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Wackehut Follies

The following four legal cases give some insight into the operations of
Wackenhut, the private security service for Area 51 that became a large part
of Danny Casolaro's research. For more information on Wackenhut and Casolaro,
see The Octopus: Secret Government and the Death of Danny Casolaro by Kenn
Thomas and the late Jim Keith.

Wackenhut and the Suspended Hallucinogen Provision

Independent Guard Association of Nevada v. United States, 57 F.3d 766 (9th
Cir. 06/12/1995)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 93-15769
[3] 1995.C09.42154 ; 57 F.3d 766
[4] filed: June 12, 1995.
[5] INDEPENDENT GUARD ASSOCIATION OF NEVADA, LOCAL NO. 1, PLAINTIFF-APPELLANT
v. HAZEL O'LEARY,*FN1 SECRETARY OF ENERGY OF THE UNITED STATES OF AMERICA, ON
BEHALF OF THE UNITED STATES DEPARTMENT OF ENERGY, AN EXECUTIVE DEPARTMENT OF
THE UNITED STATES OF AMERICA, DEFENDANT-APPELLEE
[6] Appeal from the United States District Court for the District of Nevada.
D.C. No. CV-92-00204-LDG. Lloyd D. George, District Judge, Presiding.
[7] George A. Pappy, Pappy & Davis, Los Angeles, California, for the
plaintiff-appellant.
[8] L. Dow Davis and Monte N. Stewart, United States Department of Energy,
Washington, D.C., for the defendant-appellee.
[9] Before: Mary M. Schroeder and Pamela Ann Rymer, Circuit Judges, and
William L. Dwyer,*fn1 District Judge. Opinion by Judge Schroeder.
[10] Author: Schroeder
[11] SCHROEDER, Circuit Judge:
[12] The Independent Guard Association of Nevada, Local No. 1 ("IGAN"),
appeals the district court's grant of summary judgment to the Secretary of
Energy in IGAN's suit to enjoin the application of the Department of Energy's
("DOE" or "agency") Nuclear Explosive Safety Order 5610.11 (Oct. 10, 1990)
("Order"). IGAN objected to the DOE's promulgation of the Order, which is an
extensive personnel regulation, without the prior notice and comment required
by the Administrative Procedure Act's ("APA") rulemaking procedures, 5 U.S.C.
§ 553. The district court held that the "military function" exception, 5
U.S.C. § 553(a)(1), to the APA applied. We reverse because our law requires
APA exceptions to be construed narrowly, and the record fails to disclose
that these guards perform any function directly related to the manufacture or
development of military weapons by the DOE.
[13] BACKGROUND
[14] IGAN is a union representing the armed civilian guards employed by
Wackenhut Services, Inc. The DOE contracted with Wackenhut to guard its
facilities at the Nevada Test Site near Mercury, Nevada, and its support
facilities in Las Vegas, Nevada. At these sites, the DOE researches, produces
and tests nuclear explosive devices for use by the military. Wackenhut, not
the DOE, hires and supervises the guards.
[15] On October 10, 1990, the DOE issued the Order pursuant to its statutory
authority to maintain security and safety standards for its defense programs.
See, e.g., 42 U.S.C. §§ 2165, 2201. The Order applies to all activities and
operations involving nuclear explosives and nuclear weapons conducted under
the Department's nuclear program. The DOE did not comply in full with the
APA's normal rulemaking procedures, which would have entailed prior notice
and comment of the entire Order. See 42 U.S.C. § 7191.
[16] The Order provides management policy guidance for the selection and
certification of personnel; sets forth nuclear explosive safety standards and
rules; and provides for nuclear explosive safety studies and surveys. In the
portion relevant here, the Order establishes a Personnel Assurance Program
("PAP") applicable to all DOE and contractor employees assigned nuclear
explosive duties. The PAP provides detailed certification requirements for
the DOE and its contractor personnel who are certified to guard nuclear
explosive devices in Nevada. For example, PAP disqualifies persons from such
duties who fail to comply with any of its provisions, which include
submission to laboratory testing, random drug testing, and a certification
review procedure. PAP also provides for permanent disqualification from duty
for any employee who has ever used hallucinogens, regardless of quantity
consumed or remoteness in time.
[17] The Order superseded an earlier safety program promulgated in 1980 that
had delegated more responsibility for contractor employee qualification
review to the contractor itself. See "Program to Prevent Accidental or
Unauthorized Nuclear Explosive Detonations," DOE Order 5610.3 (Dec. 18,
1980).*fn1 Shortly after the Order went into effect, it resulted in the
disqualification of four employees because of prior use of an "hallucinogen."
DOE subsequently "suspended" the hallucinogen provision, and all four
employees were certified for nuclear explosive safety duties.
[18] On March 10, 1992, IGAN filed a complaint seeking declaratory and
injunctive relief, pending compliance with notice and comment procedures.*fn2
The case came before the district court on cross-motions for summary
judgment. The DOE invoked the "military function" exception to the APA's
notice and comment provisions. This exception provides:
[19] (a) This section applies, according to the provisions thereof, except to
the extent that there is involved -
[20] (1) a military or foreign affairs function of the United States;
[21] 5 U.S.C. § 553(a)(1). Because the parties agreed on the material facts,
the case turned on a legal question: the proper scope of this exception.
[22] In granting the DOE's motion for summary judgment, the district court
determined that the DOE's authorization to conduct the research and
production of nuclear weapons constituted a military function. The court
further found that "the proper conduct of a military function often requires
essential, though non-military, support functions," and that "such military
functions cannot proceed absent full regulation and control of the support
function." The district court did not find that the guards themselves
performed a military function. Rather, the district court concluded that the
exception applied because the Order deals with "an essential integral support
program that is required for the proper conduct of the DOE's military
function of researching and testing nuclear weapons."
[23] Discussion
[24] The Secretary initially stresses that DOE has "suspended" the
"hallucinogen" provision, the only portion of the Order IGAN protested, and
that it has certified for nuclear explosive safety duties the four
individuals who had been temporarily disqualified pursuant to this provision.
The Secretary also advises that DOE has committed to publish for notice and
comment the hallucinogen rule should it ever be reimplemented. Thus, the
Secretary argues, IGAN has sustained no legally cognizable injury from the
Order, and the district court should have dismissed the case. We agree with
the district court that the Secretary's suspension of the provision, and
subsequent certification of the affected personnel, does not wholly resolve
IGAN's problem. As IGAN notes, the APA makes no provision for "suspension" of
rules. Consequently, despite reassurances that lack the force and effect of
law, the DOE could, at some future date, reinstate the "hallucinogen"
provision without notice and comment if we were not to rule on the issue. We
thus conclude that IGAN has standing to maintain this suit.
[25] The district court's interpretation of the scope of the "military
function" exception is a question of law that we review de novo. See United
States v. Yacoubian, 24 F.3d 1, 3 (9th Cir. 1994). Section 553(a)(1) provides
an exception to the APA "to the extent" that a military function is involved.
The statute never defines the term, but its language contemplates that
"military function" has measurable contours. The statute's text strongly
suggests that those contours are defined by the specific function being
regulated.
[26] Our inquiry therefore is not advanced by IGAN's threshold contention
that the DOE's status as a "civilian" agency is dispositive. The DOE's
statutory mandate includes responsibility for research and development of all
energy resource applications, as well as national security functions relating
to nuclear weapons research and development. 42 U.S.C. § 7112, 7133. The DOE
can and does perform both "civilian" and "military" functions. The agency's
dual nature reinforces the critical importance of the statutory language that
instructs us to look not to whether the overall nature of the agency
promulgating a regulation is "civilian" or "military," but to the function bei
ng regulated. Legislative history confirms this view. See S. Rep. No. 752,
79th Cong., 1st Sess. 13 (1945) (noting the suggestion that all functions of
the War and Navy Department as well as the Army and Navy should be exempted,
but finding that "since the bill relates to functions, rather than agencies,
it would seem better to define functions"). The district court correctly
concluded that the DOE engages in a military function when it researches and
develops nuclear weapons. See 42 U.S.C. § 2121 (authorizing the Atomic Energy
Commission, precursor to the Energy Research and Development Administration,
whose functions were subsequently assumed by the DOE, to engage in the
research and development of nuclear weaponry).
[27] We thus agree with the Secretary that the exception applies to
predominately civilian agencies such as DOE when they are performing a
"military function". The issue before us, however, is whether the civilian
guards who are the subject of this challenged regulation fall within the milit
ary function exception. The Secretary does not seriously argue that the
Wackenhut guards themselves are performing a military function. Instead, she
argues that the military function exception logically should be seen to
encompass IGAN's contractor support function because the DOE "could not
safely and securely accomplish its military function" without the safety
policies embodied in the Order. In short, the Secretary argues for a broad
interpretation of the exception.
[28] The legislative history of the APA is contrary to the Secretary's view.
Congress intended the military function exception to have a narrow scope. The
Report of the Senate Judiciary Committee emphasized that "the exceptions
apply only 'to the extent' that the excepted subjects are directly involved."
S. Doc. No. 248, 79th Cong., 2d Sess. 199 (1946) (emphasis added). The
Judiciary Committee continued:
[29] The exemption of situations of emergency or necessity is not an "escape
clause" in the sense that any agency has discretion to disregard its terms or
the facts. A true and supported or supportable finding of necessity or
emergency must be made and published. "Impracticable" means a situation in
which the due and required execution of the agency functions would be
unavoidably prevented by its undertaking public rule-making proceedings.
[30] Id. at 200.
[31] Consistent with congressional intent, this Circuit has ruled that
exceptions to the APA must be narrowly construed:
[32] The exceptions to section 553 will be "narrowly construed and only
reluctantly countenanced." This is consistent, of course, with Congress's
clear intent to preserve the statutory purpose of informal rulemaking by
making sure those exceptions did not become "escape clauses," . . . which an
agency could utilize at its whim.
[33] Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984) (citations omitted).
[34] To our knowledge, no court has ever considered whether the military
function exception applies to civilian contractors. The dearth of authority
discussing the applications of the military function exemption suggests it
has not been widely invoked.
[35] The two cases cited in the district court's decision are, as the
district court itself correctly recognized, inapposite. In McDonald v.
McLucas, 371 F. Supp. 837 (S.D.N.Y. 1973), plaintiffs challenged as violative
of the APA the procedures by which the armed forces declare American
servicemen missing in action to be dead. The court summarily ruled that the
military function exception applied to the regulation, and the APA was thus
inapplicable. Id. at 840. McDonald involves a military determination
concerning military personnel who had participated in a military conflict,
and did not speak to contractor support functions.
[36] County of Seneca v. Cheney, 806 F. Supp. 387 (W.D.N.Y. 1992), vacated,
992 F.2d 320 (2d Cir.), opinion reported in 12 F.3d 8 (2d Cir. 1993), is even
less authoritative. The vacated district court opinion simply cited a House
Conference Report's unexceptionable statement that the decision to close and
realign military bases is a military function. Cheney, 806 F. Supp. at 399
n.9.
[37] The legislative history and relevant case law direct that exceptions to
the APA be narrowly construed, and that the exception can be invoked only
where the activities being regulated directly involve a military function. If
the Secretary's position were adopted, and contractor support activities held
to be within the scope of the military function exception, maintenance staff,
custodial help, food service workers and even window washers could find their
undoubtedly necessary support tasks swept within the exception's ambit, and
DOE regulations affecting their employment exempt from notice and comment.
Neither the statute, nor common sense, requires such a result.
[38] We do not mean to imply that the military function exception can never
apply to a contractor's services. Indeed, at argument IGAN conceded that
contractor employees could perform a military function within the meaning of
the APA. For example, if they were making military weapons, they might well
be performing such a function. The record in this case, however, does not
contain any evidence that the military has ever exercised any direct
supervisorial control over the activities of these civilian contract guards.
The record shows that the guards employed and supervised by Wackenhut were
performing duties similar to those performed by civilian security guards
everywhere. They were no more performing a "military function" than civilian
contract guards employed to guard judges are performing a "judicial
function." The exemption should not be stretched to encompass civilian
support services.
[39] Finally, we note that, as a practical matter, compliance with the APA
imposes costs on the Secretary that are minimal in nature. Following
publication of the proposed rule in the Federal Register, the Secretary need
only provide 30 days for notice and comment. 42 U.S.C. § 7191(b)(1). After
this notice and comment period, the Secretary may publish the proposed rule
or modification of it with an accompanying "explanation responding to the
major comments, criticisms, and alternatives offered during the comment
period." Id. § 7191(d).
[40] We REVERSE the district court's judgment that the DOE properly availed
itself of the military function exemption. The district court did not
consider the other exemptions to the APA proffered by the Secretary, see 5
U.S.C. §§ 553(a)(2), (b)(3)(A), and we REMAND for that purpose.
[41] REVERSED and REMANDED.
General Footnotes
[42] *fn1 Hazel O'Leary, the current Secretary of Energy, is substituted for
former Secretary James D. Watkins. See Fed. R. App. Pro. 43(c)(1).
Judges Footnotes
[43] *fn1 Honorable William L. Dwyer, United States District Judge for the
District of Western Washington, sitting by designation.
Opinion Footnotes
[44] *fn2 IGAN also sought to enjoin implementation of "Personnel Security
Assurance Program," DOE Order 5631.6 (Jan. 19, 1989). This claim had been
mooted, however, by the DOE's 1989 Notice of Proposed Rulemaking on that
program, known as the PSAP.
[45] *fn1 The Order also superseded those portions of a 1979 DOE order
addressing nuclear explosives. See "Packaging and Transporting of Nuclear
Explosives, Nuclear Components, and Special Assemblies," DOE Order 5610.1
(Sept. 11, 1979).

Wackenhut Meets Bon Jovi

Carlsen v. Wackenhut Corp., 868 P.2d 882, 73 Wash. App. 247 (Wash.App.
03/08/1994)
[1] Washington Court of Appeals
[2] No. 15332-7-II
[3] 868 P.2d 882, 73 Wash. App. 247, 1994.WA.41041
[4] Filed: March 8, 1994.
[5] RONDA CARLSEN, APPELLANT v. THE WACKENHUT CORPORATION, RESPONDENT
[6] A. Robert E. Thomson, for appellant.
[7] Mark J. Dynan and David A. Larson, P.S., for respondent.
[8] Alexander, J. Morgan, C.J., and Seinfeld, J., concur.
[9] Alexander
[10] Ronda Carlsen appeals an order of the Pierce County Superior Court
granting summary judgment to the Wackenhut Corporation, dismissing Carlsen's
claims against Wackenhut for Wackenhut's alleged negligence in hiring and
supervising an employee. We reverse.
[11] On May 10, 1989, two 16-year-old girls, Ronda Carlsen and her friend,
Heather, attended a rock concert at the Tacoma Dome with some acquaintances.
The concert featured a group of musicians known as "Bon Jovi". During the
course of the concert, Carlsen and Heather became separated from their compani
ons. Consequently, they sought assistance from someone in authority to "help
us find our friends". Toward that end, they approached a man who they
believed was a "security guard".
[12] The man, William Futi, indicated his willingness to help the two girls.
After speaking with them for a short time, he asked them if they wanted to
get closer to the stage and perhaps even meet the band members. The two girls
were eager to meet the entertainers, so they accompanied Futi toward the
stage of the Tacoma Dome. Their route required them to go under the
bleachers. Carlsen indicated that "[n]either Heather or I wanted to go under
the bleachers with him but since we were together and he was a security
guard, we felt reasonably comfortable in proceeding." Part way to the stage,
Futi mentioned that he could only take them one at a time. After Futi took
Heather to the stage and returned, he told Carlsen that they would have to
travel a different way back. As Futi led Carlsen under a set of bleachers, he
threw her down and attempted to rape her. Carlsen screamed but she was not
heard over the noise of the concert. Futi was eventually frightened away when
the music ended and the lights came on.
[13] Futi was charged in Pierce County Superior Court with second degree
attempted rape. He later pleaded guilty to an amended charge of indecent
liberties.*fn1
[14] Carlsen brought suit against the Wackenhut Corporation, the company that
had employed Futi at the Tacoma Dome. She claimed that Wackenhut had been
negligent in its hiring of Futi in that it knew or should have known that
Futi, who had a prior conviction for robbery, was unfit for employment with
Wackenhut. She also claimed that Wackenhut was negligent in its supervision
of Futi and that it was liable for Futi's actions under the theory of
respondeat superior.
[15] Wackenhut moved for summary judgment of dismissal. Before the hearing on
Wackenhut's motion, Wackenhut filed the affidavit of Monty L. Laughlin, the
assistant manager of public service for the City of Tacoma. Laughlin, who was
also "working the Bon Jovi concert" that evening, described the degree to
which Futi's background was checked by Wackenhut before he was hired as what
Laughlin described as a "T-shirt employee".*fn2 Laughlin stated:
[16] 2. William A. Futi was hired by Wackenhut Corporation on March 8, 1989.
He did not indicate any other middle initial or name on his application. He
worked four events (30.5) hours as a T-shirt employee prior to the Bon Jovi
concert.
[17] 3. I reviewed his personnel file at the time of the incident. No
derogatory comments or remarks were found in his personnel file.
[18] 4. No additional background checks were done because there was no
indication that it would be necessary. Mr. Futi did not report any criminal
record or work-related misconduct on his job application.
[19] 5. Because of the large number of part-time employees hired who may work
only one event every two months, formal background checks are not done unless
there is evidence of a criminal record or problems with work habits,
demeanor, or personality. If there is evidence of any such problem, then
additional steps are taken to investigate an applicant.
[20] 7. During the Bon Jovi concert, he failed to follow the instructions of
his lead supervisor, and was absent from his post without permission. Mr.
Futi abandoned his assigned post, and evaded searches that were being
performed to locate him.
[21] 8. Mr. Futi left the Tacoma Dome at approximately 10:20 p.m. when he
checked in his jacket and T-shirt.
[22] Lynn Diane Lyscio, Wackenhut's lead T-shirt supervisor at the Tacoma
Dome on May 10, also submitted her affidavit in which she stated:
[23] 2. I supervised the taking of tickets as well as pat-down search and
metal searches. T-shirt employees are utilized to perform these searches as
well as ticket takers and ushers. A majority of these employees work one
event every two months.
[24] 3. Beginning at approximately 6:00 p.m., Mr. William A. Futi was under
my supervision. I assigned Mr. Futi to the F Door to perform metal searches.
[25] 4. At approximately 8:30 p.m., I was instructed to stop admitting
patrons through the Upper F Door. When I went to that door, I found that Mr.
Futi left his assigned post at 8:30 p.m.; he was the only person absent from
the post. He was absent without permission.
[26] 5. Between 9:00 and 9:15 p.m. I searched in the office and breakroom for
Mr. Futi. Also, between 9:30 and 9:45 p.m. I searched again for Mr. Futi.
[27] 6. Mr. Futi left the Tacoma Dome without following established check-out
procedures at approximately 10:20 p.m. Mr. Futi had been scheduled to work
until approximately 11:15 p.m. Mr. Futi did not have permission to leave work
early.
[28] 7. Prior to the evening of the Bon Jovi concert, Mr. Futi had been an
alert employee. He did not have problems with my explaining what his duties
[were], and he was willing to carry out these instructions.
[29] 8. Mr. Futi did need instruction about the duration of his assigned
breaks. I clarified break procedures with Mr. Futi. Once the procedures were
clarified, there were no other situations which would cause me to question
his ability to do his job or anything that would require additional training.
[30] Carlsen submitted her affidavit in response. She stated that, according
to court records her attorney had obtained from King County, Futi: has been
convicted of third degree theft, criminal trespass, no valid operators
license, third degree theft and he was also charged with first degree robbery
but a later review of the file showed that he plead [ sic ] guilty to second
degree robbery.
[31] She also provided the court with documents that revealed there were
arrest warrants outstanding for Futi's failure to appear in court on two
traffic offenses and for first degree criminal trespass.
[32] In addition, Carlsen also made the following observations about the
applications Futi gave to Wackenhut in an effort to obtain employment:*fn3
[33] (1) First, he says that he was a college graduate on page one but only
has completed 12 years of high school. This indicates some sort of
untruthfulness on his part.
[34] (2) They asked him to list all of the jobs which he had had for the last
seven years. He did not list any jobs. Why would that not be an indication
that he did not want to disclose his prior history and therefore had
something to hide?
[35] (3) They did not ask him for any references related to prior
supervisors. They did ask him for three people who are not related to him and
who are not former employees. However, by their own admission, they did not
contact any of these people to see what kind of history Mr. Futi had.
Presumably, one out of the three, at least, would have told the truth. They
could have also asked his mother or cousin who are also listed on the
application. Would all five have lied to protect Mr. Futi?
[36] (4) They did not ask him for his addresses for the previous five or six
years. Had they asked him for his addresses (or had they asked any of the
references for his previous addresses) they probably would have found out
that he resided in King County. Armed with that information, they could have
reviewed the juvenile court records, as my attorney did, and found Mr. Futi's
lengthy criminal record including his history of violence (robbery) to which
he pled guilty . . ..
[37] (5) They did not ask him where he had graduated from high school or what
schools he had attended. Had they done so, they might have determined that he
had lived in King County.
[38] (6) They asked him if he was presently employed and he indicated that he
was but he did not answer the question about whether The Wackenhut
Corporation could contact his present employer. That certainly indicates that
he has something to hide. It also indicates that he is not willing to
disclose his present employer. Of course, that might be because he doesn't
want his present employer to know that he is looking for another job but that
seems unlikely when he is applying for a minimum wage, part-time position as
a security guard and most of the work would be done at night.
[39] The trial court granted Wackenhut's motion, and dismissed Carlsen's
claims "(a) [that] Wackenhut negligently supervised its employee; and (b)
that Wackenhut Corporation was negligent in its hiring practice".*fn4
[40] [1] Summary judgment is reviewed by the appellate court de novo. Mains
Farm Homeowners Ass'n v. Worthington, 121 Wash. 2d 810, 813, 854 P.2d 1072
(1993). Like the trial court, the appellate court must consider all facts
submitted and all reasonable inferences from the facts in the light most
favorable to the nonmoving party. Mason v. Kenyon Zero Storage, 71 Wash. App.
5, 8-9, 856 P.2d 410 (1993). Absent a genuine issue as to any material fact,
the moving party is entitled to summary judgment as a matter of law. Condor
Enters., Inc. v. Boise Cascade Corp., 71 Wash. App. 48, 54, 856 P.2d 713
(1993). Summary judgment is proper "only if reasonable persons could reach
only one conclusion from all of the evidence." Hansen v. Friend, 118 Wash. 2d
476, 485, 824 P.2d 483 (1992).
[41] [2] To prove negligent hiring in Washington, the plaintiff must
demonstrate that (1) the employer knew or, in the exercise of ordinary care,
should have known of its employee's unfitness at the time of hiring, Peck v.
Siau, 65 Wash. App. 285, 288, 827 P.2d 1108, review denied, 120 Wash. 2d 1005
(1992); Guild v. St. Martin's College, 64 Wash. App. 491, 498, 827 P.2d 286,
review denied, 119 Wash. 2d 1016 (1992); Banks v. Nordstrom, Inc., 57 Wash.
App. 251, 263, 787 P.2d 953, review denied, 115 Wash. 2d 1008 (1990); and (2)
the negligently hired employee proximately caused the resulting injuries.
Guild, 64 Wash. App. at 498-99. Here, there is no question about the fact
that Futi caused Carlsen's injuries. Thus, we will focus on the same record
the trial court examined to determine whether material factual issues exist
concerning whether Wackenhut knew or should have known of Futi's unfitness
when it hired him.
[42] Wackenhut asserts that, at the time it hired Futi, there were no
indications in his applications that Futi was unfit for employment as a
"T-shirt employee". Wackenhut stresses that it had no knowledge of Futi's
criminal record, pointing to Futi's employment applications in which he
indicated that he had never "been convicted for the violation of any law in a
military or criminal court which has not been sealed, annulled, or deleted
from the record" and had never "been dismissed, or asked to resign from
employment". There is, indeed, nothing in the record to suggest that
Wackenhut's employees knew of Futi's prior criminal record before Futi was
hired. That fact, however, does not justify entry of summary judgment in
favor of Wackenhut if a reasonable trier of fact could nonetheless conclude
that Wackenhut should have known that Futi was unfit for employment.
[43] Wackenhut cites Peck as support for its position that, as a matter of
law, it was not negligent in hiring Futi. In Peck, this court determined that
a trial court did not err in determining on summary judgment that a school
district was not negligent in hiring a high school librarian who later
wrongfully engaged in sexual relations with a student. We concluded that,
because the school district had checked the librarian's teaching certificate
and background when it hired him, there was no evidence that at the time of
hiring the school district knew or, in the exercise of ordinary care, should
have known that he was unfit for employment as a librarian. Peck, 65 Wash.
App. at 289. In our judgment, Peck is of little help to Wackenhut. Unlike the
employer in Peck, Wackenhut did not check into Futi's background after
receiving his applications. It did not, for example, contact Futi's
references to determine if he had a criminal record. These failures seem
particularly significant in light of the dearth of information provided by
Futi and the fact that there were inconsistencies on the face of his
applications. We are satisfied that a reasonable person might well infer that
the lack of information provided by Futi and the inconsistencies on the
applications should have alerted Wackenhut to make further inquiries. In
particular, Futi indicated on both of his applications that he possessed a
college degree and, yet, in a different location on one of the applications,
he indicated that he had only a high school diploma. He also gave different
home addresses on his two applications, although they were completed within 5
days of each other. In addition, Futi failed to state who his present and
previous employers were. The latter omission, arguably, should have aroused
concern because Futi was, according to his applications, 20 years of age. It
seems unlikely, therefore, that this was his first employment. If it was,
that fact alone would be significant.
[44] Wackenhut's omissions stand in stark contrast with the steps taken by
the employer in Scott v. Blanchet High Sch., 50 Wash. App. 37, 747 P.2d 1124
(1987), review denied, 110 Wash. 2d 1016 (1988). In that case, Division One
of this court determined that a high school took reasonable steps in hiring a
teacher who was subsequently accused of becoming sexually involved with a
student. Scott, at 43. There, the employer contacted the teacher's previous
employers and conducted two personal interviews with the applicant prior to
hiring him. The court determined that, "[a]lthough certain specific questions
. . . were not asked, the process appears sufficient as a matter of law to
discover whether an individual is fit to teach". Scott, at 43.
[45] Unlike Scott, the procedures employed here consisted solely of having
the applicant answer several pages of questions on two applications. Although
Wackenhut concedes that no background check was performed before Futi was
hired, it asserts that it had no duty to investigate further because Futi was
merely a so-called "T-shirt" employee, not a full-fledged security guard;
Futi's applications did not suggest he had any propensity for assaultive
behavior, and failure to conduct a background check was not negligence per
se. Carlsen responds by citing cases from two other jurisdictions to support
her argument that Wackenhut had a duty to investigate Futi's background.
[46] In Welsh Mfg., Div. of Textron, Inc. v. Pinkerton's, Inc., 474 A.2d 436
(R.I. 1984), a security guard helped two others rob over $200,000 from a
store he was employed to guard. The Rhode Island Supreme Court noted that,
although the employer had checked the employee's criminal record prior to
hiring him, it did not contact the employee's character references. Welsh, at
442-43. The only phone call the employer made was to a previous Navy superior
who had known the security guard for only 2 months. In upholding the trial
court, the Supreme Court found that the security company's "cursory
investigation prior to [the security guard's] employment provided it with
little current intelligence on him and could well support an inference of
negligence in hiring for such a sensitive assignment as the guarding of
gold." Welsh, at 442-43.
[47] Similarly, in Easley v. Apollo Detective Agency, Inc., 69 Ill. App. 3d
920, 387 N.E.2d 1241 (1979), an Illinois appellate court upheld a trial court
decision finding a security company guilty of willful and wanton misconduct
in hiring an armed security guard who used his passkey to gain entrance to an
apartment and attempted to rape the occupant. The security company had not
checked the security guard's prior addresses, personal references, or
criminal history prior to hiring him, and the guard was not required to take
any intelligence or psychological tests.
[48] Although Futi's responsibilities were, arguably, not so great as those
delegated to the employees in Easley or Welsh, in that he was not guarding
valuable personal property and was not authorized to carry a weapon, Futi
was, in a real sense, responsible for protecting young concert goers. Viewing
the evidence most favorably to Carlsen, as we must, there is at least an
inference that Wackenhut held Futi out as more than a mere ticket taker.
According to Wackenhut's lead supervisor, as a T-shirt employee Futi was
responsible for performing pat-down searches and metal searches of incoming
patrons. He was also responsible for ushering patrons to their seats. More
importantly, he was placed in a position where patrons could reasonably view
him as an authority figure. This is manifested by Carlsen's statement that
"[n]either Heather or I wanted to go under the bleachers with [Futi] but
since . . . he was a security guard, we felt reasonably comfortable in
proceeding."
[49] Past Washington decisions tend to employ a type of balancing test to
determine if the given employment warrants the extra burden of a thorough
background check. See, e.g., La Lone v. Smith, 39 Wash. 2d 167, 172, 234 P.2d
893 (1951) ("One may normally assume that another who offers to perform
simple work is competent. If, however, the work is likely to subject third
persons to serious risk of great harm, there is a special duty of
investigation.") (quoting Restatement of Agency § 213, at 465 (1936); see
also Welsh, 474 A.2d at 440 ("[t]he greater the risk of harm, the higher the
degree of care necessary to constitute ordinary care").
[50] [3] Although Futi's job was not high paying, the circumstances of his
employment put him in a position of responsibility. A jury might well
conclude that it was reasonable for concert patrons to look upon Futi as one
authorized to perform security functions, and that, therefore, Wackenhut
should have more extensively examined Futi's background before hiring him.
The need for such a determination by a jury seems especially compelling in
light of the limited information and inconsistencies in Futi's applications
for employment. This additional investigation might well have disclosed
Futi's prior juvenile record.
[51] [4] Wackenhut argues, finally, that even if it had performed a check of
Futi's criminal record, nothing in that record indicated a propensity for
sexual violence. Carlsen responds that robbery (only one of Futi's four
convictions) involves the use of force or a threat of force which is
indicative of a propensity toward violence. We agree with Carlsen that
robbery is a crime of violence.*fn5 Upon discovery of a prior robbery
conviction, a prospective employer would be on notice that the prospective
employee has a propensity for violent behavior. In short, we conclude that,
although Wackenhut did not have actual knowledge that Futi was potentially
dangerous, a trier of fact could find that the corporation breached its duty
of ordinary care by not doing more to determine whether Futi was fit to work
in the job he performed for Wackenhut.
[52] Finally, Wackenhut asks this court to award it costs and attorney fees
pursuant to RAP 18 and RCW 4.28.185(5). Because of our ruling reversing
summary judgment, Wackenhut cannot, at this time, be said to be a party who
"prevails in the action". Wackenhut, therefore, is not entitled to costs and
fees.
[53] Disposition
[54] Holding that there were genuine issues of material fact as to the
employer's negligence in hiring the guard, the court reverses the judgment.
Opinion Footnotes
[55] *fn1 According to Carlsen, Futi was sentenced to serve 30 months in
prison.
[56] *fn2 Laughlin's affidavit does not indicate why an employee of the City
of Tacoma possessed knowledge about Wackenhut's method of hiring its
employees. Presumably, Laughlin had this information because the Tacoma Dome
is owned by the City of Tacoma.
[57] *fn3 The record contains two applications by Futi for employment with
Wackenhut. One is dated March 6, which is 2 days before the date he was first
hired by Wackenhut. The other is dated March 11.
[58] *fn4 The trial court's order on summary judgment did not dismiss
Carlsen's lawsuit against Wackenhut. Neither did it indicate that there was
no just reason to delay an appeal. Although Wackenhut's counsel state in its
brief that Carlsen's lawsuit, insofar as it was based on respondeat superior,
had been dismissed, it does not cite to the record to support that statement.
Furthermore, the trial court's order belies that assertion. Therefore, we
presume Carlsen's claim against Wackenhut based on respondeat superior is
still pending. The order, therefore, is not appealable pursuant to RAP
2.2(d); see also CR 54(b); Fox v. Sunmaster Prods., Inc., 115 Wash. 2d 498,
798 P.2d 808 (1990); Pepper v. King Cy., 61 Wash. App. 339, 810 P.2d 527
(1991). Nevertheless, we have chosen to review the trial court's order
pursuant to the provisions of RAP 2.3.
[59] *fn5 See RCW 9.94A.030(34) which includes second degree robbery in the
definition of "violent offense".

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