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Is it legal to pay an independent contractor an hourly rate less than minimum wage?
Reviewed: 11/15

Independent contractors are exempt from minimum wage requirements. See RCW 49.46.010(3)(d) defining "employee" for purposes of the state minimum wage act, to specifically not include "[a]ny individual engaged in the activities of an . . . local government body . . . where the employer-employee relationship does not in fact exist . . ."

As stated by the Department of Labor and Industries (L&I) in its administrative policy on the Minimum Wage Act Applicability, "A bona fide independent contractor is exempt from the MWA (Minimum Wage Act) because that person is not 'employed' by an employer."

The critical thing here is to make sure that the individual is truly an independent contractor. The test for whether someone is an independent contractor depends to a great extent on the amount of control the employer has over the worker. Some guides that may be of use to you (in the event you are unsure whether a worker is an employee or an independent contractor) are:

(Link to this question)

What are the state requirements for development review performance reporting in jurisdictions planning under the Growth Management Act?
Reviewed: 11/15

RCW 36.70B.080(2) contains the reporting requirements relating to development project permit applications:

(a) Counties subject to the requirements of RCW 36.70A.215 and the cities within those counties that have populations of at least twenty thousand must, for each type of permit application, identify the total number of project permit applications for which decisions are issued according to the provisions of this chapter. For each type of project permit application identified, these counties and cities must establish and implement a deadline for issuing a notice of final decision as required by subsection (1) of this section and minimum requirements for applications to be deemed complete under RCW 36.70B.070 as required by subsection (1) of this section.

(b) Counties and cities subject to the requirements of this subsection also must prepare annual performance reports that include, at a minimum, the following information for each type of project permit application identified in accordance with the requirements of (a) of this subsection:

(i) Total number of complete applications received during the year;
(ii) Number of complete applications received during the year for which a notice of final decision was issued before the deadline established under this subsection;
(iii) Number of applications received during the year for which a notice of final decision was issued after the deadline established under this subsection;
(iv) Number of applications received during the year for which an extension of time was mutually agreed upon by the applicant and the county or city;
(v) Variance of actual performance, excluding applications for which mutually agreed time extensions have occurred, to the deadline established under this subsection during the year; and
(vi) The mean processing time and the number standard deviation from the mean.

(c) Counties and cities subject to the requirements of this subsection must:
(i) Provide notice of and access to the annual performance reports through the county's or city's web site; and
(ii) Post electronic facsimiles of the annual performance reports through the county's or city's web site. Postings on a county's or city's web site indicating that the reports are available by contacting the appropriate county or city department or official do not comply with the requirements of this subsection.

(Emphasis added.)

Here are some examples of annual performance reports from Washington cities:

(Link to this question)

Request for information on the regulation of food trucks.
Reviewed: 11/15

MRSC's webpage, Regulation of Peddlers, Solicitors, Temporary Merchants, and Mobile Vendors, includes information about how various jurisdictions deal with mobile vending such as food trucks, including legal issues and examples of regulations. In addition, here are links to regulations from several jurisdictions to show how they've dealt with food trucks:

  • Des Moines Municipal Code Ch. 5.57 - Mobile and Itinerant Vendor Code
  • Edmonds Municipal Code Ch. 4.12 - Peddlers, Solicitors and Street Vendors
  • Enumclaw Municipal Code Ch. 5.60 - Solicitors and Mobile Vendors
  • Everett Municipal Code Ch. 5.84 - Mobile Food Units
  • Lacey Municipal Code Ch. 16.70 - Street Merchants
  • Mount Vernon Municipal Code Ch. 17.92 - Development and Permit Requirements for Mobile Food Vans and Espresso Stands
  • Pierce County Code Ch. 5.10 - Peddlers and Solicitors

Here are examples of information from Seattle and King County made available to businesses considering establishing a mobile food business:

Finally, an easily overlooked issue is the leasehold excise tax. If a food truck proposes to locate on public property, such as a park or public space other than a street right-of-way, you may also need to consider the leasehold excise tax. Most leases of publicly owned real and personal property in the state are subject to a leasehold excise tax in lieu of a property tax. See chapter 82.29A RCW. An easy way to determine whether leasehold excise tax must be paid, is to ask the following question: "If the lessee owned the property, would the party have to pay property tax?" If the answer is "yes," then leasehold excise tax must be paid. If the answer is "no," then no tax is due. When the food truck/vendor is leasing space from the city, they are subject to the leasehold excise tax.

(Link to this question)

Can a local government request or require access to a job candidate's Facebook page as part of its hiring process?
Reviewed: 11/15

No, that cannot be done. Pursuant to RCW 49.44.200(1), an employer, including a public employer, may not:

  • Request, require, or otherwise coerce an employee or applicant to: (1) disclose login information for personal social networking accounts; or (2) access their account in the employer's presence in a manner that enables the employer to observe the contents of the account;
  • Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the account;
  • Request or require an employee or applicant to alter the settings on the account that affect a third party's ability to view the contents of the account; or
  • Take adverse action against an employee or applicant for refusal to provide login information, access the account in the employer's presence, add a person to contact lists, or alter the account settings.

(Link to this question)

Does the town need to send proposed amendments to procedural development regulations to the Department of Commerce at least 60 days prior to adoption?
Reviewed: 10/15

RCW 36.70A.106(1), which requires that proposed amendments to comprehensive plans and development regulations in GMA jurisdictions be submitted to the Department of Commerce (DOC) at least 60 days prior to adoption, makes no distinction between substantive and procedural development regulations. So, the language of the statute would seem to require that changes to procedural regulations also be submitted for this 60-day review. However, it's our understanding that, as a practical matter, DOC does not look at or have the time to review amendments to development regulations that are solely procedural.

Nevertheless, it appears that strict compliance with this requirement is necessary, according to the Growth Management Hearings Board. In Cameron-Woodard Homeowners' Association v. Island County, Order on Dispositive Motion, WWGMHB Case No. 02-2-0004 (2002), confronted this issue directly and held that procedural amendments must be submitted to CTED (now Department of Commerce) under RCW 36.70A.106(1):

For the first time, this case singularly presents the issue of whether compliance can be found for a DR amendment which was submitted not in compliance with RCW 36.70A.106. Regardless of the convenience to the Department and to the various local governments involved, we do not find any language in the GMA which distinguishes between regular, "procedural" or ministerial amendments. RCW 36.70A.106 was adopted in 1991 and has not been amended since that time. It specifically provides that a county "shall notify the Department of its intent to adopt amendments". The notice must be "at least 60 days prior to final adoption." There is no room for interpretation of this statute as the language is direct and specific.

We do not have the authority, as the County implies, to overlook a failure to comply. The GMA is clear that if a Board finds a failure to comply, it must remand the matter to the County to cure the noncompliance.

In order to comply with the GMA, the County must submit Ordinance C-159-01 to the Department anew. It is not sufficient that the ordinance was submitted subsequent to its adoption in order to comply with this portion of the statute. The submission must be accompanied by a notice indicating that 60 days are available for review and that comments by "state agencies, including the department" will be considered as if final adoption had not yet occurred.

So, the town should send its proposed amendment to procedural development regulations to DOC at least 60 days prior to adoption.

If time is an issue, however, another option would be for the local government to request “expedited review” for any minor changes to its development regulations (whether procedural or non-procedural), as allowed under RCW 36.70A.106(3)(b). This type of request may be granted by DOC, after consultation with other state agencies, if it determines that the request will not compromise its ability to provide timely comments. Cities and counties may adopt proposed amendments “immediately following the granting of the request for expedited review.”

Note: In the specific hearings board case cited above, the procedures were factually determined to be part of the development regulations in question. Many local governments, however, have created a “development permit procedures and administration” chapter in their codes, separate and distinct from their specific development regulations. This separate type of chapter addresses the processes and timelines for a wide variety of regulations (from electrical and building codes to subdivision and zoning codes), and does not include specific “controls placed on development or land use activities” (from the definition of development regulation contained in RCW 36.70A.030). It is unclear whether or not the hearings board would view a separate “permit procedures and administration” chapter as being part of a local government’s development regulations.

(Link to this question)

What county offices and/or functions are required to be located in the county seat?
Reviewed: 10/15

The offices and/or functions required to be at the county seat are the following:

Then there are a few, obscure types of meetings or hearings that must be held at the county seat:

Note Thurston County v. City of Olympia, 151 Wn.2d 171, 178 (2004), where the court concluded that "at the county seat" does not mean "near to" or "in close proximity to" the county seat, adopting "a narrow definition of the word 'at' to mean 'in' or 'within' the county seat . . . ."

(Link to this question)

Request for information relating to the regulation of WATVs on city streets including which cities have adopted ordinances allowing their use on city streets.
Reviewed: 10/15

These types of vehicles are addressed in state law as "wheeled all-terrain vehicles" (WATV).  RCW 46.09.310(19) defines "Wheeled All-Terrain Vehicle" as:

(a) any motorized nonhighway vehicle with handlebars that is fifty inches or less in width, has a seat height of at least twenty inches, weighs less than one thousand five hundred pounds, and has four tires having a diameter of thirty inches or less, or (b) a utility-type vehicle designed for and capable of travel over designated roads that travels on four or more low-pressure tires of twenty psi or less, has a maximum width less than seventy-four inches, has a maximum weight less than two thousand pounds, has a wheelbase of one hundred ten inches or less, and satisfies at least one of the following: (i) Has a minimum width of fifty inches; (ii) has a minimum weight of at least nine hundred pounds; or (iii) has a wheelbase of over sixty-one inches.

With respect to their operation on city streets, RCW 46.09.455(1) provides, in relevant part:

A person may operate a wheeled all-terrain vehicle upon any public roadway of this state, not including nonhighway roads and trails, having a speed limit of thirty-five miles per hour or less subject to the following restrictions and requirements:


(d)(i) A person may not operate a wheeled all-terrain vehicle on a public roadway within the boundaries of a city or town, not including nonhighway roads and trails, unless the city or town by ordinance has approved the operation of wheeled all-terrain vehicles on city or town roadways, not including nonhighway roads and trails.

So, WATVs may not be operated on city streets unless the city has adopted an ordinance to specifically authorize their use and the streets on which they are allowed have a speed limit of 35 mph or less. RCW 46.09.455(1). If a city does authorize their use, it must on the main page of its website identify the public roadways on which WATVs are allowed. RCW 46.09.455(1)(d)(ii).

In addition, RCW 46.09.360, relating to regulation of WATVs by local governments, provides in part:

Notwithstanding any of the provisions of this chapter, any city, town, county, or other political subdivision of this state, or any state agency, may regulate the operation of nonhighway vehicles on public lands, waters, and other properties under its jurisdiction, and on streets, roads, or highways within its boundaries by adopting regulations or ordinances of its governing body, provided such regulations are not less stringent than the provisions of this chapter.

This means the state has not entirely preempted the field and cities can enact additional regulations governing WATVs as long as the regulations are not less stringent than the state regulations.

For more information, see our July 23, 2013 MRSC Insight blog post, All-Terrain Vehicles Renamed and Rolling, and the Final Bill Report for ESHB 1632.

Although we have not surveyed cities on this topic, we are aware of a number that have adopted ordinances to allow and regulate wheeled all-terrain vehicles within their city limits. See, for example:

(Link to this question)

Can a municipal utility charge a late fee to customers who say they didn't receive bill?
Reviewed: 10/15

Nothing in state law that addresses this. But we think it is a defensible (and common) policy, because utility customers, when assessed a late penalty, could otherwise simply state that they did not receive a billing and there would be no way for the utility to prove that they did. Sending all billings through registered mail would be cumbersome and expensive.

We recommend that the utility's policies clearly state this - that failure of customer to receive a billing mailed by the city does not prevent assessment of a late penalty.

(Link to this question)

For a public records request: can the city charge for the cost of a disc and can the city pass on the cost of having the disc created if it does not have the ability to do that in-house?
Reviewed: 10/15

For a public records request, a city may charge for the actual cost of the disc used to contain the electronic public records requested. The best practice is to include such a fee in your city's fee schedule outlining the copying, scanning, and related charges associated with PRA requests.

Washington courts have upheld an agency's authority to impose reasonable charges pursuant to an established fee schedule. For example, in Gronquist v. Dep't of Corr., 159 Wn. App. 576, 583-84 (2011), the court explains in relevant part:

An agency shall not charge a fee for inspecting public records or for locating public documents and making them available for copying. RCW 42.56.120. But an agency may impose a reasonable charge for providing copies of public records, so long as the charges do not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying. RCW 42.56.120.

So the key is to make sure that the fee schedule adopted is based on actual and reasonable costs associated with providing copies of public records, not including costs associated with the inspection of or time spent locating public records by city staff.

If the city doesn't have the capability itself to transfer the requested records to a disc or other electronic storage device, it may charge a reasonable fee to cover the actual costs of hiring a third party to do the work. For example, MRSC's Public Records Act Handbook states that "If a local government has to pay an outside source for making duplicates of records such as photographs, blueprints or tape recordings, those costs must be charged to the requestor."

Finally, here are some examples of fee schedules from agencies that identify the charge for the discs used in responding to public records requests:

(Link to this question)

Can a school district act as a lead agency for SEPA compliance?
Reviewed: 09/15

Yes, a school district can (actually, should) act as the lead agency regarding a project it proposes. WAC 197-11-926(1) states in part:

When an agency initiates a proposal, it is the lead agency for that proposal. If two or more agencies share in the implementation of a proposal, the agencies shall by agreement determine which agency will be the lead agency.

"Agency" is defined in WAC 197-11-714(1) as follows:

"Agency" means any state or local governmental body, board, commission, department, or officer authorized to make law, hear contested cases, or otherwise take the actions stated in WAC 197-11-704, except the judiciary and state legislature. An agency is any state agency ( WAC 197-11-926) or local agency ( WAC 197-11-762).

"Local agency" under WAC 197-11-762, referenced above in WAC 197-11-714(1), is defined as "any political subdivision, regional governmental unit, district, municipal or public corporation, including cities, towns, and counties and their legislative bodies." (My emphasis.)

Lastly, WAC 197-11-704, also referenced above in WAC 197-11-714(1) (“any . . . local governmental body . . . authorized to . . . otherwise take the actions stated in WAC 197-11-704. . .”) includes within the definition of “project action”:

 . . . agency decisions to:
(i) . . . fund, or undertake any activity that will directly modify the environment, whether the activity will be conducted by the agency, an applicant, or under contract.

(Link to this question)

We authorized a councilmanic TBD fee of $20 over two years ago. Can we authorize another $20.00? When would the fee begin?
Reviewed: 09/15

Yes, the transportation benefit district (TBD) can authorize an additional, nonvoted (councilmanic) $20 license fee on August 2nd, per Section 309 of the 2015 transportation funding bill, . That section, which went into effect on July 15, amends RCW 36.73.065 to state that a TBD can increase that fee to $40 "if a vehicle fee of twenty dollars has been imposed for at least twenty-four months." The legislation does not directly define "imposed," but RCW 36.73.065(4) states in part that "A district that includes all the territory within the boundaries of the jurisdiction, or jurisdictions, establishing the district may impose by a majority vote of the governing board of the district the following fees and charges . . . ." (Our emphasis.) Based on that emphasized language, we conclude that it is the vote to authorize the license fee that "imposes" the fee.

As such, the additional $20 fee can now be authorized/imposed by the TBD, because more than two years have expired since the $20 fee was imposed. However, the Department of Licensing would not start collecting the fee until six months after it is imposed. See RCW 82.80.140(4) ("No fee under this section may be collected until six months after approval under RCW 36.73.065").

For more information on the 2015 legislation affecting TBDs, see New Legislation Affecting Transportation Benefit Districts, MRSC Insight, 8/6/2015.

(Link to this question)

Can local governments regulate religious, political, or charitable solicitation?
Reviewed: 09/15

Cities may not impose licensing, permitting, or registration requirements on religious solicitations (Watchtower Bible and Tract Society v. Village of Stratton, 536 U.S. 150 (2002)), or on political and charitable solicitations (Peace Action Coalition v. City of Medina, Case No. C00-1811C (W.D. WA, 2000), but it may impose reasonable time, place, and manner restrictions on them. The First Amendment allows such restrictions on protected speech provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989).

We were unable to find a current link to the Peace Action Coalition decision, cited above, which was an unpublished order by the federal district court, but here is how we describe that decision on our Regulation of Peddlers, Solicitors, Temporary Merchants and Mobile Vendors webpage:

While there are no reported Washington court decisions on the validity of "Green River" ordinances, on November 3, 2000, U.S. District Court Judge John C. Coughenour issued an order (Peace Action Coalition v. City of Medina, Case No. C00-1811C) enjoining the city of Medina from enforcing its municipal ordinance regulating peddlers and solicitors.

The city of Medina had a requirement that all solicitors and peddlers must register with the police department and submit to a criminal background check. The lawsuit did not challenge the portion of the ordinance that regulated the conduct of commercial activities, defined as peddling. However, the judge did enjoin the portion of the ordinance that applied the registration/background checks to political, religious and charitable organizations. (A number of cities still do require a criminal background check to commercial solicitors.)

In the words of the court, "the relevant portions of the Medina Municipal Code constitute an improper prior restraint on speech protected by the First Amendment, and are impermissibly overbroad and vague, chilling constitutionally protected speech."

(Link to this question)

Is there any statute or court decision that states that lateral utility lines connecting a private property to the municipality's main utility line are the responsibility of and owned by the private property owner -- not the city?
Reviewed: 08/15

We are not aware of any statute or case that directly address your question; however, MRSC has advised in the past that lateral utility lines, such as a side sewer, connecting private property to the municipality's main utility line are the responsibility of and owned by the private property owner, even if a portion of that line is located in the right-of-way.

Typically, a city right-of-way is only an easement, with the adjacent property owning the underlying fee title. Also, side sewers are installed at private, not public, expense by the developers/property owners who want sewer service to their private property. These side sewers serve a private, not a public, purpose in that they are benefitting private property interests and not the public sewer system as a whole. If the city assumes responsibility for side sewer repair or replacement, it could be considered a gift of public funds, contrary to article 8, section 7 of the Washington State Constitution, unless the city can show that the private benefit resulting from city improvements to the side sewers is merely incidental to the resulting public benefit, such as increasing sewer capacity. See AGO 2009 No. 5.

(Link to this question)

Looking for recommended requirements for petty cash handling and department self-audits.
Reviewed: 08/15

Internal controls, including those for petty cash funds are an integral part of any organization's financial and business policies and procedures. The use of petty cash funds should be limited by your organization.

The Association of Public Treasurers' Guide to Internal Controls section on petty cash funds states that internal controls for these funds should include the following:

  • The petty cash fund should be locked in a secure place.
  • Access to petty cash should be restricted to the custodian and the backup person; and disbursed by these two individuals as well.
  • Require original receipts in order to disburse petty cash and maintain the receipts in the petty cash fund box for reconciling.
  • The individual to be reimbursed should indicate on the original receipt or petty cash receipt the business purpose and the fund and the account to be charged.
  • The original receipt should be approved and signed by the department head.
  • The petty cash fund should not be used for personal expenses, personal loans, or cashing of personal checks.
  • The custodian of the petty cash fund is responsible for reconciling the petty cash fund account.
  • The department head should perform periodic, surprise counts of the petty cash fund.
  • Any shortage in the fund should be investigated, analyzed, and documented.

Additionally, the petty cash fund should be evaluated to determine if a procurement card may be of better use for the organization.

Departmental self-audits are done to improve internal control and are the responsibility of management. They should be done to evaluate whether policies and procedures are operating efficiently and also provide recommendations for improvement.

The MRSC webpage on Petty Cash Funds includes information on petty cash policies per the BARS Manual and includes code provisions.

The Washington State Auditor's Office Local Government Performance Center, Internal Controls Checklist for Local Governments, is a great departmental self-assessment in which you can use to evaluate areas in which new policies or improvements are needed.

Additionally, the Association of Public Treasurers' Guide to Internal Controls is a guidebook that can be purchased on the Association's website. This guidebook could be used to implement internal control functions agency-wide.

(Link to this question)

What is ordinary maintenance, and is it considered public work?
Reviewed: 08/15

The definition of "public work" in RCW 39.04.010(4) excludes "ordinary maintenance":

(4) "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance …

However, that’s not the end of the story. “Ordinary maintenance” is not defined by statute, but a regulation adopted by the Department of Labor and Industries (L&I), WAC 296-127-010(7)(b)(iii), defines it as follows, for purposes of prevailing wage requirements:

7(b)(iii) Ordinary maintenance which is defined as work not performed by contract and that is performed on a regularly scheduled basis (e.g., daily, weekly, monthly, seasonally, semiannually, but not less frequently than once per year), to service, check, or replace items that are not broken; or work not performed by contract that is not regularly scheduled but is required to maintain the asset so that repair does not become necessary.

(Emphasis added.) Under this definition, for example, programmatic tree trimming and cleaning catch basins and sewer/storm mains would be ordinary maintenance, if performed by agency forces.

So, what about ordinary maintenance that is contracted out?

Under L&I’s definition above, ordinary maintenance that is contracted out is subject to prevailing wage requirements, which is what L&I cares about. In Spokane v. Department of Labor and Industries, 100 Wn. App. 805, 819-20 (2000), the state court of appeals approved of L&I’s definition and concluded that ordinary maintenance, when performed by contract, is "public work" subject to prevailing wage law.

But, is ordinary maintenance when performed by contract considered a “public work” for all other purposes – bid limits, bonds, and retainage? We think likely so, because there are not really two types of “public work,” one subject only to prevailing wages and the other also subject to all the other requirements that otherwise apply to public works. Although some agencies and their attorneys take the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, the safer position is, of course, to treat contracted ordinary maintenance as a public work to which the following apply: prevailing wages, bid and performance bonds, retainage, and competitive bidding if above the applicable statutory threshold for bids.

MRSC's position is that agencies should approach all maintenance projects conservatively and treat them as public works, subject to prevailing wages and all other public works requirements. Except for relatively small contracts, competitive bids or quotes are good business practices. And if your agency subscribes to the position that contracted ordinary maintenance is not a public work except for prevailing wage purposes, you lose the protection that bonding and retainage provide.

(Link to this question)

Request for examples of rental housing licensing programs.
Reviewed: 08/15

Please see the following code provisions establishing such programs:

  • Mountlake Terrace Municipal Code Ch. 15.45 - Residential Rental Business License and Inspection Program
  • Toppenish Municipal Code Ch. 5.35 - Residential Rental Units
  • Prosser Municipal Code Ch. 15.30 - Rental Licenses
  • Sunnyside Municipal Code Ch. 5.02 - Residential Rental Units – Licensing – Crime Free Rental Housing Program

The 2010 Legislature specifically authorized local rental inspection programs, subject to certain requirements. See RCW 59.18.125. Cities adopting a rental inspection/licensing ordinance must comply with RCW 59.18.125.

(Link to this question)

When a request for records has been abandoned (more than 30 days have gone by after notification that the requested records are available, or more than 30 days have gone by without an answer to a request for clarification), what if any notification needs to be sent to the requestor?
Reviewed: 08/15

In our opinion, the county should send a closing letter informing the requestor that the request was closed and the reason why. We base our opinion on the guidance offered by the following provision of the Attorney General's Model Rules for the Public Records Act:

A records request has been fulfilled and can be closed when a requestor has inspected all the requested records, all copies have been provided, a web link has been provided (with assistance from the agency in finding it, if necessary), an unclear request has not been clarified, a request or installment has not been claimed or reviewed, or the requestor cancels the request. An agency should provide a closing letter stating the scope of the request and memorializing the outcome of the request. A closing letter may not be necessary for smaller requests. The outcome described in the closing letter might be that the requestor inspected records, copies were provided (with the number range of the stamped or labeled records, if applicable), the agency sent the requestor the web link, the requestor failed to clarify the request, the requestor failed to claim or review the records within thirty days, or the requestor canceled the request. The closing letter should also ask the requestor to promptly contact the agency if he or she believes additional responsive records have not been provided

WAC 44-14-04006(1) (emphasis added).

Although this model rule states that a closing letter may not be necessary for smaller requests, MRSC recommends that a closing letter be sent for all records requests, regardless of size, in order to notify the requestor of their abandonment of the request.

(Link to this question)

Can the city hire an outside firm to assist in going through the city's records to meet a PRA request?  If yes, can the city charge the requestor for the actual cost for this service?
Reviewed: 08/15

Yes, the city may hire an outside firm to help it meet the request, but the city may not charge the requestor the cost of hiring the outside firm. The PRA, at RCW 42.56.120, states:

No fee shall be charged for the inspection of public records.  No fee shall be charged for locating public documents and making them available for copying. A reasonable charge may be imposed for providing copies of public records . .

(Our emphasis.)

If the city has limited staff to devote to the request and has other important time commitments that should be taken into account in providing the requestor with the reasonable estimate of the time it will take to respond to her request. There is no required time period in which the city is required to provide the records for inspection or copying, although it does have the five-day initial response requirement, per RCW 42.56.520 and as noted on the city's records request form.

(Link to this question)

Must members of a city public facilities district board of directors be city residents?
Reviewed: 07/15

State law does not require that the members of a public facilities district (PFD) board of directors be city residents. RCW 35.57.010((3)(a), which addresses the board of directors of a single-city PFD, states in relevant part as follows:

A public facilities district created by a single city or town shall be governed by a board of directors consisting of five members selected as follows: (i) Two members appointed by the legislative authority of the city or town; and (ii) three members appointed by legislative authority based on recommendations from local organizations. The members appointed under (a)(i) of this subsection, shall not be members of the legislative authority of the city or town. The members appointed under (a)(ii) of this subsection, must be based on recommendations received from local organizations that may include, but are not limited to the local chamber of commerce, local economic development council, and local labor council.

As you can see, the quoted language does not impose any residency requirements.

However, the city ordinance creating the PFD may establish residency requirements, so you should check that ordinance, if you have not already done so.

(Link to this question)

Can lodging tax revenues be used to purchase fireworks for 4th of July activities?
Reviewed: 07/15

RCW 67.28.1816 allows lodging tax revenues to be spent for "tourist promotion," and RCW 67.28.080(6) defines that term to include "the operation of special events and festivals designed to attract tourists." A fireworks display for 4th of July activities can, in our opinion, qualify as part of the operation of a special event to attract tourists as well as local residents. The 4th of July event should, however, be intended to draw tourists to the city and be more than just a local celebration.

MRSC has a webpage on the lodging tax that you may find helpful.

(Link to this question)

Request for information on regulating the keeping of chickens in residential zones.
Reviewed: 07/15

First, you may want to take a look at our web page on "Regulating Livestock and Other Farm Animals." This page includes several city code provisions regulating animals, including chickens.

See also:

Here are a few sample ordinance and code provisions regulating the keeping of chickens:

If you would like to review more examples, you can search for the keyword "chickens" on Code Publishing's multiple code search tool. Be sure to check the "Washington" box before you start the search so you can limit your results to Washington cities and towns.

(Link to this question)

May a governing body go into executive session even if it is not on the meeting agenda?
Reviewed: 07/15

Yes. However, if a governing body intends in advance of a regular meeting to hold an executive session, it should be listed on the agenda for the regular meeting. Under RCW 42.30.077, that agenda must be made available online at least 24 hours in advance of the regular meeting, unless the agency does not have a website or if it employs fewer than 10 full-time equivalent employees. This requirement does not, however, prevent a governing body from holding an executive session when it is not listed on the meeting agenda. The need to hold an executive session may arise during the course of a meeting – or the executive session may have been inadvertently left off the meeting agenda.

If the executive session is intended to be held at a special meeting, it should be listed on the notice of the special meeting. RCW 42.30.080 sets out the requirements for special meeting notice. But, as with a regular meeting, the need to hold an executive session may arise during the course of a special meeting, and a governing body may hold an executive session at a special meeting even if it is not listed on the meeting notice. RCW 42.30.080 states that a governing body may not take final action in a special meeting on a matter not listed on the meeting notice, but a governing body may not take final action on any matter in executive session.

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May the council meet in executive session to finalize questions to ask candidates for appointment to fill a council vacancy?
Reviewed: 07/15

No. There is no provision in RCW 42.30.110, which authorizes executive sessions, that would allow a closed meeting to finalize questions to ask candidates who want to fill a council vacancy. The closest provision would be that which allows an executive session to consider the qualifications of candidates for appointment to fill a council vacancy. However, the exceptions to open meetings are to be narrowly construed, and discussing questions to ask candidates at an oral interview is distinguishable from a discussion of candidate qualifications.

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If a city publishes an interlocal agreement on its website to satisfy the requirements of RCW 39.34.040, must that agreement remain posted on the website after the agreement is no longer in effect? Can superseded and expired interlocal agreements be removed from the city's website?
Reviewed: 07/15

Since RCW 39.34.040 does not specify how long an agreement must remain on an agency's website, we think the city has discretion as to how long to keep it posted. Removing an agreement from the website when it expires or is superseded seems like a sensible policy to us.

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Is the county required to allow in the courthouse all animals claimed to be service animals? Can the county ask for some sort of certification regarding the service animal?
Reviewed: 06/15

See the U.S. Department of Justice, Civil Rights Division ADA publication entitled ADA 2010 Revised Requirements - Service Animals (July 2011). This publication discusses general protections for service animals under both Title II (State and local government services) and Title III (Public accommodations and commercial facilities). It provides an overview of the issues you are asking about, including how service animals are defined, where service animals are allowed, what inquiries can be made concerning the status of service animals, and conditions that warrant removal of a service animal from the premises.

In regard to your specific questions, note the following relevant discussion from this DOJ publication:

When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person's disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

The work or task a service animal has been trained to provide must be directly related to the person's disability. Animals whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

The DOJ publication goes on to identify two circumstances under which the local government can ask a person with a disability to remove his service animal from the premises:

A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal's presence.

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