Boyles v. Department of Retirement Systems

constantly need to be moni- mere children who treated as in the concurrence can one and controlled. Nowhere tored responsibility recogni- of individual concept find the —the drunk driver alone should instances the some tion responsible held for his actions. be drunk driv- aware that earlier, very I am much As stated concurrence, costly and Unlike tragic problem. is a ing concept however, I should sacrifice do not believe we fur- against a crusade responsibility individual Inc., Boiler, of alcohol. Halvorson nishers Birchfield 759, (1969), gen- held that as 458 P.2d 897 for the rule, will not be held liable furnishers of alcohol eral certain drivers. We have since recognized actions of drunk rule, but we have been careful not exceptions limited Legislature the rule. Should the exceptions engulf let the Act, course, so; Dramshop may, it do wish to reenact however, not, that function to ourselves. arrogate we should reasons, I must dissent from the views the foregoing For concurring opinions. and would majority expressed the claims dismissing the order of the trial court affirm and Kaiser. Red Lion against J.,

Dolliver, C.J., Durham, Andersen, concur with J. denied 1986. August

Reconsideration En March 51594-8. Banc. 1986.] [No. Respondent, E. Boyles, v. The Richard Systems, Appellant. of Retirement Attorney General, Kathy Kenneth O. L. Eikenberry, Nolan, Assistant, for appellant. (of Prescott), H. D. & Reaugh respon-

Peter McKee for dent. J. Richard served as Sheriff of Franklin

Dore, County term, from to 1978. In he ran for a third primary but lost election. Prior to the expiration term, Boyles retirement, applied claiming that a bronchial asthma impair- condition and a hearing ment him prevented from carrying out his duties as sheriff. County and, The Franklin Disability Board a de novo hearing, the Washington State of Retirement ailments, acknowledged Boyles' the existence of nevertheless, but him disability denied retirement. Boyles applied County to the Franklin Superior Court review Department's That court decision. reversed the Department Systems' of Retirement holding, determining Department's of fact con findings cerning Boyles' the nature and extent of pre disabilities Boyles cluded from performing the duties of Franklin County Sheriff with average efficiency. The Court of court, Appeals affirmed the trial court's ruling. This how ever, in Boyles Washington Law & Enforcement Officers' Bd., Fighters' Fire Retirement P.2d (1983) I), (Boyles reversed the Court of Appeals, and held that defeat in this his "respondent's election also ended I, as a right Boyles to benefits at 318. sheriff." Boyles We held that "retained the right also to revert to his deputy as a sheriff." prior job

Subsequently, Department moved this court to ruling Boyles reconsider that of the which held that his sheriff right prior deputy had the to revert to the motion and remanded the case to the trial We denied remand, any testimony, court. On without additional taking the administrative record was suf- the trial court held that Boyles show that could not the duties of ficient to Boyles' efficiency granted average sheriff with deputy disability. for claim its Department adequacy

The bases on has The asserted administrative record. Boyles right had the record does not indicate whether deputy to a or whether a revert to performed could have Boyles existed find meritless his ailments. We these contentions despite Boyles' We claim appeal. grant and dismiss this also pursuant RAP attorney fees to 18.9. I, Boyles "retained Boyles specifically ruled prior his as a sheriff." right job revert I, Systems, at 318. The of reconsideration, asked us to this change a motion for The opinion. We denied motion.

language appeal, again raised the identi- Department, using court, Boyles, and we hold that again cal issue before sheriff, office assuming the elected maintained civil prior to return to his service sheriff. civil reversion governs rights

RCW 41.04.120 service provides: individuals assume elected offices. It who Any employee Washington civil service of the state any political subdivision who is or of thereof on leave having or appointed absence reason of been elected preserved in his elective shall be civil service office status, seniority, rights rank as long and retirement so he to make the usual regularly continues contribution incident if he the retention such beneficial rights Provided, not on con- were leave absence: That such made shall be rank at the tributions based being time of such leave of absence. taking I, at does not challenge 318. retirement fact continued make contribu- tions. Boyles directly

Had office of sheriff assumed elected sheriff, lan- previous position plain his as deputy from guage apply. Boyles However, of this statute would had position deputy transferred from his initial sheriff exempt position being appointed of undersheriff before position. the sheriff's persuade

Nevertheless, this distinction does not us Boyles right prior should lose his to revert to his civil deputy qualified service Otherwise, sheriff. indi appointments higher exempt viduals who would receive positions accept pro civil service would be reticent to jeopardizing rights they motion for fear of their if reversion appointed argument later were to an elective office. Our is by 41.14.290, bolstered RCW which went in into effect provides, part: 1979. RCW 41.14.290 Any employee having classified civil service status position may appointment exempt position take an in an county right in the same and maintain the to return to regular position his or her or to a like at the appointment. conclusion of such language supports This the view that RCW 41.04.120 grant right deputy should spective him the sheriff, to revert to irre-

of whether he assumed the elected sheriff directly position, exempt from the or via the penalize undersheriff To do otherwise would Boyles accepting promotion to undersheriff before he appointed County. was to Sheriff of Franklin original We hold that our decision was cor- posi- rect. had the to revert to a inability ended, tenure tion once his perform as sheriff and his efficiency average the duties of sheriff with justify would retirement under RCW 41.26.

II original has also claimed that the find- ings of fact made the administrative examiner do not justify, law, as a matter of should receive dis- ability retirement. The contends that addi- necessary, fact-finding tional is and that the case should be remanded to the Director of the of Retirement is not based testimony. This contention Systems for further problems; Boyles' physical of or nature scope on the that by three doctors indicated testimony uncontradicted perform any or run of stairs up flight could not one debilitating a suffering without duty physical vigorous that new Rather, the claims spasm. bronchial the patrol other than may exist positions sheriff deputy same not involve the which would deputy position sheriff could activity. positions Those of vigorous physical amount or administration. prevention include duties such as crime deputy whether a sheriff requires This claim us to decide of a statutory duties perform be all the may able by sheriff,1 dep- a actually performed or only those duties County. RCW working in Franklin uty presently 36.28.020, sheriffs, powers deputy pro- which defines in part vides that: and

Every power, all the possess sheriff shall duties, by to be may perform any prescribed of the law . . by the . performed

(Italics ours.) The asserts statute a of a require not all the duties perform does sheriff, a a sheriff in a by person and law could be county physical able to being perform vigorous without statutory 1The duties a sheriff are codified RCW 36.28.010: peace "The sheriff is the chief executive officer and of the of the conservator office, county. deputies: In the execution of his he and his "(1) prison persons peace, Shall and commit to all who break or arrest it, persons offenses; attempt guilty public and all break "(2) who, otherwise, county against endanger Shall those riot or defend safety; peace public or "(3) process justice judicial and orders of the courts of or Shall execute law; officers, purpose, according for when delivered "(4) purpose by public other offi- Shall execute all warrants delivered for statutes; cers, particular according provisions to the "(5) county, record within Shall attend the sessions of courts of held directions; obey their orders and lawful or "(6) counties, preserve peace respective quiet keep in their Shall and and insurrections, riots, suppress affrays, and all unlawful assemblies cases, appre- purpose, process in and in and for the service of civil or criminal felony they any person peace, may hending securing or or breach of call power they may necessary." persons, county such their aid or of their deem activity. previous holding supports

Our Comm'rs, Fund Clark v. Board Police Pension 189 Wash. (1937) disabled a policeman motorcy 66 P.2d 307 accident, motorcycle, to ride a cle who was then unable was a number of other required to return to work because non- created motorcycle positions subsequently were which he perform. could still Clark stands for the that a will exist when an individual cannot only any ordinary police injured duties of a officer work 415-105-060(2). See also salary er's and rank. WAC need not be identical to the which the merely had to the of policeman prior injury, comparable salary McAdoo, and rank. See also ex rel. v. People Metcalf (1906). A 184 N.Y. 77 N.E. 17 similar result can also be in recent in Malland v. holding Department found our of (1985). Sys., Retirement P.2d Nevertheless, requirement this can only if disability perform any receive retirement he cannot com- County deputy Franklin sheriff parable position does not testimony additional as to what require positions actually testimony exist. The at the administra- tive the hearing County established that Franklin Sheriff's Sheriff, Undersheriff, of "the Office consisted and 15 road Papers, Sheriffs ..." of fact 5. Clerk's at Deputy Finding positions 107. No other existed besides road sheriffs, by this physical required and the exertion demanding Boyles. was found to be too Furthermore, if in a new arose the Franklin County physical Sheriff's Office which did not involve deter- could reexamine activity, Department the the new capable fulfilling mine if would be of he Malland in decision of We held our recent RCW 41.26.140. Sys., that a reexami- supra, Retirement of permitted officer was a disabled law enforcement nation of Malland, occurred. requirements change job whenever a at 491. such a fact-finding on whether compel

To further applicant prevent change the occurred, however, would stage disability obtaining At each retirement. ever from controversy, disability appeal regarding retirement an argue that a new could person could, position may with in which have arisen disability, perform The physical duties. the same offering case, without, as could do this Leg- job proof The created. has been such a an iota of technology possibility clearly contemplated islature by enacting scope reducing 41.26- RCW of disabilities require from individual .140, and we would decline to positions having created not been that new have to show perform. It is sufficient he or she would be able to person duties of a could not that the disability hearing. comparable rank at the time of Ill solely designed was claims

delay payment him force award and to disability. requested He has his efforts to receive abandon attorney pursuant fees, to RAP 18.9. to award this court grant request. We 18.9(a) that: states

RAP may party appellate ... motion of a court party these rules for the counsel who uses order a or compensatory delay pay purpose ... terms or damages any party harmed who has been other delay . . . payment typically compensatory damages involve These attorney moving party's Mar In re fees. or all of the (1983); Healy, App. riage Mil P.2d 114 Wn. 667 35 Briggs, 9, 665 P.2d 887 Ins. Co. v. lers Cas. (1983). Ins. Co. v. in Millers Cas.

This court's decision (1983) Briggs, 9, 15, restated Wn.2d 665 P.2d 887 party requirements for a to be be met order which must awarded sanctions: appeal determining and is frivolous whether an delay, justi- purpose brought

was, therefore, for the imposition of terms dam- fying compensatory and (1) guided by we are considerations: ages, following 2.2; RAP appellant appeal A civil has a to under right (2) all doubts as to whether is frivolous appeal (3) the should be resolved in appellant; favor of the (4) whole; appeal record should be considered that rejected there are no minds that an as a are is affirmed simply arguments because the (5) if frivolous; is not is frivolous appeal reasonable upon debatable issues differ, merit might totally and it is devoid of so there was possibility no reasonable of reversal. This occurred because the decision accept previous would not our in Boyles I. We ruled that had the to revert right deputy sheriff's today clearly While we have unambiguously held that the actual duties and not statutory duties, of a sheriff should be used disabled, whether a is is determining person holding not necessary to decide the outcome of this case.

The uncontradicted evidence at the administrative hear- ing any showed that could perform not strenuous physical Furthermore, activity whatsoever. the record establishes that County the Franklin Sheriff's sheriffs, only consisted of whom were on all of patrol, perform and all of whom have vigorous would Therefore, physical activity. perform could not statutory deputy sheriff, nor the actual duties of a and he disability have been given should retirement. The Depart- ment should not have withheld Boyles' disability pay clarify the law on what order standard should be used to when, disability regardless standard, determine Boyles would receive his retirement. It is worth noting problem trial had no judge with ruled opinion. our He the administrative convincingly record "clearly and Boyles' Dick inability establish the duties therefore, sheriff with estab- average and, efficiency Fur- disability lish retirement ..." Order Record, granted Review of at 2. ther The trial court then 1979 to claim Boyles' January leave from retirement 9, 1979, immediately by disability followed July sheriff. position from the have believe that the case should been point, At that his right to Boyles justifiably had won over. Nevertheless, contested the Department the retirement. receiv- decision, justified Boyles of the case when facts The effect is that under all circumstances. ing retirement much retirement allow- received a smaller service Boyles ance, maintaining had the stress of a lawsuit added his, and has rightfully obtain what is years over He a heart costly fees. has also suffered legal incurred during period. attack in totally

We actions disagree Department's with It if case. 41.26.140 has alternate remedies under RCW Boyles with aver- new arose which could efficiency, it the trial court age had no reason I. in We find carrying order out our instructions Boyles I was frivolous. appeal of claiming he incurred

Boyles has an affidavit submitted in find $6,791 costs. We such attorney $383 in fees and to be reasonable and we attorney fees and costs requested Systems pay of Retirement order the $7,174. total sum Washington State We further order carry of this provisions out grant Specifically, we order decision. 1979, 9, January July leave 1979 to Boyles disability from immediately by disability thereafter retirement followed to all dis- July retroactively 1979. is entitled they in exceed the ability payments the amount interest on plus benefits he has been drawing, retirement of the State amount accordance with the statutes such Washington. Goodloe, JJ., concur.

Dolliver, C.J., and Callow and part) dissenting Utter, (concurring part, J. —I official an elected conclusion that majority's with the agree civil service prior to a to revert lose not should even disability benefits obtaining purposes immediately a noncivil service occupied he when however, with disagree, elective office. taking before the attorneys' against of fees award majority's a frivolous bringing for Retirement as a sanction of case, Boyles this appeal first of Our decision the appeal. Fighters' & Fire Washington v. Law Officers' Enforcement (1983), Bd., 669 P.2d 465 Wn.2d I do not believe issue. only legal one unequivocally resolved to for its efforts the penalize that we should case. of this the other issues clarify the standard correctly recites majority The imposition warrants appeal an whether determining 18.9(a). to RAP pursuant sanctions was, is frivolous and appeal whether an determining In the therefore, delay, justifying purpose for the brought we are compensatory damages, of terms imposition guided by lant has a (1) appel- A civil following considerations: (2) 2.2; RAP all doubts under right appeal be resolved frivolous should appeal as to whether is (3) con- record should be in favor of the sidered as a appellant; (4) simply affirmed whole; that is appeal an (5) frivolous; is not rejected the arguments because an upon are no debatable issues appeal is if there are frivolous differ, and it is so might minds reasonable was no reasonable totally pos- devoid there of merit sibility reversal. White, 430, 434-35, App. v. 26 Wn. 613 P.2d 187

Streater (1980); Millers Cas. Ins. Co. v. Briggs, see also (1983). However, 9, 15, majority 665 P.2d fails appeal is frivolous under Streater prove White, supra, standard. argues Department's majority

The issues of accurate. Boyles. were settled This is not bid his decided that because had lost deter- sheriff, be must disability as his benefits reelection (the reference to the duties of a by mined reach Boyles). To by held civil service last of a civil service decision, on we relied preserve employee when leave his civil service rank "on having appointed by been elected or reason absence expressly 41.04.120. We declined RCW elective office". issue" of whether the stat- to reach the "broad in that case description utory of a sheriff's duties should con- or actual a sheriff's benefits. trol the determination of Boyles, That issue has not been 100 Wn.2d at 318 n.3. respect or a sher- with either a sheriff's resolved today. the effect did not discuss iff's until We also protection RCW 41.04.120 servants offered civil (1) exempt posi- Boyles' occupation service of the civil appointment immediately his of undersheriff tion before (2) affirmatively preserve Boyles' sheriff, or failure to Again, not been have civil service status. issues these today. resolved until upon Department's appeal presents issues thus example, "reasonable

which argues minds can differ." For appeal statutory description a in this deputy sheriff's the determination should control disability. Respondent, 22-23; also see See Brief of at Washington & Fire Law Officers' Enforcement Fighters' App. 711-13, 649 Bd., 703, 32 Wn. (1983). (1982), rev'd, P.2d 465 P.2d majority opposite The However, the conclusion: reaches the majority proper duties is "those decides that the standard working actually performed by deputy presently in County." Majority, to charac- is difficult 504. It Franklin at appeal decide court must an as frivolous terize point of the law. unclear an totally appeal Department's so is not addition, the

In possibility reversal of no merit that there was devoid of case, this remanded the trial court's order. ruling improper on below had relied the courts Upon an order entered the trial court standard. remand remanding further Director for the case to the without strong argument fact-finding. at makes a appeal of a duties if it must refer to the actual Boyles' dis- County deputy sheriff to determine Franklin determina- case should remanded for a be ability, then exist positions presently of what tion I County administration. under the new sheriff's Franklin we would possibility convinced that was no am not there fact-finding positions this case remand for further Boyles. available that all doubts must be

Finally, we must remember The Department's resolved favor. Department's is not because the simply frivolous prevailed. not penalize We should not disposition the trial exercising challenge its court's after mandate. See RAP 12.9. For these our issuance of portion from that deci- majority's reasons dissent Boyles pursu- attorneys' sion that awards fees and costs to ant to RAP 18.9. JJ., Durham, Pearson, Andersen,

Brachtenbach, J. Utter, concur with En 51354-6. Banc. March 1986.]

[No. Washington, Respondent, The State of v. Colleen Petitioner. Austin, Marie

Case Details

Case Name: Boyles v. Department of Retirement Systems

Court Name: Washington Supreme Court

Date Published: Mar 27, 1986

Citation: 716 P.2d 869

Docket Number: 51594-8

Court Abbreviation: Wash.