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Andrew Bergh
Andrew Bergh

November 27, 1997

The swift, sure hand of justice

By ANDREW BERGH
Special to the Journal

If you want a shining example of governmental efficiency, look no farther than Galvin v. Employment Sec. Dept. In that case, it only took six hearings, four memoranda, one suspension and 12 months before a city employee with chronic attendance problems got fired for misconduct.

But that's only half of it. Following her dismissal, the employee filed a claim for unemployment benefits. Once again, our lean mean governmental machine went into action. This time, it only took three administrative proceedings, one Superior Court hearing, one appeal and 16 months before a final decision was made.

The central figure in the Galvin case is a King County woman who formerly worked for the Seattle Department of Parks and Recreation.

In Feb. 1989, Carrie Galvin took a job with the Department as a full-time general laborer. For several years, things evidently went smoothly.

But by early 1994, Galvin had an established track record for less-than-regular attendance. Consequently, three months in a row, she had to attend fact-finding hearings to discuss items like her poor attendance, excessive use of sick leave, and unfortunate habit of not calling in sick. After the third hearing in May, Galvin got a memorandum advising her to "significantly improve" her attendance, participate in counseling, and report all absences within an hour of her shift.

The message didn't sink in, as Galvin had to attend another fact-finding hearing in early November. By then, she had missed almost 550 hours of work in 1994. (No, your calculator isn't lying, that's almost 14 weeks of work.) After this meeting, Galvin got a memorandum saying, among other things, that she had to improve her attendance immediately to keep her job with the department, that she had to submit medical documentation for all illnesses, and that she had to request vacation time at least 48 hours in advance.

Things still didn't improve. Indeed, after another hearing in late Nov. 1994, the head honcho at the Parks Department suspended Galvin three days for not complying with prior orders.

The threat of losing her job made Galvin change her ways in 1995, right? NOT! She instead dropped out of counseling, while still missing a lot of work because of illness.

But the straw that really broke the camel's back occurred in February 1995 when Galvin took a vacation day without prior approval. Two memoranda and one hearing later, Galvin finally got axed by the superintendent. Her dismissal in mid-March was based on excessive sick leave, failing to participate in counseling, and taking vacation time without prior approval.

As mentioned, however, this only precipitated round two, as Galvin soon applied for unemployment. At that juncture, the state Employment Security Department entered the picture.

What followed was like a slow-motion tennis match.

First, ESD denied Galvin's request on the ground her discharge resulted from misconduct. An administrative law judge, who felt Galvin's absences were beyond her control, reversed this decision.

When the city appealed, an ESD commissioner reversed the reversal. But when Galvin sought judicial review, a King County Superior Court judge ruled in her favor. After its motion for reconsideration was denied, ESD appealed.

The decision by our state appeals court is almost anticlimactic.

The issue, the appeals court said, is whether Galvin was discharged for misconduct. And as to her illness-related absences, the court ultimately ruled that Galvin shouldn't be penalized since there was no evidence she wasn't legitimately ill on those occasions.

What tripped Galvin up, though, was her unapproved vacation day. That amounted to misconduct, the appeals court said, because Galvin had intentionally disregarded her superintendents written directive that vacation time be requested 48 hours in advance.

Given the extraordinary duration of the disciplinary and judicial proceedings, it's ironic that Galvin will be denied unemployment benefits on account of 48 hours. But hey, that's just your tax dollars at work.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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