Superior Court County: King. Superior Court Cause No: 12-2-33572-9.SEA. Superior Court Judge Signing: Catherine Shaffer. Date filed in Superior Court: 3/28/14.
Judith A. Lonnquist (of Law Offices of Judith A. Lonnquist PS ); and Philip A. Talmadge (of Talmadge / Fitzpatrick / Tribe ), for appellant.
Peter S. Holmes, City Attorney, and Molly M. Daily, Assistant, for respondent.
Written by: Becker. Concurred by: Verellen, Cox.
[186 Wn.App. 655] [¶1] RCW 49.48.030 provides for an award of reasonable attorney fees in any action in which a person successfully recovers judgment for wages or salary owed. A person may seek an award of attorney fees from the superior court under this statute upon winning an appeal to a city civil service commission that results in an order for back pay.
[¶2] Appellant Georgiana Arnold was employed as a manager of services development and contracts with the Aging and Disabilities Services division of the city of Seattle's Human Services Department. In 2010, one of Arnold's subordinates failed to make an adequate inquiry into a whistle-blower's complaint about fraud and misappropriation of funds in a program administered by a
subcontractor. After a state audit uncovered embezzlement, Arnold's agency conducted an internal investigation. The resulting report criticized Arnold and two other supervisors for lapses in their supervision.
[¶3] The deputy director of the department recommended that Arnold be terminated. Arnold, whose performance evaluations had otherwise been excellent, hired counsel and requested a hearing. After the hearing, the director decided against termination and chose instead to demote Arnold from her management position with an annual [186 Wn.App. 656] salary of $85,500 to an entry-level position with an annual salary of approximately $56,000.
[¶4] Through counsel, Arnold and her subordinate appealed to the Seattle Civil Service Commission. A hearing examiner conducted a lengthy hearing in which three attorneys participated--one representing the City and one representing each employee. The issue with respect to Arnold was whether the demotion was for justifiable cause. The examiner concluded that demoting Arnold was not consistent with discipline imposed in comparable cases. For example, one of the other supervisors had received a two-week suspension but no demotion. The examiner's written decision reversed Arnold's demotion and converted it to a two-week suspension. The decision reinstated Arnold to her former position and awarded back pay and related employee benefits.
[¶5] Arnold requested an award of attorney fees. The Seattle Municipal Code (SMC) provides that an appellant " may be represented at a hearing before the Commission by a person of his/her own choosing at his / her own expense." SMC 4.04.260(E) (emphasis added). On this ground, the examiner denied Arnold's request for attorney fees, and the commission affirmed the examiner.
[¶6] Arnold filed suit in superior court, claiming she was entitled to an award of attorney fees incurred for representation at the civil service hearing. The court granted the City's motion to dismiss the case on summary judgment. Arnold sought direct review in the Supreme Court. The Supreme Court transferred her appeal to this court.
[¶7] Arnold's claim that she is entitled to an award of attorney fees is based on RCW 49.48.030, as construed by the Supreme Court in International Ass'n of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 42 P.3d 1265 (2002). The statute provides as follows:
In any action in which any person is successful in recovering judgment for wages or salary owed to him or her, reasonable [186 Wn.App. 657] attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer: PROVIDED, HOWEVER, That this section shall not apply if the amount of recovery is less ...