106 Wn.2d 420, ROSE v. ERICKSON

CITE:          106 Wn.2d 420, 721 P.2d 969

               ROSE v. ERICKSON


FILE DATE:     July 24, 1986

CASE TITLE: John Rose, et al, Respondents, v. Larry W.
               Erickson, et al, Appellants.

[1] Mandamus - Public Official - Scope. Mandamus is appropriate to require a public official to perform a duty imposed by law.

[2] Statutes - Construction - Conflicting Provisions - Legislative Treatment. In determining the legislative intent with regard to conflicting statutory provisions, the courts will review the Legislature's amendatory activities with regard to the general subject matter.

[3] Public Employment - Sheriffs - Grievance Procedure - Statutory Provisions. RCW 41.56, which permits public employees to contract for employee rights including grievance procedures, prevails over RCW 41.14, which establishes a merit system for sheriffs' offices with grievances handled by a civil service commission.

NAMES OF CONCURRING OR DISSENTING JUDGES: Brachtenbach, J., did not participate in the disposition of this case.

NATURE OF ACTION: A deputy sheriff who was disciplined sought to compel the sheriff to follow a grievance procedure established by collective bargaining.

Superior Court: The Superior Court for Spokane County, No. 85 2-00579-6, William J. Grant, J., granted the requested relief on March 12, 1985.

Supreme Court: Holding that there was a statutory right to grievance procedures established by collective bargaining, the court AFFIRMS the judgment.


PAMELA G. BRADBURN, for respondents.


MAJORITY OPINION: RCW 41.14 established a merit system of employment for county deputy sheriffs and other employees of the office of county sheriff. RCW 41.56 concerns public employees' collective bargaining, the intent and purpose of the chapter being to promote the continued improvement of the relationship between public employers and their employees.

We are asked whether the procedures set forth in RCW 41.14 preempt the grievance procedures set forth in a collective bargaining agreement between the Washington State Council of County and City Employees and Local 492 as the affiliate of the American Federation of State, County and Municipal Employees, hereinafter jointly designated "the Union", and Spokane County and Spokane County Sheriff Larry Erickson.

We hold that RCW 41.56 prevails and affirm the trial court.

John Rose is a permanent employee in the classified civil service of the Spokane County Sheriff's Office and a member of the Union. On December 17, 1984, Sheriff Larry Erickson suspended Rose for 5 days. Since 1973, in a succession of collective bargaining agreements between the Union and Spokane County, employees of the sheriff's office have been granted the right to choose between resolving grievance disciplinary matters before an arbitrator or appealing the discipline to the Civil Service Commission as provided by RCW 41.14. On December 18, 1984, Rose filed a grievance pursuant to article 11 of the agreement which provides: "Any disciplinary action or measure imposed upon a permanent employee may be [processed] as a grievance [or] through the regular Civil Service procedures."

John Rose is the first employee of the sheriff's office to exercise his right to have his objection to discipline resolved by arbitration. Sheriff Erickson refused to process the grievance taking the position that, despite the agreement, Rose's exclusive redress was under RCW 41.14. On December 26, 1984, John Rose filed an appeal with the Commission to preserve the agreement's alternative to redress under RCW 41.14. The Commission scheduled an investigation on January 14, 1985, eventually postponing the investigation at the request of the parties until March 22, 1985. The Commission refused the Union's request that it delay processing Rose's appeal while the preferred grievance process by arbitration was pursued.

John Rose and the Union applied for a writ of mandate on February 19, 1985, asking that Sheriff Erickson be compelled to process the grievance under the procedures provided by the agreement and that the Commission be prohibited from conducting an investigation under RCW 41.14.120. RCW 41.14.120 reads in part as follows:

"     No person in the classified civil service who has
      been permanently appointed or inducted into civil service
      under provisions of this chapter, shall be removed, suspended,
      demoted, or discharged except for cause, and only upon
      written accusation of the appointing power or any citizen
      or taxpayer . . . Any person so removed, suspended, discharged,
      or demoted may within ten days from the time of his removal,
      suspension, discharge, or demotion file with the commission
      a written demand for an investigation, whereupon the commission
      shall conduct such investigation. . . . The investigation
      shall be confined to the determination of the question
      of whether the removal, suspension, demotion, or discharge
      was made in good faith for cause.

The trial court issued the writ of mandamus on March 22, 1985.

[1] A writ of mandamus requires a public official to perform a duty imposed by law; it does not "compel a public officer to perform some duty which he cannot legally perform." STATE EX REL. RAND v. SEATTLE, 13 Wn.2d 107, 120, 124 P.2d 207 (1942). Sheriff Erickson argues that RCW 41.14 preempts RCW 41.56 regarding the discipline of sheriff's employees and, therefore, the agreement does not impose a legal duty enforceable by a writ of mandamus.

RCW 41.14.080 states in pertinent part:

"No person in the classified civil service shall be reinstated
      in or transferred, suspended, or discharged from any such
      place, position, or employment contrary to the provisions
      of this chapter.

CLALLAM CY. DEPUTY SHERIFF'S GUILD v. BOARD OF CLALLAM CY. COMM'RS, 92 Wn.2d 844, 851, 601 P.2d 943 (1979) said:

"     A full reading of RCW 41.14 reveals that in its
      enactment the legislature intended to preempt the coverage
      by county personnel systems of deputy sheriffs' selection,
      promotion and termination. . . .

. . .

. . . We recognize, however, that not every provision
      of ordinance No. 80 necessarily conflicts with and is
      preempted by RCW 41.14; RCW 41.14 is offended only by
      those provisions of ordinance No. 80, if any, that purport
      to regulate the existing merit system of employment of
      deputy sheriffs.

The above dicta is not controlling in that CLALLAM COUNTY involved a conflict between RCW 41.14 and a county ordinance, rather than a statutory conflict.

Employee Rose argues that RCW 41.56 prevails. RCW 41.56.905 reads:

"     The provisions of this chapter are intended to be
      additional to other remedies and shall be liberally construed
      to accomplish their purpose. Except as provided in

(Italics ours.) SPOKANE v. SPOKANE POLICE GUILD, 87 Wn.2d 457, 464, 553 P.2d 1316 (1976) commented on RCW 41.56.905 as follows:

"The legislature . . . provided in RCW 41.56.905 that
      the provisions of the act "shall control" in case of conflict
      with "any other statute, ordinance, rule or regulation
      of any public employer as it relates to uniformed employees

. . ."

(Footnote omitted.) We have said that as a matter of policy, arbitration is strongly favored. SEE HANFORD GUARDS LOCAL 21 v. GENERAL ELEC. CO., 57 Wn.2d 491, 497-98, 358 P.2d 307 (1961); IBEW LOCAL 483 v. TACOMA, 20 Wn. App. 435, 582 P.2d 522 (1978); COUNCIL OF CY. & CITY EMPLOYEES v. SPOKANE CY., 32 Wn. App. 422, 647 P.2d 1058 (1982).

[2] Apparent conflicts in statutes should be reconciled and effect given to each if this can be achieved without distortion of the language used. TOMMY P. v. BOARD OF CY. COMM'RS, 97 Wn.2d 385, 391, 645 P.2d 697 (1982); SEE NISQUALLY DELTA ASS'N v. DUPONT, 103 Wn.2d 720, 696 P.2d 1222 (1985); STATE v. FAGALDE, 85 Wn.2d 730, 539 P.2d 86 (1975). The language of RCW 41.14.080 and RCW 41.56.905 is in conflict and we are unable to give effect to each without distortion of the language used in one or the other. Therefore, a review of the Legislature's treatment of these statutes is helpful in determining which should prevail.

[3] RCW 41.56.905 was added as a part of the 1973 amendment to chapter 41.56. Laws of 1973, ch. 131, 10. Significantly, in Laws of 1983, ch. 287, 5, the Legislature changed the references to the 1973 amendment and enacted the provisions stating that a liberal construction should be given to all of RCW 41.56 and conflicts resolved in favor of the dominance of that chapter. The change is significant and we conclude that in the event of conflict between RCW 41.14 and RCW 41.56, RCW 41.56 must prevail.

RCW 41.14 has been amended often since the enactment of RCW 41.56. The Legislature has not amended the pertinent portion of RCW 41.14.080 cited above. SEE Laws of 1980, ch. 108, 1. This indicates that the Legislature did not intend the procedures of RCW 41.14 to supplant RCW 41.56. We conclude that the Legislature intended that RCW 41.56 prevail.

The decision of the trial court which issued the writ of mandamus compelling Sheriff Erickson to process Rose's grievance under the collective bargaining agreement is affirmed.

CONCURRING JUDGES: Dolliver, C.J., Utter, Dore, Pearson, Andersen, Goodloe, and Durham, JJ., and Cunningham, J. Pro Tem., concur.