In re Recall of Pepper

, 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 Wash. 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 Wash. 2d 542, 549, 386
P.3d 1104 (2017){citing In re Recall of West, 155 Wash. 2d 659, 667, 121 P.3d 1190
(2005)(citing In re Recall ofLee, 122 Wash. 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 Wash. 2d 120, 131-32,
258 P.3d 9(2011); West, 155 Wash. 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 Wash. 2d
at 662(citing RCW 29A.56.140;In re Recall ofKast, 144 Wash. 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 Wash. 2d 429, 435, 282 P.3d 1093 (2012)(citing In re Recall
ofTelford, 166 Wash. 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 Wash. 2d 583, 587, 30 P.3d 474
(2001)(citing Miller v. City ofTacoma, 138 Wash. 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 Wash. 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 Wash. 2d at
549(quoting West, 155 Wash. 2d at 665 (citing Chandler, 103 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 435 (quoting Chandler, 103 Wash. 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 Wash. 2d
544, 548, 799 P.2d 1179 (1990)(citing Teafordv. Howard, 104 Wash. 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 Wash. 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
Wash. 2d 53, 58, 124 P.3d 279 (2005){cWrng Ackerson, 143 Wash. 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 Wash. 2d at 274; Reed, 156
Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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
legally sufficient.
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:
sAA^
/
:y
21