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Attorney General says Democrats need to provide a new list for Prosecutor

The Grays Harbor County commissioners can’t pick whoever they want to fill the elected prosecutor position. They must go off a list of three names provided by the political party. But if the person they do pick declines the seat, then the process starts all over again and the county can demand a new list.

That’s the genesis from a formal opinion released Monday from the state Attorney General’s Office regarding the ongoing saga involving the vacant prosecutor position.

Interim Prosecutor Gerald Fuller asked for the opinion after realizing the county was moving into murky legal waters with conflicting opinions that could make the county liable by angering different groups.

When Prosecutor Stew Menefee, an elected Democrat, retired on Sept. 30, it triggered a state mandate requiring the Grays Harbor Democrats to pick their favorite three candidates.

The Democrats picked their three favorite candidates, acing out a credible candidate from the list, opting for Deputy Prosecutor Katie Svoboda, who wants the job, and Vini Samuel and George Smylie, who support Svoboda.

The commissioners ultimately picked Samuel for the job, but she turned it down on Nov. 28.

The opinion, signed by Deputy Solicitor General Anne Egeler for Attorney General Robert Ferguson, says that if the appointee turns down the job, “the county commission may request that the relevant political party provide a new list of three nominees.”

County Commission Chairman Frank Gordon says he made that request in December and planned on sending a new letter this week requesting a new list. Gordon notes that the vacancy was discussed at the January meeting of the Grays Harbor Democrats, but no movement was made to set up a meeting to craft a new list. The Democrats meet next on the first Thursday in February.

“I’m elated with the news,” Gordon said. “This is great news for the county and came out the way I thought it would.”

At one point, Gordon threatened to create his own list if the Democrats refused to do one. But the Attorney General opinion says that’s not allowed.

The formal opinion notes that the “county commission lacks the authority to appoint a person who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney.” And “if the county commission appoints an individual who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney, that individual lacks the legal authority to act as prosecuting attorney.”

The opinion does seem to go into new ground relating to when, exactly the prosecutor position became vacant again.

The opinion notes that a constitutionally-mandated 60-day clock re-set after Samuel declined the position. Some legal minds had thought the whole matter would end up going to Gov. Jay Inslee after the clock ran out for him to make the appointment.

“In other words, authority transfers to a newly appointed prosecutor and the appointee becomes the incumbent, when the appointment is made — not after the person appointed qualifies by taking the oath of office and posting the bond,” the opinion states. “Therefore, if the appointed individual declines to take the oath of office or post the required bond, a new vacancy is created.”

In this case, the clock would run out somewhere around Jan. 26 — depending on how the days are counted.

But even if the clock runs out, it doesn’t mean that the governor would then take on the appointment process.

“The state constitution provides authority to the county commission to fill a vacant elective position within 60 days of the creation of the vacancy,” the opinion states. “f a majority of the commissioners cannot ‘agree upon an appointment’ within 60 days of the date a vacancy if created, the authority to make the appointment transfers to the governor. But the county commissioners ‘agree upon an appointment’ as soon as a majority votes to appoint a particular person, whether or not that person accepts the position.”

Basically, the county commissioners made their decision for the vacant position. Samuel just didn’t want it. And until the Democrats provide a new list, the commissioners don’t have to make any other decisions regarding the position.

The opinion does not comment on what would happen if the Democrats provide a list with the exact same three names.

However, that’s unlikely to happen. Samuel told The Vidette she has no plans to get back on the list again.

“I don’t think there should be a new list,” said Samuel, who still supports Svoboda for the position. “But I won’t be on the list. I think we should all move forward at this point.”

Smylie didn’t return a message seeking comment by Tuesday.

If the Democrats don’t send a new list, then everything is on pause — even if the 60-day clock runs out.

The opinion clearly notes that Fuller remains prosecutor until “a successor is either elected or appointed.”

The filing period for the elected office is in May. Svoboda has already filed paperwork with the state Public Disclosure Commission to raise money as a candidate.

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