author: Worswick, P.J.

text:
    State of Washington DEPARTMENT OF REVENUE, Respondent, v. GAMESTOP, INC. and SOCOM, LLC, Appellants.
    No. 50409-0-II
    Court of Appeals of Washington, Division 2.
    Filed March 19, 2019
    Michele G. Radosevich, Davis Wright Tremaine LLP, 1201 3rd Ave. Ste. 2200, Seattle, WA, 98101-3045, for Appellants.
    Charles E. Zalesky, Attorney General of Washington, PO Box 40123, Olympia, WA, 98504-0123, for Respondent.
    PUBLISHED OPINION
   Worswick, P.J.

¶1 GameStop Corporation (GameStop) is a video game software and hardware retailer that offers a trade-in program where customers may trade in used merchandise and receive store credit for the value of their merchandise. GameStop appeals a superior court order that reversed the Board of Tax Appeals (Board). The superior court ruled that the Department of Revenue had correctly assessed retail sales tax on certain transactions where customers made a trade of video game hardware and software or where a customer purchased store merchandise with store credit earned from a prior trade-in of property.

¶2 We hold that video game hardware and video game software are not "property of like kind" under RCW 82.08.010(1)(a)(i) and WAC 458-20-247(5), and GameStop's records do not properly identify "separately stated trade-in property" as required by RCW 82.08.010(1)(a)(i). Accordingly, we reverse the Board's decision amending GameStop's retail sales tax assessments and remand for further proceedings.

FACTS

¶3 GameStop Inc. and SOCOM LLC are wholly-owned affiliates of GameStop Corporation. Through these two affiliates, GameStop operates approximately 82 retail stores in Washington. GameStop is a retailer of new and used video game software, hardware, and accessories, as well as computer software and other merchandise. GameStop offers its customers a trade-in program in which a customer may trade in used merchandise and elect to receive either cash or store credit for the value of the used merchandise.

¶4 When a customer chooses to receive store credit, the credit may be used on an immediate purchase of GameStop merchandise, or the value of the traded-in property may be placed on a stored-value card as a credit to be used at a later date. The store credit may be used only for the purchase of new or used GameStop merchandise.

¶5 When a customer uses his or her store credit on an immediate purchase of merchandise, GameStop's sales documents identify the specific merchandise the customer traded in. But when a customer uses the store credit at a later date, GameStop's sales documents state only the amount of store credit applied toward the purchase and do not identify the merchandise that had been traded in. Nonetheless, GameStop can determine what specific merchandise was traded in through its computerized business records.

¶6 Washington imposes retail sales tax on each retail sale of tangible personal property. RCW 82.08.020(1)(a). However, "separately stated trade-in property of like kind" is excluded from the calculation of retail sales tax. RCW 82.08.010(1)(a)(i).

¶7 The Department promulgated WAC 458-20-247 (Rule 247) to aid in its enforcement of this retail sales tax exclusion. Rule 247 provides that the delivery of trade-in property and the purchase of other merchandise must "be components of a single transaction." WAC 458-20-247(4). Rule 247 also states that "property of like kind" is defined as property within the same generic classification. WAC 458-20-247(5). Rule 247 specifically states that a trade of computer hardware for computer software is not an exchange of property of like kind. WAC 458-20-247(5).

¶8 GameStop concluded that a number of its trade-in transactions fell within the retail sales tax exclusion in RCW 82.08.010(1)(a)(i). From 2006 through 2010, GameStop did not charge retail sales tax on transactions where:

(1) a customer traded in video game software and used the store credit toward the purchase of video game hardware, (2) a customer traded in video game hardware and used the store credit toward the purchase of video game software, and (3) a customer used store credit from a prior trade-in on a later purchase of merchandise.

¶9 In 2012, the Department audited GameStop for the January 2006 through December 2010 tax periods. The Department concluded that GameStop improperly claimed the trade-in exclusion on transactions where a customer traded in video game software and used the store credit toward the purchase of video game hardware (and vice versa), as well as transactions involving the use of store credit from a prior trade-in on a later purchase. The Department assessed GameStop approximately $3,200,000 in additional taxes and interest.

¶10 GameStop appealed the assessment to the Department's Appeals Division. The Department denied GameStop's appeal, and GameStop then appealed to the Board.

¶11 The Board held an evidentiary hearing. Michael Nichols, GameStop's Treasurer and Senior Vice President of International Finance, testified that when a customer accepted store credit for the value of their traded-in merchandise, the customer could use the store credit toward a future purchase at GameStop. Nichols also testified that video game consoles perform functions, such as playing DVDs and music, as well as streaming content from the Internet. Nichols also stated that video games did not perform similar functions as game consoles. Following the hearing, the Board entered its final decision, which included findings of fact and conclusions of law.

¶12 The Board decided that the transactions at issue were entitled to the retail sales tax exclusion under RCW 82.08.010(1)(a)(i), reasoning that video game hardware and video game software were "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5). Clerk's Papers (CP) at 28. It determined that video game hardware and video game software fell within the general classification of "gaming components" and that "[g]aming hardware (consoles and controllers) and gaming software (video games) are interdependent components of an integrated system" that are bound together in their function and use. CP at 26-27.

¶13 Further, the Board decided that purchases made with store credit that had been earned from a prior trade-in were "separately stated" for purposes of RCW 82.08.010(1)(a)(i). Noting that RCW 82.08.010(1)(a)(i) and Rule 247(4) require the consideration for a trade-in of like kind property be separately stated in the transaction, the Board reasoned that GameStop met this requirement. Because GameStop's sales documents separately identified the new or used merchandise purchased, as well as the store credit derived from the prior trade-in of property, the Board considered GameStop's record system compliant with RCW 82.08.010(1)(a)(i) and Rule 247(4). Finally, the Board concluded that a purchase of merchandise with store credit that was earned in a prior trade-in was part of a single transaction under RCW 82.08.010(1)(a)(i) and Rule 247(4).

¶14 The Board ordered that the retail sales taxes assessed to GameStop be amended because the transactions at issue were entitled to the trade-in retail sales tax exclusion under RCW 82.08.010(1)(a)(i). The Department filed a petition in superior court seeking judicial review of the Board's final decision. The superior court entered an order reversing the Board's order. GameStop appeals.

ANALYSIS

¶15 The Department argues that the Board erred in ordering the Department to amend GameStop's retail sales tax assessments because (1) the Board misapplied the law by concluding that video game hardware and video game software are "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5), (2) the Board misinterpreted the law by concluding that the retail sales tax exclusion prescribed by RCW 82.08.010(1)(a)(i) and Rule 247(4) applies to transactions where a customer purchases store merchandise by redeeming store credit earned from a prior trade-in of used merchandise, and (3) the Board misinterpreted the law by concluding that store credit from a prior trade-in is "separately stated trade-in property" under RCW 82.08.010(1)(a)(i). Because we hold that video game hardware and video game software are not "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5) and that GameStop did not comply with the "separately stated trade-in property" requirement of RCW 82.08.010(1)(a)(i), we reverse the Board's decision amending GameStop's retail sales tax assessments. We disagree with the Department's other arguments. Thus, we reverse the Board's decision and remand for further proceedings.

I. LEGAL PRINCIPLES

¶16 Appeals from the Board are governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. Steven Klein, Inc. , 183 Wash.2d at 895, 357 P.3d 59. We will reverse a Board's decision if it is based on an erroneous interpretation or application of the law. RCW 34.05.570(3)(d) ; Steven Klein, Inc. , 183 Wash.2d at 895, 357 P.3d 59. When reviewing the Board's decision, we sit in the same position as the superior court. Dep't of Revenue v. Sec. Pac. Bank of Wash. Nat'l Ass'n , 109 Wash. App. 795, 802, 38 P.3d 354 (2002). The burden of demonstrating the invalidity of the Board's decision is on the party asserting invalidity. RCW 34.05.570(3)(e) ; Steven Klein, Inc. , 183 Wash.2d at 896, 357 P.3d 59.

¶17 We review the Board's decisions based on statutory interpretation de novo. Tesoro Ref. & Mktg. Co. v. Dep't of Revenue , 173 Wash.2d 551, 556, 269 P.3d 1013 (2012). The primary goal of statutory interpretation is to determine and implement the legislature's intent. Tesoro , 173 Wash.2d at 556, 269 P.3d 1013. To determine the legislature's intent, we first look to the plain language of the statute to discern its plain meaning. Tesoro , 173 Wash.2d at 556, 269 P.3d 1013. "We discern the plain meaning from the ordinary meaning of the language at issue, the statute's context, related provisions, and the statutory scheme as a whole." Dep't of Revenue v Sprint Spectrum, LP. , 174 Wash. App. 645, 658, 302 P.3d 1280 (2013).

¶18 If the plain language of the statute is subject only to one interpretation, it is unambiguous and we give effect to the statute's plain meaning as an expression of legislative intent. Tesoro , 173 Wash.2d at 556, 269 P.3d 1013 ; Skagit Cty. Pub. Hosp. Dist. No. 1 v. Dep't of Revenue , 158 Wash. App. 426, 437, 242 P.3d 909 (2010). We cannot add words to an unambiguous statute. Dot Foods, Inc. v. Dep't of Revenue , 166 Wash.2d 912, 921, 215 P.3d 185 (2009). If, however, the plain language of the statute is susceptible to two or more reasonable interpretations, the statute is ambiguous. Agrilink Foods, Inc. v. Dep't of Revenue , 153 Wash.2d 392, 396, 103 P.3d 1226 (2005). We give substantial weight to the Department's interpretation of an ambiguous statute. Dep't of Revenue v. Bi-Mor, Inc. , 171 Wash. App. 197, 202, 286 P.3d 417 (2012).

¶19 The Department may prescribe regulations to enforce the tax code. RCW 82.32.300. We give great deference to the Department's interpretation of its own regulations, especially where the legislature has silently acquiesced over a long period to the Department's construction. In re Sehome Park Care Center, Inc. , 127 Wash.2d 774, 780, 903 P.2d 443 (1995) ; First Student, Inc. v. Dep't of Revenue , 4 Wash. App. 2d 857, 872, 423 P.3d 921 (2018). However, the Department's interpretation is not binding on this court. Dep't of Labor & Indus. v. Granger , 159 Wash.2d 752, 764, 153 P.3d 839 (2007).

¶20 We presume that a regulation is valid if it is reasonably consistent with the statute it implements. Pierce Cty. v. State , 144 Wash. App. 783, 836, 185 P.3d 594 (2008). But the Department does not have the power to promulgate regulations that amend or change legislative enactments. Pierce Cty. , 144 Wash. App. at 836, 185 P.3d 594. Consequently, regulations that are inconsistent with the statutes they implement are invalid. Granger , 159 Wash.2d at 764, 153 P.3d 839.

¶21 Under Washington's tax code, retail sales tax is imposed on each retail sale of tangible personal property. RCW 82.08.020(1)(a). The retail sales tax is calculated based on the "sales price" of the item sold. RCW 82.08.010(1)(a)(i), .020(1)(a). Under RCW 82.08.010(1)(a)(i), the "sales price" is "the total amount of consideration, except separately stated trade-in property of like kind, including cash, credit, property, and services, for which tangible personal property ... [is] sold." Accordingly, separately stated trade-in property of like kind is exempt from retail sales tax. RCW 82.08.010(1)(a)(i).

¶22 The Department promulgated Rule 247, which provides in relevant part:

(4) Trade-in as consideration. Property traded in must be consideration delivered by the buyer to the seller. The sales documents must identify the tangible personal property being purchased and trade-in property being delivered to the seller. This does not require simultaneous transfers of the property being traded in and the property being purchased, but it does require that the delivery of the trade-in and the purchase be components of a single transaction. Sales documents, executed not later than the date the trade-in property is delivered to the seller, must identify the property purchased and the trade-in property ....
(5) Property of like kind. The term "property of like kind" means articles of tangible personal property of the same generic classification. It refers to the class and kind of property, not to its grade or quality. The term includes all property within a general classification rather than within a specific category in the classification. ... These general classifications are determined by the nature of the property and its function or use. ...
... The exclusion of the value of property traded in, however, does not include such things as a motorcycle for a boat, a diamond ring for a television set, a battery for lumber, computer hardware for computer software , or farm machinery (including tractors and self-propelled combines) for a car.

(Emphasis added.)

II. PROPERTY OF LIKE KIND

¶23 The Department argues that the Board erred in ordering the Department to amend GameStop's retail sales tax assessments because the Board misapplied the law by concluding that video game hardware and video game software are "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5). We agree.

¶24 Under RCW 82.08.010(1)(a)(i), "separately stated trade-in property of like kind" is excluded from the calculation of retail sales tax. Rule 247(5) provides that "property of like kind" means

articles of tangible personal property of the same generic classification. It refers to the class and kind of property, not to its grade or quality. The term includes all property within a general classification rather than within a specific category in the classification. ... These general classifications are determined by the nature of the property and its function and use.

Rule 247(5) specifically states that a trade of computer hardware and computer software is not a trade of like kind property.

¶25 The language of Rule 247(5) regarding computer hardware and software appears to have derived from a Department of Revenue administrative decision. Wash. Dep't of Revenue, Determination No. 91-044, 10 Wash. Tax Dec. 395 (1990). Although administrative decisions are not binding on this court, we recognize certain decisions of the Board as persuasive authority. N. Cent. Wash. Respiratory Care Servs., Inc. v. Dep't of Revenue , 165 Wash. App 616, 635, 268 P.3d 972 (2011).

¶26 In Determination No. 91-044, the taxpayer argued that computer hardware and software should be generically classified as a "computer system" as defined in WAC 458-20-15501 (Rule 155.01) and, therefore, were like-kind property under Rule 247. Determination No. 91-044, at 2. However, the administrative law judge ruled that software and hardware are not property of like kind under Rule 247 because software and hardware do not serve the same purpose nor are they property of the same general class. Determination No. 91-044, at 6. "Hardware is generally the mechanical and electronic parts of a computer; software (programs) is generally the instructions that command the hardware." Determination No. 91-044, at 6.

¶27 Here, during the Board's evidentiary hearing, Nichols testified that video game consoles perform a number of functions, including playing DVDs and music, as well as streaming Internet content. Nichols also stated that video game software cannot perform those same functions. In its final decision, the Board determined that video game hardware and video game software were "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5) because they fall within the same general classification of "gaming components." The Board reasoned that because video game hardware and video game software are components of an integrated system, they necessarily performed the same function and use.

¶28 We hold that video game software and video game hardware are not property of like kind because software and hardware do not perform the same function or use. RCW 82.08.010(1)(a)(i) does not define the term "property of like kind." Rule 247(5) states that property of like kind is tangible personal property with the same generic classification. To determine whether tangible personal property has the same generic classification, we look to the "nature of the property and its function or use." WAC 458-20-247(5).

¶29 Although video game software and video game hardware are employed together, they do not perform the same function or use. Video game hardware contains a computer system that is made up of mechanical and electronic parts and includes a computer processing unit, graphics processing unit, and memory. On the other hand, video game software provides commands to the hardware and directs its operation so that a video game may function. The use of video game hardware does not require the use of video game software.

¶30 In addition, video game software performs the discrete function of allowing a video game to play on a console. A console can be used for a number of other independent functions, like Internet streaming. Moreover, video game software and video game hardware are a subcategory of computer software and computer hardware, and Rule 247(5) explicitly provides that computer hardware and computer software do not have the same function and purpose. Further, the legislature has never changed RCW 82.08.010(1)(a)(i) in response to Rule 247(5).

¶31 Because video game software and video game hardware are not within the same generic classification, they are not "property of like kind." Thus, the Board misapplied the law in determining that video game software and video game hardware are property of like kind for purposes of RCW 82.08.010(1)(a)(i) and Rule 247(5).

III. SEPARATELY STATED TRADE-IN PROPERTY

¶32 The Department also argues that the Board erred in ordering the Department to amend GameStop's retail sales tax assessments because the Board misinterpreted the law by concluding that store credit from a prior trade-in is " 'separately stated' trade-in property" under RCW 82.08.010(1)(a)(i). Br. of Resp't (Department) at 39-42. We agree.

¶33 We employ traditional rules of grammar in determining the plain language of a statute. State v. Bunker , 169 Wash.2d 571, 578, 238 P.3d 487 (2010). RCW 82.08.010(1)(a)(i) states in relevant part:

"Selling price" includes "sales price." "Sales price" means the total amount of consideration, except separately stated trade-in property of like kind, including cash, credit, property, and services, for which tangible personal property, extended warranties, digital goods, digital codes, digital automated services, or other services or anything else defined as a "retail sale" under RCW 82.04.050 are sold, leased, or rented, valued in money, whether received in money or otherwise.

¶34 To determine the plain meaning of RCW 82.08.010(1)(a)(i), it is helpful to examine the grammatical structure of the statute. See Bunker , 169 Wash.2d at 578, 238 P.3d 487. Here, "except separately stated trade-in property of like kind" is a parenthetical phrase offset by commas. "A comma serves many functions, but its purpose always is to set a phrase apart from the rest of the sentence." E. Gig Harbor Improvement Ass'n v. Pierce Cty. , 106 Wash.2d 707, 713, 724 P.2d 1009 (1986). Because this parenthetical phrase is set off by commas, it acts independently, providing an exception to "the total amount of consideration" for the sales price. As a result, "the total amount of consideration" includes "cash, credit, property, and services." The statute unambiguously identifies what is included in the sales price (cash, credit, property, and services), and thus subject to taxation, and what is not (separately stated trade-in property of like kind).

¶35 When a GameStop customer trades in used merchandise and chooses to receive store credit for the value of the used merchandise, the customer may either use the credit immediately or at a later date. When a customer chooses to use his or her store credit on the purchase of store merchandise at a later date, GameStop's sales documents state the amount of store credit previously earned, but not the specific merchandise traded in. The Board determined that purchases made with store credit were separately stated amounts under RCW 82.08.010(1)(a)(i), even where GameStop's sales documents did not separately identify the property that was traded in.

¶36 The Board's interpretation of RCW 82.08.010(1)(a)(i) as merely requiring that "sales documents separately identify the consideration derived from the trade-in property" is divergent from the plain meaning of the statute. CP at 26. The statute does not state "except separately stated trade-in value ." Rather, "except separately-stated trade in property of like kind" includes only the property traded in.

¶37 Moreover, the Board's interpretation of RCW 82.08.010(1)(a)(i) defeats the purpose of the separately stated requirement. The parties agree that the "separately stated" requirement's purpose is to facilitate the Department's audit of a taxpayer's records. GameStop does not dispute that the sales documents at the time of the sale do not separately state the traded in property. Nonetheless, it argues that it has fulfilled the separately stated requirement because the trade-in property is listed at the time of the trade-in transaction. But if a GameStop customer were to trade in a combination of games and a console for credit and then apply a portion of that credit towards a subsequent purchase of merchandise, GameStop's record system would not be able to attribute the specific credit used to the games or the console traded in.

¶38 Because the traded-in merchandise is not separately stated on the subsequent sales receipts as required by RCW 82.08.010(1)(a)(i), it is unknown which portions of the credit used were traded in game-for-game or console-for-game. This ambiguity in GameStop's records prevents an accurate accounting of transactions involving store credit. As such, GameStop's record system does not comport with RCW 82.08.010(1)(a)(i).

CONCLUSION

¶39 We hold that video game hardware and video game software are not "property of like kind" under RCW 82.08.010(1)(a)(i) and Rule 247(5) and that GameStop did not comply with the "separately stated trade-in property" requirement of RCW 82.08.010(1)(a)(i). Accordingly, we reverse the Board's decision amending GameStop's retail sales tax assessments and remand for further proceedings consistent with this opinion.

We concur:

Johanson, J.P.T.

Melnick, J.

      GameStop also argues that the single transaction requirement of WAC 458-20-247(4) is invalid because it conflicts with RCW 82.08.010(1)(a)(i). Because we do not need to resolve this question to decide the case, we do not address this argument.

      Both the Board and the parties are in agreement that the term "separately stated" means that the sales documents for a trade-in transaction provide a specific entry that identifies the property traded in.

      A trade of video game software for hardware and a trade of video game hardware for software form the basis of the "property of like kind" issue. The use of prior credit towards a later purchase forms the basis of the "separately stated trade-in property" issue.

      The Department audited GameStop Inc. for the January 2006 to December 2010 reporting periods and audited SOCOM LLC for the January 2008 to December 2010 reporting periods. The audits resulted in assessments of additional retail sales tax for both entities, which both administratively appealed. The Department's appeals division consolidated the two appeals.

      Although GameStop appeals from the superior court's reversal of the Board's order, the Department bears the burden of showing that the Board erred in ordering that the Department amend the additional taxes assessed to GameStop. RCW 34.05.570(3)(e) ; Steven Klein, Inc. v. Dep't of Revenue , 183 Wash.2d 889, 896, 357 P.3d 59 (2015).

      The Department also argues that we should reject the Board's finding of fact 12 because it is not supported by substantial evidence. The Department admits that "this finding is not significant for purposes of deciding this appeal." Br. of Resp't (Department) at 38. Finding of fact 12 states that a customer who chooses to exchange merchandise for store credit "is choosing to trade his or her used merchandise for new or used in-store merchandise." Administrative Record at 36. We agree with the Department that this finding is insignificant, and we also hold that sufficient evidence supports it. Nichols testified that GameStop customers can purchase only store merchandise with the store credit and may purchase either new or used store merchandise. We find this evidence sufficient to persuade a fair-minded person of its truth. Pilchuck Contractors, Inc. v. Dep't of Labor & Indus. , 170 Wash. App. 514, 517, 286 P.3d 383 (2012).

      Rule 155.01 defines a "computer system" as a "functional unit, consisting of one or more computers and associated software ...." WAC 458-20-15501(1)(b).

      The Department characterizes the Board's decision regarding like kind property as creating a new "interdependent components" standard, then argues that the Board misapplied this new standard. Because the Board did not create a new standard, and because we reverse the Board's decision regarding whether software and hardware are property of like kind, we do not address this argument.

      The parties do not argue that Rule 247(5) is inconsistent with RCW 82.08.010(1)(a)(i).

      The Department also assigns error to finding of fact 15, which provides:
      When the trade-in credit is loaded onto a stored-value card and used at a later date, the sales invoice pertaining to the subsequent purchase of merchandise identifies the new purchases and states the separate amount of trade-in credit that is being applied as an offset. The Taxpayer maintains computerized business records from which the Taxpayer (or an auditor) can identify each item of trade-in property that generated the credit on the stored-value card.
      Clerk's Papers (CP) at 23. An appellant's brief must include arguments supporting the issues presented for review and citations to legal authority. RAP 10.3(a)(6). Because the Department does not provide argument suggesting that the Board's finding was erroneous and does not provide citation to authority, we do not consider this assignment of error.

      For example, a customer could trade in a mixture of games and consoles for store credit, then return at a later time to use some of that credit, but also trade in additional merchandise to add to his credit balance. Then the customer could return again to purchase additional merchandise. At some point, because the traded-in merchandise is not separately stated on the subsequent sales receipts as required by RCW 82.08.010(1)(a)(i), GameStop's record-keeping system would be unable to determine which type of merchandise was represented on the customer's credit balance.


source: Caselaw Access Project

author: BOOMGAARDEN, Justice.

license: Public Domain

text:
    Catherine F. MAHONEY, Appellant (Petitioner), v. CITY OF GILLETTE, Appellee (Respondent), and State of Wyoming, ex rel., Department of Workforce Services, Unemployment Insurance Commission, Appellee (Intervenor/Respondent).
    S-18-0151
    Supreme Court of Wyoming.
    March 6, 2019
    Representing Appellant: Alexander Berger and Sean Brown, Gillette, WY.
    Representing Appellee City of Gillette: Amanda F. Esch, and Leah C. Schwartz, Davis & Cannon, LLP, Cheyenne and Jackson, WY; Anthony M. Reyes, City of Gillette Attorney's Office, Gillette WY.
    Representing Appellee Department of Workforce Services, Unemployment Insurance Commission: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; J.C. DeMers, Senior Assistant Attorney General; Peter Howard, Assistant Attorney General.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   BOOMGAARDEN, Justice.

[¶1] Appellant, Catherine Mahoney, applied for unemployment insurance after the City of Gillette (City) terminated her employment. The Unemployment Insurance Commission (Commission) denied her application and the district court affirmed the Commission's decision. Ms. Mahoney argues on appeal, first, that the Commission lacked substantial evidence to conclude she committed misconduct connected with her work, and, second, that the City violated her First Amendment rights when it dismissed her for constitutionally protected speech. Finding neither argument persuasive, we affirm.

ISSUES

[¶2] We rephrase Ms. Mahoney's issues:

1. Was there substantial evidence to support the Commission's determination that Ms. Mahoney engaged in misconduct connected with her work?
2. Did the City violate Ms. Mahoney's First Amendment rights when it terminated her employment?

FACTS

[¶3] Ms. Mahoney worked at-will as a communications technician (dispatcher) for the City's police department (Department) for over seven years. On two different occasions during the course of her employment, Ms. Mahoney contacted the City's human resources department and the City's administrator about concerns she had with her supervisors and work environment. The response she received on both occasions was to "give it some time." Dissatisfied by these responses, Ms. Mahoney contacted a member of the city council and the two discussed Ms. Mahoney's concerns, which included a hostile work environment, harassment, poor training programs, and unorganized and unprofessional supervision-all of which Ms. Mahoney attributed to a lack of leadership. Their first two meetings occurred in October and November 2016. The council member told Ms. Mahoney he would try to help her, but he needed documents regarding her concerns. They met a second time in November, together with other dispatchers, and Ms. Mahoney gave the council member some documents. Ms. Mahoney also gave the council member a letter indicating why she and other employees were coming to discuss concerns with him. She signed the letter "on behalf of the Police Dispatch Employees" and included her job title.

[¶4] In early December, Ms. Mahoney emailed herself (at her work account) correspondence and attached documents to give to the council member at their next meeting. Among the email's attachments, Ms. Mahoney sent confidential tables the Department maintained to show registered alarms in the City. Ms. Mahoney believed it was the Department's policy not to respond to calls from unregistered alarm systems. She thought that her supervisor was not correctly updating the tables and the failure to do so posed a safety risk to the City and its residents if the police ever failed to respond to a call from an alarm that was registered, but appeared not to be according to the tables. The tables listed residential and commercial alarms along with personal identifying information, including names, addresses, phone numbers, social security numbers, and birth dates. Ms. Mahoney did not redact this information before emailing it to herself or before she gave the council member copies of the emailed documents on December 14, 2016.

[¶5] In late December, the chief of police discovered the email Ms. Mahoney had sent to herself. The chief launched an investigation into the email and met with Ms. Mahoney in early February. Ms. Mahoney admitted she had given the tables to the council member. At the conclusion of his investigation, the chief determined Ms. Mahoney had violated numerous City and Department policies-policies of which Ms. Mahoney acknowledged she was aware.

[¶6] The City dismissed Ms. Mahoney on February 8, 2017. She applied for unemployment insurance and her application proceeded through four tiers of review. The Unemployment Insurance Division of the Department of Workforce Services initially denied Ms. Mahoney's application, but an Appeals Division hearing officer reversed that denial after a contested case hearing. The City then appealed to the Commission, which reversed the hearing officer's decision. The Commission found Ms. Mahoney knew of, but intentionally disregarded City and Department policies and procedures. The Commission concluded that Ms. Mahoney was terminated for misconduct connected with her work and denied her benefits. Ms. Mahoney appealed and the district court affirmed the Commission's order after considering whether substantial evidence supported the Commission's decision and whether that decision violated Ms. Mahoney's free speech rights. Ms. Mahoney timely appealed the district court's order.

STANDARD OF REVIEW

[¶7] In unemployment insurance cases, we review the Commission's decision "without considering the decisions of the deputy, the hearing officer or the district court." Clark v. State ex rel., Dep't of Workforce Servs. , 2016 WY 89, ¶ 8, 378 P.3d 310, 312 (Wyo. 2016) (citing State ex rel. Dep't of Workforce Servs., Unemployment Ins. Comm'n v. Kinneman , 2016 WY 79, ¶ 11, 377 P.3d 776 (Wyo. 2016) ). The Commission is an administrative agency, whose decision we review under Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2017):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(i) Compel agency action unlawfully withheld or unreasonably delayed; and
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶8] "Unemployment benefit cases where misconduct is alleged present mixed questions of law and fact." Clark , ¶ 10, 378 P.3d at 313 (quoting Aspen Ridge Law Offices, P.C. v. Wyo. Dep't of Employment, Unemployment Ins. Comm'n , 2006 WY 129, ¶ 11, 143 P.3d 911, 916 (Wyo. 2006) ). We review the Commission's conclusions of law de novo. Id. ¶ 9, 378 P.3d at 313 (citations omitted). We review the Commission's findings of fact under the substantial evidence standard. Id. (citations omitted). "Substantial evidence means 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Id. (quoting Bush v. State ex rel. Wyo. Workers' Comp. Div. , 2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005) ). Substantial evidence supports findings of fact "when we can discern a rational premise for those findings from the evidence preserved in the record." Id. (citing Bush , ¶ 5, 120 P.3d at 179 ). "We give great deference to the Commission's findings of fact in light of its expertise and extensive experience in employment matters." In re Ringrose , 2013 WY 68, ¶ 9, 302 P.3d 900, 903 (Wyo. 2013) (quoting Weidner v. Life Care Centers of America , 893 P.2d 706, 710 (Wyo. 1995) ). "[O]ur review of any particular decision turns not on whether we agree with the outcome, but on whether the agency could reasonably conclude as it did[ ] based on all the evidence before it." Doggett v. Wyoming Dep't of Workforce Servs., Unemployment Ins. Comm'n , 2014 WY 119, ¶ 7, 334 P.3d 1231, 1234 (Wyo. 2014) (quoting Davenport v. State ex rel. Wyoming Workers' Safety and Compensation Div. , 2012 WY 6, ¶ 12, 268 P.3d 1038, 1042 (Wyo. 2012) ).

[¶9] "Constitutional challenges present issues of law that we review de novo. " Cheyenne Newspapers, Inc. v. First Judicial Dist. Court , 2015 WY 113, ¶ 6, 358 P.3d 493, 495 (Wyo. 2015) (citing Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 17, 275 P.3d 438, 447 (Wyo. 2012) ). If we determine the Commission's decision is "contrary to constitutional right, power, privilege or immunity," we must set it aside. Wyo. Stat. Ann. § 16-3-114(c)(ii)(B) ; Mekss v. Wyoming Girls' Sch., State of Wyo. , 813 P.2d 185, 193 (Wyo. 1991).

DISCUSSION

I. Misconduct Connected with Work

[¶10] The Commission denied Ms. Mahoney's claim for benefits after it concluded the City discharged her because she violated numerous employer policies when she provided the alarm registration tables to persons unauthorized to see them. The Commission determined that Ms. Mahoney "intentionally disregarded" those policies and procedures and that her actions constituted "misconduct connected with work." Ms. Mahoney argues that, although she may have violated certain policies, the record does not show she intentionally disregarded or violated the policies and, therefore, the Commission lacked substantial evidence to conclude she was discharged for misconduct connected with work.

[¶11] Wyo. Stat. Ann. § 27-3-311(f) (LexisNexis 2017) states:

(f) An individual shall be disqualified from benefit entitlement beginning with the effective date of an otherwise valid claim or the week during which the failure occurred, until he has been employed in an employee-employer relationship and has earned at least twelve (12) times the weekly benefit amount of his current claim for services after that date, if the department finds that he was discharged from his most recent work for misconduct connected with his work.

(Emphasis added.) The legislature defines "misconduct connected with work" as "an act of an employee which indicates an intentional disregard of the employer's interests or the commonly accepted duties, obligations and responsibilities of an employee." Wyo. Stat. Ann. § 27-3-102(a)(xxiv) (LexisNexis 2017) (emphasis added). To determine whether substantial evidence supports a finding of misconduct, we evaluate the employee's conduct in the context of her particular employment situation. Clark , ¶ 29, 378 P.3d at 318 (citations omitted). Because we interpret unemployment statutes liberally in favor of claimants, "[w]e construe the term misconduct in a manner least favorable to working a forfeiture because unemployment compensation is part of an employee's compensation, not a gratuity which may be withheld frivolously." Id. ¶ 13, 378 P.3d at 314 (citations omitted) (internal quotation marks omitted). "The rule of liberal interpretation, however, cannot override the legislature's clear intent." Id. (citations omitted).

[¶12] "When an employer contends that violation of its rule constitutes misconduct, the employer bears the burden of establishing the existence of the rule and its violation." Wyo. Dep't of Employment, Div. of Unemployment Ins. v. Rissler & McMurry Co. , 837 P.2d 686, 690 (Wyo. 1992). "If the employer establishes these elements, the burden shifts to the employee to demonstrate either that the violation was justified or that the rule was unreasonable." Id. (citing in 76 Am. Jur. 2d Unemployment Compensation § 81 (2d ed. 1991) ).

[¶13] The Commission concluded that the City met its burden and we agree. First, the City established that it had "a policy prohibiting employees from providing, without express authorization, confidential information to anyone not authorized to receive it." Section 3.6 of the City's policy handbook specifically required, "Except for information deemed to be public under federal and state law, information about City of Gillette employees, customers, suppliers and vendors is to be kept confidential and divulged to individuals within the City with both a need to receive and authorization to receive the information." That policy further mandated, "Confidential information may not be removed from the City property without express authorization." Department policies also prohibited employees from removing any official Department records, "except as authorized by the chief of police or under due process of law." The Department prohibited employees from divulging "to any person not connected with the department information acquired by their employment if the information might discredit or imperil the efficiency of the department, unless under due process of law, departmental order, or an order of a commanding officer." The Department further required employees to report alleged policy violations, and to do so by submitting a written memorandum through their chain of command (either to their immediate supervisor or the police chief).

[¶14] Second, the City established that Ms. Mahoney violated City and Department policies on distributing confidential information. The Department's alarm registration tables contained confidential personal identifying information, such as names, addresses, phone numbers, social security numbers, and birth dates. Ms. Mahoney gave unredacted copies of the tables to the council member, who was not authorized to receive them. The police chief testified-and Ms. Mahoney admitted-that neither he nor a court order directed Ms. Mahoney to provide the confidential information to the council member. She also admitted that she had not received permission from her supervisors or the director of human resources to disclose the information. The council member, in turn, testified that he was not a city employee, and the City demonstrated through policies and testimony that the council member was not otherwise authorized to review the confidential tables. The record also contains testimony that Ms. Mahoney did not formally report her concerns about the confidential tables in accordance with the Department's reporting policies.

[¶15] To satisfy her burden, Ms. Mahoney argues that any violation of the City's and Department's policies was unintentional and justifiable. She testified that she did not provide the alarm registration tables to the council member for the purpose of disclosing confidential information. In fact, she stated that she had not noticed that the tables contained confidential information when she disclosed them to the council member. She also believed that the council member was authorized to see those records. She claimed she provided the tables to the council member out of concern that the allegedly out-of-date tables posed a risk to the City and its residents. The council member testified that he believed Ms. Mahoney was just trying to correct a problem she saw, and she was not acting against the City's interests.

[¶16] After evaluating the record, the Commission determined that Ms. Mahoney "intentionally disregarded" applicable policies and that her actions amounted to misconduct. We review the Commission's decision by returning to the statutory definition of "misconduct connected with work." Wyo. Stat. Ann. § 27-3-102(a)(xxiv). As we have held, and the Commission recognized, the legislature did not define "misconduct connected with work" to require that an employee "specifically intend to violate [her] employer's directives." Clark , ¶ 15, 378 P.3d at 314. "Instead, the employee's act must indicate an intentional disregard of the employer's interest." Id. (emphasis in original). "[A]n action that shows or is a sign of the employee's intent to disregard his duties or the employer's interest is sufficient to meet the statutory definition of misconduct." Id.

[¶17] The record supports the Commission's determination, consistent with the legislature's definition, that Ms. Mahoney "intentionally disregarded" her employer's policies. The evidence clearly establishes that Ms. Mahoney was aware of City and Department policies and chose to violate them anyway. In early 2016, Ms. Mahoney signed an "acknowledgment of receipt" attesting that she had received the Department's updated policy manual. She later acknowledged receipt of the City's employee handbook. Ms. Mahoney admitted at the hearing that she provided the confidential tables to the council member without obtaining prior authorization. She also did not report her safety concerns to her supervisors, the police chief, or the city administrator before she raised them with the council member. The record shows Ms. Mahoney's policy violations did not amount to an isolated, excusable incident, as the employee disciplinary report the City provided Ms. Mahoney on discharge shows that she was reminded on three previous occasions to report her workplace concerns through her chain of command. Cf. Aspen Ridge Law Offices , ¶ 18, 143 P.3d at 917-18 (holding that an employee's conduct was "an isolated instance of ordinary negligence which did not constitute misconduct" and noting that the employer failed to point to evidence that the employee's conduct "was more than an isolated incident"). Ms. Mahoney admitted having received these reminders and testified that she was aware that violating these reporting policies could result in termination of her employment.

[¶18] Substantial evidence supports the Commission's finding that Ms. Mahoney showed an intentional disregard for the City's and Department's interests in protecting confidential information and maintaining its chain of command to address reported policy violations. We therefore uphold the Commission's decision to deny Ms. Mahoney benefits because the City terminated her for "misconduct connected with work."

II. Free Speech Protections Under the First Amendment

[¶19] Ms. Mahoney asserts that her communication with the council member about the safety risks of not properly updating the alarm registration tables was political and publicly-minded speech protected under the First Amendment of the United States Constitution, and that disclosing the alarm registration data to the council member was an inextricable part of her protected speech. She argues that the City violated her constitutional rights when it terminated her for disclosing the tables and, because her termination was impermissible, the Commission further violated her constitutional rights when it denied her benefits because of the unlawful termination. Ms. Mahoney therefore asks us to set aside the Commission's decision as "contrary to constitutional right, power, privilege or immunity" under Wyo. Stat. Ann. § 16-3-114(c)(ii)(B).

[¶20] In considering Ms. Mahoney's constitutional claim, we note first that the City terminated Ms. Mahoney for her misconduct connected with work. That Ms. Mahoney's conduct constitutes "speech" under the First Amendment is not a foregone conclusion. However, even if her act of disclosing confidential information without authorization constitutes "speech," we conclude that neither the City nor the Commission infringed on Ms. Mahoney's First Amendment rights.

[¶21] We acknowledge that "[p]ublic employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos , 547 U.S. 410, 417, 126 S.Ct. 1951, 1957, 164 L.Ed.2d 689 (2006). Nonetheless, "First Amendment protection of a public employee's speech depends on a careful balance 'between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Lane v. Franks , 573 U.S. 228, 231, 134 S.Ct. 2369, 2374, 189 L.Ed.2d 312 (2014) (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ).

[¶22] The Tenth Circuit Court of Appeals has articulated a five-prong test to balance those interests as the United States Supreme Court instructed in Pickering and Garcetti :

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Dixon v. Kirkpatrick , 553 F.3d 1294, 1302 (10th Cir. 2009) (citing Brammer-Hoelter v. Twin Peaks Charter Academy , 492 F.3d 1192, 1202-03 (10th Cir. 2007) ). The first three prongs present issues of law; the last two are issues of fact. Brammer-Hoelter , 492 F.3d at 1203 (citing Cragg v. City of Osawatomie , 143 F.3d 1343, 1346 (10th Cir. 1998) ). We conclude that the third prong-whether the government employer's interests are sufficient to outweigh the employee's free speech interests-is dispositive of Ms. Mahoney's claim. See Mekss , 813 P.2d at 198 (proceeding to the balancing of interests prong "without deciding" whether Mekss satisfied the public concern prong); Rohrbough v. Univ. of Colorado Hosp. Auth. , 596 F.3d 741, 750 (10th Cir. 2010) (stating the court need not resolve whether employee satisfied the first prong "because her claim cannot survive the fourth prong of the Garcetti / Pickering analysis.").

[¶23] When weighing an employee's free speech interest against an employer's interest in an efficient and disciplined work environment, the employer has the burden of proving it has an efficiency interest that would justify it in restricting the particular speech at issue. Brammer-Hoelter , 492 F.3d at 1207 (citations omitted); see Connick v. Myers , 461 U.S. 138, 150, 103 S.Ct. 1684, 1691-92, 75 L.Ed.2d 708 (1983). We balance these interests by considering "[w]hether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Mekss , 813 P.2d at 199 (quoting Schalk , 906 F.2d at 496 ). We also consider "the manner, time, and place of the employee's expression, as well as the context in which the dispute arose." Id. (quoting Schalk , 906 F.2d at 496 ).

[¶24] Here, the City's and Department's interests in restricting Ms. Mahoney's disclosure of confidential information include compliance with their general legal duty to protect information in their possession. See, e.g. , Wyo. Stat. Ann. § 16-4-203 (LexisNexis 2017) (governing restrictions on the disclosure of public records). The City's and the Department's interests also include protecting individuals from identity theft, fraud, or other direct harms that could result from employees disclosing confidential information, such as the personal identifying information in the alarm registration tables. The City and the Department defend these interests through their formal policies and through comprehensive, pre-hiring background checks-including polygraph and psychological examinations-for Ms. Mahoney and other employees who have regular access to sensitive, confidential information.

[¶25] The Department also has interests in maintaining a chain of command and preventing disruptions-interests generally recognized to be greater here than for governmental entities unrelated to law enforcement. In Mekss , we found guidance in Warner v. Town of Ocean City , 81 Md. App. 176, 567 A.2d 160 (1989) and its recognition of "the considerable importance of discipline, harmony, and loyalty in a law enforcement organizationz[.]" 813 P.2d at 195-96. The Tenth Circuit Court of Appeals has also recognized that the need to "maintain discipline by superiors and harmony among co-workers ... is particularly acute in the context of law enforcement," which has a "heightened interest ... in maintaining discipline and harmony among employees." Moore v. City of Wynnewood , 57 F.3d 924, 934 (10th Cir. 1995) (citations and internal quotation marks omitted). "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Connick , 461 U.S. at 151-52, 103 S.Ct. at 1692 ; see also Conaway v. Smith , 853 F.2d 789, 798 (10th Cir. 1988) (citing Jurgensen v. Fairfax County, Va. , 745 F.2d 868, 880 (4th Cir. 1984) ) (using a police department as an example where "[p]rotecting an employer's interest in preventing disruptions in the office or interference with department functions is most important in an agency where loyalty and confidence are essential to close working relationships.").

[¶26] It is against these heightened interests that we must weigh Ms. Mahoney's interests in bypassing her chain of command and disclosing the alarm registration tables. The record demonstrates that Ms. Mahoney disclosed the tables containing confidential information, at least in part, out of a concern for the public's safety. However, the fact that she did not notice that the tables contained confidential information belies any assertion that Ms. Mahoney believed it was necessary to disclose that information in order to explain her concerns to the council member. Instead, she risked harm to the City, the Department, and the individuals whose personal information was contained in the tables when she disclosed confidential information merely to show that her supervisor was not updating alarm registrations. The record further demonstrates that Ms. Mahoney's concern that the Department did not respond to calls from unregistered alarms was unsupported. The police chief testified that the Department responded to calls regardless of whether the Department's records indicated an alarm was registered. Moreover, Ms. Mahoney had an available, and mandatory , internal reporting process through which Department leadership could have addressed her misunderstanding about Department practices and ensured the tables were properly updated. Ms. Mahoney knew of the internal reporting process but chose to disregard it. See Mekss , 813 P.2d at 203 (concluding employee was insubordinate because she had access to internal grievance procedures under personnel rules and she chose not to use them). Similar to the circumstances in Mekss , any First Amendment interest Ms. Mahoney might have had "does not require that the [City and the Department] tolerate this action which reasonably could be expected to disrupt operations, undermine authority, and destroy close working relationships." Id. at 200. Considering the manner, time, and place of Ms. Mahoney's statements and the context in which her termination occurred, the balance of interests tips heavily in the City's and the Department's favor. Consequently, we conclude that the City did not infringe on Ms. Mahoney's First Amendment rights when it terminated her employment. The Commission's denial of unemployment benefits withstands Ms. Mahoney's constitutional challenge.

CONCLUSION

[¶27] We affirm the Commission's decision to deny Ms. Mahoney's application for unemployment insurance benefits because substantial evidence supports the Commission's determination that she was discharged for misconduct connected with her work. Because the City's and Department's interests in restricting the disclosure of confidential information and enforcing a chain of command for the reporting of concerns and suspected policy violations outweighed Ms. Mahoney's free speech interests, we conclude the City did not infringe on her First Amendment rights. We therefore reject Ms. Mahoney's claim that the Commission's decision is unconstitutional.

[¶28] Affirmed.

      After Ms. Mahoney gave him the documents, the council member showed them to another member of the council before ultimately giving them to the City's administrator.

      Ms. Mahoney raised her constitutional issue during the administrative hearing. Cf. Davis v. City of Cheyenne , 2004 WY 43, ¶ 27, 88 P.3d 481, 490 (Wyo. 2004) (declining to consider a First Amendment claim on appeal because the appellant did not raise the claim before the agency).

      Ms. Mahoney's letter to the council member did not specifically mention any concerns related to the Department's alarm registration records.

      Ms. Mahoney testified that she emailed her supervisor once to update the alarm registration tables, although that email was not offered as evidence. Nonetheless, she admitted that she did not report her concerns about the outdated tables through the chain of command, as required.

      We recognized in Mekss that, "Article 1, Section 20, of the Constitution of the State of Wyoming also guarantees to every person the right of freedom of speech." 813 P.2d at 193. However, as in Mekss , Ms. Mahoney does not raise a separate free speech argument under the Wyoming Constitution and, therefore, we focus our analysis on the First Amendment. See id. at 199-200.

      The Tenth Circuit's five-prong analysis updates the four-prong test we applied in Mekss , which pre-dated Garcetti . See Mekss , 813 P.2d at 194 (adopting the test summarized in Schalk v. Gallemore , 906 F.2d 491, 494-95 (10th Cir. 1990) ). The Mekss test required:
      First, the court must decide whether the speech at issue touches on a matter of public concern. If it does, the court must balance the interest of the employee in making the statement against the employer's interest in promoting the efficiency of the public services it performs through its employees. Third, if the preceding prerequisites are met, the speech is protected, and plaintiff must show her expression was a motivating factor in the detrimental employment decision. Finally, if the plaintiff sustains this burden, the employer can still prevail if it shows by a preponderance of the evidence that it would have made the same decision regardless of the protected speech.
      Id. at 194 (quoting Schalk , 906 F.2d at 494-95 ) (internal citations and quotation marks omitted).

      For the purpose of this opinion only, we assume, without deciding, that Ms. Mahoney could satisfy prongs one and two.


text:
    BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Donald L. TOLIN, WSB # 5-1699, Respondent.
    D-19-0002
    Supreme Court of Wyoming.
    March 20, 2019
    ORDER OF 30-DAY SUSPENSION
   [¶1] This matter came before the Court upon the Board of Professional Responsibility's "Report and Recommendation for 30-Day Order of Suspension," filed herein February 1, 2019. After a careful review of the Report and Recommendation and the file, the Court finds the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Donald L. Tolin should be suspended from the practice of law for 30 days. It is, therefore,

[¶2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for 30-Day Order of Suspension, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶3] ADJUDGED AND ORDERED that, as a result of the conduct set forth in the Report and Recommendation for 30-Day Order of Suspension, Respondent Donald L. Tolin shall be, and hereby is, suspended from the practice of law for a period of 30 days, with the period of suspension to begin on April 1, 2019; and it is further

[¶4] ORDERED that, during the period of suspension, Respondent shall comply with the requirements of the Wyoming Rules of Disciplinary Procedure, particularly the requirements found in Rule 21 of those rules; and it is further

[¶5] ORDERED that, pursuant to Rule 25 of the Wyoming Rules of Disciplinary Procedure, Respondent shall reimburse the Wyoming State Bar the amount of $5,471.54, representing the costs incurred in handling this matter, as well as pay the administrative fee of $750.00. Respondent shall pay the total amount of $6,221.54 to the Wyoming State Bar on or before June 20, 2019. If Respondent fails to make payment in the time allotted, execution may issue on the award; and it is further

[¶6] ORDERED that the Clerk of this Court shall docket this Order of 30-Day Suspension, along with the incorporated Report and Recommendation for 30-Day Order of Suspension, as a matter coming regularly before this Court as a public record; and it is further

[¶7] ORDERED that, pursuant to Rule 9(b) of the Wyoming Rules of Disciplinary Procedure, this Order of 30-Day Suspension, along with the incorporated Report and Recommendation for 30-Day Order of Suspension, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶8] ORDERED that the Clerk of this Court cause a copy of this Order of 30-Day Suspension to be served upon Respondent Donald L. Tolin.

[¶9] DATED this 20th day of March, 2019.

BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice

Attachment

BEFORE THE SUPREME COURT STATE OF WYOMING In the matter of DONALD L. TOLIN, WSB # 5-1699, WSB No. 2017-037 Respondent.

REPORT AND RECOMMENDATION FOR 30-DAY ORDER OF SUSPENSION

THIS MATTER came before the Board of Professional Responsibility of the Wyoming State Bar (the "Board") on January 14 and 15, 2019, for a disciplinary hearing pursuant to Rule 15(b), W.R.Disc.P. A quorum of five members of the board was in attendance. The Wyoming State Bar was represented by Bar Counsel, Mark W. Gifford. Respondent was present in person and represented himself. Bar Counsel's Exhibits BC-1 (consisting of numbered pages OBC-001 through OBC-151) and BC-2 were received into evidence, as were Respondent's exhibits, which filled three (3) three-ring binders.

Based upon the exhibits received into evidence, the testimony of witnesses and with due consideration given to the statements of counsel, the Board unanimously FINDS, CONCLUDES and RECOMMENDS as follows:

Findings of Fact

1. This matter arises from a complaint against Respondent, a Casper lawyer who was admitted to practice in 1978, which was submitted in March 2017 by Respondent's client, Brandon MacManus of Casper.

2. MacManus is the father of a daughter born in May 2012 to Haley Hansen. In September 2014, MacManus filed apro se petition to establish paternity, custody and child support for his daughter. MacManus and Hansen were both self-represented at a hearing held in the matter before Judge Sullins in February 2015. Citing a lack of proof by either party, Judge Sullins declined to order child support or render a paternity determination. Judge Sullins ordered custody to remain with the mother.

3. On March 4, 2015, MacManus hired Respondent to represent him in the paternity matter. He paid Respondent a $2,000.00 retainer and signed a Legal Services Fee Agreement. Respondent filed an entry of appearance the next day.

4. For more than a year after entering his appearance in the paternity matter, Respondent did nothing to move the matter forward. During this time, MacManus had no contact with his daughter as the daughter's mother denied visitation. Notably, at no time did Respondent seek a temporary order to allow Respondent to have visitation with his daughter.

5. When seventeen months passed with no apparent progress in the matter, MacManus communicated to Respondent on August 9, 2016, that he had "decided to go a different direction" (he had decided to hire a different attorney) and requested his file. On August 16, 2016, having heard nothing from Respondent, MacManus made another request for his file and was told by Respondent that Respondent had filed something in the paternity action, according to MacManus, "without my consent."

6. On August 19, 2016, Respondent filed a "Second Petition to Establish Visitation, Child Support and First Petition for Modification of Child Custody."1 On October 11, 2016, Casper lawyer Zak Szekely filed an answer on Hansen's behalf.

7. Nothing further was filed in the matter until April 2017, when Szekely informed Respondent that he was going to file a motion to dismiss MacManus's petition for lack of substantial action. This prompted Respondent to file a request for a trial setting on April 18, 2017.

Szekely filed a motion to dismiss for lack of substantial action on the same day. During the six months that passed between the filing of the second petition and the filing of Szekely's motion, Respondent did nothing to move the matter forward. As a result, MacManus continued to be deprived of visitation with his daughter.

8. In the meantime, MacManus submitted a complaint to Bar Counsel on March 20, 2017, complaining about Respondent's lack of diligence and requesting, "Revocation of license, from what I've heard I'm not the only person this happened w/."

9. In his initial response to the complaint, Respondent denied that he had violated any rule of professional conduct. Bar Counsel requested that Respondent produce copies of pleadings and relevant correspondence with Hansen's counsel. Respondent did so via a letter dated April 22, 2017. Upon review of the documents produced by Respondent, Bar Counsel determined to put the investigation on hold pending resolution of the underlying paternity action, and so advised Respondent and MacManus via letters dated May 3, 2017.

10. On June 14, 2017, a hearing on Szekely's motion to dismiss was held before Judge Sullins. Judge Sullins denied the motion to dismiss and set the matter for hearing on August 15, 2017. At the hearing, Respondent informed Judge Sullins that it was likely the case would settle.

11. On July 24 and 25, 2017, Respondent and Szekely exchanged emails regarding settlement options. These email communications ended with Szekely sending the following to Respondent:

I would opine that the chances of your client succeeding in obtaining custody are less than slim and pretty close to none. He has had no contact with this child, he has not attempted to contact or support this child, now you are asking for visitation without any proper finding of paternity nor payment of any support obligation. This child has a man in her life that supports her financially and emotionally, you client has not even tried to do either of those, while my client has offered visitation, you now threaten to take the child away from her. We have made our offer, it stands for now though it will be rescinded fairly quickly if this continues.
Further client has not filed a CFA [Confidential Financial Affidavit], nor had he offered anything under W.R.C.P. 26(a)(1.2)(A) that he has a claim to obtain custody. Further under W.R.C.P. 26(a)(1.3) those disclosures must be made 30 days after my client was served, this has not occurred. So, we will have a hearing without any witnesses other [than] your client and my client, there will be no exhibits, and absolutely no evidence that your client is even the biological father, other than a birth certificate. There isn't even an acknowledgment of paternity in the file. The offer will expire on Thursday at 5:00.

12. On August 15, 2017, the parties and their counsel were present in Judge Sullins' court for the scheduled trial. Before the trial commenced, Respondent asked Judge Sullins if the parties might have some time to discuss settlement. Judge Sullins acquiesced, and an agreement in principle was made to allow MacManus supervised visitation for a period of time until, in the opinion of the daughter's counselor, unsupervised visitation could begin. Other terms of the settlement were discussed and agreed upon and the trial did not go forward. It was Respondent's task to draft a stipulated order consistent with the settlement agreement. As discussed below, it would take Respondent more than six months to complete this relatively simple task.

13. On November 15, 2017, Bar Counsel wrote to Respondent and requested an update as to case status. Respondent responded via email on November 29, 2017, stating, "Mark per your request for an update in this matter, please note that the parties, through counsel, reached a stipulated agreement in this custody matter. We have been working with the child's individual therapist/counselor to transition with visitations for my client with his daughter. My client advised me at our last hearing that he wanted to withdraw his complaint."

14. On January 19, 2018, Bar Counsel sent another status request to Respondent. He responded via email on February 3, 2018:

Sorry I am sending this to you so late this afternoon. I am still out of state, and have been since you sent me your last letter to my office, regarding this matter. I'm trying to run down the paperwork so that I can forward it to you for your review, but I have not had much luck. As soon as I do, I will send you a copy of the paperwork. Basically my client gets standard visitation rights as transitioned through his daughter's individual counselor whom we agreed for my client to meet with to assist in the transitioning process. We also stipulated to past and present child support.

As of the date of this communication, Respondent still had not drafted the stipulated order, though more than five months had passed since the August 15, 2017, hearing at which settlement was reached.

15. On February 19, 2018, more than six months after the August 15, 2017, hearing date, Respondent transmitted a draft stipulated order to his client and to Szekely.

16. On April 13, 2018, MacManus contacted Bar Counsel and indicated that he wanted to withdraw his complaint against Respondent. Bar Counsel responded with a letter informing MacManus that the procedural rules for lawyer discipline provide that disciplinary investigations may go forward despite the complainant's subsequent decision not to proceed with the complaint. Bar Counsel informed MacManus that he intended to proceed with the investigation.

17. On May 8, 2018, Bar Counsel filed the Formal Charge in this proceeding, alleging violations by Respondent of Rule 1.3 (diligence), Rule 1.4 (communication with client) and Rule 3.2 (duty to expedite litigation), W.R.Prof.Cond.

18. With minor changes to the order Respondent drafted and transmitted on February 19, 2018, the Stipulated Order Establishing Paternity, Visitation, Child Support, Medical Support, and Modification of Child Custody was signed by Judge Sullins and filed on May 14, 2018 - more than three years after MacManus retained Respondent to represent him in the matter. When the paternity action was originally filed by MacManus in 2014, his daughter was two years old. The stipulated order was entered shortly after her sixth birthday.

19. Bar Counsel has proven, by clear and convincing evidence, numerous violations by Respondent of Rule 1.3 (diligence) in Respondent's representation of MacManus. MacManus's interests in being involved in his daughter's upbringing were adversely affected by the passage of more than three years between his retention of Respondent and the ultimate resolution of the case. Respondent's unreasonable delay in moving the case forward caused his client needless anxiety and undermined the client's confidence in Respondent's trustworthiness. Virtually throughout the underlying proceeding, Respondent demonstrated a lack of commitment and dedication to the interests of his client and failed to advocate zealously on his client's behalf. The time records produced by Respondent in discovery and received into evidence at the hearing show several periods of months passing with no action by Respondent to move the case forward.

20. Bar Counsel has also proven, by clear and convincing evidence, numerous violations by Respondent of Rule 1.4 (communication with client) in Respondent's representation of MacManus. Respondent failed to reasonably consult with the client about the means by which the client's objectives were to be accomplished, including most notably the filing of the second petition after MacManus had requested the return of his file. Although Respondent testified that he believed MacManus was amenable to an "open adoption" by the mother's husband, MacManus was adamant that a resolution of that sort was never acceptable to him. Respondent also failed to comply with MacManus's reasonable requests for information.

21. Bar Counsel has also proven, by clear and convincing evidence, numerous violations by Respondent of Rule 3.2 (duty to expedite litigation) in Respondent's representation of MacManus. There is simply no excuse or justification for Respondent taking more than three years to obtain a resolution of the underlying paternity action.

22. With respect to the appropriate sanction for Respondent's misconduct, and applying the four-factor analysis of Rule 15(b)(3)(D), the Board finds that in committing multiple violations of Rules 1.3 and 1.4, Respondent violated duties owed to a client. Respondent knowingly failed to perform services for his client and caused substantial injury to his client. Further, Respondent engaged in a pattern of neglect with respect to MacManus's case. These findings point to a suspension as the presumed sanction pursuant to Standard 4.42 of the ABA Standards for Imposing Lawyer Sanctions.

23. In failing to expedite the litigation as required by Rule 3.2, Respondent violated a duty owed to the legal system. In his representation of MacManus, Respondent knowingly failed to adhere to the requirements of the rules of civil procedure and caused substantial injury to his client. This finding indicates that a suspension is the presumed sanction pursuant to Standard 6.22 of the ABA Standards.

24. With respect to Respondent's mental state, the Board finds that Respondent acted with knowledge, i.e., with conscious awareness of the nature and attendant circumstances of his conduct.

25. With respect to the injury inflicted upon MacManus by Respondent's conduct, the Board finds that MacManus suffered substantial injury associated with not being able to have contact with his daughter for a period of more than two years.

26. With respect to aggravating factors, the Board finds (a) a pattern of misconduct; (b) multiple offenses; (c) outright refusal by Respondent to acknowledge the wrongful nature of his conduct; (d) extreme vulnerability of the victim; and (e) substantial experience in the practice of law.

27. With respect to mitigating factors, the Board finds (a) absence of a prior disciplinary record and (b) absence of a dishonest or selfish motive.

28. The Board finds that MacManus's withdrawal of his complaint against Respondent is a factor that is neither aggravating nor mitigating.

29. Considering all of the foregoing findings, the Board finds that a 30-day suspension is an appropriate sanction for Respondent's misconduct.

Conclusions of Law

30. Rule 1.3, W.R.Prof.Cond., provides, "A lawyer shall act with reasonable diligence and promptness in representing a client."

31. Comment [1] to Rule 1.3 provides:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

32. Comment [3] to Rule 1.3 provides:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

33. Rule 1.4(a), W.R.Prof.Cond., provides:

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in 1.0(f), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

34. Rule 3.2, W.R.Prof.Cond., provides, "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."

35. Rule 15(b)(3), W.R.Disc.P., provides in relevant part:

At the hearing, the BPR shall first receive evidence regarding whether a violation of the Wyoming Rules of Professional Conduct occurred. When all evidence on that issue has been received, the BPR shall recess to determine whether a violation has been proved by clear and convincing evidence.
* * *
(C) If the BPR determines by a majority of a quorum that there has been a violation, the BPR shall then receive evidence of aggravating or mitigating circumstances before determining the appropriate discipline for the violation. Evidence of prior discipline against the respondent shall be admissible in the second phase of the hearing regarding the appropriate discipline to be ordered or recommended.
(D) In imposing a sanction after a finding of misconduct by the respondent, the BPR shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions, which standards shall be applied by the BPR in determining the appropriate sanction:
(i) Whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(ii) Whether the lawyer acted intentionally, knowingly, or negligently;
(iii) The amount of the actual or potential injury caused by the lawyer's misconduct; and
(iv) The existence of any aggravating or mitigating factors.

36. With respect to costs of disciplinary proceedings, Rule 25, W.R.Disc.P., provides:

Rule 25. Expenses and Costs.

(a) The expenses of members of the BPR, the ROC, Bar Counsel, and Special Bar Counsel, costs of a Disciplinary Judge, and other expenses incurred in the implementation or administration of these rules, shall be paid with funds allocated for that purpose by the Wyoming State Bar. The Wyoming State Bar shall compensate and pay the expenses of Disciplinary Judges.
(b) In addition to any costs assessed by the BPR, the ROC or the Court, an administrative fee of seven hundred fifty dollars ($750.00) shall be imposed by the BPR in all cases where private discipline, diversion, or public discipline is ordered. The administrative fee shall be assessed on a per-complaint basis.
(c) Costs means actual expenses incurred by Bar Counsel, the ROC, the BPR, and the Wyoming State Bar in connection with a disciplinary proceeding, reinstatement proceeding or diversion program, including without limitation the cost of depositions used in a proceeding, hearing transcripts, copying costs, conference call and other telephone expenses, fees for service of process and subpoenas, witnesses fees, fees paid to expert witnesses, and costs associated with travel, meals and lodging for the ROC, the BPR, the BPR Clerk and the Office of Bar Counsel.
(d) When an attorney is privately disciplined, the BPR or the ROC may assess against the attorney the costs incurred in connection with the investigation and disciplinary proceeding, together with the administrative fee.
(e) When public discipline is recommended by the BPR, it shall certify to the Court the costs incurred in connection with the investigation and disciplinary proceeding, together with the administrative fee. The BPR may recommend to the Court the assessment of those costs and, if the Court imposes discipline, the Court may assess all or any part of the certified costs, together with the administrative fee, against respondent.
(f) In any case where costs and fees are assessed, they shall be paid to the Wyoming State Bar.

37. Rule 26(f), W.R.Disc.P., provides:

Refusal of Complainant to Proceed; Compromise; or Restitution. Abatement of an investigation into the conduct of a lawyer or other related proceedings shall not be required by the unwillingness or neglect of the complainant to cooperate in the investigation, or by any settlement, compromise or restitution. A lawyer shall not, as a condition of settlement, compromise or restitution, require the complainant to refrain from filing a complaint, to withdraw the complaint, or to fail to cooperate with the Bar Counsel.

38. The preamble to the ABA Standards for Imposing Lawyer Sanctions (the "ABA Standards") includes the following discussion regarding mental state:

The mental states used in this model are defined as follows. The most culpable mental state is that of intent, when the lawyer acts with the conscious objective or purpose to accomplish a particular result. The next most culpable mental state is that of knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result. The least culpable mental state is negligence, when a lawyer fails to be aware of a substantial risk that circumstances exist or that a result will follow, which failure is a deviation of a care that a reasonable lawyer would exercise in the situation.

39. Under the ABA Standards, "injury" is defined as "harm to a client, the public, the legal system, or the profession which results from a lawyer's misconduct. The level of injury can range from `serious' injury to `little or no' injury; a reference to `injury' alone indicates any level of injury greater than `little or no' injury." "Potential injury" is defined as "harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct."

40. Respondent's violations of Rules 1.3 and 1.4 call into play ABA Standard 4.4, "Lack of Diligence," of the ABA Standards. Standard 4.4 sets forth the following guidelines:

4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and cause serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect with respect to client matters and causes injury or potential injury to a client.
4.43 Reprimand [i.e., public censure under Rule 9(a)(3), W.R.Disc.P.] is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.
4.44 Admonition [i.e., private reprimand under Rule 9(a)(4), W.R.Disc.P.] is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client.

41. Respondent's violation of Rule 3.2 implicates Standard 6.2, "Abuse of Legal Process," of the ABA Standards. Standard 6.2 sets forth the following guidelines:

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving failure to expedite litigation or bring a meritorious claim, or failure to obey any obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists:
6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or a rule with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding.
6.22 Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.
6.23 Reprimand [i.e., public censure under Rule 9(a)(3), W.R.Disc.P.] is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.
6.24 Admonition [i.e., private reprimand under Rule 9(a)(4), W.R.Disc.P.] is generally appropriate when a lawyer engages in an isolated instance of negligence in complying with a court order or rule, and causes little or no actual or potential injury to a party, or causes little or no actual or potential interference with a legal proceeding.

42. ABA Standard 9.0, entitled "Aggravation and Mitigation," provides as follows:

9.1Generally

After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.

9.2Aggravation

9.21 Definition. Aggravation or aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.
9.22 Factors which may be considered in aggravation. Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of the victim;
(i) substantial experience in the practice of law;
(j) indifference in making restitution; and
(k) illegal conduct, including that involving the use of controlled substances.

9.3Mitigation

9.31 Definition. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.
9.32 Factors which may be considered in mitigation. Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
(e) full and free disclosure of disciplinary board or cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when:
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse; and
(m) remoteness of prior offenses

9.4Factors Which Are Neither Aggravating nor Mitigating

The following factors should not be considered as either aggravating nor mitigating:

(a) forced or compelled restitution;
(b) agreeing to the client's demand for certain improper behavior or result;
(c) withdrawal of complaint against the lawyer;
(d) resignation prior to completion of disciplinary proceedings;
(e) complainant's recommendation as to sanction; and
(f) failure of injured client to complain.

Recommendation

Based upon the foregoing findings and conclusions, the Board recommends that the Court issue an order of 30-day suspension to Respondent as provided herein; that Respondent be required to pay an administrative fee of $750.00 as provided in Rule 25(b), W.R.Disc.P.; and that Respondent be required to reimburse the Wyoming State Bar for certified costs of this proceeding as provided in Rule 25(e), W.R.Disc.P.

Dated this 21 st day of January, 2019.

__________________________________________
Jeffrey A. Donnell, Chair
Board of Professional Responsibility
Wyoming State Bar