(concurring) — I agree with the majority that the recall petitions submitted in this case present insufficient grounds for a recall election. However, I cannot condone the majority's inquiry into a recall petitioner's underlying motivation. Rather, judicial review of the recall charges must be confined to a determination of their legal and factual sufficiency.
In Washington an elective public official can be recalled only for cause. Const, art. 1, §§ 33, 34 (amend. 8); RCW 29.82.010. The requirement of cause, however, has not always been emphasized in the determination of a recall petition's sufficiency. Thus, in the past the right of recall was used in many instances to harass public officials. Recently, in an attempt to prohibit such harassment yet retain the public's right to recall for cause and following severed legislative changes in the recall statute, this court held that a "recall petition must be both legally and factually sufficient." Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). Factual sufficiency means the petition must comply with the specificity requirements of RCW 29.82.010 and legal sufficiency means the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office. Chandler, at 274.
*606As the majority concludes, charge 1 is clearly insufficient. The requirement of legal sufficiency prohibits an elected official from being recalled for appropriately exercising the discretion granted him by law. Such a finding, however, does not in itself demand the conclusion that the other charges are insufficient. Rather, each individual charge must be scrutinized under the test established in Chandler. Pursuant to this test, it is at once clear that charges 2 through 4 are likewise legally insufficient.
Charge 2 alleges that the Board failed to convene a regularly scheduled public meeting. Admittedly, the Board did fail to convene a meeting on the day prescribed in the bylaws. Yet the decision not to convene was based on the belief that holding a meeting in the auditorium would likewise violate the bylaws. In light of this conflict, it was not improper to move the meeting to a different date so the conflict could be resolved. The Board merely made a decision to set the hearing over to a different date. In light of the circumstances, this decision does not constitute substantial conduct amounting to misfeasance, malfeasance or violation of the oath of office.
Charge 3 is also legally insufficient. The charge merely states that at a secret meeting action was taken on negotiations. The Open Public Meetings Act of 1971, RCW 42.30, prohibits secret meetings at which action is taken. As both the majority and dissent point out, action on negotiations does not constitute "action" as that term is defined in former RCW 42.30.020(3). Without taking action, as that term is defined in the statute, there could be no meeting. Without a meeting, notice is not required. Hence, there was no violation of the act and therefore no legally sufficient grounds for recall.
Finally, I believe charge 4 is likewise legally insufficient. The charge alleges that a special meeting was held without public notice being given. Both the majority and dissent agree that the open public meetings act did not require public notice of this special meeting. The dissent, however, contends that the Board violated its bylaws when it failed *607to give notice of the special meeting. As noted by the trial judge, this controversy occurred over a period of less than 2 months. Technically speaking, some notices were not properly given. But there is no indication that the three members sought to be recalled were attempting to conceal their activity. The Board's activity does not constitute conduct substantial enough to be legally sufficient. Thus, I would hold that none of the charges are legally sufficient and would dismiss the petitions.
Callow, J., concurs with Pearson, J.