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Ask MRSC Archives

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State in recent months and years. Click on any question to see the answer; use the drop-down menu to browse inquiries by topic.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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Is the town required to fly the U.S. flag when town hall is not open?
Reviewed: November 2022

MRSC is aware of no federal or state statute that requires the town to display the U.S. and State flag when the town offices are closed unless it is one of the days where those flags are required to be displayed along with the POW/MIA flag.

Courts have interpreted the U.S. Flag Code to be advisory only and there are no penalties for violating it. RCW 1.20.017 requires public entities (including towns) to display the POW/MIA flag along with the U.S. and state flag only on specific days. RCW 1.20.017 does not contain any exception that would allow the town to not display the flags on those days if the town hall were not open for business. MRSC has an extensive summary page on this issue: Flag Display. But you should also consult your town attorney to see if there are any town codes or policies related to display of flags that you need to consider.

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Do you have access to data regarding the percentage of people who are working from home in various cities in Washington State? We are seeking this information as part of our comprehensive planning capacity analysis to plan for office space, home businesses, and jobs-to-housing balance. 
Reviewed: November 2022

Here are some resources that should be helpful:

  • U.S. Census Bureau:
    • Home-based Workers - Notes that the American Community Survey (ACS) includes a question for those 16 and over who were employed and at work in the previous week, on the method of transportation usually used to get to work. Home-based workers are those who reported “work from home” on this question.
    • This recent Census article highlights that the number of people primarily working from home tripled between 2019 and 2021 (with Washington State having one of the highest percentages of home-based workers) and indicates that the Census will release additional ACS statistics over the next few months.
  • Washington State Office of Financial Management (OFM):
  • Washington State Employment Security Department: Employment Estimates - Provides monthly estimates of nonfarm employment, by industry, in Washington state.

Additionally, some cities do their own employment studies (either in-house or through consultants) that would analyze various local employment data to inform their comprehensive plans.

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Are birth dates exempt from disclosure in public records such as police reports? 
Reviewed: November 2022

In general, the answer is “no.” The only exemption applicable to dates of birth (DOBs) is RCW 42.56.250(8) for employee month and year of birth if found in personnel records.

Note, there are a few exemptions that protect a person’s identity – for example RCW 42.56.240(2) protects witnesses and victims of crimes when their life/safety/property is in danger or they request nondisclosure. But, on its own, the DOB would not personally identify an individual (if their name and other identifying information was redacted out). So, we don’t recommend relying on this exemption to redact a DOB.

We have a page on Disclosure of Personal Identifying Information in Law Enforcement Records. As you will see, it doesn’t mention DOBs. We also have a sample arrest report which shows what to redact and what not to redact.

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The city will have a bond measure on the ballot for the next election. Can the city host a “town hall” event where the “pro” and “con” committee members could discuss their respective positions and the city provide facts related to the bond measure? 
Reviewed: October 2022

Generally, the city may allow use of its facilities on a non-discriminatory basis. It may also produce fact-based information regarding a bond measure.

As we note on our Use of Public Facilities in Election Campaigns page, "normal and regular conduct" is allowed. Under this exception, a local government could prepare an objective and neutral presentation of facts concerning a ballot measure. For example, details could be provided to citizens concerning the financial impact of an initiative on the local government, such as how revenues would be affected by its passage. Care must be taken that this information be presented in a fair, objective manner.

Many local governments also allow use of their meeting room facilities on a nondiscriminatory, equal access basis to the public, usually for a rental fee. If this is the case, then it would be allowable to hold a public forum for citizens with pro and con representatives discussing an initiative in a public meeting hall.

You can get more specific guidance as well as some examples from the Public Disclosure Commission’s website. Their PDC: Guidelines for Local Government Agencies in Election Campaigns provides an overview of Washington state law in an easy-to-read format indicating what activities are permitted or not permitted, as well as general questions to consider.

The city should consult its city attorney on the specific language the city intends to share, as well as the use of the city facilities.

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Is MRSC aware of examples of local comprehensive plans that have tackled issues related to gun safety (not sales/purchase), either in more broad public safety terms or in more specific ways, such as referencing public education, buy-back programs, or other approaches? 
Reviewed: October 2022

Seattle and King County’s comprehensive plans specifically identify gun safety, while other jurisdictions’ comprehensive plans more broadly address violence, crime, and/or public safety (see examples below). Additionally, community health needs assessments and community health improvement plans are often either referenced or adopted by reference in comprehensive plans. For example, the King County Comprehensive Plan references the community health indicators (see violence & injury prevention) that are part of the King County Community Health Needs Assessment, 2021-2022 (see discussion of firearm-related deaths).

Here are some examples of goals and policies from Washington comprehensive plans:

  • King County Comprehensive Plan – In Chapter 4 of the “Regional Health and Human Services” section, see H-102.e and H-209, which include references to firearms.
  • Kirkland Human Services Goals and Policies – See Policy HS-5.3 in the Human Services chapter. It includes as a goal area “A safe haven from all forms of violence and abuse.”
  • Redmond Comprehensive Plan – In the Chapter “Shoreline Master Program,” see SL-46 “Incorporate crime prevention principles in the design of public access to make facilities safe and easy to patrol and supervise.”
  • Seattle Comprehensive Plan (2020) – In the Chapter “Community Well-Being,” see public safety policy CW 5.7 “Work in partnership with state, county, and community agencies to prevent violence, including that associated with substance abuse, and firearms injuries.” Other examples include GS 3.27, CW G5, BL-G15, and NN-P18.
  • Spokane Social Health Chapter – See SH 6 on Safety, and related policies (CPTED, natural access control, natural surveillance, community oriented policing services, etc.).
  • Vancouver Comprehensive Plan – See the Police section in the Public Facilities and Services Chapter, which includes data and strategies around crime and violence.
  • Yakima Comprehensive Plan – See policy 7.4.7 “Encourage community policing, CPTED principles, and community watch programs to improve public safety for both businesses and residences.

Here are a few examples from other states:

  • Oakland Safety Element - Public Safety – Includes policies and actions related to violent crime.
  • Minneapolis Comprehensive Plan – See Goal 5 and related action steps, which include “Follow a public health approach to ending violence by reducing the factors that put people at risk for being involved with violence” and “Expand the use of non-enforcement, community-driven public safety strategies and responses such as restorative practices that can address and repair the harm caused by a crime.”
  • Stockton General Plan – See Goal SAF-1, Safe Community (public safety is a top community priority). Policies SAF-1.1 and SAF-1.2 address violence and crime.

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Can you provide examples of jurisdictions that allow more than one accessory dwelling unit (ADU) on a lot?
Reviewed: October 2022

We are aware of a handful of Washington cities that allow more than one ADU per lot.

And here’s an Oregon example:

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A local church is inquiring about placing a cross on top of the church that is far larger than what is allowed per the city’s sign code. Can the city apply its sign code in this situation? 
Reviewed: October 2022

The city can apply its sign regulations provided it is a uniform application of the code (in other words, all applicants are treated similarly) and it does not impose an unjustified substantial burden on religious exercise. However, you should check with your attorney on this issue.

The law involved is a federal law called the Religious Land Use and Institutionalized Persons Act (RLUIPA) (42 U.S.C. § 2000cc) which impacts land use decisions involving religious organizations. In order to show that a land use regulation – such as a sign code regulation - violates RLUIPA, the church must establish that the government imposed a substantial burden on the plaintiff’s religious exercise. The government is then required to show that the regulation is the least restrictive means of furthering a compelling government interest.

Here are two good resources to review:

Below is one of the Q&As relevant to your question from the Dept. of Justice guidance linked above:

Does RLUIPA exempt religious assemblies and institutions from local zoning laws? No. RLUIPA is not a blanket exemption from zoning laws. As a general matter, religious institutions must apply for the same permits, follow the same requirements, and go through the same land-use processes as other land users. RLUIPA does not pre-empt or replace the normal zoning code. Rather, it imposes a number of safeguards and requirements on local governments regarding zoning that impact religious uses by requiring that:
  • the zoning law or its application not substantially burden religious exercise without compelling justification pursued through the least restrictive means,
  • the zoning law not treat religious uses less favorably than nonreligious assemblies and institutions,
  • the law not discriminate based on religion or religious denomination, and
  • the jurisdiction not totally or unreasonably restrict religious uses.
When there is a conflict between RLUIPA and the zoning code or how it is applied, RLUIPA, as a federal civil rights law, takes precedence and the zoning law must give way. So long as a municipality applies its codes uniformly and does not impose an unjustified substantial burden on religious exercise, it may apply traditional zoning concerns – such as regulations addressing traffic, hours of use, parking, maximum capacity, intensity of use, setbacks, frontage – to religious uses just as they are applied to any other land uses.

Again, we recommend discussing the question with your city attorney. Our guidance at MRSC is general and not intended to substitute for the advice of your legal counsel.

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What is a county’s authority to require and issue business licenses in unincorporated areas?  
Reviewed: October 2022

As we note in MRSC’s Revenue Guide for Washington Counties (see footnote 56 in p.173), counties do not have the same authority as cities to require general business licenses, and there is no single county statute addressing business licensing. However, counties do have authority to require licenses and charge fees for certain specific businesses or activities within unincorporated areas – for example, gambling (RCW 9.46.295) (RCW 9.46.110), massage therapists (RCW 36.32.122), retail liquor (RCW 67.14.040), public dances and other public recreational or entertainment activities (RCW 67.12.021), and pool halls, billiard halls, and bowling alleys (RCW 67.12.110).

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Our Traffic Impact Analysis is based on vehicle level of service, and we'd like to base it on a more multimodal model. Do you know of any other cities that have a multimodal traffic impact analysis program?  
Reviewed: September 2022

Here are a few examples that might be useful:

  • Bellevue Mobility Implementation Plan Report (2022) – See page 70, which discusses Seattle’s use of mode share to determine transportation concurrency. “Under this system, the city requires a transportation impact analysis of a proposed development to determine whether the mode share of the occupied building would meet SOV mode share standards established for different areas…”
  • Issaquah Transportation Impact Analysis Guidelines (2015) – See page 2, which states, “Consistent with the Transportation Concurrency and multi-modal transportation impact fees in the City, these guidelines pertain to all modes of transportation, both motorized and non-motorized. The purpose of these Guidelines is to establish requirements and procedures to ensure timely and consistent analysis.”
  • Walla Walla Transportation Impact Analysis Guidelines (2018) – See page 11, which states that an analysis of multi-modal access and circulation is required.

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What is the retention requirement for video recordings of council meetings? We have been having hybrid council meetings and we aren't sure how long we are required to retain the recordings of the meetings for. 
Reviewed: September 2022

There is no requirement that a public meeting be either audio or video recorded, however the legislature recently amended the Open Public Meetings Act (OPMA) to, among other things, encourage agencies to record their meetings. RCW 42.30.220 provides:

(1) Public agencies are encouraged to make an audio or video recording of, or to provide an online streaming option for, all regular meetings of its governing body, and to make recordings of these meetings available online for a minimum of six months.
(2) This section does not alter a local government's recordkeeping requirements under chapter 42.56 RCW.

If the city does opt to record its meetings, those recordings are a public record and subject to disclosure upon request. The recordings must also be maintained according to the appropriate retention schedules. For meeting recordings, that would be a 6-year retention period. See the Local Government Common Records Retention Schedule (“CORE”), Disposal Authority Number (“DAN”) GS2012-027—Advisory Meetings and DAN GS50-05A-13—Governing/Executive Meetings.

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If our town would like to sell a piece of property that was previously leased to a business and not part of a utility, do we have to do a bidding process? I have looked at some other town's ordinances and I am finding conflicting information.
Reviewed: September 2022

It does not surprise me that you are seeing different approaches in different towns’ ordinances. This is because town councils have broad authority to dispose of real estate in any commercially reasonably way (RCW 35.27.010 and RCW 35.27.370(2)). This includes listing for sale, putting it out to auction, direct or private negotiation with an interested buyer, etc. We have some best practices tips available on our page Surplus City or Town Property. An important tip is to get an appraisal of the property so you know what a fair market value is and the value you should receive in exchange for the property. An auditor will be looking for whether the town has adopted policies or procedures, and whether those policies or procedures were followed. We encourage cities and towns to adopt surplus property disposal policies and then follow them, but in their absence, you can always get authorization from your town council for this specific sale and your council can direct you how to go about selling this particular parcel.

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We have a request for a former employee’s personnel file. In the file is a copy of the employee's police officer identification card. On the back of that card are the left and right index fingerprints. Is there an exemption for the fingerprints?  
Reviewed: September 2022

Biometric data is exempt from disclosure under the PRA. See RCW 40.26.020 (5): “Biometric identifiers may not be disclosed under the public records act, chapter 42.56 RCW.”

Per RCW 40.26.020(7)(b):

"Biometric identifier" means any information, regardless of how it is captured, converted, stored, or shared, based on an individual's retina or iris scan, fingerprint, voiceprint, DNA, or scan of hand or face geometry, except when such information is derived from: (i) Writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color […].

If you have not asserted this exemption before, I encourage you to review it with your city attorney.

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Is there a comprehensive resource for determining applicable exemptions under the Public Records Act (PRA)? 
Reviewed: August 2022

Here are several good resources:

Questions regarding exemptions and appropriate redactions related to specific records should be discussed with your agency attorney.

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Does HB 1630 — the new law prohibiting open carry of firearms and other weapons within certain municipal buildings — apply to special purpose districts like fire, hospital or port districts?
Reviewed: August 2022

Special purpose districts (SPDs) like ports and fire and hospital districts are defined as "municipalities" or "municipal corporations" in their enabling legislation. HB 1630, codified at RCW 9.41.305, prohibits open carry in:

City, town, county, or other municipality buildings used in connection with meetings of the governing body of the city, town, county, or other municipality, or any location of a public meeting or hearing of the governing body of a city, town, county, or other municipality during the hearing or meeting.

Therefore, SPDs that are defined as municipalities are subject to the statutory language. For more on this new law, see the section on “Open Carry of Firearms” in the MRSC blog Regulating Firearms in Washington State.

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After a recorded public meeting, is there a requirement for how quickly we need to make the recording available to the public? And for how long must we make it available online?
Reviewed: August 2022

There is not a specific requirement for how quickly a governing body should make recordings of public meetings available to the public. There is also no requirement to make recordings of public meetings. However, pursuant to recent changes to the Open Public Meetings Act (OPMA), recordings are now “encouraged,” and agencies are also encouraged to make meeting recordings available online. RCW 42.30.220 now provides:

(1) Public agencies are encouraged to make an audio or video recording of, or to provide an online streaming option for, all regular meetings of its governing body, and to make recordings of these meetings available online for a minimum of six months.

(2) This section does not alter a local government's recordkeeping requirements under chapter 42.56 RCW.

This new RCW, effective June 9, 2022, does not indicate how soon an agency should make recordings available online, but includes the guideline for posting them “a minimum of six months.” The statute clarifies that the Public Records Act (PRA) still applies. Further, records retention schedules should be reviewed before any recordings are discarded.

Your agency could adopt a policy with guidelines about when to post meeting recordings, taking into account the resources involved in doing so. A reasonable time may differ depending on the agency in question. If your agency has decided to make audio and/or video recordings of your meetings, then you might want to look at the requirement for meeting minutes to be “promptly recorded.” There is not a specific definition of “promptly.” RCW 42.30.035 provides:

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

For more information about the 2022 changes to the OPMA, here are links to recent MRSC blogs: The OPMA Gets an Update from the Legislature and HB 1329: Answers to Your OPMA Questions.

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What are the rules for burning an outdoor recreational fire (e.g., a bonfire or campfire)?
Reviewed: August 2022

Sections 70A.15.5000 through 70A.15.5220 of the Revised Code of Washington (RCW) and Chapter 173-425 of the Washington Administrative Code (WAC) regulate outdoor burning. Both generally forbid outdoor burning unless specifically authorized. WAC 173-425-050(4) says that:

It is unlawful for any person to cause or allow outdoor burning that causes an emission of smoke or any other air contaminant that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance

WAC 173-425-060(2)(i) requires a permit for any:

Recreational fires with a total fuel area that is greater than three feet in diameter and/or two feet in height (except in the nonurban areas of counties with an unincorporated population of less than fifty thousand; […]

WAC 173-425-060(5) establishes minimum recreational fire conditions. Those include whether a permit is required or just notification. Even for recreational fires, there are conditions. The regulations limit the materials that can be burned and the days and times burning is permitted. They require fifty-foot s eparation from structures and a maximum burn pile of four feet by four feet by three feet.

Because enforcement differs depending on each agency with overlapping jurisdictions (city police, fire department or fire district, and regional clean air agency) I recommend you consult with your fire marshal, your local clean air agency, and your attorney for specific requirements in your city.

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If there is a vacancy on a seven-member council in a code city, and only five members are present at a meeting where the vacancy is scheduled to be filled, is a 3-2 vote sufficient to appoint the new member?
Reviewed: August 2022

Yes, a 3-2 vote would be sufficient for appointment. RCW 42.12.070(1) provides that:

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

The number of votes required for a measure to pass depends on the type of matter on which the council is voting. For example, RCW 35A.12.120 (which applies to mayor-council as well as council-manager code cities under RCW 35A.13.170) requires a vote of the majority of the entire council for the “passage of any ordinance, grant or revocation of franchise or license, and any resolution for the payment of money.” So for those matters you count all seats to determine a majority regardless of whether they are filled or not. MRSC has previously advised that unless it is an action under RCW 35A.12.120, only a majority of members present is required under state law.

We think the same is true with the filling of a vacancy. A majority of those present at the meeting would decide the next appointment, as long as there is a quorum for the meeting. So a 3-2 vote would be sufficient.

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Does the state’s plastic bag ban apply to dog waste bags? If so, what should the city use at its dog waste dispensers at city parks? Do you have examples of other cities’ dog waste policies?
Reviewed: July 2022

The plastic bag ban does not apply to pet waste bags. See RCW 70A.530.020(3)(b), which states that carryout bags provided by a retail establishment do not include “[n]ewspaper bags, mailing pouches, sealed envelopes, door hanger bags, laundry/dry cleaning bags, or bags sold in packages containing multiple bags for uses such as food storage, garbage, or pet waste,” along with other listed types of plastic bags. Some cities use bags with recycled content or biodegradable bags in their pet waste dispensing stations, but it is not required per the plastic bag ban.

Here are a few local examples of pet waste programs and other related resources:

 

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If an employee posts a city job opening on their personal LinkedIn profile, is this considered a public record?  
Reviewed: July 2022

Agency-related records on a staff member’s personal LinkedIn profile can be analyzed under the “scope of employment” test. We have an FAQ on our PRA website that addresses this:

Essentially, if the employee on their own initiative decides to post a city job posting on their personal LinkedIn, that is not a public record (it is not within their “scope of employment”). However, if the city manager/mayor or the department director tells (or maybe simply encourages) the employee to post the job posting on their personal LinkedIn, it would be a public record since the agency is directing it.

For hiring tips, see our recent blog post: Recruiting for Local Government Positions.

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We are working on adding "legal lot" code language to our subdivision ordinance. Could you provide examples of other jurisdictions’ legal lot code language?
Reviewed: July 2022

Here are several examples from both cities and counties:

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Chapter 35.80 RCW grants authority for municipalities to assess costs of abatement and penalties/interest against the tax rolls and as a lien against the property when buildings/structures are abated. When no buildings are involved, are cities authorized to assess penalties for nuisance code abatement as an assessment submitted to the county treasurer to be entered upon the tax rolls?
Reviewed: July 2022

Other than RCW 35.80.030, we are aware of no statute that would allow a municipality to create a lien and have the county treasurer enter it on the tax rolls. For all other nuisance abatement costs the municipality would have to get a court judgment and record it against the property. It will not have a higher priority than other liens. See generally, City of Tacoma v. Pierce Cnty., 79 Wash. 2d 361, 485 P.2d 454 (1971).

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Are there any state laws/requirements for advertising employment opportunities for a small special purpose district?
Reviewed: June 2022

Currently, there are no state requirements to 1) advertise for job openings or 2) that dictate what is required to be in a job advertisement.

However, starting January 1, 2023, all employers with 15 or more employees must include in all job postings the wage scale or salary range, and a general description of the benefits and other compensation to be offered to the hired applicant. See ESSB 5761. Assuming your small district has less than 15 employees, this requirement would not apply. For tips on recruiting employees in this tight labor market, see this recent MRSC blog post: Recruiting for Local Government Positions.

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Can the city flag be flown on the same pole as the state flag? We understand that the U.S. flag is highest and the POW/MIA flag would be flown below the U.S. flag.
Reviewed: June 2022

With respect to flag display, there are legal requirements and there is etiquette (which is also very important in this topic area). As we note on our Flag Display webpage, RCW 35A.21.180 requires code cities to display the US and Washington flags at city buildings. In addition, each public entity must display the US, Washington, and POW/MIA flag upon or near its principal building on certain enumerated days pursuant to RCW 1.20.017.

Those are the legal requirements. Regarding flag display etiquette, our webpage has the following:

  • According to the Washington Secretary of State, the Washington State flag should be displayed in the highest position of honor after the U.S. flag and the flags of any other nations. It should be displayed in a higher position of honor than the flags of other states, counties, cities, or any other entity.
  • When the U.S., Washington State, and POW/MIA flags are flown on a single pole, the U.S. flag should be on top, followed by POW/MIA flag and then the state flag. (The state Department of Veterans Affairs changed this protocol in 2017 - previously, the POW/MIA flag was flown under the state flag.) If there are two poles, the POW/MIA flag should be flown under the U.S. flag while the state flag is on the other pole. For more information, see the Department of Veterans Affairs' POW/MIA Flag Display webpage.

Based on that, if the City has more than one flagpole, then we agree that when the POW/MIA flag is flown, it should be flown directly under the U.S. flag in the highest position of honor as detailed in the U.S. Flag Code, 4 U.S.C. Section 7. (The Flag Code has been interpreted by courts as being advisory in nature, which is why it is referred to as etiquette instead of a legal requirement.) The Flag Code provides:

  • When the flags are flown from adjacent staffs, the flag of the United States should be hoisted first and lowered last. No such flag or pennant may be placed above the flag of the United States or to the United States flag’s right.

The State flag would therefore be flown on a different flagpole to the left of the U.S. Flag, with the City flag below the State flag.

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Is there any exemption for municipal corporations from obtaining a minor work permit?  
Reviewed: June 2022

Municipal corporations are excluded from the definition of “employers” that are required to obtain a work permit by RCW 49.12.005(3) and WAC 296-125-015(4). However, the city must comply with the rest of the requirements for employing minors in RCW 49.12.110-.124.

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We want to update our agency’s official flag/logo. Are there any statutory requirements or other considerations we should be thinking about?
Reviewed: June 2022

There are no state laws that specifically allow or prohibit the city from adopting a city flag, so you have a lot of flexibility. Several cities have adopted a seal and a logo.

Sometimes a local government or agency will create a contest to solicit community input into a new design or logo. See the following examples of logo contests and projects:

If you do hold a contest, be sure to include language that, by submitting a logo, the applicant (or their parent or guardian on their behalf) surrenders any trademark or copyright to the logo, and that the agency reserves the right to not use the winning logo. We highly recommend you have your attorney review the terms and conditions of the contest.

Once an agency decides upon a new flag or logo, it can register its logo as a trademark with our state’s Office of the Secretary of State (Corporations Division) if the trademark is to be used exclusively within the state or region. Chapter 19.77 RCW governs trademarks issued by the state. As noted on the Secretary of State’s Trademarks webpage, the broadest protection is available through registration with the U.S. Trademark and Patent Office. The state Trademark Registration Form is available through the Secretary of State’s Registration Forms website. We recommend that you contact the Office of the Secretary of State, Corporations Division, for more information at (360) 725-0377.

Your agency may also want to review the North American Vexillological Association’s “Good Flag, Bad Flag” which “lays out five basic principles for good flag design, and then shows examples of flags that follow them and flags that disregard them, all illustrated in color.” There’s also an interesting and entertaining TED talk video on city flag designs.

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