Incumbent’s tardy oath was harmless, attorney says

THURSDAY, AUG. 27, 2009

Decisions made by board, fire commissioner still valid, opinion states

Newman Lake Fire Commissioner Eileen Weyrauch didn’t forfeit her position when she failed to submit her oath of office in time, the fire district’s attorney says.

Des Moines, Wash., attorney Brian Snure stated in a written opinion, presented to the fire district board last week, that Weyrauch is protected by an 1892 state Supreme Court ruling.

That 117-year-old decision interprets a state law that says “every elective office shall become vacant” if the office holder refuses or neglects to take and file an oath of office within the allotted time.

District resident Kathleen Small had cited the law, demanding that Weyrauch step down and repay any money she had received from the district in the course of her duties. Small and others have been critical of Weyrauch and Commissioner Clayton Andersen, whom they accuse of mistreating two deputy chiefs and violating the state open meetings law.

Weyrauch failed at first to file a new oath of office with the Spokane County Auditor’s Office after she was re-elected in November 2007.

Snure said Weyrauch mistakenly believed that, as an incumbent, she didn’t have to file another oath. But she corrected the mistake as soon as the auditor’s office brought it to her attention.

According to the Supreme Court decision Snure cited, failure to file an oath on time doesn’t automatically cancel the results of an election.

Rather, it “simply authorizes the proper authority to declare such a forfeiture,” the court ruled. Until that happens, justices said, office holders may correct the problem.

The court said elections give the right to office, and oaths are just an “incidental” protection for the public. There has been no change in the law or the court’s opinion.

Based on that, Snure said, Small’s contention that Weyrauch should reimburse the district for per diem and expense payments could be justified only from Jan. 1, 2008, through Feb. 24, 2008. Small said there were four meetings in that period, and commissioners were paid $90 per meeting.

Snure “is saying I have a point about that,” Small said in an interview. She acknowledged “it looks like he’s got some case law” to support his position on other issues.

Small, who manages the Pasadena Park Irrigation District, said she was speaking only as a Newman Lake Fire and Rescue taxpayer.

Weyrauch wasn’t available for comment.

She didn’t attend the Aug. 17 meeting at which Snure’s opinion was presented and Small asked whether Weyrauch intended to reimburse the district. Small said Andersen responded that he thought no reimbursement was necessary.

Although Snure’s opinion isn’t definitive on that point, the opinion says Weyrauch’s and the board’s actions during Weyrauch’s oathless period were valid. Snure cited a Washington Court of Appeals ruling that says that even if an office holder’s title to office is faulty, decisions by such “de facto officers” are valid.

Small said she was disinclined to pursue the issue. She noted district residents will vote Nov. 3 on whether to add two commissioners to the three-member board.

“I think that will mitigate our issue out there,” Small said.

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