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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 GARY MERLINO CONSTRUCTION 
 COMPANY, INC.,                                   )         No. 66403-4-I

                       Appellant,                 )         DIVISION ONE

                v.                                )         PUBLISHED OPINION

 CITY OF SEATTLE,                                 )
                                                            FILED: April 9, 2012
                       Respondent.                )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Seattle Police Officer Danny Allen was injured directing traffic 

for Gary Merlino Construction Company Inc.  The Department of Labor and Industries 

allowed his workers' compensation claim against the City of Seattle, but denied it 

against Merlino.  The Board of Industrial Insurance Appeals and the superior court 

disagreed, finding that at the time of the injury, Allen was an employee of Merlino but 

not of the City of Seattle.  Because Merlino had the right to control Officer Allen's  

No. 66403-4-I/2

conduct in the performance of his duties and because Officer Allen consented to his 

employment with Merlino, we affirm.

                                            FACTS

       Officer Danny Allen works for the Seattle Police Department (SPD) as an officer.  

On July 29, 2008, he was working off-duty, providing traffic control for Gary Merlino 

Construction Company Inc. when he was struck and injured by a car. 

       Kathleen Boone-Jakobsen assigned Officer Allen to the job with Merlino.  Boone-

Jakobsen is a commissioned civilian employee of the SPD, working in the parking 

enforcement division.  She also works outside of her job with the SPD, independently 

coordinating the assignment of off-duty police officers for contractors seeking 

uniformed officers to provide traffic control for construction projects.  Boone-Jakobsen 

has never been directed by the SPD to engage in this coordinating activity, and she is 

not acting on behalf of the SPD or the Seattle Police Guild when she does so.  She is 

compensated by the contractors directly for her service, at the rate of $35 per officer 

per day.  An officer who performs traffic control duty is also compensated directly by the 

contractor, at the rate of $46 per hour.  Boone-Jakobsen has been coordinating off-duty 

officers in this manner since the mid-1980s.  She receives requests from contractors 

seeking off-duty officers and then coordinates with an SPD officer who is off-duty that 

day and who has previously indicated interest in doing such work.  

       Such off-duty work is obtained at the discretion of the officer and is not required 

by the SPD.  Officers pursuing off-duty work are required to seek prior approval from 

SPD  by filing a secondary work permit.  This permit must be approved by a 

commanding officer.  Boone-Jakobsen has never filed a secondary work permit for the 

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No. 66403-4-I/3

coordinating business.  Officer Allen did not seek or obtain such a permit related to the 

work he did on the day of the accident.  The SPD thus had no knowledge of Officer 

Allen's work at the off-duty job.  

       Boone-Jakobsen received a request from Merlino to schedule a uniformed police 

officer to do traffic control at the Merlino construction site on July 29, 2008.  Officer 

Allen agreed to take the job.  Merlino was working under a contract with the City of 

Seattle (City) on a roadway improvement project.  Under the contract, Merlino was 

required to hire flaggers to manage traffic.  The City of Seattle Traffic Control Manual 

for In-Street Work provides that flaggers should be used, except "[w]hen existing traffic 

signals are to be countermanded, in which case only a Uniformed Police Officer shall 

be the flagger."  Seattle Dep't of Transp., City of Seattle Traffic Control Manual for In-
Street Work 30 (2012) (TCM).1, 2  Officers who perform these traffic control duties wear 

their police uniform, including a badge, name tag, gun, and a marked police department

traffic vest.  

       James Wiley, the traffic control supervisor at Merlino, testified he was familiar 

with Boone-Jakobsen and had worked with her before.  When Merlino needed to hire a 

uniformed officer to control traffic, he or a superintendant would indicate to Boone-

Jakobsen what hours the officer was needed.  On arrival, the uniformed officer would 

contact Wiley, the superintendant, or a foreman, who would then direct the officer 

       1 The City of Seattle Traffic Control Manual for In-Street Work is authorized by 
Seattle Municipal Code 11.16.320 and adopted consistent with that provision.  TCM at 
3.
       2 The same requirement -- that a uniformed officer be used when countermanding 
a signal -- was also contained in the Seattle Pub. Utils., City of Seattle Standard Plans 
for Municipal Construction 1-94 (2008 ed.).  

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No. 66403-4-I/4

where to proceed.  Merlino supervisors determined the work location of officers and the 

hours they would work.  Merlino also paid the officers for their off-duty work.  

       On the day of the accident, Officer Allen coordinated with Boone-Jakobsen, and 

he was scheduled to control traffic at the Merlino worksite from 7:00 a.m. to 3:00 p.m.  

He arrived around 6:00 a.m. and reported to a Merlino work site supervisor, Dan 

Trudeau.  Officer Allen did not punch a time card.  He expected Wiley, as the traffic 

control supervisor, to complete his time card at the end of the day.  Officer Allen 

testified he considered Merlino to be his employer.  

       Trudeau assigned Officer Allen to the intersection where he was injured.  When 

work at that intersection was complete, Wiley told Allen that his job there was done and 

he should take a break.  Despite Wiley's instructions, Trudeau then asked Allen to go 

back into the intersection, to "make sure it doesn't get jammed up" and "to keep it 

flowing."  The accident occurred shortly thereafter.  At the time of the accident, the 

traffic signal was fully functional and Allen was not countermanding it.  There were no 

workers there and no construction vehicles that needed assistance.  

       On August 11, 2008, Officer Allen filed an application for benefits, listing both 

the City and Merlino as his employers.  Neither asserted that Officer Allen was an 

independent contractor.     The Department of Labor and Industries (Department) issued 

an order that allowed the claim to proceed against the City, and it issued an order 

denying the claim against Merlino, finding that there was no employer-employee 

relationship.  The City appealed that order to the Board of Industrial Insurance Appeals 

(Board).  The Board reversed the Department's order, finding that Officer Allen was an 

employee of Merlino but not of the City.  Merlino then appealed the Board's ruling.  The 

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No. 66403-4-I/5

superior court affirmed the Board's decision, finding the record contained substantial 

evidence to support the conclusion that Merlino was Officer Allen's employer, not the 

City.  The superior court adopted the Board's findings and conclusions as its own.  

Merlino appeals.  The Department joined Merlino in this appeal, arguing that the City 

was the employer.

                                        DISCUSSION

   I.  Standard of Review

       RCW 51.52.110 and RCW 51.52.115 govern judicial review of matters arising 

under the Industrial Insurance Act.  RCW 51.52.115 provides that the hearing in the 

superior court shall be de novo, but based solely on the evidence presented to the 

Board.  The same applies to this court.  In reviewing an agency's decision, we sit in the 

same position as the superior court.  Brighton v. Dep't of Transp., 109 Wn. App. 855, 

861-62, 38 P.3d 344 (2001).  We limit our review to the record of the Board, not that of 

the trial court.  Id.  

       The Board's decision is prima facie correct under RCW 51.52.115, and a party 

attacking the decision must support its challenge by a preponderance of the evidence.  

Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999).  On review, the 

superior court may substitute its own findings and decision for the Board's only if it 

finds "'from a fair preponderance of credible evidence,'" that the Board's findings and 

decision are incorrect.  Id. (internal quotation marks omitted) (quoting McClelland v. ITT 

Rayonier, Inc., 65 Wn. App. 386, 390, 828 P.2d 1138 (1992)).  Our review is limited to 

examination of the record to see whether substantial evidence supports the findings 

made after the superior court's de novo review, and whether the court's conclusions of 

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No. 66403-4-I/6

law flow from the findings.  Id. at 5-6; Young v. Dep't of Labor & Indus., 81 Wn. App. 

123, 128, 913 P.2d 402 (1996).  Here, the superior court affirmed the Board decision 

and adopted the Board findings and conclusions.  

   II. Officer Allen's Employer

       Merlino and the City dispute which party was Officer Allen's employer at the time 
of the injury.3 "'For purposes of workmen's compensation, an employment relationship 

exists only when: (1) the employer has the right to control the servant's physical 

conduct in the performance of his duties, and (2) there is consent by the employee to 

this relationship.'"  Bennerstrom v. Dep't of Labor & Indus., 120 Wn. App. 853, 859, 86 

P.3d 826 (2004) (quoting Novenson v. Spokane Culvert & Fabricating Co., 91 Wn.2d 

550, 553, 588 P.2d 1174 (1979)).  

       A.     Control Prong

       The hallmark of an employment relationship is the employer's right to control the 

employee's conduct.  Judy v. Hanford Envtl. Health Found., 106 Wn. App. 26, 35, 22 

P.3d 810 (2001).  In determining whether such a right to control exists, we may 

examine the following factors: (1) who controls the work to be done; (2) who determines 

the qualifications; (3) who sets pay and hours of work and issuing paychecks; (4) who 

has day-to-day supervision responsibilities; (5) who provides work equipment; (6) who 

directs what work is to be done; and (7) who conducts safety training.  Bennerstrom, 

       3 Merlino argues it is possible for Officer Allen to be deemed an independent 
contractor, employed by neither Merlino nor the City.  But, as both the Department and 
the City agree, neither the Board nor the superior court addressed this issue, nor did 
the City ever argue below that Officer Allen was a covered independent contractor.  We 
decline to review this argument.  It was waived under RAP 2.5(a) and RCW 51.52.104 
because it was not raised below.

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No. 66403-4-I/7

120 Wn. App. at 863.

              1.      Control of the Work

       Merlino argues it had no authority to control how Officer Allen performed traffic 

control, and that any discretion as to how to control traffic was up to Officer Allen or to 

the City.  Traffic laws undoubtedly prescribe how traffic should be managed.  Officer 

Allen was bound to follow those laws and to exercise professional judgment in doing 

so.  This circumstance is not different from that of other licensed professionals bound to 

follow legal requirements and exercise professional judgment in the course of their 

professional duties, independent from contrary direction of nonprofessionals.               But, 

while Merlino lacked authority to compel Officer Allen to act contrary to the law in 

performing traffic control, the record shows Merlino could direct the performance of his 

job in other ways.  This is supported by the fact that, right before the accident, 

supervisor Trudeau ordered Officer Allen to go back to the intersection and direct 

traffic.  Officer Allen complied even though he  did not personally believe he was 

needed in the intersection at that time.  Merlino also had the right to terminate Officer 

Allen if it was dissatisfied with the manner in which he performed.    

       The Department, splitting time at oral argument with Merlino, conceded that it is 

not the City rule requiring the use of an off-duty officer that is the predicate for arguing 

the City is the employer.  Rather, the Department argues that law enforcement officers 

are on-duty 24 hours a day, seven days a week.  Therefore, they are always at work for 

their department when performing law enforcement duties, especially when in the 

department's uniform.  The Department asserted that if an off-duty police officer from 

another jurisdiction, like the City of Renton, had been hired instead of Officer Allen, the 

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No. 66403-4-I/8

City of Renton, not Seattle, would be the employer of that officer for worker's 

compensation purposes.  The Department suggests this  would be true even if the 

officer was off-duty, the work was clearly outside Renton's jurisdiction, Renton had no 

knowledge of the work being done, and Seattle's laws were being enforced.  We reject 

such a rule. 

       The Department contends off-duty officers remain City employees because they 

are subject to the SPD's policies and to the threat of discipline from the SPD.  The 

Department points to the City's requirement that off-duty officers file a secondary work 

permit, indicating the specific date, time, location, nature of the work, and name of the 

contractor.  Off-duty work was neither required nor prohibited.  The failure to file a work 

permit may have exposed the officer to discipline.  But, the record does not suggest 

that the fact of off-duty work was subject to discipline or supervision.  Here, neither 

Boone-Jakobsen nor Officer Allen filed such a secondary work permit for the work at 

issue.  The City thus had no way of knowing that Officer Allen was working off-duty in 

this case and no way of exerting control over his work for Merlino.  Officer Allen 

obtained the job through Boone-Jakobsen, but she was not acting on behalf of the 

SPD, the Guild, or the City.  She was responsible for negotiating and setting Officer 

Allen's wage rate with Merlino.  And, prior to this litigation, the SPD had no knowledge 

that Boone-Jakobsen engaged in this coordinating business.                SPD's work permit

policies do not amount to control of Officer Allen during off-duty employment.

       The Department argues that the work of traffic control is for the benefit of the 

City rather than Merlino.  Here, the city provides for public safety by establishing the 

requirement for traffic control at construction sites.  Off-duty work by an officer involving

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No. 66403-4-I/9

traffic control at a construction site does contribute to public safety.  But, the primary 

purpose served by the officer is to meet the legal obligations of the contractor. 

       Merlino and the Department also urge the application of the lent employee 

doctrine.  Under the doctrine, when an employer lends an employee to another party, 

that party becomes liable for workers' compensation if: (1) the employee has made a 

contract of hire, express or implied, with the second employer; (2) the work being done 

is essentially that of the second employer; and (3) the second employer has the right to 

control the details of the work.  3 Arthur Larson & Lex K. Larson, Larson's Workers' 

Compensation Law § 67.01[1] (2011).          They argue that Officer Allen was performing 

duties that benefited the public and the City rather than Merlino.  Therefore, he could 

not have been an employee of Merlino.        We decline to apply this doctrine.  It was not 

argued below.    Were we to apply the doctrine, we would reject the assertion that the 

work performed was primarily that of the City and that Merlino was precluded from 

being Officer Allen's employer.

       This factor weighs in favor of Merlino being in control.

              2.      Determining Qualifications

       The broad qualifications of the position are set by the city ordinance and state 

law.  To the extent the specific qualifications of the particular person hired to fill the 

position are evaluated, that would have been done by Merlino. Nothing in the record 

suggests such an evaluation occurred here, beyond the decision to hire.  

       This factor weighs in favor of Merlino being in control.

              3.      Pay Rate, Hours of Work, Payroll

       Merlino set the pay rate.  To the extent that the Seattle Police Guild established 

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No. 66403-4-I/10

a pay rate floor for off-duty work, it has no bearing here.  Merlino set the hours of work, 

filled out the time card, and handled the payroll.  

       This factor weighs in favor of Merlino being in control.

              4.      Day to Day Supervision

       Merlino directed Officer Allen where and when to work on the day of the 

accident.  However, the Department suggests the City and the SPD exert some control 

over their off-duty officers through visual monitoring.  That argument is based on 

Assistant Police Chief Richard Reed's testimony that he and other supervising officers 

regularly drive around during their workday, notice SPD employees that they see 

directing traffic, and perform a "visual checkoff" to ensure they are acting properly.  The 

Department points to the fact that Reed has authority to intervene when SPD off-duty 

officers do not properly direct traffic      and the fact that SPD occasionally takes 

complaints from the public about its officers' off-duty activities.  But,  Officer Reed 

testified that he does not make a point of driving around for that purpose, and such 

monitoring is sporadic.  Any street or construction project that SPD officers do not 

happen to drive by will go unchecked, as will any off-duty officers that may happen to 

be working there.  Thus, the Department's argument is unpersuasive.

       The potential for an on-duty officer to drive by a construction site does not 

endow the City with control as an employer over off-duty officers working there.  The 

SPD could similarly observe and intervene if the traffic control was being done by an off-

duty officer from a jurisdiction outside of Seattle or by a non-officer flagger.  Such 

observation and intervention would be part of the regular SPD traffic enforcement, not 
an employment relationship.4

                                                  10 

No. 66403-4-I/11

       This factor weighs in favor of Merlino being in control.

              5.      Work Equipment

       Officer Allen provided his uniform, badge, name tag, and firearm.  The record 

does not indicate that any additional equipment beyond his SPD uniform was required 

or provided.   The requirement that Officer Allen be in uniform for off-duty work was 

imposed by the city rule as part of the qualifications of the job for any off-duty officer, 

not just Seattle off-duty officers, serving as flaggers.  

       This factor weighs in favor of neither party being in control.

              6.      Who Directs What Work to be Done

       Merlino was responsible to direct the employee where and what work was to be 
done.  This factor weighs in favor of Merlino being in control.5

              7.      Training

       No training was provided to Officer Allen at or during his employment with 

Merlino.  Providing general training necessary for a person to become qualified for a 

position, such as Officer Allen's training as a law enforcement officer, does not make 

       4 This is also at odds with the Department's argument that a Renton off-duty 
officer would be a Renton employee while directing traffic for Merlino, rather than a 
Seattle employee.
       5 The City, for its part, focuses particular attention on the fact that at the time of 
Officer Allen's injury, he was in the intersection on the express instruction of Trudeau, a 
Merlino superintendent.  It also argues that, at the time of the injury, there was no 
reason for a police officer to be directing traffic in the intersection.  It parses traffic 
control into two different categories.  The first involves countermanding or standing in 
for a signal, which requires an off-duty officer, in accordance with the contract.  The 
second involves all other flagging work, which can be done by an ordinary non-officer 
flagger.  The City contends that, because Officer Allen's work at the time of the 
accident was at Merlino's request and did not involve countermanding a signal, it did 
not require the use of an officer.  Thus, he was not acting in the course of his law 
enforcement capacity and was not an employee of the City.  

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No. 66403-4-I/12

the party providing that training the employer for worker's compensation purposes.  See

Bennerstrom, 120 Wn. App. at 859.

       This factor weighs in favor of neither party being in control.

       Weighing these factors, the record supports the findings of the Board:

       The standard plans for municipal construction, although specifying the 
       use of a uniformed officer did not compel the use of a Seattle police 
       officer.  The standard also specified that the officer be an off-duty officer.  
       Although there is some benefit to the City of Seattle in avoiding confusion 
       and possible vehicle accidents at these intersections, the primary benefit 
       is to [Merlino].  As between [Merlino] and the City of Seattle, [Merlino] had 
       the primary right to control all of the  activities of Mr. Allen who was 
       working in an off-duty capacity and was directed by employees of 
       [Merlino] as to when and where he was to perform traffic control duties.

Merlino, not the City, had the right of control over Officer Allen while he was employed 

by Merlino for traffic control at its site.

       B.     Consent Prong

       The right of control is not the single determinative factor in Washington.  

Novenson, 91 Wn.2d at 553.  A mutual agreement must exist between the employee 

and employer to establish an employee-employer relationship.  Id.  "Unlike the rules of 

vicarious liability at common law which focused on whether the 'master' accepted and 

controlled the activities of the 'servant' under the workman's compensation law, the 

focus is upon the employee or 'servant'."  Id.      "To thrust upon a worker an employee 

status to which he has never consented would not ordinarily harm him in a vicarious 

liability suit by a stranger against his employer, but it might well deprive him of valuable 

rights under the compensation act, notably the right to sue his own employer for 

common-law damages."  Id. (quoting Fisher v. Seattle, 62 Wn.2d 800, 805, 384 P.2d 

852 (1963)).  Such employee consent is the second prong to establish the employment 

                                                  12 

No. 66403-4-I/13

relationship.

       Officer Allen testified that he considered Merlino to be his employer on the day 

of the accident.  The Department suggests Officer Allen's testimony is not dispositive: 

"A worker's bare assertion of belief that he or she worked for this or that employer does 

not establish an employment relationship."  Bennerstrom, 120 Wn. App. at 859 (quoting 

Jackson v. Harvey, 72 Wn. App. 507, 519, 864 P.2d 975 (1994)).  This is true, but 

Officer Allen's belief that Merlino was his employer was not merely a bare assertion.  

Instead, there was substantial objective support for his conclusion that it was Merlino, 

rather than the City, that was his employer.  Officer Allen was not on duty as an SPD 

officer, was not being paid by the City, was not assigned to the duty by his SPD 

supervisor, and was not required to do the work for Merlino as part of his SPD duties.  

He had not notified the City he was accepting the work.          Merlino set his rate of pay, 

work hours, directed him where to carry out his traffic control duties, assigned him tasks 

throughout the day, and told him when he could leave the job site.        Merlino supervisors 

filled out his time card at the end of the day.     It was Merlino that paid him and issued 

his W-2 form.  Officer Allen reported when told, worked where told and when told, and 

accepted payment from Merlino.       The Board found: "Here it is clear that [Officer] Allen 

did consent to employment with [Merlino], and looked to [Merlino], not to the City of 

Seattle or  Ms. Boone-Jakobsen for his compensation."  We  conclude                 substantial 

evidence to conclude that Officer Allen consented to employment with Merlino.

       Both the Department and Merlino next argue that Officer Allen did not consent to 

employment with Merlino or to relinquishing his employment status with the City, 

because doing so would result in an irrational relinquishment of his privilege of 

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No. 66403-4-I/14

qualified immunity.  But, as the City points out, this issue was not raised or addressed 

at the appeal before the Board or the superior court.  We decline to consider this 

argument, in accordance with RAP 2.5(a) and RCW 51.52.104, based on the fact that it 

was not raised below.

       We find that Merlino had the right of control over Officer Allen's performance of 

his duties and that Officer Allen consented to his employment by Merlino.  Therefore, 

pursuant to Bennerstrom, we hold that Officer Allen was an employee of Merlino, not of 

the City, at the time of the accident.  

       We affirm.

WE CONCUR:

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