The Yakima County prosecuting attorney plans to pursue an arcane, rarely used legal action in an attempt to determine whether the city of Wapato’s mayor is lawfully in power and to oust her if she is not.

The Wapato City Council called twice for Mayor Dora Alvarez-Roa’s resignation. She refused.

Community members have questioned whether that refusal means Alvarez-Roa will remain in office until her term expires at the end of November or whether it’s possible for someone to remove her from power before then.

There are several ways to remove an elected official from office — a little-used writ filed by the county prosecutor, a felony conviction, a court decision following a lawsuit, or a recall election.

None of them are simple. Officials from the Wapato City Council, Yakima County Sheriff’s Office, the State Auditor’s Office and the state Attorney General’s Office say their hands are largely tied, citing limits to their authority under state law.

But Yakima County Prosecuting Attorney Joseph Brusic said Wapato’s situation warrants extreme action.

The writ at Brusic’s disposal, called quo warranto, is a civil legal action used to resolve a dispute about whether a specific person has the legal right to hold the public office occupied. It’s only been used successfully in Washington state twice in the last 20 years.

The Wapato community has made clear its desire to have Alvarez-Roa removed from office, Brusic said. And one of his ever-evolving goals has been to assist people in determining whether her removal is possible, should she be in the position unlawfully.

“I realize that some people’s hands are tied,” he said. “But mine are not.”

Wapato’s leaders

Alvarez-Roa has served as Wapato’s mayor since Sept. 4, 2018, when she was appointed by the Wapato City Council after then-mayor Juan Orozco resigned. Alvarez-Roa then immediately appointed Orozco to a newly created city administrator position, with a $95,000 annual salary in a contract he had helped engineer.

The city has since faced multiple lawsuits, more than $500,000 of attorney fees related to those lawsuits, a deficit in the city’s reserves of more than $41,000, eight findings of mismanagement or violations of law identified in a state auditor’s report, an ongoing criminal investigation and a financial crisis, all since Orozco and Alvarez-Roa rose to power.

Orozco resigned July 19 as part of a settlement agreement with the state attorney general, who sued in June, alleging that Orozco had used his position to unlawfully enrich himself. As part of that settlement, he agreed to pay a $500 fine for violating the ethics code for municipal officers. He cannot hold office or work for the city in Wapato in the future, under the agreement.

Orozco, along with other city officials and staff, became the subject of a criminal investigation started in July by the Yakima County Prosecuting Attorney’s Office and the Yakima County Sheriff’s Office.

On Aug. 13, he was booked into the Yakima County jail on suspicion of official misconduct but released the next day after a Superior Court judge found there was not sufficient evidence in a probable cause affidavit to hold him. Following the judge’s ruling, a Sheriff’s Office spokesman said the investigation is ongoing and Orozco likely still will be charged.

Alvarez-Roa has stood in staunch support of Orozco since she appointed him.

She refused to terminate him from the city administrator position following publication of the state auditor findings. She ”regrettably” accepted his resignation following the AG’s lawsuit, choosing to praise what she called “his vision, commitment, and drive.”

She accused the Yakima County Sheriff’s Office of “horrible injustice” during the criminal investigation into an alleged theft of a $100 donation to the city’s Harvest Festival, noting that misinformation had sent an “innocent man” to jail.

Voters made their intentions clear in the August primary, with Alvarez-Roa receiving only 30 of 287 ballots cast — less than 8 percent of the vote. She will not advance to the general election in November. County elections staff said a new Wapato mayor can be sworn in after the election results are certified on Nov. 26.

She’s also lost the support of the City Council, which took unanimous votes of no confidence in her leadership and publicly called for her resignation, twice.

In the midst of that maelstrom, Alvarez-Roa said in an email Monday that she has no plans to resign.

“I have heard from several members of not only our community, but others as well, that have told me that we are doing a good job here in Wapato,” she said. “We have made a difference. I have heard from community members as well as business owners that they support what we are doing.”

Unpopular decisions Alvarez-Roa has made since Orozco’s resignation include firing police chief Dominic Rizzi on Aug. 2, appointing Officer Michael Campos in his stead, and placing City Clerk Treasurer Kim Grimm on administrative leave in the midst of the city’s declared financial crisis. Alvarez-Roa also recently permitted the installation of a $4,600 water purification system in City Hall that the Wapato City Council did not know about or approve.

In August she directed city staff to comply with law enforcement requests for records related to the ongoing criminal investigation, but only with public records requests, search warrants or subpoenas. City Attorney Julie Norton said, via email Aug. 21, that the mayor’s directive had not been adopted as an official position of the city.

“As I understand, the mayor pro tem is supportive of city staff cooperating with official investigations and will advise staff accordingly,” Norton wrote. Councilman Keith Workman is the mayor pro tem.

Alvarez-Roa told city staff Aug. 25 that following orders from anyone but her or disobeying her directives could get them fired.

“You are only to take direction from me, and not from Councilman Workman or the city attorney,” she wrote. “Failure to follow this directive will result in disciplinary action leading up to and including termination.”

She added that she wanted all city employees contacted by sheriff’s investigators to log the names, time and requested records “so I can better assist them,” she wrote.

“It is my goal that each and every one of you focus on your work and enjoy your job,” she said. “If anyone directs you otherwise, you are to contact me by phone or email immediately.”

Alvarez-Roa did not attend the Aug. 19 council meeting. Monday, via email, she debunked rumors that she had left for Arizona or that she had decided to take a two-week leave of absence.

“I’m in Wapato, and have been in and out of the office at different times of the day,” she said. “As part-time mayor I do not have set hours.”

Alvarez-Roa’s appointment at the Sept. 4, 2018, council meeting is under scrutiny. The meeting was one of several targeted in lawsuits alleging violations of the state’s open public meetings act. A state auditor’s report, published in May, noted that the Sept. 4 meeting was a special meeting, without proper notice to the public, and as such, the council should not have taken any final actions, including appointments.

But a state auditor’s report has no legal authority, said Richard Gilliland, a Yakima-based attorney who filed one of the open meetings act lawsuits on behalf of eight Wapato residents in September 2018.

Toby Nixon, president of the Washington Coalition for Open Government, confirmed that a court order would be necessary to invalidate Alvarez-Roa’s appointment.

“Somebody would need to file a lawsuit under the (Open Public Meetings Act) and ask a court to declare the action null and void,” Nixon said. “It would be the court order that invalidates the action, not the report, although the report could be evidence in the lawsuit.”

The lawsuit Gilliland filed has since been settled, with the city required to pay $60,000 in attorney fees and acknowledge that a June 15 meeting was a special meeting, not a regular council meeting, and that there was not a quorum of council members present for all actions undertaken. At that meeting, members voted to change their meeting time.

Gilliland said Alvarez-Roa’s set of circumstances would have made it difficult for his firm to require her resignation as part of the settlement he extended to the city in the Open Public Meetings Act lawsuit.

“Getting her resignation through a lawsuit would have been very difficult due to a number of technicality defenses,” he said. “But a lawsuit could hold her accountable, if you could get past the legal shields protecting her.”

The power of the court

Multiple circumstances can warrant quo warranto. Elected officials can be removed from their positions if convicted of a felony offense or malfeasance in office or if they come to the position unlawfully in the first place, Brusic said.

The topic of quo warranto first came up publicly at a July meeting at Wapato’s Wolf Den restaurant, when Brusic met with concerned Wapato residents about the situation at City Hall. But the focus at that time was Orozco, not Alvarez-Roa.

“After Orozco’s resignation, she became the focal point,” Brusic said. “Now we have a secondary figure. It’s only been the last three weeks that everything has hit with her. But I believe with Wapato that we can do it, with more evidence and as long as we have cooperation.”

Brusic said filing the writ comes with serious ethical and legal considerations. He must be able to prove a legal basis for the claim and also that there is sufficient admissible evidence to convince a court, by a preponderance of evidence, that Alvarez-Roa should be ousted.

Brusic has never had to use the process. The only person who has done so successfully in Washington state, in the past 20 years, is Pamela Loginsky, a staff attorney with the Washington Association of Prosecuting Attorneys. Loginsky was involved with both of the successful quo warranto cases, Brusic said. Two other attempts, by different attorneys, were not successful.

On Wednesday, he appointed her as a special deputy prosecuting attorney to work with him on Wapato.

“She’s the only attorney in the last 20 years who has successfully done this,” he said. “That’s how dead serious I am taking this. I am absolutely and aggressively going after it.”

Brusic’s appointment allows Loginsky to immediately become involved with the investigations and to remain engaged through Dec. 31, 2022, the end of Brusic’s term. As with the criminal investigation, the process will still take time, Brusic said.

“The community is asking me to do something rare and extreme under the Constitution,” Brusic said. “There are protections in place that come with that power. We have to work through the evidence to make sure we have a legal basis and sufficient evidence. That’s what we’re going after now.”

Power of a conviction

A criminal investigation of Wapato city government started in June. Given that the investigation is ongoing, authorities declined to share specific details.

But Yakima County Sheriff spokesman Casey Schilperoort said Monday that deputies have access to Wapato City Hall during hours of operation Monday through Thursday. He said he is not aware of deputies needing search warrants to access documents or that investigators have otherwise had difficulty obtaining documents.

Brusic said he has heard complaints about alleged destruction of records, and such allegations are a concern.

“We would like full access to City Hall to obtain information and to know what’s being done in Wapato,” he said.

Contacted about the allegations, Alvarez-Roa responded via email. “I would like to know who is making these allegations of destruction of public records and where they are getting this information,” she wrote.

State Auditor Spokeswoman Kathleen Cooper said Monday that her office has not received any official complaints about destruction or modification of records at Wapato City Hall but added that the office would investigate that type of complaint.

“We continually evaluate issues that come to our attention,” she said. “If such a complaint were to be made via our tip line, it would be a factor in the risk assessments we conduct while planning future audit work.”

Destruction or tampering with public records is a Class C felony, punishable by up to five years in prison and up to $10,000 in fines. Brusic said he would appreciate the cooperation of Wapato residents as well as city officials for the remainder of the investigation.

‘Our hands are tied’

Workman told the public at an Aug. 19 meeting that the council’s hands are largely tied when it comes to Alvarez-Roa. The council cannot usurp the mayor’s decisions and cannot remove her from power.

“We are trying to do everything we can do, but we have to follow the law,” Workman repeated in a follow-up interview. “We have to move forward legally. That’s the only way we are going to put any of this behind us.”

Cooper, the state auditor’s spokeswoman, said the office’s next audit cycle on Wapato — which will focus on financial statements for 2018-2019 and an accountability audit for 2019 — won’t start until 2020.

The accountability audit will take a broad look at the city’s government to determine what areas pose the greatest risks to public findings but also will follow up on the eight findings in the May report, she said.

Cooper acknowledged that audit findings, coupled with action from other agencies, can lead to resignations: Orozco’s resignation in July was an example.

But Alvarez-Roa’s circumstances identified in the auditor report are different from Orozco’s, said Brionna Aho, spokeswoman for the state Attorney General’s Office.

Aho said the audit report found that Orozco violated the code of ethics for municipal officers, which includes a potential penalty of removal from office. For Alvarez-Roa and members of the City Council, the audit report found violations of the state’s open meetings act, which carries possible penalties, but no provision for removal from office, she said.

“It is rare for our office to bring an action against local governments,” Aho said. “In recent memory, I’m aware of only this case and a separate case accusing the city of Sunnyside of civil rights violations.”

Aho said the primary way to remove an elected official is the recall process. Hugh Spitzer, a law professor at the University of Washington School of Law, said recall elections are hard to pursue because of detailed statutory requirements.

“If council members or other citizens wanted to pursue a recall, they should engage someone who is experienced in recalls to make sure the petition is written in the way that works with the statute,” Spitzer said.

The state constitution allows a recall election only if the targeted public official has engaged in the “commission of some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office” — a requirement that has proven difficult to meet in the state’s history and, like all the other options, would take time.

Moving forward

Brusic said that he and Loginsky have discussed the quo warranto procedure and have a strategy in place. He said he would be willing to share more details later.

Regarding other Wapato affairs, Brusic said that he’s reviewed the entirety of the evidence related to the misappropriation of more than $300,000 of city funds prior to Alvarez-Roa and Orozco’s time in power.

“We are at the point of preparing charges, including multiple counts of a number of felonies,” he said.

Brusic said he also met with sheriff’s deputies for more than two hours on Tuesday and the criminal investigation will continue moving forward.

Wapato’s next City Council meeting is set for Tuesday, Sept. 3, given the Labor Day holiday. The meeting will start at 7 p.m. at the Wapato Community Center.

Reach Lex Talamo at ltalamo@yakimaherald.com or on Twitter: @LexTalamo.