FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON DECEMBER 4, 2025 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON DECEMBER 4, 2025 SARAH R. PENDLETON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re Petition for Recall of No. 104087-3
Commissioner Lisa Olsen En Banc
Filed: December 4, 2025
WHITENER, J. – Irving Edersheim, a registered voter in Pacific County filed
a recall petition against Pacific County Commissioner Lisa Olsen. The petition
alleged two charges against Commissioner Olsen for violations of the executive
session statutory exception in the Open Public Meetings Act of 1971 (OPMA). RCW
42.30.110. The superior court found both charges were factually and legally
sufficient. We find both charges are factually and legally insufficient. We reverse.
FACTUAL BACKGROUND
This recall petition stems from a contentious issue in Pacific County regarding
the management of its county jail and the deaths of two jail inmates. In 2022 and
2024, two inmates died while in custody at the local jail in Pacific County. In re Recall of Commissioner Lisa Olsen, No. 104087-3
Historically, the jail has been managed by the Pacific County sheriff. On December
26, 2024, at a public meeting, and after hearing public comments, the Board of
Pacific County Commissioners unanimously voted to start the process of creating a
“jail services department” to operate the local jail and to appoint a new director, who
would report directly to the Board of Pacific County Commissioners. Clerk’s Papers
(CP) at 103, 110.
Voter Irving Edersheim, in the recall petition, alleged that Lisa Olsen, an
elected member of the Board of Pacific County Commissioners, violated the OPMA
by failing to have legal counsel present during executive sessions where litigation or
potential litigation was discussed. He also alleged that Commissioner Olsen
generally acted with disregard for public input and misrepresented the decision-
making process behind her vote in favor of creating a jail services department that
would take over management of the local county jail in Pacific County.
I. Charge 1
Charge 1 reads, “Explicit violations of the Open Public Meetings Act for not
having legal counsel present in Executive Sessions pursuant to RCW 42.30.110(1)(i)
not open to the public on 6/11/24, 10/8/24, 6/25/24, 10/31/24 and only part of the
time on 10/22/24.” CP at 158.
2 In re Recall of Commissioner Lisa Olsen, No. 104087-3
This charge alleged that Commissioner Olsen violated the OPMA after
attending executive sessions pursuant to RCW 42.30.110(1)(i) that were not open to
the public and where legal counsel was absent. CP at 5-8. These violations allegedly
occurred for the executive sessions meetings that occurred on June 11, June 25,
October 8, October 22, and October 31, 2024. Id. Edersheim relies on county
meeting minutes to establish his knowledge of when these meetings took place, who
attended them, and what subjects were discussed. CP at 14-58.
The minutes indicate that five executive sessions were held on June 11, June
25, October 8, October 22, and October 31, 2024. CP at 14-28, 37-42, 45-52. The
minutes show that these executive sessions were held to discuss “litigation or
potential litigation.” CP at 19-20, 26-27, 51-52. Edersheim argues that “the ballot
synopsis approved by the Court supports the identification in the Petition of at least
four meetings in which legal counsel was not present in violation of the OPMA.”
Resp’t Edersheim’s Br. at 23. Edersheim appears to implicitly concede that the recall
petition should not have included the October 8, 2024 executive session meeting.
The minutes indicate that legal counsel, Michael Rothman, was in attendance during
this executive session. CP at 41.
The October 22, 2024 executive session meeting minutes indicate that legal
counsel was in attendance. CP at 47. However, Edersheim disputes whether legal 3 In re Recall of Commissioner Lisa Olsen, No. 104087-3
counsel was in attendance during the entirety of the meeting. Edersheim argues that
an audio recording of the meeting shows Rothman stated that he was “‘going to have
to step out’” due to a scheduling conflict. CP at 7. Commissioner Olsen does not
dispute that the executive sessions meeting minutes for June 11, June 25, and
October 31, 2024, indicate that executive sessions were held to discuss litigation or
potential litigation, nor does she dispute that the attendee section of the minutes does
not show legal counsel was in attendance.
In addition, as support for charge 1, Edersheim’s recall petition included (1)
an OPMA training certificate signed by Commissioner Olsen, (2) an OPMA training
PowerPoint last revised by the Washington State Attorney General’s Office in 2017,
and (3) Commissioner Olsen’s prewritten statements prepared before the December
26, 2024 public meeting. CP at 59-95.
II. Charge 2
Charge 2 reads, “These violations were done with the intent to disregard
public input, and misrepresent their decision-making process regarding the removal
of the county jail from sheriff control. The recall petition asserts that commissioners
held private meetings on the matter, failed to allow adequate public discussion, and
falsely claimed the decision had not been made in advance despite presenting pre-
written statements.” CP at 158. 4 In re Recall of Commissioner Lisa Olsen, No. 104087-3
To support charge 2, Edersheim included three documents in the recall
petition. The first document is Commissioner Olsen’s prewritten statements. CP at
94-95. Commissioner Olsen’s statement reads, “When you become an elected
official, one of the things that you realize very quickly are that there are many details
of events you become aware of and have to deal with that are not, nor should not be
for public consumption.” CP at 94. The second document is Commissioner David
Tobin’s prewritten statements. CP at 96-100. Commissioner Tobin is another
member of the Board of Pacific County Commissioners. Commissioner Tobin’s
statement reads, “I have clearly heard the concern that this decision has been fast-
tracked … and that it is being made to [sic] quickly. I will apologize to you for that
… However, we have been talking about this for months.” CP at 97. The third
document is a memo from Commissioner Olsen addressed to the “Pacific County
Jail Employees” regarding the board’s decision to create a jail services department.
CP at 110. In addition, for all three documents, Edersheim included screenshots of
the Microsoft Word metadata information page. He alleged that the metadata shows
the documents were either “created” or “last modified” on dates prior to the public
meeting held on December 26, 2024. CP at 95, 100, 111.
On April 4, 2025, the superior court conducted a hearing to determine the
sufficiency of the charges and the adequacy of the ballot synopsis. CP at 121-25; 5 In re Recall of Commissioner Lisa Olsen, No. 104087-3
RCW 29A.56.140. The court concluded that the charges were sufficient to show that
Commissioner Olsen violated the OPMA. CP at 123-24.
ANALYSIS
In Washington, all elected officials except judges are subject to recall for
malfeasance or misfeasance while in office or violating their oath of office. WASH.
CONST. art. I, § 33; see also RCW 29A.56.110.
“Malfeasance,” “misfeasance,” and “violation of the oath of office” are defined as follows: (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 neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.
RCW 29A.56.110.
In the recall process, courts act as gatekeepers, and our role is “‘to ensure that
the recall process is not used to harass public officials by subjecting them to frivolous
or unsubstantiated charges.’” In re Recall of Riddle, 189 Wn.2d 565, 570, 403 P.3d
849 (2017) (quoting In re Recall of West, 155 Wn.2d 659, 662, 121 P.3d 1190
(2005)). As such, we do not review recall charges for their truthfulness. In re Recall
6 In re Recall of Commissioner Lisa Olsen, No. 104087-3
of Wasson, 149 Wn.2d 787, 792, 72 P.3d 170 (2003) (citing Cole v. Webster, 103
Wn.2d 280, 287-88, 692 P.2d 799 (1984)). Instead, it is the voters who determine
“whether the charges are true and, if so, whether they in fact justify recalling the
official.” In re Recall of Durkan, 196 Wn.2d 652, 663, 476 P.3d 1042 (2020).
Therefore, all factual allegations are taken as true. Id. (citing In re Recall of Boldt,
187 Wn.2d 542, 549, 386 P.3d 1104 (2017)).
“‘The sufficiency of a recall petition is reviewed de novo.’” Boldt, 187 Wn.2d
at 549 (quoting Wasson, 149 Wn.2d at 791). “Recall petitions must be both legally
and factually sufficient.” Id. at 548. Factual sufficiency is satisfied when the alleged
facts, taken as a whole, “‘identify to the electors and to the official being recalled
acts or failure to act which without justification would constitute a prima facie
showing of misfeasance, malfeasance, or a violation of the oath of office.’” Id.
(quoting Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). If there is an
allegation that the “official violated the law, the facts must show the official intended
to do so.” In re Recall of Inslee, 194 Wn.2d 563, 568, 451 P.3d 305 (2019) (citing In
re Recall of Wade, 115 Wn.2d 544, 549, 799 P.2d 1179 (1990)). The charge must
“state the act or acts complained of in concise language[ and] give a detailed
description including the approximate date, location, and nature of each act
complained of.” RCW 29A.56.110. The individual making the charge must have 7 In re Recall of Commissioner Lisa Olsen, No. 104087-3
knowledge of the alleged facts on which the stated grounds for recall are
based. Chandler, 103 Wn.2d at 274. This knowledge need not be firsthand, but it
must be “more than simply a belief that the charges are true.” In re Recall of Reed,
156 Wn.2d 53, 58, 124 P.3d 279 (2005) (citing In re Recall of Lee, 122 Wn.2d 613,
617, 859 P.2d 1244 (1993)).
Legal sufficiency is satisfied when a petition “‘state[s] with specificity
substantial conduct clearly amounting to misfeasance, malfeasance or violation of
the oath of office.’” Boldt, 187 Wn.2d at 549 (alteration in original)
(quoting Chandler, 103 Wn.2d at 274). If a recall charge is based on acts taken
pursuant to an official’s discretionary authority, the petition must show that “the
execution of that discretion” was “done ‘in a manifestly unreasonable
manner.’” Inslee, 194 Wn.2d at 572 (internal quotation marks omitted) (quoting In
re Recall of Bolt, 177 Wn.2d 168, 174, 298 P.3d 710 (2013)). Additionally, “‘[a]
legally cognizable justification for an official’s conduct renders a recall charge
insufficient.’” In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 766, 10 P.3d 1034
(2000) (quoting In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 264, 961 P.2d 343
(1998)).
8 In re Recall of Commissioner Lisa Olsen, No. 104087-3
I. Charge 1 is factually and legally insufficient
Under RCW 42.30.110(1)(i), a governing body may hold an executive session
during a regular to special meeting “[t]o discuss with legal counsel … litigation or
potential litigation.” 1 The attorney-client privilege exception is available when the
relevant government actor (1) discusses with counsel (2) actual or potential litigation
(3) where public knowledge of the discussion is likely to cause adverse legal or
financial consequence. In re Recall of Lakewood City Council Members, 144 Wn.2d
583, 30 P.3d 474 (2001). The plain language of the statutory exception clearly
indicates that presence of legal counsel is necessary for this exception to apply.
The petitioner must have some form of knowledge of the facts underlying the
charges, but there is no requirement that the knowledge be firsthand. Lee, 122 Wn.2d
at 617. We have made clear that legal counsel must be present in order for the
governing body to invoke the attorney-client privilege statutory exception to the
OPMA. Lakewood, 144 Wn.2d 583. An executive session that does not have legal
counsel present therefore likely exceeds the scope of the exception. In In re Recall
of DeBruyn, we found a lack of factual sufficiency where “[n]o minutes, recording,
1 There is no dispute that the executive sessions at issue were considered “meetings” subject to the OPMA, requiring them to be open to the public unless one of the statutory exceptions was satisfied.
9 In re Recall of Commissioner Lisa Olsen, No. 104087-3
or statements of participants of what occurred during the 5-minute executive session
[were] provided.” 112 Wn.2d 924, 930, 774 P.2d 1196 (1989).
Petitioner Edersheim’s recall petition alleged that Olsen violated the OPMA
by holding executive sessions during regular and special meetings on June 11, June
25, October 8, October 22 and October 31, 2024 for the purpose of discussing
litigation or potential litigation without legal counsel present. His knowledge of
these meetings comes from the meeting minutes. The meeting minutes show who
was in attendance, the time stamp of when the sessions began and ended, the
statutory exception used to invoke the executive session, and whether the
commission expected to take further action following the session.
Commissioner Olsen does not dispute the allegations that these executive
sessions occurred. She does not dispute who attended the executive sessions, what
statutory exemption was invoked to hold the executive sessions, or that she is
required to have legal counsel present when invoking the attorney-client privilege
exception to the OPMA. Instead, Commissioner Olsen argues that Edersheim cannot
show he has personal knowledge of the facts underlying the alleged violations
because the meeting minutes contradict his own allegations about the attendance of
legal counsel on the October 8 and October 22, 2024 meetings. Commissioner Olsen
argues that the meeting minutes are unreliable. She argues that the county clerk who 10 In re Recall of Commissioner Lisa Olsen, No. 104087-3
prepares the meeting minutes does not attend the executive sessions and is therefore
unaware of who is in attendance. Moreover, the minutes, she argues, are often
created prior to the meetings and the minutes are not always updated to reflect
changes to the agenda. As a result, Commissioner Olsen argues the minutes provide
insufficient evidence to support Edersheim’s allegation that she violated the OPMA.
She also argues that Edersheim fails to provide evidence that she acted with intent
to violate the OPMA.
The factual and legal sufficiency for each meeting is discussed below.
a. October 8, 2024 executive session meeting
Edersheim’s only evidence regarding the October 8, 2024 meeting is the
meeting minutes. These minutes indicate that legal counsel, Michael Rothman, was
present, but the recall petition and the ballot synopsis allege that legal counsel was
absent during this meeting. CP at 41, 125. Commissioner Olsen argues that this
contradiction renders the meeting minutes insufficient evidence to establish
Edersheim’s personal knowledge of the alleged OPMA violations. We agree.
Petitioner Edersheim fails to provide prima facie evidence in charge 1 of the
recall petition that identifies conduct or behavior that indicates Commissioner Olsen
held an executive session meeting on October 8, 2024 in violation of RCW
42.30.110(1)(i). Inslee, 194 Wn.2d 563 (holding that factual sufficiency requires 11 In re Recall of Commissioner Lisa Olsen, No. 104087-3
finding facts that establish a prima facie case of misfeasance, malfeasance, or
violation of the oath of office). He also fails to state with specificity substantial
conduct amounting to misfeasance, malfeasance, or violation of the oath of office.
The allegations in support of charge 1 for the October 8, 2024 executive
session meeting are factually and legally insufficient.
b. October 22, 2024 executive session meeting
A recall “‘charge, taken as a whole ..., must be specific enough to give the
elected official meaningful notice of the particular conduct challenged and why it is
grounds for recall.’” In re Recall of Pepper, 189 Wn.2d 546, 553, 403 P.3d 839
(2017) (alteration in original) (quoting Boldt, 187 Wn.2d at 549).
Here, Edersheim relies on the October 22, 2024 executive session meeting
minutes to establish a prima facie case that Commissioner Olsen violated RCW
42.30.110(1)(i). However, the minutes show that legal counsel, Michael Rothman,
was in attendance during this meeting to discuss the subject of litigation or potential
litigation under RCW 43.30.110(1)(i). CP at 47. Edersheim disputes the minutes
entry showing legal counsel’s attendance. He alleged that an audio recording of the
meeting shows Rothman announcing that he was “going to have to step out.” CP at
7. The audio recording is the only evidence Edersheim avers in the recall petition,
and he failed to include the audio recording in the recall petition. 12 In re Recall of Commissioner Lisa Olsen, No. 104087-3
Edersheim fails to provide prima facie evidence that identifies conduct or
behavior regarding the October 22, 2024 meeting that shows Commissioner Olsen
held a meeting in violation of RCW 42.30.110(1)(i). Inslee, 194 Wn.2d 563. He also
fails to state with specificity substantial conduct amounting to misfeasance,
malfeasance, or violation of the oath of office. The allegations in support of charge
1 for the October 22, 2024 executive session meeting are factually and legally
insufficient.
c. The June 11, June 25, and October 31, 2024 executive session meetings
A factually sufficient recall petition must “provide a detailed description that
includes the date, location, and nature of each allegation.” Wasson, 149 Wn.2d at
791.
Edersheim relies on the June 11, June 25, and October 31, 2024 executive
session meeting minutes to support his allegation that Commissioner Olsen violated
RCW 42.30.110(1)(i). Each meeting’s minutes provide sufficiently detailed
descriptions of the alleged violations. The minutes indicate the agenda for those
sessions, which included the subject of “litigation or potential litigation.” CP at 19-
20, 26-27, 51-52. The attendees sections of the meeting minutes do not list the name
of legal counsel, and they show that Commissioner Olsen was in attendance. Id. The
13 In re Recall of Commissioner Lisa Olsen, No. 104087-3
minutes indicate the start and stop time of the executive session meetings, and the
minutes indicate whether any action was taken pursuant to the meetings. Id.
Thus, charge 1 of the recall petition gives sufficiently detailed descriptions of
the nature of the violative acts that occurred on June 11, June 25, and October 31,
2024 executive session meetings.
Commissioner Olsen counters that the meeting minutes are insufficient to
support finding an OPMA violation because the minutes contradict Edersheim’s
allegations regarding the October 8 and October 22, 2024 executive session
meetings. It is true that Edersheim’s claim that RCW 42.30.110(1)(i) was violated
on October 8 and October 22 are contradicted by the meeting minutes, but Edersheim
does not have to show that he had actual or firsthand knowledge that legal counsel
was absent or present during these meetings. Lee, 122 Wn.2d at 616-17 (holding that
a petitioner does not have to have actual knowledge of the facts underlying the
charge, nor does he need firsthand knowledge). As a result, his failure to do so does
not render the June 11, June 25, and October 31 executive session meeting minutes
insufficient evidence.
However, when a petition charges an official with violating the OPMA, the
petitioners must have knowledge of facts indicating an intent to violate the act. In re
Recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410 (1997); Inslee, 194 Wn.2d at 14 In re Recall of Commissioner Lisa Olsen, No. 104087-3
568). While some inferences are permissible in a recall petition, on the whole, the
facts must indicate an intention to violate the law. In re Recall of Telford, 166 Wn.2d
148, 158, 206 P.3d 1248 (2009); see also In re Recall of Carkeek, 156 Wn.2d 469,
128 P.3d 1231 (2006).
RCW 42.30.110(1)(i) requires that a governing body that holds an executive
session during a regular or special meeting for the purposes of discussing litigation
or potential litigation must do so with legal counsel present. The record indicates
that Commissioner Olsen attended such meetings without legal counsel present. The
mere fact that Commissioner Olsen attended meetings under subsection .110(1)(i)
privileges without legal counsel does not constitute malfeasance, misfeasance, or
violation of her oath of office. RCW 29A.56.110. We have made clear that legal
counsel must be present in order for the governing body to invoke the attorney-client
privilege statutory exception to the OPMA. Lakewood, 144 Wn.2d 583. Lakewood
held only that certain requirements must be met in order for the attorney-client
privilege exception to apply. Id. Lakewood did not address whether a governing body
member’s mere attendance in a meeting under the attorney-client privilege exception
without legal counsel present amounts to malfeasance, misfeasance, or violation of
oath of office.
15 In re Recall of Commissioner Lisa Olsen, No. 104087-3
To support his allegations of Commissioner Olsen’s intent to violate the act,
Edersheim attached two exhibits. The first exhibit is an OPMA training certificate
issued to Commissioner Olsen and OPMA training materials prepared by the state
attorney general’s office, and the second exhibit is Commissioner Olsen’s prewritten
statements for the December 26, 2024 public meeting. CP at 52-95. According to
Edersheim, this evidence indicates Commissioner Olsen “had knowledge of this
requirement, yet disregarded it.” CP at 8. Petitioner Edersheim has shown that
Commissioner Olsen attended training about the OPMA where the requirements of
RCW 42.30.110(1)(i) were discussed; however, this evidence shows only that
Commissioner Olsen received training on the OPMA and on the requirements of
RCW 42.30.110(1)(i). This evidence, however, does not show that she intended to
violate the act on the three dates the meetings were held. Estey v. Dempsey, 104
Wn.2d 597, 605, 707 P.2d 1338 (1985) (holding that “[i]n a recall case, recall
petitioners should at least have knowledge of facts which indicate an intent to
commit an unlawful act”). Here, Edersheim’s recall petition is also factually
insufficient because he has not provided evidence that Commissioner Olsen acted
with intent to violate the OPMA and specifically RCW 42.30.110(1)(i).
Charge 1 is factually and legally insufficient as to the executive session
meetings held on June 11, June 25, and October 31, 2024. 16 In re Recall of Commissioner Lisa Olsen, No. 104087-3
II. Charge 2 is factually and legally insufficient
A recall charge must “give a detailed description including the approximate
date, location, and nature of each act complained of.” RCW 29A.56.110. The facts
supporting each charge must be “stated in concise language and provide a detailed
description that includes the date, location and nature of each allegation.” Wasson,
149 Wn.2d at 791. Edersheim’s recall petition allegations lack the specificity
required. He states that Commissioner Olsen violated the OPMA by undermining
“public deliberation and transparency” due to a “lack of any prior public discussion”
and for engaging in discussions about the jail matter “outside the public’s view.” CP
at 10.
His allegations supporting charge 2 of the recall petition are derivative of
charge 1. In charge 2 he alleged a series of “implicit violations of the OPMA.” CP
at 8 (boldface and capitalization omitted). The factual basis of charge 2 includes
several decisions taken by Commissioner Olsen prior to the December 26, 2024
public meeting. The petition alleged that Commissioner Olsen “read from prepared
statements,” which included the statement “‘[w]hen you become an elected official
one of the things that you realize very quickly are that there are many details of
events that you become aware of and have to deal with and make decisions on that
are not nor should be for public consumption.’” Id. The petition also alleged that 17 In re Recall of Commissioner Lisa Olsen, No. 104087-3
Commissioner Olsen’s statements show that the board held “at least one meeting
about the [j]ail matter” and that decisions were made by the board that “‘[were] not
[…] for public consumption.’” Id. (second and third alterations in original).
Petitioner Edersheim points to meeting minutes produced over the last several
months that did not contain any agenda item regarding “Pacific County Jail
Services” and alleged this must indicate that a private meeting about the matter
occurred. CP at 14-58. Also, he points to the metadata of two documents to support
the allegation that Commissioner Olsen violated the OPMA by disallowing public
input: (1) Commissioner Olsen’s prepared statements and (2) the resolution passed
by the board. CP at 95, 111. He argues that Commissioner Olsen’s decision at the
December 26, 2024 meeting was “premeditated” and “finalized” before the public
meeting because both documents were created prior to that meeting date. CP at 10.
Charge 2 in the recall petition lacks the requisite factual detail. Petitioner
Edersheim fails to identify the approximate date, location, and nature of the alleged
private meetings that occurred in violation of the OPMA. He fails to provide the
requisite detail and precision necessary to determine the nature of the act complained
of. Charge 2 is factually insufficient.
Charge 2 is also legally insufficient. A charge must also sufficiently “specify
why [the challenged] acts constitute misfeasance, malfeasance or violation of the 18 In re Recall of Commissioner Lisa Olsen, No. 104087-3
oath of office as defined in RCW 29.82.010.” Teaford v. Howard, 104 Wn.2d 580,
587, 707 P.2d 1327 (1985). Each charge must identify the “standard, law, or rule
that would make the officer’s conduct wrongful, improper, or unlawful.” In re Recall
of Ackerson, 143 Wn.2d 366, 377, 20 P.3d 930 (2001).
Petitioner Edersheim fails to state which law, standard, or rule for charge 2
renders Commissioner Olsen’s actions unlawful. The recall petition simply states
that the conduct at issue constitutes an “implicit violation of the OPMA.” CP at 8
(boldface and capitalization omitted). It lacks the required specificity. Violations of
the OPMA stem from statute and case law, neither of which he references. The
OPMA also does not contain “implicit violations” as Edersheim describes.
Charge 2 is factually and legally insufficient.
CONCLUSION
We reverse the superior court.
19 In re Recall of Commissioner Lisa Olsen, No. 104087-3
______________________________
WE CONCUR.