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Ask MRSC Archives

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State in recent months and years. Click on any question to see the answer; use the drop-down menu to browse inquiries by topic.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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GO

What does it mean to "call the question" under parliamentary procedures?
Reviewed: 08/20

Here is an excerpt on calling the question from our Parliamentary Procedures webpage, which summarizes Robert’s Rules of Order:

  • Previous question or close debate. Used to bring the body to an immediate vote. It closes debate and stops further amendment. Contrary to some misconceptions, the majority decides when enough discussion has occurred, not the moderator. The formal motion is to "call for the question" or "call for the previous question," or simply, "I move to close debate." The motion requires a second, is not debatable and requires a two-thirds majority.

In addition, Ann Macfarlane on her Jurassic Parliament webpage has a nice summary of how to call the question (as well as how not to). And finally, Robert’s Rules has an FAQ on “calling the question” (a.k.a. “previous question”)—see FAQ #11.

(Link to this question)

Can a city file a lien on the stormwater utility portion of a utility bill in connection with filing a sewer lien?
Reviewed: 07/20

Yes, stormwater utility service falls within the scope of the definition of “system of sewerage” in RCW 35.67.010, which includes the following:

  1. Sanitary sewage collection, treatment, and/or disposal facilities and services, on-site or off-site sanitary sewerage facilities, inspection services and maintenance services for public or private on-site systems, or any other means of sewage treatment and disposal approved by the city;
  2. Combined sanitary sewage disposal and storm or surface water sewers;
  3. Storm or surface water sewers;
  4. Outfalls for storm drainage or sanitary sewage and works, plants, and facilities for storm drainage or sanitary sewage treatment and disposal, and rights and interests in property relating to the system;
  5. Combined water and sewerage systems;
  6. Point and nonpoint water pollution monitoring programs that are directly related to the sewerage facilities and programs operated by a city or town;
  7. Public restroom and sanitary facilities; and
  8. Any combination of or part of any or all of such facilities.

Therefore, MRSC takes the position that surface water utility charges may be included in a sewer lien, which would follow the processes outlined in RCW 35.67.200 through RCW 35.67.290.

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What are the requirements for the retention of payroll records?
Reviewed: 07/20

The Washington State Archivist and the Local Records Committee are authorized and directed by statute (RCW 40.14.070) to issue retention schedules. The local government common records retention schedule (CORE) is the relevant guidance for local government records.

Payroll records are tricky because different retention requirements apply to different types of payroll information. In particular, information relating to eligibility for retirement benefits can have a very long retention period. The State Department of Retirement Services may need such records many years later to determine a former employee’s eligibility for retirement benefits.

Fortunately, in 2017, the Washington State Archivist issued a training video that addresses some of the retention issues regarding payroll records. The video explains what types of payroll information are necessary for verifying retirement eligibility.

The CORE items that relate to payroll include:

Some agencies may choose to retain all of their payroll records for a long period instead of just the records needed to verify eligibility for retirement benefits.

(Link to this question)

Is it a conflict of interest for a councilmember to be appointed to the planning commission?
Reviewed: 07/20

We do not think a councilmember should also serve on the planning commission because of the common law doctrine of Incompatible Offices. The doctrine provides that the same person cannot hold two public offices at the same time if the offices are incompatible. Although there is not a court opinion or Attorney General’s guidance evaluating the compatibility of these two particular offices, MRSC takes the position that these public offices are incompatible. This is in part because a planning commission makes recommendations to a city council, and a person serving on both bodies would be in a position to approve his or her own recommendations. Here is an excerpt from our Code City Handbook (p. 40) about this issue:

  • Elective officers of the city should not assume additional municipal duties that are incompatible with those of their elective office. One practical test of incompatibility is whether one position is subordinate to the other in some of its important and principal duties. Under common law, one person cannot be both master and servant or principal and subordinate.

In AGO 2016 No. 7, the Attorney General’s office looked at the offices of planning commissioner and school board member, and concluded the offices were likely incompatible, although the AG noted this would be “an extremely close call” and “a court could reasonably reach the opposite conclusion.” The opinion provides, in part:

  • We also considered that planning commissioners act in an advisory role, with final decisions regarding land use matters entrusted to the city council. RCW 35.63.100. The advisory nature of the body does not change our analysis because, as noted, the commission “may act as the research and fact-finding agency of the municipality.” RCW 35.63.060. Its role includes making inquiries, investigations, and surveys concerning land use resources in the county, assembling and analyzing data, and working with other agencies on land use planning. RCW 35.63.060. In some jurisdictions they also perform a quasi-judicial function. RCW 35.63.130.

In conclusion, we do not think a councilmember may also serve on your planning commission.

(Link to this question)

We appointed a councilmember for a vacant seat in January 2018. It was for a 4-year position, and the position is now up for election for the last two years of the term (expiring December 2021). The incumbent did not run, so does the councilmember-elect fill the position after the election is certified?
Reviewed: 07/20

Vacancies are addressed in RCW 42.12.070. Subsection (6) addresses the timing of when the person elected in November 2019 takes office:

  • As provided in chapter 29A.24 RCW, each person who is appointed shall serve until a qualified person is elected at the next election at which a member of the governing body normally would be elected. The person elected shall take office immediately and serve the remainder of the unexpired term.

So yes, when an appointed position is up for election, the winner of the election serves two terms—a short term (from election certification to the end of the year) and then the unexpired two-year term (starting on January 1). Here is the language from RCW 29A.24.020:

  • If at the same election there are short terms or full terms and unexpired terms of office to be filled, the filing officer shall distinguish them and designate the short term, the full term, and the unexpired term, as such, or by use of the words "short term," "unexpired two year term," or "four year term," as the case may be.
  • When both a short term and a full term for the same position are scheduled to be voted upon, or when a short term is created after the close of the filing period, a single declaration of candidacy accompanied by a single filing fee shall be construed as a filing for both the short term and the full term and the name of such candidate shall appear upon the ballot for the position sought with the designation "short term and full term." The candidate elected to both such terms shall be sworn into and assume office for the short term as soon as the election returns have been certified and shall again be sworn into office for the full term. [emphasis added]

As this language indicates, the election winner should be sworn in twice, once for the short term and once for the unexpired two-year term.

(Link to this question)

Is there anything preventing a city from offering reward money for information leading to the arrest of a suspect in a crime like what the FBI does?
Reviewed: 06/20

No. RCW 10.85.030 specifically authorizes cities to offer rewards for information. MRSC has also previously advised that there is no gift of public funds because the expenditure is for a proper public purpose, and the city is getting some consideration (information) in return.

A custom search of Washington city codes turned up a number of sample code provisions establishing reward programs.

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Can cities temporarily close streets to motor vehicles and allow the streets to be used by pedestrians, non-motor vehicles and for outdoor seating for restaurants that would meet social distancing requirements? If so, what rules would apply to consumption of alcohol in such a seating area?
Reviewed: 06/20

There are a couple of components to your questions. Regarding authority to close streets temporarily to vehicle traffic, the city has broad authority to do so, especially during an emergency. Even in non-emergencies, code cities have broad authority to manage and regulate right of way—see, for example RCW 35A.11.020. Once your county enters into Phase II of the Safe Start COVID-19 recovery plan, we think the city could temporarily restrict certain rights-of-way so they are available only to pedestrians, non-motor vehicles and expanded outdoor restaurants pursuant to an order setting forth the public health and economic basis for doing so. Such an order should contain interim standards that address the circumstances and conditions that will govern the temporary use of the right-of-way.

Ordinarily, use of right-of-way requires the restaurant operator to pay a fee for the use of public property for restaurant purposes. However, under these emergency circumstances, the Washington Attorney General has released guidance that may provide the basis for local governments to incur expenditures (or forego revenue) in light of the COVID-19 emergency.

The Phase II guidance from the governor to restaurants and taverns authorizes outdoor seating at the same 50% capacity and under the same conditions and restrictions as indoor seating.

Consumption of alcohol in outdoor areas not previously authorized by the Washington Liquor and Cannabis Board (LCB) should be avoided, at least until there is guidance from the Board. The LCB has a COVID-19 webpage that summarizes steps taken by them in response to COVID-19. The LCB has not addressed this specific issue, although it has taken a number of actions, including allowing minors to sit in areas normally limited to individuals who are over 21 and allowing sales of beer, wine, and liquor for consumption off premises when purchased with take-out food orders. We are not aware of any proposals by the LCB to allow alcohol consumption in “new” outdoor seating areas. We recommend reaching out to the LCB directly for guidance.

At this time, we are not aware of any Washington cities or counties that have adopted orders to this effect although there is discussion, both in Washington and other parts of the country. Here are some recent articles on the topic:

(Link to this question)

Must a city continue to compile records responsive to a request through the date of fulfillment of the request, or does the date of the submission of the records request constitute a definitive cut-off for the date range of the records that must be produced?
Reviewed: 06/20

The date the records request is received is controlling, not the date of fulfillment and/or closure of a records request. There is no requirement in the Public Records Act (PRA) to provide ongoing supplements to records requests that have already been received and are being completed. In general, the public agency complies with a public records request with responsive records that existed as of the date of the request.

The State Supreme Court in Gipson v. Snohomish County held that an agency “determines any applicable exemptions at the time the request is received,” and doesn’t have a duty to revisit records withheld or redacted in previous installments to determine whether an exemption no longer applies. This 2019 case confirmed that there is not an ongoing duty to review future records created after a public records request is received. A requester has the obligation to submit another request after more records might have been created. It does not matter that the records request under review has not yet been closed.

Here is a link to a recent MRSC blog article New Developments in PRA Land (Dec 09, 2019) which includes an overview of Gipson v. Snohomish County.

Additional resources include the Washington State Attorney General’s Office’s Open Government Resource Manual and Local Government Consultation Program.

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How should we conduct an executive session for the purpose of evaluating an employee's performance of work under the Governor’s Proclamation 20-28 and its extensions?
Reviewed: 06/20

Under the Governor’s Proclamation 20-28 and its extensions (which go through May 31), all in-person meetings of a governing body pursuant to the Open Public Meetings Act (OPMA) are prohibited. This includes members of the governing body meeting in executive session. With that said, these executive sessions may still occur, but remotely. See copies of the governor’s proclamations and guidance from the AG’s office at our COVID-19 Operations and Personnel Issues page under the section called “Remote Council/Commission Meetings.”

We also have an FAQ on our COVID-19 Frequently Asked Questions page regarding holding executive sessions during remote meetings:

How do we adjourn into an executive session during a “remote” meeting? Pretty much the same way you normally would. The presiding officer announces that they are going to adjourn into executive session, states the purpose, and the time they will return. Use the Executive Session Script, as modified for the technology you’re using. What comes next depends on the technology you’re using. Depending on your conferencing software, the governing body can switch to a different call/session, while leaving the public meeting call/session open. We recommend a staff member stay on the original call/session to remind other attendees that the governing body will reconvene. The presiding officer should ask each person attending the executive session to confirm that no one who was not invited to the executive session is either physically present or on the line.

If the executive session is not going to be held during a regularly-scheduled meeting, you will need to call a special meeting pursuant to RCW 42.30.080, and then could adjourn into an executive session during the special meeting. The special meeting can be called solely for the purpose of then convening an executive session. See RCW 42.30.110.

(Link to this question)

Do you have any examples of COVID-19 signage for things like playgrounds, parks, golf courses, etc.?
Reviewed: 06/20

Please see the following examples:

(Link to this question)

We are hosting a parliamentary procedure training for our member cities’ newly elected officials (and current elected officials). If a city sends a quorum to attend the training, do they need to publish it as a special meeting?
Reviewed: 05/20

Not necessarily.

So long as the quorum of councilmembers does not conduct city business together while at the training, they may attend without violating the Open Public Meetings Act (OPMA). The OPMA provides, in relevant part, that it is not an OPMA violation “for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.” RCW 42.30.070. The slightly tricky part is that the definition of “action” is so broad and includes “discussions.” See RCW 42.30.020(3).

To avoid an OPMA violation at the training, a quorum of the councilmembers should not discuss city business together. It is fine for the individual councilmembers to discuss city affairs with other attendees, but not with a quorum of their fellow city councilmembers. We also advise against a councilmember asking a city-business related question during any Q&A portion of the training when the other councilmembers are in attendance (because the other city councilmembers are now hearing about city business, which may qualify as a “discussion”).

A city can choose to mention the travel arrangements in the agenda or at a meeting prior to the training – just so the public knows that the councilmembers are travelling together and that they know of the restriction on discussing city business among themselves while traveling and at the training. There is no statutory requirement that the public be notified of the travel arrangements, but we think it is a good idea.

An attorney general opinion, AGO 2006 No. 6, provides similar advice.

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When are contractors required to submit Certified Payroll Reports?
Reviewed: 05/20

Effective January 1, 2020, contractors must file weekly certified payroll reports for all prevailing wage jobs (regardless of project amount), and submit them to the Washington State Department of Labor & Industries (L&I) directly. These reports are submitted online through L&I’s Prevailing Wage Intent and Affidavit (PWIA) system. The local government agency has no responsibility to review and check the reports. For more information, the contractor should contact L&I at pw1@Lni.wa.gov.

Projects that began prior to January 1, 2020, and that are still in progress will require certified payroll filing for work performed from January 1, 2020 and forward. The reporting is not retroactive for these projects. See RCW 39.12.120.

Contractors must always provide weekly certified payroll reports for federal projects.

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Are local government agencies required to have a list of PRA exemptions on their website pertaining to public records?
Reviewed: 05/20

RCW 42.56.070(2) requires you to “publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.”

There is no requirement that you post that list on your website. You can just adopt the list as part of your public records policy. Many jurisdictions adopt exhibit C to MRSC’s Public Records Act publication – we update it at least once a year.

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Can the mayor enter into a contract with a company for use/lease of a software program? If the contract covers more than one budget period, must council be involved?
Reviewed: 05/20

The authority to contract for the town is given to the town council. See RCW 35.27.370(2). The authority applies to any contract, whether it is for software, machinery, supplies, professional services and public works. The mayor only has authority to contract on the town’s behalf if the council has delegated that authority. Sometimes councils will, for example, delegate authority for the mayor to contract up to a stated dollar amount, such as up to $10,000, if there is money available and the purchase is consistent with the budget. Unless there has been a delegation, the mayor has no authority to contract.

It does not matter how long the contract is for. If a contract is involved, the council must approve it, that is, unless the council has delegated contracting authority to the mayor. We recommend looking at your local code or ordinances to determine if contracting authority has been delegated, and under what circumstances.

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Do general staff meeting agendas and notes need to be saved for public disclosure? No board members are involved in these meetings, only staff and management.
Reviewed: 04/20

The general staff meeting agendas must be saved for public disclosure. Records documenting meetings of agency staff must be retained for two years after the end of the calendar year in which they are created. If the agendas are no longer needed for agency business at the end of this period, they may then be destroyed. See p. 42, Local Government Common Records Retention Schedule (CORE) Version 4.0 (May 2017), Sec. 1.10, GS50-01-43 Rev. 2.

These agendas are “public records” under the Public Records Act (PRA), chapter 42.56 RCW, as they contain information that relates to the conduct of government, or the performance of any governmental or proprietary function. See RCW 42.56.010(3). As public records, they must be disclosed upon request, unless they fall under an exemption in the PRA. Exemptions are narrowly construed by the courts. See our Public Records Act topic page for additional information. Note that if an agency (or agency employee) keeps a record past the required time set forth in the retention schedule, and the agency receives a request for that record, the agency must disclose it. See RCW 42.56.100

The notes from these meetings may be a different story. Without having more information on the notes, it’s not possible for me to tell you with certainty whether an exemption applies, but it sounds like what you’re describing may be informal personal notes created by staff members at the meetings. If they are informal personal notes, they are not considered public records and the PRA does not apply to them. They may also be destroyed at an employee’s discretion.

In order to qualify as informal personal notes, they must have been created solely for the government employee’s convenience or to refresh the employee’s memory; maintained in a way indicating a private purpose; not circulated or intended for distribution within agency channels; not under agency control; and can be discarded at the writer's sole discretion. See Yacobellis v. Bellingham. MRSC has a helpful blog post concerning personal notes and the PRA.

However, if these notes are more akin to the official minutes of the meeting, then they are considered public records to which the PRA applies and must be treated identically to the meeting agendas as discussed above.

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I have a large Public Records Act (PRA) request for every internal investigation for our department for the last five years from a local attorney. Are there exemptions for investigations that are exonerated or not sustained? Is there any part of an internal investigation that is exempt or redactable? Or do they need to be given in their entirety without redaction?
Reviewed: 04/20

You will want to work closely with your city attorney to review this particular PRA request and the investigative documents requested. In general, the exemption status first depends on whether a criminal investigation is open or closed. Internal investigation files are not categorically exempt but certain records within these types of files may be exempt.

As explained on MRSC’s topic page Disclosure of Law Enforcement Investigative Records, the entire investigative file for an open criminal investigation is categorically exempt from disclosure under RCW 42.56.240(1), meaning that the entire file may be withheld. RCW 42.56.240(1) exempts “specific investigative records ... the nondisclosure of which is essential to effective law enforcement ...” Nondisclosure of open criminal investigative records is always presumed to be essential to effective law enforcement. See Sargent v. Seattle Police Department. While the court in the Sargent case did hold that open criminal investigations are categorically exempt, it also held that the categorical exemption does not automatically apply to open internal investigations (at pages 13-14 of the slip opinion).

For closed investigations, review whether RCW 42.56.240(1) applies. This statute exempts “specific investigative records … the nondisclosure of which is essential ... for the protection of any person's right to privacy.” RCW 42.56.050 states that a person’s right to privacy is violated only if disclosure of the information:

  1. Would be highly offensive to a reasonable person, and
  2. Is not of legitimate concern to the public.

Note also that internal investigations of higher-ranking officers are treated differently. There, even if the allegations are unsustained and highly offensive, the higher-ranking officer’s name must be provided since the legitimate public interest prevails – see City of Fife v. Hicks.

When determining what is highly offensive to a reasonable person, consider whether the person’s expectation of privacy is reasonable or whether there has been a clear, affirmative waiver of the right to privacy. See Bainbridge Island Police Guild v. City of Puyallup.

RCW 42.56.240(1) also exempts “specific investigative records … the nondisclosure of which is essential to effective law enforcement....” According to the Washington State Supreme Court, “This exemption is not limited in application to only when enforcement would cease to function were the documents in question disclosed.” See Koenig v. Thurston County (emphasis added). Rather, the legislature’s inclusion of the word “effective” in the exemption means that the focus is on whether disclosure would compromise the effectiveness of law enforcement.

If you have unsustained investigations, and if they appear likely to require disclosure, then there is also an option to provide third party notice to the officer involved who may then choose to seek a court order preventing disclosure.

For a summary of PRA laws relating to internal investigation files (and other police records), here are links to MRSC’s topic pages Disclosure of Law Enforcement Investigative Records, Common Prohibitions and Exemptions for Law Enforcement Records and Law Enforcement Records Management and Disclosure.

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How can a part-time mayor position be made full-time?
Reviewed: 04/20

There is not a specific process that must be used. Although there are two statutes that deal with the elected position of mayor---RCW 35A.12.010 and 35A.12.100---neither specify whether the position is a part-time or a full-time position. That issue may be more of a function of the salary the city provides for the office than anything else. Most cities in the state operate under the mayor-council plan of government and, by far, most of those have a part-time rather than a full-time mayor. While the mayor, if he or she is paid at all, will typically be paid more than a councilmember, most salaries are quite small and likely do not provide a “living wage.” Nevertheless, if a person holding the position wanted to act in a full-time capacity, he or she could do so, regardless of the salary for the position.

Some cities, however, have decided that they want to have a full-time mayor and have set the salary for the mayor at a level high enough to allow the office holder to work full-time in the position. When making the mayor’s salary high enough to permit full-time work by the office holder, the council will likely adopt a provision requiring the office holder to work full time: here is sample language from Lynnwood:

2.10.020 Full-time position. The position of mayor shall hereafter be a full-time position such that the mayor shall not accept or hold employment which will prevent the mayor from being available at the city offices during the hours that the city offices are open to the public or which would prevent the mayor from regularly attending council meetings and such additional evening meetings as may from time-to-time be required.

Making the office full-time does not require a vote by the public. The position could be made full-time at any time, although there might be reason to change the nature of the position when it is next up for election. We mention this because there may be a larger pool of interested persons in the office, if the position is full-time and more highly paid. Since the mayor does not vote on the salary for the mayor’s office, the salary for the position could be increased at any time.

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We are considering contracting for general custodial services for our city facilities. Can you please advise if this is a) considered a "public work" and b) subject to prevailing wages?
Reviewed: 04/20

Custodial services are generally considered purchased services subject to prevailing wages. As long as the services provided involve normal cleaning work, this would be the situation. If they are doing any handyman work that involves repairs, upgrades and similar types of improvements, then the work would likely fall in the public works category.

Please note that custodial contracts require annual updates to prevailing wages. See page 55 of the Department of Labor and Industries Prevailing Wage Law booklet.

(Link to this question)

Is there a recommendation on whether to keep public disclosure request records in paper format or in electronic format?
Reviewed: 03/20

There are no legal requirements in this regard. The “path of least resistance” would be to retain such records in their existing format for the applicable retention period. However, many agencies are trying to minimize their paper records and store records electronically. Washington State Archives has a webpage with publications and advice sheets for local governments—for example:

  1. Factors Affecting the Cost of Digitizing Paper Records
  2. Keep Electronic Records in Electronic Format
  3. What are the Leading Practices for Records Management and Retention?

Although maintaining records electronically is not identified as a “leading practice” in the third item listed above, storing records electronically makes it easier to meet several leading practices, such as “Records are Inventoried,” “Records are Organized” and “Disaster Preparedness.” Ultimately, the question of whether to convert paper records to electronic format is a policy and budgetary decision for your agency.

If your agency does consider converting paper records to an electric format, see the State Archive’s Scanning and Tossing paper for guidelines.

Note that an agency does not need to retain a separate set of the records provided in response to a Public Records Act request, however it is recommended to do so. The AGO model rules say the following regarding retention of records provided:

WAC 44-14-04006 Closing request and documenting compliance. (3) Retain copy of records provided. In some cases, particularly for commonly requested records, it may be wise for the agency to keep a separate copy of the records it copied and provided in response to a request. A growing number of requests are for a copy of the records provided to another requestor, which can easily be fulfilled if the agency retains a copy of the records provided to the first requestor. The copy of the records provided should be retained for the period of time consistent with the agency's retention schedules for records related to disclosure of documents.

See the Secretary of State’s Archives Division Website for the Local Government Common Records Retention schedule (CORE) to determine applicable retention periods.

(Link to this question)

In a mayor-council code city with a 7-member council, does the mayor’s participation with three councilmembers constitute a quorum?
Reviewed: 03/20

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…

(Link to this question)

Are agency-related Facebook posts on a public employee's or official's personal Facebook account public records?
Reviewed: 03/20

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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Can a city provide law enforcement services to another city that is over twenty miles away and in another county?
Reviewed: 03/20

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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Do Washington state lunch break and rest break laws apply to exempt employees?
Reviewed: 03/20

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.

(Link to this question)

What is the Multifamily Tax Exemption? Who applies for it, the developer or the city?
Reviewed: 03/20

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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Is there a comprehensive list of what type of uses constitute an "essential public facility?"
Reviewed: 03/20

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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