Justia.com Opinion Summary: Robin Farris filed six charges against the Pierce County Assessor-Treasurer Dale Washam. Ms. Farris charged that Mr. Washam violated whistleblower protections, retaliated against his employees, grossly wasted public funds, failed to cooperate with discrimination and retaliation investigations, and violated his oath of office. Ms. Farris appeared pro se, and there were technical flaws with the filing of her six charges against Mr. Washam. Through the course of the proceedings, Ms. Farris amended her charges to comply with the court’s rules of pleading. Mr. Washam contended that there was no statutory authority to allow the recall charges to be amended, and because the original filing was fatally flawed, the Supreme Court should dismiss the entire recall effort. On March 3, 2011, the Supreme Court entered a brief order that affirmed the lower court’s decision to allow the recall effort to proceed. The Court’s May 12, 2011 order set forth the reasons for its March decision. The Court affirmed the trial court in all aspects.
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Recall of
)
)
DALE WASHAM
)
Pierce County Assessor-Treasurer,
)
)
Appellant.
)
______________________________ )
No. 85460-2
En Banc
Filed May 12, 2011
CHAMBERS, J. — 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 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
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
In re the Recall of Dale Washam, No. 85460-2
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.
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 [AssessorTreasurer] 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
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In re the Recall of Dale Washam, No. 85460-2
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.
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.
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
Washam spends considerable time in his statement of the facts in his brief complaining that he
was not properly served. E.g., Opening Br. at 6-8. However, he has assigned no error to the
service and seemingly proper declarations of service appear in the file.
1
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In re the Recall of Dale Washam, No. 85460-2
trial judge found five of the 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.
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
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
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truthfulness of those charges. RCW 29A.56.140; In re Recall of Kast, 144 Wn.2d
807, 813, 815, 31 P.3d 677 (2001).
Recall statutes are construed in favor of the voter. In re Recall of PearsallStipek, 141 Wn.2d 756, 765, 10 P.3d 1034 (2000) (citing Pederson v. Moser, 99
Wn.2d 456, 462, 662 P.2d 866 (1983)). As Justice Utter put it, “the mandatory
wording of [the recall statute] is not dispositive. Where the recall statute declares
that things shall be done in a particular time and manner, the procedures will be
regarded as mandatory only if they affect the actual merits of the election.”
Pederson, 99 Wn.2d at 459-60. Thus,
[t]echnical violations of the governing statutes are not fatal, so long as
the charges, read as a whole, give the elected official enough
information to respond to the charges and the voters enough
information to evaluate them. Notwithstanding the petitioner’s duty to
plead with specificity, we will not strike recall efforts on merely
technical grounds.
In re Recall of West, 155 Wn.2d 659, 663, 121 P.3d 1190 (2005) (citations
omitted).
A. Procedural Challenges
Washam contends, correctly, that there is no statutory authority that allows
recall charges to be amended. Since, he believes, the original filing was fatally
flawed, he asks that we dismiss the recall effort. However, as the trial judge noted,
most court filings can be amended. VRP (Nov. 22, 2010) at 9; see, e.g., CR 15(a)
(“[A] party may amend the party’s pleading only by leave of court . . . and leave
shall be freely given when justice so requires.”). We are required to construe the
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In re the Recall of Dale Washam, No. 85460-2
law in favor of the voter, and nothing in the recall petition act bars a trial judge from
allowing amendment of charges. While there may be some limitations on the extent
of proper amendment, in this case, the trial court allowed minor, technical
amendments that did not go to the substance of the charges.2 We find no error.
In her original filing, Farris signed the charges and “certif[ied] to the best of
my knowledge that these charges are true.” CP at 16. She did not verify the
charges as required by the statute. RCW 29A.56.110.3 Washam has contended
from the beginning that Farris’s initial failure to properly verify the charges is
“flawed to the degree where it’s non-redeemable.” VRP (Nov. 22, 2010) at 8. We
take his specific arguments in turn.
First, Washam contends that the amended request is inadequate because it did
not include the attachments. But nothing in the statutory scheme requires petitioners
to have the attachments verified or that amended charges be re-served with the
attachments, and Washam provides no authority that would create such a
requirement. Judge Felnagle specifically asked Washam, “Are you . . . able to
identify any prejudice to you if I allow the amendment . . . ?” Washam could
We note that the amended requests differ from the initial charges in at least four ways. The
amended charges contain a proper verification under oath; it corrects the date Washam took
office; it corrects a citation, and it does not include the original attachments. Washam complains
that the trial judge improperly treated the amended request to be an amended petition. Given that
we agree with the trial judge that it should be treated as an amendment to the original charges, we
need not reach this argument.
3
The charge shall state the act or acts complained of in concise language, give a
detailed description including the approximate date, location, and nature of each
act complained of, be signed by the person or persons making the charge, give
their respective post office addresses, and be verified under oath that the person
or persons believe the charge or charges to be true and have knowledge of the
alleged facts upon which the stated grounds for recall are based.”
RCW 29A.56.110 (emphasis added).
2
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In re the Recall of Dale Washam, No. 85460-2
identify nothing but his deep respect for every statutory detail of the recall process
itself. Id. at 10-11, 13-14. Imposing such a requirement would violate the principle
that we will not strike recall efforts on technical grounds, and we decline to do so.
See Pederson, 99 Wn.2d at 460.
Second, Washam contends that the initial lack of verification deprived the
superior court of jurisdiction. Opening Br. at 15-16 (citing Herron v. McClanahan,
28 Wn. App. 552, 562, 625 P.2d 707 (1981)). We disagree. Herron was another
Pierce County recall case, and some of the citizen’s arguments were dismissed by
the Court of Appeals for want of jurisdiction. Herron, 28 Wn. App. at 554. But in
Herron, the citizen did not timely appeal a finding that several of his charges were
insufficient. After the time for review had lapsed, the citizen sought to resurrect the
charges in an action for an extraordinary writ. Id. at 555, 562. The trial court found
it lacked jurisdiction to consider whether the charges were sufficient under a writ
because there was an adequate remedy at law—the separate, direct review
mandated by statute. Id. at 562. Nothing in Herron speaks to the jurisdiction of the
trial court reviewing the recall petition; it simply followed the well established
principle that a writ will not lie when there is an adequate remedy at law. E.g., State
v. Superior Court, 20 Wash. 502, 506-07, 55 P. 933 (1899).
Third, Washam argues that the auditor should not have referred the charges to
the prosecutor and the prosecutor should have rejected the charges. He contends
the error here is similar to the error in In re Recall of Wasson, 149 Wn.2d 787, 72
P.3d 170 (2003). Opening Br. at 17-19. Wasson considered a recall petition filed
by Eduardo Pina against the mayor and three members of the Des Moines City
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In re the Recall of Dale Washam, No. 85460-2
Council for allegedly violating the Open Public Meetings Act of 1971, chapter 42.30
RCW, by going into closed session, among other things. Wasson, 149 Wn.2d at
789. The prosecuting attorney originally rejected the charges because they did not,
contrary to the statute, provide a concise statement of the allegations. Id. at 792
(citing former RCW 29.82.110 (1984)). At that point, Pina’s attorney “sent a letter
to the prosecutor containing revised recall charges with additional facts.” Id. We
noted that “the petitioner did not sign the letter, affirm or adopt the revised charges,
or verify under oath that he believed the revised charges to be true as required by
the statute,” and we held that “[t]he prosecutor should have rejected the additional
information because it did not remedy the original deficiencies and Pina did not file
an amended petition.” Id. at 792-93 (emphasis added).
But here, the amendment was timely and the amended charges did remedy the
original deficiency (the failure to properly certify under oath) and none of the flaws
present in Wasson are present here. Farris provided concise statements of the
charges and the attachments contained all the information (specifically, the dates)
the trial judge deemed necessary to correct the ballot synopsis. Washam has not
shown that the auditor or prosecutor erred in forwarding the charges to the court.
We find no error on the part of the auditor or prosecutor.
Washam challenges the trial court’s failure to determine the adequacy of the
charges within 15 days of receiving the petition, as required by RCW 29A.56.140.
We note that the trial judge set a hearing on the ninth day after receiving the
petition, which would have allowed him to meet the statutory requirement, but that
Washam himself asked for more time. This is what took the court out of the 15-day
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In re the Recall of Dale Washam, No. 85460-2
window. Again, “procedures will be regarded as mandatory only if they affect the
actual merits of the election.” Pederson, 99 Wn.2d at 460. Granting Washam more
time to review the charges does not go to the actual merits of the election, and is not
ground to vacate the recall.
Although the trial judge does not have the authority to change the charges, the
judge has the power to “correct any ballot synopsis it deems inadequate.” RCW
29A.56.140; West, 155 Wn.2d at 668 (Madsen, J., concurring). Judge Felnagle
looked to the attached information to find approximate dates for several of the
charges. Washam contends Judge Felnagle overstepped his authority in two ways.
First, Washam contends that it was inappropriate for the trial judge to look to the
attached information because it was not attached to a verified statement of charges.
Given that we find that the trial judge properly allowed the charges to be amended,
we find no error. Second, Washam complains that the judge overstepped his
bounds by scrutinizing the attachments and inserting approximate dates into charges
2-6. Opening Br. at 27 (citing VRP (Dec. 16, 2010) at 44). He claims that this was
an inappropriate attempt to amend the charges by correcting the ballot synopsis.
But we have previously found that the trial judge may consult the attached materials
for such information, so long as the gist of the charge remains the same. West, 155
Wn.2d at 664-65; In re Recall of Lee, 122 Wn.2d 613, 618, 859 P.2d 1244 (1993).
B. Sufficiency Challenges
Charges are factually sufficient if “taken as a whole they . . . state sufficient
facts to identify to the electors and to the official being recalled acts or failures to
act which without justification would constitute a prima facie showing” of
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In re the Recall of Dale Washam, No. 85460-2
misfeasance, malfeasance, or violation of oath of office. Chandler v. Otto, 103
Wn.2d 268, 274, 693 P.2d 71 (1984).4 “Voters may draw reasonable inferences
from the facts; the fact that conclusions have been drawn by the petitioner is not
fatal to the sufficiency of the allegations.” West, 155 Wn.2d at 665. To be legally
sufficient, the charges “must specifically allege substantial conduct” amounting to
misfeasance, malfeasance, or violation of the oath of office. Id. at 667 (citing Kast,
144 Wn.2d at 815). The legal sufficiency requirement protects officials from being
“recalled for appropriately exercising the discretion granted him or her by law.”
Chandler, 103 Wn.2d at 274. “Officials may not be recalled for their discretionary
acts absent manifest abuse of discretion.” In re Recall of Pearsall-Stipek, 136
Wn.2d 255, 264, 961 P.2d 343 (1998) (citing In re Recall of Sandhaus, 134 Wn.2d
662, 670, 953 P.2d 82 (1998)). When an official is charged with violating the law,
there must be evidence presented that leads to the conclusion that the public official
intended to commit an unlawful act. Id. at 263 (citing Sandhaus, 134 Wn.2d at
668). Even if the charge is legally sufficient as pleaded, if an elected official can
show “a legally cognizable justification . . . that justification renders a recall petition
legally insufficient.” Greco v. Parsons, 105 Wn.2d 669, 671, 717 P.2d 1368 (1986)
(holding that auditor could not be recalled for failing to implement ordinance
4
For the purposes of this chapter:
(1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects,
interrupts, or interferes with the performance of official duty;
(a) Additionally, “misfeasance” in office means the performance of a duty in an improper
manner; and
(b) Additionally, “malfeasance” in office means the commission of an unlawful act;
(2) “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.
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In re the Recall of Dale Washam, No. 85460-2
requiring precinct boundaries to be withdrawn when the county failed to allocate
sufficient time or money to make it so).
We review legal questions de novo, but “[w]e do not consider claims
insufficiently argued by the parties.” State v. Ford, 137 Wn.2d 472, 477 n.1, 973
P.2d 452 (1999) (citing State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990)).
We construe the statute in favor of the voter. See West, 155 Wn.2d at 663 (citing
Kast, 144 Wn.2d at 813).
Washam brings general challenges to the factual sufficiency of all the charges
on the theory that since the attachments were not verified, the court should not rely
upon them. Since we find the amendment was proper, the trial court could consider
the three investigative reports Farris filed with her charges. Thus his general
challenge to the factual sufficiency of the charges is unavailing.5 We turn to his
challenges to legal suffiency.
Charge 1. Farris charged that “Mr. Washam violated the Pierce County Code
3.14.030(c) Reporting Improper Government Action – Employee Protection, Pierce
County Code 3.14.030(d) Retaliatory Action Prohibited, and Pierce County Code
3.14.030(e) Confidentiality of a Person Filing a Complaint.” CP at 195. This
charge arose from alleged retaliation against Sally Barnes. An investigator hired by
the county found such retaliation. Such retaliation specifically violates Pierce
County Code (PCC) 3.14.030.6 Judge Felnagle summarized the charge as
Washam also contends that the charges were not concise. As he devotes no substantial
argument to the claim, we do not reach it. See Cowiche Canyon Conservancy v. Bosley, 118
Wn.2d 801, 809, 828 P.2d 549 (1992).
6
D.
Retaliatory Action Prohibited. It is unlawful for any County
official or employee to take retaliatory action against an employee
5
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In re the Recall of Dale Washam, No. 85460-2
“retaliating against an employee for filing a complaint against him between January
22, 2009 and March 16, 2010.”7 CP at 549.
Washam contends that he had “a legally cognizable justification for
discretionary personnel decisions,” Opening Br. at 30, but he does not further
elaborate what that cognizable justification might have been. While our review is de
novo, mere invocation of a legally cognizable justification is not enough. We need a
more substantial statement of the alleged justifications before we can weigh whether
they are cognizable or lawful. This charge is legally sufficient.
Charge 2. Farris charged “Gross Waste of Public Funds as defined in RCW
42.40.020(5).”8 CP at 196. She pointed to the use of “hundreds of thousands of
because he or she (or another acting pursuant to his or her request):
1. Provided information in good faith in accordance with the
provisions of this Chapter that an improper governmental
action occurred; or
2. Cooperated in a lawful investigation related to improper
governmental action; or
3. Testified in a proceeding or prosecution arising out of a
complaint of improper governmental action.
E.
The identity of any person filing a complaint under this
Chapter shall be treated as confidential to the extent possible under law
unless the employee authorizes the disclosure of his or her identity in writing.
F.
No County officer or employee shall use his or her official authority or
influence, directly or indirectly, to threaten, intimidate or coerce an
employee for the purpose of interfering with that employee’s right to
disclose information concerning an improper governmental action in
accordance with the provisions of this Chapter.
G.
Penalty. Any County officer, or employee who shall engage in
retaliatory action is subject to discipline up to and including suspension
without pay, demotion, or discharge in addition to any
penalties which might
imposed by an administrative law judge
pursuant to state law.
PCC 3.14.030.
Washam does not contend, and thus we do not consider, that violation of county ordinances is
not a recallable offense.
8
‘“Gross waste of funds’ means to spend or use funds or to allow funds to be used without
7
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In re the Recall of Dale Washam, No. 85460-2
dollars pursuing criminal charges for his predecessor’s use of statistical valuation
rather than the physical inspections required by law” and briefly outlined the history
of Washam’s attempt to pursue his predecessors. CP at 196-97. This charge was
summarized by the trial court as “grossly wasting public funds in pursuing criminal
charges against his predecessor as Assessor-Treasurer from January 2, 2009 until
October 29, 2010.” CP at 549.
It is, as Farris concedes, entirely proper for elected officials to examine the
lawfulness of their predecessors’ (or contemporaries’) actions. It may even be
laudable. In the general course of events, it is not a recallable offense. In many
cases it may be appropriate for an official to pursue mandamus or other legal issue
against the advice of counsel. Only if such an activity can be properly characterized
as “gross waste of public funds” does it satisfy the legal sufficiency requirement. A
trial judge found that the predecessor’s actions were legally justifiable because he
had been given insufficient funds to perform a physical inspection, and yet Washam
spent an enormous amount of his office’s time, and the time of the state auditor,
attorney general, and the Pierce County prosecuting attorney, pushing for some sort
of sanction. An investigator specifically found that Washam’s pursuit of his
predecessor was “uses of public funds grossly deviating from what a reasonable
person would do.” CP at 144.9
Judge Felnagle struggled with the legal sufficiency of this claim. As he said:
valuable result in a manner grossly deviating from the standard of care or competence that a
reasonable person would observe in the same situation.” RCW 42.40.020(5).
9
Perhaps most troubling, Washam told the Pierce County prosecutor, by letter on official
stationery, that an investigation of his predecessor was required “upon the directive of the
Washington State Attorney General’s Office,” CP at 78, when no such directive existed.
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In re the Recall of Dale Washam, No. 85460-2
What about legal sufficiency? There are a couple of questions
there. One, was his pursuit of the issues surrounding his predecessor
within the realm of his discretion, and/or was it legally cognizable –
was it legally something that was within his area of justification?
Could he justify it legally, I guess is the best way to say that. And I
would say that there’s a good argument for it being within his area of
discretion and for it being legally justifiable for him to have pursued the
issue up to a point, and that point is where you begin to get legal
advice and you begin to, arguably, reject or ignore the legal advice.
The next question becomes, was this intention or was it just a
question of bad judgment. You know, that’s a hard line to draw, but I
liken this, when I thought about it, to the novel Moby Dick. And in
Moby Dick, Captain Ahab is obsessed with getting the white whale,
and he’s obsessed with getting the white whale to the extent that he’s
willing to take down his ship and his crew in the process. And what
we see here is an allegation that, when warned about the lack of legal
basis, the argument goes that the elected official continues on seeking
out his white whale, in this case, his predecessor in office, even to the
extent that it’s going to jeopardize his crew, in this case, the tax-paying
public.
VRP (Dec. 16, 2010) at 35-36. Judge Felnagle concluded that the charge was
legally sufficient on the theory that “any elected official is required to be a good
steward for the public’s money, and to not do so is to not perform your duties in a
proper manner and it’s not following or discharging the duty required of you as a
public, elected official.” Id. at 36-37. The simple fact is that we “do not consider
claims insufficiently argued by the parties.” Ford, 137 Wn.2d at 477 n.1 (citing
Elliott, 114 Wn.2d at 15). Washam’s arguments in this case are conclusory and
unhelpful.
At some point, appropriate investigation becomes a gross waste of public
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In re the Recall of Dale Washam, No. 85460-2
funds under RCW 42.40.020(5) and a recallable charge. An investigation
specifically found a gross waste of public funds and that Washam misrepresented to
the Pierce County prosecutor what the attorney general had told him on the subject.
We find this charge of gross waste of public funds is factually and legally sufficient.
Charge 3. Farris charged that “Mr. Washam violated the Pierce County Code
Chapter 3.14.030(C), Improper Governmental Action, by failing to rectify his
retaliatory acts and 3.16 Equal Employment Opportunity Policy. ‘Under Chapter
3.16, he failed to protect Sally Barnes from retaliation, false accusations, or future
improper treatment and has not taken reasonably prompt and effective measures.’”
CP at 197. This charge was summarized by the trial court as “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.” CP at 549.
Washam claims that this charge must be struck because he had an unnamed
“legally cognizable justification” and lawful intent for his actions. Opening Br. at
31-32. We note that the investigative reports lay out in painstaking detail how
Washam violated local whistleblower law, and Washam does not elaborate as to
what his legally cognizable justification might have been. See, e.g., CP at 31-35, 5257 (laying out retaliation in detail); see also chs. 3.14, 3.16 PPC (protecting
whistleblowers). The facts support an inference of willful intent. This claim is
legally sufficient.
Charge 4.10 Farris charged that Washam “Violated Pierce County Code
10
The original Charge 4 was dismissed by the trial judge. We take our numbering from the ballot
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In re the Recall of Dale Washam, No. 85460-2
3.16.080(A) – Deliberate non-participation in Discrimination and Retaliation
investigation held on August 7, 2009, May 25, 2010, and August 12, 2010, and
RCW 42.20.080, Other Violation by Officers.” CP at 198. Farris briefly outlines
how all three investigators found Washam had not cooperated. This charge was
summarized by the trial court as “refusing to participate in investigations of whether
he had discriminated and retaliated against his employees between January 22, 2009
and March 16, 2010.” CP at 549.
Washam was required by law to cooperate with the investigators, and the
investigative reports lay out in detail how he failed to do so. E.g., CP at 23-24, 13537, 146 (investigators detailing lack of cooperation); PCC 3.16.080(A);11 RCW
42.20.080.12 While Washam suggests there was a question of intent, the facts
presented support an inference that it was unlawful. This charge is legally
sufficient.
Charge 5. Farris charged that “Mr. Washam violated his Oath of Office by
knowingly and purposefully violating the RCW 42.20.080 and Pierce County Code
3.14.030(C), 3.14.030(D), 3.14.030(F), 3.15.020(B)(2), 3.16.090 and the intent of
the law covered under RCW 42.40.020(5).” CP at 199. She alleged this was a
synopsis.
11
“Duty to Participate. All employees, including the complainant, co-workers, potential
witnesses, and others must participate in and cooperate fully in the investigation of
complaints. Failure to do so may result in disciplinary action.” PCC 3.16.080(A).
12
“Every officer or other person mentioned in RCW 42.20.070, who shall wilfully disobey any
provision of law regulating his official conduct in cases other than those specified in said section,
shall be guilty of a gross misdemeanor.” RCW 42.20.080. RCW 42.20.070 includes, “Every
public officer, and every other person receiving money on behalf or for or on account of the
people of the state or . . . for or on account of any county.” Washam does not deny this includes
him.
16
In re the Recall of Dale Washam, No. 85460-2
violation of his oath of office to support the laws. This charge was summarized by
the trial court as “discharging his duties in an unlawful and biased manner from
January 2, 2009 until October 29, 2010.” CP at 549. Washam contends that he had
a “legally cognizable justification for all he did regarding discretionary personnel
decisions,” without informing us of the basis of this claim. Opening Br. at 33.
Without that information, his argument is unavailing.
CONCLUSION
We affirm the trial court in all respects.
17
In re the Recall of Dale Washam, No. 85460-2
AUTHOR:
Justice Tom Chambers
WE CONCUR:
Chief Justice Barbara A. Madsen
Justice Mary E. Fairhurst
Justice Charles W. Johnson
Justice James M. Johnson
Justice Gerry L. Alexander
Justice Debra L. Stephens
Justice Charles K. Wiggins
Justice Susan Owens
18
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