An Inquiry Response Sampler

As Forest Gump might say, the inquiries MRSC receives through our Ask MRSC service are like a box of chocolates: You never know what you’re going to get until you get one.

Here is a grab bag of short questions and answers that might be of interest to our readers. Unlike chocolates, they are non-fattening, and the questions are always good.

Does a local government have to pay the state and federal tax on fuel?

Federal law provides a fuel excise tax exemption for the sale of any liquid used as a fuel in a motor vehicle for the exclusive use of a governmental entity. Qualification for a tax-free sale requires submittal of a certificate that has been signed by an authorized officer or employee. For more information, see Fuel Tax Exemptions for Local Government Entities and Excise Taxes (Including Fuel Tax Credits and Refunds). The form to use to request a refund is IRS form 8849.

While payment of the state portion of the gas tax is required, there are some exemptions that apply for “special fuels.” Under RCW 82.38.020(29) a special fuel is defined as:

“diesel fuel, propane, natural gas, kerosene, biodiesel, and any other combustible liquid or gas by whatever name the liquid or gas may be known or sold for the generation of power to propel a motor vehicle on the highways, except it does not include motor vehicle fuel.”

The tax exemption for special fuels is provided by RCW 82.38.080 and it applies to:

• Sales to the state of Washington, any county, or any municipality when the fuel is used for street and highway construction and maintenance purposes in motor vehicles owned and operated by the state, county, or municipality;
• Sales for use in publicly owned firefighting equipment; and
• Sales to publicly owned and operated urban passenger transportation systems.

May an elected official be given medical insurance without violating the constitutional prohibition against post-election increases in salary?

Article 11, section 8 of the state constitution provides that the salaries of local elected officials shall not be increased or diminished after their election or during their term of office. There are two exceptions: officers who do not set their own compensation (such as a mayor) and salaries set by a salary commission. Given the prohibition, can a council, board or commission provide paid medical insurance to an officer after his or her election? The answer is yes. RCW 41.04.190 provides in part:

The cost of a policy or plan to a public agency or body is not additional compensation to the employees or elected officials covered thereby

Since paid insurance is not considered compensation by statute, providing insurance to an elected official does not violate the prohibition set out in Article 11, section 8.

What are the rules that apply to the selection of an official newspaper?

Local governments are required to contract with a newspaper to act as their “official newspaper.” See e.g. RCW 35.21.875 for cities and towns, RCW 35A.21.230 for code cities, and RCW 36.72.075 for counties.

If there are two or more qualified newspapers serving the jurisdiction, the legislative body of cities, towns, and counties are to award a 1-year contract through a bidding process. In a code city, there is neither a bidding requirement nor a limitation on the length of the contract, although a best practice suggests use of bidding when there is more than one qualified newspaper serving the city.

Counties are to select a “legal newspaper” published in the county or, if there is no legal newspaper, a legal newspaper published in an adjacent county. Cities and towns are to select a newspaper of “general circulation in the city or town and have the qualifications prescribed by chapter 65.16 RCW.”  Per RCW 65.16.020 the qualifications of a legal newspaper are:

(the) 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:

To be “of general circulation,” the attorney general has indicated, the paper should “to some extent [be] circulate[d] among the general public.” See AGO 1956 No. 257.

Can a person requesting a public record now be charged for records provided in an electronic form? What amount can be charged?

With legislation passed in 2018, local governments may now charge a person the actual costs incurred for providing a record in an electronic format. The amount charged should be based upon a statement showing its actual costs. The statement serving as the basis for the charge must show the factors and manner used to develop the charge and must be adopted after giving notice and conducting a public hearing.

Factors used to develop the charge may include:

• For paper copies, the actual cost of the paper and the per page cost for use of copying equipment; and
• For electronic copies, the actual cost of the electronic production or file transfer of the record and the use of any cloud-based data storage and processing service.

The charge may also include all costs directly incident to:

• Shipping paper records, including the cost of postage or delivery charges and the cost of any container or envelope used; and
• Transmitting electronic records, including the cost of any transmission charge and use of any physical media device provided by the agency.

However, the charge may not include staff salaries, benefits, or other general administrative or overhead charges, unless those costs are directly related to the actual cost of copying the records. Staff time to copy and send the requested public records may be included in the agency's costs.

If calculating actual costs would be unduly burdensome, RCW 42.56.120 offers the following default charges:

• 10 cents per page for records scanned into electronic format
• 5 cents for every four electronic files or attachments uploaded to an email, cloud storage service, or other electronic delivery system
• 10 cents per gigabyte for transmitting records electronically

A third charging option is also available, one requiring a flat fee payment not to exceed $2 for providing any records, not just electronic ones, so long as the agency reasonably estimates that the costs for producing the records are clearly equal to or more than the flat fee charged.

Questions? Comments?

If you have questions about these answers or if you have questions of your own, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me at psullivan@mrsc.org.