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2017, 10-31 Study Session M1NlJTFS SPOKANE VALLEY COUNCIL MEETl (i STUDY SESSION Spokane Valley City Hall Council Chambers Spokane Valley,Washington October 31, 2017 Attendance: Councilmembcrs Staff Rod Higgins, Mayor Mark Calhoun, City Manager Arne Woodard,Deputy Mayor John Hohman, Deputy City Manager Caleb Collier, Counci]rncnaber Cary Driskell, City Attorney Pam I laley,Councilmember Mike Stone, Parks & Recreation Director Mike Munch, Councilmember Chelsie Taylor,Finance Director Ed Pace, Councilmember Erik Lamb, Deputy City Attorney Sam Wood, Councilmember Ryan Kipp,Traffic Engineer Ray Wright, Senior Tntl]lic Engineer Carolbelle Branch_ Public Information Officer Christine Bainbridge, City Clerk Mayor Higgins called the meeting to order at 6:00 p.m. ROLL CALL: City Clerk Bainbridge called the roll, all Coruicilmernl ers were present ACTION"ION ITEM: 1. Second Reading Proposed Ord nanee 17-011, Property Tax ChuLsie Taylor After C ity Clerk Bainbridge read the ordinance title, it was moved by fepuiy Mayor Woodard andseconded to approve Ordinance 417-011 levying regular property taxes for 2018.After Finance Director'layTaylor went over the background of levying regular property taxes, and that this ordinance, as in several prior years, does not increase the property taxes by 1% as permitted by law; Mayor I iiggins invited public comment Mr. Tony La7..anis said the thinks we have enough taxes and he hopes Council says no to this. There were no other public comments,and Counci I member Pace explained that a yes vote on this ordinance means not increasing taxes, and said he is happy to vote yes. Vote by Acclwnation; In Favor.' Unanimous. Oppose • None_ Motion carried NON-ACTION ITEMS: 2. Legislative Agenda Update— Mark Calhoun,Cary Driskell__Erik Lamb City Manager Calhoun :said drat this topic has been heard twice previously; and at an earlier October meeting,there was Council consensus to add two additional items and to bring that redraft back to Council for continued review and discussion.He said one item was to support the continued prohibition of marijuana home-growing and retention of local authority, and the second itein was to protect parental rights regarding decisions regarding their children. Mr. Calhoun said that our legal staff has drafted the language on those two issues, which was reviewed by our lobbyists at Gordon Thomas Honeywell, and then reviewed by the local delegation;and he explained that tonight's draft legislative agenda is an amalgamation of those of oits. Concerning added item to "Suppoit Continued Prohibition of Recreational Marijuana I Tome Growing," Deputy City Attorney Lamb mentioned that he did not include language about having the power to prohibit as when he discussed this item with our legislators, they felt it weakened our argument, Councilmember Munch mentioned about us not getting the funding we were supposed to get and that we wanted to fix that bctorc moving to home growing, and Mr. Lamb said he included those issues in our comments to the slate, and the legislators seemed to convey a very precise argument. Council Sturdy Session_ 10-3]-X117 Page I 4)13 Approycd by Cwineil; 11-H-2017 City Attorney Driskcll read the added item concerning "Protecting Parental Rights Regarding Decisions Involving their Children,"and said he received another letter from the Center for Justice,which Mr.Driskcll distributed to Couneilnietrlbers; and said that if we were to look forward to having an ordinance,that would potentially violate state law. Mr. Driskell said Council has every right, however, to include this on their legislative agenda, which is currently scheduled to come before Council for a motion at the November 14 meeting. Councilmember 1 taley asked how much money has been spent so far researching this, and Mr. Driskell said that he spent about twenty-one and a half hours, and Mr, J.amb spent about six and a half hours,so an estimate would he$2400. There was Council consensus to move this forward to the November 14 Council agenda far a motion consideration, Mr. Calhoun added that he will also be setting up a meeting with the local legislators for some time in December. 3. 8°`and McDonald Update Ryan.Kipp,John l lohman Mr. Holtman explained that we wanted to look at this problem intersection °nee niore and review what chaugcs have occurred; said that since our last discussion of this topic, there have been no serious crashes there that would generate a police call and/or police report; and added that tonight staff will discuss speed limits. Mr. Kipp went through the PowerPoint explaining staff's recommended action plan; i.e. to reduce the speed limit to 30 miles-per-hour on 8th between Pines and Sullivan; said we will continue monitoring the intersection; he went over the speed limit process, including that section of the City's Code as well as [he slue statutes and administrative policies and the MU7'CD(Manual on Uniform Traffic Control Devices) guidelines,and roadway characteristics. 'There was discussion about the different speed limits on different parts of 8" and that it is confusing to citizens; the idea of making the entire road 25 mph; comments about what the neighbors would support, and finally comment from Mr, l lohman that we must follow guidelines for setting speed limits, and cannot set limits based on citizen preference, as we need to aim for falling within five miles of that 85'1'percentile. Councilniember Pace said he would still like a community meeting with traffic, police and residents on that strec t as well as intersecting streets. Councilmember Wood questioned the street classification, and Mr. Hohman said that would be a separate topic of discussion as we are not proposing any change to road classification.There was Council consensus to move forward with the 30 miles-per-hour and to bring forward a resolution amending the master speed limit schedule to reflect that change. It was mentioned that resolution is scheduled for the November 14th Council meeting. 4. HAWK Signal Use Instructional Video—Ryan Kipp, John Hohman Deputy City Manager. Hohman said this instructional video is a cooperative effort with us and the Library to inform members of the public about the HAWK signal,as there have been concerns about this signal and how it works. Mr. Kipp noted there was no charge for putting this video together,and he extended thanks to members of the Library District,and to our Public information Officer Ms.Branch for their part in putting this video together. After the video was played, Mr. Hohman said it is our intention to have this on our website and to direct people to t if they have questions about the operation of the signal, Councilmember- Collier asked if we have any data on auto versus pedestrian, and Mr. K ipp said he would have to research that. 5, Spokane Valley Official Newspaper—Chris Bainbridge, Cary Driskell After City Attorney Driskell and City Clerk Bainbridge went over the history and information concerning the City's official newspaper, alter which there was Council consensus to stay with the status quo and not make any changes. fo_ Advance Agenda —Mayor I lions Couneilmennber Munch said he realizes there is not much we can do about protestor conditions, and he suggested removing that from the pending list on the Advance Agenda. Council agreed. Councilmember Pace asked for an analysis of 4th Avenue to include hearing from fire, police and our traffic engineer, and to have that same request for 8th Avenue, and to also have meetings with residents and neighbors, Council Study Session° 10-31-2017 Page 2 of 3 Approved by Council: 11-14-2017 7. Information Only The (a)Ele'lion bright Council Meetings was briefly mentioned during the City Manager Comments; and the (4) Department Quarterly Reports were f-or information only and were not reported or discussed. $. Council Check-in Mayor Higgins Deputy Mayor Woodard presented Mayor I liggins with a vest for further protection of the Mayor. 9. City Manager Comments—Mark Calhoun City Manager Calhoun mentioned the Election Night CouncillMieeting..s memo in the Information Only section of tonight's agenda; said next Tuesday is an election day and the Council meeting for that night has been cancelled; he said we met East year on election tright and it stirred some controversy among some people_ Mr_ Calhoun said the memo sets out the Council meeting history on election nights, and when election nights are held in odd years, Council has never met; but when election nights are held in even years, Council has met, even during presidential elections, He noted this will be brought up annually. It was moved by Deputy Mayor Woodard, seconded(end unanimously agreed to adjourn, The meeting adjourned at 6:51 p.m. 1 •f_ err . ATTE'T` I R ig ` • Christine Bainbridge, City Clerk 1 Council Study Session: 10-31.2017 Page 3 of 3 Approved by Council: 11-14-2017 Cary Driskell From: Rick Eichstaedt <ricke@cforjustice.org> Sent: Tuesday, October 31, 2017 4:33 PM To: mayor/councilrnembers Cc: Cary Driskell Subject: Follow to Letter from CenterforJustice re "Parental Rights" Ordinance Attachments: Re Recall of Pepper_pdf: Follow-up to Letter re Parental Rights Ordrnance_pdf Please find attached a follow-up (and attachment) to the letter sent by the Center for Justice last week regarding the "'parental rights"' ordinance. Rick Eichstaedt Attorney 35 West Main, Suite 300 Spokane, Washington 99201 Phone: (509) 835-5211 Fax; (509) 835-3867 This e-mail message is intended only for named recipient, It contains information that may be confidential, privileged, attorney work product, or otherwise exempt from disclosure under applicable law. If you have received this message in error, are not a named recipient, or are not the employee or agent responsible for delivering this message to a named recipient, be advised that any review, disclosure, use, dissemination, distribution, or reproduction of this message or its contents is strictly prohibited. Please notify us immediately that you have received this message in error, and delete the message, Thank you. 1 hi nk li?fo re you prink. 1 CENTER TOR JUSTICE EmrowERLNGPEOPLE&COh4 uN1LIES October 31, 2017 Spokane Valley City C(auncil 11.707 E. Sprague Av, Ste 106 Spokane Valley, WA 99206 RE: Additional Information regarding Proposed "Parental Rights" Ordinance Dear Council Members: This letter is a follow-up to the letter sent last week regarding the proposed "Parental Rights" Ordinance. I am attaching a copy of a Washington Supreme Court decided on October 26 that found that the failure of a City of Black Diamond Council member to heed advice of the city attorney was grounds for recall, Thank you for consideration of this letter. Sincerely, CENTER FOR JUSTICE Rick Eichstaedt Executive Director/Senior Attorney Cc: Spokane Valley City Attorney 35 W NIA IN, Snj BOO • SPOli:AN3 , wA 00201 . 509,835,52. I - wwW.CFORJUSII<-'r.<rx.c /if-1-CE\ This opinion was Med far record IN CLERKS OFFICE SOPKEIE Cir STATE OFyLAEINIRE at , L rr"1onakbeji, f i 7 014,44A4 C9 4111 IAAAArri „ cHtEFAtrace .."� SUSAN L.' RRLN SUI IN THE UPI ME COURT OF THE TATE SUPREME �� � NO. 94574-8 RE THE MATTER OF RECALL CHARGES AGAINST CITY OF BLACK DIAMOND COUNCIL MEMBER B1C PATRICIA PEPPER Filed OCT 2 5 2017 GORDONMcCLO , J.—Robbin. Taylor filed a statement of charges seeking recall of Black Diamond City council member Patricia Pepper, The superior court ruled that four of those charges were factually and legally sufficient to support a recall petition. Pepper appeals. We affirm the trial court's decision with regard to the first thj.•co charges, but reverse with regard to the fourth charge. FACTS In. November r 2015, Pepper defeated opponent Ron Taylor husband of Robbin Taylor) in an election for Black Diamond City Council in King County. Clerk's Papers P) at.273, Black Diamond is anon-charter--code city with a mayor- city council form of government. CP at 287-88. The current mayor is Carol Benson. CP at 140. There are five seats on the city council, held by Pepper, Erika Morgan, Brian Weber, Tamie Deady, and Janie Edelman. Id, Pepper "ran on a platform of In re ,Recall of Patricia Pepper,No. 94574-8 change consistent with two other council inembers and opposed the two other council members who campaigned for the 'status quo'." CP at 271. Beginning in January 2016, a chasm developed with Mayor Benson and council members Deady and Edelman on one side, and a majority of the city council—Pepper, Morgan, and Weber—on the other. See CP at 128. Disputes occurred, primarily regarding proposed changes to the council rules of procedure set forth in Council Resolution 16-1069 (R-1069), which were supported by Pepper, Morgan, and Weber. Id. Pepper, Morgan, and Weber tended to vote as a block. CP at 271, Specific disputes included whether the mayor or the council had the authority to hire and fire the city attorney, CP at 103; whether the council was approving minutes for council meetings, CP at 18.; who had the right to control city council meetings and agendas, CP at 16; whether the council had the ability to modify or breach city contracts entered into by former council members,ers, CP at 19; and whether council members could miss meetings without consequences, among other issues, CP at 17. Several council conflicts revolved around "Master Development Review Team" " IDRT contracts for two large development projects planned in Black Diamond that had been approved by Mayor Benson and former council members. CP at 14, 113-19. The bulk of the conflicts arose as follows: Pepper, Morgan, and Weber voted to enact 8-1069. CP at 51. R-1069 provided several amendments to the council 2 In re Recall of Patricia Pepper, No, 94574-s rules of procedure. CP at 52-81, Mayor Benson and council members Deady and Edelman opposed the changes to the rules. See CP at 51, 128. Under the advice of. then city attorney Carol Morris, Mayor Benson refused to enforce R-1069. CP at 128, After Pepper, Morgan, and Weber passed R-1069, they voted to fire attorney Morris. See CP at 128-29. Mayor Benson hired emergency interim city attorney Yvonne Ward, See CP at 129. Ward submitted two memoranda to the council, concluding that R-1069 violated the Black Diamond Municipal Code (BDMC and the Open Public Meetings Act (OPMA), chapter 42.30 RCW, CP at 121-38. The council had also received advice from prior city attorney Morris and from the city's risk management pool that the resolution could create liability for the city if council members violated the OPMA. CP at 37, 45-47, 155-56, The concern centered on the provisions in R-1069 that mandated a minimum of three council members (a majority of the council) for each standing committee, rather than two, CP at 122- 25. Pepper had also received legal advice from an outside law firm indicating that these committees could trigger OPMA requirements, given that a majority of the council would be attending those committee meetings. CP at 100. Upon passing R-1069, Pepper and a majority of the council made decisions to alter contracts regarding the MDRT, CP at 236-37. Ultimately, the council's decision to enact R-1069 and revisit the MDRT contracts, among other actions, led 3 In re Recall of Patricia Pepper, No. 94574-8 to a lawsuit: M► T contractor CCD Black Diamond Partners LLC (Oakpointe) filed suit against the city and council members Pepper, Morgan, and Weber. CP at 158- 89. The suit alleged violations of the OPMA, which has led to litigation and costs for the city; the case is ongoing. Id.; Verbatim Record of Proceedings (May JO, 2017) (VRP) at 57. During this time, Pepper was a member of council standing committees, CP at 15-16. Allegations were made that Pepper, Morgan, and Weber held secret council and standing committee meetings conducting city business in violation of the OPMA, CP at 12-16. PROCEDURAL HISTORY On April 7, 2017, after approximately a year and a half of tensions, Robbin Taylor filed a statement of charges with the King County Elections Division, requesting Pepper's recall, CP at 7-22. On April 25, 2017, the King County prosecutor's office initiated this case pursuant to RCW 29A.5 ,1.30 and prepared the following ballot synopsis: 1. Pepper, as part of a council majority, violated the Washington. State Open Public Meetings Act, chapter 42.30 RCW, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation. 2. Pepper, as part of a council majority, hindered the city's ability to receive legal advice by hiring and firing city attorneys. 4 In re Recall of Patricia Pepper, No. 94574-8 3. Pepper, as part of a council majority, refused to attend council meetings and failed to approve minutes and enact necessary legislation related to vacancies and comprehensive planning. 4, Pepper, as part of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city's ability to provide essential services. 5. Pepper conspired with two other council members to change Master Development Review Team contracts resulting in threatened legal action against the city, forcing the city into arbitration. CP at 1-5. On May 10, 2017, a hearing was held in King County Superior Court to determine the legal and factual sufficiency of the recall charges and the adequacy of the ballot synopsis. CP at 372-73. Robbin Taylor was represented by counsel, Pepper proceeded pro se, and the prosecutor provided input regarding the ballot synopsis language. Id, The court found the second allegation and a portionof the third allegation (that Pepper "failed to enact necessary legislation related to vacancies or comprehensive planning") legally and factually insufficient. Id But the court ruled the remainder of the allegations in the ballot synopsis were factually and legally sufficient. Id, Accordingly, the court modified the ballot synopsis language as follows: 1. Pepper, as part of a council majority, violated the Washington State Open Public Meetings Act, chapter 42.30 R W, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation. 5 In re Recall of Patricia Pepper, No. 94574-5 2. Pepper, as part of a council majority, refused to attend council meetings and failed to approve minutes, 3. Pepper, as part of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city's ability to provide essential services, 4. Pepper, as part of a council majority, improperly voted to change Master Development Review Team contracts resulting in threatened legal action against the city. CP at 3 75. Pepper filed a nod cc of appeal. CP at 384. Robbin Taylor does not challenge the trial court's findings of insufficiency, so only the four modified charges listed above are at issue. ANAIsSIS i. Standard of Review Article 1, section 33 of the Washington State Constitution provides citizens with a substantive right to recall an elected official.' A recall petition must be both Specifically: 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 states or of the political subdivision 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, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for 6 In re Recall of Patricia Pepper',No. 94574-8 legally and factually sufficient. Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). Additionally, "Mlle charge, taken as a whole . , must he specific enough to give the elected official meaningful notice of the particular conduct challenged and why it is grounds for recall." In re Recall of Eoldt, 187 Wn,2d 542, 549, 386 P.3d 1104 (2017) (citing In re Recall of West, 155 Wn.2d 659, 667, 121 P.3d 1190 (2005) (citing In re Recall of Lee, 122 \ `n,2d. 613, 618, 859 P.2d 1244 (1993))). Notably, in recall cases, c01_urt8 do not consider the truth of the charges, only the sufficiency, RCW 29A.56,140; in re Recall of Lindquist, 172 Wn.2d 120, 131-32, 258 P.3c1 9 (2011); West, 155 Wn.2d at 662, As we have repeatedly stated, "It is the {voters, not the courts, who will ultimately act as the fact finders." West, 155 Wn.2d at 662 (citing RCW 29A,56.140; In re Recall of'Vast, 144 Wn.2d.807, 813, 31 P.3d 677 (2001)). This court reviews the superior court decision in the recall action de novo, In re Recall of Ward, 175 Wn.2d 429, 435, 282 P.3d 1093 (2012) (citing In re Recall of T for-cl, 166 Wn.2c1 148, 154, 206 P.3d 1248 (2009)), but will "affirm the trial court's factual conclusions so long as substantial evidence exists supporting the trial 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. WASH. CONST. art, I, § 33. in re Recall of Patricia Pepper,No. 94574-8 court's conclusions," In re Recall of Harrison, 144 Wn.2d 583, 587, 30 P.3d 474 (2001) (citing Miller v. City of Tacoma, 138 Wn.2d 318, 323, 979 P,2d 429 (1999)). Importantly, recall statutes are construed in favor of the voter, and mere technical violations will not block a petition. West, 155 Wn.2d at 663; .In re Recall of asham, 171 Wn.2d 503, 510, 257 P.3d 513 (2011). Voters should be left to "`draw reasonable inferences from the facts; the fact that conclusions have been drawn by the petitioner is not fatal to the sufficiency of the allegations.' Bolcit, 187 Wn2d. at 549 (quoting West, 155 Wn..2d at 665 (citing Chandler, 103 Wn.2d at 274)). A. Legal Sufficiency A recall petition is legally sufficient if it "'state[s] with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office' and there is no legal justification for the challenged conduct.2I (alteration in original) (quoting Chandler, 103 Wn,2d at 274). The burden is on the petitioner to identify the "'standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful,"' In re Recall of Bolt, 177 Wn.2d 168, 181, 298 2 RCW 29A.56.110(1) defines "`misfeasance' and ""malfeasance"' as "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty." Additionally, 'misfeasance"' also means "performance of a duty in an improper manner," and "'malfeasance"' means "the commission of an unlawful act," RCW 29A.56.110(1.)(a)-(b). "'Violation of the oath of office' means `°ttxc neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law," RCW 29A.56.110(2), 8 • In re Recall of Patricia Pepper-, No. 94574-8 P,3d 710 (2013) (quoting In re Recall of Ackerson, 143 Wn,2d 366, 377, 20 P.3d 930 (2001)). I. Factual Sufficiency A recall petition must also be factually sufficient, A petition is factually sufficient when the charges, taken as a whole, "'identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of rnisfeasaneo, malfeasance, or a violation of the oath of office,' Ward, 175 Wn,2d at 435 (quoting Chandler, 103 Wn.2d at 274), "in this context, 'prima facie' means that, accepting the allegations as true, the charge on its face supports the conclusion that the official committed misfeasance, malfeasance, or violation of the oath of office." In re Recall of Wade, 115 Wri.2d 544, 548, 799 13.2d 1179 (1990) (citing Teaford v, Howard, 104 Wn.2d 580, 586, 707 P.2d 1327 (1985)). Additionally, "[w1here commission of an unlawful act is alleged, the petitioner must show facts indicating the official had knowledge of and intent to commit an unlawful act." Boldt, 187 Wr .2d at 549 (citing Telfi rd, 166 Wn.2d at 158). The individual making the charge must have knowledge of the alleged facts on which the stated grounds for recall are based, RCW 9A.5 .11O; however, this knowledge need not be firsthand, personal knowledge. In re Recall of Reed, 156 Wn.2d 53, 58, 124 P.3d 279 (2005) (citing Acicerson, 143 Wn.2d at 373; Lee, 122 9 In re Recall ol`Patricia Pepper, No, 94574-s Wn,2ci at 617). But mere insinuations, speculation, or a belief that the charges are trite, absent other evidence, is not enough. Chandler, 103 Wn.2d at 274; Reed, 156 Wn.2d at 58. IL Charge 1: The violation of the OPMA charge is legally and factually sufficient Charge I states, "Pepper, as part of a council majority, violated the Washington State Open Public Meetings Act, chapter 42.30 RCW, by convening and conducting closed meetings without public notice and by entering into private agreements to prepare and approve legislation." Cl' at 375. This charge centers on alleged OPMA violations. As discussed above, Pepper, as part of El majority of the council, voted to enact R-1069. That resolution contained several amendments to the council rules of procedure, CP at 5181. Under the advice of then city attorney Morris, the mayor reused to enforce R-1069. Subsequently, the council majority, including Pepper, voted to fire Morris. See CP at 12.8- 9. The mayor then hired emergency interim city attorney Yvonne Ward; Wardprovided memoranda to the council, concluding that 8-1069 violated both the FJMC and the OPMA. CP at 121-38. Morris and the city's risk management pool also advised the council that the resolution could trigger OPMA liability. Cly at 37, 45-47, 155-56. Their advice focused on the R-1069 provisions mandating a minimum of three council members (a majority of the council) for each standing committee—instead 10 In re ]?i call of-Patricia.I'e p81., No. 94574-g of the previous requirement of two. CP at 122-25. Pepper received similar legal advice from an outside law firm. CP at 84-86. The superior court found this charge legally and factually sufficient based on (1) Ward's legal memoranda, (2) evidence that Pepper received legal advice regarding the potential illegality of the conduct, and (3) evidence of OPMA violations occurring after the legal advice was provided. VRP at 55-56. Pepper, however, argues that Mlle record is devoid of any evidence: 1 that Ms. Pepper attended any non-public meeting at which a majority of Council members were present, and/or (2) that Ms, Pepper knew her actions were contrary to the OPMA, particularly where Ms. Pepper was acting in accordance with legal advice given to the City concerning compliance with the OPMA. Br. of Appellant at 7. We need not decide whether every single one of Robbin Taylor's factual allegations suffices. Instead, the question is whether the charge as a whole should go to the voters. And on this record, the answer is yes: key allegations supporting this charge sufficed. We therefore agree with the trial court, CP at 381-82, that this charge is legally and factually sufficient. To be sure, Robbin Taylor relies largely on two legal memoranda (the Ward memoranda, exs. 13, 14), and the allegations presented in these memoranda are general,, the e-mails are not provided, and a referenced 40-page document is absent from the record. 0? at 121-38. And while the recall petitioner need not always have 11 In re ,Recall o Parr{tcia Pepper, No. 94574-8 personal, firsthand knowledge of facts. alleged, there must be some basis for the petitioner's belief that the allegations are true. See Lee, 122 n, d at 616-17, In thiscase, however, these memoranda are not the only basis for the charge. Robbin Taylor also provides other evidence, such as exhibit 3, CP at 29-31, This is an c-mail that provides comments to proposed changes to the council rules of procedure and asks, "[AIN we all still confirmed with resolve to knock [Edelman] out of any chairmanship of any committee?" CP at 31 (formatting omitted), Robbin Taylor also cites exhibit 8 in support of this charge. CP at 88. Exhibit 8 is an undated document entitled "A Plan" that Pepper possessed during a council meeting. The "Plan" contains a detailed list of action items to be accomplished with tasks assigned to various people; it identifies Pepper, Morgan, and Weber by name; and it lists, among other things, the "plan" to "Substitute the Agenda (On Pat's PC) Action: Need agenda handouts."id. (formatting omitted). Robbin Taylor argues that exhibit 8 discusses items that constitute "'action.'" under the OPMA. Br, of Re-sp't at 16-18 (citing Wood v, Battle Ground Sch. hist., 107 Wn. App, 550, 558, 27 P.3d 1208 (2001)), Construing the recall statute in favor of the voter and allowing the voters to draw reasonable inferences from ail of these facts, we agree with the trial court that this OPMA-related charge 1 is factually sufficient. 12 In re Recall ll of Patricia Pepper, No. 94574-8 Charge 1 is also legally sufficient. If Pepper did e-mail with both Morgan and Weber (a majority of the council), as Robbin Taylor alleges, and if they did discuss changes to council rules, as Robbin Taylor• alleges, such conduct would likely constitute council "action" in violation of the OPMA. RCW 42.30.020(3) (defining "action" for OPIVIA purposes as including, but not limited to, "receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions"). It is certainly true that this court has held that "the passive receipt of c-mails ' and other one-way forms of communication does not, by itself, amount to participation in a meeting because such passive receipt of information does not demonstrate the necessary intent to meet." Citizens All,for Prop Rights Legal Fu!u1 v. San Juan County, 1842 Wn.2d 428, 444, 359 P,3d 753 (2015). And the only specific e-mail referenced in Ward's memoranda wassent by Morgan. But as discussed above, Robbin Taylor also presented numerous other facts from which voters could draw the inference that Pepper participated in OP1v1A violations, Because Robbin Taylor specifically details alleged violations of the OPMA and provides evidence of legal advice indicating knowledge of potential OPMA violations, the trial court correctly ruled that charge I is legally sufficient. 13 In re Recall ofPafrkeia Pepper, No. 94574 III. Charge 2: The refusal to attend council meetings and failure to approve meeting minutes charge is both legally and factually sufficient Charge 2 states, "Pepper, as part of a council majority, refused to attend council meetings and failed to approve minutes," CP at 375. A, ReAsal to attend council meetings This charge also contains several subparts and multiple allegations. Robbin Taylor argues in part that Pepper colluded with two other council members to prevent meetings and thereby violated her duty as a council member. Br, of esp't at 21. Pepper generally responds that she reasonably believed that nothing in the law or council rules made her failure to attend council meetings illegal. Br. of Appellant at 35. Pepper's response does not answer Robbin Taylor's allegation, Robbin Taylor's allegation did not depend on the notion that Pepper's failure to attend was itself criminal or illegal, Instead, Robbin Taylor alleges that Pepper's actions violated her duty as a council member, Robbin Taylor also alleges that Pepper violated her duty as a council member when she colluded with two other council members to prevent meetings from taking place. Pepper's assertionthat she reasonably believed absences were legal does not answer this allegation and therefore does not negate the intent element of a recall petition. Itis undisputed that Robbin Taylor regularly attended council meetings and can therefore assert personal knowledge of Pepper's attendance or absenteeism. Br. 14 In re Recall of Parricia Pepper•, No. 94574- of Resp't at 20; CP at 274, 1n addition, Pepper never denied missing any of the meetings listed in Robbin Taylor's brief. Further, as noted above, Robbin Taylor is not arguing that absences justify recall, but rather that Pepper violated her duty as a council member by preventing meetings from taking place, and that this justifies recall, We agree with the trial court that this charge is factually sufficient. This charge is also legally sufficient. RCW 29A.56.110, the recall statute, does not require an act to be unlawful in order to form a legally sufficient basis for recall. Instead, it says, "'Misfeasance' or 'malfeasance' in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty . . . [, and] 'misfeasance' in office [additionally) means the performance of a duty in an improper manner." RCW 9A,56.110(1)(a)-(b). This statute also permits a recall petition to be based on "`[v]iolation of the oath ofoffice,' meaning the "neglect or knowing failure . . . to perform faithfully a duty imposed by law," RCW 29A.56,110(2). Robbin Taylor alleges Pepper's actions arc a "violation of the oath of office" because "{p]urposefully defeating quorums to obstruct the functioning of the City is a neglect to perform faithfully her duties as a member of the Black Diamond City Council." Br. of Rep't at 21. Based on a plain language reading of RCW 29A.56,110, we affirm the trial court's ruling that this charge is legally sufficient. 15 In pe Recall of Patricia Pepper,No. 94574-8 B. Failure to approve meeting inutes Other portions of this charge are also sufficient, Forexample, Robbin Taylor further alleged that Pepper, along with the majority of the council, failed to approve city council meeting minutes. Although the fact that no minutes have been approved for certain council meetings does not specifically point to Pepper, the audio recording of the October 6, 2016 council. mcctin —cited by both parties—supports this factual allegation, This portion of the charge is also legally sufficient. RCW 42.32.030 states, "[M]inutes of all regular and special meetings except executive sessions of such boards; commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection." (Emphasis added.) A series of relevant Washington laws and Black Diamond City Council Rules define additional responsibilities regarding minutes, including: s ROW 35 .12.110: "A journal of all proceedings shall be kept, which shall be a public record," is Black Diamond City Council Rules of Procedure 2.3: "Minutes. The City Clerk shall cause to be prepared action minutes of all of the Council meetings, which meetings shall contain an account of all official actions of the Council. . . . No changes shall be made to minutes except by motion approved by a majority of the Council at a properly noticed meeting." (CP at 57.) • Black Diamond City Council Rules of Procedure 3.7: Approval of meeting minutes is a routine consent agenda item unless a council member moves to remove item from the consent agenda for separate discussion and action. (CP at 60.) 16 In re Recall of Patricia Pepper,No. 94574-8 Further, meeting minutes, when drafted, must be approved unless separately taken up and acted on outside the consent agenda process and, as noted above, this process must occu° "promptly," RCW 42,32.030. The allegation of deliberate delay in approving minutes, with no motion to amend per the statute, is legally sufficient. Once again, we agree with the trial courtthat charge 2 is sufficient to go to the voters. IV. Charge 3: The failure to enact a budget charge is legally and factually sufficient Charge 3 provides, "Pepper, as party of a council majority, failed to enact a 2017 budget in violation of state law and instead enacted a temporary budget containing illegal provisions, impairing the city's ability to provide essential services." CP at 375. Robbin Taylor alleges that Pepper and other majority members introduced a substitute budget, without proper notice, at the December 22, 2016, council meeting. Br. of Resp't at 23. Additionally, Robbin Taylor contends that the substitute budget contained illegal provisions and that Pepper attempted to force its adoption. Id. at 24. Robbin Taylor cites exhibit 20, a draft of the Black Diamond City Special Council minutes for December 22, 2016, in support of this allegation. CP at 19, 191- 200. Robbin Taylor's evidence shows that the council eventually passed a temporary, and later a final, budget—keeping all city services funded—but it did so 17 In re Recall ofPafricia Pepper, No. 94574-8 after the deadline provided in ROW 35A,33,070,3 Robbin Taylor alleges that Pepper obstructed the norma] budget process and therefore violated ROW 35A.33.075.4 Robbin. Taylor argues that even though the council ultimately passed a budget, Pepper's wrongful conduct in delaying that passage can still support a recall. Br, of 3 ROW 35A.33,070 provides: The council shall meet on the day fixed by ROW 35A.33,060 for the purpose of fixing the final budget of the city at the time and place designated in the notice thereof. Any taxpayer may appear and be heard for or against any part of the budget. The hearing may be continued from day to day but not later than the twenty-fifth day prior to the commencement of the city's fiscal year. RCW 35A.33.060 (the statute referenced in .070) requires that a "preliminary budget" be made publicly available in advance of the meeting at which the council will "fix[] the final budget.°' It also provides that the council will hold this meeting "on or before the first Monday of the month next preceding the beginning of the ensuing fiscal year" ROW 35A.33.060. 4 RCW 35A33,075 states: Following conclusion of the hearing, and prior to the beginning of the fiscal year, the legislative body shall make such adjustments and changes as it deems necessary or proper and after determining the allowance in each item, department, classification and fund, and shall by ordinance, adopt the budget in its final form and content. Appropriations shall be limited to the total estimated revenues contained therein including the amount to be raised by ad valorem taxes and the unencumbered fund balances estimated to be available at the close of the current fiscal year. Such ordinances may adopt the final budget by reference: PROVIDED, That the ordinance adopting such budget shall set forth in summary form the totals of estimated revenues and appropriations for each separate fund and the aggregate totals for all such funds combined. A complete copy of the final budget as adopted shall be transmitted to the state auditor, and to the association of Washington cities. 18 In re Recall of Patricia Pepper,Nu, 94574-2 Resp't at 23 (citing In re Recall Charges Against Davis, 164 Wn.2d 362, 369-70, 193 P.3d 98 (2008)). The trial court stated that "[tjhe evidence before the court is that Ms. Pepper and her colleagues did not in fact pass a final budget by the deadline [imposed ink RW 35A,33,015." R7' at 64. That court recognized that there was a factual question about who bore responsibility for this failure—Pepper or the majority—but concluded that the constitution places that decision in the hands of the voters, not the court. We agree with the trial court, As noted in Davis, 164 Wn.2d at 370, Pepper's argument that everything worked out in the end is not a defense.' V. Charge 4: The MDR]:T charge is insufficient Charge 4 states, "Pepper, as party of a council majority, improperly voted to change Master Development Review Team contracts resulting in threatened legal action against the city." CP at 375. The superior court ruled that this charge is sufficient. That court concluded that once a developer's permit rights have vested under law, the city council members cannot interfere with those rights merely because they do not think the 5 In Davis, the subject of the recall petition allegedly entered into a private, unauthorized agreement to provide a severance package—the alleged unlawful conduct was not "`cured,'" but the severance package was later voted down in a public meeting. 164 Wn.2x1 at 369. Despite the later vote, charges were sufficient as they alleged that the subject's conduct had the `"potential effect of obligating the Port, Id. 19 In re Recall of Patricia Pepper,No. 94574-5 permits should have been issued, VRP at 65- . The superior court further held that. Robbin Taylor had sufficient personal knowledge to support the charges. Id. at 66. We agree with the superior court's legal conclusions about vested rights. However, we find the evidence presented to support this charge insufficient, Robbin Taylor fails to present the pertinent contract language that created the "vested permit rights" acknowledged by the trial court or even the contract itself id, at 65. Pepper, by contrast, provided a legal memorandum by attorney Jane Koler that approved the council majority's conduct regarding the N1DRT. Br. of Appellant at 44, App. A-1. That legal memorandum cites to the Oakpointe contract's relevant provisions and concludes the contract does not give Oakpointe any final authority over the composition of the. DRT. Id. Without providing the contract that allegedly created the duty at issue in this charge, Robbin Taylor's fourth charge cannot be considered legally sufficient. CONCLUSION We af ,ull in part and reverse in part. The first three charges of the Pepper recall ballot synopsis are factually and legally sufficient. Charge 4, however, is insufficient.6 fi Pepper filed a motion to supplement the record in our court; we deny that motion. Pepper also moved for costs under RAP 14.2-14.3.Pepper,however,is not the substantially prevailing party; her motion for costs is therefore denied. 20 In re Recall of Paan,is Pepper Na, 94574-S r o f i htf VIM CONCUR: -AAA kiV1/1 - - t :// l LQRAZate24121! JPf fi 21