Utter, J.
Recall charges were filed against three directors of West Valley School District No. 363. The trial court found the charges — all related to the school board's refusal to renew the superintendent's contract and issues arising from that controversy — insufficient to support recall. We agree and affirm the trial court.
The action which appears to have precipitated the cry for recall occurred on January 28, 1985, at a regular board meeting of the West Valley School Board. At that meeting, the Board by a 3 to 2 vote decided to not renew the employment contract of Superintendent Orville Gardner. Two separate sets of recall charges were filed: the first, by Mr. Curran Dempsey; the second, filed by attorney Peter S. Schweda on behalf of another group of citizens, will be referred to here — as it was by the trial court — as the [599]*599Schweda petition.
The Dempsey petition alleges that the school board members abused their discretion in refusing to renew the superintendent's contract. It also seeks recall because of the directors' refusal to state their reasons for their decision. The Schweda petition consists of four charges. The first is essentially the same as the Dempsey charge. The others allege violations of the Open Public Meetings Act of 1971, ROW 42.30.
The second charge of the Schweda petition alleges that the Board failed to hold its next regularly scheduled meeting following the vote to not renew. Although the Board's bylaws require that board meetings be held in the board meeting room in the nearby administration building, its February 11, 1985, meeting appears to have been set for the junior high school auditorium, perhaps in anticipation of a large crowd. On that date approximately 400 people gathered in the auditorium of Argonne Junior High School to attend the scheduled meeting of the Board. In the belief that it would be unlawful to hold a regular meeting of the Board in a place other than the established location, Mr. John Boston, board president, refused to convene the meeting and instead allowed citizens to address the Board.
The third charge of the Schweda petition alleges that during the informal comment session of February 11, 1985, Boston informed Directors Dennis Redford and Jim Williams of a special meeting to be held on February 13, 1985, with Dr. Larry Swift of the Washington State School Directors' Association. According to the charge, both directors objected to Boston the next day that the meeting was scheduled on such short notice. Although Boston allegedly assured both Redford and Williams that the meeting was canceled, the third charge asserts that Boston, Estey and Faulkes met Swift as originally scheduled.
The fourth Schweda charge accuses the Board of holding an illegal meeting on February 19, 1985, with Dr. Swift. It is alleged that no public notice was given, even though the notice delivered to the directors stated the meeting was to [600]*600be open. It is asserted that Boston was the only director not present at the meeting.
In recall proceedings, this court, in addition to original jurisdiction, has "revisory jurisdiction over the decisions of the superior courts ..." RCW 29.82.160. We therefore review the recall petitions using the same criteria as the trial court. Those criteria, implementing the recall paragraph of the eighth amendment to the Washington Constitution (article 1, section 33), are found in RCW 29.82. Amendments to those criteria in 1976 and 1984 reflect a legislative intent to "free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations." Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). Therefore, recall petitions must be both legally and factually sufficient. In addition, courts must now ensure that "persons submitting charges . . . have knowledge of the facts upon which the stated grounds for recall are based, rather than simply a belief that the charges are true." Cole v. Webster, 103 Wn.2d 280, 288, 692 P.2d 799 (1984).
The recent amendments to the recall statute, along with Chandler and Cole, once again reemphasize that article 1, section 33 requires that recall by the electorate must be for cause. Of the states which allow recall, only Washington requires in its constitution that recall be for cause.
Prior to adoption of the eighth amendment in 1912, the people had the right to remove elected officers at will. At that time the constitution provided only that "officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law." Const, art. 5, § 3. In some Washington localities, recall petitioners were required only to state in their petitions the basis of their disagreement with the official whom they sought to recall. A department of this court ruled in 1909 that, absent constitutional limitations, recall at will was an inherent power of the people "to be exercised at any time the public interest was thought to require it." Hilzinger v. Gillman, 56 Wash. 228, 233, 105 P. 471 (1909) [601]*601("Like the British ministry, an elective officer under the [Everett city] charter is at all times answerable to the people for a failure to meet their approval on measures of public policy"). The pronouncement, however, was far from approval of recall at will: "Whether the interests of the city will be better subserved by a ready obedience to public sentiment than by a courageous adherence to the views of the individual officer ... is a political and not a legal question." Hilzinger, at 235.
Concerned that unlimited recall impinged upon republican principles by exposing to recall public officers who took unpopular positions, the authors of the constitutional recall provisions sought to limit application of the recall to the removal of wrongdoers occupying elective office. See Cohen, Recall in Washington: A Time for Reform, 50 Wash. L. Rev. 29, 35-39 (1974).1 The court upheld the limitation imposed by the eighth amendment, State ex rel. Lynch v. Fairley, 76 Wash. 332, 136 P. 374 (1913), and for over 50 years distinguished between recall at will and recall for cause. See Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); Gibson v. Campbell, 136 Wash. 467, 241 P. 21 (1925); Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Beginning with Danielson v. Faymonville, 72 Wn.2d 854, 435 P.2d 963 (1967), the court adopted a liberal construction of what constitutes alleged misfeasance, malfeasance or a violation of the oath of office, along with a narrow scope of review of the legal sufficiency of the recall charges. In Chandler, we commented, at page 271:
This scope of review has in most instances allowed the court to uphold nearly every recall petition. Such a narrow scope of review, however, disregards the apparent intent of the framers of the recall provision to limit the scope of the recall right to recall for cause.
Free access — add to your briefcase to read the full text and ask questions with AI
Utter, J.
Recall charges were filed against three directors of West Valley School District No. 363. The trial court found the charges — all related to the school board's refusal to renew the superintendent's contract and issues arising from that controversy — insufficient to support recall. We agree and affirm the trial court.
The action which appears to have precipitated the cry for recall occurred on January 28, 1985, at a regular board meeting of the West Valley School Board. At that meeting, the Board by a 3 to 2 vote decided to not renew the employment contract of Superintendent Orville Gardner. Two separate sets of recall charges were filed: the first, by Mr. Curran Dempsey; the second, filed by attorney Peter S. Schweda on behalf of another group of citizens, will be referred to here — as it was by the trial court — as the [599]*599Schweda petition.
The Dempsey petition alleges that the school board members abused their discretion in refusing to renew the superintendent's contract. It also seeks recall because of the directors' refusal to state their reasons for their decision. The Schweda petition consists of four charges. The first is essentially the same as the Dempsey charge. The others allege violations of the Open Public Meetings Act of 1971, ROW 42.30.
The second charge of the Schweda petition alleges that the Board failed to hold its next regularly scheduled meeting following the vote to not renew. Although the Board's bylaws require that board meetings be held in the board meeting room in the nearby administration building, its February 11, 1985, meeting appears to have been set for the junior high school auditorium, perhaps in anticipation of a large crowd. On that date approximately 400 people gathered in the auditorium of Argonne Junior High School to attend the scheduled meeting of the Board. In the belief that it would be unlawful to hold a regular meeting of the Board in a place other than the established location, Mr. John Boston, board president, refused to convene the meeting and instead allowed citizens to address the Board.
The third charge of the Schweda petition alleges that during the informal comment session of February 11, 1985, Boston informed Directors Dennis Redford and Jim Williams of a special meeting to be held on February 13, 1985, with Dr. Larry Swift of the Washington State School Directors' Association. According to the charge, both directors objected to Boston the next day that the meeting was scheduled on such short notice. Although Boston allegedly assured both Redford and Williams that the meeting was canceled, the third charge asserts that Boston, Estey and Faulkes met Swift as originally scheduled.
The fourth Schweda charge accuses the Board of holding an illegal meeting on February 19, 1985, with Dr. Swift. It is alleged that no public notice was given, even though the notice delivered to the directors stated the meeting was to [600]*600be open. It is asserted that Boston was the only director not present at the meeting.
In recall proceedings, this court, in addition to original jurisdiction, has "revisory jurisdiction over the decisions of the superior courts ..." RCW 29.82.160. We therefore review the recall petitions using the same criteria as the trial court. Those criteria, implementing the recall paragraph of the eighth amendment to the Washington Constitution (article 1, section 33), are found in RCW 29.82. Amendments to those criteria in 1976 and 1984 reflect a legislative intent to "free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations." Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). Therefore, recall petitions must be both legally and factually sufficient. In addition, courts must now ensure that "persons submitting charges . . . have knowledge of the facts upon which the stated grounds for recall are based, rather than simply a belief that the charges are true." Cole v. Webster, 103 Wn.2d 280, 288, 692 P.2d 799 (1984).
The recent amendments to the recall statute, along with Chandler and Cole, once again reemphasize that article 1, section 33 requires that recall by the electorate must be for cause. Of the states which allow recall, only Washington requires in its constitution that recall be for cause.
Prior to adoption of the eighth amendment in 1912, the people had the right to remove elected officers at will. At that time the constitution provided only that "officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law." Const, art. 5, § 3. In some Washington localities, recall petitioners were required only to state in their petitions the basis of their disagreement with the official whom they sought to recall. A department of this court ruled in 1909 that, absent constitutional limitations, recall at will was an inherent power of the people "to be exercised at any time the public interest was thought to require it." Hilzinger v. Gillman, 56 Wash. 228, 233, 105 P. 471 (1909) [601]*601("Like the British ministry, an elective officer under the [Everett city] charter is at all times answerable to the people for a failure to meet their approval on measures of public policy"). The pronouncement, however, was far from approval of recall at will: "Whether the interests of the city will be better subserved by a ready obedience to public sentiment than by a courageous adherence to the views of the individual officer ... is a political and not a legal question." Hilzinger, at 235.
Concerned that unlimited recall impinged upon republican principles by exposing to recall public officers who took unpopular positions, the authors of the constitutional recall provisions sought to limit application of the recall to the removal of wrongdoers occupying elective office. See Cohen, Recall in Washington: A Time for Reform, 50 Wash. L. Rev. 29, 35-39 (1974).1 The court upheld the limitation imposed by the eighth amendment, State ex rel. Lynch v. Fairley, 76 Wash. 332, 136 P. 374 (1913), and for over 50 years distinguished between recall at will and recall for cause. See Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); Gibson v. Campbell, 136 Wash. 467, 241 P. 21 (1925); Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Beginning with Danielson v. Faymonville, 72 Wn.2d 854, 435 P.2d 963 (1967), the court adopted a liberal construction of what constitutes alleged misfeasance, malfeasance or a violation of the oath of office, along with a narrow scope of review of the legal sufficiency of the recall charges. In Chandler, we commented, at page 271:
This scope of review has in most instances allowed the court to uphold nearly every recall petition. Such a narrow scope of review, however, disregards the apparent intent of the framers of the recall provision to limit the scope of the recall right to recall for cause. Furthermore, it has encouraged two abuses:
[602]*602(1) The charges, though adequate on their face as cause for recall, may lack any factual basis whatsoever;
(2) The charge may be entirely unrelated to the dispute; the real political issue or dispute between the recall petitioners and the elective officer may be submerged beneath the rhetoric of the charge.
Legislative action in 1976 and 1984, as well as our Chandler and Cole cases, in response to the legislative mandate, broadened that review. The trial court adopted, therefore, a broad scope of review of the open meetings charges in the Schweda petition. In addition, the trial judge was reluctant, as we are, to find the petitions legally and factually sufficient where the technical violations of the Open Public Meetings Act of 1971 alleged were not the community's underlying cause for seeking recall.2
Applying the broadened standard of review, we will first consider the legal sufficiency of the charges. If a charge is legally sufficient, we then proceed to examine whether the charge is factually sufficient.
The charges relating to the event precipitating these petitions, the refusal to renew the superintendent's contract, are legally insufficient. The right to renew a contract of employment with any school superintendent rests solely with the discretion of the school board. RCW 28A.58.137. "[A]n elected official cannot be recalled for appropriately exercising the discretion granted him or her by law." Chandler, at 274. Neither refusal to renew nor refusal to explain constitutes an arbitrary or unreasonable abuse of the Board's discretion. See Chandler, at 275. Although the Board's refusal to explain its decision when Gardner appears to have had substantial popular support "may have been politically inept and imprudent," Danielson, at 864 [603]*603(Hill, J., dissenting), as the trial court noted, "there is no cited statute which indicates a duty to come forward with explanations." Clerk's Papers, at 19-20. Furthermore, "nowhere in the files, the oral testimony, or the arguments presented was there any indication that board silence was motivated by an evil or wrongful purpose." Clerk's Papers, at 20.
The Open Public Meetings Act of 1971 charges must be reviewed in light of the admonition that the act is to be construed liberally "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). Although we have previously considered violations of the act "malfeasance" sufficient for recall, Bocek v. Bayley, 81 Wn.2d 831, 837, 505 P.2d 814 (1973), overruled in part in Cole v. Webster, 103 Wn.2d 280, 288, 692 P.2d 799 (1984), the petitioners here sought to use these alleged violations as leverage to overturn discretionary action of which they disapproved. While no de minimis exception to the act exists, the act contains its own penalties.3 Because violation of the 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.
We find charges 3 and 4 both legally insufficient. The meetings held on February 13 and February 19, 1985, not regularly scheduled meetings of the Board, were character[604]*604ized "special meetings" in the petition. Charge 4 is insufficient because no public notice is required for "special meetings." Written notice for special meetings need be given only to each member of the governing body and to local media which has on file with the governing body a request to be notified of any or all special meetings. RCW 42.30.080. It is not alleged that any local media had requested notification of special meetings. In addition, the alleged failure to notify some directors of the February 19, 1985 meeting was cured by the attendance of those members at that meeting. RCW 42.30.080.
Charge 3 is legally insufficient because RCW 42.30.020(4) requires that "action" must take place for a "meeting" to occur. "Action" means the transaction of the official business of a public agency by a governing body, RCW 42.30-.020(3), and does not automatically occur when a majority of the members of a governing body gather together, RCW 42.30.070. The petition alleges only that "action was taken on negotiations" for a consulting contract at the February 13, 1985 meeting and fails to state what official business was transacted. This charge fails to state with specificity the substantial conduct which clearly amounts to misfeasance, malfeasance or a violation of the oath of office. Chandler, at 274. Whether the nature of the alleged "action" was a decision by the Board to discuss negotiating a contract, to negotiate a contract, or to award a contract as a result of negotiations, is unclear and the charge, therefore, is legally insufficient. The allegations in charges 3 and 4 that the Board failed to comply with its own bylaws in scheduling or holding the meetings of February 13 and February 19, 1985, if true, nevertheless do not amount to substantial conduct justifying recall. Chandler, at 274.
The second charge, though legally sufficient, is factually insufficient. "Regular meetings of the board of directors . . . shall be held ... as the board of directors by resolution shall determine or the bylaws of the board may prescribe." RCW 28A.57.324. The Board failed to hold its regular meeting as scheduled in violation of its bylaw 7130. [605]*605Although "malfeasance" only requires commission of an unlawful act, voir dire indicated that the Board refused to call the regular meeting scheduled for February 11,1985, on advice of counsel. In a recall case, recall petitioners should at least have knowledge of facts which indicate an intent to commit an unlawful act.
The charges brought in the Dempsey and Schweda petitions constitute the type of abuse of the recall statute which the 1984 amendments seek to eliminate. The charges are lacking in cause. We affirm the trial court.
Dolliver, C.J., and Brachtenbach, Dore, Andersen, and Durham, JJ., concur.