Can Executive Official Be Removed from Office for “Inciting” Illegal Conduct?
Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of “some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office,” and courts can reject recall grounds if they don’t adequately allege such misconduct. It’s not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it’s also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official’s actions fit within the category of “high crimes and misdemeanors.”
This matter came up in an interesting context in yesterday’s decision in In the Matter of Recall of Fortney (written by Justice Mary Yu):
[Snohomish County Sheriff Adam] Fortney’s first four months in office were beset by multiple controversies….
The petitioners alleged [among other things]: (1) Fortney refused to enforce the governor’s Stay Home – Stay Healthy proclamation, (2) Fortney incited members of the public to violate the Stay Home – Stay Healthy proclamation …. On appeal, Fortney does not challenge the sufficiency of the first charge and agrees to stand for recall on his refusal to enforce the Stay Home – Stay Healthy proclamation….
Washington voters have a constitutional right to recall nonjudicial elected officials who commit acts of malfeasance or misfeasance or violate an oath of office. For the purposes of recall:
(1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;
(a) Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and
(b) Additionally, “malfeasance” in office means the commission of an unlawful act;
(2) “Violation of the oath of office” means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.
The court’s role is solely that of gatekeeper in reviewing recall petitions. As such, we do not review the truth of recall charges. It is the voters who must act as fact finders. Our judicial gatekeeping function ensures public officials are not subject to “frivolous or unsubstantiated charges.” We therefore review petitions simply to determine if they are “legally and factually sufficient.” …
On March 23, 2020, Fortney responded to [Governor Jay Inslee’s] Stay Home – Stay Healthy [COVID-19 shutdown order], utilizing the official Snohomish County Sheriff’s Office Facebook page. He stated in part, “As your elected sheriff, I have no intention of carrying out enforcement for a stay-at-home directive.” On April 21, 2020, Fortney posted a lengthier statement. In that post, Fortney acknowledged the seriousness of COVID-19 but criticized Governor Inslee’s response as unconstitutional:
Snohomish County Residents and Business Owners, ….
I can no longer stay silent as I’m not even sure [Governor Inslee] knows what he is doing or knows what struggles Washingtonian’s [sic] face right now….
As elected leaders I think we should be questioning the Governor when it makes sense to do so. Are pot shops really essential or did he allow them to stay in business because of the government taxes received from them? That seems like a reasonable question. If pot shops are essential, then why aren’t gun shops essential? …
If this Coronavirus is so lethal and we have shut down our roaring economy to save lives, then it should be all or nothing. … [The Governor] is not prepared or ready to make these decisions. If we are going to allow government contractors and pot shops to continue to make a living f
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