skip navigation

Legal


Must a person file a claim via RCW 4.96.020 before filing a PRA lawsuit against the county?
Reviewed: 02/17

In brief, no. Our position at MRSC has been that the claim filing requirements in RCW 4.96.020 don’t apply to a lawsuit based on an alleged violation of the Public Records Act (PRA). RCW 4.96.020, and chapter 4.96 RCW more generally, addresses tort claims, tortious conduct, and claims for damages, but a PRA lawsuit isn’t a tort claim or a claim for damage.

If an agency is found by a court to have violated the PRA, the court may impose penalties as well as attorney fees and costs, but such remedies are different in kind than damages arising out of tortious conduct as provided for under RCW 4.96.020. See, e.g., Amren v. City of Kalama, 131 Wn.2d 25, 36 (1997) (“Since the award [for a PRA violation] has been treated as a penalty it is not necessary for a party to show actual damages to receive the statutory award.”)

The following excerpt from a more recent decision, Corey v. Pierce County, 154 Wn. App. 752 (2010), also indicates that a tort claim for damages is different in kind that a claim under the PRA. In part, the court explains and concludes (at pp. 765-766):

Case law does not support a tort cause of action for damages due to negligent disclosure of unsubstantiated information. Instead, the concern for privacy noted by the trial court stems from the Public Records Act (PRA). Ch. 42.56 RCW. Under the PRA, an invasion of privacy occurs “if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.” RCW 42.56.050. In Dawson v. Daly, a prosecutor sought an injunction to prevent the release of a deputy prosecutor’s personnel file. 120 Wn.2d 782, 788, 845 P.2d 995 (1993). The court determined that the disclosure of the prosecutor’s performance evaluations that did not discuss specific instances of misconduct was highly offensive and lacking in legitimate public interest. Id. at 800. The right to privacy was protected through injunction. Nowhere is there a discussion of a tort action for damages in the event of a violation of the right of privacy. Furthermore, the court did not address the proper standard to be applied if the personnel file did include allegations of misconduct.

Based on the legal principles articulated above, because a claim under the PRA wouldn’t be a claim for damages, the claim filing requirements in chapter 4.96 RCW wouldn’t apply to such a PRA claim.

(Link to this question)

Must a fireworks ordinance that is more restrictive than state law actually be in effect on June 28 to be effective the
following 4th of July fireworks season, or would it be enough if it is merely adopted before June 28?

Reviewed: 02/17

RCW 70.77.250(4), relating to local regulations more strict than the state's, says:

Any ordinances adopted by a county or city that are more restrictive than state law shall have an effective date no sooner than one year after their adoption.

(Emphasis added.) Given this, the ordinance could not go into effect until one year after the council votes on the ordinance. So, to be in effect as of the beginning of the 2018 4th of July fireworks season (which begins on June 28), the council must adopt (vote to approve) the ordinance no later than June 27, 2017.

(Link to this question)

Can the city surplus and sell an old city vehicle as a “direct sale,” or does it legally have to go to bid?
Reviewed: 12/16

A “direct sale” is permissible provided that the city council declares the property to be surplus and authorizes the manner of sale. There is no requirement that surplus city property be offered to all, or put up at auction, or that bids be requested. Cities do not have required procedures for the disposal of surplus property as do counties in chapter 36.34 RCW. The property can be sold to a specific individual, if that is what council wishes to do. However, the council should still declare the property surplus to the city's needs and set a price below which it will not be sold. Obviously, if the council has adopted a policy regarding sale of surplus property, that policy should be followed.

For more information, please see our Sale of Surplus City or Town Property topic page, which includes general information and sample policies.

(Link to this question)

Is there a comprehensive list of what type of uses constitute an "essential public facility?"
Reviewed: 12/16

There is a fairly comprehensive description of an “essential public facility” in RCW 36.70A.200(1) (emphasis added):

The comprehensive plan of each county and city that is planning under RCW 36.70A.040 shall include a process for identifying and siting essential public facilities. Essential public facilities include those facilities that are typically difficult to site, such as airports, state education facilities and state or regional transportation facilities as defined in RCW 47.06.140, regional transit authority facilities as defined in RCW 81.112.020, state and local correctional facilities, solid waste handling facilities, and inpatient facilities including substance abuse facilities, mental health facilities, group homes, and secure community transition facilities as defined in RCW 71.09.020.

A more detailed list is set forth in WAC 365-196-550(1), which states in relevant part:

(d) The following facilities and types of facilities are identified in RCW 36.70A.200 as essential public facilities:

(i) Airports;

(ii) State education facilities;

(iii) State or regional transportation facilities;

(iv) Transportation facilities of statewide significance as defined in RCW 47.06.140. These include:

(A) The interstate highway system;

(B) Interregional state principal arterials including ferry connections that serve statewide travel;

(C) Intercity passenger rail services;

(D) Intercity high-speed ground transportation;

(E) Major passenger intermodal terminals excluding all airport facilities and services;

(F) The freight railroad system;

(G) The Columbia/Snake navigable river system;

(H) Marine port facilities and services that are related solely to marine activities affecting international and interstate trade;

(I) High capacity transportation systems.

(v) Regional transit authority facilities as defined under RCW 81.112.020;

(vi) State and local correctional facilities;

(vii) Solid waste handling facilities;

(viii) In-patient facilities, including substance abuse facilities;

(ix) Mental health facilities;

(x) Group homes;

(xi) Secure community transition facilities;

(xii) Any facility on the state ten-year capital plan maintained by the office of financial management.

This seems to be a fairly comprehensive list, but this regulation makes clear that the primary components of the definition of an essential public facility is that it (1) provides a public service; and (2) is difficult to site. See WAC 365-196-550(1)(f). Thus, there may be other uses that fall within the definition, even if they do not appear on this list.

(Link to this question)

We are interested in creating a meal/refreshments policy for employees in local work-related meetings and training; do you have some good sample policies?
Reviewed: 11/16

Please see the following sample policies:

(Link to this question)

When a public records request comes in for records related to a specific employee, must the agency notify the employee whose records have been requested of the request?
Reviewed: 11/16

There is no legal requirement under the PRA that an agency notify employees of such a request. However, RCW 42.56.540 gives agencies the option to provide what is referred to as "third party notice" to allow the third party (here, the employee) to seek a court injunction to block disclosure.

Providing third party notice may be advisable in circumstances where it's unclear whether a specific exemption applies because the PRA is to be construed in favor of disclosure, and an agency could be subject to mandatory penalties if a court finds that the agency improperly withheld non-exempt information. So, the purpose of third party notice is to give the third party (e.g., the employee) a chance to seek a court order preventing the disclosure, while reducing the likelihood that the agency will incur penalties under the PRA.

To provide third party notice, an agency would inform the PRA requestor in writing that it will provide the requested records, subject to appropriate redactions, if any, but will delay release of the records (and so inform the requestor) to give the affected parties the opportunity to seek court protection of possibly exempt information under RCW 42.56.540. See also WAC 44-14-040(4), part of the PRA model rules, which states:

Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

(Link to this question)

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.

(Link to this question)

Do newspaper publishers or distributors have any legal rights to place newsracks or newspaper pay boxes in the public right-of-way? Can the city have them moved or at least placed on private property?
Reviewed: 10/16

The U.S. Supreme Court has held that the placement of newsracks (newspaper pay boxes) on sidewalks is “speech” subject to First Amendment protections. City of Cincinnati v. Discovery Network, Inc. , 507 U.S. 410 (1993); Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988). But, the Supreme Court has not squarely addressed whether a complete prohibition on the placement of newsracks on city sidewalks would be constitutional. See International Caucus of Labor Comms. v.City of Montgomery , 111 F.3d 1548 (1997) (“there is no Supreme Court holding that deals with the constitutional implications of a complete ban of newsracks one way or the other.”). The Washington Supreme Court has also not addressed that question, though in one case it refers to the Cincinnati case as “invalidating city ordinance prohibiting newsracks on public property.” Nelson v. McClatchy Newspapers, Inc. , 131 Wn.2d 523, 537 n. 11 (1997). (The Cincinnati case invalidated a city ordinance that banned only those newsracks that contained certain commercial publications.) That being said, we think it would be constitutionally risky to adopt a complete prohibition on news racks on city sidewalks.

What is clear is that a city may impose reasonable time, place, and manner restrictions on the placement of newsracks on public sidewalks, as long as those restrictions are “content neutral” and are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Plain Dealer Publishing Co. v. City of Lakewood, 794 F. 2d 1139, 1143 (6th Cir. 1986), aff’d, 486 U.S. 750 (1988). The city may, for example require permits for news racks, as long as the permitting authority is guided by objective and definite standards. Licensing fees are permissible if they cover only administrative costs. For more information on permissible requirements, see the IMLA [International Municipal Lawyers Association] Model Newsrack Ordinance (1997), starting at page 11.

Here are some examples of city code provisions regulating newsracks on public sidewalks:

(Link to this question)

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

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

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

(Link to this question)

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

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

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

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

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

(Link to this question)

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

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

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

(Link to this question)

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

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

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

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

Fife Municipal Code Sec. 1.28.075 (Emphasis added):

Personal property - Method of disposition.

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

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

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

Poulsbo Municipal Code Sec. 3.68.020 (Emphasis added):

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

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

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

(Link to this question)

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.").

(Link to this question)

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

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

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

(Link to this question)

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

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

(Link to this question)

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

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

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

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

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

(Link to this question)

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

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

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

(Link to this question)

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

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

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

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

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

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

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

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

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

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

(Link to this question)

Whether records reflecting an employee's education and experience are exempt from public disclosure.
Reviewed: 05/16

Applications for public employment, including resumes, cover letters, and letters of recommendation, are exempt from disclosure under RCW 42.56.250(2), so you would not be required to provide those records to the requestor.

Information regarding an employee's education and experience that is not contained within such application materials is not exempt from disclosure.

(Link to this question)

Does the city have to pay for the cost of indigent defense for an appeal to the superior court of a municipal court's conviction?
Reviewed: 05/16

The city is not responsible for public defense for criminal appeals to the court of appeals or the Supreme Court; the state is responsible for those costs. RCW 4.88.330. Unfortunately for local governments, this statute does not apply to appeals from municipal court to superior court. The Washington State Supreme Court made this point clear in Kitsap County v. Moore, 144 Wn.2d 292 (2001). In Moore, Kitsap County and Bremerton contended that the cost of indigent misdemeanant appeals, including attorney fees and costs, for appeals from municipal/district court to superior court was the state's responsibility to pay under RCW 4.88.330. After construing the statute, court rules and legislative history, the court rejected this argument and concluded that the local jurisdiction (cities or counties) is responsible for the costs of indigent misdemeanant appeals to superior courts.

(Link to this question)

Request for information about dealing with blighted/poor maintained/abandoned properties
Reviewed: 05/16

The procedures in RCW 35.80.030 are available to deal with situations in which "one or more conditions of the character described in RCW 35.80.010 exist"; those conditions are:

dwellings which are unfit for human habitation, and buildings, structures, and premises or portions thereof which are unfit for other uses due to dilapidation, disrepair, structural defects, defects increasing the hazards of fire, accidents, or other calamities, inadequate ventilation and uncleanliness, inadequate light or sanitary facilities, inadequate drainage, overcrowding, or due to other conditions which are inimical to the health and welfare of the residents of such municipalities and counties.

One advantage of using the procedures in RCW 35.80.030 is the method of cost recovery provided in subsection (h) that statute where the property owner does not abate a dangerous structure and the city must do so, the assessment for which can be entered upon the tax rolls against the property for the current year and the same shall become a part of the general taxes for that year to be collected at the same time and with interest at such rates and in such manner as provided for in RCW 84.56.020 for delinquent taxes, and when collected to be deposited to the credit of the general fund of the municipality.

Another available tool that some cities have adopted is the Uniform Code for the Abatement of Dangerous Buildings (1997), the stated purpose of which is to address "buildings or structures which from any cause endanger the life, limb, health, morals, property, safety or welfare of the general public or their occupants may be required to be repaired, vacated or demolished." See Sec. 102.1.

Then there is also the International Property Maintenance Code (2012), adopted by some jurisdictions (e.g., Longview), to provide:

minimum requirements and standards for premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for safe and sanitary maintenance; the responsibility of owners, operators and occupants; the occupancy of existing structures and premises and for administration, enforcement and penalties.

Sec. 101.2.

Our Building Nuisances webpage has examples of ordinances adopting one or the other of these provisions or establishing their own procedures for addressing these issues of blighted/poor maintained/abandoned properties. See also our Community Renewal Law webpage.

(Link to this question)

Do you have guidelines for a majority of city councilmembers traveling together?
Reviewed: 04/16

First, there is a specific statutory provision that allows a majority (or more) of the city council to travel together so long as there is no discussion of city business amongst them. RCW 42.30.070 states in part:

(It shall not be a violation of the requirements of this chapter for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.

Note that "action" is defined in RCW 42.30.020(3) to include discussion of city business:

(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.

The above restrictions apply when a quorum of the council travels together, such as, for example, to Washington D.C. to meet with Congressional representatives, or to a meeting held by another agency. For a seven-member city council, four councilmembers constitutes a quorum, so two or three councilmembers can travel together and discuss city affairs without any OPMA implications.

Councilmembers should avoid during their trip any conversation regarding city business that is done when a quorum is present (even if only two members are speaking), and the council should avoid any serial conversations on a city issue that would result in the participation in that conversation of a quorum of the council.

At the last meeting prior to the council trip, it might be wise to have the city attorney (if present at the meeting) or the mayor remind the councilmembers of the OPMA restrictions on discussions of city business by a quorum outside of an open public meeting. That lets the public know that the council is aware of the OPMA restrictions. Keep in mind, however, that some members of the public may nevertheless be distrustful of council compliance with the OPMA when a majority of more of the council travel together.

(Link to this question)

May the city impose any local taxes (in addition to the regular sales tax) on marijuana sales
Reviewed: 03/16

There is no statutory authority for the city to impose additional sales taxes on licensed marijuana retail businesses.The relevant statutes for the state excise taxes for marijuana sales are RCW 69.50.535 and RCW 69.50.540

(Link to this question)

May a city regulate, through zoning, where in the city medical marijuana patients may grow marijuana plants in their own housing units?
Reviewed: 03/16

In our opinion, a city may not restrict the growing of marijuana plants by qualifying patients in their own housing units in compliance with state law. RCW 69.51A.210, enacted as part of the 2015 medical marijuana legislation, allows a "qualifying patient" (defined in RCW 69.51A.010(19)) to grow "in his or her domicile" up to either four, six, or fifteen plants, the number depending on factors identified in that statute. The growing of such plants may not, however, "be readily seen by normal unaided vision or readily smelled from a public place or the private property of another housing unit." RCW 69.51A.260(2).

While, under RCW 69.51A.250(3)(c), a city or county may prohibit the newly-authorized (as of 7/1/2016) marijuana cooperatives in certain zones or, presumably, even entirely, no such authorization is provided to cities and counties with respect to the growing of plants by individual, qualifying patients in their housing units. Any such prohibition of qualifying patients growing marijuana plants in their housing units in a particular zone or citywide would be in conflict with state law that permits such growing by qualifying patients in their housing units.

As such, it is our opinion that the right given by statute to qualifying patients to grow marijuana plants in their housing units cannot be restricted or prohibited by local zoning.

Note, however, that the city "may create and enforce civil penalties, including abatement procedures, for the growing or processing of marijuana and for keeping marijuana plants beyond or otherwise not in compliance with" RCW 69.51A.260.

(Link to this question)

Who is covered by new Human Rights Commission regulations against discrimination based on sexual orientation and gender identity?
Reviewed: 03/16

The terms "covered entity" or "covered entities" are not used in Human Rights Commission regulations other than in the new chapter 162-32 WAC, established in WSR 15-24-071, and they are not defined anywhere in the Human Rights Commission regulations. But, because the Human Rights Commission regulations regarding sexual orientation or gender expression or gender identity implement state legislation, specifically in chapter 49.60 RCW, reference must be made to that RCW chapter to determine the entities covered by these new regulations regarding sexual orientation or gender expression or gender identity. And, note that the new WAC 162-32-010 (General purpose and scope) states:

This chapter interprets and implements the sexual orientation and gender expression and gender identity discrimination protections of RCW 49.60.030, 49.60.180, and 49.60.215 and provides guidance regarding certain specific forms of sexual orientation and gender expression and gender identity discrimination.

RCW 49.60.030, referred to above, is the general declaration of freedom from discrimination, while RCW 49.60.180 addresses discrimination by employers and RCW 49.60.215 addresses discrimination by places of "public resort, accommodation, assemblage, or amusement," which are defined in RCW 49.60.040.

Local governments are covered both as employers and, to some extent, as places of public assemblage. However, non-public restrooms of a local government with less than eight employees are not subject to the new rules. The law against discrimination applies only to employers with eight employees or more. RCW 49.60.040(11). A local government with less than eight employees still needs to comply with the new rules for restrooms available for public use.

(Link to this question)

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

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

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

(Link to this question)

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

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

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

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

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

(Link to this question)

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

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

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

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

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

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

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

(Link to this question)

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

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

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

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

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

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

(Link to this question)

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

Please see the following code provisions establishing such programs:

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

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

(Link to this question)

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

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

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

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

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

(Link to this question)

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

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

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

(Our emphasis.)

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

(Link to this question)

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.

(Link to this question)

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.

(Link to this question)

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

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

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

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

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

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

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

(Link to this question)

Can the question of whether marijuana businesses should be allowed in the city be decided by a voter initiative?
Reviewed: 06/15

It's our opinion that the question of whether marijuana businesses can be located within the city is not subject to voter initiative. This issue is, basically, a zoning/land use planning question, and the courts have been clear that zoning/land use planning issues are not proper subjects for initiative or referendum. See, e.g., Leonard v. Bothell, 87 Wn.2d 847 (1976); Lince v. Bremerton, 25 Wn. App. 309 (1980). The reasoning of the courts is that the legislature has delegated the zoning power in a city to the city council and not to the city as a corporate entity; if a power has been delegated to the city council, it is not subject to voter initiative.

So, the voters may not, in our opinion, repeal this ordinance through the initiative process.

(Link to this question)

Are Airbnb (and the like) rentals subject to the lodging tax?
Reviewed: 06/15

Yes, though it's a roundabout way that we get to that result, because the lodging tax statutes do not actually define "lodging." RCW 67.28.180(1) provides that the lodging tax is imposed on "the furnishing of lodging that is subject to tax under chapter 82.08 RCW," the RCW chapter dealing with the retail sales tax. RCW 82.08.010(6) states that "The meaning attributed in chapter 82.04 RCW to the terms . . . 'sale' . . . applies equally to the provisions of this chapter." RCW 82.04.040(1) defines "sale" to include "any transfer of the ownership of, title to, or possession of property for a valuable consideration and includes any activity classified as a 'sale at retail' or 'retail sale' under RCW 82.04.050." RCW 82.04.050(2)(f) then defines "sale at retail" or "retail sale" to include:

The furnishing of lodging and all other services by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property, and it is presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or enjoy the same.

(Emphasis added.) The rental of a room or an apartment or a house, etc., through an organization like Airbnb or VRBO qualifies as the "furnishing of lodging" under this definition, because it represents a "license to use real property." That furnishing of lodging through Airbnb and the like is thus subject to a local lodging tax.

Airbnb, on its website, even acknowledges this:

Your state or locality may impose a tax on the rental of rooms. In many places this is known as a occupancy tax, but may also be known as a lodging tax, a room tax, a use tax, a tourist tax, or hotel tax. We expect all hosts to familiarize themselves with and follow their local laws and regulations.

Of course, unless your jurisdiction knows, though a licensing or registration scheme, what property owners act as Airbnb "hosts," it will be unable to collect its lodging tax from those hosts. We are not aware of any local governments in this state that yet regulate businesses like Airbnb through a licensing or registration scheme, though some may. For more information on regulating property rental businesses like Airbnb, see our blog post, Airbnb:Regulation of Internet-Based Businesses.

(Link to this question)

May candidates for mayor have a "meet and greet your candidates night" at city hall, and, if not, can it be held at the school gym since it is not a school board election?
Reviewed: 05/15

First we want to note that the answer to your question is the same regardless if the event would be held in the city hall or in the school gym, since both the city and the school district are public agencies within the meaning of RCW 42.17A.555, which contains the prohibition on using public office or public agency facilities to support or oppose a candidate or ballot proposition. See definition of "agency" in RCW 42.17A.005(2). It does not matter that this does not involve a school board election.

The Public Disclosure Commission (PDC), the agency that enforces RCW 42.17A.555, has concluded that the "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." See Guidelines for Local Government Agencies in Election Campaigns, PDC Interpretation 04-02 (amended May 2013). Often such neutral forums involve the candidates taking turns giving speeches to the attendees, but it could also encompass a "meet and greet" as is contemplated here.

So, yes, the "meet and greet" could take place at the city hall.

(Link to this question)

May the city sell surplus property to a specific individual (without offering it to all)?            
Reviewed: 04/15

Yes. There is no requirement that surplus city property be offered to all, or put up at auction, or that bids be requested. Cities do not have required procedures for the disposal of surplus property as do counties in chapter 36.34 RCW. The property can be sold to a specific individual, if that is what council wishes to do.  Though, council should still declare the property surplus to the city's needs and set a price below which it will not be sold. Obviously, if the council has adopted a policy regarding sale of surplus property, that policy should be followed (or changed, if need be).

(Link to this question)

What limits are there on city officials lobbying on proposed legislation at the state legislature?
Reviewed: 03/15

Lobbying by local governments on proposed legislation in the state legislature is governed by RCW 42.17A.635, which at subsection (3) provides in part:

Any agency, not otherwise expressly authorized by law, may expend public funds for lobbying, but such lobbying activity shall be limited to (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency. Public funds may not be expended as a direct or indirect gift or campaign contribution to any elected official or officer or employee of any agency. For the purposes of this subsection, "gift" means a voluntary transfer of any thing of value without consideration of equal or greater value, but does not include informational material transferred for the sole purpose of informing the recipient about matters pertaining to official agency business.  

Note the definition of "lobbying" in RCW 42.17A.005(30):
 

Each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state administrative procedure act, chapter 34.05 RCW.

 
The expenditure of public funds for lobbying authorized by RCW 42.17A.635(3) must be reported to the PDC, per RCW 42.17A.635(5), which states in part:
 

Each state agency, county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district that expends public funds for lobbying shall file with the commission, except as exempted by (d) of this subsection, quarterly statements providing the following information for the quarter just completed . . . .

 
The expenditure of public funds for lobbying is to be reported on PDC Form L-5. Note that "lobbying" for purposes of reporting the expenditure of public funds to the PDC does not include, among other things:
 

(A) Telephone conversations or preparation of written correspondence;
 
(B) In-person lobbying on behalf of an agency of no more than four days or parts thereof during any three-month period by officers or employees of that agency and in-person lobbying by any elected official of such agency on behalf of such agency or in connection with the powers, duties, or compensation of such official. The total expenditures of nonpublic funds made in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington may not exceed fifteen dollars for any three-month period. The exemption under this subsection (5)(d)(v)(B) is in addition to the exemption provided in (d)(v)(A) of this subsection;
 
(C) Preparation or adoption of policy positions.

 
RCW 42.17A.635(5)(d)(v). Note that the above subsection also addresses the expenditure of nonpublic funds for lobbying. Expenditures of nonpublic funds over $15 in any three-month period is also to be reported on Form L-5.
 
We are not aware of any monetary limit on the expenditure of public funds for lobbying. 
 
 

(Link to this question)

 What are the records retention schedules?
Reviewed: 03/15

Records retention schedules are issued by the Local Records Committee to serve as the retention schedules and disposition authority for records held by local government agencies. The Local Records Committee is a committee which includes the state archivist, a representative appointed by the state auditor, and a representative appointed by the attorney general.

The records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.

The most recent versions of the Local Government Records Retention Schedules are available on the Washington State Archives website. Those documents are updated periodically.

In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of local government agencies. Review the Records Management - Local Government page for further information.

(Link to this question)

Are cities and counties required to create a document when responding to a specific request for public disclosure?
Reviewed: 03/15

No. A Court of Appeals decision has addressed this issue directly: Smith v. Okanogan County, decided 2/8/00.

There is no statute in the state PRA directly addressing this issue, but there is federal law on this issue. . . . Under the Freedom of Information Act, an agency is not required to create a record which is otherwise non-existent. See National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504, 44 L. Ed.2d 29 (1975). We agree and determine there is also no such duty under the state PRA.

Also see WAC 44-14-04003.

(Link to this question)

How soon must a city respond to a request for public records?
Reviewed: 03/15

State law requires that responses to requests for public records be made "promptly." Specifically, cities and other governmental agencies must respond in writing within five business days of receiving a request by either: (1) providing the record; (2) providing an internet address and link on the agency's web site to the specific records requested; (3) acknowledging receipt of the record and providing a reasonable estimate of the time in which a response will be made; or (4) denying the request. Additional response time beyond five days may be based upon a need to clarify the request, to locate and assemble the records requested, to notify people and agencies affected by the request, or to determine whether any of the requested records are exempt from disclosure. RCW 42.56.520. WAC 44-14-04003 discusses the required timely response and provides some commentary on providing a "reasonable estimate" of the time necessary to respond and on asking for a clarification of the request.

(Link to this question)

How does a town go about selling land it owns? 
Reviewed: 01/15


The procedure for the sale of surplus real property is driven mostly by local policy. The MRSC webpage, Sale of Surplus City or Town Property, has useful information and sample policies, but, generally, here is what MRSC recommends:

  1. Town council passes a resolution declaring the property to be surplus and specifying how the property will be sold.
  2. Town ascertains the fair market value for the property so as not to sell the property for less than its worth (thereby avoiding a gift of public funds issue). 
  3. Proceed with the sale in any commercially reasonable way.

The one caveat to this procedure is that, if the property was originally bought for utility purposes, there is an extra requirement for a public hearing. See RCW 35.94.040.

(Link to this question)

Is a public records officer required to maintain a log of all requests or only in cases where the request is denied? If a general log must be maintained, how detailed must the entries be?
Reviewed: 01/15


Under the Public Records Act (PRA), chapter 42.56 RCW, agencies are required to maintain what's commonly referred to as a privilege or exemption log, but only related to those records for which the agency is claiming an exemption under the PRA. There is no requirement of a "general" log. RCW 42.56.210(3) provides:

Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

The courts have interpreted this statute to require a "privilege log" that identifies each of the records withheld, in whole or in part, and that specifies the exemptions claimed together with a brief explanation of how the claimed exemptions apply to the withheld records. See, e.g., Rental Hous. Ass'n of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009). With respect to records withheld in their entirety, the courts have stated:

The identifying information need not be elaborate, but should include the type of record, its date and number of pages, and, unless otherwise protected, the author and recipient, or if protected, other means of sufficiently identifying particular records without disclosing protected content. Where use of any identifying features whatever would reveal protected content, the agency may designate the records by a numbered sequence.

Progressive Animal Welfare Society v. University of Washington, 125 Wn.2d 243, 217 n.18 (1994). See also the PRA "Model Rules," at WAC 44-14-04004(4)(b)(ii).

Although the PRA doesn't require an agency to keep a log or index of records provided in response to a PRA request, doing so may be advisable, at least in some circumstances, so the agency has a clear record of what was provided and when it was provided. The same section of the PRA Model Rules referenced above, WAC 44-14-04004, addresses this issue as well, as follows:

(6) Documenting compliance. An agency should have a process to identify which records were provided to a requestor and the date of production. In some cases, an agency may wish to number-stamp or number-label paper records provided to a requestor to document which records were provided. The agency could also keep a copy of the numbered records so either the agency or requestor can later determine which records were or were not provided. However, the agency should balance the benefits of stamping or labeling the documents and making extra copies against the costs and burdens of doing so.

If memorializing which specific documents were offered for inspection is impractical, an agency might consider documenting which records were provided for inspection by making an index or list of the files or records made available for inspection.

Note, too, that records related to public records requests themselves are also public records. 

(Link to this question)

What statute allows a city to exempt its B&O tax records from public disclosure? 
Reviewed: 11/14

RCW 35.102.145 allows cities to adopt an ordinance specifically exempting their B&O tax returns and tax information from public disclosure, "in the manner provided by RCW 82.32.330." (RCW 82.32.330 is the primary statute that exempts state tax records from disclosure.) RCW 35.102.145 is incorporated into the PRA through RCW 42.56.230(4).

Note that, if a city fails to adopt a statute specifically exempting their B&O tax records from disclosure, there is no other exemption that can be cited to exempt such records.

(Link to this question)

Does a tax foreclosure sale extinguish recorded easements on the property?
Reviewed: 08/14

 A tax foreclosure sale of property does not extinguish recorded easements in the property.

A statute, RCW 36.35.290, directly addresses this:


The general property tax assessed on any tract, lot, or parcel of real property includes all easements appurtenant thereto, provided said easements are a matter of public record in the auditor's office of the county in which said real property is situated. Any foreclosure of delinquent taxes on any tract, lot or parcel of real property subject to such easement or easements, and any tax deed issued pursuant thereto shall be subject to such easement or easements, provided such easement or easements were established of record prior to the year for which the tax was foreclosed.

(Our emphasis.) See, also, In re Proceedings of King County for Foreclosure of Liens, 117 Wn.2d 77 (1991) (interpreting the former codification of RCW 36.35.290 in RCW 84.64.460: "Under the terms of RCW 84.64.460, the easement is not affected by the sale, but instead the property continues to be subject to the easement."); Olympia v. Palzer, 107 Wn.2d 225, 229 (1986) "By enacting RCW 84.64.460, the Legislature aligned Washington with a number of states which hold that the sale of property for the payment of delinquent taxes does not extinguish easements in the property.").

(Link to this question)

Is a lodging tax advisory committee subject to the Open Public Meetings Act and are its members required to receive Public Records Act training?
Reviewed: 08/14

A lodging tax advisory committee is subject to the Open Public Meetings Act (OPMA) as a "subagency" of the city under RCW 42.30.020(1)(c), which defines public agencies subject to the OPMA to include "[a]ny subagency of a public agency which is created by or pursuant to statute, ordinance, or other legislative act, including but not limited to planning commissions, library or park boards, commissions, and agencies." The committee is also the "governing body" of the subagency.

The members of a lodging tax advisory committee are not required to receive training relating to the Public Records Act (PRA).  Under the "Open Government Trainings Act" (ESB 5964), only elected officials and public records officers must receive training relating to the PRA. The members of the lodging tax advisory committee are required by that legislation to receive training only regarding the OPMA.

(Link to this question)

Is there a disclosure exemption in the public records law for personal information of minors involved in city park and recreation programs?
Reviewed: 05/14


Yes. The 2013 Legislature, in HB 1203, amended RCW 42.56.230(2) to exempt from public inspection and copying personal information relating to:

a child enrolled in a public or nonprofit program serving or pertaining to children, adolescents, or students including but not limited to early learning or child care services, park and recreation programs, youth development programs, and after-school programs.

(Link to this question)

Can a property owner donate land to the city and receive a tax deduction for the donation?
Reviewed: 05/14


In most cases, yes. A gift to a local government entity is tax deductible if it is solely for "public purposes." The IRS Code, at 26 U.S.C §170(c)(1), defines "charitable contribution" (which is tax deductible) to include "a contribution or gift to or for the use of":

A State, a possession of the United States, or any political subdivision of any of the foregoing, or the United States or the District of Columbia, but only if the contribution or gift is made for exclusively public purposes.

Note that a local government - a city, county, or special purpose district - is considered to be a "political subdivision" of the state.

So, when would a gift to a local government not be "for exclusively public purposes"? We're not tax experts, but we would think that most gifts to local governments would be given only for public purposes. The IRS code does not specifically define "public purpose," but it has been interpreted in part to mean that the contribution or gift must not be intended to benefit any particular individual. If a donor has any question about this, he or she should consult a tax expert.

What does a local government need to provide a donor to substantiate the gift for IRS purposes?  See IRS Publication 1771, "Charitable Contributions - Substantiation and Disclosure Requirements."
 

(Link to this question)

When is a public hearing required under state law for the sale of city property?
Reviewed: 04/14

There are only two circumstances that trigger the requirement for a public hearing in state law for the sale of city property. One is for property that is originally acquired for public utility purposes. See RCW 35.94.040. The other is for the sale of property to another governmental entity if the value of the property is more than $50,000. See RCW 39.33.020.

 

Otherwise, it is a policy decision for the city whether to hold a public hearing prior to the sale of such property.

For more information on this topic see our Sale of Surplus City Property or Sale of Surplus County Property webpage

(Link to this question)

Does a walking path or bike trail count as a "public park" as that term is used in the Liquor Control Board regulations for recreational marijuana licensing?
Reviewed: 04/14


No. The Liquor Control Board (LCB) has adopted regulations in Ch. 314-55 WAC to implement I-502. WAC 314-55-050(10) implements Section 6(8) of I-502, which prohibits the LCB from issuing a marijuana license for a location within 1,000 feet of certain uses, such as a primary or secondary school, playground, child care center, library, or public park. And the definition of "public park" in WAC 314-55-010(17) makes it clear that a walking or bike trail is not considered to be a public park for purposes of the 1,000 foot distance requirement:

"Public park" means an area of land for the enjoyment of the public, having facilities for rest and/or recreation, such as a base-ball diamond or basketball court, owned and/or managed by a city, county, state, federal government, or metropolitan park district. Public park does not include trails.

(Link to this question)

Does the Open Public Meetings Act apply to training sessions or team-building exercises involving a governing body?
Reviewed: 03/14

A "meeting" as defined in the Open Public Meetings Act does not occur simply because a quorum of a governing body is gathered together. A training or team-building session would not be a meeting under the Open Public Meetings Act if the governing body (e.g., city council, board of county commissioners) does not discuss agency business or otherwise take action as defined in the Act. Receiving training or engaging in team-building exercises does not inherently require the discussion of agency business. If the governing body is not going to open such a session to the public, it should be made clear that the members of the governing body are not to discuss agency business at the session. Accordingly, where a quorum is present, a member of the governing body should not ask questions during a training or team-building session that implicates a matter of agency business or potential agency business.

(Link to this question)

Could a city or county allow an insurance company to obtain copies of an arson investigation report while the investigation is on-going but deny its release to others?
Reviewed: 02/14

Investigative reports are exempt from disclosure requirements during the course of an investigation. It is, though, an exemption, rather than a prohibition [see WAC 44-14-06002]. So, a city or county could, in its discretion, release such a report to an insurance company, which obviously has an interest in the subject. The record remains exempt, though, and so, release to the insurance company would not require that the report be released to everyone. Obviously, once the investigation is concluded, the exemption would be lost, and the report would be available for review and copying by others.

(Link to this question)

Is a real estate appraisal subject to public disclosure?
Reviewed: 02/14

RCW 42.56.260 provides:

Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, are exempt from disclosure under this chapter. In no event may disclosure be denied for more than three years after the appraisal.

-----

 

 

So, real estate appraisals are protected from disclosure while the sale or purchase is pending. Once the sale is complete, or the sale is abandoned, the appraisal must be disclosed upon request. In no case is it protected for more than three years after the appraisal.

(Link to this question)

How long are job interview notes to be retained?
Reviewed: 02/14

According to the Local Government Common Records Retention Schedule, section 4.11 published by the Office of the Secretary of State, Division of Archives and Records Management, the following should be retained for three years:

RECRUITMENT FILES - Documents recruitment and selection process for each advertised position, including newspaper announcement, job description, working papers/notes, applicant list, interview questions and notes, selection documents, and employee applications.

The three-year requirement is consistent with the limitation of action for EEO discrimination complaints which is set at 3 years. See RCW 4.16.080(2). Test results are also to be retained for three years.

(Link to this question)

Are the addresses and phone numbers of planning commission members exempt from disclosure?
Reviewed: 02/14

A citizen has objected to the city’s disclosure of the addresses and phone numbers of planning commission members, citing as authority RCW 42.56.250(3), which exempts from disclosure the addresses and phone numbers of volunteers and employees of an agency.

It's our opinion that the language "employees or volunteers of a public agency" includes officers of a public agency, which would include planning commission members. Arguably, they could also be considered to be volunteers, since they typically work without pay and they volunteer to be appointed. We don't think the statute requires that an agency employ some sort of test to determine if a position is that of an employee or officer to determine if the exemption applies.

Of course, the existence of the exemption does not mean that the city is prohibited from disclosure; it just means that it can choose to not disclose.

(Link to this question)

Which RCWs or WACs provide that an e-mail is a public record?
Reviewed: 02/14

For purposes of the Public Disclosure Act, the term "public record" is very broadly defined in RCW 42.56.010(2) and includes:

any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any . . . local agency regardless of physical form or characteristics.

RCW 42.56.010(3) contains an equally broad definition of a "writing":

Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

Finally, WAC 44-14-03001(1)states directly that “[a]n e-mail is a ‘writing’.”

For more information on this topic, see MRSC’s Public Records Act webpage.

(Link to this question)

Are there any requirements that town records be "maintained" on the town premises? For example, since the mayor is the person who deals with personnel issues, can he maintain the personnel files in a location separate from town hall due to the need to access them during non-business hours and for privacy reasons?
Reviewed: 02/14

Our position is that the records must remain in the office where they are filed, except for limited circumstances or on a temporary basis. WAC 434-615-020 supports this conclusion; it provides in part:

Unless otherwise provided by law, public records must remain in the legal custody of the office in which they were originally filed, which shall be considered the office of record, or shall be destroyed or transferred pursuant to instructions from the state or local records committee as required by Ch. 40.14 RCW. They shall not be placed in the legal or physical custody of any other person or agency, public or private, or released to individuals, except for disposition pursuant to law or unless otherwise expressly provided by law or by these regulations

This regulation makes it clear that original records should not be allowed to be taken from the office in which they were originally filed, except under certain specific circumstances.

(Link to this question)

Is a hold harmless agreement a guarantee against potential municipal liability?
Reviewed: 02/14

No. It is not possible to say with absolute certainty that the use of a hold harmless agreement will protect a city against all potential liability. The effect of a hold harmless agreement might ultimately need to be decided by the courts, which would likely look at all the facts surrounding the situation, including the position of the individual who signs the hold harmless agreement.

(Link to this question)

How do some cities limit their liability when renting public facilities for private parties?
Reviewed: 02/14

Many cities, such as Bellingham, Issaquah, and Kent, include a statement similar to the following in their rental agreements:

The undersigned agrees to [...] and to save the City harmless for all liability, accident, injury or loss of property resulting from such use of said facility.

Port Angeles Ordinance No. 2405 added a provision to the municipal code to include the requirement that applicants seeking a permit to use the Vern Burton Memorial Community Center for a special event with significant potential liability, as determined by the director, the risk manager, and the city attorney, shall furnish evidence of liability insurance of not less than $300,000 bodily injury per person and $100,000 property damage per incident, covering any bodily injury or property damage arising out of, or in any way connected with, the use of the city facility by the applicants; except claims for damages or personal injuries solely and proximately caused by the city's negligence in maintaining the facility.

(Link to this question)

Does a city have potential liability for injuries sustained by workers on public works projects if the workers are employed by a contractor?
Reviewed: 02/14

The issue was raised by the caller after he reviewed wording in Stute v. PBMC, Inc., 114 Wn.2d 454 (1990) and Weinert v. Bronco National Co., 58 Wn.App. 692 (1990). These cases do contain some wording supporting the liability of an owner or developer of property for failure to maintain safe working conditions. Further research indicates that the courts have subsequently only held property owners liable for injuries sustained by workers in limited situations. See, for example, Smith v. Myers, 90 Wn. App. 89, 950 P.2d 1018 (1998). Though that case dealt with a residential property owner, the wording indicates how the courts are approaching this issue:

 

A property owner who hires an independent contractor to perform work on the property has a duty to provide a safe workplace for the contractor's employees under the "retained control" exception only if the owner has actual control over the workplace and affirmatively assumes responsibility for project safety. Indicators of actual control and assumption of responsibility include (1) the giving of directions regarding workplace safety or construction techniques, (2) the contractual assumption of responsibility for workplace safety or for the supervision of the contractor's employees, and (3) acts or conduct that affirmatively increases the employees' risk. The per se control of property by an owner who does not meet the RCW 49.17.020(4) definition of "employer" is an insufficient reason alone to apply the "retained control" exception.

[from the case headnotes]

All public works contracts should contain provisions making it clear that the contractor is responsible for the safety of all workers on the site and following all WISHA regulations. The situation is not changed merely because the city has a building inspector or project engineer reviewing the contractor's work to see that it meets the contractual requirements.

 

(Link to this question)

Is there potential liability for speed bump use?
Reviewed: 02/14

The general view is that speed bumps expose a city to liability. The current trend is to use speed "humps" or "swales," which are less likely to cause problems for motorists and bicyclists. There is an attorney general's opinion on the use of speed bumps on a state highway (AGO 1967, No. 12) and MRSC has articles and previously written inquiries available on the subject.

(Link to this question)

Are cities usually liable for accidents that occur on sidewalks because of ice and snow?
Reviewed: 02/14

No. Normally a city or town is not liable for an accident that occurs due to a slip on a sidewalk because of ice or snow. The general rule is that the natural and ordinary accumulation of snow and ice on a sidewalk does not create municipal liability for injuries which may occur because of the hazardous condition.

19 E. McQuillin, Municipal Corporations SS 54.84 states:

Ordinarily, snow or ice upon a sidewalk is not to be classed with dangerous obstructions such as a municipality is required to remove. It is generally held that a natural and ordinary accumulation of snow and ice on sidewalks creates no municipal liability for injuries occasioned thereby, unless with respect thereto the municipality is in some manner negligent by disregarding its obligation to exercise ordinary care to keep its sidewalks in fit condition for usual travel. . . .

. . . Municipal liability may arise if the snowy or icy sidewalk itself was defective, or the ice or snow, formed into ridges, drifts or hillocks, amounted to a dangerous obstruction to travel, the element of knowledge being shown.

The authorities indicate that the rules of liability vary from state to state. One of the first cases in Washington is Calder v. Walla Walla, 6 Wash. 377, 33 P. 1054 (1893), where the court states at page 378:

The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk. If the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care, there is no liability. . . .

. . . [T]here was . . . testimony which showed that the accident was due to the slipperiness and smoothness caused by the ice upon the walk; and the defendant's first instruction, requesting the court to instruct the jury that "mere slipperiness of the sidewalk, occasioned by ice or snow, not being accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned
thereby," should have been given, . . .

There could be an unusual circumstance in which the city by its actions some-how increased the risk to pedestrians and this might involve potential city liability but this would not be typical. Also, some cities have enacted local ordinances which specify that it is the duty of the abutting property owner to clear the sidewalk of ice and snow but this is not required in order to relieve the city of potential liability in most situations.

(Link to this question)

Does the filing of a claim with a city toll the statute of limitations for the 60-day claim period?
Reviewed: 02/14

Yes. The statute of limitations is tolled during the 60-day claim filing period. So a claimant actually has three years plus 60 days to file a lawsuit. This is specified in RCW 4.96.020:

No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty day period.  For the purposes of the applicable period of limitations, an action commenced within five court days after the sixty calendar day period has elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed.

(Link to this question)

Does the recreational immunity statute, RCW 4.24.210, apply if the city charges a fee for the use of water in a water play area?
Reviewed: 02/14

Probably not. RCW 4.24.210(1) states as follows:

Except as otherwise provided in subsection (3) of this section, any public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, paragliding, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

A 2000 court of appeals decision applying this statute, Plano v. Renton, 103 Wn. App. 910 (2000), is instructive. As the Plano court emphasizes:

The question under Washington's statute, however, is not whether Plano actually paid a fee for using the moorage, or whether Renton actually charged a fee to the person injured. The question is whether Renton charges a "fee of any kind" for using the moorage. This statutory language needs no interpretation as it is unambiguous. The statute simply states that there is no immunity if the owner charges a "fee of any kind". Thus, if a person is using the water play area and paying a fee for use of the water, there is no immunity under the statute with respect to injuries sustained while using the water play area. Our understanding is that the water play area cannot be used without water, and you need to pay a fee to get water. Thus, there is no immunity under this statute.

(Link to this question)

Several questions on municipal liability associated with snow and ice on sidewalks
Reviewed: 02/14

  1. Can a city or town pass an ordinance that requires property owners abutting sidewalks to keep the sidewalks clear of snow and ice? If so, on what authority?

    Yes. The police power, set out at art. 11, sec. 11 of the state constitution, supports such legislation, as does RCW 35.22.280(7) for first class cities, RCW 35.23.440(1) and (33) for second class cities, RCW 35.27.370(4) and (16) for towns, and RCW 35A.11.020 and 35A.21.160 applying to code cities. See Rivett v. Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994). Many municipalities, in fact, have adopted ordinances requiring adjacent landowners to maintain their sidewalks.

     

  2. Does a city or town have a duty to maintain its sidewalks in a safe condition, and if so, on what authority?

    Here are a few cases that set out the basic rule. The court in Nelson v. Tacoma, 19 Wn. App. 807, 577 P.2d 986 (1978), citing a Minnesota decision, states:

    Ordinarily, where there are sidewalks for pedestrian travel which are passable, a municipality is under a very slight duty, if any, to keep its streets in reasonably safe condition for pedestrian travel except at crosswalks; however, if the sidewalks are impassable so that pedestrians must walk in the street, a municipality is under a duty to keep its streets in the vicinity of the said sidewalks in reasonably safe condition for pedestrian travel.

    In Owens v. Seattle, 49 Wn.2d 187, 191, 299 P.2d 560, 61 A.L.R.2d 417 (1956), it was stated:

    A municipality is not an insurer against accident nor a guarantor of the safety of travelers. It is, however, obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety. . . . Where this duty is not fulfilled, the municipality is negligent . . .

    The court in Kennedy v. Everett, 2 Wn.2d 650, 99 P.2d 614 (1940), states:

    [W]hile a city must use all reasonable care in keeping its sidewalks reasonably safe for travel, it is not an insurer.

     

  3. Does the duty to maintain its sidewalks include snow/ice removal?

    This question can be answered by reference to Nelson v. Tacoma, 19 Wn. App. 807, 808, 577 P.2d 986 (1978):

    As to sidewalks, in 19 E. McQuillin, Municipal Corporations, SS 54.84 (3d ed. 1967), it is stated:

    Ordinarily, snow or ice upon a sidewalk is not to be classed with dangerous obstructions such as a municipality is required to remove. It is generally held that a natural and ordinary accumulation of snow and ice on sidewalks creates no municipal liability for injuries occasioned thereby, unless with respect thereto the municipality is in some manner negligent by disregarding its obligation to exercise ordinary care to keep its sidewalks in fit condition for usual travel. . . .

    . . . Municipal liability may arise if the snowy or icy sidewalk itself was defective, or the ice or snow, formed into ridges, drifts or hillocks, amounted to a dangerous obstruction to travel, the element of knowledge being shown.

    The authorities indicate that the rules of liability vary from state to state. One of the first cases in Washington is Calder v. Walla Walla, 6 Wash. 377, 33 P. 1054 (1893), where the court states at page 378:

    The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk. If the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care, there is no liability. . . .

    . . . [T]here was . . . testimony which showed that the accident was due to the slipperiness and smoothness caused by the ice upon the walk; and the defendant's first instruction, requesting the court to instruct the jury that "mere slipperiness of the sidewalk, occasioned by ice or snow, not being accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby," should have been given, . . . (Citations omitted.)

     

  4. If a city or town passes an ordinance requiring abutting property owners to remove snow/ice from sidewalks, can they be held liable for failure to enforce such an ordinance?

    As a general rule, no. See, generally, Torres v. City of Anacortes, 97 Wn. App. 64, 981 P.2d 891 (1999)and Honcoop v. State, 111 Wn.2d 182, 759 P.2d 1188 (1988). 91 (1999).

     

  5. If a city or town passes an ordinance described in # 1 above, can they apply it only to the downtown business district (thus distinguishing/discriminating between business owners and residential property owners)?

    We are not aware of any specific authority, but it appears that distinguishing residential neighborhoods from a downtown area is reasonable. There clearly is more pedestrian and vehicular traffic downtown than there is in a residential area and thus there is a greater need for the city to regulate. In addition, since the business owners have potential liability, one would think that they would not object too loudly.

 

(Link to this question)

What is the law regarding overbroad public disclosure requests?
Reviewed: 02/14

The idea that a public disclosure request can be overbroad was established in case law, though it was tempered subsequently in the Public Disclosure Act (PDA). In Hangartner v. City of Seattle, 151 Wn.2d 439, 448 (2005), the state supreme court held as follows:

We agree with the Court of Appeals that a government agency need not comply with an overbroad request. We reach that determination because if a requesting party could meet the PDA's requirement of identifying the desired documents by requesting all of an agency's documents, the identification requirement would be essentially meaningless. We will not interpret a statute in a manner that leads to an absurd result. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). The PDA was enacted to allow the public access to government documents once agencies are allowed the opportunity to determine if the requested documents are exempt from disclosure; it was not enacted to facilitate unbridled searches of an agency's property. We hold, therefore, as did the Court of Appeals in Wood, that a proper request under the PDA must identify with reasonable clarity those documents that are desired, and a party cannot satisfy this requirement by simply requesting all of an agency's documents.

In response to the Hangartner decision, the legislature in 2005 amended RCW 42.56.080 by adding that "Agencies shall not deny a request for identifiable public records solely on the basis that the request is overbroad." The state attorney general's office, in its "Model Rules for Public Disclosure," is a bit more helpful; WAC 44-14-04002(3) states:

An agency cannot "deny a request for identifiable public records based solely on the basis that the request is overbroad." RCW 42.17.270/42.56.080. However, if such a request is not for identifiable records or otherwise is not proper, the request can still be denied. When confronted with a request that is unclear, an agency should seek clarification.

(Link to this question)

If a requester of public records asks that paper documents be scanned and made into PDF files so they can be emailed to him, must the city do this? If so, what can the city charge for this?
Reviewed: 02/14

In our opinion, if the city has the technological capability (i.e., if it has a scanner), it should comply with this request for conversion of paper documents into PDF files. This conclusion is supported by the model rules, specifically WAC 44-14-05002(2)(c)(i), dealing with "reasonably locatable" and "reasonably translatable" electronic records:

Agency has paper-only records. When an agency only has a paper copy of a record, an example of a "reasonably translatable" copy would be scanning the record into an Adobe Acrobat PDF file and providing it to the requestor. The agency could recover its actual cost for scanning. See WAC 44-14-07003. Providing a PDF copy of the record is analogous to making a paper copy. However, if the agency lacked a scanner (such as a small unit of local government), the record would not be "reasonably translatable" with the agency's own resources. In such a case, the agency could provide a paper copy to the requestor.

As to what the city may charge for scanning, WAC 44-14-07003 provides:

Charges for electronic records. Providing copies of electronic records usually costs the agency and requestor less than making paper copies. Agencies are strongly encouraged to provide copies of electronic records in an electronic format. See RCW 43.105.250 (encouraging state and local agencies to make "public records widely available electronically to the public."). As with charges for paper copies, "actual cost" is the primary factor for charging for electronic records. In many cases, the "actual cost" of providing an existing electronic record is de minimis. For example, a requestor requests an agency to e-mail an existing Excel spreadsheet. The agency should not charge for the de minimis cost of electronically copying and e-mailing the existing spreadsheet. The agency cannot attempt to charge a per-page amount for a paper copy when it has an electronic copy that can be easily provided at nearly no cost. However, if the agency has a paper-only copy of a record and the requestor requests an Adobe Acrobat PDF copy, the agency incurs an actual cost in scanning the record (if the agency has a scanner at its offices). Therefore, an agency can establish a scanning fee for records it scans. Agencies are encouraged to compare their scanning and other copying charges to the rates of outside vendors. See WAC 44-14-07001.

So, the city here, which has a scanner, should adopt a scanning fee based on the actual costs incurred in scanning documents.

(Link to this question)

Must a local government provide a list of its employees with position titles and salaries if it is not to be used for commercial purposes?
Reviewed: 02/14

Yes, local governments are required to provide records containing that information, as it is not exempt from disclosure. The issue of using the information for commercial purposes does not apply to a listing of local government employees, where no home addresses or telephone numbers are provided (as those are exempt from disclosure). The prohibition on providing "lists of individuals" for commercial purposes in RCW 42.56.070(9) is directed at the potential problem of the recipient of the list commercially soliciting from the list - contacting the individuals at their residences. As stated in AGO 1975 No. 15, the intent of this statutory prohibition is:

to prohibit an agency covered by the law from supplying the names of natural persons in list form when the person requesting such information from the public records of the agency intends to use it to contact or in some way personally affect the individuals identified on the list and when the purpose of the contact would be to facilitate that person's commercial activities.

Any such commercial incentive would not be facilitated by providing a list of employees, position titles, and salaries. So, the local government should not ask whether the requester here intends to use the list for commercial purposes.

(Link to this question)

May the county charge the 15 cents a page copying cost as authorized in state law and also add a charge for staff time spent making copies?
Reviewed: 02/14

No. RCW 42.56.120 provides that an agency may charge fifteen cents a page for photocopies of public records. This 15 cents already includes the staff time to make the copies.

However, the county is authorized to charge more than fifteen cents a page if it can demonstrate that the actual costs for copying exceed 15 cents. Theoretically, there is no upper limit on this charge except that it can only be based on actual costs. There is more guidance in RCW 42.56.070(7) on what may be included in the actual per page cost. The county may include all costs directly incident to copying, including the actual cost of the paper and the per page cost for use of county copying equipment. The county may include all costs incident to shipping such public records. The county may not include staff salaries, benefits or other administrative or overhead charges, unless those costs are directly related to the actual cost of copying the public records. Staff time to copy and mail the records may be included in an agency's costs. The actual costs cannot, however, include staff time to locate and produce the records for inspection.

Also see WAC 44-14-070 and the comments to WAC 44-14-070.

(Link to this question)

Can a city, county or special district print out e-mail records that need to be maintained, and then just delete the actual e-mails?
Reviewed: 02/14

No.  Electronic records, such as e-mails, need to be maintained in the original format.  When e-mails are printed metadata is lost.  See WAC 434-662-040.

(Link to this question)

May an agency require public disclosure requestors to provide their names and contact information?
Reviewed: 02/14

When an agency cannot provide the records requested by an in-person request immediately, the agency will obviously need contact information. Oral requests, without more, are problematic in any event. As noted by the court Beal v. City of Seattle, 150 Wn. App. 865, 874-75 (2009):

Conceding that individuals may make oral requests for public records, the City also cites to the attorney general's comments under the PRA model rules for the proposition that oral requests are "problematic." While the model rules are not binding on the City, we agree that they contain persuasive reasoning. As this case demonstrates, orally requesting public records makes it unnecessarily difficult for citizens to prove that they in fact requested public records.

(Footnotes omitted.)

If the agency receives an email request and the only contact information is an email address that has no relation to the requestor’s name, the agency probably may not insist that the requestor provide his/her name; it is in most cases not necessary information for the agency to respond to the request.

However, in general, an agency should, for its own recordkeeping purposes and to help ensure proper processing of disclosure requests, have a request form that asks for name and contact information. We just don’t think the agency can require, as a condition of disclosure, that the requestor provide his or her name, if that information is not necessary for the agency to be able to respond to the request. The model rules at WAC 44-14-03006 addess disclosure request forms, but do not directly address whether an agency may insist on the requestor providing his/her name:

An agency should have a public records request form. An agency request form should ask the requestor whether he or she seeks to inspect the records, receive a copy of them, or to inspect the records first and then consider selecting records to copy. An agency request form should recite that inspection of records is free and provide the per-page charge for standard photocopies.

An agency request form should require the requestor to provide contact information so the agency can communicate with the requestor to, for example, clarify the request, inform the requestor that the records are available, or provide an explanation of an exemption. Contact information such as a name, phone number, and address or e-mail should be provided. Requestors should provide an e-mail address because it is an efficient means of communication and creates a written record of the communications between them and the agency. An agency should not require a requestor to provide a driver's license number, date of birth, or photo identification. This information is not necessary for the agency to contact the requestor and requiring it might intimidate some requestors.

(Link to this question)

May the city direct citizens to the county website where interlocal agreements are posted to satisfy a public record request?
Reviewed: 02/14

In our opinion, this would not be a valid response under the Public Records Act (PRA). RCW 42.56.520 was amended in 2010 and now allows a public agency, as a valid response to a public records request, to provide the inquirer with the Internet address and link on the agency’s web site to the records requested. However, in your case, the document is not on your web site but is on the county’s web site.

This may seem like a technical violation, but we are very cautious about anything involving compliance with the PRA that is anything less than strict compliance with the requirements. So, you need to provide the requestor with a paper copy or else post it on your own web site and then provide them with that link. Sending a requestor to the county web site is not a valid response under the PRA.

(Link to this question)

Must a local government comply with a public records request for "all future" information regarding what has been requested?
Reviewed: 02/14

No, a local government is not required to comply with a request to provide records in the future that don't currently exist. The Attorney General’s "Model Rules" regarding the Public Records Act addresses this issue at WAC 44-14-04004(4)(a) as follows:

An agency must only provide access to public records in existence at the time of the request. An agency is not obligated to supplement responses. Therefore, if a public record is created or comes into the possession of the agency after the request is received by the agency, it is not responsive to the request and need not be provided. A requestor must make a new request to obtain subsequently created public records.

The reasoning is that a record that may be created in the future is not a public record at the time of the request. Clearly, it would be quite a burden on public agencies if they were required to comply with such requests for records that may be created in the future.

So, the only obligation on the part of the agency is to produce records that exist at the time the request is made.

(Link to this question)

May a city or county charge more than 15 cents per page for color copies?
Reviewed: 01/14

A city or county may charge no more than 15 cents a page unless it has determined the actual per page cost is more. If the city or county determines that the actual per page cost of a color copy is, say, 20 cents, it may charge that amount for color copies. RCW 42.56.120 provides in part as follows:

Agency charges for photocopies shall be imposed in accordance with the actual per page cost or other costs established and published by the agency. In no event may an agency charge a per page cost greater than the actual per page cost as established and published by the agency. To the extent the agency has not determined the actual per page cost for photocopies of public records, the agency may not charge in excess of fifteen cents per page.

For information on establishing per page charges, see WAC 44-14-07001 ("General rules for charging for copies"), one of the Attorney General's "Model Rules" for public records disclosure. Note that, at subsection (3) ("Charges for copies other than standard photocopies"), this regulation provides:

Nonstandard copies include color copies, engineering drawings, and photographs. An agency can charge its actual costs for nonstandard photocopies. RCW 42.56.120, formerly RCW 42.17.300.

So, as long as a city or county establishes the actual cost for color copies it may charge that cost.

(Link to this question)

What is the retention period for a video recording made by a camera in a police car for routine traffic stops?
Reviewed: 01/14

The retention period for such video recordings is 90 days. The Law Enforcement Records Retention Schedules, Version 6.1 (January 2013), provides in "Case Management" section 8.1, that recordings from mobile units, when the recording does not relate to a specific case investigation (no arrest or noteworthy incident), the retention period is 90 days. After 90 days, the tape can be reused. If the recording from the mobile unit relates to an incident that led to an arrest, the record must be retained until the matter is resolved and until exhaustion of the appeal process - see section 8.1 - and also see RCW 9.73.090(1)(c).

(Link to this question)

May a public records request be satisfied by providing an internet address and link on the agency's web site to the specific records requested?
Reviewed: 01/14

Yes, except if the requestor notifies the agency that he or she cannot access the records through the internet.  In that case the agency must provide copies of the record or allow the requestor to view copies using an agency computer.  This change was made to RCW 42.56.520 in 2010.

(Link to this question)

Must city and county governments disclose private e-mail addresses and residential addresses found in correspondence it receives, or may it redact such information?
Reviewed: 01/14

In our opinion, they must disclose such information. While the Public Records Act statutes exempt the disclosure of personal e-mail addresses and residential addresses of an agency's employees and volunteers contained in an agency’s personnel records (see RCW 42.56.250), there is no general exemption for e-mail addresses or residential addresses that are part of correspondence sent to a city or county.

(Link to this question)

May cities and counties impose their regular photocopy charges when responding to a public disclosure request for copies of their civil service rules?
Reviewed: 01/14

No. State law requires that cities and counties provide copies of police or fire civil service rules to the public for free. See RCW 41.08.040(1) and RCW 41.12.040(1), pertaining to fire and police civil service in cities, and RCW 41.14.060(1), pertaining to civil service for the sheriff's office in counties, which provide that the civil service rules and regulations "shall be printed, mimeographed or multigraphed for free public distribution."

 

For more information on this topic, see our MRSC Inquiries - Public Records and Public Records Disclosure webpages.

(Link to this question)

Must copies of public records be provided at no cost if requestor says he/she cannot afford the cost?
Reviewed: 01/14

There is no provision in the Public Records Act that exempts indigent persons from having to pay for copies of public records pursuant to a PRA request. A public agency could adopt a policy to that effect; however, unless it puts an upper limit on that number, it would be opening itself up to providing to indigent persons any number of copies at no charge. Also, any such policy should require proof of indigent status, as that may be defined in the policy.

For more information on this topic, see the Public Records Act webpage.

(Link to this question)

Are building plans submitted by a developer for approval by the local government considered disclosable information?
Reviewed: 01/14

Building plans submitted to a local government for approval are considered public records and copies should be given to individuals requesting them. There is no PRA exemption that applies to such plans. If a municipality has reason to believe that the developer may object to the disclosure of the plans, the municipality has the option of notifying the developer before disclosure so that the developer can attempt to obtain a court order prohibiting disclosure -- see RCW 42.56.540.

(Link to this question)

Are police-prepared accident reports subject to public disclosure?
Reviewed: 01/14

Traffic accident reports prepared by law enforcement officers and held by law enforcement agencies are subject to disclosure so long as the data was not compiled and collected in connection with application for federal highway funds pursuant to 23 U.S.C. §152. Those same reports, when collected and compiled by another local agency department to assist with application for §152 funds are privileged, pursuant to 23 U.S.C. §409.  Pierce County v. Guillen, 537 U.S. 129 (2003) reversed Guillen v. Pierce County, 144 Wn.2d 696 (2001), and supercedes the advice in a 2001 Attorney General Opinion (2001 Att'y Gen. Op. No. 8).

For additional analysis of this complex issue we recommend that you review "Pierce County v. Guillen: Practical Answers to Privileged Questions", Daniel R. Hamilton, Gonzaga Law Review, Vol. 39, No.2, 2003/04.

(Link to this question)

Is the address of a former employee exempt from public disclosure after the employee has ceased to be employed by the city or county?
Reviewed: 01/14

Yes. RCW 42.56.250(3) exempts from public disclosure an employee's residential address and telephone number. The state court of appeals in Seattle Fire Fighters Union v. Hollister, 48 Wn. App. 129 (1987), held that the public employee disclosure exemption continues even after the employee has retired. The court reasoned that the legislative intent of an exemption to protect the privacy rights of public employees logically leads to the conclusion that the exemption does not terminate upon retirement.

 

For more information on this topic, see our Public Records Act webpage

(Link to this question)

 Is a letter of reprimand in an employees personnel file a public record that must be disclosed?
Reviewed: 01/14

Yes, if it relates to misconduct on the job. The test is whether the record would be highly offensive to a reasonable person and is not of legitimate concern to the public. Since it relates to misconduct, it is of legitimate concern to the public and must be released. See Dawson v. Daly, 120 Wn.2d 782 (1993) and Cox v. Roskelley, 359 F.3rd 1105 (9th Cir. 2004).  In the latter case both parties agreed that a Notice of Termination letter placed in the employee's personnel file was not exempt from disclosure.  On a related issue, the Cox court stated:

We now hold explicitly that placement of the stigmatizing information in Cox’s personnel file, in the face of a state statute mandating release upon request, constituted publication sufficient to trigger Cox’s liberty interest under the Fourteenth Amendment. The lack of an opportunity for a name-clearing hearing violated his due process rights.

For more information on this topic, see our Public Records Act webpage.

(Link to this question)

Are the names of finalists for a city manager position open to public inspection?
Reviewed: 01/14

No. RCW 42.56.250(2) exempts from public inspection and copying all applications for public employment, including the names of applicants, resumes, and other related materials.

 

For more information on this topic, see our Public Records Act Web page.

(Link to this question)

How long must a city or county retain the minutes of advisory boards, committees or commissions?
Reviewed: 01/14

The Local Government Common Records Retention Schedule (CORE), version 3.1 (December, 2014), provides in section 1.10 that such records shall be retained for six years, and have potential archival value, so your regional archivist should be contacted before disposing of the records.

For more information on this topic, see the following:

 

(Link to this question)

Does the public disclosure exemption for names of persons who file complaints apply to a complaint filed with the planning department about a land use violation?
Reviewed: 01/14

Yes, we believe it would apply to protect the name of the complainant from disclosure. RCW 42.56.240 exempts from disclosure information revealing the identity of persons who are witnesses to or victims of crimes or who file complaints with investigative, law enforcement, or penology agencies if disclosure would endanger any person's life, physical safety or property. If at the time the complaint is filed, the complainant indicates a desire for nondisclosure, such desire shall govern.

 

The issue is whether a complaint filed with a city planning department could qualify under this exemption, and specifically whether a planning department can constitute an "investigative agency." In this case, the planning department does have specific authority to investigate complaints and issue fines, seek abatement or seek criminal penalties, and, as such, we believe it would qualify as an investigative agency. The intent of the statute is to encourage citizens to file complaints as necessary and be assured that their safety will be protected. This intent is furthered by considering a planning department as being an investigative agency for purposes of the public disclosure law.

One case that supports this conclusion is Tacoma News v. County Health Department, 55 Wn. App. 515 (1989). In that case, the court specifically held that a health department is an investigative and law enforcement agency. This is not precisely analogous but it does indicate that investigative agencies are not limited to police departments or other strictly criminal justice agencies.

(Link to this question)

Request for sample electronic records management policies.
Reviewed: 01/14

Most Washington local government electronic records management policies are based on the Washington State Archives requirements and records retention schedules for local governments. The State Archives has issued several useful publications, including the guidelines for electronic mail policies and records management (see links below). While an electronic records management policy generally addresses the retention of all electronic records, in practice many of these policies deal primarily with E-mail. Sometimes local government network use and Internet use are covered as well.

The following are issues that are appropriately addressed in an electronic records management policy:

  • Creation of records
  • Proper and improper uses (especially related to E-mail and Internet use)
  • Public disclosure, privacy/confidentiality, and other legal issues
  • Records retention requirements
  • Maintenance and management of records
  • Retrieval of electronic records
  • Monitoring of records and enforcement of policy (including city's right to access)
  • Security.

Such policies typically include a purpose and definitions sections. Other specific topics may include use of electronic signatures, geographic information systems, and copyright.

Rules have been adopted regarding the preservation of electronic records - see Ch. 434-662 WAC.  The State Archivist Office has prepared a list of "Frequently Asked Questions for Digital WAC 434-662"; that document also answers questions regarding archiving of local government electronic records at the state digital archives. 

Washington State and Local Government Information

Policies from Other States

(Link to this question)

How are the five business days calculated in RCW 42.56.520, which relates to responding to public record requests?
Reviewed: 01/14

RCW 42.56.520 provides that a response to public records request must be made by the agency within five business days. The question is whether the day the request is received counts as one of the five days.

 

This office has taken the position that the day the request is received does not count as one of the five days. As additional support for that conclusion, RCW 1.12.040 provides:

The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last, unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded.

This statute appears to be of general application throughout the state statutes.

Additional indirect support exists in the case of Limstrom v. Ladenburg, 98 Wn. App. 612 (1999). That case involved a public records request. The request was received on Tuesday, February 3, 1998 and the county responded on Friday, February 6, 1998. The court indicated that the response was made on the third day within the five day time period, which means the court was not counting the day the request was received.

(Link to this question)

If a city or county intends to rebid a public works project after all bids have been opened and rejected, must the previously rejected bid documents be disclosed in response to a request for public disclosure?
Reviewed: 01/14

Yes. There is no exception to public disclosure that would exempt the bid documents from disclosure (except for proprietary information that might qualify under RCW 42.56.270).

(Link to this question)

Is a list of individual county or city employee workplace e-mail addresses exempt from public disclosure?
Reviewed: 01/14

No, there is no statutory exemption from public disclosure that would apply here. Since these are workplace and not home e-mail addresses, there are no personal privacy implications. The e-mail list is really no different than a list of work telephone extension numbers.  Personal e-mail addresses of public employees are exempted from disclosure by RCW 42.56.250.

(Link to this question)

Is a local government agency required to respond to a public records disclosure request electronically? Specifically, if a requestor asks that copies of specific public records be faxed, e-mailed, or provided via diskette, must the city respond as requested?
Reviewed: 01/14

If a person requests that electronic records be provided in electronic format, the city is required to provide the records in electronic format. O'Neill v. Shoreline, 145 Wn.App. 913 (2008). The PRA requires agency rules to "provide for the fullest assistance to inquirers." RCW 42.56.100.

If paper records are requested in electronic format, a local government agency is not required to transfer the printed records to electronic format. An agency is not obligated to create a new record to satisfy a records request. Smith v. Okanogan County, 100 Wn.App. 7, 13 (2000). See also WAC 44-14-04003(5). If it is easier for staff to respond electronically, that is certainly encouraged. An agency can charge for the cost of electronic scanning of a paper records.

(Link to this question)

What can a city charge for providing copies of public records?
Reviewed: 01/14

Cities are not allowed to charge for the staff time spent in locating a public record, or for making a record available for inspection. A city can however, charge for the actual costs connected with copying public records, including the staff time spent making the copies. A city cannot charge more than fifteen cents a page for photocopying unless the city has calculated its actual costs per page (including staff time, paper, etc.) and determined that they are greater than fifteen cents. Actual costs for postage and delivery can be included, as well as the cost of any envelopes. If a city has to pay an outside source for making duplicates of records such as photographs, blueprints or tape recordings, the city can also pass those costs on to the requestor. RCW 42.56.070(7), (8) and RCW 42.56.120.  See also WAC 44-14-070 and the Comments to that WAC, beginning with WAC 44-14-07001.

(Link to this question)

What is a public record?
Reviewed: 01/14

 

The state statutes define "public record" quite broadly. "`Public record' includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010(2).

The term "writing" encompasses a wide range of communication forms or representation. Writing includes, but is not limited to, any form of letters, words, pictures, sounds, or symbols and all papers, maps, tapes, films, prints, motion picture, film, and video recordings. RCW 42.56.010(3).

(Link to this question)

Does a councilmember have greater access to public records than the public?
Reviewed: 01/14

As a general rule, a councilmember has greater access to public records than does the public. However, a councilmember's access should relate to the duties of that office.  For instance, a councilmember should not be given access to medical records of employees.

(Link to this question)

What public records are exempt from disclosure?
Reviewed: 01/14

In general, public records that are exempt from public disclosure are those in the categories listed in Ch. 42.56 RCW, Sections 210 through 480. Reference must be made to these statutes to determine on a case-by-case basis whether a particular record is exempt. (Examples of a few commonly encountered exemptions are discussed in questions below.) When a city denies a request for disclosure of a public record, it must identify the specific statutory exemption upon which the denial is based and it must provide a brief explanation of how that exemption applies. RCW 42.56.210(3).

It should be kept in mind, however, that certain statutes outside of the public records law also prohibit disclosure of particular records. For a complete listing of those statutes, see appendix C of MRSC's Public Records Act for Washington Cities, Counties and Special Purpose Districts.

(Link to this question)

Is personal information contained in employee personnel files exempt from disclosure?
Reviewed: 01/14

It depends on the nature of the information in these records. Residential addresses, residential phone numbers, personal e-mail addresses, social security numbers, information regarding dependents, etc. are all exempt.  See RCW 42.56.250(3).

RCW 42.56.230(2) exempts employee records records "to the extent disclosure would violate [the employee's] right to privacy." What constitutes a violation of a person's right to privacy is defined by statute to mean the disclosure of information that would be (1) "highly offensive to a reasonable person" and (2) "not of legitimate concern to the public." RCW 42.56.050. This is a stringent test, and it is unlikely that the disclosure of most records found in personnel files would violate an employee's right to privacy, as defined by this statute.

Medical records of employees are PROHIBITED from disclosure by the statutes in chapter 70.02 RCW.

(Link to this question)

Must a city disclose records which reveal the salary and benefits that a particular employee or official receives?
Reviewed: 01/14

Yes. There is no disclosure exemption that applies to such records.  Records showing the gross wages paid to each employee each pay period are not exempt.  Employee voluntary deductions from salary are exempt.  The public has no legitimate need to know, for example, how much an employee donates monthly to a United Way campaign, or how much an employee contributes voluntarily to a retirement plan or "cafeteria-type" program.

(Link to this question)

Must a city disclose utility billing records?
Reviewed: 01/14

Yes. No exemption applies. However, the city should not disclose the residential addresses and telephone numbers of utility customers that may be contained in such records. RCW 42.56.330.

(Link to this question)

Must a city provide public records if they are being requested for commercial purposes?
Reviewed: 01/14

In addition to the statutory exemptions from disclosure that a city must consider in responding to a particular request, a city is prohibited from providing or giving access to "lists of individuals" if requested for commercial purposes. RCW 42.56.070(9). The Attorney General's Office has interpreted this provision to refer only to lists of natural persons, rather than, for example, to lists of businesses. Public records other than "lists of individuals" requested for commercial purposes should be provided upon request if they are not statutorily exempt from disclosure.

(Link to this question)

When should draft council minutes be made available to the public?
Reviewed: 01/14

Draft minutes should probably be made available to members of the public when completed, even though not yet approved by the council. It might be argued that RCW 42.56.280 exempts draft minutes; however, the draft minutes presumably do not include the clerk's "opinions" or proposed policies. Since the policy behind the public records act is that its terms are to be "liberally construed" to allow for complete access to public records, the safest approach is to allow the public access to the draft minutes. The minutes should be clearly marked as being "draft" and "without council review and approval."

(Link to this question)

May town disclose record containing a list of town businesses if requested for a commercial purpose?
Reviewed: 01/14

Yes. Based on an attorney general's opinion, the statutory prohibition on disclosing "lists of individuals" if requested for commercial purposes [see RCW 42.56.070(9)] applies only to lists of "natural persons," and thus, does not apply to lists of businesses. 

(Link to this question)

May some public records be stored in private buildings?
Reviewed: 01/14

Yes.  Public records are the property of the local government agency that created them, and should be stored in a secure and efficient way. Public records may be stored in any public building or even in a private, rented records storage facility. The security of the records must be maintained wherever they are stored.  Becuase of the need to access records quickly when responding to a request for disclosure, it would be unwise to store public records in a location that makes access difficult or time consuming.

See WAC 434-615-020, which requires that records generally be stored in the public buildings of the agency where they were originally filed.

(Link to this question)

Must records of a local government agency be copied for free for nonprofit organizations?
Reviewed: 01/14

No. The public records law allows a local government agency to recover a reasonable charge for providing copies of public records to any person. This applies to nonprofit corporations as well as private citizens or businesses. The charge may not exceed the amount necessary to reimburse the agency for its actual costs and may not include staff time needed to retrieve the documents.  If local government staff waive the agency's disclosure copying fee for non-profit organizations that request copies of public records, the agency could be violating the "gift clause" of the state constitution, article VIII, section 7.

(Link to this question)

Are informal notes prepared and kept by the mayor or councilmembers public records that are exempt from disclosure?
Reviewed: 01/14

Informal notes prepared by a public official for his or her own convenience, maintained in a way that indicates a private purpose, and not intended for circulation or distribution within the agency, would most likely be considered personal and not public records. As such, they would not be subject to disclosure upon request by a member of the public.  See Yacobellis v. Bellingham, 55 Wn. App. 712 (1989).

(Link to this question)

Should salaries of public employees be disclosed upon request?
Reviewed: 01/14

Yes. Salaries (and the gross wages paid each pay period before deductions) of all public officials and public employees must be disclosed. Personal information regarding public employees, such as home address, phone number, social security number, etc., should not be disclosed.  No exemption applies to salaries.  The exemption for public employee personal information is RCW 42.56.250.

(Link to this question)

Must the city disclose the name of the complainant on a nuisance complaint?
Reviewed: 01/14

Maybe. If the requesting party is requesting the information under the Public Disclosure Act, the name can be withheld in some circumstances.  RCW 42.56.240(2) provides an exemption for:

(2) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. . .

If the disclosure "would endanger" the person's life, safety, or property, or if the complainant requested nondisclosure, the record (or, at least, the identifying information) need not be disclosed.

However, if the requesting party has been charged with a crime, he or she is entitled to the information through the discovery process. The city should warn complainants that if the criminal process is invoked, their name will almost certainly have to be released. RULE CrRLJ 4.7 provides:

(a) Prosecuting Authority's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting authority shall, upon written demand, disclose to the defendant the following material and information within his or her possession or control concerning:
(i) the names and addresses of persons whom the prosecuting authority intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witnesses, ...
(iii) any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and scientific tests, experiments, or comparisons, ...

(Link to this question)

What is the records retention schedule?
Reviewed: 01/14

The general records retention schedule is issued by the Local Records Committee to serve as the retention schedule and disposition authority for records commonly held by local government agencies. The Local Records Committee is a committee which includes the State Archivist, a representative from the Office of the Attorney General, and a representative from the Office of the State Auditor.

The general records retention schedules may be applied directly by agencies as authority to destroy the records listed after the expiration of their approved retention periods. It requires no further authorization or approval.

The most recent versions of the Local Government Records Retention Schedules are available on the State Archivist website.  Those documents are updated periodically.

In addition to the general records retention schedule applicable to local government agencies, there are retention schedules for some specific departments of county government.  Review the Stae Archivist website for further information.

(Link to this question)

Must a local board of commissioners or council make an audio tape recording of its official proceedings and, if an audio tape is made, are written minutes still required?
Reviewed: 01/14

There does not appear to be any legal requirement for local legislative bodies to make audio tape recordings of general public meetings of the legislative body. Written minutes are still required as a permanent record of legislative proceedings. Many local legislative bodies make a tape recording of the proceedings to assist the clerk in preparing the required summary or minutes of the official proceedings for approval by the council or board. If such a tape is made, it must now be retained for the new six year period even if the purpose for tape recording is simply to assist the clerk in preparing minutes. Even though the tape must now be retained for six years, written meeting minutes are still required for every regular and special meetings, except executive sessions (RCW 42.32.030 ).

Different rules apply to quasi-judicial adjudicative proceedings and to public hearings where specific findings are required and a record may need to be made for judicial review. Washington courts have held that a verbatim record is required and even a close paraphrase of the proceedings is not sufficient where it becomes necessary to prepare an adequate record for review. Although other methods of reporting are possible to obtain a verbatim transcript, the potential need for a verbatim transcript essentially means an audio recording is required for any hearing involving testimony upon which the legislative body will base its decision and which will become part of the record in the event of judicial review. If a verbatim transcript of the tapes is prepared and certified, the required retention period for the audio tapes may be reduced. If there is any question over whether a tape needs to be made, consideration might be given to making a tape recording simply to avoid a court subsequently vacating the action due to lack of an adequate record for review. In addition, the courts have upheld actions even where the formal written findings were found inadequate to support the decision, where the decision was supported by oral findings contained in the tapes of the proceeding. If you have any questions on whether audio tapes need to be made of particular hearings or proceedings, you should discuss the issue with your county prosecutor or city attorney.

(Link to this question)

Must the city disclose a police report containing the details of an alleged criminal offense by a juvenile to the father of the crime victim?
Reviewed: 01/14

Yes. RCW 13.50.050(9) contains an exception to the general rule (see RCW 13.50.050(3)) that records regarding juvenile criminal offenses are confidential, except for the official court file:

 

(9) Upon request of the victim of a crime or the victim's immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender's parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim's immediate family.

Under this exception, any member of the crime victim's immediate family could request and must be provided with this information.

(Link to this question)

May councilmembers meet with a developer prior to an application for a project?
Reviewed: 01/14

Yes, if no application has been filed. A member of a decision-making body is not allowed to engage in ex parte communications with opponents or proponents of a proposal during the pendency of a quasi-judicial proceeding unless certain statutory conditions are met. In West Main Associates v. Bellevue, 49 Wn. App. 513, 742 P.2d 1266 (1987), the court indicated that ex parte communications were not prohibited until an actual appeal has been filed with the city council relating to a quasi-judicial matter.

(Link to this question)

May decisionmakers discuss a quasi-judicial matter outside of an official meeting?
Reviewed: 01/14

If a situation occurs in which communication with a decisionmaker occurs outside of the local government's hearing process, the decisionmaker should place the substance of the written or oral communication on the record, make a public announcement of the content of the communication, and allow persons to rebut the substance of the communication.  Failure to follow these steps could result in an overturning of the  decision, should it ever be challenged in court.

(Link to this question)

Is there an appearance of fairness problem if a planning commission member owns property within an area proposed for rezone?
Reviewed: 01/14

It would violate the appearance of fairness doctrine if a planning commission member who owns property in the area to be rezoned participates in the hearing and/or votes. In the leading case on this issue, Buell v. Bremerton, 80 Wn.2d 518 (1972), a planning commissioner owned property adjacent to an area to be rezoned. The court determined that the commissioner's self-interest was sufficient to invalidate the entire proceeding.

(Link to this question)

May a planning commission member who has disqualified himself on a rezone action, discuss the application with other planning commission members?
Reviewed: 01/14

A planning commission member who has disqualified himself on a specific action should not attempt to discuss the application with other planning commission members either inside or outside of the hearing process. See Hayden v. Port Townsend, 28 Wn. App. 192, 622 P.2d 1291 (1981).

(Link to this question)

If a councilmember has disqualified herself from participation in a council hearing because she is an applicant in a land use matter, may she argue her own application in writing before the council?
Reviewed: 01/14

Our courts have ruled that once a member relinquishes his or her position for purposes of the appearance of fairness doctrine, he or she should not participate in the hearing. A disqualified decision maker should not join the hearing audience, act on behalf of an applicant, or interact in any manner with the other members. See Hayden v. Port Townsend, 28 Wn. App. 192, 622 P.2d 1291 (1981).

(Link to this question)

May the spouse of a disqualified councilmember testify at a hearing before the council?
Reviewed: 01/14

If the councilmember disqualifies him or herself on a quasi-judicial issue coming before the council, his/her spouse may testify as long as the councilmember leaves the room and does not attempt to vote or participate in the deliberations.

(Link to this question)

May a councilmember vote on a legislative issue if her husband is a planner for the county and the issue could indirectly affect his work?
Reviewed: 01/14

Because the vote is on a legislative matter,  the appearance of fairness doctrine does not apply.

(Link to this question)

May a city staff person present a development proposal to the planning commission and city council on behalf of a developer who is also a city councilmember?
Reviewed: 01/14

The staff member can present a report and recommendation to the council or planning commission on behalf of the city.  It is not appropriate for city staff to present both the city and the developer's position.

(Link to this question)

In a situation in which the chair of the planning commission is a realtor and represents a client wishing to purchase property in an area of the city that is being considered for a rezone, may the chair participate in the hearing and vote on the rezone application?
Reviewed: 01/14

The fact that the chair is a realtor does not in itself disqualify him from participation in rezone hearings. However, his representation of a client wanting to purchase property in the area being considered for a rezone constitutes sufficient reason for disqualification from participation.

(Link to this question)

Will a violation of the appearance of fairness doctrine invalidate a decision even if the vote of the "offender" was not necessary to the decision?
Reviewed: 01/14

Yes. Our courts have held that it is immaterial whether the vote of the offender was or was not necessary to the decision.

(Link to this question)

Are contacts between a decision-maker and city staff members considered to be ex parte contacts prohibited by the appearance of fairness doctrine?
Reviewed: 01/14

The role of a city department is to create a neutral report on a proposal and issue a recommendation to grant or deny a proposal that is subject to further appeal or approval. Contacts with city staff would only be prohibited if the city department involved is a party to quasi-judicial action before the council.

(Link to this question)

May a councilmember participate in a vote on leasing city property to an acquaintance?
Reviewed: 01/14

The leasing of city property is not a quasi-judicial matter and does not involve a public hearing.  Consequently,  the appearance of fairness doctrine does not apply.  [Note: There could be a potential conflict of interest question if the councilmember is likely to reap financial gain from the lease arrangements.]

(Link to this question)

May a councilmember who is running for mayor state opinions during the campaign regarding quasi-judicial matters that are pending before the council and that will be decided before the election?
Reviewed: 01/14

RCW 42.36.040 provides that "expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions" is not a violation of the appearance of fairness doctrine. However, this statute has never been interpreted by any appellate court, and it is unclear how it applies to an incumbent councilmember who might speak during his or her campaign (for mayor in this case) concerning a quasi-judicial matter that will be decided by the current council before the upcoming election. It would be best for the councilmember running for mayor not to speak on the pending matter. To do so could compromise the fairness of the hearing. RCW 42.36.110 operates to protect the right to a fair hearing despite compliance with other requirements of chapter 42.36 RCW. Although RCW 42.36.040 clearly allows non-incumbents running for office to speak on such a matter, the rights of the parties to a fair hearing might outweigh the right of an incumbent to speak out.

(Link to this question)

If a decisionmaker is disqualified from participation on appearance of fairness grounds and discusses the issue with another decisionmaker, may the second decisionmaker still participate and vote?
Reviewed: 01/14

If the first decisionmaker is disqualified then any discussion between the disqualified member and the other member could be construed as an ex parte communication. If the content of the conversation is placed on the record according to the requirements of RCW 42.36.060, the other member could probably participate.

(Link to this question)

May a councilmember attend a planning commission hearing on a quasi-judicial matter?
Reviewed: 01/14

Although RCW 42.36.070 provides that participation by a member of a decision-making body in an earlier proceeding that results in an advisory recommendation to a decision-making body does not disqualify that person from participating in any subsequent quasi-judicial proceeding, such participation could potentially affect the applicant's right to a fair hearing. RCW 42.36.110 provides:

"Nothing in this chapter prohibits challenges to local land use decisions where actual violation of an individuals' right to a fair hearing can be demonstrated."

Out of perhaps an excess of caution, this office generally recommends that councilmembers not attend planning commission hearings on quasi-judicial matters because it is possible that their attendance might give rise to a challenge based on the appearance of fairness doctrine. We are not aware of any court decisions in which such a challenge has been adjudicated.

(Link to this question)

Can a candidate for municipal office accept campaign contributions from someone who has a matter pending before the council?
Reviewed: 01/14

Yes. Candidates may receive campaign contributions without violating the doctrine. RCW 42.36.050; Improvement Alliance v. Snohomish Co., 61 Wn.App. 64, 808 P.2d 781 (1991).  However, contributions must be reported as required by public disclosure law. Chapter 42.17 RCW.

(Link to this question)

What should a decision-maker do if an appearance of fairness challenge is raised?
Reviewed: 01/14

The challenged decision-maker should either refrain from participation or explain why the basis for the challenge does not require him or her to refrain.

(Link to this question)

Are there any limitations on raising an appearance of fairness challenge?
Reviewed: 01/14

Yes. Any claim of a violation must be made "as soon as the basis for disqualification is made known to the individual."  If the violation is not raised when it becomes known, or when it reasonably should have been known, the doctrine cannot be used to invalidate the decision. RCW 42.36.080.

(Link to this question)

Does the appearance of fairness doctrine prohibit a decision-maker from reviewing and considering written correspondence regarding matters to be decided in a quasi-judicial proceeding?
Reviewed: 01/14

No. Decision-makers can accept written correspondence from anyone provided that the correspondence is disclosed and made part of the record of the quasi-judicial proceeding. RCW 42.36.060.

(Link to this question)

What local government department oversees application of the appearance of fairness doctrine?
Reviewed: 01/14

No person or body has the authority to oversee application of the appearance of fairness doctrine to members of a local government council or board.  It is up to the individual members to determine whether the doctrine applies to them in a particular situation, and to disqualify themselves if it does. Some governing bodies have established rules that allow the votes of the council to disqualify a member in the event of an appearance of fairness challenge. A governing body probably has the authority to establish such a rule based upon its statutory authority to establish rules of conduct.

(Link to this question)

What is the Appearance of Fairness Doctrine?
Reviewed: 01/14

The "appearance of fairness doctrine" governs the conduct of certain hearings. Basically, the rule requires that for justice to be done in hearings that affect individual or property rights ("quasi-judicial" proceedings), the hearings must not only be fair, they must also be free from even the appearance of unfairness. By statute, the appearance of fairness doctrine applies to land use hearings, however, the common law doctrine  has been applied to civil service and other types of hearings as well.

(Link to this question)

Which land use matters are legislative actions?
Reviewed: 01/14

Legislative actions include adoption, amendment, or revision of comprehensive, community, or neighborhood plans or other land use planning documents, or adoption of zoning ordinances or amendments which are of area-wide significance. See RCW 42.36.010.

(Link to this question)

What is an ex parte communication?
Reviewed: 01/14

An ex parte communication is a one-sided discussion between a decision-maker and the proponent or opponent of a particular proposal which takes place outside of the formal hearing process on a quasi-judicial matter. No member of a decision-making body is allowed to engage in ex parte communication when quasi-judicial matters are pending.

(Link to this question)

How is it determined whether a matter is pending?
Reviewed: 01/14

"Pending" means after the time the initial application is filed or after the time an appeal is filed with the governing council. For example, if a matter would come before the council only by appeal from a decision by the hearing examiner or planning commission, it is not considered pending with respect to city councilmembers until an appeal is filed. It would, however, be pending with respect to the hearing examiner or planning commissioners.

(Link to this question)

Is a rezone hearing on specific property subject to the appearance of fairness doctrine?
Reviewed: 01/14

Yes. The decision to change the zoning of particular parcels of property is adjudicatory and the appearance of fairness doctrine applies. (See Leonard v. City of Bothell, 87 Wn. 2d 847, 557 P.2d 1306 (1976).

(Link to this question)

Does the appearance of fairness doctrine apply to preliminary plat approval?
Reviewed: 01/14

Yes, preliminary plat approval is quasi-judicial in nature and must be preceded by a public hearing. Therefore, it is subject to the doctrine of appearance of fairness. See Swift v. Island County, 87 Wn.2d 348, 552 P.2d 175 (1976).

(Link to this question)

Does the appearance of fairness doctrine apply to a final plat approval?
Reviewed: 01/14

A public hearing is not required for final plat approval. The doctrine only applies to quasi-judicial land use matters for which a hearing is required by law.  Final plat approval is not a quasi-judicial action; it is a  ministerial/administrative decision. 

Quasi-judicial decisions are discretionary, but a final plat must be approved if the subdivider meets the conditions of the preliminary plat.  Moreover, the rights of the parties are determined at the preliminary stage, not the final stage. The court of appeals, Division II, distinguishes in an unpublished opinion between a discretionary preliminary plat decision and a nondiscretionary final plat decision:

"Under RCW 58.17.110, when determining whether to approve a preliminary plat, the local governmental body makes a discretionary determination of whether the proposed subdivision will serve the "public use and interest." RCW 58.17.110(1). Once the conditions in the preliminary plat are met, the County has no discretion in its decision but must approve the plat in writing on the face of the plat."  Sanford v. Clallam County, No. 29656-0-II (10/14/03). 

(Link to this question)

Which local government officials are subject to the doctrine?
Reviewed: 01/14

According to RCW 42.36.010, the following officials must follow the doctrine:  council members, planning commission members, board of adjustment members, hearing examiners, zoning adjusters, or members of boards participating in quasi-judicial hearings which determine the legal rights, duties or privileges of specific parties in a hearing or other contested case proceeding.

(Link to this question)

Are any local government officials or employees exempt from the appearance of fairness rule?
Reviewed: 01/14

Even though required to make decisions on the merits of a particular case, department heads and  staff  are not subject to the appearance of fairness rules.

(Link to this question)

If a local government decisionmaker announces before a quasi-judicial hearing has even been held that her/his mind is already made up on a matter, what should be done?
Reviewed: 01/14

Impartiality in a proceeding may be undermined by a decisionmaker’s bias or prejudgment toward a pending application.  The Washington State Supreme Court in  OPAL v. Adams County, 128 Wn.2d 869 (1996), noted:

"A decisionmaker may be challenged under this doctrine for prejudgment concerning issues of fact about parties in a particular case…or partiality evidencing a personal bias or prejudice signifying an attitude for or against a party as distinguished from issues of law or policy." 

If the decisionmaker in question has already made up his mind then he/she cannot be a fair and impartial judge.  Therefore, the decisionmaker should not participate.

 

(Link to this question)

May a decisionmaker meet with a constituent on matters of interest to the constituent?
Reviewed: 01/14

Yes, as long as there is no discussion of quasi-judicial matters pending before the local government. See RCW 42.36.020; West Main Associates v. City of Bellevue, 49 Wn.App 513, 742 P.2d 1266 (1987).

(Link to this question)

May a council and planning commission meet jointly to consider a presentation by a developer?
Reviewed: 01/14

If no specific application has been filed by the developer, the council probably may meet jointly with the planning commission to consider a proposal by a developer. The appearance of fairness doctrine has been held by the courts to apply only to situations arising during the "pendency of an action." If no application has been filed, no action is pending before the city.  But if a formal application has been filed, a joint meeting would probably violate the doctrine.

(Link to this question)

Are citizens "required" to sign in when attending a board meeting? Is it "required" for citizens addressing the board to give their name and address when they speak/give testimony before the board?
Reviewed: 01/14

Regarding your first question, not only are citizens not "required" to sign in with, for example, their name and address, when attending a public meeting of the board of commissioners, but under RCW 42.30.040, part of the Open Public Meetings Act (OPMA), provides:
A member of the public shall not be required, as a condition to attendance at a meeting of a governing body, to register his or her name and other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance.

Regarding your second question, neither the OPMA (chapter 42.30 RCW) nor other legal authority (e.g., case law or attorney general opinion) prohibits a local government from requiring a member of the public wanting to speak at a meeting or give testimony at a public hearing to sign-in or register as a condition of doing so.

We have noted that the OPMA does not require that members of the public be allowed to speak at meetings of the board of commissioners or other local governing bodies (other than at public hearings), although most boards of commissioners and city/town councils allow for public comment and provide for this in their commission/council rules of procedure. Requiring speakers (as distinguished from mere attendees) to register and give their name and address prior to speaking to a city council appears to be a common city council rule, and the same may be true for county boards of commissioners, county councils, and other local governing bodies.

We have also noted that governing bodies have a legitimate interest in knowing who is addressing them for the record and whether he/she is a resident of the county/city/district, as verified by their address.

(Link to this question)

May a city council discuss in executive session the performance of an uncompensated, appointed member of a citizens' advisory body?
Reviewed: 01/14

RCW 42.30.110(1)(g) allows a city council or other governing body to meet in executive session to "To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee." Does this allow a city council to discuss in executive session the performance of an uncompensated, appointed member of a citizens' advisory body, such as a planning commission?

We are not aware of any definitive legal authority on this issue, but a similar issue is addressed in the concurrence/dissent in Miller v. City of Tacoma, 138 Wn.2d 318 (1999), in which Justice Madsen concludes that a person appointed to a uncompensated, appointed position is not a "public employee" under RCW 42.30.110(1)(g) and therefore, could not have his/her qualifications evaluated in executive session. Although that court decision addressed evaluating the qualifications of an applicant for a planning commission under RCW 42.30.110(1)(g) (see 09-4839), arguably the same principles would apply to reviewing the performance of a current uncompensated, appointed member of a citizens' advisory body. Based on the principles and legal authorities discussed in Justice Madsen's concurrent/dissent, it is our opinion a city council cannot go into executive session to review the performance of an uncompensated, appointee on a citizens' advisory body because the appointee is not a "public employee" under RCW 42.30.110(1)(g).

Justice Madsen in her concurrence/dissent, in addressing this issue that is not directly addressed in the majority opinion, makes a distinction between appointees to elective office and appointees to nonelective positions. She explains and concludes:

RCW 42.30.110(1)(h) permits evaluation of the qualifications of candidates for appointment to elective public office in executive session, and directs that in the case of candidates for appointment to any elected public position, interviews must be conducted in an open public meeting. This subsection necessarily includes evaluations of candidates for appointment to noncompensated elective positions. While the public's interest in evaluation of appointees to elective office is likely greater than it is where public employees in general are involved, the private evaluation allowed by the exception in RCW 42.30.110(1)(h) is counterbalanced by the fact that in time the electorate will have the final say on who serves in the office.

The statute does not permit, however, the evaluation in executive session of the qualifications of individuals applying to noncompensated nonelective public positions. The public interest in their activity is apt to be significant. Such individuals may have considerable impact on the course of government activity. Perhaps because they are not ultimately subject to the elective process nor to the strictures generally associated with compensated employment positions, their evaluation and selection must be made in open public meetings. Regardless of the reasons underlying the statutory provisions, it is the Legislature's prerogative to define exceptions to the requirement of open public meetings, and not for this court to create exceptions. [Footnote 3.]

I would hold that if RCW 42.30.110(1)(g) applied, the council's actions were within the scope of the exception and no violation of the Open Public Meetings Act occurred. However, for the reasons set forth in this opinion, RCW 42.30.110(1)(g) is inapplicable because applicants for appointment to the planning commission are not "applicant[s] for public employment." Therefore, while I depart from the analysis of the majority, I concur in its result.

Footnote 3: The Legislature could, of course, amend the statute and provide public agencies with authority to consider in executive session the qualifications of applicants for positions like the Tacoma Planning Commission.

138 Wn.2d at 342-43

(Link to this question)

What can be done if information obtained in an executive session is disclosed by a councilmember or commissioner?
Reviewed: 01/14

This is a difficult problem that arises frequently.

It seems clear that an underlying purpose of the provision in the Open Public Meetings Act for executive sessions is that the information learned in such a session is confidential, unless otherwise declared by the body holding the executive session. However, there is no specific penalty or sanction in the Open Public Meetings Act for unauthorized disclosure of information learned in executive session.

Probably the most effective method of preventing such unauthorized disclosure is peer pressure exerted by other councilmembers or commissioners. It should be pointed out that the damage to the interests of the city or county could be considerable if this information is shared with selected members of the public or the public generally. The city attorney or county prosecutor may want to review with all the councilmembers or commissioners the purpose for holding an executive session.

Some councils and boards have enacted provisions in their own local rules of procedure or in their ethics codes relating to this problem. For example, Marysville and Richland have adopted a specific rule in their ethics codes prohibiting a councilmember or other person from disclosing to the public confidential information that they learn by reason of their official position. Civil penalties and, in some cities, even criminal penalties, are provided for violation of the ethics code. A council or board could adopt a specific rule on this subject if it wished to emphasize the importance of confidentiality.

Similarly, many cities and towns use Robert's Rules of Order to govern the conduct of council meetings. Note that Robert's Rules of Order, Newly Revised, §9 ("Executive Sessions"), provides that a member can be disciplined for violating the confidentiality of an executive session, although no specific penalty is set out.

It is also possible that a statutory penalty may be applied. RCW 42.23.070(4) prohibits disclosure of confidential information learned by reason of a municipal officer's position, and RCW 42.23.050 provides for a $500 penalty and possible forfeiture of office for a violation of chapter 42.23 RCW. It is arguable that the prohibition in RCW 42.23.070(4) applies to the unauthorized disclosure of information learned in executive session.

(Link to this question)

What may be disclosed publicly concerning what was discussed in executive session?
Reviewed: 01/14

It is not entirely clear what may be revealed publicly regarding what was discussed in executive session, although certain topics offer more clarity than others. One statutory provision that could potentially apply to disclosure of what was discussed in executive session, RCW 42.23.070(4), states: "No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit." However, because chapter 42.23 RCW does not define "confidential information," it is not clear exactly what is meant by the term in this statute. A discussion in executive session between the governing body and the municipality’s legal counsel regarding contemplated or pending litigation or issues related to settlement offers may implicate RCW 42.23.070(4) and also the attorney-client privilege.  The Open Public Meetings Act “… permits executive sessions for governing bodies when discussing litigation or potential litigation if public knowledge regarding the discussion is likely to result in adverse legal or financial consequences. "RCW 42.30.110(1)(i). Wash. Pub. Trust v. City of Spokane, 120 Wn. App. 892, 903 (2004). See, also, Port of Seattle v. Rio, 16 Wn. App. 718 (1977).

However, not everything that is discussed in executive session is necessarily "confidential" and matters that are confidential may lose their confidential nature over time. In any event, municipal officers who violate this statute are subject to a $500 penalty and possible forfeiture of office. RCW 42.23.050.

In general, since the purpose of an executive session is to discuss confidentially matters that would be detrimental (to the city or to city personnel) to discuss in public, councilmembers should not discuss publicly what was discussed in executive session, without council approval or until public knowledge of the matter would no longer be detrimental to the city or its officials. For example, if the council discussed with the city attorney in executive session pending or existing litigation against the city, revealing to the public after the session what was discussed could harm the city's litigation position. Otherwise, why would the council be meeting in executive session? Disclosing publicly what was discussed in executive session undermines the whole purpose of meeting in executive session.

Also, preserving the confidentiality of the executive session can promote effective discussion in closed session. If councilmembers are concerned that what they say in executive session might be disclosed afterwards, they may be reticent to freely discuss matters in the session. So, even if the matter discussed may no longer be confidential (e.g., the litigation is over), councilmembers may still not want what they said in closed session to be made public, particularly if it is presented out of context.

Given the above considerations, we think it is advisable for the council to adopt a rule that prohibits councilmembers from discussing publicly what took place in executive session without prior council approval. Such a bright-line rule is easy to apply and avoids confusion. If the council is truly discussing in executive session only what the Open Public Meetings Act allows to be discussed in executive session, there would in most circumstances be no valid reason to disclose publicly what was discussed privately.

(Link to this question)

May the council go into executive session even if it is not on the agenda for the meeting?
Reviewed: 01/14

Yes. There is no requirement in the Open Public Meetings Act that an executive session must be listed on the agenda in order for the council to go into executive session.

The council may decide at the meeting to go into executive session and this may be done legally as long as the requirements in the Open Public Meetings Act are followed concerning executive sessions.

There is a requirement in RCW 35A.12.160 that the public be made aware of the preliminary agendas of meetings in advance of the meeting. This does not mean that an item that arises after the preliminary agenda has been posted cannot be discussed at the meeting, even in executive session. Final action on the matter would not be taken at the executive session. Therefore, it does not violate any provision in state law to hold an executive session at a regular council meeting even if the executive session was not listed on the agenda.

Note that there is a requirement that special meetings of a governing body must be announced at least 24 hours in advance of the special meeting. RCW 42.30.080. So if an executive session were being held in conjunction with a special meeting, the special meeting notice requirements contained in the Open Public Meetings Act would have to be followed.

(Link to this question)

May cities regulate taxicabs?
Reviewed: 01/14

Yes. The state does explicitly provide authority for cities to be involved in the regulation of taxicab companies.

RCW 81.72.200 states the legislature’s general intent that regulation of privately operated taxicab transportation services is an essential governmental function.

RCW 81.72.210 provides explicit authority for cities and other local governments to regulate certain taxicab activities, including:

  1. Regulating entry into the business of providing taxicab transportation services; 
  2. Requiring a license to be purchased as a condition of operating a taxicab and the right to revoke, cancel, or refuse to reissue a license for failure to comply with regulatory requirements; 
  3. Controlling the rates charged for providing taxicab transportation service and the manner in which rates are calculated and collected, including the establishment of zones as the basis for rates; 
  4. Regulating the routes of taxicabs, including restricting access to airports; 
  5. Establishing safety, equipment, and insurance requirements; and 
  6. Any other requirements adopted to ensure safe and reliable taxicab service.

(Link to this question)

What is the difference between a business license and a regulatory license?
Reviewed: 01/14

Local government business license programs range in purpose from basic business registration programs to more comprehensive regulatory license programs.

The purpose of a basic business license/registration program is provide the city with a record of the types of businesses operating in the city, their location and the names and addresses of their owners in the event a citizen or a city department has a problem with a business. Another purpose would be to help ensure compliance with city ordinances (e.g., zoning requirements). Cities that levy a gross receipts business and occupation tax also need to register businesses to be able to check for their compliance in the payment of taxes. Fees for these types of business licenses are typically set at a flat rate per license in an amount designed to recover the administrative costs of registering the businesses and issuing the licenses, maintaining the files, etc.

At the other end of the business license program spectrum are the more comprehensive occupational licensing programs that are more regulatory in nature. These programs are aimed at such businesses as pawnbrokers, second hand stores, taxis and taxi drivers, massage parlors, and the like. These businesses are often subject to a more rigorous set of regulations that apply specifically to them, relate to the conduct of their business, and/or may require investigations and background checks prior to issuance of the license. The license requirement facilitates the city's monitoring and enforcement of these regulations. The license fee may include, in addition to the costs listed above, the costs of investigating the background of the person requesting the license. The license fees for professional and occupational licenses may vary by the kind of activity involved.

Implementing a business license program is considered to be a sound management practice to protect the corporate city and its citizens. The basic authority for a noncharter code city to license, regulate, and make inspections of businesses and occupations is found in RCW 35A.82.020. There are similar statutes for other classes of cities.

(Link to this question)

May the city impose a business license requirement on businesses that don't have a physical location inside the city limits but that do business within the city?
Reviewed: 01/14

Yes. Many Washington cities have passed ordinances requiring out-of-city businesses doing business within the city to obtain a city business license and/or to pay the city B&O tax. There is no statute that governs how much or what kind of business must be done within a city for that city to apply its business licensing requirements, and so this is left up to cites to define. The key consideration is whether there is enough of a "nexus" between the city and the nonresident business to make the imposition of a business license requirement reasonable, or, in other words, whether the nonresident business has sufficient contact with the city in the form of its business activities to enable the city to impose its licensing requirements upon that business. Cities address this nexus in different ways in their business license ordinances. Your city code defines "engaging in business" as "commencing, conducting or continuing in any business . . . ." Although we have seen that same language in a number of other city business license provisions, we don't find that language, by itself, to be particularly helpful in determining when a nonresident business would have to get a city business license, unless the nonresident business actually physically does work within the city. We notice that some city codes set out examples of activities that constitute "engaging in business" in the city that may be helpful. See, e.g., Tacoma Municipal Code Sec. 6A.30.030 (see definition of "engaging in business"). Port Townsend and Bremerton use the same examples in their codes.

In general and without helpful examples like that set out in the Tacoma code or without some elaboration, there's no easy formula for this determination. We've previously looked at some of the considerations (other than physically doing work in the city) involved in this determination as follows:

The activities to consider in determining whether a nonresident business is subject to a business license include whether the business solicits orders within the city; whether the business negotiates contracts or orders with prospective customers within the city; the location of the place where orders are filled or accepted; whether the business's salespeople spend a considerable amount of time soliciting orders from within the city, the number of employees, salesmen, distributors, or local agents the business employs for the purpose of soliciting or otherwise making contact with customers or potential customers located within the city, and numerous other activities.

Obviously, with a lot of business being done via the Internet, it's more difficult to make the determination whether a business engages in business within the city so as to subject it to a city business license requirement.

Here are some other examples of cities that provide some extra guidance in their codes as to when a business is "engaging in business" in the city:

  • Mukilteo Municipal Code Sec. 5.04.015 (see definitions of "business" and "engage in") 
  • Redmond Municipal Code Sec. 5.04.030 (see definition of "engaging in business")

Note that mere registration or compliance with the streamlined sales tax (SST) agreement does not otherwise impact nexus status for business license purposes. See RCW 35.22.280(32), 35.23.440(8), 35.27.370(9), 35.102.050, and 35A.21.335. The Association of Washington Cities worked with the business community to develop several versions of model letters for cities to consider using when form letters are sent to businesses to inquire about license status or to explain license requirements to businesses that deliver goods into their jurisdictions, and to inform them about this SST compliance issue.
 

(Link to this question)

Request for sample ordinances regulating chickens in residential zones.
Reviewed: 01/14

This is in response to your research request for code provisions regulating chickens in residential zones. First, take a look at our web page on "Regulating Livestock and Other Farm Animals." This page includes several city codes regulating animals, including chickens, in residential areas. In addition, see the following codes:

Also see the following: 

(Link to this question)

Does a code city have the authority to require a business license for landlord-tenant activities?
Reviewed: 01/14

Yes, a code city has the authority to require business licenses of those who are in the business of renting residential property based on its general authority to license business activities (RCW 35A.82.020), although rental housing revenue cannot be subject to municipal business and occupation taxes (Harbour Village Apartments v. Mukilteo, 139 Wn. 2d 604 (1999)). Note that RCW 59.18.125, dealing with local government rental inspection programs, presumes such licensing authority with respect to rental housing: "Local municipalities may require that landlords provide a certificate of inspection as a business license condition." A number of cities require business licenses of those who rent housing.

(Link to this question)

May a city impose a total ban on peddlers?
Reviewed: 01/14

The question is whether the city can enforce an ordinance that makes uninvited solicitation a nuisance in the city – in other words, a total ban on peddler sales. This type of ordinance at one time was very common and is often called a “Green River Ordinance,” after a city in Wyoming where a court case upheld their validity. However, more recent court cases have called into question whether such a broad prohibition would survive a legal challenge today.

A Ninth Circuit Court of Appeals case (Project 80's Inc. v. City of Pocatello, 942 F.2d 635 (9th Cir. 1991)), held that a city ordinance that prohibited door-to-door solicitation unless the resident places a "solicitor's welcome" sign on the door was ruled an unconstitutional infringement of free commercial speech. The court held that the ordinance did not provide the least restrictive alternative available to accomplish the legitimate governmental interests of protecting residential privacy and preventing crime. For a more detailed discussion of case law related to this issue, see our web on Regulation of Peddlers and Solicitors.

We are aware that some cities still have these broad prohibitions in their ordinances, but, in our opinion, they likely are unenforceable and would not withstand a court challenge. This does not mean that a city cannot regulate peddlers or solicitors at all. Many cities have ordinances with licensing or registration requirement for solicitors. These ordinances can also contain more limited prohibitions, such as prohibiting solicitors from contacting any residence that is posted by signage indicating such contacts are not desired by the residents, and should contain exceptions for political and religious speech.

(Link to this question)

Can the city require that vendors at the local farmers' market who prepare and sell hot food obtain a local business license, or are those vendors covered by the statutory exemption that applies to people who market their produce directly?
Reviewed: 01/14

RCW 36.71.090 exempts farmers who sell their produce (fruits, vegetables, berries, eggs or other farm produce) directly to consumers from the requirement of obtaining a local business license. That exemption would not apply to food vendors with stalls at a farmers' market who cook and sell meats, or other products grown or produced by other people. Just because a person has a food cart or stand at a farmers' market does not automatically exempt them from the requirement of obtaining a local license. The statute should be read carefully to see if it applies in a particular situation.

(Link to this question)

Request for sample ordinances that ban specific breeds of dogs
Reviewed: 01/14

Some cities have completely banned certain breeds of dogs. Cities that have banned pit bulls, include Yakima, Selah, Algona and Enumclaw. See, for example, Ch. 6.18, "Pit Bull Dogs," Yakima Municipal Code.

Bellevue (see Ch. 8.08, Bellevue Municipal Code) prohibits wolves and coyote hybrids, with some exceptions. Some jurisdictions also regulate wolf hybrids under their dangerous dog regulations (including Blaine and SeaTac).

In adopting local ordinances based upon state laws regulating dangerous or potentially dangerous dogs (see Ch. 16.08 RCW), some cities have modified the definition of "potentially dangerous dog" and/or "dangerous dog" to include references to specific breeds such as pit bull terriers. See, for example:

  • Ch. 8.05, Kirkland Municipal Code - Dangerous Dogs - (defines dangerous dogs to include "American Pit Bull Terrier" or "Staffordshire Bull Terrier" or "American Staffordshire Terrier" breed of dog)
  • Auburn Ordinance No. 5996 (includes pit bull terriers and other breeds as "potentially dangerous dogs.")

Other cities that define dangerous dogs to include pit bulls include Eatonville and Pasco.

For more information on this subject, including case law references, an overview of state laws regarding dangerous and potentially dangerous dogs, and sample ordinances, see our webpage on Dangerous Dogs, Wolves, and Wolf-Hybrids, which includes information on Breed Specific Regulations.

(Link to this question)

May an animal control officer enter private property without consent of the property owner and without a warrant where, in plain view, a dog is being abused?
Reviewed: 01/14

There appears to be only one situation where an animal control officer may enter private property without a warrant. RCW 16.52.085(1) provides: If a law enforcement officer or animal control officer has probable cause to believe that an owner of a domestic animal has violated this chapter and no responsible person can be found to assume the animal's care, the officer may authorize, with a warrant, the removal of the animal to a suitable place for feeding and care, or may place the animal under the custody of an animal care and control agency. In determining what is a suitable place, the officer shall consider the animal&s needs, including its size and behavioral characteristics. An officer may remove an animal under this subsection without a warrant only if the animal is in an immediate life-threatening condition. See also, RCW 16.52.015(3)(d) (giving an animal control officer the "power to prepare affidavits in support of search warrants and to execute search warrants when accompanied by law enforcement officers to investigate violations of this chapter ").

(Link to this question)

Request for information on procedures for granting a limited commission to an animal control officer to enforce and issue citations for violations of the town's animal control ordinance, and the form for the oath of office for this position.
Reviewed: 01/14

Various statutes authorize municipalities to give designated employment positions, other than law enforcement officers, the authority to enforce laws, such as local animal control laws, that carry civil penalties (civil infractions). For example, RCW 7.80.040, dealing with civil infractions, defines "enforcement officer" as "a person authorized to enforce the provisions of the title or ordinance in which the civil infraction is established." See also IRLJ 1.2(j), a court rule that defines "citing officer" as "a law enforcement officer or other official authorized by law to issue a notice of infraction."

So, the town may give an animal control officer a "limited commission" to issue citations for civil infractions under the town's ordinances. A "commission" is, in the sense discussed here, merely formal evidence of an appointment. There are no statutorily-required procedures for granting a limited commission. The only requirements for an animal control officer would be those established by the town for the position.

Here are a few example code provisions establishing limited commissions:

Mount Vernon Municipal Code
10.10.020(C ) . “Limited commission code enforcement officer” means that person who has been appointed by the mayor and whose work is directed by the director of development services for the purpose of administering and enforcing the provisions of this chapter, including all persons granted such authority and responsibility by contract with the city. In addition, the director of development services shall be an ex officio code enforcement officer and have like enforcement authority.

 

Bellevue Municipal Code

3.33.060 Appointment of deputies and other officers – Administrative structure. The chief of police may appoint, with the consent of the city manager, subject to any applicable civil service provisions, deputies and other public officers from other city departments. Such officers shall have the power of citation as may be appropriate and necessary for the proper performance of the duties of their office. Upon such appointment being made, the chief of police shall issue to the appointee a limited commission card. The appointment shall continue until the appointee is permanently terminated from city employment, but may be revoked at any time by the chief of police or the city manager.

Burlington Municipal Code

2.38.030(B) Members – Appointment and commissioning. ... [a] limited commission or deputation may be issued upon approval of the mayor and police chief to persons outside the department who have a need to have limited enforcement capabilities such as parking, parks, animal control, and arson. These limited commissions will specifically state the authority of the holder to enforce specific identified ordinances. These limited commissions shall be valid for a period of one year and shall automatically expire on December 31st of that year.

As to the form for the oath of office, no state statute sets out the exact form for this. There are several variations used, although most are similar to the one set out below:

I, _____, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Washington, and all local ordinances, and that I will faithfully and impartially perform and discharge the duties of the office of _____, according to law and the best of my ability.

 

(Link to this question)

Are counties allowed to issue business licenses?
Reviewed: 01/14

Counties are only allowed to impose business licenses for activities established by state statute, or by county charter. RCW 36.32.120, sets out the powers of county legislative authorities. The pertinent provision is as follows:

  • The legislative authorities of the several counties shall:
  • . . . (3) License and fix the rates of ferriage; grant grocery and other licenses authorized by law to be by them granted at fees set by the legislative authorities which shall not exceed the costs of administration and operation of such licensed activities. . . .

There is specific statutory authority for noncharter counties to impose a license requirement for: dog or kennel licenses (RCW 36.49.020); private ferries (Ch. 36.53 RCW); peddlers and hawkers (Ch. 36.71 RCW); massage practitioners (RCW 36.32.122); retail liquor (RCW 67.14.040); trading stamp license (RCW 19.83.020). There may be others.

 

(Link to this question)

May a city deny a business license if the applicant is a convicted felon?
Reviewed: 01/14

It depends upon the circumstances. A city may deny a business license to a convicted felon if the felony relates to the type of business for which the license is sought and the conviction occurred less than ten years prior to the application. RCW 9.96A.020. For example, a city could refuse to issue a business license for a tax preparation business to a person convicted of tax fraud within the last ten years. On the other hand, a city could not deny that same person a license for a dry cleaning business.

(Link to this question)

May cities require the purchaser of a business to obtain a new business license?
Reviewed: 01/14

Yes, although the city's business license ordinance should impose this requirement. From a regulatory standpoint, it makes sense for a city to require the purchaser of a business to apply for a new business license. This requirement will help ensure that new businesses comply with any conditions that the business license ordinance may impose.

(Link to this question)

Who has authority in a mayor-council city to respond to the liquor control board concerning a new or renewal liquor license application?
Reviewed: 01/14

This is covered in RCW 66.24.010, which was amended at the 2007 legislative session See Chapter 473, Laws of 2007. This statute provides at subsection (8) that, before the state liquor control board issues a liquor license or renews a liquor license, it is to give notice to the “chief executive officer” of the city. The city has the right to object to the application through the officer or employee selected by it. So, the council could designate the mayor to be the responsible official with authority to respond.

Note that the 2007 amendments require the liquor control board to give greater weight to objections of the city than was previously the case.

(Link to this question)

What if a church locates across the street from a tavern?
Reviewed: 01/14

"State law prohibits a tavern from locating within a certain distance of a church or a school. Does this law apply if the tavern was there first?"

No. RCW 66.24.010(9), which contains the restriction, does not apply to taverns already licensed. Also, RCW 66.24.010(10) allows the Liquor Control Board to authorize the transfer of an existing license if it already is in the restricted area so the owner may sell an established business.

(Link to this question)

May alcohol be served in a city-owned community hall when it is rented to a private group?
Reviewed: 01/14

Yes, if the private group obtains the proper license from the Washington State Liquor Control Board. See RCW 66.24.481, and the definition of "public place" in RCW 66.04.010(23). However, a city does have the authority to adopt a policy prohibiting the serving of any alcohol in the community hall.

(Link to this question)

Can a city or county adopt post-election durational restrictions for political campaign signs?
Reviewed: 01/14

Yes. In Collier v. Tacoma, 121 Wn.2d 737 (1993), the Washington Supreme Court addressed both pre- and post-election restrictions on political campaign signs. While holding that "Tacoma's durational limitation on the preelection posting of political campaign signs violates the free speech provisions of both the Washington and the United States Constitutions," the court addressed post-election requirements as follows:

[O]ur holding does not compel a change to postevent removal requirements as long as such requirements are reasonable and apply to all temporary events, such as political campaigns, home sales and residential renting. While preelection political speech interests may outweigh a municipality's regulatory interests in a given case, those same interests are not present postevent and may be outweighed by a municipality's demonstrated interests in aesthetics or traffic safety. See Baldwin v. Redwood City, supra (10-day postelection removal requirement upheld).

So, assuming that reasonable post-election requirements apply to all temporary events, they would be valid under Collier v. Tacoma.

(Link to this question)

Request for sample performance standards and development regulations for sidewalk vendors including espresso stands.
Reviewed: 01/14

Please see the MRSC web page on Sidewalk Use Policies for sample business licensing and land use regulations for street merchants, mobile vendors, and espresso stands.  Also see:

 

(Link to this question)

Request for temporary use permits for farmers markets, holiday sales, tent cities, etc.
Reviewed: 01/14

See the following links to temporary use provisions from several Washington cities:

·         Oak Harbor Municipal Code, Ch. 19.35 - Temporary Use Permits (includes produce stands)

  • Vancouver Municipal Code Ch. 20.885 - Temporary Uses (includes produce stands)

In addition to the general temporary use permit information, you may be interested in specific information regarding permits for tent cities:

You may also be interested in specific information on farmers markets. Take a look at MRSC's Web page on Farmers Markets. Also see the codes noted above that address produce stands as part of the temporary use provisions.

(Link to this question)

To what extent, if any, may a city or county, oppose or promote an initiative to the legislature?
Reviewed: 01/14


A city's or county's activities with respect to an initiative to the legislature are subject in RCW 42.17A.635(4) to limitations identical to those provided in RCW 42.17A.555 with respect to ballot propositions and political campaigns. Specifically, the former statute provides as follows:

No elective official or any employee of his or her office or any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, in any effort to support or oppose an initiative to the legislature. "Facilities of a public office or agency" has the same meaning as in RCW 42.17A.555 and 42.52.180. The provisions of this subsection shall not apply to the following activities:

(a) Action taken at an open public meeting by members of an elected legislative body to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose an initiative to the legislature so long as (i) any required notice of the meeting includes the title and number of the initiative to the legislature, and (ii) members of the legislative body or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;

(b) A statement by an elected official in support of or in opposition to any initiative to the legislature at an open press conference or in response to a specific inquiry;

(c) Activities which are part of the normal and regular conduct of the office or agency;

(d) Activities conducted regarding an initiative to the legislature that would be permitted under RCW 42.17A.555 and 42.52.180 if conducted regarding other ballot measures.

However, because an initiative to the legislature involves a process that is different than a campaign for or against a ballot proposition, at least when the initiative is in the legislature, this prohibition needs to be analyzed separately with respect to an initiative to the legislature. Clearly, before an initiative to the legislature garners sufficient signatures and is certified and presented to the legislature, there is really no difference between the application of the prohibition in RCW 42.17A.555 and RCW 42.17A.635(4).

Fortunately, the Public Disclosure Commission (PDC) has addressed the issue of what a public agency may do with respect to an initiative to the legislature when it is going through the legislative process (e.g., may it lobby in the legislature for or against the initiative?). In Declaratory Order No. 14, the PDC concludes that that public agencies may engage in lobbying activities authorized by RCW 42.17A.635(2) and (3) with respect to initiatives to the legislature. RCW 42.17A.635(2) and (3) set out the basic authority and limitations on lobbying of the legislature by public agencies. Since public agencies have specific statutory authority to lobby, as long as the lobbying activities are limited to those allowed by RCW 42.17A.635(2) and (3), lobbying in support or opposition to an initiative to the legislature is considered "part of the normal and regular conduct" of a public agency. Thus, such activities fall under the exemption to the prohibition on the use of public office or facilities in RCW 42.17A.635(4)(c).

Although there is no other authority on this issue, the courts will defer to the PDC's interpretation, as it is the agency charged with enforcement of chapter 42.17 RCW.

(Link to this question)

Is the city council required to take minutes in an executive session?
Reviewed: 01/14

MRSC has consistently taken the position that minutes are not required for an executive session. This position is based on RCW 42.32.030, which 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.

Although, this statute could be worded better for purposes of this issue, the clear implication is that "boards, commissions, agencies or authorities" need not take minutes when meeting in executive session. The courts have not addressed this issue.

MRSC recommends that minutes not be kept of executive sessions because then a public records request could be made for the minutes and there is not an automatic exemption from disclosure that applies.

(Link to this question)

May the mayor speak in favor of an annexation ballot measure in a state-of-the-city address?
Reviewed: 01/14


No. This would be a violation of the restrictions in RCW 42.17A.555 on the use of public office or facilities in election campaigns or in support of or in opposition to ballot measures. Certain actions by elected officials that involve supporting or opposing a ballot measure are allowed by this statute, and one authorized action is a statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry. However, a state-of-the-city address is not an open press conference and it is not in response to a specific question. Both of these are different from a prepared statement given by an elected city official as part of a planned speech. Nevertheless, if a question arises after his speech about his position on this ballot measure, then he may respond. Also, the mayor could provide some objective, factual information concerning the annexation during the speech.

(Link to this question)

May a councilmember promote his reelection campaign during a council meeting?
Reviewed: 01/14

Any comments made during a council meeting that promote the candidacy of a person for elective office is a potential violation of RCW 42.17A.555. That statute prohibits the use of any public office or facility to promote the campaign of any person for elective office or to promote or oppose a ballot proposition.

It would, however, be permissible for the city to host a candidates' forum and afford all the candidates an equal opportunity to promote their campaigns.

(Link to this question)

May county planning commission and board of adjustment meetings be shifted to different locations around the county?
Reviewed: 12/13

While the county commissioners are required to hold their regular meetings in the county seat (RCW 36.32.080), we can find no similar language relating either to planning commissions or boards of adjustment. The Open Public Meetings Act, when referring to the places of meetings, merely states in part:

The governing body of a public agency shall provide the time for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body. Unless otherwise provided for in the act under which the public agency was formed, meetings of the governing body need not be held within the boundaries of the territory over which the public agency exercises jurisdiction...

(Our emphasis) RCW 42.30.070.

The term “regular meeting” means “recurring meetings held in accordance with a periodic schedule declared by statute or rule.” RCW 42.30.075. For state agencies, the agencies are supposed to give notice to the code reviser regarding the time and place of their regular meetings; there is no similar requirement for non-state agencies. However, as a practical matter, other agencies do list the time and place of their regular meetings when they adopt a rule, resolution or bylaw setting the schedule for regular meetings.

In our opinion, the planning commission and/or the board of adjustment could meet at different locations throughout the county. One way to accomplish that would be to establish a rule indicating that the commission/board will meet on the first Tuesday (or whatever other day that may be selected) of each month at ___ in city A, at ___ on the second Tuesday of each month in city B, etc. The alternative would be to provide notice of each meeting, similar to what is done for special meetings.

(Link to this question)

May a local governing body, such as city council or a board of county commissioners, pass a resolution in support of or in opposition to a statewide initiative at an open public meeting?
Reviewed: 12/13


Yes, this may be done if two procedural steps set forth in RCW 42.17A.555 are followed. First, any required notice for the meeting must include the title and number of the ballot proposition. Second, members of the legislative body or the public who hold an opposite view must be given an approximately equal opportunity to express their views at the meeting. If these procedures are followed, the elective governing body of a local government may pass a formal resolution in opposition to or in support of the initiative.

(Link to this question)

May a local government officer or employee campaign for or against a statewide initiative on his or her own time?
Reviewed: 12/13

Yes, this is permissible as long as public facilities are not utilized and the work is done on private time, there is no violation of state law. This is expressly authorized in WAC 390-05- 271(1), which provides that  RCW 42.17A.555 does not restrict the right of any individual to express his or her personal views concerning, supporting, or opposing a ballot proposition so long as such expression does not involve a use of public facilities.

(Link to this question)

May local government staff or officials prepare or distribute campaign materials during working hours in support of or in opposition to a statewide initiative?
Reviewed: 12/13


No. Clearly this would violate the prohibition in RCW 42.17A.555 against use of public office to support or oppose ballot propositions. This prohibition applies to elective and appointive officials and employees of counties, cities, towns, school districts, port districts, transit districts, and other special districts.

(Link to this question)

What is the legal procedure for selling real property owned by the county to a private individual?
Reviewed: 12/13

The procedure for selling county real property to a private individual is set out in chapter 36.34 RCW and, specifically, in these statutes: 

  • RCW 36.34.010 - Authority to sell property (personal or real) - and what to do if reserving mineral rights
  • RCW 36.34.020 - Publication of notice of intention to sell ("once each week during two successive weeks in a legal newspaper of general circulation in the county"). Includes exceptions (to these procedures), such as when selling to another governmental entity or when the property is worth less than $2500. So, unless the property here is worth less than $2500, it would not be exempt from these procedures.
  • RCW 36.34.030 - Notice of the hearing on the proposal to sell the property. Requires posting; publication would be part of the notice of intention to sell, per RCW 36.34.020; first publication must be at least 10 days before hearing.
  • RCW 36.34.040 - Public hearing; what is required.
  • RCW 36.34.050 - Findings and determination (within three days of hearing) - County commissioners may set minimum price.
  • RCW 36.34.080 - Sale by public auction, or at a "privately operated consignment auction that is open to the public, or by sealed bid to the highest and best bidder meeting or exceeding the minimum sale price as directed by the county legislative authority."
  • RCW 36.34.090 - Notice of the sale - posting and publication.
  • RCW 36.34.100 - What the notice of the sale must say.
  • RCW 36.34.110 - Disposition of proceeds of sale

The above requirements would be supplemented by any additional procedures the county may have adopted for the sale of property.

(Link to this question)

Does the 1,000 foot buffer for recreational marijuana businesses apply to residential zones?
Reviewed: 12/13

The 1,000 foot buffer (measured "as the crow flies") does not include residential zones. The buffer only applies to:

- Elementary and secondary schools
- Playgrounds
- Recreation centers or facilities
- Child care centers
- Public parks
- Public transit centers
- Libraries
- Arcades

Note that the Liquor Control Board will not issue a license for a marijuana business in a personal residence. WAC 314-55-015(5). But, a marijuana business could establish itself in the commercial or industrial zones directly adjacent to a residential zone, if, of course, that is allowed by local zoning.

You could choose to zone marijuana businesses into one specific zone, e.g., just industrial or just commercial, or even a subset of a commercial or industrial zone. For information on how some cities have zoned for recreational marijuana uses, see MRSC's web page on recreational marijuana, which has links to city ordinances.
 

(Link to this question)

May a problem with the doctrine of incompatible offices be cured by abstaining from voting on a specific issue?
Reviewed: 12/13

No, if two offices are incompatible, the incompatibility may not be cured by abstention from voting on a specific issue.

This conclusion is supported by McQuillin, Municipal Corporations, where it is noted in regard to the application of the doctrine of incompatibility:

Although the conflict in duties may never arise, it is enough that it may, in the regular operation of the statutory plan. It is not an answer to say that if a conflict should arise, the incumbent may omit to perform one of the incompatible roles. The doctrine of incompatibility was designed to avoid the necessity for that choice.

McQuillin, Third Edition, Vol. 3, Sec. 12.67.

So our conclusion is that, if the duties and responsibilities of the two offices in question make them incompatible, it cannot be cured by abstaining on specific issues.

(Link to this question)

Are the positions of councilmember and PUD commissioner incompatible?
Reviewed: 12/13

If a Public Utility District is providing service to all or portions of the city, then the positions would appear to be incompatible. When analyzing similar factual patters, MRSC has generally opined that the positions of councilmember and elected commissioner of a special purpose district that is either located or providing services within the city results in an incompatibility problem. There do not appear to be any court decisions or Attorney General opinions that deal specifically with the incompatibility of councilmember and PUD commissioner positions. However, see AGO 1978 No. 12 wherein the Attorney General's Office concluded that the same individual may not simultaneously serve as a port district commissioner and as mayor of a town that is situated entirely within the boundaries of the port district.

(Link to this question)

What is the doctrine of incompatible offices?
Reviewed: 12/13

The doctrine of incompatible office, as established by the courts, provides that the same person may not hold two or more public offices that are incompatible. Incompatibility may arise in different ways, such as where the functions of the offices are inconsistent (e.g., where one is subordinate to the other) or, more generally, where holding the offices is considered detrimental to the public interest. Incompatibility will be found to exist if the holder of both offices cannot in every instance faithfully and impartially discharge the duties of both offices.   See Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957). 

(Link to this question)

May city council interview candidates for city manager in executive session and, while still in executive session, reach a consensus on the candidate to be offered the position?
Reviewed: 11/13

No. Although the city council may interview the candidates for this appointive position in executive session under RCW 42.30.110(1)(g) for the purpose of evaluating the qualifications of applicants for public employment, it may not take any action other than evaluating the candidates. Identifying a consensus candidate in executive session would be action that is not authorized by this provision for holding an executive session. In Miller v. Tacoma, 138 Wn.2d 318, 328 (1999), the state supreme court stated:

 

Reading the exception in [RCW] 42.30.110(1)(g) narrowly and in accordance with the purposes of the act, it is clear the council could discuss and consider the worth, quality and significance of the applicants' qualifications, and individual council members could express their opinions on such matters, but they could not choose a candidate. Here the council conducted a secret ballot. This did not weigh or evaluate the qualifications of the applicants, but identified a consensus candidate for appointment to the planning commission. As such, these secret ballots constituted "action" beyond mere evaluation of the candidates' qualifications and therefore fell outside the scope of the RCW 42.30.110(1)(g) exception.

(Link to this question)

May a city council or board of county commissioners meet in executive session to review the qualifications of candidates for selection as an independent contractor?
Reviewed: 11/13

No. The only provision for executive sessions in the Open Public Meetings Act under which this could possibly fit is RCW 42.30.110(1)(g), which allows an executive session "[t]o evaluate the qualifications of an applicant for public employment." The council or board could meet in executive session in this case under this provision only if "an applicant for public employment" could be construed to cover an "applicant" to be an independent contractor. Since the Open Public Meetings Act is to be "liberally construed" by the courts so that any exceptions are narrowly confined (RCW 42.30.910 ), a court would not likely construe an independent contractor to be a public employee, since they are two different legal statuses.

(Link to this question)

If the city council or board of county commissioners meets in executive session to consider the purchase of real estate, may it in that executive session direct staff to do some preliminary work concerning acquiring the property?
Reviewed: 11/13

Yes, in our opinion, subject to the caution below. Note also that the council or board may meet in executive session to consider purchasing real property only "when public knowledge regarding such consideration would cause a likelihood of increased price." 

Since this provision recognizes that the process of purchasing or leasing real property or selecting real property to purchase or lease may justify an executive session, it implies that the governing body may need to reach some consensus in closed session as to the price to be offered or the particular property to be selected.  However, the state supreme court in Miller v. Tacoma, 138 Wn.2d 318, 327 (1999), emphasized that "only action explicitly specified by [an] exemption may take place in executive session." Taken literally, this limitation would preclude a governing body in executive session from actually selecting a piece of property to acquire or setting a price at which it would be willing to purchase property, because such action would be beyond mere "consideration."  Yet, the purpose of allowing this type of consideration in an executive session would seemingly be defeated by requiring a vote in open session to select the property or to decide how much to pay for it, where public knowledge of these matters would likely increase its price.  Until this issue receives judicial or legislative resolution, city and county legislative bodies should exercise caution when meeting in executive session under this provision.

(Link to this question)

Must meetings be held in a specific place?
Reviewed: 11/13

The Open Public Meetings Act does not address where meetings may be held.  Other laws may, however, place limitations on where governing bodies may meet and take action,  For example, final action may not be taken by the council of a code city, second class city, or town on an ordinance or resolution if the meeting is held outside the corporate limits of the municipality.  RCW 35A.12.110; RCW 35.23.181; RCW 35.27.270.

(Link to this question)

Are social gatherings covered by the Act?
Reviewed: 11/13

Social gatherings are expressly excepted, unless, of course, official business is discussed or transacted at the gatherings.  RCW 42.30.070 provides in relevant part as follows: "It shall not be a violation of the requirements of this chapter for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter."

(Link to this question)

Does the Open Public Meetings Act require that notice be given for a regular meeting?
Reviewed: 11/13

A "regular" meeting is defined as a recurring meeting held pursuant to a schedule fixed by statute, ordinance, or other appropriate rule. The Open Public Meetings Act itself does not require any specific notice of a regular meeting beyond that adopted schedule. However, other statutes require city and town councils to establish a procedure for notifying the public of meeting agendas. RCW 35.27.300 (towns); RCW 35.23.221 (second class cities); RCW 35.22.288 (first class cities); RCW 35A.12.160 (code cities).

(Link to this question)

What notice does the Act require be given for a special meeting?
Reviewed: 11/13

A "special" meeting is any meeting other than a "regular" meeting.  A special meeting must be announced by written notice delivered personally, by mail, by fax, or by email at least 24 hours in advance of the meeting to all members of the governing body and to the news media who have filed written requests for such notice.  RCW 42.30.080. That statute also requires that the notice be posted on the agency's web site, unless it doesn't have a web site or if has fewer than 10 full-time employees or if it doesn't employ personnel whose duty it is to maintain or update the web site. Also, the notice must be "prominently displayed at the main entrance of the agency's principal location," if that's where the meeting is to be held.

(Link to this question)

When is a committee of the governing body subject to the Open Public Meetings Act?
Reviewed: 11/13

A meeting of a committee of a governing body is subject to the Open Public Meetings Act when it acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. RCW 42.30.020(2). A committee acts on behalf of the governing body when it exercises actual or de facto decision-making power. AGO 1986 No. 16. So, for example, if a committee is merely gathering information that will result in a recommendation to the full governing body, it most likely is not subject to the Open Public Meetings Act because it is not exercising actual or de facto decision-making authority in these circumstances.

(Link to this question)

What is a sufficient statement of purpose regarding an executive session?
Reviewed: 11/13

The announcement of an executive session should state the purpose of the session and contain enough information to make it clear that the subject matter fits within one of the statutory provisions for an executive session. For example, stating that the executive session is to discuss a "personnel matter" is not sufficient, because only certain types of personnel matters are appropriate for discussion in an executive session. More specificity is required; for example, "to evaluate complaints against an employee." Additionally, citation to the precise subsection of RCW 42.30.110(1) authorizing the executive session would add specificity.

(Link to this question)

Must a civil service hearing be open to the public?
Reviewed: 11/13

Yes. Although the Open Public Meetings Act does not apply to quasi-judicial hearings like civil service hearings (RCW 42.30.140(2)), state civil service statutes require that a civil service commission hearing be open to the public.  RCW 41.08.090; RCW 41.12.090; RCW 41.14.120.

(Link to this question)

Can the Civil Service Commission deliberate in private after the hearing portion of the proceeding?
Reviewed: 11/13

Yes. This is allowed by RCW 42.30.140(2). That statute exempts from the requirements of the Open Public Meetings Act "That portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group."  The civil service statutes, however, require that the hearing itself be public. RCW 41.08.090; RCW 41.12.090; RCW 41.14.120.
 

(Link to this question)

What about emergency situations when there is no time for notice to be given before a meeting?
Reviewed: 11/13

An emergency - such as a fire, flood, or earthquake - that results in the need for expedited action triggers suspension of special meeting notice requirements under RCW 42.30.070.

(Link to this question)

Is there a limit on the amount of territory that a city or town may annex?
Reviewed: 11/13

The only statutory limitation is applicable to towns. Towns with a population of 1,500 or less and towns located in counties with a population of one million or more are limited to two square miles in total area. Towns of more than 1,500 population in counties with less than one million population are limited to three square miles in total area. RCW 35.21.010.

In addition, towns may not annex more than 20 acres of unplatted land belonging to any one person without the consent of the owner. RCW 35.21.010. (This limitation applies to state-owned lands as well as privately held lands. AGO 57-58 No. 107.)

Towns that change their classification to become code cities are no longer under these limitations.

(Link to this question)

May a city annex across a river, a body of water, tidelands, or shorelands?
Reviewed: 11/13

An area proposed to be annexed to a city is to be deemed contiguous to the city even though separated by water, tidelands, or shorelands (shores of a lake or river, not subject to tidal flow). The statute applicable to code cities also provides that, upon annexation of such an area, the intervening water and/or tideland or shoreland is to become a part of the annexing city. RCW 35.13.010, RCW 35A.14.010.

(Link to this question)

May a city annex property lying in another county?
Reviewed: 11/13

There is no enabling legislation that specifically allows cities and towns to annex territory located in another county, although RCW 35A.14.020, relating to the election method of annexation in code cities, sets out a process for reviewing petitions where the territory in question is located in more than one county. This lack of specific statutory authority has led to some confusion as to whether such an annexation is legal, and the issue may not be definitely answered until either enabling legislation is enacted by the legislature or until the issue is decided by the state supreme court.

However, the stronger argument appears to be that in favor of a city's authority to annex across county lines. In AGO 59-60 No. 37, the attorney general's office concluded that a first class city "lying wholly within one county can annex contiguous territory in another county." This opinion was based not upon the broad authority granted first class cities by statute, but upon the broad powers granted all cities with respect to annexation. The opinion notes that crossing county boundary lines is not prohibited by any section of annexation law, and that the state legislature has specifically authorized the incorporation of any area lying in two or more counties. See, e.g., RCW 35.02.001, 35.02.015.

The cities of Woodland, Milton, and Bothell, and the town of Coulee Dam include territory in two or more counties.

(Link to this question)

May a city annex a very narrow strip of land (such as a road right-of-way) leading to a larger tract of land?
Reviewed: 11/13

(This practice is known as a "shoestring" or "corridor" annexation, and the narrow strip of land is intended to make the larger tract at its end "contiguous" to the annexing city.) A shoestring annexation probably would be invalidated, if challenged within a reasonable period of time. In Long v. City of Olympia, 72 Wn.2d 85 (1967), the state supreme court recognized precedent in other states overturning shoestring annexations as not being properly contiguous to the annexing municipality. However, the court in Long upheld an annexation in which the annexed area was roughly shaped like an hour glass, the bottom of the glass abutted to the annexing city, and the top of the glass "substantially" abutted it.

The King County Superior Court has in two decisions from the 1950s invalidated shoestring annexations as not sufficient to satisfy statutory requirements of contiguity. State ex rel. Jonson v. Carroll, Superior Court for King County, Cause No. 508550 (1957), and State ex rel. Carroll v. Town of Houghton, Superior Court for King County, Cause No. 512321 (1957). These decisions were not appealed.

On the other hand, the Attorney General concluded in an old opinion that a city could annex the right-of-way of a state highway and privately owned property situated one-half mile from the city abutting on the highway. AGO 51-53, No. 269. Given the more recent precedents cited above, however, the continuing validity of this opinion may be questioned.

In connection with this issue, a 1964 informal attorney general's opinion (April 14, 1964, to State Senator Don L. Talley) is relevant. In this opinion, the attorney general's office concluded that additional property may be annexed to the "shoestring" portion of a "shoestring annexation," where the original shoestring annexation was properly accomplished under the municipal purposes method of annexation.

(Link to this question)

Where territory proposed for annexation and the city touch only at corners, and a person cannot pass from one to the other without passing outside the municipal boundaries, is that territory considered contiguous?
Reviewed: 11/13

Probably not. While this issue has not been addressed by the Washington State Supreme Court, other state courts have not permitted annexations of areas that touch a city only at corners. See Comment, Annexation by Municipal Corporations, 37 Wash. L. Rev. 404, 408 (1962).

(Link to this question)

May owners of tax-exempt property, such as cities and special districts, sign annexation petitions?
Reviewed: 11/13

Yes, owners of tax-exempt property may sign annexation petitions just as owners of taxable property may. See Johnson v. Spokane, 19 Wn. App. 722 (1978), review denied, 90 Wn.2d 1026 (1978). See also, Parosa v. Tacoma, 57 Wn.2d 409 (1960), concluding that the Port of Tacoma had authority to petition the City of Tacoma for annexation of its property, since one of the attributes of land ownership is the right to petition for annexation to a city.

Is property owned by a school district that is considered for annexation under the petition method treated any differently?

Answer: There is a statute that relates specifically to this type of annexation. RCW 28A.335.110 authorizes a school district board of directors to petition for annexation only when the school district property is all of the property included in the annexation petition.  See King County Water Dist. No. 90 v. City of Renton, 88 Wn. App. 214 (1997). 

May state-owned land be annexed?

Yes. However, two attorney general opinions (AGO 1947-48 p. 22 and AGO 57-58 No. 107) cast doubt on the authority of state officials to sign annexation petitions absent specific legislative authorization applicable to the state agency involved. However, since one of the attributes of real property ownership is the right to petition for annexation to a city (see Johnson and Parosa, cited in the question above), it is arguable that a state agency with authority to own land would have similar authority to petition for annexation if it desired to do so.

Alternatively, state land could be annexed by a method that does not require a petition to be signed on behalf of the state property, such as the election method initiated by resolution, or the petition method where enough signatures are obtained from private property owners to meet the percentage requirement.

Must both a husband and wife sign an annexation petition?

The signature of a record owner is sufficient without the signature of his or her spouse. RCW 35.21.005(9)(a); RCW 35A.01.040(9)(a). However, it still may be advisable for both spouses to sign the petition.

If two or more individuals jointly own property, must all sign the petition?

Although there is no specific legal authority on this question, it would appear that all the individual owners should sign the petition in order for the property to be considered as part of the percentage required for a sufficient petition.

(Link to this question)

Who should sign an annexation petition when property is being sold under contract?
Reviewed: 11/13

RCW 35.21.005(9)(c) and RCW 35A.01.040(9)(c) provide that the signature of the contract purchaser, as shown by the records of the county auditor, is sufficient (without the signature of his or her spouse).

(Link to this question)

Once property owners have signed an annexation petition, may they withdraw their names from it if they change their minds?
Reviewed: 11/13

Yes, up to a certain point in time. RCW 35.21.005(4) and RCW 35A.01.040(4) require that a certificate be filed by the county officer who will determine the sufficiency of the petition. This certificate is to contain the date on which the determination of the sufficiency of the petition is begun. This is known as the “terminal date.” A signature may be withdrawn by a written request that is filed prior to the terminal date. The written request must describe the petition sufficiently so identification of the person and petition is certain. The name of the person seeking to withdraw is to be signed exactly as is signed in the petition.

(Link to this question)

After property owners withdraw their names from a petition, may they change their minds once more and revoke the withdrawal?
Reviewed: 11/13

Yes, as long as they take this action before the terminal date, as explained in the preceding question.

(Link to this question)

Is a petition signature valid if the property represented by that signature is sold prior to the filing of the petition?
Reviewed: 11/13

No. A signature is not valid if it is not by the owner of property in the area proposed for annexation. Since the validity of signatures and the sufficiency of a petition are determined after it is filed, a signature by a person that, at the time of petition filing, no longer owns the property for which he or she signed would not be a valid signature. See January 11, 1993 letter from Senior Assistant Attorney General James K. Pharris to Senator Dean Sutherland..

(Link to this question)

May neighboring landowners located outside of both the annexing city and the proposed annexation area participate in public hearings on the annexation?
Reviewed: 11/13

Yes. The state supreme court concluded in Tukwila v. King County, 78 Wn.2d 34, 39 (1970), that neighboring landowners should be notified of annexations in the general vicinity of their property and be given a chance to appear and be heard.

(Link to this question)

May a city use its facilities and staff to help solicit signatures for an annexation petition or otherwise promote an annexation using the petition method?
Reviewed: 11/13

Yes. Since petition method annexations do not involve ballot propositions, the prohibition in RCW 42.17A.555 against the use of city facilities and staff in support of a ballot proposition does not apply. Also, since annexation questions have impacts on almost all aspects of city operations, it would be a proper municipal purpose to use city facilities and staff in this manner. See January 11, 1993 letter from Senior Assistant Attorney General James K. Pharris to Senator Dean Sutherland.

(Link to this question)

May a city recover the expenses it incurs in handling annexation requests using the petition method?
Reviewed: 11/13

It is probable that cities, particularly first class and code cities, have the authority to charge fees for handling and processing annexation petitions. A number of cities charge fees for this purpose. However, it is unlikely that the fees charged will in most cases actually cover all the costs associated with a petition method annexation.

(Link to this question)

Is the assessed value of school property included in the valuation for the purposes of the petition method for annexation?
Reviewed: 11/13

School district property is included in the property valuation. However, based on the decision in King County Water District No. 90 v. Renton, 88 Wn. App. 214 (1997), a school district does not have the authority to sign an annexation petition unless the only property in the annexation is school district property.

So, when property owned by a school district is only part of the area proposed for annexation, the city has to obtain signatures from property owners representing 60 percent of the assessed value of the proposed annexation area, without counting the school property.

(Link to this question)

Are cities required to give property owners within 300 feet of a proposed petition method-annexation notice by direct mail of a public hearing for adoption of an annexation ordinance, or is publication of the notice sufficient?
Reviewed: 11/13

There is no requirement in state law that a city mail notice of the hearing to property owners within 300 feet of the proposed annexation. The only notice requirements in state law for the hearing are that the city must publish notice at least once in a newspaper of general circulation in the city and must post the notice in at least three public places within the territory to be annexed. See RCW 35.13.140 and RCW 35A.14.130.

(Link to this question)

How many votes are necessary to approve an election method annexation?
Reviewed: 11/13

A majority vote is sufficient if the vote is only on the proposition for or against annexation; or, for or against annexation and adoption of the comprehensive plan or proposed zoning regulation. If a separate proposition to assume all or a portion of city indebtedness is before the voters, a three-fifths vote is necessary for approval of that proposition and the total number of votes cast must be at least 40 percent of the votes cast in the area in the last preceding general election. RCW 35.13.090RCW 35A.14.080.

The propositions to annex and to assume indebtedness may be combined on the same ballot, in which case the ballot proposition must be approved by three-fifths of those voting and the total number of votes cast must be at least 40 percent of the votes cast in the area at the last preceding general election. However, the city council may adopt a resolution accepting the annexation without the assumption of debt where the combined ballot is approved by only a simple majority of those voting. RCW 35.13.095; RCW 35A.14.085.

(Link to this question)

May the election method of annexation be used where there are no residents in an area proposed for annexation?
Reviewed: 11/13

No. There cannot be an election where there are no voters or electors residing in the area in which the election would be conducted. See AGO 55-57 No. 214.

(Link to this question)

Should a city council hold a formal public hearing (after giving notice) for an election method annexation?
Reviewed: 11/13

The statutes governing the election method do not require a public hearing. Meek v. Thurston County, 60 Wn.2d 461, 465 (1962).

(Link to this question)

What election is used as the basis for determining how many signatures are necessary on a petition to initiate an annexation by the election method for first and second class cities and for towns?
Reviewed: 11/13

RCW 35.13.020 provides that a petition for annexation must be signed by the residents in the area equal in number to 20 percent of the votes cast "at the last election." Unlike some of the other annexation statutes, RCW 35.13.020 does not refer to the "last state general election" or the "last preceding general election" it merely refers to the "last election." "Election" is defined in RCW 29A.04.043 to mean "a general election except where the context indicates that a special election is included." Thus, the "last election" refers to the last general election (which is held in November).

(Link to this question)

Must a first or second class city or a town own the property it seeks to annex for municipal purposes under RCW 35.13.180?
Reviewed: 11/13

No, although all the property owners in the area must give their written consent to the annexation. RCW 35.13.180. Of course, the city or town would, as a practical matter, need to acquire a sufficient interest in the property, if not outright ownership, to be able to make use of the property for municipal purposes. (Code cities must own the property to annex it for municipal purposes under RCW 35A.14.300.)

(Link to this question)

Must a city actually use land annexed for municipal purposes for the purpose for which it was annexed?
Reviewed: 11/13

In an informal opinion dated July 19, 1966, the attorney general's office concluded that a municipal purposes annexation could be successfully challenged if a city annexed the area with a preconceived intention to use it for a purpose not contemplated by the statute. (The attorney general's office was analyzing the municipal purposes method under RCW 35.13.180, but the reasoning of the opinion should be equally applicable to municipal purposes annexations by code cities under RCW 35A.14.300.)

However, proceedings resulting in annexations are presumptively valid. Unforeseen changes of circumstances would probably be recognized as sufficient to support a change in use if the city's original intention becomes impossible to accomplish or if there is a reasonable basis for the city to determine that the municipal purpose use can no longer be continued.

(Link to this question)

Is noncontiguous property annexed by a city for municipal purposes subject to city or county zoning?
Reviewed: 11/13

After annexation, noncontiguous land becomes part of the city and is subject to the city's zoning authority just as if it were contiguous. (See Informal Opinion of the Attorney General to the Chelan County Prosecuting Attorney, dated July 19, 1966.)

(Link to this question)

May a city that is subject to the Growth Management Act annex territory for municipal purposes that lies outside its urban growth area?
Reviewed: 11/13

No. The statutory prohibition on annexing territory outside an urban growth areas all-inclusive. It makes no exception for municipal purpose annexations, even though there may be valid policy reasons to exclude such annexations from this prohibition. RCW 35.13.005; RCW 35A.14.005.

(Link to this question)

How can a city know whether the legal description on an annexation petition is adequate?
Reviewed: 11/13

The adequacy of a legal description of territory proposed for annexation is judged by whether a competent surveyor, either with or without the aid of extrinsic evidence, could ascertain the property in question. Long v. City of Olympia, 72 Wn.2d 85 (1967); McAlmond v. City of Bremerton, 60 Wn.2d 383 (1962). After review by the city engineer, some cities forward legal descriptions of proposed annexations to the county engineer early in the annexation process, requesting comments on adequacy.

(Link to this question)

What if an annexation ordinance for a petition method annexation inadvertently describes an area that is larger than that contained in the petition?
Reviewed: 11/13

An attorney general opinion concluded that, where an annexing ordinance described a larger parcel of property than that contained in the annexation petition, it is void. However, the annexation ordinance could be reenacted based upon the original annexing petition and hearing, where there was an inadvertent misdescription, as long as conditions had not materially changed to make the annexation less advantageous either to the city or property owners. AGO 53-55 No. 173.

(Link to this question)

Will a minor error in an annexation notice invalidate an annexation proceeding?
Reviewed: 11/13

Not necessarily. A footnote to the decision of the state supreme court in Tukwila v. King County, 78 Wn.2d 34 (1970), states that a minor error in notice does not mean the automatic invalidation of the annexation proceedings. In that case, the court upheld an annexation even though portions of the legal description were garbled as a result of a drafting or typographical error, because all of the property owners within the proposed annexation knew of and attended the annexation hearing and because the property was treated as a part of the city for the next four and one half years.

Slight deviation from statutory election notice timetables has also been permitted where much publicity on the annexation occurred through radio and news accounts and through the distribution of printed literature. Long v. City of Olympia, 72 Wn.2d 85 (1967).

Of course, a significant error, such as a major flaw in a legal description, would cause a court to invalidate an annexation. See State ex. rel Great Northern Railway v. Herschberger, 117 Wash. 275 (1921). The courts have invalidated an annexation election when formal notice was published in a newspaper that was not circulated in the area proposed for annexation. Davis v. Gibbs, 39 Wn.2d 481 (1951).

(Link to this question)

Is there a limitation on challenging annexation proceedings in second class cities?
Reviewed: 11/13

RCW 35.23.545, known as a "curative" statute, requires legal challenges to annexation proceedings in second class cities to be made through a quo warranto action within one year. After one year, any errors or defects in the annexation cannot be a basis for invalidating the annexation.

(Link to this question)

Is an annexation ordinance subject to a referendum?
Reviewed: 11/13

Under State ex rel. Bowen v. Kruegel, 67 Wn.2d 673 (1965), an annexation ordinance under the petition method of annexation is not subject to a referendum. See also Leonard v. Bothell, 87 Wn.2d 847 (1976). The election method is, of course, equivalent to a referendum procedure.

(Link to this question)

When will the ordinances of the annexing city be effective in the annexed area?
Reviewed: 11/13

The laws of the annexing city apply to the annexed area as of the effective date of the annexation. Hoops v. Burlington Northern, Inc., 83 Wn.2d 396 (1974).

(Link to this question)

If a city annexes land adjacent to a navigable river, does it have any jurisdiction in the water area?
Reviewed: 11/13

Under RCW 35.21.160 and RCW 35A.21.090, a city acquires jurisdiction to the center of a navigable river when it annexes the bank of the river. See also AGO 59-60 No. 60.

(Link to this question)

May a city annex or consolidate with a neighboring city or town?
Reviewed: 11/13

Yes, a city may annex a contiguous city or town, or two (or more) cities may consolidate with each other. See procedures under chapter 35.10 RCW.

(Link to this question)

May a city require owners of property located outside of a city to sign an "outside utility agreement" or "preannexation agreement" as a condition of extending city utilities?
Reviewed: 11/13

An "outside utility agreement" or "preannexation agreement" typically provides that owners of property outside of the city agree, as a condition of receiving utility service from the city, to sign an annexation petition when the city wants to annex the land at some point in the future.

The state supreme court upheld the validity of such agreements in Fire Protection District v. Yakima, 122 Wn.2d 371 (1993).

(Link to this question)

What constitutes a "meeting" under the Open Public Meetings Act?
Reviewed: 11/13

The Open Public Meetings Act (OPMA) covers all "meetings" of a local governing body. There is a common misunderstanding that the term "meeting" only applies if the governing body takes some kind of final action or vote - such as adopting an ordinance or a motion.

However, the definition of "meeting" in the OPMA is actually much broader than that. "Meeting" is defined to include any meeting when "action" is taken. "Action" is defined to include discussion, deliberations, considerations, reviews, evaluations, and it also includes, of course, final actions when a formal vote is taken. But it is clear that the OPMA covers all meetings of a quorum of a local governing body whenever there is merely discussion of the business of the agency, even if no votes or final actions are planned or taken. If a quorum of the governing body discusses agency business, then they are having a "meeting" as defined in the OPMA and the notice and other requirements of the Act apply. See RCW 42.30.020; RCW 42.30.030

(Link to this question)

May the city council meet privately to review the progress in collective bargaining negotiations?
Reviewed: 11/13

The city council may meet in closed session to review the progress in collective bargaining negotiations. RCW 42.30.140(4) provides that the Open Public Meetings Act (OPMA) does not apply to the following:

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

So as long as the council is considering any of the above types of actions relating to collecting bargaining sessions, then the OPMA does not apply. This means that no specific notice of the meeting must be given, the public is not entitled to attend, no minutes need to be kept of the meeting, and so on. It is simply outside the OPMA requirements.

(Link to this question)

May a member of the public videotape council or commissioner meetings?
Reviewed: 11/13

A local government probably may not prohibit the public from using video or tape recorders at a public meeting as long as the taping is done in a reasonable manner and the meeting is not disrupted. See AGO 1998 No. 15, which opined that a county does not have authority to ban video or sound recording of a meeting open to the public.

(Link to this question)

How many councilmembers are needed to call a special meeting in a code city having a seven-member council?
Reviewed: 11/13

The Open Public Meetings Act authorizes the city council, in addition to the mayor, to call special council meetings. However, there is a conflict between a code city statute (RCW 35A.12.110) and an Open Public Meetings Act statute (RCW 42.30.080) as to how many councilmembers are necessary to call a special meeting. The former allows three councilmembers to call a special meeting, and the latter allows a majority of the councilmembers, which would be four in a seven-member council, to do so. The Open Public Meetings Act statute is the one that must be followed here because of RCW 42.30.140, which states that, in the event of a conflict with another statute, the Open Public Meetings Act will control. Thus, four members of a seven-member council are needed to call a special meeting.

(Link to this question)

Would discussions of city business between two councilmembers be considered a council meeting subject to the Open Public Meetings Act?
Reviewed: 11/13

No. Because less than a quorum of the council is present, it would not be considered a meeting under the Act.

(Link to this question)

Must the public be allowed to attend an annual council retreat?
Reviewed: 11/13

Yes, a retreat is a council meeting which must be open to the public. Regardless of whether a meeting of the city council is called a council retreat, a council workshop, or a council study session, the Open Public Meetings Act requires that the public be allowed to attend. This does not mean that citizens must be given an opportunity to make comments to the council at the retreat, but they must be allowed to attend. Even if held outside the city limits, a retreat is still a meeting and the public must be allowed to attend.

(Link to this question)

May a multi-member legislative body (a quorum of that body) schedule a pre-meeting session or otherwise meet in advance of a meeting to review the upcoming meeting's agenda, collect materials or staff comments for the meeting, and discuss the business that will be considered?
Reviewed: 11/13

No, not without inviting the public and following the procedural requirements of the the Open Public Meetings Act. The Act requires all meetings of the governing body of a public agency be open and public. RCW 42.30.030. The Act defines the term "meeting" to be any meeting "at which action is taken." The term "action" is defined as:

(3) Action means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. Final action means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3). As one can see, the term "action" is very broadly defined and includes discussions or reviews of agency business. Even though no final action will take place on an issue, this "pre" meeting should be open to the public because a discussion of upcoming business will occur.

(Link to this question)

What happens if the Open Public Meetings Act is violated?
Reviewed: 11/13

There are several potential consequences for violating the requirements of the Open Public Meetings Act. Most importantly, actions taken in meetings that violate the Act are null and void, including the passage of ordinances and resolutions. In addition, a member attending a meeting knowing it is being held improperly can be punished by a civil fine of $100. The party that prevails in an action for violation of the Act may recover reasonable expenses and attorneys' fees under certain circumstances.  RCW 42.30.120.

(Link to this question)

May a citizen may make a sound recording of a council or board of commissioners meeting and transmit that over the Internet?
Reviewed: 11/13

The public has a right to make audio and video recordings of council or board of commissioners meetings, as long as it is done in a way that does not disrupt the meetings. See AGO 1998 No. 15. Given that right, we see no legal reason why a citizen could not transmit that recording over the Internet.

A citizen would not need council or board permission to make the recording or to transmit it over the Internet. However, if a citizen wanted to tap into the council or board's audio amplification system to obtain a clearer audio recording, he or she would need council or board permission for that.

(Link to this question)

May city or county legislative bodies meet in executive session to discuss "matters affecting national security," including terrorism security and response planning?
Reviewed: 11/13

Yes. A governing body is authorized under RCW 42.30.110(1)(a) to "consider matters affecting national security" in executive session.  Given the events of September 11, 2001, the threat of a terrorist attack or sabotage or the like clearly implicates national security issues. A terrorist attack, by its very nature, can be considered to be, in addition to a major risk to public safety, a matter of national security.

A 2001 change in the public disclosure law has some relevance to this issue. Although not using national security language, the 2001 state legislature adopted a new public disclosure exemption, which exempts:

Those portions of records assembled, prepared, or maintained to prevent, mitigate, or respond to criminal terrorist acts, which are acts that significantly disrupt the conduct of government or of the general civilian population of the state or the United States and that manifest an extreme indifference to human life, the public disclosure of which would have a substantial likelihood of threatening public safety.

RCW 42.56.420(1). In addition, the legislature made the following findings in Section (1) of this legislation:

The legislature finds that public health and safety is promoted when the public has knowledge that enables them to make informed choices about their health and safety. Therefore, the legislature declares, as a matter of public policy, that the public has a right to information necessary to protect members of the public from harm caused by alleged hazards or threats to the public.

The legislature also recognizes that the public disclosure of those portions of records containing specific and unique vulnerability assessments or specific and unique response plans, either of which is intended to prevent or mitigate criminal terrorist acts as defined in RCW 70.74.285, could have a substantial likelihood of threatening public safety. Therefore, the legislature declares, as a matter of public policy, that such specific and unique information should be protected from unnecessary disclosure.

A "terrorist act" is defined in RCW 70.74.285 as follows:

(A)n act that is intended to: (1) Intimidate or coerce a civilian population; (2) influence the policy of a branch or level of government by intimidation or coercion; (3) affect the conduct of a branch or level of government by intimidation or coercion; or (4) retaliate against a branch or level of government for a policy or conduct of the government.

Given this legislation's policy of nondisclosure of "records assembled, prepared, or maintained to prevent, mitigate, or respond to criminal terrorist acts," it would appear that a governing body meeting to discuss terrorism response or security plans would justify similar protection from "disclosure" under RCW 42.30.110(1)(a).

(Link to this question)

Are meetings of the county finance committee subject to the open public meetings act?
Reviewed: 11/13

Yes. RCW 36.48.070 provides:

The county treasurer, the county auditor, and the chair of the county legislative authority, ex officio, shall constitute the county finance committee. The county treasurer shall act as chair of the committee and the county auditor as secretary thereof. The committee shall keep a full and complete record of all its proceedings in appropriate books of record and all such records and all correspondence relating to the committee shall be kept in the office of the county auditor and shall be open to public inspection. The committee shall approve county investment policy and a debt policy and shall make appropriate rules and regulations for the carrying out of the provisions of RCW 36.48.010 through 36.48.060, not inconsistent with law.

This statute clearly indicates that the county finance committee, composed of elected officials, is required to adopt investment policies and establishes rules and regulations for the county. Because it is created by statute and possesses policy and rule-making authority, the county finance committee is, under the Open Public Meetings Act (chapter 42.30 RCW), a "subagency" of the county and also the "governing body" of that subagency. See definitions in RCW 42.30.020. Since the Open Public Meetings Act requires the meetings of a governing body of a public agency or subagency to be open to the public (RCW 42.30.030), the meetings of the county finance committee are subject to the provisions of the Act and must be open.

(Link to this question)

Is an employee recognition lunch where employees will be receiving service awards and a majority of the members of the governing body will be present a "public meeting" for purposes of the Open Public Meetings Act?
Reviewed: 11/13

If the members of the governing body merely attend the luncheon and do not sit together and discuss city or county business (as the case may be), this would not be a "meeting" of that body under the Open Public Meetings Act. As support for this position, see AGO 2006 No. 6. While not directly on point, this opinion indicates that, in some circumstances, a quorum of a city or county governing body may be in the same place at the same time, without there being a "meeting" of the body itself.

As stated in the AGO, the Open Public Meetings Act would apply if a majority of the governing body are present and they take any "action," which would include voting, deliberating together, or using the meeting as a source of public comment for action by the body. So the members of the governing body should be cautioned to avoid any such actions while they are attending the recognition lunch.

(Link to this question)

If a petition is submitted for annexation by election (RCW 35A.14.020), can a city pass over one or more special election dates to place the annexation on the next available general election ballot?
Reviewed: 11/13

Yes, the city does have some flexibility, within reason, in setting the special election date. The only specific parameter is that the election be at a special election date that is 60 or more days after the date the city council indicates its preference of date. The statute does not specify that the election must be at the next special election date that occurs 60 or more days after the council indicates its preference. 

The only other parameter in choosing the special election date would be reasonableness. For example, it probably would not be reasonable in November 2013 to select the November 2016 election date. The date should not be too far away. We don't think choosing the next general election date would be unreasonable as being too far away, even if that may be almost a year in the future.

(Link to this question)

May an exchange of emails between members of a governing body constitute a meeting for purposes of the Open Public Meetings Act (OPMA)?
Reviewed: 11/13

Yes. In Wood v. Battle Ground School District, 107 Wn. App. 550 (2001), the state court of appeals concluded that an exchange of emails between members of a governing body can constitute a "meeting" under, and in violation of, the Open Public Meetings Act if the members participating constitute at least a majority of the governing body's members, the participating members collectively intend to meet to transact the governing body's official business, and the participating members communicate about issues that may or will come before the governing body for a vote.

The court, however, indicated that the mere passive receipt of email does not automatically constitute a meeting. So members of a governing body can receive information about upcoming issues or communicate among themselves about matters unrelated to government business, without implicating the Open Public Meetings Act.
 

(Link to this question)

May councilmembers be informally polled by telephone on a particular issue prior to a council meeting?
Reviewed: 11/13

Polling, such as by telephone or email, of a majority or more of the council or board outside of a meeting that is open to the public can be a violation of the Open Public Meetings Act (OPMA).

A vote of the council or board - "action" under the OPMA - may take place only in a meeting open to the public. Even though a poll of the members is not an official vote of the council or board, that poll can be a violation of the OPMA if the poll participants are aware that a majority or more of the body is being polled and they are informed about how the others vote. (We even advise against one member polling the others, even if the others are not aware of the polling of the rest of the body.)  In that type of situation, the council or board can end up effectively deciding in advance of a meeting not to bring an issue up where it does not have the support of a council majority, or to bring it up at a meeting if it does have such support. As such, the council or board would be taking "action" outside of an open meeting in violation of the OPMA.

Given the increasingly prevalent use of email and the nature of that technology, members of city councils, boards of county commissioners, and special district governing bodies must be careful when communicating with each other by email so as not to violate the OPMA. One consistent recommendation we give is that, when members of governing bodies email each other, they do not "reply to all" members of the body, except when forwarding information that is intended to be passively received.

(Link to this question)

Is a committee of the county council subject to the OPMA?
Reviewed: 11/13

If a committee consists of a quorum of the governing body, then it is subject to the OPMA, because that a equivalent to a meeting of the council itself.

If the committee consists of less than a quorum of the council, then the it is subject to the OPMA when it: 1) acts on behalf of the governing body; 2) conducts hearings; or 3) or takes public testimony or comment. See definition of “governing body” in RCW 42.30.020(2). A committee is considered to “act on behalf of” when it exercises actual or “de facto” decision-making authority (AGO 1986 No. 16).

In most circumstances, when a committee meets only to discuss issues and then comes back to the full council with at most a recommendation, it is not subject to the OPMA because it is not doing any of the above three things. But if the committee’s recommendation is a necessary prerequisite to council action, it may be considered to be acting on behalf of the council, so as to subject the committee to the requirements of the Act. Because it may be unclear exactly when a committee is acting on behalf of the entire council, it would be prudent to open a committee’s meetings when there is any uncertainty.

Of course, the county council can simply choose to make these committee meetings open to the public and have them comply with the OPMA, whether or not they are actually required to do so.

(Link to this question)

Is a decision to annex a legislative or quasi-judicial decision?
Reviewed: 11/13

The decision to annex is a legislative decision. The council has unlimited discretion in this area to decide whether or not to annex. The decision whether to annex is a legislative decision even though there is a public hearing connected with the decision. The statute for a code city under the direct petition method of annexation, RCW 35A.14.140, provides in part:

Following the hearing, if the legislative body determines to effect the annexation, they shall do so by ordinance. Subject to RCW 35.02.170, the ordinance may annex all or any portion of the proposed area but may not include in the annexation any property not described in the petition.

See also RCW 35.13.150. This statute is worded to give complete discretion to the council. Whether to annex territory is basically a policy decision for the city council and it is not an adjudication of rights between named parties. The council may decide for whatever reason not to annex even though the petition has total support and all the testimony is in favor of the annexation.

(Link to this question)

Does a code city council violate the Open Public Meetings Act if it meets in executive session to discuss whether to confirm a mayoral appointment?
Reviewed: 11/13

No. Such an executive session would not violate the Open Public Meetings Act. RCW 42.30.110(1)(g) provides that the council may meet in executive session "to evaluate the qualifications of an applicant for public employment." That provision would apply to an executive session to discuss whether to confirm a mayoral appointment. The person "appointed" is still an applicant for public employment, because the appointment is not complete until the council confirms it. This is assuming, of course, that the council has required confirmation of an appointment to that particular office.  The actual vote on whether to confirm should, of course, take place in an open meeting.

 

For more information, see our Open Public Meetings Act web page.

(Link to this question)

Is there a state law that would allow our town to annex property for public purposes even if it is not contiguous to our current corporate boundaries? If so, would it apply to a watershed?
Reviewed: 11/13

Yes, there is a law that allows this, but only if the town owns the property or if all the property owners in the area proposed for annexation give their written consent. RCW 35.13.180 provides:

City and town councils of second-class cities and towns may by a majority vote annex new unincorporated territory outside the city or town limits, whether contiguous or noncontiguous for park, cemetery, or other municipal purposes when such territory is owned by the city or town or all of the owners of the real property in the territory give their written consent to the annexation.

A municipal watershed would qualify as a municipal purpose as that term is used in the statute.

(Link to this question)

Are elected fire district commissioners "employees" for the purpose of reviewing agency records, or must they submit a public records request like other citizens?
Reviewed: 10/13

Although there's nothing in the law that directly addresses this issue, we've consistently opined that elected officials - whether of cities, counties, or special purpose districts - have the right to see the public records of their agency to the extent that those records relate to the duties of their elected office. (In some statutory contexts, elected officials are considered "employees," and in others they are not. We don't think the resolution of this issue should hinge on whether or not they are "employees." They are not members of the public, however, when they're acting in their official capacity.) Elected officials shouldn't have to make a public records request to see records that are needed to properly perform their jobs. This seems to us to be a common sense approach, even though it may be unclear exactly in a particular case whether an elected official's duties are such that he or she should be able to see a particular record.

And, in general, there are probably not many records that an elected official should be denied access to. But, for example, city councilmembers, who don't deal with personnel issues (they don't make personnel decisions, which are within the mayor's purview), generally shouldn't have unrestricted access to personnel records; but there can be exceptions.

So, in general, we don't think that elected officials, including fire district commissioners, should have to make a public records request to see agency records.

(Link to this question)

If a public agency receives a records request for an official's received and sent email, should the agency include things like spam, advertisements, announcements, etc.?
Reviewed: 07/13

Email such as spam, advertisements, announcements, training bulletins, etc. are public records when received, but they have no retention value and may be permanently deleted when received. See Local Government Common Records Retention Schedule (CORE), Version 3.0 (November 2012), at GS50-02-03 (page 148). If they have not been permanently deleted at the time the request is made, then they would qualify as emails sent to that particular official. Even though they could have been deleted before the records request was made, they cannot, of course, now be deleted now until after responding to the records request. However, you may certainly seek clarification from the requestor as to whether he/she wants to be provided such emails in response to his/her request.

(Link to this question)

If a public records requester is seeking metadata, does he/she have to specifically request metadata?
Reviewed: 01/13

If a requester making a request under the Public Records Act (PRA) is seeking metadata, the requester needs to specifically state that he/she is requesting metadata. Our state supreme court has indicated that a request under the PRA for metadata is not made unless and until a requester specifically asks for metadata. See, e.g., O'Neill v. City of Shoreline, 170 Wn.2d 138, 151-52 (2010). In O'Neill, the court explains and concludes:

While we agree that metadata is included within the PRA's definition of a "public record," this does not necessarily mean that a government agency must provide metadata every time a request for a public record is made. At the council meeting, O'Neill made an oral request to see the e-mail. The City responded at first by providing a paper copy of the e-mail, without metadata attached. The Court of Appeals ruled that "[t]he PRA requires providing a public record only when it is identifiable," and that the oral request at the Council meeting made no mention of the electronic version of the e-mail or of the associated metadata. O'Neill v. City of Shoreline, 145 Wn. App. 913, 935 (2008)], 145 Wn. App. at 932-33. We affirm the Court of Appeals and hold that the wording of the oral request did not clearly include metadata. Metadata is a new topic that has never before been dealt with in PRA litigation, and we conclude that a request for the metadata was not made until Ms. O'Neill specifically asked for it.

Id. at 151-52.

This issue was addressed more recently in a November 2012 court decision. Although the decision is unpublished, meaning that it cannot be relied upon as precedential authority, we think the court's analysis is nonetheless helpful and provides an example of how courts analyze such situations. The court concluded that the PRA request at issue was not a request for metadata, and in reaching its conclusion the court relied upon other court decisions that can be relied upon as precedential authority, including the above referenced decision in O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010).

In Nervik v. Dept of Licensing, 2012 Wash. App. LEXIS 2642 (No. 41834-7-II) (November 13, 2012)(unpublished), the court explains and concludes:

Nervik argues that the Department's record production was incomplete because he requested e-mails in electronic format, which by his definition contains metadata. But this argument overlooks that government agencies have discretion regarding record formatting and are not required to provide records in electronic format. Mitchell v. Dep't of Corr., 164 Wn. App. 597, 606-07, 277 P.3d 670 (2011). Nervik's argument also overlooks his own experience demonstrating that electronic format does not necessarily convey metadata (for example, the Department provided Nervik with over 31,000 electronic records, which did not convey metadata). Our Supreme Court held that metadata must be specifically requested and that a request for e-mail is not sufficiently specific to automatically include metadata. O'Neill, 170 Wn.2d at 151-52. Because an agency may deny a request for electronic formatting but it may not deny a specific request for metadata, we decline to view a request for electronic formatting as inherently requesting metadata. Mitchell, 164 Wn. App. at 606-07. Instead, we conclude that a request for electronic format, like a request for e-mail, is not equivalent to a specific request for metadata.

Here, the Department never refused to produce records; it produced all the requested records in installments. Both Nervik's November 2008 requests asked for a "full and complete copy of each and every e[-]mail" and requested, "E[-]mails should be in Outlook .pst format only together with all attachments same as previously provided." CP at 660, 661. This is a mere format request, not a specific metadata request. The Department has discretion over the format of its responses, so the Department did not violate the PRA by producing records that did not convey metadata information. Therefore, we conclude that the trial court properly granted summary judgment dismissal of Nervik's claim that the Department failed to disclose public records by not providing metadata.

Id. at *10-12.

More generally, keep in mind that the PRA requires agencies to provide the fullest assistance in responding to requesters who make PRA requests. See RCW 42.56.100. However, an agency "is not required to be a mind reader when responding to public records requests." Bonamy v. City of Seattle, 92 Wn. App. 403, 409 (1998). Consistent with these principles, and based upon O'Neill v. City of Shoreline, 170 Wn.2d 138 (2010), a request under the PRA for metadata is not made unless and until a requester specifically asks for metadata.

(Link to this question)

May a city donate property to another city without requiring any payment?
Reviewed: 07/11

Probably not. Although there is statutory authorization allowing one city to sell or transfer property to another "on such terms and conditions as may be mutually agreed upon" (RCW 39.33.010), there is another statute that requires transfers between governments be made for "full value," RCW 43.09.210. The term "full value" has been construed by the attorney general, however, as allowing for flexibility. See AGO 1997 No. 5. For instance, the attorney general explains, if two governments conduct negotiations concerning an item of property, and arrive at a bargain by which the property will be transferred in exchange for some consideration (which could be a monetary payment, other property, services performed for the transferring government, or perhaps even relief from a burden), the courts would likely find that the transferring government received "full value," unless the actions of one or both governments were obviously irrational or arbitrary. Id. If the value of the property is over $50,000, then a public hearing must be held prior to the sale. Ch. 39.33 RCW.

(Link to this question)

If a city or county wants to obtain an easement over private property and the property is owned by two unrelated individuals, must the agreement of both property owners be obtained?
Reviewed: 07/11

The issue in this particular case concerns the creation of an easement for a city utility across some private property. The private property is legally owned by two property owners not related to each other. One property owner is willing to agree to the creation of the easement, but the other property owner has left the town and there is no forwarding address.

An easement is a privilege to use the land of another and is considered an interest in land. Because of this, it must be conveyed by written deed as required by RCW 64.04.010. It must be in writing, signed by the parties to be bound, and acknowledged before an authorized person. It must be signed by all the parties to be bound.

So, it is not sufficient to have the agreement of one only party if there are two legal owners of the property unless the one party has a legal power of attorney or other legal authority to act on behalf of the absent party.

(Link to this question)

Request for advice regarding the city's obligations in regard to processing lost and found property claims.
Reviewed: 07/11

Some boys found over $100 in coins on a city street near city hall. As required by statute, they brought the coins to "the chief law enforcement officer ... of the governmental entity where the property was found" [see RCW 63.21.010(1)(b)]. Amendments to RCW 63.21.010 passed in 1997 now require the city (or county, if the lost property is found in an unincorporated portion of the county) to publish or get notice out concerning the found property:

(2) Within thirty days of the report the governmental entity shall cause notice of the finding to be published at least once a week for two successive weeks in a newspaper of general circulation in the county where the property was found, unless the appraised value of the property is less than the cost of publishing notice. If the value is less than the cost of publishing notice, the governmental entity may cause notice to be posted or published in other media or formats that do not incur expense to the governmental entity.

RCW 63.21.030 provides that the city or county is entitled to collect $10 plus the cost of publication in most situations:

(1) The found property shall be released to the finder and become the property of the finder sixty days after the find was reported to the appropriate officer if no owner has been found, or sixty days after the final disposition of any judicial or other official proceeding involving the property, whichever is later. The property shall be released only after the finder has presented evidence of payment to the treasurer of the governmental entity handling the found property, the amount of ten dollars plus the amount of the cost of publication of notice incurred by the government [governmental] entity pursuant to RCW 63.21.010, which amount shall be deposited in the general fund of the governmental entity. If the appraised value of the property is less than the cost of publication of notice of the finding, then the finder is not required to pay any fee.
If the property is claimed by the rightful owner, the city is not entitled to collect any fee or recover any costs.

(Link to this question)

Can a city sell surplus personal property using eBay?
Reviewed: 07/11

Yes. We can see no reason why a city could not use that process for selling surplus personal property, as long as there was a minimum bid established that was equal to the fair market value of the property.

Keep in mind that city officials and certain administrative officers may be restricted from purchasing surplus property due to conflict of interest concerns. The general rule is that those who are involved in the decision to surplus property (the council) and those in charge of administering the sale (mayor, city manager, or other city officer responsible for the sale) should not purchase the property. General city employees can purchase surplus city property.

See our Sale of Surplus City Property webpage for more information on procedures for selling surplus property.

Using such Internet auction sites for sale of the property might prove to be very beneficial for the taxpayers.

(Link to this question)

Is city-owned property subject to condemnation by a school district?
Reviewed: 07/11

No, probably not. Statutory authority for school district condemnations is provided by RCW 28A.335.220 and ch. 8.16 RCW. Neither provision, however, indicates that the school district power extends to the condemnation of publicly owned land. AGO 55-57 No. 335 concludes:

The eminent domain statutes permitting school districts to condemn property do not specifically authorize condemnation of land already devoted to public use. In the absence of such authorization, this power cannot be inferred.

A similar result was reached in AGO 1927-1928 (at p. 744):

School districts may condemn for sites . . . but property already devoted to a public use cannot be taken for another public use which will materially impair or interfere with the former use, unless authorized by the legislature, either expressly or by necessary implication. Mere general authority to condemn is insufficient.

Appellate court authority, although not specific to school districts, is consistent with the advice given by the attorney general.

(Link to this question)

May the library rent a room for a private meeting?
Reviewed: 07/11

Yes, private groups can use city meeting rooms for a reasonable rental. The city should be careful not to discriminate against legitimate groups if such a policy is enacted.

(Link to this question)

If a city resident's manufactured home has been encroaching upon a recorded city easement for more than ten years, has that person established a right to keep the manufactured home in that location?
Reviewed: 07/11

No. The doctrine of adverse possession applies in disputes between private parties, but the doctrine cannot be applied against the city or the state.

(Link to this question)

What procedures are recommended for the sale of real property?
Reviewed: 07/11

MRSC generally recommends the following procedures for the sale of real property: (1) the city or town council by resolution declare the property surplus to the needs of the city; (2) if the property has significant value, obtain one independent appraisal in order to establish fair market value; and (3) once these preliminary steps are completed, the property may be sold by bid, negotiation, auction or any other appropriate method desired by the city.

(Link to this question)

Must a bid procedure be utilized for the sale of property?
Reviewed: 07/11

No. The state statutes do not require that a competitive bid procedure be used to sell property. Nor is it necessary to hold an auction. These requirements would only be necessary if they were contained in a local ordinance or policy relating to the sale of property.

(Link to this question)

May the city enact a local ordinance containing specific requirements for the sale of property?
Reviewed: 07/11

Yes. The city council may wish to provide procedures for the sale of municipal property. These procedures could require that an auction be held or a bid procedure followed, if this is desired.

(Link to this question)

Must fair market value be received for property?
Reviewed: 07/11

If the sale is to a private party, the fair market value must usually be received in order to avoid the possibility of the Office of the State Auditor considering the sale to be a gift of public property to a private party. This would be in violation of the state Constitution. For example, if an expensive piece of equipment is sold for a nominal amount, such as one dollar, this could raise this issue. However, if the city has made a good faith attempt to find a buyer of a piece of property at the appraised value and no one is interested, that should justify accepting a lower amount.

(Link to this question)

Who can purchase surplus property?
Reviewed: 07/11

In most cases, any public or private entity may purchase surplus property. However, the mayor and councilmembers may not purchase property from the city, regardless of the value, because of a specific statutory restriction. RCW 42.23.030.

(Link to this question)

May city officers and employees purchase property from the city?
Reviewed: 07/11

It is clear that the mayor and city councilmembers cannot purchase property from the city. City employees in most cases may purchase surplus property as long as they pay fair value. State law does not prohibit the purchase of property by city employees. However, some cities have restricted this practice in order to avoid raising an appearance of fairness issue. If an auction or bid procedure is utilized, then the city employees may bid on the property but may not be given any advantage in regard to the sale that other members of the public do not have.

(Link to this question)

May a county sell surplus computers on eBay?
Reviewed: 07/11

Though the statutes were not written with online auctions (e.g., eBay) in mind, it appears that a county may use them or other online auction sites as a "privately operated consignment auction" referred to in RCW 36.34.080.

 

The county must publish notice of the intended auction(s) "once during each of two successive weeks in a newspaper of general circulation in the county" (see RCW 36.34.090). The published notice of the auction(s) must be specific (see RCW 36.34.100); a county would need to list the items to be auctioned and provide the date and time that each auction will be started.

We recommend that county officials review this issue with their prosecutor.

(Link to this question)

The city is considering doing a land swap or exchange with a private developer. What are the legal issues to consider?
Reviewed: 07/11

With regard to negotiating for the sale or disposition of property, state law does not require a specific process in this situation for your city, other than the process in RCW 35.94.040 that applies when the property involved was “originally acquired for public utility purposes.” The process in RCW 35.94.040 requires a public hearing and a council resolution regarding the conveyance of the property.

With regard to real property exchanges generally, the key legal consideration is that the city receive fair market value for the property it is exchanging. We recommend that both pieces of property be appraised by an independent, qualified appraiser. If the value of the property owned by the city exceeds to any significant extent the value of the property it is receiving, additional cash or other consideration should be a part of the transaction. The values do not have to be identical but there should not be a significant disparity in the value of the property conveyed by the city or the State Auditor may question the transaction.

The city council would declare the property being traded by the city to be surplus to the needs of the city. The city may then negotiate with various parties concerning the proposed exchange. It is not necessary that the city use a bid procedure with regard to the sale or exchange of the property.

(Link to this question)

What are the requirements for marking public vehicles?
Reviewed: 07/11

RCW 46.08.065 contains the state regulations concerning marking of official vehicles. The general rule is that it is unlawful for any public officer having charge of a city-owned vehicle used in public business, to operate the vehicle upon the public highways of the state unless the vehicle is properly marked. The required markings are outlined in the statute. Basically, all city-owned vehicles are required to be marked with the city name or insignia, along with the words "for official use only." There is an exception to the marking requirements for vehicles which are used by the local police department for special undercover or confidential investigative purposes.

(Link to this question)

Can a city allow a group of employees to use a room in city hall for a Bible study meeting during their lunch hour?
Reviewed: 07/11

Our office has generally advised that if a city makes public facilities available for use by individuals and groups, it should do so on an "equal access" basis in which no distinction is made between whether the group is religious or nonreligious, political or nonpolitical.

If a city generally allows meeting rooms or other areas to be used by groups, the city would probably face a legal challenge if it barred use of those facilities to particular groups because of their political or religious view or involvement. Citizens are constitutionally protected from ordinances or action that arbitrarily discriminate against them with respect to the use of public property. (See McQuillin, Municipal Corporations, § 24:439.) A policy that prohibits use of city hall or other city property to promote or espouse a viewpoint has been held to violate the First Amendment's requirement of viewpoint neutrality. (See Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002).) See, also, Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002) ("we hold that the School District violated either the [Equal Access] Act or Prince's First Amendment rights by denying her Bible club the same rights and benefits as other School District student clubs and by refusing to allow the Bible club equal access to school facilities on a religion-neutral basis.").

So, we don't see a problem with the city allowing a group of employees to meet as a Bible study group in a room at city hall or other city facility during their own time (e.g., lunch break), as long as the city allows other employees the same access to the facility. If the city were to deny the use of a room for this Bible study employee group, it would have to deny the meeting space to all employees.

(Link to this question)

What if a member of the audience becomes disorderly at a council meeting?
Reviewed: 07/11

The Open Public Meetings Act does not guarantee the right of the public to participate or become unruly at a council meeting; it only guarantees that they can attend. It is the role of the presiding officer to see that the public does not become disorderly during a council meeting. A member of the public may be instructed regarding rules of courtesy and, if rules are not followed, the speaker may lose any privilege to speak at the meeting and may even be ejected for disorderly conduct.  See RCW 42.30.050.

(Link to this question)

Will the U.S. Supreme Court decision in Kelo v. New London affect condemnation of private property under Washington State law?
Reviewed: 03/11

The question the Court was deciding in Kelo v. New London was whether the city of New London's condemnations to promote economic development were for a "public use" within the meaning of the 5th Amendment to the Federal Constitution (e.g., the "takings clause"). However, the Court stated:

    We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.

The eminent domain section of our state constitution (article 1, section 16) states in part as follows:

    Private property shall not be taken for private use . . . Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public.

Whether this constitutional provision allows condemnation for the purpose of promoting economic development is the subject of current debate. See "The Kelo Decision and Condemnation for Economic Development." 

    (Link to this question)

    What does the term "junk vehicle" mean under state law?
    Reviewed: 07/10

    The term "junk vehicle" is defined in RCW 46.55.010(5) to mean a vehicle meeting at least three of the following requirements:

    • Is three years old or older:
    • Is extensively damaged, such damage including but not limited to any of the following: A broken window or windshield or missing wheels, tires, motor, or transmission;
    • Is apparently inoperable;
    • Has an approximate fair market value equal only to the approximate value of the scrap in it.

    (Link to this question)

    What are decibel-based noise ordinances?
    Reviewed: 07/10

    A decibel-based noise ordinance is based on the noise control provisions enacted pursuant to the state Noise Control Act, Ch. 70.107 RCW. This Act authorizes the State Department of Ecology to establish maximum noise levels in identified areas or environments. See RCW 70.107.030(1). Local governments may enact similar provisions establishing noise limitations for areas within their jurisdictions. Any difference between the local regulations and those provided for by the state must be approved by the Department of Ecology. See RCW 70.107.060(3). If the state has not acted within 90 days after a local ordinance has been submitted to it, the local provision is automatically approved.

    The rules adopted by DOE establishing maximum permissible noise levels are contained in Chapter 173-60 WAC, relating to maximum environmental noise levels, and Chapter 173-62 WAC, relating to motor vehicle noise performance standards.

    (Link to this question)

    What are public disturbance noise ordinances?
    Reviewed: 07/10

    Public disturbance noise ordinances are based upon subjective standards as opposed to noise ordinances which are based upon maximum decibel readings and which require the use of sound meters for their enforcement.

    Public disturbance noise provisions, while perhaps easier to enforce, may raise some constitutional questions. Are the provisions sufficiently detailed to place a person on notice of their prohibitions? Are the prohibitions so broad as to chill free speech?

    There have been three appellate cases in recent years reviewing public disturbance noise provisions. In Everett v. O'Brien, 31 Wn. App. 319, 641 P.2d 714 (1982), and Seattle v. Eze, 111 Wn.2d 22, 759 P.2d 366 (1988), public disturbance type noise ordinances have been upheld; however, in Spokane v. Fischer, 110 Wn.2d 541, 754 P.2d 1241 (1988), an ordinance prohibiting frequent and habitual dog barking that disturbs or annoys any person and the neighborhood was found unconstitutionally vague.  (See Court Case Links)

    (Link to this question)

    May a city condemn state-owned land? What if the land is being put to public use?
    Reviewed: 07/10

    Yes, it may. RCW 8.12.030 provides in part:

     

    • Every city and town and each unclassified city and town within the state of Washington, is hereby authorized and empowered to condemn land and property, including state, county and school lands and property ...

    What if the state land is being used for a public purpose? The city may still condemn the property, provided the city's is a "superior public use." In In State ex rel. Puget Sd. [Sound] etc. R. Co. v. Joiner, 182 Wash. 301, at page 302, the court stated:

    • ...property is not exempt from condemnation because it may have been previously dedicated, appropriated or devoted to public use. ... Except where property devoted to a public use is sought for a superior public use, the right to condemn such property must be so exercised as not to substantially interfere with the prior use.

    A city could condemn only that part of the land that it needs, although it may have to pay damages that the remaining portion sustains.

    (Link to this question)

     more