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Oct. 17, 2021

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Judge dismisses Mielke’s recall petition

He rules complaint against 3 fellow councilors doesn't meet legal requirements

By , Columbian Education Reporter
Published:
9 Photos
Clark County council members Jeanne Stewart, from left, Marc Boldt and Julie Olson listen to court proceedings with County Manager Mark McCauley on July 29. Visiting Cowlitz County Judge Stephen Warning heard and cleared the three councilors of allegations made against them in a recall petition by fellow Councilor Tom Mielke.
Clark County council members Jeanne Stewart, from left, Marc Boldt and Julie Olson listen to court proceedings with County Manager Mark McCauley on July 29. Visiting Cowlitz County Judge Stephen Warning heard and cleared the three councilors of allegations made against them in a recall petition by fellow Councilor Tom Mielke. (Amanda Cowan/The Columbian) Photo Gallery

Clark County Councilor Tom Mielke’s recall petition against three fellow councilors will not go on.

A visiting Cowlitz County Superior Court judge, Stephen Warning, dismissed on Friday a series of allegations by Mielke, a Republican, against Council Chair Marc Boldt, no party preference, and Republican Councilors Julie Olson and Jeanne Stewart.

None of the allegations, he said, met the legal or factual requirements for a recall petition.

“I’m happy it was resolved,” Boldt said after the morning hearing. “I think it was very thorough, and it’s good that it’s final.”

From the familiar faces in the audience to the attorneys on hand, the hearing felt like a cross-section of this year’s ongoing drama from the Clark County council.

Since Boldt and Olson took office, setting in place the keystone piece of the home rule charter, they and Stewart have formed the new majority voting bloc on the county council. That power shift has put Mielke and Republican Councilor David Madore in the minority position on a number of 3-2 votes.

The packed crowd included those who have vocally criticized and praised the council’s recent actions, as well as the other four councilors. Mielke’s attorney, Seattle-based Michael Kahrs, was joined by Madore’s attorney, Nick Power. Madore is not named as a party in the recall.

The other councilors, meanwhile, were represented by outside attorneys from Portland firm Markowitz Herbold. This is the latest of several occasions the county has had to turn to outside legal help this year because its own attorneys have been implicated in charges or directly accused of wrongdoing.

Attorneys Shannon Armstrong and Kristin Asai combined billed $760 an hour for their services, according to their contract with Clark County.

Mielke, who first filed his recall petition in June, accused his fellow councilors of three illegal activities. Warning only had to determine whether the charges were legally sufficient to go to voters in a recall election, not whether the three had actually done what Mielke had alleged.

Mielke claimed the three violated the Open Public Meetings Act, meeting in secret to grant a contract to Seattle attorney Rebecca Dean to investigate Madore’s accusations that county staff lied about details of the Comprehensive Growth Management Plan update. Dean was hired after Planning Director Oliver Orjiako and an employees union leveled complaints about Madore over the comprehensive plan. Madore and Mielke have said they didn’t know about the contract until they read about it in The Columbian.

But County Manager Mark McCauley has said he signed that contract after the councilors signaled in meetings that they were interested in pursuing an investigation. Though Kahrs argued that it was “beyond disbelief” to think that the manager could do so without official support from the council, Warning said McCauley has full authority to execute contracts under the county charter. McCauley did violate a county ordinance requiring that contracts be posted on the county website and given to councilors a week before he signs them, Warning said. But that is not grounds for a recall.

Mielke also accused the councilors of conspiring to dissolve the Department of Environmental Services and fire its controversial director, state Sen. Don Benton, R-Vancouver. McCauley announced the dissolution of the department and elimination of four jobs in May.

But again, Warning found it was McCauley’s authority alone to dissolve the department as long as he didn’t increase county spending.

He pointed out in the hearing that Madore and Mielke made no effort after the fact to undo the elimination of the department, asking why they had not made a motion if they protested to the action.

But Kahrs said Madore and Mielke have been dismissed by their fellow councilors time and time again, making any attempt to undo the action useless.

“Your recourse now is to what?” Kahrs said. “Make a motion and have it shut down? There was no point.”

In a third accusation, Mielke said his fellow councilors limited his and Madore’s access to the Clark County Prosecutor’s Office, citing changes to the county’s rules of procedure earlier this year that required that requests for formal legal opinions be presented to the board in writing and approved by the county manager, board chair or a majority of the council. But that’s a standing policy in the county’s rules of procedure. Warning found that the council made grammatical changes to that portion of the rules of practice, which wouldn’t have limited Madore or Mielke’s ability to ask county attorneys for legal advice.

Mielke also initially accused his fellow councilors of granting The Columbian a legal advertising contract this year in order to curry political favor with the newspaper. But Mielke’s attorney said they were conceding there was not enough evidence in that issue to continue pursuing it.

Warning still weighed in on that accusation, saying he’s never seen a newspaper needing incentive to “take shots” at elected officials.

“That’s probably their job,” Warning said.

Mielke declined to comment to The Columbian.

Columbian Education Reporter
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