In re Recall of Pepper

• Court: Washington Supreme Court
• Decided: October 26, 2017
• Docket: 94574-8
• Status: Published

Opinion

, This opinion wasfiled for record rZTmZ^ g-'OOAr^ onajtkAi:^,-^!! ^yiA hAA Ai. C CHIEF JUSTICE ^ I —C^)Ia^aa SM.9AM I r^ADi COM SUSANL CARLSON IN THE SUPREME COURT OF THE STA^E

NO. 94574-8 IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF BLACK DIAMOND COUNCIL MEMBER EN BANC PATRICIA PEPPER

Filed OCl 2 G ^

GORDON McCLOUD, J.—^Robbin Taylor filed a statement of charges

seeking recall of Black Diamond City council member Patricia Pepper. The superior

court ruled that four ofthose 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

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 In re Recall ofPatricia Pepper, No. 94574-8

change consistent with two other council members and opposed the two other

council members who campaigned for the 'status quo'." CP at 271.

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.

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 In re Recall ofPatricia Pepper, No. 94574-8

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.

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.

Upon passing R-1069,Pepper and a majority ofthe 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 In re Recall ofPatricia Pepper, No. 94574-8

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)at57.

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

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.

4 In re Recall ofPatricia Pepper, No. 94574-8

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.

On May 10, 2017, a hearing was held in King County Superior Court to

determine the legal and factual sufficiency ofthe 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 ofthe 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. In re Recall ofPatricia Pepper, No. 94574-8

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.

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

Article I, section 33 of the Washington State Constitution provides citizens

with a substantive right to recall an elected official.' A recall petition must be both

'Specifically: Every elective public officer in the state of Washington expect [except] judges of courts ofrecord is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for In re Recall ofPatricia Pepper, No. 94574-8

legally and factually sufficient. Chandler v. Otto, 103 Wn.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 ofBoldt, 187 Wn.2d 542, 549, 386

P.3d 1104 (2017){citing In re Recall of West, 155 Wn.2d 659, 667, 121 P.3d 1190

(2005)(citing In re Recall ofLee, 122 Wn.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 ofLindquist, 172 Wn.2d 120, 131-32,

258 P.3d 9(2011); West, 155 Wn.2d at 662. As we have repeatedly stated, "It is the

voters, not the courts, who will ultimately act as the fact finders." West, 155 Wn.2d

at 662(citing RCW 29A.56.140;In re Recall ofKast, 144 Wn.2d 807, 813, 31 P.3d

677(2001)).

This court reviews the superior court decision in the recall action de novo. In

re Recall of Ward, 175 Wn.2d 429, 435, 282 P.3d 1093 (2012)(citing In re Recall

ofTelford, 166 Wn.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

nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

Wash. Const, art. 1, § 33. 7 In re Recall ofPatricia Pepper, No. 94574-8

court's conclusions." In re Recall ofHarrison, 144 Wn.2d 583, 587, 30 P.3d 474

(2001)(citing Miller v. City ofTacoma, 138 Wn.2d 318, 323,979 P.2d 429(1999)).

Importantly, recall statutes are construed in favor of the voter, and mere technical

violations will not block a petition. West, 155 Wn.2d at 663;In re Recall ofWasham,

171 Wn.2d 503, 510, 257 P.3d 513 (2011). Voters should be left to '"draw

reasonable inferences from the facts; the fact that conclusions have been drawn by

the petitioner is not fatal to the sufficiency ofthe allegations.'" Boldt, 187 Wn.2d at

549(quoting West, 155 Wn.2d at 665 (citing Chandler, 103 Wn.2d at 274)).

A. Legal Sufficiency

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'" and there is no legal justification for the challenged conduct.^ Id. (alteration

in original)(quoting Chandler, 103 Wn.2d at 274). The burden is on the petitioner

to identify the '"standard, law, or rule that would make the officer's conduct

wrongful, improper, or unlawful.'" In re Recall ofBolt, 111 Wn.2d 168, 181, 298

^ RCW 29A.56.110(1) defines "'misfeasance'" and "'malfeasance'" as "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty." Additionally, "'misfeasance'" also means "performance of a duty in an improper manner," and "'malfeasance'" means "the commission of an unlawful act." RCW 29A.56.110(l)(a)-(b). "'Violation of the oath of office'" means "the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law." RCW 29A.56.110(2). 8 In re Recall ofPatricia Pepper, No. 94574-8

P.3d 710 (2013)(quoting In re Recall ofAckerson, 143 Wn.2d 366, 377, 20 P.3d

930 (2001)).

B. Factual Sufficiency

A recall petition must also be factually sufficient. A petition is factually

sufficient when the charges, taken as a whole,'"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.'" Ward, 175 Wn.2d at 435 (quoting Chandler, 103 Wn.2d at 274).

"In this context, 'prima facie' means that, accepting the allegations as true, the

charge on its face supports the conclusion that the official committed misfeasance,

malfeasance, or a violation of the oath of office." In re Recall of Wade, 115 Wn.2d

544, 548, 799 P.2d 1179 (1990)(citing Teafordv. Howard, 104 Wn.2d 580, 586,

707 P.2d 1327 (1985)). Additionally, "[wjhere 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." Boldt, 187 Wn.2d at 549 (citing Telford, 166

Wn.2dat 158).

The individual making the charge must have knowledge of the alleged facts

on which the stated grounds for recall are based, RCW 29A.56.110; however, this

knowledge need not be firsthand, personal knowledge. In re Recall of Reed, 156

Wn.2d 53, 58, 124 P.3d 279 (2005){cWrng Ackerson, 143 Wn.2d at 373; Lee, 122 In re Recall ofPatricia Pepper, No. 94574-8

Wn.2d at 617). But mere insinuations, speculation, or a belief that the charges are

true, absent other evidence, is not enough. Chandler, 103 Wn.2d at 274; Reed, 156

Wn.2d at 58.

II. Charge 1: The violation of the OPMA charge is legally and factually sufficient

Charge 1 states, "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." CP at 375.

This charge centers on alleged OPMA violations. As discussed above.Pepper,

as part of a majority ofthe council, voted to enact R-1069. That resolution contained

several amendments to the council rules ofprocedure. CP at 51-81. Under the advice

ofthen city attorney Morris,the mayor refused to enforce R-1069. Subsequently,the

council majority, including Pepper, voted to fire Morris. See CP at 128-29. The

mayor then hired emergency interim city attorney Yvonne Ward; Ward provided

memoranda to the council, concluding that R-1069 violated both the BDMC and the

OPMA. CP at 121-38. Morris and the city's risk management pool also advised the

council that the resolution could trigger OPMA liability. CP at 37, 45-47, 155-56.

Their advice focused on the R-1069 provisions mandating a minimum of three

council members (a majority of the council) for each standing committee—instead

10 In re Recall ofPatricia Pepper, No. 94574-8

of the previous requirement of two. CP at 122-25. Pepper received similar legal

advice from an outside law firm. CP at 84-86.

The superior court found this charge legally and factually sufficient based on

(1) Ward's legal memoranda, (2) evidence that Pepper received legal advice

regarding the potential illegality of the conduct, and (3) evidence of OPMA

violations occurring after the legal advice was provided. VRP at 55-56.

Pepper, however, argues that

[T]he record is devoid of any evidence: (1) that Ms. Pepper attended any non-public meeting at which a majority of Council members were present, and/or (2) that Ms. Pepper knew her actions were contrary to the OPMA, particularly where Ms. Pepper was acting in accordance with legal advice given to the City concerning compliance with the OPMA.

Br. of Appellant at 7.

We need not decide whether every single one of Robbin Taylor's factual

allegations suffices. Instead, the question is whether the charge as a whole should go

to the voters. And on this record, the answer is yes: key allegations supporting this

charge sufficed. We therefore agree with the trial court, CP at 381-82, that this

charge is legally and factually sufficient.

To be sure, Robbin Taylor relies largely on two legal memoranda (the Ward

memoranda, exs. 13, 14), and the allegations presented in these memoranda are

general, the e-mails are not provided, and a referenced 40-page document is absent

from the record. CP at 121-38. And while the recall petitioner need not always have

11 In re Recall ofPatricia Pepper, No. 94574-8

personal, firsthand knowledge of facts alleged, there must be some basis for the

petitioner's belief that the allegations are true. See Lee, 122 Wn.2d at 616-17.

In this case, however, these memoranda are not the only basis for the charge.

Robbin Taylor also provides other evidence, such as exhibit 3. CP at 29-31. This is

an e-mail that provides comments to proposed changes to the council rules of

procedure and asks, "[A]re we all still confirmed with resolve to knock [Edelman]

out of any chairmanship of any committee?" CP at 31 (formatting omitted). Robbin

Taylor also cites exhibit 8 in support ofthis charge. CP at 88. Exhibit 8 is an undated

document entitled "A Plan" that Pepper possessed during a council meeting. The

"Plan" contains a detailed list of action items to be accomplished with tasks assigned

to various people; it identifies Pepper, Morgan, and Weber by name; and it lists,

among other things, the "plan" to "Substitute the Agenda (On Pat's PC) Action:

Need agenda handouts."/^/, (formatting omitted). Robbin Taylor argues that exhibit

8 discusses items that constitute '"action"' under the OPMA. Br. of Resp't at 16-18

(citing Wood v. Battle Ground Sch. Dist., 107 Wn. App. 550, 558, 27 P.3d 1208

(2001)).

Construing the recall statute in favor of the voter and allowing the voters to

draw reasonable inferences from all of these facts, we agree with the trial court that

this OPMA-related charge 1 is factually sufficient.

12 In re Recall ofPatricia Pepper, No. 94574-8

Charge 1 is also legally sufficient. IfPepper did e-mail with both Morgan and

Weber (a majority of the council), as Robbin Taylor alleges, and if they did discuss

changes to council rules, as Robbin Taylor alleges, such conduct would likely

constitute council "action" in violation of the OPMA. RCW 42.30.020(3)(defining

"action" for OPMA purposes as including, but not limited to, "receipt of public

testimony, deliberations, discussions, considerations, reviews, evaluations, and final

actions").

It is certainly true that this court has held that "the passive receipt of e-mails

and other one-way forms of communication does not, by itself, amount to

participation in a meeting because such passive receipt of information does not

demonstrate the necessary intent to meet." Citizens All.for Prop. Rights Legal Fund

V. San Juan County, 184 Wn.2d428,444,359 P.3d 753(2015). And the only specific

e-mail referenced in Ward's memoranda was sent by Morgan. But as discussed

above, Robbin Taylor also presented numerous other facts from which voters could

draw the inference that Pepper participated in OPMA violations.

Because Robbin Taylor specifically details alleged violations of the OPMA

and provides evidence of legal advice indicating knowledge of potential OPMA

violations, the trial court correctly ruled that charge 1 is legally sufficient.

13 In re Recall ofPatricia Pepper, No. 94574-8

III. Charge 2: The refusal to attend council meetings and failure to approve meeting minutes charge is both legally and factually sufficient

Charge 2 states, "Pepper, as part of a council majority, refused to attend

council meetings and failed to approve minutes." CP at 375.

A. Refusal to attend council meetings

This charge also contains several subparts and multiple allegations. Robbin

Taylor argues in part that Pepper colluded with two other council members to

prevent meetings and thereby violated her duty as a council member. Br. of Resp't

at 21. Pepper generally responds that she reasonably believed that nothing in the law

or council rules made her failure to attend council meetings illegal. Br. of Appellant

at 35.

Pepper's response does not answer Robbin Taylor's allegation. Robbin

Taylor's allegation did not depend on the notion that Pepper's failure to attend was

itself criminal or illegal. Instead, Robbin Taylor alleges that Pepper's actions

violated her duty as a council member. Robbin Taylor also alleges that Pepper

violated her duty as a council member when she colluded with two other council

members to prevent meetings from taking place. Pepper's assertion that she

reasonably believed absences were legal does not answer this allegation and

therefore does not negate the intent element of a recall petition.

It is undisputed that Robbin Taylor regularly attended council meetings and

can therefore assert personal knowledge ofPepper's attendance or absenteeism. Br.

14 In re Recall ofPatricia Pepper, No. 94574-8

of Resp't at 20; CP at 274. In addition, Pepper never denied missing any of the

meetings listed in Robbin Taylor's brief. Further, as noted above, Robbin Taylor is

not arguing that absences justify recall, but rather that Pepper violated her duty as a

council member by preventing meetings from taking place, and that this justifies

recall. We agree with the trial court that this charge is factually sufficient.

This charge is also legally sufficient. RCW 29A.56.110, the recall statute,

does not require an act to be unlawful in order to form a legally sufficient basis for

recall. Instead, it says, '"[mjisfeasance' or 'malfeasance' in office means any

wrongful conduct that affects, interrupts, or interferes with the performance of

official duty ...[, and]'misfeasance' in office [additionally] means the performance

of a duty in an improper manner." RCW 29A.56.110(l)(a)-(b). This statute also

permits a recall petition to be based on '"[v]iolation ofthe oath of office,"' meaning

the "neglect or knowing failure . . . to perform faithfully a duty imposed by law."

RCW 29A.56.110(2). Robbin Taylor alleges Pepper's actions are a "violation ofthe

oath of office" because "[p]urposefully defeating quorums to obstruct the

functioning of the City is a neglect to perform faithfully her duties as a member of

the Black Diamond City Council." Br. of Resp't at 21. Based on a plain language

reading of RCW 29A.56.110, we affirm the trial court's ruling that this charge is

legally sufficient.

15 In re Recall ofPatricia Pepper, No. 94574-8

B. Failure to approve meeting minutes

Other portions of this charge are also sufficient. For example, Robbin Taylor

further alleged that Pepper, along with the majority of the council, failed to approve

city council meeting minutes. Although the fact that no minutes have been approved

for certain council meetings does not specifically point to Pepper, the audio

recording of the October 6, 2016 council meeting—cited by both parties—supports

this factual allegation.

This portion of the charge is also legally sufficient. ROW 42.32.030 states,

"[Mjinutes of all regular and special meetings except executive sessions of such

boards, commissions, agencies or authorities shall be promptly recorded and such

records shall be open to public inspection."(Emphasis added.) A series of relevant

Washington laws and Black Diamond City Council Rules define additional

responsibilities regarding minutes, including:

• RCW 35A.12.110:"A journal of all proceedings shall be kept, which shall be a public record." • Black Diamond Citv Council Rules ofProcedure 2.3: "Minutes. The City Clerk shall cause to be prepared aetion minutes of all of the Council meetings, which meetings shall contain an account of all official actions of the Council. .. . No changes shall be made to minutes except by motion approved by a majority ofthe Council at a properly noticed meeting." (CP at 57.) • Blaek Diamond Citv Council Rules ofProcedure 3.7: Approval of meeting minutes is a routine consent agenda item unless a council member moves to remove item from the consent agenda for separate discussion and action. (CP at 60.)

16 In re Recall ofPatricia Pepper, No. 94574-8

Further, meeting minutes, when drafted, must be approved unless separately taken

up and acted on outside the consent agenda process and, as noted above,this process

must occur "promptly." RCW 42.32.030. The allegation of deliberate delay in

approving minutes, with no motion to amend per the statute, is legally sufficient.

Once again, we agree with the trial court that charge 2 is sufficient to go to

the voters.

IV. Charge 3: The failure to enact a budget charge is legally and factually sufficient

Charge 3 provides, "Pepper, as party 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." CP at 375.

Robbin Taylor alleges that Pepper and other majority members introduced a

substitute budget, without proper notice, at the December 22,2016,council meeting.

Br. of Resp't at 23. Additionally, Robbin Taylor contends that the substitute budget

contained illegal provisions and that Pepper attempted to force its adoption. Id. at

24. Robbin Taylor cites exhibit 20, a draft of the Black Diamond City Special

Council minutes for December 22,2016, in support ofthis allegation. CP at 19, 191-

200. Robbin Taylor's evidence shows that the council eventually passed a

temporary, and later a final, budget—keeping all city services funded—but it did so

17 In re Recall ofPatricia Pepper, No. 94574-8

after the deadline provided in RCW 35A.33.070.^ Robbin Taylor alleges that Pepper

obstructed the normal budget process and therefore violated RCW 35A.33.075.'^

Robbin Taylor argues that even though the council ultimately passed a budget,

Pepper's wrongful conduct in delaying that passage can still support a recall. Br. of

3 RCW 35A.33.070 provides: The council shall meet on the day fixed by RCW 35A.33.060 for the purpose of fixing the final budget of the city at the time and place designated in the notice thereof. Any taxpayer may appear and be heard for or against any part of the budget. The hearing may be continued from day to day but not later than the twenty-fifth day prior to the commencement ofthe city's fiscal year.

RCW 35A.33.060 (the statute referenced in .070) requires that a "preliminary budget" be made publicly available in advance ofthe meeting at which the council will "fix[] the final budget." It also provides that the council will hold this meeting "on or before the first Monday of the month next preceding the beginning of the ensuing fiscal year." RCW 35A.33.060.

4RCW35A.33.075 states: Following conclusion of the hearing, and prior to the beginning of the fiscal year, the legislative body shall make such adjustments and changes as it deems necessary or proper and after determining the allowance in each item, department, classification and fund, and shall by ordinance, adopt the budget in its final form and content. Appropriations shall be limited to the total estimated revenues contained therein including the amount to be raised by ad valorem taxes and the unencumbered fund balances estimated to be available at the close of the current fiscal year. Such ordinances may adopt the final budget by reference: PROVIDED, That the ordinance adopting such budget shall set forth in summary form the totals of estimated revenues and appropriations for each separate fund and the aggregate totals for all such funds combined. A complete copy ofthe final budget as adopted shall be transmitted to the state auditor, and to the association of Washington cities.

18 In re Recall ofPatricia Pepper, No. 94574-8

Resp't at 23 (citing In re Recall Charges Against Davis, 164 Wn.2d 362, 369-70,

193 P.3d98 (2008)).

The trial court stated that "[t]he evidence before the court is that Ms. Pepper

and her colleagues did not in fact pass a final budget by the deadline [imposed in]

RCW 35A.33.075." VRP at 64. That court recognized that there was a factual

question about who bore responsibility for this failure—^Pepper or the majority—but

concluded that the constitution places that decision in the hands of the voters, not

the court.

We agree with the trial court. As noted in Davis, 164 Wn.2d at 370,Pepper's

argument that everything worked out in the end is not a defense.^

V. Charge 4: The MDRT charge is insufficient

Charge 4 states, "Pepper, as party of a council majority, improperly voted to

change Master Development Review Team contracts resulting in threatened legal

action against the city." CP at 375.

The superior court ruled that this charge is sufficient. That court concluded

that once a developer's permit rights have vested under law, the city council

members cannot interfere with those rights merely because they do not think the

^ In Davis, the subject of the recall petition allegedly entered into a private, unauthorized agreement to provide a severance package—^the alleged unlawful eonduct was not "'cured,'" but the severance package was later voted down in a public meeting. 164 Wn.2d at 369. Despite the later vote, charges were suffieient as they alleged that the subject's conduct had the '"potential effect of obligating the Port.'" Id. 19 In re Recall ofPatricia Pepper, No. 94574-8

permits should have been issued. VRP at 65-66. The superior court further held that

Robbin Taylor had sufficient personal knowledge to support the charges. Id. at 66.

We agree with the superior court's legal conclusions about vested rights.

However, we find the evidence presented to support this charge insufficient. Robbin

Taylor fails to present the pertinent contract language that created the "vested permit

rights" acknowledged by the trial court or even the contract itself. Id. at 65. Pepper,

by contrast, provided a legal memorandum by attorney Jane Koler that approved the

council majority's conduct regarding the MDRT. Br. of Appellant at 44, App. A-1.

That legal memorandum cites to the Oakpointe contract's relevant provisions and

concludes the contract does not give Oakpointe any final authority over the

composition ofthe MDRT.Id. Without providing the contract that allegedly created

the duty at issue in this charge, Robbin Taylor's fourth charge cannot be considered

Conclusion

We affirm in part and reverse in part. The first three charges of the Pepper

recall ballot synopsis are factually and legally sufficient. Charge 4, however, is

insufficient.^

^ Pepper filed a motion to supplement the record in our court; we deny that motion. Pepper also moved for costs under RAP 14.2-14.3. Pepper,however,is not the substantially prevailing party; her motion for costs is therefore denied. 20 In re Recall ofPatricia Pepper, No. 94574-8

6 J

WE CONCUR:

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