Elected Officials Can be Subject to Recall for Violating Employment Laws

This Advisor column was originally published in June 2011.

Elected officials in Washington State can be subject to recall by the voters for “malfeasance, misfeasance, or violation of the oath of office.” Generally, this does not include discretionary acts, absent manifest abuse of discretion. In addition, officials accused of violating the law are generally not subject to recall unless there is evidence they “intended” to commit an unlawful act. Recently, the Washington Supreme Court applied these general principles to an elected official accused of violating county ordinances prohibiting certain employment practices, including retaliating against whistleblowers. In re Recall of Washam, __ Wn.2d __, 2011 WL 1796435 (2011).

Facts of the Case

The case involved an Assessor-Treasurer in Pierce County. According to the court, after the official was elected, he “doggedly pursue[d]” his predecessor in office by asking the county prosecutor, the Washington State Auditor, and the Attorney General to file charges or take other action against his predecessor. They all declined. The situation apparently led to escalating tensions with staff in the Assessor-Treasurer’s office, which led to discrimination and retaliation complaints against the official The complaints led to three investigations by outside investigators, each resulting in a finding of misconduct. The three investigative reports became the basis of the recall petition.

Following the statutory procedure for a petition to recall an elected official, a superior court judge reviewed the petition for factual and legal sufficiency. The judge struck one charge alleging that the official had used “profane, questionable, negative or angry language and gestures [and] continued to reference religion.” However, he held that five other charges were legally sufficient. The elected official appealed, and the case went to the state Supreme Court.

The Supreme Court’s Decision

The Supreme Court held that all five remaining charges were legally sufficient for a recall petition based on county ordinances[1] prohibiting retaliation and other conduct. The five charges were:

1. Retaliating against an employee for filing a complaint against him. The court held this charge was sufficient because Pierce County ordinances prohibit retaliation against employees who report improper governmental conduct, i.e., whistleblowers, and an investigator found the official had retaliated against a whistleblower.
2. Grossly wasting public funds in pursuing criminal charges against his predecessor. The court noted that it is “entirely proper” for elected officials to examine the lawfulness of their predecessors’ actions, however, in this case an outside investigator concluded that the Assessor-Treasurer used funds in a manner that “grossly deviat[ed] from what a reasonable person would do” in his pursuit of his predecessor.
3. Failing to protect an employee from retaliation, false accusations, or future improper treatment, and failing to rectify retaliation. Again, the court relied on the outside investigators’ reports, which apparently laid out how the official violated county ordinances protecting whistleblowers.
4. Refusing to participate in investigations into whether he had discriminated and retaliated. According to the court, a Pierce County ordinance requires employees to cooperate in investigations under threat of discipline. The court found this ordinance meant the elected official was “required by law” to cooperate with the investigators and it held that this charge was sufficient because all three investigators concluded the official did not fully cooperate.
5. Discharging his duties in an unlawful and biased manner. This claim was based on the allegation that the official violated his oath of office by knowingly violating the laws applicable to the other charges.

The elected official challenged the sufficiency of the charges by contending that he had “legally cognizable justifications” for matters that were discretionary personnel decisions. However, according to the court, he failed to elaborate on what the justifications were, therefore, he could not overcome the investigators’ findings.

Lessons Learned

Recall petitions have been relatively rare in Washington State. The egregious facts of In re Recall of Washam prompted a ruling that personnel actions can subject an elected official to recall. This case is a reminder of the importance of documenting performance issues and taking personnel actions based on justified, lawful bases. It is also a reminder of the importance of following local ordinances regarding employment investigations.