CHAMBERS, J.
¶ 1 Robin Farris filed six recall charges against Pierce County Assessor-Treasurer Dale Washam. She charges that Washam violated whistleblower protections, retaliated against his employees, grossly wasted public funds, failed to cooperate with discrimination
¶ 2 Washam is no stranger to the recall process. In 2005, he filed a recall petition against his predecessor in office, Ken Madsen. After Washam was elected Pierce County assessor-treasurer in 2008, he continued to doggedly pursue his predecessor. In his first few months in office, he asked the Pierce County Prosecutor, the state auditor, and the state attorney general to investigate, file charges, or take other action against his predecessor in office for relying in part on statistical modeling. All declined.
¶ 3 Meanwhile, tensions between Washam and assessor-treasurer staff grew quickly. It appears Washam was incensed at the staff for not performing physical inspections under his predecessor. According to investigator Diane Hess Taylor, "[Washam] accused [employees] of fraud and not having integrity. He chastised employees for not quitting their jobs or blowing the whistle on then [Assessor-Treasurer] Ken Madsen." Clerk's Papers (CP) at 28. Washam seemed particularly focused on one of the managers, Sally Barnes. The record suggests Washam blamed her for providing evidence in support of Madsen that prevented Washam's recall attempt of Madsen from going forward. Barnes filed an official equal employment opportunity complaint alleging discrimination and retaliation. The investigator noted that "[w]itness accounts were consistent that Barnes was singled out for negative treatment and ostracized by Washam by late February [2009].... There was so much tension surrounding Barnes that several employees said they were afraid to be seen with her." CP at 32. Washam reassigned Barnes from a supervisory and management role to a far inferior special project. Other employees filed their own equal employment opportunity complaints against Washam. Another independent investigator found that Washam had violated various Pierce County Code provisions protecting the confidentiality of people filing complaints, had retaliated against employees for protected conduct, and had identified and posted derogatory information about the complaining employees. An investigator found that Washam's "dogged unwillingness" to stop pursuing his predecessor and office staff resulted "in a gross waste of public funds." CP at 99-100. Staff complaints against Washam have resulted in at least three outside investigations of Washam, all finding misconduct.
¶ 4 On October 29, 2010, Farris, acting pro se, filed six charges with the Pierce County Auditor's Office. She included copies of the three investigators' reports as the basis of her allegations. While she signed the charges, she did not sign under oath as required by the statute. RCW 29A.56.110. The auditor arranged for Washam to be served with the recall charges and referred the matter to the Pierce County Prosecutor's Office. That office formulated a ballot synopsis, arranged for Washam to be served with charges, and petitioned the superior court to review the adequacy of the charges on November 12, 2010. RCW 29A.56.120.
¶ 5 The original hearing to determine the sufficiency of the charges was set for November 22, 2010. Verbatim Report of Proceeding (VRP) (Nov. 22, 2010). Washam, acting pro se at the time, requested dismissal based on the alleged failure to serve the recall petition and other alleged process defects, which was denied, and for more time, which was granted. At the second December 16, 2010 hearing, the trial judge found five of the
¶ 6 Should Dale Washam be recalled from office based on this charge? CP at 549. Washam appealed. By order, we affirmed the trial court's ruling with this opinion to follow.
¶ 7 Elected officials in Washington may be recalled for malfeasance, misfeasance, and violation of oath of office. Const. art. I, §§ 33-34; RCW 29A.56.110. Courts act as a gateway to ensure that only charges that are factually and legally sufficient are placed before the voters, but we do not evaluate the truthfulness of those charges. RCW 29A.56.140; In re Recall of Kast, 144 Wn.2d 807, 813, 815, 31 P.3d 677 (2001).
¶ 8 Recall statutes are construed in favor of the voter. In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 765, 10 P.3d 1034 (2000) (citing Pederson v. Moser, 99 Wn.2d 456, 462, 662 P.2d 866 (1983)). As Justice Utter put it, "the mandatory wording of [the recall statute] is not dispositive. Where the recall statute declares that things shall be done in a particular time and manner, the procedures will be regarded as mandatory only if they affect the actual merits of the election." Pederson, 99 Wash.2d at 459-60, 662 P.2d 866. Thus,
In re Recall of West, 155 Wn.2d 659, 663, 121 P.3d 1190 (2005) (citations omitted).
¶ 9 Washam contends, correctly, that there is no statutory authority that allows recall charges to be amended. Since, he believes, the original filing was fatally flawed, he asks that we dismiss the recall effort. However, as the trial judge noted, most court filings can be amended. VRP (Nov. 22, 2010) at 9; see, e.g., CR 15(a) ("[A] party may amend the party's pleading only by leave of court ... and leave shall be freely given when justice so requires."). We are required to construe the law in favor of the voter, and nothing in the recall petition act bars a trial judge from allowing amendment of charges. While there may be some limitations on the extent of proper amendment, in this case, the trial court allowed minor, technical amendments that did not go to the substance of the charges.
¶ 11 First, Washam contends that the amended request is inadequate because it did not include the attachments. But nothing in the statutory scheme requires petitioners to have the attachments verified or that amended charges be re-served with the attachments, and Washam provides no authority that would create such a requirement. Judge Felnagle specifically asked Washam, "Are you ... able to identify any prejudice to you if I allow the amendment ... ?" Washam could identify nothing but his deep respect for every statutory detail of the recall process itself. Id. at 10-11, 13-14. Imposing such a requirement would violate the principle that we will not strike recall efforts on technical grounds, and we decline to do so. See Pederson, 99 Wash.2d at 460, 662 P.2d 866.
¶ 12 Second, Washam contends that the initial lack of verification deprived the superior court of jurisdiction. Opening Br. at 15-16 (citing Herron v. McClanahan, 28 Wn.App. 552, 562, 625 P.2d 707 (1981)). We disagree. Herron was another Pierce County recall case, and some of the citizen's arguments were dismissed by the Court of Appeals for want of jurisdiction. Herron, 28 Wash.App. at 554, 625 P.2d 707. But in Herron, the citizen did not timely appeal a finding that several of his charges were insufficient. After the time for review had lapsed, the citizen sought to resurrect the charges in an action for an extraordinary writ. Id. at 555, 562, 625 P.2d 707. The trial court found it lacked jurisdiction to consider whether the charges were sufficient under a writ because there was an adequate remedy at law—the separate, direct review mandated by statute. Id. at 562, 625 P.2d 707. Nothing in Herron speaks to the jurisdiction of the trial court reviewing the recall petition; it simply followed the well established principle that a writ will not lie when there is an adequate remedy at law. E.g., State v. Superior Court, 20 Wn. 502, 506-07, 55 P. 933 (1899).
¶ 13 Third, Washam argues that the auditor should not have referred the charges to the prosecutor and the prosecutor should have rejected the charges. He contends the error here is similar to the error in In re Recall of Wasson, 149 Wn.2d 787, 72 P.3d 170 (2003). Opening Br. at 17-19. Wasson considered a recall petition filed by Eduardo Pina against the mayor and three members of the Des Moines City Council for allegedly violating the Open Public Meetings Act of 1971, chapter 42.30 RCW, by going into closed session, among other things. Wasson, 149 Wash.2d at 789, 72 P.3d 170. The prosecuting attorney originally rejected the charges because they did not, contrary to the statute, provide a concise statement of the allegations. Id. at 792, 72 P.3d 170 (citing former RCW 29.82.110 (1984)). At that point, Pina's attorney "sent a letter to the prosecutor containing revised recall charges with additional facts." Id. We noted that "the petitioner did not sign the letter, affirm or adopt the revised charges, or verify under oath that he believed the revised charges to be true as required by the statute," and we held that "[t]he prosecutor should have rejected the additional information because it did not remedy the original deficiencies and Pina did not file an amended petition." Id. at 792-93, 72 P.3d 170 (emphasis added).
¶ 14 But here, the amendment was timely and the amended charges did remedy the original deficiency (the failure to properly certify under oath) and none of the flaws present in Wasson are present here. Farris
¶ 15 Washam challenges the trial court's failure to determine the adequacy of the charges within 15 days of receiving the petition, as required by RCW 29A.56.140. We note that the trial judge set a hearing on the ninth day after receiving the petition, which would have allowed him to meet the statutory requirement, but that Washam himself asked for more time. This is what took the court out of the 15-day window. Again, "procedures will be regarded as mandatory only if they affect the actual merits of the election." Pederson, 99 Wash.2d at 460, 662 P.2d 866. Granting Washam more time to review the charges does not go to the actual merits of the election, and is not ground to vacate the recall.
¶ 16 Although the trial judge does not have the authority to change the charges, the judge has the power to "correct any ballot synopsis it deems inadequate." RCW 29A.56.140; West, 155 Wash.2d at 668, 121 P.3d 1190 (Madsen, J., concurring). Judge Felnagle looked to the attached information to find approximate dates for several of the charges. Washam contends Judge Felnagle overstepped his authority in two ways. First, Washam contends that it was inappropriate for the trial judge to look to the attached information because it was not attached to a verified statement of charges. Given that we find that the trial judge properly allowed the charges to be amended, we find no error. Second, Washam complains that the judge overstepped his bounds by scrutinizing the attachments and inserting approximate dates into charges 2-6. Opening Br. at 27 (citing VRP (Dec. 16, 2010) at 44). He claims that this was an inappropriate attempt to amend the charges by correcting the ballot synopsis. But we have previously found that the trial judge may consult the attached materials for such information, so long as the gist of the charge remains the same. West, 155 Wash.2d at 664-65, 121 P.3d 1190; In re Recall of Lee, 122 Wn.2d 613, 618, 859 P.2d 1244 (1993).
¶ 17 Charges are factually sufficient if "taken as a whole they ... state sufficient facts to identify to the electors and to the official being recalled acts or failures to act which without justification would constitute a prima facie showing" of misfeasance, malfeasance, or violation of oath of office. Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984).
¶ 18 We review legal questions de novo, but "[w]e do not consider claims insufficiently argued by the parties." State v. Ford, 137 Wn.2d 472, 477 n. 1, 973 P.2d 452 (1999) (citing State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990)). We construe the statute in favor of the voter. See West, 155 Wash.2d at 663, 121 P.3d 1190 (citing Kast, 144 Wash.2d at 813, 31 P.3d 677).
¶ 19 Washam brings general challenges to the factual sufficiency of all the charges on the theory that since the attachments were not verified, the court should not rely upon them. Since we find the amendment was proper, the trial court could consider the three investigative reports Farris filed with her charges. Thus his general challenge to the factual sufficiency of the charges is unavailing.
¶ 20 Charge 1. Farris charged that "Mr. Washam violated the Pierce County Code 3.14.030(c) Reporting Improper Government Action—Employee Protection, Pierce County Code 3.14.030(d) Retaliatory Action Prohibited, and Pierce County Code 3.14.030(e) Confidentiality of a Person Filing a Complaint." CP at 195. This charge arose from alleged retaliation against Sally Barnes. An investigator hired by the county found such retaliation. Such retaliation specifically violates Pierce County Code (PCC) 3.14.030.
¶ 21 Washam contends that he had "a legally cognizable justification for discretionary personnel decisions," Opening Br. at 30, but he does not further elaborate what that cognizable justification might have been. While our review is de novo, mere invocation of a legally cognizable justification is not enough. We need a more substantial statement of the alleged justifications before we can weigh whether they are cognizable or lawful. This charge is legally sufficient.
¶ 22 Charge 2. Farris charged "Gross Waste of Public Funds as defined in RCW 42.40.020(5)."
¶ 23 It is, as Farris concedes, entirely proper for elected officials to examine the lawfulness of their predecessors' (or contemporaries') actions. It may even be laudable. In the general course of events, it is not a recallable offense. In many cases it may be appropriate for an official to pursue mandamus or other legal issue against the advice of counsel. Only if such an activity can be properly characterized as "gross waste of public funds" does it satisfy the legal sufficiency requirement. A trial judge found that the predecessor's actions were legally justifiable because he had been given insufficient funds to perform a physical inspection, and yet Washam spent an enormous amount of his office's time, and the time of the state auditor, attorney general, and the Pierce County prosecuting attorney, pushing for some sort of sanction. An investigator specifically found that Washam's pursuit of his predecessor was "uses of public funds grossly deviating from what a reasonable person would do." CP at 144.
¶ 24 Judge Felnagle struggled with the legal sufficiency of this claim. As he said:
VRP (Dec. 16, 2010) at 35-36. Judge Felnagle concluded that the charge was legally sufficient on the theory that "any elected official is required to be a good steward for the public's money, and to not do so is to not perform your duties in a proper manner and it's not following or discharging the duty required of you as a public, elected official." Id. at 36-37. The simple fact is that we "do not consider claims insufficiently argued by the parties." Ford, 137 Wash.2d at 477 n. 1, 973 P.2d 452 (citing Elliott, 114 Wash.2d at 15, 785 P.2d 440). Washam's arguments in this case are conclusory and unhelpful.
¶ 25 At some point, appropriate investigation becomes a gross waste of public funds under RCW 42.40.020(5) and a recallable charge. An investigation specifically found a gross waste of public funds and that Washam misrepresented to the Pierce County prosecutor what the attorney general had told him on the subject. We find this charge of gross waste of public funds is factually and legally sufficient.
¶ 27 Washam claims that this charge must be struck because he had an unnamed "legally cognizable justification" and lawful intent for his actions. Opening Br. at 31-32. We note that the investigative reports lay out in painstaking detail how Washam violated local whistleblower law, and Washam does not elaborate as to what his legally cognizable justification might have been. See, e.g., CP at 31-35, 52-57 (laying out retaliation in detail); see also chs. 3.14, 3.16 PPC (protecting whistleblowers). The facts support an inference of willful intent. This claim is legally sufficient.
¶ 28 Charge 4.
¶ 29 Washam was required by law to cooperate with the investigators, and the investigative reports lay out in detail how he failed to do so. E.g., CP at 23-24, 135-37, 146 (investigators detailing lack of cooperation); PCC 3.16.080(A);
¶ 30 Charge 5. Farris charged that "Mr. Washam violated his Oath of Office by knowingly and purposefully violating the RCW 42.20.080 and Pierce County Code 3.14.030(C), 3.14.030(D), 3.14.030(F), 3.15.020(B)(2), 3.16.090 and the intent of the law covered under RCW 42.40.020(5)." CP at 199. She alleged this was a violation of his oath of office to support the laws. This charge was summarized by the trial court as "discharging his duties in an unlawful and biased manner from January 2, 2009 until October 29, 2010." CP at 549. Washam contends that he had a "legally cognizable justification for all he did regarding discretionary personnel decisions," without informing us of the basis of this claim. Opening Br. at 33. Without that information, his argument is unavailing.
¶ 31 We affirm the trial court in all respects.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, GERRY L. ALEXANDER, SUSAN
RCW 29A.56.110 (emphasis added).
RCW 29A.56.110.
PCC 3.14.030.