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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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Do you have a list of jurisdictions that have adopted Juneteenth as a holiday?
Reviewed: May 2022

We do not have a comprehensive list of jurisdictions that have adopted Juneteenth as a holiday, but we do have several examples below.

The Washington State Legislature adopted SHB 1016, making Juneteenth (June 19) a paid state holiday, effective July 2021. Because June 19 is a Sunday this year, it will be observed for the first time on Monday, June 20, 2022. President Joe Biden also signed legislation into law making Juneteenth a U.S. federal holiday. The date of June 19 commemorates the day in 1865 when knowledge of the Emancipation Proclamation and the abolishment of slavery reached the last remaining enslaved people in Galveston, Texas.

While local governments are not required to follow either the federal or state legal holiday schedule, many do, and RCW 1.16.050(6) authorizes the local legislative body to set their local government holiday schedules. Some jurisdictions that have adopted Juneteenth as a paid holiday for local government employees include Battle Ground, Bellingham, Bremerton, Burien, Burlington, Centralia, Edmonds, King County, Lynnwood, Renton, Seattle, Sumner, Walla Walla, Woodway, and Yakima. Olympia has an agreement with the International Association of Fire Fighters – Mechanics that includes Juneteenth as a paid holiday. Examples of Juneteenth proclamations are located in MRSC’s Sample Document Library, and include Kirkland's proclamation on Juneteenth and Snohomish County’s resolution.

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Are there special procedures to dispose of a city’s surplus firearms?  
Reviewed: May 2022

Firearms purchased and used by a city police department may be disposed of in the usual way a city surpluses other city property it no longer needs, with some caveats noted below. One option would be to sell the firearms by auction or trade to licensed dealers.

We recommend looking to see if the city has adopted procedures for surplussing city property (either in its code or policies). If it has, then those procedures should be followed. And here is a link to the MRSC webpage on the Sale of Surplus City or Town Property that includes practice tips and sample procedures.

Please be aware that some firearms that may be lawful for law enforcement officers to possess, may otherwise be illegal. See RCW 9.41.190. In that case, an option might be to sell them to another police agency or perhaps to disassemble the weapons and sell for parts.

Finally, firearms that are seized and forfeited are treated differently under RCW 9.41.098 (see in particular subsection (2)(a)) and RCW Ch. 63.32 (unclaimed). If you are dealing with forfeited or seized firearms, these provisions should be reviewed carefully.

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We have local ribbon cuttings where city council is invited. May a quorum or more of the council attend without this becoming a meeting subject to the OPMA?
Reviewed: May 2022

A quorum or more of the council can attend a ribbon cutting ceremony without implicating the OPMA, provided no city business is transacted. See RCW 42.30.070 and this FAQ on our website: Are social gatherings or other organizations' meetings subject to the OPMA?

Two things to consider for social functions: a) If the invite is sent to all council members at the city you may want to consider posting a notice somewhere that council has been invited, a majority/quorum of the council may attend, and that they will not be conducting city business at the event; b) Your city attorney may want to conduct some refresher training on the OPMA.

We suggest that if a majority does attend a social event, they should take care to not all sit together (or in a quorum-sized group) and that they make sure to keep the event social, and not discuss city business among themselves while at the event.

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What is the city's obligation to retain voicemails?
Reviewed: April 2022

If you do not convert the voicemail to transcription, the retention period will depend on the content of the call. If you do convert, then we think the retention schedule in CORE DAN GS2016-009 (page 162) would apply. Once the agency has confirmed transcription, it may destroy the recording. The agency will want to be sure it has captured all the relevant data – to and from numbers, time, length, etc.

The state archivist has the following guidance on voicemails: Managing Voicemails - Washington State Archives - WA Secretary of State

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Do you have examples of local policies for use of city/community reader boards?
 

Reviewed: April 2022

Many local governments allow use of their facilities on a nondiscriminatory, equal access basis to the public, usually for a rental fee and this could include a message on a reader board. Some cities have policies that address how city reader board signs may be used. Here are a few examples:

We recommend working closely with your city attorney in developing such a policy, keeping in mind First Amendment issues. A city reader board should not be used to advertise a political event, especially if the event relates to a political candidate or ballot measure. RCW 42.17A.555 prohibits the use of city facilities to support or oppose political campaigns.

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Does a town automatically change its form of government when its population goes over 1,500?
Reviewed: April 2022

No. Municipalities do not automatically change their form of government based on population. RCW 35.01.040 defines a town as a municipality that “has a population of less than fifteen hundred at the time of its organization and does not operate under Title 35A RCW.” There are several towns that have a population over 1,500 (based on 2021 OFM numbers). These include Coupeville (1,950); Eatonville (2,875); Friday Harbor (2,630); Steilacoom (6,745), and Yacolt (1,670).

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We’re looking for guidance on what substantiating proof is needed from a small business to determine if they experienced a negative economic impact related to COVID-19 before we provide direct or indirect assistance using ARPA funds.
Reviewed: April 2022

One of the main criteria to determine eligible use of ARPA funds is: does the use respond to a negative economic impact of the COVID-19 pandemic?

On page 21 of Treasury’s Overview of the Final Rule, it states that local governments can consider the following criteria for identifying eligible businesses:

  • Decreased revenue or gross receipts
  • Financial insecurity
  • Increased costs
  • Capacity to weather financial hardship
  • Challenges covering payroll, rent or mortgage, and other operating costs

The document goes on to say that the following businesses can be presumed to have been disproportionately impacted by the pandemic:

  • Small businesses operating in Qualified Census Tracts
  • Small businesses operated by Tribal governments on Tribal lands
  • Small businesses operating in the U.S. territories

Additionally, on page 40 of the Final Rule, Treasury states:

  • “As discussed in the section Designating a Negative Economic Impact, in the final rule, recipients must identify an economic harm caused or exacerbated by the pandemic on a small business or class of small businesses to provide services that respond. As discussed above, programs or services in this category must respond to a harm experienced by a small business or class of small businesses as a result of the public health emergency. To identify impacted small businesses and necessary response measures, recipients may consider impacts such as lost revenue or increased costs, challenges covering payroll, rent or mortgage, or other operating costs, the capacity of a small business to weather financial hardships, and general financial insecurity resulting from the public health emergency.” [emphasis added]

Because the Final Rule says that recipients “must identify” and “must respond to a harm experienced by a small business,” a conservative approach would be to require small businesses to show that they experienced an economic harm rather than simply certifying they did. A business that did not experience an economic harm caused by the COVID-19 pandemic should not be receiving ARPA funds. We would recommend having documentation for all businesses that receive or have received any ARPA funds. The city should have documentation that demonstrates eligibility listed above.

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The city is receiving extensive public records requests from an individual requester that has the potential to interfere with city operations. What are some strategies for dealing with such requests?
Reviewed: March 2022

Here are a few blog articles on dealing with large public records requests:

  • Please Stop: Handling Public Requests (Oct 15, 2019) - Municipal employees sometimes must deal with a variety of requests, and some can be quite challenging. This article looks at what local governments can and cannot broadly do in terms of responding to large public records requests and complaints.
  • BIG Public Records Requests (Mar 3, 2015) - How can local governments respond to large public records requests? In light of some recent public records requests that have made the news, this blog post discusses overbroad requests, identifiable records, and the ability to provide public records in installments.
  • Handling Vague and Complex Public Records Requests: Developing Your Plan of Attack (Feb 28, 2013) - Have you ever seen a public records request that makes you scratch your head and think, "How am I going to respond to that?" Two public records officers from Snohomish County weigh in on strategies for dealing with seemingly impossible requests that are either too vague or too complex.

MRSC’s Public Records Act Basics page has a section with examples of public records policies, including policies that limit the amount of staff time spent on responding.

Finally, there is authority under the PRA for an agency to close a request if a requester fails to review or pay applicable copy charges for requested records. See RCW 42.56.120(4) and WAC 44-14-040 (Attorney General Model Rules).

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Does a building have to be inspected by a licensed inspector before the agency can issue a building permit?
Reviewed: March 2022

There is no state law that requires building inspectors to be licensed. However, agencies are still required by RCW 19.27.050 to enforce the state building code (including any local changes the agency has adopted). This can be done by in-house employees, or by contract with another jurisdiction or private company to act as your building official.

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Does a resolution by a city council adopting findings require review and approval by legal counsel?
Reviewed: March 2022

State law doesn’t require the city attorney to review or approve ordinances or resolutions. Local city policies often require their city attorney to approve ordinances and resolutions “as to form,” but, again, this is not a requirement under state law. In contrast, the city clerk is required to authenticate all ordinances and resolutions by their signature. See RCW 35A.12.150. We have a blog post that provides an overview of how to properly use ordinances, resolutions, motions and proclamations (although it doesn’t address the signature issue): Taking Action Using Ordinances, Resolutions, Motions, and Proclamations

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If a mayor in a code city resigns, does the elected mayor pro-tem automatically assume the position of mayor? Does the mayor pro-tem serve for the remaining term?
Reviewed: March 2022

If the office of mayor becomes vacant, the mayor pro-tem may fill in for a short period of time. See RCW 35A.12.065. However, because the mayor pro-tem (who is a councilmember) fills in as mayor on a temporary basis, there still is a vacancy that must be filled. See RCW 35A.12.050 and RCW 42.12.070. The council, as governing body, appoints the person to fill the vacancy.

The city council has 90 days from the date the vacancy occurred to fill the vacancy. If the council fails to do so, the county commissioners or council make the appointment or appointments. The county has 90 days (180 days from the date of the vacancy’s occurrence) to make an appointment; if it fails to do so, either the county or city or town may petition the governor to make the appointment. Again, see RCW 42.12.070.

Aside from the timing constraints, there is no particular process that must be followed to fill a vacancy. There is no requirement, for example, that the vacancy be advertised, or that resumes or applications be solicited, or that interviews be conducted. However, if interviews are conducted, they must be conducted in public at an open meeting. The governing body may review qualifications in a closed executive session, but the appointment itself must be made during an open meeting. Note that local procedures may establish a process for filling vacancies.

The person appointed to fill the vacancy continues to serve until a qualified person is elected at the next election at which councilmembers are elected.

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Are there any restrictions to shutting water off in the winter?
Reviewed: February 2022

There is no legal prohibition against shutting water off during the winter months. That said, to shut off water, you’ll need to follow precise steps. The best place to start is our Utility Liens and Shut-offs tool, which walks you through the necessary steps on water shut off.

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Who has the authority to update job descriptions?
Reviewed: February 2022

Generally, creation of positions and deciding job responsibilities is a legislative function. Unless the duties are set out in state law, the local agency’s governing body should establish the positions and duties.

For counties, the officer in charge of any county office “may employ deputies and other necessary employees with the consent of the board of county commissioners” (the board sets compensation) RCW 36.16.070.

For cities, establishing the duties of personnel is the council’s job. See RCW 35.27.070, 35A.11.020, 35A.12.020. For most other special purpose districts, the board or commission establishes job descriptions. See RCW 53.08.170 (Ports); RCW 57.08.005(13) (Water-Sewer Districts); RCW 81.112.060 (Regional Transit Authorities).

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What are some technical and financial resources for street tree and sidewalk repair projects?
Reviewed: February 2022

Sidewalks:

  • WA State Dept. of Transportation - Provides information on federal and state funding programs administered through Local Programs, including the pedestrian and bicycle, safe routes to school, surface transportation block grant, and transportation alternatives programs.
  • MRSC - Complete Streets Policies – Includes a section on the state’s complete streets grant program.
  • MRSC - Sidewalk Construction, Maintenance, and Repair – Includes examples of local sidewalk repair programs, including some of those found below.
  • Bellingham has a transportation fund for projects like sidewalk improvements. That page includes links to the city’s six-year transportation improvement program. This FAQ lists all the main funding sources for the 6-Year TIP.
  • Seattle’s Sidewalk Development Program - Includes projects funded by a voter-approved levy. Here’s a link to more information on their Sidewalk Repair Program.
  • Shoreline Sidewalks webpage – Includes information on the city’s 2018 voter-approved sidewalks program and sidewalk funding.
  • This Tacoma webpage on Sidewalks describes Washington State law regarding maintenance of sidewalks in the right-of-way. It includes other helpful information, like a Q and A on tree damage to sidewalks and the potential for a local improvement district to fund sidewalks.

Trees:

  • MRSC - Urban Forestry - Includes links to resources like urban forestry plans and programs (which often include funding sources) and the WA Dept. of Natural Resources Urban and Community Forestry webpage with grants and financial assistance. DNR is currently accepting applications for community forestry assistance grants (projects to support a wide variety of urban forestry projects that help create healthier communities). Also on this page, this document from the American Public Works Association includes sources of funding for urban forestry programs.
  • EPA’s Grants webpage - Includes a link to Grants.Gov, a searchable grants database, and other grant opportunities.
  • City funds - In some communities, city funds are only available if the street tree is on the city’s “street tree responsibility list” or the city’s responsibility, in other words.
  • Look to a neighborhood group to help fund and plant trees in their respective neighborhoods.
  • Look to a local tree organization to see if it can help fund some street trees.
  • You could develop a street tree permit, whereby you reinvest the permit fees into new or replacement trees.

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May the Town plow out personal driveways? What if the property pays for the service?
Reviewed: February 2022

No, a town may not use town equipment to plow snow from private property including personal driveways. One reason is that the Washington State Constitution, Article VIII, Section 7, prohibits gifts of public funds or resources to private individuals or entities.

Further, town equipment and time should not be used to plow private property even if the property owner pays for the cost of the service – that is because there is no “proper municipal purpose” for a city to provide those services. Private companies and individuals provide snow plowing services; no statutes in chapter 35.27 RCW grant authority to a town to engage in such activities.

So, the resident could be referred to snow removal businesses that service private roads and driveways.

Here is a link to MRSC’s topic page Snow and Ice Removal Policies with legal authorities and sample policies. In addition, here is a link to MRSC’s 2019 blogpost on Dealing with Snow and Ice on Streets and Sidewalks.

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One of our councilmembers asked about Community Choice Aggregation, which relates to an alternative to the investor-owned utility energy supply system. Does Washington law allow for such aggregation and, if so, is MRSC aware of any Washington jurisdictions that are involved with such community aggregation?
Reviewed: January 2022

The Washington legislature has not yet passed authorizing legislation for community choice aggregation (CCA). CCA allows local governments to aggregate or pool the electricity loads of residents, businesses, and/or municipal facilities and purchase or develop power on behalf of these aggregated customers. CCA has been used to drive down prices and to significantly increase demand for renewable/clean energy.

The Lean Energy webpage lists the states that have already adopted legislation allowing for CCA and shows Washington State as “watch list/potential” for CCA, so it may be that something considered in a future legislative session. Here is a link to an article with more information on CCAs and the states who are using this model. And here is a link to the Washington Utilities and Transportation Commission webpage describing green power programs available in Washington State.

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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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