IN THE SUPREME COURT OF THE STATE OF WASHINGTON
IN THE MATTER OF: NO. 105253-7
THE RECALL OF WILLIAM O’NEIL, EN BANC
PORT OF BENTON COMMISSIONER,
DISTRICT 1
__________________________________ Filed August 20, 2026
IN THE MATTER OF:
THE RECALL OF SCOTT KELLER,
PORT OF BENTON COMMISSIONER,
DISTRICT 2
IN THE MATTER OF:
THE RECALL OF LORI STEVENS,
PORT OF BENTON COMMISSIONER,
DISTRICT 3
GORDON MCCLOUD, J.—Voters in Benton County petitioned to recall all
three commissioners of the Port of Benton: Scott Keller, William O’Neil, and Lori
Stevens. The trial court dismissed most of the petitions’ 13 charges against each In re Recall of William O’Neil et al., No.105253-7
commissioner. But it upheld two charges against each of the three commissioners,
along with one additional charge against Keller alone.
Those first two charges involve the Port commissioners’ decisions to suspend
Port Executive Director Diahann Howard and to fire Port Finance Director Alicia
Myers. The recall proponents allege that the commissioners suspended Howard and
fired Myers in retaliation for lodging complaints about Keller and publicizing the
results of the investigation prompted by those complaints. The one additional charge
against Keller alone involves an inaccuracy on Keller’s financial disclosure form.
The commissioners appealed the trial court’s decision to this court; the recall
proponents did not cross-appeal. We affirm the trial court’s decision in all respects.
FACTS AND BACKGROUND
The Port employed Keller in various positions for 30 years, including as
airport manager and executive director. Keller retired from the Port after spending
19 years as executive director. He returned to the Port in 2023 after Benton
County voters elected him Port commissioner. Br. of Resp’ts at 3-4.
A. Investigation of Keller
Because the investigation of Keller provides context to the recall petitions, we
briefly describe that investigation and its findings.
Port counsel received written grievances about Keller from the Port’s
executive director, Diahann Howard, and then-Port Commissioner, Roy Keck. In
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September 2025, Port counsel retained the law firm Schwabe, Williamson & Wyatt
to investigate those grievances.1 Over the next several months, the law firm
investigated allegations against Keller spanning decades, including allegations that
Keller entered into favorable leases (on behalf of the Port) with a relative, that Keller
executed a personal lease with the Port at a rate lower than the rate approved by the
Commission, that Keller created or supported the creation of a private utility
infrastructure to benefit private entities without consideration, and that Keller used
unmetered and illicit sewer and water connections at the airport2 hangar he owned.
Clerk’s Papers (CP) at 1679-81.
The Schwabe firm issued its findings on December 17, 2025. Id. at 1679. It
found sufficient evidence to support several complaints against Keller, including that
he (1) violated Port Rule 12.3 by stating, “[W]hen Bill O’Neil . . . is elected to the
Commission in the fall, ‘things are going to change,’” (2) violated Washington State
gifting laws by entering a below-market-value lease with his cousin as Port executive
director in 2008, (3) violated state law by knowingly receiving public water and
sewer services paid for by the Port for his personal hangar, and (4) reduced his rent
1
CP at 1679, 1681 (Schwabe report), 815 (disclosing that Howard and Keck complained to Port counsel about Keller).
2
The Port manages the Richland Airport.
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rate for the hangar he owns through his LLC below what the Commission approved.
Id. at 1684-89.
B. Suspension of Howard and termination of Myers
On January 7, 2026, a few weeks after Schwabe issued these findings, the
Commission changed the Port’s reporting and management structure in a way that
significantly limited the executive director’s role.3, 4 The Commission also voted to
suspend Executive Director Howard. Id. at 791. On February 2, 2026, the
Commission also voted to terminate Myers, who served as the Port’s finance
director, auditor, and public records official. Id. at 945-46. The Commission blamed
her “unsatisfactory performance during the probationary period” for the termination.
Id.
C. Recall petitions
Benton County voters then filed petitions for the recall of the three Port
commissioners: Keller, O’Neil, and Stevens. The petitions alleged that the
3
Id. at 393-95 (showing line edits to Port policies), 396-409 (showing line edits to the Commission’s delegation of authority to the executive director), 789-90 (adopting these modifications).
4
By this time, the makeup of the Commission had changed. Former Commissioner Roy Keck, who made a complaint against Keller, lost his seat to Commissioner William O’Neil in the November election.
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commissioners committed acts of misfeasance, malfeasance, and/or violated their
oaths of office. Id. at 217-19, 618-20, 1237-39.
The three petitions are substantively identical. Each one alleges 13 counts of
misconduct. Most of those allegations stem from the alleged actions of Keller,
described briefly above. Crucially, most of this conduct occurred before Keller was
elected to the position of Port commissioner and, hence, cannot support a petition
for recall. In re Recall of Bolt, 177 Wn.2d 168, 179, 298 P.3d 710 (2013) (“There is
no authority allowing the recall of an elected official based on acts committed prior
to being elected to office.”).
But the recall petitions also allege that the three commissioners, while
commissioners, suspended Howard in retaliation for Howard’s decision to raise the
complaint that prompted the Schwabe investigation. And they allege that the
commissioners fired Myers in retaliation for her decision to release the investigative
report in accordance with her responsibility as the Port’s public records official.
D. Trial court proceedings
The trial court heard argument on the three recall petitions on March 25, 2026,
and issued three orders on March 30, 2026. CP at 593, 993, 1611. It dismissed most
of the 13 charges against each commissioner as legally or factually insufficient. Id.
at 593-96, 993-98, 1611-14. But it ruled that charges 12 and 13 were factually and
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legally sufficient as to all three commissioners and that charge 7 was factually and
legally sufficient as to Keller. Id. at 596-56, 997-98, 1613-14.
We discuss related charges 12 and 13 first. Charge 12 alleges:
My review of the referenced exhibits has led me to believe that while
acting in his[/her] capacity as Port Commissioner, [Mr. O’Neil/Ms.
Stevens and] Mr. Keller retaliated against Port Employee Executive
Director Diahann Howard when they voted to suspend
Diahann Howard 2 weeks after findings that Mr. Keller violated State
Laws and Port Policy. These findings were the result of a complaint
made that was forwarded to commission and counsel for investigation.
(EXHIBIT 20). I believe this retaliation was done to conceal Mr.
Keller's wrong doing.
Id. at 232 (O’Neil), 633 (Keller), 1251 (Stevens).
Charge 13 alleges:
My review of the referenced exhibits has led me to believe that while
acting in their capacity as Port Commissioners, [Mr. O’Neil/Ms.
Stevens and] Mr. Keller retaliated against Port Employee Auditor Alicia
Myers when she brought the for[e]going violations to the attention of
the Port's Executive Director and Mr. Keller. [Mr. O’Neil/Ms. Stevens
and] Mr. Keller caused Ms. Myers to be fired. I believe this retaliation
was done to conceal Mr. Keller’s wrong doing. (EXHIBIT 21).
Id. at 232 (O’Neil), 633-34 (Keller), 1251 (Stevens).
Regarding charge 12, the trial court found that “[t]here appears in the record
no manifest reason to constructively demote and suspend the Executive Director
other than as petitioner has stated: to conceal wrongdoing of Mr. Keller.” Id. at 596,
998, 1614. The trial court therefore ruled that this charge was factually sufficient; it
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In re Recall of William O’Neil et al., No.105253-7
explained that there is “more than enough information in the Petition and supporting
Exhibits to allow [commissioners] to know what the basis is for the complaint
regarding the constructive demotion and suspension of Port Executive Director
Diahann Howard.” Id. at 595, 997, 1613.
The trial court also ruled that charge 12 was legally sufficient because “it is
misfeasance and/or malfeasance to engage in retaliation against a whistleblower and
there is clear intent to retaliate against a whistleblower-employee when the
constructive demotion and suspension took place two weeks after Ms. Howard
brought forward allegations of wrongdoing by Commissioner Keller to the Board of
Commissioners.” Id. at 595, 997, 1613. The trial court noted that this type of
unlawful retaliation negatively impacts the Port and could interrupt or impact the
performance of the Commission’s official duties. Id. at 595, 997, 1613.
The trial court ruled that related charge 13, concerning the commissioners’
decision to fire the finance director, was legally and factually sufficient for the same
reasons. Id. at 596, 998, 1614.
Additionally, the court found that charge 7 was legally and factually sufficient
to support recall of Keller. Keller, through an LLC, owns a hangar at Richland
Airport, and the hangar is subject to a ground lease with the Port. Charge 7 against
Keller alleges that he failed to disclose self-dealing with regard to this arrangement:
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My review of the referenced exhibits has led me to believe that while
acting in his capacity as Port Commissioner, Mr. Keller was untruthful
when he failed to report his ownership in AXE, LLC and the ground
lease with the Port of Benton from 2022-2025. (EXHIBIT 13)
I believe the conduct described in this section constituted violations of
the following laws and regulations:
Personal financial affairs reporting public officials RCW 29B.55.010
Penalty: RCW 29B.60.010 Civil remedies and sanctions—Referral for
criminal prosecution
Id. at 629-30. The court found sufficient factual allegations to support this charge. It
ruled that Keller’s Public Disclosure Commission (PDC) F-1 filings “do list the
address of the hangar,” but “no business is listed, even though the Petition shows
that Keller is the sole member of the LLC.” Id. at 995. “Because the address of the
hangar is listed, but not the business that owns the hangar and which has a lease with
the same government authority to which Mr. Keller is elected, there is a showing of
Mr. Keller’s intent to omit his business on the F-1 filings from 2022-2024.” Id. at
995-96. The trial court therefore concluded that charge 7 is factually and legally
sufficient as to Keller.
E. Appeal to this court
All three commissioners filed notices of appeal challenging the trial court’s
findings and conclusions on charges 12, 13, and 7. Id. at 607-17, 1009-23, 1625-35.
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The recall proponents did not appeal any of the trial court’s decisions.5 Because the
recall petitions are almost identical and because the appeals involve common issues,
we consolidated the three cases for review.
ANALYSIS
I. Under the Washington Constitution, voters have the right to recall certain
public officials; the recall cannot proceed, however, unless the recall
petition is legally and factually sufficient
All nonjudicial public officials of the state of Washington are subject to recall
and discharge by Washington voters if they commit acts of malfeasance or
misfeasance while in office or violate the oath of office. WASH. CONST. art. I, §§ 33-34; RCW 29A.56.110. For the purposes of recall:
5
In the respondents’ brief to this court, they ask us to exercise “plenary jurisdiction” to review charge 6, even though they did not appeal the dismissal of that charge. Br. of Resp’ts at 66. Charge 6 read, “I believe that Mr. Keller necessarily ratified all of his for[e]going actions when he became Port Commissioner on or about January 2026 by virtue of not taking action to rectify these wrong-doings.” CP at 629. The petitions against O’Neil and Stevens named only Keller in this charge. Respondents state that this was a typographical error; they meant to replace “Mr. Keller” with “Mr. O’Neil” and “Ms. Stevens,” such that each commissioner would be charged with ratifying Keller’s wrongful acts, but they did not detect this oversight until after the trial court ruled. Br. of Resp’ts at 50-51. The trial court ruled that charge 6 was insufficient to support a recall of Keller (because it was legally insufficient) and insufficient as to O’Neil and Stevens (because it did not allege that O’Neil and Stevens did anything; it named only Keller). CP at 995, 594, 1612. Respondents ask us to allow this recall charge to move forward against Keller and also against O’Neil and Stevens “in the interests of justice.” Br. of Resp’ts at 63. But respondents did not appeal the trial court’s ruling on charge 6 and given their “typographical error,” that charge as applied to O’Neil and Stevens was not even before the trial court. We decline to consider charge 6.
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(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.
RCW 29A.56.110.
The recall charge must “state the act or acts complained of in concise
language[ and] give a detailed description including the approximate date, location,
and nature of each act complained of . . . .” Id. Taken as a whole, the charge “‘“must
be specific enough to give the elected official meaningful notice of the particular
conduct challenged and why it is grounds for recall.”’” In re Recall of Inslee, 194
Wn.2d 563, 567, 451 P.3d 305 (2019) (quoting In re Recall of Pepper, 189 Wn.2d
546, 553, 403 P.3d 839 (2017) (quoting In re Recall of Boldt, 187 Wn.2d 542, 549,
386 P.3d 1104 (2017))).
“An elected official can be recalled only for cause, meaning the petition must
be factually and legally sufficient.” Id. (citing Chandler v. Otto, 103 Wn.2d 268,
274, 693 P.2d 71 (1984)). “Factual sufficiency” “means the facts must establish a
prima facie case of misfeasance, malfeasance, or violation of the oath of office . . .
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.” In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003) (citing Cole v.
Webster, 103 Wn.2d 280, 285, 692 P.2d 799 (1984)). Although petitioners need not
have direct, firsthand knowledge of the facts underlying the charges, they must have
some knowledge of the facts underlying the charges. Id. (citing In re Recall of
Ackerson, 143 Wn.2d 366, 372, 20 P.3d 930 (2001)).
“Legal sufficiency” “means the charge must define substantial conduct clearly
amounting to misfeasance, malfeasance or a violation of the oath of office.” Id.
(citing In re Recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410 (1997)). A charge
is legally insufficient if an elected official appropriately exercised the discretion
granted to them by law. Ackerson, 143 Wn.2d at 371 (citing Chandler, 103 Wn.2d
at 274).
If the petition alleges that an official violated the law, the facts must indicate
that the official intended to violate the law. In re Recall of Telford, 166 Wn.2d 148,
158, 206 P.3d 1248 (2009) (citing In re Recall of Carkeek, 156 Wn.2d 469, 128 P.3d
1231 (2006)). “Voters may draw reasonable inferences from the facts alleged; the
fact that reasonable conclusions and inferences have been drawn by the petitioner is
not fatal to the sufficiency of the allegations.” Carkeek, 156 Wn.2d at 473-74 (citing
Chandler, 103 Wn.3d at 274).
We evaluate the sufficiency of a recall petition de novo. In re Recall of
Sawant, 197 Wn.2d 420, 426, 483 P.3d 752 (2021) (citing Teaford v. Howard, 104
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Wn.2d 580, 590, 707 P.2d 1327 (1985)). We conduct that review knowing that the
right to recall is guaranteed not just by statute, but by the state constitution. Our role
is limited: we have the duty to verify that the charges are factually and legally
sufficient on the face of the petition. Id. at 427, 425. We do not need to evaluate the
truthfulness of the charges. Id. at 425. In other words, “[i]n recall cases, courts do
not consider the truth of the charges, only the sufficiency.” Inslee, 194 Wn.2d at 567
(citing RCW 29A.56.140; In re Recall of Lindquist, 172 Wn.2d 120, 131-32, 258
P.3d 9 (2011)).
II. The trial court correctly ruled that charge 12, alleging retaliation against
Executive Director Howard, is factually and legally sufficient in all three
petitions
A. Factual sufficiency
As noted above, charge 12 of each recall petition alleges:
My review of the referenced exhibits has led me to believe that while
acting in [her/his] capacity as Port Commissioner, [Ms. Stevens/Mr.
O’Neil and] Mr. Keller retaliated against Port Employee Executive
Director Diahann Howard when they voted to suspend Diahann
Howard 2 weeks after findings that Mr. Keller violated State Laws and
Port Policy. These findings were the result of a complaint made that
was forwarded to commission and counsel for investigation. (EXHIBIT
20). I believe this retaliation was done to conceal Mr. Keller’s wrong
doing.
CP at 232 (O’Neil), 633 (Keller), 1251 (Stevens).
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This charge references exhibit 20; that exhibit is a letter from Howard’s
attorney to Port attorney John O’Leary with the subject line “Notice of Retaliation
and Breaches of Employment Contract by the Port of Benton – Notice of Litigation
Hold.” Id. at 412-16 (O’Neil), 814-17 (Keller), 1431-34 (Stevens).6 The letter
summarizes the events culminating in the commissioners’ decision to suspend
Howard. It begins with Howard’s complaint against Keller on September 5, 2025
(which she made “[a]fter receiving numerous reports from subordinates about
statements and actions of Commissioner Keller”). Id. at 414. It continues with
Howard’s decision to forward another complaint against Keller, which she received
from then-Commissioner Keck, on September 10. Id. It summarizes the Port’s
subsequent decision to retain counsel to investigate these complaints. Id. at 414-15.
The letter continues that the investigator issued findings on December 17, 2025,
concluding that evidence did support some of the allegations against Keller. Id. at
415.7 The letter claims that a subsequent report on December 29, 2025, concluded
that the Port should further investigate Keller’s actions.8 Id.
6
Moving forward, instead of including parallel citations to all three petitions, we will generally cite only one petition. The exhibits are the same across petitions.
7
CP at 1679-99 (Ex. B to Am. Decl. of Douglas E. McKinley, Jr., attorney for recall proponents).
8
This subsequent report is not in the record.
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The letter describes the fact that about one week later, the Commission called
a special meeting and voted to (1) “materially change the reporting and management
structure of the Port—a vote that operates . . . as a demotion of Director Howard”
and (2) suspend Howard indefinitely. Id. The letter asserts, “Considering the history
above and the timing of the suspension, this rationale for the Commissioner’s
decision is clearly a pretext for illegal retaliation.” Id.
Charge 12 “state[s] the act . . . complained of in concise language,” RCW
29A.56.110, and is “‘specific enough to give the elected official meaningful notice
of the particular conduct challenged and why it is grounds for recall,’” Inslee, 194
Wn.2d at 567 (internal quotation marks omitted) (quoting Pepper, 189 Wn.2d at
553). The letter (which is incorporated by reference into the petition) clearly and
thoroughly alleges facts that would support a claim of unlawful retaliation. Charge
12 is factually sufficient.
B. Legal sufficiency
Charge 12 is also legally sufficient. It alleges facts that amount to retaliation,
and this court has clearly held that retaliation constitutes misfeasance, malfeasance,
or a violation of the oath of office.
In Riddle, for example, we held that “[w]here an official credibly threatens
retaliation in his or her official capacity, ‘such threats alone would be . . . wrongful
by any standard.’” In re Recall of Riddle, 189 Wn.2d 565, 581, 403 P.3d 849 (2017)
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In re Recall of William O’Neil et al., No.105253-7
(second alteration in original) (quoting In re Recall of Lee, 122 Wn.2d 613, 619, 859
P.2d 1244 (1993) (per curiam)). In that case, Yakima County Clerk Janelle Riddle
faced recall for, among other things, threatening to close the Yakima County
Superior Court and the Yakima County Clerk’s Office. The court rejected Riddle’s
argument that the charge was legally insufficient because she did not actually shut
down the court as she threatened. Id. at 581. Relying on Lee, the court reasoned that
the threat of retaliation alone was wrongful by any standard. Id.
In Lee, the mayor of Pe Ell faced recall for threatening to fire law enforcement
officers if they issued her a traffic citation. 122 Wn.2d 613. Lee argued that the
charge was inadequate because “it does not allege that any police officer ever
refrained from issuing her a citation because of what she said.” Id. at 618-19. This
court held that “such threats alone would be a clear abuse of the mayor’s position of
authority over the police department and would be wrongful by any standard.” Id. at
619; see also In re Recall of Hatcher, 196 Wn.2d 797, 829-30, 478 P.3d 1077 (2021)
(“For an elected official to threaten jobs of employees who are not ‘loyal’ to the
official is a violation of the oath of office and is wrongful conduct.”).
Riddle, Lee, and Hatcher establish that even the threat of retaliation
constitutes a legally sufficient basis for recall. It necessarily follows that actual
retaliation constitutes a legally sufficient basis for recall, also.
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The commissioners argue that personnel decisions are discretionary and,
hence, cannot form the basis for recall. See Appellant Comm’rs’ Opening Br. at 1
(“The remaining charges as to all three Commissioners are personnel decisions
rightly within the discretionary purview of the Commission . . . .” (citing Bolt, 177
Wn.2d 168)). We reject that argument here, as we did in Hatcher, because retaliation
constitutes a manifest abuse of discretion. 196 Wn.2d at 830 (“[T]he sheriff who
threatens jobs as retaliation and intimidation against those who are witnesses in an
investigation against him manifestly abuses his discretion.”); see also Bolt, 177
Wn.2d at 174 (“‘[D]iscretionary acts of a public official are not a basis for recall
insofar as those acts are an appropriate exercise of discretion by the official in the
performance of his or her duties.’” (quoting Cole, 103 Wn.2d at 283)).
III. The trial court correctly ruled that charge 13, alleging retaliation against
Finance Director Myers, is factually and legally sufficient in all three
petitions
A. Factual sufficiency
Charge 13 of the recall petitions alleges:
My review of the referenced exhibits has led me to believe that while
acting in their capacity as Port Commissioners, [Mr. O’Neil/Ms.
Stevens and] Mr. Keller retaliated against Port Employee Auditor Alicia
Myers when she brought the forgoing violations to the attention of the
Port’s Executive Director and Mr. Keller. [Mr. O’Neil/Ms. Stevens and]
Mr. Keller caused Ms. Myers to be fired. I believe this retaliation was
done to conceal Mr. Keller’s wrong doing. (EXHIBIT 21).
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CP at 232.
To support this charge, the recall proponents reference exhibit 21, a Tri-City
Herald article headlined “Port Fires Its Top Financial Executive. She Says It Is
Retaliation.” Id. at 418-42. The article reports that the Commission voted
unanimously to terminate Myers, its finance director, auditor, and public records
official, citing her probationary status and unsatisfactory performance. Id. at 419.
Myers tells the Tri-City Herald she thinks she was fired in retaliation for doing her
job, including her duty as public records officer to release the investigative report on
the complaints against Keller. Id. at 420. The article references Howard’s suspension
a few weeks earlier and reports that Howard is the one who hired Myers. Id.
This charge is factually sufficient. The charges and supporting documentation,
read as a whole, must give the elected official enough information to respond to the
charges. See In re Recall of West, 155 Wn.2d 659, 663, 121 P.3d 1190 (2005). We
must therefore view charge 13 in the context of the whole recall petition, including
its allegations of retaliation against Howard, when assessing its factual sufficiency.
See Hatcher, 196 Wn.2d at 830 (Hatcher stated on public radio that his subordinate,
who had made a whistleblower complaint against Hatcher, had “‘issues with his
timecard or accounting for his time’”; this court held that Hatcher’s action supported
a recall charge of witness intimidation “[w]hen viewed in the context of Sheriff
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Hatcher’s pattern of threatening and retaliatory behavior” (quoting record)). Charge
13 clearly meets that test.
And while a media article is not “categorically” a sufficient basis for personal
knowledge of the facts required by law, West, 155 Wn.2d at 666 n.3, it is factually
sufficient here because (1) it gives the elected officials enough information to
respond to the charges, (2) it reports Myers’ firsthand belief that she was subject to
retaliation, and (3) the charge is supported by the context and supporting documents
of the petition as a whole. A voter could reasonably view Myers’ termination as part
of a pattern of retaliation.
B. Legal sufficiency
The legal sufficiency analysis for charge 13 is the same as for charge 12—
both allege retaliation. Charge 13 is legally sufficient because retaliation constitutes
malfeasance, misfeasance, or a violation of the oath of office. See pp. 14-16, above.
IV. The trial court correctly ruled that charge 7, alleging failure to disclose
material facts on a mandatory state reporting form, provides a factually
and legally sufficient basis to recall Keller
A. Factual sufficiency
Keller owns a hangar at the Richland Airport subject to a ground lease with
the Port. He owns that hangar through an LLC of which he is the sole member. CP
at 684-85 (Keller’s deed to the hangar), 701-17 (ground lease between Port and The
“Axe” LLC), 691-93 (showing Keller as the sole member of The “Axe” LLC). Keller
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also has a mandatory duty as an elected official to file sworn statements concerning
his finances, including his property ownership.
Charge 7 of the recall petition alleges:
My review of the referenced exhibits has led me to believe that while
acting in his capacity as Port Commissioner, Mr. Keller was untruthful
when he failed to report his ownership in AXE, LLC and the ground
lease with the Port of Benton from 2022 -2025. (EXHIBIT 13)
I believe the conduct described in this section constituted violations of
the following laws and regulations:
Personal financial affairs reporting public officials RCW 29B.55.010
Penalty: RCW 29B.60.010 Civil remedies and sanctions—Referral for
criminal prosecution
CP at 629-30.
RCW 29B.55.010(1) requires that “every elected official . . . shall
electronically file with the commission a statement of financial affairs . . . ,” and
subsection (6) specifies that “[e]ach statement of financial affairs filed under this
section shall be sworn as to its truth and accuracy.”
Exhibit 13, referenced by the recall proponents, shows Keller’s F-1 financial
affairs disclosure forms covering May 15, 2022 through May 14, 2023, CP at 761-62, and January 2, 2023 through January 1, 2024, id. at 763-65. On these forms,
Keller discloses that he owns real estate at 2049 Butler Loop in Richland. Id. at 762,
764. This is the address of the hangar. Id. at 731-32.
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The form includes a category for any “[b]usiness entities where filer owns
10 percent or more, or serves as an officer, director or general partner.” Id. at 762,
764. Keller’s forms state, “There is no business ownership, nor is there
involvement as an officer, director or general partner.” Id. at 762, 764. Given
Keller’s ownership of The “Axe” LLC, that representation is inaccurate.
The recall petition supplies Keller’s PDC disclosure forms and documentation
showing that his disclosures were incomplete, and that they were incomplete on a
topic concerning property deals with the Port, at a time when he served as
commissioner. Therefore, this charge is factually sufficient.
B. Legal sufficiency
The charge alleges that Keller failed to disclose his ownership of an LLC—
an LLC that leases property from the Port of which he is a commissioner. The charge
alleges that this violates RCW 29B.55.010, which requires “every elected official”
to file a “statement of financial affairs” that “shall be sworn as to its truth and
accuracy.”
These allegations describe substantial conduct that would amount to
misfeasance, malfeasance, or a violation of the oath of office. See Sawant, 197
Wn.2d at 436 (upholding the factual and legal sufficiency of a recall charge against
Sawant for failure to disclose information in accordance with Seattle’s required
statement of financial affairs).
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Indeed, “[t]he fact that Keller owned a[n] LLC that in turn held a leasehold
interest with the public entity where he was a Commissioner is exactly the type of
information the . . . Public Disclosure Commission was created to disclose.” Br. of
Resp’ts at 44. Because Keller’s ground lease with the Port is in the name of his LLC,
and because Keller failed to disclose his ownership of the LLC, the public may not
realize that Keller acted on both sides of the lease deal.
Notably, as executive director, Keller allegedly executed the ground lease at a
rate lower than the rate that the Commission had approved. See CP at 1689-90.
Commission minutes reflect that the Commission approved the ground lease at a rate
of $1,128.40 per year, but the actual lease Keller signed with the Port was for a rate
of $819.11 per year. Id.
Voters could conclude from these circumstances that Keller intentionally
omitted his ownership in The “Axe” LLC to obscure the fact that he had a lease with
the Port that was both below market value and below the rate approved by the
Commission. See Carkeek, 156 Wn.2d at 473-74 (voters may draw reasonable
inferences from the facts alleged).
We do not suggest that any mistake or omission on a PDC filing form
constitutes sufficiently “substantial conduct” to support a petition for recall. But the
circumstances of this case, with Keller on both sides of an allegedly below-market
lease with the government entity that he is elected to lead, are serious enough to
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allow the voters to decide whether this was more than simple mistake.9 See Riddle,
189 Wn.2d at 574-75 (“The primary purpose of the intent requirement is to shield
elected officials from recall where their actions, though not statutorily compliant, are
attributable to a ‘simple mistake.’” (quoting In re Recall of Heiberg, 171 Wn.2d 771,
779, 257 P.3d 565 (2011))).
V. Appellants’ motions to strike
Appellant commissioners filed four motions to strike during the pendency of
this case. “[A] motion to strike is typically not necessary to point out evidence and
issues a litigant believes this court should not consider. . . . So long as there is an
opportunity (as there was here) to include argument in the party’s brief, the brief is
the appropriate vehicle for pointing out allegedly extraneous materials—not a
separate motion to strike.” Engstrom v. Goodman, 166 Wn. App. 905, 909 n.2, 271
P.3d 959 (2012) (citing Cameron v. Murray, 151 Wn. App. 646, 658, 214 P.3d 150
(2009)).
9
To be sure, the record shows that Keller was, at other times, open about his lease with the Port. See, e.g., CP at 577 (Commission meeting minutes where Keller discloses his hangar lease when hangar leases and utility hookups come under scrutiny), 988 (in correspondence about Keller’s purchase of the hangar, Keller loops in Port employees and notes, “I have to have full disclosure in my position as the Executive Director”). Keller may argue that this evidence rebuts any suggestion that he intentionally omitted the LLC from his financial disclosure form to obscure his allegedly favorable lease with the Port. But we evaluate the sufficiency of the charge, not its truthfulness. It will be up to the voters to determine whether Keller should be recalled from office for this conduct.
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With these comments in mind, we summarize our rulings on the appellant
commissioners’ motions to strike. This court granted the appellants’ first motion to
strike on April 30, 2026, striking respondent-petitioners’ attachments that were
outside the record.
Appellants’ second motion to strike asks us to delete portions of the
respondents’ brief as unnecessarily argumentative, lacking in citations, and
improperly seeking review of unappealed charge 6. We deny that motion. To be sure,
respondents’ brief contains strident language and extravagant argument. But there is
no rule against that, and the brief as a whole does contain citations to the record. In
addition, respondents are free to ask this court to exercise its discretion to consider
charge 6 despite their failure to appeal the ruling on that charge. As mentioned above,
we denied that request; but the respondents were free to make it.
Appellants’ third motion to strike gives three reasons to strike respondents’
answer to the appellants’ second motion to strike. The appellants’ first and third
reasons rehash appellants’ second motion to strike (concerning stridency and lack of
record citations). Those arguments lack merit here, too. We grant appellants’ third
motion to strike only as it relates to the new proposed exhibit that respondents proffer
in their answer to the appellants’ second motion to strike. Despite respondents’
suggestion to the contrary, the extra record information in the newspaper article does
not assist us in ruling on appellants’ second motion to strike.
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In re Recall of William O’Neil et al., No.105253-7
We deny appellants’ fourth motion to strike and motion for sanctions and
attorney fees. As noted, most of appellants’ motions to strike lack merit, and “a
motion to strike is typically not necessary to point out evidence and issues a litigant
believes this court should not consider.” Id. We further deny the motions for
sanctions against respondents and for attorney fees for appellants.
CONCLUSION
We affirm the trial court in full. Charges 12 and 13 are factually and legally
sufficient to support the recall of Keller, O’Neil, and Stevens, and charge 7 is
factually and legally sufficient to support the recall of Keller. Charges 12 and 13
shall proceed to the voters for Keller, O’Neil, and Stevens. Charge 7 shall also
proceed to the voters for Keller.
We deny appellants’ second motion to strike, fourth motion to strike, and
motion for sanctions and attorney fees. We grant in part appellants’ third motion to
strike, as it relates to respondents’ attachment of a new proposed exhibit to their
answer to appellants’ second motion to strike.
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In re Recall of William O’Neil et al., No.105253-7
WE CONCUR:
Melody, J.
Angelis, J.
25