HomeMy WebLinkAboutInvestigation Report 07252026July 25, 2026
Mayor Rob Putaansuu
216 Prospect St.
Port Orchard, WA 98366
Sent Via E-mail: rputaansuu@,portorchardwa.gov
L INTRODUCTION AND SUMMARY
I was retained by the City to investigate the alleged resignation of Councilmember Heidi
Fenton during an executive session attended by a quorum of the City Council. The Mayor did not
attend the executive session. In particular, I was asked to review whether and when the purported
resignation was legally effective.
In summary, I find that Councilmember Fenton's resignation was both effective, and
effective immediately. Additional analysis is set forth below.
IL INVESTIGATION SUMMARY
I conducted interviews of the following individuals:
• Councilmember John Morrissey;
• Councilmember Scott Diener;
• Councilmember Jay Rosapepe;
• Councilmember Eric Worden;
• Councilmember Marc Trenary; and
• Heidi Fenton and her attorney; I later received a voicemail from Ms. Fenton, as well.
I also reviewed the June 16, 2026, City Council Work Study Session video footage.
Councilmember Shirah Dedman was contacted for an interview but the councilmember
chose not to participate.
III. FACTS
At the June 16, 2026, City Council Work Study Session, the City Council met in an
executive session. The executive session was duly noticed and appropriately announced in the
Work Study Session. The reason identified for the executive session was RCW 42.30.110(1)(i):
Kenyon Disend, PLLC I The Municipal Law Firm I I I Front Street South Issaquah, WA 98027-3820 I Tel: (425) 392-7090 I Fax: (425) 392-7071 I www.kenyondisend.com
To discuss with legal counsel representing the agency matters
relating to agency enforcement actions, or to discuss with legal
counsel representing the agency litigation or potential litigation to
which the agency, the governing body, or a member acting in an
official capacity is, or is likely to become, a party, when public
knowledge regarding the discussion is likely to result in an adverse
legal or financial consequence to the agency.
Based on my discussions with the Councilmembers present, I can conclude the executive session
proceeded in typical fashion in compliance with this provision and in compliance with the law.
At the beginning of that executive session, the following individuals were present:
• Councilmember John Morrissey;
• Councilmember Scott Diener;
• Councilmember Shirah Dedman;
• Councilmember Jay Rosapepe;
• Councilmember Eric Worden;
• Councilmember Marc Trenary;
• The Police Chief;
• Human Resources Director; and
• The City Attorney.
Councilmember Heidi Fenton ("Fenton") and Mayor Putaansuu remained in the City Council
Chambers during the executive session.
At some point, Councilmember Dedman left the executive session.' The Police Chief and
Human Resources Director also later left the executive session. Councilmember Fenton was
invited to join the executive session at some point after those three departures.
During the executive session, Councilmember Fenton twice stated, "I resign."2 The City
Attorney asked Councilmember Fenton for a written resignation by e-mail. Councilmember
Fenton then left the executive session and City Hall.3 In my discussion with her, Councilmember
Fenton affirmed that no statements were made to her regarding whether or not her verbal
resignation was effective.
While the subjects discussed in executive session prior to the resignation would remain
subject to executive session confidentiality, Councilmember Fenton reports that she felt coerced
and pressured to resign. She told me that the other Councilmembers present at the time of the
resignation said they would initiate an investigation about her which would be public and could
result in legal proceedings. Councilmember Fenton stated she felt the only way to avoid this
' The video recording in Council chambers during the meeting skips time at 13:07, so there is no clear record when
individuals came and went from executive session.
z Most reported hearing the phrase, "Fuck this, I resign," or "I fucking resign," or some iteration thereof.
3 Some reported Fenton provided her notes to the City Attorney, but Fenton denied this occurred.
2
outcome was to resign. When I questioned the other Councilmembers present at the time of the
resignation, they uniformly reported no threats or coercion directed at Fenton; to the contrary,
some stated the conversation was respectful and empathetic.
The executive session lasted a total of 80 minutes. Following the executive session, the
Work Study Session resumed. The five remaining Councilmembers conducted business, including
taking action on agenda items. Councilmember Fenton had left the building and was not in
attendance after the Work Study Session resumed.
The next day, before noon, Councilmember Fenton e-mailed the Mayor and City Attorney
advising she was not resigning.
IV. ANALYSIS
A. Was Councilmember Fenton's Verbal Resignation 1) Effective and (2) If So, When?
The first question is whether Councilmember Fenton's resignation was effective and, if so,
whether it was effective immediately or at some later point.
There is no general legal requirement nor any legal requirement specific to Port Orchard
requiring that resignations be written in order to be effective.4 Thus, a clear verbal resignation can
be valid. Similarly, there are no applicable general or specific legal requirements specifying to
whom a councilmember must submit a resignation. Here, because the resignation was made to a
quorum of the City Council —the City's legislative body —I conclude that it was properly
submitted.
State ex rel. Munroe v. City of Poulsbo, 109 Wn. App. 672, 674, 37 P.3d 319 (2002)
provides specific guidance here, and addresses the question of when an elected public official's
resignation from office becomes final thereby creating a vacancy. In that case, Poulsbo City
Councilmember Munroe resigned during the middle of a City Council meeting while the Council
considered a nonprofit organization with which she had an association. She stated, "I'm going to
be asked to recuse myself. So, you can take this as my formal resignation from the Council." Id.
at 675.
When one of the other council members asked, "From the
Council?", Munroe responded, "That's right." Munroe then left the
meeting and the Council continued its business in her absence.
The next morning, February 17, at approximately 8
a.m., Munroe returned her keys and code book to City Hall. But a
couple of hours later, she decided that she had made a mistake and
called the mayor to say that she wanted to withdraw her resignation.
4 Absent a statute, charter, or ordinance requiring a written resignation, courts in many jurisdictions have held that a
clear, unequivocal oral resignation is sufficient.
Id. Notably, Councilmember Munroe never specified when her resignation was effective nor did
she submit a written resignation.
Division Two of the Court of Appeals affirmed the Superior Court in determining that the
verbal resignation was effective immediately and did not require additional process (like a formal
acceptance of the resignation) to create a vacancy. Id. at 679.
RCW 42.12.010(2) provides that a councilmember's office becomes vacant upon "the
resignation of the incumbent. A vacancy caused by resignation shall be deemed to occur upon the
effective date of the resignation[.]"5 Filling a vacancy is a time -sensitive process in Washington
state; a city has only 90-days to fill the position before the county legislative authority takes over
the process. RCW 42.12.070(4). Thus, when it comes to city councilmember resignations, time
is of the essence.
While it is true that a councilmember may provide an effective date for resignation,
Councilmember Fenton did not do so here. In the absence of a specified future effective date, my
interpretation of the law is that a resignation is effective when offered. If it were otherwise, no
principled basis would exist to determine the effective date (e.g., three days later, one week, 30
days?).6 Without conditions or qualifiers stated by Councilmember Fenton, the City should be
able to rely on the resignation being effective when stated.
Conclusion: Councilmember Fenton twice unambiguously stated her resignation to a
quorum of the City's governing body. It was made without conditions or qualifiers or any specific
subsequent effective date. The City Council resumed its Work Study Session, continued the
meeting, and transacted business without Councilmember Fenton present or participating. Under
these circumstances, I conclude that Councilmember Fenton's resignation was effective the
moment it was tendered.
B. Is a Resignation in Executive Session Treated DifferentlX?
The Open Public Meetings Act (OPMA) requires all "action" by a "governing body" to
take place in an open public meeting. RCW 42.30.060. "Action" is defined to mean, "... the
transaction of the official business of a public agency by a governing bodX including but not limited
to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and
final actions...." RCW 42.30.020(3) (Emphasis added). The City Council is the "governing
body." RCW 42.30.020(2). Under RCW 42.30.110, executive sessions are permitted to occur for
the reasons specifically enumerated in that section. Because executive sessions are not open public
meetings, however, no other "action" may be taken by the governing body in an executive session.
5 Unlike some statutes governing corporate officers or nonprofit directors, which expressly require written notice or
expressly allow oral notice, the vacancy statute for elected officials contains no writing requirement, suggesting the
Legislature did not intend to impose one.
6 "If the official does not specify a resignation date, then the resignation takes effect when it is delivered to the agency."
MRSC at https://mrsc.org/explore-topics/elections/leaving-office/vacancies#resignations.
7 King Cnty. Dep't of Cmty. & Hum. Servs. v. Nw. Defs. Ass'n, 118 Wn. App. 117, 125-26, 75 P.3d 583 (2003) ("as
a matter of law that the resignations of ... board members were effective when tendered.").
0
While a question may exist whether the unilateral verbal resignation of a single
councilmember constitutes "action" under the OPMA, we could find no binding authority on that
point. In our view, the better argument is that such a resignation does not constitute "action" under
the OPMA because a councilmember may resign at any time of the day or night, regardless whether
done at an open public meeting. Further, nothing in state law or city ordinance requires that the
City Council accept a resignation in order to make it effective.
There is no law requiring resignation to take place in an open public meeting. Resignations
may occur in private.
Conclusion: An unambiguous verbal resignation by one councilmember in an executive
session is effective.y
C. If Threats or Coercion Were Present, Does That Negate Resi ng ation?
There are no reported Washington appellate cases addressing whether an elected official's
resignation under RCW 42.12.010 is invalid because of coercion or duress.' In an employment
context, resignation is presumed to be voluntary.10 Any alleged coercion or pressure to resign
must effectively deprive the individual of a meaningful, voluntary choice.11 "Merely because
plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited
to two unpleasant alternatives does not obviate the voluntariness of her resignation."12
I am not making a factual determination as to whether or not Councilmembers in the
executive session applied pressure or made threats to Councilmember Fenton. On the one hand,
each of the Councilmembers who were present at the time of the resignation said they did not hear
any coercion or threats directed towards Fenton; on the other hand, Councilmember Fenton reports
threats and coercion by Councilmembers prior to her resignation. I do find that an investigation
about Councilmember Fenton was discussed and served as the impetus for Councilmember Fenton
to offer her resignation from the City Council.
A city council cannot remove a fellow elected councilmember. A councilmember may
only be removed at the ballot box or by successful recall. Nothing the City Council could say or
8 Generally, information shared in an executive session is confidential if it is "(a) specific information, rather than
generalized knowledge, that is not available to the general public on request or (b) information made confidential by
law." RCW 42.52.010(5). A governing body may waive said confidentiality — which has been done here, prior to my
involvement. I was also informed that attorney -client privileged communications shared in the executive session has
not been waived and made public, nor have I been privy to any such information. I do not believe this issue impacts
the efficacy of the resignation.
9 In an employment context, there are several Washington cases which discuss employees who resigned under threat
of termination, who then argued they only did so under duress or due to coercion. This line of cases stands for the
proposition that an employee's subjective belief that they "had no choice but to resign is irrelevant." Travis v. Tacoma
Pub. Sch. Dist., 120 Wn. App. 542, 551, 85 P.3d 959 (2004). While those cases do offer guidance here, they are
distinguishable, as the City cannot terminate a councilmember — only the electorate can remove a councilmember.
10 Molsness v. City of Walla Walla, 84 Wn. App. 393, 398, 928 P.2d 1108 (1996).
" Id.
12 Molsness, 84 Wn. App. at 398, quoting Christie v. United States, 207 Ct. Cl. 3339 518 F.2d 584, 587 (1975).
do would legally deprive Councilmember Fenton of a choice between continued service as a
councilmember or voluntary resignation. As a result, even if pressure or coercion to resign was
present, I find that any such pressure or coercion could not have deprived Councilmember Fenton
of a meaningful and voluntary choice to resign.
Conclusion: Even if Councilmember Fenton felt pressure to resign, her immediate
resignation remains effective.
D. Does Councilmember Fenton Have a Right to Retract her Resi n�?
Washington law does not provide a clear right for an elected official to withdraw or retract
a resignation. State ex rel. Munroe v. City of Poulsbo, supra, is instructive, in that the Court there
found the councilmember's resignation there to be effective when offered and could not be
retracted even less than 24 hours later. Councilmember Fenton's seat became vacant immediately
upon her resignation. A city council vacancy can only be filled pursuant to RCW 42.12.010.
Conclusion: Councilmember Fenton's email retracting her resignation which was verbally
tendered the day before does not entitle her to resume her position as councilmember.
Councilmember Fenton had no legal entitlement to retract a resignation once tendered.
Thank you for retaining Kenyon Disend, PLLC for this investigation. This investigation
is now complete. Please contact me directly by phone or e-mail should you require additional
information or if I may be of further assistance.
Very truly yours,
KENYON DISEND, PLLC
XW
Hillary J. Evans