In re Recall of Kelley ( 2016 )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Recall of )
)
TROY KELLEY, Auditor for the ) No. 9'1843-1
State of Washington, )
) En Bane
Respondent. )
)
---- ) Filed MAR 0 3 2016
WIGGINS, J.-Petitioner Will Knedlik filed a recall petition against Washington
State Auditor Troy Kelley, charging him with misfeasance, malfeasance, and breach
of his oath of office. The superior court judge dismissed the recall petition, finding the
charges factually and/or legally insufficient for submission to the voters. We affirm.
FACTS AND PROCEDURAL HISTORY
Kelley is the elected auditor of Washington. Knedlik filed a recall petition against
Kelley with the secretary of state. In the petition, Knedlik charged Kelley with
misfeasance, malfeasance, and breach of his oath of office for (1) violating the
residency requirements of his office, (2) failing to adequately investigate and report
alleged illegal activity by Sound Transit, and (3) pressuring employees of the auditor's
office to hire Jason JeRue without following proper employment procedures. The
secretary of state served a copy of the petition on Kelley and on the attorney general's
In the Matter of the Recall of Troy Kelley, No. 91843-1
office, which prepared the ballot synopsis for the charges. After preparing the
synopsis, the attorney general petitioned the superior court for a determination on the
sufficiency of the charges and for approval of the ballot synopsis.
As the attorney general's petition was pending, Knedlik filed a motion in the
superior court for a determination that "a constitutional and statutory vacancy in the
Office of Washington State Auditor has legally existed from January 16, 2013 .... " In
this motion, Knedlik argued that Kelley never legally took office because he never
intended to fulfill the residency requirements of his office when he took his oath of
office.
The superior court heard argument on the motion and the recall petition. The
superior court ruled orally and then issued a written order denying the motion and
dismissing the recall petition charges. The superior court first ruled that Knedlik's
motion for the court to rule that there is a vacancy in the auditor's office was not
properly before the court as part of a recall action. The superior court then dismissed
each of the recall petition charges as being factually and/or legally insufficient to
proceed to the voters.
After the superior court dismissed the recall petition as insufficient, Knedlik
moved to reconsider and the superior court denied the motion. Knedlik now appeals
the superior court's order dismissing tl1e recall petition to our court, arguing that the
superior court erred in its factual and legal rulings. 1
1 Knedlik also argues that the superior court erred in denying his motion for a determination
that a vacancy exists in the office of Washington State auditor. Knedlik's argument is mooted
by our decision below regarding the sufficiency of the recall petition's vacancy charge.
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In the Matter of the Recall of Troy Kelley, No. 91843-1
ANALYSIS
The Washington Constitution provides the general framework for the recall of
elective officers:
Every elective public officer in the state of Washington expect [except]
judges of courts of record is subject to recall and discharge by the legal
voters 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, ... is filed
with the officer with whom a petition for 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.
CONST. art. I,§ 33 (first alteration in original). "Misfeasance" and "malfeasance" mean
"any wrongful conduct that affects, interrupts, or interferes with the performance of
official duty." RCW 29A.56.11 0(1 ). "Misfeasance" also means the "performance of a
duty in an improper manner," RCW 29A.56.11 0(1 )(a), and "malfeasance" also means
the "commission of an unlawful act," RCW 29A.56.11 0(1 )(b). A "violation of the oath
of office" is the "neglect or knowing failure by an elective public officer to perform
faithfully a duty imposed by law." RCW 29A.56.11 0(2).
Courts act as a gateway to confirm that the charges in a recall petition alleging
malfeasance, misfeasance, or violation of oath of office are factually and legally
sufficient before they are placed before the voters. RCW 29A.56 ..140; In re Recall of
Kast, 144 Wn.2d 807, 813-15, 31 P.3d 667 (2001). Courts do not evaluate the
truthfulness of the charges but ensure that public officials are not subject to frivolous
or unsubstantiated charges. RCW 29A.56.140; In re Recall of Lindquist, 172 Wn.2d
120, 131-32, 258 P.3d 9 (2011 ).
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In the Matter of the Recall of Troy Kelley, No. 91843-1
The proponent of the recall petition bears the burden of establishing that the
charges alleged in the recall petition are both legally and factually sufficient. See In re
Recall of Sun, 177 Wn.2d 251, 255, 299 P.3d 651 (2013). The superior court makes
the initial sufficiency determination, subject to de novo review by this court. See RCW
29A.56.140; In re Recall of Telford, 166 Wn.2d 148, 154, 206 P.3d 1248 (2009). We
determine sufficiency from the face of the recall petition. In re Recall of Telford, 166
Wn.2d at 153.
Factual sufficiency requires that the recall petition concisely states each charge
with '"a detailed description including the approximate date, location, and nature of
each act' that, if accepted as true, would constitute a prima facie case of misfeasance,
malfeasance, or the violation of the oath of office." In re Recall of Sun, 177 Wn.2d at
255 (quoting RCW 29A.56.11 0). Each charge in the recall petition must demonstrate
that the petitioner "knows of identifiable facts that support the charge." In re Recall of
Reed, 156 Wn.2d 53, 58, 124 P.3d 279 (2005). Further, charges are factually sufficient
only if they enable the voters and the challenged official to make informed decisions.
In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003).
"Legal sufficiency requires that the petition state, with specificity, substantial
conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of
office." In re Recall of Sun, 177 Wn.2d at 255. To establish legal sufficiency for each
charge, the recall petition must identify the "standard, law, or rule that would make the
officer's conduct wrongful, improper, or unlawful .... " In re Recall of Ackerson, 143
Wn.2d 366, 377, 20 P.3d 930 (2001 ). "If recall is sought for acts falling within the
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In the Matter of the Recall of Troy Kelley, No. 91843-1
elected official's discretion, the official must have acted with a manifest abuse of
discretion." In re Recall of Sun, 177 Wn.2d at 255.
Under these rules, each of the charges in the recall petition is factually and/or
legally insufficient to proceed to voters.
I. The residency charge is factually insufficient
Citing RCW 43.09.010 and article Ill, section 24 of the Washington Constitution,
the recall petition charges Kelley with taking his "Oath of Office in knowing violation of
the statutory [and constitutional] residency requirement for validly undertaking and
holding said office .... "
Article Ill, section 24 of the Washington Constitution-titled "Records, Where
Kept, Etc. "-reads as follows:
The governor, secretary of state, treasurer, auditor, superintendent of
public instruction, commissioner ·of public lands and attorney general
shall severally keep the public records, books and papers relating to their
respective offices, at the seat of government, at which place also the
governor, secretary of state, treasurer and auditor shall reside.
Similarly, RCW 43.09.010 states that "[t]he state auditor shall reside and keep his or
her office at the seat of government." The seat of Washington's government is in the
city of Olympia. State ex ref. Lemon v. Langlie, 45 Wn.2d 82, 95-96, 273 P.2d 464(1954 ).
The recall petition states the Kelley is in violation of these provisions because,
instead of residing in Olympia, Kelley "appears to maintain his actual residence ... in
Pierce County (at which Pierce County location the Federal Bureau of Investigation
(FBI) searched his true residence during March, 2015 ... )." Without ruling on the
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In the Matter of the Recall of Troy Kelley, No. 91843-1
legal sufficiency of this charge, 2 we hold that this charge is factually insufficient
because the recall petition provides no facts showing that Kelley is in violation of any
residency requirements for his office.
The recall petition relies solely on assumptions drawn from unspecified FBI
searches that Kelley's home is in Tacoma. Even accepting the recall petition's
allegations as true, they provide no basis for determining whether Kelley resides in
Olympia. Because Kelley has a home in Tacoma does not necessarily mean that
Kelley does not have a residence in Olympia. The petition does not specify whether
Kelley also maintains a home in Olympia and which home, if not both, constitutes
Kelley's "residence" in terms of RCW 43.09.010 and article Ill, section 24. Because
the recall petition is devoid of any facts on whether Kelley "resides" in Olympia, this
charge is factually insufficient.
II. The failure to adequately investigate and report alleged illegal activity by
Sound Transit charge is both legally and factually insufficient.
The recall petition also charges Kelley with "both fail[ure] to investigate [Sound
Transit's] ballot-title fraud, as required by state statutes, and also fail[ure] to report it
to the attorney general, as also required by statute .... " The recall petition asserts
that these failures show that Kelley violated his oath of office by not faithfully
2 We do not assess the legal sufficiency of this charge because it is inadequately briefed. See
In re Recall of Washam, 171 Wn.2d 503, 515, 257 P.3d 513 (2011) ("'[w]e do not consider
claims insufficiently argued by the parties"' (alteration in original) (quoting State v. Ford, 137
Wn.2d 472, 477 n.1, 973 P.2d 452 (1999))). We therefore express no opinion on the definition
of the term "reside" within RCW 43.09.010 and article Ill, section 24 or what it means to "reside
at" within article Ill, section 24. We do note, however, that authorities analyzing where a
person "resides" when the person owns more than one home reach differing conclusions in
different contexts. See, e.g., Nat'! Gen. Ins. Co. v. Sherouse, 76 Wn. App. 159, 163-64, 882
P.2d 1207 (1994); see also 1987 Op. Att'y Gen. No. 24. The recall petition never cites or
discusses this analysis.
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In the Matter of the Recall of Troy Kelley, No. 91843-1
discharging the duties of his office to the best of his abilities. However, this charge is
both legally and factually insufficient to proceed to the voters because the statutes
cited by the recall petition do not impose a duty on Kelley to investigate and report on
Sound Transit, and because the recall petition fails to identify any facts showing how
Kelley violated his oath of office in relation to Sound Transit.
A. This charge is legally insufficient
This charge is legally insufficient because the petitioner, on the face of the recall
petition, fails to meet the burden of identifying a "standard, law, or rule" under which
Kelley's actions could be considered "wrongful, improper, or unlawful ... ."In re Recall
of Ackerson, 143 Wn.2d at 377. Specifically, the recall petition cites RCW
43.88.160(6)(e), RCW 43.88.160(6)(f), and RCW 43.09.050(3) as creating duties that
Kelley failed to fulfill as auditor, thus violating his oath of office. But these statutes do
not impose a duty on the auditor to investigate Sound Transit.
First, the recall petition does not establish that chapter 43.88 RCW imposes a
duty on the state auditor's office to investigate Sound Transit. The recall petition
asserts that Kelley failed in his duties by neglecting to "[p]romptly report any
irregularities to the attorney general," citing RCW 43.88.160(6)(e). Entitled "State
Budgeting, Accounting, and Reporting System," the legislature passed chapter 43.88
RCW for the purpose of establishing "an effective state budgeting, accounting, and
reporting system for all activities of the state government .... " RCW 43.88.010. The
duty to report irregularities to the attorney general under RCW 43.88.160(6)(e) arises
from the auditor's duty to "[r]eport to the legislature the results of current post audits
that have been made of the financial transactions of each agency." RCW
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In the Matter of the Recall of Troy Kelley, No. 91843-1
43.88.160(6)(a) (emphasis added). Under this chapter, "agency" is defined as "every
state office, officer, each institution, whether educational, correctional, or other, and
every department, division, board, and commission, except as otherwise provided in
this chapter." RCW 43.88.020(4). Therefore, RCW 43.88.160(6)(e) applies only to
audits of financial transactions of state agencies.
Sound Transit is a not a state agency; rather, Sound Transit is a local
government entity. See RCW 81.112.010, .100; see also Sane Transit v. Sound
Transit, 151 Wn.2d 60, 85 P.3d 346 (2004). The recall petition makes no argument
and does not establish that the definition of "state agency" applies to Sound Transit
as a local government entity. Indeed, chapter 43.09 RCW supports the distinction
between a local government entity and state agency, as it provides different definitions
for each. Compare RCW 43.09.260(3? (defining "local governments"), with RCW
43.09.290 (defining "state agency"). Because Sound Transit is not a state agency, the
state auditor's office has no duty to "[p]romptly report any irregularities to the attorney
general" in relation to Sound Transit under RCW 43.88.160(6)( e).
Second, the recall petition does not establish that RCW 43.88.160(6)(f) and
RCW 42.40.020(3) impose a duty on the state auditor's office to investigate Sound
Transit. The recall petition asserts that Kelley failed to "'investigate improper
governmental activity under chapter 42.40 RCW,"' quoting both RCW 43.88.160(6)(f)
3 While RCW 43.09.260(1) states that the "examination of the financial affairs of all local
governments shall be made at such reasonable, periodic intervals as the state auditor shall
determine," Knedlik does not allege this section as a legal basis for recall in the recall petition
with supporting factual allegations. Because we consider only the specific charges made in
the recall petition for legal and factual sufficiency, we do not consider this section. See In re
Recall of Washam, 171 Wn.2d at 515 ("'[w]e do not consider claims insufficiently argued by
the parties"' (alteration in original) (quoting Ford, 137 Wn.2d at 744 n.1 )).
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In the Matter of the Recall of Troy Kelley, No. 91843-1
and RCW 42.40.020(3). Chapter 42.40 RCW is the state employee whistleblower
protection act. This act protects state employees who report improper governmental
activity and gives the auditor the discretion to determine which reports to investigate.
See RCW 42.40.020(2), (3), .040(1 )(b). The act defines "[i]mproper governmental
action'' as an improper action taken by a state employee in performance of that
employee's official duties. See RCW 42.40.020(2), (6)(a). This definition, in context of ·
the statute as a whole, reveals that the duty to investigate improper government
activity arises only in the setting of state agencies and state employees. As stated
above, Sound Transit is a local government entity and not a state agency. Therefore,
the auditor's office has no duty to "investigate improper governmental activity under
chapter 42.40 RCW" in relation to Sound Transit. Because the recall petition fails to
demonstrate that there is a legal duty for Kelley to investigate and report on Sound
Transit by identifying an applicable "standard, law, or rule," this charge is legally
insufficient. See In re Recall of Ackerson, 143 Wn.2d at 377.
B. This charge is factually insufficient
The recall petition states that "in every financial-and-other audit conducted
since a nominal assumption of office, the nominal Auditor of our state has failed to
identify both ballot-·title fraud on all residents of the junior taxing district ... , and also
a further fraud to evade an $800 million ceiling on long-term debt as negotiated with
King, Pierce and Snohomish [C]ounties so as to gain any ballot access to voters within
those counties .... " Even assuming that the recall petition adequately identified a
legal standard that required Kelley to investigate Sound Transit, this charge is factually
. ' '
insufficient because it does not state any specific facts regarding how Kelley
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In the Matter of the Recall of Troy Kelley, No. 91843-1
deficiently performed llis duties by failing to discover Sound Transit's alleged fraud.
Tllere is no information on tile face of tile recall petition that would allow tile voters to
evaluate til is cllarge if it were on tile ballot. See In re Recall of Telford, 166 Wn.2d at
154.
In briefing to our court, tile petitioner alleges that Kelley "falsely signed" a 2013
audit of Sound Transit and failed to follow tile "Generally Accepted Government
Auditing Standards" in carrying out tllat audit. But tile petitioner's briefing contains no
{pets sllowing tllat Kelley failed to follow accounting standards, or wllat constitutes
"falsely signing" an audit. Even if we were to consider tllese additional allegations-
coming from beyond tile face of tile recall petition--tile petitioner still does not sllow
any specific facts that would make this charge factually sufficient to proceed to voters.
Ill. The hiring charge is factually insufficient
Finally, the recall petition charges that "the nominal Auditor of our [S]tate has
grossly abused his position of public trust in order to pressure members of the
professional staff within the Office of the State Auditor to hire a crony of his, Jason
JeRue ... without vetting him by means of standard qualification processes for state
employment (according to news reports quoting from emails formally obtained through
public disclosure requests by the press but not as yet made public), also in violation
of his Oath of Office duties, state law, best practices and due professional care .... "
This charge is factually insufficient because the recall petition fails to specify
any facts to support this charge and fails to show that the petitioner has adequate
knowledge of the facts necessary to support this charge. There are no facts in the
recall petition that would allow voters to make an informed decision on this charge.
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While newspaper accounts are "not per se insufficient to show some form of
knowledge of the facts," In re Recall of Reed, 156 Wn.2d at 58, mere reference to
unidentified news reports and a complete lack of reference to any specific actions by
Kelley is insufficient. See In re Recall of Sun, 177 Wn.2d at 256 (misfeasance,
malfeasance, and violation of oath of office charges were sufficient because they were
supported by media reports along with "numerous" declarations from witnesses, e-
mails, letters, and other documents); In re Recall of West, 155 Wn.2d 659, 666, 121
P.3d 1190 (2005) (misfeasance charge was factually sufficient because petitioner's
knowledge was based on newspaper articles containing lengthy transcripts of
conversations supporting the official's misconduct, which the official admitted to
having).
CONCLUSION
Each charge in the recall petition is factually and/or legally insufficient to
proceed to the voters. Therefore, we affirm the superior court's dismissal of the recall
petition.
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In re the Recall of Troy Kelley, No. 91843-1
WE CONCUR.
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