Bocek v. Bayley
Bocek v. Bayley
Opinion of the Court
This is an appeal from an order of the King County Superior Court holding that certain recall charges
The plaintiff-appellants, John Bocek, Vera Fredrickson, and John Hale, are three members of the 5-member board of school directors of Federal Way Public School District No. 210. On or about June 6, 1972, defendants Therese Keisling and the Federal Way School Board Recall Committee filed with the defendant Norwood J. Brooks, as the King County Director of Elections, charges for recall against the three appellants. Pursuant to RCW 29.82.020, defendant Brooks referred the charges to the defendant Christopher T. Bayley, Prosecuting Attorney for King County, for his determination of the legal sufficiency of these charges. Defendant Bayley issued a written opinion in which it was determined that, of several recall charges leveled against the appellants, all but one were legally sufficient. The appellants then commenced this action. The trial court sustained the determination by defendant Bayley that the charges were legally sufficient to support a recall.
The recall charges against the appellants involved allegations of misfeasance and malfeasance while in office, as well as violations of the oath of office, and were essentially as follows: Appellant Bocek was charged with an invasion of privacy in allegedly publishing confidential information of the school district.
Elected officials in the state of Washington may be removed from office only for cause. Gibson v. Campbell, 136 Wash. 467, 241 P. 21 (1925); Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913). Our standards for determining the sufficiency of recall charges alleging such cause were clearly stated in State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 124-25, 492 P.2d 536 (1972) as follows:
First, in determining the validity of recall charges, courts are limited to examination of the charges stated and cannot inquire into factual matters extraneous to the allegations. E.g., State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968). Second, courts must assume the truth of the charges in determining whether legally sufficient grounds for recall have been stated. E.g., Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Third, just as there can be no inquiry into the truth or falsity of the charges, there can be no inquiry into the motives of those filing the charges. Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939). Fourth, recall charges are sufficiently specific if they are definite enough to allow the charged official to meet them before the tribunal of the people. E.g., State ex rel. LaMon v. Westport, supra. Finally, any one sufficient charge requires the holding of a recall election. E.g., Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953).
It is our duty, therefore, to determine (1) whether any one
Sufficient grounds for recall of an elective public officer of this state are the commission of an act or acts of malfeasance or misfeasance while in office, or a violation of the oath of that office. Const, art. 1, § 33 (amendment 8); RCW 29.82.010. These grounds were described in Danielson v. Faymonville, 72 Wn.2d 854, 859, 435 P.2d 963 (1967) as follows:
Misfeasance or malfeasance (often stated as maladministration, misconduct, official misconduct, nonfeasance, or misbehavior in office), have been held to be comprehensive terms and include any wrongful conduct that affects, interrupts, or interferes with the performance of official duty. State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939); State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948). Violation of an official’s oath of office has been described to mean the failure of the officer to perform his duties of office honestly, faithfully, and to the best of his ability. Huntamer v. Coe, 40 Wn.2d 767, 772, 246 P.2d 489 (1952).
Additionally, we have held that “misfeasance” means “the improper doing of an act an officer might lawfully do; or, in other words, it is the performance of a duty in an improper manner.” State v. Miller, 32 Wn.2d 149, 152, 201 P.2d 136 (1948). “Malfeasance” means the commission of an “unlawful” act, or “the doing of an act which the person ought not to do at all.” State v. Miller, supra at 152. In the case of school board members, such conduct would therefore include action taken which is not in the best interests of the majority of the students and constituents of the school district (State ex rel. Citizens Against Mandatory Bussing v. Brooks, supra), and conduct affecting the school district which is unlawful or clearly inappropriate under the circumstances (Danielson v. Faymonville, supra).
With these standards in mind, the question before us is whether the charges leveled against the appellants
The second issue before this court, then, is whether the recall charges, as stated, were sufficiently definite to enable the appellants, as the public officials charged, to respond to and meet these allegations before the public. In this, we conclude that the allegations were clear enough to give the appellants adequate notice of the wrongful conduct charged. All of the charges included the name of the official charged, a specific description of the alleged wrongful conduct, the date the alleged acts occurred, and the allegation that the act constitutes misfeasance, malfeasance, or a violation of the oath of office. As we stated in Danielson v. Faymonville, supra at 858, “[rjecall charges need only contain a statement of the acts complained of, with sufficient definiteness that the one charged may be able to meet them before the tribunal of the people.” Even this broad requirement is to be “liberally construed”. Gibson v. Campbell, supra at 475. Considering each of the recall charges individually, we think them sufficiently definite to apprise these appellants of the allegations leveled against them to enable them to defend their actions before the public.
In concluding as we do, we observe that our limited duty is to determine the sufficiency of these charges; the task of deliberating the actual truth of these charges belongs to the electorate of Federal Way Public School District No. 210. Indeed the success of our democratic elective process and this recall procedure is safeguarded by the constitutional requirement that recall petitions under these circumstances
Having determined that the immediate charges allege sufficient grounds for recall and afford the appellants adequate notice of the wrongful conduct charged, the judgment of the trial court is hereby affirmed.
Hale, C.J., Rosellini, Hunter, Hamilton, and Wright, JJ., concur.
This charge against appellant Bocek reads as follows: “That on or about February 7, 1972, John Bocek, acting as a director of the Federal Way School District No. 210, did distribute and publish to at least one member of the general public a program and evaluation report of the Federal Way Public School District No. 210. That said report contained confidential information regarding individual students with said students’ names of the Federal Way Public Schools, that said report contained embarrassing and confidential information and its publication was damaging to the individuals named therein and not in the best interests of the Federal Way Public School District No. 210 and is in violation of the Revised Code of Washington and the oath of office of said board member and is an act of malfeasance.”
These charges against the three appellants were as follows: “That on January 12, 1972, [and January 24, 1972,] (naming Bocek, Fredrick-son or Hale) as a Federal Way School Board Director, participated in a closed and secret meeting of the Board of Directors of the Federal Way Public School District No. 210, wherein John Bocek, Vera Fredrickson, John Hale and R. M. Malan [board members] secretly deliberated and made decisions; that said decisions and deliberations were required to be public as set out in the Revised Code of Washington 42.30, generally known as the Open Public Meeting Law, that said action is a violation of the law punishable by a fine of $100.00 and that the deliberations and decisions reached are void. That said actions were not in the best interest of the Federal Way School District and is a violation of the oath of office and is an act of malfeasance.”
This charge against the three appellants was as follows: “That on March 25, 1972 (naming Bocek, Fredrickson or Hale) as a director of the Federal Way School Board, participated in declaring an impasse in negotiation and requested the superintendent of public instruction to appoint an advisory committee pursuant to RCW 28A.72.060, that in the subsequent mediation process (naming Bocek, Fredrickson or Hale) refused to bargain in good faith and (naming Bocek, Fredrickson or Hale) rejected the assistance of the advisory committee, which action destroyed the relationship between the Federal Way School Board and the Federal Way Education Association and said action was not in the best interest of the Federal Way Public School District No. 210 and is in violation of the Revised Code of Washington and the oath of office of said board member and is an act of misfeasance or malfeasance.”
This charge read as follows: “That on or about the 26th day of May 1972, (naming Bocek, Fredrickson or Hale) as a director of the Federal Way Public School District No. 210, did participate in and vote affirmatively for the employment of George Cochran to be superintendent of the Federal Way School District No. 210 with actual knowledge that said George Cochran was not qualified for said position or able to discharge the duties of the office of superintendent, which action was not in the best interests of the Federal Way School District and is in violation of the Revised Code of Washington and the oath of office of said director and is an act of malfeasance.”
Concurring Opinion
(concurring)—I concur in this case only because a majority of this court believe we are bound by State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968), and the authority upon which it is based. We there held that courts are limited to examination of the charges stated and cannot inquire into factual matters extraneous to the allegations. Although our proceedings for recall are theoretically to be for cause, the interpretation LaMon and other cases place on this provision of our constitution means that if a petitioner phrases the charge correctly, a vote on recall will occur, regardless of whether actual cause on the issues stated exists and whether there is, in fact, any truth to the charge.
This procedure readily lends itself to public officials being made subject to recall where the real issues for dissatisfaction are not publicly stated. The general public is denied both an opportunity to hear debate on the real issues involved and the opportunity to make an intelligent choice on these issues. I cannot believe this was the intent of the original drafters of our constitution. It makes no sense to affirm that we have recall for cause and then not have at least a prima facie showing of the truth of the allegations made before the courts. The remedy, as suggested in Cudihee v. Phelps, 76 Wash. 314, 331, 136 P. 367 (1913), may be for the legislature to more specifically state
Stafford, J., concurs with Utter, J.
Reference
- Full Case Name
- John Bocek Et Al., Appellants, v. Christopher T. Bayley Et Al., Respondents
- Cited By
- 27 cases
- Status
- Published