Petitioner: Effort about failure to uphold public trust, not oil terminal
By Aaron Corvin, May 21, 2015, The Columbian
A Vancouver resident has filed two petitions with the Clark County elections office seeking to recall from office Port of Vancouver commissioners Jerry Oliver and Brian Wolfe.
In documents filed Tuesday, Christopher Clifford accuses the two commissioners of malfeasance, misfeasance and violation of the oath of office, including that they “knowingly violated” Washington’s open public meetings law in discussing in closed-door executive sessions a proposal to build what would be the nation’s largest rail-to-marine oil transfer terminal.
Reached by phone Wednesday, Oliver said he hadn’t seen the petition yet and preferred to have the document in hand so he could “read it and reflect on it” before saying anything about it. Oliver accepted The Columbian’s offer to provide him with an emailed copy of the petition, but did not offer any further comment after receiving the petition.
The newspaper left messages on Wolfe’s office and cell phones seeking comment. The messages were not returned by the end of the workday Wednesday.
Meanwhile, the state Auditor’s Office confirmed Wednesday it has received a citizen complaint about the port’s handling of the state’s Open Public Meetings Act.
Successful recall efforts in Washington are rare. “It’s a pretty high bar,” David Ammons, a spokesman for the Washington Secretary of State’s Office, said Wednesday.
Clifford, program coordinator for Clark County government’s Environmental Services Department, said Wednesday his recall petitions aren’t about the oil terminal but about the failure of elected officials to uphold the public’s trust and to fulfill their responsibilities as officeholders.
“It’s not acceptable,” he said.
The recall petitions and complaint to the Auditor’s Office follow a recent series of stories by The Columbian. The three stories, based in part on public records, court depositions and interviews with experts in open government, found a pattern by port leaders of keeping the community in the dark about crucial financial and policy issues before making decisions and of improper use of closed-door executive sessions to hash out safety, environmental and financial issues, among others, meant to be aired in public.
The court depositionstaken of Oliver, Wolfe and Commissioner Nancy Baker stem from a lawsuit filed by Columbia Riverkeeper, Sierra Club and Northwest Environmental Defense Center. The suit alleges the port violated the state’s open public meetings law in discussing and deciding, in 2013, a lease for the oil terminal proposed by Tesoro Corp., a petroleum refiner, and Savage Cos., a transportation company.
The complaint alleges the port excluded the public from at least nine meetings in 2013 before approving the oil terminal lease on July 23. During some meetings, the plaintiffs argue, commissioners discussed matters that did not qualify under state law for closed-door sessions.
The port admits in legal filings it held closed-door executive sessions about the oil terminal contract on seven dates in 2013. However, it denies wrongdoing. The port also argues that it rendered the lawsuit moot by holding a new public meeting on Oct. 22, 2013, before the commissioners revoted to unanimously to approve the lease.
The two recall petitions filed by Clifford center on Oliver, first elected in 2007, and Wolfe, first elected in 2005. Their current six-year terms expire on Dec. 31, 2019, and on Dec. 31, 2017, respectively. Baker is not seeking re-election this year to a third term. Citing certain dates, the petitions say commissioners held at least seven executive session meetings to discuss the proposed oil terminal. The petitions refer to depositions taken of the commissioners. In citing Wolfe’s deposition, the petitions assert the commissioner “admitted that during the numerous and lengthy executive sessions, commissioners discussed scoring matrixes for the proposed oil terminal development … public testimony regarding the oil terminal …discussions regarding the oil rail tragedy that occurred in Canada, safety concerns regarding the oil terminal, and presentations from specific proponents of the oil terminal.”
The petitions also contend Wolfe outlined in his deposition “the extensive and numerous trainings he and the other port commissioners receive regarding the Washington State Open Meetings Act.” In alleging acts of malfeasance, misfeasance and violating the oath of office, the petitions contend that Oliver and Wolfe “knew or should have known that the discussions conducted in executive sessions between February and July 2013 were outside the limited scope of the executive session provisions of the Washington State Open Meetings Act.”
Recall efforts involve several steps. Under state law, “misfeasance” means performing a duty in an improper manner. “Malfeasance” is defined as the commission of an unlawful act. Violating the oath of office generally relates to official duties.
The county prosecutor has 15 days after receiving a charge to formulate a ballot synopsis. Then the prosecutor submits the charge and ballot synopsis to Superior Court. Within 15 days, a Superior Court judge considers whether the charges, if true, amount to misfeasance, malfeasance or a violation of the elected official’s oath of office.
Elected officials may appeal the Superior Court decision to the state Supreme Court. If the case is upheld, the next stage is the petition process. To put a recall measure on the ballot that’s directed at the port commissioners, petitioners would have to collect an amount of signatures equal to 35 percent of the total number of votes cast in the last election for that office, according to Ammons, the spokesman for the Secretary of State’s Office.
The final step is the recall election.
For his part, Clifford isn’t new to attempting a recall election. In 2008, the state Supreme Court decided unanimously to let him move forward with a recall of former Port of Seattle Commissioner Pat Davis.
While the recall failed when Clifford fell short of the signature threshold, his bid to unseat Davis could be considered successful. On the same day the court ruled the recall could proceed, Davis announced she would not seek re-election.
Meanwhile, Tina Watkins, a Vancouver-based program manager for the state Auditor’s Office, confirmed Wednesday that the office has received a complaint about the port filed by Michael Piper, a Vancouver resident and opponent of the oil terminal.
In an email to Watkins and The Columbian, Piper, in outlining his complaint, cited the newspaper’s series of stories about the port’s actions under the state’s open public meetings law.