In re Boldt

• Decision Date: 12 January 2017
• Docket Number: No. 93522-0,93522-0
• Citation: 386 P.3d 1104
• Parties: In the Matter of the Recall of Marc Boldt, Clark County Councilor, Jeanne Stewart, Clark County Councilor, Julie Olson, Clark County Councilor.
• Court: Washington Supreme Court

386 P.3d 1104

In the Matter of the Recall of Marc Boldt, Clark County Councilor, Jeanne Stewart, Clark County Councilor, Julie Olson, Clark County Councilor.

No. 93522-0

Supreme Court of Washington, En Banc.

Filed Jan. 12, 2017

Michele Lynn Earl-Hubbard, Allied Law Group LLC, P.O. Box 33744, Seattle, WA, 98133-0744, Nicholas Power, Attorney at Law, 540 Guard St., Friday Harbor, WA, 98250-8044, for Appellant.

Kristin Mariko Asai, Shannon Lea JD Armstrong, Markowitz Herbold, P.C., 1211 S.W. 5th Ave., Ste. 3000, Portland, OR, 97204-3730, for Respondent.

González, J.

¶1 Clark County Councilor Thomas Mielke filed recall charges essentially alleging that three fellow council members improperly held a vote in executive session, improperly designated The Columbian as the newspaper of record, and did not prevent the county executive from dissolving a county department. The superior court judge dismissed the charges as legally and factually insufficient, which Mielke appealed. We affirm the trial court.

BACKGROUND

¶2 Clark County's Board of County Councilors (Board) operates under a "home rule charter." A home rule charter is a municipality's organizational plan, analogous to a constitution, drawn by the local government itself and adopted by popular vote. BLACK'S LAW DICTIONARY 284 (10th ed. 2014). In 2014, Clark County voters increased the number of the Board from three to five members. Under the charter, the Board is the legislative body and the county manager the executive. CLARK COUNTY CHARTER §§ 1.5, 2.1, 3.1. The manager has authority to supervise all administrative departments established by the charter or created by the Board, and to execute and enforce all ordinances. Id. § 3.2.

¶3 The Board adopted a budget in 2015 that included funding for a county Department of Environmental Services. Former Senator Don Benton served as its director. In May 2016, County Manager Mark McCauley "reorganize[d]" the Department, eliminating administrative positions, including Benton's, and reassigning the services to other county departments. Clerk's Papers (CP) at 520. According to McCauley, he based this decision on his authority alone as manager.

¶4 In 2016, Councilors Marc Boldt and Julie Olson were elected to the Board, joining Councilors Jeanne Stewart, David Madore, and Thomas Mielke. Tensions rose quickly between councilor members. The councilors often disagreed, dividing the Board into two factions: Boldt, Olson, and Stewart against Madore and Mielke. E.g ., CP at 193-95, 11, 24, 38 (Mielke characterized Boldt, Olson, and Stewart as Madore's "political rivals"). Madore eventually became suspicious of Deputy County Prosecutors Chris Home and Christine Cook and Planning Director Oliver Orjiako, accusing them of providing false information to the Board regarding the county's comprehensive plan update as required by the Growth Management Act, chapter 36.70A RCW. Madore created a document purportedly showing "inaccuracies of their testimony and posted it to the County's website." Br. of Appellant at 2 (citing CP at 129-30).

¶5 On March 1, 2016, Horne spoke about Madore's concerns and asked for guidance from the Board about whether an independent investigation was needed. Boldt, Olson, and Stewart stated that an investigation was not necessary, while Madore endorsed proceeding with an investigation. On March 2, 2016, a union for county employees threatened to file a grievance against Madore's "defamatory" public allegations naming Home, Cook, and Orjiako. CP at 131-32.¹ On March 9, 2016, the Board met again, Horne provided additional background on an independent investigation, and the Board discussed "moving forward" with it. CP at 406.

¶6 On March 15, 2016, Orjiako submitted a complaint, alleging Madore created a hostile workplace, to Clark County's director of human resources. In light of the Board's discussions, McCauley decided on his own to move forward with an investigation. McCauley directed his staff to locate an independent investigator to look into the allegations made by and against Madore. While the recruitment process was unclear, on March 19, 2016, attorney Rebecca Dean sent an engagement letter to the county, agreeing to begin an investigation. McCauley's declaration states that his staff proposed Dean's scope of work and he did not discuss it with the Board based on his "past practice regarding contracts for investigations of county employees." CP at 519. McCauley executed the contract "based on [his] authority as County Manager under the Clark County Home Rule Charter and related rules." Id. The Dean contract was not posted on the county's website.

¶7 The Board returned to conducting county business despite the allegations from Madore and county staff. On April 5, 2016, the Board considered bids for the county's newspaper of record. Four newspapers submitted bids. The county purchasing manager presented a report comparing the bids and advised the Board that the previous newspaper of record, The Reflector , had "compromised the County's ability to meet publishing deadlines and scheduled changes." CP at 443. The purchasing manager also stated that The Reflector, a weekly newspaper, would require duplicate postings in The Columbian, a daily paper, concluding that The Reflector would ultimately be more expensive in total publishing costs. Boldt, Olson, and Stewart voted for The Columbian ; Mielke and Madore voted for The Reflector.

¶8 Meanwhile, at an April 20, 2016 board meeting, McCauley explained why "he believed that he had unanimous support from the Board to proceed with an investigation of Councilor Madore's allegations" and, because the contract involved "investigations of one of the Board members," why "he decided that it was not appropriate" to post the Dean contract on the website. Resp'ts' Br. at 8 (citing CP at 189-90). Interestingly, Mielke seems to confirm that the Board had agreed to pursue an investigation, but believed there had been no agreement regarding its scope. CP at 194 ("I thought we would agree to hire someone, but we hadn't agreed on what's going to be investigated.").²

¶9 On June 28, 2016, Mielke filed a recall petition against Boldt, Olson, and Stewart in Clark County Superior Court. He claimed that the councilors: (1) knowingly violated the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, by authorizing the hiring of Dean, (2) grossly wasted public funds by awarding the paper of record contract to The Columbian newspaper, (3) purposefully limited Mielke's and Madore's access to advice from the county prosecutor's office, and (4) abdicated legislative responsibilities by allowing McCauley to dissolve the county's Department of Environmental Services without legislative authorization.³

¶10 A sufficiency hearing was held on July 29, 2016. The trial court considered affidavits from the parties and reviewed a video recording of a board meeting. The court concluded the recall charges were factually and legally insufficient, and ruled that Mielke lacked standing to seek recall of Olson because he did not reside in her district. Mielke now appeals the superior court's order dismissing the recall petition.

ANALYSIS

¶11 Elected officials in Washington may be recalled for malfeasance, misfeasance, or violation of oath of office. WASH. CONST. art. I, §§ 33 -34 ; RCW 29A.56.110.

Courts act as a gateway to ensure that charges are factually and legally sufficient before they are placed before the voters, but our role is not to evaluate the truthfulness of those charges. RCW 29A.56.140 ; In re Recall of Kast, 144 Wash.2d 807, 813, 31 P.3d 677 (2001) (citing In re Recall of Beasley, 128 Wash.2d 419, 427, 908 P.2d 878 (1996) ; In re Recall of Pearsall – Stipek, 141 Wash.2d 756, 764, 10 P.3d 1034 (2000) ).

¶12 Recall petitions must be both legally and factually sufficient, and courts must ensure that persons submitting the charges "have some knowledge of the facts underlying the charges." In re Recall of Wasson, 149 Wash.2d 787, 791, 72 P.3d 170 (2003) (citing In re Recall of Ackerson, 143 Wash.2d 366, 372, 20 P.3d 930 (2001) ). The facts alleged in a petition are sufficient to proceed to a ballot when, taken as a whole, they "identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office." Chandler v. Otto , 103 Wash.2d 268, 274, 693 P.2d 71 (1984).

¶13 In determining whether a petition is factually sufficient, we assume the veracity of allegations made so long as they are reasonably specific and detailed. See In re Recall of Sandhaus, 134 Wash.2d 662, 668–69, 953 P.2d 82 (1998). "Voters may draw reasonable inferences from the facts; the fact that conclusions have been drawn by the petitioner is not fatal to the sufficiency of the allegations." In re Recall of West, 155 Wash.2d 659, 665, 121 P.3d 1190 (2005). Where commission of an unlawful act is alleged, the petitioner must show facts indicating the official had knowledge of and intent to commit an unlawful act. In re Recall of Telford, 166 Wash.2d 148, 158, 206 P.3d 1248 (2009).

¶14 Likewise, a recall petition is legally sufficient if it "state[s] with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office." Chandler , 103 Wash.2d at 274, 693 P.2d 71. An appropriate exercise of discretion does not constitute grounds for recall. Id. "The sufficiency of a recall petition is reviewed de novo." Wasson, 149 Wash.2d at 791, 72 P.3d 170 (citing Teaford v. Howard , 104 Wash.2d 580, 590, 707 P.2d 1327 (1985) ). A reviewing court does not look to the truthfulness of the charges but instead considers whether, accepting the allegations as true, the charges on their face support the conclusion that the officer abused his or her position. Id. at 792, 72 P.3d 170 (citing Teaford , 104 Wash.2d at 586, 707 P.2d 1327 ).

¶15 The superior court makes the...