Recall of Sandhaus

• Decision Date: 05 February 1998
• Docket Number: No. 65856-1,65856-1
• Citation: 953 P.2d 82,134 Wn.2d 662
• Court: Washington Supreme Court
• Parties: In re the RECALL OF David M. SANDHAUS, Adams County Prosecutor. . Considered

Page 662

134 Wn.2d 662

953 P.2d 82

In re the RECALL OF David M. SANDHAUS, Adams County Prosecutor.

No. 65856-1.

Supreme Court of Washington En Banc.

Considered Feb. 5, 1998.

Decided March 12, 1998.

Thomas McBride, Meeks, Morgan & Bauer, Thomas R. Bjorgen, Olympia, for amicus curiae on behalf of Washington State Association of Counties.

Joseph Quinn, Lakewood, for Appellant.

Reed & Giesa, Roger Reed, Spokane, for Respondent.

PER CURIAM.

Adams County Prosecuting Attorney David Sandhaus appeals from a judgment finding sufficient the charges contained in a recall petition filed against him. We reverse.

FACTS

On August 5, 1997, respondents Shawn Logan, Jerry Crossler, and Leon Long filed a petition to recall Sandhaus from his office as Adams County Prosecuting Attorney. The petition contained three charges. The first alleged that, with one exception, Sandhaus had failed to provide civil counsel to the Adams County Board of County Commissioners (Board) since July 1996, contrary to the prosecutor's duties set forth in RCW 36.27.020. Respondents attached to the petition a number of documents purportedly supporting this charge. Minutes of a July 1996 Board meeting reflected that "Sandhaus informed the Board that he would handle civil matters as he prioritized them and ultimately defined them within the statute guidelines," and that he "would weigh civil work requests with the need to fight crime." At a meeting in January 1997, when asked whether he "was prepared to accept and process civil matters for the county in 1997," Sandhaus responded "that his position as prosecutor authorized him to prioritize all legal issues received in the [prosecutor's] office."

Respondent Logan, a member of the Board, submitted a supporting declaration stating that, with one exception, which occurred in June 1997, Sandhaus "has refused to perform his statutory duty to provide the County Commissioners with civil counsel." Logan said that, as a result, the Board "has acted without the benefit of civil counsel on matters ranging from ecological concerns to road contracts[.]" Respondent Crossler, the county assessor, also submitted a declaration, alleging that, in the course of an appeal to the State Board of Tax Appeals, Sandhaus failed to respond to a memorandum Crossler wrote to him requesting legal assistance, as a result of which Crossler had to appear before the Board of Tax Appeals without counsel.

The second charge of the petition alleged that in the fall of 1996, Sandhaus made expenditures on certain items in excess of his office's budget for those items, despite express warnings from both the Board and the county auditor that if he incurred further expenses he would exceed the appropriations for his office in violation of state law. Sandhaus purportedly exceeded his 1996 budget by a total of $7,642.85. Logan also supported this charge in his declaration. He said that in the summer and fall of 1996, he and other Board members repeatedly cautioned Sandhaus that he had excessive expenditures, and that in the absence of an emergency or court order, the Board would not amend the budget to allow further expenditures. Also, at the Board's direction, the auditor wrote Sandhaus cautioning him against overspending. Logan said that Sandhaus ignored these warnings and, without Board authorization, overspent his budget in the amount stated above. The Board attempted to collect the overexpenditures against Sandhaus' performance bond.

Respondent Long, a former county auditor, also filed a declaration in support of the second charge. He said that, while serving as auditor, he had to remonstrate Sandhaus for attempted and actual violation of budget laws. He gave as an example a memorandum Sandhaus wrote to the auditor's office asking that money be transferred from the support enforcement budget to the prosecutor's budget. Long said he told Sandhaus he could not honor the request because it amounted to an amendment of the budget, which required Board approval. Long attached to his declaration a letter he sent to the Board on January 31, 1997, in which he told the Board he believed Sandhaus did not understand the budget process and seemed unwilling to learn. Long wrote that he warned Sandhaus in November 1996 that his budget was "in jeopardy." He said that by year end the prosecutor's budget was overexpended by $473.58 in payroll and $7,169.23 in accounts payable (office supplies and operations and maintenance expenses). These figures also were contained in a letter from Long to the Board dated February 10, 1997, in which Long formally informed the Board of the budget shortfall. In his letter, Long explained that the items at issue could not be paid because the budget had not been amended, but he said he nonetheless paid them from other funds in order to maintain the county's good credit rating.

In the third charge, respondents alleged that when Sandhaus took office, he failed to secure a performance bond as required by RCW 36.16.060. As a consequence, respondents claimed, no bond existed when the Board first sought to file a claim to recover Sandhaus' overexpenditures. Respondents acknowledged in the petition that Sandhaus later obtained a bond. The declarations of Logan and Long related their personal knowledge of the fact that Sandhaus failed to obtain a bond. Included with the petition were a number of newspaper articles concerning the bond dispute. They show that Sandhaus finally obtained a $5,000 bond in December 1996, but at the demand of the Board, he later obtained a bond for an additional $10,000. Logan said that at the time he made his declaration the claim against Sandhaus' current bond remained unresolved.

The attorney general's office prepared a ballot synopsis and filed a petition in superior court to determine the sufficiency of the charges. ¹ Sandhaus filed a number of documents answering the charges. In his affidavit, he denied that he or any of his deputies ever refused to provide legal advice or services to the Board in response to a request. He admitted that he may not have always provided advice as expeditiously as the Board would have liked in view of the priority he placed on criminal matters, but he disputed that he failed to provide any civil legal advice. He attached to his affidavit numerous memoranda and letters in which he or a deputy provided civil legal advice or services. Though most of these were addressed to officials other than the Board, several were directed at the Board and most concerned matters relevant to the Board's business. In a second affidavit, Sandhaus detailed other civil work his office performed.

As to the overexpenditure charge, Sandhaus admitted he overspent on certain line items in his 1996 budget, but he claimed surpluses existed in other items which could have covered the overexpenditures had the Board amended the budget. He said this is a routine practice, but that in this case the Board refused to amend the budget so it could " 'trip up' " a political adversary. He attached to his affidavit a letter he wrote to Long in July 1996 detailing expected overexpenditures on certain items. He also attached a letter from State Auditor Brian Sonntag dated July 29, 1997, concerning a special audit Sonntag's office conducted at Sandhaus' request. In the letter, Sonntag said his office concluded that Sandhaus exceeded budgeted appropriations, but that the county auditor also improperly issued, and the Board improperly approved, warrants for the excessive expenditures. Sonntag did "not consider this to be a serious audit issue," and said that in the normal course his office would note the problem in its exit interview and recommend training to ensure it did not occur again. Sonntag found no evidence "of misfeasance, malfeasance or nonfeasance on the part of any official."

Sandhaus also submitted a letter he wrote to the Board in December 1996 asking that the budget be amended to allow money from surplus items in the prosecutor's budget to be used to pay accounts which showed a deficit. Sandhaus further supplied affidavits from other county prosecutors basically saying it is a common practice for budget line amendments to be made by county legislators.

Finally, concerning the failure to obtain a bond, Sandhaus admitted he did not secure a bond when he took office, but he said he assumed the county auditor secured bonds for all elected officials. A deputy prosecutor from Spokane County submitted an affidavit stating this was the practice in other counties. Sandhaus pointed out that the bond he finally obtained was made retroactive to the beginning of his term, and attached a copy. He also asserted that the Board's claim against his bond was denied and that the Board was reimbursed for the overexpenditures from the county risk management pool. Documents submitted by Sandhaus supported these assertions. In particular, the surety company denied the Board's claim on the ground that Sandhaus did not misappropriate funds or commit any other "illegal act" covered by the bond.

Based on these materials, the superior court found all three charges legally and factually sufficient for submission to the Adams County voters. Sandhaus appealed directly to this court pursuant to RCW 29.82.023.

ANALYSIS

This court reviews recall petitions using the same criteria as the superior court. In re Shipman, 125 Wash.2d 683, 684, 886 P.2d 1127 (1995). Charges must be both factually and legally sufficient. Id. at 684-85, 886 P.2d 1127. To be factually sufficient, a petition must state in detail the acts complained of, and the petitioners must have knowledge of identifiable facts which support the charges. RCW 29.82.010; In re Anderson, 131 Wash.2d 92, 95, 929 P.2d 410 (1997). "Legal sufficiency" means "the charges must state with specificity ' "substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office." ' " Shipman, 125 Wash.2d at 685, 886 P.2d 1127 (quoting In re...