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Not necessarily.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) Airports;

(ii) State education facilities;

(iii) State or regional transportation facilities;

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

(A) The interstate highway system;

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

(C) Intercity passenger rail services;

(D) Intercity high-speed ground transportation;

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

(F) The freight railroad system;

(G) The Columbia/Snake navigable river system;

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

(I) High capacity transportation systems.

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

(vi) State and local correctional facilities;

(vii) Solid waste handling facilities;

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

(ix) Mental health facilities;

(x) Group homes;

(xi) Secure community transition facilities;

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

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

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

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

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

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

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

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

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

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

RCW 35A.11.020 provides in relevant part:

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

RCW 35A.12.090 provides, in part:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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