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What is the municipality's obligation as to the accumulation of snow and ice on streets?
Reviewed: 02/16

The duty as to ice on streets or roads is discussed in Leroy v. State, 124 Wn. App. 65, 68-69 (2004):

The State has a duty of ordinary care to make its roads reasonably safe for ordinary travel. That duty is conditional, however, for it arises only when the State has notice of, and time to correct, the hazard in question. In short, according to Niebarger v. City of Seattle, [53 Wash. 2d 228 (1958)] the State "must have (a) notice of a dangerous condition which it did not create, and (b) a reasonable opportunity to correct it before liability arises for negligence from neglect of duty to keep the streets safe."

See also, Wright v. Kennewick, 62 Wn.2d 163, 167 (1962) ("Here, the evidence was that the snow had been on the ground no more than 2 days, and the most recent crust of ice had formed only a few hours earlier. It is plain that the city had not had a reasonable opportunity to remove it."); Bird v. Walton, 69 Wn. App. 366, 368-69 (1993) (The Department of Transportation met its obligation to correct the dangerous condition where it "engaged almost continuously in attempting to sand [an icy] highway, up to the moment of the accident.").

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The council is considering a salary increase for the town mayor and council. What does state law require in that regard?
Reviewed: 01/16

For the purposes of this response, we will presume that the town doesn't have a salary commission.

A key provision related to town mayor and councilmember salaries and reimbursement for expenses is RCW 35.27.130, which provides in part:

The mayor and members of the town council may be reimbursed for actual expenses incurred in the discharge of their official duties upon presentation of a claim therefor and its allowance and approval by resolution of the town council. The mayor and members of the council may also receive such salary as the council may fix by ordinance.

In accordance with RCW 35.27.130, councilmember and mayoral salaries must be adopted by ordinance.

If the council wishes to increase councilmember salaries, that increase cannot apply to the current term of office of any councilmember. Article 11, Section 8 of the Washington Constitution prohibits a town council from increasing the salary of its members after their election or during their term of office. It provides (emphasis added):

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

Article 30, section 1, referenced above, provides that elected county, town, city, or municipal officers who don't fix their own compensation can have their salaries increased during their terms of office. As such, the council may, by ordinance, increase the mayor's salary and have the increase be effective immediately (or otherwise during the mayor's current term of office), as long as the mayor's vote isn't needed to break a tie vote to pass the increase (and usually the mayor doesn't vote on this type of matter, so this shouldn't be an issue).

Regarding reimbursement for allowable expenses, RCW 35.27.130 provides that councilmembers and the mayor "may be reimbursed for actual expenses incurred in the discharge of their official duties upon presentation of a claim therefor and its allowance and approval by resolution of the town council." RCW 35.27.130 also addresses the process related to specific requests for reimbursement.

We recommend that the council, if it hasn't already done so, adopt a resolution or ordinance that describes the criteria it will use to determine the types of requests it will approve under RCW 35.27.130.

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Can you provide a link to the most current data on assessed valuation of Washington cities?
Reviewed: 01/16

Two sources will provide you with the most current data on the assessed valuation of Washington cities.

The first source is the MRSC Population, Property, and Sales Tax Archive webpage, which contains links to PDF and Excel versions of assessed valuation for Washington cities and counties from 2012 to 2014.

The second source is the Department of Revenue Property Tax 2015 Statistics document. This file contains significantly more data beyond just the assessed valuations. It additionally provides current levies, levy rates, new construction values, and statutory levy limit information for all taxing districts across the state.

The Department of Revenue (DOR) has recently updated its property tax webpage to include a property tax statistical data portal that allows for the selection of data to be viewed. DOR will now be providing more timely information and periodic updates to tables throughout the year, instead of just once a year.

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Does MRSC have a template or a step-by-step process by which a city can follow in order to establish a transportation benefit district?
Reviewed: 01/16

MRSC does not have a template or a step-by-step process that a city can follow in establishing a transportation benefit district (TBD), though the resources on our TBD webpage should help in going through that process. The process goes roughly like this (for a TBD that consists of the same boundaries as the city):

  1. The city council holds a hearing on the proposed TBD, in accordance with RCW 36.73.050.
  2. The city council adopts an ordinance establishing the TBD, consistent with RCW 36.73.050(2). Our TBD webpage provides some examples of such ordinances. These ordinances are helpful in showing the process the respective jurisdictions went through in adopting the ordinances and regarding what is to be done after the ordinance is effective.
  3. The city council thereafter acts as the TBD board.
  4. The necessary fund(s) must be established to carry out the operation of the TBD.
  5. The TBD board (the city council acting as the TBD board) adopts charter/bylaws/rules of procedure to govern its operation. See, e.g., Mercer Island TBD board meeting agenda packet, 11/17/2014; Snohomish TBD board agenda, with attachments, 12/7/2010.

The exact process varies from city to city. There is no particular timetable under which this process must occur. To fill in the blanks in the steps outlined above, you may want to contact one or more of the jurisdictions that have established a TBD. Here is a list of the jurisdictions that have established a TBD.

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Are there any state mandated requirements for the position of police chief in a city?
Reviewed: 01/16

Yes, state law provides a list of eligibility requirements that apply to the position of police chief in all cities with a population of more than 1,000 in RCW 35.21.333:

(1) A person seeking appointment to the office of chief of police or marshal, of a city or town, including a code city, with a population in excess of one thousand, is ineligible unless that person:
(a) Is a citizen of the United States of America;
(b) Has obtained a high school diploma or high school equivalency certificate as provided in RCW 8B.50.536;
(c) Has not been convicted under the laws of this state, another state, or the United States of a felony;
(d) Has not been convicted of a gross misdemeanor or any crime involving moral turpitude within five years of the date of application;
(e) Has received at least a general discharge under honorable conditions from any branch of the armed services for any military service if the person was in the military service;
(f) Has completed at least two years of regular, uninterrupted, full-time commissioned law enforcement employment involving enforcement responsibilities with a government law enforcement agency; and
(g) The person has been certified as a regular and commissioned enforcement officer through compliance with this state's basic training requirement or equivalency.

Also, RCW 35.21.334 provides that no city may appoint a person to be chief of police until the agency had conducted a thorough background investigation of the candidate.

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Under what authority did the Seattle City Council raise the minimum wage?
Reviewed: 12/15

Seattle's minimum wage ordinance was passed under its police power authority to provide for the general health and welfare of its residents and other persons employed within the city. See article 11, section of the state constitution. The ordinance cites its promotion of "the general welfare, health, and prosperity of Seattle by ensuring that workers can better support and care for their families and fully participate in Seattle's civic, cultural, and economic life."

Additionally, the state legislature has specifically authorized local governments to enact more stringent minimum wage standards; RCW 49.46.120 states as follows:

This chapter establishes a minimum standard for wages and working conditions of all employees in this state, unless exempted herefrom, and is in addition to and supplementary to any other federal, state, or local law or ordinance, or any rule or regulation issued thereunder. Any standards relating to wages, hours, or other working conditions established by any applicable federal, state, or local law or ordinance, or any rule or regulation issued thereunder, which are more favorable to employees than the minimum standards applicable under this chapter, or any rule or regulation issued hereunder, shall not be affected by this chapter and such other laws, or rules or regulations, shall be in full force and effect and may be enforced as provided by law.

Note that Seattle's was not the first local minimum wage law in the state; SeaTac enacted one by the initiative process, though it was more limited in its scope than what Seattle's council later enacted. The SeaTac ordinance survived a challenge in the state courts. See Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770 (2015). The Seattle ordinance was unsuccessfully challenged in federal court, but not upon the grounds that Seattle did not have the authority to enact minimum wage requirements. See Int'l Franchise Ass'n v. City of Seattle (9th Cir. 2015).

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May the city impose the criminal justice tax under RCW 82.14.340 and RCW 82.14.450? When is the city required to have the vote to impose this tax? Is the vote city- or county-wide?
Reviewed: 12/15

Under RCW 82.14.450(2)(a), the city council has the authority to present to the voters a sales tax option of up to 0.1%, for criminal justice purposes, as long as the county has not imposed the full 0.3% it is authorized to impose under RCW 82.14.450(1). The maximum combined city and county tax rate is 0.3%. If a city tax is approved by the voters, 15% of the revenues is distributed to the county and the remaining 85% is distributed to the city.

The sales tax measure under RCW 82.14.450(2)(a) may be presented to city voters at either a primary or general election. The vote is city-wide.

Only counties may impose the criminal justice sales tax under RCW 82.14.340, though cities share in the revenues from that tax.

You can use the MRSC Local Ballot Measure Database to review criminal justice sales tax ballot measures that have passed and ballot language used.

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Does MRSC have a guide that outlines a local government's obligations under the Americans with Disabilities Act?
Reviewed: 12/15

MRSC has not published "guide" per se, but we do have an Americans with Disabilities Act webpage that has a wide range of information about local government responsibilities in dealing with the requirements of the ADA. It includes a very useful link to the ADA Document Portal, which provides comprehensive access to statutes, regulations, opinions, and guides regarding the ADA.

The U.S. Department of Justice has just published a new technical assistance guide, ADA Update: A Primer for State and Local Governments, to assist state and local governments in understanding and complying with the ADA's requirements, which you might find useful.

(Link to this question)

Request for examples of zoning or development code provisions that allow for a bonus in density for affordable housing.
Reviewed: 12/15

Density bonus code provisions:

  • Federal Way Zoning Code Sec. 19.110.010 - Affordable Housing Regulations - Multifamily projects over 25 units must provide affordable units, and may then build bonus units. Single family developments have the option of reduced lot size in exchange for affordable units.
  • Kirkland Municipal Code Title 23, Ch. 112 - Affordable Housing Incentives Multifamily - All developments with over four units and located in certain zones must provide some affordable units. Bonus units as an incentive are an option in zones where affordable units are not required. Off-site provision of units or cash payments in lieu of affordable units are options, under certain circumstances.
  • Marysville Municipal Code Ch. 22C.090 - Residential Density Incentives - Bonus available for permanently restricted low-income rental units and low-income senior rental units. Also available for mobile home space for mobile home displaced from closed park.
  • Redmond Zoning Code Sec. 21.20.070 - Bonus for Senior Affordable Housing; requires an Affordable Housing Agreement
  • Shoreline Municipal Code Sec. 20.40.230 - Example of simple density bonus code for affordable housing
  • Snohomish Municipal Code Ch. 14.285 - Low-Income Housing Incentives - Smaller city example. Bonus and reduced parking available for certain multi-family and senior housing developments.

Other:

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Can exempt staff be given compensatory time? Can it be posted on an hour-for-hour basis?
Reviewed: 11/15

Yes, exempt staff can be given compensatory time. The Washington State Public Employer Overtime Guide has the following to say on the subject:

Comp time for exempt personnel Many Washington employers have formal or informal policies of paying comp time to exempt personnel. As a basic matter, an employer is free to set any terms concerning accrual and use of comp time for employees not covered by the FLSA . . . . The Ninth Circuit, the Department of Labor and the Washington Supreme Court (interpreting the Washington Minimum Wage Act) have all concluded that comp time on top of salary is legal.

Public employers' authority to set their own terms governing the payment of comp time to exempt employees, as stated above, appears to stem from 29 C.F.R. §§ 553.28(c), (d), and (e).

Generally, the FLSA, at 29 U.S.C. § 207(o), limits the amount of comp time that non-exempt employees can be given. However, FLSA exempt employees are not subject to these limitations because the FLSA does not provide for exempt employee comp time. Instead, pursuant to 29 C.F.R. § 553.28(c), exempt employee comp time would likely be considered to be "other" compensatory time, because it is accrued pursuant to a policy adopted by the employer, rather than from a provision of the FLSA. Specifically, 29 C.F.R. § 553.28(e) states that:

The requirements of section 7(o) [i.e., 29 U.S.C. § 207(o)] of the FLSA, including the limitations on accrued compensatory time, do not apply to "other" compensatory time as described above.

So a public employer is free to set its own procedure governing comp time given to exempt employees. Once adopted, any such procedure should be clearly outlined in the employer's personnel policy.

It also appears that comp time for exempt employees can be posted on an hour-for-hour basis. 29 C.F.R. § 553.28(d) states as follows:

The FLSA does not require that the rate at which "other" compensatory time is earned has to be at a rate of one and one-half hours for each hour of employment. The rate at which "other" compensatory time is earned may be some lesser or greater multiple of the rate or the straight-time rate itself.

The city of Edmonds, allows exempt employees to earn comp time:

  • Edmonds Personnel Policy Section 4.4, Compensatory Time
  • Edmonds Municipal Code Section 2.20.020, Application of personnel policies to exempt employees

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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.

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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.

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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.

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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.

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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."

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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.

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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.

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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.

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