Mayor David Condon faces first test in recall showdown on Tuesday

A judge will decide this week whether the recall against Spokane Mayor David Condon can continue.

It’s just one step in a process that could take six months or more to reach voters.

But it will likely be the most important.

“Once it’s out there, boy, the fight is on,” said Bill Etter, one of the attorneys who represented former Mayor Jim West ahead of his eventual recall in December 2005. “That was certainly my experience.”

In the past five years, at least 10 recall efforts in Washington have not survived judicial review. But of those that do, most end with the official being removed from office. Seven of the eight recall attempts that have made it to the ballot since 2003 have ended that way, according to records available from county auditors online.

In front of a judge brought in from Yakima County, Condon’s lawyer will defend his handling of former police Chief Frank Straub’s ouster, including sexual harassment claims against the chief by former police spokeswoman Monique Cotton; the failure to turn over records related to the complaint until after Condon’s historic re-election; and his naming of Craig Meidl as Straub’s successor.

• SEE ALSO: TIMELINE: Turmoil at City Hall

Condon will have more legal wiggle room than politicians in other states; revisions to Washington’s recall laws in the mid-1980s place a larger legal burden on petitioners to show their case is not based on rumors or political disagreements. The law also gives judges more authority to stop claims before voter discontent can build, Etter said.

“The Superior Court acts as a gatekeeper,” he said.

Judge Blaine Gibson of Yakima County Superior Court will be that gatekeeper Tuesday. Gibson was appointed late last week to replace Judge T.W. “Chip” Small from Chelan County, and the hearing was delayed a day to Tuesday afternoon in Spokane. Judges are often called in from other counties to avoid the political heat of a recall effort.

Shannon Sullivan, who spearheaded both the successful West recall and an unsuccessful attempt to recall Spokane County Prosecutor Steve Tucker in 2011, said last week she intended to support the effort against Condon though she’s now a Millwood resident. She said she empathized with David Green, the local Democratic Party official and accountant who filed the claims against the mayor.

“Green has a shot,” she said. “I would really hope and pray he does.”

Recall laws rarely used, but specific

The court case that has defined the past three decades of recall efforts in Washington began with garbage.

Moses Lake residents filed a recall petition against a majority of their City Council in 1984 after the council approved a contract with a solid waste company. The company hadn’t provided the lowest bid, but had signed all the right paperwork – a step two companies with lower estimates failed to do.

The petition made it all the way to the Washington Supreme Court, which penned the legal opinion that has guided recall efforts since.

Chandler v. Otto noted revisions to the recall process by the Washington Legislature that “allow recall for cause yet free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations,” wrote Chief Justice Vernon Robert Pearson.

As a result, petition authors – often representing themselves in court – have had to show judges that the alleged conduct of the elected official is not merely a political disagreement, such as who should get a garbage contract. Instead, the acts must show “misfeasance” or “malfeasance” – overt and potentially illegal behavior that interferes with the performance of an elected official’s legally required duties.

Green’s petition against Condon uses media reports and the findings of an independent investigation by Kris Cappel, a Seattle attorney who reviewed thousands of records and interviewed dozens of witnesses about the city’s handling of Straub’s firing. Green alleges violations of the city’s ethics code, the Public Records Act and the city’s policies regarding sexual harassment complaints in his petition, which frequently cites Cappel’s findings. He will represent himself at Tuesday’s hearing.

Condon and the officials named in the report, including City Administrator Theresa Sanders and Assistant City Attorney Pat Dalton, have panned the report. They say Cappel failed to establish intent in the delayed release of public records that showed city officials knew about harassment claims months before the police chief’s forced dismissal and hurriedly transferred his spokeswoman to another department. The administration has also pointed to Cappel’s finding that the city handled Cotton’s complaint according to city policies, though Cappel says record keeping was scant at best and may have been avoided to get around public record laws.

Former City Attorney Nancy Isserlis, who left the city and returned to private practice, has hinted she’ll seek legal action against Cappel for the findings of her report.

Cappel’s investigation adds a wrinkle to the Condon recall effort that wasn’t present in the West campaign. The West recall alleged the mayor misused his office in exchange for sex, and was based largely on records obtained by The Spokesman-Review and news stories about West’s alleged conduct.

Sullivan, a single mother who was spurred by her son to launch a recall petition against West, almost didn’t make it past a judge’s review. Two of her claims were tossed before she reached the point of collecting signatures, but Benton County Superior Court Judge Craig Matheson allowed the charge that West had used the promise of an internship in exchange for sex. West denied the charges and a subsequent criminal investigation ended without prosecution.

“I did not single-handedly remove Jim West. I simply gave the vote to a city. It was the city that did it,” Sullivan said.

Sullivan spent hours in the Gonzaga Law School library educating herself on recall law before entering the courtroom against Etter and other attorneys representing West. Etter, too, said he had to train himself on recall law before representing his client.

“I doubt that you’d find more than three or four individuals that claim to have specific expertise in recall law,” Etter said. “I don’t know that anyone’s making a living off of this.”

Jim King, the attorney who represented Condon in federal court against allegations by Straub that he was denied due process in his forced resignation in September, has signed on to represent the mayor in the recall proceedings. King did not return a call for comment Friday.

After Green’s petition was filed, Condon issued a statement declaring it politically motivated and detrimental to the city’s efforts to move on. In a radio interview last month, the mayor vowed to take legal action against petition supporters.

“I look forward to successfully challenging these frivolous and politically motivated charges. My focus is continuing to work for the people of Spokane,” Condon said when the petition was filed.

A hybrid of law, politics

Condon will face the challenges of momentum and a distracted electorate if the recall petition makes it to the ballot, Etter said.

“The public will look at the recall charges that they vote on, and they’ll say, ‘They may not stick, but I’ve always thought that guy was a lousy public official,’ ” Etter said.

In a 2004 comparison of the recall laws in Washington and California, then-law student Joshua Osborne-Klein wrote that states must balance competing interests when considering recalls: government accountability and preventing harassment of elected officials.

Washington judges reviewing a recall case before signatures are gathered ensures that the question before voters has been legally vetted, though it’s not the task of the judge to determine if the charges are true.

In some other states, a recall doesn’t need a judge’s approval as long as the necessary number of valid voter signatures are collected.

Etter said that balance between government accountability and government efficiency creates a strange showdown in courtrooms.

“It’s really a strange meeting, a hybrid of law and politics, colliding together,” he said.

Condon’s hearing before Gibson will not be the mayor’s last legal chance to keep the question from the ballot, if the judge rules in Green’s favor. The decision could be directly appealed to Washington’s Supreme Court, which would hear the case on an expedited basis, based on past experience. Then there’s the legality of gathered signatures, which must come from voters in the city of Spokane and be received within six months of the judge’s ruling. The petition would need roughly 13,000 verified signatures in order to make the ballot.

Both Condon and Green have registered political action committees with the Washington Public Disclosure Commission ahead of an expected political campaign. Condon reported no contributions to his “Choose Spokane PAC” through Friday. Green’s “Recall David Condon Committee” had raised $375.

Sullivan, who said she received death threats and lost a job as a result of her work in recalling West, urged Green to leverage social media in his recall campaign, a tool that wasn’t available to her in 2005. Having an out-of-town judge rule on the case is also key to the petition surviving, she said.

“If Green passes it through, I will stand on the street corner just like I did last time,” Sullivan said.