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Below are selected examples of questions MRSC has received related to local governance issues. Click on any question to see its answer.


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How does the council fill a vacancy in a council position if there is a tie vote?
Reviewed: 01/20

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

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

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

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

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

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

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

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

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

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

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

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Can a resolution be passed in executive session?
Reviewed: 12/19

The short answer is no. RCW 42.30.060 states, in relevant part:

No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

The Open Public Meetings Act allows for executive sessions only in certain circumstances as set forth at RCW 42.30.110. You’ll see that the governing body may do such things as “consider”, “discuss”, and “evaluate.” Final action, such as adopting a resolution, must be done in an open public meeting.

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May the mayor's salary be increased immediately, not waiting for next election?
Reviewed: 12/19

For many offices, Article 11, Section 8 of the Washington Constitution prohibits elected officials from raising their own salary after their election and during their term of office. This prohibition on salary increases, however, applies only to officials who set their own salary, such as city councilmembers. See Const. art XXX, § 1. See also AGO Opinion, 1999, No. 1. Consequently, a salary increase for an elected official who does not set his or her own compensation, such as the mayor, may occur at any time.

If there was a tie vote in the council, normally the mayor could break the tie. However, if it is a tie vote as to raising the mayor’s salary, while in that instance the mayor could break the tie, he or she would not be able to take the new, higher salary until the next term of office. But, generally, if the council increases the mayor’s salary, the new salary can go into effect immediately.

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May a councilmember decline his or her salary?
Reviewed: 10/19

Yes. Councilmembers may waive or refuse a salary from the city. Such a waiver would be voluntary and should be made in accordance with an existing city policy and in writing. A waiver can be done but, as described below, the enforceability of such a waiver could be an issue. Article XI, Section 8 of the Washington Constitution prohibits a city or town council from increasing or diminishing the salary of a councilmember after her/his election or during her/his term of office. Article XI, Section 8 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.

Section 1 of Article XXX referenced in Article 11, Section 8 provides that elected county, town, city, or municipal officers who do not fix their own compensation can have their salaries increased during their terms of office.

Consistent with these provisions, a councilmember can voluntarily choose to waive, refuse, or donate a portion (or all) of the salary that has been established for the position. For example, a councilmember could agree, in writing, to waive the official salary, or a portion of it, so that she/he would actually be paid a lesser amount than the official salary. This fact pattern would not violate Article XI, Section 8 because the official salary would not be decreased or diminished after the election or during the term of office. A related issue is whether waiving or refusing a salary would have federal payroll tax implications. A councilmember can likely decide whether to receive or forego his/her compensation. We think that if a councilmember receives her/his salary, in whole or in part, and then donates the funds back to the city then there would be payroll tax implications for the salary received. However, if the councilmember voluntarily chooses not to receive all or a portion of the salary, there would not be payroll tax implications for the salary not received by the councilmember.

We have previously provided guidance that it would be beneficial for a city or town council to enact an ordinance to make clear to current and future councilmembers that there is a local policy that allows them to waive all or a portion of their salary. Such an ordinance would also set forth the way a councilmember may do so. It’s unclear, however, how much protection this would provide if a councilmember who initially agreed to waive her/his compensation later changed her/his mind and demanded back payment for what was waived. If there is a written agreement between the municipality and a councilmember providing that the councilmember is voluntarily and irrevocably waiving all or a specified portion of her/his compensation, it reduces the risk that councilmembers will later change their minds.

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Must town resolutions be published in a newspaper to go into effect?
Reviewed: 09/19

The short answer is generally no—a resolution does not need to be published to become official and it becomes effective immediately. We have a helpful publication Local Ordinances for Washington Cities and Counties which explains the difference between resolutions and ordinances. See the introduction at pp. 1-2.

The general publication requirements for ordinances are summarized on p. 26. While all ordinances must be published in a town, the same is not true for resolutions (again, unless a specific statute includes publication requirements).

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What is the difference between setting fee schedules by resolution versus ordinance?
Reviewed: 09/19

We have a publication entitled Local Ordinances for Washington Cities and Counties that addresses the difference between ordinances and resolutions at pages 1-2. Here is an excerpt (there is additional discussion in the publication):

  • When should an ordinance be used instead of a resolution? Obviously, if a state statute requires one form be used instead of the other, that requirement must be followed. If no particular form is specified, either a resolution or ordinance may be used. Ministerial and administrative acts may be exercised by resolution. Legislative acts, however, it has been suggested, should be made by ordinance.
  • What is “legislative”? The general guiding principle is that “[a]ctions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.” [emphasis added, footnotes omitted]

Cities and counties commonly use resolutions for fee schedules. It is easier to adopt an updated fee schedule by resolution than by ordinance. If fees are set forth by ordinance in a city or county code, then the code must be amended each time the city or county wants to change the fees. Setting fees is generally to be considered ministerial or administrative instead of legislative. A city or county could set fees by ordinance, but doing so by resolution is generally considered to be more convenient. Fees would only need to be set by ordinance if there is a specific statute that specifies an ordinance.

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Could a person who is appointed to fill a council ward vacancy live outside of the vacated ward where there is an understanding that the person could not run for the position in the next election, or must the appointed person be a resident of the ward?
 

Reviewed: 09/19

When filling a city council vacancy in a non-charter code city, the person appointed must be qualified for the office. Thus, for council positions assigned to wards or districts, the candidates for appointment to a vacancy need to reside in the ward or district in order to be appointed and assume office.

RCW 42.12.070 provides the process to fill a vacancy on an elected nonpartisan governing board of a city. RCW 42.12.070(1) provides:

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

For noncharter code cities, RCW 35A.12.050 provides the authority to fill councilmember vacancies pursuant to chapter 42.12 RCW, and provides, in relevant part, that “the office of a mayor or councilmember shall become vacant if the person who is elected or appointed to that position fails to qualify as provided by law, . . . ” So, both appointed and elected councilmembers (and mayors) must qualify to hold the office. RCW 35A.12.180 provides for the optional division of a city into wards and requires residency of the ward as a qualification for office. This statute provides, in relevant part:

Wards shall be used as follows: (1) Only a resident of the ward may be a candidate for, or hold office as, a councilmember of the ward; and (2) only voters of the ward may vote at a primary to nominate candidates for a councilmember of the ward. (Emphasis added).

Thus, both appointed and elected councilmembers must be a resident of the ward they serve. There is also a requirement to be a registered voter and to be a resident of the city for at least 12 months before appointment or election pursuant to RCW 35A.12.030. State law does not provide for a minimum residency requirement within the ward itself, so we think potential candidates could move from one part of a city into a particular ward shortly before appointment to a vacancy (or filing to run for election).

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Must we also post minutes if there is audio posted of a meeting?
Reviewed: 07/19

State law requires that minutes be maintained and made available for public inspection. RCW 42.30.035 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.

State law does not require audio or video recordings of meetings. For some issues, such as quasi-judicial hearings, it is necessary to provide a court with a verbatim transcript of the hearing and audio recordings are helpful in this regard.

So, in the interest of complying with the requirement to make the minutes available, we recommend that local government agencies post the minutes along with the audio recordings of their meetings. While we think that you could comply with RCW 42.30.035 without posting the minutes to your website, it would be an easy and efficient way to make them available for public inspection.

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Our mayor will be resigning mid-term next year. We are a mayor-council code city. What is the legal process for replacing him?
Reviewed: 06/19

Once the mayor resigns, the city council can fill the vacancy by majority vote of the council. If it is known in advance that the mayor will be resigning, the council could develop a process to use to fill the position in advance of the resignation, but the council may not actually vote on a replacement until the position has become vacant due to the resignation.

There is no particular process to follow. The council could merely appoint someone once the mayor resigns. Or it could develop a process to fill the vacancy, such as by advertising the vacancy, accepting applications or letters of interest, interviewing candidates, etc. If the council chooses to interview candidates, it must do so in an open meeting, although it could discuss the qualifications of the candidates in an executive session. State law does not dictate a process except that the position will be filled by majority vote of the council.

There are no specific qualifications to be appointed mayor other than the person appointed must be a U.S. citizen, a registered voter and a resident of the city for one or more years prior to the appointment. Oftentimes the person appointed will be someone from the city council. That is not required, however; the person appointed could be anyone who meets the minimum qualifications, as discussed above.

The council has 90 days to fill the vacancy. If it fails to do so within 90 days, the county commissioners take over the task. Until an appointment is made, the mayor pro tem will chair meetings and otherwise fill in for the then-departed mayor. If there is no mayor pro tem, the council would appoint someone to be the mayor pro tem.

In the event that the council appoints someone from the council, that will create a vacancy on the council, and that vacancy would be filled by majority vote of the council.

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What are the state law and other essential requirements to follow for the role of mayor in a council-manager form of government?
Reviewed: 06/19

In a code city with a council-manager form of government, the city manager is responsible for all day to day operations of the city including, under RCW 35A.13.080(2), “[t]o appoint and remove at any time all department heads, officers, and employees of the code city, except members of the council, and subject to the provisions of any applicable law, rule, or regulation relating to civil service.” RCW 35A.13.120 essentially prohibits city council interference with the administration of the city except for the purpose of inquiry through the manager. Even when one councilmember has been selected as chair or mayor, this person remains a councilmember and part of the legislative branch of the city government.

The role of a mayor in a city with a council-manager form of government is essentially ceremonial. RCW 35A.13.030 sets forth the duties of a mayor in your city:

Biennially at the first meeting of the new council the members thereof shall choose a chair from among their number unless the chair is elected pursuant to RCW 35A.13.033. The chair of the council shall have the title of mayor and shall preside at meetings of the council. In addition to the powers conferred upon him or her as mayor, he or she shall continue to have all the rights, privileges, and immunities of a member of the council. The mayor shall be recognized as the head of the city for ceremonial purposes and by the governor for purposes of military law. He or she shall have no regular administrative duties, but in time of public danger or emergency, if so authorized by ordinance, shall take command of the police, maintain law, and enforce order. (Emphasis added).

The powers and duties of the city manager are set forth in RCW 35A.13.080 and are executive/administrative in nature. His or her role is fundamentally different than the role of a councilmember (including the chair of the council designated as mayor), which is legislative.

Here is a link to an MRSC blog post you may find useful: Balance of Power Struggles in City Government. In addition, here is a link to MRSC’s & AWC’s Publication Mayor and Councilmember Handbook (See particularly Chapter 9, “Resolving and Preventing Mayor-Council conflict,” beginning at page 31.

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Is there a state statute or any overarching "rule" on quorums? Our 6 advisory bodies have some inconsistencies in their Rules of Procedure regarding quorums and we want to be sure they are all in compliance.
Reviewed: 06/19

Under the OPMA, RCW 42.30.020(3) whenever a body takes “final action” it must do so “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.”

MRSC has consistently interpreted “quorum” for OPMA purposes to mean a majority of the full membership of the council, not taking into account any vacancies that might exist. For example, a council of seven with two vacancies, the number needed for a quorum does not change – in this example quorum is four members despite the fact that only 5 seats are currently filled. We do not have any Washington appellate court decision directly on this issue, so we rely upon the general rule, as expressed in the McQuillin Law of Municipal Corporations treatise.

The general rule is that a quorum is a majority of all the members of a governing body and that, if a statute or charter prescribes the number that shall constitute a quorum, it cannot be changed by the body. The statute for code cities specifically prescribes the number that constitutes a quorum: “[a]t all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business.” RCW 35A.12.120.

If your advisory bodies are created pursuant to an RCW, you should look there for any special quorum rules. If there is no RCW or the RCW is silent, it is up to the government entity or the individual boards to establish and define any quorum requirement that differs from the general rule.

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Is a motion required for a board of county commissioners to approve the minutes or is “approved as presented” enough?
Reviewed: 05/19

One of the only references to minutes in state law is in the Open Public Meetings Act (OPMA) RCW 42.30.035:

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.

Some agencies include the approval of minutes on the consent agenda. In that regard, state law says relatively little. RCW 42.30.035 and RCW 85.06.250 clearly require that minutes be taken, but there is no specific requirement under state law about how they must be approved.

RCW 36.32.110 “Clerk of the board” provides:

The county auditor shall be the clerk of the board of county commissioners unless the board of county commissioners designates one of its employees to serve as clerk who shall attend its meetings and keep a record of its proceedings.

RCW 36.32.140 “Record of proceedings” provides:

The board of county commissioners shall cause to be recorded, in a book kept for that purpose, all their proceedings and determinations touching all matters properly cognizable before it; and all books, accounts, vouchers, and papers, touching the business or property of the county shall be carefully kept by the clerk, and be open to public inspection.

State law does not dictate how a county keeps the record of its proceedings. So, your board has discretion to adopt a procedure that works for your county. There is no preferred method, so what method is used is a question of either policy or procedure for your board to decide. If there are local BOCC procedures or meeting rules that have been adopted with procedures or practices related to minutes then they should, of course, be followed. Some boards follow Roberts Rules of Order, others do not. If the practice is to announce “minutes approved as presented” and the other commissioners are in agreement, then we think this is fine.

Here is a link to MRSC’s web page on Council/Board of Commissioners Rules of Procedure where you will find examples of other local rules.

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If the mayor is absent from the town council meeting and a councilmember serves as mayor pro tem to run the meeting, may that councilmember also be counted in the quorum of councilmembers?
Reviewed: 04/19

Yes, the mayor pro tem for your town continues to serve as a councilmember while filling in when the mayor is absent from a council meeting. So, your town council will have a quorum at the council meeting so long as at least three of the five councilmembers are present.

RCW 35.27.160 provides, in relevant part: “A mayor pro tempore may be chosen by the council for a specified period of time, not to exceed six months, to act as the mayor in the absence of the mayor.”

RCW 35.27.280 provides that “a majority of the councilmembers shall constitute a quorum for the transaction of business”. T his statute also references the authority for the council to appoint a “president pro tempore” (mayor pro tem) to run a council meeting in the absence of the mayor. A councilmember does not cease being a councilmember by virtue of undertaking the additional duties of pro tem to conduct a meeting in the absence of the mayor.

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Must a code city advertise vacant space for lease in a city building?
Reviewed: 04/19

There is not a state law requirement to advertise the city’s vacant space in the library building for lease. The city could advertise or use an RFP but is not required to do so. So long as the space is not needed for a public purpose, either related to the library or the city, then it should be permissible to use a rental agreement or short term lease to a local church (or other organization) if you are charging a fair market value for the space. If you have a local policy to advertise when the space is vacant then, of course, follow the local policy.

Pursuant to RCW 35A.11.010, a code city’s authority includes the authority to lease or convey real and personal property. Although a city does not want to be in the business of leasing property, when in the short term there is vacant space that is not needed by the city, then the city may lease it to others. Presumably the term of the lease would not be so long as to deny the city the future use of the space when additional space is needed. You could consider adding a term to the lease to accommodate future public need for the space.

Here is a link to MRSC”s webpage Public Facility Rental and Use. Here is a link to MRSC’s webpage Sale of Surplus City or Town Property.

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Must a code city have its own police department?
Reviewed: 04/19

RCW 35A.12.020 provides in part:

  • The appointive officers shall be those provided for by charter or ordinance and shall include a city clerk and a chief law enforcement officer.

So, someone must fulfill that requirement, although the statute does not indicate whether the position must be full time, how many hours must be spent in that endeavor or that it could not be assigned to someone such as an officer in the county sheriff’s department.

As to the role of the sheriff, see the following attorney general opinion, AGO 1990 No. 4; here is a summary of that opinion:

  1. The county sheriff's duty to enforce state law applies equally in incorporated and unincorporated areas of the county.
  2. If a city is unable to provide for adequate police protection, the county sheriff must take this factor into account in allocating the resources of the sheriff's office. However, the statutes do not obligate the sheriff to provide a city with a specific number of police officers or a specific level of police services.
  3. If a city wants to obtain a specific number of county police officers or level of police services, the Interlocal Cooperation Act empowers the city to contract with the county to provide those services.

While the city could contract with the county to assure a certain level of service, if it did not, the sheriff would still be responsible for providing service within the city. However, without a contract, there is no particular assurance of the level of service that would be provided.

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Do we have to list whether or not action may be taken on the agenda advertising an executive session?
Reviewed: 04/19

A council generally may not take final action at an executive session. It may convene an executive session to discuss/consider/evaluate certain specified issues, however it should not be making any final decisions on behalf of the city in the executive session. See discussion starting on p. 16 of MRSC’s Open Public Meetings Act publication.

In terms of what should be listed on the agenda, if you know that an executive session is scheduled to discuss potential litigation or to consider the acquisition of real estate, you could include that on the agenda with reference to the specific statutory provision allowing an executive session for that purpose. Many public agencies do state the purpose of an executive session in their meeting agendas, but this is not a legal requirement. Here is a link to a 2012 blog article describing the proper procedures for calling an executive session.

Even if the purpose of the executive session is not included on the agenda, RCW 42.30.110(2) requires that the presiding officer of the governing body state the purpose of the meeting prior to convening the executive session:

Before convening in executive session, the presiding officer of a governing body shall publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer.

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What are the requirements for filling a council vacancy that has been vacant for less than 90 days?
Reviewed: 04/19

The city council has 90 days to fill the vacancy before the authority to fill the vacancy transfers to the county. By law, RCW 42.12.070(4), after 90 days if the position has not been filled, then “the authority of the governing body [the city] to fill the vacancy shall cease and the county legislative authority . . . shall appoint a qualified person to fill the vacancy.”

Filling non-partisan positions is governed by RCW 42.12.070, which provides that vacancies are filled through appointment by the “governing body,” (the city council). Subsection (6) provides:

  • As provided in chapter 29A.24 RCW, each person who is appointed shall serve until a qualified person is elected at the next election at which a member of the governing body normally would be elected. The person elected shall take office immediately and serve the remainder of the unexpired term. [Emphasis added]

Regarding posting the vacancy, there is no specific requirement for number of days to post the opening to the public or to seek public interest. Posting is not required but may be a good idea.

There is no process required by state law for filling a vacancy. The city council decides what process to use and how to find a qualified person. Many councils advertise that there is a vacancy and then ask interested persons to write letters of interest or to complete an application form. Typically a council will interview candidates in open session (as required by the Open Public Meetings Act) before making an appointment. The vote to make the appointment must also be in open session. If there is a tie then the mayor breaks the tie.

For more information on the process that a city must follow to fill a vacancy on a city council please see our MRSC blog post Filling a Vacancy in a City or Town Council.

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What is the process for elected officials to be covered under a city's health insurance plan?
Reviewed: 04/19

RCW 41.04.180 authorizes cities to provide health insurance to its employees. RCW 41.04.190 gives cities the option to provide health coverage to its elected officials. One important feature of that statute is that the cost of providing the coverage to a city’s elected officials is not “additional compensation.” This language means that the coverage may be provided to elected officials during an existing term of office instead of waiting until the commencement of a new term, because providing the coverage is not a salary increase.

Although RCW 41.04.180 states that the coverage may be authorized by a city’s “principal supervising official or governing body,” MRSC recommends that the coverage be authorized by the city council instead of the mayor, especially in cases where the action will result in the mayor receiving coverage.

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Are office hours for a code city required to be codified by ordinance?
Reviewed: 04/19

Yes, for code cities, the applicable state law requires the office hours be codified by ordinance. The key provision of state law is RCW 35A.21.070, which states:

All code city offices shall be kept open for the transaction of business during such days and hours as the legislative body of such city shall by ordinance prescribe.

You also mention surrounding cities you have checked with that do not seem to have a similar ordinance for business hours. However, for non-code cities and towns, RCW 35.21.175 is almost identical to the code city provision:

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

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What are the statutory guidelines for adopting an ordinance? Is reading it twice or three times a requirement?
Reviewed: 02/19

There are no statutory requirements to have multiple readings of an ordinance prior to adoption, however some cities have adopted such procedures. You will need to refer to your city’s municipal code to determine whether there are any local procedural requirements. For a good overview of the ordinance initiation and adoption process, see our Local Ordinances publication starting at p. 20. For mayor-council code cities, see RCW 35A.12.130 and RCW 35A.12.150 regarding state law requirements for enacting ordinances.

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Can a councilmember be removed from office other than through a recall?
Reviewed: 01/19

Recall is the primary method by which councilmembers can be removed from office against their will. The process for recall is set forth in RCW 29A.56.110.270. Elected officials in Washington are subject to recall by voters for malfeasance, misfeasance, or violation of the oath of office.

However, the occurrence of certain events may create a vacancy without a recall. RCW 42.12.010 provides that every elective office shall become vacant on the happening of any of the following events:

(1) The death of the incumbent;

(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;

(3) His or her removal;

(4) Except as provided in RCW * 3.46.067 and 3.50.057, his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;

(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;

(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;

(7) The decision of a competent tribunal declaring void his or her election or appointment; or

(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.

Subsection (3) refers to the recall process. The remaining subsections do not require a recall process to create a vacancy—the statute declares the office “shall become vacant” when those events occur. Of course, if there is disagreement over whether the criteria for a vacancy has been met, then the issue may need to be addressed through court action.

In addition, a council position may become vacant if that councilmember is absent for three consecutive regular council meetings without the permission of the council. See RCW 35.27.140(1) (Town Councilmembers); RCW 35.23.101 (Second Class City Councilmembers); RCW 35A.12.060 (Code City Councilmembers).

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Is a councilmember eligible to receive the per diem stipend if they call into the meeting rather than being there in person?
Reviewed: 01/19

The Attorney General’s Office issued an opinion last year that concluded a governing body can legally conduct a public meeting be telephone or video conference call so long as the participants can hear, be heard, and participate effectively in the meeting. See AGO 2017 No. 4. MRSC has taken the position that a member of the governing body can participate remotely in a meeting of the governing body if that body has so approved—ideally pursuant to a written policy that sets forth the circumstances under which remote participation will be allowed. So, if the governing body allows it, a member can attend a commission meeting via phone or video. That member would then be entitled to per diem under RCW 57.12.010, which requires compensation for “actual attendance” at official meetings. RCW 57.12.010.

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Does a board of county commissioners have authority to eliminate positions under another elected official in the county?
Reviewed: 01/19

A board of county commissioners (BOCC) has the authority to establish positions (RCW 36.16.070) and, as such, also has the authority to abolish positions. In Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303, 307 (1987), the court, in relevant part, held:

It is undisputed that the Board of County Commissioners have the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments. See RCW 36.32.120(6); RCW 36.16.070; see also Miller v. Pacific Cy., 9 Wn. App. 177, 179, 509 P.2d 377 (1973). There is also no dispute the County was facing a serious budget shortfall. The Board’s acts in balancing the budget were clearly discretionary. Therefore, mandamus would be appropriate only if the Board’s actions were properly found to be arbitrary and capricious.

In general, it is within the discretion of a BOCC to allocate, as it sees fit, the financial resources of the county as provided in the budget it approves. This principle is well-illustrated in State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936)

In the light of the known financial difficulty of the counties and considering the circumstances of the times, the court cannot say that an order reducing the force of deputies in the sheriff’s office from six to four was so capricious and arbitrary as to be void. It may be that the action of the majority of the board of county commissioners was improvident and ill-considered, but, if so, the remedy lies with the electors rather than in the courts. If it be assumed that the business of the sheriff’s office will be hampered by the reduction in force, the harm will not be nearly as great as would be the consequences of the interference by the courts with the executive duties of the board of county commissioners, in whom is reposed the financial management of the county’s affairs.

As such, the courts will interfere with this exercise of discretion only upon the theory that the action is so capricious and arbitrary as to evidence a total failure to exercise discretion and is, therefore, not a valid act. Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991). See also, Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973) (“When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.”)

Of course, the other elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out, but there will most always be disagreement as to how much money they actually need in their budgets to do so. The statutes vest the BOCC with the authority to make that determination in the county budget. And, absent arbitrary and capricious action by the board in setting the budget, its budgetary decision-making will be upheld by the courts.

Note, however, that once a position has been funded, the authority to hire (or terminate) a particular individual rests with the elected official (not the BOCC). See Osborn v. Grant County, 130 Wn. 2d 615, 621 (1996), quoting Thomas v. Whatcom County, 82 Wash. 113 (1914). Thomas held that, once the board has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies . . . ."

Of particular interest to you may be a recent Attorney General’s Opinion that analyzes the BOCC’s authority relative to the Sheriff’s Office under RCW 36.16.070 and chapter 41.14 RCW. See AGO 2017 No. 3. The opinion addresses several questions, but upholds the principle that the County Commissioners have the authority to ultimately create positions authorized by chapter 41.14 RCW.

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If a committee is purely advisory, must its meeting be advertised and open?
Reviewed: 12/18

No. Under RCW 42.30.020(2), if the committee does not have a majority of the council included in its membership, and it merely provides advice, and the council can take action without the advice, it is not covered by the OPMA. Of course, nothing prohibits the city from treating the committee as if it is covered by the OPMA.

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What are the minimum requirements for a newspaper that has been designated the official city newspaper? Is it legally acceptable for mandatory notices to minimally address the notifications and direct the public to the city website or city hall to view the entire notification or is it necessary to post the entire notification?
Reviewed: 12/18

Minimum Requirements

RCW 35A.65.020 and RCW 65.16.020 set forth the process and qualifications for designation of a newspaper as “the official City Newspaper.” Although these are not called “minimum requirements” the qualifications are essentially requirements and include, for example, that the newspaper be legal, of general circulation, published at least weekly, in English, etc.

RCW 35A.21.230 states:

Each code city shall designate an official newspaper by resolution. The newspaper shall be of general circulation in the city and have the qualifications prescribed by chapter 65.16 RCW.

RCW 65.16.020 Qualifications of legal newspaper provides:

The qualifications of a legal newspaper are that such newspaper shall have been 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 with news of interest primarily to an organization, group or class; shall have a policy to print all statutorily required legal notices; and shall hold a periodical class mailing permit: PROVIDED, That in case of the consolidation of two or more newspapers, such consolidated newspaper shall be considered as qualified if either or any of the papers so consolidated would be a qualified newspaper at the date of such legal publication, had not such consolidation taken place: PROVIDED, That this section shall not disqualify as a legal newspaper any publication which, prior to June 8, 1961, was adjudged a legal newspaper, so long as it continues to meet the requirements under which it qualified.

Publishing Ordinance or a Summary

Ordinances may be posted on the city website at any time, but in order for the ordinance to be effective, the city needs to publish it in the official city newspaper. The city is permitted to publish a summary of a new ordinance in lieu of publishing the entire ordinance. For code cities, by law, the summary must provide “a brief description which describes the main points of the ordinance” and include a full statement that the full text of the ordinance will be mailed upon request. RCW 35A.12.160. So long as a summary and the offer to provide the full text of the ordinance by mail upon request is published in the newspaper, in my opinion it is legally acceptable to direct readers to the city website and/or city hall.

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Can city councilmembers receive a cost of living adjustment (COLA) in their compensation?
Reviewed: 11/18

Unless your city uses a salary commission, the city councilmembers may not receive a COLA because, under RCW 35A.13.040 salaries for councilmembers may not be increased during their current term. In addition, our State Constitution, Article XXX, Sec. 1, has a prohibition on midterm salary increases for elected officials who set their own salaries, that is discussed in AGO Opinion, 1999, No. 1. COLA salary increases are included in the term “any increase” and cannot be provided during the current terms of councilmembers. RCW 35A.13.040.

The salary commission procedure is authorized under RCW 35.21.015 where a city (or a county under RCW 36.17.024) may create a commission to set salaries for elected officials. In this case the statutory and constitutional prohibitions would not apply because the councilmembers would not set their own compensation and salary increases, including COLAs.

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When is an extended leave of absence allowed for a councilmember?
Reviewed: 09/18

RCW 35A.12.060 provides that “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.”

A councilmember on an extended leave of absence retains the council position so long as the absences from council meetings are excused by the remaining councilmembers, typically by motion. The position is not vacant unless there are three consecutive absences at regular meetings for which the absences are not excused by the council. The councilmember is still a resident of the city even while on an extended trip. Unless the councilmember resigns, as long as the absences are excused there is not a vacancy.

Some cities have policies allowing councilmembers to participate in meetings remotely via telephone or videoconferencing. Depending on the circumstances and duration of the leave, this might be a consideration.

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Does the new state law requiring paid sick leave apply to elected officials?
Reviewed: 08/18

The new paid sick leave law does not apply to elected officials. Elected and appointed officials are expressly excluded from the definition of “employees”. RCW 49.46.010 provides, in part (emphasis added:

(3) “Employee” includes any individual employed by an employer but shall not include:
. . . (l) Any individual who holds a public elective or appointive office of a state, any county, city , town, or municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature;

For more information, here is a link to an MRSC blogpost Paid Sick Leave Starts January 1.

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What are the legal requirements for council work sessions with respect to notice, taking minutes, whether the clerk needs to be present, and public participation?
Reviewed: 06/18

Under RCW 35A.12.120, the city council may establish rules for the conduct of council meetings. A council study/work session where a quorum is present is a form of council meeting under the Open Public Meetings Act (OPMA) Chapter 42.30 RCW. The meetings are required to be open to the public. RCW 42.30.030. Your council may establish procedures for work sessions including rules to follow for public participation in the sessions.

Special meetings are governed by RCW 42.30.080 and require at least 24 hour notice specifying the time and place and the business to be transacted.

RCW 42.32.035 requires that minutes be kept of all regular and special meetings except executive sessions. This would include council work sessions. There is not a state law requirement that the clerk be present so look to local ordinance or rules about the clerk’s attendance at council work sessions. If the clerk is not required to attend then another person needs to take minutes.

For more general information, here are links to MRSC’s topic pages “Open Public Meetings Act”, “Council Committees” and “Communication and Citizen Participation”.

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Is a public hearing required prior to council adopting its CIP and TIP?
Reviewed: 06/18

Yes, a public hearing is required for the adoption of both the CIP and TIP.

RCW 35A.63.073 requires comprehensive plan amendments (and the CIP is part of that) to be processed the same way as adoption of the plan. RCW 35A.63.070 requires the "planning agency" to hold a public hearing (at least one) and RCW 35A.63.071 requires the planning agency to forward its recommendations on the plan or amendment to the city council.

RCW 35.77.010, relating to the transportation improvement plan (TIP) states in part:

(1) The legislative body of each city and town, pursuant to one or more public hearings thereon, shall prepare and adopt a comprehensive transportation program for the ensuing six calendar years. If the city or town has adopted a comprehensive plan pursuant to chapter 35.63 or 35A.63 RCW, the inherent authority of a first-class city derived from its charter, or chapter 36.70A RCW, the program shall be consistent with this comprehensive plan. The program shall include any new or enhanced bicycle or pedestrian facilities identified pursuant to RCW 36.70A.070(6) or other applicable changes that promote nonmotorized transit.

The program shall be filed with the secretary of transportation not more than thirty days after its adoption. Annually thereafter the legislative body of each city and town shall review the work accomplished under the program and determine current city transportation needs. Based on these findings each such legislative body shall prepare and after public hearings thereon adopt a revised and extended comprehensive transportation program before July 1st of each year, and each one-year extension and revision shall be filed with the secretary of transportation not more than thirty days after its adoption. The purpose of this section is to assure that each city and town shall perpetually have available advanced plans looking to the future for not less than six years as a guide in carrying out a coordinated transportation program. The program may at any time be revised by a majority of the legislative body of a city or town, but only after a public hearing. (Our emphasis)

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Must a transit agency include the actual text of a resolution to be considered at an upcoming board meeting in the agenda that will be circulated in advance of the meeting?
Reviewed: 05/18

No, there is not a state law requirement to post and circulate the actual text of a resolution to be considered at the board meeting. It is enough to list the item in the agenda published in advance. It is helpful to include the resolution when available, but it is not required by law. We recommend you consult with your agency attorney for legal advice regarding sufficiency of the notice you have provided but it appears that you have met the state law requirements in your agenda notice.

The Open Public Meetings Act (OPMA), chapter 42.30 RCW, does not require that a draft of the resolution be circulated in advance with your agenda and board materials. RCW 42.30.060(1) provides:

  • No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void. (Emphasis added).

Your regular board meetings are meetings where the date and time “is fixed by law or rule” and your board may take action at these meetings including adopting any ordinance, resolution, rule, regulation, order, or directive. RCW 42.30.077 provides that agendas of regular meetings will be available online at least 24 hours in advance:

  • Public agencies with governing bodies must make the agenda of each regular meeting of the governing body available online no later than twenty-four hours in advance of the published start time of the meeting. An agency subject to provisions of this section is not required to post an agenda if it does not have a web site or if it employs fewer than ten full-time equivalent employees. Nothing in this section prohibits subsequent modifications to agendas nor invalidates any otherwise legal action taken at a meeting where the agenda was not posted in accordance with this section.

This law also allows subsequent modification of the agenda. There is not a requirement to distribute the text of a resolution or other rule, ordinance, or regulation so long as the subject to be considered is described in the agenda.

If, instead of a regular meeting, your board is having a special meeting under RCW 42.30.080, then a minimum of 24 hours’ written notice must be provided and posted in the ways specified in the statute. The notice must specify the date, time and place of the meeting and the business to be transacted. At a special meeting, final action may not be taken on any business other than that specified in the notice.

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Can a transit agency discuss RFP responses for legal services in executive session?
Reviewed: 05/18

RCW 42.30.110(1)(d) allows for executive session:

  • To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs

The Attorney General’s Open Government Manual states that this provision applies in situations “when a public agency and a contractor performing a publicly bid contract are negotiating concerning how the contract is being performed.”

MRSC takes the position that this provision applies to contracts that have been entered into after a formal bidding process, such as a public works contract. We have opined that it does not apply to RFPs because an RFP is not a “publicly bid contract.” Moreover, the language refers to “performance” of a contract, which suggests that the contract needs to be in place at the time of the executive session.

Therefore, we do not think you can discuss the RFP for legal services in executive session.

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Is an attorney needed at for executive sessions and regular meetings?
Reviewed: 05/18

An attorney must be present for an executive session to consider litigation, potential litigation or an enforcement action pursuant to RCW 42.30.110(1)(i). Otherwise, an attorney is not otherwise required to be at a meeting, regular or executive session. Sometimes it is a good idea to have an attorney present, but it is not required.

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How much is a county required to contribute toward the salary of the elected county prosecutor?
Reviewed: 04/18

RCW 36.17.020(11) addresses the salary of the elected prosecuting attorney:

The state of Washington shall contribute an amount equal to one-half the salary of a superior court judge towards the salary of the elected prosecuting attorney. Upon receipt of the state contribution, a county shall continue to contribute towards the salary of the elected prosecuting attorney in an amount that equals or exceeds that contributed by the county in 2008.

So the minimum contribution from the county is what it contributed in 2008. However, this is a minimum requirement and counties have discretion to contribute more than that. Also, under the Washington Constitution (Article XI, Section 9), the salary of a county elected official may not be reduced during his or her term of office.

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 04/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from 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."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city’s rules of procedure will address who can add items to the agenda –check your city’s rules to see if it’s addressed there. Our Council Meeting Agenda web page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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What cities offer citizen civics academies to encourage citizen participation?
Reviewed: 03/18

Several cities offer citizen academies that focus on a variety of general government-related topics. Here are some examples:

In addition, here are some additional resources relating to citizen participation and civics academies:

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Who has the final say on what goes on the council agenda: the council or the mayor? Can the mayor take off the agenda what a councilmember has the city clerk put on?
Reviewed: 03/18

The city council has the authority to establish the agenda. For a mayor-council code city, the authority stems from 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."

Often, preparation of the agenda is delegated to the mayor or clerk. Typically, the city's rules of procedures will address who can add items to the agenda-check your city's rules to see if it's addressed there. Our Council Meeting Agenda page has some good information on council agendas.

In the absence of a specific rule, the city council (and not an individual councilmember) would have final say over what appears on the agenda.

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Can a quorum of the governing body take "action" even if the entirety of the quorum is teleconferencing?
Reviewed: 02/18

Yes, a quorum of the governing body may take "action" even if the entirety of the quorum is teleconferencing, provided that:

  • Proper notice is given of the meeting;
  • The speaker phone or video system is provided at the meeting place designated in the notice and at the designated meeting time; and
  • The speaker phone or video system allows attending members of the public to hear all discussion, provide testimony (if testimony is required by state law or council rule), and otherwise be aware of the governing body's steps in takings its official action.

For more information, see our New AGO Opinion Concludes the OPMA Allows a Governing Body to Meet via Telephone or Video Conference blog post.

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How can we fix a scrivener’s error in the zoning code?
Reviewed: 11/17

The general principle is that in order to make a correction to the original ordinance itself, it takes a formal amendment to the ordinance by the council. There is no specific statute that allows for clerical or administrative correction of an obvious mistake in an ordinance in most circumstances.

There is an exception to this rule. RCW 35.21.500RCW 35.21.500(3) relates to the process of codification and it provides that the term “codification” includes editing ordinances, which specifically includes correcting manifest errors. So if you are preparing ordinances for codification purposes, then there is authorization to correct manifest errors in references to other ordinances, also spelling, clerical, or typographical errors. These types of errors can be corrected for purposes of codification without specific council action, but this authority is limited to that specific context. If the ordinance has already been codified, the advisable course of action is for the council to amend the ordinance through another ordinance.

Note that RCW 35A.21.010 indicates that deficiencies in the form of ordinance do not affect the validity of the ordinance. This includes inadvertent use of an incorrect or inaccurate proper term or name, such as a citation. But while this helps interpret the ordinance, it does not really provide authority for the agency to correct to the error administratively.

So, assuming you have to amend the ordinance, the normal process for adopting an ordinance should be followed. The following reasoning in Responsible Urban Growth v. Kent, 123 Wn.2d 376, 386-87 (1994), in which the state supreme court addressed the "correction" of zoning ordinances, would appear to be applicable here:

The relevant statutes, however, appear to require notice whether the Council's action is in the form of a correction, an amendment, or a rezone. Although neither RCW 35A.63- .070 nor KCC 15.09.050 specifically mentions "corrections" they do require notice for "amendments" to zoning ordinances. Neither do the statutes define "amendment". Where terms are not defined in a statute, the court will look to the plain, ordinary meaning of the words. American Legion Post 32 v. Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991). Webster's dictionary defines "amendment" as "a correction of errors, faults, etc." Webster's New World Dictionary of the American Language 47 (College ed. 1968). Black's Law Dictionary defines "amendment" in pleading and practice as "[t]he correction of an error committed in any process, pleading, or proceeding at law, or in equity. . . ." Black's Law Dictionary 74 (6th ed. 1990). Courts have defined the word "amendment" to mean "correction of fault or faults" or "to change by freeing from faults, to correct, to reform." United States v. Munday, 211 F. 536, 538 (W.D.Wash. 1914); Pacific Gamble Robinson Co. v. Pay'n Save Drugs, Inc., 2 Wn. App. 728, 730, 469 P.2d 571, review denied, 78 Wn.2d 995 (1970). It appears, therefore, that a correction is included within the meaning of amendment and therefore, requires the same notice as that required for a rezone or an amendment.

Under the reasoning in Responsible Urban Growth v. Kent, a correction to an ordinance, even for an obvious scrivener's error, requires amendment of the ordinance, which can be accomplished only by an amending ordinance enacted by the governing body.

One approach to avoid this problem in the future is to include a "scrivener’s error" section in the adopting ordinance, which authorizes staff to correct any typographical or scrivener’s error. See Section Three of this Mount Vernon ordinance as an example.

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Are salary increases or decreases approved by the city’s salary commission subject to referendum when the city has not adopted the powers of initiative or referendum?
Reviewed: 11/17

Yes, salary action by a salary commission is subject to referendum even if the city has not adopted the powers of initiative and referendum. RCW 35.21.015(6) provides, in part, as follows (emphasis added):

Salary increases and decreases shall be subject to referendum petition by the people of the town or city in the same manner as a city ordinance upon filing of such petition with the city clerk within thirty days after filing of the salary schedule. . . .

This mandatory requirement cannot be evaded where a code city has not adopted the powers of initiative and referendum. Although RCW 35.21.015 does not provide a specific referendum procedure, it does provide at subsection (7) that (emphasis added):

Referendum measures under this section shall be submitted to the voters of the city or town at the next following general or municipal election occurring thirty days or more after the petition is filed, and shall be otherwise governed by the provisions of the state Constitution, or city charter, or laws generally applicable to referendum measures.

The laws “generally applicable to referendum measures” for a code city could only be those that would apply (via RCW 35A.11.100) if the city had adopted the powers of initiative and referendum.

There are other provisions of state law that require referendums even for cities that have not retained referendum procedures. See, e.g., RCW 35.21.706 (referendum authorized on B&O tax ordinance); RCW 82.14.036 (referendum authorized on additional sales tax); and RCW 82.14.340 (referendum authorized on additional sales tax for criminal justice purposes).

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Must the oath of office of city, town, and county elective officials be filed with the county auditor?
Reviewed: 11/17

Yes, the oath of office of elective officials serving in code cities, second class cities, towns, and counties must be filed with the county auditor. See RCW 35A.12.080 (code cities), RCW 35.23.081 (second class cities), RCW 35.27.120 (towns), and RCW 36.16.060 (counties).

Please note that RCW 42.12.010 provides that failure to properly take an oath and file the oath is a cause for vacancy in office!

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Can a group of area mayors host a “legislative forum” at a city-owned facility with several candidates for state offices to discuss their views on city issues?
Reviewed: 10/17

In general, use of city facilities in support of a political candidate is prohibited under RCW 42.17A.555. However, under RCW 42.17A.555(3), activities that are part of the normal and regular conduct of the office or agency are permissible.

Accordingly, it is permissible for the city to host in a city facility a “neutral forum” for candidates for elective office to speak and answer questions from the public. The Public Disclosure Commission (PDC) has taken the position that a public agency may, under RCW 42.17A.555, allow its meeting facilities to be used for a neutral forum with respect to a ballot measure or a campaign for elected office, with equal opportunity for both sides of the measure to present their views or for candidates to present themselves to the public. See the PDC’s Guidelines for Local Government Agencies in Election Campaigns (revised May 22, 2013). See also PDC Declaratory Order No. 13, “Use of City Facilities to Broadcast Candidate Forum”; and AGO 1979 No. 3 (“The facilities of a state college or university may be used for a candidates' forum to which candidates for elective office would be invited on a nondiscriminatory basis to appear on campus to present their views and respond to questions from the audience . . . .”).

According to the PDC’s Guidelines for Local Government Agencies in Election Campaigns, the following are permitted uses of public agency facilities:

  • Agency meeting facilities, including audio visual equipment, may be used by campaign committees for activities on the same terms and conditions available to other community groups, subject to the provisions of the agency’s policy.

  • Use of agency meeting facilities is permitted when the facility is merely a “neutral forum” where the activity is taking place, and the public agency in charge of the facility is not actively endorsing or supporting the activity that is occurring.

According to the PDC, here are the factors it considers when determining if the use of agency meeting facilities are the “normal and regular conduct” of the agency and therefore permissible:

  • Can community groups typically use agency facilities?
  • Are facilities made available to all groups on the same terms?
  • Has the agency adopted a policy regarding the distribution of campaign materials on agency property?
  • Is the meeting facility customarily made available on an equal access, nondiscriminatory basis for a variety of uses?

With these considerations in mind, to comply with RCW 42.17A.555, it will be important to invite all declared candidates for the particular state offices to the event. It will also be important to make sure all candidates who attend have an equal opportunity to participate.

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Does a city council in a noncharter code city have the legal authority to impose term limits on city councilmembers and the mayor?
Reviewed: 09/17

The answer appears to be “yes.” AGO 1991 No. 22 addressed the imposition of term limits on local government elected officials and concluded, in part, that noncharter code cities may impose term limits for their elected officials.

In reaching its conclusion, the AG’s Office differentiated between two types of local governments: those with broad home rule authority, consisting of charter cities and counties and noncharter code cities; and those with no home rule authority, consisting of second-class cities, towns, and noncharter counties. The AG’s Office concluded that only those jurisdictions with broad home rule authority could impose term limits and that noncharter code cities could impose term limits by ordinance.

Here are some examples of noncharter code cities that have adopted term limits:

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Should the chair of a planning commission vote on motions?
Reviewed: 08/17

The general rule is that a person who is chairing a meeting retains the basic right to vote on issues at the meeting. So, the chair of a planning commission does not lose his or her rights as a member of the commission when chairing a meeting and this includes the right to make, second, and vote on motions.

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Can a noncharter code city put an advisory ballot measure on the ballot regarding whether the city should allow marijuana businesses within the city? If yes, does MRSC have any sample ballot measures related to the same subject?
Reviewed: 08/17

Noncharter code cities can hold an advisory vote on whether or not to allow marijuana facilities within city limits. RCW 35.22.280(1) authorizes first-class cities to provide for “questions to be voted upon,” which we’ve interpreted to include advisory votes. Noncharter code cities have, pursuant to RCW 35A.11.020, “any authority ever given to any class of municipality . . . .” So, the city council of a noncharter code city can put an advisory vote on the ballot.

Regarding examples from other jurisdictions, we’re aware of three jurisdictions that have held such an advisory vote:

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Can a mayor legally perform a marriage?
Reviewed: 08/17

A mayor may not perform a marriage (unless, of course, he or she is also a regularly licensed or ordained minister, priest, imam, rabbi, or similar official of any religious organization). RCW 26.04.050 states as follows:

The following named officers and persons, active or retired, are hereby authorized to solemnize marriages, to wit: Justices of the supreme court, judges of the court of appeals, judges of the superior courts, supreme court commissioners, court of appeals commissioners, superior court commissioners, any regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization, and judges of courts of limited jurisdiction as defined in RCW 3.02.010.

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Are the number of commissioners in noncharter counties with less than 300,000 population limited to three?
Reviewed: 07/17

Yes, RCW 36.32.010 limits noncharter counties with a population less than 300,000 to three commissioners. Once the county’s population reaches 300,000, it can, pursuant to RCW 36.32.055, have five commissioners.

These limits, however, do not apply to counties that adopt a charter. Article 11, section 4 of the state constitution allows a county that chooses to adopt a charter to 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. The charter could provide for more commissioners than are allowed for noncharter counties. For example, Whatcom County, which has a population less than 300,000, is a charter county and its charter provides for a seven member legislative body, referred to as the “county council.”

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May a nonresident serve on the city planning commission?
Reviewed: 07/17

State law does not specify or require that an individual be a resident of the city before serving on the city’s planning commission. However, RCW 35.21.200 allows—but does not require—a city to establish residency requirements for its appointed officials, including members of the planning commission. Unless a city adopts such a residency requirement, a nonresident could be appointed as a member of the planning commission.

While state law does not explicitly require that an individual be a resident of the city, there is some legal authority that suggests that U.S. citizenship is a requirement for serving on the planning commission. In AGO 1960 No. 169, the AG’s Office opined that only U.S. citizens could be appointed to fill the position of a city planning director because that position constituted a “public office.” This rule is also supported by case law—albeit indirectly. See Herriott v. City of Seattle, 81 Wn.2d 48 (1972) (Holding that a position in general public employment that does not rise to the status of public office and which involves no requirement of security, discrimination against aliens in favor of citizens is unconstitutional as a denial of equal protection of the laws). In AGO 2016 No. 7, the AG’s Office opined that an individual likely holds a “public office” when appointed as a planning commissioner. It is important to note, however, that AG Opinions are not legally binding on local governments—although courts do give them great weight.

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Can a city require that a fire chief reside in the city?
Reviewed: 06/17

A city council can establish residency requirements for non-civil service positions (such as a fire chief). For civil service positions, residency requirements aren’t allowed.

The relevant statute is RCW 35.21.200, which provides:

Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees, but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified: PROVIDED, That this section shall not authorize a city or town to change any residential qualifications prescribed in any city charter for any appointive official or employee: PROVIDED, FURTHER, That all employees appointed prior to the enactment of any ordinance establishing such residence qualifications as provided herein or who shall have been appointed or employed by such cities or towns having waived such residential requirements shall not be discharged by reason of such appointive officials or employees having established their residence outside the limits of such city or town: PROVIDED, FURTHER, That this section shall not authorize a city or town to change the residential requirements with respect to employees of private public utilities acquired by public utility districts or by the city or town.

Note, however, one limitation: a residency requirement cannot apply retroactively to existing employees. In other words, a residency requirement can only apply prospectively to new positions.

If the position at issue is a civil service position, RCW 41.08.075 generally prohibits a residency requirement with respect to city firefighters under the civil service system. RCW 41.08.075 provides:

No city, town, or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter [i.e., chapter 41.08 RCW] or under any local charter or other regulations described in RCW 41.08.010 to reside within the limits of such municipal corporation as a condition of employment, or to discriminate in any manner against any such person because of his or her residence outside of the limits of such city, town, or municipality.

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How do other jurisdictions address remote participation by members of their governing body in public meetings, including long-term remote participation?
Reviewed: 05/17

MRSC has taken the position that remote participation in public meetings may be approved by the governing body—ideally pursuant to a written policy that sets forth the circumstances under which remote participation will be allowed. Questions about long-term remote participation would then depend on whether such participation conforms to the jurisdiction’s policy.

Here are some sample policies:

  1. Bothell City Council Protocol Manual Sec. 7.14 – Attendance via Speakerphone (AVS)
  2. Lake Forest Park City Governance Manual Sec. 4.7 – Remote Participation
  3. Mill Creek Manual of City Governance Policies, Procedures and Guidelines Sec. 4.6 – Telephonic Participation from a Remote Location
  4. Mukilteo City Council Rules of Procedure Rule 1(H) – Remote Attendance

These policies vary. For example, Bothell limits remote participation to extraordinary circumstances twice per year, while Lake Forest Park does not.

We can envision situations in which a council or board member may seek to participate remotely for an extended period of time due to illness or disability. Whether it is an “accepted practice” depends on the policy of the particular jurisdiction. State law in general and the OPMA in particular do not prohibit or set limits on remote participation so long as the participant can hear, be heard, and participate effectively in the meeting. See AGO 2017 No. 4.

 

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Do advisory committees need to take minutes of their meetings?
Reviewed: 04/17

If the committee at issue is a “governing body” of a “public agency” within the meaning of the Open Public Meetings Act (OPMA), then that the committee would, under state law, be required to take minutes of its regular and special meetings.

The key provision of state law is RCW 42.32.030, which states that:

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.

Since RCW 42.32.030 specifically refers to “all regular and special meeting,” the requirement to take minutes appears to only extend to meetings that are subject to the OPMA, because those terms only have relevance within the context of the OPMA. See RCW 42.30.070.080. Only the meetings of a “governing body” of a “public agency” are subject to the OPMA. See, e.g., RCW 42.30.030. As RCW 42.30.020(1) and (2) make clear, the terms “governing body” and “public agency” are defined in such a manner that would generally subject planning commissions, parks commissions, as well as advisory committees—when they “act on behalf” of the governing body—to the OPMA.

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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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What are the public hearing requirements associated with raising a utility rate?
Reviewed: 11/16

Outside of your typical council procedures for adopting ordinances (which is how rate increases are typically established), there are no state law requirements for notice of, or public hearing or comments regarding, utility rate increases, with the exception of solid waste (detailed below). Although cities often hold public hearings and provide prior notice on utility rate increases, state law does not require published notice and a public hearing. Note that there is one exception to this general rule: RCW 35A.21.152 (also stated in RCW 35.21.157), which requires that the public be notified at least 45 days in advance of a proposed effective date of the rate increase for a solid waste utility, either by mail or by publication once a week for two consecutive weeks.

Although state law may not require it for most utilities, there may be political reasons for holding a public hearing before changing a utility rate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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.

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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 elective office.

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