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Can a city “piggyback” on a county contract for irrigation services?
Reviewed: 07/17

Yes, a city can piggyback onto an existing county contract for irrigation services, provided that, when entering into the contract, the county: (1) complied with any applicable statutory bidding requirements when entering into the contract; and, if notice was required under state law, (2) either posted the bid or solicitation for the contract on its website or on the state’s web portal.

MRSC’s Intergovernmental Purchases and ‘Piggybacking’ topic page lays out the general process for piggybacking on another local government agency’s contract as follows:

  • The host agency and the piggybacking agency must sign an interlocal agreement and file it with the county auditor or post it online by subject. RCW 39.34.040. Ideally, the agreement should be in place before the purchasing contract is awarded, but this is not mandatory.
  • The host agency must comply with its statutory contracting requirements and post the solicitation online. RCW 39.34.030(5)(b).
  • The vendor must agree to the arrangement, either through the initial solicitation documents or through a request after the fact from the agency hoping to piggyback.

For more information, I recommend reviewing the Intergovernmental Purchases and Bidding section of our City Bidding Book.

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Can a city use a hearing examiner to perform the functions of a planning commission, such as holding public hearings on text amendments to the zoning code?
Reviewed: 07/17

RCW 35A.63.170 authorizes a city to use a hearing examiner to perform certain functions that would normally be carried out by a planning agency or planning commission (emphasis added):

As an alternative to those provisions of this chapter relating to powers or duties of the planning commission to hear and report on any proposal to amend a zoning ordinance, the legislative body of a city may adopt a hearing examiner system under which a hearing examiner or hearing examiners may hear and decide applications for amending the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative body may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to:

(a) Applications for conditional uses, variances, subdivisions, shoreline permits, or any other class of applications for or pertaining to development of land or land use;

(b) Appeals of administrative decisions or determinations; and

(c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW.

The emphasized language above suggests that generally applicable zoning ordinance amendments are not to be delegated to a hearing examiner. That is consistent with the typical role of a hearing examiner, which is usually limited to site-specific rezones and application of zoning regulations to individual properties.

While a city is not required to have a planning commission, RCW 35A.63.170 prevents cities from delegating all planning agency functions to a hearing examiner. Hearing examiners are well equipped to hear quasi-judicial land use matters, but they do not seem as qualified to make policy recommendations to a city council on generally-applicable zoning regulations. Those types of items could be delegated to another individual authorized by the council to serve as the “planning agency,” and could include a city staff member or an individual on contract for such services for one or more cities. See RCW 35A.63.020; RCW 35A.63.010(8)

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May a nonresident serve on the city planning commission?
Reviewed: 07/17

State law does not specify or require that an individual be a resident of the city before serving on the city’s planning commission. However, RCW 35.21.200 allows—but does not require—a city to establish residency requirements for its appointed officials, including members of the planning commission. Unless a city adopts such a residency requirement, a nonresident could be appointed as a member of the planning commission.

While state law does not explicitly require that an individual be a resident of the city, there is some legal authority that suggests that U.S. citizenship is a requirement for serving on the planning commission. In AGO 1960 No. 169, the AG’s Office opined that only U.S. citizens could be appointed to fill the position of a city planning director because that position constituted a “public office.” This rule is also supported by case law—albeit indirectly. See Herriott v. City of Seattle, 81 Wn.2d 48 (1972) (Holding that a position in general public employment that does not rise to the status of public office and which involves no requirement of security, discrimination against aliens in favor of citizens is unconstitutional as a denial of equal protection of the laws). In AGO 2016 No. 7, the AG’s Office opined that an individual likely holds a “public office” when appointed as a planning commissioner. It is important to note, however, that AG Opinions are not legally binding on local governments—although courts do give them great weight.

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What percentage of the state excise tax on recreational and medical marijuana will cities be receiving?
Reviewed: 07/17

In 2017 the state is estimated to collect $550,000,000 in marijuana excise taxes. The distribution shared with the cities and counties will be $12,000,000 during fiscal years 2018 and 2019, and, if marijuana revenues exceed certain forecasts, local governments will receive an additional $18 million in the 2017-19 biennium. The distribution to cities and counties will be reduced to $6,000,000 in fiscal year 2020 and thereafter.

Of the revenue shared with cities and counties, cities will receive more of the excise tax distribution than the counties, because most of the retail stores are located in cities. We do not have a breakdown of exactly what the current split in revenues is between cities and counties. The amount changes with the volume of business at the retail locations, and varies as more jurisdictions change to allowing licensed marijuana businesses to open in their jurisdiction.

You can keep track of the state marijuana excise tax revenue collected by going to the LCB’s Monthly Marijuana Dashboard.

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Can a city require that a fire chief reside in the city?
Reviewed: 06/17

A city council can establish residency requirements for non-civil service positions (such as a fire chief). For civil service positions, residency requirements aren’t allowed.

The relevant statute is RCW 35.21.200, which provides:

Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees, but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified: PROVIDED, That this section shall not authorize a city or town to change any residential qualifications prescribed in any city charter for any appointive official or employee: PROVIDED, FURTHER, That all employees appointed prior to the enactment of any ordinance establishing such residence qualifications as provided herein or who shall have been appointed or employed by such cities or towns having waived such residential requirements shall not be discharged by reason of such appointive officials or employees having established their residence outside the limits of such city or town: PROVIDED, FURTHER, That this section shall not authorize a city or town to change the residential requirements with respect to employees of private public utilities acquired by public utility districts or by the city or town.

Note, however, one limitation: a residency requirement cannot apply retroactively to existing employees. In other words, a residency requirement can only apply prospectively to new positions.

If the position at issue is a civil service position, RCW 41.08.075 generally prohibits a residency requirement with respect to city firefighters under the civil service system. RCW 41.08.075 provides:

No city, town, or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter [i.e., chapter 41.08 RCW] or under any local charter or other regulations described in RCW 41.08.010 to reside within the limits of such municipal corporation as a condition of employment, or to discriminate in any manner against any such person because of his or her residence outside of the limits of such city, town, or municipality.

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Do budget amendments in code cities require a public hearing?
Reviewed: 06/17

No, state law does not require a public hearing for a regular budget amendment. RCW 35A.33.105 provides the ability to adjust wages, hours, and conditions of employment, without a public hearing. RCW 35A.33.120(4) provides the authority to amend the budget if excess of estimated revenues are to be appropriated. RCW 35A.33.080 provides for "nondebatable emergencies" and there is no public hearing required. The only type of amendment that requires a public hearing is described in RCW 35A.33.090, which deals with the situation where a city council declares an emergency that is not one of the emergencies defined in RCW 35A.33.080.

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What type of tax applies to leasing of public property to private individuals?
Reviewed: 06/17

The tax that applies to public property leased to private individuals is called the leasehold excise tax. The state Department of Revenue’s (DOR’s) Leasehold Excise Tax webpage states that the leasehold excise tax is the tax on the use of public property by a private party that is in lieu of property tax. The tax doesn’t apply to leases to public entities since they are exempt from property taxes; it only applies to private entities leasing from public bodies.

DOR has a leasehold excise tax Q&A publication that provides more information on this tax.

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Where does a school "route" end and a school "zone" begin? Does a school route need signs? How far away can a zone begin? 
Reviewed: 06/17

RCW 46.61.440(2) governs school zones, independently of school routes, and states (emphasis added):

(2) A county or incorporated city or town may create a school or playground speed zone on a highway bordering a marked school or playground, in which zone it is unlawful for a person to operate a vehicle at a speed in excess of twenty miles per hour. The school or playground speed zone may extend three hundred feet from the border of the school or playground property; however, the speed zone may only include area consistent with active school or playground use.

So, school zones relate to traffic speed control on streets abutting schools.

In contrast, school routes are intended as safe walking routes for school children and may have signs. For more information on school routes, see WSDOT’s School, Walk, and Bike Routes publication.

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What is the legal authority for saying that the city is under no obligation to create a record when responding to a PRA request?
Reviewed: 05/17

The RCW’s do not address this question directly, so we have to look to other sources for guidance. The Attorney General’s Public Records Act Model Rules—Ch. 44-14 WAC—are one source of guidance. Although not a binding authority for local governments, the model rules are persuasive authority and will often provide relevant case decisions.

WAC 44-14-04003(5) states that “[a]n agency is not obligated to create a new record to satisfy a records request” and cites Smith v. Okanogan County (2000) as support. Another case that supports this rule is Fisher Broadcasting v. Seattle, which the Washington Supreme Court decided in 2014. Fisher Broadcasting provides an excellent example that explains the complex question of whether an agency should “create” records to fulfill a response.

In Fisher, the court addressed a records request for “a list of any and all digital in-car video/audio recordings.” Fully answering this would have required the PRA Officer to mine data from two distinct systems and create a new document compiling the data. The court found that this is outside the requirement of the PRA and the agency was not obligated to create such a record. However, the agency at issue did have the capacity to produce a record that partially answered the request from one of the systems, and the court held that they should have done so. The court in Fisher explained as follows:

Given the way public records are now stored, there will not always be a simple dichotomy between producing an existing record and creating a new one. But "public record" is broadly defined and includes "existing data compilations from which information may be obtained . . . regardless of physical form or characteristics." This broad definition includes electronic information in a database. Merely because information is in a database designed for a different purpose does not exempt it from disclosure. Nor does it necessarily make the production of information a creation of a record.

For more information, section 1.6 (D) of the Attorney General’s Open Government Resource Manual provides a robust discussion on this topic.

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How do other jurisdictions address remote participation by members of their governing body in public meetings, including long-term remote participation?
Reviewed: 05/17

MRSC has taken the position that remote participation in public meetings may be approved by the governing body—ideally pursuant to a written policy that sets forth the circumstances under which remote participation will be allowed. Questions about long-term remote participation would then depend on whether such participation conforms to the jurisdiction’s policy.

Here are some sample policies:

  1. Bothell City Council Protocol Manual Sec. 7.14 – Attendance via Speakerphone (AVS)
  2. Lake Forest Park City Governance Manual Sec. 4.17 – Remote Participation
  3. Mill Creek Manual of City Governance Policies, Procedures and Guidelines Sec. 4.6 – Telephonic Participation from a Remote Location
  4. Mukilteo City Council Rules of Procedure Rule 1(H) – Telephonic Appearance

These policies vary. For example, Bothell limits remote participation to extraordinary circumstances twice per year, while Lake Forest Park does not.

We can envision situations in which a council or board member may seek to participate remotely for an extended period of time due to illness or disability. Whether it is an “accepted practice” depends on the policy of the particular jurisdiction. State law in general and the OPMA in particular do not prohibit or set limits on remote participation so long as the participant can hear, be heard, and participate effectively in the meeting. See AGO 2017 No. 4.

 

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If we use the CPI as the inflator in a multi-year lid lift, which index should we choose?
Reviewed: 05/17

There are all sorts of consumer price indices. It is absolutely crucial that you correctly identify the one you want to use in your ballot measure.

The considerations are the same as choosing a consumer price index for a labor contract. The Bureau of Labor Statistics has a website that will help you make that decision.

Figure out when you will want the information, for budgeting purposes, on how much your property tax levy can be increased. Then make certain that the CPI index you have chosen will be available by that date. The U.S. CPI figures are available monthly with a lag of about two and a half weeks. For example, the April statistics are published around May 19 or so.

The Seattle-Tacoma-Bremerton CPIs are published bimonthly for even-numbered months. For example, the February numbers are published in mid-March, and the next release is the April numbers, which are published in mid-May.

The Portland-Salem indices are only published twice a year. Numbers for the first half of the year are published in mid-August, and numbers for the second half of the year are published in mid-February.

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We have "banked" capacity, but our council would rather do a levy lid lift than use that banked capacity. Can we do this?
Reviewed: 05/17

According to Kathy Beith of the Department of Revenue, "no."

Taxing jurisdictions must understand that "banked" capacity is not kept separate from their regular levy, i.e., there aren't "green" dollars that are the regular levy and "red" dollars that are banked capacity. There is simply a dollar amount that is the maximum allowable levy. (This number is on the levy worksheet they get each year from their assessor.)

If a city is levying less than that, it has "banked" capacity. As long as the extra amount they want to levy to cover the cost of the pool does not result in their exceeding their maximum allowable levy, it is done with a simple majority vote of the council at the time they set their levy for next year. Only if they want to levy more that (assuming they can do so because they are still below their maximum levy rate) can they do a levy lid lift. Note that there is no separate ordinance to "unbank" capacity. It is simply done by putting the desired dollar amount, which reflects the "unbanking," in their standard levy ordinance.

So, to summarize, you cannot save "banked" capacity by doing a levy lid lift. The banked capacity has to be used first.

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Is there a statutory limitation on how soon a levy lid lift proposition can be brought before the voters after a previous unsuccessful vote?
Reviewed: 05/17

A: No, the statute governing levy lid lifts, RCW 84.55.050, does not impose any limitations on how soon a lid lift proposition may be placed on the ballot after an unsuccessful vote. Obviously, there are political considerations.

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Please provide some examples of good food cart/food truck regulations.
Reviewed: 05/17

The following are some sample food cart/food truck regulations adopted by jurisdictions here in Washington State:

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May one county annex territory from an adjacent county?
Reviewed: 05/17

No, not under normal circumstances. There is no process established by state law for such a change. The primary state constitutional provision is article 11, section 3, which reads, in part:

SECTION 3 NEW COUNTIES. No new counties shall be established which shall reduce any county to a population less than four thousand (4,000), nor shall a new county be formed containing a less population than two thousand (2,000). There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefore and then only under such other conditions as may be prescribed by a general law applicable to the whole state. . . .

The state legislature has never enacted a “general law” providing a process for shifting a county boundary.

Additionally, the state legislature is prohibited from making a change to the county boundaries in such a situation by article 2, section 28 of the state constitution:

SECTION 28 SPECIAL LEGISLATION. The legislature is prohibited from enacting any private or special laws in the following cases:
. . .
18. Changing county lines, locating or changing county seats, provided, this shall not be construed to apply to the creation of new counties.

Chapter 36.04 RCW establishes the boundaries of each of the counties. Chapter 36.08 RCW provides a detailed process for shifting county boundaries, but only in quite limited situations. For example, RCW 36.08.010 states as follows:

If a harbor, inlet, bay, or mouth of river is embraced within two adjoining counties, and an incorporated city is located upon the shore of such harbor, bay, inlet, or mouth of river and it is desired to embrace within the limits of one county, the full extent of the shore line of the harbor, port, or bay, and the waters thereof, together with a strip of the adjacent and contiguous upland territory not exceeding three miles in width, to be measured back from highwater mark, and six miles in length, and not being at a greater distance in any part of said strip from the courthouse in the county seat of the county to which the territory is proposed to be annexed, as such county seat and courthouse are now situated, than ten miles, a majority of the qualified electors living in such territory may petition to have the territory stricken from the county of which it shall then be a part, and added to and made a part of the county contiguous thereto.

The legislature would need to enact a general law providing a process for the residents of land in question to petition for a county boundary change, and then a process for making the change. See the detailed provisions in chapter 36.08 RCW as an example. It is not clear whether such a change would necessarily require an election.

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With the change in the minimum wage rates and requirement to provide paid sick leave, how do we address sick leave for seasonal employees?
Reviewed: 05/17

Beginning January 1, 2018, RCW 49.46.210 will require that every employer provide each of its employees with at least one hour of paid sick leave for every forty hours worked as an employee.

RCW 49.46.010(3) then defines, for the purposes of chapter 49.46 RCW, “employee” to mean “any individual employed by an employer” but then lists 16 exceptions. See RCW 49.46.010(3)(a)-(p).

So, if the seasonal employees at issue are covered by RCW 49.46.010(3)’s definition of “employee,” and none of the exceptions apply, then I think that your city would, beginning in 2018, need to provide paid sick leave to those employees at a rate of at least one hour of paid sick leave for every forty hours worked as an employee.

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How much should a city or county have in general fund reserves?
Reviewed: 04/17

In short, it depends. The Government Finance Officers Association (GFOA) used to provide recommended ranges, but GFOA stopped doing so because there is too much variability and it really depends on the specific needs and circumstances of each jurisdiction. For more guidance, including key questions to consider, examples from other jurisdictions, and links to best practices, see our page on Fund Balance and Reserve Policies.

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Can you clarify the rates listed for each category in the B & O Tax model ordinance?
Reviewed: 04/17

The maximum rates that can be imposed for a B&O Tax is .0020. The applicable statutory reference is RCW 35.21.710 which states in part:

The taxing authority granted to cities for taxes upon business activities measured by gross receipts or gross income from sales shall not exceed a rate of .0020 . . . .

This maximum rate is applicable to each of the classifications of business, which are: wholesale, retailing, manufacturing, and services.

For more information, see MRSC’s B&O Tax topic page, which provides additional information, such as the current 2016 list of cities that have adopted the B&O Tax, as well as links to AWC materials that contain additional legislative information on this topic.

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How do other cities deal with fee in lieu of park land dedication or park impact fees for mixed-use developments?
Reviewed: 04/17

Please see the following:

Codes that address applicability of park impact fees to mixed use developments:

Codes limiting park fees to residential units in mixed-use developments:

Codes that apply park impact fees to commercial uses:

We did not find any provisions applying a fee in-lieu of park land dedication requirement for mixed-use projects.

You may also be interested in MRSC’s Impact Fee topic page.

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Are draft documents considered public records?
Reviewed: 04/17

Yes, draft documents are public records, assuming, of course, that they otherwise meet the definition of “public record” in RCW 42.56.010(3). As public records, they may be exempt from disclosure under RCW 42.56.280, which exempts (emphasis added):

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.

The fact that they are drafts does not then, by itself, make such documents exempt from disclosure. In PAWS v. University of Washington, 125 Wn.2d 243, 256 (1994), the Washington Supreme Court established a test to determine whether this exemption applies in a particular case:

In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.

For more information regarding this public disclosure exemption, see our Explaining the PRA's Deliberative Process Exemption blog post.

So, the determination needs to be made on a document-by-document basis whether draft documents are exempt from disclosure under this exemption.

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Do advisory committees need to take minutes of their meetings?
Reviewed: 04/17

If the committee at issue is a “governing body” of a “public agency” within the meaning of the Open Public Meetings Act (OPMA), then that the committee would, under state law, be required to take minutes of its regular and special meetings.

The key provision of state law is RCW 42.32.030, which states that:

The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such records shall be open to public inspection.

Since RCW 42.32.030 specifically refers to “all regular and special meeting,” the requirement to take minutes appears to only extend to meetings that are subject to the OPMA, because those terms only have relevance within the context of the OPMA. See RCW 42.30.070.080. Only the meetings of a “governing body” of a “public agency” are subject to the OPMA. See, e.g., RCW 42.30.030. As RCW 42.30.020(1) and (2) make clear, the terms “governing body” and “public agency” are defined in such a manner that would generally subject planning commissions, parks commissions, as well as advisory committees—when they “act on behalf” of the governing body—to the OPMA.

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Is an employee's personal email address included in a standard city email message subject to disclosure under the Public Records Act?
Reviewed: 04/17

Yes, the personal email address in this context must be disclosed if the email message at issue is responsive to a public records request made under the PRA. The only exemptions that may apply to an employee’s personal email address are:

  • RCW 42.56.230(3) (exempting personal information in files maintained for employees…to the extent that disclosure would violate their right to privacy); and
  • RCW 42.56.250(3) (exempting personal email addresses held by a public agency in personnel records)

In this circumstance, the employee’s personal email address appears just in a standard email message and not in files maintained for employees or in the agency’s personnel records. Therefore, it cannot be redacted.

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What is the proper purchasing procedure for construction software that would be used by city inspectors?
Reviewed: 03/17

First, you need to determine whether this is a purchase of supplies or of services. The following Q&A is from MRSC’s City Bidding Book:

Is the purchase of computer software a purchase of supplies or a purchase of services?
It depends. If the software is “off-the-shelf” (or predominantly so), then it is a purchase of supplies. If the primary or sole cost is for consultant services to customize the program for the city, it is a purchase of services.

Assuming this is software of a largely “off-the-shelf” variety, it would be a purchase of “supplies, materials, or equipment” and only needs to be bid if the cost of that software is over $7,500 and if the entity is a code city with under 20,000 in population, a second class city or a town. There is no state law requirement for code cities over 20,000 to go out for bids for the purchase of materials, supplies and equipment.

However, a couple exemptions from the competitive bidding requirement may apply, including RCW 39.04.280 (i.e., single source and special market conditions), and the alternative competitive negotiation procedure available under RCW 39.04.270 for software (data processing) purchases. MRSC’s Telecommunications and Data Processing Purchases topic page lists the steps for following this alternative process.

If instead this is a purchase of services, then it is a non A&E service. Therefore, there are no specific statutory requirements to obtain these services for any type of city. For more information, see MRSC’s Personal Services Contracts topic page.

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The town has two newly appointed councilmembers. Do they need to take the same open government training that the elected councilmembers had to take?
Reviewed: 03/17

Yes, a town’s appointed councilmembers will need to complete the open government training no later than ninety days after they either: (1) take the oath of office; or (2) otherwise assume their duties as a public official. Specifically, RCW 42.56.150(1) states as follows (emphasis added):

Each local elected official and statewide elected official, and each person appointed to fill a vacancy in a local or statewide office, must complete a training course regarding the provisions of this chapter, and also chapter 40.14 RCW for records retention.

Similarly, RCW 42.30.205(1) states (emphasis added):

Every member of the governing body of a public agency must complete training on the requirements of this chapter [i.e., the OPMA]. . . .

Just like elected councilmembers, appointed councilmembers are members of the governing body of a public agency (i.e., the town council). Therefore, they must complete the required training.

Our OPMA and PRA Training Requirements Apply to Officials Elected in 2016 blog post provides an overview of some good options for completing the required training online.

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May an agency use public funds to purchase a gift card to be given as a prize to a randomly drawn individual who participated in a survey put out by the agency?
Reviewed: 03/17

Assuming that the survey is collecting information that would assist the agency in its official business (i.e., there is a valid municipal purpose), it is likely permissible to use city funds to purchase the gift card.

For there to be an impermissible “gift” of public funds under article 8, section 7 of the state constitution, the agency would have to receive nothing in return and have the intent that it receive nothing in return.

In this scenario, there is a public/municipal purpose for the drawing—to get greater participation in the survey, which would presumably provide valuable information to be used toward a public purpose. So, the agency receives something of “value” (i.e., information) in return for its expenditure on the drawing prize. Therefore, the expenditure of public funds on a drawing prize to increase participation in an agency’s survey is likely a permissible expenditure of public funds.

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