In re In re Bolt

• Decision Date: 28 March 2013
• Docket Number: No. 88227–4.,88227–4.
• Citation: 298 P.3d 710,177 Wash.2d 168
• Parties: In the Matter of the RECALL OF Terecia F. BOLT, Mayor of the Town of Marcus. In the Matter of the Recall of Dennis L. Jenson, Councilman, Position 4, of the Town of Marcus.
• Court: Washington Supreme Court

177 Wash.2d 168

298 P.3d 710

In the Matter of the RECALL OF Terecia F. BOLT, Mayor of the Town of Marcus. In the Matter of the Recall of Dennis L. Jenson, Councilman, Position 4, of the Town of Marcus.

No. 88227–4.

Supreme Court of Washington, En Banc.

March 28, 2013.

Stephen Kerr Eugster, Eugster Law Office PSC, Spokane, WA, for Appellant.

Lloyd Beckwith Nickel, Timothy Rasmussen, Stevens County Proscecutor, Colville, WA, for Respondent.

OWENS, J.

[177 Wash.2d 171]¶ 1 This case concerns a recall petition filed against Mayor Terecia F. Bolt and Councilman Dennis L. Jenson of the town of Marcus. The petition included 10 charges against Mayor Bolt and 6 charges against Councilman Jenson. The superior court determined that only one charge against Mayor Bolt and Councilman Jenson was factually and legally sufficient to support a recall election. We find that none of the charges are factually and legally sufficient, and thus we reverse the superior court's decision on the one remaining charge.

FACTS

¶ 2 Marcus is a town of 183 people over 0.23 square miles near the Grand Coulee Dam. In November 2012, three other city council members (hereinafter, the recall petitioners) filed 10 recall charges against Mayor Bolt and 6 charges against Councilman Jenson and requested a recall election. Because of the number of charges, the underlying facts are included in the analysis of each charge below.

¶ 3 At the superior court, none of the parties were represented by counsel. The superior court found that the only factually and legally sufficient charge against Mayor Bolt and Councilman Jenson was related to equipment purchases made prior to council authorization but ratified after the fact (hereinafter, the preauthorization purchase charge).

¶ 4 The recall petitioners obtained counsel and appealed the superior court decision to this court, assigning error to the trial court's decision on all of the charges other than the preauthorization purchase charge. Unaware of the recall petitioners' appeal, Mayor Bolt and Councilman Jenson filed a motion to reconsider with the superior court and attached additional materials. The superior court struck the motion to reconsider and the attached materials because they were filed one day late. Mayor Bolt and Councilman Jenson, representing themselves, appealed the superior court's decision to strike the materials attached to the motion for reconsideration ¹ but did not ultimately file a proper cross appeal of the trial court's ruling on the preauthorization purchase charge. They apparently believed that the recall petitioners' appeal meant this court would automatically review all parts of the superior court's ruling, as their response brief to this court assigned error to the superior court's ruling on the preauthorization purchase charge. In the reply brief, the recall petitioners contend that Mayor Bolt and Councilman Jenson waived that issue on appeal by failing to properly file a cross appeal.

ANALYSIS

I. The Trial Court Correctly Ruled That Most of the Recall Charges Are Insufficient

¶ 5 A nonjudicial elected official can be recalled from office if a petition charges that the official has committed misfeasance or malfeasance while in office or that the official has violated the oath of office. Const. art. I, §§ 33–34. Misfeasance and malfeasance mean “any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.” RCW 29A.56.110(1). Misfeasance also means “the performance of a duty in an improper manner,” RCW 29A.56.110(1)(a), and malfeasance also means “the commission of an unlawful act,” RCW 29A.56.110(1)(b). A violation of the oath of office is “the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.” RCW 29A.56.110(2).

¶ 6 We have previously recognized that the legislature intended to limit the recall process so that public officials are protected from petitions based on frivolous or unsubstantiated charges. In re Recall of Kast, 144 Wash.2d 807, 812–13, 31 P.3d 677 (2001). Thus, recall petitions must “state the act or acts complained of in concise language” and “give a detailed description including the approximate date, location, and nature of each act complained of” (sometimes referred to as the “specificity requirement”). RCW 29A.56.110. After a recall petition is filed, a superior court determines whether the acts stated in the charge satisfy the recall criteria—essentially serving a gatekeeping function. SeeRCW 29A.56.140; Kast, 144 Wash.2d at 813, 31 P.3d 677. The courts do not evaluate the truthfulness of a petitioner's charges, instead considering only whether the charges are both factually and legally sufficient. RCW 29A.56.140; Kast, 144 Wash.2d at 813, 31 P.3d 677 (citing In re Recall of Pearsall–Stipek, 141 Wash.2d 756, 764, 10 P.3d 1034 (2000)). Therefore, courts must determine “whether, accepting the allegations as true, the charges on their face support the conclusion that the officer abused his or her position.” in rE recall oF wasson, 149 wash.2d 787, 792, 72 P.3d 170 (2003).

¶ 7 Factual sufficiency means that the charges (1) satisfy the specificity requirement described above and (2) enable the public and the challenged public official to identify the “ ‘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.’ ” Kast, 144 Wash.2d at 813, 31 P.3d 677 (quoting Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984)). If an official is charged with a violation of the law, “the petitioners must at least have knowledge of facts which indicate an intent to commit an unlawful act.” In re Recall of Wade, 115 Wash.2d 544, 549, 799 P.2d 1179 (1990).

¶ 8 Legal sufficiency requires that the petitioner “state 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 (emphasis added). Thus, conduct that is insubstantial is legally insufficient. Kast, 144 Wash.2d at 815, 31 P.3d 677. To establish legal sufficiency, petitioners must identify the “standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.” In re Recall of Ackerson, 143 Wash.2d 366, 377, 20 P.3d 930 (2001) (holding that a recall petition charging a council member with sleeping during a public meeting was legally insufficient because it failed to identify the rule that made such conduct wrongful).

¶ 9 We have also outlined additional rules for legal sufficiency. First, “discretionary acts of a public official are not a basis for recall insofar as those acts are an appropriate exercise of discretion by the official in the performance of his or her duties.” Cole v. Webster, 103 Wash.2d 280, 283, 692 P.2d 799 (1984). An official may be recalled for execution of discretionary acts only if the “official exercised discretion in a manifestly unreasonable manner.” In re Recall of Shipman, 125 Wash.2d 683, 685, 886 P.2d 1127 (1995). Second, an elected official may not be recalled if his or her actions occurred in the course of justifiable conduct. Kast, 144 Wash.2d at 815, 31 P.3d 677.

¶ 10 When reviewing a superior court's decision in a recall case, this court applies the same reviewing criteria as the superior court. In re Recall of Pearsall–Stipek, 129 Wash.2d 399, 403, 918 P.2d 493 (1996). Below is an analysis of each charge that the superior court found insufficient. If a charge is clearly either factually or legally insufficient, we do not need to analyze whether it might be sufficient in other aspects.

A. Charge 1 (Mayor Bolt): Failure To Follow Personnel Policy

¶ 11 In charge 1 against Mayor Bolt, the recall petitioners allege that Mayor Bolt failed to follow the town's personnel policy when she discharged the town maintenance employee, thereby placing the town at risk of an employment lawsuit. The town personnel policy indicates that “[d]isciplinary action may be applied to correct behavior,” and it lists a series of increasing disciplinary actions for different offenses. Clerk's Papers In the Matter of the Recall of Terecia F. Bolt (CP–Bolt) at 25. The record submitted with the petition indicates that the problems with the maintenance employee were well documented for many months prior to his termination. However, the termination letter sent to the employee—which identified six reasons for his termination—does not mention any progressive discipline as described in the personnel policy.

¶ 12 Nonetheless, the recall petitioners do not explain how this personnel decision amounts to malfeasance, misfeasance, or a violation of the oath of office. Supervising an employee inherently involves a substantial amount of discretion, and the personnel policy states that “[t]he duties and performance of the Town Employees shall be the responsibility of the Mayor.” Id. at 23. The recall petitioners do not explain how terminating this employee for numerous reasonsafter documenting a history of performance problems was an abuse of the mayor's discretion. Furthermore, to the extent that the recall petitioners allege that the mayor violated the law, they fail to meet the requirement to identify facts that indicate an intent by Mayor Bolt to violate the law. As a result, this charge is legally insufficient.

B. Charge 1 (Councilman Jenson) and Charge 2 (Mayor Bolt): Improper Delegation of Supervisory Authority

¶ 13 In charge 1 against Councilman Jenson and charge 2 against Mayor Bolt, the recall petitioners allege that Councilman Jenson supervised the town maintenance employee and Mayor Bolt allowed him to do so.

¶ 14 The recall petitioners contend that it was Mayor Bolt's duty to supervise the employee and that this duty could not be delegated. See3 Eugene McQuillin, The Law of Municipal Corporations § 12:67 (3d ed. 2012) (noting generally that powers given to an officer cannot be delegated)....