Push to recall Assessor-Treasurer Dale Washam advances

Washam: Sufficient evidence for move to oust assessor treasurer, Superior Court judge rules

December 17, 2010 

The voyage of Dale Washam, Pierce County assessor-treasurer, ran aground Thursday in Pierce County Superior Court.

Judge Thomas Felnagle approved five of six charges in a recall petition that seeks to oust Washam from office. The ruling, a finding of legal and factual sufficiency, sets the stage for a potential recall election next year, if Puyallup resident Robin Farris can gather enough signatures to bring the measure to the ballot.

A packed courtroom watched as Washam fought for his political life. Felnagle compared him to Captain Ahab, the doomed protagonist of “Moby Dick.”

Washam quarreled with the judge. As the hearing ended, he bickered with Farris’ attorneys and left, serenaded by a group of protesters in masks.

Washam ignored questions as he left the courtroom, trailed by his assistant, Gretchen Borck, and his chief deputy, Albert Ugas. Would he appeal the ruling to the state Supreme Court? He wouldn’t answer.

Farris welcomed the ruling. She had hoped one or two of the six recall charges would be approved; five was overwhelming.

“I’m very pleased,” she said. “Mostly what I’m pleased about is that the employees of the assessor-treasurer’s office have some hope.”

Thomas Oldfield and Jeffrey Helsdon, the attorneys representing Farris, were just as pleased. They said they were working the case pro bono. They anticipated an appeal to the state’s high court.

“For many years, Mr. Washam has wanted to play a role in the successful recall of an elected official,” Helsdon said, referring to Washam’s past failed attempts to recall opponents who defeated him in elections.

“Here in this Christmas season, he’s getting his wish.”

SOMETHING TO SAY

The court action started with preliminaries. Felnagle asked the two sides whether they had any issues to discuss before he heard arguments.

Washam had something to say. He complained that Farris had been allowed to amend her recall petition, adding dates, correcting typos and including a sworn oath.

One correction referred to the date when Washam took office. Originally, it said January 2008, which was wrong – Washam was elected in November 2008, and took office in 2009. Farris’ attorneys fixed the reference. Washam said they had no authority to do so.

“I do not know how a recall process could even function if a recall petitioner could go out and constantly amend her petitions to do whatever she wanted,” Washam said. “I do not believe there should be any amendment allowed.”

The argument had a larger point: Prohibiting amendments would kill the petition, and force Farris to start over.

Oldfield weighed in briefly. The court rules allowed minor amendments, he said. Washam had been informed of the corrections weeks earlier, giving him ample time to respond.

Felnagle quickly disposed of the issue. The corrections were permissible.

“These are not amendments that make any great difference in the outcome of this case,” he said. “On total, there’s no disadvantage to Mr. Washam. I’m allowing the amendment, so we’ll proceed with the argument.”

Washam objected. Felnagle noted it.

ARGUMENTS

Felnagle gave each side 20 minutes to argue. Oldfield spoke first and briefly, referring to handwritten notes.

The recall charges were stated in the petition, he said. They described a pattern of misconduct. They relied on records of three independent county investigations.

The charges could reflect malfeasance or misfeasance, Oldfield said, emphasizing the word “or.” Both words were defined in state law as, “any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.”

The words had additional meanings in law, Oldfield said. The point was subtle: it meant that the charges could apply in several ways, but they didn’t have to apply all at once. Oldfield wrapped up.

Washam was next. Though not an attorney, he represented himself “pro se,” as he has many times over the past 30 years in local courts.

Throughout the hearing, he stood near the judge’s bench, armed with reams of paper.

“What I’m going to do is go through the charges,” he said.

Charges in a recall petition had to be concise, he said. Farris’ petition didn’t meet that test at any level.

Washam began to read aloud, peering at a sheet of paper. His words came from one of his legal briefs filed with the court. He read the footnotes aloud, citing prior Supreme Court cases.

“Sixty-six Washington 2nd at 158, in re Wade, 115 Washington 2nd at 549,” he said. “Each charge, if there is more than one charge, must meet factual and legal sufficiency. The recall petition doesn’t do that, and I think that probably my time is up.”

Felnagle offered Oldfield a chance for rebuttal. Washam interrupted. Felnagle allowed it.

“All she cites is malfeasance,” Washam said, referring to Farris. “She never ever cites misfeasance. Period. You can examine her document from head to toe.”

Washam referred to the county investigations.

“They have no authority of law,” he said. “These were one-sided, biased things, done without the participation of all parties involved. There was no due process of any kind given the elected official.”

Oldfield offered a swift reply.

“There was clearly authority of law for those investigations,” he said. “There were complaints that had been filed. The county had an obligation to do it. Those investigators made their conclusions. There’s plenty there to set out a prima facie case. It’s up to the voters to determine that. Mr. Washam certainly has the opportunity to convince the voters that he’s right and we’re wrong.”

Washam jumped in again.

“Those reports are hardly worth the paper they’re written on because of the fact that they were done in such a biased manner,” he said. “If we don’t have concise charges, then the recall – the whole process would be allowed to have such an abuse of it that it would be terrible.

“The recall petition is not adequate, and it should be dismissed.”

Felnagle took his turn. He started by explaining the ground rules.

“The court does not decide the truth of the charges,” he said. “Rather, the sufficiency of the charges and whether the charges meet the criteria for recall. That’s an essential point to remember.”

A finding of sufficiency had to identify Washam’s alleged acts in a way the public could understand, Felnagle said. The public had to be able to make an informed decision, and the elected official had to be able to give a meaningful response.

The greater difficulty, Felnagle said, was judging intent. Acts alone weren’t enough – Washam had to intend them, and the acts had to be significant, beyond the bounds of his discretion. If he had good legal reasons for his decisions, the recall charges would be insufficient.

Felnagle moved to the individual charges.

The first was retaliation. The recall petition contended that Washam wrongly retaliated against an employee who complained about Washam’s behavior and actions.

The charge is based on an independent county investigation that concluded Washam retaliated against the employee, Sally Barnes.

Felnagle referred to that investigation, which included multiple employee statements, public records and interviews with witnesses.

“There is a clear statement by numerous sources, which is detailed and set out,” Felnagle said. “There’s a motive involved in that Mr. Washam is intricately involved in the facts that are stated.”

Felnagle approved the first charge: legally and factually sufficient.

CAPTAIN AHAB

He moved to the second charge: waste of government resources.

The charge refers to Washam’s two-year crusade for a criminal investigation of his predecessor, Ken Madsen.

Washam has repeatedly asked local and state officials to support the investigation. Two county prosecutors and the state attorney general have declined to do so, and told Washam that investigation is unnecessary. Washam argues that they’re wrong.

Felnagle said the facts were plain.

“Again factually, there are numerous sources. There’s a detailed setting out of what the claims are and what the action was,” Felnagle said. “It provides factual sufficiency, in my opinion.”

The test of legal sufficiency was a different question. Felnagle posed it rhetorically: Did Washam overstep his authority by continuing to push for a criminal investigation?

“There’s a good argument for it being within his area of discretion, and for it being legally justifiable for him to have pursued the issue, up to a point,” Felnagle said, and paused.

“And that point is where you begin to get legal advice and you begin to reject or ignore the legal advice.”

Felnagle drew a comparison to a moody captain and a famous book.

“In ‘Moby Dick,’ Captain Ahab is obsessed with getting the white whale,” he said. “He’s obsessed with getting the white whale to the extent that he’s willing to take down his ship and his crew in the process.”

Felnagle looked at Washam and extended the analogy.

“When warned about the lack of legal basis, the elected official continues on seeking his white whale, even to the extent that he’s going to jeopardize his crew, and in this case, the taxpaying public.

“Any elected official is required to be a good steward for the public’s money,” the judge said. “To not do so is to not perform your duties in a proper manner. It’s not following or discharging the duty required of you as a public elected official.”

Felnagle found the second charge factually and legally sufficient.

THIRD, FOURTH AND FIFTH

The third charge echoed the first, and cited similar circumstances and records. It accused Washam of failing to protect employees from further retaliation. Felnagle gave it a legal pass.

The fourth charge accused Washam of repeatedly invoking religion in the workplace. Felnagle shot it down.

“The activity described is both sporadic and short-lived,” he said. “I don’t think it’s legally sufficient.”

The fifth charge accused Washam of refusing to participate in three county investigations of his conduct. Records of those investigations state that Washam refused to be interviewed by investigators and refused to provide relevant records.

“Factually, again it’s documented from numerous sources, first-hand sources,” Felnagle said. “The real question is intent. Was there an intent to not participate, to not help in the investigations?”

Felnagle cited the efforts of investigators who repeatedly sought responses from Washam and got none.

“This charge is sufficient both factually and legally,” he said.

PASSING MUSTER

The final charge accused Washam of discharging his duties in an unlawful and biased manner, violating his oath of office.

“You can look at this charge and say it’s just a catch-all,” Felnagle said. “On the other hand, you can look at it and say what it really is, is the essence of all these charges: that this whole office is run in a biased and completely improper manner.

“The end result would be an office that’s so permeated with bias such as to not be able to carry out their official duties or at least not be able to carry them out to the extent necessary to protect the public interest.”

“I’m not making a determination whether any of this is true,” Felnagle concluded. “I’m making a determination as to whether the charges themselves, when viewed, are legally recognizable as reasons for recall.”

Felnagle ruled again. The final charge was legally and factually sufficient.

The outcome: five of the six charges had passed legal muster. Washam stood silently, looking down at his notes.

All that remained was paperwork. That meant drafting a ballot synopsis to be approved by the court within 15 days.

Felnagle said the synopsis would have to include minor corrections, such as renumbering the charges and adding date references to each. State recall law allows such corrections by the courts.

Felnagle asked if the parties wanted to add any input to that process.

Washam spoke.

“Your honor, you’re manufacturing,” he said.

Felnagle tried to speak, “I’m not …”

Washam interrupted.

“You are manufacturing,” Washam said. “You are giving dates.”

“I’m not manufacturing,” Felnagle said. “I’m doing what the law requires me to do.”

“Well, it’s gonna go out to the people, and the people are going to interpret it as fact.”

“Thank you,” Felnagle said, with a tone that silenced Washam. “I’ve asked for your input. That’s input.”

Washam objected. Felnagle noted it.

LAST VOLLEY

Court adjourned. Felnagle left the chamber. Washam wasn’t finished. He moved toward Oldfield and Helsdon and said something. Helsdon’s eyes widened. He raised his voice and pointed.

“Is that a threat, Mr. Washam? Is that a threat?”

Washam walked away.

A few moments later, Oldfield said Washam had asked him a question: “Do you own property in Pierce County?”

Washam donned his trench coat and left the courtroom, escorted by Borck and Ugas.

Outside, a mini-mob of protesters waited.

“Do the public a favor and resign,” one protester shouted after him.

Sean Robinson: 253-597-8486 sean.robinson@thenewstribune.com

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