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How does the council fill a vacancy in a council position if there is a tie vote?
Reviewed: 04/18

While the statutes are not 100 percent 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.

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Does a board of county commissioners have authority to eliminate positions under another elected official in the county?
Reviewed: 04/18

A board of county commissioners (BOCC) has the authority to establish positions (RCW 36.16.070) and, as such, also has the authority to abolish positions. In Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303, 307 (1987), the court, in relevant part, held:

It is undisputed that the Board of County Commissioners have the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments. See RCW 36.32.120(6); RCW 36.16.070; see also Miller v. Pacific Cy., 9 Wn. App. 177, 179, 509 P.2d 377 (1973). There is also no dispute the County was facing a serious budget shortfall. The Board’s acts in balancing the budget were clearly discretionary. Therefore, mandamus would be appropriate only if the Board’s actions were properly found to be arbitrary and capricious.

In general, it is within the discretion of a BOCC to allocate, as it sees fit, the financial resources of the county as provided in the budget it approves. This principle is well-illustrated in State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936):

In the light of the known financial difficulty of the counties and considering the circumstances of the times, the court cannot say that an order reducing the force of deputies in the sheriff’s office from six to four was so capricious and arbitrary as to be void. It may be that the action of the majority of the board of county commissioners was improvident and ill-considered, but, if so, the remedy lies with the electors rather than in the courts. If it be assumed that the business of the sheriff’s office will be hampered by the reduction in force, the harm will not be nearly as great as would be the consequences of the interference by the courts with the executive duties of the board of county commissioners, in whom is reposed the financial management of the county’s affairs.

As such, the courts will interfere with this exercise of discretion only upon the theory that the action is so capricious and arbitrary as to evidence a total failure to exercise discretion and is, therefore, not a valid act. Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991). See also, Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973) (“When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.”)

Of course, the other elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out, but there will most always be disagreement as to how much money they actually need in their budgets to do so. The statutes vest the BOCC with the authority to make that determination in the county budget. And, absent arbitrary and capricious action by the board in setting the budget, its budgetary decision-making will be upheld by the courts.

Note, however, that once a position has been funded, the authority to hire (or terminate) a particular individual rests with the elected official (not the BOCC). See Osborn v. Grant County, 130 Wn. 2d 615, 621 (1996), quoting Thomas v. Whatcom County, 82 Wash. 113 (1914). Thomas held that, once the board has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies . . . ."

Of particular interest to you may be a recent Attorney General’s Opinion that analyzes the BOCC’s authority relative to the Sheriff’s Office under RCW 36.16.070 and chapter 41.14 RCW. See AGO 2017 No. 3. The opinion addresses several questions, but upholds the principle that the County Commissioners have the authority to ultimately create positions authorized by chapter 41.14 RCW.

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 04/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from RCW 35A.12.120, which provides in part: "The council shall determine its own rules and order of business, and may establish rules for the conduct of council meetings and the maintenance of order."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city’s rules of procedure will address who can add items to the agenda –check your city’s rules to see if it’s addressed there. Our Council Meeting Agenda web page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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If a code city council wanted to re-open their city budget to consider some changes/amendments after the budget is passed for 2018, would that take a majority vote (4) or a super majority (5) to make that happen? Is it governed by Roberts Rules of Order if we don't have a specific ordinance/budget policy to guide this?
Reviewed: 03/18

Chapter 35A.33 RCW is the guiding chapter for budgeting in code cities. RCW 35A.33.120 speaks to amendments to the final budget that would be adopted by the council and reads in part:

The city council, upon a finding that it is to the best interests of the code city to decrease, revoke or recall all or any portion of the total appropriations provided for any one fund, may, by ordinance, approved by the vote of one more than the majority of all members thereof, stating the facts and findings for doing so, decrease, revoke or recall all or any portion of an unexpended fund balance, and by said ordinance, or a subsequent ordinance adopted by a like majority, the moneys thus released may be reappropriated for another purpose or purposes, without limitation to department, division or fund, unless the use of such moneys is otherwise restricted by law, charter, or ordinance.

This statutory reference provides the council with the ability to decrease, revoke or recall all or any portion of the budget for any one fund by ordinance. The statute requires a super majority vote which means that it must be approved by 1 more than a majority of all members of the council. Your city has a 7 member council and therefore would need a vote of 5 members.

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What cities offer citizen civics academies to encourage citizen participation?
Reviewed: 03/18

Several cities offer citizen academies that focus on a variety of general government-related topics. Here are some examples:

In addition, here are some additional resources relating to citizen participation and civics academies:

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 03/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from RCW 35A.12.120, which provides in part: "The council shall determine its own rules and order of business, and may establish rules for the conduct of council meetings and the maintenance of order."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city's rules of procedures will address who can add items to the agenda-check your city's rules to see if it's addressed there. Our Council Meeting Agenda page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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Is a meal provided for in the price of a conference/meeting registration paid for by the County considered a taxable fringe benefit to the employee attending?
Reviewed: 03/18

If the cost of the meal is included within the conference/meeting registration then the charge associated with the meal is not considered a taxable fringe benefit. Here is a link to the IRS - Fringe Benefit Guide and more specifically the topic of meal expenses associated with Trade or Professional Association Meetings can be found on page 47 and 48. Here is an excerpt from the publication:

Reimbursements for meal expenses directly related to and necessary for attending business meetings or conventions of certain exempt organizations are excludable from wages if the expenses of your attendance are related to your trade or business. These organizations include chambers of commerce, business leagues and trade or professional associations. Reg. §1.274-2(d)(3)

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Is it legal for a jurisdiction to charge a utility tax on its own public utility (e.g., stormwater)? Is it legal and/or appropriate to charge the public utility for the cost of administering the utility in addition to charging a utility tax?
Reviewed: 02/18

We cover this issue on our Utility Tax webpage and in our Revenue Guide on pages 24-25.

Yes, it is legal for a jurisdiction to charge a utility tax on its own public utility. As stated in our Revenue Guide:

Utility taxes may be levied on the gross operating revenues earned by private utilities from operations within the boundaries of a city and by a city’s own municipal utilities. Utilities on which taxes may be levied include electric, water, sewer, stormwater, gas, telephone, cable TV, and steam.

Yes, it is legal to charge the utility the cost of administering the utility in addition to the utility tax. We cover this on our Overhead Cost Allocation webpage.

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Must a public agency respond to an oral request for public records?
Reviewed: 02/18

We believe that a public agency must honor an oral request for a record. The agency could certainly ask that the request be made in writing on an agency-approved form. But, it is our opinion that a public agency cannot require a person to do so.

In the case O'Neill v. City of Shoreline, 145 Wn. App. 913 (2008), the court analyzed several requests for records, including two that were oral requests, and did not make a distinction as to the validity of the oral requests. For example, the court did not indicate that the requestor had to reduce the oral requests to writing to be valid. The court instead looked to whether the city responded in a timely manner to the oral (and the other written) requests.

We recommend that verbal requests be processed in the same manner as any other type of request for public records. The PRA Model Rules state that an agency “should have a public records request form,” and provide several reasons why such requests should be memorialized in writing to protect both the agency and the requestor. See, e.g., WAC 44-14-03006 regarding form of requests. Although the PRA Model Rules are not binding, some courts look to them for guidance. As a practical matter, we think it’s a good idea for an agency to adopt a general policy that PRA requests be made on a standard agency form, and that the agency’s form could briefly explain the advantages to the requestor for having such a policy. However, requiring a requestor, without exception, to complete an agency form for all PRA requests would likely be subject to challenge for the above stated reasons and because the agency is “to provide the fullest assistance to inquirers” under RCW 42.56.100.

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Can a quorum of the governing body take "action" even if the entirety of the quorum is teleconferencing?
Reviewed: 02/18

Yes, a quorum of the governing body may take "action" even if the entirety of the quorum is teleconferencing, provided that:

  • Proper notice is given of the meeting;
  • The speaker phone or video system is provided at the meeting place designated in the notice and at the designated meeting time; and
  • The speaker phone or video system allows attending members of the public to hear all discussion, provide testimony (if testimony is required by state law or council rule), and otherwise be aware of the governing body's steps in takings its official action.

For more information, see our New AGO Opinion Concludes the OPMA Allows a Governing Body to Meet via Telephone or Video Conference blog post.

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The city imposes a utility tax of 6%. I've been advised that this is the maximum we can impose without voter authorization. Is that correct? I've also been told that the public safety sales tax also required voter approval. Is this correct?
Reviewed: 02/18

Yes, any increase in the utility tax (above 6%) on electricity, gas, steam and telephone utilities requires voter approval. For other utilities, a referendum clause may need to be included in the ordinance pursuant to RCW 35.21.706, which provides the option of filing a petition to place the tax increase on the ballot.

With regard to the optional public safety sales tax there are actually two separate amounts that may be imposed.

Under RCW 82.14.340 the county commissioners/council can enact a one tenth of a percent sales tax that is then shared with the cities under a formula in the RCW. If the commissioners/council do enact the tax it is subject to repeal by voter referendum using the procedures provided in RCW 82.14.036 otherwise it goes into effect.

A second option exists under RCW 82.14.450. The city or the county may ask for voter approval for up to three tenths of one percent sales tax. One-third of all money received must be used for “criminal justice purposes, fire protection purposes, or both.” If it is approved countywide then funds are shared with the cities 60/40. If a city adopts it on its own then it is shared with the county 85/15.

So one option must be voter approved and the other might need voter approval if a referendum petition is filed and signatures force it to the ballot.

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Is it possible to make a small change to the zoning ordinance without a comprehensive plan update?
The change involves altering the allowed height of accessory structures. There is no mention of
this issue in the comprehensive plan.

Reviewed: 01/18

RCW 36.70A.130(1)(d) requires that: “Any amendment of or revision to development regulations shall be consistent with and implement the comprehensive plan.” This provision does not require that the comprehensive plan be updated every time the zoning code is amended. If the proposed zoning change is consistent with the comprehensive plan, then no changes to the comprehensive plan are required.

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Can someone spread cremated human remains in a public park?
Reviewed: 01/18

State law allows the scattering of remains in this manner, provided the person seeking to spread the ashes obtains permission. RCW 68.50.130 provides (emphasis added):

Every person who performs a disposition of any human remains, except as otherwise provided by law, in any place, except in a cemetery or a building dedicated exclusively for religious purposes, is guilty of a misdemeanor. Disposition of cremated human remains may also occur on private property, with the consent of the property owner; and on public or government lands or waters with the approval of the government agency that has either jurisdiction or control, or both, of the lands or waters.

Note, that if the scattering is not being done by a close relative (spouse, adult child, parent, sibling) or by an authorized representative of the deceased person, a permit from the state cemetery board is required. See RCW 68.05.195.

Several national parks have information about spreading ashes within a park. There are certain rules one must follow, and a person has to obtain permission to do so. See, e.g., Yosemite National Park’s webpageon scattering cremated remains.

The agency operating the park could consider adopting a formal policy or ordinance regarding the scattering of ashes on its public property, or it could grant permission on a case-by-case basis and ask the person to adhere to any conditions that the agency thinks appropriate. For more information, see MRSC’s Cemeteries and Cemetery Administration topic page.

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What are some good training materials for our governing body concerning the Public Records Act?
Reviewed: 01/18

Here are some good resources:

Attorney General Training Page. The Office of the Attorney General (OAG) has an Open Government Training page that includes OPMA and PRA videos, each of which are approximately 20 minutes long. This page also has an online training guide for records retention. There is not a specific certificate of completion for the videos or online training, but you can download a certificate of training form at the bottom of the page that can be used to document completion of this (or any other) training. In addition, the Washington State Archives and the OAG offer in-person open government training at various times and locations throughout the state. The training is free and lasts approximately three hours.

AWC eLearning Modules. The Association of Washington Cities (AWC), in partnership with MRSC, created an online PRA eLearning module, which provides a great overview of the PRA.

Knowing the Legal Territory. You can also access AWC’s Knowing the Legal Territory video series, featuring attorney Steve DiJulio. This video series is slightly over two hours long and covers the OPMA, PRA, and records retention. It also includes other important topics, including: municipal authority, governance, ethics and conflicts of interest. AWC offers a training certificate that you can download, sign, and date upon completion.

If completed by a member of your governing body, the above trainings will also satisfy the required PRA (RCW 42.56.150) training requirements.

In addition, MRSC has numerous resources related to the PRA, including the following:

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Does an interfund loan need to be approved by ordinance or resolution? What if the loan is from an enterprise fund to a governmental fund?
Reviewed: 01/18

Regardless of whether an interfund loan (IFL) is from an enterprise fund to a governmental fund or vice a versa, an IFL needs to be approved at the highest level of authority of the legislative body. For cities this would be an ordinance and for counties it may be either an ordinance or resolution depending upon whether it’s a charter or non-charter county.

While local government has the authority to adopt an IFL there should be some considerations given to whether the lending fund has the ability to loan monies without impacting current or future financial needs, commitments or obligations. As part of the consideration of adopting an IFL, evaluate whether the lending fund has funds clearly in excess of current needs, the financial ability to commit the funds for the proposed loan period and will not be postponing scheduled capital improvement projects because of the IFL. Funds must be both legally available and excess of anticipated cash needs throughout the duration of the loan. It is for these reasons that an IFL should be short term in nature (less than 3 years is recommended).

The IFL ordinance/resolution should include the SAO-BARS manual recommended minimum procedures provided in Section 3.9.1, Interfund Activities, Loans (Note: Cash and GAAP manuals provided identical guidance). In summary the SAO requirements address loan duration, interest rate, and repayment schedules.

While not considered an exception to BARS, local governments may adopt by ordinance/resolution a financial policy that allows management to use IFLs under limited and specifically authorized circumstances without separate legislative action. These IFL policies are typically for cash flow needs and can be equated to a line of credit with a bank. They are frequently short term in nature (less than a year) and should include a requirement for reporting to the legislative body all IFLs made under the provisions of the IFL policy. An IFL policy is typically addressed in the entity’s Debt Management policies but it’s important to note that any form of IFL authority provided within a fiscal policy must still address the requirements of the BARS manual Interfund Activity Loan Section 3.9.1. (Note: the SAO does not agree that the legislative body can delegate its authority for limited IFL loans via fiscal policy. Caution should be used when considering the adoption of such a policy).

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Can an employee take FMLA leave to care for his unmarried partner in connection with the birth of their child?
Reviewed: 01/18

Under the FMLA (29 CFR 825.120), it is clear that both parents may take FMLA leave in connection with the birth of a child regardless of whether they are married. In addition, an employee may take FMLA leave to care for a pregnant spouse under 29 CFR 825.120(5). However, the FMLA definition of spouse does not apply to unmarried couples, so I agree with you that under the FMLA, the employee would not be eligible to take leave to care for an unmarried partner who is pregnant. Any FMLA leave would begin with the birth of the child. Under Washington’s Family Leave Act (FLA), the result is the same. The entitlement to leave provisions are set forth in RCW 49.78.220, which provide for leave in the event of the birth of an employee’s child. That statute also provides for leave to care for a “family member.” Under RCW 49.78.020, "Family member" means a child, parent, spouse, or state registered domestic partner of an employee. It does not extend to unmarried couples. Therefore, the FLA does not authorize leave for an employee to care for an unmarried partner during her pregnancy. Please note that the Legislature recently passed SSB 5975, which repeals much of the current FLA and replaces it with a paid leave system. However, the definition of “family member” is substantially similar to the definition in RCW 49.78.020 and was not expanded to include unmarried partners. See SSB 5975 Section 2.

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Instead of using a tow rotation list, can a city use a service that contacts the nearest tow truck driver?
Reviewed: 01/18

Yes, cities can use such a service. MRSC has been asked several times in recent years about whether cities are required to use tow rotation lists and whether they are subject to RCW 46.55.115. By its terms, RCW 46.55.115 applies only to the State Patrol, and MRSC has consistently taken the position that it is not applicable to cities. Accordingly, we have indicated that a city may enter into an exclusive towing contract with a single towing company for police impounds. In so doing, we have noted that RCW 46.55.240, which relates to local ordinances on towing and impoundment, does not contain a “tow rotation” requirement, and includes the following (at subsection (4)):

A registered disposer under contract to a city or county for the impounding of vehicles shall comply with any administrative regulations adopted by the city or county on the handling and disposing of vehicles.

This provision suggests that cities may contract with one or more towing companies instead of using a rotational list. In addition, Citizens for Des Moines, Inc. v. Petersen, 125 Wn. App. 760 (2005), as corrected (Oct. 13, 2005) contains language that suggests cities have discretion in how they arrange for vehicle impounds.

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What liability does the city have for damages done to private structures and utilities by tree roots from trees the city maintains on city right-of-way when those roots invade abutting private property?
Reviewed: 12/17

Let’s start with the rules applicable to tree roots between adjoining properties. The general rule is that a property owner is liable for damage caused by tree roots that extend onto the property of another and cause damage. In Forbus v. Knight, 24 Wn.2d 297, 313 (1945), the Washington Supreme Court stated the following:

It is not the law that the owner of premises is to be charged with negligence if he fails to take steps to make his property secure against invasion or injury by an adjoining landowner. It is the duty of the one who is the owner of the offending agency to restrain its encroachment upon the property of another, not the duty of the victim to defend or protect himself against such encroachment and its consequent injury.

Street right-of-way is different than private property. Cities generally do not own right-of-way—they have an easement for street and utility purposes. See, e.g., Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wn.2d 222, 226 (1967). So the mere fact that a tree is in a right-of-way does not make it a tree for which a city is responsible. Abutting owners often plant and maintain trees in the right-of-way—especially the portion that is not part of the improved roadway. A city would not necessarily be liable for damage caused by roots from a tree in the right-of-way if it did not plant and does not maintain the tree.

In one case, an abutting owners were found to have a duty with respect to tree root damage to a sidewalk resulting from trees on their property, but adjacent to the right-of-way line. See Rosengren v. City of Seattle, 149 Wn. App. 565, 575 (2009)(“an abutting land owner has a duty to exercise reasonable care that the trunks, branches, or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk of harm to a pedestrian using the sidewalk”).

Where the tree is planted and maintained by the city (or planted at the behest of the city in connection with development), then the duties outlined in the Forbus case likely come into play.

In many cases it is difficult to ascertain the source of root damage if there are multiple trees in the area. Many cities have standards for appropriate species to use as street trees. A common criteria is that street trees be species that do not have invasive root systems.

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When can cities charge an annual franchise fee to utilities?
Reviewed: 12/17

Franchise fees are fees levied on private utilities for the right to use city properties, such as streets and alleys, and the term is also often used to describe the fees imposed to recoup the costs of administering the agreements.

MRSC’s Franchising—An Essential Tool for Right-of-Way Management blog post provides a helpful overview of franchising. The authority for code cities to enter into franchise agreements is at RCW 35A.47.040.

RCW 35.21.860 eliminates the city’s authority to impose a franchise fee on light and power, natural gas distribution, and telephone for the use of the city right-of-way. This same statute does however allow:

  • A utility tax to be charged and further states in RCW 35.21.865 a limit on the utility tax rate of 6% for the utilities providing light, power, natural gas, and telephone.
  • A fee to be charged to recover actual administrative expenses incurred by the city that are directly related to approving permits, licenses, and franchises subject to chapter 43.21C RCW (State Environmental Policy Act)
  • A franchise fee to be charged on cable television, with the fee being governed by federal law (RCW 35.21.860(1)(d))
  • A site specific charge (similar to a franchise fee) between the city and personal wireless facilities upon agreement between the parties. (The RCW is a bit more complex on this subject. Agreements between the city and wireless service providers requires legal counsel)

So, while the city can’t impose a charge for the use of the right-of-way for certain utilities, it can recoup the costs of administering the franchise agreement.

The most common franchise fees and agreements are between cable TV providers and wireless service providers. In these cases, a fee may be charged for use of the city’s right-of-way. Cable franchise fees are governed by the FCC. MRSC maintains an extensive Cable (CATV) Franchise Agreements topic page that you may find helpful. The franchise fee for cable utilities is limited to five percent. The franchise fee is different from the utility taxes a city may impose on utilities. Note the language of 47 USC 542(g)(2)(A), which states (emphasis added):

[T]he term “franchise fee” does not include—

(A) any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable subscribers) . . . .

Here are a few MRSC resources that provide more information on this topic, including sample ordinances:

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The city is in the process of adopting a comprehensive plan. There was a scheduled public comment period that closed. Is any additional public comment required?
Reviewed: 12/17

A second opportunity for public comment is not required in any of the statutes governing notice/comment/public participation associated with the adoption of comprehensive plan or development regulations. Below are the statutes that relate to the process by which a city adopts or amends a comprehensive plan and development regulation:

RCW 36.70A.035 sets forth the specific notice provisions for public participation for proposed amendments to comprehensive plans and development regulations, including area-wide rezones. However, it does not prescribe a specific type of notice but lists examples of reasonable notice provisions. Note that RCW 36.70A.035(2) provides:

(a) Except as otherwise provided in (b) of this subsection, if the legislative body for a county or city chooses to consider a change to an amendment to a comprehensive plan or development regulation, and the change is proposed after the opportunity for review and comment has passed under the county's or city's procedures, an opportunity for review and comment on the proposed change shall be provided before the local legislative body votes on the proposed change.
(b) An additional opportunity for public review and comment is not required under (a) of this subsection if:
(i) An environmental impact statement has been prepared under chapter 43.21C RCW for the pending resolution or ordinance and the proposed change is within the range of alternatives considered in the environmental impact statement;
(ii) The proposed change is within the scope of the alternatives available for public comment;
(iii) The proposed change only corrects typographical errors, corrects cross-references, makes address or name changes, or clarifies language of a proposed ordinance or resolution without changing its effect;
(iv) The proposed change is to a resolution or ordinance making a capital budget decision as provided in RCW 36.70A.120; or
(v) The proposed change is to a resolution or ordinance enacting a moratorium or interim control adopted under RCW 36.70A.390.

RCW 36.70A.130 describes requirements for amendment to the comprehensive plan, and limits action to once per year, with some exceptions.

RCW 36.70A.140 does not outline specific procedures that must be followed but states (in part) that:

The [public participation] procedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration of and response to public comments. . . .

RCW 35A.63.070, RCW 35A.63.073 and RCW 35A.63.100 set forth the notice provisions for adopting comprehensive plans, proposed amendments to comprehensive plans, and development regulations, including area-wide rezones in code cities. RCW 35A.63.100 and RCW 35A.63.070 considered together state that any amendment to the zoning code requires at least one public hearing; if the amendment is a site-specific rezone, it is a "project permit" for which only one hearing may be held per RCW 36.70B.050. Prior to holding the public hearing, notice of the time and place of the hearing must be published in a "newspaper of general circulation in the municipality and in the official gazette, if any, of the municipality at least ten days prior to the date of the hearing."

The GMA did not repeal the notice requirements in RCW 35A.63.070 and RCW 35A.63.100 for code cities. Therefore, code cities must follow those requirements in addition to those imposed by the GMA.

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What process must a city use to enter into a solid waste collection contract?
Reviewed: 12/17

In general, solid waste collection is considered to be a service, and it is therefore exempt from public works bidding requirements. Many jurisdictions use an RFP process when seeking solid waste collection services. Here is a link to MRSC’s Solid Waste Collection page.

RCW 35.21.156 does set forth an RFP process for solid waste collection. However, it is important to remember that this procedure is not mandatory and that cities may use different procedures to contract for solid waste collection. This is an area where cities have considerable flexibility—there are no mandatory procedural requirements with respect to contracting for solid waste collection.

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Why can’t impact fees be used for maintenance?
Reviewed: 11/17

Impact fees may only be imposed for public capital facilities (also called “system improvements”) identified in a local government’s capital facilities plan that are designed to provide service to the community at large, are reasonably related to a new development, and will benefit that new development (see WAC 365-196-850). RCW 82.02.050(4) states in relevant part (emphasis added):

The impact fees:

(a) Shall only be imposed for system improvements that are reasonably related to the new development . . . .

In addition, RCW 82.02.050(5)(a) states in part (emphasis added):

Impact fees may be collected and spent only for the public facilities defined in RCW 82.02.090 which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to the provisions of RCW 36.70A.070 or the provisions for comprehensive plan adoption contained in chapter 36.70, 35.63, or 35A.63 RCW.

RCW 82.02.090(9) defines “system improvements” to mean (emphasis added):

public facilities that are included in the capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements.

RCW 82.02.090(7) then defines “public facilities” to mean:

the following capital facilities owned or operated by government entities: (a) Public streets and roads; (b) publicly owned parks, open space, and recreation facilities; (c) school facilities; and (d) fire protection facilities.

Nowhere in the above-quoted provisions is there any reference to operations or maintenance of public facilities. Rather, there is reference only to the public facilities themselves. If the Legislature intended impact fees to be usable for operations or maintenance of public facilities, it would have said so.

For more information, see MRSC’s Impact Fees topic page.

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How can we fix a scrivener’s error in the zoning code?
Reviewed: 11/17

The general principle is that in order to make a correction to the original ordinance itself, it takes a formal amendment to the ordinance by the council. There is no specific statute that allows for clerical or administrative correction of an obvious mistake in an ordinance in most circumstances.

There is an exception to this rule. RCW 35.21.500RCW 35.21.500(3) relates to the process of codification and it provides that the term “codification” includes editing ordinances, which specifically includes correcting manifest errors. So if you are preparing ordinances for codification purposes, then there is authorization to correct manifest errors in references to other ordinances, also spelling, clerical, or typographical errors. These types of errors can be corrected for purposes of codification without specific council action, but this authority is limited to that specific context. If the ordinance has already been codified, the advisable course of action is for the council to amend the ordinance through another ordinance.

Note that RCW 35A.21.010 indicates that deficiencies in the form of ordinance do not affect the validity of the ordinance. This includes inadvertent use of an incorrect or inaccurate proper term or name, such as a citation. But while this helps interpret the ordinance, it does not really provide authority for the agency to correct to the error administratively.

So, assuming you have to amend the ordinance, the normal process for adopting an ordinance should be followed. The following reasoning in Responsible Urban Growth v. Kent, 123 Wn.2d 376, 386-87 (1994), in which the state supreme court addressed the "correction" of zoning ordinances, would appear to be applicable here:

The relevant statutes, however, appear to require notice whether the Council's action is in the form of a correction, an amendment, or a rezone. Although neither RCW 35A.63- .070 nor KCC 15.09.050 specifically mentions "corrections" they do require notice for "amendments" to zoning ordinances. Neither do the statutes define "amendment". Where terms are not defined in a statute, the court will look to the plain, ordinary meaning of the words. American Legion Post 32 v. Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). Webster's dictionary defines "amendment" as "a correction of errors, faults, etc." Webster's New World Dictionary of the American Language 47 (College ed. 1968). Black's Law Dictionary defines "amendment" in pleading and practice as "[t]he correction of an error committed in any process, pleading, or proceeding at law, or in equity. . . ." Black's Law Dictionary 74 (6th ed. 1990). Courts have defined the word "amendment" to mean "correction of fault or faults" or "to change by freeing from faults, to correct, to reform." United States v. Munday, 211 F. 536, 538 (W.D.Wash. 1914); Pacific Gamble Robinson Co. v. Pay'n Save Drugs, Inc., 2 Wn. App. 728, 730, 469 P.2d 571, review denied, 78 Wn.2d 995 (1970). It appears, therefore, that a correction is included within the meaning of amendment and therefore, requires the same notice as that required for a rezone or an amendment.

Under the reasoning in Responsible Urban Growth v. Kent, a correction to an ordinance, even for an obvious scrivener's error, requires amendment of the ordinance, which can be accomplished only by an amending ordinance enacted by the governing body.

One approach to avoid this problem in the future is to include a "scrivener’s error" section in the adopting ordinance, which authorizes staff to correct any typographical or scrivener’s error. See Section Three of this Mount Vernon ordinance as an example.

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Are salary increases or decreases approved by the city’s salary commission subject to referendum when the city has not adopted the powers of initiative or referendum?
Reviewed: 11/17

Yes, salary action by a salary commission is subject to referendum even if the city has not adopted the powers of initiative and referendum. RCW 35.21.015(6) provides, in part, as follows (emphasis added):

Salary increases and decreases shall be subject to referendum petition by the people of the town or city in the same manner as a city ordinance upon filing of such petition with the city clerk within thirty days after filing of the salary schedule. . . .

This mandatory requirement cannot be evaded where a code city has not adopted the powers of initiative and referendum. Although RCW 35.21.015 does not provide a specific referendum procedure, it does provide at subsection (7) that (emphasis added):

Referendum measures under this section shall be submitted to the voters of the city or town at the next following general or municipal election occurring thirty days or more after the petition is filed, and shall be otherwise governed by the provisions of the state Constitution, or city charter, or laws generally applicable to referendum measures.

The laws “generally applicable to referendum measures” for a code city could only be those that would apply (via RCW 35A.11.100) if the city had adopted the powers of initiative and referendum.

There are other provisions of state law that require referendums even for cities that have not retained referendum procedures. See, e.g., RCW 35.21.706 (referendum authorized on B&O tax ordinance); RCW 82.14.036 (referendum authorized on additional sales tax); and RCW 82.14.340 (referendum authorized on additional sales tax for criminal justice purposes).

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