In re Recall of Sun ( 2013 )

FILE
IN CLERKS OFFICE .
. . . . . CCIURt 8TA1E Of*SIINGRIN
DATE APR ~ 5 2013
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of Recall Charges ) No. 88005-1
Against City of Pacific Mayor )
) EnBanc
CYSUN. )
) Filed .APR 2 5 2013
C. JOHNSON, J.-The elected official in this recall petition is Mayor Cy
Sun of the city of Pacific, a small town located in both King and Pierce Counties.
Less than one year after Sun took office, Donald Thomson started this recall
petition alleging numerous acts of misfeasance and malfeasance, and violation of
the oath of office. The superior court found two charges adequate for submission to
the voters, namely, that Sun attempted to use the city police department as his own
personal police force and that Sun's actions jeopardized the city's liability
insurance coverage. Sun now appeals the superior court order finding these charges
sufficient. Also at issue is Thomson's cross appeal asking the court to reinstate
several charges that the superior court found insufficient. For the reasons that
follow, we affirm the trial court in all respects.
No. 88005-1
FACTS AND PROCEDURAL HISTORY
Sun ran as a write-in candidate for mayor. He won the election on November
8, 2011, and took office shortly thereafter. He ran on a platform pledging to rid the
city of corruption and patronage, and his term has been a controversial one.
Many of the complaints against Sun evolve out of his allegedly abusive and
hostile treatment of city employees, which resulted in multiple vacancies in key
city positions and allegedly inhibited the proper functioning of the city's
government. Of eight key department head positions, five were vacant when the
recall petition was filed. One department head resigned before Sun took office
because Sun had repeatedly threatened to fire him during the campaign. Two
others resigned, citing Sun's abusive and hostile manner of running the city, and
two more were fired, one after she had filed a whistleblower complaint. The record
also contains allegations that Sun signed off on building permits without the
qualifications or authority to do so and destroyed numerous public documents.
Police investigated the destruction of public documents, and Sun attempted to enter
the crime scene and was arrested. He tried to fire the arresting officers. During the
Loudermil/ 1 hearings required for these police officers as well as other terminated
1
Cleveland Bd. o.fEduc. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487,84 L. Ed. 2d 494(1985).
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No. 88005-1
city employees, Sun allegedly abused the process and repeatedly refused to let
employees present their cases.
On August 23, 2012, Thomson filed the statement of charges against Sun
with the King County Elections Division. The King County prosecutor filed a
petition on September 6, 2012, to determine the sufficiency of the charges. Of the
numerous charges levied against Sun, the superior court found only two adequate
for submission to the voters:
[Whether] Mayor Sun committed misfeasance in office, malfeasance
in office and/or violated his oath of office by:
( 1) Directing Pacific police department officers to operate as his
personal police force in conducting a criminal investigation into
the identity of those responsible for distributing negative
information and allegations about him concerning his Echo,
Oregon property, which is outside of their jurisdiction; [and]
(2) Jeopardizing the City's liability insurance coverage by not filling
vacant department heads.
Clerk's Papers (CP) at 416.
Sun timely appealed this decision, arguing that these charges were neither
factually nor legally sufficient to support a recall charge. Thomson sought to cross
appeal, which Sun argued was untimely. In February 2013, we decided the
timeliness issue, as well as several other procedural motions. We found Thomson's
cross appeal to be timely and struck several declarations from both parties because
they discussed developments that occurred after the superior court's order, which
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No. 88005-1
are not relevant to our review of the trial court's decision. We now address the
substantive merits of both appeals.
ANALYSIS
a. Standard ofReview
Elected officials in Washington may be recalled for malfeasance,
misfeasance, or violation of the oath of office. CONST. art. I, §§ 33-34; RCW
29 A.5 6.110. "Misfeasance" and "malfeasance" are "any wrongful conduct that
affects, interrupts, or interferes with the performance of official duty." RCW
29A.56.110(1). Further, "misfeasance" is the "the performance of a duty in an
improper manner," and "malfeasance" is the "commission of an unlawful act."
RCW 29 A. 56. 11 0( 1)(a), (b). "Violation of the oath of office" is "the neglect or
]mowing failure ... to perform faithfully a duty imposed by law." RCW
29A.56. 11 0(2).
Although the court does not evaluate the truthfulness or falsity of the
allegations, it stands as a gatekeeper to ensure that elected officials are not subject
to recall for frivolous reasons. This requires the court to determine that the recall
petitioner "ha[s] knowledge" ofthe acts complained of, RCW 29A.56.110, and that
the allegations are both factually and legally sufficient. Factual sufficiency requires
that the petition "give a detailed description including the approximate date,
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No. 88005-1
location, and nature of each act" that, if accepted as true, would constitute a prima
facie case of misfeasance, malfeasance, or the violation of the oath of office. RCW
29A.56.110. Legal sufficiency requires that the petition state, with specificity,
substantial conduct clearly amounting to misfeasance, malfeasance, or violation of
the oath of office. If recall is sought for acts falling within the elected official's
discretion, the official must have acted with a manifest abuse of discretion. In re
Recall of Bolt, No. 88227-4,2013 WL 1286213 (Wash. Mar. 28, 2012).
b. Knowledge
Throughout his briefing, Sun challenges Thomson's knowledge of the facts
upon which the recall petition is based. We have little case law on the issue of what
exactly constitutes sufficient knowledge, though the governing statute specifies
"knowledge," not necessarily firsthand knowledge. RCW 29A.56.110. In West, we
expressed concern that the recall petitioner had simply read in the newspaper about
the mayor's alleged quid pro quo offer to a young person, and we refrained from
"establish[ing] that media articles, categorically, may form a sufficient basis for the
personal knowledge" required. In re Recall of West, 155 Wn.2d 659, 666 n.3, 121
P.3d 1190 n.3 (2005). However, we allowed the charge to go forward because the
trial court had found that the mayor essentially admitted to the conversations and
because the mayor did not contest that finding on appeal.
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No. 88005-1
Although it does not appear that Thomson worked for the city or witnessed
any of the alleged misconduct (he appears to be the chair of a committee to recall
the mayor), we find that Thomson had sufficient knowledge. The petition
contained numerous declarations from individuals who witnessed firsthand the
alleged conduct, as well as numerous exhibits in the form of e-mails, letters, and
other documents. Moreover, many of these facts were also reported in the media,
and Sun bragged of others (i.e., vacant department positions) in his personal
newsletter. The petition identifies the people who were involved, and they have
submitted sworn documents discussing the alleged facts. This is a sufficient
showing ofknowledge ofthe facts to satisfy RCW 29A.56.110.
c. Counts the Trial Court Found Adequate To Submit to the Voters
Count 1:
Directing Pacific police department officers to operate as his personal police
force in conducting a criminal investigation into the identity of those
responsible for distributing negative information and allegations about him
concerning his Echo, Oregon property, which is outside of their jurisdiction.
The basis for count 1 takes root with an April 2012 pamphlet entitled, "Who
is the Real Cy Sun?" CP at 132. The pamphlet was circulated by an unknown
person or persons and drew attention to allegedly false statements by Sun,
including that he was a personal physician to Henry Kissinger and President
Eisenhower, that he owned a 700 acre ranch in Echo, Oregon, and that he was a
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No. 88005-1
nuclear physicist. Much of the pamphlet relates to the ranch in Oregon, stating that
the parcel was only 20 acres with a value of roughly $11,000 and that dead
chickens and peacocks were visible on the property. Shortly after the pamphlet was
circulated, Sun sent a letter to the acting chief of police demanding an investigation
into who created this pamphlet. Thomson argues that the letter demands that police
conduct an extrajurisdictional investigation in Oregon and that Sun was trying to
use the police department as his own personal police force. Sun counters that the
letter simply demands an investigation into the possibility that city resources were
used in compiling the pamphlet, which would be a misuse of city resources
requiring the mayor to investigate.
Far from inquiring into another person's possible misuse of city resources,
Sun himself sought to misuse city resources by demanding that police investigate
his opponents' concerns and his own personal concerns. The role of local police is
to serve the city, not to investigate the Umatilla County sheriffs department and
conduct polygraphs of the mayor's opponents, especially as there appears to be no
basis for his suspicion that city resources were used to create the pamphlet.
Accordingly, this charge is factually sufficient.
Similarly, this charge is also legally sufficient. As discussed above, Sun's
demand was improper and exceeded his authority as mayor. Sun's demand that
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No. 88005-1
police investigate the pamphlet is not only a misuse of city resources, but also an
improper interference with the police officers' official duties. This improper
interference falls within the definition of misfeasance, malfeasance, or violation of
the oath of office. Thus, we affirm the trial court and find this charge factually and
legally sufficient.
Count 2:
Jeopardizing the City's liability insurance coverage by not filling vacant
department head positions.
Count 2 also relies on a letter as its basis. This letter is from the Cities
Insurance Association of Washington (ClAW) and indicates the ClAW's intent to
cancel Pacific's insurance coverage on December 31, 2012.Z The letter states that
coverage "will be cancelled" due to "vacancy in several key City staff positions,"
which "could lead to litigation." CP at 237. The CIAW was also concerned about
"other actions that could lead to litigation and appear to have been entirely
avoidable." CP at 237. Although it did not rule out reconsidering its decision, the
CIAW felt cancellation was necessary to protect itself. The parties do not dispute
that at least five of the eight key department head positions were vacant when the
2
The ballot synopsis uses the word "jeopardizing" insurance coverage, and Sun uses this
language to argue that some possible, future harm should not be enough to support a recall
charge. However, the language of the letter shows that the CIA W had already decided to
terminate its.coverage.
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No. 88005-1
CIAW sent its letter. Thomson alleges that Sun's wrongful and improper conduct
caused these vacancies and increased the likelihood of the city's liability, while
Sun counters that the city council was equally if not more at fault in creating the
vacancies.
During his campaign, Sun repeatedly threatened to fire one of the
department heads, Jay Bennett. Therefore, once Sun was elected, but before he
took office, Bennett resigned. Sun fired another department head on February 7,
2012, although the record is not clear as to why. A third department head, Jim
Morgan, states in a declaration that in one of his first meetings with the mayor, Sun
verbally abused him. This pattern of verbal harassment and aggressiveness
continued and, ultimately, the stress forced Morgan to resign. On April13, 2012,
Finance Director Maria Pierce resigned for similar reasons.
Perhaps the most egregious allegations surrounding the vacancies involve
Jane Montgomery, the city clerk/personnel manager. Her declaration states that
Howard Erickson, who was not a city employee, came to the city hall on multiple
occasions threatening to get her fired and using defamatory language directed at
her. The mayor, apparently a friend of Erickson's, promised to intervene on
Montgomery's behalf, but as the situation escalated, Montgomery sought a
protective order. In the meantime, however, Sun hired Erickson as a city building
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No. 88005-1
official/code enforcement officer, a hiring that violated collective bargaining
agreements. Erickson and Sun then allegedly commenced signing off on building
permits, despite the fact that neither was qualified to do so.
On June 8, 2012, Montgomery filed a whistleblower complaint regarding
these and other incidents. Despite receiving advice from the city attorney that
firing Montgomery would be illegal and could be tortious, Sun, that same day or
shortly thereafter, told Montgomery that she was terminated. He also had staff
members place a padlock on her office door so that she could not enter. In the
weeks that followed, it appears that Montgomery attempted to work and Sun
attempted to keep her from working, even terminating her e-mail access. Police
were repeatedly involved, as were attorneys for Montgomery and the city.
Ultimately, Sun terminated Montgomery by letter on July 23, roughly three weeks
after the CIAW notified the city of its intent to cancel its insurance coverage.
During this time, it also appears a union grievance was filed against Sun for
creating a hostile work environment.
These allegations suggest that at the time the CIAW decided to withdraw
coverage, not only were there several key vacancies but whistleblower protection
statutes were being violated, unqualified personnel were issuing building permits,
and union grievances were being filed. All of these factors could increase the
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No. 88005-1
potential liability of the city. If true, the voters could likely also infer that Sun's
improper actions caused this situation and that these facts were what caused the
CIA W to withdraw coverage. Sun attempts to shift the blame by pointing to the
city council's stonewalling as the reason why positions have not been filled, while
also pointing out that the CIAW' s letter does not blame the mayor as the sole
cause. The mayor's focus on causation, however, is misguided as that issue is an
inference best resolved by the voters. Thus, we find this charge factually sufficient.
'!11 e also find this charge legally sufficient. If we assume the veracity of the
allegations, Sun's actions, at the very least, impeded Montgomery's ability to
perform her official duties. If he retaliated against her for filing a whistleblower
complaint, he likely violated the law3 and, given the advice he received from the
city attorney, Sun knew he was violating the law. Sun argues that these decisions
involved the exercise of discretion and that he cannot be recalled for exercising his
discretion. Where a recall petition seeks to recall an elected official for a
discretionary act, the official must have exercised his or her discretion in a
manifestly unreasonable manner. Thomson adequately alleges that Sun unilaterally
mistreated employees, refused to follow required procedures, and violated union
3
See RCW 42.41.040 (prohibiting retaliatory action against a local government employee
who files a whistleblower complaint).
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No. 88005-1
contracts. If the voters believe these allegations to be true, the allegations show that
Sun exercised his discretion in a manifestly unreasonable manner.
d. Counts the Trial Court Dismissed
i. Impeding the Proper Functioning of the Government4
This count, which the trial court dismissed, is based on many of the same
facts as count 2, including creating a hostile work environment and depleting
departments of key personnel, as well as additional facts regarding improperly
appointing Howard Erickson as building inspector and interfering with another
employee's job performance. Thomson also goes into a lengthy discussion of the
alleged harassment of Jane Montgomery that ultimately led to her termination and
the subsequent lawsuit. These allegations, however, fail to address the crux of this
specific recall charge: that the proper functioning of city departments was
impeded. Other than conclusory statements that the proper function of the city was
impeded, Thomson never provides concrete examples beyond what is already
covered by count 2. Absent a separate basis as to how the functioning of the
government was impeded, we are left with the same bundle of allegations as in
4
Under this heading, Thomson lumps together several of the charges initially considered
by the trial court, including that Sun "created a hostile work environment for employees ... ;
verbally harassed and retaliated against employees; ... depleted departments of key employees
and did not replace them; improperly appointed Howard Erickson as Building Inspector; [and]
interfered with Associate Planner Paula Wiech's performance of her duties." Br. ofResp't/Cross-
Appellant at 3 8.
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No. 88005-1
count 2. The voters will have their say as to whether Sun engaged in misfeasance,
malfeasance, or violation of the oath of office for these factual allegations. We
need not allow the voters two bites at the same apple. Thus, we find this charge
redundant as to count 2 and affirm the trial court's dismissal.
ii. Valentine Road Project
These allegations relate to an interlocal agreement between the cities of
Pacific and Sumner for road improvements that were to be funded by the
Washington State Department of Commerce. In April 2012, both the Department
of Commerce and the city of Sumner were concerned that vacancies of key
personnel made it impossible for Pacific to continue as the lead entity, and there
were concerns about a loss of funding. As a result, Pacific and Sumner entered into
a new agreement whereby Sumner took over as the lead agency. This new
agreement appears to have resolved the issue.
These allegations also appear factually and legally insufficient. Although the
allegations follow a similar argument as count 2, there appears to have been no
imminent loss of funding, whereas with count 2 the CIAW actually terminated its
coverage. Moreover, it is unclear whether the vacancies upon which Thomson
relies are department heads or other city personnel. Further, the issue arose in
April, several months before the city's alleged dysfunction reached its peak. Thus,
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No. 88005-1
all of the factual .allegations regarding Sun terminating Montgomery, attempting to
terminate police officers, and being arrested himself are not relevant to the charge.
Because the factual underpinnings of this charge are vague and the issue was
apparently resolved by the time the recall petition was filed, this charge is neither
factually nor legally sufficient, and we affirm the trial court on this issue.
CONCLUSION
We affirm the trial court in all respects. Counts 1 and 2 are both factually
and legally sufficient. We also affirm the trial court with regard to Thomson's
cross appeal, holding that those charges are not factually or legally sufficient.
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No. 88005-1
WE CONCUR:
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