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Are local governments required to maintain specific reserve fund balance levels? Should a local government continue adding to its operating reserve if it has already met the requirement of the policy?
Reviewed: 10/16

This is always a good topic of conversation and the answer is almost always “it depends.” Financial policies are considered a best practice by the GFOA and at the top of the list of recommended financial management policies by the SAO.

There is no statutory requirement for fund balance levels, nor is there any specific reference within the SAO BARS manual that states that a municipality (whether it’s a county, city, or special purpose district) has to have a specific level of operating reserves (also known as “beginning” or “ending” fund balance). The 15% figure was a previous recommendation made by the GFOA for the general fund. This percentage has since been updated with the 2015 release of the GFOA best practice paper on Appropriate Level of Unrestricted Fund Balance in the General Fund. The recommendations made by the GFOA now speaks of several factors that would lead an entity to adopt a policy that addresses these factors in a way that is specific to them. An excerpt from the best practice paper states:

In establishing a policy governing the level of unrestricted fund balance in the general fund, a government should consider a variety of factors, including:

  1. The predictability of its revenues and the volatility of its expenditures (i.e., higher levels of unrestricted fund balance may be needed if significant revenue sources are subject to unpredictable fluctuations or if operating expenditures are highly volatile);
  2. Its perceived exposure to significant one-time outlays (e.g., disasters, immediate capital needs, state budget cuts);
  3. The potential drain upon general fund resources from other funds, as well as, the availability of resources in other funds;
  4. The potential impact on the entity’s bond ratings and the corresponding increased cost of borrowed funds;
  5. Commitments and assignments (i.e., governments may wish to maintain higher levels of unrestricted fund balance to compensate for any portion of unrestricted fund balance already committed or assigned by the government for a specific purpose). Governments may deem it appropriate to exclude from consideration resources that have been committed or assigned to some other purpose and focus on unassigned fund balance, rather than on unrestricted fund balance.

Depending upon the answer to the above questions, a local government may find that 15% is not adequate to meet their needs. Or to the contrary, a local government may determine that 15% of the operating budget would be more than sufficient.

You additionally asked whether a local government should continue to add to its operating reserve if it has already met the requirement of the policy. This question can only be answered by the policy adopted. You may want to consider expanding your current policy to define such things as “use and replenishment.” You will note that the GFOA best practice paper has a section that speaks to this issue.

Budget is a great time to review financial policies currently in place and to fine tune those policies to meet current fiscal needs.

Here is a link to our Financial/Budget Policies topic page, where you will find some excellent samples of what other jurisdictions are doing in this area of fiscal management. Additionally, here is a link to the SAO - FIT (Financial Intelligence Tool) that will assist in evaluating the financial condition of the county and provide you with fiscal data for your analysis of appropriate fund balance.

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Do you have any examples of city code updates to allow for small cell or distributed antenna systems (DAS)?
Reviewed: 10/16

We have several examples of code provisions adopted pursuant to the new FCC rules stemming from federal legislation requiring local governments to allow for small cell or distributed antenna systems:

A quick look at these examples seems to indicate that they’ve largely followed either the National League of Cities (NLC) and the National Association of Counties (NACo) model ordinance, or the Kenyon Disend PLLC law firm model ordinance.

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Can a city require fencing to limit access to an individual's medical cannabis grow?
Reviewed: 10/16

Cities can require that outdoor medical marijuana grows be fenced or screened in some way if that is necessary to keep the plants from being readily visible. Review RCW 69.51A.260(2), which reads as follows:

Neither the production nor processing of marijuana or marijuana-infused products pursuant to this section nor the storage or growing of plants may occur if any portion of such activity can be readily seen by normal unaided vision or readily smelled from a public place or the private property of another housing unit.

Most medical marijuana patients or designated providers have a natural incentive to screen plants from view so the plants do not become the targets of thieves.

In addition, WAC 314-55-410(1)(k) requires that outdoor medical marijuana production “be enclosed by a sight obscure wall or fence at least eight feet high.” Note, however, that WAC 314-55-410(1)(k) only applies to cooperatives, not to medical marijuana being grown by a sole medical marijuana patient or designated provider.

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Under RCW 70.48.100, are jail records held in confidence only while the person is actually confined in jail?
Reviewed: 10/16

The confidentiality requirements in RCW 70.48.100 regarding jail records apply to persons that were but are no longer confined in jail - in addition to those currently confined. In Cowles Publ'g Co. v. Spokane Police Dep't, 139 Wn.2d 472, 481 (1999); the state Supreme Court held:

Cowles' argument that the statute [RCW 70.48.100] does not apply because the defendant was not in jail at the time of the request is not persuasive. Nothing in the statute suggests that confidential jail records suddenly become open to public inspection when the jail term ends and the defendant is released.

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How many budget hearings are cities required to hold?
Reviewed: 09/16

We believe the number is no less than three. Our Budget Hearings: How Many Do You Need to Hold? blog post additionally speaks to these requirements. Here's a quick overview of the three required hearings:

  • The first public hearing that cities must hold is the revenue hearing (also known as the property tax levy setting). This hearing is required under RCW 84.55.120.
  • The second public hearing is required under RCW 35.33.057, which states that cities and towns must hold hearings on the budget, or its parts, prior to the final budget hearing.
  • RCW 35.33.071 then requires a final budget hearing to be held on or before the 1st Monday in December.

A city may desire to hold more public hearings then state law requires, or it may want to hold additional budget workshops. All of these meetings and hearings are certainly allowed. It's just important to have a minimum of three public hearings in order to meet the requirements under state law.

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Must a jurisdiction follow the procedures set forth in RCW 35.94.040 (including resolution, hearing, etc.) for disposal of surplus property that was used by a public utility if the property has no value?
Reviewed: 09/16

There are some items that have no or even negative value; that is, no one likely would buy it and it is costing the city space to hold on to it. Such property can likely be disposed of without sale. However, it will be important to make a record as to why the property has no value (and advise council of the facts). A policy establishing how a determination of no-value is made is advisable. In drafting such a policy, every jurisdiction will want to make sure constitutional issues (i.e., gift of public funds) are carefully considered and accounted for.

Below is some language from two city policies. These policies don't contain a lot of detail, but both allow for disposition of property with little or no value by more flexible means: If there is a determination that property has no value, then the council, under both sample policies below, may allow the administration to dispose of the equipment by disposal, donation, recycling, or some other method without specific council action.

We don't think that this analysis changes because the property was originally acquired for a public utility. RCW 35.94.040 sets out a procedure for passage of a resolution and a public hearing for property that is "to be leased, sold, or conveyed." Presumably, if an item is of no value and is simply being disposed of, it is not being "leased, sold, or conveyed."

Fife Municipal Code Sec. 1.28.075 (Emphasis added):

Personal property - Method of disposition.

A. If the estimated value of the surplus property is $10,000 or less, the city manager may dispose of the property by informal procedures in any manner deemed to be in the city's best interests.

B. If the surplus property has an estimated value greater than $10,000, it may be disposed of in one of the following methods:

  1. Public auction;
  2. Solicitation of written bids;
  3. Negotiated sale to one or more designated buyers;
  4. Transfer to another agency of government; or
  5. Trade-in upon the purchase of a like article. . . .

Poulsbo Municipal Code Sec. 3.68.020 (Emphasis added):

H. Methods of Disposition. If the surplus property is not required by any department of the city, the finance director may utilize one of the following methods of disposition:

  1. Public auction;
  2. Solicitation of written bids;
  3. Negotiated sale to one or more designated buyers;
  4. Transfer to another agency of government at or below reasonable market value;
  5. Donation to a charitable or nonprofit organization.

If after attempting to dispose of the property under one or more of the preceding methods, if the finance director in his or her discretion determines that due to damage, deterioration or obsolescence the property no longer has a market value or such market value is exceeded by the cost of repair, the finance director may authorize disposition of the property through nontraditional methods of sale including a city-wide garage sale. If the continued cost of storage or the need of the city for existing space makes the continued storage of valueless items impracticable, the finance director is authorized to direct the salvaging of any recyclable material and the disposition of the remainder as refuse through appropriate methods of waste disposal. Nothing herein shall be interpreted to authorize the gifting of any item of value to a city employee or other private person.

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If a councilmember willfully discloses confidential information, do the remedies in RCW 42.20.080 and .100 apply, such that such disclosure could be a gross misdemeanor?
Reviewed: 09/16

RCW 42.20.080 (which relates to willfully disobeying any provision of law regulating official conduct "other than those specified in said section" and which refers to "every officer"), and RCW 42.20.100 (which more generally applies to duties enjoined by law on "any public officer or other person holding any public trust or employment"), can, in our opinion, be applicable to a situation involving disclosure of confidential information by a local government official, including a city councilmember who willfully and unlawfully discloses confidential information gained through an executive session. RCW 42.20.080 provides that a violation of that provision is a gross misdemeanor, and RCW 42.20.100 provides for a misdemeanor penalty.

In the context of executive sessions and violations of confidentiality, RCW 42.23.070(4) ("No municipal officer may disclose confidential information gained by reason of the officer's position . . .") may also apply to such situations; the penalties for violation of that statute are set out in RCW 42.23.050. Note that RCW 42.23.050 explicitly provides that its penalties are "[i]n addition to all other penalties, civil or criminal."

We reviewed several cases and attorney general opinions related to the applicability of the provisions of chapter 42.20 RCW to local governments, and there are several examples of court decisions and attorney general opinions indicating that RCW 42.20.100 and other provisions in that chapter apply to local governments. See, e.g., In re Recall of Washam, 171 Wn.2d 503 (2011) (county assessor and RCW 42.20.080); State v. Twitchell, 61 Wn.2d 403 (1963) (county sheriff and RCW 42.20.100); State v. Torgeson, 19 Wn. App. 17 (1978) (county commissioner and RCW 42.20.100); AGO 1963 No. 63 (port commissioner and RCW 42.20.080), RCW 42.23.030, and RCW 42.23.050 - "If a contract is executed in violation of RCW 42.23.030, the contract is void and the penalty upon the public officer in question is prescribed in RCW 42.23.050 and 42.20.080.").

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If a position has a salary range from $43,400-$56,600, can the local government maintain the position as FLSA-exempt under the newly-revised DOL regulations that change the salary test for exempt employees?
Reviewed: 09/16

The new Department of Labor (DOL) rule, effective on December 1, 2016, raises the salary threshold to qualify to be exempt from FLSA overtime requirements to $47,476 annually, no matter the duties the employee performs. So, whether an employee paid in the salary range of $43,400-$56,600 is exempt depends on where exactly within that salary range they are paid. At a minimum they must be paid more than $47,476 to be FLSA-exempt. If the salary of an employee in that position reaches $47,476, they could then be exempt, if they meet the duties test.

For more information on this new rule, see the MRSC blog posts, New Overtime Rule Issued for White Collar Workers and New FLSA Regulations Proposed Regarding Who is Subject to Overtime.

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Request for sample council rules of procedure that help to maintain and support effective  discussion and debate during council meeting without wasting valuable time on personal or off topic-issues.
Reviewed: 09/16

You've described one of the those sensitive situations where style can get in the way of working together even when the parties involved may not be that far apart on the substance of the discussion. During the course of the meeting, it is the presiding officer's responsibility to keep the discussion on track, but it can sometimes be difficult without hurting feelings or getting the procedural process wrapped up in the issue.

Often it is best to discuss ways to improve the flow of meetings in a less formal setting, such as during a retreat or workshop, when there is not an actual issue before the legislative body. If the legislative body has not adopted rules of procedure, consider doing so in a setting that will allow members to talk about how to make meetings more productive, when the pressure to finish a meeting agenda is off.

The MRSC web site has a page devoted to Council/Board of Commissioners Rules of Procedure. It includes examples from various jurisdictions of rules of procedure governing how the members of the legislative body work together. Here are three sample rules of procedure that illustrate different approaches:

This MRSC Insight blog post by Ann MacFarlane may also be helpful: 4 Bad Habits to Avoid at Council Meetings. Ann is a specialist in parliamentary procedure and has written several articles for our blog that may offer more helpful tips.

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Does the LTAC need a quorum to vote and make recommendations?
Reviewed: 08/16

Yes, the LTAC needs a quorum before it can take any action, including voting and making recommendations. This conclusion is based on the general rule that any such public "governing body" needs a quorum to take action. See RCW 42.30.020(3) (“Final action” means “a collective positive or negative decision, or an actual vote 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." [Emphasis added]).

So, if you have two members who are often absent, three of the five members may make lodging tax recommendations on behalf of the LTAC. As an option with respect to absent members, the LTAC could authorize participation by absent members in LTAC meetings by speakerphone, Skype, or similar technology, as long as there is two-way communication regarding members participating remotely and those LTAC members who are physically present at the meeting.

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What must applicants for funding from the lodging tax include in their applications to the LTAC?
Reviewed: 08/16

In accordance with RCW 67.28.1816(2), applicants for lodging tax funding must submit their applications to the LTAC in cities, towns, or counties with more than 5,000 in population. The application must include the following information:

Estimates of how any moneys received will result in increases in the number of people traveling for business or pleasure on a trip:
(i) Away from their place of residence or business and staying overnight in paid accommodations;
(ii) To a place fifty miles or more one way from their place of residence or business for the day or staying overnight; or
(iii) From another country or state outside of their place of residence or their business.

The LTAC then reviews the applications, selects the candidates for funding from the applicants, and provides a list of the candidates and recommended amounts of funding to the legislative body of the city, town, or county. Based on RCW 67.28.1817(2), there must be a 45-day time period between submission of the application to the LTAC and when the city, town, or county legislative body can take final action on or passage of the proposal.

A post-event report must also be submitted by those awarded funding evaluating the actual benefits from the estimated benefits in the application.

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Does a project have to be included in the transportation plan element of a city, town, or county's comprehensive plan in order to be funded by a transportation benefit district (TBD)?
Reviewed: 08/16

Not necessarily. To be paid for with TBD funds, a project within the district must be contained in the transportation plan of the state, a regional transportation planning organization, or a city, county, port district, county transportation authority, or public transportation benefit area.

Under RCW 36.73.020(1), a TBD may only be established (emphasis added):

for the purpose of acquiring, constructing, improving, providing, and funding a transportation improvement within the district that is consistent with any existing state, regional, or local transportation plans . . .

And RCW 36.73.015(6) similarly defines "transportation improvement" to mean:

A project contained in the transportation plan of the state, a regional transportation planning organization, city, county, or eligible jurisdiction as identified in RCW 36.73.020(2) [i.e. port district, county transportation authority, and public transportation benefit area].

One such "transportation plan" would be the transportation plan element of a city, town, or county's comprehensive plan, given its predominance as the jurisdiction's "blueprint" for future transportation planning.

This analysis is the same even for a jurisdiction that has assumed its transportation benefit district pursuant to chapter 36.74 RCW.

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Is an employee entitled to an additional 12 weeks of leave for the birth of her second child if it occurs within the same 12 months as the birth of her first child (for which she took 12 weeks of leave)?
Reviewed: 08/16

The Family Medical Leave Act (FMLA) entitles employees to only one 12-week period of leave during any 12-month period, regardless of how many qualifying events there are. So, if she has already used her 12 weeks of leave for the current 12-month period, she can't use more FMLA leave during that same 12 months. She will have to wait until the next 12-month leave commences before being eligible for more FMLA leave.

29 CFR §825.200(a) states:

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

  1. The birth of the employee's son or daughter, and to care for the newborn child;
  2. The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;
  3. To care for the employee's spouse, son, daughter, or parent with a serious health condition;
  4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,
  5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty).

(Emphasis added.)

There are options for how an agency measures the 12-month FMLA leave. Note, the 12-month measurement period has to be the same for all employees. You can measure it by: (1) calendar year; (2) a fixed 12-month period; (3) the 12-month period measured forward; (4) the 12-month period measured backward.  This US Department of Labor Fact sheet on measuring the 12-month period details the various options.

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Must employees be required to take a 30-minute lunch break if they work an eight-hour shift?

Reviewed: 08/16

You have inquired whether there is a requirement that employees take a lunch break or whether they can decide to skip lunch and then leave early.

A state regulation, WAC 296-126-092, states that employers, including public employers, must allow employees a meal period of at least 30 minutes, to begin between two and five hours after the beginning of a shift. So, under this regulation, an employer cannot require that employees work without a lunch break.

However, RCW 49.12.187 allows employees, individually or through collective bargaining, to enter into "employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods." So, employees may voluntarily choose to combine their meal and rest periods, or even forego a meal period, as long as the employer consents.

We recommend that any such agreement be in writing and state that the employee has voluntarily agreed, pursuant to RCW 49.12.187, to deviate from the 30-minute lunch break period described in WAC 296-126-092, to allow the employee to shorten his or her work day by 30 minutes. 

Note that an employer is not obligated to enter into such an agreement with employees, as it may not be an advantageous arrangement for the employer.

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Can the city council submit any question to the voters by ballot proposition, without first receiving an initiative petition from voters?
Reviewed: 07/16

The state statutes do not, in general, provide any process for or authorize a city council itself to place an issue on the ballot, although we have opined that a city council may place a non-binding advisory measure on the ballot to gauge voter sentiment about an issue. Nor do the statutes regarding initiatives and referenda provide a process for the council to start the process leading to a ballot measure. Both the initiative and referendum procedures require that a petition be filed by the voters to initiate the process.

Of course, some statutes authorize or require that a city council to submit a specific proposition to the voters for their approval, such as certain annexations and tax increases. For other issues, where the decision-making authority resides with the city council, the council does not, in our opinion, have the authority to side-step the process and make the voters into the decision-makers.

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Since labor negotiations are exempt from the Open Public Meetings Act, may approval of a collective bargaining agreement occur in a closed meeting?
Reviewed: 07/16

No. It is true that collective bargaining and developing a strategy for the bargaining can occur in a closed meeting; meetings to consider such matters are exempt from the Open Public Meetings Act (RCW 42.30.140(4)). However, actual approval of the contract must occur in a meeting open to the public. The approval of the contract would need to be listed on the board's agenda for consideration at either at a regular or special meeting.

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How should sessions to discuss labor negotiations be handled for Open Public Meetings Act (OPMA) purposes?
Reviewed: 07/16

RCW 42.30.140(4) provides that the OPMA "shall not apply to":

(4)(a) Collective bargaining sessions with employee organizations, including contract negotiations, grievance meetings, and discussions relating to the interpretation or application of a labor agreement; or (b) that portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by the governing body during the course of any collective bargaining, professional negotiations, or grievance or mediation proceedings, or reviewing the proposals made in the negotiations or proceedings while in progress.

(Emphasis added.) The above section lists exemptions from the Open Public Meetings Act, including sessions to discuss or plan the district's plans for collective bargaining sessions. Since this is an exemption, it takes such sessions out of the Open Public Meetings Act altogether. There is no requirement that the public be allowed to attend, and there is no requirement that notice be given of the session. A session to discuss labor negotiations is similar to an executive session in that the public does not have the right to attend, but it is different than an executive session because none of the other provisions of the OPMA apply.

So, the district may conduct these sessions in private. The sessions could occur over the telephone (for example, if negotiations are continuing and your negotiator needs to know whether the commissioners would be willing to increase the salary X percent in order to finish the negotiations). The session could take place at the district's regular meeting place, but it could be held elsewhere, if it is more convenient. If the session occurs before or after a regular or special meeting, we suggest that the meeting agenda indicate that there will be a "closed session" to discuss collective bargaining strategy - so that the public knows what is going on.

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Under the Fair Labor Standards Act (FLSA) and state law, can overtime pay for nonexempt salaried employees be applied as compensatory time (at time and a half) if that is stated in the agency's policy manual, or does it have to be paid out? Is this the same for nonexempt hourly paid employees?
Reviewed: 07/16

The FLSA, specifically 29 U.S.C. Sec. 207(o), and FLSA regulations (see, e.g., 29 C.F.R. Sec. 553.22, .23, .25, .27, .28, and .50) address the use of comp time under federal law. Under these laws and regulations, a public agency may provide for comp time to its employees as long as comp time is provided for under a collective bargaining agreement, employment agreement, or memorandum of understanding. The agreement can be made in one of three ways: through negotiation with individual employees; through negotiation with employees' representatives; or through negotiation with a recognized collective bargaining agent.

Comp time under state law is governed by RCW 49.46.130(2)(b), which exempts from overtime pay requirements "[e]mployees who request compensating time off in lieu of overtime pay." A related administrative regulation, WAC 296-128-560, provides:

The provisions of chapter 49.46 RCW requiring one and one-half times the regular rate of pay for hours worked in excess of 40 per week does not apply to any person who requests compensating time off in lieu of overtime pay. Therefore, compensating time may be as agreed upon by the employer and the individual employee at the request of the employee, but may not be imposed by the employer in lieu of overtime pay upon any employee who has not so requested such compensating time off.

So, under RCW 49.46.130(2)(b) and WAC 296-128-560 and consistent with federal law, a public employer and employee may agree on comp time in lieu of overtime pay at the request of the employee. As such, the agency can have a policy that allows the employee to request comp time in lieu of overtime pay, but the agency cannot unilaterally decide that an employee must take comp time in lieu of overtime pay.

Also of interest on this topic, more generally, may be our MRSC Insight blog post Overtime 101.

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Could I send an email of relevance to water-sewer district business to the other commissioners for information purposes only? I had the first line of the email clearly state: "For informational purposes only, please do not reply."
Reviewed: 07/16

It is not a violation of the Open Public Meetings Act (OPMA) for you to send this email for informational purposes only to the other commissioners. If they only passively receive the information, there is no violation. See, e.g., Wood v. Battle Ground School District, 107 Wn. App. 550 (2001). However, if just one of the other two commissioners responds to the email, then it could be deemed a violation of the OPMA because there would have been action taken (a discussion of district business) by a quorum of the board of commissioners outside of a meeting open to the public. We recommend just what you are doing - clearly state that the other commissioners should not reply to your email.

MRSC developed a handy tip sheet on how to avoid OPMA violations when sending email. One other thing we recommend is having a staff member send the email on your behalf so if a commissioner responds, it would not constitute a meeting because none of the other commissioners would be a recipient of the response (assuming the staff member doesn't forward the response!).

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With respect to annual financial report requirements, are we required to identify restricted and unrestricted fund balances for fiduciary funds?
Reviewed: 07/16

No. Fiduciary funds are, by definition, funds that belong to others (see BARS, Fund Types and Accounting Principles). Fiduciary funds are described in the "cash basis" BARS manual as follows:

Fiduciary Funds - should be used to account for assets held by a government in a trustee capacity or as an agent for individuals, private organizations, other governmental units, and/or other funds. These include (a) investment trust funds, (b) pension (and other employee benefit) trust funds, (c) private-purpose trust funds, and (d) agency funds.

The application and classification of fund balance is a result of the implementation of GASB 54 to both GAAP and Cash Basis accounting and reporting entities by the State Auditor's Office (SAO) through its BARS manuals. GASB 54 provides for fund balance classifications of "governmental" funds, which are the general, special, debt, capital, and permanent fund classifications. The SAO has extended this fund balance classification to the "proprietary" funds for cash basis entities (GAAP was already designating fund balance by class).

As a bit of further explanation, all fiduciary funds, in theory, are restricted to the extent that the funds belong to others, but, for accounting purposes, there are no requirements to designate them as restricted funds, because GASB and/or BARS requirements apply only to governmental and proprietary funds.

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Can the council endorse a ballot measure supporting a sales tax increase?
Reviewed: 06/16

The statute that applies to your question is RCW 42.17A.555. Although that statute generally prohibits the use of public facilities to support a ballot proposition, it provides an exception that allows a city council, as well as other elected bodies, to vote to take a collective position supporting or opposing a ballot proposition. The agenda for the meeting in which the vote would take place must include the title and number of the ballot proposition, and any member of the public must be given an approximately equal opportunity to speak in opposition.

The Public Disclosure Commission has an informative guide on this and other issues involving the prohibition in RCW 42.17A.555: Guidelines for Local Government Agencies in Election Campaigns.

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Request for examples of regulations dealing with portable mobile cellular sites called "Cells on Wheels," which provide temporary network and wireless coverage, usually via vehicles such as trailers, vans, and trucks.
Reviewed: 06/16

The following code provisions provide a range of approaches for the regulation of temporary wireless communication facilities:

  • Edmonds Municipal Code, Chapter 20.50 - Wireless Communication Facilities, Section 20.50.120 - Temporary Facilities - appears to be focused on emergency use.
  • Federal Way Municipal Code, Chapter 19.255 Personal Wireless Service Facilities, Section 19.255.040 - Temporary Personal Wireless Service Facilities - authorizes community development director to allow cells on wheels facilities under certain circumstances.
  • Kent Municipal Code, Chapter 15.08 - General and Supplementary Provisions, Section 15.08.035 - Wireless Telecommunications Facilities - exempted from the WTF provisions and allowed in all zones for up to 30 days, unless there is an emergency or the time is extended by planning manager (see subsection (D)(5)).
  • Phoenix Municipal Code, Chapter 7- Development Standards of General Applicability, Section 715 - Satellite Earth Stations and Wireless Communication Facilities, Subsection (B)(6) - Standards for the Use of "Cell on Wheels" (COWS) Apparatus" - requires a Temporary Use Permit and adherence to listed standards.

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Does state law dictate how many months behind in paying the water bill a utility customer must be before the city can shut off the water?
Reviewed: 06/16

State law does not set out how many months delinquent a resident must be before water service can be terminated for nonpayment. That is up to the city's policy.

The language of RCW 35.21.290 and RCW 35.21.300(1) can confuse things here. The former statute establishes a "lien" for the last four months of water charges due. The latter statute provides that this lien (not a true lien) may be enforced only by shutting off utility service "until the delinquent and unpaid charges are paid." We interpret this to mean that the city can exercise the option of shutting off service only for the last four months charges, because that's all the lien is for. Thus, service must be restored once those last four months changes are paid, even if the delinquency is for more than that. The rest of the bill is still a debt owed the city, but the city loses the shut-off option to enforce collection for those charges more than four months past due. Though, for any new charges, the city retains the option of shutting off service to enforce collection of those new charges.

Therefore, we advise not to let the debt owed for water service exceed four months before terminating water service. The city's water utility policy should identify when it will exercise the shut-off option.

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What reasonable accommodations must be made for persons with a disability (hearing impaired in this case) who want to attend a public meeting?
Reviewed: 06/16

ADA regulations, specifically 28 CFR § 35.160(b), provide:

(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.
(2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

According to the Department of Justice's Title II Technical Assistance Manual, at II-7.1100:

It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.

See, also, General Effective Communication Requirements Under Title II of the ADA, Chapter 3 of the ADA Best Practices Tool Kit for State and Local Governments (2009).

So, a public agency should be prepared to accommodate a hearing impaired person attending its meetings. The best practice is to consult with the individual to determine how best to provide the accommodation. For example, it may be that providing a sign language interpreter would be a reasonable accommodation in this situation.

Jurisdictions should provide notice about ADA accommodation availability. 28 CFR § 35.163(a) states:

A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.

For public meetings, such notice could be provided in published notices/agendas of upcoming meetings. For example, see this notice on the agenda for a City of Bellevue council meeting (bottom of first page) and a similar notice on the agenda for a City of Battle Ground council meeting (bottom of second page).

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