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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Recall of ) ) TROY KELLEY, Auditorfor the ) No. 

### 9'1843-1 State ofWashington, ) ) En Bane Respondent. ) ) ) Filed 

### MAR 03 2016



## ----
WIGGINS, J.-PetitionerWill Knedlik filed a recall petition againstWashington StateAuditor Troy Kelley, charging him with misfeasance, malfeasance, and breach of his oath ofoffice. The superior courtjudge dismissed the recall petition, finding the charges factually and/or legally insufficientfor submission to the voters. We affirm. FACTSAND PROCEDURAL HISTORY Kelley is the elected auditorofWashington. Knedlikfiled a recall petition against Kelley with the secretary of state. In the petition, Knedlik charged Kelley with misfeasance, malfeasance, and breach of his oath of office for (1) violating the residency requirements of his office, (2) failing to adequately investigate and report alleged illegal activity by Sound Transit, and (3) pressuring employees ofthe auditor's office to hire Jason JeRue without following proper employment procedures. The secretary ofstate served a copyofthe petition on Kelley and on the attorneygeneral'sIn the Matterofthe RecallofTroyKelley, No. 91843-1 office, which prepared the ballot synopsis for the charges. After preparing the synopsis, the attorney general petitioned the superior courtfor adetermination on the sufficiency ofthe charges and for approval ofthe ballot synopsis. As the attorney general's petition was pending, Knedlik filed a motion in the superior court for a determination that "a constitutional and statutory vacancy in the Office ofWashington StateAuditor has legally existed from January 16, 2013

...." In this motion, Knedlik argued that Kelley never legally took office because he never intended to fulfill the residency requirements of his office when he took his oath of office. The superior court heard argument on the motion and the recall petition. The superior court ruled orally and then issued a written order denying the motion and dismissing the recall petition charges. The superior court first ruled that Knedlik's motion for the court to rule that there is a vacancy in the auditor's office was not properly before the court as part of a recall action. The superior court then dismissed each of the recall petition charges as being factually and/or legally insufficient to proceed to the voters. After the superior court dismissed the recall petition as insufficient, Knedlik moved to reconsider and the superior court denied the motion. Knedlik now appeals the superior court's order dismissing tl1e recall petition to our court, arguing that the superior court erred in its factual and legal rulings. 1

1 Knedlik also argues that the superior court erred in denying his motion for a determination that avacancy exists in the office ofWashington State auditor. Knedlik's argument is mooted by our decision below regarding the sufficiency ofthe recall petition's vacancy charge. 2In the Matterofthe RecallofTroyKelley, No. 91843-1 ANALYSIS The Washington Constitution provides the general framework for the recall of elective officers: 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 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 ofoffice, stating the matters complained of,

... is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed underthe laws ofthis state, and the same officer shall call a special election as provided by the general election laws ofthis state, and the result determined as therein provided. CONST. art. I,§ 33 (first alteration in original). "Misfeasance" and "malfeasance" mean "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty." RCW 29A.56.110(1). "Misfeasance" also means the "performance of a duty in an improper manner," RCW 29A.56.110(1)(a), and "malfeasance" also means the "commission of an unlawful act," RCW 29A.56.110(1 )(b). A "violation ofthe oath of office" is the "neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law." RCW 29A.56.110(2). Courts act as a gateway to confirm thatthe charges in a recall petition alleging malfeasance, misfeasance, or violation of oath of office are factually and legally sufficient before they are placed before the voters. RCW 29A.56

..140; In re Recall of Kast, 144 Wn.2d 807, 813-15, 31 P.3d 667 (2001). Courts do not evaluate the truthfulness ofthe charges but ensure that public officials are not subject to frivolous
or unsubstantiated charges. RCW 29A.56.140; In re Recall ofLindquist, 172 Wn.2d 120, 131-32, 258 P.3d 9 (2011).

3In the Matterofthe RecallofTroyKelley, No. 91843-1 The proponent of the recall petition bears the burden of establishing that the charges alleged in the recall petition are both legally and factually sufficient. See In re Recall ofSun, 177 Wn.2d 251, 255, 299 P.3d 651 (2013). The superior court makes the initial sufficiency determination, subjectto de novo review by this court. See RCW 29A.56.140; In re Recall ofTelford, 166Wn.2d 148, 154, 206 P.3d 1248 (2009). We determine sufficiency from the face ofthe recall petition. In re Recall ofTelford, 166 Wn.2d at 153. Factual sufficiency requiresthatthe recall petition concisely states each charge with '"a detailed description including the approximate date, location, and nature of each act' that, ifaccepted as true, would constitute a prima facie case ofmisfeasance, malfeasance, or the violation ofthe oath of office." In re Recall ofSun, 177 Wn.2d at 255 (quoting RCW 29A.56.110). Each charge in the recall petitionmust demonstrate that the petitioner "knows of identifiable facts that supportthe charge." In re Recall of Reed, 156Wn.2d 53, 58, 124 P.3d 279 (2005). Further, charges arefactually sufficient only ifthey enable the voters and the challenged official to make informed decisions. In re Recall ofWasson, 149Wn.2d 787, 791, 72 P.3d 170 (2003). "Legal sufficiency requires that the petition state, with specificity, substantial conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of office." In re Recall ofSun, 177 Wn.2d at 255. To establish legal sufficiency for each charge, the recall petition must identifythe "standard, law, or rule thatwould makethe officer's conduct wrongful, improper, or unlawful

...." In re Recall ofAckerson, 143 Wn.2d 366, 377, 20 P.3d 930 (2001). "If recall is sought for acts falling within the

4In the Matterofthe Recall ofTroyKelley, No. 91843-1 elected official's discretion, the official must have acted with a manifest abuse of discretion." In re RecallofSun, 177 Wn.2d at 255. Underthese rules, each ofthe charges in the recall petition is factually and/or legally insufficientto proceed to voters. I. The residency charge is factually insufficient Citing RCW43.09.010 and article Ill, section 24 oftheWashington Constitution, the recall petition charges Kelley with taking his "Oath ofOffice in knowing violation of the statutory [and constitutional] residency requirement for validly undertaking and holding said office

...." Article Ill, section 24 of the Washington Constitution-titled "Records, Where Kept, Etc."-reads as follows: The governor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner ·of public lands and attorney general shall severally keepthe public records, books and papers relating totheir respective offices, at the seat of government, at which place also the governor, secretary ofstate, treasurer and auditor shall reside. Similarly, RCW 43.09.010 states that "[t]he state auditor shall reside and keep his or her office at the seat of government." The seat ofWashington's government is in the city of Olympia. State ex ref. Lemon 

## v. Langlie, 45 Wn.2d 82, 95-96, 273 P.2d 464 (1954). The recall petition states the Kelley is in violation ofthese provisions because, instead of residing in Olympia, Kelley "appears to maintain his actual residence

... in Pierce County (at which Pierce County location the Federal Bureau of Investigation (FBI) searched his true residence during March, 2015

... )." Without ruling on the



### 5In the Matterofthe Recall ofTroyKelley, No. 91843-1 legal sufficiency of this charge, 2 we hold that this charge is factually insufficient because the recall petition provides no facts showing that Kelley is in violation of any residency requirements for his office. The recall petition relies solely on assumptions drawn from unspecified FBI searches that Kelley's home is in Tacoma. Even accepting the recall petition's allegations as true, they provide no basis for determining whether Kelley resides in Olympia. Because Kelley has a home in Tacoma does not necessarily mean that Kelley does not have a residence in Olympia. The petition does not specify whether Kelley also maintains a home in Olympia and which home, if not both, constitutes Kelley's "residence" in terms of RCW 43.09.010 and article Ill, section 24. Because the recall petition is devoid of any facts on whether Kelley "resides" in Olympia, this charge is factually insufficient.

II. The failure to adequately investigate and report alleged illegal activity by Sound Transit charge is both legally and factually insufficient. The recall petition also charges Kelley with "both fail[ure] to investigate [Sound Transit's] ballot-title fraud, as required by state statutes, and also fail[ure] to report it to the attorney general, as also required by statute
...." The recall petition asserts that these failures show that Kelley violated his oath of office by not faithfully

2We do notassess the legal sufficiency ofthis charge because it is inadequately briefed. See In re Recall of Washam, 171 Wn.2d 503, 515, 257 P.3d 513 (2011) ("'[w]e do not consider claims insufficiently argued by the parties"' (alteration in original) (quoting State 

### v. Ford, 137 Wn.2d 472, 477 n.1, 973 P.2d 452 (1999))). We therefore express no opinion on the definition ofthe term "reside"within RCW43.09.010 and article Ill, section 24 orwhat it meansto "reside at" within article Ill, section 24. We do note, however, that authorities analyzing where a person "resides" when the person owns more than one home reach differing conclusions in different contexts. See, e.g., Nat'! Gen. Ins. Co. 

### v. Sherouse, 76 Wn. App. 159, 163-64, 882 P.2d 1207 (1994); see also 1987 Op. Att'y Gen. No. 24. The recall petition never cites or discusses this analysis. 6In the Matterofthe Recall ofTroyKelley, No. 91843-1 discharging the duties of his office to the best of his abilities. However, this charge is both legally and factually insufficient to proceed to the voters because the statutes cited bythe recall petition do not impose a duty on Kelley to investigate and report on Sound Transit, and because the recall petition fails to identify any facts showing how Kelley violated his oath of office in relation to Sound Transit. 

### A. This charge is legallyinsufficient This charge is legally insufficientbecausethe petitioner, on theface ofthe recall petition, fails to meet the burden of identifying a "standard, law, or rule" underwhich Kelley's actions could be considered "wrongful, improper, or unlawful

... ."In re Recall of Ackerson, 143 Wn.2d at 377. Specifically, the recall petition cites RCW 43.88.160(6)(e), RCW43.88.160(6)(f), and RCW 43.09.050(3) as creating dutiesthat Kelley failed to fulfill as auditor, thus violating his oath of office. Butthese statutes do not impose a duty on the auditorto investigate Sound Transit. First, the recall petition does not establish that chapter 43.88 RCW imposes a duty on the state auditor's office to investigate Sound Transit. The recall petition asserts that Kelley failed in his duties by neglecting to "[p]romptly report any irregularities to the attorney general," citing RCW 43.88.160(6)(e). Entitled "State Budgeting, Accounting, and Reporting System," the legislature passed chapter43.88 RCW for the purpose of establishing "an effective state budgeting, accounting, and reporting system for all activities ofthe state government
...." RCW 43.88.010. The dutyto report irregularities to the attorney general under RCW43.88.160(6)(e) arises from the auditor's duty to "[r]eport to the legislature the results of current post audits that have been made of the financial transactions of each agency." RCW
7In the Matterofthe RecallofTroyKelley, No. 91843-1 43.88.160(6)(a) (emphasis added). Underthis chapter, "agency" is defined as "every state office, officer, each institution, whether educational, correctional, or other, and every department, division, board, and commission, except as otherwise provided in this chapter." RCW 43.88.020(4). Therefore, RCW 43.88.160(6)(e) applies only to audits offinancial transactions ofstate agencies. Sound Transit is a not a state agency; rather, Sound Transit is a local government entity. See RCW 81.112.010, .100; see also Sane Transit 

## v. Sound Transit, 151 Wn.2d 60, 85 P.3d 346 (2004). The recall petition makes no argument and does not establish that the definition of "state agency" applies to Sound Transit
as a local government entity. Indeed, chapter 43.09 RCW supports the distinction between a local governmententity and state agency, as it provides differentdefinitions for each. Compare RCW 43.09.260(3? (defining "local governments"), with RCW 43.09.290 (defining "state agency"). Because SoundTransit is not a state agency, the state auditor's office has no dutyto "[p]romptly report any irregularitiesto the attorney general" in relation to Sound Transit under RCW 43.88.160(6)(e). Second, the recall petition does not establish that RCW 43.88.160(6)(f) and RCW 42.40.020(3) impose a duty on the state auditor's office to investigate Sound Transit. The recall petition asserts that Kelley failed to "'investigate improper governmental activity under chapter42.40 RCW,"' quoting both RCW 43.88.160(6)(f)

3 While RCW 43.09.260(1) states that the "examination of the financial affairs of all local governments shall be made at such reasonable, periodic intervals as the state auditor shall determine," Knedlik does not allege this section as a legal basis for recall in the recall petition with supporting factual allegations. Because we consider only the specific charges made in the recall petition for legal and factual sufficiency, we do not consider this section. See In re Recall ofWasham, 171 Wn.2d at 515 ("'[w]e do not consider claims insufficiently argued by the parties"' (alteration in original) (quoting Ford, 137Wn.2d at 744 n.1)). 8In the Matterofthe Recall ofTroyKelley, No. 91843-1 and RCW 42.40.020(3). Chapter 42.40 RCW is the state employee whistleblower protection act. This act protects state employees who report improper governmental activity and gives the auditorthe discretion to determine which reports to investigate. See RCW 42.40.020(2), (3), .040(1)(b). The act defines "[i]mproper governmental action'' as an improper action taken by a state employee in performance of that employee's official duties. See RCW 42.40.020(2), (6)(a). This definition, in context of · the statute as a whole, reveals that the duty to investigate improper government activity arises only in the setting of state agencies and state employees. As stated above, Sound Transit is a local government entity and not a state agency. Therefore, the auditor's office has no duty to "investigate improper governmental activity under chapter 42.40 RCW" in relation to Sound Transit. Because the recall petition fails to demonstrate that there is a legal duty for Kelley to investigate and report on Sound Transit by identifying an applicable "standard, law, or rule," this charge is legally insufficient. See In re Recall ofAckerson, 143 Wn.2d at 377. B. This charge is factuallyinsufficient The recall petition states that "in every financial-and-other audit conducted since a nominal assumption of office, the nominal Auditor of our state has failed to identify both ballot-·title fraud on all residents ofthejuniortaxing district

... ,and also
a further fraud to evade an $800 million ceiling on long-term debt as negotiated with King, Pierce and Snohomish [C]ounties so asto gain any ballotaccesstovoterswithin those counties

...." Even assuming that the recall petition adequately identified a legal standardthat required Kelleyto investigateSoundTransit, this charge isfactually

. ' ' insufficient because it does not state any specific facts regarding how Kelley
9In the Matterofthe RecallofTroyKelley, No. 91843-1 deficiently performed llis duties by failing to discover Sound Transit's alleged fraud. Tllere is no information on tileface oftile recall petition thatwould allowtilevoters to evaluate tilis cllarge if it were on tile ballot. See In re Recall ofTelford, 166Wn.2d at 154. In briefing to our court, tile petitionerallegesthat Kelley "falsely signed" a2013 audit of Sound Transit and failed to follow tile "Generally Accepted Government Auditing Standards" in carrying outtllat audit. But tile petitioner's briefing contains no {pets sllowing tllat Kelley failed to follow accounting standards, or wllat constitutes "falsely signing" an audit. Even ifwe were to consider tllese additional allegationscoming from beyond tile face oftile recall petition--tile petitioner still does not sllow any specificfacts thatwould makethis chargefactually sufficientto proceed to voters.

Ill. The hiring charge is factually insufficient Finally, the recall petition charges that "the nominal Auditor of our [S]tate has grossly abused his position of public trust in order to pressure members of the professional staff within the Office of the State Auditor to hire a crony of his, Jason JeRue

... without vetting him by means of standard qualification processes for state employment (according to news reports quoting from emailsformallyobtainedthrough public disclosure requests by the press but not as yet made public), also in violation of his Oath ofOffice duties, state law, best practices and due professional care ...." This charge is factually insufficient because the recall petition fails to specify any facts to support this charge and fails to show that the petitioner has adequate knowledge of the facts necessary to support this charge. There are no facts in the recall petition that would allow voters to make an informed decision on this charge.
10In the Matterofthe RecallofTroyKelley, No.**91843~1** While newspaper accounts are "not per se insufficient to show some form of knowledge of the facts," In re Recall ofReed, 156 Wn.2d at 58, mere reference to unidentified news reports and a complete lack of reference to any specific actions by Kelley is insufficient. See In re Recall of Sun, 177 Wn.2d at 256 (misfeasance, malfeasance, and violation ofoath ofoffice chargeswere sufficient becausetheywere supported by media reports along with "numerous" declarations from witnesses, emails, letters, and other documents); In re Recall of West, 155 Wn.2d 659, 666, 121 P.3d 1190 (2005) (misfeasance charge was factually sufficient because petitioner's knowledge was based on newspaper articles containing lengthy transcripts of conversations supporting the official's misconduct, which the official admitted to having). CONCLUSION Each charge in the recall petition is factually and/or legally insufficient to proceed to the voters. Therefore, we affirm the superior court's dismissal ofthe recall petition.



### 11In re the RecallofTroyKelley, No. 91843-1

WE CONCUR.

12