YAKIMA, Wash. -- Did a Yakima City Council member who worked outside public view to pass a controversial budget policy vote violate the state open-meetings law? If so, did he mean to do it?

Those two questions are at the heart of a 9 a.m. hearing today in Yakima County Superior Court for a proposed recall of Rick Ensey. (The time was moved up from
9:30 a.m.)

Charlotte Jones and Gene Rupel will ask Judge Michael McCarthy to approve their petition for a recall of the first-term councilman for his role in an unscheduled council vote on April 14.

The vote led to the on-the-spot resignation of then-Councilman Neil McClure in protest and a lawsuit alleging -- but not proving -- Ensey and three other members of the council violated the open-meetings law.
The matter was ultimately settled out of court for $2,500.

Before they can begin collecting signatures for a special election, a judge must first sign off on the recall petition. State law puts judges in the position of gatekeepers to prevent frivolous or unfounded recall attempts.

There have been at least two recall attempts in the Yakima area based on alleged violations of the open-meetings law. Both ended badly for the petitioners.

The first was in 1996. Petitioners sought to recall five out of six members of the Naches City Council over a meeting that dealt with delinquent irrigation bills.

Superior Court Judge Heather Van Nuys threw out the case, saying a recall attempt was improper because the petitioners failed to prove a violation of the open-meetings law had occurred.

Her decision was upheld on direct appeal to the Washington State Supreme Court, which said a recall based on an alleged violation of the law can move forward only if there is proof of a violation and that the violation was deliberate.

The court noted the Naches petitioners had not even argued intent.

The second case was in Union Gap in 2005. That effort never got past the trial court, which said there was no evidence to support the accusation that council members there held a private meeting to conspire about ways to fire the city manager.

The recall effort against Ensey is largely based on e-mails with Councilwoman Kathy Coffey and Yakima Valley Business Times editor and publisher Bruce Smith, which discussed changing the way the city draws up its budget.

The e-mails show that in the days leading up to a council meeting, Ensey and Coffey worked with Smith to make sure they had support from councilmen Bill Lover and Micah Cawley to approve the change.

Ensey has denied any wrongdoing and said Thursday he'll be at today's hearing. "I'm optimistic. Let's leave it at that," he said.

Richland attorney Doug McKinley will argue on behalf of Jones and Rupel. (George Fearing of Kennewick withdrew as their attorney because of a concern raised by the city of Yakima's insurance carrier. Fearing's law firm does business with the insurer.)

In a legal brief filed Wednesday, McKinley argues that the state's recall statute does not require the judge to make a finding that an open-meetings law violation occurred, or that there was intent to violate the law.

However, if the court sticks with the two-part legal test, McKinley argued the proof on Ensey is there and that the councilman's conduct was willful.

Otherwise, he wrote, "a city council member can simply refuse to read relevant texts and then claim that, since he was ignorant of the law, he intended no violation."

Ensey's attorney, Gary Lofland of Yakima, argues the e-mails among Ensey, Coffey and Smith do not show how anybody was going to vote and that the City Council's decision to rescind -- and later readopt -- the budget policy nullified any alleged wrongdoing.

Lofland, in his legal brief also filed this week, urged the court to throw out the recall petition, in part, on the grounds that it's an example of political payback brought by Democrats and former Councilman Ron Bonlender, who lost his seat to Ensey in a partisan-tinged duel in 2007.

"The allegations of violation of the (open-meetings law) cover the real reason," Lofland wrote, and that is "the political enmity by Bonlender and
the Democratic Party."

* Chris Bristol can be reached at 509-577-7748 or cbristol@yakimaherald.com.