Roger Leishman v. Ogden, Murphy & Wallace

Citation: Not availableDocket: 77754-8

Court: Court of Appeals of Washington; October 21, 2019; Washington; State Appellate Court

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The Washington Court of Appeals has withdrawn its previous opinion filed on September 3, 2019, in the case of Roger Leishman v. Ogden Murphy Wallace, PLLC and Patrick Pearce, and replaced it with a new published opinion dated October 21, 2019. The case revolves around the interpretation of Washington's anti-SLAPP statute, RCW 4.24.510, which provides immunity from civil liability for individuals communicating concerns to government agencies. A prior Supreme Court decision, Seqaline v. Dep’t of Labor, determined that government agencies do not qualify as "persons" under this statute, leading to the question of whether government contractors also fall under this definition.

Roger Leishman sued OMW and Pearce for various claims, including negligence and discrimination, related to an investigation OMW conducted for the Washington Attorney General's Office (AGO) concerning workplace disputes involving Leishman. OMW sought dismissal, claiming immunity under RCW 4.24.510 for their communication of investigation findings to the AGO, which the trial court upheld. On appeal, Leishman argued that OMW, as a government contractor, is not a "person" protected by the statute. The Court of Appeals agreed with Leishman, reaffirming that government contractors communicating within their contractual scope are not entitled to immunity under RCW 4.24.510, and reversed the trial court's decision.

Leishman's background includes employment at the AGO as Chief Legal Advisor, during which he disclosed mental health issues and filed a discrimination complaint against his supervisor, Kerena Higgins. Following a contentious meeting regarding his accommodation request and Higgins's comments, the AGO assigned OMW to investigate both Leishman's discrimination claim and Higgins's allegations of Leishman's inappropriate conduct. The investigation concluded that Leishman did not substantiate his discrimination claim and that his behavior during the meeting was unprofessional, resulting in his termination by the AGO on May 7, 2016.

Leishman submitted a tort claim against the State following his termination, which was settled, releasing claims against the State and its affiliates, including the AGO. Subsequently, Leishman sued OMW for various claims, arguing that his settlement did not bar claims against OMW as it was not acting as the AGO's agent. OMW sought judgment on the pleadings, asserting immunity under RCW 4.24.510 for communicating the OMW Report to the AGO. Leishman contested that the statute's applicability to vendor-client communications involving a government agency had not been previously addressed in Washington law. The trial court granted OMW’s motion and awarded attorney fees and costs under the statute. Leishman appealed, arguing the statute was meant to protect whistleblowers and not to shield government contractors. The review of the trial court’s judgment is de novo, focusing on the potential for the claimant to prove facts supporting relief. The interpretation of RCW 4.24.510 involves determining whether “person” includes government contractors like OMW. In a related Supreme Court decision, “Seqaline,” it was determined that a government agency does not qualify as a “person” under the statute, suggesting ambiguity in the term’s interpretation, which is crucial for the current case.

L&I asserted immunity under RCW 4.24.510, claiming its communication with the police was protected. The plurality opinion in Seqaline determined that L&I, as a government agency, does not qualify as a “person” under the statute. This ruling pertains specifically to communications between government agencies, leaving unresolved whether a government contractor acting on behalf of an agency is considered a “person” and thus immune from civil liability for communications to a government agency. The analysis indicates that government contractors are not immune from liability for paid communications to government agencies, based on the Seqaline plurality's reasoning and the legislative intent of RCW 4.24.510.

The statute aims to safeguard individual First Amendment rights, which do not extend to government agencies. Justice Madsen concurred, acknowledging the legislature's recognition of the threat posed by SLAPP litigation while questioning whether the free speech rights of a “person” determine if a government agency qualifies for immunity under the statute. Madsen emphasized that the threat of litigation impacts individuals differently than government agencies. 

Madsen drew parallels to Massachusetts's anti-SLAPP law, which protects individuals petitioning the government on their own behalf. In the analogous case of Korbin, the Massachusetts Supreme Court ruled that its anti-SLAPP statute did not shield a psychiatrist from claims against a government contractor engaged in investigative activities for a government agency. Justice Madsen extended this reasoning to conclude that RCW 4.24.510 should not protect communications between government agencies from civil liability, as the statute primarily serves to protect citizens’ rights to petition the government.

Legislative intent behind RCW 4.24.510, as articulated in RCW 4.24.500 and its Historical Notes, emphasizes the importance of citizen reports on potential wrongdoing for law enforcement and government efficiency. The legislature recognized that the threat of civil suits could deter citizens from reporting information, leading to the enactment of protections for individuals making good-faith reports. The removal of the “good faith” requirement in RCW 4.24.510 was accompanied by a statement detailing the law's intent to combat SLAPP suits, which aim to suppress First Amendment rights by intimidating individuals who communicate to influence government actions. Despite Washington's 1989 anti-SLAPP law, it lacked clear dismissal procedures, prompting amendments to align state law with Supreme Court decisions affirming the protection of advocacy to government. 

The law aims to secure citizens' rights to engage with government agencies, a principle that extends to government contractors. However, it was determined that these contractors, when performing duties under government contracts, do not engage in protected First Amendment activities. Allowing contractors to evade RCW 4.24.510 protections would undermine its intent, as contractors are acting on behalf of the government rather than advocating for themselves. Consequently, communications made by government contractors to agencies in the course of their contractual duties do not qualify for protection under RCW 4.24.510. The judgment favoring OMW and the award of attorney fees are reversed, and the matter is remanded for further proceedings. The court does not address the status of OMW as an “agent” of L&I due to the issue not being raised in prior proceedings.