Judge rules recall charges insufficient
January 24, 2019
Wahkiakum Superior Court Judge Donald J. Richter on Friday ruled that charges to recall Cathlamet's mayor and three council members were legally insufficient to proceed toward election.
Cathlamet resident Bill Wainwright had filed the charges alleging misfeasance and malfeasance and violation of oath of office against Mayor Dale Jacobson and Council Members Sue Cameron, Jean Burnham and Ryan Smith.
The charges alleged that all four participated in the purchase of a vacant lot contaminated with gasoline at an exorbitant price that benefitted a friend and that Jacobson exercised control over a town owned lot for his personal privilege.
Washington recall law requires a judge to review recall charges to make sure they merit an election. Judge Richter acknowledged this at the beginning of his opinion.
"The Court at the onset understands its role in this process is a limited one," he wrote. "It is to act solely as a gatekeeper to insure the recall process is not used to harass public officials by subjecting them to frivolous or unsubstantiated charges.
"In this role, the Court is to accept all factual allegations in the Recall Petition as true. To meet its gatekeeping function, the Court must determine if the Recall Petition is both factually and legally sufficient, and the person submitting the charges has ‘some knowledge of the facts underlying the charges.'"
In regard to the charges relating to the process to purchase the lot, Richter ruled that the council had acted within the parameters of their authority.
Richter cited case law stating "an appropriate exercise of discretion does not constitute grounds for recall."
"An official may not be recalled for the execution of a discretionary act unless the official ‘exercised discretion in a manifestly unreasonable manner,'" Richter wrote, quoting from case law.
Further, he wrote that the allegation of a gift of public funds to purchase the lot was legally insufficient.
"The purchase of property for public use by town officials is a fundamental governmental purpose," he wrote. "This precludes the Court from delving into the adequacy of the consideration that was exchanged for the purchase price, or the alleged donative intent of the Town Council Members and Mayor.
"As there is no legal basis for the claim of gift of public funds, a recall based on the discretionary decision to purchase a lot for public use cannot be said to be manifestly unreasonable.
"Therefore, the charges in the Recall Petition relating to the purchase of real property located at 20 Butler Street are legally insufficient."
In rejecting the charges specifically against Jacobson, Richter cited Wainwright's declaration that he had inquired at town hall about parking on the lot used by Jacobson and was told, at first, by town hall staff that he couldn't use the lot, but later that he could use the lot if he consulted with Jacobson about logistics of where to park.
"It appears according to his own Declaration that Mr. Wainwright was granted the same gift or privilege that he alleges to Mayor held exclusively for himself, namely he was also given permission to park on the town lot," Richter wrote. "The Declaration only states one time an individual was denied parking privileges at the town owned lot. That denial does not appear to have come from the mayor but from [Clerk/Treasurer] Kerrie McNally. [In the declaration, Wainwright wrote that Cathlamet resident Steve Lake had been denied by McNally permission to park a trailer on the lot in 2017. --ed.]
"This is not ‘substantial conduct' on the part of the Mayor that ‘clearly amounts' to misfeasance, malfeasance or violation of oath of office.
"Therefore Charges 5 and 6 in the Recall Petition regarding Mayor Dale Jacobson are legally insufficient."