(concurring in part, dissenting in part)— This case presents for review the legal and factual sufficiency of a variety of recall charges filed against three West Valley School District directors. I concur in the majority's determination that charge 1 of the Dempsey and Schweda petitions is insufficient. The directors did not abuse their discretion by refusing to renew or refusing to disclose their reasons for not renewing an employment contract. However, I dissent from the majority's analysis and some of its results regarding the remaining charges in the Schweda petition which are premised on violations of the Open Public Meetings Act of 1971, RCW 42.30.
The majority states that " [bjecause violation of the [open public meetings] act does not constitute a crime, the act should not be liberally construed as a ground for recall unless the alleged violations actually form the underlying basis of the recall charges." Majority opinion, at 603. I cannot support this analysis. RCW 29.82.010 provides the requirements for initiating the recall of an elective public officer. It provides in pertinent part:
Whenever any legal voter . . . desires to demand the recall and discharge of any elective public officer ... he . . . shall prepare a typewritten charge, reciting that such officer, naming him or her and giving the title of his office, has committed an act or acts of malfeasance, or ... of misfeasance while in office, or has violated his oath of office . . . The charge shall state the act or acts *608complained of in concise language, give a detailed description including the approximate date, location, and nature of each act complained of . . .
For the purposes of this chapter:
(1) "Misfeasance" or "malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;
(a) Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and
(b) Additionally, "malfeasance" in office means the commission of an unlawful act;
(2) "Violation of the oath of office" means the wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.
RCW 29.82.010.
Nothing in the recall statute requires the elective public officer's act to be a crime. The definitions of misfeasance in RCW 29.82.010(1)(a) and (b) and violation of the oath of office in RCW 29.82.010(2) encompass violations of the open public meetings act. The failure of an elective public officer to comply with the requirements of the open public meetings act is itself a sufficient ground for recall. The intent of the open public meetings act is "to guarantee public access to and participation in the activities of their representative agencies." Mead Sch. Dist. 354 v. Mead Educ. Ass'n, 85 Wn.2d 140, 145, 530 P.2d 302 (1975); RCW 42.30.010. The failure to follow the act's requirements denies the public its rights to access and involvement. The public should be allowed to challenge the continued occupancy of office of those who would deny them these rights. To say that because the public has other concerns about actions of elective public officers which cannot constitute grounds for recall the public thereby has lost its challenge of these officers for violations of the open public meetings act is to deny the public its right to recall under the statute. How is one to know what is actually the underlying basis of the charge? Majority opinion, at 603. Any time a recall petition is filed, one may assume that members of the electorate are dissatisfied with the elected. I recognize and *609adhere to the requirement that recall must be for cause. But cause has been articulated and defined in the recall statute as misfeasance, malfeasance, and violation of the oath of office. I believe that violations of the open public meetings act fit these definitions. I would hold a charge alleging violation of the open public meetings act is a sufficient basis for recall, as long as the charge is factually and legally sufficient. When elected officials take unpopular positions, it would behoove them to be careful not to deny the public its right to observe their actions.
Having determined that violations of the open public meetings act may be a basis for a recall charge, it is necessary to review charges 2, 3, and 4 of the Schweda petition for factual and legal sufficiency. Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984); Cole v. Webster, 103 Wn.2d 280, 283, 692 P.2d 799 (1984).
Charge 2
Paraphrased, charge 2 alleged that the Board failed to convene the regularly scheduled public board meeting of February 11, 1985, the second Monday of February. The charge further alleged this constituted malfeasance, misfeasance, and violation of the oath of office.
RCW 28A.57.324 provides in pertinent part that "[regular meetings of the board of directors of any school district shall be held ... at such a time as the . . . bylaws of the board may prescribe. . . . All meetings shall be open to the public unless the board shall otherwise order an executive session as provided in RCW 42.30.110." See also RCW 42.30.070. Bylaw 7130 provides: "The Board shall hold regular meetings on the second and fourth Mondays of each month, at 7:30 p.m., in the Administration Building, North 2805 Argonne Road, Spokane, Washington." Clerk's Papers, at 13.
Because a large crowd was expected, this being the first meeting after the Board voted not to renew the superintendent's contract, the meeting location was changed from the Administration Building to the Argonne Junior High *610School auditorium. The entire Board and approximately 400 citizens were present in the auditorium for the scheduled meeting. Board president and director John Boston refused to convene the meeting, stating that on advice of legal counsel the meeting had to be convened in the Administration Building. Some citizens then asked the Board to go to the Administration Building, properly convene the meeting, and then adjourn it to the auditorium. Boston refused. No meeting was held, but citizens were allowed to address the Board in the auditorium.
The majority found the charge was legally sufficient, but factually insufficient because the refusal to convene the meeting in the auditorium was based on advice of counsel. Thus the majority found the petitioners did not "have knowledge of facts which indicate an intent [by a Board member] to commit an unlawful act." Majority opinion, at 605.1 find no intent requirement in the recall statute. RCW 29.82.010. Also, I find that once the viable and legal option of convening the meeting in the Administration Building and then adjourning to the auditorium was presented, RCW 42.30.090, failure to do so amounted to a prima facie showing of wrongful conduct and a willful failure to perform faithfully a duty imposed by law. RCW 29.82.010(1), (2).
Legal counsel advised Boston not to convene the meeting in the auditorium. There is no indication that Boston was acting under advice of legal counsel when he refused to convene the meeting in the Administration Building and then adjourn to the auditorium. In fact, at the next regular meeting on February 25, 1985, after the meeting commenced in the Administration Building, Boston moved to adjourn it to the auditorium. The majority of the Board agreed and the meeting was adjourned and reconvened.
I would hold that charge 2 is both factually and legally sufficient.
Charge 3
Paraphrased, charge 3 alleged that a special meeting was *611held on February 13, 1985, with no notice being given to the public and with two directors, Redford and Williams, having been told that the meeting was canceled. The charge stated that on February 13, the other three school directors met with Dr. Swift of the Washington State School Directors Association (WSSDA) and at the meeting "action was taken on negotiations" for the Board to contract with the WSSDA for the latter's assistance in the selection process of a new superintendent. Clerk's Papers, at 7. The charge was very specific as to dates, times, places, and people involved. It alleged violations of several statutes, board bylaws, and that the actions constituted misfeasance, malfeasance, and violation of the oath of office.
I will first address the notice issue. Notice of a special meeting must be given to the directors and to media requesting notice at least 24 hours before the meeting. RCW 42.30.080. Bylaw 7130 states notice of special meetings "will be posted (advertised) at least twenty-four (24) hours prior to the meeting." Clerk's Papers, at 13. Directors Redford and Williams were given notice within 24 hours but when they objected to the meeting time Boston told them that the meeting was canceled, and that only Boston would meet Swift to pick up some materials. However, Boston with the two other directors, Estey and Faulkes, met with Swift as originally scheduled. No notice of the meeting was ever posted or advertised. If a meeting was held, I would hold the failure to give notice as required by the bylaw was the performance of a duty in an improper manner.
Meetings of public bodies are required to be open and public. RCW 42.30.030. Meeting is defined in RCW 42.30-.020(4) as meaning "meetings at which action is taken." RCW 42.30.020(3) states
"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 *612body 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.
Laws of 1983, ch. 155, § 1, p. 669.
The charge, by merely saying "action was taken on the negotiations" without elaborating, is insufficient to show the three directors made a collective decision, commitment, or promise, or took a vote as required by the statute in effect at the time. Clerk's Papers, at 7.4 The situation in this case is distinguishable from the charge in Teaford v. Howard, 104 Wn.2d 580, 707 P.2d 1327 (1985), which alleged the majority of the Board made a collective agreement at a private meeting to vote no on an agenda item. The challenged directors were fortuitously prevented from taking any "action" because Swift decided that all the directors should be present. Since no action as defined in the then effective statute was alleged, I find no meeting occurred. Because no meeting occurred, no notice had to be given. Therefore, I concur in the majority's result of insufficiency.
Charge 4
Paraphrased, charge 4 alleged that a majority of the Board met on February 19, 1985, for a special meeting with Swift without public notice being given. The charge further alleged failure to give notice constituted misfeasance, malfeasance, and violation of the oath of office. Unlike the February 13 meeting, a meeting as defined in the open public meetings act occurred on February 19.
I agree with the majority that RCW 42.30.080 does not *613explicitly require notice to the general public of special meetings. However, bylaw 7130 requires that "[n]otice will be posted (advertised) at least twenty-four (24) hours prior to the meeting." Clerk's Papers, at 13. No notice was posted or advertised. I would hold violation of the Board's own bylaw, especially when it deals with notice to the public of a meeting which is required by law to be open to the public, RCW 42.30.030, is grounds for recall. The fact that the Board could have closed the strategy planning portion of the special meeting pursuant to bylaw 7130 does not dissuade me from my opinion that the public had the right to know of the special meeting.
In conclusion, I find charges 2 and 4 to be factually and legally sufficient. I would remand to the Superior Court for determination of the adequacy of the ballot synopsis on these charges.
RCW 42.30.020(3) has been amended effective July 28, 1985, as follows:
(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective 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.
(Underlining deleted.) Laws of 1985, ch. 366, § 1, p. 1301. This broadened definition of action might encompass negotiations on contracts.