FILED

12 OCT 12 PM 1:17

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PETITION FOR WRIT OF CERTIORARI - 1

KING COUNTY SUPERIOR COURT CLERK E-FILED CASE NUMBER: 12-2-33547-8 KNT

IN THE KING COUNTY SUPERIOR COURT IN AND FOR THE STATE OF WASHINGTON CITY OF PACIFIC, through its mayor CY SUN, Petitioner, vs. JOHN CALKINS, Respondent. I. GROUNDS FOR PETITION The Civil Service Commission of the City of Pacific erroneously reversed Mayor Cy Suns termination of John Calkins as Director of Public Safety by order dated September 14, 2012. Findings of Fact, Conclusions of Law and OrderAppeal of John Calkins at 1, 15. The Civil Service Commission found sufficient cause for to discipline Mr. Calkins, to the extent of ordering a one-month suspension of Calkins without pay, but nonetheless appears to have based its decision on an erroneous finding that Mr. Calkins termination was political. Id. at 1. PETITION FOR WRIT OF CERTIORARI NO.

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

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1.1

Petitioner requests that this court issue a Constitutional Writ of Certiorari pursuant to

Article IV 6 of the Washington State Constitution, which provides that a party petition a superior court for review of a lower tribunals proceedings, reverse the Commissions decision, and to uphold the termination of John Calkins as the Public Safety Director for the City of Pacific. 1.2 Alternatively, Petitioner seeks a Statutory Writ of review under RCW 7.16.040 for

this court to correct the erroneous decision of the City of Pacific Civil Service Commission and uphold the termination of John Calkins as the Public Safety Director for the City of Pacific. II. AUTHORITY FOR ISSUING WRIT A distinct right to petition for a writ of certiorari is recognized by our state constitution. WASH. CONST. art. IV, 6. The fundamental purpose of the constitutional writ of certiorari is to enable a court of review to determine whether the proceedings below were within the lower tribunal's jurisdiction and authority. Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 769, 261 P.3d 145 (2011) (quoting Saldin Sec., Inc., 134 Wn.2d at 292, 949 P.2d 370). Similarly, RCW 7.16.040 provides for a statutory writ of review when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law. Petitioner requests that this court examine the Commissions findings for lawfulness and correctness under RCW 7.16.120.

PETITION FOR WRIT OF CERTIORARI - 2

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

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III. RELEVANT FACTS Respondent Cy Sun was elected Mayor of the City of Pacific in 2011 on a platform of fiscal responsibility. He officially began his term on January 3, 2012. Mr. Calkins position within the City of Pacific was Director of Public Safety. Id. at 8. Although Mr. Calkins is purportedly protected civil service employee, he also appears under City ordinance to be an atwill employee of the City serving at the pleasure of the Mayor within the executive branch of city government. See City of Pacific Municipal Code 2.26.010 and 2.64.010. At any rate, Mr. Calkins received notice of his dismissal in the form a letter from his employer, the Mayor, dated May 18, 2012. Id. at 10. He filed an appeal of his dismissal for cause on May 22, 2012. Id. The incident providing cause for the Mayors termination of Calkins occurred outside of a public city council meeting in January 17, 2012. Id. at 9. Numerous people, including members of the public, observed Calkins becoming angry, gesticulating, and raising his voice to Maria Pierce, a City employee, outside of the City Council Chambers. Id. Although the length of Calkins tirade was disputed, at minimum it lasted for several minutes. Id. Calkins outburst purportedly resulted from the Mayors plan to not purchase additional police cars for the department. Id. Mayor Sun, via letter, placed Calkins on administrative leave with pay based upon his conduct via letter dated January 18, 2012,. Id. at 10. Four months after placing Mr. Calkins on paid administrative leave, Mayor Sun provided Mr. Calkins notice of, by letter dated May 15, 2012, reasons for discharge and announced the time and location of a Loudermill hearing. Id. The specified reasons for discharge included Discourteous treatment to fellow employees in public on the night of January 17h, 2012; and CSC Rule No. 17.3(b), which lists dishonesty,
PETITION FOR WRIT OF CERTIORARI - 3

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

intemperance, immoral conduct, insubordination, or any other act of omission or commission tending to injure the public service, or any other willful failure on the part of the employee to properly conduct himself as cause for discipline. Id. In other words, the Mayor asserted a legal justification for the action the Mayor took in terminating Calkins for his outburst in front of members of the public and City of Pacific employees. On May 17, 2012, the Loudermill hearing occurred. Id. Mr. Calkins purportedly

requested a continuance of the hearing based on the unavailability of his attorney, but it does not appear one was granted. Id. Mayor Sun went ahead with the hearing. Id. On the day following the hearing, Mayor Sun terminated Mr. Calkins employment with the City of Pacific by letter. Id. at Ex. No. 2. Calkins appealed his termination to the Civil Service Commissions Secretary on May 22, 2012. Id. at 10. A testimonial hearing in front of the Civil Service Commission for the City of Pacific occurred on August 21, 2012, and August 24, 2012. Id. at 6. Witnesses testified both for the Mayor and for Mr. Calkins. Id. In its findings of fact, the Commission spends an inordinate effort in detailing eight credibility concerns associated with the Mayor. Id. at 11,12. Largely, these credibility concerns pertain to issues irrelevant to the admitted conduct of Mr. Calkins or the Mayors subsequent actions in response. Id. Although there was witness testimony that Mayor Sun had made previous comments evincing an intention to terminate Calkins, undue weight was placed upon the minimal relevance of these comments. Whether the reasons for Mayor Suns prior comments in regard to

terminating Calkins were pursuant to a legitimate justification wholly separate and apart from Calkins conduct on January 17th is not explored or considered in the decision. Nonetheless, the
PETITION FOR WRIT OF CERTIORARI - 4

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Commission appears to have given significant weight to these prior comments. Conversely, the Commission gave little weight to the fact that Mayor Sun waited four months from the date of Calkins outburst to send the letter of termination. Id. at 12. The Commission ultimately found that Calkins conduct on the evening of January 17, 2012, warranted discipline. Id. at 13. Calkins, as Director of Public Safety (in effect acting as Chief of Police), held one of the highest positions in the City of Pacifics government. Id. at 13, 14. Accordingly, expectations for his behavior are very high and his conduct should set an example for subordinates and the public. The Commission further found that Calkins should be held to a higher standard than regular employees, and that his conduct on January 17th cannot and will not be tolerated. Id. at 13. The Commission concluded, just as Mayor Sun stated in his reasons for termination, that Calkins behavior constituted discourteous and unacceptable treatment of fellow employees, and an act of intemperance that tends to injure the public service, which serves as a cause for discipline under CSC Rule No. 17.3(b). Id. at 14. Despite these unequivocal findings, the Commission decided that Calkins should only be suspended for a period of one month without pay. Id. The Commission erroneously found that the Mayor had not acted in good faith, nor had he followed proper procedure for discharge of employees who are members of the Citys Civil Service System, including without limitation those found in CSC Rule No. 18. Id. at 14. Additionally, the Commission erroneously drew the inference that because Mayor Sun had previously evinced an intention to terminate Calkins; therefore, Calkins termination was political in nature, rather than for the admitted conduct listed as cause. Id. at 1. This court should correct the Commissions error, and find that John Calkins was properly terminated from the position of Public Safety Director.
PETITION FOR WRIT OF CERTIORARI - 5

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

IV. ARGUMENT This petition seeks a writ of review on constitutional grounds, or in the alternative, on statutory grounds under RCW 7.16 et seq. To that end, each will be examined separately below. At general issue is the conflict between the City of Pacifics ordinances as they relate to the position of Public Safety Director. Pacific City Code (PCC) 2.26.010(B) states, The mayor shall appoint the public safety director, subject to confirmation by a majority of all members of the city council. The position shall be an at-will position. However, PCC 2.64.010(A) states in relevant part: [T]here is created a civil service commission composed of five persons appointed by the mayor and confirmed by the city council to exercise the powers and to perform the duties established by that state law in connection with the selection, appointment and employment of all full-paid police officers, including the chief of police and public safety director. These two ordinances are in apparent conflict, as an at-will position necessarily means that the employee may be terminated without cause, but a civil service position grants the protection of requiring cause for termination of employment. The Commission here erroneously decided Mr. Calkins appeal as though he were an average civil service employee. An ordinance must be interpreted to effect the City Council's intent. Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 110, 676 P.2d 466 (1984). Every provision must be read in relation to every other provision so as to harmonize the ordinance's construction. Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986). A statute should not be interpreted so as to render any portion of it superfluous. Avlonitis v. Seattle Dist. Ct., 97 Wn.2d 131, 138, 641 P.2d 169 (1982). In this case, reconciling a designated at-will position with the requirements of placing that same position within civil service, and giving effect to each
PETITION FOR WRIT OF CERTIORARI - 6

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

ordinances construction, lends itself to one interpretation: the Mayor must give cause to terminate Mr. Calkins from the position of Public Safety Director, but any cause is sufficient under the at-will standard. a. The court should grant a Constitutional Writ vacating the Commissions decision. Article IV 6 of the Washington State Constitution provides in relevant part that: The superior court shall have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law invested exclusively in some other court. Said courts and their judges shall have power to issue writs of certiorari. Review under Article IV 6 is limited to whether the hearing officer's actions were arbitrary, capricious, or illegal, thus violating a claimant's fundamental right to be free from such action. Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 769, 261 P.3d 145 (2011) (quoting Foster v. King County, 83 Wn.App. 339, 346, 921 P.2d 552 (1996)). Arbitrary and capricious action is willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action. Id. (internal quotation marks omitted) (quoting Foster, 83 Wn.App. at 347.) In this case, the Commission explicitly found that Mr. Calkins had engaged in misconduct, and further, that his position as Public Safety Director made that particular misconduct more egregious than it may be for another employee. The Commission nonetheless went on to find that this was not sufficient cause of Mr. Calkins termination, and instead focused on behavior by the Mayor that was irrelevant to the specific grounds on which Mr. Calkins was fired. This decision was taken without regard to the facts and circumstances surrounding the action. Because harmonizing the ordinances surrounding the position requires
PETITION FOR WRIT OF CERTIORARI - 7

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

that the at-will portion be given effect, Mr. Calkins misconduct was more than sufficient cause for his termination by the Mayor. This court should vacate the Commissions decision and uphold the termination of Mr. Calkins. b. The Court should grant a Statutory Writ vacating the Commissions decision. When examining a writ for review brought under RCW 7.16.040, the Courts decision is governed by RCW 7.16.120. The questions involving the merits to be determined by the court upon the hearing are: (1) Whether the body or officer had jurisdiction of the subject matter of the determination under review; (2) Whether the authority, conferred upon the body or officer in relation to that subject matter, has been pursued in the mode required by law, in order to authorize it or to make the determination; (3) Whether, in making the determination, any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator; (4) Whether there was any competent proof of all the facts necessary to be proved, in order to authorize the making of the determination; and (5) Whether the factual determinations were supported by substantial evidence. RCW 7.16.120. Substantial evidence is defined as evidence which would convince an unprejudiced, thinking mind of the truth of the declared premise. Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477, 486, 805 P.2d 800 (1991)(quoting Cowsert v. Crowley Maritime Corp., 101 Wn.2d 402, 405, 680 P.2d 46 (1984)). Here, the misconduct on the part of Mr. Calkins was admitted. Therefore, substantial evidence demonstrates that misconduct occurred. The only remaining question for the Commission was whether that misconduct was cause to terminate his employment. As discussed above, the Commission determined that, although sufficient for discipline, Mr. Calkins conduct was insufficient cause for termination. Because the position of Public Safety Director must
PETITION FOR WRIT OF CERTIORARI - 8

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

conform to all relevant ordinances, any cause noted by Mayor Sun was sufficient grounds to fire Mr. Calkins. Whether or not the Mayor had previously stated that that he did not want Mr. Calkins in the position is irrelevant. Mr. Calkins engaged in serious misconduct, in public and unprompted by any actions of the Mayor. Mayor Sun had sufficient cause to terminate Mr. Calkins from the position, and this court should vacate the Commissions decision and uphold the firing. V. APPLICATION FOR WRIT OF CERTIORARI Petitioner asks that the Court issue a Writ of Certiorari, review the Civil Service Commission decision, and to enter an order vacating that decision as contrary to law and the public policy of Washington. In furtherance of the Courts review, Petitioner submits Exhibits to the Declaration of Tyler Firkins, as follows: 1. A copy of Pacific Civil Service Rules is attached as Exhibit A. 2. A copy of the Civil Service Commission findings of fact and law is attached as Exhibit B. VI. ORDER The petitioner submits a proposed Order with his petition for a Writ of Certiorari. DATED this 12th day of October, 2012. VAN SICLEN, STOCKS & FIRKINS /s/ Tyler K. Firkins ________________________________ Tyler K. Firkins, WSBA No. 20964 Attorney for Mayor Cy Sun

PETITION FOR WRIT OF CERTIORARI - 9

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30
ORDER GRANTING PETITION FOR WRIT OF CERTIORIARI - 1

IN THE KING COUNTY SUPERIOR COURT IN AND FOR THE STATE OF WASHINGTON CITY OF PACIFIC, through its mayor CY SUN, Petitioner, vs. JOHN CALKINS, Respondent. THIS MATTER having come before the Court on Petitioners Petition for Writ of Certiorari under Washington State Constitution Article IV 6 and RCW 7.16 et seq., and the Court having reviewed Petitioners Motion and the Declaration of Tyler K. Firkins dated October 12, 2012, and Respondents responsive pleadings including and [PROPOSED] ORDER GRANTING WRIT OF CERTIORARI NO.

_______________________________________________________________________,

having heard argument of counsel; and the court deeming itself fully advised of the premises; and finding that the City of Pacific Civil Service Commission in error and upholding the termination of John Calkins from the position of Public Safety Director; now, NOW THEREFORE,

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899

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It is hereby ORDERED that Mayor Suns Petition for Writ of Certiorari under Article IV 6 of the Washington Constitution and/or RCW 7.16 et seq. is hereby GRANTED and the termination of John Calkins from the position of City of Pacific Public Safety Director is upheld. DONE IN OPEN COURT this ___ Day of _____________, 2012

___________________________________ Judge

Presented by VAN SICLEN, STOCKS & FIRKINS /s/ Tyler K. Firkins ________________________________ Tyler K. Firkins, WSBA No. 20964 Attorney for Mayor Cy Sun

Copy Received, Notice of Presentation Waived, Approved for Entry:

___________________________________ Attorney for Respondent

ORDER GRANTING PETITION FOR WRIT OF CERTIORIARI - 2

VAN SICLEN, STOCKS & FIRKINS

A Professional Service Corporation

721 45th Street NE Auburn, WA 98002-1381 (253) 859-8899