From the 2023 Elected Officials Essentials Workshop
Last year marked the highest-ever attendance at AWC’s Elected Officials Essentials Workshop. This important event is often a first introduction to elected office for many of our cities’ newly elected officials, and a great refresher for many more. The 2023 workshop was held at nine different locations around the state, as well as online. With over 400 participants, there were great conversations, tons of new connections, a wealth of information—and, as you might expect, many questions. The liveliest parts of the day were the legal scenario discussions and question-and-answer sessions, hosted by multiple attorneys (including Foster Garvey PC, Kerr Law Group, Municipal Research and Services Center (MRSC), Ogden Murphy Wallace PLLC, Pacifica Law Group, Sheila Gall of AWC, Summit Law Group, and Witherspoon Brajcich McPhee PLLC).
Because there were more questions than the attorneys had time to answer, we’ve selected some to share, along with responses from a few stalwart legal experts. Keep in mind that every situation is different, and there can be important nuances for your city or case. If you have questions, always talk to your city attorney—they are your best source of information.
Roles and responsibilities
If a councilmember vacates their position, how should the position be filled?
State law requires the remaining councilmembers to appoint a councilmember to fill the vacancy. For all cities and towns other than first-class or charter code cities, the council must appoint a qualified replacement within 90 days of the vacancy. If the council does not appoint a replacement by that deadline, the county council may fill the vacancy. See RCW 42.12.070: Filling Nonpartisan Vacancies and MRSC’s vacancies page.
Can you give me an example of when a mayor in a mayor-council form of government can exercise a veto?
Veto power varies by class of city in mayor-council forms of government. In code and second-class cities, the mayor may veto ordinances, such as a land use ordinance or an ordinance for a new misdemeanor. In first-class cities, veto powers are set by the city charter. Mayors in towns and cities operating under the council-manager form of government (where the mayor votes as a council member) do not have veto power. See MRSC's page on council voting.
In a strong mayor form of government, does the mayor count as part of the quorum?
No. In the mayor-council (strong mayor) form of government, the mayor’s role is to preside at the council meeting. A majority of councilmembers must be present at the meeting to constitute a quorum—four members of a seven-member council and three members of a five-member council. (In a council-manager form of government, the mayor’s role is ceremonial, and they are a member of the council for the quorum and voting.)
May a sitting city councilmember endorse a political candidate and include their title in the endorsement?
Yes. Elected officials may engage in political activities on their own time and express their opinion about a candidate at any time, if no public equipment, vehicle, or facility is used. Titles may be used for identification purposes, but officials should make clear that they are expressing their personal views. See the Public Disclosure Commission’s Guidelines for Local Government Agencies in Election Campaigns.
Does the “home rule” principle apply if a law becomes federal (e.g., if cannabis becomes legal nationwide, can a city still lawfully ban retail sales)?
Probably not. The “home rule” principle applies to the relationship between state powers and local government powers. MRSC is unaware of any case law that applies home rule to federal preemption.
What is the proper role of staff and legal counsel during deliberations of councilmembers? Are they allowed to interject on their own without being called upon, and can staff “lobby” for their recommendation while council has made a motion, a second, and is in discussion?
No one should speak during a council meeting unless recognized by the presiding officer. Seeking staff input and advice during council deliberations may help the council to make a more informed policy decision, but how and when the council accepts that input depends on your city council’s rules and procedures.
Does the mayor (in the mayor-council form of government) have the authority to prevent councilmembers from communicating with city staff?
The mayor or city manager is responsible for the day-to-day administration of the city and city staff, and councilmembers generally cannot give direct orders to staff. (See RCW 35A.12.100; RCW 35.23.021; RCW 35A.13.120).
How does a strong mayor deal with a councilmember who violates a mayoral policy regarding interaction with staff or giving direction to staff?
The mayor does not have the authority to discipline a councilmember, but can ask other councilmembers to do so. The mayor can direct staff to politely but firmly tell a councilmember that they have been directed not to discuss matters with councilmembers, and then refer the councilmember back to the mayor (or to a department head).
How does a councilmember get an agenda bill into our packet for our entire council to make a policy decision? (We have a council-manager form of government.)
See MRSC’s Setting the Agenda: Less Control, More Cooperation
What is the best way to get an item on the agenda of a council meeting as a city councilmember?
The process for setting an agenda is usually addressed in a city council’s rules of procedure. Most cities delegate coordination of the agenda to the mayor, city manager, city administrator, or clerk. A councilmember can also amend the agenda during a meeting by making a motion to add, remove, or modify an item on the agenda. See MRSC’s The Basics of Meeting Agendas.
Can cities change from council mayor/manager to strong mayor form of government? If so, how? Is it a citizen initiative?
Cities can change their form of government by either a council resolution or a citizen petition process, both of which are then followed by an election. The process for code cities is set forth in chapter 35A.06 RCW and for non-code cities and towns in chapter 35.18 RCW.
If a second-class city wants to become a first-class or code city, what does that require, and which is recommended for a small rural city?
Changing the form of government or classification of a city requires approval by the voters of the city. In most cases, the change can be started with either action by the council or a citizen petition to place a resolution on the ballot.
Classification options vary based on the city’s size at the time of organization: Any city may reorganize as a code city, and a first-class city must have a population of at least 10,000 at the time of organization. Most cities are code cities due to the broader scope of local control, and all changes in classification have been from second-class cities or towns to code cities.
Form of government options vary by the class of city. Towns and second-class cities may only operate under the mayor-council form of government. See MRSC’s City and Town Classification and MRSC’s City and Town Forms of Government.
Conflicts and ethics
Can a police officer work for one city but be on council for another city?
Yes. This does not violate the doctrine of incompatible offices. See MRSC’s topic page on incompatible offices.
Should a councilmember be employed by the town as summer help?
Under RCW 42.30.030(6)(b), towns with a population of less than 10,000 may employ councilmembers if the amount of compensation is not more than $36,000 in any calendar year and the councilmember complies with the following (which is the last paragraph of RCW 42.23.030):
A municipal officer may not vote in the authorization, approval, or ratification of a contract in which he or she is beneficially interested even though one of the exemptions allowing the awarding of such a contract applies. The interest of the municipal officer must be disclosed to the governing body of the municipality and noted in the official minutes or similar records of the municipality before the formation of the contract.
Is there a difference between one individual officeholder being offered a gift such as tickets versus all of the elected officials being offered the same?
No, there is no difference. The elected official should refuse the gift, whether it’s offered to an individual councilmember or all councilmembers. RCW 42.23.070 prohibits an elected official from receiving any gift for a matter connected with their services as an officer.
Do the quasi-judicial limitations only apply when your jurisdiction is the deciding body? Example: Taking a position as a city councilmember on a county zoning issue.
The appearance of fairness doctrine applies in cases where an official may be called upon to vote on a quasi-judicial matter. It would not apply when an official is not part of the decision-making process.
Is there a standard for attendance before a councilmember is denied an excused absence?
The criteria for whether to grant an excused absence are either addressed in the council rules or, in the absence of a rule, are a matter of council discretion.
When can a councilmember be removed for non-attendance?
A council position becomes vacant if the councilmember fails to attend three consecutive regular meetings without being excused. RCW 35A.12.060; RCW 35A.13.020; RCW 35.23.101; RCW 35.27.140.
Regarding the code of ethics – can you define who is a municipal officer?
RCW 42.23.020(2)defines “municipal officer” rather broadly to include all elected and appointed officials, all deputies and assistants of such officials, and anyone exercising or undertaking to exercise the powers of those officials (such as city managers, city or county administrators, or special purpose district superintendents). The definition does not clearly include employees or volunteers. MRSC recommends that if a local agency adopts its own code of ethics, it should clearly specify to whom it applies.
Finance
Impact fees: How does a city impose impact fees and is there a guide to follow?
Impact fees may be imposed by cities planning under the Growth Management Act (GMA) for new or expanded public capital facilities that are reasonably related to the increased demand for services created by that development, are in a local government’s capital facilities plan, and will benefit the new development. See page 137 of MRSC’s Revenue Guide for Washington Cities and Towns.
Levy lid lifts: How does property tax banked capacity work? When the 1% levy increase is not taken it can be banked for future capacity. When it is used to exceed the 1% annual levy increase in future years, is there a limit on how much banked capacity can be used?
Banked capacity occurs when a jurisdiction does not take the full annual increase for its levy as authorized in RCW 84.55.092 and complies with the process in RCW 84.55.120 to bank the capacity. Use of banked capacity is a council policy decision and is not subject to limits on how much of the banked capacity is used in a single year—as long as the city does not exceed the limit on its statutory rate per thousand dollars of assessed value. See MRSC’s Property Tax in Washington State.
How common is the B&O tax in WA cities? What are the benefits and what are the downsides?
Any city or town may impose a business and occupation (B&O) tax on the gross revenues of businesses operating in their city, in addition to any state B&O taxes. Local B&O tax maximum rates and mandatory provisions are set by statute RCW 35.102. Currently 50 cities and towns in Washington have adopted local B&O taxes. See the Revenue Guide for Washington Cities and Towns for a discussion of considerations for implementation, which requires a sufficient tax base and staff resources and expertise to administer and collect this local tax.
In addition, most cities have local utility taxes on utility businesses operating in the city, including the city’s utilities.
Open government
Can you elaborate on guidelines for elected officials and their private social media accounts, in light of the recent Supreme Court case? Are online links/access now required under the OPMA (Open Public Meetings Act)?
A councilmember’s posts on personal social media do not constitute public records if they are not created within the councilmember’s official capacity. However, if a post is made within the councilmember’s official capacity, it is a public record subject to disclosure. For more information on what it means to be created within an “official capacity,” see West v. City of Puyallup, and MRSC’s blog New ruling finds Facebook posts can be a public record.
Concerning OPMA, a violation can occur if the councilmember posts about city business and other councilmembers comment on that post. As stated in MRSC’s practice tips on the OPMA and electronic communications:
If members of the governing body use social media (e.g., through a Facebook page or Twitter feed) to host a discussion about issues related to the agency, and the discussion includes comments from a majority of the members of the governing body, that discussion could constitute a public meeting under the OPMA. There’s no authority under the OPMA regarding what would constitute adequate public notice – if that’s even possible – for this kind of virtual meeting, so it’s best to avoid this type of discussion on social media.
Can a councilmember explain or make comments about town business or town projects on Facebook?
A councilmember should review and follow their local town policy on posting about town business on their personal Facebook page. If the councilmember does post about town business on their personal page, they need to understand when that post is considered a public record and be prepared to retain and produce that post in response to a Public Records Act request. MRSC’s New Ruling Finds Facebook Posts Can be a Public Record explains when a post on personal social media becomes a public record.
Do you have to allow online participants an opportunity to comment during public meetings?
No. While the city must accept public comment at all regular meetings, the city has the discretion to adopt local rules on how they will accept comments: verbally in person, verbally online, and/or in written form. The only caveat is that, if a person indicates they will have difficulty attending a meeting in person because of disability, limited mobility, or any other reason, the governing body should provide the opportunity for online verbal public comment if verbal comment is accepted at the meeting.
Are verbal responses from the mayor or council allowed during public comment?
Back-and-forth responses from the mayor or council during public comment are not recommended. MRSC has a recent article addressing this issue: Don’t Get Into Back-and-Forth Exchanges During Public Comment.
Are the public records of public officials accessible?
There is not a specific exemption for personal information of an elected official, although there is one for employees. See RCW 42.56.250(1)(b). While RCW 42.56.230(3) does exempt personal information of employees, appointees, and elected officials stored in public agency files, the exemption only applies if a person’s right to privacy is invaded by public production of the record. Public disclosure of an elected official’s address and other contact information is unlikely to meet the right to privacy test, which requires that disclosure would be highly offensive to a reasonable person and not of legitimate concern to the public.
MRSC has a Public Records Act FAQ page which addresses many other questions, including-employee records, councilmember notes, use of personal devices, and exemptions.
Can you please explain the distinction between a public meeting and a public forum as it relates to hate speech and city options for handling/responding to hate speech?
MRSC’s When Hate Comes to Town: Addressing Racist and Anti-Semitic Public Comment at Meetings addresses this issue.
Does a three-member subcommittee on DEI from a seven-member council need to follow the OPMA if a council majority is not present?
See this question in MRSC’s OPMA FAQ: When is an advisory board “acting on behalf” of the governing body (and therefore subject to the OPMA)?
Are city boards and commissions required to hold meetings in a public forum? Do board and commission meetings need to be noticed like general city meetings?
City boards and commissions may be subject to the OPMA and required to hold meetings in public and provide notice of meetings as required under the OPMA. Some, like the planning commission, are required to follow the OPMA, as are other city boards and commissions by the scope of their duties if they are created by ordinance or act on behalf of the governing body. See MRSC's OPMA Practice Tips
Can you charge for a public records request if it takes staff time and materials to complete? If so, how much?
Please see MRSC’s webpage Copying Charges for Public Records.
Do you have an opinion on the initiative in some jurisdictions to require CBA bargaining in an open public meeting?
MRSC addressed a variation of this question in its OPMA publication, as follows:
Can a local government unilaterally require that collective bargaining negotiations occur at an open public meeting? No. The Washington Supreme Court held that a city ordinance requiring that all collective bargaining between city and union representatives occur at an open public meeting was preempted by state law and unconstitutional under article XI, section 11 of the Washington State Constitution. See Washington State Council of County and City Employees v. City of Spokane (2022).
Can I talk with two councilmembers and several constituents about an upcoming issue as long as they don’t “roll” the discussion to other councilmembers?
Yes. A meeting is defined as a quorum of the council taking action, which can include discussion. In this case there is less than a quorum meeting to discuss city business.
A serial meeting under the OPMA occurs when a quorum communicates and there is a collective intent of transacting the governing body's business.
Note: This document is for general educational purposes and is not intended as legal advice. Cities should consult their legal counsel with any questions or concerns about specific legal issues or risks.