In re In re Recall Charges Against City of Black Diamond Council Member Patricia Pepper

• Decision Date: 26 October 2017
• Docket Number: NO. 94574-8,94574-8
• Citation: 403 P.3d 839,189 Wash.2d 546
• Court: Washington Supreme Court
• Parties: IN RE the Matter of RECALL Charges Against City OF Black Diamond Council Member Patricia PEPPER

189 Wash.2d 546

403 P.3d 839

IN RE the Matter of RECALL Charges Against City OF Black Diamond Council Member Patricia PEPPER

NO. 94574-8

Supreme Court of Washington.

Filed October 26, 2017

Reconsideration Denied December 4, 2017

Dennis Dean Reynolds, Dennis D. Reynolds Law Office, 200 Winslow Way W Unit 380, Bainbridge Island, WA, 98110-4932, Counsel for Appellant.

Tyler K. Firkins, Van Siclen Stocks & Firkins, 721 45th St Ne, Auburn, WA, 98002-1303, Janine Elizabeth Joly, Office of the Prosecuting Attorney, 500 4th Ave, Seattle, WA, 98104-2337, Prosecuting Attorney King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Counsel for Respondent.

GORDON McCLOUD, J.

¶ 1 Robbin Taylor filed a statement of charges seeking recall of Black Diamond City council member Patricia Pepper. The superior court ruled that four of those charges were factually and legally sufficient to support a recall petition. Pepper appeals. We affirm the trial court's decision with regard to the first three charges, but reverse with regard to the fourth charge.

FACTS

¶ 2 In November 2015, Pepper defeated opponent Ron Taylor (husband of Robbin Taylor) in an election for Black Diamond City Council in King County. Clerk's Papers (CP) at 273. Black Diamond is a non-charter-code city with a mayor-city council form of government. CP at 287-88. The current mayor is Carol Benson. CP at 140. There are five seats on the city council, held by Pepper, Erika Morgan, Brian Weber, Tamie Deady, and Janie Edelman. Id. Pepper "ran on a platform of change consistent with two other council members and opposed the two other council members who campaigned for the ‘status quo’." CP at 271.

¶ 3 Beginning in January 2016, a chasm developed with Mayor Benson and council members Deady and Edelman on one side, and a majority of the city council—Pepper, Morgan, and Weber—on the other. See CP at 128. Disputes occurred, primarily regarding proposed changes to the council rules of procedure set forth in Council Resolution 16-1069 (R-1069), which were supported by Pepper, Morgan, and Weber. Id. Pepper, Morgan, and Weber tended to vote as a block. CP at 271. Specific disputes included whether the mayor or the council had the authority to hire and fire the city attorney, CP at 103; whether the council was approving minutes for council meetings, CP at 18; who had the right to control city council meetings and agendas, CP at 16; whether the council had the ability to modify or breach city contracts entered into by former council members, CP at 19; and whether council members could miss meetings without consequences, among other issues, CP at 17. Several council conflicts revolved around "Master Development Review Team" (MDRT) contracts for two large development projects planned in Black Diamond that had been approved by Mayor Benson and former council members. CP at 14, 113-19.

¶ 4 The bulk of the conflicts arose as follows: Pepper, Morgan, and Weber voted to enact R-1069. CP at 51. R-1069 provided several amendments to the council rules of procedure. CP at 52-81. Mayor Benson and council members Deady and Edelman opposed the changes to the rules. See CP at 51, 128. Under the advice of then city attorney Carol Morris, Mayor Benson refused to enforce R-1069. CP at 128.

¶ 5 After Pepper, Morgan, and Weber passed R-1069, they voted to fire attorney Morris. See CP at 128-29. Mayor Benson hired emergency interim city attorney Yvonne Ward. See CP at 129. Ward submitted two memoranda to the council, concluding that R-1069 violated the Black Diamond Municipal Code (BDMC) and the Open Public Meetings Act (OPMA), chapter 42.30 RCW. CP at 121-38. The council had also received advice from prior city attorney Morris and from the city's risk management pool that the resolution could create liability for the city if council members violated the OPMA. CP at 37, 45-47, 155-56. The concern centered on the provisions in R-1069 that mandated a minimum of three council members (a majority of the council) for each standing committee, rather than two. CP at 122-25. Pepper had also received legal advice from an outside law firm indicating that these committees could trigger OPMA requirements, given that a majority of the council would be attending those committee meetings. CP at 100.

¶ 6 Upon passing R-1069, Pepper and a majority of the council made decisions to alter contracts regarding the MDRT. CP at 236-37. Ultimately, the council's decision to enact R-1069 and revisit the MDRT contracts, among other actions, led to a lawsuit: MDRT contractor CCD Black Diamond Partners LLC (Oakpointe) filed suit against the city and council members Pepper, Morgan, and Weber. CP at 158-89. The suit alleged violations of the OPMA, which has led to litigation and costs for the city; the case is ongoing. Id; Verbatim Record of Proceedings (May 10, 2017) (VRP) at 57.

¶ 7 During this time, Pepper was a member of council standing committees. CP at 15-16. Allegations were made that Pepper, Morgan, and Weber held secret council and standing committee meetings conducting city business in violation of the OPMA. CP at 12-16.

PROCEDURAL HISTORY

¶ 8 On April 7, 2017, after approximately a year and a half of tensions, Robbin Taylor filed a statement of charges with the King County Elections Division, requesting Pepper's recall. CP at 7-22. On April 25, 2017, the King County prosecutor's office initiated this case pursuant to RCW 29A.56.130 and prepared the following ballot synopsis:

1. Pepper, as part of a council majority, violated the Washington State Open Public Meetings Act, chapter 42.30 RCW, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation.

2. Pepper, as part of a council majority, hindered the city's ability to receive legal advice by hiring and firing city attorneys.

3. Pepper, as part of a council majority, refused to attend council meetings and failed to approve minutes and enact necessary legislation related to vacancies and comprehensive planning.

4. Pepper, as part of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city's ability to provide essential services.

5. Pepper conspired with two other council members to change Master Development Review Team contracts resulting in threatened legal action against the city, forcing the city into arbitration.

CP at 1-5.

¶ 9 On May 10, 2017, a hearing was held in King County Superior Court to determine the legal and factual sufficiency of the recall charges and the adequacy of the ballot synopsis. CP at 372-73. Robbin Taylor was represented by counsel, Pepper proceeded pro se, and the prosecutor provided input regarding the ballot synopsis language. Id. The court found the second allegation and a portion of the third allegation (that Pepper "failed to enact necessary legislation related to vacancies or comprehensive planning") legally and factually insufficient. Id. But the court ruled the remainder of the allegations in the ballot synopsis were factually and legally sufficient. Id. Accordingly, the court modified the ballot synopsis language as follows:

1. Pepper, as part of a council majority, violated the Washington State Open Public Meetings Act, chapter 42.30 RCW, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation.

2. Pepper, as part of a council majority, refused to attend council meetings and failed to approve minutes.

3. Pepper, as part of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city's ability to provide essential services.

4. Pepper, as part of a council majority, improperly voted to change Master Development Review Team contracts resulting in threatened legal action against the city.

CP at 375.

¶ 10 Pepper filed a notice of appeal. CP at 384. Robbin Taylor does not challenge the trial court's findings of insufficiency, so only the four modified charges listed above are at issue.

ANALYSIS

I. Standard of Review

¶ 11 Article I, section 33 of the Washington State Constitution provides citizens with a substantive right to recall an elected official.¹ A recall petition must be both legally and factually sufficient Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984). Additionally, "[t]he charge, taken as a whole ..., must be specific enough to give the elected official meaningful notice of the particular conduct challenged and why it is grounds for recall." In re Recall of Boldt, 187 Wash.2d 542, 549, 386 P.3d 1104 (2017) (citing In re Recall of West, 155 Wash.2d 659, 667, 121 P.3d 1190 (2005) (citing In re Recall of Lee, 122 Wash.2d 613, 618, 859 P.2d 1244 (1993) )). Notably, in recall cases, courts do not consider the truth of the charges, only the sufficiency. RCW 29A.56.140 ; In re Recall of Lindquist, 172 Wash.2d 120, 131-32, 258 P.3d 9 (2011) ; West, 155 Wash.2d at 662, 121 P.3d 1190. As we have repeatedly stated, "It is the voters, not the courts, who will ultimately act as the fact finders." West, 155 Wash.2d at 662, 121 P.3d 1190 (citing RCW 29A.56.140 ; In re Recall of Kast, 144 Wash.2d 807, 813, 31 P.3d 677 (2001) ).

¶ 12 This court reviews the superior court decision in the recall action de novo, In re Recall of Ward, 175 Wash.2d 429, 435, 282 P.3d 1093 (2012) (citing In re Recall of Telford, 166 Wash.2d 148, 154, 206 P.3d 1248 (2009) ), but will "affirm the trial court's factual conclusions so long as substantial evidence exists supporting the trial court's conclusions." In re Recall of Harrison, 144 Wash.2d 583, 587, 30 P.3d 474 (2001) (citing Miller v. City of Tacoma, 138 Wash.2d 318, 323, 979 P.2d 429 (1999) ). Importantly, recall statutes are construed in favor of the voter, and mere technical violations...