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Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State related to governance. Click on any question to see the answer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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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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 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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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 linked above, 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: - 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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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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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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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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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 if the mayor refuses to sign a resolution passed by the city council in a mayor-council code city?  
Reviewed: July 2021

The mayor in a mayor-council code city is not required to sign a resolution. As we noted in our 2020 blog post Taking Action Using Ordinances, Resolutions, Motions, and Proclamations, resolutions are statements of council’s legislative intent, or directives from council to staff. The mayor cannot veto them, and they are effective on passage without signature.

What to do when the mayor declines to sign will depend on your council’s rules of procedure. Your options might include: noting on the resolution the council vote, and that the mayor declines to sign; having the mayor pro-tem sign on behalf of council; or having all councilmembers sign. As mentioned above, the resolution is effective when approved by council, with or without the mayor’s signature.

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Can a town appoint a temporary councilmember (or councilmember pro tem) if a sitting councilmember has a prolonged absence due to illness?
Reviewed: June 2021

We are not aware of a provision in chapter 35.27 RCW (which governs towns) that authorizes the town council to appoint a councilmember pro tempore to serve during an extended absence of a councilmember. There is a provision addressing vacancies, RCW 35.27.140, which provides that the council “may declare a council position vacant if that councilmember is absent from the town for three consecutive council meetings without the permission of the council.” We understand in many circumstances this is not a desirable option.

RCW 35.27.280 addresses the town council’s authority to make pro tempore appointments, but that provision doesn’t include reference to the council appointing a councilmember pro tempore. Given this, and the fact there are provisions for other city classifications that allow councils to appoint a councilmember pro tempore (see, e.g., RCW 35A.12.065 for code cities), we interpret the absence of such a provision in chapter 35.27 RCW to mean that a town council doesn’t have such authority.

Depending on circumstances, a councilmember who would otherwise be physically absent could participate in the council meetings remotely.

Of course, we defer to your town legal counsel if they have a contrary interpretation of the statutes.

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What if nobody runs for an open elected office?
Reviewed: June 2021

The candidate filing period for 2021 was May 17 through May 21. If no one filed for the elected office during that time, there is a void in candidacy pursuant to RCW 29A.24.141, and there would be a special filing period pursuant to RCW 29A.24.181, which provides in part:

If a void in candidacy occurs following the regular filing period and deadline to withdraw, but prior to the day of the primary, filings for that office shall be reopened for a period of three normal business days, such three-day period to be fixed by the filing officer. The filing officer shall provide notice of the special filing period to newspapers, radio, and television in the county, and online.

If no one files for election after the filing periods are over, there is a “lapse” in the election and no election is held. The officeholder whose term is ending remains in office (“holds over”) until the next election at which the position is voted on. See RCW 29A.24.201:

If after both the normal filing period and special three-day filing period as provided by RCW 29A.24.171 and 29A.24.181 have passed, no candidate has filed for any single city, town, or district position to be filled, the election for such position shall be deemed lapsed, the office deemed stricken from the ballot and no write-in votes counted. In such instance, the incumbent occupying such position shall remain in office and continue to serve until a successor is elected at the next election when such positions are voted upon.

If the incumbent who “holds over” no longer wants to serve, he or she can resign at which point the Council would make an appointment to fill the vacancy pursuant to RCW 42.12.070 (assuming it’s a nonpartisan position that is vacated).

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Can two county auditors enter into an interlocal agreement under Chapter 39.34 RCW, the Interlocal Cooperation Act, for sharing election services and facilities as needed during emergencies?
Reviewed: June 2021

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

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

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

(Emphasis added.)

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

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

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

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

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What is the legal authority for "second readings" of ordinances at council meetings, and when may a second reading be waived? 
Reviewed: May 2021

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

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

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

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

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Am I correct that there are no term limits for elected mayors or city/town council members in Washington?
Reviewed: May 2021

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

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

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My Board would like to explore adding a consent agenda to our board meetings. Do you have a guide or outline of how to do that and what a consent agenda should be used for?
Reviewed: February 2021

MRSC has information on consent agendas at the bottom of our City 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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I am interested in training resources to become more adept with finding what I need in our municipal code and the RCW and WAC. Do you have any suggestions?
Reviewed: February 2021

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 tools that include a custom city and county website search and instructions on searching multiple city codes or county codes. 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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Do you know of any local government entities that pay participants for serving on an advisory committee or commission? If yes, how much are they being compensated?
Reviewed: October 2020

Most local government advisory board members serve without compensation as you can see in this code search. However, a few cities do compensate members of their planning commissions. After city councilmembers, planning commission members probably devote more time than most other advisory board/commission members. See the following examples (including the amounts paid):

  • Bonney Lake Municipal Code - 2.26.060 Compensation - Each member of the planning commission shall be compensated in the amount of $50.00 per planning commission meeting attended, including joint meetings of the planning commission and the city council; provided, that no planning commission member shall be compensated for attendance at more than two planning commission meetings per calendar month, including attendance at any joint meetings of the planning commission and the city council; and provided further, that the chair or designee of the planning commission shall, in addition, be compensated $25.00 for attendance at a council meeting where such attendance is required by BLMC 2.26.030.
  • Monroe Municipal Code - 4.60.010(C) Planning Commission - Salaries of Commissioners. Each city planning commissioner may be paid for attending commission meetings and workshops an amount not exceeding fifty dollars per meeting for not more than one meeting each week.
  • Duvall Municipal Code - 2.15.040 - Payment to planning commissioners - Beginning on January 1, 1994, each member of the planning commission shall be paid twenty-five dollars ($25.00) for attendance at each regular meeting of the planning commission and twenty-five dollars ($25.00) for attendance at each special meeting of the planning commission but not to exceed three such special meetings for compensation in one calendar year.

Several cities only reimburse for expenses, such as in the following:

  • Goldendale Municipal Code - 2.48.030 - The members of the planning commission shall serve without compensation, but they shall be reimbursed for expenses necessarily incurred in performing their official duties. The city council shall from time to time, as may be necessary, provide by ordinance for funds for the necessary expenditures and costs of operation of such commission.
  • Maple Valley Municipal Code - 2.35.050 - Compensation - The members of the Planning Commission shall serve without compensation, but necessary expenses of the Commission actually incurred shall be paid from appropriate City funds.
  • Kent Municipal Code - 2.57.020(F) Compensation - The appointed members of the land use and planning board shall serve without compensation except that reimbursement for authorized travel and subsistence may be made to the extent such may be budgeted for by the city council. Reimbursement for such shall come from the city budget category designated land use and planning board, travel and mileage and subsistence.

As a personal aside, I served as a member of the city of Kirkland’s planning commission for 8 years and can attest to the large time commitment that is typical of most planning commissions, which are characterized by voluminous meeting packets, many long evenings spent in monthly and often more frequent meetings, and no small amount of stress when controversial land use issues draw large and sometimes angry crowds.

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Does the city council have to approve grant applications before they can be submitted?
Reviewed: September 2020

MRSC has consistently advised that absent a written city policy to the contrary, the administration can apply for a grant without council approval. However, under RCW 35A.11.040, acceptance of any grant requires council approval. In addition, a grant is a contract, and under RCW 35A.11.010, the city council is the contracting authority for the city.

Because the council is the contracting authority, there is no statutory reason why it could not adopt a policy regarding applying for grants. Some cities have tied grant application authority to purchasing or contracting authority; if the grant amount is within the mayor’s signature authority no prior council authorization is needed. Some cities have adopted policies saying that if the grant requires city matching funds, especially if those funds have not been allocated in the city’s budget, the administration needs council approval to apply.

Accepting a grant always comes with conditions; sometimes those are financial, and sometimes they are policy. For example, grants for historical renovations frequently ties the recipient’s hands in some management aspects for decades. Each city needs to find the balance between recognizing council’s policy and budget roles with the need for the administration to move quickly on some applications.

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When a town councilmember is serving as mayor pro tem, do they still have the same voting rights as they always do as a councilmember?
Reviewed: September 2020

The mayor pro tem retains all the rights and responsibilities of a councilmember, including the right to vote on council business.

Here are the legal authorities for this issue:

  • RCW 35.27.160 provides, in relevant part: “A mayor pro tempore may be chosen by the council for a specified period of time, not to exceed six months, to act as the mayor in the absence of the mayor.”
  • RCW 35.27.280 provides, in part, that “a majority of the councilmembers shall constitute a quorum for the transaction of business”. This statute also references the authority for the council to appoint a “president pro tempore” (mayor pro tem) to run a council meeting in the absence of the mayor.

A councilmember does not cease being a councilmember by virtue of undertaking the additional duties of pro tem to conduct a meeting in the absence of the mayor.

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Who has the authority to make changes to council meeting minutes?
Reviewed: August 2020

City councils are required to keep minutes pursuant to RCW 42.30.035:

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

State law does not impose any additional requirements, so individual cities typically adopt rules or procedures regarding meeting minutes. Meeting minutes are usually approved by the city council. If a councilmember wants to make a change to minutes that have been previously approved, he or she should bring a motion to amend the minutes at a council meeting. The council would decide whether or not to approve the motion.

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What does it mean to "call the question" under parliamentary procedures?
Reviewed: August 2020

Here is an excerpt on calling the question from our Parliamentary Procedures webpage, which summarizes Robert’s Rules of Order:

  • Previous question or close debate. Used to bring the body to an immediate vote. It closes debate and stops further amendment. Contrary to some misconceptions, the majority decides when enough discussion has occurred, not the moderator. The formal motion is to "call for the question" or "call for the previous question," or simply, "I move to close debate." The motion requires a second, is not debatable and requires a two-thirds majority.

In addition, Ann Macfarlane on her Jurassic Parliament webpage has a nice summary of how to call the question (as well as how not to). And finally, Robert’s Rules has an FAQ on “calling the question” (a.k.a. “previous question”)—see FAQ #11.

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We appointed a councilmember for a vacant seat in January 2018. It was for a 4-year position, and the position is now up for election for the last two years of the term (expiring December 2021). The incumbent did not run, so does the councilmember-elect fill the position after the election is certified?
Reviewed: July 2020

Vacancies are addressed in RCW 42.12.070. Subsection (6) addresses the timing of when the person elected in November 2019 takes office:

  • As provided in chapter 29A.24 RCW, each person who is appointed shall serve until a qualified person is elected at the next election at which a member of the governing body normally would be elected. The person elected shall take office immediately and serve the remainder of the unexpired term.

So yes, when an appointed position is up for election, the winner of the election serves two terms—a short term (from election certification to the end of the year) and then the unexpired two-year term (starting on January 1). Here is the language from RCW 29A.24.020:

  • If at the same election there are short terms or full terms and unexpired terms of office to be filled, the filing officer shall distinguish them and designate the short term, the full term, and the unexpired term, as such, or by use of the words "short term," "unexpired two year term," or "four year term," as the case may be.
  • When both a short term and a full term for the same position are scheduled to be voted upon, or when a short term is created after the close of the filing period, a single declaration of candidacy accompanied by a single filing fee shall be construed as a filing for both the short term and the full term and the name of such candidate shall appear upon the ballot for the position sought with the designation "short term and full term." The candidate elected to both such terms shall be sworn into and assume office for the short term as soon as the election returns have been certified and shall again be sworn into office for the full term. [emphasis added]

As this language indicates, the election winner should be sworn in twice, once for the short term and once for the unexpired two-year term.

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Can the mayor enter into a contract with a company for use/lease of a software program? If the contract covers more than one budget period, must council be involved?
Reviewed: May 2020

The authority to contract for the town is given to the town council. See RCW 35.27.370(2). The authority applies to any contract, whether it is for software, machinery, supplies, professional services and public works. The mayor only has authority to contract on the town’s behalf if the council has delegated that authority. Sometimes councils will, for example, delegate authority for the mayor to contract up to a stated dollar amount, such as up to $10,000, if there is money available and the purchase is consistent with the budget. Unless there has been a delegation, the mayor has no authority to contract.

It does not matter how long the contract is for. If a contract is involved, the council must approve it, that is, unless the council has delegated contracting authority to the mayor. We recommend looking at your local code or ordinances to determine if contracting authority has been delegated, and under what circumstances.

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How can a part-time mayor position be made full-time?
Reviewed: April 2020

There is not a specific process that must be used. Although there are two statutes that deal with the elected position of mayor---RCW 35A.12.010 and 35A.12.100---neither specify whether the position is a part-time or a full-time position. That issue may be more of a function of the salary the city provides for the office than anything else. Most cities in the state operate under the mayor-council plan of government and, by far, most of those have a part-time rather than a full-time mayor. While the mayor, if he or she is paid at all, will typically be paid more than a councilmember, most salaries are quite small and likely do not provide a “living wage.” Nevertheless, if a person holding the position wanted to act in a full-time capacity, he or she could do so, regardless of the salary for the position.

Some cities, however, have decided that they want to have a full-time mayor and have set the salary for the mayor at a level high enough to allow the office holder to work full-time in the position. When making the mayor’s salary high enough to permit full-time work by the office holder, the council will likely adopt a provision requiring the office holder to work full time: here is sample language from Lynnwood:

2.10.020 Full-time position. The position of mayor shall hereafter be a full-time position such that the mayor shall not accept or hold employment which will prevent the mayor from being available at the city offices during the hours that the city offices are open to the public or which would prevent the mayor from regularly attending council meetings and such additional evening meetings as may from time-to-time be required.

Making the office full-time does not require a vote by the public. The position could be made full-time at any time, although there might be reason to change the nature of the position when it is next up for election. We mention this because there may be a larger pool of interested persons in the office, if the position is full-time and more highly paid. Since the mayor does not vote on the salary for the mayor’s office, the salary for the position could be increased at any time.

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In a mayor-council code city with a 7-member council, does the mayor’s participation with three councilmembers constitute a quorum?
Reviewed: March 2020

The mayor is not counted as part of the quorum since the mayor in a mayor-council code city is not a member of the legislative body. See RCW 35A.12.100 (mayor is chief executive and administrative officer of the city). And RCW 35A.12.120 provides, in relevant part:

At all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business…

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Can a city provide law enforcement services to another city that is over twenty miles away and in another county?
Reviewed: March 2020

RCW 10.93.130 allows local law enforcement agencies to contract with any other law enforcement agency to provide mutual law enforcement assistance via an interlocal agreement as provided for by RCW 39.34. This would include contracting with another city’s police department (even if that city is located in another county) for the provision of law enforcement services. For example, see this agreement that the city of Carnation has with the larger city of Duvall for Duvall to provide law enforcement services to Carnation.

You can also look on our Interlocal Cooperation in Law Enforcement page for more information and examples of such agreements between jurisdictions.

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Does a job description have to be formally approved by the city council?
Reviewed: February 2020

For a mayor-council code city, state law gives the city council the authority “to define the functions, powers, and duties of its officers and employees.” Although the city council could delegate the authority to the mayor, state laws give the authority to approve job descriptions to the city council.

RCW 35A.11.020 provides in relevant part:

The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees. [emphasis added]

RCW 35A.12.090 provides, in part:

All appointments of city officers and employees shall be made on the basis of ability and training or experience of the appointees in the duties they are to perform, from among persons having such qualifications as may be prescribed by ordinance or by charter. [emphasis added]

If the city wants to give the mayor more authority in modifying job descriptions, one option is for the council to set the job description “qualifications” in a manner that is rather broadly defined and then leave it to the mayor to develop position descriptions that are consistent with those qualifications.

Practically, both the council and the mayor have an important role in establishing position descriptions, but the council has the authority to define the job descriptions and the mayor has the ultimate authority over who will be hired or terminated.

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How does the council fill a vacancy in a council position if there is a tie vote?
Reviewed: January 2020

Although the statutes are not entirely clear, MRSC’s legal consultants have taken the position that the mayor can vote to break a tie vote of the council to fill a vacant council position.

RCW 42.12.070 provides that it is the governing body that makes the appointment, not the mayor. RCW 42.12.070(1) states that:

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

We think that under RCW 42.12.070 (see above) the mayor may not vote initially on filling the vacancy since such votes are limited to members of the city council itself. However, if there is a tie in the votes of the councilmembers, the mayor may exercise their tie-breaking authority and break the tie vote.

The mayor’s authority to break a tie vote is set forth in RCW 35A.12.100, which provides in part:

The mayor shall preside over all meetings of the city council, when present, but shall have a vote only in the case of a tie in the votes of the councilmembers with respect to matters other than the passage of any ordinance, grant, or revocation of franchise or license, or any resolution for the payment of money. . . . The mayor shall have the power to veto ordinances passed by the council and submitted to him or her as provided in RCW 35A.12.130 but such veto may be overridden by the vote of a majority of all councilmembers plus one more vote.

Filling a vacancy is a “matter other than the passage of any ordinance, grant, or revocation of a franchise, or any resolution for the payment of money. . . .” So, we think that the mayor could break a tie vote to fill a vacant position on council.

There is a contrary position, based on the legislative history of RCW 42.12.070 and Chapter 35A.12 RCW, that the mayor plays no role in the process of filling a vacancy on a council and that the general grant of tie-breaking authority in RCW 35A.12.100 does not control in the specific process outlined in RCW 42.12.070. This argument is based on a 1994 statutory amendment (1994 c 223 § 1), which removed any reference to the mayor. Prior to the 1994 amendment, RCW 35A.12.050 specifically provided that:

If, after thirty days have passed since the occurrence of a vacancy, the council are unable to agree upon a person to be appointed to fill a vacancy in the council, the mayor may make the appointment from among the persons nominated by members of the council. [Repealed in 1994].

The 1994 amendment removed this language, and instead cross-referenced the procedure in chapter 42.12 RCW for filling a vacancy. The procedure in chapter 42.12 RCW does not specifically reference the mayor.

Because there has been no caselaw or attorney general opinions on this point, reasonable legal minds can disagree, and we defer to the legal advice of the agency attorney.

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Can a resolution be passed in executive session?
Reviewed: December 2019

The short answer is no. RCW 42.30.060 states, in relevant part:

No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

The Open Public Meetings Act allows for executive sessions only in certain circumstances as set forth at RCW 42.30.110. You’ll see that the governing body may do such things as “consider”, “discuss”, and “evaluate.” Final action, such as adopting a resolution, must be done in an open public meeting.

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May the mayor's salary be increased immediately, not waiting for next election?
Reviewed: December 2019

For many offices, Article 11, Section 8 of the Washington Constitution prohibits elected officials from raising their own salary after their election and during their term of office. This prohibition on salary increases, however, applies only to officials who set their own salary, such as city councilmembers. See Const. art XXX, § 1. See also AGO Opinion, 1999, No. 1. Consequently, a salary increase for an elected official who does not set his or her own compensation, such as the mayor, may occur at any time.

If there was a tie vote in the council, normally the mayor could break the tie. However, if it is a tie vote as to raising the mayor’s salary, while in that instance the mayor could break the tie, he or she would not be able to take the new, higher salary until the next term of office. But, generally, if the council increases the mayor’s salary, the new salary can go into effect immediately.

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May a councilmember decline his or her salary?
Reviewed: October 2019

Yes. Councilmembers may waive or refuse a salary from the city. Such a waiver would be voluntary and should be made in accordance with an existing city policy and in writing. A waiver can be done but, as described below, the enforceability of such a waiver could be an issue. Article XI, Section 8 of the Washington Constitution prohibits a city or town council from increasing or diminishing the salary of a councilmember after her/his election or during her/his term of office. Article XI, Section 8 provides (emphasis added):

The salary of any county, city, town, or municipal officers shall not be increased except as provided in section 1 of Article XXX or diminished after his election, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.

Section 1 of Article XXX referenced in Article 11, Section 8 provides that elected county, town, city, or municipal officers who do not fix their own compensation can have their salaries increased during their terms of office.

Consistent with these provisions, a councilmember can voluntarily choose to waive, refuse, or donate a portion (or all) of the salary that has been established for the position. For example, a councilmember could agree, in writing, to waive the official salary, or a portion of it, so that she/he would actually be paid a lesser amount than the official salary. This fact pattern would not violate Article XI, Section 8 because the official salary would not be decreased or diminished after the election or during the term of office. A related issue is whether waiving or refusing a salary would have federal payroll tax implications. A councilmember can likely decide whether to receive or forego his/her compensation. We think that if a councilmember receives her/his salary, in whole or in part, and then donates the funds back to the city then there would be payroll tax implications for the salary received. However, if the councilmember voluntarily chooses not to receive all or a portion of the salary, there would not be payroll tax implications for the salary not received by the councilmember.

We have previously provided guidance that it would be beneficial for a city or town council to enact an ordinance to make clear to current and future councilmembers that there is a local policy that allows them to waive all or a portion of their salary. Such an ordinance would also set forth the way a councilmember may do so. It’s unclear, however, how much protection this would provide if a councilmember who initially agreed to waive her/his compensation later changed her/his mind and demanded back payment for what was waived. If there is a written agreement between the municipality and a councilmember providing that the councilmember is voluntarily and irrevocably waiving all or a specified portion of her/his compensation, it reduces the risk that councilmembers will later change their minds.

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Must town resolutions be published in a newspaper to go into effect?
Reviewed: September 2019

The short answer is generally no—a resolution does not need to be published to become official and it becomes effective immediately. We have a helpful publication Local Ordinances for Washington Cities and Counties which explains the difference between resolutions and ordinances. See the introduction at pp. 1-2.

The general publication requirements for ordinances are summarized on p. 26. While all ordinances must be published in a town, the same is not true for resolutions (again, unless a specific statute includes publication requirements).

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What is the difference between setting fee schedules by resolution versus ordinance?
Reviewed: September 2019

We have a publication entitled Local Ordinances for Washington Cities and Counties that addresses the difference between ordinances and resolutions at pages 1-2. Here is an excerpt (there is additional discussion in the publication):

  • When should an ordinance be used instead of a resolution? Obviously, if a state statute requires one form be used instead of the other, that requirement must be followed. If no particular form is specified, either a resolution or ordinance may be used. Ministerial and administrative acts may be exercised by resolution. Legislative acts, however, it has been suggested, should be made by ordinance.
  • What is “legislative”? The general guiding principle is that “[a]ctions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.” [emphasis added, footnotes omitted]

Cities and counties commonly use resolutions for fee schedules. It is easier to adopt an updated fee schedule by resolution than by ordinance. If fees are set forth by ordinance in a city or county code, then the code must be amended each time the city or county wants to change the fees. Setting fees is generally to be considered ministerial or administrative instead of legislative. A city or county could set fees by ordinance, but doing so by resolution is generally considered to be more convenient. Fees would only need to be set by ordinance if there is a specific statute that specifies an ordinance.

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Could a person who is appointed to fill a council ward vacancy live outside of the vacated ward where there is an understanding that the person could not run for the position in the next election, or must the appointed person be a resident of the ward?

Reviewed: September 2019

When filling a city council vacancy in a non-charter code city, the person appointed must be qualified for the office. Thus, for council positions assigned to wards or districts, the candidates for appointment to a vacancy need to reside in the ward or district in order to be appointed and assume office.

RCW 42.12.070 provides the process to fill a vacancy on an elected nonpartisan governing board of a city. RCW 42.12.070(1) provides:

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

For noncharter code cities, RCW 35A.12.050 provides the authority to fill councilmember vacancies pursuant to chapter 42.12 RCW, and provides, in relevant part, that “the office of a mayor or councilmember shall become vacant if the person who is elected or appointed to that position fails to qualify as provided by law, . . . ” So, both appointed and elected councilmembers (and mayors) must qualify to hold the office. RCW 35A.12.180 provides for the optional division of a city into wards and requires residency of the ward as a qualification for office. This statute provides, in relevant part:

Wards shall be used as follows: (1) Only a resident of the ward may be a candidate for, or hold office as, a councilmember of the ward; and (2) only voters of the ward may vote at a primary to nominate candidates for a councilmember of the ward. (Emphasis added).

Thus, both appointed and elected councilmembers must be a resident of the ward they serve. There is also a requirement to be a registered voter and to be a resident of the city for at least 12 months before appointment or election pursuant to RCW 35A.12.030. State law does not provide for a minimum residency requirement within the ward itself, so we think potential candidates could move from one part of a city into a particular ward shortly before appointment to a vacancy (or filing to run for election).

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Must we also post minutes if there is audio posted of a meeting?
Reviewed: July 2019

State law requires that minutes be maintained and made available for public inspection. RCW 42.30.035 states:

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

State law does not require audio or video recordings of meetings. For some issues, such as quasi-judicial hearings, it is necessary to provide a court with a verbatim transcript of the hearing and audio recordings are helpful in this regard.

So, in the interest of complying with the requirement to make the minutes available, we recommend that local government agencies post the minutes along with the audio recordings of their meetings. While we think that you could comply with RCW 42.30.035 without posting the minutes to your website, it would be an easy and efficient way to make them available for public inspection.

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Our mayor will be resigning mid-term next year. We are a mayor-council code city. What is the legal process for replacing him?
Reviewed: June 2019

Once the mayor resigns, the city council can fill the vacancy by majority vote of the council. If it is known in advance that the mayor will be resigning, the council could develop a process to use to fill the position in advance of the resignation, but the council may not actually vote on a replacement until the position has become vacant due to the resignation.

There is no particular process to follow. The council could merely appoint someone once the mayor resigns. Or it could develop a process to fill the vacancy, such as by advertising the vacancy, accepting applications or letters of interest, interviewing candidates, etc. If the council chooses to interview candidates, it must do so in an open meeting, although it could discuss the qualifications of the candidates in an executive session. State law does not dictate a process except that the position will be filled by majority vote of the council.

There are no specific qualifications to be appointed mayor other than the person appointed must be a U.S. citizen, a registered voter and a resident of the city for one or more years prior to the appointment. Oftentimes the person appointed will be someone from the city council. That is not required, however; the person appointed could be anyone who meets the minimum qualifications, as discussed above.

The council has 90 days to fill the vacancy. If it fails to do so within 90 days, the county commissioners take over the task. Until an appointment is made, the mayor pro tem will chair meetings and otherwise fill in for the then-departed mayor. If there is no mayor pro tem, the council would appoint someone to be the mayor pro tem.

In the event that the council appoints someone from the council, that will create a vacancy on the council, and that vacancy would be filled by majority vote of the council.

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What are the state law and other essential requirements to follow for the role of mayor in a council-manager form of government?
Reviewed: June 2019

In a code city with a council-manager form of government, the city manager is responsible for all day to day operations of the city including, under RCW 35A.13.080(2), “[t]o appoint and remove at any time all department heads, officers, and employees of the code city, except members of the council, and subject to the provisions of any applicable law, rule, or regulation relating to civil service.” RCW 35A.13.120 essentially prohibits city council interference with the administration of the city except for the purpose of inquiry through the manager. Even when one councilmember has been selected as chair or mayor, this person remains a councilmember and part of the legislative branch of the city government.

The role of a mayor in a city with a council-manager form of government is essentially ceremonial. RCW 35A.13.030 sets forth the duties of a mayor in your city:

Biennially at the first meeting of the new council the members thereof shall choose a chair from among their number unless the chair is elected pursuant to RCW 35A.13.033. The chair of the council shall have the title of mayor and shall preside at meetings of the council. In addition to the powers conferred upon him or her as mayor, he or she shall continue to have all the rights, privileges, and immunities of a member of the council. The mayor shall be recognized as the head of the city for ceremonial purposes and by the governor for purposes of military law. He or she shall have no regular administrative duties, but in time of public danger or emergency, if so authorized by ordinance, shall take command of the police, maintain law, and enforce order. (Emphasis added).

The powers and duties of the city manager are set forth in RCW 35A.13.080 and are executive/administrative in nature. His or her role is fundamentally different than the role of a councilmember (including the chair of the council designated as mayor), which is legislative.

Here is a link to an MRSC blog post you may find useful: Balance of Power Struggles in City Government. In addition, here is a link to MRSC’s & AWC’s Publication Mayor and Councilmember Handbook (See particularly Chapter 9, “Resolving and Preventing Mayor-Council conflict,” beginning at page 31.

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Is there a state statute or any overarching "rule" on quorums? Our 6 advisory bodies have some inconsistencies in their Rules of Procedure regarding quorums and we want to be sure they are all in compliance.
Reviewed: June 2019

Under the OPMA, RCW 42.30.020(3) whenever a body takes “final action” it must do so “by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.”

MRSC has consistently interpreted “quorum” for OPMA purposes to mean a majority of the full membership of the council, not taking into account any vacancies that might exist. For example, a council of seven with two vacancies, the number needed for a quorum does not change – in this example quorum is four members despite the fact that only 5 seats are currently filled. We do not have any Washington appellate court decision directly on this issue, so we rely upon the general rule, as expressed in the McQuillin Law of Municipal Corporations treatise.

The general rule is that a quorum is a majority of all the members of a governing body and that, if a statute or charter prescribes the number that shall constitute a quorum, it cannot be changed by the body. The statute for code cities specifically prescribes the number that constitutes a quorum: “[a]t all meetings of the council a majority of the councilmembers shall constitute a quorum for the transaction of business.” RCW 35A.12.120.

If your advisory bodies are created pursuant to an RCW, you should look there for any special quorum rules. If there is no RCW or the RCW is silent, it is up to the government entity or the individual boards to establish and define any quorum requirement that differs from the general rule.

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Is a motion required for a board of county commissioners to approve the minutes or is “approved as presented” enough?
Reviewed: May 2019

One of the only references to minutes in state law is in the Open Public Meetings Act (OPMA) RCW 42.30.035:

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

Some agencies include the approval of minutes on the consent agenda. In that regard, state law says relatively little. RCW 42.30.035 and RCW 85.06.250 clearly require that minutes be taken, but there is no specific requirement under state law about how they must be approved.

RCW 36.32.110 “Clerk of the board” provides:

The county auditor shall be the clerk of the board of county commissioners unless the board of county commissioners designates one of its employees to serve as clerk who shall attend its meetings and keep a record of its proceedings.

RCW 36.32.140 “Record of proceedings” provides:

The board of county commissioners shall cause to be recorded, in a book kept for that purpose, all their proceedings and determinations touching all matters properly cognizable before it; and all books, accounts, vouchers, and papers, touching the business or property of the county shall be carefully kept by the clerk, and be open to public inspection.

State law does not dictate how a county keeps the record of its proceedings. So, your board has discretion to adopt a procedure that works for your county. There is no preferred method, so what method is used is a question of either policy or procedure for your board to decide. If there are local BOCC procedures or meeting rules that have been adopted with procedures or practices related to minutes then they should, of course, be followed. Some boards follow Roberts Rules of Order, others do not. If the practice is to announce “minutes approved as presented” and the other commissioners are in agreement, then we think this is fine.

Here is a link to MRSC’s web page on Council/Board of Commissioners Rules of Procedure where you will find examples of other local rules.

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If the mayor is absent from the town council meeting and a councilmember serves as mayor pro tem to run the meeting, may that councilmember also be counted in the quorum of councilmembers?
Reviewed: April 2019

Yes, the mayor pro tem for your town continues to serve as a councilmember while filling in when the mayor is absent from a council meeting. So, your town council will have a quorum at the council meeting so long as at least three of the five councilmembers are present.

RCW 35.27.160 provides, in relevant part: “A mayor pro tempore may be chosen by the council for a specified period of time, not to exceed six months, to act as the mayor in the absence of the mayor.”

RCW 35.27.280 provides that “a majority of the councilmembers shall constitute a quorum for the transaction of business”. T his statute also references the authority for the council to appoint a “president pro tempore” (mayor pro tem) to run a council meeting in the absence of the mayor. A councilmember does not cease being a councilmember by virtue of undertaking the additional duties of pro tem to conduct a meeting in the absence of the mayor.

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Must a code city advertise vacant space for lease in a city building?
Reviewed: April 2019

There is not a state law requirement to advertise the city’s vacant space in the library building for lease. The city could advertise or use an RFP but is not required to do so. So long as the space is not needed for a public purpose, either related to the library or the city, then it should be permissible to use a rental agreement or short term lease to a local church (or other organization) if you are charging a fair market value for the space. If you have a local policy to advertise when the space is vacant then, of course, follow the local policy.

Pursuant to RCW 35A.11.010, a code city’s authority includes the authority to lease or convey real and personal property. Although a city does not want to be in the business of leasing property, when in the short term there is vacant space that is not needed by the city, then the city may lease it to others. Presumably the term of the lease would not be so long as to deny the city the future use of the space when additional space is needed. You could consider adding a term to the lease to accommodate future public need for the space.

Here are links to MRSC's webpages on Public Facility Rental and Use and Surplus City or Town Property.

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Must a code city have its own police department?
Reviewed: April 2019

RCW 35A.12.020 provides in part:

  • The appointive officers shall be those provided for by charter or ordinance and shall include a city clerk and a chief law enforcement officer.

So, someone must fulfill that requirement, although the statute does not indicate whether the position must be full time, how many hours must be spent in that endeavor or that it could not be assigned to someone such as an officer in the county sheriff’s department.

As to the role of the sheriff, see the following attorney general opinion, AGO 1990 No. 4; here is a summary of that opinion:

  1. The county sheriff's duty to enforce state law applies equally in incorporated and unincorporated areas of the county.
  2. If a city is unable to provide for adequate police protection, the county sheriff must take this factor into account in allocating the resources of the sheriff's office. However, the statutes do not obligate the sheriff to provide a city with a specific number of police officers or a specific level of police services.
  3. If a city wants to obtain a specific number of county police officers or level of police services, the Interlocal Cooperation Act empowers the city to contract with the county to provide those services.

While the city could contract with the county to assure a certain level of service, if it did not, the sheriff would still be responsible for providing service within the city. However, without a contract, there is no particular assurance of the level of service that would be provided.

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Do we have to list whether or not action may be taken on the agenda advertising an executive session?
Reviewed: April 2019

A council generally may not take final action at an executive session. It may convene an executive session to discuss/consider/evaluate certain specified issues, however it should not be making any final decisions on behalf of the city in the executive session. See discussion starting on p. 16 of MRSC’s Open Public Meetings Act publication.

In terms of what should be listed on the agenda, if you know that an executive session is scheduled to discuss potential litigation or to consider the acquisition of real estate, you could include that on the agenda with reference to the specific statutory provision allowing an executive session for that purpose. Many public agencies do state the purpose of an executive session in their meeting agendas, but this is not a legal requirement. Here is a link to a 2012 blog article describing the proper procedures for calling an executive session.

Even if the purpose of the executive session is not included on the agenda, RCW 42.30.110(2) requires that the presiding officer of the governing body state the purpose of the meeting prior to convening the executive session:

Before convening in executive session, the presiding officer of a governing body shall publicly announce the purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The executive session may be extended to a stated later time by announcement of the presiding officer.

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What are the requirements for filling a council vacancy that has been vacant for less than 90 days?
Reviewed: April 2019

The city council has 90 days to fill the vacancy before the authority to fill the vacancy transfers to the county. By law, RCW 42.12.070(4), after 90 days if the position has not been filled, then “the authority of the governing body [the city] to fill the vacancy shall cease and the county legislative authority . . . shall appoint a qualified person to fill the vacancy.”

Filling non-partisan positions is governed by RCW 42.12.070, which provides that vacancies are filled through appointment by the “governing body,” (the city council). Subsection (6) provides:

  • As provided in chapter 29A.24 RCW, each person who is appointed shall serve until a qualified person is elected at the next election at which a member of the governing body normally would be elected. The person elected shall take office immediately and serve the remainder of the unexpired term. [Emphasis added]

Regarding posting the vacancy, there is no specific requirement for number of days to post the opening to the public or to seek public interest. Posting is not required but may be a good idea.

There is no process required by state law for filling a vacancy. The city council decides what process to use and how to find a qualified person. Many councils advertise that there is a vacancy and then ask interested persons to write letters of interest or to complete an application form. Typically a council will interview candidates in open session (as required by the Open Public Meetings Act) before making an appointment. The vote to make the appointment must also be in open session. If there is a tie then the mayor breaks the tie.

For more information on the process that a city must follow to fill a vacancy on a city council please see our MRSC blog post Filling a Vacancy in a City or Town Council.

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What is the process for elected officials to be covered under a city's health insurance plan?
Reviewed: April 2019

RCW 41.04.180 authorizes cities to provide health insurance to its employees. RCW 41.04.190 gives cities the option to provide health coverage to its elected officials. One important feature of that statute is that the cost of providing the coverage to a city’s elected officials is not “additional compensation.” This language means that the coverage may be provided to elected officials during an existing term of office instead of waiting until the commencement of a new term, because providing the coverage is not a salary increase.

Although RCW 41.04.180 states that the coverage may be authorized by a city’s “principal supervising official or governing body,” MRSC recommends that the coverage be authorized by the city council instead of the mayor, especially in cases where the action will result in the mayor receiving coverage.

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Are office hours for a code city required to be codified by ordinance?
Reviewed: April 2019

Yes, for code cities, the applicable state law requires the office hours be codified by ordinance. The key provision of state law is RCW 35A.21.070, which states:

All code city offices shall be kept open for the transaction of business during such days and hours as the legislative body of such city shall by ordinance prescribe.

You also mention surrounding cities you have checked with that do not seem to have a similar ordinance for business hours. However, for non-code cities and towns, RCW 35.21.175 is almost identical to the code city provision:

All city and town offices shall be kept open for the transaction of business of during such days and hours as the municipal legislative authority shall by ordinance prescribe.

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What are the statutory guidelines for adopting an ordinance? Is reading it twice or three times a requirement?
Reviewed: February 2019

There are no statutory requirements to have multiple readings of an ordinance prior to adoption, however some cities have adopted such procedures. You will need to refer to your city’s municipal code to determine whether there are any local procedural requirements. For a good overview of the ordinance initiation and adoption process, see our Local Ordinances publication starting at p. 20. For mayor-council code cities, see RCW 35A.12.130 and RCW 35A.12.150 regarding state law requirements for enacting ordinances.

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Can a councilmember be removed from office other than through a recall?
Reviewed: January 2019

Recall is the primary method by which councilmembers can be removed from office against their will. The process for recall is set forth in RCW 29A.56.110.270. Elected officials in Washington are subject to recall by voters for malfeasance, misfeasance, or violation of the oath of office.

However, the occurrence of certain events may create a vacancy without a recall. RCW 42.12.010 provides that every elective office shall become vacant on the happening of any of the following events:

(1) The death of the incumbent;

(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;

(3) His or her removal;

(4) Except as provided in RCW * 3.46.067 and 3.50.057, his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;

(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;

(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;

(7) The decision of a competent tribunal declaring void his or her election or appointment; or

(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.

Subsection (3) refers to the recall process. The remaining subsections do not require a recall process to create a vacancy—the statute declares the office “shall become vacant” when those events occur. Of course, if there is disagreement over whether the criteria for a vacancy has been met, then the issue may need to be addressed through court action.

In addition, a council position may become vacant if that councilmember is absent for three consecutive regular council meetings without the permission of the council. See RCW 35.27.140(1) (Town Councilmembers); RCW 35.23.101 (Second Class City Councilmembers); RCW 35A.12.060 (Code City Councilmembers).

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Is a councilmember eligible to receive the per diem stipend if they call into the meeting rather than being there in person?
Reviewed: January 2019

The Attorney General’s Office issued an opinion last year that concluded a governing body can legally conduct a public meeting be telephone or video conference call so long as the participants can hear, be heard, and participate effectively in the meeting. See AGO 2017 No. 4. MRSC has taken the position that a member of the governing body can participate remotely in a meeting of the governing body if that body has so approved—ideally pursuant to a written policy that sets forth the circumstances under which remote participation will be allowed. So, if the governing body allows it, a member can attend a commission meeting via phone or video. That member would then be entitled to per diem under RCW 57.12.010, which requires compensation for “actual attendance” at official meetings. RCW 57.12.010.

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Does a board of county commissioners have authority to eliminate positions under another elected official in the county?
Reviewed: January 2019

A board of county commissioners (BOCC) has the authority to establish positions (RCW 36.16.070) and, as such, also has the authority to abolish positions. In Smith v. Board of Walla Walla County Comm’rs, 48 Wn. App. 303, 307 (1987), the court, in relevant part, held:

It is undisputed that the Board of County Commissioners have the authority to eliminate and establish employee positions in a county department, to reduce department budgets, and to create new departments. See RCW 36.32.120(6); RCW 36.16.070; see also Miller v. Pacific Cy., 9 Wn. App. 177, 179, 509 P.2d 377 (1973). There is also no dispute the County was facing a serious budget shortfall. The Board’s acts in balancing the budget were clearly discretionary. Therefore, mandamus would be appropriate only if the Board’s actions were properly found to be arbitrary and capricious.

In general, it is within the discretion of a BOCC to allocate, as it sees fit, the financial resources of the county as provided in the budget it approves. This principle is well-illustrated in State ex rel. Farmer v. Austin, 186 Wash. 577, 588 (1936)

In the light of the known financial difficulty of the counties and considering the circumstances of the times, the court cannot say that an order reducing the force of deputies in the sheriff’s office from six to four was so capricious and arbitrary as to be void. It may be that the action of the majority of the board of county commissioners was improvident and ill-considered, but, if so, the remedy lies with the electors rather than in the courts. If it be assumed that the business of the sheriff’s office will be hampered by the reduction in force, the harm will not be nearly as great as would be the consequences of the interference by the courts with the executive duties of the board of county commissioners, in whom is reposed the financial management of the county’s affairs.

As such, the courts will interfere with this exercise of discretion only upon the theory that the action is so capricious and arbitrary as to evidence a total failure to exercise discretion and is, therefore, not a valid act. Arbitrary and capricious action has been defined by the courts as “willful and unreasoning action, without consideration and in disregard of facts or circumstances.” See, e.g., Schrempp v. Munro, 116 Wn.2d 929, 938 (1991). See also, Miller v. Pacific County, 9 Wn. App. 177, review denied, 82 Wn.2d 1012 (1973) (“When the [board of county] commissioners, by resolution, show a clear purpose to effect a reduction of a department’s budget, they act within the ambit of the discretionary power granted to them.”)

Of course, the other elected county officials have statutory responsibilities they must carry out, and they need staff and facilities to carry them out, but there will most always be disagreement as to how much money they actually need in their budgets to do so. The statutes vest the BOCC with the authority to make that determination in the county budget. And, absent arbitrary and capricious action by the board in setting the budget, its budgetary decision-making will be upheld by the courts.

Note, however, that once a position has been funded, the authority to hire (or terminate) a particular individual rests with the elected official (not the BOCC). See Osborn v. Grant County, 130 Wn. 2d 615, 621 (1996), quoting Thomas v. Whatcom County, 82 Wash. 113 (1914). Thomas held that, once the board has authorized the hiring of deputies in a county office, "the officer in whose office the deputies are to serve, being responsible on his bond for their conduct, has the absolute right to determine the personnel of such deputies . . . ."

Of particular interest to you may be a recent Attorney General’s Opinion that analyzes the BOCC’s authority relative to the Sheriff’s Office under RCW 36.16.070 and chapter 41.14 RCW. See AGO 2017 No. 3. The opinion addresses several questions, but upholds the principle that the County Commissioners have the authority to ultimately create positions authorized by chapter 41.14 RCW.

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If a committee is purely advisory, must its meeting be advertised and open?
Reviewed: December 2018

No. Under RCW 42.30.020(2), if the committee does not have a majority of the council included in its membership, and it merely provides advice, and the council can take action without the advice, it is not covered by the OPMA. Of course, nothing prohibits the city from treating the committee as if it is covered by the OPMA.

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What are the minimum requirements for a newspaper that has been designated the official city newspaper? Is it legally acceptable for mandatory notices to minimally address the notifications and direct the public to the city website or city hall to view the entire notification or is it necessary to post the entire notification?
Reviewed: December 2018

Minimum Requirements

RCW 35A.65.020 and RCW 65.16.020 set forth the process and qualifications for designation of a newspaper as “the official City Newspaper.” Although these are not called “minimum requirements” the qualifications are essentially requirements and include, for example, that the newspaper be legal, of general circulation, published at least weekly, in English, etc.

RCW 35A.21.230 states:

Each code city shall designate an official newspaper by resolution. The newspaper shall be of general circulation in the city and have the qualifications prescribed by chapter 65.16 RCW.

RCW 65.16.020 Qualifications of legal newspaper provides:

The qualifications of a legal newspaper are that such newspaper shall have been published regularly, at least once a week, in the English language, as a newspaper of general circulation, in the city or town where the same is published at the time of application for approval, for at least six months prior to the date of such application; shall be compiled either in whole or in part in an office maintained at the place of publication; shall contain news of general interest as contrasted with news of interest primarily to an organization, group or class; shall have a policy to print all statutorily required legal notices; and shall hold a periodical class mailing permit: PROVIDED, That in case of the consolidation of two or more newspapers, such consolidated newspaper shall be considered as qualified if either or any of the papers so consolidated would be a qualified newspaper at the date of such legal publication, had not such consolidation taken place: PROVIDED, That this section shall not disqualify as a legal newspaper any publication which, prior to June 8, 1961, was adjudged a legal newspaper, so long as it continues to meet the requirements under which it qualified.

Publishing Ordinance or a Summary

Ordinances may be posted on the city website at any time, but in order for the ordinance to be effective, the city needs to publish it in the official city newspaper. The city is permitted to publish a summary of a new ordinance in lieu of publishing the entire ordinance. For code cities, by law, the summary must provide “a brief description which describes the main points of the ordinance” and include a full statement that the full text of the ordinance will be mailed upon request. RCW 35A.12.160. So long as a summary and the offer to provide the full text of the ordinance by mail upon request is published in the newspaper, in my opinion it is legally acceptable to direct readers to the city website and/or city hall.

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Can city councilmembers receive a cost of living adjustment (COLA) in their compensation?
Reviewed: November 2018

Unless your city uses a salary commission, the city councilmembers may not receive a COLA because, under RCW 35A.13.040 salaries for councilmembers may not be increased during their current term. In addition, our State Constitution, Article XXX, Sec. 1, has a prohibition on midterm salary increases for elected officials who set their own salaries, that is discussed in AGO Opinion, 1999, No. 1. COLA salary increases are included in the term “any increase” and cannot be provided during the current terms of councilmembers. RCW 35A.13.040.

The salary commission procedure is authorized under RCW 35.21.015 where a city (or a county under RCW 36.17.024) may create a commission to set salaries for elected officials. In this case the statutory and constitutional prohibitions would not apply because the councilmembers would not set their own compensation and salary increases, including COLAs.

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Can a group of area mayors host a “legislative forum” at a city-owned facility with several candidates for state offices to discuss their views on city issues?
Reviewed: October 2017

In general, use of city facilities in support of a political candidate is prohibited under RCW 42.17A.555. However, under RCW 42.17A.555(3), activities that are part of the normal and regular conduct of the office or agency are permissible.

Accordingly, it is permissible for the city to host in a city facility a “neutral forum” for candidates for elective office to speak and answer questions from the public. The Public Disclosure Commission (PDC) has taken the position that a public agency may, under RCW 42.17A.555, allow its meeting facilities to be used for a neutral forum with respect to a ballot measure or a campaign for elected office, with equal opportunity for both sides of the measure to present their views or for candidates to present themselves to the public. See the PDC’s Guidelines for Local Government Agencies in Election Campaigns (revised May 22, 2013). See also PDC Declaratory Order No. 13, “Use of City Facilities to Broadcast Candidate Forum”; and AGO 1979 No. 3 (“The facilities of a state college or university may be used for a candidates' forum to which candidates for elective office would be invited on a nondiscriminatory basis to appear on campus to present their views and respond to questions from the audience . . . .”).

According to the PDC’s Guidelines for Local Government Agencies in Election Campaigns, the following are permitted uses of public agency facilities:

  • Agency meeting facilities, including audio visual equipment, may be used by campaign committees for activities on the same terms and conditions available to other community groups, subject to the provisions of the agency’s policy.

  • Use of agency meeting facilities is permitted when the facility is merely a “neutral forum” where the activity is taking place, and the public agency in charge of the facility is not actively endorsing or supporting the activity that is occurring.

According to the PDC, here are the factors it considers when determining if the use of agency meeting facilities are the “normal and regular conduct” of the agency and therefore permissible:

  • Can community groups typically use agency facilities?
  • Are facilities made available to all groups on the same terms?
  • Has the agency adopted a policy regarding the distribution of campaign materials on agency property?
  • Is the meeting facility customarily made available on an equal access, nondiscriminatory basis for a variety of uses?

With these considerations in mind, to comply with RCW 42.17A.555, it will be important to invite all declared candidates for the particular state offices to the event. It will also be important to make sure all candidates who attend have an equal opportunity to participate.

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