RICHLAND, Wash. - The fight to recall three Richland School Board members continues as arguments began to be held Monday in Benton County Superior Court. The biggest argument centers on whether the trio was legally allowed to make the mask optional decision and whether their intention or legality/illegality constitutes a recall to go on a voter's ballot.

"They believed they had the discretion to lift the mandate. It was never their intention to break a law, but the legal counsel they received and even the counsel they received from Dr. Person of the Benton Franklin Health Department lead them to believe it would be okay if they chose the mask optional decision for Richland schools," said the board members' attorney, Jerry Moberg. 

3 Richland Board members facing potential recall plan to take judge's ruling to the state supreme court

Moberg has been defending school boards and school-related law for 50 years. This case would be only his second potential recall case for school board members. 

The case for recall - against board members Audra Byrd, Semi Bird and Kari Williams were filed on behalf of four Richland fathers alleging the three basically broke the law when the board members voted to defy the state mask mandate back in February. 

 "I am not trying to impune the intention of the three. They probably thought they were doing something good for the community," said the opposing attorney (counsel of the petitioners'), Doug McKinley, "But the way they went about it was completely illegal." 

Moberg argued that under the Governor's proclamation of the state mask mandate, the board members were technically not breaking any law but rather modifying public health "recommendations" set forth by local jurisdictions under Benton Franklin Health District.

"That is completely wrong," said McKinley, "The Governor is merely exercising his power to carry out a mandate under a state of emergency and proclamation, and it is not within the authority of school board members to blatantly defy that. This is what caused Richland schools to be closed for two days."

Two ballot synopses would have six charges and a third one could have seven - drafted by Benton County prosecutors on April 11.

The six charges against Bird, Williams and Byrd on the ballots are essentially the following:

1. Violating the Open Public Meetings Act by voting at a special meeting without including the vote beforehand on the published meeting agenda available to the public.

Moberg says a special meeting does not need the specificities of what will be discussed in the special meeting, and that the special meeting's published agenda, which stated "local action," was enough for the board members to use that term to make the motion to vote against the mask mandate. McKinley responded with, "Thousands of parents on either side of that decision have been very vocal about what they believe. I'm sure they would have loved to have known that "local action," on the agenda meant they were voting on the masks. Parents would have wanted to be at that meeting to have a say." 

2. Held non-public meetings in violation of the Open Public Meetings Act. 

Moberg argues that no secret meetings took place between the board members prior to the special meeting. McKinley says he will prove otherwise.

3. Violating the law of the state mask mandate by voting to make wearing masks optional in Richland School District and therefore surpassing the powers of the school board.

4. Not reversing the vote of the optional mask wearing, which resulted in two days of temporary school closures and the risk of losing state funding.

According to Moberg, an executive meeting did take place the day after the vote, which motivated the board members to extend the mask mandate until the governor decided to lift it a couple of weeks later.  

5. Violating district code of ethics by not upholding laws, rules and regulations and not following ethics; procedures to ensure that school are legally running.

6. Violating district policies and procedures by not complying with state law and procedures.

A seventh charge applies to only Semi Bird for, “Violating free speech rights by censoring and deleting comments on a social media page maintained as a public forum."

"In my 50 years of practicing law that has been the most fascinating charge I've had to defend," said Moberg, “This is a man who is a military veteran and bled for the right for all of us to have the right to free speech right and to suggest that this patriot and veteran was out trying to squelch the first amendment right is disrespectful. Washington state has not made it official if a person’s personal Facebook page can't be modified to block comments. Bird blocked comments he thought were hate crimes or cyberbullying."

Judge Norma Rodriguez is hearing the case and is set to decide by May 11 if the charges meet Washington state’s definition for recall. If she decides yes, signatures can begin to be gathered to put the issue on the ballot for a vote.

If Judge Norma Rodriguez votes that the charges are enough to place the recall on a ballot, the four petitioners would have 180 days to gather 5,000 signatures for each school board member. This would be 25% of total votes cast in each of the school board members’ last election. 

If the appropriate number of signatures are obtained, the recall election will be held from 45 to 90 days following the conclusion of canvassing.

 In order for the three to be recalled, petitions need 50% plus one of the vote. The board member would have to leave office by the date of the elections' certification if they are voted out of office.

Additionally, Richland School District school board made the decision in April that RSD will reimburse the three school board members’ legal fees if the judge decides to not move forward with the recall.

Bird and Byrd both voted in favor of having the district cover their legal fees, while Williams recused herself from the vote. President Jill Oldson and Rick Jansons also voted in support of the plan.

Ty Beaver, Public Information Officer for RSD said the district has not formally estimated what that cost would be; although taxpayers would cover that cost. 

The board members’ attorney Jerry Moberg, said he cannot share what those fees are at this time.

Moberg says his purpose in defending the board members is to prove the petition and the ballot synopsis created on behalf of the petition is insufficient to make the recall go on a ballot.

"This is not a political debate. Were they intending to act illegally, or were they intending to carry out what their duties and responsibilities were? That’s the purpose of a recall election, not what the ultimate vote was," said Moberg. 

McKinley says his purpose in representing the petitioners is to prove the ballot synopsis including the 6 charges (7 in Semi Bird's case) are sufficient evidence enough to go on a recall ballot. 

"It doesn't matter which side of the mask debate you are on. This is about following rules and procedures legally," said McKinley.