«Re: Filing of Statement of Charges in favor of the recall of Clark County Council Chair Marc Boldt Dear Mr. Kimsey: This letter shall constitute the ...»
Greg Kimsey, Auditor
1300 Franklin St., #575
Vancouver, WA 98660
June 28, 2016 Via: Hand Delivery
Re: Filing of Statement of Charges in favor of the recall of Clark County Council Chair
Dear Mr. Kimsey:
This letter shall constitute the Statement of Charges in support of the recall of Clark County
Council Chair Marc Boldt pursuant to the Washington Constitution, Article 1, Sections 33 and
34 and RCW 29A.56.110. Councilor Boldt has committed acts of malfeasance, misfeasance and has violated his oath of office while serving as a Councilor on Clark County’s Board of County Councilors.
This Statement of Charges is verified under oath, states the acts complained of, and provides facts supporting the acts and is signed by the person making the charge. The undersigned is a legal voter residing in Clark County, Washington.
I. Background In November, 2014, voters in Clark County voted to increase the number of the Clark County Board of County Councilors (“BOCC”) from three to five members. Marc Boldt was elected to one of the new positions as council chair and took office on January 1, 2016. The other new position was filled by Julie Olson. Councilors Jeanne Stewart and David Madore continued serving as Councilors along with the undersigned.
Upon election, Councilors take the oath of office. The oath for Mr. Boldt was as follows:
I, Marc Boldt, do solemnly swear, that I am a citizen of the United States and the State of Washington. That I will support the Constitution of the United States and the Constitution of the State of Washington and I will to the best of my judgment skill and ability truly, faithfully, diligently, and impartially perform the duties of Council Chair as proscribed by the laws of the State of Washington.
Clark County is a home rule charter county. The position of Clark County Councilor is created by the Clark County Charter. The role of the Council is to be the “policy-determining body of the county”. Charter Sec. 2.4. The enumeration of the legislative powers of the council “shall not be construed as limiting the legislative powers of the council.” Id.
Summary of charges in favor of the recall of Councilor Marc Boldt - 1 The Clark County Board of County Councilors is the legislative branch of Clark County’s government. The BOCC must exercise its legislative power by adoption in enactment of ordinances, resolutions and motions. Charter, Sec. 2.4.
Clark County’s county manager is part of the executive branch of Clark County’s government.
Id. Sec. 3.1. The County Code provides that the County Administrator is the “chief administrative officer of county government.” Clark County Code (“Code”) 2.15.010.
Pursuant to Code 2.15.040 the County administrator1 shall generally advise, assist, act as agent for and be responsible to the Board of Commissioners2 for the proper and efficient conduct of the administrative affairs of the county as are placed in his/her charge by the board of commissioners. He/she shall be responsible for the enforcement of ordinances, orders, or regulations as directed by the Board of commissioners.
II. Summary of Charges
Councilor Boldt has committed malfeasance and misfeasance as Chair of the BOCC as follows:
(1) he knowingly violated the law by violating the Open Public Meetings Act, RCW 42.30, in an effort to have Clark County hire an outside investigator to undertake an investigation of Councilor Boldt’s political rival, David Madore; (2) he breached his fiduciary duty by grossly wasting public funds by awarding a contract to The Columbian newspaper to serve as the County’s paper of record despite the fact that it was neither the low-cost bidder nor the most widely circulated eligible paper. Rather the contract was a quid pro quo reward to The Columbian for favorable coverage regarding Councilor Boldt and attacks on his rival Councilor Madore and to punish the other lower-cost most-widely-circulated bidder, The Reflector, for negative coverage regarding Councilor Boldt, Stewart and Olson -- and objective, more favorable, coverage of Councilor Madore; (3) he purposefully limited the access of his political rivals on the BOCC from advice from the County Prosecutor’s office; and (4) he abdicated his statutory legislative responsibilities by permitting the executive branch of Clark County to unilaterally dissolve a County department without authorization or action taken in public by the legislative authority of the BOCC.
III. Acts and Omissions Constituting the Statement of Charges
1 The Charter uses “County Manager” but the Code which was in effect before the most recent Charter amendments uses “County Administrator”, the nomenclature is immaterial as the description of authority remains essentially the same and does not affect the issues raised in this Petition.
2 Likewise, the County Code uses the previously name “Board of Commissioners”. However the term now used is “Board of County Councilors”. Despite the new nomenclature – for instant purposes, its function is identical.
Summary of charges in favor of the recall of Councilor Marc Boldt - 2 During numerous hearings concerning the consideration of Clark County’s periodic review of its Comprehensive Plan, Councilor David Madore expressed concern that the accuracy of the testimony made to the BOCC by Planning Director Oliver Orjiako and Deputy Prosecutors Chris Horne and Christine Cook was knowingly false. Specifically, Councilor Madore alleged that Director Orjiako, and Deputies Horne and Cooke intentionally misled the BOCC with respect to what needed to be considered and the measures and methods the County needed to take when determining various alterative versions of the proposed comprehensive plans then under consideration. In support of his concerns, Councilor Madore produced a document which he supplied to other members of the BOCC and posted on the County’s website alleging with specific detail the date, content, nature and effect of the erroneous testimony offered by Deputies Cook and Horne and Director Orjiako. Councilor Madore repeatedly asked for an inquiry into the correctness of his allegations.
Although not intended as such, these inquiries were nevertheless used by various employees of Clark County, including Director Orjiako, to cry foul and play the victim. On March 2, 2016, the local union representing County employees wrote a letter to Clark County Human Resources Director Francine Reis claiming Council Madore had defamed Clark County staff. Similarly, in a letter dated March 15, 2016, Director Orjiako, through his attorney, initiated a Local Government Whistleblower and Equal Employment Opportunity discrimination complaint claiming that Councilor Madore publicly harassed and demeaned him because of the Director’s support of a particular version of the proposed comprehensive plan that was then under consideration by the BOCC. These allegations were designed to deter and hinder public oversight of public employees by the officials (in this case David Madore) elected by the people to do just that.
Because the unfounded allegations of bias were impacting Councilor Madore’s ability to oversee County employees and projects, he asked that an independent investigator be approved to examine his allegations against Orjiako, Horne and Cook. Instead, on or before March 19, 2016, just four days after Director Orjiako filed his complaint, an outside investigator, Rebecca Dean, was contacted in order to look into Councilor Madore’s conduct – not that of Horne, Cook, and Orjiako. Only, six days later, on March 25, 2016, County Manager Mark McCauley signed the engagement letter proposed by Dean indicating the assent of the County to the proposed terms.
Between March 2, 2016, when the allegation regarding Councilor Madore was first made by the Union, and March 25, 2016, when the contract was executed by Manager McCauley, there were a total of 7 meetings noticed and convened by the BOCC. Not one of these meetings addressed hiring an investigator to look into Councilor Madore’s conduct.
The BOCC is a governing body and except in limited circumstances such as executive sessions, its meetings must be public pursuant to the OPMA. The BOCC exercises its legislative power by adoption of ordinances, resolutions and motions. Neither the County’s Charter nor it’s Code provide that the manager, a member of the executive branch, can sua sponte, call for an investigation of a member of the legislative branch. In fact, contracts such as the Dean contract must be posted on the County’s website for a period of one week so that any Councilor may “pull” them for discussion. Contracts then identified for individual consideration can then only be approved by a majority vote of the Council at a public meeting. Code 2.09.030(2). It is only Summary of charges in favor of the recall of Councilor Marc Boldt - 3 after this approval that the County Manager then may execute the contract thereby binding the County.
The decisions to conduct the investigation and to retain an investigator occurred outside of an open meeting, and thus were made in violation of the OPMA. Actions taken outside of properly noticed and published meetings are void. In other words, the County Manager has no authority to independently call for an investigation or contract with an investigator to enquire into the workplace harassment allegedly occasioned by Councilor Madore. Rather, such action must be authorized by the BOCC.
Subsequently, on April 20, 2016, at a Board of County Councilors work session where all Councilors were present, including myself, the Dean contract was discussed. During this
meeting, Manager McCauley admitted that:
It is true that the Board of County Councilors had discussed hiring an attorney to investigate the allegations against Director Orjiako and Prosecutors Horne and Cook. But the actual contract with Dean was the opposite of that described post hoc by Manager McCauley. Rather than the allegations against Horne, Cook and Orjiako, the Dean contract turned the investigation on its head and it was the allegations against Councilor Madore that were to be the subject of the investigation.
Manager McCauley further admitted that while the Code requires a contract such as this to be posted, because he had “unanimous support of the Board to move ahead I elected just to sign it and get on with it.” There was no unanimous support because neither Councilor Madore nor I supported hiring an investigator to look into the actions of Councilor Madore.
When asked by Councilor Madore if the BOCC had taken action in open public meeting to authorize the investigation contract, Councilor Jeanne Stewart admitted that it had happened secretly in an executive session, in violation of the OPMA. The law is very clear that all Councilors are entitled to be notified of all executive sessions. However, neither Councilor Madore or I were informed of any executive session wherein it would be contemplated that Councilor Madore was to be the subject of an investigation. Thus the executive session admitted to by Councilor Stewart had been secretly and illegally conducted in violation of the OPMA.
At this same April 20, 2016 work session, Councilor Madore asked if there was “an open meeting action taken to award a contract to this legal firm.” Councilor Madore further stated he was unaware of any such action in the minutes. Neither Councilors Madore nor I were aware of the contract until it appeared in The Columbian newspaper. Deputy Horne admitted that
Neither Councilor Madore nor I were aware of the contents of the engagement letter including that Councilor Madore would be a target of the investigation.
From the circumstances described above it is objectively reasonable to conclude that Councilors Boldt, Stewart and Olson met separately to discuss the contract and the topics which were to be investigated and directed Manager McCauley to execute the Dean contract illegitimately on behalf of the County. Councilor Stewart admitted to an “executive session” being held, and any such session was not noticed to the public or two of the five Councilors (Madore and me), and would have been illegally performed as a stand-alone executive session outside of a noticed open public meeting. Further, no action can be taken in an executive session – and according to Councilor Stewart’s statements regarding this meeting – action was taken therein. Since funds were expended on the investigation without proper Board consideration or authorization, Councilors Boldt, Steward and Olson violated their fiduciary duty not to grossly waste public funds.
Councilor Boldt violated the OPMA by not requiring approval of the investigation at a meeting of the Board. Councilor Boldt violated his oath as Councilor by not only permitting the investigation to be started against another legislative member by the executive without proper authority but also by failing to correct this problem when caught. By permitting the expenditure of funds for an improperly authorized action, Councilor Boldt knowingly breached his fiduciary duty to the citizens of Clark County. These are recallable offenses.
A violation of the OPMA is a legally sufficient ground upon which to support a recall petition specifically when allegations are made that a contract was entered into outside of a public meeting and where the executor exceeded the scope of their legal authority. Councilor Boldt violated the OPMA by holding a secret and closed meeting without notice to the public or two of the five Councilors to award a contract to investigate Councilor Madore.3 Further, the expenditure of funds without proper authority is sufficient grounds for recall. When Councilor Boldt authorized Manager McCauley to expend funds to hire the investigator and did not rescind that authorization when it was raised at a meeting of the BOCC, he committed an act of misfeasance, malfeasance and violated his oath of office.