(concurring in part, dissenting in part)—Although I concur with the majority's conclusion that a state of financial exigency existed and that there was no violation of Central's affirmative action program, I write separately because I would hold the Open Public Meetings Act of 1971 is applicable to meetings of the Faculty Senate Executive Committee (SEC) held to develop a layoff plan. Because I would affirm the Superior Court's reversal of the layoff decision of the Board of Trustees for violation of the Open Public Meetings Act of 1971, I do not address whether the due process clause of the Fourteenth Amendment requires a pretermination hearing in a layoff for financial exigency. However, under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) and Mathews v. Eldridge, 424 U.S. 319, 335-36, 350, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) there is a persuasive argument that the property interest Dr. Refai had in retaining his tenured position is significant enough to *18require constitutional protection of a pretermination hearing. There may be a lower risk of erroneous termination in a termination for financial exigency, as opposed to termination for cause, and the government interest in making prompt budget cuts to respond to the financial exigency may outweigh Dr. Refai's interest. However, I am not persuaded this is the case and believe the issue requires further analysis.
A 3-prong approach is useful in addressing the applicability of the Open Public Meetings Act of 1971 to the layoff plan developed by the SEC. First, are SEC meetings leading to a recommended layoff plan within the scope of the Open Public Meetings Act of 1971? Second, is the resulting layoff plan null and void because the SEC meetings were not open to the public? And, third, does Dr. Refai have standing to raise a violation of the Open Public Meetings Act of 1971?
A. Are SEC meetings leading to a recommended layoff plan within the scope of the Open Public Meetings
Act of 1971?
Although the majority has set out the applicable statutory provisions, I restate them because of the critical importance of the statutory language. RCW 42.30.030 provides:
Meetings declared open and public. All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.
(Italics mine.) "Public agency" is defined by RCW 42.30-.020(1):
(1) "Public agency” means:
(a) Any state board, commission, committee, department, educational institution, or other state agency which is created by or pursuant to statute, other than courts and the legislature;
(c) Any subagency of a public agency which is created
*19by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies;
(Italics mine.) "Governing body" is also a defined term under RCW 42.30.020(2). The wording of the definition before 1983 amendments was:
(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency.
(Italics mine.) Laws of 1982, 1st Ex. Sess., ch. 43, § 10, p. 1307. RCW 42.30.020(2) now reads:
(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.
Laws of 1983, ch. 155, § 1, p. 669.
As Dr. Refai contends, and the majority recognizes, RCW 42.30 has been declared to have the remedial purpose of guaranteeing public access to and participation in the activities of their representative agencies; therefore, the act should be liberally construed and its exceptions narrowly confined. Mead Sch. Dist. 354 v. Mead Educ. Ass'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975); Port Townsend Pub’g Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).
The majority stated, and I agree, the relevant question is whether the SEC meetings were meetings of the "governing body" per RCW 42.30.030, since only meetings of the governing body of a public agency or subagency are subject to the open meetings provisions. The definition of governing body in effect in 1982 when the layoff plan was prepared has two elements: (a) it must be multimember; (b) it must be a "policy or rule-making body". Although not binding on this court, AGO 33 (1971), at 9 interpreted the phrase "policy or rule-making" to modify the terms that precede it as well as those that follow so that only hoards, commissions, etc., that are policy or rulemaking are covered by the *20Open Public Meetings Act of 1971. Regarding advisory committees, etc., although the subagency's advice may not be binding on the agency to which it relates, it "must . . . be legally a necessary antecedent to that agency's action; ..." for the subagency to be a policy or rulemaking body. (Italics mine.) AGO 33 (1971), at 9. This definition of governing body was also applied in AGO 1 (1983).
The majority's conclusion that the SEC is not a governing body under the Open Public Meetings Act of 1971 rests heavily on the factual distinction between the decisionmaking power conferred on the law school faculty in Cathcart v. Andersen, 85 Wn.2d 102, 530 P.2d 313 (1975) and the authority conferred on the SEC. The law school faculty in Cathcart exercised greater policy or rulemaking power than the SEC, but to distinguish Cathcart as the majority has, i.e., by concluding the Open Public Meetings Act of 1971 is not applicable in this instance, ignores the policy expressed by Cathcart. Such interpretation conflicts with the legislative mandate instructing us to broadly construe coverage of the Open Public Meetings Act of 1971.
Cathcart, at 107, rejected the argument that the Open Public Meetings Act of 1971 should not apply because faculty action is always ultimately subject to the rulings of the Board of Regents and executive orders of the president and thus, the faculty was not truly a "governing body". In so doing Cathcart, at 107, stated:
We believe that the purpose of the Act is to allow the public to view the decisionmaking process at all stages. The decisions of the faculty are "conditional" only in an abstract hypothetical sense and the board of regents adopts faculty actions almost as a matter of course. The legislature in the enacting section of the Act (RCW 42.30.010) states, in some of the strongest language we have seen in any legislation, that:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people *21insist on remaining informed so that they may retain control over the instruments they have created.
In RCW 42.30.910, it is stated:
The purposes of this chapter are hereby declared remedied and shall be liberally construed.
Likewise the fact the SEC was charged with drafting a layoff plan for approval by the president does not take the SEC action out of the scope of the Open Public Meetings Act of 1971. Provisions of the faculty code convince me that the formulation of a draft layoff plan by the SEC was necessary to the president's decision to lay off Dr. Refai; that without a valid draft layoff plan, Dr. Refai's layoff would violate the faculty code. Therefore the SEC's action was the action of a policy or rulemaking body.
Section 0.01B of the Faculty Code of Personnel Policy and Procedure, September 1981, provides: "This code is binding on the faculty . . ., the university administration, and the Board of Trustees." Section 3.78 of the faculty code is entitled "Layoff Policy" and provides:
Layoff Policy
It is necessary for Central Washington University to maintain a layoff policy in order to make such adjustments in staffing as may be necessitated by financial exigency or program needs. . . . Under the provisions of this policy, all faculty members, regardless [of] rank, position, or tenure status, are subject to possible layoff in the event of financial exigency or program needs.
A. If such financial exigency or need for staffing adjustment among programs occurs, the president of the university shall declare to the faculty, in written form or in public assembly, the causes that exist for layoff; and shall direct the vice president for academic affairs and the Faculty Senate Executive Committee jointly to develop a layoff plan which will address the university's need to reduce the number of faculty members when employed or reallocate faculty positions among the units of the university. The academic vice president and the Senate Executive Committee will evaluate the declaration of financial exigency or need for staffing reallocation and the cause or causes *22for layoff. If cause for the declaration is substantiated, this plan will (1) identify particular departments or programs in which a specified number of positions are to be eliminated, (2) state the reasons for each decision as to department or program and number of positions, (3) describe the process by which such decisions were arrived at, and (4) establish a strict timetable for each step in the process of review and for final implementation of the plan. The plan will then be made available for review by the Faculty Senate, the deans, and the departments or programs, all of whom may submit written responses to the academic vice president before a date to be specified on the timetable. The vice president and the Senate Executive Committee shall then formulate and submit to the president a draft of the proposed plan, modified to whatever extent they see fit in the light of written responses; this draft shall list the names of affected faculty members, as determined on the basis of order of seniority within a department or program, in accordance with the criteria of 3.78 G. below. The president shall then decide whether to implement the plan as presented or to propose modifications to the vice president and the Senate Executive Committee.
B. When the plan is in a final form satisfactory to the president, the academic vice president and the Senate Executive Committee, the president or his designee shall implement it by sending by certified mail, or causing to be personally delivered, a layoff notice to each affected faculty member. Each notice of layoff shall be signed by the president, shall include a copy of the final layoff plan; and shall inform the faculty member of the layoff date, of the right to appeal, and of the right to re-employment.
(Italics mine.)
Significantly, the faculty code terms the layoff plan as "necessary" and uses the wording "shall" when dictating the obligations of the SEC to develop a draft layoff plan. The president has the final decision on whether to implement the plan "or to propose modifications to the vice president and the Senate Executive Committee," however, the SEC and the president share responsibility for imple*23meriting the layoff plan. Faculty Code § 3.78A, B.
The general policy of the Open Public Meetings Act of 1971 supports a requirement that the SEC formulate any draft layoff plan in open meetings. In an open meeting the public has the right to hear the deliberations of the university body having the task of deciding which programs to retain or cut, and, consequently, which positions to recommend for layoff. The decision favoring technological programs over liberal arts (including history) ultimately impacts the educational opportunities available to the public. Public input is more likely to impact the SEC's decision if it occurs while the programmatic deliberations are being made, when members of the public can request the opportunity to give testimony before the committee, write to the committee and inform the local and university papers. It is important to recognize that the Open Public Meetings Act of 1971 does not contemplate public disruption of the meeting, rather it mandates that the public has a right to know what is discussed in the meeting.
Here, the draft layoff plan was made public on May 28, 1982, and discussed at an open faculty forum on June 8, 1982. June 9, 1982, only 1 day later, was the deadline for written responses on the draft layoff plan. As a practical matter, this opportunity for public input was too brief to permit influence of the layoff decisions. Also, there was no opportunity for public input regarding modifications made to the plan after the deadline for written responses. If the content of the committee hearings was accessible to interested persons as the hearings progressed, there would be no surprises and ample opportunity to formulate objections in a constructive manner.
The university was asked why the SEC met in closed meetings to draft a proposed layoff plan. Vice-President Harrington said it would be bad for morale for the SEC to hold public meetings. He stated the 1973 open meetings concerning layoffs tore departments apart and embittered people as each department or member within a department tried to avoid cuts; that the university considered those *24open meetings a mistake they would not make again. This testimony only reinforces the need for an open public meetings act. The policy statement of the Open Public Meetings Act of 1971 declares the public does "not give their public servants the right to decide what is good for the people to know and what is not good for them to know." RCW 42.30.010. The university may not make layoff plans in closed meetings, depriving the public of the right to know of the deliberations being conducted and which will have a significant impact in determining which educational programs will be cut. It is the public which will suffer if decision makers sacrifice history programs to technology, particularly when the opportunity for public input is, as a practical matter, too short for any input.
B. Is the resulting layoff plan void because SEC meetings were not open to the public?
RCW 42.30.060 provides:
Ordinances, rules, resolutions, regulations, etc., to be adopted at public meetings—Notice. No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this section shall be null and void.
(Italics mine.)
"Action" was a defined term under former RCW 42.30-.020 (Laws of 1983, ch. 155, § 1, p. 669):
(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to a collective decision made by a majority of the members of a governing body, a collective commitment or promise by a majority of the members of a governing body to make a positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.
The definition of "action" has been amended by Laws of *251985, ch. 366, § 1, p. 1301.
AGO 33 (1971), at 39 interprets the reference in RCW 42.30.060 to "action taken at meetings failing to comply with the provisions of this section" to incorporate by internal reference all of the notification and public meeting requirements of the act. (Italics mine.)
In 1975, Mead Sch. Dist. 354 v. Mead Educ. Ass'n, 85 Wn.2d 140, 530 P.2d 302 (1975) followed AGO 33 (1971). There, the court held the school board's failure to comply with the requirements of notice to members of the public agency and the media 24 hours prior to holding an unscheduled meeting resulted in the resolution passed at the meeting being considered "legally nonexistent." Mead Sch. Dist. 354, at 145. Therefore, the lawsuit purportedly authorized by resolution was unauthorized and the lawsuit had to be dismissed. Mead Sch. Dist. 354, at 145.
Here, the SEC held seven meetings, not open to the public, to develop a recommended layoff plan. Following completion of the draft plan, it was released to the academic community and discussed at a regular faculty senate meeting on June 2, 1982, and again reviewed and discussed at an open faculty meeting on June 8, with an opportunity for response by noon, June 9. The SEC again met on June 10 with individual department chairpersons, the result being the plan was further modified in closed meetings to delete a physics position from the layoff lists. The university president then implemented the layoff plan.
The definition of "action" then in effect encompasses the recommendation of a layoff plan under the wording, "a collective decision made by a majority of the members of a governing body" and, notably, the definition specifically states action is not limited to the enumerated examples.
The university argues because the university president made the final decision to implement the layoff plan, any violation of the Open Public Meetings Act of 1971 by the SEC is irrelevant since it would not extend to the president's decision.
An individual's decision is not within the Open Public *26Meetings Act of 1971. AGO 33 (1971), at 7. However, I have already emphasized that Cathcart, at 107, rejected the argument that a decision by a committee which is ultimately reviewed by another decision maker is not covered by the act. The policy is to allow the public a view of the process at all levels. Cathcart, at 107. While the university president did not merely "rubber stamp" the SEC's recommended layoff plan, the plan was substantially approved as recommended.
I would hold the recommended layoff plan was formulated in meetings not open to the public, thus it was void.
C. Does Dr. Refai have standing to raise a violation of the Open Public Meetings Act of 1971?
There are two types of meetings defined by RCW 42.30. The notice required for a meeting depends on the classification of the meeting involved. RCW 42.30.075 defines "regular" meetings as those "recurring meetings held in accordance with a periodic schedule declared by statute or rule." Special notice requirements are provided for special meetings in RCW 42.30.080; written notice must be given to each member of the governing body and to each newspaper, radio station or television station which has on file with the governing body a written request to be notified of a special meeting.
In Kirk v. Pierce Cy. Fire Protec. Dist. 21, 95 Wn.2d 769, 772, 630 P.2d 930 (1981), the court held a discharged employee did not have standing to raise the matter of improper notice to a board member under the Open Public Meetings Act of 1971 regarding notice of a special meeting of the commissioners of a fire protection district. In Kirk no media station had filed a request for notice of special meetings, so only the members of the governing body were entitled to notice. Kirk, at 773. The discharged employee was not a member of the governing body, thus he had no standing to raise the issue; however, unlike Dr. Refai, he was present at the meeting considering his dismissal. Kirk, at 770.
*27The university argues Kirk precludes Dr. Refai from raising a violation of the Open Public Meetings Act of 1971 because he was not entitled to notice and thus has no standing. Under Kirk, Dr. Refai would have no standing to raise a violation of the notice requirements for a special meeting. But it is not clear that under Kirk Dr. Refai would have no standing to claim the action of the SEC was void because it was taken at a meeting closed to the public. RCW 42.30.130 provides:
Violations—Mandamus or injunction. Any person may commence an action either by mandamus or injunction for the purpose of stopping violations or preventing threatened violations of this chapter by members of a governing body.
(Italics mine.) AGO 33 (1971), at 39 n.19 pointed out that the original bill creating the Open Public Meetings Act of 1971 would have limited standing to sue to "any interested person”. The fact that the broader "any person" language was adopted supports a conclusion that standing is to be more broadly construed.
Dr. Refai claims he is an aggrieved person and is covered by the "any person" language of RCW 42.30.130. I agree. I find no objection that he has chosen to incorporate his request for relief within the appeal process granted him under the faculty code, rather than pursuing a separate action by mandamus or injunction.
In summary, I would hold Dr. Refai has standing to raise a violation of the Open Public Meetings Act of 1971. I would affirm the Superior Court's reversal of the decision of the Board of Trustees and reinstatement of Dr. Refai. The layoff was void because the procedure followed violated the Open Public Meetings Act of 1971.
Reconsideration denied September 24, 1987.
Review denied by Supreme Court February 1, 1988.