skip navigation

Ask MRSC Archives


Browse Inquiries By Topic

GO

Do budget amendments in code cities require a public hearing?
Reviewed: 06/17

No, state law does not require a public hearing for a regular budget amendment. RCW 35A.33.105 provides the ability to adjust wages, hours, and conditions of employment, without a public hearing. RCW 35A.33.120(4) provides the authority to amend the budget if excess of estimated revenues are to be appropriated. RCW 35A.33.080 provides for "nondebatable emergencies" and there is no public hearing required. The only type of amendment that requires a public hearing is described in RCW 35A.33.090, which deals with the situation where a city council declares an emergency that is not one of the emergencies defined in RCW 35A.33.080.

(Link to this question)

What type of tax applies to leasing of public property to private individuals?
Reviewed: 06/17

The tax that applies to public property leased to private individuals is called the leasehold excise tax. The state Department of Revenue’s (DOR’s) Leasehold Excise Tax webpage states that the leasehold excise tax is the tax on the use of public property by a private party that is in lieu of property tax. The tax doesn’t apply to leases to public entities since they are exempt from property taxes; it only applies to private entities leasing from public bodies.

DOR has a leasehold excise tax Q&A publication that provides more information on this tax.

(Link to this question)

Where does a school "route" end and a school "zone" begin? Does a school route need signs? How far away can a zone begin? 
Reviewed: 06/17

RCW 46.61.440(2) governs school zones, independently of school routes, and states (emphasis added):

(2) A county or incorporated city or town may create a school or playground speed zone on a highway bordering a marked school or playground, in which zone it is unlawful for a person to operate a vehicle at a speed in excess of twenty miles per hour. The school or playground speed zone may extend three hundred feet from the border of the school or playground property; however, the speed zone may only include area consistent with active school or playground use.

So, school zones relate to traffic speed control on streets abutting schools.

In contrast, school routes are intended as safe walking routes for school children and may have signs. For more information on school routes, see WSDOT’s School, Walk, and Bike Routes publication.

(Link to this question)

What is the legal authority for saying that the city is under no obligation to create a record when responding to a PRA request?
Reviewed: 05/17

The RCW’s do not address this question directly, so we have to look to other sources for guidance. The Attorney General’s Public Records Act Model Rules—Ch. 44-14 WAC—are one source of guidance. Although not a binding authority for local governments, the model rules are persuasive authority and will often provide relevant case decisions.

WAC 44-14-04003(5) states that “[a]n agency is not obligated to create a new record to satisfy a records request” and cites Smith v. Okanogan County (2000) as support. Another case that supports this rule is Fisher Broadcasting v. Seattle, which the Washington Supreme Court decided in 2014. Fisher Broadcasting provides an excellent example that explains the complex question of whether an agency should “create” records to fulfill a response.

In Fisher, the court addressed a records request for “a list of any and all digital in-car video/audio recordings.” Fully answering this would have required the PRA Officer to mine data from two distinct systems and create a new document compiling the data. The court found that this is outside the requirement of the PRA and the agency was not obligated to create such a record. However, the agency at issue did have the capacity to produce a record that partially answered the request from one of the systems, and the court held that they should have done so. The court in Fisher explained as follows:

Given the way public records are now stored, there will not always be a simple dichotomy between producing an existing record and creating a new one. But "public record" is broadly defined and includes "existing data compilations from which information may be obtained . . . regardless of physical form or characteristics." This broad definition includes electronic information in a database. Merely because information is in a database designed for a different purpose does not exempt it from disclosure. Nor does it necessarily make the production of information a creation of a record.

For more information, section 1.6 (D) of the Attorney General’s Open Government Resource Manual provides a robust discussion on this topic.

(Link to this question)

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

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

Here are some sample policies:

  1. Bothell City Council Protocol Manual Sec. 7.14 – Attendance via Speakerphone (AVS)
  2. Lake Forest Park City Governance Manual Sec. 4.17 – Remote Participation
  3. Mill Creek Manual of City Governance Policies, Procedures and Guidelines Sec. 4.6 – Telephonic Participation from a Remote Location
  4. Mukilteo City Council Rules of Procedure Rule 1(H) – Telephonic Appearance

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

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

 

(Link to this question)

If we use the CPI as the inflator in a multi-year lid lift, which index should we choose?
Reviewed: 05/17

There are all sorts of consumer price indices. It is absolutely crucial that you correctly identify the one you want to use in your ballot measure.

The considerations are the same as choosing a consumer price index for a labor contract. The Bureau of Labor Statistics has a website that will help you make that decision.

Figure out when you will want the information, for budgeting purposes, on how much your property tax levy can be increased. Then make certain that the CPI index you have chosen will be available by that date. The U.S. CPI figures are available monthly with a lag of about two and a half weeks. For example, the April statistics are published around May 19 or so.

The Seattle-Tacoma-Bremerton CPIs are published bimonthly for even-numbered months. For example, the February numbers are published in mid-March, and the next release is the April numbers, which are published in mid-May.

The Portland-Salem indices are only published twice a year. Numbers for the first half of the year are published in mid-August, and numbers for the second half of the year are published in mid-February.

(Link to this question)

We have "banked" capacity, but our council would rather do a levy lid lift than use that banked capacity. Can we do this?
Reviewed: 05/17

According to Kathy Beith of the Department of Revenue, "no."

Taxing jurisdictions must understand that "banked" capacity is not kept separate from their regular levy, i.e., there aren't "green" dollars that are the regular levy and "red" dollars that are banked capacity. There is simply a dollar amount that is the maximum allowable levy. (This number is on the levy worksheet they get each year from their assessor.)

If a city is levying less than that, it has "banked" capacity. As long as the extra amount they want to levy to cover the cost of the pool does not result in their exceeding their maximum allowable levy, it is done with a simple majority vote of the council at the time they set their levy for next year. Only if they want to levy more that (assuming they can do so because they are still below their maximum levy rate) can they do a levy lid lift. Note that there is no separate ordinance to "unbank" capacity. It is simply done by putting the desired dollar amount, which reflects the "unbanking," in their standard levy ordinance.

So, to summarize, you cannot save "banked" capacity by doing a levy lid lift. The banked capacity has to be used first.

(Link to this question)

Is there a statutory limitation on how soon a levy lid lift proposition can be brought before the voters after a previous unsuccessful vote?
Reviewed: 05/17

A: No, the statute governing levy lid lifts, RCW 84.55.050, does not impose any limitations on how soon a lid lift proposition may be placed on the ballot after an unsuccessful vote. Obviously, there are political considerations.

(Link to this question)

Please provide some examples of good food cart/food truck regulations.
Reviewed: 05/17

The following are some sample food cart/food truck regulations adopted by jurisdictions here in Washington State:

(Link to this question)

May one county annex territory from an adjacent county?
Reviewed: 05/17

No, not under normal circumstances. There is no process established by state law for such a change. The primary state constitutional provision is article 11, section 3, which reads, in part:

SECTION 3 NEW COUNTIES. No new counties shall be established which shall reduce any county to a population less than four thousand (4,000), nor shall a new county be formed containing a less population than two thousand (2,000). There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefore and then only under such other conditions as may be prescribed by a general law applicable to the whole state. . . .

The state legislature has never enacted a “general law” providing a process for shifting a county boundary.

Additionally, the state legislature is prohibited from making a change to the county boundaries in such a situation by article 2, section 28 of the state constitution:

SECTION 28 SPECIAL LEGISLATION. The legislature is prohibited from enacting any private or special laws in the following cases:
. . .
18. Changing county lines, locating or changing county seats, provided, this shall not be construed to apply to the creation of new counties.

Chapter 36.04 RCW establishes the boundaries of each of the counties. Chapter 36.08 RCW provides a detailed process for shifting county boundaries, but only in quite limited situations. For example, RCW 36.08.010 states as follows:

If a harbor, inlet, bay, or mouth of river is embraced within two adjoining counties, and an incorporated city is located upon the shore of such harbor, bay, inlet, or mouth of river and it is desired to embrace within the limits of one county, the full extent of the shore line of the harbor, port, or bay, and the waters thereof, together with a strip of the adjacent and contiguous upland territory not exceeding three miles in width, to be measured back from highwater mark, and six miles in length, and not being at a greater distance in any part of said strip from the courthouse in the county seat of the county to which the territory is proposed to be annexed, as such county seat and courthouse are now situated, than ten miles, a majority of the qualified electors living in such territory may petition to have the territory stricken from the county of which it shall then be a part, and added to and made a part of the county contiguous thereto.

The legislature would need to enact a general law providing a process for the residents of land in question to petition for a county boundary change, and then a process for making the change. See the detailed provisions in chapter 36.08 RCW as an example. It is not clear whether such a change would necessarily require an election.

(Link to this question)

With the change in the minimum wage rates and requirement to provide paid sick leave, how do we address sick leave for seasonal employees?
Reviewed: 05/17

Beginning January 1, 2018, RCW 49.46.210 will require that every employer provide each of its employees with at least one hour of paid sick leave for every forty hours worked as an employee.

RCW 49.46.010(3) then defines, for the purposes of chapter 49.46 RCW, “employee” to mean “any individual employed by an employer” but then lists 16 exceptions. See RCW 49.46.010(3)(a)-(p).

So, if the seasonal employees at issue are covered by RCW 49.46.010(3)’s definition of “employee,” and none of the exceptions apply, then I think that your city would, beginning in 2018, need to provide paid sick leave to those employees at a rate of at least one hour of paid sick leave for every forty hours worked as an employee.

(Link to this question)

How much should a city or county have in general fund reserves?
Reviewed: 04/17

In short, it depends. The Government Finance Officers Association (GFOA) used to provide recommended ranges, but GFOA stopped doing so because there is too much variability and it really depends on the specific needs and circumstances of each jurisdiction. For more guidance, including key questions to consider, examples from other jurisdictions, and links to best practices, see our page on Fund Balance and Reserve Policies.

(Link to this question)

Can you clarify the rates listed for each category in the B & O Tax model ordinance?
Reviewed: 04/17

The maximum rates that can be imposed for a B&O Tax is .0020. The applicable statutory reference is RCW 35.21.710 which states in part:

The taxing authority granted to cities for taxes upon business activities measured by gross receipts or gross income from sales shall not exceed a rate of .0020 . . . .

This maximum rate is applicable to each of the classifications of business, which are: wholesale, retailing, manufacturing, and services.

For more information, see MRSC’s B&O Tax topic page, which provides additional information, such as the current 2016 list of cities that have adopted the B&O Tax, as well as links to AWC materials that contain additional legislative information on this topic.

(Link to this question)

How do other cities deal with fee in lieu of park land dedication or park impact fees for mixed-use developments?
Reviewed: 04/17

Please see the following:

Codes that address applicability of park impact fees to mixed use developments:

Codes limiting park fees to residential units in mixed-use developments:

Codes that apply park impact fees to commercial uses:

We did not find any provisions applying a fee in-lieu of park land dedication requirement for mixed-use projects.

You may also be interested in MRSC’s Impact Fee topic page.

(Link to this question)

Are draft documents considered public records?
Reviewed: 04/17

Yes, draft documents are public records, assuming, of course, that they otherwise meet the definition of “public record” in RCW 42.56.010(3). As public records, they may be exempt from disclosure under RCW 42.56.280, which exempts (emphasis added):

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.

The fact that they are drafts does not then, by itself, make such documents exempt from disclosure. In PAWS v. University of Washington, 125 Wn.2d 243, 256 (1994), the Washington Supreme Court established a test to determine whether this exemption applies in a particular case:

In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.

For more information regarding this public disclosure exemption, see our Explaining the PRA's Deliberative Process Exemption blog post.

So, the determination needs to be made on a document-by-document basis whether draft documents are exempt from disclosure under this exemption.

(Link to this question)

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

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

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

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

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

(Link to this question)

Is an employee's personal email address included in a standard city email message subject to disclosure under the Public Records Act?
Reviewed: 04/17

Yes, the personal email address in this context must be disclosed if the email message at issue is responsive to a public records request made under the PRA. The only exemptions that may apply to an employee’s personal email address are:

  • RCW 42.56.230(3) (exempting personal information in files maintained for employees…to the extent that disclosure would violate their right to privacy); and
  • RCW 42.56.250(3) (exempting personal email addresses held by a public agency in personnel records)

In this circumstance, the employee’s personal email address appears just in a standard email message and not in files maintained for employees or in the agency’s personnel records. Therefore, it cannot be redacted.

(Link to this question)

What is the proper purchasing procedure for construction software that would be used by city inspectors?
Reviewed: 03/17

First, you need to determine whether this is a purchase of supplies or of services. The following Q&A is from MRSC’s City Bidding Book:

Is the purchase of computer software a purchase of supplies or a purchase of services?
It depends. If the software is “off-the-shelf” (or predominantly so), then it is a purchase of supplies. If the primary or sole cost is for consultant services to customize the program for the city, it is a purchase of services.

Assuming this is software of a largely “off-the-shelf” variety, it would be a purchase of “supplies, materials, or equipment” and only needs to be bid if the cost of that software is over $7,500 and if the entity is a code city with under 20,000 in population, a second class city or a town. There is no state law requirement for code cities over 20,000 to go out for bids for the purchase of materials, supplies and equipment.

However, a couple exemptions from the competitive bidding requirement may apply, including RCW 39.04.280 (i.e., single source and special market conditions), and the alternative competitive negotiation procedure available under RCW 39.04.270 for software (data processing) purchases. MRSC’s Telecommunications and Data Processing Purchases topic page lists the steps for following this alternative process.

If instead this is a purchase of services, then it is a non A&E service. Therefore, there are no specific statutory requirements to obtain these services for any type of city. For more information, see MRSC’s Personal Services Contracts topic page.

(Link to this question)

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

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

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

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

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

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

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

(Link to this question)

May an agency use public funds to purchase a gift card to be given as a prize to a randomly drawn individual who participated in a survey put out by the agency?
Reviewed: 03/17

Assuming that the survey is collecting information that would assist the agency in its official business (i.e., there is a valid municipal purpose), it is likely permissible to use city funds to purchase the gift card.

For there to be an impermissible “gift” of public funds under article 8, section 7 of the state constitution, the agency would have to receive nothing in return and have the intent that it receive nothing in return.

In this scenario, there is a public/municipal purpose for the drawing—to get greater participation in the survey, which would presumably provide valuable information to be used toward a public purpose. So, the agency receives something of “value” (i.e., information) in return for its expenditure on the drawing prize. Therefore, the expenditure of public funds on a drawing prize to increase participation in an agency’s survey is likely a permissible expenditure of public funds.

(Link to this question)

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

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

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

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

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

(Link to this question)

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

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

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

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

(Link to this question)

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)

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

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

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

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

(Link to this question)

Can a city, through a vote of the people, institute a public safety property tax levy for its own police/fire when the county it is in has already instituted a public safety levy for its own (county) function?
Reviewed: 02/17

Yes. When it comes to property tax levies, the city and the county do not overlap.

RCW 84.52.052 provides the city with the ability to present to the voters an "excess levy" for general government purposes for a one year levy, or, if the city has levy capacity remaining, it can present a levy lid lift to the voters (RCW 84.55.050).

For more information on levy lid lifts, see MRSC’s Levy Lid Lift topic page, as well as MRSC’s Revenue Guide for WA Cities and Towns.

(Link to this question)

 more