WASHINGTON SUPREME COURT

Allegation of Malfeasance by Public Official was Legally and Factually Sufficient for Recall Petition

In the Matter of the Recall Charges against Port of Seattle Commissioner Pat Davis, 164 Wn.2d 361 (2008)

Pursuant to RCW 29A.56, citizen Christopher Clifford filed a recall petition against Port of Seattle Commissioner Pat Davis, alleging acts of misfeasance and malfeasance in her official duties. The ballot synopsis contained three charges. The Washington Supreme Court held that ballot charge one, the malfeasance charge, was legally and factually sufficient. This charge alleged an illegal agreement signed by Davis outside the scope of her duties that could financially obligate the Port to the outgoing Chief Executive Officer M.R. Dinsmore.

On October 10, 2006, Davis and Dinsmore signed an illegal agreement that detailed a transitioning plan for Dinsmore’s successor and set out financial benefits promised to Dinsmore after he resigned from his post. By using his paid time off as service time, his termination date would be extended to mid-March 2008.

In a recall petition, Clifford alleged specific acts committed by Davis that rose to the misfeasance, malfeasance and violation of the oath of office. The Trial Court found the charges legally and factually sufficient but substantially revised them to read as follows:

Shall Pat Davis, Port of Seattle Commissioner, be recalled from public office, as alleged by King County registered voter Christopher Clifford:

1. Commissioner Davis committed an act of malfeasance by signing an October 10, 2006 memorandum addressed to the then chief executive officer of the Port of Seattle, Mr. Dinsmore, which had the potential effect of obligating the Port of Seattle to pay Mr. Dinsmore, an outgoing Port of Seattle employee, at least $239,000 outside of his employment contract. The additional monies to Mr. Dinsmore were not voted on or approved by the Port of Seattle Commissioners at a regularly scheduled public hearing.
2. Commissioner Davis committed acts of malfeasance by voting in executive session on or about January 10, 2006, and June 8, 2006 in violation of the Washington State Open Public Meetings Act of 1971 (Chapter 42.30 RCW).
3. Commissioner Davis committed an act of malfeasance by knowingly exceeding the purposes for executive session in the Washington State Open Public Meetings Act (Ch. 42.30 RCW) by negotiating and voting on a gift of public money to Mr. Dinsmore in executive session.

Davis appealed the order to the Washington Supreme Court. The Court discussed the requirements for recalling an elected official prior to the end of his or her term in accordance with RCW 29A.56.110. The petitioner must have some knowledge of the facts underlying the charges in order to meet the “factually sufficient” charge of a prima facie case of misfeasance, malfeasance or violation of the oath of office. The Court clarified that charges two and three, which alleged malfeasance by voting in executive session, were based on media articles. The court explained that while media articles may show evidence of the misfeasance or malfeasance, in this instance there were no documents demonstrating that a vote took place in executive session.1 Thus the Court found charges two and three of the ballot synopsis legally and factually insufficient.

Addressing the core allegation — the October 10, 2006 unauthorized agreement — the Court explained that Davis did not “obligate” the Port by signing the agreement, but agreed that it had the “potential effect of obligating the Port.” Davis proffered that any obligation to the Port was “cured” by a subsequent public vote by Commissioners denying any severance package to Dinsmore. Disagreeing with Davis’ argument, the Court explained that the Port’s undoing of the agreement in a public meeting was not a “cure.”
The Court noted that the signed agreement contained obligatory language such as, “as agreed” and “you will be provided benefits” that showed they had an agreement and that it was without the support of the Commission or the necessary public vote on matters as required by the OPMA. Thus, Davis’ signing the memorandum was without authority and the allegation of Davis’ intent to commit malfeasance was factually sufficient and also met the legal requirement of substantial conduct in the violation of the oath of office.

Finally, the charge was supported by the record of the Commission’s act of holding a public hearing to undo the memorandum between Davis and Dinsmore. The Court held that charge one of the ballot synopsis was legally sufficient.

¹A recall petition was factually sufficient where Internet chat transcripts published by a newspaper were the basis for a recall petition. In re Recall of West, 155 Wn.2d 659, 666 n. 3, 121 P.3d 1190 (2005)

Note: The Supreme Court has denied a motion by Commissioner Davis to reconsider its decision on a recall effort.