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The mayor is not counted as part of the quorum since the mayor in a mayor-council code city is not a member of the legislative body. See RCW 35A.12.100 (mayor is chief executive and administrative officer of the city). And RCW 35A.12.120 provides, in relevant part:

At all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business…

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An agency-related Facebook post by a public employee or official on their personal Facebook account can be a public record if the post was made within the employee’s or official’s scope of agency employment. Since an agency acts exclusively through their employees or officials, the location of a record (whether on a personal account or public account) does not matter; in other words, public records can reside on private accounts or devices. See Nissen v. Pierce County (2015). Rather, the critical question with regard to whether an agency-related post on a personal Facebook account is a public record is whether the post was made in the employee’s official public capacity or scope of employment. For a post to be "within the scope of employment," their job must require it, their employer must direct it, or it must further their employer's (i.e. the government’s) interests. A post that only minimally or incidentally furthers an interest of the government, without more, is not a public record. See West v. City of Puyallup (2018).

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RCW 10.93.130 allows local law enforcement agencies to contract with any other law enforcement agency to provide mutual law enforcement assistance via an interlocal agreement as provided for by RCW 39.34. This would include contracting with another city’s police department (even if that city is located in another county) for the provision of law enforcement services. For example, see this agreement that the city of Carnation has with the larger city of Duvall for Duvall to provide law enforcement services to Carnation.

You can also look on our Interlocal Cooperation in Law Enforcement page for more information and examples of such agreements between jurisdictions.

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The Washington Labor rules in WAC Chapter 296-126, which include the meal and rest rules in WAC 296-126-092, do not apply to “[a]ny individual employed in a bona fide executive, administrative or professional capacity or in the capacity of outside salesperson” because such persons are not included in the definition of “employee” for purposes of the rule. See WAC 296-126-002 (2)(b).

The Washington Minimum Wage and Overtime law also does not apply to certain “bona fide executive, administrative or professional” individuals, as well as many other kinds of employees. RCW 49.46.010(3)(c). All of these employees, including the professionals, are often referred to as “exempt.” However, WAC 296-128-500, provides a further definition of the professional terms that define duties and a base salary. So it is possible to have an employee that performs executive, administrative, or professional functions that doesn’t meet the rule’s definition for purposes of the exemption.

The same is true under the federal law. See MRSC's page on the Fair Labor Standards Act.

WAC 296-126-092 does not provide a definition of executive, administrative, or professional, but it is likely safe to assume that the duty and salary based definition in WAC 296-128-500 applies. In fact, a federal district court found that a salaried pharmacist was a “professional” and thus not subject to the Washington meal and rest break rules. Parmar v. Safeway, US District Court (W.D. Washington) March 14, 2011 (unpublished decision).

So, if you have employees that are “exempt” under the state and federal law for overtime pay in part because they are “bona fide executive, administrative or professional” employees, then the Washington meal and break rules would not apply to them because of the overlap in terms. So it is less that an overtime “exempt” employee is also exempt from the meal and break rules (because the word “exempt” means many types of employees), but rather an individual that meets the definition of the professional type of “exempt” employee likely meets the definition of a professional employee that is also not subject to the meal and break rules. There may be other types of overtime “Exempt” employees that ARE subject to meal and break rules.

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Under chapter 84.14 RCW, Washington cities with a population of 15,000 or more may establish a tax exemption program to stimulate the construction of new, rehabilitated, or converted multi-family housing within designated areas, including affordable housing. In addition, cities in "Buildable Lands" counties under RCW 36.70A.215 and the largest city in a GMA county where no city has 15,000 or more population may also utilize the tax exemption program.

When a project is approved under this program, the value of eligible multifamily housing improvements is exempted from property taxes for 8 or 12 years. Land, existing improvements, and non-residential improvements are not exempt. Only multiple unit projects with 4 or more units are eligible for either the 8- or 12-year exemption, and only property owners who commit to renting or selling at least 20 percent of units as affordable housing units to low and moderate income households are eligible for a 12-year exemption. If the property use changes in a manner inconsistent with program requirements before the 8- or 12-year exemption ends, back taxes are recovered based on the difference between the taxes paid and the taxes that would have been paid without the tax exemption.

For eligible local governments, it is the city that would adopt such a program and a developer/property owner that would apply to participate in the city’s program.

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There is a fairly comprehensive description of an “essential public facility” in RCW 36.70A.200(1) (emphasis added):

The comprehensive plan of each county and city that is planning under RCW 36.70A.040 shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

A more detailed list is set forth in WAC 365-196-550(1), which states in relevant part:

(d) The following facilities and types of facilities are identified in RCW 36.70A.200 as essential public facilities:

(i) Airports;

(ii) State education facilities;

(iii) State or regional transportation facilities;

(iv) Transportation facilities of statewide significance as defined in RCW 47.06.140. These include:

(A) The interstate highway system;

(B) Interregional state principal arterials including ferry connections that serve statewide travel;

(C) Intercity passenger rail services;

(D) Intercity high-speed ground transportation;

(E) Major passenger intermodal terminals excluding all airport facilities and services;

(F) The freight railroad system;

(G) The Columbia/Snake navigable river system;

(H) Marine port facilities and services that are related solely to marine activities affecting international and interstate trade;

(I) High capacity transportation systems.

(v) Regional transit authority facilities as defined under RCW 81.112.020;

(vi) State and local correctional facilities;

(vii) Solid waste handling facilities;

(viii) In-patient facilities, including substance abuse facilities;

(ix) Mental health facilities;

(x) Group homes;

(xi) Secure community transition facilities;

(xii) Any facility on the state ten-year capital plan maintained by the office of financial management.

This seems to be a fairly comprehensive list, but this regulation makes clear that the primary components of the definition of an essential public facility is that it (1) provides a public service; and (2) is difficult to site. See WAC 365-196-550(1)(f). Thus, there may be other uses that fall within the definition, even if they do not appear on this list.

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Whether or not two councilmembers should talk to each other about their committee business outside of a public meeting depends on the purpose of the committee. The Open Public Meetings Act (OPMA), chapter 42.23 RCW, applies when a quorum of the governing body meets. So, unless there are enough councilmembers on the committee to make a quorum, the OPMA probably does not apply. There are times when a meeting of a committee or subcommittee of a governing body is subject to the OPMA, even when a quorum of the governing body is not present.

A “governing body” means “the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.” And “public agency” includes “[a]ny subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies.” So, even though there may not be a quorum, you must ask if the committee “acts on behalf of the governing body” or “takes testimony or public comment”?

In 2015, the Washington Supreme Court in Citizen’s Alliance v. San Juan County ruled that committees that serve a purely advisory function are not subject to the OPMA. Here is a link to a blog article MRSC published about the case if you want more information. I recommend you look carefully at the functions and actions of any council committee to see whether this may be considered a “governing body,” i.e., it acts on behalf of the governing body.

If it is not clear whether the OPMA applies, then two councilmembers should probably avoid discussing council committee business outside of the meetings. MRSC legal guidance tends to be conservative, especially on issues related to open government such as the OPMA. Our guidance is not meant to substitute for the legal advice of your city attorney.

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The easiest way to proceed would be through the use of RCW 35A.21.210:

(1) The governing bodies of a county and any code city located therein may by agreement revise any part of the corporate boundary of the city which coincides with the centerline, edge, or any portion of a public street, road or highway right-of-way by substituting therefor a right-of-way line of the same public street, road or highway so as fully to include or fully to exclude that segment of the public street, road or highway from the corporate limits of the city.
(2) The revision of a corporate boundary as authorized by this section shall become effective when approved by ordinance of the city council and by ordinance or resolution of the county legislative authority. Such a boundary revision is not subject to potential review by a boundary review board.

For non-code cities and towns, there is a comparable provision at RCW 35.21.790.

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For a mayor-council code city, state law gives the city council the authority “to define the functions, powers, and duties of its officers and employees.” Although the city council could delegate the authority to the mayor, state laws give the authority to approve job descriptions to the city council.

RCW 35A.11.020 provides in relevant part:

The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees. [emphasis added]

RCW 35A.12.090 provides, in part:

All appointments of city officers and employees shall be made on the basis of ability and training or experience of the appointees in the duties they are to perform, from among persons having such qualifications as may be prescribed by ordinance or by charter. [emphasis added]

If the city wants to give the mayor more authority in modifying job descriptions, one option is for the council to set the job description “qualifications” in a manner that is rather broadly defined and then leave it to the mayor to develop position descriptions that are consistent with those qualifications.

Practically, both the council and the mayor have an important role in establishing position descriptions, but the council has the authority to define the job descriptions and the mayor has the ultimate authority over who will be hired or terminated.

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The sheriff serves the entire county, including each city and town. The RCWs that describe the sheriff’s duties are not limited to the unincorporated parts of the county. There is an attorney general opinion to that effect, AGO 1990 No. 4. Here is a summary of that opinion:

1. The county sheriff's duty to enforce state law applies equally in incorporated and unincorporated areas of the county.
2. If a city is unable to provide for adequate police protection, the county sheriff must take this factor into account in allocating the resources of the sheriff's office. However, the statutes do not obligate the sheriff to provide a city with a specific number of police officers or a specific level of police services.
3. If a city wants to obtain a specific number of county police officers or level of police services, the Interlocal Cooperation Act empowers the city to contract with the county to provide those services.
4. That is the problem if the city does not have its own police force, or there is no 24-hour coverage. The sheriff can be looked to for law enforcement services, but the level of service provided is up to the sheriff, not the city.

Obviously, the sheriff deputies will respond to serious crimes within the city, but they may not provide patrol or take action for certain types of violations. The only way the city can assure the level of service it desires is to have its own police force or to contract with the county for the required services.

If the city’s budget is such that it can no longer have its own police force, the sheriff will provide services without the city having to make payment. But, as indicated above, there is no assurance of the level of service that will be provided. Presumably the level of service will be dependent upon how much police activity is occurring at a given time. The only way the city can be more certain about coverage is to contract with the sheriff. The process will ultimately come down to the negotiations between the city and the county, how much the city is willing to pay, and how much the county wants for its services.

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The applicable retention periods are set forth in the Local Government Common Records Retention Schedule (CORE). Records related to code enforcement action typically have a retention period of 6 years after the matter is resolved or closed. See DAN GS2012-026, CORE p. 31.

The six year retention period applies to the city’s primary copies of the records regardless of whether they are in electronic or paper format.

Records that are duplicate or secondary copies of the city’s primary copies may be destroyed when they are no longer needed for city business. See DAN GS50-02-04, Rev. 2 (CORE Schedule p. 163).

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It's our position that, unless the city would own the property underlying the right-of-way (ROW) in fee (which is not your typical scenario), then a ROW bisecting a lot would not result in two lots being created. We are not aware of any case law authority for the proposition that establishing a ROW (whether opened as a road or not) across undivided property serves to split that property into two lots. A ROW itself is only an easement (in most cases) and does not carry with it fee title to the underlying property. See, e.g., Christian v. Purdy, 60 Wn. App. 798, 801(1991). See also our blog post: Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1).

Property can be divided in this state only through the subdivision process in chapter 58.17 RCW or through one of the exceptions to the subdivision process in RCW 58.17.040. If a right-of-way is established through the middle (or any portion) of a lot, the property would remain as one lot and a short plat would be necessary to divide the lot into two, one on each side of the right-of-way (though with the boundary line through the center of the right-of-way).

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If a city can establish all the elements of adverse possession, it can obtain property in that manner. We have consistently advised that a city may do so and we have also noted that cities may acquire prescriptive easements. The decision in Aylmore v. Seattle, 100 Wash. 515 (1918), supports our advice with respect to adverse possession. We have also cited McQuillin, Municipal Corporations, §§ 28.15 and 30.21 for the proposition that a city can acquire property by adverse possession.

We have provided the following advice as to acquisition of a prescriptive easement:

It is clear in this state that public highways over private property may be acquired by prescription. See the cases of Todd v. Sterling, 45 Wn.2d 40 (1960) and Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75 (1942).

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It's our opinion that LTAC members may participate in voting on funding of activities they are specifically involved with. Although that would appear to present a conflict of interest situation, that conflict is, in our opinion, impliedly authorized by the language in RCW 67.28.1817(1) providing that at least two members of the committee be "persons involved in activities authorized to be funded by revenue received under this chapter." Also, the committee is advisory only, and it is the council that makes the actual decision on the use of the funds.

So, although there is no specific legal authority (AGO or court decision) on this issue, we think it's okay for the members to vote in such circumstances.

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If the city wants to use a small works roster (for public works projects under $350k), it can elect to do so pursuant to RCW 39.04.155. This is an optional process. If the city elects not to use the small works roster, then a formal competitive bid process must be followed if the project exceeds applicable bid limits. Effective July 28, 2019, ESSB 5418 increased the day labor/bid limits for code cities, second class cities, and towns to $75,500 (single craft) and $116,155 (multiple craft).

If the project is below applicable bid limits, a city may use the small works roster or a minimal competition process. For more on this, see our Find your Contracting Requirements Tool.

For cities, there is no statutory requirement for bidding for services (which would include consultants). This process is expected to be outlined in policy by the agency. The agency can, therefore, define whether it requires a roster to be used, or any other process deemed appropriate. Some agencies establish different procedures depending on the amount anticipated to be spent.

There is no requirement for an agency to use a roster for A&E contracting. A roster can be incorporated into the A&E process of Ch. 39.80 RCW, and such procedures should be set forth in the agency’s policies.

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Although the statutes are not entirely clear, MRSC’s legal consultants have taken the position that the mayor can vote to break a tie vote of the council to fill a vacant council position.

RCW 42.12.070 provides that it is the governing body that makes the appointment, not the mayor. RCW 42.12.070(1) states that:

Where one position is vacant, the remaining members of the governing body shall appoint a qualified person to fill the vacant position.

We think that under RCW 42.12.070 (see above) the mayor may not vote initially on filling the vacancy since such votes are limited to members of the city council itself. However, if there is a tie in the votes of the councilmembers, the mayor may exercise their tie-breaking authority and break the tie vote.

The mayor’s authority to break a tie vote is set forth in RCW 35A.12.100, which provides in part:

The mayor shall preside over all meetings of the city council, when present, but shall have a vote only in the case of a tie in the votes of the councilmembers with respect to matters other than the passage of any ordinance, grant, or revocation of franchise or license, or any resolution for the payment of money. . . . The mayor shall have the power to veto ordinances passed by the council and submitted to him or her as provided in RCW 35A.12.130 but such veto may be overridden by the vote of a majority of all councilmembers plus one more vote.

Filling a vacancy is a “matter other than the passage of any ordinance, grant, or revocation of a franchise, or any resolution for the payment of money. . . .” So, we think that the mayor could break a tie vote to fill a vacant position on council.

There is a contrary position, based on the legislative history of RCW 42.12.070 and Chapter 35A.12 RCW, that the mayor plays no role in the process of filling a vacancy on a council and that the general grant of tie-breaking authority in RCW 35A.12.100 does not control in the specific process outlined in RCW 42.12.070. This argument is based on a 1994 statutory amendment (1994 c 223 § 1), which removed any reference to the mayor. Prior to the 1994 amendment, RCW 35A.12.050 specifically provided that:

If, after thirty days have passed since the occurrence of a vacancy, the council are unable to agree upon a person to be appointed to fill a vacancy in the council, the mayor may make the appointment from among the persons nominated by members of the council. [Repealed in 1994].

The 1994 amendment removed this language, and instead cross-referenced the procedure in chapter 42.12 RCW for filling a vacancy. The procedure in chapter 42.12 RCW does not specifically reference the mayor.

Because there has been no caselaw or attorney general opinions on this point, reasonable legal minds can disagree, and we defer to the legal advice of the agency attorney.

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No. Unlike cities and towns, the rules for counties lack language that allows local rules that “substantially accomplish the purpose” of the state law. See RCW 41.12.010, applicable to city police, which states:

The provisions of this chapter shall have no application to cities and towns which at the present time have provided for civil service in the police department or which shall subsequently provide for civil service in the police department by local charter or other regulations which said local charter or regulations substantially accomplish the purpose of this chapter, nor to cities having a police force of not more than two persons including the chief of police.

There is no similar language in the county statute, thus eliminating the possibility of a local rule that differs from the state law.

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The short answer is no. RCW 42.30.060 states, in relevant part:

No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

The Open Public Meetings Act allows for executive sessions only in certain circumstances as set forth at RCW 42.30.110. You’ll see that the governing body may do such things as “consider”, “discuss”, and “evaluate.” Final action, such as adopting a resolution, must be done in an open public meeting.

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For many offices, Article 11, Section 8 of the Washington Constitution prohibits elected officials from raising their own salary after their election and during their term of office. This prohibition on salary increases, however, applies only to officials who set their own salary, such as city councilmembers. See Const. art XXX, § 1. See also AGO Opinion, 1999, No. 1. Consequently, a salary increase for an elected official who does not set his or her own compensation, such as the mayor, may occur at any time.

If there was a tie vote in the council, normally the mayor could break the tie. However, if it is a tie vote as to raising the mayor’s salary, while in that instance the mayor could break the tie, he or she would not be able to take the new, higher salary until the next term of office. But, generally, if the council increases the mayor’s salary, the new salary can go into effect immediately.

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Yes, the LEOFF 1 Disability Board is created pursuant to RCW 41.26.110 and subject to the Open Public Meetings Act. RCW 42.30.030 provides in part: “All meetings of the governing body of a public agency shall be open and public.” A public agency is defined as any city or county (among others) and includes:

(c) Any subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies;

RCW 42.30.020(1)(b) and (c). That would include a LEOFF Disability Board.

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State law for public entities provides that there is a requirement to turn lost and found property over to law enforcement after ten (10) days but within thirty (30) days. RCW 63.21.060 sets forth the procedures to be followed by governmental entities when they acquire lost property. That statute indicates the agency should take the following steps:

1. Attempt to notify the apparent owner of the property.
2. If the owner does not collect the property, then within 30 days but not less than 10 days

As an alternative, the agency can choose to dispose of the property in the same manner that the police or sheriff departments dispose of property (see chapters 63.32 and 63.40 RCW – these statutes appear to be procedurally identical, so either one would be useful for your purposes).

The statutes are pretty lengthy; it would be worth your time to read them in full. Here is the summary version for personal property in the hands of police:

1. Provide written notice to the owner, if known
2. 60 days from notice, if the property is not claimed, the agency can:
   1. Sell the property at a public auction to highest bidder
   2. Retain the property for agency use; except the owner has the right to reclaim the property within 1 year of receipt of notice
   3. Destroy the property if it has no commercial value or the cost of the sale exceeds its value and other factors are met
   4. Donate the property to nonprofit charitable organizations.

Your agency should ensure that its lost and found policy is consistent with these state law provisions.

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We sometimes get asked whether the Open Public Meetings Act requires cities, counties, or special purpose districts to submit their regular meeting schedules to the state code reviser’s office or notify the state of changes to the regular meeting schedule. The answer is no.

RCW 42.30.075 requires state agencies to file their regular meeting schedules with the code reviser’s office by January of each year for publication in the Washington State Register and notify the office of any changes to the schedule at least 20 days before the rescheduled meeting.

However, this statute only applies to state agencies, and there is no similar requirement for local governments.

Local government agencies should still adopt a schedule for their regular meetings and publish notice as required by OPMA. RCW 42.30.070 provides in part, “The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body.”

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There is no dollar threshold that applies when qualifying work requires prevailing wage. Whether prevailing wage is required depends on the work being performed, not the dollar amount.

To make a determination, one should first look at whether the work involves the hands-on work of “laborers, workers or mechanics” and then whether the work is to perform any “construction, reconstruction, maintenance or repair” (see RCW 39.12.030) or demolition, etc. (WAC 296-127-010(7)(a)).If so, one should then determine whether such work is executed at a cost to the state or of any municipality pursuant to RCW 39.04.010(4).

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Yes. Regarding employee review of a personnel file, that RCW 49.12.240 provides:

Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).

Regarding correction of erroneous or disputed information in the file, RCW 49.12.250 states:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the      file(s).

(2) An employee annually may petition that the employer review all information in the employee’s personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer’s determination, the employee may at his or her request have placed in the employee’s personnel file a statement containing the employee’s rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

(3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

Regarding limitations on an employee’s inspection of his/her personnel file, RCW 49.12.260 provides:

RCW 49.12.240 and 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

If the exemptions in RCW 49.12.260 may apply, we recommend you review the file with your legal counsel.

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MRSC has a webpage relating to Required Employment Posters. There are a number of resources on that webpage including a helpful fact sheet entitled, Workplace Posters: Required and Recommended, prepared by the Washington State Department of Labor and Industries (L&I). The fact sheet provides a list of posters that Washington State and federal agencies require or recommend employers post in their places of business. The fact sheet also includes online resources and contact numbers for state agencies that issue posters. MRSC's Required Employment Posters page also has links to federally-required employment posters. Note that the list is not intended to be exhaustive and we recommend you also consult with your agency attorney.

L&I also has a webpage entitled “Answers to questions about required workplace posters” that we recommend you review because it includes additional information about signage requirements including whether you are required to post in languages other than English.

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