Ask MRSC - Public Safety and Welfare

Sections 70A.15.5000 through 70A.15.5220 of the Revised Code of Washington (RCW) and Chapter 173-425 of the Washington Administrative Code (WAC) regulate outdoor burning. Both generally forbid outdoor burning unless specifically authorized. WAC 173-425-050(4) says that:

It is unlawful for any person to cause or allow outdoor burning that causes an emission of smoke or any other air contaminant that is detrimental to the health, safety, or welfare of any person, that causes damage to property or business, or that causes a nuisance

WAC 173-425-060(2)(i) requires a permit for any:

Recreational fires with a total fuel area that is greater than three feet in diameter and/or two feet in height (except in the nonurban areas of counties with an unincorporated population of less than fifty thousand; […]

WAC 173-425-060(5) establishes minimum recreational fire conditions. Those include whether a permit is required or just notification. Even for recreational fires, there are conditions. The regulations limit the materials that can be burned and the days and times burning is permitted. They require fifty-foot s eparation from structures and a maximum burn pile of four feet by four feet by three feet.

Because enforcement differs depending on each agency with overlapping jurisdictions (city police, fire department or fire district, and regional clean air agency) I recommend you consult with your fire marshal, your local clean air agency, and your attorney for specific requirements in your city.

Other than RCW 35.80.030, we are aware of no statute that would allow a municipality to create a lien and have the county treasurer enter it on the tax rolls. For all other nuisance abatement costs the municipality would have to get a court judgment and record it against the property. It will not have a higher priority than other liens. See generally, City of Tacoma v. Pierce Cnty., 79 Wash. 2d 361, 485 P.2d 454 (1971).

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

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

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

• SeaTac Municipal Code Section 15.115.040 – Provides for a detailed review process when an EPF is determined to have major impacts on the city.
• Sequim Municipal Code, Ch. 18.56 – Establishes a clear process and criteria.

Under recent Washington case law, there are potential issues with respect to impoundment of vehicles used for habitation. In June 2020, the Washington Court of Appeals ruled that a vehicle owner who uses their vehicle for habitation has homestead rights in that vehicle (see chapter 6.13 RCW). Impoundment of such a vehicle for violation of parking regulations is not, by itself, prohibited. However, the threat of forced sale of the vehicle (which is typically what happens with unclaimed, impounded vehicles) is a violation of the vehicle owner’s homestead rights. State law provides that real or personal property used as a residence “is exempt from attachment and from execution or forced sale for the debts of the owner up to the amount specified in RCW 6.13.030.”

MRSC published a blog article about the case which contains more analysis and information. The appellate decision was appealed to the Washington Supreme Court who heard oral arguments in the case in March, but it is unclear when an opinion will be issued.

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

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

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

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

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

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

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

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

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

The limitations are set forth in RCW 69.50.505(10), which provides:

Forfeited property and net proceeds not required to be paid to the state treasurer shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of controlled substances related law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources. [emphasis added]

This general question was addressed in a 1995 attorney general opinion, AGO 1995 No. 11. Here’s an excerpt from the AGO:

The focus of RCW 69.50.505(10), and chapter 69.50 RCW as a whole, is regulation of controlled substances. Considering the ordinary meaning of the term “related” and the context in which it appears[], it seems evident that RCW 69.50.505(10) is intended to ensure that law enforcement agencies use drug forfeiture proceeds to enhance and improve law enforcement activities having a close and demonstrable relationship to enforcement of controlled substances laws.

The Attorney General Opinion suggests that you should be cautious before determining how much, if any, proceeds from drug seizure and forfeiture funds are used.

Looking at the statute and its ordinary meaning, we conclude that RCW 69.50.505(10) authorizes use of drug forfeiture proceeds for law enforcement activities having a close connection to controlled substances. Where such a close connection exists, we do not believe that such law enforcement activities become ineligible for drug forfeiture simply because they also relate to additional law enforcement objectives.

Having your offices closed during the “Stay Home-Stay Healthy” order does complicate this a little bit. MRSC has advised that agencies can decide what “essential functions” are if that decision doesn’t violate the governor’s guidance. So, you could set up an appointment to allow for physical service of process. If you choose not to open your office for physical service, a plaintiff has the right to ask a court to allow service by some other method – publication in a newspaper under RCW 4.28.100, or by mail under CR 4(d)(4).

Improper service of process is a defense to a lawsuit. A party can voluntarily give up that defense. So, you can (but are not required to) agree to accept service some other way – either by fax, email, or something else. We recommend that you discuss your options with your agency’s attorney.

Service of process is generally controlled by Chapter 4.28 RCW and by Rule 4 of the Civil Rules for Superior Court (CR 4). The only governor’s proclamation we are aware of related to service of process is specific to protection orders (see COVID-19: Protection Orders and Personal Service). We also are not aware of an order from the Washington State Supreme Court suspending or amending CR4.

Absent any specific order, it appears that the provisions of RCW 4.28.080 apply. There is no specific provision for transit agencies. RCW 4.28.080(9) appears to be the most applicable provision:

• If against a company or corporation other than those designated in subsections (1) through (8) of this section, to the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent.

That language may seem applicable only to private corporations, but note that subsection (2) of RCW 4.28.080 covers cities and towns and subsection (3) covers school and fire districts. As a result, we think the reference in subsection (9) to corporations “other than those designated in subsections (1) through (8) of this section” includes municipal corporations, which includes public transit districts.

No. RCW 10.85.030 specifically authorizes cities to offer rewards for information. MRSC has also previously advised that there is no gift of public funds because the expenditure is for a proper public purpose, and the city is getting some consideration (information) in return.

A custom search of Washington city codes turned up a number of sample code provisions establishing reward programs.

The sheriff serves the entire county, including each city and town. The RCWs that describe the sheriff’s duties are not limited to the unincorporated parts of the county. There is an attorney general opinion to that effect, 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.
4. That is the problem if the city does not have its own police force, or there is no 24-hour coverage. The sheriff can be looked to for law enforcement services, but the level of service provided is up to the sheriff, not the city.

Obviously, the sheriff deputies will respond to serious crimes within the city, but they may not provide patrol or take action for certain types of violations. The only way the city can assure the level of service it desires is to have its own police force or to contract with the county for the required services.

If the city’s budget is such that it can no longer have its own police force, the sheriff will provide services without the city having to make payment. But, as indicated above, there is no assurance of the level of service that will be provided. Presumably the level of service will be dependent upon how much police activity is occurring at a given time. The only way the city can be more certain about coverage is to contract with the sheriff. The process will ultimately come down to the negotiations between the city and the county, how much the city is willing to pay, and how much the county wants for its services.

No. Unlike cities and towns, the rules for counties lack language that allows local rules that “substantially accomplish the purpose” of the state law. See RCW 41.12.010, applicable to city police, which states:

The provisions of this chapter shall have no application to cities and towns which at the present time have provided for civil service in the police department or which shall subsequently provide for civil service in the police department by local charter or other regulations which said local charter or regulations substantially accomplish the purpose of this chapter, nor to cities having a police force of not more than two persons including the chief of police.

There is no similar language in the county statute, thus eliminating the possibility of a local rule that differs from the state law.

Contracts for legal services are “personal service contracts.” There are no RCWs that require local government agencies to follow a formal RFP/RFQ process for personal service contracts.

That said, many jurisdictions have adopted their own policies and procedures which should be followed. MRSC recommends a formal process be followed above a certain dollar amount. Here is a link to our topic page on Personal Service Contracts that you may find helpful.

So while there is no RCW requirement, we recommend that you follow your organization’s adopted contracting/purchasing policies. We also suggest that you consider an RFP/RFQ process even if you are not required to do so under your policies and procedures to the extent doing so will get you the best possible contract.

Please see the following sample code provisions from four council-manager cities:

• Bainbridge Island Municipal Code, Ch. 2.44, Emergency Management
• Burien Municipal Code, Ch. 2.75, Emergency Management
• Normandy Park Municipal Code, Ch. 2.36, Emergency Management
• Toppenish Municipal Code, Ch. 2.95, Emergency Powers of Mayor, City Council and City Manager

A custom code search of “’city manager’ emergency declare” turns up many more sample code provisions that include procedures for declaring emergencies in council-manager cities for your review. While many of these code provisions have the city manager, acting as the “executive head” of the city, initiating the declaration of an emergency, there are a variety of other approaches that include potential action by the mayor or the city council (if they are in session or to ratify action by the city manager). I am not aware of any attempts to determine what might be considered “best practices” for declaring an emergency in council-manager cities.

You may also be interested in the following related resources:

• Elected Officials Guide to Emergency Management, Washington State Emergency Management Association, 2003
• Emergency Management and Disaster Planning, MRSC
• Local Government Emergency Planning, MRSC