In re Recall of Levine

This opinion was
'frrrrPV filed for record
^ IM CLERKS OFFICE ^ ^
8UH®eCOlBW.ST»IECFmSHI?JGTOM 189 Wn.2d 546, 553, 403 P.3d 839 (2017)(citing
Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)).
"A recall petition is legally sufficient ifit "'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." Recall of
Pepper, 189 Wn.2d at 554 (alteration in original)(quoting/n re Recall ofBoldt, 187
Wn.2d 542,549,386 P.3d 1104(2017)(quoting Chandler, 103 Wn.2d at 274)). The
petition must "identify the '"standard, law, or rule that would make the officer's
conduct wrongful,improper, or unlawful.'" Id. at 555(quoting/« re Recall ofBolt,
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In re Recall ofLevine (Christa "Teagan "), 97306-7
177 Wn.2d 168, 181, 298 P.3d 710 (2013)(quoting In re Recall ofAckerson, 143
Wn.2d 366, 377, 20 P.3d 930 (2001))).
A petition is factually sufficient if it alleges acts or failures to act that, without
justification, would constitute misfeasance, malfeasance, or a violation of the oath
of office. Id. If the petition alleges that the subject committed an unlawful act, it is
factually sufficient only if it also alleges '"facts indicating the official had
knowledge of and intent to commit an unlawful act.'" Id.(quoting Recall ofBoldt,
187 Wn.2d at 549 (citing In re Recall ofTelford, 166 Wn.2d 148, 158, 206 P.3d
1248 (2009))). A petitioner need not have firsthand knowledge of the facts
supporting a petition but must present some evidence beyond mere belief or
speculation that the charges are true. Id. "The purpose of requiring factual
sufficiency is to ensure that charges, 'although adequate on their face, do not
constitute grounds for recall unless supported by identifiable facts.'" In re Recall of
Wade, 115 Wn.2d 544, 549,799 P.2d 1179(1990){(\ViOtmgTeafordv. Howard, 104
Wn.2d 580, 585, 707 P.2d 1327(1985)).
The sufficiency of a recall petition is reviewed de novo. Recall ofBoldt, 187
Wn.2d at 549.
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In re Recall ofLevine (Christa "Teagan "), 97306-7
A. Instead of Identifying Any Specific Error in the Trial Court's Rulings,
Jones Argues Broadly That the Court Erred by Considering Any of the
Respondents' Factual Pleadings
The trial court ruled that the petition was both factually and legally insufficient
with respect to every charge. In her briefing in this court, Jones does not specifically
identify any single error in the trial court's rulings. Instead, Jones argues generally
that a respondent to a recall petition may file only legal pleadings in the trial court,
not factual ones. App. Br. at 5-6. Jones contends that the trial court therefore erred
by even considering the respondents' factual pleadings and that this means our
"review must be nearly entirely de novo." App. Br. at 6. As noted, this is always
the standard of review in a recall petition. Under the umbrella of that general
argument, Jones "stands on the factual allegations in the initial Recall Petition and
the arguments ofcounsel at the sufficiency hearing." App. Br. at 7(citation omitted).
Jones is correct that the trial court does not determine the truth ofthe charges
when it rules on sufficiency. RCW 29A.56.140(at sufficiency hearing,"[t]he court
shall not consider the truth of the charges, but only their sufficiency"). Contrary to
her argument, however, a trial court does not err by considering evidence submitted
in response to a recall petition; such evidence is admissible "for the purpose of
determining whether there is any factual basis for the charges." In re Recall of
Beasley, 128 Wn.2d 419, 427, 908 P.2d 878 (1996); see, e.g., Recall of Wade, 115
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In re Recall ofLevine (Christa "Teagan "), 97306-7
Wn.2d at 549-51 (allegations that male candidate was ranked ahead of female
candidate "sometime in the selection process," combined with the fact that female
candidate was later selected, were not factually or legally sufficient to sustain a
charge that school board members violated law against gender discrimination; in
reaching that conclusion, the court could consider the existence of affidavits by
school board members attesting to the reasons underlying their decision).
As detailed below, none of the trial court's sufficiency rulings rested on a
weighing of conflicting evidence or a determination of credibility. Jones therefore
fails to identify any grounds for reversing the trial court's rulings on factual
sufficiency. Additionally, Jones fails to challenge any ofthe trial court's rulings on
legal sufficiency, all independent, adequate bases for dismissing each charge. The
following section examines each charge and ruling and explains why the trial court
properly dismissed it.
B. We Affirm the Trial Court's Dismissal of Every Charge
In support of charges 1 ("[ajttempting to abscond with the Mayor's
hiring/firing/personnel authority," CP at 15) and 2 ("[cjonspiring to terminate the
City Attorney and cause the Mayor of Tonasket to resign as part of an illegal
quorum," id.), Jones alleged that on or around December 18, 2018, Levine
participated in a conference call during part of which a quorum of the city council
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In re Recall ofLevine (Christa "Teagan "), 97306-7
(three of five members) was present. Id. at 16. Jones asserted that this quorum,
along with other participants in the call, phoned former Mayor Patrick Plumb to
discuss plans to fire the Tonasket city attorney and also ways to convince Mayor
Dennis Brown to resign. Id. Jones also asserted that Councilwoman Jill Ritter once
moved at a city council meeting for a vote of no confidence in Mayor Brown, which
was seconded by Levine, but the motion died with no vote being taken. Id. Jones
acknowledged that the city council has authority to determine the mayor's
compensation by ordinance, but she contended that the quorum violated RCW
35A.12.110 and .120 (in the chapter titled "Mayor-Council Plan of Government")
and several provisions of the Tonasket Municipal Code, which give the mayor sole
authority to appoint and remove "appointive officers and employees." CP at 17.
The superior court determined both charges to be factually and legally
insufficient. It concluded that charge 1 failed to "state specifically substantial
conduct clearly amounting to a violation oflaw [or]...to misfeasance, malfeasance,
or violation of oath of office." Id. at 5. It concluded that the evidence underlying
charge 2 was insufficient to show that "a violation of[the] Open Public Meeting[s]
Act [of 1971 (OPMA), ch. 42.30 RCW,] occurred" because there was no evidence
that Levine "intended to commit the act alleged and ... intended to act unlawfully"
or that any "actions were taken... and no business was eonducted" during the phone
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In re Recall ofLevine (Christa "Teagan"), 97306-7
conference. CP at 6. The court also noted that "[t]he only statement indicating that
a quorum was present was made by [Chief] Darin Odegaard[, and] Councilwoman
Jensen Sackman filed a declaration that she was never present and worked all day at
the local hospital; however[,] her car was parked at city hall." Id.
The trial court's ruling on charge 1 is correct. None of the facts alleged
constitute any actual attempt to fire anyone. The declaration supporting this charge
states only that, during a conference call,"Councilmembers ... sought Mr. Plumb's
advice about plans to fire the City Attorney." Id. at 87. Assuming Jones is correct
about the mayor's exclusive hiring and firing authority, this ambiguous statement
does not establish any infringement on that authority, much less an intentional
violation oflaw. See, e.g.. Recall ofAckerson, 143 Wn.2d at 373(petitioner's sworn
statement that she heard respondent admit to pocketing campaign contributions was
factually insufficient to sustain a charge of violating campaign finance laws where
alleged admission was too vague and lacking in context to indicate what actual
conduct occurred).
We affirm the dismissal of charge 1.
The court's ruling on charge 2 is also sustainable. While that ruling notes the
existence of two conflicting declarations, one by Chief Odegaard (who attested to
personal knowledge of the phone conference at issue and Sackman's participation)
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In re Recall cfLevine (Christa "Teagan "), 97306-1
and another by Sackman (who denied participating in the call), it does not weigh
their credibility. CP at 87. Instead, the ruling finds all of Jones's evidence
collectively insufficient to sustain an allegation that Levine intentionally violated the
OPMA. Id. at 6. If we accept the premise that Jones actually stated a claim under
the OPMA,then the trial court's conclusion on intentionality is consistent with our
case law. E.g.,Recall ofBeasley, 128 Wn.2d at 426("assum[ing]... that discussions
between a majority of the members of the school board regarding . . . the
superintendent's contract would constitute 'meetings' subject to the[OPMA]," mere
allegation that such discussions occurred in private was insufficient to sustain charge
that board members "conspired" to intentionally keep discussions secret in violation
of the law). This claim is also legally insufficient because Jones failed to '"state[]
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." Recall ofPepper, 189 Wn.2d at 554(quoting Recall ofBoldt,
187 Wn.2d at 549 (quoting Chandler, 103 Wn.2d at 274)). We note that the recall
petition does not actually cite any provision of the OPMA. One of the statutes it
cites(ROW 35A.12.110)references the OPMA,but it does not expressly incorporate
the OPMA's provisions defining "meetings" or stating which "actions" must occur
in public. Nor did Jones ever refer to "public meetings" at all during the hearing in
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In re Recall ofLevine (Christa "Teagan"), 97306-7
the trial court, instead, arguing only that Levine "violated [RCW]35A,12.110 and
35A.12.120" when "she instituted the quorum." Tr. of Proceedings at 12. Jones's
theory of this alleged violation is unclear.
We affirm the dismissal of charge 2.
In support of charge 3 ("[c]onspiring to disband the Tonasket Police
Department in favor of a contract for police services with the Okanogan County
Sheriff; and compromising the integrity of investigative materials and evidence in
the process," CP at 15), Jones alleged that Levine "violated her oath to faithfully and
diligently perform her duties of office" when she and Ritter initiated a city council
vote to adopt Ordinance 798, which temporarily suspended the operations of the
Tonasket Police Department. M at 17-18. Jones acknowledged that cities need not
maintain their own police departments and may instead provide police services
through contracts with counties. Id. at 18. Jones contended, however, that the
manner in which Ordinance 798 was adopted was too hasty to constitute good
governance, as it forced police department employees to "scramble" to store and
delete files in time for the transition. Id.
The superior court found this charge factually and legally insufficient. It
concluded that the city council adopted Ordinance 798 only after Mayor Brown fired
the chief of police and an officer and the city was therefore "without a viable police
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In re Recall ofLevine (Christa "Teagan "), 97306-7
force." Id. at 6. The court found this was a proper exercise of the city council's
authority, which Levine initiated only after consulting with the city attorney.
This ruling is correct. The exercise of discretionary authority cannot be
grounds for recall unless it is "unreasonable." In re Recall ofKast, 144 Wn.2d 807,
817-18, 31 P.3d 611(2001). Jones alleged the city council adopted Ordinance 798
too quickly, but the trial court found the undisputed facts established a reasonable
basis for the city council's action. Under that circumstance, the petition is legally
insufficient. See id. (where responsive pleadings showed officials had legal
justification for ejecting an individual from a public meeting, petition based on that
ejection was legally insufficient).
We affirm the dismissal of charge 3.
In support of charge 4("[ijmproperly withholding public records," CP at 15),
Jones alleged that she made two public record requests to Tonasket city agencies:
one for "copies of any public records pertaining to the camera installation in the
Tonasket Police Department"^ and one for "all cell phone records, to include calls.
^ Jones's written request for camera-related records read, in relevant part:
I am requesting an opportunity to inspect or obtain copies of public records
that pertain to the information regarding the breach of the security of the
Police Department. Who authorized the placement ofthe cameras and who
paid for the cameras and the installation. Did the placement of the cameras
violate the privacy of the public and/or violate the agreement to Spillman?
Who had access to the footage ofthe camera system. Who had keys and who
breached the police department other than the Police officers themselves and
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In re Recall ofLevine (Christa "Teagan "), 97306-7
te[x]ts, Facebook Messenger threads, and other communications with city officials
related to city business contained on Councilwoman Levine's phone."^ Id. at 18.
Jones acknowledged that some records were produced in response to these requests
but alleged that others must have been withheld. She asserted that some of the text
and Messenger threads produced in response to the first request were incomplete,
that no call logs at all were produced, and that no receipts or contracts related to
equipment or installation were produced in response to the camera-related request.
Jones claimed this violated the Public Records Act, chapter 42.56 RCW, CP at 18.
The superior court found this charge factually and legally insufficient because
it was based only on "speculative statements and ... unwarranted conclusions." Id.
at 7.
This ruling is correct. Neither the original petition nor Jones's brief in this
court explains the basis for the inference that some responsive records must have
the Police Clerk. Who authorized the disbursement of the keys to those
individuals.
CP at 27.
^ Jones's request for cell phone records read, in relevant part:
I am requesting an opportunity to inspect or obtain copies of public records
that pertain to meetings held at the Tonasket Police Department and at a local
business. ALL CELL PHONE RECORDS, INCLUDING CALLS, TEXT
MESSAGES, FACEBOOK MESSENGER MESSAGES MADE TO AND
FROM CITY OFFICALS AND ALL CITY BUSINESS CONDUCTED OR
DISCUSSED ON YOUR PERSONAL CELL PHONE WITHIN THE
DATES OF DEC. 17™ THROUGH TO Dec. 30'^
CP at 28.
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In re Recall ofLevine (Christa "Teagan "), 97306-7
been withheld, and there are several readily apparent problems with Jones's theory.
For example, Jones complained that no call logs were produced, id. at 24, but she
failed to request any such logs, id. at 28. Jones also complained about the response
to the camera-related request, id. at 24-25, but that request was made to the Tonasket
Police Department, id. at 27. There is no indication that Levine is the custodian of
records for that agency.
We affirm the dismissal of charge 4.
In support of charge 5 ("[f]iling a false and misleading police report with the
Okanogan County Sheriffs Office related to the performance of her duties as
Councilwoman," CP at 15), Jones alleged that on or about January 23,2019, Levine
made a false police report. Id. at 18-19. Jones asserted that Levine told police that
she and other councilmembers were blocked from leaving city hall and attacked in
the city hall parking lot. Id. According to Jones, other witnesses disputed this
account. Id. at 19. Jones claimed the report violated RCW 9A.76.175, which makes
it a gross misdemeanor to knowingly make a false or misleading material statement
to a public servant. Id.
The superior court found this charge legally and factually insufficient. It
noted that the petition alleged an unlawful act but failed to show any intent to violate
the law or engage in willful criminal conduct. Id. at 8.
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In re Recall ofLevine (Christa "Teagan "), 97306-7
This ruling was correct. Jones asserted that Levine committed a gross
misdemeanor by fabricating allegations in a police report. The only evidence Jones
submitted in support of this charge was a declaration by MacGregor-Foreman that
she personally saw councilmembers leaving the meeting at issue and "did not
observe anyone blocking them or preventing them from leaving the building." Id.
at 57. This falls far short of establishing the knowledge and intent necessary to
sustain an allegation of unlawful conduct. See Recall ofBoldt, 187 Wn.2d at 549.
We affirm the dismissal of charge 5.
CONCLUSION
The trial court correctly held that Jones's recall petition is factually and legally
insufficient. The court did not improperly engage in fact-finding, and there is no
prohibition against considering factual pleadings by the respondent to a recall
petition. We affirm the trial court's ruling in its entirety and dismiss the petition.
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In re Recall ofLevine (Christa "Teagan"),97306-7
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WE CONCUR:
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