In re Recall of Pepper
94574-8
| Wash. | Oct 26, 2017Background
- Patricia Pepper was elected to Black Diamond City Council in Nov 2015; council split into majority (Pepper, Morgan, Weber) vs. mayor and two members.
- Majority enacted Council Resolution 16-1069 (R-1069) changing committee rules (raising minimum members to three), which prompted legal advice that R-1069 could violate the Open Public Meetings Act (OPMA).
- The council majority fired the city attorney who advised against R-1069; interim counsel issued memoranda concluding R-1069 likely violated OPMA; litigation followed (Oakpointe/MDRT suit).
- Robbin Taylor filed recall charges alleging (1) OPMA violations, (2) refusal to attend meetings and failure to approve minutes, (3) failure to enact a lawful 2017 budget and adoption of an improper temporary budget, and (4) improper changes to MDRT contracts producing threatened legal action.
- Superior Court found charges 1–3 legally and factually sufficient and charge 4 insufficient; Pepper appealed. The Supreme Court affirmed charges 1–3 and reversed as to charge 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. OPMA violations (closed/secret meetings; private preparation of legislation) | Pepper, as part of a council majority, held/participated in secret meetings and private agreements to prepare/approve legislation, despite legal warnings, so violated OPMA | Pepper argued record lacks evidence she attended nonpublic majority meetings or knew her conduct violated OPMA; relied on legal advice | Court: Charge legally and factually sufficient — allegations plus legal memoranda, emails, and other evidence allow voters to infer OPMA violations and knowledge of risk |
| 2. Refusal to attend meetings & failure to approve minutes | Pepper and two others colluded to prevent quorums, obstruct council function, and delayed/failed to approve minutes, breaching duties | Pepper said she reasonably believed absences and actions were lawful or permissible under council rules | Court: Charge legally and factually sufficient — failure to attend and deliberate quorum defeat can constitute misfeasance/violation of oath; delay in approving minutes violates public-record duties |
| 3. Failure to enact lawful 2017 budget (adopted temporary budget with illegal provisions) | Majority introduced/forced a substitute budget past statutory deadlines and enacted temporary budget with illegal provisions, impairing services | Pepper argued ultimate passage/funding cured any defect; procedural defenses | Court: Charge legally and factually sufficient — delay/obstruction of budget process can support recall even if later cured; factual responsibility is for voters to evaluate |
| 4. Improper alteration of MDRT contracts leading to threatened litigation | Pepper voted with majority to change MDRT contracts, interfering with vested developer rights and causing threatened legal action | Pepper produced counsel memo supporting council action and contested the contract interpretation; petitioner failed to submit the contracts or specific contract language | Court: Charge legally insufficient — petitioner did not present the contract or specific provisions creating the vested rights/duty alleged, so cannot show legal wrongful basis |
Key Cases Cited
- In re Recall of Boldt, 187 Wn.2d 542 (2017) (recall charges must be specific enough to give meaningful notice and courts defer factual resolution to voters)
- In re Recall of West, 155 Wn.2d 659 (2005) (recall petitions construed in favor of voters and courts do not resolve truth of charges)
- Chandler v. Otto, 103 Wn.2d 268 (1984) (legal and factual sufficiency standards for recall petitions)
- In re Recall of Ward, 175 Wn.2d 429 (2012) (de novo review of superior court recall sufficiency; factual conclusions upheld if supported by substantial evidence)
- In re Recall Charges Against Davis, 164 Wn.2d 362 (2008) (delayed cure of alleged unlawful action does not necessarily defeat recall allegations)