, Amren also sought attorney's fees and $25 for each day disclosure was not provided.
The City of Kalama claimed that the report was exempt from disclosure under RCW 42.17.295 and RCW 41.06.450(1)(a). RCW 42.17.295 of the public disclosure act provides that an agency may destroy information relating to employee misconduct pursuant to RCW 41.06.450. RCW 41.06.450(1)(a) provides:
(1) By January 1, 1983, the Washington personnel resources board shall adopt rules applicable to each agency to ensure that information relating to employee misconduct or alleged misconduct is destroyed or maintained as follows:
(a) All such information determined to be false and all such information in situations where the employee has been fully exonerated of wrongdoing, shall be promptly destroyed; The trial court found as a matter of law that RCW 42.17.295 ...