PORT ORCHARD — A Kitsap County judge ruled Tuesday that a recall action can proceed against two Quilcene fire commissioners, though she threw out all but one count.
“It is unclear at this point to me who the prevailing party is,” Superior Court Judge Anna Laurie said after her ruling.
“Although I am going to suggest that it is [the plaintiff’s] since the recall, although it is not as broad as your clients wished, is nonetheless going forward.”
Fire Commissioners Mike Whittaker and David Ward have been under fire for more than a year over allegations of impropriety having to do with the creation of a chief operating officer job for the district and the hiring of Ward for that position.
Laurie ruled that the charges that Whittaker and Ward participated in the falsification of meeting minutes were sufficient and were enough to allow the recall to proceed.
“It cannot be disputed that directing the district secretary to include in the minutes of an open public meeting an event that did not take place creates a prima facie case of misfeasance and malfeasance,” Laurie said.
Recall paperwork was filed June 30 by attorney Peggy Ann Bierbaum after several people told Whittaker and Ward that a recall petition would be filed if the two did not resign, which they did not.
Jefferson County Court Commissioner Keith Harper approved all four charges Aug. 18, a decision that was appealed by Whittaker and Ward’s attorney, James Hanken.
Laurie said she was aware that her decision could be appealed by either side and set up a structure where both attorneys can discuss the next steps.
Bierbaum said signatures on the recall petitions could begin to be collected in January.
Petitions would be due 180 days after that to the county Auditor’s Office.
Bierbaum said an election could be possible in April.
Laurie ruled three charges as legally insufficient for a recall action:
■ The creation of a chief operating officer position by Whittaker and Ward is a prerogative of a board, she said.
■ Approving a retroactive start date for the position was factual, she said.
This charge was legally insufficient for a recall action because it is a common practice of companies to backdate the start of a new employee to accommodate the fiscal year, she said.
■ That Ward continued to work in the chief operating officer position after the new chief was hired was legally insufficient because such directions are under the purview of the board, Laurie ruled.
Since Laurie ruled that three of the four counts of the original recall action were insufficient, she rewrote the ballot synopsis for the recall.
The wording for Ward is:
“Should Commissioner David Ward Jefferson County Fire Protection District Number 2 be recalled from office for misfeasance, malfeasance and violation of his oath of office because it is alleged and the voters should determine if he, on or about Feb. 9, 2010 directed the district secretary to alter the minutes of the Fire District meeting held on Feb. 8, 2010 to reflect the adoption of Resolution 20-02 which authorized the district’s participation in the Public Employees Retirement system even though the resolution was not adopted or discussed at the meeting, and secured the signatures of the other two commissioners outside of an open public meeting.”
Laurie’s synopsis for Whittaker had similar wording.
Laurie is involved because of the illness of Jefferson County Superior Court Judge Craddock Verser, who has pancreatic cancer, and the absence of a consistent replacement judge.
Before the hearing, Laurie said the arguments were starting from scratch, stating, “This is one of the cases when the parties each get a second bite at the apple.”
When Bierbaum asked how long each side would get to speak, Laurie said attorneys could speak as long as they needed but hoped to have the case finished by the end of the day.
“This is an important matter,” Laurie said.
“You should talk until you see my eyes glaze over.”
Arguments put forth by Hanken and Bierbaum took just more than an hour.
Laurie made her ruling after a recess.
The amount of signatures needed for a recall election to proceed are based on the results of the last election.
Both commissioners were unopposed in their last election, with Whittaker receiving 554 votes in 2009 and Ward receiving 510 votes in 2007.
For a recall election to go forward, proponents must gather 194 signatures to recall Whittaker and 179 to recall Ward.
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Jefferson County Reporter Charlie Bermant can be reached at 360-385-2335 or at charlie.bermant@peninsuladailynews.com.
