In Re Recall of Washam

257 P.3d 513
CourtWashington Supreme Court
DecidedMay 12, 2011
Docket85460-2
StatusPublished
Cited by10 cases

This text of 257 P.3d 513 (In Re Recall of Washam) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Recall of Washam, 257 P.3d 513 (Wash. 2011).

Opinion

257 P.3d 513 (2011)
171 Wash.2d 503

In the Matter of the RECALL OF Dale WASHAM, Pierce County Assessor-Treasurer, Appellant.

No. 85460-2.

Supreme Court of Washington, En Banc.

Considered March 2, 2011.
Decided May 12, 2011.

*514 Shawn Timothy Newman, Attorney at Law, Olympia, WA, for Petitioner.

Thomas Henry Oldfield, Jeffrey Paul Helsdon, Oldfield & Helsdon PLLC, University Place, WA, for Respondent.

CHAMBERS, J.

¶ 1 Robin Farris filed six recall charges against Pierce County Assessor-Treasurer Dale Washam. She charges that Washam violated whistleblower protections, retaliated against his employees, grossly wasted public funds, failed to cooperate with discrimination *515 and retaliation investigations, and violated his oath of office. Judge Felnagle found five of the charges sufficient. Washam appealed, and on March 3, 2011, we entered a brief order affirming Judge Felnagle's decision authorizing the recall effort to proceed. We now take this opportunity to set forth the reasons for our order.

FACTS

¶ 2 Washam is no stranger to the recall process. In 2005, he filed a recall petition against his predecessor in office, Ken Madsen. After Washam was elected Pierce County assessor-treasurer in 2008, he continued to doggedly pursue his predecessor. In his first few months in office, he asked the Pierce County Prosecutor, the state auditor, and the state attorney general to investigate, file charges, or take other action against his predecessor in office for relying in part on statistical modeling. All declined.

¶ 3 Meanwhile, tensions between Washam and assessor-treasurer staff grew quickly. It appears Washam was incensed at the staff for not performing physical inspections under his predecessor. According to investigator Diane Hess Taylor, "[Washam] accused [employees] of fraud and not having integrity. He chastised employees for not quitting their jobs or blowing the whistle on then [Assessor-Treasurer] Ken Madsen." Clerk's Papers (CP) at 28. Washam seemed particularly focused on one of the managers, Sally Barnes. The record suggests Washam blamed her for providing evidence in support of Madsen that prevented Washam's recall attempt of Madsen from going forward. Barnes filed an official equal employment opportunity complaint alleging discrimination and retaliation. The investigator noted that "[w]itness accounts were consistent that Barnes was singled out for negative treatment and ostracized by Washam by late February [2009].... There was so much tension surrounding Barnes that several employees said they were afraid to be seen with her." CP at 32. Washam reassigned Barnes from a supervisory and management role to a far inferior special project. Other employees filed their own equal employment opportunity complaints against Washam. Another independent investigator found that Washam had violated various Pierce County Code provisions protecting the confidentiality of people filing complaints, had retaliated against employees for protected conduct, and had identified and posted derogatory information about the complaining employees. An investigator found that Washam's "dogged unwillingness" to stop pursuing his predecessor and office staff resulted "in a gross waste of public funds." CP at 99-100. Staff complaints against Washam have resulted in at least three outside investigations of Washam, all finding misconduct.

¶ 4 On October 29, 2010, Farris, acting pro se, filed six charges with the Pierce County Auditor's Office. She included copies of the three investigators' reports as the basis of her allegations. While she signed the charges, she did not sign under oath as required by the statute. RCW 29A.56.110. The auditor arranged for Washam to be served with the recall charges and referred the matter to the Pierce County Prosecutor's Office. That office formulated a ballot synopsis, arranged for Washam to be served with charges, and petitioned the superior court to review the adequacy of the charges on November 12, 2010. RCW 29A.56.120.[1] Five days later, Farris, by then assisted by pro bono counsel, filed an amended request that contained a proper verification under RCW 29A.56.110 and corrected a few typographical errors. She did not attach, and the auditor did not serve, the three investigators' reports a second time.

¶ 5 The original hearing to determine the sufficiency of the charges was set for November 22, 2010. Verbatim Report of Proceeding (VRP) (Nov. 22, 2010). Washam, acting pro se at the time, requested dismissal based on the alleged failure to serve the recall petition and other alleged process defects, which was denied, and for more time, which was granted. At the second December 16, 2010 hearing, the trial judge found five of the *516 six charges sufficient. He struck charge four, which alleged Washam "used profane, questionable, negative or angry language and gestures [and] continued to reference religion." CP at 13, 548. Judge Felnagle corrected the ballot synopsis by striking that charge and by inserting dates. It now reads:

The charge that Dale Washam, as Pierce County Assessor-Treasurer, committed misfeasance in office, malfeasance in office and/or violated his oath of office alleges that he violated state and local law by (1) retaliating against an employee for filing a complaint against him between January 22, 2009 and March 16, 2010, (2) grossly wasting public funds in pursuing criminal charges against his predecessor as Assessor-Treasurer from January 2, 2009 until October 29, 2010, (3) failing to protect the employee from retaliation, false accusations or future improper treatment between January 22, 2009 and March 16, 2010, and by failing thereafter to rectify his retaliatory actions against his employee, (4) refusing to participate in investigations of whether he had discriminated and retaliated against his employees between January 22, 2009 and March 16, 2010, and (5) discharging his duties in an unlawful and biased manner from January 2, 2009 until October 29, 2010.

¶ 6 Should Dale Washam be recalled from office based on this charge? CP at 549. Washam appealed. By order, we affirmed the trial court's ruling with this opinion to follow.

ANALYSIS

¶ 7 Elected officials in Washington may be recalled for malfeasance, misfeasance, and violation of oath of office. Const. art. I, §§ 33-34; RCW 29A.56.110. Courts act as a gateway to ensure that only charges that are factually and legally sufficient are placed before the voters, but we do not evaluate the truthfulness of those charges. RCW 29A.56.140; In re Recall of Kast, 144 Wash.2d 807, 813, 815, 31 P.3d 677 (2001).

¶ 8 Recall statutes are construed in favor of the voter. In re Recall of Pearsall-Stipek, 141 Wash.2d 756, 765, 10 P.3d 1034 (2000) (citing Pederson v. Moser, 99 Wash.2d 456, 462,

Related

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478 P.3d 1077 (Washington Supreme Court, 2021)
In re Recall of Pepper
Washington Supreme Court, 2017
In re Recall of Kelley
Washington Supreme Court, 2016
In re the Recall of Kelley
369 P.3d 494 (Washington Supreme Court, 2016)
State v. Barry
352 P.3d 161 (Washington Supreme Court, 2015)
Farris v. Seabrook
667 F.3d 1051 (Ninth Circuit, 2012)

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Bluebook (online)
257 P.3d 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-recall-of-washam-wash-2011.