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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The 6% limitation on a utility tax is applicable only on electricity, telephone, natural gas, and steam energy utilities (RCW 35.21.870). Any increase in excess of 6% requires voter approval. In addition, federal law prohibits taxing internet or broadcast satellite TV services and places limitations on local cable television taxes. See MRSC's Utility Taxes page for a summary of maximum utility tax rates by utility type. There is no limit prescribed by state or federal law for other utilities, such as sewer, solid waste, stormwater and water. However, if the city is proposing to increase the tax on one of these utilities a referendum clause may be required.

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No, state law does not require a public hearing for a regular budget amendment. RCW 35A.33.105 provides the ability to adjust wages, hours, and conditions of employment, without a public hearing. RCW 35A.33.120(4) provides the authority to amend the budget if excess of estimated revenues are to be appropriated. RCW 35A.33.080 provides for "nondebatable emergencies" and there is no public hearing required. However, when the council has declared a public emergency that is not one of the "nondebatable emergencies" defined in RCW 35A.33.080 a public hearing is required (RCW 35A.33.090). Note: this answer is also applicable to budget amendments for Second and Third Class Cities, Towns and First class cities under 300,000 population. See Chapter 35.33 RCW, specifically RCW 35.33.107; RCW 35.33.121(4); RCW 35.33.081; RCW 35.33.091.

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Normally, impact fees are paid before construction begins because they are a condition for receiving a permit. However, RCW 82.02.050 requires cities, towns, and counties to adopt an impact fee payment deferral system for small single-family residential developments, allowing developers to pay the fees after construction instead of beforehand. For details and examples, see MRSC's Impact Fee Payment Deferral Programs page. More general information is on MRSC’s Impact Fees page.

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

• The consent agenda is a tool used to streamline council meeting procedures by collecting and grouping routine, noncontroversial topics into a single agenda item that can be discussed and passed with a single motion and vote. In some cities, items to be placed on each consent agenda are selected at a meeting of the city’s department heads. In other cities, a special agenda committee chooses the consent items. Commonly, no debate is allowed on items included in the consent agenda.
• Consent items may be read by title only in the body of a single consent agenda resolution. However, any councilmember can have an item removed from the consent agenda for separate consideration. In addition, cities may allow any person attending the regular council meeting to request that an item be removed from the consent agenda, read completely, and voted on independently. In such a situation, the remainder of the consent agenda can be voted on, omitting the challenged items. Setting up a consent agenda system usually requires preliminary action by the council in the form of adopting an ordinance or resolution.

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

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

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We reviewed the Governor’s memo on high risk employees and this only applies to employees who are: (1) 65 years or older; (2) listed by the CDC under the “at increased risk” category; or (3) listed by the CDC under the “might be at increased risk,” with a few additional conditions.

Unless an employee falls under one of the criteria above, they do not qualify for the high risk category and they don’t benefit from the protections of Proclamation 20-46.2. Even if a spouse is considered “high risk,” a spouse doesn’t benefit from the protections of the proclamation – an employee must meet one of the criteria.

If the employee is considered high risk, then the following apply:

• Employee must be provided with alternative work assignments (even including reassignment) if they request it
• Employee must be permitted to use unemployment insurance
• If the employee’s paid time off exhausts during the period of leave, the employee must be permitted to take unpaid leave
• Employer must maintain their health insurance benefits until they are able to return to work, even if the employee has exhausted their paid leave and are on unpaid leave
• Employer may not terminate or otherwise take adverse employment action against an employee for not reporting to work

There are a few other allowances detailed in our blog Additional Rights for Employees at High Risk for Coronavirus Complications.

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Lodging tax has two different components. The state shared retail sales tax portion (2%) RCW 67.28.180, and the additional 2% authorized under RCW 67.28.181(1)

Here is a link to the Revenue Guide for WA Counties that explains the two components of lodging tax (aka: Hotel/Motel Tax). These are both excise tax options available to cities and counties that do not require a vote of the citizens.

There is no difference in the allowed use of these two components of the lodging tax, both of which are restricted resources that may only be used for tourism activities or tourism-related facilities. The distribution by the state for lodging tax is always remitted separately for each component of the tax because the statutory authority to impose the taxes are separate.

RCW 67.28.180 is a credit against the state’s sales tax and therefore is not an increase in taxes but rather a sharing of state sales tax with local government, while the additional 2% authorized in RCW 67.28.181 is an increase in the excise tax. All of the remaining definitions, allowed use, and distribution processes are the same.

The state decision to label one of these tax distributions as a ‘transient rental tax’ is only intended to designate a difference between RCW 67.28.180 and RCW 67.28.181.

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Yes, overpayment to an employee is a gift of public funds and should be recovered. State law sets forth a process for an employer to recover the overpayment of wages. See RCW 49.48.200. If recovery of the overpayment is made by deduction from future wages, the deductions cannot exceed 5% of the employee’s disposable earning in any pay period, other than the final pay period, unless the employee agrees to a greater deduction. For more information, see our 2015 blog article, What if We Accidentally Overpaid an Employee?

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If the capital project was a project listed within the capital facilities plan (CFP) of the city (RCW 82.46.010 (2)(b) and 82.46.035(3)), then yes the city can use its REET funds for debt service. The statute provides for the financing of capital projects as identified within the CFP element of the city’s comprehensive plan.

• RCW 82.46.010(2)(b) After April 30, 1992, revenues generated from the tax imposed under this subsection (2) in counties over five thousand population and cities over five thousand population that are required or choose to plan under RCW 36.70A.040 must be used solely for financing capital projects specified in a capital facilities plan element of a comprehensive plan and housing relocation assistance under RCW 59.18.440 and 59.18.450.
• RCW 82.46.035(3) Revenues generated from the tax imposed under subsection (2) of this section must be used by such counties and cities solely for financing capital projects specified in a capital facilities plan element of a comprehensive plan. However, revenues (a) pledged by such counties and cities to debt retirement prior to March 1, 1992, may continue to be used for that purpose until the original debt for which the revenues were pledged is retired, or (b) committed prior to March 1, 1992, by such counties or cities to a project may continue to be used for that purpose until the project is completed.

You did not specify what type of capital project was bonded, so here are the statutory references for the definition of capital projects within REET 1 (RCW 82.46.010(6)(b)) and for REET 2 (RCW 82.46.035(5)).

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There is not a threshold number of employees for the ADA accessibility rules for public facilities to apply. Here are some resources you may find helpful:

Several ADA FAQs regarding State and Local Governments

Q. Does title II cover a public entity's employment policies and practices?
A. Yes. Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities. In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against qualified individuals with disabilities by certain public entities.

Q. What changes must a public entity make to its existing facilities to make them accessible?
A. A public entity must ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible. A State or local government's programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as "program accessibility," applies to facilities of a public entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their existing facilities accessible. They may provide program accessibility by a number of methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites.

Q. What does title II require for new construction and alterations?
A. The ADA requires that all new buildings constructed by a State or local government be accessible. In addition, when a State or local government undertakes alterations to a building, it must make the altered portions accessible.

Q. How will a state or local government know that a new building is accessible?
A. A state or local government will be in compliance with the ADA for new construction and alterations if it follows either of two accessibility standards. It can choose either the Uniform Federal Accessibility Standards or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, which is the standard that must be used for public accommodations and commercial facilities under title III of the ADA. If the state or local government chooses the ADA Accessibility Guidelines, it is not entitled to the elevator exemption (which permits certain private buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator).

Here is a link to MRSC’s Americans with Disabilities Act page.

For more specific questions, there is an ADA Hotline number staffed by Department of Justice accessibility experts (800-514-0301). The ADA has a website with Information and Technical Assistance at www.ada.gov.

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