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Governance


The town has two newly appointed councilmembers. Do they need to take the same open government training that the elected councilmembers had to take?
Reviewed: 03/17

Yes, a town’s appointed councilmembers will need to complete the open government training no later than ninety days after they either: (1) take the oath of office; or (2) otherwise assume their duties as a public official. Specifically, RCW 42.56.150(1) states as follows (emphasis added):

Each local elected official and statewide elected official, and each person appointed to fill a vacancy in a local or statewide office, must complete a training course regarding the provisions of this chapter, and also chapter 40.14 RCW for records retention.

Similarly, RCW 42.30.205(1) states (emphasis added):

Every member of the governing body of a public agency must complete training on the requirements of this chapter [i.e., the OPMA]. . . .

Just like elected councilmembers, appointed councilmembers are members of the governing body of a public agency (i.e., the town council). Therefore, they must complete the required training.

Our OPMA and PRA Training Requirements Apply to Officials Elected in 2016 blog post provides an overview of some good options for completing the required training online.

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Can city councilmembers attend a planning commission hearing on a subdivision that the city council will later consider based on the planning commission's recommendation?
Reviewed: 03/17

Councilmembers should be cautious about attending a planning commission meeting at which a quasi-judicial matter will be considered.

City councilmembers may attend meetings of the planning commission if the planning commission is meeting in its legislative role. This would include a councilmember acting as the council’s “liaison” to the planning commission. The appearance of fairness doctrine only applies to quasi-judicial actions, so it is generally permissible for councilmembers to attend planning commission meetings regarding legislative actions. For example, the adoption (or update) of a new comprehensive plan for the city is a legislative action, so the appearance of fairness doctrine would not directly apply.

In contrast, caution is warranted with respect to councilmembers attending meetings of the planning commission if the planning commission is meeting on a quasi-judicial matter. The recommendation of the planning commission on quasi-judicial matters usually is forwarded to the council for final action. This raises the possibility that a challenge could be made to a councilmember’s participation when the issue comes before the council for their final decision if the councilmember attended the earlier meeting of the planning commission on the same issue. This is particularly true if the councilmember acted in an advocacy role at the earlier meeting.

Additionally, a policy argument might be made that the independent advisory body should be able to consider their recommendations without undue influence by the legislative body that appointed them to make independent recommendations. Under this policy argument, the presence or active participation of the councilmember in the advisory commissions’ deliberations arguably impairs the ability of the advisory commission to act independently and impartially in making their recommendations.

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In a council-manager code city, does the city manager work for the city council or the city itself? Also, does the manager occupy a separate and distinct branch of government (similar to the federal government)?
Reviewed: 03/17

Under the council-manager plan, the city manager is the head of the executive branch of the city government, which is separate and distinct from the legislative branch, the city council. In other words, the city council makes decisions regarding policy and the city manager administers those policies and supervises city staff.

Although the council retains, under RCW 35A.13.130, the power to appoint and remove the manager by majority vote, RCW 35A.13.120 generally prohibits the city council from interfering in the daily operation of the executive branch. So, a city manager is best characterized as an official/employee of the city, given that the manager is the independent head of the executive branch.

For more information on the relationship between the city manager and the city council, see the following resources:

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Does the city council of a code city have to hold a public hearing to extend a moratorium?
Reviewed: 02/17

The relevant statute for moratoria for code cities is RCW 35A.63.220, which states as follows (emphasis added):

A legislative body that adopts a moratorium or interim zoning ordinance, without holding a public hearing on the proposed moratorium or interim zoning ordinance, shall hold a public hearing on the adopted moratorium or interim zoning ordinance within at least sixty days of its adoption, whether or not the legislative body received a recommendation on the matter from the planning agency. If the legislative body does not adopt findings of fact justifying its action before this hearing, then the legislative body shall do so immediately after this public hearing. A moratorium or interim zoning ordinance adopted under this section may be effective for not longer than six months, but may be effective for up to one year if a work plan is developed for related studies providing for such a longer period. A moratorium of [or] interim zoning ordinance may be renewed for one or more six-month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal.

So, based on this provision, a public hearing is required prior to each extension.

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May a code city compensate its planning commissioners?
Reviewed: 02/17

RCW 35.63.030 states that planning commission members for non-code city cities “shall serve without compensation.” There is no similar language in the code city statutes. RCW 35A.63.020 provides that the city “may create a planning agency and provide for its membership, organization, and expenses.” We think that such language (and the lack of prohibition) would allow a code city to pay its planning commission members.

Some code cities have provided for compensation, including the following:

Bonney Lake Municipal Code Sec. 2.26.060:
Each member of the planning commission shall be compensated in the amount of $50.00 per planning commission meeting attended, including joint meetings of the planning commission and the city council; provided, that no planning commission member shall be compensated for attendance at more than two planning commission meetings per calendar month, including attendance at any joint meetings of the planning commission and the city council; and provided further, that the chair or designee of the planning commission shall, in addition, be compensated $25.00 for attendance at a council meeting where such attendance is required by BLMC 2.26.030. (Ord. 875 § 5, 2001).
Duvall Municipal Code Sec 2.15.040:
Beginning on January 1, 1994, each member of the planning commission shall be paid twenty-five dollars ($25.00) for attendance at each regular meeting of the planning commission and twenty-five dollars ($25.00) for attendance at each special meeting of the planning commission but not to exceed three such special meetings for compensation in one calendar year. (Ord. #690, 1993).
Monroe Municipal Code Sec. 2.32.010:
B. The members shall be selected without respect to political affiliations. They may be reimbursed for expenses necessarily incurred in performing their official duties.
C. Salaries of Commissioners. Each city planning commissioner may be paid for attending commission meetings and workshops an amount not exceeding seventy-five dollars per meeting for not more than one meeting each week. (Ord. 013/2015 § 1; Ord. 004/2011 § 3; Ord. 031/2007 § 1; Ord. 022/2004; Ord. 1044, 1994; Ord. 875, 1988; Ord. 666, 1978).

Several code cities only reimburse for expenses, including the following

Goldendale Municipal Code Sec. 2.48.030:
The members of the planning commission shall serve without compensation, but they shall be reimbursed for expenses necessarily incurred in performing their official duties. The city council shall from time to time, as may be necessary, provide by ordinance for funds for the necessary expenditures and costs of operation of such commission. (Prior code §2.24.030)
Kent Municipal Code Sec. 2.57.020:
F. The appointed members of the land use and planning board shall serve without compensation except that reimbursement for authorized travel and subsistence may be made to the extent such may be budgeted for by the city council. Reimbursement for such shall come from the city budget category designated land use and planning board, travel and mileage and subsistence. (Ord. No. 3512, § 14, 6-6-00).
Maple Valley Municipal Code Sec. 2.35.050:
The members of the Planning Commission shall serve without compensation, but necessary expenses of the Commission actually incurred shall be paid from appropriate City funds. (Ord. O-99-80 § 3; Ord. O-97-15 § 5).
Toppenish Municipal Code Sec. 2.30.070:
All members of advisory commissions shall serve without compensation but may be reimbursed actual training expense upon the prior approval of the city manager. (Ord. 2004-4 § 1, 2004).

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Our code city has a mayor and five councilmembers. If the mayor and two councilmembers (including the mayor pro-tem) are unable to make the meeting, can the other three councilmembers be a quorum
without a mayor or mayor pro-tem?

Reviewed: 01/17

Yes, three councilmembers of a five-member council will constitute a quorum for purposes of holding a meeting of the council, even if the mayor and mayor pro-tem do not attend the meeting. RCW 35A.12.110 provides, in part (our emphasis):

Meetings of the council shall be presided over by the mayor, if present, or otherwise by the mayor pro tempore, or deputy mayor if one has been appointed, or by a member of the council selected by a majority of the councilmembers at such meeting. Appointment of a councilmember to preside over the meeting shall not in any way abridge his or her right to vote on matters coming before the council at such meeting.

Note, too, that RCW 35A.12.120 states, in part, that "At all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business . . . ."

In the situation you described, the three councilmembers who attend the meeting would constitute a quorum and would, at the start of the meeting, select one of those three councilmembers to be the presiding officer for that meeting. The appointment of that councilmember to be the presiding officer for that meeting "shall not in any way abridge his or her right to vote on matters coming before the council at such meeting."

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Do reelected public officials need to be sworn in?
Reviewed: 01/17

Yes, an elected official must take the oath of office every time he or she is reelected. For purposes of the election statutes, RCW 29A.04.133 defines the term “qualified,” when pertaining to a winner of an election, to mean that for such election:

(1) The results have been certified;

(2) Any required bond has been posted; and

(3) The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefore.

We have a very good publication addressing this issue, which will give you more detail. It is called Getting into Office: Being Elected or Appointed into Office in Washington Counties, Cities, Towns, and Special Districts.

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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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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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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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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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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 . . . ."

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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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How many signatures are required on the blanket voucher form if the vouchers have been approved by the city council in a regular meeting?
Reviewed: 05/15

Chapter 42.24 RCW provides for the certification and approval of claims against the municipality. All claims require pre-auditing by the auditing officer and must be certified by the auditing officer as true and just claims against the city. The certification requires signature on either an individual or blanket voucher form that lists the individual claims being certified. The council is required to approve the voucher(s) presented for payment, and, as part of this approval process, the SAO recommends in the BARS Manual that the governing body include appropriate language within the minutes of the meeting to confirm the legislative approval.

The council's signatures on the blanket voucher are not specifically required in the RCW or by the SAO through its prescriptions in the BARS Manual. Council approval in a regularly-scheduled council meeting of vouchers that have been audited, certified, and submitted for approval by the auditing officer on either an individual and/or blanket voucher does not require additional signatures by council on the voucher form. The recording of voucher approval in the minutes is sufficient to meet the requirements of the law.

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We have a planning commission member who would like to participate in the regular planning commission meeting by teleconference. If she calls in, is she considered a member for purposes of a quorum and can she vote on a motion?
Reviewed: 05/15

Remote participation by a member of a governing body, including a planning commission, can count toward a quorum and for voting purposes if that body - the planning commission here - adopts a policy allowing for such remote participation. State law, including the Open Public Meetings Act (OPMA), chapter 42.30 RCW, doesn't prohibit a planning commission from adopting a policy that allows members to participate in a meeting remotely such as via speakerphone or video conferencing. However, there must be two-way communication -- the person on the phone line or video feed must be able to both hear what's happening at the meeting and also be heard by those present at the meeting. Under such circumstances, this would be considered as attendance at the meeting and that person would count toward the quorum and for voting purposes.

We recommend that the planning commission adopt a policy that specifically addresses the issue. If such a policy isn't in place currently, the commission could vote to approve such a policy at the beginning of the meeting and, if that vote passes, the commissioner at issue could then participate remotely. Generally, it's advisable for such policies to restrict such remote participation to limited circumstances. Under such policies, the planning commission is the one to determine in a particular circumstance whether the policy applies.

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May local governments electronically scan all their invoices and save the electronic version instead of the original paper version from the vendor?
Reviewed: 03/15

Yes, that is legal, provided the requirements of the Washington State Archives' Local Government Common Records Retention Schedule (CORE), Version 3.1 (December 18, 2014), are followed. Section 5.5 (Records Conversion) of the records retention schedule, at GS50-09-14, addresses scanning/digitizing "non-archival records" - which would include invoices - and states that such must occur in accordance with the Washington State Requirements for the Destruction of Non-Archival Paper Records After Imaging, or they may be "Scanned/digitized in accordance with a valid approval by Washington State Archives' legacy processes (Electronic Imaging System (EIS) or Early Destruction After Digitization (DAD)."

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May a councilmember vote to approve the minutes for a meeting he or she missed?
Reviewed: 01/15

In our opinion, a councilmember may vote on the approval of minutes for a meeting whether he or she was actually present at the meeting, unless the city council has a specific rule of procedure that provides otherwise. There is no statute that addresses this issue.

Robert's Rules of Order, which many city councils adopt by reference, states at Section 41, page 355:

It should be noted that a member's absence from the meeting for which minutes are being approved does not prevent the member from participating in their correction or approval.

We see nothing improper with following this approach.

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Is the mayor's bond amount set by the state or by the town council? 
Reviewed: 12/14


RCW 35.27.120 governs bonds required of town officials, but it does not require that the mayor execute a bond; it provides:

The clerk, treasurer, and marshal before entering upon their respective duties shall also each execute a bond approved by the council in such penal sum as the council by ordinance may determine, conditioned for the faithful performance of his or her duties including in the same bond the duties of all offices of which he or she is made ex officio incumbent.

However, we believe that a town council may by ordinance establish a policy requiring that the mayor execute a bond. The amount of the bond would, of course, be established in the ordinance requiring the bond.

Related to this issue is RCW 48.28.040, which imposes on the town the responsibility to pay the premiums of the official bonds that state law or town ordinance requires of its appointive and elective officers. In relevant part, RCW 48.28.040 provides:

The premium for bonds given by such surety insurers for appointive or elective public officers and for such of their deputies or employees as are required to give bond shall be paid by the . . . public body so served. 

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Is a city council or board of county commissioners required to have a public comment period on their regular meeting agendas or open the floor to such at a regular meeting?
Reviewed: 07/14

Neither the statutes governing cities and counties nor the Open Public Meetings Act (OPMA) (chapter 42.30 RCW) require a city council or board of county commissioners to include a public comment period as part of their meetings. (Though, of course, if a council or board is holding a public hearing, the very purpose of that hearing is to obtain public comment.) Nevertheless, it's customary in cities and counties to allow for public comment as part of a regular meeting, even if not required.

In a broader context, we're not aware of any case law holding that citizens have a constitutional - state or federal - right to speak at city or county governing body meetings. The U.S. Supreme Court has held that: "The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy." Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283 (1984); see also, Curnin v. Town of Egremont, 510 F.3d 24 (1st Cir. 2007) ("The First Amendment does not give non-legislators the right to speak at meetings of deliberating legislative bodies, regardless of whether they own property or pay taxes."). Constitutional issues can arise, however, when a council allows public comment and thus creates a limited public forum. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010).
 

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May an initiative adopted by city voters be later repealed by the city council without voter approval?
Reviewed: 03/14


No. An initiative that is adopted by the voters after being placed on the ballot by the city council may be repealed or amended, but only by a vote of the people. Your municipal code provides, consistent with state law (RCW 35A.11.100), that the powers of initiative and referendum shall, when exercised, be done so in the manner set forth for the commission form of government in RCW 35.17.240 through 35.17.360. These statutes provide that an ordinance initiated by petition cannot be repealed or amended except by a vote of the people. RCW 35.17.340 . This limitation on repeal or amendment applies even if the city council decides to pass the proposed ordinance without alteration pursuant to RCW 35.17.260(1), because the ordinance was "initiated by petition."

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Can a mayor be appointed to a county commissioner position and retain the office of mayor?
Reviewed: 03/14

It's our opinion that these two offices would be considered "incompatible offices" and should not be held by the same person.

As an initial matter, keep in mind that the doctrine of incompatible offices is based on common law, meaning that it has developed through court decisions over the years. Although no Washington court decisions address this scenario, several attorney general opinions that address this and other scenarios related to the doctrine provide guidance. The doctrine is not based on a particular RCW.

A helpful articulation of the doctrine is provided in Kennett v. Levine, 50 Wn.2d 212, 216-17 (1957):

Offices are incompatible when the nature and duties of the offices are such as to render it improper, from considerations of public policy, for one person to retain both.

The question ... is whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both positions is detrimental to the public interest.

An attorney general opinion, AGO 65-66 No. 7, also provides a useful description of the doctrine (internal citations omitted):

The doctrine of incompatible offices is the common-law limitation upon the right of a person to hold more than one public office at the same time. Public offices are considered incompatible where the duties and functions of each are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both ... .

We have agreed with the attorney general that the positions of mayor and county commissioner are incompatible. See AGO 1957-58 No. 90. In another opinion, AGO 1971 No. 28, the attorney general relies on AGO 1957-58 No. 90, and discusses the incompatibility of holding both offices (emphasis in original):

Next we must make note of AGO 57-58 No. 90 ... a previous opinion of this office dealing with a somewhat similar dual-office holding situation. In that opinion we concluded that the doctrine of incompatible offices precluded the same person from simultaneously serving as a county commissioner and as the mayor of a third class city located in such county. In so ruling we first made various statutory references to instances in which the respective interests of the county and the city might be anticipated to come into conflict. See, AGO 57-58 No. 90 at pages 3-5. Because of these possibilities, we then concluded as follows:

"We are convinced that a sound public policy would forbid placing a municipal officer in the position of being forced to choose to which of his two offices he should be the more loyal, or the even more difficult position of trying to remain impartial and to strike an equitable balance between the opposing interests of two groups which he represents. We conclude that the offices of mayor of a third class city and that of county commissioner are incompatible."

However, it is important to recognize in considering the applicability of this prior opinion that we were there dealing with two policy-making offices. Under the various circumstances therein referred to, one could conceive of the possibility that the respective governing bodies of the two political subdivisions - i.e., the county commission on the one hand and the city council and mayor on the other - would from time to time be voting upon courses of action under the cited statutes which would be in conflict with the best interests of the other political subdivision....

So, the issue here is whether it's possible that the interests of one position might be antagonistic to the interest of the other so that the public officer would have to choose which office would receive his/her higher loyalty. Based on the articulation of the doctrine in case law and in various attorney general opinions, we think conflicting interests would almost certainly arise in this scenario which would likely make it impossible for one individual to properly represent both the city and the county in all situations, thereby implicating the incompatible offices doctrine.

For example, the city and county may have in place, or may enter into interlocal agreements with each other, including agreements relating to jail services, emergency dispatch services, and court services. If so, the mayor/commissioner at issue would be in the untenable position of negotiating both sides of the contract. More generally, a number of issues may come before the mayor and city council relating to such matters as public safety (e.g., police and fire protection) which could present policy or other conflicts between the mayor and the county board of commissioners. There are a variety of other situations in which the duties of the two offices might conflict, such as in the administration and application of city zoning or building code regulations related to county facilities located in the city.

Another instance in which a clear incompatibility of offices would exist would be a situation in which the city and county have adverse legal interests on an issue and the mayor/commissioner is asked to participate in executive sessions held by both the city and county legislative bodies regarding each entity's respective legal interests and strategies. The mayor/commissioner could not participate in both executive sessions due to conflicting legal interests, but if the mayor/commissioner doesn't participate, he/she would be uninformed regarding an issue of particular significance to each entity. Similar issues would arise with respect to contracts (e.g., interlocal agreements, as discussed above), annexation, and possibly implementation of tax policy.

In sum, it seems inevitable that such a mayor/commissioner here would have a conflict of loyalties and could not represent either office with the undivided loyalty that is required for public officers. This is not meant to reflect on the integrity of the specific individual involved in any way, but it is to make clear that such divided loyalties create incompatibility.

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May a councilmember in a city with a population under 10,000 be a subcontractor (not the prime contractor) on a city street project and not violate the conflict of interest prohibition in RCW 42.23.030?
Reviewed: 03/14


If there is any sort of prearrangement between the prime contractor and the councilmember about the councilmember being a subcontractor on the job, then that would implicate the conflict of interest prohibition in RCW 42.23.030. See Northport v. Northport Townsite Company, 27 Wash. 543 (1902). So, if there is such a prearrangement, then the councilmember would be able to be a subcontractor here only if the amount of the subcontract does not exceed $18,000 for a calendar year, so as to come within the exception in subsection (6)(b) of that statute, and if the following provisions at the very end of that statute are followed:

A municipal officer may not vote in the authorization, approval, or ratification of a contract in which he or she is beneficially interested even though one of the exemptions allowing the awarding of such a contract applies. The interest of the municipal officer must be disclosed to the governing body of the municipality and noted in the official minutes or similar records of the municipality before the formation of the contract.

If the amount of the subcontract would be greater than $18,000 and there is such a prearrangement, then the councilmember would have to resign for the town to legally enter into the contract with the prime contractor.

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What are the major characteristics of the council-manager form of government?
Reviewed: 02/14

The council-manager form consists of an elected city council which is responsible for policy making, and a professional city manager, appointed by the council, who is responsible for administration. The city manager provides policy advice, directs the daily operations of city government, handles personnel functions (including the power to appoint and remove employees) and is responsible for preparation of a budget. Under the council-manager enabling law, the city council is prohibited from interfering with the manager's administration. The city manager, however, is directly accountable to, and can be removed by the council at any time.

The council-manager form is based on the model of a business with a board of directors that appoints a chief executive officer. Another familiar public example is the school board-superintendent relationship.

The mayor in council-manager cities is usually selected by the city council from among its members. The charter of a first class city or the voters of an optional municipal code city, according to the provisions of RCW 35A.13.033, may provide for the mayor to be directly elected by the people . The mayor generally presides at council meetings and is recognized as the head of the city for ceremonial purposes, but has no regular administrative duties.

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What are the major characteristics of the mayor-council form of government?
Reviewed: 02/14

The mayor-council form consists of an elected mayor (elected at-large), who serves as the city's chief administrative officer, and a council (elected either at-large or from districts), which serves as the municipality's legislative body. The council has the authority to formulate and adopt city policies and the mayor is responsible for carrying them out. The mayor attends and presides over council meetings but does not vote, except in the case of a tie. In code cities, the mayor may veto ordinances; although the veto may be overridden by a majority plus one of the entire council membership. In second class cities, the mayor may veto an ordinance, but the mayor's veto can be overridden by five members of the council. In first class cities the mayor's veto power is specified in the charter. Town mayors have no veto power.

A sizeable number (75) of mayor-council cities, as large as Spokane and as small as Stevenson, have added a professional position of city administrator or chief administrative officer (CAO) in the mayor's office. CAO's serve under the mayor and assist with the mayor's administrative and policy-related responsibilities. In theory, the appointment of a CAO frees the mayor from the need to attend to administrative details and allows the mayor to focus greater attention on policy development, political leadership roles, or in many cases their own jobs.

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Request for information regarding the process of a councilmember or commissioner "recusing" himself from a council/commission meeting.
Reviewed: 01/14

There is no specific process in state law regarding a councilmember or commissioner recusing himself from a matter, though the appearance of fairness doctrine in chapter 42.36 RCW discusses when a decision-maker is disqualified from participating in a quasi-judicial matter based on the doctrine.

In general, recusal is warranted when an elected official has a financial conflict of interest regarding a matter on which he or she is called upon to vote, or in a quasi-judicial matter where an elected official's participation may result in an appearance of fairness violation. Accordingly, some city and county codes have provisions that call for recusal in such situations, either in an ethics code or in quasi-judicial hearing procedures or in council or board procedures. Of course, some codes do not directly address the issue.

Recusal from an entire non-quasi-judicial meeting may or may not be required depending upon the circumstances. A quasi-judicial hearing, however, is another matter - recusal, when called for, is from the entire hearing process.

The duty of recusal is typically on the particular elected official, though there is nothing that prohibits another official or even an audience member from suggesting recusal; some city code provisions on this issue authorize the council to vote and require recusal in certain circumstances. In the appearance of fairness context, the request for recusal often comes from an opponent of a proposed quasi-judicial matter.

Here are some city council rules of procedure that address recusal:

• City of Port Townsend, City Council Rules of Procedure, Rule Nos. 3.6(g) and 6.1(c)
• City of Bothell, City Council Protocol Manual, Rules 6.01 and 9.15

The following are city and county code provisions that address the issue:

• City of Spokane Municipal Code, Sec. 4.01.050
• City of Bonney Lake Municipal Code, Sec. 2.04.700(b)
• Issaquah Municipal CodeSec. 2.06.110
• Redmond Municipal Code Sec. 2.04.150
• Whatcom County Code, Sec. 2.104.060, (Duty to recuse)

Many cities and counties that have hearing examiner systems have a provision for recusal of the hearing examiner in conflict or appearance of fairness situations. For example, see Fife Municipal Code, Sec. 2.92.090.

Some cities and counties have similar provisions regarding planning commissions; see, e.g., University Place Municipal Code, Sec. 2.25.110.

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May someone other than the clerk of a code city keep council minutes?
Reviewed: 01/14

The statutes applicable to code cities, as well as other classes, say little about the taking of minutes. The closest authority we could find is RCW 35A.12.110, which provides, in part

Meetings of the council shall be presided over by the mayor, if present, or otherwise by the mayor pro tempore, or deputy mayor if one has been appointed, or by a member of the council selected by a majority of the council members at such meeting. Appointment of a council member to preside over the meeting shall not in any way abridge his right to vote on matters coming before the council at such meeting. In the absence of the clerk, a deputy clerk or other qualified person appointed by the clerk, the mayor, or the council, may perform the duties of clerk at such meeting. A journal of all proceedings shall be kept, which shall be a public record. (emphasis supplied)

This statute does, in a fashion, require the clerk (or a deputy or someone else) to be present at council meetings, and it contemplates that this person will "perform the duties of clerk" at the meeting. But the statute does not require that those duties include keeping minutes. Presumably - and historically - the clerk is the person who prepares the minutes, but nothing requires that to be the case. (The clerk of a code city must, however, "attest" to the passage of ordinances. RCW 35A.12.130.)

So, we must conclude that the council could provide for someone else to keep the minutes. The clerk could delegate the minute-keeping responsibility, assuming that the clerk has that responsibility in the first place. The duty could be delegated without council approval, in our opinion, and, it would appear, the council could assign the duty to someone else, without the clerk's approval.

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Must meeting minutes be prepared within a specific period of time after the meeting?
Reviewed: 01/14

Only if there are local council or board rules of procedure that set a specific time. Otherwise, state law requires that:

    The minutes of all regular and special meetings except executive sessions . . . shall be promptly recorded and such records shall be open to public inspection.

RCW 42.32.030 .

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Must minutes be kept of council work sessions or study sessions?
Reviewed: 01/14

Yes. A council work session or study session is a meeting of the city council if more than a quorum of councilmembers are present. This is true even if no final action in the form of voting on ordinances, resolutions or motions occurs. RCW 42.32.030 requires that minutes be kept of all regular and special meetings except executive sessions.

The minutes may be very brief and do not have to reflect all that was said at the meeting. At a minimum the minutes should indicate the councilmembers who were present, the time and place of the meeting and the general nature of the business that was discussed.

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Will having an electronic copy available for public inspection satisfy the adoption by reference statutes?
Reviewed: 01/14

In our opinion, yes. The adoption by reference statutes for Washington cities and counties require that at least one copy of the statute, code, or compilation that is being adopted by reference be filed for use and examination by the public in , as the case may be, the office of the city or town clerk or of the county auditor. See RCW 35.21.180 and RCW 35A.12.140.

The question here is whether this requirement could be satisfied by having an electronic version of the statute, code, or compilation available for use and examination by the public. It is the opinion of the legal staff at MRSC that this would satisfy the legal requirement as long as there is a reasonable means for the public to access the electronic version for use and examination. The adoption by reference statutes do not specifically address this issue, nor has it been the subject of a court case or a formal opinion by the Office of the Attorney General. However, it would seem to satisfy the intent of the state statutes relating to adoption by reference to have an electronic copy in the office of the city or town clerk that is available for use and examination by the public.

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Must a comprehensive plan or plan amendment be adopted by ordinance?
Reviewed: 01/14

We recommend adopting a comprehensive plan or plan amendment by ordinance, even though a resolution may be legally sufficient.  The statutes and the growth management hearings boards are split on the issue, and there is no guidance from the courts.

For code cities, RCW 35A.63.072 certainly indicates that a city council can adopt the comprehensive plan by resolution; it states, in relevant part, as follows: "An affirmative vote of not less than a majority of total members of the legislative body shall be required for adoption of a resolution to approve the plan or its parts."  (Emphasis added.)  However, a comprehensive plan adopted under the Growth Management Act (GMA) is subject to RCW 36.70A.290(2)(a), which refers to “the ordinance or summary of the ordinance, adopting the comprehensive plan or development regulations.”

At least one growth management hearings board has concluded that jurisdictions planning under GMA must adopt a comprehensive plan by ordinance. The Central Puget Sound Growth Management Hearings Board held that, despite RCW 35A.63.072, GMA comprehensive plans must be adopted by ordinance, based on RCW 36.70A.290(2)(a). (See Burlington Northern Railroad v. City of Auburn, Order of Dismissal, CPSGMHB No.95-3-0050). The Western Washington Growth Management Hearings Board, however, came to a different conclusion in Moore-Clark v. Town of LaConner, Order Regarding Dispositive Motions. WWGMHB No.94-2-0021 ("We hold that the Town may adopt its comprehensive plan by ordinance or by resolution.").

Because the issue is not yet settled, it would be a safer course to adopt the comprehensive plan by ordinance. But, whatever mode is used for initial adoption of the plan should also be used in amending the plan. 

 

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Must all ordinances be codified to be effective as law?
Reviewed: 01/14

No. There is no statute that requires codification of all ordinances. Indeed, there are many types of ordinances required by law that are not appropriate or suitable for codification, such as ordinances approving annexations and street vacations, and ordinances initiating condemnation of property, to name a few.

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Who may write an ordinance?
Reviewed: 01/14

There are no statutory requirements as to who may write an ordinance. However, the city may have its own rules regarding the drafting of an ordinance, including a common provision requiring that the city attorney approve the ordinance as to form.

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What is the difference between a resolution and an ordinance?
Reviewed: 01/14

Both a resolution and an ordinance represent actions by the city council which are binding until rescinded or amended. An ordinance will generally prescribe permanent rules of conduct or government, whereas a resolution will generally deal with matters of a special or temporary character. A resolution is typically an act that is less solemn or formal than an ordinance and generally is simply an expression of the opinion or mind of the official body.

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May an ordinance be enacted the same night it is introduced?
Reviewed: 01/14

There is no provision in state law which would prohibit most types of ordinances from being enacted the same night they are introduced. There are a few exceptions, notably franchise ordinances. However, most ordinances can be introduced, read, and passed at the same council meeting.

It is possible that some cities and towns have enacted local rules of procedure which would not allow this. These local rules should be checked to be sure there is not a provision which relates to this subject.

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Are there any requirements regarding format style of ordinances?
Reviewed: 01/14

The only legal requirements regarding the style of ordinances are those relating to the enactment or ordaining clause. The requirement is statutory for most municipalities and is required by charter in the state's 10 first class cities.

The following language is required:

 

Second Class Cities - "The city council of the city of do ordain as follows:" RCW 35.23.211

Towns - "Be it ordained by the council of the town of " RCW 35.27.290

Code Cities - "The city council of the city of do ordain as follows:" RCW 35A.12.130 and 35A.13.190

Commission Cities - "Be it ordained by the city commission of the city of :" RCW 35.17.030 and 35.23.211

 

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Would a deficiency in the form of an ordinance affect its validity?
Reviewed: 01/14

Code Cities-Deficiencies in the form of an ordinance or resolution adopted by the legislative body of a code city shall not affect the validity of the ordinance if the following requirements have been met:

 

  1. The purpose and intent of the ordinance or resolution are clear;
  2. Any regulatory or procedural provisions are expressed in clear and unambiguous terms, or the legislative intent can be determined by the usual methods of judicial construction;
  3. The legislative body followed the prescribed procedures, if any, for the passage of such an ordinance or resolution; or, if prescribed procedures were not strictly complied with, no substantial detriment was incurred by any affected person by reason of such irregularity.  [See Bale v. Auburn, 87 Wn.App. 205 (1997)]

Second, Third, Fourth Class and Commission Cities-There is no provision for deficiencies in form of an ordinance for other classes of municipalities.

 

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What are the requirements for the reading of an ordinance?
Reviewed: 01/14

There is no statutory requirement that an ordinance be "read". Similarly, if an ordinance is read there is no requirement that it be read more than once or in its entirety or by title only. These considerations are frequently covered by local rules. For example, many municipalities have adopted rules of procedure providing for the reading of ordinances by title only unless a request to read all or portions of the ordinance is made by a councilmember or the public in attendance. If a local rule has been adopted, that rule should be followed.

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Once passed, who must sign an ordinance?
Reviewed: 01/14

Ordinances typically must be signed and attested following passage. The rules applicable to the various classes of municipalities are as follows:

First Class Cities-Reference should be made to the city charter for the rules that apply to any particular first class city.

Second Class Cities-In a second class city operating under the mayor-council plan, each ordinance is to be signed by the mayor. The clerk then records each, annexes a certificate giving the ordinance's number and title, and stating that the ordinance was published and posted according to law and that the record is a true and correct copy.

In a second class city operating under the council-manager plan, ordinances are signed by the mayor or by two councilmembers and then filed and recorded by the clerk - see RCW 35.18.180.

Towns-Ordinances are signed by the mayor and attested by the clerk.

Code Cities-In a code city ordinances are signed by the mayor and "authenticated by the clerk."

Commission Cities-Ordinances are signed either by the mayor or by two commissioners. Then, typically, the signed ordinance will be attested by the clerk - see RCW 35.17.190.

 

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May the mayor veto an ordinance?
Reviewed: 01/14

A mayor has veto power only when and to the extent that the power has been vested in the mayor by law. Excluding first class cities, which are governed by their individual charters, the veto power is granted only to mayors in mayor-council second class cities, and code cities organized under the mayor-council plan of government.  The relevant statute for second class cities is RCW 35.23.211; the relevant statute for mayor-council code cities is RCW 35A.12.130.

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In a code city is an ordinance valid if it is not signed by the mayor?
Reviewed: 01/14

An ordinance is probably still valid even if it has not been signed by the mayor. Although RCW 35A.12.130 states that "[o]rdinances shall be signed by the mayor," it does not follow that the lack of the mayor's signature affects the ordinance's validity. The mayor may veto ordinances, but that veto may be overridden by the council. Additionally, an ordinance goes into effect if the mayor fails to approve or veto it within 10 days. RCW 35A.12.130. Thus, it would not make sense, given the above, that the mayor could prevent an ordinance from becoming effective and valid simply by not signing it.

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May the mayor pro tempore in a mayor-council, noncharter code city sign an ordinance in the absence of the mayor?
Reviewed: 01/14

The mayor pro tem in a noncharter code city does have the authority to sign ordinances in the absence of the mayor. The duties of the mayor pro tem are not specifically indicated in the statutes relating to noncharter code cites. However, one of the duties of the mayor is to sign ordinances and the mayor pro tem is designated to serve as mayor when the actual mayor is absent or temporarily disabled (see RCW 35A.12.065).

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In a town, who should sign an ordinance when the mayor is unavailable and there is no mayor pro tem?
Reviewed: 01/14

RCW 35.27.290 provides in part:

"Every ordinance shall be signed by the mayor and attested by the clerk."

A special meeting of the council should be called to allow for the appointment of a mayor pro tem. Once a mayor pro tem is appointed, he or she would act as the mayor in the mayor's absence and could, in our opinion, sign the ordinances that are currently unsigned. There is no time specified for when the mayor must sign (see RCW 35.27.290) and thus, it would appear, a "reasonable amount of time" should be allowed. What is "reasonable" would take into consideration all relevant facts.

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In a town, may councilmember sign ordinances in clerk's absence?
Reviewed: 01/14

RCW 35.27.280 provides in part:

In the absence of the mayor the council may appoint a president pro tempore: in the absence of the clerk, the mayor or president pro tempore, shall appoint one of the councilmembers as clerk pro tempore.

As appointed clerk pro tempore this councilmember would be in a position to attest to an ordinance.

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When does an ordinance become effective?
Reviewed: 01/14

An ordinance should state the time when it takes effect, provided that the date set is not for a date before the earliest date possible under state law. Absent a stated effective date, the ordinance becomes effective according to the provisions set by state law. An effective date must be included if a later effective date than provided for under state law is desired.

The following indicates when ordinances become effective, according to state law:

First Class Cities-When ordinances enacted in first class cities become effective is dependent upon the provisions of each city's charter (and whether a referendum petition has been filed).

Second Class Cities-Ordinances do not take effect until five days from and after the date of their publication.

Towns-Publication is required but no waiting period is specified after publication before an ordinance can become effective. Thus, an ordinance could be made effective from and after the date of publication (or at some later, more convenient date).

Code Cities-No ordinance can take effect until five days after the date of its publication, except for public emergency ordinances. Public emergency ordinances, which require a vote of a majority plus one of the whole council membership, may be made effective upon adoption. A "public emergency ordinance" is one designed to protect public health and safety, public property, or the public peace; it may not levy taxes, grant review, or extend a franchise or authorize the borrowing of money.  If the city has adopted the powers of initiative and referendum, the ordinance cannot go into effect before 30 days from the date of final passage, allowing for a referendum petition to be filed, assuming the subject of the ordinance is subject to referendum. 

Commission Cities-Ordinances can not go into effect before 30 days from the date of final passage. Ordinances are subject to referendum during the waiting period unless:

  1. They have been initiated by petition;
  2. They are necessary for immediate preservation of public peace, health, and safety and contain a statement of urgency and are passed by unanimous vote, or;
  3. They provide for a local improvement district.

  • Must a municipality enact an ordinance which provides the procedures for adoption of ordinances?

    It is not mandatory that a municipality adopt rules of procedure for the adoption of ordinances beyond those which are contained in the state statutes. However, the statutes indicate that the council may establish rules for the conduct of its proceedings. This could include procedural rules for the adoption of ordinances, as long as these rules do not conflict with state statutes. This is a policy decision for the council to make.

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    Must a municipality enact an ordinance which provides the procedures for adoption of ordinances?
    Reviewed: 01/14

    It is not mandatory that a municipality adopt rules of procedure for the adoption of ordinances beyond those which are contained in the state statutes. However, the statutes indicate that the council may establish rules for the conduct of its proceedings. This could include procedural rules for the adoption of ordinances, as long as these rules do not conflict with state statutes. This is a policy decision for the council to make.

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    May council reconsider ordinance that has been passed?
    Reviewed: 01/14

    Once an ordinance has been passed by the council, signed by the mayor and attested to by the clerk, it is no longer capable of being reconsidered in the typical sense. The appropriate action, if the council chose to do so, would be to repeal the ordinance. This, of course, would require a new ordinance designed to either repeal or amend the previous ordinance.

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    May an ordinance be reenacted after it has been repealed?
    Reviewed: 01/14

    The council always has the authority to readopt or reenact an ordinance that has previously been repealed. The important point is that the procedures for the adoption of ordinances must be followed in order to reenact a new ordinance. Basically, these procedures are similar to those which must be followed for the original enactment of an ordinance.

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    May an ordinance be passed at a special meeting?
    Reviewed: 01/14

    First Class City-Reference should be made to the charter of a first class city to determine whether an ordinance may be passed at a special meeting.

    Second Class Cities-The state statutes specifically indicate that no ordinance may be passed at a special meeting of the city council in a second class city. This means that all ordinances must be passed at regular meetings in a second class city. Also, no contract may be entered into or bill for the payment of money allowed at any special meeting.

    Code Cities-A noncharter code city is not limited by the state statutes as to the types of actions it may take at a special council meeting. According to state law, any type of ordinance or resolution can be adopted at a special council meeting in a noncharter code city, as long as proper notice of the action was given in the notice for the special meeting.

    Towns-An ordinance may be passed at a special meeting in a town as long as proper notice of the action was given in the notice for the special meeting. However, no resolution or order for the payment of money may be passed at a special meeting. This type of action must be taken at a regular meeting.

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    Must an ordinance be recertified each time it is provided and sent out to a citizen?
    Reviewed: 01/14

    It is sufficient to send a copy of the ordinance as enacted with a copy of the original certification attached. It is not necessary that a new certification be attached to each ordinance every time it is provided to a citizen. This would appear to satisfy any statutory requirements regarding certification of an ordinance.

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    Would a procedural irregularity in the enactment of an ordinance in a code city affect the validity of that ordinance?
    Reviewed: 01/14

    RCW 35A.21.010, which applies to code cities, indicates that if a prescribed procedure is not strictly complied with, the ordinance is still valid if no substantial detriment was incurred by any affected person by reason of the irregularity.

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    Must a municipality keep a bound book containing all ordinances?
    Reviewed: 01/14

    All ordinances passed by the legislative body of any city or town shall be recorded by the city or town clerk in an ordinance book.

    RCW 5.44.080

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    Must an ordinance be published?
    Reviewed: 01/14

    Yes. All cities and towns are required to publish every ordinance in their official newspaper. However, ordinances may be published in summary form.  The statutes requiring publication, for each class of city, are:

    First class cities -- RCW 35.22.288;

    Second class cities -- RCW 35.23.221;

    Code cities --  RCW 35A.12.160 & 35A.13.200;

    Towns -- RCW 35.27.300.

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    What are the requirements of an official newspaper?
    Reviewed: 01/14

    The newspaper must qualify as a "legal newspaper." To be a legal newspaper is must be "published regularly, at least once a week, in the English language, as a newspaper of general circulation, in the city or town where the same is published at the time of application for approval, for at least six months prior to the date of such application; shall be compiled either in whole or in part in an office maintained at the place of publication; shall contain news of general interest as contrasted to news of interest primarily to an organization, group or class; and shall hold a second class mailing permit." RCW 65.16.020.

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    May the city publish an ordinance in summary form?
    Reviewed: 01/14

    Yes, an ordinance may be published in the city's official newspaper in summary form. This is true for every class of city or town. The summary must include a brief description which succinctly describes the main points of the ordinance. Also, a statement should be included that the full text will be mailed upon request.

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    Is there a particular location in the newspaper in which summaries of ordinances must be published?
    Reviewed: 01/14

    The state statutes only require that the ordinance or summary of the ordinance be published in the official newspaper for the city. It does not indicate that the publication must be placed into any particular section of the paper. As long as it is published, it would seem to satisfy the statutory requirements.

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    Do resolutions have to be published in the official newspaper for the city?
    Reviewed: 01/14

    Resolutions do not have to be published in order to be effective as far as state law is concerned. The state statutes only contain a publication requirement for ordinances.

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    Is an ordinance invalid if not published within a specified time period?
    Reviewed: 01/14

    The state statutes require that ordinances be published "promptly after adoption." Promptly is not defined, and there appears to be some discretion, within reasonable bounds, as to when an ordinance is published.

    If an ordinance is not published "promptly after adoption" the validity of the ordinance may be questioned. Therefore, it would probably be best to repass the ordinance and then publish it in the newspaper if a considerable time period has passed since its adoption.

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    In a code city, if ordinance is published on Thursday, when does it first become effective?
    Reviewed: 01/14

    On the following Tuesday, in all likelihood. RCW 35A.12.130 provides in part:

    "No ordinance shall take effect until five days after the date of its publication unless otherwise provided by statute or charter."

    When computing time, one must exclude the first day and include the last (unless the last day is a holiday or Sunday, in which case that day or days are also to be excluded).

    Thus, an ordinance would be effective on the first Tuesday following the Thursday publication date, which would be the fifth day after the date of publication, excluding the date of publication. (The date a paper is published is the date shown on the paper as its publication date; this date may differ from the date the paper is actually printed.)

     

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    When would vetoed ordinance go into effect, if code city council overrides veto?
    Reviewed: 01/14

    The determination of an ordinance's effective date should probably begin by reference to the date of the council's override of the mayor's veto. RCW 35A.12.140 requires every ordinance be signed by the mayor to be valid. The mayor's signature would be the final act by the city in the enactment of the ordinance and prior to its publication. No ordinance may go into effect until five days after its date of publication, unless otherwise provided. If the council overrides the veto, that would be the final act in the legislative process. If the veto is over-ridden, the ordinance would then be published and would go into effect five days later, assuming that a different effective date was not provided for by the ordinance. (The same answer should apply in a second class city. See RCW 35.23.211).

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    May the mayor of a code city vote to break a tie on the passage of an ordinance amending the budget?
    Reviewed: 01/14

    No. The mayor of a code city may not break a tie vote on the passage of an ordinance. The authority of the mayor to vote to break a tie in a code city is limited "to matters other than the passage of any ordinance, grant, or revocation of a franchise or license, or any resolution for the payment of money." RCW 35A.12.100.  In addition, passage of an ordinance requires "the affirmative votes of at least a majority of the whole membership of the council."  A tie vote broken by the mayor could not satisfy that requirement, because the mayor is not a councilmember.

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    What are the requirements for amending an ordinance in a second class city?
    Reviewed: 01/14

    When amending or revising an ordinance or a section of an ordinance in a secondclass city, the new ordinance must contain "the revised ordinance or the amended section at full length." RCW 35.23.211.

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    May a councilmember or commissioner vote by proxy at a meeting he or she does not attend?
    Reviewed: 01/14

    The answer depends, in part, on whether proxy voting is allowed by the body's rules. However, even if authorized, it is not clear how proxy voting would be viewed by the courts.  State law does not address voting by proxy. Indeed, state law does not address council or board procedures at all, leaving it up to those bodies to adopt their own rules for the conduct of meetings.

    An "old" attorney general opinion, AGO 51-53 No. 283, concluded that proxy voting by a school district board, subject to open meetings requirements, is not allowed.  But that opinion also relied upon statutory requirements applying to school district boards regarding attendance at meetings. 

    Robert's Rules of Order, Newly Revised (10th ed., 2000) states at §45:

      It is a fundamental principle of parliamentary law that the right to vote is limited to members of an organization who are actually present at the time the vote is taken in a legal meeting . . . Exceptions to this rule must be expressly stated in the bylaws.  Such possible exceptions include . . . (b) proxy voting.

      *   *   *   *   *

      Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorporated require it, or the charter or bylaws of the organization provide for it.  Ordinarily it should neither be allowed nor required, because proxy voting in incompatible with the essential characteristics of a deliberative assembly in which membership is individual, personal, and nontransferrable.

    If the council or board has not adopted a rule expressly authorizing proxy voting, it should not be allowed in a council or board vote.  However, we recommend against a council or board authorizing proxy voting.

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    May councilmember who intends to resign vote on his replacement?
    Reviewed: 01/14

    No. Until the councilmember resigns, there is no vacancy to fill. Once there is a vacancy, the resigning councilmember will have resigned and no longer would have a vote.

    The Attorney General has concluded (AGO 1978 No. 20) that a city council may not appoint someone to succeed a resigning member until the effective date of the anticipated resignation.

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    May a city councilmember or county commissioner vote on an issue if she did not attend the public hearing but reviewed the record?
    Reviewed: 01/14

    Yes. Court cases in this state have indicated that a member of a decision-making body who familiarizes herself with the record may vote on a matter, even if she was absent at the public hearing regarding the matter. See Johnston v. Grays Harbor County, 14 Wn. App. 378 (1975); Bowing v. Board of Trustees, 85 Wn.2d 300 (1975).

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    What is the result if three members of a five-member council vote on a procedural motion, with two voting for the motion and one abstaining?
    Reviewed: 01/14

    According to Robert's Rules of Order, an abstention does not count as a vote, does not affect the voting result, and does not destroy the quorum. In this case, since a majority of the quorum voted in favor of the motion, it would pass. Where a certain number of votes is required for an action, an abstention, which does not count as a vote, may prevent the action from passing. If a council has not adopted Robert's Rules of Order, it will be necessary to adopt its own rules regarding abstentions.

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    What is the role of the mayor in a mayor/council code city in facilitating and leading council committee work for the city?
    Reviewed: 01/14

    The short answer to your question is that the mayor's role with respect to city council committees is a matter for the council to determine.

    While there is no statute that specifically addresses the establishment and operation of internal city council committees, we believe the authority for this can be found in RCW 35A.12.120, which provides, in part: “The council shall determine its own rules and order of business and may establish rules for the conduct of council meetings and the maintenance of order.” Under this authority, the city council may enact rules and regulations to govern the conduct and operations of the city council. This authority includes the ability to determine if and when standing committees will be utilized, what the committees will be, how they will conduct their business, and how their members will be appointed. Many city councils have adopted rules of procedure to address these issues.

    While the mayor in a mayor-council code city has the power to appoint and remove all appointive officers and employees (RCW 35A.12.090), this power does not extend to appointments or assignments to internal city council committees that remain within the province of the city council. Even so, many council rules give this responsibility to the mayor. In other cities, this function is handled by the council itself or in combination with the mayor. It is up to each local council to determine how such assignments will be made, and they are free to do so with our without the mayor's involvement.

    The duties and responsibilities of individual council committees are generally established by council ordinance. Such ordinances typically list the names of the committees and define their individual areas of responsibility. The operations and rules of procedure for council committees are also matters that fall within the province of the city council, including the issue of who will preside at council committee meetings. While some cities are comfortable with having the mayor perform this function, others appoint individual committee chairs from among the members of the city council. As a practical matter, there is a limit to the number of committees that any one individual can chair regardless of whether they may be a mayor or city councilmember. While we have not surveyed Washington cities on this specific point, our guess is that most council committees are chaired by councilmembers, if only to spread the workload more efficiently. Finally, the assignment of specific committee tasks is also a matter for the council to decide, although the mayor may certainly suggest such assignments. Again, these are all issues that can be spelled out in the city council’s rules of procedure.

    The mayor’s role with respect to policy-making in general and council committee work in particular may best be described as a partnership. Although the mayor presides at the city council’s regular meetings and has a general policy leadership role, this does not mean that he or she also has the authority to direct the functioning of the city council and/or any of its committees. The internal functioning of city council committees remains within the province of the city council.

    With respect to how such issues are to be dealt with in your city, you should first consult any rules of procedure that may have been adopted by the city council. If the council has not yet adopted such rules you may want to consider doing so. MRSC’s web page on “Council/board of Commissioners Rules of Procedure” may be of some assistance for this purpose.

    (Link to this question)

    Can the city clerk place hand-delivered mail (e.g., the city council's meeting agenda) in a councilmember's regular U.S. postal service home mailbox without postage?
    Reviewed: 01/14

    The answer is dependent upon the type of mailbox. If the mailbox is at the curb, it may not be used for anything that does not have postage. Section 508.3.1.3 of the Domestic Mail Manual states in part:

    3.1.3 Use for Mail

    [N]o part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle. Any mailable matter not bearing postage and found as described above is subject to the same postage as would be paid if it were carried by mail.

    If, however, the mail receptacle is nothing more than, for example, a slot built into the person’s front door, the receptacle does not qualify as a mailbox and the above limitation does not apply; see section 508.3.1.2 of the Domestic Mail Manual:

    3.1.2 Exclusions

    Door slots and nonlockable bins or troughs used with apartment house mailboxes are not letterboxes within the meaning of 18 U.S.C. § 1725 and are not private mail receptacles for the standards for mailable matter not bearing postage found in or on private mail receptacles.

    (Link to this question)

    May the city council hold an executive session for the purpose of discussing which positions to lay-off or eliminate?
    Reviewed: 01/14

    The council may not, in general, meet in executive session to discuss which employment positions to lay-off or eliminate. That is not a subject designated in RCW 42.30.110(1) for which a governing body may meet in executive session. However, there may be issues related to the decision to lay-off or eliminate positions for which the council may meet in executive session to discuss. If the decision to lay off or eliminate positions is tied to the performance of the employees filling those positions, then the council may, under RCW 42.30.110(1)(g), discuss those employees' performance in executive session. But, once the council finishes its discussion of an employee's performance, it must reconvene in open session to discuss whether to eliminate or lay-off that position based on the employee's performance.

    Similarly, if the decision to lay-off or eliminate a position requires bargaining with a union, then the council may, under RCW 42.30.140(4), meet in closed session to conduct that bargaining or to discuss strategies to take in such bargaining sessions or to review proposals made in the collective bargaining negotiations. Such discussions are entirely exempt from the requirements of the Open Public Meetings Act. So, to the extent that discussions concerning which positions may be laid off or eliminated would occur in the context of collective bargaining or strategizing for such bargaining, those discussions may occur in closed session.

    The council may also meet in executive session to discuss litigation that potentially may evolve from the decision to eliminate or lay-off positions, but that discussion should not include the discussion of which positions to lay-off or eliminate, except to the extent that decision may relate to potential litigation.

    Of course, any vote on which positions to eliminate or lay-off must be taken in open session.

    (Link to this question)

    May the mayor in a mayor-council code city break a tie vote on a procedural motion such as a motion to amend the motion that adopts an ordinance?
    Reviewed: 01/14

    Yes. Under RCW 35A.12.100, the mayor has tie-breaking authority “with respect to matters other than the passage of any ordinance, grant, or revocation of franchise or license, or any resolution for the payment of money.” (Emphasis added.) A vote on a motion that has the affect of amending a motion to adopt an ordinance is a procedural step and does not, in our opinion, constitute a vote on the ordinance itself, such that the mayor can break the tie vote. It is similar to a secondary or incidental motion, and MRSC takes the position that a mayor has a tie-breaking vote on such motions. It is only on the actual vote to adopt the ordinance that the mayor may not break a tie.

    (Link to this question)

    If we have only four councilmembers present at a town council meeting and the vote is split, is the mayor allowed to break the tie and vote on the matter?
    Reviewed: 01/14

    The answer is that "it depends," though, in most cases, the town mayor is allowed to break the tie. Under RCW 35.27.280, "The mayor shall have a vote only in case of a tie in the votes of the councilmembers." However, that authorization of a mayoral tie-breaking vote is qualified by RCW 35.27.270 and RCW 35.27.330. The former states in relevant part:

    No resolution or order for the payment of money shall be passed at any other than a regular meeting. No such resolution or order shall be valid unless passed by the votes of at least three councilmembers.

    And, RCW 35.27.330 provides that a vote on an ordinance granting a franchise must obtain the vote of three councilmembers. Because the mayor is not considered a councilmember and because of the mathematical impossibility of having a three-three tie on a five-member council, the mayor cannot effectively break a tie vote on a "resolution or order for the payment of money" or on an ordinance granting a franchise. On all other matters, the mayor may break tie votes.

    (Link to this question)

    How many councilmembers are required to call a special meeting in a code city with a seven-member council?
    Reviewed: 01/14

    The problem is that two different statutes authorize a different number of councilmembers to call a special meeting in code cities with a seven-member council. First, RCW 42.30.080, part of the Open Public Meetings Act (OPMA), provides as follows:

    A special meeting may be called at any time by the presiding officer of the governing body of a public agency or by a majority of the members of the governing body...

    In a code city with a seven-member council, this would be four councilmembers.

    Then, there's RCW 35A.12.110, which provides that "Special meetings can be called at any time by the mayor or any three members of the council . . . ." (Emphasis added.) That provision is applicable to council-manager code cities through RCW 35A.13.170.

    So, in a code city with a seven-member council, these two statutory provisions are in conflict.

    The position of MRSC is that the OPMA provision controls, which means at least four councilmembers are required to call a special meeting in a code city. We take this position because RCW 42.30.140 in the OPMA provides in part:

    If any provision of this chapter conflicts with the provisions of any other statute, the provisions of this chapter shall control.

    (Link to this question)

    Request for sample rules for receiving public input at council meetings.
    Reviewed: 01/14

    This is in response to your inquiry requesting sample council rules pertaining to citizen comments during council meetings. Please see the following sample council rules:

    Here is a sample city council web page that address meeting participation:

    These rules are typical of the council rules of procedure found in many Washington cities. Rules relating to public comments during council meetings usually address issues such as time limits for speakers, identification of speakers, conduct and decorum, handling of multiple pro and con speakers, and other similar issues. For purposes of recording and later video and audio streaming of meetings, it is important to ensure that all participants speak clearly into their microphones. Guest speakers in particular are prone to drifting away from microphones making it difficult for their comments to be heard later.

    With respect to placing limits on citizen conduct at city council meetings, you may be interested in reviewing "Council Meeting Conduct and Citizen Rights under the First Amendment", by Steve DiJulio, Attorney, Foster Pepper, MRSC Council/Commission Advisor, November 2009.

    (Link to this question)

    Does the mayor or does the city council have the authority to cancel a council meeting in advance?
    Reviewed: 01/14

    The city council – not the mayor - has authority to cancel a council meeting in advance. It is not the mayor’s meeting – it is the council’s meeting and the mayor is just the presiding officer. Although state law does not specifically address the authority to cancel meetings, this is the position of the MRSC legal staff based on the separation of powers between the mayor and the council as set out in the statutes. Though, the council could formally or informally delegate to the mayor the authority to cancel a council meeting in advance.

    If this has become a source of friction, it is advisable to set out a formal process in the council rules of procedure.

    (Link to this question)

    What notice must be given for special meetings if the meeting location will be a private restaurant or other private location?
    Reviewed: 01/14

    The new requirements in RCW 42.30.080 for notice to the public of special meetings mandate, in part, that notice be posted at least 24 hours in advance by the door of the meeting room. There are no exceptions for this requirement, and so this notice must be posted by the door of the meeting place regardless of whether it is a private or public meeting place. If a private location will not allow the notice to be posted, then the meeting place must be moved to a location that will allow posting.

    (Link to this question)

    Is a quorum necessary for study/work sessions and public hearings?
    Reviewed: 01/14

    The transaction of agency business by a governing body for which a quorum is required includes study/work sessions and public hearings, where the governing body is required to hold the hearing. The Open Public Meetings Act (OPMA) makes it clear that mere discussion of agency business and the receipt of public testimony, as at a hearing, constitute "action" that subjects a meeting to the requirements of the Act. RCW 42.30.020(3) defines "action" as follows:

    the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "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, what occurs at a study/work session or at a public hearing constitutes the transaction of agency business, even if no decisions are made. Study/work sessions and public hearings are considered "meetings" under the OPMA, which are defined as "meetings at which action is taken." RCW 42.30.020(4). Less than a quorum of, for example, the planning commission may, of course, discuss commission business together to their heart's content, but that would not be transacting commission business and would not be a "meeting" under the OPMA.

    Another way of looking at this is that less than a quorum of the planning commission simply cannot be considered to be the planning commission. So, less than a quorum of the planning commission cannot hold a public hearing that is required by statute and cannot conduct a study/work session as the commission.

    (Link to this question)

    What requirements are there in state law regarding city council minutes and what do you recommend?
    Reviewed: 01/14

    State law requires that a written record, in the form of (at least) written meeting minutes, be "promptly recorded" and be "open to public inspection" by the city. State law does not require the city to tape or audio (or video) record meetings, nor does it mandate a specific method or format for meeting minutes.

    Specifically regarding meeting minutes, RCW 42.32.030 provides:

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

    Specifically related to mayor-council code cities, RCW 35A.12.110 provides in relevant part:

    A journal of all proceedings shall be kept, which shall be a public record.

    The city council has the discretion to determine the level of detail for the council's meeting minutes and, as a result, there is variation from jurisdiction to jurisdiction on this issue. RCW 35A.12.120, which (like RCW 35A.12.110 above) is applicable to both mayor-council and council-manager code cities (see RCW 35A.13.170), provides specific authority for the city council to adopt rules for the conduct of its business, which can include requirements related to the official minutes of the meetings.

    We recommend use of "action minutes" in which the primary purpose of the minutes is to capture the essential information (i.e., date, time, location, attendees from the governing body and staff) and to summarize the action that was taken and the decisions that were made at the meeting. This would include action taken related to any motions, resolutions, or ordinances that were discussed.

    There is some guidance on this issue in Robert's Rules of Order, Newly Revised, Section 48 (2011), which states that the minutes "should contain mainly a record of what was done at the meeting, not what was said by the members." Many cities have adopted Robert's Rules of Order by reference and look to that source for guidance.

    We have found, in reviewing sample minutes, that cities generally follow the approach of focusing on recording official actions taken at meetings. Typically, comments by members of the public are briefly summarized regarding the topic addressed and whether the person spoke for or against the issue.

    A helpful discussion of "action minutes" is discussed in an October 2009 article in our
    Council/Commission Advisor column entitled, "Less Is More: Action Minutes Serve the City Best," by Ann G. Macfarlane, Professional Registered Parliamentarian. In part, that article explains:

    Robert's Rules of Order offers a simple guideline: minutes should record what is done, not what is said. The minutes should include decisions made, postponements, referrals to committee. They may also include a note that discussion was held, if the group wants to have it clear that they did their due diligence on a given issue. By keeping the minutes to this core of essential facts, energy and effort can be devoted to the larger issues that face all our civic bodies today.

    Another key point to consider is that there are specific types of meetings for which a verbatim transcript is required. For example, RCW 36.70C.110 requires a verbatim transcript for quasi-judicial hearings. As a practical matter, preparing a verbatim transcript usually requires an audio or possibly a video recording.

    (Link to this question)

    Should a city council's rules of procedure be codified?
    Reviewed: 01/14

    The city council rules can be adopted by ordinance and codified in the municipal code, but that is not required by state law, and most city councils do not include their rules in their municipal code. There are a number of reasons for this. One reason is that the council is not required by state law to adopt its rules by ordinance, and only something that is adopted by ordinance can be codified in the city code. Because the council rules affect only how the council conducts its meetings and does not impose any requirements or restrictions or procedures on the citizenry, there is no need for them to be adopted by ordinance and codified; council rules are not laws.

    So, while the council may adopt its rules by ordinance and may then decide to codify its rules, it need not do so. (Not all ordinances should be codified.) And, there is no compelling need for the council to do so. If the council rules are adopted by resolution or by motion alone, they can be more readily be adopted and amended - which, of course, can be a positive or a negative, depending upon your views.

    So, the bottom line is that the council is not required by state law to adopt its rules by ordinance and codify them, and we see no compelling reason for the council to do so. Most city councils do not adopt their rules by ordinance and even fewer codify them.

    (Link to this question)

    When the city passes an ordinance or amends an ordinance, is it necessary to publish the full ordinance? How many times does it have to be published?
    Reviewed: 01/14

    As an initial matter, when you refer to "publishing" of ordinances we presume you are referring to publishing in the city's official newspaper.

    An ordinance can only be amended by an ordinance so the requirements regarding publishing are the same for an ordinance and an ordinance that amends an ordinance. Regarding publishing of ordinances, for code cities RCW 35A.12.160, in relevant part, provides:

    Promptly after adoption, the text of each ordinance or a summary of the content of each ordinance shall be published at least once in the city's official newspaper.

    For purposes of this section, a summary shall mean a brief description which succinctly describes the main points of the ordinance. Publication of the title of an ordinance authorizing the issuance of bonds, notes, or other evidences of indebtedness shall constitute publication of a summary of that ordinance. When the city publishes a summary, the publication shall include a statement that the full text of the ordinance will be mailed upon request.

    The identical requirement applies to all other city classifications: see RCW 35.22.288 (first class cities); RCW 35.23.221 (second class cities); RCW 35.27.300 (towns). Note that this publication requirement gives the city the option of either publishing the text of each ordinance or a summary of its content.

    Regarding how many times an ordinance must be published, these statutes provide that the city publish, promptly after adoption of each ordinance, the text of the ordinance or a summary of the content of the ordinance "at least once" in the official newspaper of the city.

    (Link to this question)

    Our regular city council meetings are on the first and third Tuesdays of each month. Do we need to submit a notice to the newspaper that a meeting will take place for each occurrence?
    Reviewed: 01/14

    Once you have formally established a regular meeting schedule for the city council by ordinance or resolution, there are no further notice requirements in the Open Public Meeting Act itself for those regular meetings. So no notice to the newspaper is required for that regular meeting.

    However, note that RCW 35A.12.160 requires that every city is to establish a procedure for notifying the public of the preliminary agendas for upcoming council meetings. This does not mean it has to be published in a newspaper, and few cities require that. But some procedure must be established - we believe most cities publish the preliminary agenda in advance on their website or physically at city hall or both. This would be sufficient to satisfy the statutory requirement.

    So no additional notice of the regular meeting itself is required, but some method must be established to notify the public of the preliminary agenda in advance of the meeting.

    (Link to this question)

    What is the effective date of ordinances in a code city?
    Reviewed: 01/14

    RCW 35A.12.130 provides that ordinances in mayor-council code cities become effective five days after publication, and RCW 35A.13.190 provides the same for council-manager code cities. Under both these statutes, emergency ordinances - those "necessary for the protection of public health, public safety, public property or the public peace" - can be made effective immediately upon adoption. A code city council can also specifically provide in the ordinance for a delayed effective date.

    However, in code cities that have adopted the powers of initiative and referendum, ordinances cannot, with some exceptions, go into effect until at least 30 days after passage, because they are subject to the filing of a referendum petition during that period. The exceptions to this 30-day requirement are identified in RCW 35A.11.090 and include emergency ordinances that can be made effective immediately, and ordinances authorizing or repealing the levy of taxes, ordinances appropriating money, ordinances initiated by petition, and ordinances providing for the compensation of or working conditions of city employees, all of which would be subject to the five-day rule.

    (Link to this question)

    When can a council in a mayor-council code city require confirmation of mayoral appointments?
    Reviewed: 01/14

    The controlling statute for this issue is RCW 35A.12.090. This statute provides that the mayor is the appointing authority in such a city. However that statute provides in part:

    Confirmation by the city council of appointments of officers and employees shall be required only when the city charter, or the council by ordinance, provides for confirmation of such appointments. Confirmation of mayoral appointments by the council may be required by the council in any instance where qualifications for the office or position have not been established by ordinance or charter provision. Appointive offices shall be without definite term unless a term is established for such office by law, charter or ordinance.

    So this statutory language makes several points. First, confirmation is not required for a position unless the council takes some formal action to require confirmation, such as adopting a confirmation ordinance. And, it provides a limitation a council cannot require confirmation for positions where the council has already set out specific qualifications for the position. If the council has not adopted any qualifications for the position, then the council can require confirmation of the appointment.

    (Link to this question)

    Must minutes of city council and council committee meetings still be "written," as opposed to keeping an audio or video tape instead?
    Reviewed: 01/14

    Although there is very little guidance in state law concerning minutes of council meetings, here is what the statutes say. First, RCW 42.32.030 states:

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

    For code cities, RCW 35A.12.110 provides that at meetings of the council that "A journal of all proceedings shall be kept, which shall be a public record." For second class cities, RCW 35.23.270 requires:

    All orders of the city council shall be entered upon the journal of its proceedings, which journal shall be signed by the officer who presided at the meeting. The journal shall be kept by the clerk under the council's direction.

    And, for towns, RCW 35.27.220 states that " The town clerk shall keep a full and true account of all the proceedings of the council," and RCW 35.27.280 provides that, "At the desire of any member, the ayes and noes shall be taken on any question and entered in the journal."

    Whatever method is used for the keeping of council minutes, the minutes must be: (1) readily available for public inspection; and (2) capable of being included in a journal of proceedings kept as a public record. If an audio or video tape is used instead of written minutes, we have concerns about whether such tapes alone could comply with these provisions. It would be difficult to make a video/audio tape open to public inspection. Additionally, how could video/audio minutes be retained in the city's official journal of proceedings?

    In our opinion, "written" minutes are still required, but as new technology develops, these concerns might be overcome and the legislature may adjust to new technologies by creating different recording requirements and options.

    (Link to this question)

    May a town councilmember connect to a council meeting by means of speakerphone?
    Reviewed: 01/14

    Although there is no specific authorization in state law, this office has taken the position that it is legal for a city or town council to allow participation of a councilmember to a meeting by means of a speakerphone. This means there is two-way communication and that the councilmember on the phone line can both hear what is happening at the meeting and be heard by those present at the meeting. If authorized by the town council, this can be considered to be attendance at the meeting, and that councilmember would count towards the quorum.

    Some cities have enacted specific rules of procedure that allow participation in council meetings by speakerphone; some allow it generally and some allow such participation on a more limited basis. This is within the discretion of the city or town council. We recommend that the council clarify in its rules of procedure whether and under what circumstances participation by speakerphone will be allowed.

    (Link to this question)

    May the council take final action on an item at a council work session?
    Reviewed: 01/14

    The issue concerns what may be done at a council workshop - specifically whether it is legal to vote at a council workshop. The short answer is that, based on state law, it is legal to vote on an issue at a council workshop. We should note though, some city councils have local rules of procedure that prevent voting at council workshops, and, if the city council has adopted such a rule, then, of course, it would prevent voting at a council workshop.

    The Open Public Meetings Act (OPMA) recognizes only two kinds of meetings: regular meetings and special meetings. A regular meeting is one where the meeting schedule is formally adopted by means of an ordinance or resolution, and the governing body meets routinely on that fixed schedule. A special meeting refers to a meeting that is called on a one-time basis for some specified purpose. The council workshops in your city are apparently held on a regular basis on a schedule that has been formally adopted, so these workshops would be considered to be regular meetings of the city council under the OPMA. And it is legal, of course, to take "final action," in this case take a vote, at a regular meeting of the city council. So, it does not violate state law for the council to vote at a council workshop.

    We would add one caution, however. Although it is legal under state law, the term "council workshop" or "study session" usually is understood by the public and media as referring to meetings at which the council will only consider and discuss items and not take final action or vote. So, if the council routinely takes final action at a council workshop, it may be misleading to the public as to the purpose of the meeting to label these "council workshops." If, on the other hand, voting only occurs rarely because of some special circumstance, then the public may be surprised when a vote is taken.

    (Link to this question)

    When must the local government attorney be present at an executive session?
    Reviewed: 01/14

    The local government attorney, or other legal counsel representing the agency, must be present during the executive session to discuss litigation or potential litigation with the governing body. RCW 42.30.110(1)(i). So the council or board may meet in executive session for any of the other reasons listed without such attorney being present.

    Also, it is our opinion that it is legally permissible for the attorney to be "present" at the executive session by means of speaker phone; that option may save money in some circumstances.

    (Link to this question)

    If a city ordinance is repealed by means of a referendum, is there a statutory limitation on when the council could reenact the provision?
    Reviewed: 01/14

    There is no prohibition on a city council reenacting an ordinance after it has been repealed by a local referendum election, and there is no required waiting period before it could be reenacted. Though, of course, such a decision to reenact may have political consequences, even if it is not specifically prohibited in state law.

    (Link to this question)

    Does the mayor in a mayor-council form of government count toward the quorum?
    Reviewed: 01/14

    No. The mayor is part of the governing body but does not count toward the quorum. For code cities, RCW 35A.12.120 provides as follows:

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

    The mayor is not a councilmember and so does not count towards the quorum. See also RCW 35.23.270 (second class cities) and RCW 35.37.280 (towns).

    (Link to this question)

    Do you have any examples of ordinances or rules of procedure that allow councilmembers to attend meetings by Skype or similar media?
    Reviewed: 01/14

    We could not find any examples of council policies that specifically mentioned Skype, however we have several examples of city council policies and rules of procedure that set out the circumstances when remote participation in a meeting, in these cases by speakerphone, may be allowed. It should be simple to include a generic definition of the Skype technology to any of these that seem suitable for the council’s consideration:

    (Link to this question)

    If the city council is holding a special meeting solely for the purpose of holding an executive session, must the notice of the special meeting state the purpose of the executive session, or is just stating that there will be an executive session sufficient?
    Reviewed: 01/14

    The notice of the special meeting should identify not only that an executive session will be held but also the subject of the executive session. RCW 42.30.080 requires that the notice of a special meeting must identify "the time and place of the special meeting and the business to be transacted." Because the "business to be transacted" will be a discussion of a certain matter for which the council is authorized to meet in executive session, that subject matter for discussion in exective session should be identified. It’s not like the council doesn’t know what it will be holding an executive session for. So, there is no reason for not identifying the purpose of the executive session.

    (Link to this question)

    Is there a statute that mandates that all county board of commissioner meetings be audio recorded?
    Reviewed: 01/14

    No state law mandates audio recording of meetings of the board of county commissioners, although (as explained below) for some types of public hearings, recording is necessary. Some statutory provisions refer to keeping a "record" of meetings of the governing body, but they don't require audio recording. See, e.g., RCW 42.32.030, RCW 36.32.110, RCW 36.32.140. An official summary of the proceedings through meeting minutes is sufficient.

    That said, we recommend audio and/or video recording of board meetings, because the recordings provide a detailed record of what transpired at such public meetings and are particularly helpful to those who prepare the meeting minutes on behalf of the board.

    Note, though, that different requirements apply to quasi-judicial hearings where specific findings are required and for which a transcript may need to be made for judicial review. Washington courts have held that a verbatim record is required to prepare an adequate record for review of quasi-judicial matters, which means that even a close paraphrase of the proceedings would be insufficient. The potential need for such a transcript essentially means that an audio (and/or video) recording is required for any hearing involving testimony upon which the legislative body will base its decision and which will become part of the record in the event of judicial review.

    (Link to this question)

    Request for information on procedures for creating and appointing a citizen advisory board for the city council.
    Reviewed: 01/14

    Please see the following web resources:

    Also, the following are excerpts from a few council procedure manuals pertaining to the creation, selection, and appointment of citizen advisory boards:

    Port Townsend

    4.2 General Rules Applicable to Citizen Advisory Boards

    SECTION 4.2.1 Definitions

    An "Advisory Board" means any Committee or Commission created by the City Council to give advice on subjects and perform such other functions as prescribed by the City Council. Advisory Board also includes task forces, informal committees, or working groups formed by City Council resolution for short periods of time or for specific tasks.

    SECTION 4.2.2 Purpose and Application

    The purpose of this section is to establish general provisions applicable to all Advisory Boards. The provisions of this resolution govern Advisory Boards unless otherwise specifically provided by ordinance, motion or resolution of the City Council, or as may be required by state law. In establishing an Advisory Board, the Council shall consider the following:

    1. Scope of work, and clear task description
    2. Term of board - sunset provision
    3. Membership, nomination and confirmation process, and residency or other special member requirements
    4. Terms of office
    5. Place of board within City or Council structure - who does board report to?
    6. Councilmember liaison (if any)
    7. Time frames for board action on tasks
    8. Time frames for Council or Committee action; for example, periodic review or interim reports
    9. Staffing (if any) for board, and which City Department bears any staffing responsibility or expense for Board
    10. Any other matters appropriate to the Board's work

    SECTION 4.2.3 Scope of Work

    A. Each Advisory Board, when it is formed, will have a specific statement of purpose and function, which will be re-examined periodically by the City Council to determine its effectiveness. This statement of purpose, as well as other information regarding duties and responsibilities, will be made available to all members when appointed.

    B. The City Council may determine any specific guidelines or tasks to be referred to the Advisory Board by motion or resolution

    C. Each Advisory Board shall develop a scope of work, within the jurisdiction and area of responsibility consistent with the City Council resolution forming the Board.

    SECTION 4.2.4 Membership, Nomination and Confirmation Process, and

    Residency Requirements

    The number of members and any specific qualifications of each Advisory Board shall be set forth by resolution of the City Council.

    Unless otherwise specifically provided by applicable resolution or motion, or as may be required by state law, the following procedures and requirements shall apply to all members of each

    Advisory Board:

    A. Each person at the time of nomination and continuing uninterrupted thereafter while serving on an Advisory Board, shall be a resident of and/or work in the City of Port Townsend.

    B. Each person to be appointed shall be nominated by the Mayor for a specific numbered position on each Advisory Board.

    C. Each person shall e deemed appointed and shall commence service after confirmation by the City Council or on the effective date of the previous member's resignation, or on the expiration of the existing term for the position, as applicable.

    D. Each confirmation motion by the Council shall include ending date and term for the position to which the person is appointed and such information shall be entered into the Council minutes.

    SECTION 4.2.5. Officers - Identification and Election

    Each Advisory Board shall elect from its membership a presiding officer who shall be referred to as chairman, chairwoman, or chairperson, as determined appropriate by the Advisory Board, and such officer shall serve for one year, or until the Board discontinues its operation, whichever is shorter. The Advisory Board may elect other officers as it deems necessary and such officers shall be set forth in the rules of procedure adopted by the Advisory Board.

    SECTION 4.2.6. Quorums, Transacting Business

    A majority of the appointed members of the Advisory Committee shall constitute a quorum for the transaction of business. An affirmative vote of the majority of a quorum in attendance at any meeting shall be necessary to transact business or carry any proposition.

    SECTION 4.2.7. Terms of Office and Vacancies

    Appointments to boards shall be provided for in the resolution establishing or providing for a board. Vacancies shall be filled by the City Council, upon nomination from the mayor, for the unexpired term in the same manner as the original appointment. Membership vacancies other than through expiration of term shall be filled for the unexpired term. Any member may be removed by Council action based on Council decision that removal is in the best interests of the City.

    Removal should not occur for disagreement with an official recommendation of the board or its members.

    SECTION 4.2.8. Conflicts of Interest

    If any members of an Advisory Board conclude that they have a conflict of interest or an appearance of fairness problem with respect to a matter pending before the Advisory Board so that they cannot discharge their duties on such an Advisory Board, they shall disqualify themselves from participating in the deliberations and the decision-making process with respect to the matter.

    SECTION 4.2.9. Liaisons and Representatives

    A City Council representative may be available to each Advisory Board for the purpose of providing a constructive relationship between the City Council and the Advisory Board without implying direction, review, or oversight of the activities of the Advisory Board.

    SECTION 4.2.10. Procedures, Records, and Minutes

    Rules of order not specified by statute, ordinance or Council resolution shall be governed by The Scott, Foresman Robert's Rules of Order Newly Revised - 1990 Edition (published by Scott, Foresman and Company), as the same may be amended or updated. The Advisory Board may adopt supplemental rules of procedure. The Advisory Board shall provide for the taking of minutes and maintaining the records of all regular and special meetings. Any Advisory Board may establish standing or ad hoc committees comprised of Board members to assist in accomplishing its duties and responsibilities. Committee minutes shall be filed with the City Clerk's office within 10 days of approval.

    SECTION 4.2.11. Meetings

    Each Advisory Board shall hold regular meetings at such times and places as is deemed advisable or as provided for in the resolution establishing the board. All meetings of the entire body and of any subcommittee or task force of the Advisory Board shall be subject to all requirements of the Washington Open Public Meetings Act, and shall be open to the public, and shall be held at a public place at a regularly scheduled time, or at a special meeting time following notice as set by the City Manager. Notice of all meetings shall be provided to the Clerk's office for publication.

    No meeting shall be scheduled without at least 48 hours notice to the Clerk's office unless special arrangements are otherwise made with the City Clerk or City Manager.

    SECTION 4.2.12 Communications to City Council

    Expressions of an Advisory Board's position, recommendation or request for any action shall be in the form of a resolution, motion, or other written communication, setting forth the reasons, facts, policies, and/or findings of the body supporting the communication, and shall be directed to the City Council and Manager.

    Communications from such boards, commissions and bodies to the City Council shall be acknowledged by the Council. The Presiding Officer shall state: "So noted for the record", and thereafter the City Clerk shall make an appropriate notation in the minutes. Any member of the Council may bring such communication to the Presiding Officer's attention under the agenda item

    "Committee, Board and Liaison Reports." Should any member of the Council determine that any such communication be officially answered by the Council, the Presiding Officer shall place the matter on the agenda under New Business for the current meeting or any subsequent meeting.

    SECTION 4.2.13. Compensation and Reimbursement of Expenses

    Members of Advisory Boards shall serve without compensation. Members shall be reimbursed for authorized travel expenses incidental to that service, which are authorized by the City Manager or by City Council resolution or motion. Members should seek pre-authorization for any proposed expense.

    SECTION 4.2.14. Lobbying Efforts

    Lobbying efforts by any Advisory Board on legislative or political matters should first be checked for consistency with existing City policy by contacting the City Manager's office. In the event a position is taken that differs from that of the City's policy, an Advisory Board cannot represent that position publicly or before another body, for example, the State Legislature or the Board of County Commissioners. An Advisory Body is free to communicate positions to the Council or a Council Committee on matters pertaining to the Body's purpose and function. A member of the Advisory Board is not authorized to speak for the Board, unless the Board has expressly authorized the member's communication. An individual member is free to voice a position, oral or written, on any issue as long as it is made clear that the member is not speaking as a representative of the City, or as a member of an Advisory Board.

    End of Article 4 - Committees, Boards & Commissions

    **********************

    Puyallup Council Rules of Procedure

    SECTION 8 CITY ADVISORY COMMITTEES

    8.1 Puyallup's commissions, committees and task forces provide an invaluable service to the City. Their advice on a wide variety of subjects aids the Mayor and Councilmembers in the decision-making process. Effective citizen participation is an invaluable tool for local government. These advisory bodies originate from different sources. Some are established by ordinance while others are established by resolution or motion of the City Council. It is at the discretion of the Council as to whether or not any advisory body should be established, other than those required by State law. Puyallup advisory bodies bring together citizen viewpoints which might not otherwise be heard. Persons of wide-ranging interests who want to participate in public service but not compete for public office can be involved in governmental commissions, committees and task forces.

    The following policies govern the City's advisory groups; some of these advisory groups may have more specific guidelines set forth by ordinance or resolution, or at times by State law.

    8.2 No committee board or commission shall have official or legal status until such committee or board or commission has first been approved by resolution or ordinance of the City Council.

    8.3 Every advisory body will have a specific statement of purpose and function, which will be reexamined periodically by the City Council to determine its effectiveness. No board or committee shall have powers other than advisory to the City Council or City Manager except as specified by the Puyallup Municipal Code.

    8.4 Any committee, board, or commission created by ordinance or resolution of the City Council, shall cease to exist upon the accomplishment of the special purpose for which it was created, or when abolished by majority vote of the Council.

    8.5 An Appointments Committee composed of the newly elected Mayor and two members of Council shall be designated at the first regularly scheduled meeting in January following a City Council election. The term of service on the Appointments Committee shall be two years. Meetings of this Committee will be convened on an ad hoc, or as needed, basis.

    The City Clerk shall inform the Appointments Committee of pending vacancies on boards and commissions and shall schedule meetings as necessary for the Committee to consider applications for appointment. Committee recommendations on appointments shall be submitted to the full Council for approval by resolution.

    8.6 Vacancies for citizen boards and commissions shall be advertised in the City's official newspaper so that any interested citizen may submit an application. Applicants are urged to be citizens of the City of Puyallup, but applications from residents living outside of the corporate boundaries also receive consideration under certain
    circumstances. Councilmembers are encouraged to solicit applications from qualified citizens. Applications shall be available from the Office of the City Clerk.

    8.7 Applications of citizens not recommended for appointment to an advisory body will be filed in the Office of the City Clerk for reconsideration whenever a position becomes available consistent with the applicant's qualifications or interests.

    8.8 Lengths of terms vary from one advisory body to another, but in all cases overlapping terms are intended, unless otherwise provided by State law. On special work task forces, where a specific project is the purpose, there need not be terms of office.

    8.9 Newly-appointed members will receive a briefing by the commission, committee or task force chairperson and/or City staff, regarding duties and responsibilities of the members of the advisory body.

    8.10 All advisory bodies will be responsible for adopting their operating policies consistent with the establishing resolution or ordinance.

    8.11 All meetings of advisory bodies are open to the public in accordance with the public meeting laws of the State of Washington which requires a minimum 24-hour advance notice; no advisory committee will schedule a meeting earlier than 7:00 a.m.

    8.12 Excessive absenteeism, excluding illness or required travel, is cause for the removal of an advisory body member. Three consecutive absences will be considered resignation from the body unless prior to the third absence, the member has requested, and been granted, an excused absence. The advisory body granting the excused absence will determine the validity of the request.

    8.13 Members may resign at any time their personal circumstances change to prevent effective service.

    8.14 Members may be removed, from any advisory committee, prior to the expiration of their term of office, by a majority vote of the City Council.

    8.15 A quorum for conducting business is a simple majority of the membership of the advisory body.

    8.16 All members of advisory bodies should be aware of the need to avoid any instance of conflict of interest.

    No individual should use an official position to gain a personal advantage.

    8.17 Lobbying efforts by any advisory bodies on legislative, or political, matters should first be checked for consistency with existing City policy by contacting the City Manager's office. In the event a position is taken that differs from that if the City's policy, an advisory body acting as an official body of the City of Puyallup, cannot represent that position before another body, i.e., the State Legislature or Pierce County Council. An individual member is free to voice a position, oral or written, on any issue as long as it is made clear that he or she is not speaking as a representative of the City of Puyallup, or as a member of his or her commission, committee or task force.

    **********************

    Kennewick Council Rules of Procedure:

    7. Creation of Committees, Boards and Commissions

    7.1 Citizen Committees, Boards and Commissions: The Council may create committees, boards, and commissions to assist in the conduct of the operation of the city government with such duties as the Council may specify not inconsistent with the Kennewick Municipal Code.

    7.2 Membership and Selections: Membership and selection of members shall be as provided by the Council if not specified by the Kennewick Municipal Code. Any committee, board, or commission so created shall cease to exist upon the accomplishment of the special purpose for which it was created, or when abolished by a majority vote of the Council.

    No committee so appointed shall have powers other than advisory to the Council or to the City Manager except as otherwise specified by the Kennewick Municipal Code.

    7.3 Removal of Members of Boards and Commissions: The Council may remove any member of any board or commission which it has created by a vote of at least a majority of the Council.

    **********************

     

    (Link to this question)

    Must members of the public be allowed to speak at a council or commission committee meeting?
    Reviewed: 01/14

    The Open Public Meetings Act requires that the public be allowed to attend, but it does not require that the public be allowed to speak during council or commission meetings. It is up to the council or commission, or, in this case, the committee, to decide its own rules about public participation. Most, if not all, cities and counties set aside a limited period of time during regular council/commission meetings for public comment, but state law does not require this. There may be times when the committee may want public comment, or even limited public comment; but there may also be times when the committee wants to eliminate public comment entirely. Whatever the committee decides, it is a good idea to state the rules at the beginning of the meeting.

    (Link to this question)

    May a councilmember attend a committee meeting of which s/he is not a member and where her/his attendance would create a quorum of the council?
    Reviewed: 01/14

    Yes, if council rules allow her/his attendance and notice of the meeting is provided in accord with the state Open Public Meetings Act (OPMA).Whenever a quorum of the city council is meeting together to discuss city business, that would constitute a "meeting" of the city council for the purposes of the OPMA. So if a quorum is present, even if one of the councilmembers is not actively participating, that committee meeting would be subject to the requirements of the state OPMA relating to special meetings - which means the meeting must be open to the public and notice must be given as provided in RCW 42.30.080.

    (Link to this question)

    Request for information on typical city council committees.
    Reviewed: 01/14

    • Request for information on typical city council committees.

    There is no statute that specifically addresses the establishment and operation of internal city council committees, we believe the authority for this can be found in RCW 35A.12.120, which provides, in part:

    The council shall determine its own rules and order of business and may establish rules for the conduct of council meetings and the maintenance of order.

    Under this authority, the city council may enact rules and regulations to govern the conduct and operations of the city council. This authority includes the ability to determine if and when standing committees will be utilized, what the committees will be, how they will conduct their business, and how their members will be appointed. Many city councils have adopted rules of procedure to address these issues.

    It is hard to say with much certainty what types of committees are most typical. There is not as much uniformity out there as one might expect.  No two cities are exactly alike. The duties, responsibilities and operations of council committees under this same authority are all matters for the city council to determine. The duties and responsibilities of individual council committees are generally established by council ordinance or resolution.  If the council has not yet adopted such rules you may want to consider doing so. MRSC’s Web page on “Council/Board of Commissioners Rules of Procedure” may be of some assistance for this purpose.

    The only national survey we have seen on this was done by the International City/County Management Association back in 1993 ("Use of Council Committees in Local Government," Baseline Date Report, May/June 1993). That survey distinguished between "standing" and "ad hoc" committees. Standing committees are permanent bodies with jurisdiction over specific on-going policy areas such as finance and public safety. Ad hoc committees are temporary committees established to investigate and advise on more short-term issues and problems. That report observed:

    Although standing committees cover a wide range of policy areas, some types of committee are more prevalent among local governments. Among the standard types are planning and zoning, community development, parks and recreation, cable television, civil service, budget and finance, beautification and code enforcement, and senior citizen services committees.

    Based on a limited review of Washington municipal codes the most common city council committees appear to be budget/finance, public safety, community development, public works and parks/recreation or some combination of these. Since there are no required council committees, whether and what type of committees a city should have is strictly a matter of local policy.

    The following Web pages include brief descriptions of council committees:

    Bainbridge Island

    Seattle

    Des Moines

    Redmond

    Enumclaw

    Olympia

    We have included municipal code excerpts below detailing the council committees established in several Washington cities:

    Port Townsend

    STANDING COMMITTEES

    The Council shall have three (3) standing committees:

    I. Finance and Budget
    II. Community Development and Land Use
    III. General Government

    /Corporate/media/MediaLibrary/SampleDocuments/GovDocs/p57-rop.pdf

    Mount Vernon

    Mount Vernon Municipal Code, Title 2, Sec. 2.12.130 – Committees

    Bonney Lake

    Web page on Bonney Lake Council Committees

    2.04.860 Definition and scope of council standing committees.

    The standing committees of the council and the scope of their duties are described as follows. The council may amend these committees as they deem necessary.  All issues for council meeting agendas shall be reviewed by the appropriate council committee, except those issues identified as approved for council workshops or as council may approve, prior to submitting to the city clerk for scheduling. Each council standing committee shall meet and hold meetings a minimum of 12 times per year.

    A. Finance Committee. The chair of the finance committee shall be the deputy mayor. The chairs of the community development committee and the public safety committee shall also serve on this committee with the deputy mayor.

    The finance committee was created for the purpose of advising the city council on matters concerning the general fiscal and financial operations of the city, budget and financial reports, policy matters related to city finances and personnel, including, but not limited to, the salary grade schedule, position classifications and salary changes in coordination with the mayor, finance officer and city administrator.

    B. Voucher Review Committee. The chair of the voucher review committee shall be the deputy mayor. The voucher review committee was created for the purpose of reviewing all monthly city payable vouchers and payroll and to make recommendations to the city council for payment approval of the city's expenditures at a minimum of twice per month.

    C. Public Safety Committee. The public safety committee was created for the purpose of advising the city council on matters concerning the overall safety of the citizens who live within our community that pertain to police and fire protection, the municipal court, emergency services and animal control in coordination with the police department, fire department and civil service commission.

    D. Community Development Committee. The community development committee was created for the purpose of advising the city council on matters related to the planning of the physical, economic, aesthetic, cultural and social development of the city zoning codes, building codes, sign codes, annexation policies, parks and recreation and all city utilities in coordination with the planning department, planning commission, building department, parks department and the public works department. (Ord. 890 1(16.1), 2001).

    Brewster

    2.08.010Established - Designated Membership.

    There shall be appointed by the mayor to serve during his pleasure, the following standing committees:

    A. A committee on public health, consisting of three members;
    B. A committee on streets, alleys and sidewalks, consisting of three members;
    C. A committee on police, fire protection and water supply, consisting of three members;
    D. A committee on audit and finance, consisting of three members;
    E. A committee on license, consisting of three members. (Ord. 8, 1910)
    (Not available online)

    Carnation

    COMMITTEES

    Sections:
    2.36.010 Establishment.
    2.36.020 Term.
    2.36.030 Council chairperson.
    2.36.040 Council vice-chairperson.
    Section 2.36.010 Establishment.

    The following legislative committees are established to be comprised of members of the city council of the city, with the purpose and duties as set forth:

    A. Community Development Committee. The primary purpose of the Community Development Committee is to review and advise upon on all matters of policy coming before the city council involving the physical and economic development of the city, including subdivision, housing, building and zoning matters, development and redevelopment, downtown economic and physical development, environmental quality issues, and such other matters as may be assigned to this committee.

    B. Finance and Operations Committee. The primary purpose of the Finance and Operations Committee is to review and advise upon on all matters of policy coming before the city council involving city financial affairs and on general operations of the city, including the review of all requisition vouchers for payment; personnel matters of the city; general administration; grants and interlocal agreements, and such other matters as may be assigned to this committee.

    C. Public Health and Safety Committee. The primary purpose of this committee is to review and advise upon on all matters of policy coming before the city council involving public health, welfare, and safety pertaining to the city, including public health, animal control, fire and police protection and law enforcement, and such other matters as may be assigned to this committee.

    D. Utilities and Public Facilities Committee. The primary purpose of this committee is to review and advise upon all matters of policy coming before the city council involving facilities of the city, including streets, parks, public buildings, and utility operations and capital activities, including water and wastewater systems and operations; solid waste collection and disposal including recycling and waste reduction; maintenance and improvement of all city properties and infrastructure, and such other matters as may be assigned to this committee. (Ord. 481 § 1, 1993; Ord. 374 § 1, 1988)

    Chewelah

    Section 2.12.050 Standing committees.

    The mayor shall appoint the following standing council committees: Finance, police/fire, streets, parks and recreation and water/sewer. Each committee shall have three members. The mayor may also establish and appoint members to other special committees from time to time as he or she deems necessary. Each special committee shall have three members. (Ord. 569 § 1, 1991: Ord. 110 § 2 (part), 1936; Ord. 19 § 1 (Rule 5), 1906)

    Duvall

    2.01.070 Council committees.

    The following designated committees shall be standing committees of the City Council and the membership of each committee shall be appointed by a majority vote of the Council for the respective term of the councilmembers so appointed or as otherwise determined by the City Council:

    A. Finance and Personnel Committee. This committee shall be primarily responsible for all matters relating to fiscal policies of the City, including but not limited to appropriations, income and revenues, the auditing of expenditures and claims, as well as reviewing personnel issues as directed by the Mayor or City Council.

    B. Public Works Committee. This committee shall be primarily responsible for all matters pertaining to the environment, pollution, waste disposal, construction, renovation, modification and maintenance of public works facilities, including but not limited to municipal water and sewer systems, garbage and storm sewer systems and all other matters and issues directly or indirectly related to these subjects.

    C. Streets Committee. This committee shall be primarily responsible for all matters pertaining to street and right-of-way improvements, including maintenance and operation thereof, and recommendations regarding capital improvements and acquisitions.

    D. Public Safety and Parks Committee. This committee shall be primarily responsible for all matters pertaining to health and safety, animal control, public safety, and recreation, including the operation, function, maintenance, and acquisition of City parks, and all other matters and issues related thereto.

    At each City Council meeting a report from the standing committee shall be made by the committee chairperson or other designee. When needed, staff assistance to a committee shall be assigned by the Mayor. No committee shall consist of more than two city council members. The committees shall not have any authority to act on behalf of the whole City Council nor shall such committees conduct hearings or take testimony or public comment.
    (Added Ord. 745, 1995)

    http://www.bpcnet.com/codes/duvall/ _DATA/TITLE02/Chapter_2_01_CITY_COUNCIL/2_01_070_Council_committees_.html

    Omak

    STANDING COMMITTEES

    Sections:
    2.08.010Designated--Mayor to appoint.

    2.08.010Designated--Mayor to appoint.

    There shall be appointed by the Mayor to serve during his pleasure the following standing committees:

    (a) A committee on audit and airport, consisting of three members;
    (b) A committee on parks, consisting of three members;
    (c) A committee on streets and alleys, consisting of three members;
    (d) A committee on police, fire, and licenses, consisting of three members;
    (e) A committee on cemetery, consisting of three members;
    (f) A committee on water and sewer, consisting of three members;
    (g) A committee on sanitation and public health, consisting of three members;
    (h) A committee on personnel, consisting of three members. (Ord. 1036, 1988: Ord. 423 § 1, 1960).
    Chapter 2.14

    (Not available online)

    Redmond

    2.32.010 Creation.

    The following standing committees of the City Council are created and established:

    (1) Public Administration and Finance;
    (2) Public Safety;
    (3) Planning and Public Works;
    (4) Parks and Human Services;
    (5) Regional Affairs. (Ord. 1817 § 1 (part), 1994: Ord. 1573 § 2, 1990: Ord. 1232 § 1 (part), 1985: Ord. 635 § 1, 1974).

    Tukwila

    2.04.030Council committees and representatives.

    A. The Council shall sit as a Committee of the Whole on the second and fourth Mondays of each month at 7:00 p.m., except that if at any time any Committee meeting falls on a holiday, the Council shall meet on the next business day at the same hour. Council committees shall meet at Tukwila City Hall, unless otherwise publicly announced.

    B. Meetings of the Committee of the Whole shall be held primarily for the purpose of considering current problems of the City and coordinating the work of individual committees of the City Council. The Committee of the Whole shall have no power to take any official action other than to refer matters to committees or to a regular Council meeting. The Council President shall set the agenda for the Committee of the Whole meeting.

    C. The Council shall meet as a Committee of the Whole in a planning retreat at the beginning of each year in order to plan their agenda and set their goals for that year. The time and place of the retreat shall generally be held on the third weekend in January.

    D. Results of the Committee of the Whole's planning retreat will be discussed in a joint session with the Mayor and administration in order to establish mutual City goals.

    E. There are established the following four standing committees of the Council that shall consist of three members each. The Council President shall appoint the membership of each committee and the committee chairmen by the second regular meeting of each year. The chairman of each committee shall set the schedule of meetings and cause them to be published. The committee chairman shall set the agenda of the committee meetings. The standing committees shall consider, and may make policy and legislative recommendations to the City Council on, items referred to the committee by the Council President, the Council, administrative departments, boards or commissions. If budgeted in an amount less than or equal to $25,000, a committee can approve a bid or negotiation award by an affirmative vote of three committee members. If a unanimous committee vote is not obtained, the award will be referred to the City Council for action. The standing committees, their scope of authority and the supporting City departments are as follows:

    1. Transportation Committee, which shall consider matters related to transportation, transportation plans, traffic, transit, streets, street lighting, signals, and street LID's, in coordination with the Public Works Department and Planning Department.

    2. Utilities Committee, which shall consider matters related to water, sewer, electric power, natural gas, telephone, cable television, storm drainage, river basins and levies, in coordination with the Public Works Department.

    3. Finance and Safety Committee, which shall consider matters related to the general fiscal and financial operations of the City; budget and financial reports, policy matters related to personnel, including, but not limited to, the salary grade schedule, position classifications and salary changes in coordination with the Finance Department and City Administrator; and matters related to police and fire protection, the Municipal Court, emergency services and animal control, in coordination with the Police Department, Fire Department, Civil Service Commission and City Clerk.

    4. Community Affairs and Parks Committee, which shall consider matters related to the planning of the physical, economic, aesthetic, cultural and social development of the City Zoning Code, Building Code, Sign Code, and annexation policies, in coordination with the Planning Department, Planning Commission, Arts Commission, Hearing Examiner, and Sister Cities Committee; and shall consider matters relating to parks and park lands, recreation facilities and activities, in coordination with the Parks and Recreation Department and the Parks Commission.

    F. The Council President may establish such ad hoc committees as may be appropriate to consider special matters that do not readily fit the standing committee structure or that require special approach or emphasis. The Council President shall appoint Council representatives to intergovernmental councils, boards and committees by the third regular meeting of each year. These agencies may include the Puget Sound Council of Governments (two representatives), Puget Sound Energy Committee, and Policy Advisory Committee for the Port of Seattle.

    G. Council committees shall consider all matters referred. The committee chairman shall report to the Council the findings of the committee. Committees may refer items to the Council with no committee recommendation.

    H. The legislative analyst shall be responsible for preparing and causing to be distributed all agendas and minutes of committee meetings.

    (Ord. 1796 §3(part), 1997; Ord. 1421 §2, 1987; Ord. 1311 §5, 1984)

    (Not available online)

    Woodland

    2.04.070Council standing committees.

    A. Created. There are created the following committees of the city council, with the staff member designated in parenthesis being the committee's administrative liaison and resource person:

    1. Human resources/government (clerk-treasurer);
    2. Finance (clerk-treasurer);
    3. Public safety (police and fire chiefs);
    4. Public utilities (public works director);
    5. Parks and recreation (public works director).

    B. Mayor as Ex Officio Member. In addition, the mayor shall be an ex officio member to all the above committees.

    C. Assignment of Members--Chair. Each standing committee shall be composed of two councilmembers. Councilmembers shall be assigned to a committee as determined by the mayor and city council after each council election or more frequently, but in no event more frequently than annually unless vacancies occur. A chair shall be designated by the committee or the mayor and full council as the council and mayor shall elect.
    (Ord. 843 § 3 (part), 1997)

     

     

    (Link to this question)

    Request for articles on conducting a successful retreat
    Reviewed: 01/14

    • Request for articles on conducting a successful retreat

    Here are a few general articles on retreats (including city council retreats)

    The following items are available for loan from the MRSC Library:

    • "The Retreat as Management Tool," IQ Service Report, Vol. 33, No. 1, January 2001

    Examples of Retreat Materials from Cities:

    (Link to this question)

    May a city council or county commission authorize settlement of a claim in an executive session?
    Reviewed: 01/14

    A city council or county commission can discuss settlement of a claim in executive session but must approve the settlement in an open meeting. This is the conclusion in Feature Realty v. City of Spokane, 331 F.3d 1082 (2003).

    The settlement probably could be approved as part of the consent agenda if it is listed as a separate item and approved in an open meeting.

     

    (Link to this question)

    May a governing body meet in executive session to review applicants for public employment and reduce the number of applicants (i.e., make a preliminary cut)?
    Reviewed: 01/14

    Under Washington case law, it does not appear so. RCW 42.30.110(1)(g), which authorizes a governing body to meet in executive session "to evaluate the qualifications of an applicant for public employment," requires that "final action hiring" of an applicant be done in open session, could be read to imply that less than final action hiring, i.e., making a preliminary cut, would be permissible in executive session. However, that argument was specifically rejected in Miller v. City of Tacoma, 138 Wn.2d 318 (1999), where the state supreme court addressed whether the city council could conduct a series of ballots in executive session to arrive at a consensus candidate for planning commission:

    Although RCW 42.30.110(1)(g) specifically states "when a governing body elects to take final action hiring . . . that action shall be taken in a meeting open to the public," the rule that exceptions to the act must be narrowly interpreted, if not the plain language of the statute, prevents the conclusion that all action other than "final action" is permitted in executive session. Instead, only the action explicitly specified by the exception may take place in executive session. Therefore in the present case the council in executive session could only "evaluate the qualifications" of the applicants for public employment: any action taken beyond the scope of the exception violated the act.

    138 Wn.2d at 327 (emphasis in original).

    Thus, any balloting, even if only to reduce the field of candidates, would be beyond the scope of the exemption for evaluating applicants for public employment.

    (Link to this question)

    May the city council hold an executive session to review the qualifications of persons appointed by the mayor to the planning commission?
    Reviewed: 01/14

    No.  The city council could not meet in executive session to review the qualifications of persons appointed by the mayor to a non-compensated position on the planning commission.  RCW 42.30.110(1)(g) provides that an executive session can be held to “evaluate the qualifications of an applicant for public employment.”  Even though a planning commissioner is a public officer, he/she is not a public employee because he/she is not compensated.  In contrast, officers such as the city clerk or city manager are compensated public employees as well as being public officers.  For a detailed analysis on whether a non-compensated, non-elective planning commission appointee is an applicant for public employment under RCW 42.30.110, see Justice Madsen’s concurrence/dissent in Miller v. Tacoma, 138 Wn.2d 318 (1999), in which she concludes that such an appointee is not an applicant for public employment.

    (Link to this question)

    Who may attend an executive session of the city council?
    Reviewed: 01/14

    The question of who may attend an executive session, other than the council and the mayor, is determined by the council. Where appropriate, the council may invite other city officials, employees, or individuals to attend executive sessions.  If the council invites others to attend an executive session, those invited should have some relationship to the matter being addressed in the closed session, or they should be in attendance to otherwise provide assistance to the council.  For example, city and/or council staff may be needed to present information or take notes or minutes. Note, however, in accordance with RCW 42.32.030, that executive session minutes are not required to be taken.

    (Link to this question)

    May the salary of an individual city employee be discussed in executive session?
    Reviewed: 01/14

    Yes, this may be done as a part of a performance review of an employee. One of the reasons that a city council may hold an executive session is to consider the job performance of an employee. RCW 42.30.110(1)(g).

    However, there are several limitations on this authority which are also included in RCW 42.30.110(1)(g). Specifically, any final action setting the salary of an individual employee or class of employees must be taken at an open meeting. Also, any discussion of salaries or wages which are to be generally applied within the city must occur in a meeting open to the public. For example, a discussion of whether to grant a general three percent salary increase to all city employees must be in an open meeting.

    Note, under RCW 42.30.140(4), that if the discussion involves collective bargaining negotiations or strategies, the discussion may be conducted in closed session because it is not subject to the Open Public Meetings Act, including not being subject to the procedural requirements of RCW 42.30.110(2).

    (Link to this question)

    May the city council meet in executive session to interview candidates for appointment to a vacant council or mayor position?
    Reviewed: 01/14

    No, although the council may discuss the qualifications of the candidates in an executive session. The interviews must be in an open public meeting, as must the vote to select the person to fill the vacancy. See RCW 42.30.110(1)(h).

    Note also that no vote or poll should be taken while the council is considering the qualifications of the candidates in executive session. Even a nonbinding straw poll was held to be illegal in Miller v. Tacoma, 138 Wn.2d 318 (1999), and so only discussion should occur in executive session and interviews and voting regarding such candidates must occur in an open meeting.

    (Link to this question)

    May one councilmember filibuster at a meeting and not allow any other members to speak?
    Reviewed: 01/14

    No. Normally this situation does not arise, but there are procedures in Robert's Rules of Order to deal with it if it does, assuming that the council has adopted Robert's Rules by reference.

    Robert's Rules of Order, Newly Revised (10th edition, 2000), Chapter II, Section 4, provides on page 42:

    The presiding officer cannot close debate so long as any member who has not exhausted his right to debate desires the floor, except by order of the assembly, which requires a two-thirds vote.

    So the other councilmembers, by two-thirds vote, can limit the time of debate for a councilmember. Some council rules of procedure also limit the amount of time a member can speak on an issue without further permission of the chair.

    For more information regarding council rules, see our Council/Board of Commissioners Rules of Procedure webpage.

    (Link to this question)

    Can a mayor call a person "out of order" at a council meeting?
    Reviewed: 01/14

    Yes. In cities and towns, the mayor shall preside over all meetings of the city/town council. See, e.g., RCW 35A.12.100 & .110 (mayor-council code cities), RCW 35A.13.030 (council-manager code cities), RCW 35.23.201 (second-class cities), RCW 35.27.160 & .280 (towns). The city/town council determines its rules of proceeding. See, e.g., RRCW 35A.11.020 (code cities generally – power of legislative body to regulate its internal affairs), RCW 35A.12.120 (mayor-council code cities), RCW 35A.13.170 (council-manager code cities), RCW 35.23.270 (second-class cities), RCW 35.27.280 (towns). Typically city and town councils will adopt rules of parliamentary procedure to help govern their meetings. As the presiding officer, the mayor enforces the council's rules.

    If a person violates the council's rules, he or she is "out of order." If the mayor notices that the council rules are being violated (for example, a person speaking out of turn), he or she should immediately correct the matter. If the mayor fails to do so, a member of the council can raise a "point of order," for which the mayor will make a ruling (either that someone is out of order or not).

    Once the mayor has made a ruling -- either on his or her own initiative or in response to a point of order raised by a councilmember -- that ruling is subject to appeal. To appeal the mayor's decision, one councilmember must make a motion to appeal the decision, and that motion must be seconded by another councilmember. To reverse the mayor's decision, a majority of the council must vote to override the decision. If there is a tie, the mayor can vote to break the tie. See Robert's Rules of Order, Newly Revised (10th edition, 2000), sections 23-24.

    We have also stated that a mayor could rule that a citizen is "out of order" in certain circumstances. For example, if a citizen’s statement is not germane to the topic at issue or unresponsive to a question asked, or if abusive language is used, the statement could be out of order. If a citizen’s statement violates council rules, the mayor could rule the citizen out of order, but the mayor’s decision would be subject to appeal and possible reversal by action of the council.

    For more information, see these web pages:

    Council/Board of Commissioners Rules of Procedure - MRSC

    Parliamentary Procedure - MRSC

    Robert's Rules website

    (Link to this question)

    May motion be reconsidered after it already has been reconsidered?
    Reviewed: 01/14

    Probably. There is general authority set out in the case Cowlitz County v. Johnson, where the court explains that "unless restrained by charter or statute, the legislative body of a municipal corporation possesses the undoubted right to reconsider its vote upon measures before it at its own pleasure, and to do and undo, consider and reconsider, as often as it may think proper, until a final conclusion is reached."

    Under parliamentary law, a member of the prevailing side must move to reconsider. Typically, such a motion will be made at the same meeting at which such action was taken. However, the council could move to suspend the rules, if that was required, or, for that matter, it could adopt other rules allowing for a later reconsideration of the rejection. Robert's Rules also provides for the renewal of a motion, provided it is not during the same session.

    (Link to this question)

    May county commissioners take final action at a special meeting being held outside the county seat?
    Reviewed: 01/14

    If proper notice is given for the special meeting, final action may be taken even if the meeting is held outside the county seat. There is no restriction in the Open Public Meetings Act that would prohibit county commissioners from voting on an item at a special meeting, if proper notice is given for the meeting and the item is listed as business to be transacted at the meeting.

    RCW 36.32.080 requires that regular meetings of the county commissioners be held at the county seat. RCW 36.32.090 allows for special meetings of county commissioners to transact the business of the county and indicates that these may be held outside the county seat. There is no general statute that restricts the ability of county commissioners to vote at a special meeting.

    Therefore, unless there is a restriction in the local county code, the county commissioners are not prohibited from taking final action at a special meeting held outside the county seat.

    (Link to this question)

    May a city council, board of county commissioners, or other governing body adopt a policy of providing special meeting notice to its members by e-mail?
    Reviewed: 01/14

    Yes, pursuant to a legislative change approved in 2005 (chapter 273, Laws of 2005), which amended RCW 42.30.080, the written notice may be delivered by e-mail or fax (or by regular mail).

    (Link to this question)

    Must a citizen be allowed to speak at a council or board meeting and complain about a city or county employee?
    Reviewed: 01/14

    There is no legal right for a citizen to speak at a city council or board of county commissioners meeting, although this could be allowed at the discretion of the council or board. The Open Public Meetings Act specifies that the public has a right to attend public meetings; it does not address speaking at those meetings.  Typically, boards and councils allow public comments at their meetings, either in an open comment period or with respect to specific agenda items.

    When a city council or board of commissioners establishes a open, public comment period for its meetings, it establishes a forum where the public has some free speech rights.  While some limits can be set on such speech in an open comment period, the extent of such limits is an open question.  It is clear that the council or board may impose a time limits on how long people get to speak in an open comment period, but it is less clear how much the council or board can control the content of such speech.  Of course, the council may prohibit foul language or comments that have no relation at all to city business.  Yet, it is uncertain, in our opinion, whether the council may, for example, prohibit personal attacks (verbal) directed at city officials.  Some councils prohibit in their council rules such personal attacks, but such restrictions have yet to be challenged in the courts in this state.  

    The Attorney General's Open Government Ombudsman, Tim Ford, has written on this issue, and he concludes in a March 24, 2009 letter to the mayor of Palouse, that “A municipality may adopt a policy to prohibit personal attacks such as insults if they lead to disruption of the meeting . . . Yet . . . that criticism may not be prohibited where the speech is directed on a substantive idea.”   He cites the decision of the 1st Circuit Court of Appeals (northeastern U.S.) in Mesa v. White, 197 F.3d 1041 (1st Cir. 1999), where county commissioners refused to allow at a meeting what they knew would be comment and criticism about the county manager. The court found that the county commissioners impermissibly restricted the plaintiff's speech based on his viewpoint.

    So, a city council or board of county commissioners should be careful when establishing rules for public comments during such open comment periods, if they provide for such open comment periods. 

    (Link to this question)

    What can be done if a person is disruptive during a council or board meeting?
    Reviewed: 01/14

    Members of the public have, of course, no right to be disruptive at city council or board of county commissioners meetings. The council or board may order the removal of people who disrupt meetings. In extreme circumstances, when a group of people make it unfeasible to conduct the meeting in an orderly manner such that order cannot be restored by the removal of individuals, the Open Meetings Act authorizes the clearing of the meeting room and continuance of the meeting or reconvening at another location, without the public. RCW 42.30.050.

    Some jurisdictions have adopted the Washington Criminal Code's provision pertaining to the crime of public disturbance. RCW 9A.84.030. This statute provides at subsection (1)(b) that a person is guilty of disorderly conduct if he or she "intentionally disrupts any lawful assembly or meeting of persons without lawful authority." Disorderly conduct is a misdemeanor.

    (Link to this question)

    May a councilmember or county commissioner participate in a meeting by speaker phone?
    Reviewed: 01/14

    MRSC legal staff have consistently taken the position that an absent city councilmember or a county commissioner may participate in a meeting of the council or board, if so authorized by the council or board and if done so in a manner such that all persons at the meeting are be able to hear the absent member and vice versa, such as by use of speaker phones.  The member participating in that way can be considered to be attendance at the meeting and can count towards the quorum.

    A number of city councils have adopted rules that authorize such participation, though sometimes subject to certain limitations.  See, for example:

     

     

     

    (Link to this question)

    Who may make a motion to reconsider?
    Reviewed: 01/14

    Under the standard rules of parliamentary procedure, a motion to reconsider may be made only by a member who voted with the majority. Therefore, it may be made only by one who voted aye if the motion was adopted, or no if the motion lost.

    (Link to this question)

    Who presides at a council meeting when both the mayor and the mayor pro tem are absent?
    Reviewed: 01/14

    For code cities, RCW 35A.12.110 specifically provides that a councilmember selected by a majority of the council at the meeting would preside in the absence of both the mayor and mayor pro tem. For other classes of cities, there is no statute that governs. It would be up to the council to decide this issue. The logical approach would be to follow the same procedure mandated by statute for code cities.

    (Link to this question)

    Is a council workshop a special meeting?
    Reviewed: 01/14

    Unless the workshop is regularly-scheduled to occur at a fixed time every month (in which case it is a regular meeting), it would be a special meeting and the special meeting notice requirements do apply. The fact that it is labeled a workshop (or retreat or study session) does not change the fact that when a majority of the council is present to discuss city business, it is either a regular or special meeting that is occurring.

    (Link to this question)

    How may a city temporarily change the date of the regular council meeting?
    Reviewed: 01/14

    A city can change its regularly established council meeting date by amending the basic ordinance that establishes the time and place for the regular meeting to indicate the new time and place, and then reamending back to the original language once the temporary period has expired.

    Another way to change the regularly scheduled date would be to follow the procedure in the Open Public Meetings Act for adjourning a regular meeting to a time and place specified in the order of adjournment. RCW 42.30.090 indicates that less than a quorum of the council may adjourn a meeting in this manner. If all the members are absent from a regular meeting, the clerk or secretary of the governing body may declare the meeting adjourned to a stated time and place. Written notice of the adjournment must be given in the same manner as provided in RCW 42.30.080 for special meetings. A copy of the order or notice of adjournment must be conspicuously posted immediately after the time of the adjournment on or near the door of the place where the regular meeting was held. If a regular meeting is adjourned as provided in the statute, then the resulting meeting is a regular meeting for all purposes.

     

    (Link to this question)

    May a councilmember join in calling for a special meeting by means of e-mail or fax?
    Reviewed: 01/14

    A majority of the city council, or the mayor, may call a special meeting. RCW 42.30.080. State law does not specify in what manner councilmembers must call for a special meeting, although it does specify that notice of a special meeting be written and delivered personally or by mail to the mayor, councilmembers, and the media who have on file with the city a request to be notified of special meetings.

    In the absence of a statutorily-prescribed method, councilmembers calling for a special meeting may do so by any means that communicates their desire for a special meeting and that adequately conveys that it is actually a councilmember requesting the meeting. So, for example, councilmembers may call for a special meeting orally, in writing delivered in person, by telephone, by regular mail, by e-mail, or fax. If by e-mail, it should have been sent from the councilmember's e-mail address; a fax should be adequate if signed by the councilmember or sent from the councilmember's personal fax number.

    (Link to this question)

    Request for information on adopting city/county legislative body rules of procedure.
    Reviewed: 01/14

    Many city councils and county councils/boards of commissioners in Washington have adopted formal rules of procedure to govern the conduct of their meetings. Often the motivation in adopting rules is to increase meeting efficiency and effectiveness and to manage/reduce conflict. The basic idea in adopting rules is to ensure that council/board of commissioners meetings will run more smoothly and follow a generally accepted format. A well organized and managed meeting does not necessarily guarantee good results, but it certainly helps.

    City and town councils are authorized by statute or charter to determine their own rules and order of business and to establish formal rules for the conduct of council meetings. See RCW 35A.12.120 which applies to mayor-council and council-manager, noncharter code cities; RCW 35.23.270 which applies to second class cities; RCW 35.27.280 which applies to towns. Councils in first class cities are generally authorized to adopt rules of procedure by their city charters.

    Although there is no statute that specifically authorizes a county council/board of commissioners to adopt rules of procedure for board meetings, that authority is necessarily implied from the council's/board's authority (and requirement) to hold meetings and conduct business. The legislative bodies of charter counties are either specifically authorized to adopt such rules by their charters or that authority exists as part of the county's broad powers.

    For more on this subject, including frequently asked questions and sample rules of procedure, see our "Council/Board of Commissioners Rules of Procedure" Web page.

    (Link to this question)

    Is there a legal requirement that a regular council or commission meeting agenda must be posted on the city's or county's web site within 24 hours of the meeting in order to be considered officially noticed?
    Reviewed: 01/14

    There is no state statute that requires this. Most cities and counties post their agendas at their city hall or county courthouse the day of the meeting or the day before the meeting, depending on when the preliminary agenda is ready. Of course, most cities and counties now have official web sites and many have chosen to post their meeting notices and preliminary agendas there. Some have also established mailing lists so that citizens who are interested can subscribe to the list and receive meeting notices and other types of city and county news and announcements via email.

    (Link to this question)

    May a city councilmember, who is running for another elective office, wear his campaign button to city council meeting?
    Reviewed: 01/14


    Yes, according to the Public Disclosure Commission (PDC), this would not violate RCW 42.17A.555. See PDC Interpretation No. 92-01 (March 24, 1992), which states as follows:
    1. An elected official or public employee is not acting in violation of RCW 42.17A.555 when he or she wears a typical campaign pin or button during normal working hours. Simply wearing a button which encourages support for or opposition to any candidate or ballot proposition, either directly or indirectly, is a form of personal expression and is not to be regarded as a "use of facilities" within the meaning and intent of the above-referenced statute.
    2. Officials or employees who choose to wear such pins or buttons are urged to exercise caution and prudence. Such personal expression can quite easily lead to other activities which are prohibited.
    NOTE: This statement should not be construed as an authorization to wear political pins, buttons, etc., which would override or supersede an agency's statute, ordinance, rule, policy, etc., restricting such expressions.

    (Emphasis in original.)

    (Link to this question)

    What are the limitations on the powers of initiative and referendum in a code city?
    Reviewed: 01/14

    There are certain statutory limitations placed upon the referendum power in code cities and city charter limitations upon those powers in first class cities. RCW 35A.11.090 excepts the following:

    1. Ordinances necessary for the immediate preservation of public peace, health, safety or for the support of city government and its public institutions which contain a statement of urgency and are passed by unanimous vote of the council;
    2. Ordinances providing for local improvement districts;
    3. Ordinances providing for or approving collective bargaining;
    4. Ordinances providing for the compensation of or working conditions of city employees; and
    5. Ordinances authorizing or repealing the levy of taxes.

    In addition to the above statutory exceptions, our courts have carved out various other actions which are not subject to initiative and referendum. The courts have maintained "that direct legislation by the people, acting through the power of initiative or referendum, may not interfere with the exercise of any power delegated, by state law, to the mayor and city council as the governing body of the city." In other words, where the grant of power by the state legislature is to the "corporate authorities" of the city, that is, to the mayor and city council, and not to the city as a "corporate entity", or the electorate, an ordinance which does no more than exercise the power granted by state law is not subject to the referendum provisions.

    Another distinction made by our courts is the difference between legislative policy, which falls within the scope of the powers of initiative and referendum; and administrative action which does not. (See, e.g., Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447 (1973).)

    (Link to this question)

    Must the city satisfy the publication requirement in RCW 35.17.310 regarding the notice of an election on an initiative even if no daily or weekly newspapers are published within the city?
    Reviewed: 01/14


    In our opinion, the city still must comply with this publication requirement and should publish the ordinance or proposition in the official newspaper of the city even if it is not published within the city.

    RCW 35.17.310 provides that:

     

    The city clerk shall cause any ordinance or proposition required to be submitted to the voters at an election to be published once in each of the daily newspapers in the city not less than five nor more than twenty days before the election, or if no daily newspaper is published in the city, publication shall be made in each of the weekly newspapers published therein.

    The intent of this statute is that the citizens should be able to read the language in an ordinance or proposition which will be voted upon at an election. As you are aware, every city in the state must designate an official newspaper for publication of ordinances and other required legal notices. The official newspaper does not have to be published within the city but is the official vehicle for complying with publication requirements.

    In order to comply with the intent of RCW 35.17.310, the proposed ordinance should be published in the official newspaper. While this does not literally comply with the language in RCW 35.17.310 because the official newspaper is not published within the city, it does substantially satisfy the intent of the statutory requirement.

    (Link to this question)

    Are amendments to the zoning code subject to initiative and referendum?
    Reviewed: 01/14

    The courts in this state have indicated previously that amendments to the zoning code are not a proper subject for an initiative. See the cases of Lince v. Bremerton, 25 Wn. App. 309 (1980) and Leonard v. Bothell, 87 Wn.2d 847 (1976).

    Part of the rationale for these decisions is the doctrine that the powers of initiative and referendum do not apply to actions which have been delegated by the state legislature to the governing body (city council) of a city or town as opposed to the city or town as a corporate entity. RCW 35A.63.100 appears to indicate that the power to enact land use zones has been granted to the city councils in noncharter code cities. Since this is a power which has been specifically granted to the city council by the state legislature, it is not an appropriate subject for the initiative process.

    (Link to this question)

    When a councilmember in a mayor-council city misses a council meeting, does the mayor or council excuse the absence? Does the absence need to be voted on?
    Reviewed: 01/14

    RCW 35A.12.060, which applies to mayor-council code cities, provides:

    ... a council position shall become vacant if the councilmember fails to attend three consecutive regular meetings of the council without being excused by the council.

    (See also RCW 35.27.140, pertaining to towns, and RCW 35.23.101, pertaining to second class cities.)

    So, it is the council and not the mayor that either excuses, or not, any absences by councilmembers. The council may, at its discretion, declare a position vacant if a councilmember is absent for three consecutive regular meetings without the permission of the council. In order for the council to act, one way or the other, it would have to vote on the matter. Council rules of procedure typically establish some sort of process for councilmembers who know they are going to be absent for a meeting to contact the mayor or clerk to inform them of that fact. Then, following the roll call at the meeting, the presiding officer (usually the mayor) will inform the council of the member's absence and ask for a motion to excuse the member. If the motion is passed by a majority of the members present, the absence is excused.

    (Link to this question)

    May councilmember absences from council meetings be excused after-the-fact?
    Reviewed: 01/14

    Yes, unless local council rules would not allow this. There is nothing in state law that controls how absences from council meetings are excused. As a practical matter, it makes sense that the council should be able to do so after-the-fact, because there may often be circumstances where advance notice of an absence may not be possible, such as in a personal emergency.

    (Link to this question)

    How are abstentions from voting treated?
    Reviewed: 01/14

    For example, if a council vote is 2-1 in favor of a motion with 5 members present, and two members abstain, does the motion fail? If we assume that the city follows Robert's Rules of Order, the motion passes. The basic principles in Robert's concerning abstentions are as follows:

    Abstentions do not count as a vote. Rather it is the absence of one.

    An abstention does not affect the voting result.

    A member has a right to abstain and cannot be compelled to abstain.

    A member has an obligation to abstain if he or she has a direct personal interest in the matter being voted on.

    In this case, a majority of those who voted were in favor of the motion and so it passed. There was a quorum that voted on the issue. This is not the case where a state law requires that a certain number of affirmative votes are required to enact the motion. If, for example, a state law requires three affirmative votes (in the case of a five-member council) to adopt, then the matter would not have passed because an abstention does not count as an affirmative vote.

    See Robert's Rules of Order Web site which has a question on this issue. Also, see Robert's Rules of Order, Newly Revised, Chapter 13, §45.

    (Link to this question)

    To what extent does council get involved in personnel issues in a council-manager city?
    Reviewed: 01/14

    In a non-charter code city with a council-manager plan of government how much involvement can the mayor and council have in personnel matters? Should the city manager report all personnel incidents and allow the council to discuss whether the manager's proposed discipline is appropriate? What personnel matters should be shared with the mayor and council?

    How much involvement does the mayor and council have in personnel matters? The short answer is, except for the setting of policy, creation of new positions, and setting salary and compensation, the mayor and council have little or no role as to personnel issues. This conclusion is borne out, at least in principle, by RCW 35A.13.080(1), which gives the manager "general supervision over the administrative affairs of the city." subsection (2) of the statute vests the manager with the authority to appoint and remove all department heads, officers, and employees. And RCW 35A.13.120 provides in part:

    • Neither the council, nor any of its committees or members, shall direct the appointment of any person to, or his removal from, office by the city manager or any of his subordinates. Except for the purpose of inquiry, the council and its members shall deal with the administrative service solely through the manager and neither the council nor any committee or member thereof shall give orders to any subordinate of the city manager, either publicly or privately. ...

    So, unless the manager chooses to involve the council, the council has virtually no role as to day-to-day personnel issues.

    From a practical standpoint, though, councils do take interest in personnel matters. And managers, who are appointed and subject to removal by the council, will often accommodate the council's interest, by at least advising the council of significant daily personnel matters. But this is by choice, rather than by requirement. However, the council may be able to obtain some information from the manager, as a matter of right, if it is to, presumably, establish a new policy or determine whether a current policy is being carried out correctly. Thus, while "on paper," the council has minimal involvement is personnel issues, in real life, it does assume some role, with the manager's concurrence.

    Should all personnel incidents be reported to the council? No, not generally. But, if there is an issue of great notoriety -- a misdeed by an employee lands on the first page of the newspaper -- the manager may want to give the council a report, as the council will undoubtedly be very interested. Should the manager discuss possible discipline with the council? Again, not generally, as that is entirely up to the manager to decide and, unless the underlying incident is severe (like the uncovering of embezzlement), the council simply does not have a role.

    In quick summary, under the law, the council is not entitled to much information or involvement in personnel matters. Often, though, the manager will choose to give the council information, while reserving personnel decisions -- hiring, firing, discipline -- to himself or herself.

    (Link to this question)

    Who has the authority to set the council agenda in a town?
    Reviewed: 01/14

    The basic authority for establishing an agenda for town council meetings rests with the council under its authority to adopt rules of procedure. See RCW 35.23.270. The form of an agenda may be prescribed by ordinance or resolution, by town council rules, or simply by informal custom and practice. In many towns preparation of the agenda is delegated to the mayor, clerk and/or administrator, and this system seems to work satisfactorily in most cases. However, it is possible for the council to establish formal rules and regulations for the preparation of the agenda and to indicate in those rules who may place items on the agenda and how they are to be placed on the agenda.

    (Link to this question)

    What time requirements do other cities require for distributing the meeting agenda to council members before the upcoming meeting?
    Reviewed: 01/14

    Burien Council Rule §3.8: Requires agendas to be ready to be distributed to the council by 5:00 p.m. on the Thursday before the following Monday's council meeting.

    Des Moines Council Rule 9: Requires that the agenda and supporting materials be available on or before 4:30 p.m. two working days before a regular council meeting.

    Federal Way Council Rule 3.8: Requires that agendas must be finalized by noon on Tuesday, one week prior to the meeting. Agenda materials are to be available to the council on the Friday before the meeting.

    Kennewick Council Rule 5.2: Requires the clerk to furnish the council with a copy of the agenda at least 8 business hours prior to the council meeting, and under normal circumstances on the Friday preceding regular meetings.

    Redmond Municipal Code §2.04.070: The agenda is to be transmitted to the mayor and council members at least 96 hours prior to the time of the meeting.

    Tukwila Municipal Code §2.04.140: Requires final agenda to be distributed to council no later than 12:00 noon on Friday preceding the council meeting.

    (Link to this question)

    Does the mayor have the authority to control which items are placed on the agenda for a council meeting?
    Reviewed: 01/14

    The city council’s authority under RCW 35A.12.120 includes the authority to control the agenda for council meetings. The mayor is the presiding officer at council meetings but does not have the authority to control the agenda contrary to the council’s wishes. If a majority of the council votes to place an item on the agenda for discussion, then the must be placed on the agenda for discussion. The mayor does not have the authority to refuse to place on the agenda items the council wishes to discuss.

    The procedures for the conduct of council meetings are largely policy decisions within the discretion of the city council as long as they comply with state law. Cities often have specific procedures for placing items on the council agenda. This type of policy is within the control of the council to establish and there are many variations in procedure that are acceptable.

    (Link to this question)

    Request for sample "no surprises" council rules that regulate how things go to the council to ensure complete staff work and review prior to introduction.
    Reviewed: 01/14

    Many city councils have adopted rules that establish procedures for introducing items for council consideration, including procedures regulating the agenda preparation process and other preliminary steps that require some level of administrative review and/or preparation of background and supporting information prior to submitting an item for council consideration.

    Here are some sample provisions that may be helpful (links are provided where the full text is available on our Web site):

    Port Townsend

    1.11 "Three Touch Rule" Defined. The following procedures are designed to prevent "surprises" to the City Council and citizens as much as possible. Decision makers at all levels of the City should have adequate time to thoughtfully consider the issues prior to the final decisions.

    (a) Qualifying Conditions - Any subject or proposal for adopting or changing public policy, ordinances, resolutions or City Council directives which will eventually result in a decision of the City Council. The subject should "touch" (verbal,written or any combination thereof) the persons or groups, who may eventually recommend or approve a final action, three separate times. Quasi-judicial matters and any subject discussed in executive sessions are excluded from the "Three Touch Rule."

    (b) Three Touch Rule Elements:

    1. First Touch - A deliberate, verbal or written statement or notification that a given subject is being considered or developed for future consideration along with a preliminary estimate of the time lines involved.

    2. Second Touch - A more detailed review / discussion of the proposal with adequate preparation made or personnel available to answer most questions and receive preliminary feedback from Council members.

    3. Third Touch - A presentation (verbal or written as appropriate) of final details of the proposal in the appropriate draft proposal form which could be adopted as amended or referred to further process before final action.

    (c) The "Three Touch Rule" is a general guide to help prevent surprises for elected officials, the city administration and the citizenry.

    (d) It is recognized that, on occasion, routine, time-sensitive, unknown and/or emergency circumstances may arise wherein utilization of the "Three Touch Rule" is impossible, impractical, or not necessary. The hands of decision makers to respond appropriately should not be tied unnecessarily. However, when routine, time-sensitive, unusual circumstances and/or emergency conditions arise which justify an expedited decision making process, the persons requesting the expedited decision should explain the circumstances. The intention of the "Three Touch Rule" is to promote pre-discussion, allowing time for an unhurried decision.

    Bothell

    8.05 Placing Items on the Agenda

    A. Agenda Planning Committee

    All matters to be presented to the City Council at its regular meetings are reviewed by the Agenda Planning Committee. The Executive Management Team and City Clerk comprise the Agenda Planning Committee.

    The City Manager and Mayor will review the agenda prior to the regular meeting.

    B. City Council

    A Council Member may request an item be considered on a future agenda either by making an oral request at a City Council meeting or submitting the request in writing to the City Clerk or City Manager at least ten working days prior to the meeting for which the item is requested to be placed on the agenda. The item shall be presented to the Agenda Planning Committee to schedule the item.
    The City Council will review the projected agenda document at all regular meetings and agree to change the projected agenda if a majority chooses to do so.

    C. Advisory Bodies and Civic Organizations

    Advisory bodies of the City Council and other civic agencies (i.e., Chamber of Commerce, Greater Bothell Association) may submit items for Council by submitting a request in writing to the City Clerk or City Manger at least 15 working days prior to the meeting for which the item is requested to be placed on the agenda.

    D. Members of the Public

    A member of the public may request an item be placed on a future agenda while addressing the City Council during a regular meeting and/or by submitting the request in writing to the City Council, through the City Clerk's office. In order to allow sufficient time for Council to review, and staff to research the matter, the request should be submitted at least 15 working days prior to the meeting for which the item is requested to be placed on the agenda. Once the issue has been placed on the agenda, the City Clerk will notify the requester so that he or she may plan to attend the meeting.

    E. Emergency Items

    Emergency items may be added to an agenda in accordance with state law. Emergency items are only those matters immediately affecting the public health, safety and welfare of the community, such as widespread civil disorder, disasters, and other severe emergencies. The reason(s) for adding an emergency item to the agenda shall be announced publicly at the meeting, and the issue shall be included in the minutes of the meeting.

    8.06 Development of the Agenda

    Staff is required to submit an agenda bill or study session memorandum form for each topic of discussion on the City Council agenda. The deadline for submitting these forms is 10:30 a.m., at the Agenda Planning Meeting two Tuesdays prior to the date of the meeting for which the item is scheduled. The forms must include supporting documentation, including any information requested by Council at the previous Council meeting. It is the responsibility of the submitting department to obtain City Attorney review and approval of the agenda bill and/or study session memorandum prior to submittal to the Finance Division. The Finance Division will have determined the fiscal impact of each agenda bill/study session memorandum prior to the City Manager's approval.

    Please see the Agenda Process Administrative Order for additional information on the agenda process.

    Given the rigorous time frame for agenda development, it is extremely difficult for staff to compile or prepare information requested at a Monday night meeting in time for the Tuesday agenda bill/study session memoranda deadline.
    The Council will receive follow-up information at the second Council meeting following the date it is requested. This would allow staff sufficient time to prepare reports that require additional investigative research and/or additional time due to complexity of subject matter.
    ....

    Prior Administrative Review

    All ordinances and resolutions shall, before presentation to the Council, have been approved as to form and legality by the City Attorney or the City Attorney's authorized representative, and shall have been first referred for review to the head of the department under whose jurisdiction the administration of the subject matter of the ordinance or resolution would devolve, and shall further have been presented to the City Manager or authorized representative for review.
    Ordinance Preparation

    The City Attorney shall review all ordinances. The City Attorney shall prepare no ordinance unless ordered by a majority vote of the Council or requested by the City Manager.

    Port Angeles

    Sec. 7 - Agenda. The City Manager shall prepare the agenda of business for all regular Council meetings. Any Council member, department head, or citizen desiring to place a matter on the agenda shall notify the City Manager by twelve o'clock noon on the Wednesday preceding the Council meeting. Every agenda item must be supported by a written explanation informing the Council and staff of the issue, background and/or analysis, and recommendation and/or conclusion, unless the item is self-explanatory or unless the Mayor or City Manager has waived this requirement. All written materials for the agenda shall be delivered to the City Manger by twelve o'clock noon on the Friday preceding the Council meeting. Except for announcements, late items that the City Manager does not receive by the stated deadlines shall not be considered by the Council except upon a majority vote of the members present.

    (Port Angeles Resolution No. 20-96)

    Kennewick

    6.3 Ordinances - Introduction: All proposed ordinances shall be prepared by the City Attorney and bear his certification that they are in correct form. The City Manager shall attach to each proposed ordinance a brief digest of the provisions thereof and where it is proposed to amend an existing ordinance; such digest shall indicate the change sought to be made; said digest shall also show the name of the department or party at whose request the proposed ordinance was prepared by the City Attorney (KMC 2.04.150).

    6.4 Distribution of Ordinances: The City Clerk shall prepare copies of all proposed ordinances for distribution to all members of the Council at least twenty-four (24) hours before the Council meeting at which the ordinance is to be introduced. If the ordinance carries an emergency clause, copies of the ordinance must be distributed at least twelve (12) hours prior to the meeting of the Council at which said ordinance is to be considered (KMC 2.04.150).

    Edgewood

    SECTION 3.

    AGENDA PREPARATION

    3.1 The City Clerk will prepare an agenda for each Council meeting specifying the time and place of the meeting, and set forth a brief general description of each item to be considered by the Council. The agenda is subject to approval by the Mayor and the City Manager.

    3.2 An item may be placed on a Council meeting agenda by any of the following methods:

    (1) A majority vote of the Council;
    (2) Council consensus;
    (3) By any two (2) Councilmembers;
    (4) By the City Manager;
    (5) By a Council committee.
    (6) By the Mayor.

    3.3 An item may be placed on a regular Council meeting agenda after the agenda is closed and the notice published if the Councilmember or City Manager explains the necessity and receives a majority vote of the Council at a public meeting.

    ...

    3.8 Agendas will be finalized by the end of the business day on the Wednesday preceding the regular Council meeting. Packets will be available for Council pick up by 5:00 PM on Friday preceding the regular Council meeting. Agenda materials will be available at City Hall for the Council, City staff, media and public on Friday at 5:00 PM before the regular Council meeting.

    (Link to this question)

     Are there any statutory age requirements for serving on an advisory board to a city council?
    Reviewed: 01/14

    No. Consequently, it would be permissible, for example, to have high school age persons on an advisory board.  For additional information on youth involvement on advisory boards, see, e.g., pp 17-18 of:

    Local Government Citizen Advisory Boards - Examples, options, and model practices for the effective and efficient use of advisory boards by local governments. Report No. 63, August 2008.

     

    (Link to this question)

    Would powers of initiative and referendum apply to an annexation proceeding in a code city?
    Reviewed: 01/14

    No. The annexation statutes applicable to code cities do not provide for a system of initiative and referendum. Additionally, the initiative and referendum procedures do not contemplate action on annexations. In any case, the Supreme Court in State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 409 P.2d 458 (1965) held that there is no power of referendum as to annexations. The court concluded that the power of referendum as to annexation would have to be given to a city by the state; the city could not assume powers not delegated to it. The court concluded that the power as to annexations is not given to the electorate. Given the court's strong opinion in the Bowen case, it is also apparent that the power of initiative would not apply to annexations.

    (Link to this question)

    Which record controls, the audio tape or the official summary of proceedings or minutes?
    Reviewed: 01/14

    The official record would be the formal minutes which are reviewed and approved by the legislative body in accordance with their adopted rules of procedure. In the event of a conflict between the officially adopted minutes and the audio tape, several legal issues are raised and the situation would need to be evaluated on a case-by-case basis. The official minutes will likely control. The rules of procedure for the legislative body should address correction of official minutes in the event the tape reveals an obvious mistake.

    (Link to this question)

    What are the voting rights of a mayor pro tem in a mayor-council code city?
    Reviewed: 01/14


    You indicated that the city is a mayor-council code city, the mayor is temporarily unable to fulfill the duties of mayor (including presiding at meetings), and the council has appointed one of its own to be mayor pro tem. You asked whether the voting rights of the mayor pro tem are limited to the same extent as would be the case for the position of mayor under RCW 35A.12.100.

    Our position is that the mayor pro tem, who remains a councilmember, has the same voting rights as the other councilmembers. We reach this conclusion based on RCW 35A.12.110, which, although it does not specifically address the voting rights of the mayor pro tem, states in relevant part (emphasis added):

    Meetings of the council shall be presided over by the mayor, if present, or otherwise by the mayor pro tempore, or deputy mayor if one has been appointed, or by a member of the council selected by a majority of the councilmembers at such meeting. Appointment of a councilmember to preside over the meeting shall not in any way abridge his or her right to vote on matters coming before the council at such meeting.

    We found one appellate court decision that addresses this issue. In that decision, State ex rel. Ostrowski v. Haguewood, 56 Wn. App. 37 (1989), the court states (in footnote 1):

    Although the point was not noted in the briefs or in oral arguments before this court, it appears that a pro tempore mayor selected from the ranks of the council members in a council-mayor plan would probably have full voting rights as a council member. The council may designate one of its members as mayor pro tempore to serve in the absence or temporary disability of the mayor. RCW 35A.12.065. The appointment of a council member to preside at a council meeting "shall not in any way abridge his right to vote on matters coming before the council at such meeting." RCW 35A.12.110.

    Although a footnote cannot be relied upon as precedential authority, we agree with the court's statement in the footnote. We think the purpose of including the above quoted language in RCW 35A.12.110 is to make clear that a councilmember who is appointed to preside over a meeting, which a councilmember would do as mayor pro tem, "shall not in any way abridge his or her right to vote on matters coming before the council at such meeting." RCW 35A.12.110 is very specific on that point, regardless of what is stated in RCW 35A.12.100 related to a mayor's limited voting rights.

    As a practical matter, we think a policy consideration behind that key language in RCW 35A.12.110 is to ensure that a councilmember who volunteers to be appointed as mayor pro tem doesn't lose voting rights in doing so. If a councilmember were to lose voting rights in being appointed mayor pro tem, that would create a disincentive for volunteering to fill that crucial position.

    (Link to this question)

    How does one determine whether an issue is legislative or administrative in order to determine if it is subject to initiative and referendum?
    Reviewed: 01/14

    Two tests have been suggested for determining whether an issue is legislative or administrative. First, actions relating to subjects of a permanent and general character are usually regarded as "legislative" and thus subject to the powers of initiative and referendum. Those actions taken on subjects of a temporary and special character are usually regarded as "administrative" and are not subject to the powers. Citizens v. Spokane, 99 Wn.2d 339, 662 P.2d 845 (1983). A second test suggests that a matter is legislative if it prescribes a new policy or plan, and administrative if it merely pursues a plan that has already been adopted.

    (Link to this question)

    Do county commissioners and city councils have the authority to determine if the US flag will be flown at half-mast over county and city buildings?
    Reviewed: 01/14

    Yes, this is not an area that has been preempted by the state or federal governments. There is a state statute, RCW 1.20.015, that provides that the United States flag shall be displayed in schools, court rooms and state buildings. There is no mention in this statute of flying the flag at half-mast.

    Federal law does contain a flag code, but this code has been interpreted by the courts as being rules of protocol that are an expression of prevailing custom rather than laws requiring compliance. Section 7 of this flag code addresses position and manner of display, and there is a section on flying the flag at half-mast. However, it does not preempt the county commissioners from ordering the flag flown at half-mast in county buildings even in the absence of an order from the President or the Governor.

    (Link to this question)

    Who has authority to establish city hall office hours?
    Reviewed: 01/14

    The responsibility for setting hours of work is the city council's and must be established by ordinance. RCW 35.21.175 states:

    Offices to be open certain days and hours. All city and town offices shall be kept open for the transaction of business during such days and hours as the municipal legislative authority shall by ordinance prescribe.

    (Link to this question)

    What newspapers qualify as possible official county newspapers?
    Reviewed: 01/14

    The basic qualification is that the newspaper be a "legal newspaper." RCW 36.72.075 provides with respect to selection of the official county newspaper:

    At its first April meeting, the county legislative authority shall let a contract to a legal newspaper qualified under this section to serve as the official county newspaper for the term of one year beginning on the first day of July following. If there be at least one legal newspaper published in the county, the contract shall be let to a legal newspaper published in the county. If there be no legal newspaper published in the county, the county legislative authority shall let the contract to a legal newspaper published in an adjacent county and having general circulation in the county.

    When two or more legal newspapers are qualified under the provisions of this section to be the official county newspaper, the county auditor shall advertise, at least five weeks before the meeting at which the county legislative authority shall let the contract for the official county newspaper, for bid proposals to be submitted by interested qualified legal newspapers. Advertisement of the opportunity to bid shall be mailed to all qualified legal newspapers and shall be published once in the official county newspaper. The advertisement may designate the form which notices shall take, and may require that the successful bidder provide a bond for the correct and faithful performance of the contract.

    The county legislative authority shall let the contract to the best and lowest responsible bidder, giving consideration to the question of circulation in awarding the contract, with a view to giving publication of notices the widest publicity.

    (Emphasis added.) The qualifications of a legal newspaper are provided in RCW 65.16.020. In Thayer v. King County, 46 Wn. App. 734, 739 (1987), the court held that, when a selection process is employed pursuant to RCW 36.72.075 because there are two or more legal newspapers in the county, "Although the range of circulation is one factor to be used by the county in selecting a paper, the selected paper does not have to find its way equally into all parts of the county." Also, the court noted that county officials are given "wide discretion in choosing an official newspaper." Id.

    (Link to this question)

    Can a city parks department charge more for a program for disabled persons to recoup costs associated with providing additional personnel and services necessary to provide the program for disabled persons?
    Reviewed: 01/14

    Clearly, under the ADA, the city may not charge disabled persons more for the cost of accommodating the special needs of such a group. ADA regulations, specifically 28 CFR §35.130(f), provide:

    A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

    However, this does not mean that the city cannot recover those costs through recreation program fees that all participants are responsible for. In The Americans with Disabilities Act, Title II Technical Assistance Manual, the Department of Justice discusses this regulation prohibiting surcharges:

    II-3.5400 Surcharges. Although compliance may result in some additional cost, a public entity may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.

    ILLUSTRATION: A community college provides interpreter services to deaf students, removes a limited number of architectural barriers, and relocates inaccessible courses and activities to more accessible locations. The college cannot place a surcharge on either an individual student with a disability (such as a deaf student who benefited from interpreter services) or on groups of students with disabilities (such as students with mobility impairments who benefited from barrier removal). It may, however, adjust its tuition or fees for all students.

    (Emphasis added.)

    For these reasons, we recommend that the city fold such additional costs into the costs of the entire recreation program and, if necessary, adjust the fees for all programs.

    (Link to this question)

    What is the status of an initiative petition that has been filed with the city even though the city has not adopted the powers of initiative and referendum?
    Reviewed: 01/14


    In our opinion, this would not be a valid initiative petition and it may not be submitted to the voters in its present format at the November election.

    Citizens in code cities do not automatically have the powers of initiative and referendum on local issues. While these powers are available to citizens on statewide issues under the state constitution, there is no provision in the constitution that grants voters a similar right to initiative and referendum powers on local matters.

    In view of the fact that the state constitution does not provide for local powers of initiative and referendum, the state legislature, when it adopted the Optional Municipal Code, Title 35A RCW, provided a mechanism by which the powers of initiative and referendum can be adopted by each city individually. This process is set out in RCW 35A.11.08035A.11.100. Most code cities in this state have not adopted the powers of initiative and referendum. Of the state's 192 code cities, only 46 have adopted the powers of initiative and referendum. Code cities that have not followed the process to adopt these powers may not utilize them. In view of this, the petition submitted has no legal effect and may not be processed as a formal initiative.

    There are at least three options available to the city council in view of the fact that this petition has been submitted. The first is for the council to take no formal action on the petition because it is not a valid initiative and no response is required under state or local regulations. Second, the city council could adopt the ordinance on this subject as requested in the petition in the same manner that they adopt any other city ordinance. This is always an option on a legislative matter. Third, the council does have the authority to submit an issue to the voters at an election on the basis of what we would call an “advisory ballot.” It is important to recognize the difference between an advisory ballot and a formal initiative to enact a specific ordinance. The advisory ballot is just what it implies – it is a nonbinding vote to obtain an understanding of the sentiment of the public on an issue, but it has no legal significance in regard to any required council action. The council can follow the majority vote of the citizens and take the action requested, or the council can decide not to act, even if a majority of the voters favor the measure submitted on the advisory ballot. There is not really an established process for an advisory ballot, but the city council would need to pass and submit a resolution to the county auditor asking that a city issue be placed on the ballot as an advisory measure. No petition or citizen signatures are required for an advisory ballot.

    (Link to this question)

    Which statutes provide the method for redrawing the boundaries of city wards after the federal census?
    Reviewed: 01/14


    The pertinent statutory provisions are in chapter 29A.76 RCW, Local Government Redistricting. RCW 29A.76.010 provides some time frames and other details on redistricting by local governments.

    (Link to this question)

    If the council in a code city passes an initiative without alteration, rather than submitting the ordinance to a vote of the people, can the council thereafter amend or repeal the ordinance?
    Reviewed: 01/14

    No, not by itself. RCW 35.17.340 provides that when an initiative is passed by a vote of the people, or when an ordinance is enacted by the council in response to an adequate initiative petition, any subsequent amendment or repeal must be approved by the voters.

    (Link to this question)

    May a county elected official make a statement in support of a ballot proposition and identify his position if there is no use of county facilities?
    Reviewed: 01/14

    Yes. See the Public Disclosure Commission Interpretation entitled "Guidelines for Local Government Agencies in Election Campaigns," revised May 22, 2013. It contains a list of permitted and prohibited activities. The pertinent question for this purpose is set out as follows:

    Permitted activities for local government elected officials:

    May engage in political activities on his or her own time, if no public equipment, vehicle or facility is used. (An elected official may use his or her title, but should clarify that he/she is speaking on his/her own behalf, and not on behalf of the agency. If the elected legislative body has adopted a resolution, the official can then speak on behalf of the agency).

    (Link to this question)

    May towns use wards to elect councilmembers?
    Reviewed: 01/14

    No. Towns do not have the needed statutory authority to establish wards. Specific statutory authority does, however, exist for second class (RCW 35.23.051) and code cities (RCW 35A.12.180) to establish wards. First class cities, with their broad home rule authority, do not need statutory authority to establish ward systems.

    (Link to this question)

    What is the procedure for changing the name of a city?
    Reviewed: 01/14

    The procedure for changing the name of a city or town is spelled out in Chapter 35.62 RCW. A city council can propose a name change, or it can be started by a petition with the number of required signatures as described in the statute. Any change has to be approved by the voters at a general election.

    The cities of Bainbridge Island and Newcastle have used these procedures.

    After the unincorporated portion of Bainbridge Island annexed to the City of Winslow at the 1990 general election the whole island was officially the City of Winslow. With the understanding that this was not reflective of the whole community, the city council adopted a resolution proposing that the name be changed to the City of Bainbridge Island, which was approved by the voters at the general election the following year.

    The City of Newport Hills incorporated in 1994. That year, the city council placed a name-change measure on the November ballot. An election was held in which city voters were given the option of selecting a new city name. The options were City of Coal Creek and City of Newcastle, and the voters chose Newcastle.

    (Link to this question)

    Which cities and counties have established a salary commission?
    Reviewed: 01/14

    Although we have not surveyed all cities or counties, we have searched all city/county codes that we are able to electronically search (which is all but 15) and have found ordinances establishing a salary commission in the following jurisdictions:

    • Bainbridge Island
    • Bellevue
    • Bonney Lake
    • Bothell
    • Bremerton
    • Buckley
    • Connell
    • Dupont
    • Edmonds
    • Everett
    • Federal Way
    • Fife
    • Gig Harbor
    • Issaquah
    • Kenmore
    • Kent
    • Kirkland
    • LaCenter
    • La Conner
    • Mukilteo
    • Oak Harbor
    • Longview
    • Lynnwood
    • Marysville
    • Mercer Island
    • Mountlake Terrace
    • Puyallup
    • Redmond
    • Spokane
    • Spokane Valley
    • Stanwood
    • Sumner
    • Sunnyside
    • Vancouver
    • Washougal

    The following counties have salary commissions:

    • Adams
    • Cowlitz
    • Clark
    • Pend Oreille
    • Pierce
    • San Juan
    • Skagit
    • Snohomish
    • Spokane
    • Thurston
    • Wahkiakum
    • Whatcom 
    • Whitman

    (Link to this question)

    By what process is an ordinance passed by the legislative body in a city with the power of referendum referred to the voters for affirmation or rejection?
    Reviewed: 01/14


    The procedure is the same as for initiating an ordinance. A petition must be filed with the city clerk within the 30 days following passage of the ordinance. This petition must be signed by registered voters equal to 15 percent of the total number of registered voters in the city as of the date of the last preceding city general election.

    (Link to this question)

    May a city council change the official name of the city?
    Reviewed: 01/14

    No. A city council can propose a name change, or it may be initiated by petition, but any change must be approved by the voters at a general election. (See Chapter 35.62 RCW.)

    (Link to this question)

    What percentage of signatures must be obtained on a referendum petition in order for it to be valid in a noncharter code city?
    Reviewed: 12/13


    RCW 35A.11.100 indicates that the number of registered voters needed to sign a petition for an initiative or a referendum in a noncharter code city shall be 15 percent of the total number of names of persons listed as registered voters within the city on the day of the last preceding general election.

    (Link to this question)

    Is a motion or resolution subject to initiative and referendum?
    Reviewed: 12/13


    Motions and resolutions are not subject to initiative and referendum powers. The powers of initiative and referendum applies only to certain types of ordinances.

    (Link to this question)

    May the council in a code city refer an issue to the voters for a binding decision if the city does not have the powers of initiative and referendum?
    Reviewed: 12/13


    No. The council can refer an issue to the voters for an advisory ballot, but the council cannot delegate their responsibility by simply referring an issue to the voters.

    (Link to this question)

    May a city councilmember or county commissioner/board member, who is running for a higher county or state office, or for reelection, seek endorsements and/or contributions from employees?
    Reviewed: 12/13


    He or she may seek endorsements but may not solicit contributions. See RCW 42.17A.565(1) that states:

    No state or local official or state or local official's agent may knowingly solicit, directly or indirectly, a contribution to a candidate for public office, political party, or political committee from an employee in the state or local official's agency.

    This prohibition has added significance, given the broad definition of the term "contribution." RCW 42.17A.005(13)(a) defines the term "contribution" to include:

    (i) A loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment, transfer of funds between political committees, or anything of value, including personal and professional services for less than full consideration;

    (ii) An expenditure made by a person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a political committee, the person or persons named on the candidate's or committee's registration form who direct expenditures on behalf of the candidate or committee, or their agents;

    (iii) The financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising or electioneering communication prepared by a candidate, a political committee, or its authorized agent;

    (iv) Sums paid for tickets to fund-raising events such as dinners and parties, except for the actual cost of the consumables furnished at the event.
     

    (Link to this question)

    May an ordinance enacted by initiative be amended by a vote of the city council in a code city?
    Reviewed: 12/13


    No. The procedural rules that apply to initiative in a code city are contained in the statutes relating to the commission form of government. RCW 35.17.340 provides that an ordinance adopted by a vote of the people cannot be amended or repealed except by a vote of the people.

    So once an ordinance has been adopted by a vote of the people pursuant to an initiative, it cannot be amended or repealed by the council.

    (Link to this question)

    May a local government allow use of a public meeting room on a nondiscriminatory basis for a public forum to discuss or debate the impacts of a statewide initiative?
    Reviewed: 12/13


    Yes, a local government may do this if it has a policy that routinely allows use of one of their meeting rooms by the public. Use of the meeting room as a forum for a debate would then be a part of the normal and regular conduct of the local government. The meeting room should be made available on the same terms as apply to other groups who use the room. For example, rent should be charged for use of the meeting room if that is the normal policy. Also, both proponents and opponents of the initiative must have access to the meeting room on a nondiscriminatory basis.

    (Link to this question)

    May a local government officer or employee write, on his or her own time, a letter to the editor of the local newspaper expressing a position on a statewide initiative?
    Reviewed: 12/13


    Yes, and the officer or employee may also identify in the letter his or her position with the local government. However, there should be no implication in the letter that the writer of the letter is expressing an official position on behalf of the local government concerning the initiative.

    (Link to this question)

    May local government employees or officials prepare and distribute to citizens a neutral fact sheet concerning the impacts of a statewide initiative on agency revenues and possible impacts on expenditures?
    Reviewed: 12/13


    Yes, and this may include using staff to research the impact of a ballot proposition for the purpose of gathering facts. The Washington Administrative Code in WAC 390-05-271 specifically allows a local government to make an objective and fair presentation of facts relevant to a ballot proposition, when such action is a normal and regular part of the conduct of the local government. This information may be distributed to citizens using the normal methods of communication that each local government uses to communicate with its citizens such as newsletters, utility mailings, and so on.

    (Link to this question)

    What are the powers of initiative and referendum?
    Reviewed: 12/13


    An initiative is the means, established by charter or statute, for the enactment of municipal legislation by the direct action of the voters of the city.

    A referendum is the right of the people, established by charter or statute, to have an ordinance which has been enacted by the local legislative body submitted to the voters of the city for their approval or rejection.

    (Link to this question)

    Which classes of cities in this state have the powers of initiative and referendum?
    Reviewed: 12/13

    In general, the powers of initiative and referendum are not available to all classes of municipalities.
    These powers are not automatically included in the powers granted to cities, towns or counties. The
    authority for use of these powers is found either in the state constitution or in enabling legislation
    adopted by the state legislature, or both.

    In Washington, the only cities that have been granted the powers of initiative and referendum are the
    first class cities, code cities that have formally adopted these powers, and cities with the commission
    form of government.

    First Class Cities

    The state constitution specifically grants the authority to adopt a charter to first class cities, and
    RCW 35.22.200 specifically provides that a first class city charter may provide for direct legislation
    by the people through the initiative and referendum process. All of the ten first class cities in
    Washington have adopted the powers of initiative and referendum, and the procedures for exercising
    these powers are set out in the city charter of each city.

    Second Class Cities and Towns

    Second class cities and towns do not have the authority to establish initiative and referendum
    powers; consequently, voters in these two classes of municipalities may not exercise either power.
    In second class cities and towns, the council may submit an issue to the voters on an advisory ballot
    basis. This means that the voters may vote on an issue or an ordinance, but the results of the vote
    are not legally binding. While a city or town council may consider the vote of the people in an
    advisory ballot in deciding whether to enact or repeal an ordinance, the council is not bound to
    follow the majority vote.

    Commission Cities

    A city that has the commission form of government automatically has the powers of initiative and
    referendum. These powers are set out in the enabling authority for commission cities in
    RCW 35.17.220 - 35.17.360. Only one city in the state, Shelton, still operates under the commission
    form.

    Code Cities

    While initiative and referendum powers are available to code cities, they are not automatic powers
    either at the time of incorporation or reclassification as a code city. Code cities must formally adopt
    these powers. 46 code cities in Washington have formally adopted these powers. 
    Citizens in other code cities do not have these powers available. All code cities have authority to submit
    issues to the public on an advisory basis but the results of an advisory election are not binding on the city
    council.

    (Link to this question)

    What are the methods for acquiring the powers of initiative and referendum by a code city?
    Reviewed: 12/13


    The code city statutes indicate that the powers of initiative and referendum are to be acquired through use of the process used to reclassify under the optional municipal code. RCW 35A.11.080.

    The first method, under RCW 35A.02.020, is by direct petition which requires a petition signed by qualified electors equal in number to not less than 50 percent of the votes cast at the last general municipal election. This petition is then filed with the city clerk who must then determine whether the petition is sufficient. If it is, the petition is filed with the legislative body, which then must pass a resolution declaring that the inhabitants of the city or town have decided to provide for the powers of initiative and referendum. The resolution must be published in a newspaper of general circulation within 10 days of its adoption. Thereafter, there is a 90-day waiting period during which a second "referendum" petition can be filed to force an election on the issue. The second petition is sufficient if it has been signed by qualified electors equal in number to not less than 10 percent of the votes cast at the last general municipal election. If a sufficient second (or referendum) petition is filed, there must be an election on the issue at the next general municipal election, if that election will be held within 180 days after the filing of the referendum, or otherwise at a special election. If there is an election on the issue, the powers would only be adopted if a majority of those voting on the issue favor adoption of the powers. If there is no referendum (or second) petition filed within 90 days of the council resolution, the council must adopt the powers of initiative and referendum by ordinance.

    The second method, provided for in RCW 35A.02.030, is by resolution. Under this method, the city council may pass a resolution to provide for the powers of initiative and referendum. This resolution, like the direct petition method resolution, is subject to a referendum if, within 90 days after publication of the resolution, a timely 10 percent petition is filed, as provided for in RCW 35A.02.035.

    (Link to this question)

    What constitutes certification of the election of a mayor or councilmember?
    Reviewed: 12/13


    RCW 29A.52.360 relates to certification of elections. This statute indicates that immediately after the ascertainment of the result of an election or an office to be filled in a city, the county auditor shall notify the person elected, and issue to the person a ceremonial certificate of election.
     

    (Link to this question)

    What restrictions apply to city and county employees or officials in providing information pertaining to a ballot measure?
    Reviewed: 12/13

    Cities and counties are allowed to provide factual information to the voters regarding the specific effects of a ballot measure as long as it is in the normal course of business and not intended to influence the outcome of the election. The Public Disclosure Commission has published guidelines for local governments in the preparation of ballot measures.

    The Attorney General's Office has also published guidelines on the role of local governments and agencies in support of a ballot measure. This memo states that:

    Public agencies may conduct research into the likely results of the passage of a ballot proposition. Indeed, where the passage of the proposition would directly affect the agency's duties, an agency might be remiss for not conducting such research activity. However, it must be clear that the research is being conducted with the purpose of gathering the facts, is directly related to the ordinary conduct of the agency's business (is "normal and regular" for the agency), and is not designed to support or oppose a candidate or ballot measure.

    See also an MRSC memo on the use of public facilities to support or oppose a ballot measure. Basically, a city or town may engage in

    . . . activities which are part of the normal and regular conduct of the local government. . . . a local government could prepare an objective and neutral presentation of facts concerning a ballot measure. For example, details could be provided to citizens concerning the financial impact of an initiative on the local government, such as how revenues would be affected by its passage. Care must be taken that this information be presented in a fair, objective manner.

    (Link to this question)

    May a mayor send a letter to all city employees soliciting campaign contributions for his election campaign, whether for city or state-wide office?
    Reviewed: 12/13


    No. County or city officials may not knowingly solicit, directly or indirectly, a contribution for any candidate for public office, including themselves, from an employee in their agency. This rule is stated in RCW 42.17A.565, which was amended in 1995 to apply to local officials as well as state officials. The term "agency" means the county, city, or town, and every office, department, division, board, commission, or agency within the county, city, or town.

    Because the law requires that an official not "knowingly" solicit contributions, it would not appear to be a violation if an official used a list of registered voters or other lists of potential contributors not related to the agency for purposes of soliciting campaign contributions and the list happened to contain individuals who were also employees in the official's county or city. It does not make a difference if the official is running for a state-wide office, rather than a county or city office, because the rule applies to all solicitations of campaign contributions.

    Outside of work, individual county and city employees still have the right to participate in the political campaigns of officials of the same county or city as the employee, including making private campaign contributions. The law simply prohibits a local official from "knowingly" soliciting contributions from employees of the same local government as the official.

    (Link to this question)

    Can the powers of initiative and referendum, once adopted, ever be abandoned by a code city?
    Reviewed: 12/13


    Yes, they can be. RCW 35A.11.080 provides that the exercise of the powers "may be restricted or abandoned" through use of the procedures that are followed to abandon the plan of government of a noncharter code city, RCW 35A.06.030 - .060. No code city has ever abandoned the powers once adopted.

    (Link to this question)

    Can an initiative petition contain a number of items?
    Reviewed: 12/13


    There is a provision in RCW 35A.12.130 which indicates that no ordinance shall contain more than one subject and that must be clearly expressed in its title. This requirement would also seem to apply to an ordinance proposed by initiative.

    (Link to this question)

    What is the process for a code city to divide into districts to elect councilmembers?
    Reviewed: 12/13

    Dividing a city into districts (wards) is specifically authorized by RCW 35A.12.180 as long as it not done within three months of a municipal general election. 

    The process for establishing a ward or district system is fairly straight-forward. RCW 35A.12.180 provides that the first step is for the council to pass an ordinance establishing a ward or district system; there is no required public vote on the matter, although the council could do an advisory vote on the issue. The council will need to decide how many districts it wants to establish and whether it wants any at-large positions. For example, the council could establish seven districts with one councilmember per district, or it could establish five or six districts and one or two at-large positions, or it could establish three districts with two councilmembers for each district, and one at-large position, etc. The councilmembers that are elected by district would be chosen at the primary election only by voters in their districts and then by all the voters at the general election.

    Here are some examples of city code provisions establishing wards/districts: 

    There are currently, to our knowledge, 23 cities in the state with a ward system, 14 of them being code cities.

    The bulk of the work in establishing a ward/district system would be, of course, in determining district boundaries. RCW 35A.12.180 provides that "The representation of each ward in the city council shall be in proportion to the population as nearly as is practicable." It does not say anything about how to go about establishing the boundaries of the districts, but it requires that, when districts are redrawn, the redrawing of boundaries should be done according to chapter 29A.76 RCW. RCW 29A.76.010 states that the redistricting is to be "based on population information from the most recent federal decennial census." So, presumably, the initial establishment of a ward/district system would use federal census data, along with any other sources that would make that data more current.

    Note that the board of county commissioners has no statutory role in the process.

    (Link to this question)

    What are some of the arguments for and against the mayor-council form of government?
    Reviewed: 12/13

    Arguments For the Mayor-Council Form

    This is the form that is familiar to most Americans because it is patterned after our traditional national and state governments. There is a separation of powers between the executive and legislative branches. There are checks and balances.

    Also separation of powers provides healthy independence, debate and creative tension. Separate legislative and executive branches provide the best opportunity for debate and consensus building.

    By electing, rather than appointing a mayor, political leadership is established. The city has a political spokesperson who has a high degree of visibility.

    Some argue that an elected mayor will have a higher standing and greater voice in regional affairs of the city.

    In most cities the mayor is vested with the veto power, and can serve as a check on an unpopular council decision.

    A professional administrator can be hired to assist the mayor in the management of the city's operations thereby freeing the mayor to concentrate on political leadership or to offset weaknesses in the mayor's management background or experience, but the mayor is still ultimately responsible.

    Arguments Against the Mayor-Council Form

    The office of the mayor gives too much power and authority to one person. It permits an incumbent to make decisions based largely on political considerations, and to use the office to further personal political objectives.

    The qualities needed to win an election are not the same qualities needed to manage a modern city. A mayor while politically astute may not always possess the necessary management training and experience.

    If an elected mayor proves to be incompetent or worse, he/she cannot be removed until the end of their term, or through an expensive and divisive recall election process.

    A separately elected mayor may resist requests from the council. The mayor may attempt to isolate the council by controlling staff, information, and reports; "turf wars".

    (*Note: These "arguments" have been collected from a variety of sources and do not necessarily reflect the opinions of MRSC or MRSC Staff.)

    (Link to this question)

    Can a mayor-council noncharter code city establish a "legislative department" and create staff positions with employees who work for the council?
    Reviewed: 12/13

    MRSC has consistently advised that a noncharter code city can establish legislative staff positions involving employees who will provide assistance to the city council, however, the authority to appoint and remove the person holding the position would remain with the mayor. A similar analysis appears to apply to a mayor-council noncharter code city.

    RCW 35A.11.020 and RCW 35A.12.020 give the city council in a mayor-council code city broad authority to organize the council's internal affairs and to define the functions, authority, duties, and qualifications of city officers and employees. Under this authority, a city council could create a city "legislative department" and provide for council staff positions whose responsibilities were to provide research and assistance to city council members in performing their legislative functions. Although the city council could provide that such legislative staff members work under the direction of the elected council members, the authority to appoint and remove the person would still remain with the mayor under RCW 35A.12.090.

    The city council may require that persons appointed or hired for the position of council legislative staff be confirmed by the council, however, the authority to remove the person would still rest with the mayor and would not be subject to council review.

    It does not appear possible for the council in a noncharter code city to provide for legislative staff positions that are subject to appointment and removal by the council members rather than the mayor. The only method for creating a form of government in which legislative staff members were appointed by the city council would be through the adoption of a charter under chapter 35A.08 RCW that included such a provision.

    (Link to this question)

    Request for information on the roles and responsibilities of local government executive and legislative officials.
    Reviewed: 12/13

    See the following resources on MRSC's website:

    You may also be interested in the following MRSC publications:

    • Local Government Policy-Making Process. This publication describes the local government policy-making process, outlines effective roles for local officials, and to provide practical tips to make the local policy-making process more satisfying and productive.
    • Knowing the Territory. Describes the nature, powers and duties of municipal officials for "keeping out of trouble," discusses limitations, regulations, and admonitions regarding the exercise of governmental powers, including conflicts of interest law, the open public meetings act, appearance of fairness doctrine and similar laws. It also points out immunities and protections.
    • Code City Handbook. Provides essential information for code city officials and incites their powers, duties, and alternatives that are available under the applicable forms of municipal government.
    • Mayor and Councilmember Handbook. A brief overview of the structure of municipal government in Washington State and the role of the councilmember in that structure.

    (Link to this question)

    Request for sample mission statements from other cities.
    Reviewed: 12/13

    City of Bellevue: Provide exceptional customer service, uphold the public interest and advance the Community Vision.

    City of Camas: The city of Camas commits to preserving its heritage, sustaining and enhancing a high quality of life for all its citizens and developing the community to meet the challenges of the future. We take pride in preserving a healthful environment while promoting economic growth. We encourage citizens to participate in government and community, assisting the city in its efforts to provide quality of services consistent with their desires and needs.

    City of Chelan: The City of Chelan is a partnership of its people, personnel and elected representatives working together to protect and serve in order to allow all to live in harmony while enjoying a quality way of life. The city recognizes that these accomplishments will be through creative leadership, motivated and dedicated personnel and community participation in its government.

    City of Cheney: The Mission of the City of Cheney is to responsibly provide its citizens desirable services while promoting and optimizing the finest quality of life.

    City of Des Moines: We enrich the community by providing leadership and services reflecting the pride and values of Des Moines.

    City of Enumclaw: The City of Enumclaw through the Mayor, City Council, and City employees will provide municipal services to our citizens in an effective and responsible manner which preserves the community's well-being, respects the dignity of our citizens, and promotes excellence in public service.

    City of Federal Way: The City of Federal Way ir responsive, innovative and fiscally responsible in delivering quality services, promoting economic development, improving infrastructure and managing growth. 

    City of Kenmore: With integrity as its cornerstone, Kenmore is a city that will meet its obligations by providing: Effective and efficient services Public safety Forum for citizen participation and involvement A community-generated plan for the future Fair-friendly services responsive to the diverse needs of the citizen Representation of Kenmore's interests in local and regional partnerships ...leaving a sustainable legacy.

    City of Kent: Our mission is to enhance the quality of community life for those residing, doing business, and visiting in Kent. Kent CARES about honest and effective government service; protection of life and property; and ensuring that the city provides professional services to the citizens of Kent.

    City of Lacey: Our mission is to enrich the quality of life in Lacey for all our citizens . . . to build an attractive, inviting, culturally diverse and secure community. We pledge to work in partnership with our residents to foster community pride, to develop a vibrant, diversified economy, to plan for the future, and to preserve and enhance the natural beauty of our environment.

    City of Lynnwood: The City of Lynnwood will be a regional model for a sustainable, vibrant community with engaged citizens and an accountable government.

    City of Olympia: To improve the quality of life and to enhance the spirit of the community through personalized services, citizen involvement, planning for the future and a commitment to timely action.

    City of Port Angeles: The purpose of the City of Port Angeles is to provide the citizens of Port Angeles with a variety of services in the most efficient and effective manner possible.

    City of Poulsbo: Our city is committed to managing the public resources to promote community health, safety and welfare and plan for the future to accommodate growth, without burden, while preserving our natural resources and enhancing those qualities that make our community unique and desirable.

    City of Puyallup: The mission of the City of Puyallup and employees is to . . . Earn the public trust and deliver quality municipal services for people who live in, work in and visit the growing urban area defined as the City of Puyallup, Washington.

    City of Renton: The City of Renton, in partnership with residents and businesses is dedicated to:


      Providing a healthy atmosphere to live and raise families
      Encouraging responsible growth and economic vitality
      Creating a positive community work environment
      Meeting service demands through innovation

    City of Tacoma: Working in partnership with our community to solve problems, we will provide innovative and cost effective municipal services of the highest quality to enhance the lives of our citizens and the vitality of our neighborhoods and business districts through teamwork, integrity and continuous improvement.

    City of Vancouver: To foster leadership, stewardship and responsive services and community partnerships.

    City of Woodinville: As the elected representatives of Woodinville, the City Council understands that the purpose of the City is to fairly and equitably represent the interests of the citizens of Woodinville, and to carry out its lawful duties on behalf of citizens of Woodinville.

    Council, staff, Boards and Commissions honor our commitment to serve the Woodinville community by:
    Providing customer service that is:
    Efficient - Personalized - Consistent - Responsive -Educational

    Encouraging partnerships with:
    Citizens - Neighborhoods - Business communities - Educational and social networks

    Protecting and enhancing:
    Quality of life - public health, safety and welfare - natural and built environment - spirit of neighborhood character

    Balancing: Public expectations and resources - Economic well-being and environmental protection - individual and community interests

    City of Yakima: To provide outstanding services that meet the community's needs.

    To govern responsibly by effectively managing and protecting public resources.

    To build trust in government through openness, diverse leadership and communication.

    To strategically focus on enhancing Yakima's quality of life.

     

    (Link to this question)

    What are some of the arguments for and against the council-manager form of government?
    Reviewed: 12/13

    Arguments For the Council-Manager Form

    Administration of city business is removed from politics.

    Council-manager form is based on an efficient business model.

    Since city managers are appointed rather than elected, greater attention can be given to selecting a qualified manager. The pool of qualified candidates is larger since candidates can be recruited from as far as the city council desires up to and including a nationwide search. (Mayors must be a resident of the city prior to their election.)

    Since managers are appointed not elected, they are less likely to have political obligations which will affect the quality of their administration.

    Emphasis is placed on the role of the legislative body and its policy-making function. Council gets better cooperation and information because the city manager is their employee.

    Since manager serves at the pleasure of the council without a definite term, he/she can be removed at any time, limiting the danger of an abuse of authority.

    The council/manager relationship is similar to the school board/superintendent relationship.

    Arguments Against the Council-Manager Form

    The council-manager form gives too much power to one person-the city manager.

    A professional manager chosen from outside the city may not know the community and is too far from the voters.

    Councils may leave too much decision making to the manager, who is not directly accountable to the public.

    Without an elected chief executive, the community lacks political leadership.

    The council-manager form is too much like a business corporation which is not suitable for managing community needs.

    City managers cost too much, local people could handle the job for less cost.

    Citizens may be confused about who is in charge. People may expect the mayor to respond to their problems, however, the mayor has no direct control over the delivery of services and can only change policy through the city council.

    A city manager may leave a city when offered a higher salary and greater responsibility in another city.

    (*Note: These "arguments" have been collected from a variety of sources and do not necessarily reflect the opinions of MRSC or MRSC Staff.)

    (Link to this question)

    What are the major characteristics of the commission form of government?
    Reviewed: 12/13

    The commission form provides for the election of three commissioners who function collectively as the city legislative body and individually as city department heads. The three are elected at-large to fill the specific offices of commissioner of public safety (who also serves as the mayor), commissioner of finance and accounting, and commissioner of streets and public improvements (public works). Although one of the elected commissioners also has the title of mayor, he or she has essentially the same powers as the other commissioners, and has no veto power nor any power to direct city administration except within his/her own department. The commission appoints and removes officials by a majority vote.

    (Link to this question)

    What are some of the arguments for and against the commission form of government?
    Reviewed: 12/13

    In theory, combining executive and legislative responsibility in one small elected body will result in increased political accountability and a more efficient and responsive government.

    The dispersal of executive authority and power provides sufficient separation of powers, and checks and balances, making it unnecessary to have separate legislative and executive branches.

    Commissioners as legislators can be sure that their wishes are being carried out since they are administering the policies which they had a part in shaping.

    The commission form may save money because the commissioners serve both as legislators and department heads.

    Arguments Against the Commission Form

    Successful commissioner candidates may turn out to be poor administrators either because they have no interest in it or because they lack the requisite management skills.

    The commission form has been criticized for its lack of executive leadership, there being no single individual comparable to the mayor in a mayor-council city or a city manager in a council-manager city who is responsible for the overall administration of city departments.

    Difficult communication issues, any time one commissioner wants to discuss something with another it requires a properly called public meeting even though it may be a matter of routine administration.

    Giving both legislative and executive powers to the same group of officials conflicts with the fundamental American concept of separation of governmental powers.

    Employees may tend to work primarily for their own departments, ignoring the needs of other parts of the government.

    (*Note: These "arguments" have been collected from a variety of sources and do not necessarily reflect the opinions of MRSC or MRSC Staff.)

    (Link to this question)

    If a county becomes a home rule county may all of the elected officials become appointed except the prosecutor and the judges?
    Reviewed: 12/13

    Yes. Art. XI, sec. 4 of the state constitution (paragraph 3) provides:

    Any home rule charter proposed as herein provided, may provide for such county officers as may be deemed necessary to carry out and perform all county functions as provided by charter or by general law, and for their compensation, but shall not affect the election of the prosecuting attorney, the county superintendent of schools, the judges of the superior court, and the justices of the peace, or the jurisdiction of the courts.

    For more information on home rule counties see:

    (Link to this question)

    What is the procedure for an incorporated municipality to become a noncharter code city?
    Reviewed: 12/13

    The procedures for an incorporated municipality to become a noncharter code city are set forth in Ch. 35A.02 RCW. The most common method for the adoption of the OMC is the "resolution method" provided for in RCW 35A.02.030.

    Under the resolution method, the city or town council initiates the process when a majority of the council enacts a resolution of intention to adopt the noncharter code city classification for the city or town, governed by the provisions of the optional municipal code. The resolution should be preceded by a finding that this reclassification would serve the best interests and general welfare of the municipality.

    The resolution of intention must then be published in a newspaper of general circulation within the city or town within 10 days. Then a 90-day waiting period must elapse during which time a referendum petition may be filed by the qualified electors of the city or town in order to cause the resolution of intention to be referred to the voters for approval or disapproval. If no referendum petition is filed within 90 days of the publication of the resolution of intention, the council may by ordinance adopt the classification of noncharter code city.

    The clerk must then file a certified copy of the ordinance adopting the classification of noncharter code city with the Office of the Secretary of State. The city or town is then reclassified as a noncharter code city and is governed by Title 35A RCW, known as the Optional Municipal Code.

     

    (Link to this question)

    Where are the powers and duties of the different classifications of government set out?
    Reviewed: 12/13

    The powers and duties of first class cities, second class cities and towns are set forth in Title 35 of the Revised Code of Washington. The powers and duties of optional municipal code cities are set forth in Title 35A of the Revised Code of Washington.

     

    (Link to this question)

    Is a budget ordinance subject to a referendum?
    Reviewed: 12/13


    RCW 35A.11.090 outlines the exceptions to the initiative and referendum powers of a code city. Among those exceptions are ordinances appropriating money and ordinances providing for the compensation of city employees. The budget ordinance would encompass both of these exceptions and consequently is not subject to a referendum.

    (Link to this question)

    Is there a statutory limit on how soon a code city may vote on whether to change the form of government after a failed attempt?
    Reviewed: 12/13

    No. There is no specific statute that limits how soon this type of issue could be voted upon again. There is such a limitation for votes after a failed incorporation election. See RCW 35.02.078. However, this has no application to a vote to change the form of government.

    RCW 35A.06.050 specifies that the resolution or petition shall be voted upon at the next general election in accordance with RCW 29A.04.330, or at a special election held prior to the next general election in accordance with the resolution of the legislative body.

    (Link to this question)

    Which cities have a mayor and a city administrator?
    Reviewed: 12/13

    First, it is important to note that the term "city or town administrator" is not universal. The essential functions of such a person might also fall under the following titles:

    • Administrative Assistant
    • Administrative Assistant to the Mayor
    • City Administrator
    • City Superintendent
    • City Supervisor
    • Executive Assistant
    • Executive Assistant to the Mayor
    • Operations Director/Chief of Staff
    • Town Administrator

    A large number of mayor-council cities have added a professional position of city administrator or chief administrative officer (CAO) in the mayor's office. CAO's serve under the mayor and assist with the mayor's administrative and policy-related responsibilities. In theory, the appointment of a CAO frees the mayor from the need to attend to administrative details and allows the mayor to focus greater attention on policy development, political leadership roles or their personal livelihood.

    According to the AWC 2011 Salary & Benefit Survey the following cities have established city or town administrator positions:

    Cities 50,000 and over:

    • Bellingham Chief Administrative Officer
    • Kent Chief Administrative Assistant
    • Marysville Chief Administrative Officer 
    • Renton Chief Administrative Officer
    • Spokane City Administrator

    Cities 30,000 - 49,999:

    • Issaquah City Administrator

    Cities 15,000 - 29,999:

    • Arlington City Administrator
    • Bonney Lake City Administrator
    • Camas City Administrator
    • Lake Stevens City Administrator 
    • Monroe City Administrator
    • Mukilteo City Administrator
    • Oak Harbor City Administrator
    • Pullman City Supervisor
    • Tukwila City Administrator
    • Tumwater City Administrator

    Cities 7,500 - 14,999:

    • Burlington City Administrator
    • Cheney City Administrator
    • College Place City Administrator
    • DuPont City Administrator
    • Enumclaw City Administrator
    • Ephrata City Administrator 
    • Ferndale City Administrator
    • Grandview City Administrator
    • Hoquiam City Administrator
    • Lake Forest Park City Administrator
    • Lynden City Administrator
    • Shelton City Administrator
    • Snoqualmie City Administrator
    • Sumner City Administrator
    • Washougal City Administrator

    Cities 2,500 - 7,499:

    • Algona City Administrator/Clerk Treasurer
    • Black Diamond City Administrator
    • Buckley City Administrator
    • Chelan City Administrator
    • Chewelah City Administrator
    • Clyde Hill City Administrator
    • Colfax City Administrator
    • Connell City Administrator
    • Eatonville Town Administrator 
    • Ephrata City Administrator
    • Gig Harbor City Administrator
    • Goldendale City Administrator/Manager
    • Medical Lake City Administrator
    • Milton City Administrator
    • Montesano City Administrator/Finance Director
    • Moxee City Supervisor/Public Works Supervisor 
    • North Bend City Administrator
    • Omak City Administrator
    • Orting City Administrator
    • Othello City Administrator
    • Prosser City Administrator
    • Quincy City Administrator
    • Selah City Supervisor
    • Steilacoom Town Administrator
    • Sultan City Administrator
    • Yelm Chief Administrative Officer

    Cities 1,500 - 2,499:

    • Bridgeport Administrator
    • Cle Elum Administrator
    • Davenport City Administrator
    • Friday Harbor Town Administrator
    • Leavenworth City Administrator
    • McCleary City Administrator/Public Works Director
    • Newport City Administrator
    • Rainier City Administrator
    • South Bend City Supervisor
    • Stevenson City Administrator 
    • Westport City Administrator

    Cities 500 - 1,499:

    • Bingen Administrator
    • La Conner Administrator
    • North Bonneville City Administrator/Clerk/Treasurer
    • Reardon Administrative Assistant
    • Roslyn City Administrator
    • Woodway Town Administrator

    For more information on city administrator positions, see:

    (Link to this question)

    Does the Americans with Disabilities Act (ADA) require local governments to accommodate, by varying from city's zoning code, an improvement (ramp) necessary for a disabled person?
    Reviewed: 12/13

    Here's what the Department of Justice has to say about this issue:

    Issue: Local Laws, Ordinances, and Regulations

    Common Problem:

    City governments may fail to consider reasonable modifications in local laws, ordinances, and regulations that would avoid discrimination against individuals with disabilities.

    Result:

    Laws, ordinances, and regulations that appear to be neutral often adversely impact individuals with disabilities. For example, where a municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district, installing a ramp to ensure access for people who use wheelchairs may be impermissible without a variance from the city. People with disabilities are therefore unable to gain access to businesses in the city.

    Requirement:

    City governments are required to make reasonable modifications to policies, practices, or procedures to prevent discrimination on the basis of disability. Reasonable modifications can include modifications to local laws, ordinances, and regulations that adversely impact people with disabilities. For example, it may be a reasonable modification to grant a variance for zoning requirements and setbacks. In addition, city governments may consider granting exceptions to the enforcement of certain laws as a form of reasonable modification. For example, a municipal ordinance banning animals from city health clinics may need to be modified to allow a blind individual who uses a service animal to bring the animal to a mental health counseling session. 28 C.F.R. § 35.130(b)(7).

    "The ADA and City Governments: Common Problems," U.S. Department of Justice, Civil Rights Division, Disability Rights Section

    (Link to this question)

    Does the ADA require that cities and counties place a notice about ADA accommodation availability in the published notice of upcoming council or board meetings?
    Reviewed: 12/13

    Not specifically, but doing this would be consistent with the intent of the following requirement in a regulation (28 C.F.R. Sec. 35.163(a)) adopted by the Department of Justice to implement the ADA:

    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.

    Language such as the following would be appropriate for inclusion in the published notice and on the printed agendas: AMERICANS WITH DISABILITIES ACT (ADA) ACCOMMODATIONS PROVIDED UPON REQUEST.

    (Link to this question)

    If the court rooms located on the second floor of the county courthouse are not accessible for persons with disabilities, is it acceptable for the county to require county employees to carry disabled persons to the court room?
    Reviewed: 12/13

    Although the county must make sure that its services, programs, or activities are readily accessible to and usable by individuals with disabilities, they are not necessarily required to make each of their existing facilities accessible. However, in this case where the courtrooms are on the second floor and there is no elevator or other means of accessibility to the second floor, the county must relocate the proceedings to an accessible ground floor courtroom or take alternative steps, including moving the proceedings to another building in order to allow persons with a disability to participate in court proceedings. (See ADA Title II Technical Assistance Manual, U.S. Department of Justice, II-5.0000 Program Accessibility; 28 CFR 35.149 - 35.150.)

    There are limitations on accessibility requirements if the public entity can demonstrate that this action would result in a "fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens." However, this determination should be made by the county commissioners and "must be accompanied by a written statement of the reasons for reaching that conclusion." (ADA Title II Technical Assistance Manual, II-5.0000.) The agency must still find some other method of ensuring that individuals with disabilities receive the benefits and services of the program or activity.

    On the question of whether accessibility can be achieved by carrying disabled individuals up stairs, the Manual answer is as follows:

    ILLUSTRATION 1: The office building housing a public welfare agency may only be entered by climbing a flight of stairs. If an individual with a mobility impairment seeks information about welfare benefits, the agency can provide the information in an accessible ground floor location or in another accessible building.

    ...

    Is carrying an individual with a disability considered an acceptable method of achieving program access? Generally, it is not. Carrying persons with mobility impairments to provide program accessibility is permitted in only two cases. First, when program accessibility in existing facilities can be achieved only through structural alterations (that is, physical changes to the facilities), carrying may serve as a temporary expedient until construction is completed. Second, carrying is permitted in manifestly exceptional cases if (a) carriers are formally instructed on the safest and least humiliating means of carrying and (b) the service is provided in a reliable manner. Carrying is contrary to the goal of providing accessible programs, which is to foster independence.

    (ADA Title II Technical Assistance Manual, II-5.0000)

    We recommend that the county continue to use its current policy of relocating court proceedings to the Commissioners hearing room on the first floor of the courthouse when a disabled person is a participant in a court proceeding. For providing access for the general public to observe court proceedings, they could provide a "carrying service" available on "reasonable notice" which follows the guidelines set out in the illustration. In any case, the county commissioners should establish a formal policy with clear guidelines so that everyone is clear about how court proceedings will be made accessible.  

    (Link to this question)

    May a member of a board abstain even if the person has no specific conflict on the issue?
    Reviewed: 12/13

    Yes, unless a local rule of procedure prevents the abstention. Generally, a member of a board is not required to vote and may choose to abstain, even if there is not a conflict. Because this causes some problems, some boards have enacted bylaws that require a member to vote unless there is a specific conflict.

     

    (Link to this question)

    Do city managers typically take an oath of office? Can you provide samples?
    Reviewed: 12/13

    Yes. They are, in fact, required to do so before taking office. RCW 35A.13.070 states:

    Before entering upon the duties of his or her office the city manager shall take an oath or affirmation for the faithful performance of his or her duties and shall execute and file with the clerk of the council a bond in favor of the code city in such sum as may be fixed by the council. The premium on such bond shall be paid by the city.

    City managers in other classes of cities are required to do so by RCW 35.18.050.

    There is no required language for the oath of office for city managers, though RCW 29A.04.133, while applicable only to elected officials, states that, if there is no oath specified by statute, the oath taken should state "that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability." Here are three examples of oaths of office that are used in other cities: 

    • I, __________, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Washington, and all local ordinances, and that I will faithfully and impartially perform and discharge the duties of the office of __________, according to law and the best of my ability. 
    • I, __________, do solemnly swear (or affirm) that I will faithfully and impartially and to the best of my ability, perform the duties of the office of the __________, in accordance with the laws of the State of Washington, and all other applicable legal enactments of the __________, Washington. 
    • I solemnly swear (or affirm) that I will support the constitution and will obey the laws of the United States and of the State of Washington, that I will, in all respects, observe the provisions of the charter and ordinances of __________, and will faithfully discharge the duties of the office of __________.

    (Link to this question)

    May the city council revoke its confirmation of a mayoral appointment?
    Reviewed: 12/13

    No, we do not think that the council may revoke its confirmation of a mayoral appointment. Once the council has confirmed the appointment, the appointment is final and complete and the appointment may be undone only by the mayor terminating the appointee. The general rule is that the council may reconsider its vote up to the point it takes final action on a matter. Cowlitz County v. Johnson, 2 Wn.2d 497, 502-03 (1940) ("Unless restrained by charter or statute, the legislative body of a municipal corporation possesses the undoubted right to reconsider its vote upon measures before it at its own pleasure, and to do and undo, consider and reconsider, as often as it may think proper, until a final conclusion is reached.").

    As stated in McQuillin, Municipal Corporations, § 12:140, "An appointment is complete when the last act required of the appointing power has been performed." (Footnote omitted.) Here, that last act for the appointment to be complete is confirmation by the city council of the mayor's appointment. Additionally, McQuillin, Municipal Corporations, at § 12:140 provides:

    If a council has no authority to recall or annul an appointment made by it, a resolution adopted by such body rescinding its action in confirming a nomination by the mayor, and rejecting and disapproving such nominations, and refusing to approve the appointee's official bond, does not deprive the appointee of the right to the office.

    (Footnote omitted.)

    So, it seems clear, given the authorities above, that the council may not revoke its confirmation of a mayoral appointment.

    (Link to this question)

    May the council in a mayor-council code city pass an ordinance requiring that the mayor submit all new appointments and also all terminations of employees to the council for approval before the appointment or termination can be effective?
    Reviewed: 12/13

    This ordinance provides basically that all hiring and firing by the mayor requires council confirmation. While authority exists in state law for the council to require confirmation for mayoral appointments (RCW 35A.12.090), no such authority exists for a council to require confirmation for terminations of mayoral appointments. Appointive officials serve at the pleasure of the mayor and may be removed by the mayor without the concurrence of the council.

    A city ordinance cannot fundamentally alter the authority of the mayor in a mayor-council city to hire and terminate city employees. The state statutes that apply to a mayor-council code city set out a division of powers between the mayor and the council that is similar to the separation of powers concept that applies at the state and federal level of governments. The mayor is specifically given the authority in RCW 35A.12.090 as follows:

    The mayor shall have the power of appointment and removal of all appointive officers and employees subject to any applicable law, rule, or regulation relating to civil service.

    This statute also provides that the council may enact an ordinance requiring council confirmation of mayoral appointments in such instances where qualifications for the position have not been established. However, no statutory provision allows the council to require council confirmation of mayoral terminations. Since termination of officers and employees is a power given to the mayor, an attempt by the council to give themselves this power violates the separation of powers doctrine.

    Therefore, in our opinion, the section of the proposed ordinance that provides for confirmation of mayoral appointments is in compliance with state law and is enforceable, but the section that requires confirmation for mayoral terminations goes beyond what is authorized by state law and is unenforceable.

    (Link to this question)

    May a city pay the membership costs for a city official to be a member of a service organization such as Kiwanis?
    Reviewed: 12/13

    Generally, these types of memberships can be paid for if the council adopts a policy finding that there is a municipal benefit from them. A number of cities have adopted such policies and are paying dues for groups like Kiwanis and Chamber of Commerce.

    (Link to this question)

    Does the absence of the mayor (in a mayor-council code city) from a council meeting have to be excused by the council? Is the mayor’s position subject to becoming vacant because of three consecutive missed regular meetings without being excused?
    Reviewed: 12/13

    In short, "no" to both questions. RCW 35A.12.060 regarding the city council excusing absences from meetings refers only to councilmembers, not to the mayor. RCW 35A.12.065 addresses the council designating one of their own as mayor pro tempore/deputy mayor to serve as mayor if the mayor is absent or temporarily disabled. RCW 35A.12.050 provides that the office of mayor (or councilmember) shall become vacant if, for example, the mayor fails to enter upon the duties of that office without a justifiable reason. We have opined that a mayor may be ill or unable to perform some of his/her duties for an extended period of time and still not run afoul of RCW 35A.12.050.

    Here, the mayor has missed the past two meetings because of his employment at a hospital. In that attending council meetings is only one of the many duties of the mayor, there does not seem to be a reasonable basis to establish that the mayor is failing to meet the duties of his office, especially if he has justifiable reasons for missing meetings and otherwise meets the duties of the mayoral office.
     

    (Link to this question)

    What is MRSC's position as to whether elected officials are covered by workers' compensation?
    Reviewed: 12/13

    It is MRSC's position that elected officials are covered by workers' compensation/industrial insurance. There is no exemption for elected officials in RCW 51.12.020 ("Employments excluded"). Also, note the definition of "employee" in RCW 51.08.185:

    "Employee" shall have the same meaning as "worker" when the context would so indicate, and shall include all officers of the state, state agencies, counties, municipal corporations, or other public corporations, or political subdivisions.

    (Emphasis added.)

    The Washington State Department of Labor & Industries considers elected officials to be covered, as there is a workers' compensation classification (5305) in WAC 296-17A-5305 for "clerical office, administrative employees, and elected officials of cities and towns."

    (Link to this question)

    May code cities adopt term limits for councilmembers?
    Reviewed: 12/13

    Yes. This office follows the opinion of the attorney general as expressed in AGO 1991 No. 22, which addressed the imposition of term limits on local government elected officials. That opinion differentiated in its conclusion between two types of local governments - one with broad home rule authority, consisting of charter cities and counties and noncharter code cities, that have authority to impose term limits, and the other, consisting of second class cities, towns, and noncharter counties, that do not possess that authority.

    The cities of Edgewood, Port Angeles, Spokane, and Tacoma each have established term limits for elected officials. Kent and Milton adopted term limits but later repealed them.

    (Link to this question)

    When does a councilmember receive a salary decrease enacted by the council prior to the November election if the councilmember is in the middle of his term and is not on the ballot at the November election?
    Reviewed: 12/13

    The state constitution provides that the salary of a councilmember cannot be increased or decreased during the term of office or after their election. So for those positions whose term expires at the end of December, 2011, the council can decrease the salary if the ordinance to do so is enacted prior to the election this November. The decreased salary would take effect on January 1, 2012 for those positions. The idea is that councilmembers receiving a change in salary must face the voters prior to receiving any change in salary - the usual concern of course is an increase in salary not a decrease but the same rule applies.

    But this also means that those councilmembers who are in council positions that are not on the ballot in November, 2011 are not subject to any official change in salary, increase or decrease, in January, 2012. In fact, they must wait until January, 2014 to receive any salary change - which is after they will have stood for election at the fall, 2013 election. So an increase in salary or a decrease in salary cannot be applied to a councilmember who is the in the middle of their term.

    Since this is a salary decrease, our position is that a councilmember may either voluntarily donate his or her salary back to the city after receiving it or decline to receive it if that is their wish. The official salary remains the same however and the person is entitled to receive their full salary at any time.

    (Link to this question)

    Must mayor reappoint appointive offices in a code city?
    Reviewed: 12/13

    No, RCW 35A.12.090 provides in part:

    The mayor shall have the power of appoint-ment and removal of all appointive officers and employees subject to any applicable law, rule, or regulation relating to civil service . . . Appointive offices shall be without definite term unless a term is established for such office by law, charter or ordinance.

    Accordingly, unless an ordinance has set a term of office for a particular appointive position, the office's "term" would be indefinite and the incumbent does not need to be reappointed.

    (Link to this question)

    Is a city required to pay for or provide a defense for elected officials who are subject to a recall effort?
    Reviewed: 12/13

    No, this is not required. A city council has the option of authorizing the use of city funds for the expense of defending an elected city official in a court hearing to determine the sufficiency of a recall charge. The expenses authorized by the council to be paid by the city can include the costs of an appeal of the court's sufficiency determination.  See RCW 35.21.203.

    (Link to this question)

    What is the statutory authority for the "holdover doctrine?"
    Reviewed: 12/13

    The "holdover doctrine" provides that an elected official remain in office until a newly-elected or appointed officer takes the oath of office. Taking the oath of office is the final step in "qualification."

    RCW 35.27.090 provides for towns:

    All general municipal elections in towns shall be held biennially in the odd-numbered years as provided in RCW 29A.04.330.  The term of office of the mayor and treasurer shall be four years and until their successors are elected and qualified and assume office in accordance with [RCW 29A.60.280]; PROVIDED, That the term of the treasurer shall not commence in the same biennium in which the term of the mayor commences. Councilmen shall be elected for four year terms and until their successors are elected and qualified and assume office in accordance with [RCW 29A.60.280];  three at one election and two at the next succeeding biennial election.

    See RCW 35.23.051, for second class cities, and RCW 35A.12.040, for mayor-council and council-manager code cities.

    (Link to this question)

    May new council wait until second week in January to be sworn in?
    Reviewed: 12/13

    Councilmembers serve for four-year terms which are to begin immediately after December 31, thus, on January 1 (RCW 29A.60.280). The statutes clearly contemplate that the new council shall come into office on January 1 and, in fact, provide for early swearing-in of officers to allow the term to begin January 1. Officers may be sworn in at the last council meeting in December or up to ten days before the scheduled day of assuming office, January 1. (See RCW 29A.60.280).

    However, if for some reason the newly-elected councilmembers do not take office on January 1, the "old" council will continue in office as "holdovers." The relevant statutes specify that the outgoing officer serves until the successor is elected "and qualified." The last step in "qualifying" for office is being sworn in. (See RCW 29A.60.280 and RCW 29A.04.133). Thus, until the newly-elected person is sworn in, he or she is not yet "qualified" and the outgoing officer remains in office. The holdover councilmember would continue to exercise all of the same authority and power as he or she did during the regular four-year term.

    At some point the newly-elected councilmember must be sworn in or otherwise have his or her position declared vacant. See RCW 42.12.010(6). Possibly a delay could be considered "non-feasance." A delay of a week or so, for a good reason, for example being out of the country, would not likely create any problems.

    (Link to this question)

    If a person is elected to a city council position held by an incumbent that was appointed to fill the remainder of a four-year term, when does the person elected take office?
    Reviewed: 12/13

    He or she takes office as soon as the election results are certified and the individual is qualified in accordance with RCW 29A.04.133.  Under RCW 42.12.0703(6), which addresses filling vacancies in nonpartisan elective offices, a person who is appointed to a vacant position serves until a qualified person is elected at the next election at which a member of the governing body normally would be elected that occurs twenty-eight or more days after the occurrence of the vacancy.  "Qualified" refers to the requirement that the election be properly certified, and that the oath or affirmation be taken by the newly elected official.

    If an election for the position that became vacant would otherwise have been held at this general election date, only one election to fill the position is held and the person elected to fill the succeeding term for that position takes office immediately (when qualified as defined in RCW 29A.04.133) and serves both the remainder of the unexpired term (from certification of the election until January 1) and the succeeding, full term.

    In this situation, the time between when the election results are certified and the new term begins in January is deemed the "short term," which the newly-elected councilmember serves, as well as serving the full term that begins in January.

     

    (Link to this question)

    When does the law require that county commissioners be sworn into office?
    Reviewed: 12/13

    County commissioners must be officially "qualified" to assume office before they can officially assume the duties of the office. This means that they must satisfy the requirements set out in RCW 29A.04.133.  This statute defines "qualified' to mean that the election results have been certified , any required bond has been posted and the oath or affirmation has been taken.

    The oath of office must be taken as the last step in qualification. It may be taken up to ten days prior to the scheduled date of assumption of office, which is January 1. It may also be taken at the last regular meeting of the county commissioners held before the winner is to assume office. RCW 29A.60.280. It can also be taken at the first meeting of the county commissioners after the scheduled date of assumption of office.

    (Link to this question)

    Are elected officials covered by COBRA?
    Reviewed: 12/13

    Looking at the relevant U.S. Code provisions, it looks like elected officials who are covered by the city's health plan would be entitled to continuation coverage. Continuation coverage for local government employees is provided under the "Public Health Services Act, 42 U.S.C. §300bb-1 et seq., which is very similar to COBRA. Under 42 U.S.C. §300bb-1(a):

    In accordance with regulations which the Secretary shall prescribe, each group health plan that is maintained by any State that receives funds under this chapter, by any political subdivision of such a State, or by any agency or instrumentality of such a State or political subdivision, shall provide, in accordance with this subchapter, that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan.

    42 U.S.C. §300bb-8(2) provides that:

     

    The term "covered employee" means an individual who is (or was) provided coverage under a group health plan by virtue of the performance of services by the individual for 1 or more persons maintaining the plan."

    And, 42 U.S.C. §300bb-8(3)(b) provides that, "In the case of a qualifying event described in section 300bb-3 (2) of this title, the term 'qualified beneficiary' includes the covered employee." A "qualifying event" in section 300bb-3 (2) includes termination of employment, "other than by reason of such employee's gross misconduct."


    So, if an elected official is covered by the city's health plan, he or she is a "covered employee," and, upon conclusion of his or her term of office (i.e., termination of employment), the elected official becomes a "qualified beneficiary" entitled to continuation coverage under 42 U.S.C. §300bb-1 et seq.

     

    (Link to this question)

    Was there legislation enacted in 2007 that would allow city elected officials to receive medical benefits insurance and have it be effective immediately?
    Reviewed: 12/13

    Yes. RCW 41.04.190 was amended in Ch. 42, Laws of 2007 (page 174). The effective date was July 22, 2007.
    This legislation provides that the cost of a medical insurance policy or plan to a public agency is not additional compensation to the employees or elected officials covered. This statute previously existed but specifically only applied to county officials and certain special district officials. Now the legislation was amended to include city officials elected under RCW Chs. 35.17, 35.22, 35.23, 35.27, 35A.12, and 35A.13. This covers all city elected officials.

    So the constitutional prohibition on raising salary during the term of office clearly does not apply to medical insurance or medical benefits for city officials.

    (Link to this question)

    Request for information on the duties of the city clerk in an optional municipal code city.
    Reviewed: 12/13

    The city clerk has many statutory duties, which are spread throughout Title 35A RCW and, to a lesser extent, Title 35 RCW. The following list of statutes covers the major statutory duties of the city clerk in an optional municipal code city (some special duties that come into play when the city is doing an LID or an annexation are not included):

    • RCW 35A.42.040 - city clerks and controllers; listing certain duties of a code city clerk
    • RCW 35A.12.080 - official bond required for clerk - applies to council-manager code city via RCW 35A.13.160
    • RCW 35A.12.110 - clerk, or deputy or other qualified person in clerk's absence, attends council meetings - applies to council-manager code city via RCW 35A.13.170
    • RCW 35A.12.140 - state statutes or codes or other codes or compilations adopted by reference in city ordinance must be authenticated and recorded by clerk; copy of adopted statute, code, or compilation is filed in office of clerk - applies to council-manager code city via RCW 35A.13.180
    • RCW 35A.12.150 - authentication and recording of ordinances and resolutions by clerk - applies to council-manager code city via RCW 35A.13.200
    • RCW 35A.12.170 - clerk to draw warrants with respect to demands against a code city - applies to council-manager code city via RCW 35A.13.210
    • 35A.29.170 - duties with respect to initiative and referendum petitions (if city has adopted the powers of initiative and referendum)
    • RCW 35A.33.030 - duties with respect to budget estimates
    • RCW 35A.33.050 - possible duties with respect to proposed preliminary budget
    • RCW 35A.33.052 - provide copies of preliminary budget to public
    • RCW 35A.33.060 - notice of hearing on final budget
    • RCW 35A.33.140 - provide quarterly reports on status of funds

    RCW 35A.21.030 provides that every officer of a code city shall perform all duties of his or her office which are imposed by state law on officers of every other class of city (second class cities and towns) who occupy a like position and perform like functions. Most, if not all, of the duties identified for clerks in second class cities and in towns are duplicative of or substantially similar to those identified for code city clerks and, as such, have not been included in the above list.

    The Municipal Clerks' Handbook, developed by the Washington Municipal Clerks Association, is a useful resource.

    (Link to this question)

    What process should be used to hire an attorney to assist a county if special expertise is required or if there is a conflict?
    Reviewed: 12/13

    Unless the prosecutor's office is quite large, there may be times when the office has neither time nor necessary expertise to provide advice and guidance on all legal issues. (Bond counsel is an example of when outside legal assistance is needed.) RCW 36.27.040 authorizes the prosecuting attorney to appoint special deputies, which may be done by contract, "whose authority shall be limited to the purposes stated in writing signed by the prosecuting attorney." RCW 36.32.200 provides a second appointment mechanism, one perhaps more likely used when there is a conflict between county offices or departments. Under this statute, the county commissioners may employ or contract with any attorney to perform any duty which any prosecuting attorney is authorized or required by law to perform but only after the contract has been reduced to writing and approved by the presiding superior court judge.  This type of contract is limited to two years duration.

     

    (Link to this question)

    What is a public office?
    Reviewed: 12/13

    A threshold question in applying the doctrine of incompatibility is whether the position at issue is a public "office." The state supreme court has adopted a five element test for determining whether an employment position is an "office." This test can be applied in situations where it may not be clear whether a position is an office. Often, however, the position at issue is created by statute as a public office (e.g., city clerk, city manager, county auditor).

    The five part test is set out in State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944).

    (Link to this question)

    May a city councilmember also serve as a volunteer fire fighter, volunteer ambulance personnel, or a reserve police officer?
    Reviewed: 12/13

    Yes. A councilmember may serve as a volunteer fire fighter, volunteer ambulance personnel, or a reserve police officer if authorized by a two-thirds vote of the council. See RCW 35.21.770 and RCW 35A.11.110.

    (Link to this question)

    May a husband and wife serve together on the city council?
    Reviewed: 12/13

    Yes. There is no provision in state law that would prohibit a husband and wife from serving on the council at the same time. However, in some situations, such as in the consideration of a quasi-judicial matter, there may be an appearance of fairness problem with having both spouses participate.

    (Link to this question)

    May a county or city personnel policy prohibit spouses from being employed by the county or city?
    Reviewed: 12/13

    In most instances, this would be prohibited by state anti-discrimination law because this would constitute discrimination on the basis of marital status. RCW 49.60.180 declares that it is an unfair practice for any employer to discriminate against a person because of age, sex, or marital status, among other things. A provision in a county or city personnel policy which prohibits the spouse of an employee from also working for the county or city may be in violation of this statutory provision.

    The state Human Rights Commission has adopted regulations which implement this anti-discrimination law. These regulations indicate that there are certain circumstances where business necessity may justify what otherwise would be considered discrimination on the basis of marital status. Situations where it is not unlawful for a county or city to prohibit the spouse of an employee from working for the county or city include where one spouse would have the authority or power to supervise, appoint, remove, or discipline the other spouse. A business necessity justification might also occur where one spouse would be responsible for auditing the work of the other spouse. Other examples are specified in the state regulation. Thus, a county or city should not have a general policy prohibiting employment of spouses except in certain such business necessity situations.

    (Link to this question)

    May a councilmember vote for himself or herself to fill a mayoral vacancy?
    Reviewed: 12/13

    This situation comes up frequently, and, unfortunately, there is no specific rule in this state, other than general conflict of interest principles. If the position of mayor is unpaid or is paid the same amount as a councilmember, there would be no financial conflict of interest. Nevertheless, case law from other states indicates a general rule that, regardless of any financial interest, a public officer may not vote for himself or herself for appointment to a position except where that position must be filled from the membership of the body on which that officer serves. Thus, under this exception, a councilmember may vote for himself or herself for mayor pro tem, because that position must be filled by a councilmember.

    If the position of mayor involves an increase in compensation, general conflict of interest principles would seem to preclude voting for oneself for this position. Despite the fact that it may often happen that councilmembers do vote for themselves, without adverse legal consequence, the safest course is not to vote for oneself to fill a mayoral vacancy.

    (Link to this question)

    May a county commissioner or employee purchase property from the county?
    Reviewed: 12/13

    A county commissioner may not purchase or lease property (real or personal) from the county, regardless of the value of the property. There is an absolute statutory prohibition that applies here. RCW 42.23.030(6). It does not matter how the property is purchased; an impartial bidding or auction sale would not eliminate the conflict.

    Note, however, that if a commissioner is a lessee of county property when he or she enters office, the lease would not be invalidated. Nevertheless, it could not be renewed if its term expired during the commissioner's term of office.

    Because the statutory prohibition applies only to county officers, a county employee may purchase property from the county.  A county may adopt  a stricter standard in its own personnel policies in regard to employees making purchases of property from the county.

    The same prohibition applies to city councilmembers and mayors in regard to purchasing or leasing property from their city.

    (Link to this question)

    May a city or county elective official hold another public office?
    Reviewed: 12/13

    In code cities this is specifically prohibited if that office is within the city. RCW 35A.12.030. A similar statutory prohibition exists with respect to the office of county auditor. RCW 36.22.110. With respect to other public offices and to other classes of cities, and to counties, the answer is governed in each particular case by the "doctrine of incompatible offices."

    In general, offices are incompatible when the nature and duties of the two are such as to render it improper, from considerations of public policy, for one person to retain both. Some of the issues to consider in determining incompatibility are whether or not the functions of the two positions are inconsistent, such as where one is subordinate to the other, or where there is an antagonism or conflict which would result in the attempt by one person to discharge faithfully and impartially the duties of both positions. Two offices are said to be incompatible when the office holder cannot in every instance discharge the duties of both.

    Where the second office is outside the city or county, incompatibility may exist based on the interaction between the jurisdictions involved; incompatibility arises where that interaction may result in conflicting interests or loyalties in a given situation. Thus, the attorney general's office has concluded, for example, that the offices of mayor and county commissioner and of mayor and port commissioner of a district that encompasses the city are incompatible offices.

    A threshold question in applying the doctrine of incompatibility is whether the position at issue is a public "office." The state supreme court has adopted a five element test for determining whether an employment position is an "office." This test can be applied in situations where it may not be clear whether a position is an office:

     

    1. [It] must be created by the Constitution or by the legislature or by a municipality or other body through authority conferred by the legislature;
    2. It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;
    3. The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority;
    4. The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body;
    5. It must have some permanency and continuity and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, . . . and give an official bond if the latter be required by proper authority.

    State ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554 (1944).

    Under this doctrine, it is unlikely, for example, that the mayor would be able to hold any other office in a city, because all non-elective offices are subordinate to the mayor. Also, a city council position, or county commissioner or county council position will usually be considered incompatible with holding another public office in the city or county based on the council's or commission's general authority over the budget and over contracts. That general authority will often be inconsistent with the interests of an officer whose department or whose duties are tied to budgetary and/or contractual issues.

     

    (Link to this question)

    Is it a conflict of interest for lessee of city property to be elected to city council?
    Reviewed: 12/13

    There would be no conflict of interest, since the lease was entered into prior to the lessee becoming a city official. However, the lessee/councilmember could not renew the existing lease, renegotiate the lease, execute a new lease upon expiration of the existing lease, or exercise the option to purchase the property, without first resigning from the council. RCW 42.23.030(6) prohibits a city from leasing or selling property to a municipal officer. Renewal of the lease or exercise of an option to purchase, even if both lease renewal and the option to purchase are provided for in the existing lease, would be a conflict of interest.

    (Link to this question)

    May a councilmember also serve on the planning commission?
    Reviewed: 12/13

    In a code city a councilmember may not in our opinion serve on a planning commission (or similar body) because of the statutory prohibition against a councilmember holding any other public office within city government. RCW 35A.12.030. The nature and duties of the planning commissioner position are such that the position would be considered a public office, thus triggering the prohibition. (Note, however, that a code city is not required to establish a planning commission to carry out its planning functions.) In towns and in other classes of municipalities a councilmember is not specifically prohibited from holding other offices. Indeed, in those municipalities that plan under ch. 35.63 RCW, there is specific statutory authorization for "ex officio members [on the planning commission] by virtue of office held in . . . [the] municipality." However, because of the seeming incompatibility of the offices of councilmember and planning commissioner and because of the inherent appearance of fairness problems that would result if one person held both offices, MRSC legal staff would strongly recommend against such dual office holding.

    (Link to this question)

    What is the limit for contract interests between a city and a councilmember?
    Reviewed: 12/13

    RCW 42.23.030 basically prohibits a councilmember in cities over 10,000 population from having a contract interest with the city. However, in cities with a population of less than 10,000, there is an exception for contract interests of less than $18,000 in a calendar year. RCW 42.23.030 was amended in 1999 by Ch. 261, Laws of 1999 to increase this limit from the previous limit of $9,000. This change became effective on July 25, 1999.

    The word "contract" includes employment, sales, purchases, leases, and other financial transactions of a contractual nature. As a general rule councilmembers are more broadly impacted than other city officials because city contracts are made or directly approved under the supervision of the council. In addition to the prohibition against both direct and indirect financial interests, a city officer is also prohibited from receiving financial benefits from anyone else having a contract with the city if the benefits are in any way connected with the contract.

    This exception only applies to cities that are under 10,000 population. Councilmembers in cities over 10,000 population are prohibited from having any contract interest with the city.

    (Link to this question)

    May a councilmember be married to a city employee?
    Reviewed: 12/13

    Absent a separate property agreement, a person may not serve as a city councilmember and be married to a city employee, unless the employee is also an officer of the city or earns less than $18,000 in a calendar year and the city has a population of less than 10,000. See RCW 42.23.030(6). Since employment is considered a contractual matter and because of community property laws, the councilmember would have a prohibited interest in a contract between a spouse who is an employee of the city and the city, unless the noted exception applies.

    (Link to this question)

    May a city councilmember also be a city employee?
    Reviewed: 12/13

    The answer depends on the size and class of the city and on how much this person would earn as a city employee. Since an employment relationship is contractual, this situation is governed by the statutory conflict of interest law dealing with contractual interests by municipal officials. Ch. 42.23 RCW. That law provides that no officer may be beneficially (i.e., financially) interested, directly or indirectly, in any contract made by, through, or under the supervision of the officer. RCW 42.23.030. Because the city council has ultimate authority over contracts (although the mayor appoints employees), this conflict of interest prohibition is implicated in this situation. However, the prohibition is subject to certain specific exceptions, including one that applies to contracts the total volume of which does not exceed $18,000 in a calendar year. RCW 42.23.030(6) . However, this exception is not available to cities or towns over 10,000 or to first class cities.

    Thus, a councilmember, in all but cities of over 10,000 population and first class cities, may be employed by the city as long as he or she is not paid more than $18,000 in a calendar year. However, the councilmember should not be involved in any consideration of the salary for that particular position. In first class cities, the charter may provide for a specific exemption from this prohibition.

    (Link to this question)

    Do the provisions in Chapter 42.23 RCW relating to prohibited contract interests apply to contracts entered into before a councilmember was on the council?
    Reviewed: 12/13

    No. This conclusion is supported by language in AGLO 1970 No. 89 which provides:

    The key phrase in RCW 42.23.030, pertinent to your inquiry, describes as prohibited those contracts which "...may be made by, through or under the supervision of such officer, in whole or in part,..." This statute does not in express terms declare illegal or void any contract which preexisted the appointment or election of the officer to his position of conflict...

    So the prohibition does not appear to apply if the contract was entered into prior to the person assuming the office of councilmember.

    (Link to this question)

    May the fire chief of the town volunteer fire department serve on the town council?
    Reviewed: 12/13

    No. RCW 35.21.772, enacted in 2006, provides that a volunteer member of a fire department “who does not serve as fire chief for the department“ may serve in an elective public office. Prior to this legislation, it had been MRSC’s position that the office of volunteer fire chief and town councilmember are incompatible offices and should not be held by one person at the same time, the position now embodied in that legislation.

    (Link to this question)

    Which council-manager cities directly elect their mayor?
    Reviewed: 12/13

    As far as we are aware, only three of the 53 council-manager cities in the state provide for the direct election of the mayor by the people; Olympia, Vancouver and Tacoma.   It is possible that there are a few others, but direct election of the mayor is the exception rather than the rule.  Seattle and Vancouver are first class cities and Olympia is a code city.

    (Link to this question)

    What is the mayor's tie-breaking authority in a mayor-council code city?
    Reviewed: 12/13

    RCW 35A.12.100 indicates that the mayor shall have a vote only in the case of a tie in the votes of the councilmembers. However, there are important limitations on the tie-breaking authority of the mayor. The mayor may not break a tie in regard to the passage of any ordinance, or in regard to the grant or revocation of a franchise or license, or with regard to any resolution for the payment of money. This is because of the limitation imposed in RCW 35A.12.100 and also because of RCW 35A.12.120, which indicates that those types of actions require the affirmative vote of at least the whole membership of the council.

    (Link to this question)

    May another councilmember in a code city be appointed as an alternate mayor pro tem if both the mayor and mayor pro tem are absent?
    Reviewed: 12/13

    Yes. This is specifically authorized by RCW 35A.12.065. This statute provides that, in the absence of the mayor and mayor pro tem, the council can appoint any qualified person to serve as mayor pro tem in the absence or temporary disability of the mayor.

    (Link to this question)

    When is the mayor of a code city considered absent such that the mayor pro tem may act as the mayor?
    Reviewed: 12/13

    Unfortunately, neither the courts nor the attorney general's office has construed what constitutes, under RCW 35A.12.065, an "absence" by the mayor such that the mayor pro tem may perform the duties of the mayor. MRSC legal staff have, however, addressed this issue in the past on at least two occasions. In one inquiry, it was concluded that a part-time mayor, who works full-time outside of town, should not be considered absent for purposes of RCW 35A.12.065 during the period of time he is pursuing his full-time job and when his presence is not needed for operation of the city. In another inquiry, we noted that it could not have been the intent of the legislature to require a mayor to be seated at his or her desk at all times in order to retain his or her power as mayor.

    Clearly, common sense should rule on an issue such as this. A part-time mayor will most likely be away from city hall far more than at city hall. The bulk of the day-to-day administrative work of a city or town is generally performed by its full and/or part-time paid staff, including the clerk-treasurer. It would be an untenable and absurd result if a mayor pro tem could act as the mayor at any time the mayor is not physically present at city hall.

    In our opinion, the mayor pro tem should have the authority to act as the mayor in the mayor's absence only when the mayor is away and cannot perform duties that cannot await his or her return or that cannot be performed by telephone or other type of communications link. Customarily, city offices are closed on weekends and there are no duties for the mayor to perform. Consequently, the mayor's spending the weekend out of town does not create a situation where the mayor pro tem could act on the mayor's behalf during that weekend. The weekend could extend to a three- or four-day weekend, and the mayor pro tem would still not have the authority to act as the mayor unless there was some duty that needed performing or some action that had to be taken that could not await the mayor's return or that the mayor, if he or she would be reachable, could not perform by telephone or other mode of communication such as e-mail. It would need to be more in the nature of an emergency situation that requires the mayor's presence before the mayor pro tem could perform mayoral duties on a weekend in which the mayor is away.

    (Link to this question)

    Are there any statutory limitations on the power of a mayor pro tem in a mayor-council code city?
    Reviewed: 12/13

    There are no statutory limitations on the powers of a mayor pro tem in a mayor-council code city, but obviously there are some practical concerns. For instance, if the mayor goes off on a two week sailing vacation in the ocean and cannot be contacted, the mayor pro tem clearly has authority to handle routine matters which arise while the mayor is gone. However, the mayor pro tem should not take that absence as an opportunity to fire city staff, reorganize the administrative procedures, paint the police cars orange, and revamp city administration. Clearly the mayor, when he returns, could reverse all of those actions, and the only result will be the unnecessary chaos.

    In view of this fact, a number of cities have provided in their local ordinance some limitation on the authority of the mayor pro tem (see e.g., Lynnwood Ordinance No. 945 and Tukwila Municipal Code, Sec. 2.04.010). Basically, these provisions specify that the deputy mayor does not have the power of appointment or removal over officers or the power to veto ordinances enacted by the council.  (Note that RCW 35.23.191, which concerns the powers of a mayor pro tem in a second class city, provides that the mayor pro tem does not have the power to appoint or remove officers, or to veto ordinances.)

    (Link to this question)

    If the mayor is on an extended vacation or is unavailable for any other reason, can the mayor's facsimile signature be used to sign a city document which has to be recorded with county real estate records?
    Reviewed: 12/13

    No. RCW 39.62.020 restricts the use of facsimile signatures of city officials to certain financial instruments. I advised that the county auditor was correct in refusing to file the document. If the mayor is out of town for an extended period, then the mayor pro tem can sign real estate documents on behalf of the city.

    (Link to this question)

    Does the deputy mayor become mayor if the mayor resigns in a mayor-council code city?
    Reviewed: 12/13

    No. The council selects a new mayor by majority vote if there is a vacancy. The new mayor would serve until the next regular municipal election at which time an individual would be elected to serve for the remainder of the unexpired term. The deputy mayor serves during the absence or temporary disability of the mayor.

    (Link to this question)

    May the mayor pro tem vote on matters coming before the council when he or she is presiding at the meeting?
    Reviewed: 12/13

    Yes. The appointment of a councilmember to serve as mayor pro tem and preside at a council meeting does not in any way restrict his or her right to vote on matters coming before the council while they are presiding. This is true in all classes of mayor-council cities and towns.

    (Link to this question)

    Must a city or county elected official's position be kept open while the official is on active military duty?
    Reviewed: 12/13

    Yes, the elected official must be granted a leave of absence. RCW 73.16.041 provides:

    When any elective officer of this state or any political subdivision thereof, including any judicial officer, shall enter upon active service or training as provided in RCW 73.16.031,73.16.033 and 73.16.035, the proper officer, board or other agency, which would ordinarily be authorized to grant leave of absence or fill a vacancy created by the death or resignation of the elective official so ordered to such service, shall grant an extended leave of absence to cover the period of such active service or training and may appoint a temporary successor to the position so vacated. No leave of absence provided for herein shall operate to extend the term for which the occupant of any elective position shall have been elected.

    So, a city or county is required to keep the position open by granting an extended leave of absence, but the position may be filled with a "temporary successor." The leave of absence would not extend beyond the elected official's term.

    (Link to this question)

    Does a town council have the authority to confirm the appointment by the mayor of a municipal court judge?
    Reviewed: 12/13

    No, based upon the language in state law, it does not appear that a town council has the authority to require confirmation for a municipal court judge. RCW 3.50.040, which relates to the municipal court judge provides that:

    The legislative authority of a city or town that has the general power of confirmation over mayoral appointments shall have the power to confirm the appointment of a municipal judge.

    However, a town council does not have the general power to confirm mayoral appointments. In fact, RCW 35.27.070 provides that all appointive officers shall hold office at the pleasure of the mayor and shall not be subject to confirmation by the town council.

    (Link to this question)

    When may a newly elected councilmember be sworn into office?
    Reviewed: 12/13

    The answer to this question can be found in RCW 29A.60.280(3) which provides that:

      The oath of office shall be taken as the last step of qualification . . . but may be taken either: (a) Up to ten days prior to the schedule date of assuming office; or (b) At the last regular meeting of the governing body of the applicable county, city, town, or special district held before the winner is to assume office.

      Since the scheduled day of assuming office is January 1, a councilmember may be sworn in up to ten days before January 1 or at the last council meeting in December. Of course, councilmembers may be sworn into office at the first regular council meeting after the first of January also.

      A councilmember may not act as a councilmember unless he or she has taken the oath of office, described as the last step of qualification in RCW 29A.60.280(3).  A councilmember who takes the oath of office prior to January 1 may then assume his or her full duties immediately on January 1 without any further action being required.

      (Link to this question)

      Who may administer the oath of office?
      Reviewed: 12/13

      RCW 29A.04.133 provides that an oath or affirmation "shall be administered and certified by any officer or notary public who administers oaths, without charge therefore." A notary public is clearly authorized to administer oaths as are judicial officers and city clerks (except in a second class city).

      Persons specifically authorized by statute to administer oaths include:

      Notary public - RCW 5.28.010; RCW 42.44.010(2)
      Court commissioner - RCW 2.24.040(10)
      Court of justice judicial officer - RCW 2.28.010(7)
      Every judicial officer (as defined in RCW 2.28.030 - RCW 2.28.060(4)
      Every court, judge, clerk of the court, justice of the peace - RCW 5.28.010
      District Court Clerks - RCW 3.54.020(4)
      Municipal Court Clerk or Deputy Clerk in Cities over 400,000 - RCW 35.20.210
      County auditor or deputy auditor - RCW 36.22.030
      County commissioner or council member - RCW 36.32.120(9)
      Mayor of a code city - RCW 35A.21.030
      Mayor and Mayor Pro Tempore of a second class city - RCW 35.23.191
      Mayor of a town - RCW 35.27.160
      Clerk of a code city - RCW 35A.21.030
      Clerk of a city operating under commission form of government - RCW 35.17.105
      Clerk of a town and deputy clerk - RCW 35.27.220

      RCW 35A.21.030 provides that every officer of a code city has all duties of his or her office which are imposed by state law on officers of every other class of city who occupy a like position and perform like functions. Therefore, code city officers could undertake similar tasks performed by like officers in other classifications of cities, including administering oaths.

      Chapter 5.28 RCW governs oaths and affirmations generally, including how administered and variations on the form of the oath or affirmation.

      Additionally, nothing under state law requires that the swearing in of an official be done in an open, regular council meeting.

      (Link to this question)

      What are the requirements for the language of the oath of office?
      Reviewed: 12/13

      RCW 29A.04.133 provides that the winner of an election is only "qualified" to assume off ice after (1) the results have been certified; ( (2) any required bond has been posted; and (3) the winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute.  If no particular oath is specified, then the person must state that:

      . . . he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability.

      This oath or affirmation can be administered and certified by any officer or notary public authorized to administer oaths.Many cities and counties use wording similar to the following:

      I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Washington, and all valid local ordinances, and that I will faithfully and impartially perform and discharge the duties of the office of _______ according to law, to the best of my ability. [So help me God. (Optional)]

      Signature of Elected/Appointed Official ________________________Subscribed and sworn to before me this __ day of __, 20___.
      Signature of Person Administering Oath ________________________

      (Link to this question)

      Is a convicted felon eligible to be appointed to fill a vacancy in elective office?
      Reviewed: 12/13

      RCW 42.04.020 states that a person cannot qualify for or hold any elective public office unless he or she is a citizen and an elector. A convicted felon loses his or her eligibility to vote, unless their civil rights have been restored, and so does not meet the qualifications to hold (or be appointed to) elective office.

      Art. 6, Sec. 3 of the Washington Constitution states:

      • All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise.

      Our courts have concluded that conviction of a felony is "conviction of an infamous crime," thus rendering the person convicted ineligible to vote in this state. See In re Walgren, 104 Wn.2d 557, 569 (1985). Thus, a person convicted of a felony is ineligible to be a registered voter and, consequently, ineligible to hold municipal elective office unless their civil rights have been restored. As Art. 6, Sec. 3 of the constitution implies, a disqualified person may have his or her eligibility to vote (and thus ability to assume elective office) restored by act of the governor.

      (Link to this question)

      How long must a person be a resident of a code city to be eligible to be appointed to fill a city council vacancy?
      Reviewed: 12/13

      One year. The relevant statute, RCW 35A.12.030, provides in part: 

      No person shall be eligible to hold elective office under the mayor-council plan unless the person is a registered voter of the city at the time of filing his declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his election.

      Although this statute (which also applies to council-manager code cities) specifically addresses election to office, MRSC legal staff has consistently taken the position that this statute also applies to appointment to elective office. It would not make sense for the legislature to require a one-year residency for election but not for appointment to a vacant elective office.

      (Link to this question)

      Are the actions of a council or board valid if one of its members is later found to have been improperly holding office?
      Reviewed: 12/13

      Yes. 

      The actions of such a councilmember or commissioner would be valid under the "de facto officer doctrine." A de facto officer is an officer who has the appearance or reputation of being the officer he or she assumes to be but who, in fact, has no right or title to the office. The person does hold office under some color of right or title, but for some reason is actually ineligible or improperly holding the office. The acts of a de facto officer, although that officer and title may be improper, are valid so far as they concern the public or third persons who have an interest in the thing done. So the actions and votes taken by the city council or board of county commissioners while this individual was holding office, even if he or she was holding office improperly, are valid and cannot be challenged or invalidated later.

      (Link to this question)

      May a councilmember run for the office of mayor in the middle of the councilmanic term?
      Reviewed: 12/13

      Yes. The councilmember does not have to resign from his or her position to run. If elected mayor, then the person would have to resign from the council upon assuming the office of mayor. If the person loses, he or she serves out his or her councilmanic term of office.

      (Link to this question)

      Is a person who has been convicted of a felony permanently barred from holding elective office?
      Reviewed: 12/13

      No. A person holding elective office who is convicted of a felony must forfeit the office.  See RCW 42.12.010(5).

      The State Constitution  prevents individuals from holding public office in the event they are convicted of any felony.  Article VI, Section 3 of the state consitution states:

      "All...persons convicted of infamous crime, unless restored to their civil rights, are excluded from the elective franchise."

      However, Ch. 9.96 RCW, Restoration of Civil Rights, does contain a process for a person to have his or her civil rights restored, which would include the right to vote and hold elecive office.

      (Link to this question)

      What is the minimum age for holding office of councilmember?
      Reviewed: 12/13

      The minimum age for holding the elective office of councilmember is eighteen.

      RCW 42.04.020 states that no person shall be competent to qualify for or hold any elective public office in a municipality: " . . . unless he be a citizen of the United States and state of Washington and an elector of such . . . municipality or other district or political subdivision."

      Our state constitution, Article VI, Section 1 defines the qualifications of an elector to be "All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote. . . ."

      (Link to this question)

      Does a county commission seat become vacant when a commissioner moves from district (but remains in county)?
      Reviewed: 12/13

      No, so long as the commissioner remains a resident of the county, he or she retains the county commissioner seat. An Attorney General Opinion, an opinion dated July 10, 1940, addressed to the Spokane County Prosecutor (referenced in AGO 1969 No. 10), concluded:

      [A] county commissioner does not vacate his office by moving his place of residence from the commissioner district in which he resided at the time of his election to another commissioner district in the same county. The conclusion was reached on the following analysis:

       

      1. The general powers and duties of the county commissioners indicates that a county commissioner is a county and not a district officer, as his jurisdiction is in the entire county.
      2. The office becomes vacant if the office holder ceases to be an inhabitant of the district or county for which he shall have been elected or appointed, or within which the duties of his office are to be discharged

         

      The only question then arising is whether the county commissioner is a county officer or whether he is simply an officer of his district. The attorney general concludes:

      It is our opinion, after a careful reading of the provisions above quoted, that he must be held to be a county officer and that his office is not vacant so long as he continues to reside within the county and is performing the duties of his office. In other words, it is our opinion that a county commissioner does not vacate his office by removing from the district in which he was appointed as long as he continues to reside in his county.

      A much earlier opinion dated March 1, 1911, to the prosecuting attorney of Snohomish county, reached the same result for the same reasons.

      (Link to this question)

      Are there any residency requirements for county commissioners?
      Reviewed: 12/13

      The only residency requirements are that a commissioner must live in the district from which he or she is elected (RCW 36.32.040) and must be an elector (RCW 36.32.010). To be an elector, one must satisfy the requirements of article 6, section 1 of the state constitution (be at least 18 years of age, a United States citizen, and a resident of the county, city, precinct, etc. for at least 30 days prior to the election). An additional residency requirement is found under general election laws, which require a candidate for elective office to be a registered voter at the time of filing for candidacy. RCW 29A.24.075. To register to vote, one must be a resident for 30 days prior to the election. In effect, then, a county commissioner candidate must be a resident of his or her district at the time of filing for candidacy.

      (Link to this question)

      Who is eligible to be appointed to fill an elective office in the county?
      Reviewed: 12/13

      To be eligible for appointment to fill a vacancy in a county elective office, the person must be eligible to run for elective office in the county. In order to run for elective office, the person must be a registered voter of the county. To be eligible to be a registered voter, the person must be eighteen years of age or older, a U.S. citizen, and have resided within the county for thirty days.

      (Link to this question)

      Is there a definition of "resident" for election purposes in state law?
      Reviewed: 12/13

      RCW 29A.04.151, which defines "residence" for purposes of the election laws, provides that residence for purposes of registering and voting means a person's permanent address where he or she physically resides and maintains his or her abode. This definition also applies to eligibility to run for office. So a person who maintains his or her permanent residence outside a city or county is not eligible to run for elective office in the city or county respectively.

      Sometimes the facts make it difficult to determine if a person actually lives in one place or another. For example, a person may temporarily live in a house outside the city limits while they attend school, work on a job, or while their house is being remodeled. In these circumstances, the person is deemed to actually live where their permanent residence is as long as it is their intent to return to that residence to live once the temporary situation has ended.

      (Link to this question)

      How long must a councilmember wait after resigning from the city council before taking a job in the same mayor-council, noncharter code city?
      Reviewed: 12/13

      There may be policy considerations as to whether or not this is a good practice, but there is no state statute or regulation indicating that a time period must elapse between the time of resignation as a councilmember and assumption of a job or position with the city. From a legal standpoint a councilmember may resign from the council and immediately be appointed to a city office with the city.

      There is, however, a restriction for councilmembers in council-manager cities. Statutory provisions indicate that a councilmember may not be eligible for appointment as city manager of such a city until one year has elapsed following the expiration of the term for which he was elected.  RCW 35A.13.050.

      (Link to this question)

      May a councilmember who recently resigned from his office change his mind and remain on the council?
      Reviewed: 12/13

      This depends on the facts surrounding the resignation. If the councilmember has indicated in a letter that he intends to resign at a future date, and before that future date arrives he changes his mind, then he can withdraw the resignation letter and remain on the council.

      If the resignation letter is intended to be effective immediately or lists a date that has already passed, then the resignation has already occurred and a vacancy has been created. The councilmember cannot change his mind and remain on the council once an official vacancy has been created. See RCW 42.12.010(2).   No official action on the part of the remaining councilmembers is required to make the resignation effective.  See State ex rel. Munroe v. City of Poulsbo, 109 Wn. App. 672 (2002). 

      (Link to this question)

      Request for information on the salary commission legislation and appointing authority for selecting the members of the commission?
      Reviewed: 12/13

      Ch. 73, laws of 2001 (HB 1084) authorizes cities and counties to establish salary commissions to set the salaries of elected city officials and county commissioners and councilmembers.

      Cities and Towns

      RCW 35.21.015  provides that salary commissions for elected officials of cities and towns may be established, by ordinance, with the members to be appointed by the mayor. The commission members may serve only two terms and may not include any city official or employee or any member of their immediate families. The legislation does not dictate the number of commissioners.

      Salary changes set by a salary commission are filed with the city clerk; increases can go into effect immediately, without regard to the terms of the elected officials, while decreases may not go into effect until the subsequent terms of office. No action of the city council is required for a change in salaries. Salary commission actions to increase or decrease salaries are subject to referendum in cities, and the filing of an adequate petition places the issue before the voters.

      Counties

      RCW 36.17.024 provides that salaries for county commissioners and councilmembers to be set by a ten-member county commissioner and councilmember salary commission established by ordinance or resolution of the county legislative authority.

      The commission is appointed by a majority vote of the county legislative authority or by the county executive with the approval of the county legislative authority. The members of the commission may not include any county officer, official, or employee or any of their immediate family members.

      Any change in salaries is filed by the commission with the county auditor and becomes effective without further action of the county legislative authority or salary commission. As with city salary changes, increases apply to the current terms of office, while decreases apply to subsequent terms. Salary changes are also subject to referendum.

      (Link to this question)

      If a fire district commissioner participates in a commission meeting by telephone, is he/she entitled to daily compensation per RCW 52.14.010?
      Reviewed: 12/13

      It's our opinion that, if the board of fire district commissioners adopts a policy authorizing telephonic participation at board meetings, then any commissioner participating in a board meeting by telephone is entitled to the $90 compensation for that day, as authorized by RCW 52.14.010, as amended by HB 1368 (Ch. 469, Laws of 2007)(p. 1033). The relevant part of that statute provides as follows:

      Each member [of a board of fire district commissioners] shall each receive ninety dollars per day or portion thereof, not to exceed eight thousand six hundred forty dollars per year, for time spent in actual attendance at official meetings of the board or in performance of other services or duties on behalf of the district.

      The policy authorizing telephonic participation at board meetings would have to mean that telephonic participation is equivalent to physical attendance at the meeting - i.e., the board member participating telephonically has all the rights of one participating in person. We believe that would be considered "actual" attendance at a board meeting. A commissioner attending telephonically would not, of course, be entitled per the second paragraph of RCW 52.14.010 to any expense reimbursement for such participation.

      The telephonic participation should be by speakerphone, such that the member participating telephonically can be heard by all those present at the meeting, including members of the public in attendance, and so that the member participating telephonically can hear all that is said by those present at the meeting.
       

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      May the mayor break a tie on a council vote to fill a council vacancy under the uniform vacancy-filling procedures set out in RCW 42.12.070?
      Reviewed: 12/13

      The uniform procedures in RCW 42.12.070 for filling vacancies on the "governing body" of a city or town (other than a first class or charter code city) merely state that "the remaining members of the governing body shall appoint a qualified person to fill the vacant position." (There are additional procedures that apply if the governing body fails to fill the vacancy within 90 days.) The position of MRSC legal staff is that, since this statute does not deal with the issue of the mayor's tie-breaking authority, it does not modify that authority. Since the statutes governing the mayor's tie-breaking authority in second class cities, code cities, and towns do not prohibit the mayor from breaking a tie on a council vote to fill a council vacancy, the mayor may do so.

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      Must a city advertise to fill a city council vacancy?
      Reviewed: 12/13

      No. The vacancy must be filled by a majority vote of the council, but state law does not require that notice or advertising procedures be followed. The method for filling vacancies is a policy decision for the council.

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      If there are two city council vacancies, must the council fill one first and then, with the newly-appointed member, fill the second vacancy?
      Reviewed: 12/13

      Yes, this is the procedure outlined in the vacancy statute, RCW 42.12.070(2):

        Where two or more positions are vacant and two or more members of the governing body remain in office, the remaining members of the governing body shall appoint a qualified person to fill one of the vacant positions, the remaining members of the governing body and the newly appointed person shall appoint another qualified person to fill another vacant position, and so on until each of the vacant positions is filled with each of the new appointees participating in each appointment that is made after his or her appointment.

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      Is a person appointed to a vacancy in an elected office considered to be an elected official?
      Reviewed: 12/13

      Yes, a person appointed to fill a vacancy in an elected office is considered an elected official. For example, RCW 42.17A.005(16)  defines "elected official" as "any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office."

      (Link to this question)

      Are elected local government officials considered employees of their local government? Is it acceptable to pay their compensation through accounts payable and issue a 1099 instead of paying them through payroll?
      Reviewed: 09/13

      For certain purposes, local government elected officials are considered local government employees, and the federal income tax is one of those purposes. As such, the local government should process them through payroll, withhold for income tax, social security, Medicare, etc.

      See the IRS Web page on Classification of Elected and Appointed Officials; the first paragraph reads as follows:

      Government Officials as Employees

      Generally, any individual who serves as a public official is an employee of the government for whom he or she serves. Therefore, the government entity is responsible for withholding and paying Federal income tax, social security and Medicare taxes, and issuing Form W-2, Wage and Tax Statement, to a public official.

      And then farther down, there is this paragraph (Note that they spelled "council" incorrectly):

      Examples of public officers are: the President and the Vice President; a governor or mayor; the secretary of state; a member of a legislative body, such as a state legislature, county commission, city counsel, school board, utility or hospital district; a judge, a justice of the peace, a county or city attorney, a marshal, a sheriff, a constable and a registrar of deeds; tax collectors and assessors; and members of advisory boards and committees. \

      (Emphasis added)

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      If the city council advertised to fill a vacant position on the council and there were only two applicants, must the council choose one of the two applicants?
      Reviewed: 09/13

      No. The council would not be required to choose one of these two candidates. State law does not establish a specific procedure that cities and towns must follow when filling a vacancy on the council except to indicate that the remaining councilmembers must vote to fill it.

      If the council is not satisfied for any reason with the applicants, they could re-advertise and extend the application period. The council can also directly contact persons they know and encourage them to apply.

      (Link to this question)

      Can a county contract with a city for the city to provide planning services to the county?
      Reviewed: 06/13

      There is nothing in state law that precludes a county contracting with a city for planning services. Washington's Interlocal Cooperation Act (Ch. 39.34 RCW) authorizes public agencies to contract with other public agencies via interlocal agreements that enable cooperation among the agencies to perform governmental activities and deliver public services.

      In addition, RCW 35A.63.030 provides:

      Pursuant to the authorization of the legislative body, a code city planning agency may hold joint meetings with one or more city or county planning agencies (including city or county planning agencies in adjoining states) in any combination and may contract with another municipality for planning services. A code city may enter into cooperative arrangements with one or more municipalities and with any regional planning council organized under this chapter for jointly engaging a planning director and such other employees as may be required to operate a joint planning staff.

      (Emphasis added.)

      A "municipality" is defined in RCW 35A.63.010(6) to include cities, towns, counties, and special districts.

      It is more typical that cities contract with counties or another city for planning services; however, this is not the only model for the provision of planning services in Washington State.

      Another option for joint city-county planning is to set up a joint agency as the city and county of Walla Walla have done. See Walla Walla Joint Community Development Agency and Intergovernmental Agreement establishing WWJCDA, 2010.
      The following are a few examples of interlocal agreements regarding planning services: 

      (Link to this question)

      May a person appointed to fill a vacant city council position immediately receive a salary increase that the council approved following the last election?
      Reviewed: 01/11

      An issue has arisen concerning the compensation that should be paid to a councilmember who was appointed to fill an unexpired term. The council had enacted an increase in compensation for councilmembers in December, an increase that could not be received by the councilmember who had previously held the position due to the constitutional prohibition on elected officials who set their own compensation receiving salary increases approved during their term of office.

      The newly-appointed councilmember may also not receive the increase in salary during this term of office. The state supreme court considered this exact issue in State ex rel Wyrick v. City of Ritzville, 16 Wn.2d 36 (1942), where the court concluded that the constitutional prohibition applies to the term of office rather than to the individual who is holding the office. This decision is still the law on this issue.

      (Link to this question)

      May a county or city use a digital signature to transmit official records?
      Reviewed: 07/10

      Yes, however the statutory procedures in chapter 19.34 RCW must be followed.

      RCW 19.34.010<4)provides that electronic signatures may be used for "official public business to provide reasonable assurance of the integrity, authenticity, and nonrepudiation of an electronic communication." RCW 19.34.231 authorizes a city or county to become a licensed certification authority for purposes of providing services to local government. It is not necessary, however, for a city or county to be a licensed certification authority to use digital signatures.

      Note that RCW 19.34.240 provides that a "private key" (used to create a digital signature) in the possession of a local government agency is exempt from public inspection and copying.

      (Link to this question)

      Is there a requirement that all interlocal agreements must be posted on the city web site?
      Reviewed: 07/10

      No. There is a requirement related to this in RCW 39.34.040, as amended in 2006, which provides that, prior to its becoming effective, an interlocal agreement must “be filed with the county auditor or, alternatively, listed by subject on a public agency's web site or other electronically retrievable public source.” So, posting of the agreement on the agency’s website is an alternative that is now available. The requirement before was that all interlocal agreements had to be filed with the county auditor. Posting on a web site is an easier way to comply and not a new burden.

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