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If an employee is called to active duty and will be gone for several months, must the local government employer continue to pay them and provide benefits while they are away?
Reviewed: 09/17

Under RCW 38.40.060, local government employees are entitled to paid military leave for up to 21 work days. Such military leave is in addition to any vacation or sick leave to which the employee would otherwise be entitled. During the period of military leave, the employee receives his or her normal pay.

Regarding benefits, 38 U.S.C. § 4317 provides that employees who leave their job to perform military service are entitled to continue their employer-based health insurance coverage for up to 24 months while on military leave.

In addition, the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) states that a person who leaves a civilian job to enter active duty is entitled to return to his or her civilian job after discharge or release from active duty. However, there are five basic eligibility requirements under federal law:

  • The person must have been released from service under honorable conditions and must furnish proof of that release;
  • The person must have held a civilian job "other than temporary" at the time he or she entered active duty;
  • The employee must have left the civilian job for the purpose of going into active duty, and must have given notice to his or her employer to that effect;
  • The employee must apply in writing within 90 days of separation or release from training or service (lesser periods apply when the period of service is 180 days or less); and
  • The period of service must not exceed five years.

The reemployment rights are available whether the person is in combat, active duty for training, or inactive duty. For a full list of USERRA regulations issued from the U.S. Department of Labor, see 20 C.F.R. § 1002. For additional information, see MRSC’s Military Leave topic page.

Finally, local governments are free to provide additional leave or benefits for employees who have been called for active service in the military than would otherwise be required by state or federal law. So, be sure to consult your local policies as well.

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What is the industry standard for determining gross site area vs. net site area for determining density?
Reviewed: 09/17

Most (but not all) regulations with which we are familiar use a net density calculation that subtracts such factors as on-site natural resources/critical areas and public rights-of-way. Here are some sample code provisions:

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Does a city council in a noncharter code city have the legal authority to impose term limits on city councilmembers and the mayor?
Reviewed: 09/17

The answer appears to be “yes.” AGO 1991 No. 22 addressed the imposition of term limits on local government elected officials and concluded, in part, that noncharter code cities may impose term limits for their elected officials.

In reaching its conclusion, the AG’s Office differentiated between two types of local governments: those with broad home rule authority, consisting of charter cities and counties and noncharter code cities; and those with no home rule authority, consisting of second-class cities, towns, and noncharter counties. The AG’s Office concluded that only those jurisdictions with broad home rule authority could impose term limits and that noncharter code cities could impose term limits by ordinance.

Here are some examples of noncharter code cities that have adopted term limits:

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Does MRSC have a summary of the new PRA legislation?
Reviewed: 09/17

HB 1594 and HB 1595 contained the high-profile PRA legislation this session. MRSC has published three blog posts outlining the key provisions in these two bills:

In addition to MRSC’s resources, AWC has prepared a number of great materials related to these changes to the PRA that you may find useful.

Finally, here are the final house bill reports for both HB 1594 and HB 1595, which contain a concise summary of the changes made to the PRA:

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What is the Multifamily Tax Exemption? Who applies for it, the developer or the city?
Reviewed: 08/17

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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Should the chair of a planning commission vote on motions?
 

Reviewed: 08/17

The general rule is that a person who is chairing a meeting retains the basic right to vote on issues at the meeting. So, the chair of a planning commission does not lose his or her rights as a member of the commission when chairing a meeting and this includes the right to make, second, and vote on motions.

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Can a jurisdiction waive building permit fees for low-income housing?
Reviewed: 08/17

Yes, there is authority under state law for a city or town to allow building permit fee waivers for low income housing. RCW 35.21.685 provides:

RCW 35.21.685
Low-income housing—Loans and grants.

A city or town may assist in the development or preservation of publicly or privately owned housing for persons of low income by providing loans or grants of general municipal funds to the owners or developers of the housing. The loans or grants shall be authorized by the legislative authority of the city or town. They may be made to finance all or a portion of the cost of construction, reconstruction, acquisition, or rehabilitation of housing that will be occupied by a person or family of low income. As used in this section, "low income" means income that does not exceed eighty percent of the median income for the standard metropolitan statistical area in which the city or town is located. Housing constructed with loans or grants made under this section shall not be considered public works or improvements subject to competitive bidding or a purchase of services subject to the prohibition against advance payment for services: PROVIDED, That whenever feasible the borrower or grantee shall make every reasonable and practicable effort to utilize a competitive public bidding process.

The language of this statute would include waivers of building permit and other types of development fees so long as the project meets the definition of “low income.” If a city or town does waive such fees, it should be done pursuant to a formally adopted policy of the council, preferably in an ordinance or resolution.

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Can a noncharter code city put an advisory ballot measure on the ballot regarding whether the city should allow marijuana businesses within the city? If yes, does MRSC have any sample ballot measures related to the same subject?
 

Reviewed: 08/17

Noncharter code cities can hold an advisory vote on whether or not to allow marijuana facilities within city limits. RCW 35.22.280(1) authorizes first-class cities to provide for “questions to be voted upon,” which we’ve interpreted to include advisory votes. Noncharter code cities have, pursuant to RCW 35A.11.020, “any authority ever given to any class of municipality . . . .” So, the city council of a noncharter code city can put an advisory vote on the ballot.

Regarding examples from other jurisdictions, we’re aware of three jurisdictions that have held such an advisory vote:

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Can a mayor legally perform a marriage?
Reviewed: 08/17

A mayor may not perform a marriage (unless, of course, he or she is also a regularly licensed or ordained minister, priest, imam, rabbi, or similar official of any religious organization). RCW 26.04.050 states as follows:

The following named officers and persons, active or retired, are hereby authorized to solemnize marriages, to wit: Justices of the supreme court, judges of the court of appeals, judges of the superior courts, supreme court commissioners, court of appeals commissioners, superior court commissioners, any regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization, and judges of courts of limited jurisdiction as defined in RCW 3.02.010.

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Are the number of commissioners in noncharter counties with less than 300,000 population limited to three?
Reviewed: 07/17

Yes, RCW 36.32.010 limits noncharter counties with a population less than 300,000 to three commissioners. Once the county’s population reaches 300,000, it can, pursuant to RCW 36.32.055, have five commissioners.

These limits, however, do not apply to counties that adopt a charter. Article 11, section 4 of the state constitution allows a county that chooses to adopt a charter to provide for such county officers as may be deemed necessary to carry out and perform all county functions as provided by charter or by general law. The charter could provide for more commissioners than are allowed for noncharter counties. For example, Whatcom County, which has a population less than 300,000, is a charter county and its charter provides for a seven member legislative body, referred to as the “county council.”

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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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Within Washington State, does the authority to transfer surplus property to other government agencies include Indian tribes?
Reviewed: 05/17

Yes, tribes are considered government agencies. RCW 39.33.010(1) governs transfers of both real and personal property between government agencies. That provision specifically mentions tribes. It states:

The state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political subdivision thereof, or the federal government, or a federally recognized Indian tribe, on such terms and conditions as may be mutually agreed upon by the proper authorities of the state and/or the subdivisions concerned. In addition, the state, or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease, or otherwise dispose of personal property, except weapons, to a foreign entity.

MRSC has a topic page on the Sale of Surplus City or Town Property that includes a section on intergovernmental transfers of property.

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Are real estate appraisals and market analyses done for purposes of leasing property exempt from production under the Public Records Act (PRA)?
Reviewed: 05/17

Yes, RCW 42.56.260 generally exempts a market analysis or appraisal of property for rent or lease, in addition to property for purchase. RCW 42.56.260 states:

(1) Subject to the time limitations in subsection (2) of this section, the following documents relating to an agency's real estate transactions are exempt from public inspection and copying under this chapter:

(a) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property;

(b) Documents prepared for the purpose of considering the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price, including records prepared for executive session pursuant to RCW 42.30.110(1)(b); and

(c) Documents prepared for the purpose of considering the minimum price of real estate that will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price, including records prepared for executive session pursuant to RCW 42.30.110(1)(c).

(2) The exemptions in this section do not apply when disclosure is mandated by another statute or after the project or prospective project is abandoned or all properties that are part of the project have been purchased, sold, or leased. No appraisal may be withheld for more than three years.

While for some reason subsection (1)(a) does not list leases, it mentions “acquisitions,” which based on the rest of RCW 42.56.260 should be interpreted to include leases. Specifically, subsection (1)(b) more generally exempts documents prepared for the “purpose of considering . . . the acquisition of real estate by lease or purchase . . . .” So again, presumably the reference to acquisition in subsection (1)(a) includes acquisition by lease. Moreover, subsection (2) mentions properties that have been “purchased, sold, or leased.”

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Are records in possession of a transit agency’s consultant subject to the PRA?
Reviewed: 05/17

If a transit agency contracts with an outside firm to provide agency services, then that firm’s records related to agency business may be subject to the PRA. The Washington Supreme Court held in Cedar Grove v. City of Marysville that records of a private third party contractor that provided professional services to a public agency were subject to the PRA since the firm was acting as the functional equivalent of a public employee. The court did note the following:

We are not articulating a new standard that makes every record a government contractor creates during its engagement with an agency a public record subject to the PRA. Nor do we create a new duty on the part of a public agency to search the records of all its third-party contractors each time it receives a PRA request.

So, whether the records of a firm that contracts with an agency are public records must be evaluated on a case-by-case basis by applying the test to determine whether the firm is acting as the functional equivalent of an agency employee. For a more in-depth explanation, see MRSC’s blog posts on this issue: Court Clarifies How the PRA Can Apply to Contractor Records and When Must a Private Entity Comply with the PRA.

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Would an advisory group formed by a transit agency be subject to the OPMA?
Reviewed: 05/17

An advisory group may be subject to the Open Public Meetings Act (OPMA) if it “acts on behalf of” the agency, conducts hearings, or takes testimony or public comment. In Citizens Alliance v. San Juan County, the Washington Supreme Court found that the phrase "acts on behalf of" refers to situations when a committee “exercises actual or de facto decision-making authority for a governing body.” As such, the OPMA does not apply to “advisory committees and other entities that do nothing more than conduct internal discussions and provide advice or information to the governing body.”

Therefore, the applicability of the OPMA will depend on whether the advisory group “exercises actual or de facto decision-making authority for the governing body.” If it will be strictly advisory, then the OPMA will probably not apply. The Citizens Alliance case does a good job of defining the point at which the OPMA becomes applicable to advisory groups and subagencies. For more information, see MRSC’s blog post discussing Citizens Alliance.

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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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