Port Commissioner Jay Hupp Recall Hearing Video

The following video clip and its youtube.com sequels (totaling 9 short clips) records the entire Court hearing litigating the Recall Petition for Jay Hupp’s removal from the office of Port of Shelton Commissioner for malfeasance and misfeasance.  The entire petition and attached exhibits can be found elsewhere on this Blog.

11-12-10 Jay Hupp Recall Hearing 1/9

As an active paralegal, I do question the wording of the Recall Petition, which visiting presiding Judge Pomeroy found defective/insufficient.  I’m not convinced all the attachments seeking to ‘prove’/support the allegations were necessary or even helpful from the petitioners’ perspective.

My personal view is too much attention was focused in court on attempting to prove the allegations instead of selecting allegations that were sufficient in and of themselves.  e.g.  In a civil suit (or even a criminal charge), the merits are heard if/when the case goes to trial, i.e. a jury or fact finding body.

In a recall, the Court determines if the allegations/charges are legally and factually sufficient without determining the truth of them.  The voters ultimately serve as the fact finding body.  Thus, if it were alleged Jay Hupp had taken bribes as a public official, no evidence substantiating it (I believe) would be necessary in the preliminary phase…only whether the allegation in and of itself was legally and factually sufficient to show malfeasance/misfeasance or breach of Oath of Office other than a sworn affidavit the affiant KNEW the allegation(s) were true.

Receiving e-mail, for instance, doesn’t rise to that prima facia threshold level as such receipt doesn’t constitute a voluntary or ‘willful’ (a necessary component of malfeasance/misfeasance is ‘intent’ according to Judge Pomeroy) act.  But (hypothetically speaking) taking bribes DOES!   I don’t know that irrefutable ‘proof’ of bribe taking would be required as part of a recall petition in such a scenario.  A sworn statement under penalty of perjury a declarant submitted of KNOWLEDGE including a specific time, date, and place of where it had occurred would suffice.  The weighing of the probity of such argument or evidence would be left to the voters’ determination much as proof of damages or other details (often obtained in the discovery phase) are left to jurors in the trial phase in a civil proceeding.

Thus, I feel the petitioners erred in attempting to try the case before the judge instead of the voters and bringing counsel aboard too late in the process.  e.g. Conspiring, aiding, and abetting chemical trespass and poisoning the public strikes me as a less convoluted more easily understood charge.  There’s some case law suggesting the victims of the imminent harm need not wait until after the injury to seek relief…or a mushroom cloud before they react.  In any event, more attention needs to be paid to the drafting phase of a recall petition.  (Note:  Old Russian Proverb–if you’re going to gouge the bear’s eye with a stick, make sure the stick is longer than the bear’s arm.)

1/92/9, 3/9, 4/9, 5/9, 6/9, 7/9, 8/9, 9/9

RCW 4.96.041(3) allows the target of a recall such as Port Commissioner ‘Jay’ Hupp recently experienced to request legal representation in a determination of the recall petition’s sufficiency and formulation of a fair title. (In Re: Recall of Pearsall-Stipek, 129 Wash.2d 399, 402, 918 P.2d 493 (1996)). The law requires both the local legislative body (here the Port Commissioners) and the government attorney (Mr. Houser, esq.) to approve participation in the litigation. [RCW 4.96.041(3)]
But a public official can’t approve such approval to benefit himself; this would be prohibited by conflict of interest law from authorizing a contract to his or her benefit.  (See RCW 42.23.030(12))  Thus, a statutory prerequisite for the Port of Shelton’s legal representation/reimbursement to Mr. Hupp is first getting a vote of a quorum of non-conflicted members of the board and then the Port attorney’s approval.
Here we had only a quorum of TWO ‘non-conflicted’ Port Commissioners who were evenly (Mr. Miles and Mr. Wallitner) divided on the issue, which means it would fail except for the improper inclusion of the very conflicted member (Jay Hupp) himself who was instrumental in the self serving motion he requested the other two pass by voting on/for it himself!
I am told Commissioner Jay Hupp requested the motion regarding the issue of reimbursing himself with public funds and then voted in favor of it…a thoroughly self serving act at public expense.  If this is, indeed, a violation of RCW 42.23.030 (which I believe it is) that, in itself, might well be sufficient for an ensuing more sufficient recall petition to remove Mr. Hupp from office for flagrant violation of said law.  Others suggest biding time until the check is cashed/written.  Mr. Hupp (if you’re reading this) please advise me of when you cash/deposit that check…or must I file a PDA request for the details?
Certainly Mr. Wallitner should not be engaged in aiding, abetting, and promoting violations of the RCW prohibiting public officials from benefiting from conflicts of interest when casting their official votes on such motions.  Why did no Commissioners or members of the public object to Mr. Hupp taking part in the vote/discussion to pass such a motion?  Is that a violation of Mr. Wallitner’s oath of office as well?   Does promoting this kind of violation of the cited RCW serve as sufficient cause to petition for the removal of both from office?  Why didn’t the Port Attorney advise them of as much?
At the very least, these men are too incompetent to be Port of Shelton Commissioners.

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