Contracting – Some General Principles for Cities
A number of issues may arise regarding the respective roles of a city (or town) council and the city (or town) administration - whether headed by a mayor or a city manager - when a city contracts for a service or a public work or makes purchases of supplies, equipment, or materials. This blog post concentrates on a few general principles that apply to the contracting process in cities, except for first class cities, which are governed by charters that may establish different rules. (Issues involving contracting by counties will be addressed in a future blog post; issues involving competitive bidding are not addressed in this blog post.)
Who has authority to contract on behalf of a city? The contracting authority is the city council. This is spelled out in the statutes for second class cities (RCW 35.23.440(32)), code cities (RCW 35A.11.010), and towns (in various subsections of RCW 35.27.370).
You mean if the clerk needs to buy some paper clips, the council must approve the contract before the purchase can be made? That’s right, technically. Purchasing paper clips involves a contract. There is no exception made for low-cost contracts or for purchases made by other city officials. Of course, as discussed below, it doesn't work that way in practice, because councils delegate some of that contracting authority to the city administration.
Does a city council really want to approve every purchase of paper clips or stamps? No, of course not. That would be impractical and a waste of the council's time and energy. A city council, which can legally act only in the context of regular or special meetings, cannot realistically involve itself in such day-to-day tasks like the approval of contracts for routine, budget-contemplated purchases, services, or work. Nor should it want to. As such, it will need to delegate some of that contracting authority to the city administration.
How does the city council delegate that authority to the city administration? It should do so expressly, by ordinance or resolution. Though, we've seen that some city administrations have been delegated that authority impliedly, through a pattern of past practices. But, of course, it's best to formally spell out the nature and extent of that delegation in an ordinance or resolution.
If council has made a delegation of contracting authority to the mayor, city manager, or some other city official, is there a limit on the size of the contracts that can be made without prior council approval? There is no statutory limitation. If there is a limit, it is because the council has imposed one - and a council should impose one. For example, the council might allow the mayor to contract for up to $500, $10,000, or more without having to obtain prior council approval, assuming that the city budget allows for the contract.
We will soon open negotiations for a collective bargaining agreement. Who determines what issues will be negotiated, what the city’s position will be as to those issues, and who will negotiate on the city’s behalf? As is indicated above, the council is responsible for contracts. A collective bargaining agreement is, of course, a contract. So, it ultimately is the council that determines who bargains on the city’s behalf, what issues should be negotiated, and the city’s position on the issues. Typically, the city will have a bargaining team, which could include the mayor or city manager, or a department head, or a professional negotiator; however, the council or a council committee could assume that role.
On a related matter, must the negotiating team go back to the council during the course of negotiations, if agreement seems near? The full council must ultimately approve the final collective bargaining agreement. However, during the course of negotiations, councilmembers may be contacted individually or collectively to determine their position on an issue being negotiated. Since adopting a position to take during labor negotiations is not covered by the Open Public Meetings Act, the council may meet or individual councilmembers can be contacted for an opinion or authorization without public notice and without the discussions being open to the public. See RCW 42.30.140(4).
Who signs a contract, once it has been approved by the council? In towns, the mayor is required to sign all written contracts. RCW 35.27.160. The statutes governing second class cities and code cities do not specify that the mayor or manager is to sign contracts, but that duty is typically delegated to the mayor or manager, either formally by ordinance or resolution or by past practice. The mayor or manager may further delegate that authority to a subordinate official, such as a department head.
What if the mayor or manager disagrees with the council’s decision and refuses to sign a contract? Neither the mayor nor the city manager has “veto power” over contracts. Any duty imposed on the mayor or manager to sign contracts - whether that duty is imposed by statute, ordinance, or resolution - is "ministerial," meaning there is no discretion to not sign. Signing a contract does not legally signify approval by the signer. So, if the mayor or manager refuses to sign a contract, the council could have someone other than the mayor or manager sign, such as the mayor pro tem. However, in a town, because the duty of the mayor to sign contracts is statutory, the council may have to seek a court-ordered mandate to force the mayor to sign.
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