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New Attorney General Opinion on Binding Future Local Government Legislative Bodies

May 30, 2012 

Category:  Legislative Body

In a formal opinion issued on May 15, 2012, the office of the attorney general addressed an issue that MRSC attorneys have been asked about, and have wrestled with, for many years -  when may a current local government legislative body contractually bind future members of the body for some period after the end of the terms of the current members of the body?  Or, in other words, to what extent may a current legislative body impair the authority of future bodies?  Although specifically addressing a county legislative authority, this opinion, AGO 2012 No. 4, can be applied generally to any elected local government legislative body such as a city council or special district governing board.

This formal opinion concludes that a county legislative authority is generally prohibited from entering into contracts that bind the future legislative actions of the county.  The application of this principle depends upon a distinction between actions that are legislative in nature and those that are merely administrative or proprietary.  As stated in this opinion, an important difference exists between these types of actions:
The hallmark of the first category is the authority of a legislative body to exercise continuing discretion in the setting of legal standards to govern behavior within the jurisdiction.  If a contract impairs this “core” legislative discretion, eliminating or substantially reducing the discretion future bodies might exercise, the courts are likely to find that the contract has improperly impaired the legislative authority of future commissioners.  By contrast, counties have, and greatly need, authority to enter into contracts and make administrative decisions concerning the management of public property and the day-to-day conduct of government business.  A contract that facilitates public administration, and which places no significant constraint on future policy-making is likely to be upheld. 

So, the conclusion of this opinion, applied to local elected legislative bodies in general, is that such a body may not contract away the legislative discretion of that body in the future to establish laws or create public policy relating to governmental functions, such as matters dealing with licensing, levying taxes, and land use and other police power regulations.  However, a local government should be bound by a contract made by its previous governing bodies when the subject of the contract involves a proprietary or administrative activity.

This issue comes up most often after an election and before the newly-elected members of a local legislative body take office.  Sometimes during this period, the departing members of a local legislative body want to leave a legacy well beyond their tenure.  This AGO provides some needed guidance as to the legacy that may be left.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.


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