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Recent Attorney General Opinions of Interest to Local Government Officials

This is a selection of recent formal opinions from the Attorney General's Office affecting cities, towns, counties, and special purpose districts in Washington State within the last five years. The full text of these opinions can be found through the links below or at the Attorney General's Office Website.


2017


Legislative Authority of a Governing Body to Hold Regular Meetings By Telephone or Video Conference Call

AGO 2017 No. 4 – Addresses whether a governing body of a public agency can, under the Open Public Meetings Act (OPMA), conduct a public meeting exclusively by telephone (or video) conference call.

It concludes that yes, a governing body may conduct a properly-noticed public meeting exclusively via telephone or video conference call so long as the conference call is broadcast over a speakerphone or similar technology at a set location where the public can attend and listen to the proceedings without difficulty and the technology used permits the public to participate as needed in the meeting. Even though the opinion analyzes a state governing body, the AGO’s opinion applies equally to governing bodies of local governments.


Designation and Compensation of Unclassified Employees of the County Sheriff’s Office

AGO 2017 No. 3 – Addresses fourteen questions relating to unclassified service in county sheriffs’ offices. The opinion provides the following paraphrased questions and answers.

  1. Does RCW 41.14.140 apply to the unclassified service (exempt) positions authorized by RCW 41.14.070? Yes. RCW 41.14.140 applies to positions “within the purview” of chapter 41.14 RCW. The designation of positions as unclassified is authorized by RCW 41.14.070, and are therefore within the purview of that chapter. This does not mean that chapter 41.14 RCW applies to classified and unclassified positions in the same ways, however.
  2. Does the creation of new unclassified service (exempt) positions pursuant to RCW 36.16.070 and RCW 41.14.140 require the county commissioners’ consent? See answer to question 3.
  3. Does RCW 41.14.070 require the county commissioners’ consent for the county sheriff’s designation of specific positions as unclassified service (exempt)? Questions 2 and 3 are closely related, and we combine our answers to them. We conclude in response to question 2 that the creation of new positions in the sheriff’s office requires the consent of the county commissioners. We also conclude in response to question 3 that the county commissioners’ consent is not required when the sheriff designates specific positions as unclassified. The distinction between these two answers is that question 2 addresses the decision to create new positions, while question 3 relates to the choice of which positions will be unclassified.
  4. If the sheriff, with the consent of the civil service commission, makes changes to the job titles and job descriptions of one or more of the already existing unclassified service positons authorized by RCW 41.14.070, are such new job titles and job descriptions subject to the “consent” of the county commissioners under RCW 36.16.070 or RCW 41.14.070? No. The statute does not contemplate the involvement of the county commissioners in the sheriff’s modifications to job titles and job descriptions of preexisting unclassified positions.
  5. Does the answer to question number 4 depend on whether the change in job title or job description may result in a salary adjustment to the position? No. Neither RCW 41.14.070 nor RCW 36.16.070 suggest that a resulting salary adjustment would make a change in job title or job description subject to county commissioner consent.
  6. If an adjustment to salary is required, are the county commissioners still required to “fix the compensation” pursuant to RCW 36.16.070? Yes. RCW 36.16.070 vests the authority to fix compensation in the county commissioners. RCW 41.14.140 does not deprive the commissioners of that authority or vest it in the sheriff.
  7. If the creation, selection, or change in job title or job description does require the “consent” of the county commissioners, what factors may the commissioners consider, in light of the holdings of Osborn v. Grant County, 130 Wn.2d 615, 926 P.2d 911 (1996), and Crossler v. Hille, 136 Wn.2d 287, 961 P.2d 327 (1998)? We concluded in response to question 2, 3, and 4 that the consent of the county commissioners is required for the creation of positions, but not for the selection of unclassified positions or for changes in the job titles or job descriptions of such positions. Neither Osborn nor Crossler address the creation of new positions, and therefore those decisions are inapplicable.
  8. If the county commissioners have set compensation for an unclassified position previously, may the sheriff pay an individual less than the compensation the county commissioners have set? No. Having concluded in response to question 6 that the county commissioners fix the compensation, the sheriff is precluded from paying less.
  9. Are there any “deputy” positions in any of the county elected offices that RCW 36.16.070 would not apply to? We concluded in response to question 6 that RCW 36.16.070 applies to the sheriff’s office. We have not identified any statute that would exempt other county offices from it.
  10. Does the holding in Crossler v. Hille, 136 Wn.2d 287, 961 P.2d 327 (1998), change the analysis in AGO 1982 No. 8? No. Crossler does not change our analysis in AGO 1982 No. 8.
  11. Are the county commissioners required by statute to fund an unclassified service position in the sheriff’s office created by RCW 41.14.070? No. By determining the total staff positions for the sheriff’s office, the county commissioners also affect the number of those positions that the sheriff can designate as unclassified under RCW 41.14.070. It might ordinarily follow that by providing for a certain number of staff positions the commissioners also commit themselves to funding the number of unclassified positions that follow from that decision. We see nothing in statute, however, that would affirmatively obligate the county commissioners to fund every otherwise-authorized position in any particular budget cycle.
  12. Do the county commissioners or the civil service commission have the authority to review job descriptions for unclassified service positions in the sheriff’s office created by RCW 41.14.070 before they can be filled? No. State law makes no provision for the county commissioners or the civil service commission to review job descriptions for unclassified positions before the positions may be filled.
  13. Do the budget authority of the county commissioners and the limitations imposed on county officials in RCW 36.40.100 supersede the ability of the sheriff to create or rename an unclassified service position in the sheriff’s office created by RCW 41.14.070? No. RCW 36.40.100 prohibits all county officers, including the sheriff, from spending in excess of the budget adopted by the county commissioners under RCW 36.40.080. While the sheriff’s office is limited by an overall budgetary cap, nothing in RCW 36.40.100 supersedes the authority vested in the sheriff by RCW 40.14.070 to designate unclassified positions.
  14. Does a budget adopted pursuant to RCW 36.40.080 that includes job descriptions in the line items require a hearing and amendment approved by the county commissioners before adopting any changes in job descriptions proposed by the head of that county department, such as the sheriff’s office? No. We concluded in response to question 12 that neither RCW 36.16.070 nor RCW 41.14.070 vest authority in the county commissioners to write job descriptions for specific positions. The county commissioners may not vest themselves with that authority by writing job descriptions into budget items.

Use of Race- or Sex-Conscious Measures or Preferences to Remedy Discrimination in State Contracting

AGO 2017 No. 2 – Addresses whether Initiative 200 (I-200) prohibits the state from implementing race- or sex-conscious measures to address well-documented and significant disparities in the public contracting sector.

It concludes that I-200 does not categorically prohibit all race- and sex-conscious actions regarding state contracting. I-200 draws a distinction between (1) preferences that have the effect of using race or gender to select a less qualified contractor over a more qualified contractor, and (2) race- or sex-conscious measures that do not have that effect. I-200 conditionally prohibits the former, with important exceptions, but does not prohibit the latter. AGO 2017 No. 2 then draws the following three conclusions in response to the question presented:

  1. I-200 prohibits only situations in which government uses race or gender to select a less qualified contractor over a more qualified contractor. We use the word “preference” to describe such measures. It does not prohibit measures that, although race- or sex-conscious, do not use race or gender to select a less qualified contractor over a more qualified contractor. This category of measures that are not prohibited is open to innovation, but examples could include aspirational goals, outreach, training, use of race or gender as a tiebreaker between equally qualified contractors, and similar measures that do not cause a less qualified contractor to be selected over a more qualified contractor. RCW 49.60.400(1).
  2. Under very narrow circumstances, I-200 may allow agencies to use preferences based on race or gender that may elevate a less qualified contractor over a more qualified contractor. Such circumstances could arise based upon evidence of discrimination in state contracting that cannot be resolved through race- or sex- neutral means. We do not suggest that a statistical disparity documented through a valid disparity study is necessarily sufficient to justify the use of a preference. We do conclude, however, that evidence of discrimination in state contracting that race- or sex-neutral measures are insufficient to remedy, may justify the use of a race- or sex-conscious preference to remedy that disparity. RCW 49.60.400(1), (3).
  3. Finally, we conclude that agencies may employ preferences based on race or gender when necessary to avoid losing eligibility for programs providing federal funds. RCW 49.60.400(6).

Eligibility of Counties to Receive State Fuel Tax Revenues under the Rural Arterial Program

AGO 2017 No. 1 – Addresses whether counties lose eligibility to participate in the rural arterial program if the county chooses to divert revenues from the county road levy to pay for (1) civil or criminal traffic prosecutions, (2) court costs of adjudication, (3) indigent defense, (4) incarceration, or (5) coroner activities.

It concludes that yes, a county would lose its eligibility to participate if it diverted revenue for such purposes. Specifically, it concludes that incarceration and coroner activities are not road purposes under article 2, section 40 of the state constitution. Similarly, it states that costs related to prosecution, adjudication, and indigent defense of traffic offenses present a closer question, but it concludes that it is most likely that these would also not be considered road purposes under the Washington Constitution and RCW 36.79.140.


2016


Whether the same person may hold the offices of school director and planning commissioner at the same time

AGO 2016 No. 7 – It concludes:

  1. Although it is an extremely close question and could depend on the facts of a particular situation, the offices of school director and planning commissioner are likely incompatible, and so the same person may not hold both offices at the same time.
  2. The same person is not precluded from holding both the offices of school director and planning commissioner by any rule against a conflict of interest.
  3. The appearance of fairness doctrine does not per se prohibit the same person from holding the offices of school director and planning commissioner at the same time, but might disqualify such a person from participating as a planning commissioner in hearing a quasi-judicial matter involving the school district that the same person serves as a school director.

Regulatory authority of the Department of Fish and Wildlife under the hydraulic project approval process related to activities above the ordinary high water line

AGO 2016 No. 6 – It concludes that the regulatory authority of the Department of Fish and Wildlife to require hydraulic project approval is not limited to activities conducted at or below the ordinary high water line. It includes authority over work “that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” Fixing a precise limit to the department’s authority above the ordinary high water line is impossible in the abstract; whether a particular project is subject to hydraulic project approval will depend on the facts in the given situation. 


Whether a municipality creates indebtedness when it enters into a lease purchase agreement as part of a performance-based energy contract

AGO 2016 No. 2 – It concludes that an equipment lease purchase agreement under which a municipality is not required to make payments entered into by a municipality relating to a performance-based energy contract under chapter 39.35A RCW would likely not constitute indebtedness for purposes of the municipality’s constitutional debt limit, though each lease would need to be analyzed on its specific facts. Such a lease likely would, however, create debt for purposes of the municipality’s statutory debt limit, depending upon the statutory treatment of the municipality and the specifics of the agreement.


Authority of code cites to modify the system for electing city councilmembers to comply with the federal Voting Rights Act

AGO 2016 No. 1 – It concludes:

  1. State law allows a code city to divide into wards for use at the primary for nominating candidates for the city council but requires that all city council members be elected at large at the general election.
  2. A code city may choose to use wards for both nominating candidates in the primary and for electing city council members at the general election if, but only if, the city has a strong basis in evidence for concluding that section 2 of the federal Voting Rights Act compels the city to do so.

2015


Authority of counties to provide by charter for the prosecuting attorney to be elected as a nonpartisan office

AGO 2015 No. 6 – It concludes that article 11, section 4 of the Washington Constitution does not prohibit a county from providing in its charter for the election of the prosecuting attorney as a nonpartisan office.


Petitions to establish city library in a city annexed to a rural library district

AGO 2015 No. 5 – It concludes:

  1. A taxpayer petition does not trigger an election under RCW 27.12.030 on whether to establish a city library when the city is annexed into a rural library district.
  2. A proposal for a city to withdraw from a rural library district may be placed before a city's voters at the discretion of the city council.
  3. Under RCW 35A.01.040(9), where petitions are to be signed by the owners of property, it is the county assessor who determines the petition's sufficiency.

Accepting a person into custody who voluntarily surrenders pursuant to an arrest warrant constitutes an arrest

AGO 2015 No. 4 – It concludes:

  1. Accepting a person into custody who voluntarily surrenders pursuant to an arrest warrant constitutes an arrest.
  2. Only a commissioned Washington law enforcement officer with the power to enforce criminal laws may arrest a person who voluntarily surrenders pursuant to an arrest warrant.

Authority of certain second class cities to transfer surplus funds from their utility accounts to the current expense funds

AGO 2015 No. 3 – It concludes:

  1. A city subject to RCW 35.23.535 may transfer excess income from its utility fund to its current expense fund.
  2. The annual charge under RCW 35.23.535 paid from a city’s utility fund to the current expense fund authorizes a city to recover costs not accounted for in direct repair, replacement, interest, or depreciation charges.
  3. Under RCW 35.92.050, a city has authority to determine its utility rates. If ratepayers challenged the rates in court, a court would review the rates under a deferential standard, but might reject rates it deems unreasonable, arbitrary, or capricious.

Authority of counties to allow the use of off-road vehicles and wheeled all-terrain vehicles

AGO 2015 No. 2 – It concludes that RCW 46.09.360 authorizes counties to designate roads or highways to be suitable for use by off-road vehicles, but excludes wheeled all-terrain vehicles from this authority. Counties derive authority to authorize the use of wheeled all-terrain vehicles under RCW 46.09.455, which applies only to roads with speed limits of 35 miles per hour or less. County authority to authorize the use of wheeled all-terrain vehicles is therefore limited to roads with speed limits of 35 miles per hour or less.


2014


Issue of video and audio recording of communications between citizens and law enforcement officers using body cameras attached to police uniforms

AGO 2014 No. 8 – It concludes:

  1. The Washington Privacy Act, chapter 9.73 RCW, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.

Whether a county legislative authority can meet outside the county to hold a joint meeting with another county’s legislative authority

AGO 2014 No. 7 – It concludes that a county legislative authority may not meet outside of its county in order to hold a joint meeting with the legislative authority of another county unless a specific exception applies, but the legislative authorities may conduct joint meetings using video conferencing.


Whether a criminal conviction in a foreign country disqualifies an applicant from obtaining a concealed pistol license

AGO 2014 No. 6 – It concludes:

  1. An individual who has been convicted in a foreign country of a crime that is comparable to a felony under Washington law is prohibited from possessing a firearm in Washington and, accordingly, is ineligible for a concealed pistol license.
  2. An issuing authority is prohibited from issuing a concealed pistol license to any applicant with a foreign conviction comparable to a Washington felony.

Organization's immunity from liability for acts of covered volunteer emergency workers

AGO 2014 No. 3 – It concludes that an organization that sponsors a team of its members to act as covered volunteer emergency workers is immune from liability under RCW 38.52.180(3)(d) or (f) only if the organization is the employer of the covered volunteer emergency workers or is a local organization (created by a county, city, or town) that registered the covered volunteer emergency workers.


Whether the statewide initiative (Initiative 502) establishing a system for licensing marijuana producers, processors, and retailers preempts local ordinances

AGO 2014 No. 2 – It concludes:

  1. Initiative 502, which establishes a licensing and regulatory system for marijuana producers, processors, and retailers, does not preempt counties, cities, and towns from banning such businesses within their jurisdictions.
  2. Local ordinances that do not expressly ban state-licensed marijuana licensees from operating within the jurisdiction but make such operation impractical are valid if they properly exercise the local jurisdiction’s police power.

Process for appointing a new county prosecuting attorney to fill a vacancy

AGO 2014 No. 1 – It concludes:

  1. If the county commission appoints a person to fill a vacancy in the office of county prosecuting attorney within 60 days of the vacancy occurring, but the appointee declines to accept the position, the authority to fill the vacancy does not transfer to the governor 60 days after the initial vacancy arose.
  2. If an individual appointed by a county commission to fill a vacancy in the office of county prosecuting attorney declines to accept the position, the county commission may request that the relevant political party provide a new list of three nominees.
  3. The county commission lacks the authority to appoint a person who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney.
  4. If the county commission appoints an individual who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney, that individual lacks the legal authority to act as prosecuting attorney.

2013


Use of timber excise tax revenues

AGO 2013 No. 5 – It concludes:

  1. A local taxing district other than a school district may use timber tax revenues distributed under RCW 84.33.081(2) only to pay debt services related to capital bonds authorized under RCW 84.52.056.
  2. RCW 84.33.081(2) does not specify the manner in which a taxing district applies timber tax revenues to the debt service.
  3. In the year in which a taxing district fully pays off its capital bonds issued pursuant to RCW 84.52.056, its use of timber tax revenue distributed pursuant to RCW 84.33.081(2) is not restricted to any particular purpose.

Authorizing the uninterrupted continuation of an emergency medical services levy

AGO 2013 No. 4 – It concludes that, where local voters have previously approved an emergency medical services levy for either a six-year or ten-year period, the approval of at least 60% of the voters is necessary to extend the levy for an additional period at a higher tax rate.


Whether a public hospital district violates chapter 9.02 RCW if it contracts with a provider of health care services that declines to provide certain services

AGO 2013 No. 3 –  It concludes that a public hospital district that provides, directly or by contract, maternity care benefits, services, or information to women, through any program administered or funded in whole or in part by the district, must also provide the substantially equivalent benefits, services, or information required by RCW 9.02.160 and .100.


Authority of irrigation districts to indemnify the United States

AGO 2013 No. 2 – It concludes that irrigation districts have the statutory authority to enter into contracts with the United States Bureau of Reclamation, but lack the statutory authority to indemnify the United States through such contracts.


Voter approval requirement for a high capacity transportation system plan

AGO 2013 No. 1 – It concludes that a transit agency seeking to establish high capacity transportation service that does not intend to rely upon local option revenue sources authorized by RCW 81.104.150 through .170 is required to obtain voter approval of its system plan only if the transit agency participates in a joint regional policy committee. Voter approval of the system plan is not required if the transit agency participates in a regional policy committee.


2012


Power of the legislative authority of a charter county to suspend the county treasurer

AGO 2012 No. 6 – It concludes:

  1. The legislative authority of a charter county has the authority to suspend the county treasurer from office under RCW 36.29.090. RCW 36.29.090 authorizes the legislative authority to suspend a county assessor-treasurer from his or her duties as treasurer, but not from duties as assessor.
  2. For purposes of RCW 36.29.090, an action based upon "official misconduct" is a civil or criminal lawsuit alleging official misconduct and would include recall petitions, criminal prosecutions, and civil actions on required bonds posted by county treasurers to ensure the faithful performance of their duties.
  3. The legislature may, by general law, authorize the legislative authority of charter counties to suspend county treasurers or treasurer-assessors from their duties so long as the legislature’s action does not violate constitutional limitations generally applicable to legislative actions.

Power of a county legislative authority to enter into a contract that binds the county legislative authority in the future

AGO 2012 No. 4 – It concludes that a county legislative authority is generally prohibited from entering into contracts that bind the future legislative actions of the county. The application of this principle depends upon a distinction between actions that are legislative in nature and those that are merely administrative or proprietary.


Deferral of property taxes for low-income senior citizens under chapter 84.38 RCW and what happens to the lien for those taxes when a county acquires the property through a tax foreclosure sale

AGO 2012 No. 3 –  It concludes that the lien in favor of the state for payment of deferred property taxes and special assessments created under RCW 84.38.100 is canceled when a county acquires title to the property through foreclosure for delinquent taxes. Where the county later sells such property, sales proceeds are apportioned pursuant to RCW 36.35.110.


Whether RCW 49.60.218 preempts a first class city from enacting a local ordinance requiring food establishments to accommodate certain types of animals in addition to accommodating trained guide dogs and miniature horses

See AGO 2012 No. 1 –  The opinion concludes that an ordinance of a first class city that prohibits food establishments from treating people differently based upon the use of additional types of service animals is not preempted by a state law prohibiting different treatment based only on the use of trained guide dogs and miniature horses.



Last Modified: April 04, 2017