Ask MRSC Archives

Yes, you should keep the envelopes that bids and statements of qualifications come in. They reflect the postage date which may be important in case of a dispute. The retention schedule for bid documents (both successful and unsuccessful) are on page 110 of the local government records retention schedule, CORE. Unsuccessful bid documentation can be destroyed after 4 years. Successful bid documentation can be destroyed 6 years after completion of the contract.

If you convert all your documentation to digital form, you do NOT need to keep the original paper version. The Archivist has guidance here on how to Go Paperless ("Scan & Toss").

You should work with your public records officer before destroying and tossing any records that have a retention value.

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For Interlocal Agreements (ILAs), as with other contracts, the contracting authority is with the governing body of the county, unless specific contracting authority has been delegated to the executive branch or another officer. It is therefore our opinion that the auditor’s office does not have independent authority to enter into interlocal agreements, absent authorization or approval from the board of county commissioners.

RCW 36.01.030 states that the county's "powers can only be exercised by the county commissioners, or by agents or officers acting under their authority or authority of law." Furthermore, RCW 39.34.030(2), part of the Interlocal Cooperation Act, states in relevant part:

Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter . . . Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force.

(Emphasis added.)

We have similarly advised that an independently-elected sheriff could not enter into an interlocal agreement on behalf of the county, unless that authority were delegated to the sheriff by the governing body.

Regarding whether two counties could agree to share elections services and facilities in an emergency, I think they probably could based on the provision in the Interlocal Cooperation Act at RCW 39.34.030(1) that states:

Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of the state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges and authority conferred by this chapter upon a public agency.

We would recommend consulting with state elections officials and the prosecuting attorney’s office on this question, as well.

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Under recent Washington case law, there are potential issues with respect to impoundment of vehicles used for habitation. In June 2020, the Washington Court of Appeals ruled that a vehicle owner who uses their vehicle for habitation has homestead rights in that vehicle (see chapter 6.13 RCW). Impoundment of such a vehicle for violation of parking regulations is not, by itself, prohibited. However, the threat of forced sale of the vehicle (which is typically what happens with unclaimed, impounded vehicles) is a violation of the vehicle owner’s homestead rights. State law provides that real or personal property used as a residence “is exempt from attachment and from execution or forced sale for the debts of the owner up to the amount specified in RCW 6.13.030.”

MRSC published a blog article about the case which contains more analysis and information. The appellate decision was appealed to the Washington Supreme Court who heard oral arguments in the case in March, but it is unclear when an opinion will be issued.

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“Second readings” of ordinances are not required by state law. In fact, there is no state law requirement to have a first or second reading of an ordinance. However, such readings may be a matter of local council practice or procedure. We cover the second reading of ordinances in our Local Ordinances publication as follows:

State statutes are silent as to how ordinances are to be initiated. Thus, absent a charter provision detailing the process, each legislative body may determine the manner that must or should be used. Typically, when an ordinance has originated within the legislative body, the ordinance is presented to the clerk, who reads its title. The clerk’s reading is usually considered to be the “first reading.” The ordinance’s “second reading,” which also is often by title only, usually occurs when the ordinance is up for general discussion by the entire legislative body. There is no statutory requirement that an ordinance be “read.” Similarly, if an ordinance is read, there is no requirement (or limitation) that it be read by title only. Both considerations are frequently covered by local rules. If a local rule has been adopted, that rule should be followed. While there is no requirement that an ordinance be “read,” it nevertheless may be a good idea to do so. A reading provides both the legislative body and members of the public with notice of the topic under consideration. In addition, requiring that an ordinance be “read” helps avoid haste in the body’s deliberations.

As noted in this excerpt, state law doesn’t require a second reading of any ordinance and many city codes are silent on the matter. Your council rules may require a second reading for certain matters such as matters pertaining to taxes, fees, charges, penalties, assessments. So, review your council’s rules about the introduction and consideration of ordinances.

Even if there is a local council rule, a council could waive its rules and choose not to have a second reading on a particular ordinance. Council has the authority to waive its rules and the city’s rules of procedure likely address waiver. Another option would be to amend language in council rules of procedure to not require a second reading in some cases.

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MRSC has consistently advised that for the exemption in RCW 42.56.280 to apply, the draft documents must discuss opinions or the formulation of policy. This exemption does not generally apply to documents submitted as part of the permitting process. We discuss the “draft” and “deliberative process” exemption in our FAQ: Are draft documents exempt from disclosure?, in this blog article, and our MRSC Public Records Act publication, pp. 22-23. To rely on this exemption, an agency must show:

• that the records contain pre-decisional opinions or recommendations 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.

See PAWS v. Univ. of Washington (1994) and West v. Port of Olympia (2014).

This exemption is focused on the deliberative and policy-making process within an agency and the exemption disappears once the agency takes final action on the issue.

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Under RCW 36.70A.130(2), cities and counties may consider proposed amendments no more frequently than once per year, with some exceptions, but there is no set date specified by the State. Instead, it is up to the local government to establish when the annual amendment process starts (and ends 12 months later). We recommend that the established time period be clearly stated, made available, and publicized, so as to minimize any confusion or lack of knowledge about it.

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Yes, you are correct. There are not state law term limits for elected officials such as mayors or councilmembers in towns or cities. There are some code cities that have adopted ordinances providing term limits for these elected officials. However, towns do not have the authority to pass a local ordinance imposing term limits. A 1991 opinion of the Attorney General, AGO 1991 No. 22 addresses the issue of term limits for local government elected officials. This opinion has legal analysis about different types of local governments and their constitutional and statutory authority regarding term limits. The opinion concluded that towns, second class cities, and non-charter counties do not have authority to impose term limits on elected local officials, but that charter counties, charter cities and non-charter code cities may pass term limit ordinances.

Term limits imposed on state-wide elective offices by initiative were found unconstitutional in Gerberding v. Munro, 134 Wn. 2d 188 (1998).

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RCW 46.44.080 is the primary source of authority on this, and it does require a city to make a finding that use of the street by trucks over a certain weight will cause damage to the street.

A multi-code search of “truck routes” turns up many examples of city codes that designate local truck routes and prohibit vehicles over a certain weight from using streets that are not part of the truck route.

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MRSC recommends that the city council adopt a policy providing for write-offs, stating the criteria that must be met before the write-off can occur. Such a policy should apply to all types of accounts receivable (water, sewer, garbage, court fines and other fees and charges that the city may impose). The policy should consider the variables for each type of receivable with specific criteria and internal controls in place to ensure that the city’s assets (receivables) are being safeguarded, then staff could write the debt off without further council involvement. There are several cities that have adopted write-off policies. Here are a few examples:

• West Richland Municipal Code, Section 3.09.030 Collection – Write-off
• Lakewood Municipal Code, Section 3.22.020 - Write-off
• Poulsbo Municipal Code, Section 3.72.040 - Uncollectible debts
• Bellevue Municipal Code, Section 3.32.100 - Authority of director regarding delinquent accounts
• Yelm Municipal Code, Section 13.04.290 - Nonpayment of charges

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A Homeowners Association (HOA) Covenants Conditions & Restrictions (CC&Rs) restricting Accessory Dwelling Units (ADUs) would remain in effect and enforceable even if a city passed an ordinance allowing accessory dwelling units (ADUs) in single family residential areas. This is because an HOA’s CC&Rs are private rules that each private homeowner agrees to follow as a condition of purchasing a home in a particular development. So, if the city allows ADUs in single-family areas with CC&Rs, the property owner would first need to negotiate with the HOA to change the applicable CC&R (or perhaps, to obtain an exception) before an ADU could be built.

For example, city zoning might allow a three-story building, but a covenant might only allow two stories; the more restrictive covenant, not the zoning restriction, would control the use of the property. The nature of a CC&R is private and does not involve the city. A city ordinance would not preempt or have legal priority over valid private restrictions, unless the CC&R were contrary to law. Enforcement of a restriction on ADUs would be a civil matter between the property owners. A city has no authority to enforce private covenants. See, for example, Viking Properties, Inc., v. Holm, 155 Wn.2d 112, 120 (2005) ("the City has correctly conceded that it 'has no authority' to enforce or invalidate restrictive covenants . . . ."). See, also, Jones v. Town of Hunts Point, 166 Wn.App. 452 (2012).).

State law does regulate Homeowners’ Associations (HOAs) at Chapter 64.38 RCW. The HOA law places some limitations on what an HOA can privately regulate. The law prohibits an HOA’s governing documents (i.e., CCRs) from excluding solar panels, certain types of drought resistant landscaping, and adult family homes. See RCW 64.38.055 thru .060. Under the law, the governing documents may not prohibit the display of flags or political signs. See RCW 64.38.033 and .034. And RCW 49.60.224 and .227 relate to removal of discriminatory language in deeds and restrictive covenants. RCW 64.38.028 provides a simple process for an HOA board to remove this discriminatory language from its governing documents. While there is no provision limiting private regulation of ADUs in Washington State, I understand this is something the legislature may consider to promote more housing types in communities.

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From a legal standpoint, signs are not required, assuming that the cameras record video only (and not audio). Signs can be a good idea if the purpose of the cameras is to deter crime, but different agencies handle the signage issue differently. Some post prominent signs to discourage crime, and others, especially if an investigation is at issue, do not want to call attention to the cameras. Most entities using security cameras do not record audio. Audio presents complications because there are circumstances under which it is illegal to audio record a person without their consent.

Another thing to remember is that security camera video recordings are public records for which there are retention requirements. If the city does decide to install a security camera, then any recordings that are created will be public records that will need to be retained for the appropriate retention period. For more information on retention, see DAN GS50-06B-18 Rev. 1 of the Local Government Common Records Retention Schedule (page 89).

Finally, here are some policies that have been adopted by other jurisdictions that may be of interest to you:

• Video Surveillance Policy – Colville (2009) - Applies to city's use of non-court ordered closed circuit television (CCTV) surveillance cameras in public places.
• Video Surveillance Policy – Port Angeles (2008) - Applies to city's use of non-court ordered closed circuit television (CCTV) surveillance cameras in public places; includes adopting resolution.
• Use of Security Cameras Policy – Maple Valley Parks and Recreation Department (2019) - Policy governing surveillance cameras installed at various locations throughout public parks system for security purposes and to protect physical structures and resources. Surveillance cameras are plainly visible, and signs are posted indicating areas under video surveillance.

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MRSC has a Local Ballot Measure Database where we searched for the results of local ballot measures for general obligation (GO) bonds since 2011 (as far back as our data goes). The results of that search show that there have been a total of 10 ballot measures with 6 passing and 4 failing.

We also have a Revenue Guide for Washington Cities and Towns which has a section that discusses general obligation (GO) bond levies which we would encourage you to review. It recommends that you consult your city’s bond counsel early in the process.

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A threshold question is whether the committee is subject to the Open Public Meetings Act (OPMA). If the committee is purely advisory, not acting “on behalf of the council,” not taking public testimony, and their decision is not a required predicate to council action, then the committee is likely not subject to the OPMA. This is a very case-by-case, fact-based analysis that should be performed by your agency’s attorney. It also matters how the committee was formed – if the enabling legislation says it’s covered by the OPMA, then it is. If there is any question whether the OPMA applies or if the city chooses, the conservative approach is to go ahead and comply with the OPMA.

Assuming that the committee is subject to the OPMA, we would caution against email discussions among the members of the board between meetings. Discussions are considered “action” under the OPMA (“final action” is making a collective decision, i.e., voting). Actions must occur at meetings open to the public. Discussions among less than a quorum of members is OK, but be careful that these do not become a serial meeting. Here is a recent blog post about serial meetings.

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A public agency may provide incentives such as gift cards or other small gifts without violating the state’s prohibition on gifting of public funds, provided there is an articulated public purpose for doing so. From our Gift of Public Funds webpage:

In assessing whether a gift has been bestowed to a private entity, the courts have used a two-step process. First, they determine whether the funds are being expended to carry out a fundamental purpose of the government. If so, then no gift of public funds has been made. Otherwise, the court looks to see whether the government entity had a “donative intent,” and whether it received an adequate return for the transfer.

If an incentive program serves a valid purpose of government, then incentivizing participation in that program is not a gift. For example, providing wellness awards to patients that participate in annual check-ups at a hospital district are not gifts under the law. A hospital could also use gift card drawings to get patients to respond to satisfaction surveys. The hospital would be receiving something of value in exchange for the gift card – namely a response to the survey. Similarly, providing some incentive to participate in a community planning process is serving an important governmental purpose.

If a city or other public entity does choose to offer incentives, it should adopt—in advance-- a reasonable policy regarding the incentives and the policy should articulate a valid municipal purpose for the expenditures. If gift cards or other items of monetary value are given as more of an “afterthought” or thank you gift, this would look less like an incentive program and more like a gift.

We recommend discussing the specifics of any program with your city attorney. They will be in the best position to assist in developing an official policy that complies with the constitutional limitations regarding gifting of public funds.

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State law requires all members of the governing body to complete open government training no later than 90 days after taking the oath of office or assuming their duties, with a refresher course at least every four years. RCW 42.30.205. Additionally, all elected officials as well as the agency’s public records officer (PRO) are required to take training on the Public Records Act and records retention requirements. RCW 42.56.150 and 42.56.152. Other staff beyond the public records officer are not required to take the trainings pursuant to these provisions.

MRSC and AWC have an online e-training (select “Open Public Meetings Act eLearning” and “Public Records Act eLearning.”) for both the OPMA and PRA that meets the above requirements. For more information, see the Washington State Attorney General's webpage on Open Government Training. See also the “Training Opportunities” section on our Open Public Meetings Act page, as well as the blog article Explaining the Open Government Trainings Act.

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MRSC has information on consent agendas at the bottom of our Council Meeting Agendas webpage. The webpage states:

The consent agenda is a tool used to streamline council meeting procedures by collecting and grouping routine, noncontroversial topics into a single agenda item that can be discussed and passed with a single motion and vote. In some cities, items to be placed on each consent agenda are selected at a meeting of the city’s department heads. In other cities, a special agenda committee chooses the consent items. Commonly, no debate is allowed on items included in the consent agenda.

Consent items may be read by title only in the body of a single consent agenda resolution. However, any councilmember can have an item removed from the consent agenda for separate consideration. In addition, cities may allow any person attending the regular council meeting to request that an item be removed from the consent agenda, read completely, and voted on independently. In such a situation, the remainder of the consent agenda can be voted on, omitting the challenged items. Setting up a consent agenda system usually requires preliminary action by the council in the form of adopting an ordinance or resolution.

The council/board generally has discretion to determine if it wants to have a consent agenda at its meetings, and if so what items to include on the consent agenda. Again, however, the consent agenda is typically reserved for non-controversial, routine items that the council/board may not need to discuss individually before approval.

Most local governments outline their procedures for agenda preparation in their council/board procedure manuals. You can see many examples on MRSC’s Council/Board of Commissioners Rules of Procedures page. You can open any of these sample documents and do a “Ctrl-F” search for “consent” to quickly locate the relevant sections.

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If the council wishes to deviate from the amounts recommended by the LTAC it can do so only after following the procedural requirements of RCW 67.28.1817. This interpretation is based on an informal Attorney General opinion issued in 2016, which is discussed on our Lodging Tax (Hotel-Motel Tax) page:

• What Does the Municipality Do with the LTAC's Recommendations? The legislative body "may choose only recipients from the list of candidates and recommended amounts provided by the local lodging tax advisory committee" (RCW 67.28.1816(2)(b)(ii), emphasis added). However, an informal opinion from the Attorney General's Office in 2016 states that the legislative body may award amounts different from the LTAC’s recommended amounts, but only after satisfying the procedural requirements of RCW 67.28.1817(2). This requires the municipality to submit its proposed change(s) to the LTAC for review and comment at least forty-five days before final action is taken. For more details, see our blog post on Informal AG Opinion Clarifies Lodging Tax Awards.

So, council may accept the recommendation or reject it without any further action – a vote is all that is required. If the council wants to change the amount awarded to a recommended recipient, it must refer the proposed changes to the LTAC for review and comment.

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With respect to municipal code searches, we see that you use Code Publishing for your municipal code. Take a look at their "Tour" page which has some information regarding the "main interface," "printing and saving," and the "advance search" features of their codes. They also offer some YouTube training videos on browsing and searching online codes.

For help with codes hosted by Municode, see their help page, which includes a video tutorial among other resources.

For RCW and WAC searches, take a look at the following pages:

• RCW Search - allows for searching the RCW, and optionally, dispositions and supplements, as well as historical versions of the code
• WAC Search - allows for searching the WAC

Each of these pages also include links to a Public LegSearch Help manual that contains guidance on searching both the RCW and WAC including creating basic search queries, viewing and navigating results, and advanced search techniques.

You might also be interested in reviewing MRSC’s custom search tools that include city and county website and combined city/county code search tools. The combined city/county code searches are helpful when you want to locate and view sample code provisions from multiple jurisdictions. The combined website searches are great tools for accessing all sorts of information on what other jurisdictions are doing.

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We believe a city could probably place an advisory vote before the voters to survey sentiment regarding whether the city should contract for law enforcement services or continue with its own police department. Unlike the powers of initiative and referendum, however, there is no provision in state law for advisory votes. The “closest” authority is provided at RCW 35.22.280(1) which gives first class cities the power to provide “for questions to be voted upon.” A second-class city does not have express statutory authority to provide ballot measures to the voters or to establish an initiative or referendum process. Generally, though, I think city councils of second-class cities probably have the authority to request that an advisory vote be placed on the ballot. However, you will want to check with your county elections officials as well as your city attorney about this proposal.

Note that an advisory vote is expensive because it requires an election with a ballot measure. The outcome of an advisory vote is not binding and would act as guidance for the city council to further act (or not act) on a particular matter. Especially in a smaller community, it may be preferable to hold one or more public meetings to receive comments and feedback or, perhaps, to conduct a survey of the citizens of the city.

Ideally, an advisory vote would test public sentiment about a new policy or project, like opening a new park or program, before a city expends funds on it. Sometimes public sentiment is not clear, and a council just wants a better indication about how popular a particular issue is (or isn’t).

For more information regarding options for providing law enforcement services, see the following:

• Interlocal Cooperation in Law Enforcement
• Police and Law Enforcement Provision in Cities and Towns

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Yes, a resignation letter is a public record that is subject to disclosure under the Public Records Act. There is no general exemption that would allow the city to withhold the letter. It’s possible there would be personal information exempt based on RCW 42.56.250(4) or potentially a privacy exemption under RCW 42.56.230 if there are unsubstantiated allegations included in the letter. You will want to review the content of any requested letter to see if there is any information that might fall within such an exemption.

The city could also provide third party notice to the former employee who wrote the letter and/or anyone mentioned within the letter pursuant to RCW 42.56.540, if it felt such individuals would potentially want to seek an injunction preventing the letter’s release.

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State law only requires a simple majority vote by the city council for a regular budget amendment; changes to wages, hours, and conditions of employment RCW 35A.33.105; and appropriations of funds received in excess of estimated revenues RCW 35A.33.120(4).

A super majority vote is required when council is amending the budget due to "nondebatable emergencies" RCW 35A.33.080; when the council has declared a public emergency that is not one of the ‘nondebatable’ emergencies RCW 35A.33.090; and when the council declares by facts and findings that it is in the best interest of the city to decrease, revoke or recall an appropriation.

Note: this answer is also applicable to budget amendments for Second and Third Class Cities, Towns and First class cities under 300,000 population. See Chapter 35.33 RCW, specifically RCW 35.33.107; RCW 35.33.121(4); RCW 35.33.081; RCW 35.33.091.

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Yes, Lodging Tax Advisory Committee (LTAC) grant applications are considered public records and we are not aware of any exemption within the Public Records Act (PRA) that would prevent their disclosure. An LTAC is an advisory body to the city council, created by statute under RCW 67.28.1817(1). MRSC regards the LTAC as a subagency of the public agency city under RCW 42.30.020 (1)(c). As a subagency, LTAC’s records, including grant applications submitted to LTAC for consideration, are considered public records under the PRA. As you know the definition of public record is extremely broad, encompassing essentially all records of the agency, including their subagencies and committees.

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There is a provision in state law that addresses the recording of “private conversations.” RCW 9.73.030(1)(b) (the ‘Privacy Act’) makes it unlawful to record a “private conversation…without first obtaining the consent of all persons engaged in the conversation.”

The nature and location of the meeting or conversation affects whether it is a private conversation requiring consent to record. The key consideration is whether a person has an expectation of privacy in a given situation. If the conversation was held in a public place where there is no reasonable expectation of privacy (such as in the lobby of city hall, the city council meeting chambers before a public meeting, or at the permit counter), then it is possible the meeting is not considered “private.” But, if the discussion or meeting was held in a private area, such as an internal conference room not open to the public, then all participants would need to consent to the recording. Under RCW 9.73.030(3), if an individual announces to the other party that he/she is recording the conversation (and that announcement is also recorded), consent is considered to be obtained.

Under the Open Public Meetings Act (OPMA), a municipality cannot prohibit the recording of a public meeting subject to the OPMA. See RCW 42.30.040 and AGO 1998 No. 15.

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We are aware of a couple of testing programs in the cities of Vancouver and Lynden. See this Bellingham Herald story (Here’s where Whatcom sewage is being sampled for COVID-19 and what it might tell us) reporting on the Lynden testing program that includes testing at two schools in the city. Here is a Vancouver press release detailing the testing program there. The Vancouver page includes a few links to additional references. We monitor a lot of the local newspapers in Washington for general local government news and have not noticed any reports other than the Vancouver and Lynden programs. Our guess is that there are probably not a lot who are doing this.

We sent a survey out to public works directors in cities over 20,000 population. You can view the results here. The results so far indicate that one other city, Spokane, has participated in a pilot study for wastewater COVID-19 testing.

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Yes, RCW 82.14.450 provides for a one-tenth of one percent public safety sales tax option for cities or towns. This option is also available to the county with voter approval for up to three-tenths of one percent sales tax. One-third of all money received must be used for “criminal justice purposes, fire protection purposes, or both.” If it is approved countywide then funds are shared with the cities 60/40. If a city adopts it on its own, then it is shared with the county 85/15.

An additional criminal justice sales tax option that is potentially available is RCW 82.14.340. This one-tenth of one percent sales tax option is available only to counties but requires that the counties share with cities within the county using a formula defined within the statute. This sales tax option does not require a vote.

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