## Facts

- Lakewood residents sought recall of several Lakewood City Council members, alleging misconduct under Washington’s recall provisions.
- The charges arose from a December 13, 1999 executive session where the council met with the city attorney to discuss pending litigation challenging the constitutionality of a local initiative.
- Petitioners alleged the executive session violated the Open Public Meetings Act (OPMA) because the city’s participation in the litigation was characterized as non-adversarial, so no “adverse legal or financial consequence” could result from public discussion.
- Petitioners also alleged the council unlawfully took “final action” in closed session by effectively authorizing the city manager to participate in the litigation and to spend public funds, contrary to OPMA’s requirement that votes and final actions occur in public.
- The council members responded that the session fit OPMA’s litigation exception, no vote occurred in executive session, and the city manager already had delegated discretionary authority to take the challenged steps without a council vote.
- The superior court dismissed the recall petition as legally insufficient; petitioners sought review.

## Issues

1. Whether the alleged executive session with counsel fell outside OPMA’s litigation exception and therefore constituted recallable misconduct.
2. Whether petitioners alleged specific facts showing the council took a prohibited “final action” or “vote” in executive session in violation of OPMA.
3. Whether, accepting the allegations as true, the petition stated legally sufficient grounds for recall (misfeasance, malfeasance, or violation of the oath of office).

## Decision

- The Washington Supreme Court affirmed dismissal of the recall petition.
- The court held the recall charges were legally insufficient even if the factual allegations were assumed true.
- The court concluded the executive session was within OPMA’s litigation exception as pleaded and did not amount to a clear legal violation supporting recall.
- The court held the petition failed to allege with required specificity that a secret vote or final action occurred in executive session, rather than permissible receipt of legal advice.

## Legal Principles

- Recall in Washington is limited to misfeasance, malfeasance, or violation of the oath of office; it is not a vehicle for challenging policy judgments or arguable legal interpretations.
- In recall review, courts accept well-pleaded factual allegations as true but assess whether they amount to legally sufficient grounds for recall.
- Recall charges must allege substantial wrongful acts with enough factual detail to identify the complained-of conduct; speculation or conclusory inferences are insufficient.
- OPMA permits executive sessions to consult with legal counsel about actual or potential litigation when public knowledge of the discussion is likely to cause adverse legal or financial consequences to the agency.
- OPMA requires final actions and votes of a governing body to be taken in public; to support recall, a petitioner must plead specific facts showing such a prohibited final action occurred in closed session.

## Conclusion

The court held that the petition alleged, at most, a disputed application of OPMA’s litigation-related executive-session authority and an inferred, unsupported claim of a closed-door vote; because recall requires clearly unlawful or wrongful conduct pleaded with specificity, the charges were legally insufficient and no recall election was permitted.


In re Recall of Lakewood City Council Members, 30 P.3d 474 (Wash. 2001)