10 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 FILED E 2022 MAR 78 04:21 pm HONORABLE MAFE RAJUL KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 21-2-12876-5 SEA IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING CHANDRA N. HAMPSON, as director of Seattle School District No. 1, No. 21-2-12876-5 SEA, Plaintiff/Appellant, SEATTLE SCHOOL DISTRICT NO. 1’S. RESPONSE IN OPPOSITION TO v, APPELLANT CHANDRA N. HAMPSON’S OPENING BRIEF SEATTLE SCHOOL DISTRICT NO. 1, a municipal corporation, Defendant/Respondent. RESPONSE IN OPPOSITION TO PACIFICA LAW GROUT LLP APPELLANT'S OPENING BRIEF SEATILE, WASHINGTON 98101306 RESPONSE BRIEF Shien a Sesh10 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 TABLE OF CONTENTS I. INTRODUCTION ....ccecse sve hveereeel I, STATEMENT OF THE CASE. A. District Policy Prohibits Harassment, Intimidation, and Bullying, B. The Allegations Against Director Hampson and Resulting Investigation. 1. History of District Policy 0040... eseneeedl 2. The August 28, 2020 Teleconference. besseeseeeeee 3. The September 16, 2020 Execut ve Committee Meeting... 4. The MFR Report Conclusions and the District’s Outcome Letter... C. The Board Votes to Take Action With Respect to Director Hampson. 6 Ill. ARGUMENT. A. The Applicable Standard of Review is Arbitrary and Capricious. B. The District's Decision to Adopt the MFR Report Was Not Arbitrary and Capricious. C. The District's Decision Ado, Law. 1g the MFR Report Was Not Contrary to D. The Board’s Action Was Appropriate. .. IV. CONCLUSION. RESPONSE IN OPPOSITION TO PACIFICA LAW GROUP LLP APPELLANT'S OPENING BRIEF ee RESPONSE BRIEF - i SEATTLE, WASHINGTON e01410 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 TABLE OF AUTHORITIES State Cases Bawden v, Seattle Pub. Sch., No. 82391-4-1, 2022 WL 277048 (Wash. Ct. App. Div. I, Jan. 31, 2022) .. Binkley v. Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990)... 2) Butler v, Lamont Sch. Dis 49 Wn, App. 709, 745 Francisco v. Bd. of Dirs. of the Bellevue Pub. Schs 85 Wn.2d 575, 537 P.2d 789 (1975)... Haynes v. Seattle Sch. Dist. No. 1, 111 Wn.2d 250, 758 P.2d 7 (1988)... Hillis v. State of Wash., Dept. of Ecology, 131 Wn.2d 373, 932 P.2d 139 (1997) ul Household Fin, Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952)... Jones v. Pers. Res. Bd., 134 Wn. App. 560, 140 P.3d 636 (2006) 9 Overlake Hosp. Ass'n v. Dep't of Health, 170 Wn.2d 43, 239 P.3d 1095 (2010)... Pierce Cmty. Sheriff v. Civil Serv. Cmm’n of Pierce Cnty.. 98 Wn.2d 690, 658 P.2d 648 (1983) 10 Porter v. Seattle Sch. Dist. No. 1, 160 Wn. App. 872, 248 P.3d 1111 (2011). State ex rel. Hood v. Pers. Bd., 82 Wn.2d 396, 511 P.2d 52 (1973)... Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 444 P.3d 606 (2019)... Wash. Fed'n of State Emps. v. State Personnel Bd., 29 Wn. App. 818, 630 P.2d 951 (1981) RESPONSE IN OPPOSITION TO PACIFICA LAW GROUP LLP APPELLANT'S OPENING BRIEF ee RESPONSE BRIEF - SEATTLE, WASHINGTON e01410 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 643 P.2d 426 (1982).. Yaw v. Walla Walla Sch. Dist. No. 140, 106 Wn. 2d 408, 722 P.2d 803 (1986). RCW 28A.320.015 RCW 28A.645.010..... RESPONSE IN OPPOSITION TO APPELLANT'S OPENING BRIEF RESPONSE BRIEF - iii 8,9, 12, 13 State Statutes 1,7 PACIFICALAW GROUP LLP10 u 15 16 7 18 20 21 22 23 24 25 26 1 'TRODUCTION In this RCW 28A.645.010 appeal, School Board Director Chandra Hampson seeks to overturn a finding that she violated Seattle School District Policy 5207 prohibiting harassment, intimidation, and bullying through certain interactions with two district employees. As detailed below, the district's finding that Director Hampson violated Policy 5207 was supported by a thorough investigation conducted by an independent workplace investigator, which involved 20 witness interviews and review of thousands of documents. As such, the Distriet’s decision and the Board’s subsequent vote requiring Director Hampson to read and abide by Policy 5207 were well within the district’s authority. Neither action was arbitrary and capricious or contrary to law, and thus not subject to reversal by this Court. Director Hampson’s claims to the contrary are not supported by the law or the record, and this appeal should be dismissed. I. STATEMENT OF THE CASE A. District Policy Prohil its Harassment, Intimidation, and Bullying. The Seattle Public School District (“the District”) is governed by a Board of seven publicly elected directors serving four year terms (“the Board”). AR 16. The work of the Board includes hiring and evaluating the district superintendent, setting district policies, establishing district budgets, adopting instructional materials, and serving as community representatives to the District and on behalf of the District. See id; RCW 28A.320.015. Because the Board does not employ individuals, Board members carry out their work with assistance from Distriet personnel who report to the superintendent, either directly or through others. See AR 16. On November I, 2017, the Board enacted Policy No. 5207, which prohibits “harassment, intimidation, and bullying (“HIB" ).” AR 137. Under the Policy, HIB in the workplace refers to “repeated and/or unreasonable actions of an individual (or group) directed towards an employee or volunteer (or a group of employees or volunteers) that is intended to intimidate, bully, degrade, SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 1 IONSECOND AMEN2 3 15 16 7 18 20 21 22 23 24 25 26 or humiliate.” Id. HIB can include “written messages or images (including those that are electronically transmitted), verbal comments, or physical acts.” Jd. As relevant here, to be considered as HIB, the messages, images, comments, or acts must: ‘* Have the effect of substantially interfering with an employee's or volunteer's work environment; or © Be so severe, persistent, or pervasive that it creates an intimidating or threatening work environment; or ‘© Have the effect of substantially disrupting the orderly operation of the work place. Id, Policy 5207 applies to employees, students, and Board members. HIB complaints alleging conduct based on protected class status, such as race or gender, are investigated under the provisions of Procedure 5010SP by the district’s Human Resources department or its designee, which can include an impartial external investigator.' B. The Allegations Against Director Hampson and Resulting Investigation. On September 18, 2020, two district employees, Dr. Doe and Ms. Roe, submitted to the Board a memorandum entitled Bullying, Intimidation, and Anti-Black Racism, alleging anti-Black and intersectional racism by Director Hampson and Director Zachary DeWolf in response to their ongoing work on a new draft district policy related to racism, known as Policy 0040. AR 13 Specifically, Dr. Doe and Ms. Roe alleged that over the course of their work on Policy 0040, Directors Hampson and DeWolf “orchestrated a campaign of bullying, escalating intimidation, gaslighting, and retaliation.” /d. The memorandum alleged “intersectional” discrimination on the basis of race and sex, and HIB in violation of Policy 5207. See AR 13. Specifically, the memorandum claimed that: 1. Director Hampson began bullying Dr. [Doe] and attempted to discredited [sic] Ms. [Roe] in response to what she perceived as a loss of control or "ownership" " Seattle Pub. Schs., Superintendent Procedure S010SP, Employment Discrimination Complaint Process 1 (Feb. 4, 2021), available at hntps:/iwww.seattleschools.org/wp-content‘uploads/2021/07/S010SP_pdf (last visited Mar. 15, 2022). See also AR 131. SEATTLE SCHOOL DISTRICT NO. 1S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 2 a a10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 over Policy 0040. 2. Director Hampson orchestrated with extemal stakeholders the overt silencing of Director? [Roe’s] Board report testimony and undermining [sic] the credibility of her policy work. 3. Directors Hampson and DeWolf scheduled a meeting with Dr. [Doe] and Ms. [Roc] under false pretenses, so that they could continue to berate and discredit Director [Roe]. 4. Directors DeWolf and Hampson modeled overt silencing and chastisement of Black women in leadership, displaying the often public consequences Black women face for addressing the racism which Hampson and DeWolf regularly claim a commitment to ending, Id. In addition to these specific examples, Dr. Doe and Ms. Roe provided additional allegations regarding (i) Director Hampson’s perceived loss of control over Poli 0040; (ji) an August 28, 2020 meeting at which the employees alleged Directors Hampson and DeWolf engaged in discriminatory and bullying conduct; and (iii) the “perceived silencing and chastising” of Dr. Doe and Ms. Roe during a September 16, 2020 Board Executive Committee meeting. AR 37. On November 2, 2020, at the insistence of Directors Hampson and DeWolf, the district retained an external workplace investigator, attomey Marcella Fleming Reed, to investigate the allegations in the memorandum. AR 15. Ms. Reed interviewed 20 witnesses and reviewed more than 5,500 pages of documents including emails, policies, procedures, agendas, meeting minutes, and transcripts, AR 10. She also listened to various audio files. d. Most interviews took place in November and December of 2020 and January and February of 2021, with a few additional interviews taking place in July of 2021. AR 49. Ms. Reed’s comprehensive report (“MER Report”) was issued on August 5, 2021 and contained nearly 40 pages of ndings and conclusions, supported by 280 pages of notes, emails and supporting exhibits, See AR 4-310. ‘The reference in the memorandum and some aelministrative record materials to “Director Roe” refers to the fact that Ms. Roe is the Director of Racial Equity Advancement. She is not a member of the Board. SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 3 IONSECOND AMEN10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 The series of events detailed in the MFR Report are briefly set forth in summary below. 1. History of District Policy 0040. During August 2019, the Board took up certain policy efforts to enhance diversity, equity, and inclusion to benefit district students. See AR 19. Director Hampson was the primary stakeholder on the Board. AR 20. She was passionate about the opportunity because she had policy drafling experience gained through service to other organizations, including the Seattle Council Parent Teacher Student Association (“SCPTSA”). See AR 19-20. She sought to leverage that experience while on the Board by proposing a policy she drafted while heading SCPTSA. See id. Her proposal, Policy 0040, was circulated to certain district personnel for review and comment. AR 20-21. Dr. Doe and Ms. Roe were among the district personnel to whom the policy was circulated. Id. Their views were sought because each was respectively serving the district as Chief of Equity and Director of Racial Equity Advancement. See id. The two began their work on reviewing Policy 0040 by obtaining the perspective of families they thought Policy 0040 would most affect. See AR 21. The pace of their efforts to finalize Policy 0040 was slowed due to the COVID-19 pandemic and resulting school closures. See AR 21-22, 29, 34. In June 2020, Director Hampson sought to expedite passing Policy 0040 in response to current community sentiments regarding racial inequality. AR 22. In response, Dr. Doe and Ms. Roe expressed concerns that Policy 0040, in its then-current state, would not adequately address community feedback they previously obtained while working on the policy. See id. Dr. Doe and Ms. Roe offered to revise the policy and circulate a revised draft for subsequent community comment. See id. Each offered to carry out that work under oversight by Director Hampson and Board president DeWolf. See id. SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 4 IONSECOND AMEN10 u 15 16 7 18 20 21 22 23 24 25 26 2. The August 28, 2020 Teleconference. On August 28, 2020, Directors DeWolf and Hampson engaged in a teleconference with Dr. Doe and Ms. Roe regarding their progress on Policy 0040. According to the MFR Report, Director DeWolf was rude and unprofessional during the call, and raised his voice at Dr. Doe and Ms. Roe and questioned their veracity relating to work they had been doing on Policy 0040. AR 43- 44, After Director DeWolf left the call to catch a plane, Director Hampson continued the call for an additional 40 minutes. AR 46. Witnesses to the call characterized her behavior as “abusive to staff throughout” by “yelling,” being “disrespectful” and “challenging comments as untrue.” AR 46. See also AR 30-31, 45, 55-58, 96-97, 250. Further, the report found that Director Hampson questioned Ms. Roe’s qualifications, and chastised Dr. Doe in a raised voice. See AR 43-46. See also AR 29-31. The report further found that the superintendent and her chief of staff jointly called Dr. Doe to express concem after learning of the events. See AR 30, 97. Notes by an administrative assistant memorializing the call characterize Director Hampson as “abusive, yelling,” and “disrespectful,” among other things. AR 46. In her own interview with Ms, Reed, Director Hampson agreed the call was “terrible.” AR 32, 43. 3. The September 16, 2020 Executive Committee Meeting. On September 16, 2020, Director DeWolf convened an Executive Committee Meeting at which he and Director Hampson planned to present a Board Action Report (“BAR”) on Policy 0040 in an effort to adopt the policy without further staff involvement. See AR 33, 44-46. Departing from standard practice, the BAR was prepared by Director Hampson, not district staff See id. See also AR 35. Directors Hampson and DeWolf did not tell staff that they should not plan to speak at the meeting, though Dr. Doe and Ms. Roe expected they would do so in accordance with their usual practice and in light of their ongoing work on Policy 0040. See AR 44, 46. The MER Report found that Directors Hampson and DeWolf coordinated to limit the amount of time SEATTLE SCHOOL DISTRICT NO. 1S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 5 IONSECOND AMEN10 u 15 16 7 18 21 22 23 24 25 26 available for Dr. Doe and Ms. Roe to speak about Policy 0040, instead inviting others to speak who had not planned to do so, in order to use up the time allotted for the meeting. fd. When finally given an opportunity to speak at the meeting, the MFR Report further found that Director Hampson interrupted their presentation and used inappropriate tactics to attempt to curtail their remarks. AR 46. 4, The MFR Report Conclusions and the District’s Outcome Letter. The MFR Report found that the allegations of intersectional discrimination based on race and sex set forth in the memorandum were inconclusive. AR 40-41. With respect to the HIB claims, the MFR Report concluded that Director Hampson used her position and authority to the detriment of Dr. Doe and Ms. Roe in violation of Policy 5207. See AR 45-46. The report further concluded Director Hampson and Director DeWolf violated Policy 5207 because they intended to and did degrade and humiliate Dr. Doe and Ms. Roe in their workplace. See id. See also AR 1, 44- 46. On August 19, 2021, the district issued an “outcome letter” to convey the findings of the MER Report to Director Hampson. AR 1. The letter provided that though the MFR Report had concluded that Director Hampson violated Policy 5207, because she was not an employee of the district, it was up to the Board to determine whether any corrective action should be taken to address the violation. AR 1-2. The letter enclosed a copy of the MFR Report, Policy 5207, and the District’s prohibition against retaliation (Policy 5245 and Procedure 5245SP). AR 1-2 The Board Votes to Take Action With Respect to Director Hampson. At the Board meeting on September 9, 2021, the Board voted to provide Directors Hampson and DeWolf with a copy of Policy 5207 and further instructed them they are required to comply with it. 9/9/21 VRP 2:19-13:2; AR 314-15. Director Hampson now appeals. SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 6 IONSECOND AMEN10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 1. ARGUMENT Director Hampson assigns error to the district’s decision to adopt the MFR Report and the Board’s subsequent action. As detailed below, neither action is arbitrary and capricious or contrary to law, and as such, neither is subject to reversal by this Court, A. ‘The Applicable Standard of Review is Arbitrary and Capricious. It is well-established that this Court’s review of administrative decisions under RCW 28A.645.010 is limited to whether the challenged decision was arbitrary and capricious or contrary to law. Haynes v. Seattle Sch. Dist. No. 1, 111 Wn.2d 250, 253, 758 P.2d 7 (1988) (discussing the predecessor statute to RCW 28A.645.010); Bawden v. Seattle Pub. Sch., No. 82391-4-1, 2022 WL 277048, at *2 (Wash. Ct. App. Div. I, Jan. 31, 2022). Contrary to Director Hampson’s claims, this Court's review is not de novo. The Supreme Court has made clear the de novo standard of review under RCW 28A.645.010 applies only to quasi-judicial determinations, not administrative actions like the district’s investigation in accordance with Procedure 5010SP_ and the Board’s subsequent adoption of the MFR Report. Haynes, 111 Wn.2d at 254 (“[T]he constitutional jurisdiction of the superior court on appeal from agency action is as follows: If the power exercised by an agency is essentially administrative, the superior court, upon appeal provided by statute, is limited to a consideration of whether the agency acted arbitrarily, capriciously, or contrary to law.”). This limitation upon review of a nonjudicial decision by an administrative agency is a function of the doctrine of separation of powers. Porter v. Seattle Sch. Dist. No. 1,160 Wn. App. 872, 874, 248 P.3d 1111 (2011) (citing Household Fin. Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952)). Tellingly, Director Hampson cites no authority in support of her claim that the distriet’s action here was quasi-judicial, nor could she. Though citing Bawden in passing, Director Hampson does not acknowledge that in that case, issued just two months ago, Division I of the Court of SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 7 IONSECOND AMEN10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 Appeals applied the arbitrary and capricious standard of review to the exact policy under which the MFR Report was issued, Policy 5207. Bawden, 2022 WL 277048, at *2 (determining that teacher's performance evaluation did not violate Policy 5207). There is no reason for this Court to apply a different standard to the application of the same policy now. Moreover, numerous cases recognize the arbitrary and capricious standard applies to district decisions regarding personnel matters that do not arise under an employment contract or employment statute, See Yaw v. Walla Walla Sch. Dist. No. 140, 106 Wn. 2d 408, 416, 722 P.2d 803 (1986) (“The Board’s application of facts to the rules which it created, and which otherwise would simply not have existed, was considered an administrative action.”) (discussing State ex rel. Hood v. Pers, Bd., 82 Wn.2d 396, 401, 511 P.2d 52 (1973) (“Personnel administration [is] left exclusively to the discretion of management.”)). See also Haynes v. Seattle Sch. Dist. No. 1, 11 Wn.2d 250, 253-254, 758 P.2d 7 (1988) cert. denied 489 U.S. 1015, 109 S.Ct. 1129, 103 L.Ed.2d 191 (1989); Bawden, 2022 WL 277048, at *2, Finally, Director Hampson does not argue (nor cite) the four factors established by the Supreme Court in Francisco v. Bd. of Dirs. of the Bellevue Pub, Schs., 85 Wn.2d 575, 579-81, 537 P.2d 789 (1975) that determine whether an agency action is administrative or quasi-judicial. Applying the Francisco factors, the district's issuance of the outcome letter adopting the MFR Report and the Board’s subsequent action are clearly administrative. Under Francisco, courts consider: (1) whether this Court could have been charged in the first instance with the responsibility of making the challenged decision; (2) whether the function of the agency is one courts have historically performed; (3) whether the agency performs functions of inquiry, investigation, declaration and enforcement of liabilities as they stand on present or past facts under existing laws; and, (4) whether the agency’s action is comparable to the ordinary business of courts. Yaw, 106 Wn.2d at 414. SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 8 IONSECOND AMEN10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 Asa threshold matter, Director Hampson’s claims do not arise under a contract or statute that could have been adjuc ted by this Court in the first instance. Yaw, 106 Wn.2d at 416. Rather, as Director Hampson concedes, her claim concerns the alleged “misapplication of [district] Policy ion. 5207.” App. Br. at 18. Thus, the “challenged decision” is the result of an internal investig: pertaining to an internal district policy. Where such internal matters are at issue, an agency’s determination is administrative, See Jones v. Pers. Res. Bd., 134 Wn. App. 560, 571, 140 P.3d 636 (2006) (administrative action where investigation related to prohibitions codified within “internal [district] documents” and could not have been brought to court in the first instance). Moreover, the remaining Francisco factors also demonstrate the district's decision is tablished that courts do not historically perform internal reviews administrative. First, it is well- of personnel issues for compliance with internal policies. Jones, 134 Wn. App. at 571. Similarly, in adopting the MFR Report and admonishing Director Hampson to review the district’s policies, neither the district nor the Board “applied facts to law.” Jd. at 572 (action to enforce employee handbook * joes not allege violation on which a court may pass judgment” as “no law is being applied to facts.”); Bawden, 2022 WL 277048, at *2 (district's decision that performance evaluation did not violate Policy 5207 reviewed under arbitrary and capricious standard for administrative actions). Neither is the district's decision here “comparable to the ordinary business of the courts.” See Yaw, 106 Wn.2d at 416 (personnel issues not generally subject to judicial review). See also Jones, 134 Wn. App. at $72 (interpreting intemal policy “does not resemble a court’s ordinary business."). Director Hampson cites no authority where application of an internal personnel policy was determined to be a quasi-judicial function. This is because “as [courts] have said many times, the courts of this state are ill-equipped to act as super personnel agencies.” Wash, Fed'n of State Emps. v. State Personnel Bd.,29 Wn. App. 818, 820, 630 P.2d 951 (1981); Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 220-21, 643 P.2d 426 (1982) (“[T]he board's SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 9 IONSECOND AMEN10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 determination of what is in the best interests of the school district is not appropriately characterized as an application of law to fact, and the broad discretionary authority the statute confers upon the board does not resemble the ordinary business of the courts.”). In sum, the district’s decision and the Board’s subsequent action were administrative in nature. As such, the appropriate inquiry for this Court is whether such actions were arbitrary and capricious or contrary to law.’ As detailed below, they were not. B. The District's Decision Adopting the MFR Report Was Not Arbitrary and Capricious. Arbitrary and capricious agency action is “willful and unreasoning action .... without consideration and in disregard of the facts and circumstances of the case.” Porter, 160 Wn. App. at $80, By contrast, “faletion is not arbitrary or capricious when exercised honestly and upon due consideration where there is room for two opinions, however much it may be believed that an erroneous conclusion was reached.” Id, 160 Wn. App. at 880, Decisions are arbitrary or capricious only if they are made without reason or with flagrant disregard for material facts. Pierce Cy. Sheriff v. Civil Serv. Cmm’n of Pierce Cnty., 98 Wn.2d 690, 695, 658 P.2d 648 (1983). The district's adoption of the MFR Report was not arbitrary and capricious. The MFR Report was the result of 20 interviews with district staff and Board members, conducted over an eight-month period, by an external independent and highly-experienced workplace investigator. In addition to the interviews, Ms. Reed reviewed and considered thousands of pages of emails, policies, meeting minutes, and transcripts in reaching the conclusion that Director Hampson violated Policy 5207. See AR 4-47 (report); AR 48-104 (interview memoranda), 105-310 (documents referenced). The district’s process was consistent with its Policy 5010SP for > Even were this Court to apply the de novo standard urged by Director Hampson, which it should not do, the district's and Board's ations were well-supported by the record and should be upheld. SEATTLE SCHOOL DISTRICT NO. 1S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 10 a a10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 investigation and determination of complaints by district employees and Director Hampson does not argue otherwise. Compare AR 4-47 (report) with AR 131-136 (Policy 5010SP). Director Hampson’s brief does not articulate any failures in the investigation process, identify the district’s disregard of material facts, or allege any unreasonable action by the distret. App. Br. at 18, Rather, throughout her brief, Director Hampson highlights facts that Ms. Reed considered, but argues she should have reached different conclusions based upon those facts. For example, Director Hampson argues that her emails did not evidence intent to harass Dr. Doe or Ms, Roe, because the emails were sent to others. App. Br. 22, But the MFR Report reasonably concluded that the emails, along with Director Hampson’s conduct at the September 16 Executive Committee Meeting, showed that Director Hampson and Director DeWolf coordinated to inappropriately curtail Dr. Doe and Ms. Roe’s participation. See AR 23-28, 33, 46, 53-54, 62, 98 Similarly, Director Hampson contends her conduct on the August 28, 2020 conference call and vocal criticisms of Dr. Doe and Ms. Roe were merely “candid evaluations” regarding their “job performance.” App. Br. 20. But here, again, Director Hampson asks this Court to review certain portions of the record while ignoring others (¢.g., AR 29-31, 43, 45-47, 56-57, 96-97, 250). Relying on witness interviews and notes from participants on the August 28 call, the MFR Report reasonably concluded that Director Hampson’s conduct during the call, including yelling, making “abusive” and “disrespectful” comments, and questioning Dr. Doe and Ms. Roe’s veracity, violated Policy 5207, Far from demonstrating arbitrary and capricious action by the district, Director Hampson’s brief simply recites the same series of events carefully investigated and considered by Ms. Reed and declares them in her view to be “wholly appropriate” or not indicative of ill-intent. App. Br. at 18-25. Mere disagreement with the district’s decision, however, is an insufficient basis for this Court to overturn it. Hillis v, State of Wash., Dept. of Ecology, 131 Wn.2d 373, 383, 932 P.2d 139 SEATTLE SCHOOL DISTRICT NO. 1S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 11 a a10 u 12 13 4 15 16 7 18 20 21 22 23 24 25 26 (1997) (“Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroncous.”). Moreover, the record demonstrates a careful and extensive investigation into the events leading up the outcome does not to the staff complaint, and Director Hampson’s disappointment undermine the district's process. Director Hampson identifies no authority under which this Court could substitute a contrary judgment for the district’s thorough investigation, The arbitrary and capricious standard recognizes deference is owed to agencies which are better positioned than courts to decide issues involving personnel. See Wash. Fed'n of State Emps, 29 Wn. App. at 820; Yaw, 106 Wn.2d at 413-414. In sum, the district’s decision was not arbitrary and capricious and must be upheld. C. The District’s Decision Adopting the MFR Report Was Not Contrary to Law. When determining whether an agency action is contrary to law, courts “accord substantial deference to the agency’s interpretation of law in matters involving the agency’s special knowledge and expertise.” Bawelen, 2022 WL 277048, at *2 (quoting Overlake Hosp. Ass’n v. Dep't of Health, 170 Wn.2d 43, 50, 239 P.3d 1095 (2010)). This is particularly true in personnel matters, where the government “must have wide discretion and control over the management of its personnel and internal affairs.” /d. (quoting Binkley v. Tacoma, 114 Wn.2d 373, 386-87, 787 P.2d 1366 (1990)). Director Hampson identifies no laws implicated by the district’s decision, let alone violated by it’ Rather, without citation to authority or the record, the remainder of Director Hampson’s brief consists of policy arguments about why application of Policy 5207 to Board members like * Director Hampson's complaint alleges that application of Policy $207 is “unconstitutional” but fails to advance that argument inher brie: SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 12 IONSECOND AMEN10 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 herself is unwise.’ App. Br. at 17-25. Director Hampson does not challenge the authority under which the Board promulgated its anti-harassment policy, she merely disagrees with its application to her own conduct. Again, her claims are insufficient to warrant this Court’s intervention. Washington courts give great deference to an agency's interpretation of its own properly promulgated policy, especially where, as in this case, the policy concerns personnel operations. Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 627, 444 P.3d 606 (2019); Yaw, 106 Wn.2d at 416 (absent rights created by an employment statute or employment contract, personnel administration is left exclusively to the discretion of management); Wash. Fed'n of State Emps., 29 Wn. App. at 820 (recognizing courts are ill-equipped to act as personnel agencies); Bawden, No. 82391 |, 2022 WL 277048, at *2 (same). Finally, Director Hampson overlooks the fact that as a Board member, she is empowered to propose changes to Policy 5207, to vote to repeal it, or to argue it should not apply to Board members at all. Director Hampson has ample remedies to address her concerns that Policy 5207 “obstructs the Board's policymaking function” or prevents Board members from “criticizing staff performance.” App. Br. at 19. But none of those remedies involve this Court second-guessing the district’s careful and well-documented investigation. The district’s decision to adopt the findings of the MFR Report was not contrary to law and Director Hampson’s appeal should be dismissed D. The Board’s Action Was Appropriate. In response to the conclusions in the MFR Report, at the September 9, 2021 Board meeting, the Board voted to take the following action with respect to Directors Hampson and DeWolf: 5 See App. Br. 17 (“The district's staff should not be permitted to equate an elected director's effort to govern the district with harassment, intimidation, and bullying": App. Br. 19. (“An adjudicatory body. should not construe a policy on harassment, intimidation, and bullying in a way that rebalanees responsibility in favor of bureaueras..."); ("The district erroneously interpreted {the prohibition on harassment, intimidation, and bullying] so broadly that an elected director eannot even criticize stalT performance.” SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 13 IONSECOND AMEN10 u 15 16 7 18 20 21 22 23 24 25 26 (1) provide a copy of Policy 5207 and Procedure 5207SP to Directors Hampson and DeWolf; (2) instruct Directors Hampson and DeWolf that they are required to comply with Policy 5207 and Procedure 5207SP and request that they review the Policy and Procedure and direct any questions regarding its provisions to District staff, and (3) request that District staff provide training on Policy 5207 and Procedure 5207SP to all new School Board Directors prior to or as soon as practicable after commencement of Board service and provide ongoing training regarding Policy 5207 to School Board Directors as needed. centence must be vacated” because it is based on the AR 314-15, Director Hampson claims thi district’s “flawed decision” that Director Hampson violated Policy 5207. App. Br. at 25. She accordingly asks this Court to “vacate the Board’s motion.” Jd. Director Hampson provides no argument or authority in support of this request, nor explains why directing a board member to review and comply with well-established district policy is arbitrary and capricious or contrary to law. The Board’s decision to direct Director Hampson to review and in the future comply with the policy she violated is a “policy decision” plainly within the Board's authority to manage its internal affairs and not subject to this Court's intervention. RCW 28A.320.015 (school board has broad discretionary power to implement policies); see also Butler v. Lamont Sch, Dist. No. 246, 49 Wn. App. 709, 712, 745 P.2d 1308 (1987), dismissed (Oct. 3, 1988) (“The choice of sanction is a policy decision....which neither judge nor jury is entitled to usurp from the board.”); Bawden, 2022 WL 277048, *2 (the district “must have wide discretion and control over the management of its personnel and internal affairs.”) (quotations omitted). Iv, CONCLUSION ‘The MER Report was the result of a thorough and impartial investigation, conducted over many months, and involving dozens of district staff. The report's findings were communicated in extensive detail and well-supported. The district’s administrative decision to adopt the report and the Board’s subsequent action directing Director Hampson to review and comply with longstanding district policy are well within the distriet’s authority to manage personnel issues. As SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 14 IONSECOND AMEN10 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 such, Director Hampson’s appeal fails to identify any arbitrary and capricious or unlawful action and should be dismissed. DATED this 18" day of March, 2022. PACIFICA LAW GROUP LLP By: s/Kymberly K. Evanson Kymberly K. Evanson, WSBA #39973 Jacob A. Zuniga, WSBA #48458 Attorneys for Defendant/Respondent Seattle School District No. 1 SEATTLE SCHOOL DISTRICT NO. 1S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 15 Tinskeow avec10 u 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE On the 18th day of March, 2022, I caused to be served, via the King County E-Service filing system, and via electronic mail, a true copy of the foregoing document upon the parties listed below: Philip A. Talmadge Gary M. Manca Talmadge/Fitzpatrick 2775 Harbor Ave SW Third Floor, Suite C Seattle, WA 98126 phil@tal-fitzlaw.com gary(@tal-fitzlaw.com will@tal-fitzlaw.com Attorneys for Plaintiff’Appetlan DATED this 18" day of March, 2022. SRS Sydney Henderson SEATTLE SCHOOL DISTRICT NO. 1’S. PACIFICA LAWGROUP LLP RESPONSE BRIEF - 16 Tinskeow avec