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Is there a process our agency should have for an employee to access their personnel file?
Reviewed: 11/19

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

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

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

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

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

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

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

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

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

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Do you have a list of federal and state posters that are required to be hung? Also, what is the requirement related to having those posters in another language?
Reviewed: 10/19

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

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

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A former employee has requested to view all personnel records that pertain to him/her, specifically the personnel, payroll, and benefit files. Am I correct in assuming that this is a public records request and that since the content of all the requested files/documents are about the requestor, no exemptions and redactions are required?
Reviewed: 10/19

In our opinion, you can characterize this request as being a public records request. And, most---and likely all---of this information can be released since the responsive records are about the requestor. Members of the public have some access to information found in an employee’s personnel file, although there are exemptions (e.g., medical records, performance evaluations, Social Security numbers, employees’ addresses and phone numbers, among others). But the purpose of those exemptions is not present when the requestor is requesting his or her own personnel records.

There may be a few items in the file, that should not be released. Before releasing the file, we suggest you check to see if there is any information regarding a current investigation of a possible criminal offense or information compiled in preparation of an impending lawsuit. RCW 49.12.260 provides:

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

Your agency should review the file to determine if any redactions need to be made. An example of a redaction that might need to be made would be of personal information of another employee, such as that other employee’s address, telephone number, Social Security number, etc. We think that the file likely does not have such information, but if it does, it should be redacted.

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Under what circumstances can a local government official receive reimbursement for meals or travel expenses incurred in connection with official duties?
Reviewed: 10/19

State law governs reimbursement of state and local officials for reimbursement of travel expenses. RCW 42.24.090 allows the governing body of a local government to, at its discretion, adopt a policy authorizing travel and meal reimbursement if certain criteria is satisfied:

No claim for reimbursement of any expenditures by officers or employees of any municipal corporation or political subdivision of the state for transportation, lodging, meals or any other purpose shall be allowed by any officer, employee or board charged with auditing accounts unless the same shall be presented in a detailed account: PROVIDED, That, unless otherwise authorized by law, the legislative body of any municipal corporation or political subdivision of the state may prescribe by ordinance or resolution the amounts to be paid officers or employees thereof as reimbursement for the use of their personal automobiles or other transportation equipment in connection with officially assigned duties and other travel for approved public purposes, or as reimbursement to such officers or employees in lieu of actual expenses incurred for lodging, meals or other purposes. The rates for such reimbursements may be computed on a mileage, hourly, per diem, monthly, or other basis as the respective legislative bodies shall determine to be proper in each instance: PROVIDED, That in lieu of such reimbursements, payments for the use of personal automobiles for official travel may be established if the legislative body determines that these payments would be less costly to the municipal corporation or political subdivision of the state than providing automobiles for official travel.

All claims authorized under this section shall be duly certified by the officer or employee submitting such claims on forms and in the manner prescribed by the state auditor.

There is some flexibility associated with travel reimbursement as shown above in RCW 42.24.090. The statute requires a travel policy to establish how officers and employees shall be reimbursed for travel costs associated with their work. Local governments typically have such travel policies to fit the needs of their respective jurisdictions.

We have a webpage that provides examples of meal and travel policies adopted by local governments. If your agency has a policy for reimbursement of travel and meal expenses incurred in connection with official business, then you should follow that policy with respect to requests for reimbursement. If there is not a policy, your agency should consider adopting one—the webpage linked above has numerous examples that may be helpful in that regard.

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May a councilmember decline his or her salary?
Reviewed: 10/19

Yes. Councilmembers may waive or refuse a salary from the city. Such a waiver would be voluntary and should be made in accordance with an existing city policy and in writing. A waiver can be done but, as described below, the enforceability of such a waiver could be an issue. Article XI, Section 8 of the Washington Constitution prohibits a city or town council from increasing or diminishing the salary of a councilmember after her/his election or during her/his term of office. Article XI, Section 8 provides (emphasis added):

The salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.

Section 1 of Article XXX referenced in Article 11, Section 8 provides that elected county, town, city, or municipal officers who do not fix their own compensation can have their salaries increased during their terms of office.

Consistent with these provisions, a councilmember can voluntarily choose to waive, refuse, or donate a portion (or all) of the salary that has been established for the position. For example, a councilmember could agree, in writing, to waive the official salary, or a portion of it, so that she/he would actually be paid a lesser amount than the official salary. This fact pattern would not violate Article XI, Section 8 because the official salary would not be decreased or diminished after the election or during the term of office. A related issue is whether waiving or refusing a salary would have federal payroll tax implications. A councilmember can likely decide whether to receive or forego his/her compensation. We think that if a councilmember receives her/his salary, in whole or in part, and then donates the funds back to the city then there would be payroll tax implications for the salary received. However, if the councilmember voluntarily chooses not to receive all or a portion of the salary, there would not be payroll tax implications for the salary not received by the councilmember.

We have previously provided guidance that it would be beneficial for a city or town council to enact an ordinance to make clear to current and future councilmembers that there is a local policy that allows them to waive all or a portion of their salary. Such an ordinance would also set forth the way a councilmember may do so. It’s unclear, however, how much protection this would provide if a councilmember who initially agreed to waive her/his compensation later changed her/his mind and demanded back payment for what was waived. If there is a written agreement between the municipality and a councilmember providing that the councilmember is voluntarily and irrevocably waiving all or a specified portion of her/his compensation, it reduces the risk that councilmembers will later change their minds.

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Must town resolutions be published in a newspaper to go into effect?
Reviewed: 09/19

The short answer is generally no—a resolution does not need to be published to become official and it becomes effective immediately. We have a helpful publication Local Ordinances for Washington Cities and Counties which explains the difference between resolutions and ordinances. See the introduction at pp. 1-2.

The general publication requirements for ordinances are summarized on p. 26. While all ordinances must be published in a town, the same is not true for resolutions (again, unless a specific statute includes publication requirements).

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The county currently assesses a 0.1 percent sales tax for criminal justice purposes. What are its options for increasing the sales tax for public safety purposes?
Reviewed: 09/19

There is a lot of helpful information on criminal justice/public safety sales tax options in our Revenue Guide for Counties, which was completely rewritten and republished in February 2019.

You indicated that the county is currently imposing a 0.1 percent sales tax for criminal justice. That is likely the criminal justice sales tax authorized by RCW 82.14.340. For more information on how that tax works, please see the Revenue Guide for Counties, page 81.

There are two options for imposing additional sales taxes for public safety and mental health/chemical dependency treatment. First is the mental health and chemical dependency tax authorized by RCW 82.14.460. This tax does not require voter approval, but there are requirements for use of the revenue, as explained in the County Revenue Guide, page 87:

  • Any county that imposes this sales tax is also required to establish and operate a therapeutic court component for drug dependency proceedings “designed to be effective for the court’s size, location, and resources.” The revenues may be used to support the cost of the judicial officer and support staff of the therapeutic court.

The second option is the public safety sales tax authorized in RCW 82.14.450, which authorizes up to 0.3 percent, but requires voter approval. For more on that, see p. 88 of the County Revenue Guide.

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What is the difference between setting fee schedules by resolution versus ordinance?
Reviewed: 09/19

We have a publication entitled Local Ordinances for Washington Cities and Counties that addresses the difference between ordinances and resolutions at pages 1-2. Here is an excerpt (there is additional discussion in the publication):

  • When should an ordinance be used instead of a resolution? Obviously, if a state statute requires one form be used instead of the other, that requirement must be followed. If no particular form is specified, either a resolution or ordinance may be used. Ministerial and administrative acts may be exercised by resolution. Legislative acts, however, it has been suggested, should be made by ordinance.
  • What is “legislative”? The general guiding principle is that “[a]ctions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.” [emphasis added, footnotes omitted]

Cities and counties commonly use resolutions for fee schedules. It is easier to adopt an updated fee schedule by resolution than by ordinance. If fees are set forth by ordinance in a city or county code, then the code must be amended each time the city or county wants to change the fees. Setting fees is generally to be considered ministerial or administrative instead of legislative. A city or county could set fees by ordinance, but doing so by resolution is generally considered to be more convenient. Fees would only need to be set by ordinance if there is a specific statute that specifies an ordinance.

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Could a person who is appointed to fill a council ward vacancy live outside of the vacated ward where there is an understanding that the person could not run for the position in the next election, or must the appointed person be a resident of the ward?
 

Reviewed: 09/19

When filling a city council vacancy in a non-charter code city, the person appointed must be qualified for the office. Thus, for council positions assigned to wards or districts, the candidates for appointment to a vacancy need to reside in the ward or district in order to be appointed and assume office.

RCW 42.12.070 provides the process to fill a vacancy on an elected nonpartisan governing board of a city. RCW 42.12.070(1) provides:

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

For noncharter code cities, RCW 35A.12.050 provides the authority to fill councilmember vacancies pursuant to chapter 42.12 RCW, and provides, in relevant part, that “the office of a mayor or councilmember shall become vacant if the person who is elected or appointed to that position fails to qualify as provided by law, . . . ” So, both appointed and elected councilmembers (and mayors) must qualify to hold the office. RCW 35A.12.180 provides for the optional division of a city into wards and requires residency of the ward as a qualification for office. This statute provides, in relevant part:

Wards shall be used as follows: (1) Only a resident of the ward may be a candidate for, or hold office as, a councilmember of the ward; and (2) only voters of the ward may vote at a primary to nominate candidates for a councilmember of the ward. (Emphasis added).

Thus, both appointed and elected councilmembers must be a resident of the ward they serve. There is also a requirement to be a registered voter and to be a resident of the city for at least 12 months before appointment or election pursuant to RCW 35A.12.030. State law does not provide for a minimum residency requirement within the ward itself, so we think potential candidates could move from one part of a city into a particular ward shortly before appointment to a vacancy (or filing to run for election).

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Have the courts determined which document takes precedence in a conflict between personnel rules and policies and a union contract? For instance, if the city's personnel rules say one thing, but the union contract says something different, which one is applicable?
Reviewed: 08/19

In our opinion, the collective bargaining agreement (CBA) has priority over a directly conflicting personnel policy. There may be terms and specific language in the CBA about such potential conflicts. Likewise, the city’s Personnel Policy may have terms about compliance with applicable CBAs.

Chapter 41.56 RCW is the Public Employees Collective Bargaining Act. MRSC has topic pages on Personnel Policy Manuals and Civil Service.

Regarding the courts, there are several cases about the priority of collective bargaining, but I did not find one specifically about priority over all personnel policies. For example, in Spokane and Spokane Police Guild v. Spokane Civil Service Commission, 98 Wn. App. 541 (1999) the court held that which is bargained during a collective bargaining agreement will prevail over any inconsistent civil service rule. In Rose v. Erickson, 106 Wn.2d 420 (1986)the court found the legislature did not intend the procedures of chapter 41.14 RCW (civil service) to supplant chapter 41.56 RCW (collective bargaining); the legislature intended that chapter 41.56 RCW prevail.

Depending on the circumstances you are considering, the city may need to bargain with the union about a particular personnel policy if there is a conflict with the CBA. we recommend you consult with your city attorney and, perhaps, a labor attorney.

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For HB 1406, can the "resolution of intent" and the "legislation" be combined into one document?
Reviewed: 08/19

HB 1406 (the affordable housing sales tax credit passed during the 2019 legislative session) explicitly requires both a “resolution of intent,” which must be adopted by January 27, 2020, and “legislation to authorize the maximum capacity of the tax” (an ordinance for most jurisdictions, but for some counties this may be a resolution), which must be adopted by July 27, 2020. It is our recommendation that these documents be adopted separately.

However, beyond that there are no limitations on the timelines for adopting the legislation, so theoretically a city or county could adopt both the resolution of intent and the legislation at the same meeting as long as the resolution is adopted by January 27, 2020 and sequentially adopted prior to the legislation.

For more details on 1406, see our blog post SHB 1406: Explaining the Affordable Housing Sales Tax Credit, which includes revenue estimates for all cities and counties and selected examples of resolutions of intent and adopting legislation. We will be updating this post periodically with further examples and information.

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What steps must a city follow to sell a city-owned parcel of property with a fair market value of less than $50,000?
Reviewed: 08/19

For real estate with a fair market value under $50,000, unless the property was originally purchased for utility purposes, no public hearing is required. Here is a link to MRSC’s topic page Sale of Surplus City or Town Property where you will find the recommended steps for selling the property. You have already determined the fair market value so next is to have the council pass a resolution declaring the property to be surplus and directing how it is to be sold.

This topic page also describes when a public hearing is required for sale of property exceeding $50,000 in value:

  • RCW 39.33.020 – Requires that a public hearing be held if the value of the surplus property exceeds $50,000. AGO 1997 No. 5 concluded that the public hearing requirement only applies to intergovernmental transfers.
  • RCW 35.94.040 – Requires that a public hearing be held if property (real estate or personal property) originally purchased for utility purposes is no longer needed for that use and the city desires to lease, sell or convey the property. A hearing is required regardless of the value of the property.

The city may want to adopt local policies about surplus property if there is not an existing policy.

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Must we also post minutes if there is audio posted of a meeting?
Reviewed: 07/19

State law requires that minutes be maintained and made available for public inspection. RCW 42.30.035 states:

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

State law does not require audio or video recordings of meetings. For some issues, such as quasi-judicial hearings, it is necessary to provide a court with a verbatim transcript of the hearing and audio recordings are helpful in this regard.

So, in the interest of complying with the requirement to make the minutes available, we recommend that local government agencies post the minutes along with the audio recordings of their meetings. While we think that you could comply with RCW 42.30.035 without posting the minutes to your website, it would be an easy and efficient way to make them available for public inspection.

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Are we required to place an RFP or RFQ for misdemeanor prosecution services?
Reviewed: 07/19

Contracts for legal services are “personal service contracts.” There are no RCWs that require local government agencies to follow a formal RFP/RFQ process for personal service contracts.

That said, many jurisdictions have adopted their own policies and procedures which should be followed. MRSC recommends a formal process be followed above a certain dollar amount. Here is a link to our topic page on Personal Service Contracts that you may find helpful.

So while there is no RCW requirement, we recommend that you follow your organization’s adopted contracting/purchasing policies. We also suggest that you consider an RFP/RFQ process even if you are not required to do so under your policies and procedures to the extent doing so will get you the best possible contract.

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How do library amnesty or fee waiver programs for lost or damaged items avoid gift of public funds issues?
Reviewed: 07/19

In our opinion, a library amnesty program or fee waiver program for lost or damaged items is not a prohibited gift of public funds when it: (1) is established by the public agency’s governing body such as a city council or library board; (2) states the public purpose with clear guidelines for the program; and (3) is applied equally to all users.

In general, amnesty programs can be seen as revenue producing and compliance tools. Written guidelines for such programs typically use the term “have the effect of increasing revenues” to the local government. They are commonly used to collect delinquent taxes, unpaid business license fees, unpaid court fines, unpaid parking tickets, library fines, and address building permit compliance issues and animal licensing compliance.

The benefits derived are increased revenues where collection efforts have not been successful, clearing records of unpaid fines, and helping citizens gain compliance. Obtaining returns of materials belonging in the library collection is also a public purpose. So there is no donative intent with the establishment of an amnesty program – the goal is actually to generate revenues for the city that might not otherwise be realized. This is important when making an analysis for potential violation of the prohibition on gifting public funds in Article VIII, Sec. 7 set out in CLEAN v. Spokane, 133 Wn.2d 455 (1997).

Attorney General’s Opinion, 2005, No. 5 confirms the authority of public libraries to assess and collect fines for overdue books and library materials. We did not find AGO opinions or case law specifically regarding waiver or amnesty of late fees assessed by libraries.

In a past inquiry we looked at whether the state auditor’s office (SAO) would consider waivers of library fines for overdue books to be an impermissible gift of public funds. Although SAO is the ultimate authority on the financial programs they consider acceptable in this area, it looks like a library could have an amnesty or overdue fees waiver program if there is a clear and legitimate reason to do so, and those reasons are spelled out in an adopted policy applied equally to everyone.

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Can we file an extension for our annual budget? Are there any penalties? If we can file for an extension how do we proceed?
Reviewed: 07/19

You really can’t file an extension. However, if the council is unable to pass a new budget by year’s end, it could adopt the current year’s budget on an interim basis, adjusting the revenue expected for the new year. I wrote a blog article a few years ago, Do We Really Need To Pass a Budget by Year’s End? It discusses the need to do something, and it suggests that the council could adopt the current budget for next year on an interim basis. Then, when council is able to reach agreement, it can amend the interim budget to reflect the new agreement.

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Are there bid requirements if a town desires to lease real property to an individual or is a private transaction acceptable?
Reviewed: 07/19

The town has fairly broad authority to lease real property as long as such authority is exercised “for the common benefit” under RCW 35.27.010 and “for the benefit of the town” under RCW 35.27.370(2). Except for property originally acquired for public utility purposes under chapter 35.94 RCW, the state statutes merely indicate in general terms that the town council has the authority to control, dispose of, and convey real and personal property of the town. State law does not otherwise establish specific procedures which must be followed when leasing municipally-owned property; the ultimate authority with regard to determining whether property should be leased rests with the town council under RCW 35.27.370.

From a fiscal standpoint, the town should determine what will constitute fair market value for such a lease. The town should also give thought to whether a competitive process of some type will result in a better deal. But from a legal standpoint, there is not a required bidding process with respect to leasing real property.

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Our mayor will be resigning mid-term next year. We are a mayor-council code city. What is the legal process for replacing him?
Reviewed: 06/19

Once the mayor resigns, the city council can fill the vacancy by majority vote of the council. If it is known in advance that the mayor will be resigning, the council could develop a process to use to fill the position in advance of the resignation, but the council may not actually vote on a replacement until the position has become vacant due to the resignation.

There is no particular process to follow. The council could merely appoint someone once the mayor resigns. Or it could develop a process to fill the vacancy, such as by advertising the vacancy, accepting applications or letters of interest, interviewing candidates, etc. If the council chooses to interview candidates, it must do so in an open meeting, although it could discuss the qualifications of the candidates in an executive session. State law does not dictate a process except that the position will be filled by majority vote of the council.

There are no specific qualifications to be appointed mayor other than the person appointed must be a U.S. citizen, a registered voter and a resident of the city for one or more years prior to the appointment. Oftentimes the person appointed will be someone from the city council. That is not required, however; the person appointed could be anyone who meets the minimum qualifications, as discussed above.

The council has 90 days to fill the vacancy. If it fails to do so within 90 days, the county commissioners take over the task. Until an appointment is made, the mayor pro tem will chair meetings and otherwise fill in for the then-departed mayor. If there is no mayor pro tem, the council would appoint someone to be the mayor pro tem.

In the event that the council appoints someone from the council, that will create a vacancy on the council, and that vacancy would be filled by majority vote of the council.

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What are the state law and other essential requirements to follow for the role of mayor in a council-manager form of government?
Reviewed: 06/19

In a code city with a council-manager form of government, the city manager is responsible for all day to day operations of the city including, under RCW 35A.13.080(2), “[t]o appoint and remove at any time all department heads, officers, and employees of the code city, except members of the council, and subject to the provisions of any applicable law, rule, or regulation relating to civil service.” RCW 35A.13.120 essentially prohibits city council interference with the administration of the city except for the purpose of inquiry through the manager. Even when one councilmember has been selected as chair or mayor, this person remains a councilmember and part of the legislative branch of the city government.

The role of a mayor in a city with a council-manager form of government is essentially ceremonial. RCW 35A.13.030 sets forth the duties of a mayor in your city:

Biennially at the first meeting of the new council the members thereof shall choose a chair from among their number unless the chair is elected pursuant to RCW 35A.13.033. The chair of the council shall have the title of mayor and shall preside at meetings of the council. In addition to the powers conferred upon him or her as mayor, he or she shall continue to have all the rights, privileges, and immunities of a member of the council. The mayor shall be recognized as the head of the city for ceremonial purposes and by the governor for purposes of military law. He or she shall have no regular administrative duties, but in time of public danger or emergency, if so authorized by ordinance, shall take command of the police, maintain law, and enforce order. (Emphasis added).

The powers and duties of the city manager are set forth in RCW 35A.13.080 and are executive/administrative in nature. His or her role is fundamentally different than the role of a councilmember (including the chair of the council designated as mayor), which is legislative.

Here is a link to an MRSC blog post you may find useful: Balance of Power Struggles in City Government. In addition, here is a link to MRSC’s & AWC’s Publication Mayor and Councilmember Handbook (See particularly Chapter 9, “Resolving and Preventing Mayor-Council conflict,” beginning at page 31.

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What is the process for third party notification in the course of responding to a PRA request? Does the third party get the opportunity to review the public records?
Reviewed: 06/19

Yes, the third party involved in a PRA third party notification under RCW 42.56.540 does need the opportunity to review the records in question in order to decide whether to seek a court order preventing disclosure. When third party notification is provided, the reason is because the agency has determined the records will otherwise be disclosed to the PRA requester. Third party notice may be advisable because the PRA is to be construed in favor of disclosure, and the agency could otherwise be subject to penalties if a court finds that it improperly denied public disclosure of non-exempt information.

To provide third party notice, the agency would inform the PRA requester in writing that it will provide the requested records, subject to appropriate redactions, if any, but will delay release of the records (and so inform the requester) to give the affected parties the opportunity to seek court protection of possibly exempt information under RCW 42.56.540. See also, WAC 44-14-040(4), part of the PRA model rules, which states:

In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

This notice gives the third party an opportunity to obtain a court order to block release. For more information, see MRSC’s Public Records Act (PRA) webpage.>

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What is the applicable statute of limitations for an OPMA violation?
Reviewed: 06/19

We think it’s two years. The Open Public Meetings Act (OPMA) does not specify a limitations period for bringing an action under the Act. So, we look to chapter 4.16 RCW, which deals with "limitations of actions.” However, no statute in chapter 4.16 RCW applies specifically to alleged OPMA violations. But, there is a catch-all two-year period in RCW 4.16.130 ("Action for relief not otherwise provided for") that seems to apply. That statute provides as follows: "An action for relief not herein before provided for, shall be commenced within two years after the cause of action shall have accrued."

We are not aware of other legal authority (case law or attorney general opinion) on this issue.

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Is there a state statute or any overarching "rule" on quorums? Our 6 advisory bodies have some inconsistencies in their Rules of Procedure regarding quorums and we want to be sure they are all in compliance.
Reviewed: 06/19

Under the OPMA, RCW 42.30.020(3) whenever a body takes “final action” it must do so “by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.”

MRSC has consistently interpreted “quorum” for OPMA purposes to mean a majority of the full membership of the council, not taking into account any vacancies that might exist. For example, a council of seven with two vacancies, the number needed for a quorum does not change – in this example quorum is four members despite the fact that only 5 seats are currently filled. We do not have any Washington appellate court decision directly on this issue, so we rely upon the general rule, as expressed in the McQuillin Law of Municipal Corporations treatise.

The general rule is that a quorum is a majority of all the members of a governing body and that, if a statute or charter prescribes the number that shall constitute a quorum, it cannot be changed by the body. The statute for code cities specifically prescribes the number that constitutes a quorum: “[a]t all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business.” RCW 35A.12.120.

If your advisory bodies are created pursuant to an RCW, you should look there for any special quorum rules. If there is no RCW or the RCW is silent, it is up to the government entity or the individual boards to establish and define any quorum requirement that differs from the general rule.

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Does an at-will employee have the right to file an appeal to contest termination?
Reviewed: 05/19

No, “at-will” employees (not covered by civil service or a collective bargaining agreement) do not have administrative appeal hearing rights. We have a very comprehensive page on Employee Termination. Here is an excerpt from that page on at-will employees and termination:

In Washington, many governmental employment relationships are "at will," that is, a person's employment continues at the will or pleasure of the employer. Absent the requirements of civil service or collective bargaining agreements, discussed later, a public employee does not have a property interest in his or her employment, and that employment can be terminated without due process, "at will," without notice, statement of cause, or hearing (Yantsin v. Aberdeen (1959); Nostrand v. Little (1961); Halliburton v. Huntington (1978); Gaar v. King County (1972)).

Note, however, that a name clearing hearing should be provided to even at-will employees if the agency has publicly announced a false, stigmatizing charge during the termination process. Here is the relevant excerpt from that same webpage:

Name-Clearing Hearings
If the employer has publicly announced the grounds for the employee's discharge, it may be necessary to provide a "name clearing hearing" (Owen v. City of Independence). A name-clearing hearing can be required when there has been a false, stigmatizing charge publicly made against the employee during the disciplinary or termination process. If a stigmatizing charge has been made, the employee should be given an opportunity to "clear" his or her name at a public hearing. This hearing may occur either before or after the termination. Obviously, the need for such a hearing can be avoided altogether by the employer not making any public statements about the termination. (Of course, if the announced reason for the termination is true, the terminated employee may choose from a privacy standpoint to avoid any further public airing of the reasons for his or her discharge.)

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Request for sample code provisions regarding declarations of emergencies in council-manager cities.
Reviewed: 05/19

Please see the following sample code provisions from four council-manager cities:

  • Bainbridge Island Municipal Code, Ch. 2.44, Emergency Management
  • Burien Municipal Code, Ch. 2.75, Emergency Management
  • Normandy Park Municipal Code, Ch. 2.36, Emergency Management
  • Toppenish Municipal Code, Ch. 2.95, Emergency Powers of Mayor, City Council and City Manager

A custom code search of “’city manager’ emergency declare” turns up many more sample code provisions that include procedures for declaring emergencies in council-manager cities for your review. While many of these code provisions have the city manager, acting as the “executive head” of the city, initiating the declaration of an emergency, there are a variety of other approaches that include potential action by the mayor or the city council (if they are in session or to ratify action by the city manager). I am not aware of any attempts to determine what might be considered “best practices” for declaring an emergency in council-manager cities.

You may also be interested in the following related resources:

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