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High court releases Heiberg opinion

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Posted: Monday, June 13, 2011 9:00 am

OLYMPIA - The state supreme court released its opinion on the recall of the Coulee City mayor, stating neither count was sufficient.

The Washington State Supreme Court reversed Grant County Supreme Court Judge John Knodell's ruling in April allowing a recall petition for Mayor Rick Heiberg to move forward. Knodell ruled in October two of the 11 allegations brought by former Councilmember Jennifer Schwartz and former City Clerk Lorna Pearce rose to the level of malfeasance, misfeasance or a violation of the oath of office.

The first count focused on Heiberg's purchase of $15,000 truck for the public works department without going through the bidding process.

At the time of the purchase, the town's equipment reserve fund had a $15,155 balance and Heiberg believed he could use it to purchase the truck, according to the opinion. The mayor learned he didn't follow the proper procedure shortly after purchasing the truck and sought council approval.

When he wasn't able to get approval for it, he wrote a $15,000 check to the town, buying the truck, according to the opinion.

The court stated Heiberg needed to intend to break the law when he made the purchase. The justices stated the purchase had "all the hallmarks of a simple mistake."

"In making the purchase, he relied on his understanding, albeit an incorrect understanding, that the entire $15,155.87 balance in the town's equipment reserve fund was available to purchase the truck," according to the opinion. "Further, upon discovering that his actions had been improper, Mayor Heiberg promptly set out to cure his error, first by seeking ratification by the town council and, failing that, by fully reimbursing the town."

The court rejected Pearce's and Schwartz's argument that Heiberg should have known the law since he attended training for elected officials before becoming mayor, according to the opinion.

"The record contains no indication that the training included instruction on purchasing policies. Nor does his prior service on the town's planning board provide factual support for the charge that Mayor Heiberg intended to violate the law," according to the opinion.

The second count focused on a resolution calling for a vote of no confidence at the July 14, 2010 town council meeting. Councilmember Scott Roberts distributed copies of the resolution to the mayor and other councilmembers at the meeting, according to the opinion. Former Mayor Otto Jensen submitted a public records request for July, August and September council packets. A copy of the resolution was not included.

Schwartz and Pearce alleged Heiberg authorized destroying the resolution, according to the opinion. The court rejected the argument.

"The facts alleged merely establish that the mayor received a copy of the petition and that, sometime thereafter, the resolution was not included in response to a public records request filed with the city clerk for the council packet," according to the opinion. "There is no factual basis for the claim that the record was destroyed, much less that Mayor Heiberg destroyed it."

Schwartz and Pearce argued Heiberg was responsible for the destruction since he was the clerk's supervisor, according to the opinion. The court rejected the argument, stating an elected official can't be recalled for an action done without the official's knowledge or direction.

Heiberg was happy with the court's decision. He said in a previous interview he knew the charges were baseless from the first day.

"My opponents have pretended, and have acted, as though the supreme court has said nothing," he said. "They have nitpicked our administration to pieces. It's still been heard even though we won a nine-to-nothing decision."

Schwartz was stunned by the decision. She said the court gave elected officials license to break the law without any consequences for their actions.

"(The opinion) says you can rob a bank and you're fine as long as you pay it back," she said. "I respect the laws and it's unfortunate. He'll get caught one of these days doing something illegal and he won't be able to get out of it."

Two of Heiberg's opponents, Pearce and Jensen, have filed for open seats on the town council, Schwartz said; adding she hopes they can prevent further illegal things from happening.

"There won't be any more of the mayor doing whatever he wants," she said. "That's the plan."

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