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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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What should an outgoing mayor do to assist in the transition to a new mayor?
Reviewed: January 2022

While we do not have an official checklist, here are some practical ways that an outgoing mayor can help ensure a smooth transition:

  • Turn over any city-owned equipment and keys.
  • Turn over any public records, including ones that may be on personal devices or accounts (and subsequently deleting from personal device/account once transfer is confirmed) and sign an affidavit to that effect.
  • Be available to answer any questions the new mayor may have during their first days/months.
  • Draft a “hand-off” memo of current projects/discussions, especially interlocal or regional boards. Include current status, next steps for the group, and if there are any deadlines (or at least have a meeting to discuss their projects with staff – department heads, exec asst., etc.).
  • Review local policies for potential additional departure items to do.

Other MRSC resources that may be helpful include the following:

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Does MRSC have guidance on contracting for design/fabrication/installation of public artworks? Are contracts for the commission of public artworks considered "public works" subject to competitive contracting procedures? Are such contracts subject to prevailing wage requirements?
Reviewed: January 2022

We have several examples of art policies on our Arts Commissions and Programs page. Those programs talk about the process of selecting art both as part of an agency construction project and as stand-alone acquisitions.

For the contracting piece, MRSC has historically said that the acquisition of public art, including its design, are not “public works.” In response to a previous inquiry, we said:

  • Where artwork is fabricated and installed, if the artwork is not an integral, functional part of a building or structure it would not be subject to public works bidding requirements or prevailing wages if completed by the artist. Along those same lines, if there is a part of the installation that is clearly not art (such as installation of a foundation or construction related work to prepare for some artwork), that arguably should be treated as a public work and bid out.

Likewise, if the installation is a part of the building or structure the installation is probably subject to prevailing wage requirements, while a stand-alone installation may not be. But as always, we recommend checking with the Department of Labor & Industries on prevailing wage questions.

Finally, here is a sample contract: Temporary Loan of Sculpture Contract – Olympia (2014).

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Our city initially banned cannabis sales when it was legalized in WA State. My understanding is that means we cannot receive any tax revenue from cannabis sales. If our city lifted the ban, would we be eligible to receive revenue from state sales, even if we did NOT have a cannabis business in our city? 
Reviewed: January 2022

The marijuana excise tax has two components- the per capita share and the retail share. The per capita share is a portion that is distributed to all cities and counties that do not prohibit marijuana businesses. The retail share is distributed to all cities and counties where marijuana retailers are located. If the city were to allow marijuana businesses, it would qualify for the per capita share. If it had any marijuana retailers, it would also qualify for the retail share. For more information on the marijuana excise tax, we would recommend reviewing our Revenue Guide for Washington Cities and Towns, page 133.

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Once the first phase of a phased subdivision is approved, are subsequent phases subject to the timelines to file a final plat at RCW 58.17.140? What about extension requirements? 
Reviewed: January 2022

Authorizing a subdivision to be developed in phases does not relieve the developer of the statutory deadlines in RCW 58.17.140 or from the requirement to obtain extensions pursuant to local code. RCW 58.17.140(3) establishes deadlines for submittal of a final plat after preliminary plat approval. RCW 58.17.140(4) gives local governments discretion to provide for extensions of that time, through procedures adopted by ordinance. Chapter 58.17 RCW does not actually address phasing of subdivisions. Nevertheless, it is a common practice. Some codes provide specific extensions for phasing, but most do not, other than extensions that might be available for any subdivision. Again, how and whether to grant extensions is a matter of local policy (implemented through an adopted ordinance).

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I am a newly elected councilmember. May I set up my own website (at my own expense) to provide a forum to communicate with my constituents?
Reviewed: December 2021

The first thing we would suggest is to look at your city code and council rules as they relate to social media usage. Second is to look at MRSC's Social Media Policies topic page and our blog post on Elected Officials Guide — What's Personal and What's Public?

There are three main concerns with maintaining your own website for city-related communications. First, depending on your city’s policies, anything you write could be considered a public record. This would require you to archive your website for the time required by state law and to produce responsive records if the city gets a public records request. Second, if a quorum of your fellow councilmembers comments on your website (assuming you intend to allow two-way communications) it raises the possibility of there being an illegal serial meeting. See our FAQ “What is a serial meeting?” for more details on serial meetings. Third, if this website is considered to be an officially city-sanctioned communication tool you may be limited in whether you can block subscribers or delete comments. As we note in the “Elected Officials Guide” blog, if you blog about public business, make sure your blog is public, not private, or you could run afoul of the First Amendment.

Many of these issues are more easily managed if all communications are part of the official city communication plan. While a plan could allow an individual councilmember to control their own content, it could make it easier to comply with record retention and public records requirements.

Finally, you’ll want to talk to your city attorney about this (and we recommend new councilmembers sit down with their city attorney and get to know them). They can take this general guidance and help focus it to comply with your city’s code and council rules.

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What is the proper timing for the swearing in of new councilmembers?
Reviewed: December 2021

There are various options for when to take the oath (both before and after January 1), and the timing will also depend on whether the new councilmember is filling a vacancy or starting a new full term. The official oath need not occur at an open public meeting, however it is not uncommon for there to be a ceremonial oath (which is separate from the official oath) at the first meeting in January. Here is a link to our Oath of Office blog article that includes a section on when the oath can be taken.

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What are the training requirements for newly elected officials?
Reviewed: December 2021

There are mandatory trainings associated with both the Open Public Meetings Act (OPMA) and the Public Records Act (PRA) that apply to both state and local officials. These are at RCW 42.30.205, RCW 42.56.150, and RCW 42.56.152. The OPMA training is required for members of a governing body (e.g., city councilmembers or county commissioners), and the PRA training is required for all elected officials (and officials appointed to elected office), and public records officers.

PRA and OPMA training for all members of governing bodies must be completed within 90 days of taking the oath of office or assuming duties. A refresher PRA and OPMA training is also required every four years (RCW 42.56.150 and 42.56.152). For more information, see the Washington State Attorney General's webpage on Open Government Training. Here are the RCW citations for these requirements:

  1. 42.30.205 RCW Open Public Meetings for elected officials
  2. RCW 42.56.150 Public Records Act and records retention for elected officials

MRSC and AWC have an online e-training for both the OPMA and PRA that meets the above requirements. The trainings can be found at this link: https://mrsc.org/Home/Training/PRA-OPMA-E-Learning.aspx - select “Open Public Meetings Act eLearning” and “Public Records Act eLearning.”

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What are the minimum requirements in state law with respect to the frequency of council meetings in code cities?
Reviewed: December 2021

The city council is required to meet regularly, at least once a month, at a place and time as designated by council ordinance or resolution. See RCW 35A.12.110 for mayor-council code cities, which also applies to the council-manager form of code city by way of RCW 35A.13.170.

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The entire Council has been invited to a community meeting on homelessness. May a quorum of the council attend?
Reviewed: November 2021

Generally, the OPMA does not apply to a quorum of members attending a meeting not called by their governing body unless “action” is taken, which can include taking public testimony. AGO 2006 No. 6. We think there is a fundamental difference between 1) the council attending a meeting and passively receiving information as mere audience members, and 2) the council attending what is essentially a public listening session. Depending on the specific facts of the meeting, how the session is structured, and whether speakers address their comments directly to the councilmembers, it does run the risk of becoming “public testimony.” At the least, it runs the risk of “appearing” to be a violation of the OPMA even if a court ultimately finds that the facts of the session show there wasn’t technically a violation.

The conservative approach would be to have less than a quorum of the council attend the meeting and report back in a regular open meeting of the council. Alternatively, the community meeting could be noticed as a “special meeting” during which the council will take public testimony on the issue of homelessness.

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Our Mayor has vetoed an ordinance. Is there a time deadline for a Council vote to override the veto? And, does the vote to override the veto have to be by the members who voted on this ordinance?
Reviewed: November 2021

RCW 35A.12.130 says that when the mayor vetoes an ordinance “council shall cause his or her objections to be entered at large upon the journal and proceed to a reconsideration thereof.” But the statute does not specify when the council must take these actions.

We did not find any published Washington court decisions, attorney general opinions, or comments in Roberts Rules of Order on this issue. A respected legal source that our courts often refer to, McQuillin Municipal Corporations, says that if there is no controlling statute it depends on the local agency’s code or rules of procedure.

As for your second question, the council as a body continues even if the members change. There is no statutory language requiring that the same members act on a vetoed ordinance.

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What steps are required for the city to adopt/implement the Home Fund/Housing and Related Services sales tax pursuant to RCW 82.14.530?
Reviewed: November 2021

There are two methods cities may use to impose the tax authorized by RCW 82.14.530. The first is by submitting an authorizing proposition (by passing a ballot measure resolution) that goes before the voters at the next general election (see subsection (1)(b)(i)(A)). The second method dispenses with the need to put the measure before the voters and gives the legislative body the authority to decide whether to impose the tax (see subsection (1)(b)(i)(B)). The option to impose the tax without voter approval was added in 2020.

See our description of this tax—how it’s implemented and how it may be used-- as well as several examples of ordinances and resolutions on the Housing & Related Services Sales Tax section of our Affordable Housing Funding Sources topic page. The Issaquah and Spokane ordinances are examples where the council approved the tax without putting the question before the voters. So, a resolution would be used to put the measure before the voters, followed by adoption of an ordinance implementing the tax if adopted. And only an ordinance implementing the tax would be needed if the city opted not to put the question before the voters.

And here are search results from our Sample Document Library using the term “RCW 82.14.530”.

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Can the city council adopt a medical freedom ordinance contrary to the state vaccine and mask orders?
Reviewed: November 2021

Local governments have no authority to override the state’s requirements for vaccinations for certain employees or for indoor mask requirements.

While there is language in the various state proclamations and orders that allows local officials to implement more stringent requirements than the state, there is no language or statutory authority allowing local officials to circumvent the state requirements or introduce less stringent requirements.

For vaccinations, there are medical and religious exemptions that can be secured, as described in our blog post Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions.

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We recently hired an employee with an address in Oregon. I believe they are going to move here but I do not know when. Will there be any issues with their W-2 for 2021 since Washington does not collect state income tax but Oregon does? Is there something special we should be doing?
Reviewed: November 2021

Generally, there is not an obligation to withhold state income tax for employees living in another state, at least for Oregon residents. An employee that resides in a neighboring state might telecommute temporarily, permanently, or not at all. The employee’s state income tax obligation is triggered by their state of residence and not where they perform their work.

For the State of Oregon, the employer may, but is not required to, withhold state income taxes. Here is an FAQ from the Oregon Department of Revenue:

Q. What about employers located outside of Oregon? Are they required to withhold for Oregon residents working out of state?
A. It isn’t required, but we do ask employers to register and withhold taxes as a convenience to the employee.

One thing to consider for your telecommute policy is if you intend to limit it to an employee’s permanent domicile. During the last year or so many people temporarily relocated to different states without permanently moving there. Even a temporary residency could trigger an obligation for the employee to pay income tax in that state, and there is a possibility that state could require withholding. You will want to establish a procedure to verify your obligations for any state you allow your employees to work from.

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Is there a law governing waiting or probationary periods for use of vacation leave or is this at the discretion of the employer?
Reviewed: November 2021

In Washington, employers are not required to provide employees with vacation benefits, either paid or unpaid. WA Dept. of Labor & Industries: Vacation Leave. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract.

In most instances, employers link the use of accrued vacation time with the completion of the probationary period. This probationary period is particularly important for union-represented and civil service employees, because after this period they can only be let go for cause and have other due process rights.

If employees are union-represented, the probationary period (and how soon accrued vacation leave can be taken) may be established in that document as well. If you have a mix of represented and unrepresented employees, it is possible that the city adopts a standard for unrepresented employees that is consistent with the standard for represented employees just for the ease of tracking.

Again, while a common benefit, there is no legal requirement to provide vacation time. Only a minimum amount of sick time is mandatory under Washington law (1 hour per 40 hours worked), which an employee is entitled to start using no later than 90 days after they start working. (See LNI’s website for more information on the requirements of the Paid Sick Leave Law.) Some jurisdictions are opting to allow the use of accrued sick leave that is in excess of the state minimum as well as accrued vacation time after 90 days – just for the ease of administration – particularly if the employer opts to have all leave in a single PTO bucket.

From a policy perspective, the reasons for shorter versus longer periods preventing the use of accrued vacation time appear to be shifting in the current job market.

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What is the process for lifting a local ban on marijuana retail establishments?
Reviewed: November 2021

The process will depend on how the ban was put into place. If it is part of the zoning or development code, then the city or another party will need to initiate the code amendment process outlined in the local code. Here are some examples of cities that have lifted bans on marijuana-related businesses:

  • Fife Ordinance No. 1957 – In 2017, Fife lifted its marijuana ban on production, processing and retail sales
  • Spokane Valley Ordinance No. 19-011 – In 2019, Spokane Valley amended its municipal code to allow licensed marijuana transporters
  • University Place Ordinance 685 – In 2017, University Place amended its code to make changes if the Council chooses to allow such uses in the future
  • Yakima City Council Meeting Packet - May 17, 2016 – In 2016, Yakima passed a Resolution declaring intent to lift its ban on recreational and medical marijuana production, processing, and directing Planning Commission to develop land use regulations pertaining to locations and regulation of such uses (pg. 100)

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Do you have examples of code provisions and guidance regarding local siting of rehab/substance abuse facilities?
Reviewed: October 2021

Here are three code provisions that address the location and conditions to be applied to substance abuse centers (and other similar uses):

  • Ferndale Municipal Code Section 18.92.050 – Substance abuse treatment facilities are permitted in the RO (residential office) and GB (general business) zones subject to issuance of a conditional use permit. These facilities shall not be located within 350 feet of community centers, public park and recreation facilities, public and private schools, playgrounds, sports fields, and youth camps.
  • Skagit County Municipal Code Section 14.16.600 – Limits In-patient substance abuse, mental health, or secure community transition facilities to rural reserve and rural freeway services districts.
  • Tumwater Municipal Code Section 18.56.140 (A) – Permits conditional use of substance abuse facilities within multifamily zones as well as other specific zones (none of which include single family zones); tied to the city’s EPF regulatory process.

It is also worth considering the adoption of essential public facilities (EPF) provisions within a local zoning code. WAC 365-196-550(3)(b) states that “A local jurisdiction may not include criteria in its land use approval process which would allow the essential public facility to be denied, but may impose reasonable permitting requirements and require mitigation of the essential public facility's adverse effects. [Emphasis added] Here are two good examples of EPF regulations:

 

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Can the city impose a residency requirement for city managers or city administrators?
Reviewed: October 2021

RCW 35.21.200 authorizes cities to establish via ordinance residency requirements for appointed officials and employees, with some limitations:

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

In addition to the limitations in the statute, the city cannot set a durational residency requirement. In other words, the city can require that the city administrator live within the city (or within a certain area) but cannot require that they have been a resident for a certain amount of time before qualifying for employment. In Eggert v. Seattle, 81 Wn.2d 840 (1973), our state supreme court held that the residence preference there (a 1-year durational residence requirement) restricted applicants’ fundamental constitutional right to travel. Other states have justified a “point in time” residency requirement declaring that “[i]f it is important to develop relations between city employees and citizens, then the employee may be required to live within the geographical confines of the city while that employee holds municipal employment.” Carofano v. Bridgeport, 196 Conn. 623 (1985).

Here are examples of two city codes that include residency requirements adopted pursuant to RCW 35.21.200:

You’ll want to review any proposed ordinance with your city attorney.

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Some residents believe that a candidate for council does not meet the residency requirement. What role, if any, does the city play in vetting the qualifications prior to election?
Reviewed: October 2021

None. Candidates make their declaration to the County Auditor.

There is not a statutory requirement that we are aware of for cities to verify the eligibility of candidates for city council. RCW 29A.24.075 provides that:

  • If a person elected to an office must be nominated from a district or similar division of the geographic area represented by the office, the name of a candidate for the office shall not appear on a primary ballot for that office unless the candidate is, at the time the candidate's declaration of candidacy is filed, properly registered to vote in that district or division. The officer with whom declarations of candidacy must be filed under this title shall review each such declaration filed regarding compliance with this subsection.

So in the case of city council positions, the county auditor will review the declaration of candidacy to determine if the candidate is registered to vote within the city at the time of filing.

Also note that the city could potentially violate PDC / use of public facilities prohibitions if the city attempts to challenge in court the qualifications of a candidate in advance. For more information, see our 2019 blog post Limits on Pre-Election Litigation Involving Local Ballot Initiatives.

See also the following blog: Disqualification: What if a Candidate Doesn’t Meet the Required Qualifications for Office?

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We are currently in the process of updating our sign code. During this process can we stop issuing permits for signage or do we need to abide by our current code?
Reviewed: October 2021

Your current sign code applies until officially amended or interim zoning controls or a moratorium is put in place pursuant to RCW 35A.63.220 or RCW 36.70A.390. Any application will need to be processed under the current regulations.

The city does have discretion whether to enforce against violations of the current sign code if it feels it would be inconsistent with state or federal law. This would have to be determined in consultation with your City Attorney. Again, however, any applications that came in for signs would need to be processed pursuant to your current code.

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How does a town dispose of property that has no monetary value (e.g., carpet remnants, broken office equipment, and obsolete computer equipment)?
Reviewed: September 2021

As a matter of procedure, the council should list and declare these items surplus (usually done through a resolution), and then indicate that the items have de minimis or no monetary value (ideally with some description evidencing this, e.g., outdated, obsolete, broken, etc.). The property could then be destroyed or otherwise disposed of. If your town has adopted procedures for surplusing property, those should be followed. Here are some examples of resolutions that include items of de minimis or no monetary value:

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Can a city require businesses to provide proof of insurance before issuing a business license?
Reviewed: September 2021

The State adopted legislation in 2017 imposing requirements on cities with respect to the issuance of general business licenses. Our City Business License and Fees webpage has an overview of the requirements. In particular, RCW 35.90.080 and 35.90.090 require that cities include certain mandatory provisions in their business license regulations. MRSC has the model ordinance language that addresses the state requirements here.

So the first thing to check is whether the City amended its business license regulations in response to these requirements. If not, then RCW 35.90.090 prevents enforcement of the business license regulations.

Cities that impose a general business license must adopt the mandatory provisions of the model ordinance as provided in RCW 35.90.080 by January 1, 2019. A city that has not complied with the requirements of this section by January 1, 2019, may not enforce its general business licensing requirements on any person until the date that the mandatory provisions of the model ordinance take effect within the city.

Even if the City did amend its business license regulations in response to RCW 35.90.080, we don’t think it can require all business license applicants to provide proof of insurance. The decision of whether to buy insurance, what type of insurance, and what policy limits, is generally a business decision. And it is a decision that will vary widely depending on the size and type of business.

Some cities require certain types of businesses to obtain additional regulatory licenses and in some cases may require proof of insurance from a certain type of business. But that is different from the general business license requirements imposed on all businesses doing business within the City. We have more information on that at the webpage linked above.

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A local hospital district is building a new hospital within city limits. They have asked the city for a "reduction, rebate or charitable assistance" on city permit fees set by resolution. Can the city do this?  
Reviewed: September 2021

MRSC has consistently advised that agencies cannot waive permit fees for other public agencies or entities (except for low-income housing, RCW 35.21.685). This is based upon the "local government accountancy act," RCW 43.09.210, which reads in part:

  • All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another (emphasis added).

In our opinion, this statute would require the city department that issues the permits to charge the agency that is proposing the development for the permits. We believe the statute applies to intra-agency permits (e.g., public works department seeking a shoreline permit from planning department), as well as inter-agency permits (e.g., hospital district applying for building permit).

One possible approach is to amend land use/building codes or the fee schedule, providing for a different fee to be paid by all governmental entities. In any case, even if the city were to reduce the amount of the fee, it would still need to recover its costs under RCW 43.09.210.

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Who makes the decision that a member of a governing body cannot participate in a quasi-judicial matter; the member, or can the governing body disqualify them?
Reviewed: September 2021

MRSC has previously said that under RCW 42.36.080, the decision/responsibility to recuse under the appearance of fairness doctrine is the member’s. However, for first class and code cities and charter counties, state law may give the governing body the inherent authority to prohibit a member from participating. MRSC has also said that a governing body may be able to adopt a rule that would allow them to disqualify a member from participating, but we aren't aware of any agency that had done so. Such a rule (or other decision to disqualify) might be upheld since the remedy for a violation of Chapter 42.36 RCW is that the body has to conduct the hearing again without the participation of the disqualified member.

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Does a town council have authority to remove the mayor? 
Reviewed: August 2021

No, a town council does not have legal authority to remove the mayor from office. There is a legal process called “recall” where a registered voter of a jurisdiction may seek a recall petition to be placed before the voters after court review and signature gathering (see Chapter 29A.56 RCW). There is also a legal process called a quo warranto lawsuit that could be used to seek court review if an elected official is claimed to not be qualified to hold office (see Chapter 7.56 RCW) .

The mayor and the councilmembers are all independently elected officials. Absent voluntary resignation, the recall process or a quo warranto lawsuit are the options to try to remove an elected official from office before the official’s term of office ends. If the official runs for reelection, then the eligible voters at the next election would make the decision.

A good resource for information about the roles of the mayor and councilmembers is MRSC’s Mayor and Councilmember Handbook. See, Chapter 9, beginning at page 31.

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What are a local government’s responsibilities under the state’s electric vehicle and alternative fuel procurement rules?
Reviewed: August 2021

Under RCW 43.19.648(2)(a) all Washington local governments are required to satisfy one hundred percent of their fuel usage for operating publicly owned vessels, vehicles, and construction equipment from electricity or biofuel, “to the extent determined practicable by the rules adopted by the department of commerce.”

Pursuant to RCW 43.325.080, the Washington State Department of Commerce adopted rules in 2016 (effective June 2018) to define what is and is not practicable for compliance with this law. WAC 194-29-020(7) defines “practicable” to mean:

  • ...the extent to which alternative fuels and vehicle technologies can be used to displace gasoline and diesel fuel in vehicles, as determined by multiple dynamic factors including cost and availability of fuels and vehicles, changes in fueling infrastructure, operations, maintenance, technical feasibility, implementation costs, and other factors.

Further, WAC 194-29-030(3) provides:

  • If a local government believes it is not practicable to use electricity or biofuels to fuel police, fire or other emergency response vehicles, including utility vehicles frequently used for emergency response, it is encouraged to consider alternate fuels and vehicle technologies, such as natural gas or propane, to displace gasoline and diesel fuel use. Local governments that opt to exempt emergency response vehicles from these rules must notify the department as part of their annual reporting under WAC 194-29-080.

All local governments are required to comply with the chapter rules adopted by the Department of Commerce, but reporting is required only by local governments that use more than 200,000 gallons of gas or diesel to fuel vehicles annually (WAC 194-29-040). WAC 194-29-080 sets forth the reporting requirements for local governments who are required to report:

  • By July 1 of each year, each local government required to report under WAC 194-29-040 must submit to the department an annual report on a form provided by the department documenting how it is complying with the goal of satisfying one hundred percent of fuel usage for operating vehicles, vessels and construction equipment from electricity or biofuel by June 1, 2018, based on the criteria in WAC 194-29-070, including any reasons for noncompliance and plans for future compliance.

Local governments are not required to retrofit their vehicles or replace them before the end of their useful lives.

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