Ask MRSC Archives

No state legal authority addresses pre-bid conference requirements directly, so the matter is up to local agency practice. Agencies accordingly differ on this issue, with some requiring pre-bid conference attendance, and others perhaps encouraging it but not requiring it. Each approach has pros and cons.

A potential benefit of requiring pre-bid conference attendance is that it provides an efficient process to address project-related issues and questions and to facilitate bidder commitment to a project.

On the other hand, requiring attendance at pre-bid conferences could cause agencies to lose out on potentially good bidders who may be unable to attend a mandatory meeting.

Although no law prohibits it, MRSC cautions against requiring mandatory attendance at pre-bid conferences. One reason for this is to reduce the potential for challenges or claims by those that do not attend. Consult with your agency’s legal counsel about your specific requirements.

In response to your question about whether impact fees can be used to pay for an updated impact fee study, MRSC’s general answer is that impact fees cannot be used to pay for studies. RCW 82.02.050(4)(a) states that impact fees:

[s]hall only be imposed for system improvements that are reasonably related to the new development; [Emphasis added]

RCW 82.02.050(5)(a) states:

Impact fees may be collected and spent only for the public facilities defined in RCW 82.02.090 which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to the provisions of RCW 36.70A.070 or the provisions for comprehensive plan adoption contained in chapter 36.70, 35.63, or 35A.63 RCW. [Emphasis added]

The type of study you describe does not fall under the category of “system improvements” or for a “public facility.”

We recommend that you discuss this matter with your agency’s attorney, as well.

For local government agencies, RCW 42.24.080(1) provides that prepayment (deposit) or advance payment is an option when the “advance payment is due and payable pursuant to a contract or is available as an option for full or partial fulfillment of a contractual obligation.” Therefore, the prepayment provision should be part of the purchase order/contract agreement with the vehicle provider.

We recommend discussing this circumstance with your legal counsel to be sure any issues related to prepayment are considered. For example, we have noted that when an agency prepays before an item arrives at the project site, shipping liability may shift to the agency, and any possible loss or damage while enroute would presumably be the agency’s responsibility to resolve.

We also recommend placing a note or memo in the file explaining why prepayment was necessary.

In general, unless a statute requires proof of publication, it is a matter of local policy how this information is tracked/obtained. When a state statute requires that the city or town obtain an affidavit of publication, then you need to get the official affidavit from the newspaper pursuant to RCW 65.16.030.

That statute defines “proof of publication” to be “the affidavit of the printer, publisher, foreman, principal clerk or business manager of the newspaper which published such notice.” The only statutes we are aware of that require an “affidavit” of publication on file are:

• RCW 35.68.050 (sidewalks): “Proof of mailing and publication shall be made by affidavit and shall be filed with the city clerk […]”
• RCW 35.73.030 (changing street grade): “Proof of publication by affidavit shall be filed as part of the record of proceedings.”

Otherwise, RCW 65.16.030 (regarding affidavits of publication) does not require a city or town to have such affidavits routinely on file. Instead, a city or town can choose to request an affidavit of publication from the newspaper when necessary.

There are some situations when a city or town should obtain affidavits of publication, even if they are not legally required. For example, during the formation of a local improvement district, bond counsel will want to have copies of the affidavits of publication in their file so they can verify that all of the required steps were followed. Likewise, any time that the city or town wants to be able to demonstrate that the proper notice procedures were followed for a particular action.

We recommend that you discuss this issue with your agency’s attorney as well.

Questions about the legality and wisdom of specific proposed port business investments (and how to manage them) need to be directed to the port’s legal counsel for a definitive opinion and advice. However, RCW 53.08.245  generally allows ports to engage in economic development activities as part of their overall operations. That statute provides that engaging in “economic development programs” is within a port’s “public purpose.” See RCW 53.08.245(1). That section, RCW 53.08.245(2)(a), goes on to describe economic development programs to include:

Occupational job training and placement, job advancement and job retention, preapprenticeship training, or occupational education programs associated with port tenants, customers, and local economic development related to port tenants or port-related economic activities that are sponsored by a port and operated by a nonprofit, private, or public entity.

The court in Lane v. Port of Seattle (2023) analyzed the scope of RCW 53.08.245 and interpreted the statute broadly in favor of a port’s ability to support economic development. The plaintiffs in that case questioned whether a port’s purchase of a rail corridor was within a port’s authorized economic development activities. In holding that the purchase was within the port’s authority, the court stated (with emphasis added):

Plaintiffs argue that a port's involvement with economic development is limited to programs for job training and placement under RCW 53.08.245(2). This argument has no merit […] the supposed limiting language is simply permissive; it states that economic development programs “may include” job training and placement. The intent of the statute is not to limit a port's activities to job training and placement but rather to resolve any doubt that the term “economic development” is broad enough to include job training and placement.” 

The Lane decision’s broad interpretation of a port’s economic development activities in RCW 53.08.245 could be argued to support a broader range of port business investments designed to increase port related economic development. 

In addition to the above statutory provisions, port investments need to avoid the state constitutional restriction on  gifts of public funds, which prohibits municipalities from giving their funds away except to support the poor or infirm or to accomplish fundamental government purposes. So, the port should receive adequate legal value in exchange for its investments to comply with this gifting restriction. For a gift of public funds analysis relevant to a port district, see Peterson v. Port of Benton (2020).  

Procedurally, RCW 53.08.245(2)(b) requires ports to enact resolutions declaring how their proposed economic development activities will “provide a substantial public benefit consistent with the port’s economic development goals.” Enacting this required resolution can help the port identify proper purposes and return value for its proposed investments that are consistent with the above statutory and constitutional requirements.

No, a city council does not have a role in reviewing changes to civil service rules adopted by the civil service commission. In general, a civil service commission has authority to adopt and to change or revise its civil service rules, consistent with state law applicable to civil service, including Chapter 41.08 RCW (for city firefighters) and Chapter 41.12 RCW (for city police).

There is no legal authority for a city council to approve or not approve the civil service rules. I understand this is because civil service in local government was originally created to curb political favoritism and remove the coercive pressures that once caused public employees to contribute money and time to partisan political candidates. Civil service rules establish an even playing field of open competition for positions with hiring and promotions based on merit and demotions, suspensions, or terminations only for cause. For more information, see MRSC’s Civil Service page.

RCW 41.08.040(1) provides the legal authority for the civil service commission (for firefighters) to make its own rules and regulations:

It shall be the duty of the civil service commission:

(1) To make suitable rules and regulations not inconsistent with the provisions of this chapter. Such rules and regulations shall provide in detail the manner in which examinations may be held, and appointments, promotions, transfers, reinstatements, demotions, suspensions and discharges shall be made, and may also provide for any other matters connected with the general subject of personnel administration, and which may be considered desirable to further carry out the general purposes of this chapter, or which may be found to be in the interest of good personnel administration. Such rules and regulations may be changed from time to time. The rules and regulations and any amendments thereof shall be printed, mimeographed or multigraphed for free public distribution. Such rules and regulations may be changed from time to time. [Emphasis added.]

See, also, RCW 41.12.040(1) for law enforcement.

Finally, here is a link to a useful resource that many cities have used for their civil service commissions: Model Civil Service Rules for Washington Local Governments (2006 with 2008 update), by P. Stephen DiJulio, Foster Pepper PLLC.

For public works contracts estimated to cost $2 million or more, RCW 39.04.320 requires the specifications to include the apprentice utilization requirement (AURs) along with the incentives, penalties, estimated cost of compliance, and a requirements adjustment process. (The threshold will be reduced to $1.5 million beginning July 1, 2026 and $1 million beginning July 1, 2028.)

If your bidding documents did not contain the apprentice utilization information, there are two possible options, both of which may have unintended consequences:

1. Reject all bids, add the AUR provisions, and re-bid the project. This would be the conservative and compliant approach and would provide the most transparency and bidding fairness. All bidders should have the same opportunity to bid the cost, etc.
2. Award the contract to the apparent low bidder, then include the AUR requirements, forms, and processes by change order. The required apprentice utilization plan would have to be collected before the project starts and the apparent low bidder checked for responsibility in this area, etc. Pursuing a change order opens up the public agency to pricing that might not be competitive and/or additional costs that otherwise would not have been part of a competitive bid.

We recommend you discuss your options and next steps with your legal counsel.

For more information on this general topic, see our page Apprentice Utilization Requirements for Public Works Contracts.

The State Archives does allow for the destruction of paper records after scanning under certain conditions, and it largely depends on whether or not the records are designated “Archival” in the retention schedules. For guidance from the Washington State Archives, see their webpage on How to Scan/Image Records and Go Paperless.

If you have questions about specific records, staff at the State Archives are very helpful and can be reached via email at recordsmanagement@sos.wa.gov.

Generally speaking, there is no prohibition against cities or towns accepting donations from religious organizations. MRSC has referred to RCW 35.21.100, which states:

Every city and town by ordinance may accept any money or property donated, devised, or bequeathed to it and carry out the terms of the donation, devise, or bequest, if within the powers granted by law. If no terms or conditions are attached to the donation, devise, or bequest, the city or town may expend or use it for any municipal purpose.

Importantly, the terms of a donation must be for allowable municipal expenditures—so if a religious organization seeks to place terms or conditions on the donation that would result in an unconstitutional Establishment Clause violation, for example, the city or town should either reject the terms and conditions of the donation or the donation itself, if the religious organization does not agree to remove the conditions. Any donation and associated terms and conditions should be discussed with the city attorney.

The statute also requires that the acceptance of donations be done by ordinance. MRSC recommends local governments establish a donation policy as opposed to passing an ordinance for each donation.

For more information, see this MRSC blog article Donations and Local Governments: The Basics of Giving and Receiving (2022). And here are a few examples of donation/gift policies:

• Bellevue Donation Policy & Procedures (2019) – Broader
• Mercer Island Parks & Rec Gift Acceptance Policy (2023) – Restricted, park focused
• Newcastle Donation and Memorial Policy (2014) – Restricted, park focused

Personnel policies do not typically apply to elected officials as elected officials are not considered employees for most purposes. And, as a practical matter, since most policies in an employee handbook don’t naturally apply to elected officials, it doesn’t make a lot of sense to make the entirety of the handbook applicable to the legislative body. A general personnel policy might state that elected officials are eligible for certain benefits. For instance, Benton County in Section 8.2 of its Personnel Policies and Procedures states the elected officials are eligible for insurance benefits.

You may be interested in the following MRSC resources:

• Salaries, Compensation, and Benefits for Local Elected Officials
• Elected Officials and Benefits Programs (2023)

Additionally, councils and commissions typically have their own Rules of Procedure for Local Government Governing Bodies and/or rules of conduct. They may also be bound by Local Codes of Ethics.

No, the limited public works process is no longer an option for local government agencies. This process was authorized by RCW 39.04.155, which was repealed and replaced with the new small works roster processes as of July 1, 2024.

The new roster processes are contained in RCW 39.04.151-.152 and do not include any provisions for limited public works. There is, however, a new “direct contracting” option for small works roster contracts estimated to cost $150,000 or less, excluding sales tax.

For more information on the new roster requirements, see our Small Works Roster Manual webpages.

In Washington State, effective January 1, 2024, pre-employment drug testing for cannabis is generally not allowed for positions that are not safety sensitive or fire/police/or first responder positions. MRSC’s Hiring Procedures page includes the following guidance about drug testing:

Drug testing is not a medical examination under the ADA, and thus may be required at the time of application, assuming there is a public safety or other compelling justification for the test. See Robinson v. Seattle (2000). However, effective January 1, 2024, RCW 49.44.240 prohibits pre-employment drug testing for cannabis (a legal substance in Washington State), except for in the following instances:

• The new law does not apply to: (1) fire department and law enforcement personnel; (2) first responders; and (3) safety sensitive positions for which impairment while working presents a substantial risk of death (these safety sensitive positions must be identified by the employer prior to the applicant’s application for employment).
• If a state or federal law requires an applicant to be tested for cannabis, then the state or federal law controls.
• If the local government is receiving federal funding or federal licensing-related benefits or has entered into a federal contract, then the local government must abide by any federal drug testing requirements (including testing for cannabis) included in the funding agreement or contract for relevant employees.

If an agency does require an applicant be tested for a spectrum of controlled substances, which includes cannabis, the cannabis results cannot be provided to the agency.

Further, drug testing of employees of any kind can only be done in limited situations: employees in positions that require a commercial driver’s license (CDL), employees in safety sensitive positions (police and fire), and employees whose conduct raises a "reasonable suspicion" of drug/alcohol abuse. Random drug testing can only be done in the first two instances (employees needing a CDL and employees in safety sensitive positions), since drug testing under a reasonable suspicion situation would not be random. A drug test of an employee in a non-safety sensitive position where there is no reasonable suspicion of drug use is a violation of that employee's constitutional rights. See Robinson v. Seattle (2000).

MRSC’s page on Employment Discrimination includes the following about drug tests:

Some employees in Washington State may be subject to drug tests for several reasons, including if an employer believes an employee’s performance is hindered because of alcohol or drugs, or if the employee was involved in an incident or accident. However, as of January 1, 2024, employers may not discriminate against job applicants based on their use of off-the-job cannabis (RCW 49.44.240).

Regarding rules and requirements, here are several examples of policies from other cities. You should work with your agency attorney to make sure these provisions remain in compliance with the new law: RCW 49.44.240.

• Ferndale Personnel Policy (2021) – See page 82 to view their “Drugs, Narcotics, and Alcohol” policy.
• Grandview Personnel Policy Manual (2022) – Page 58 (65 of PDF) includes a definition of “safety sensitive position.”
• Kitsap County Drug and Alcohol Policy (2024) – See page 3 of the PDF to view section on “Testing Programs.”
• Lynwood CDL Driver Policy - Driver Qualification and Drug & Alcohol Policy (2020) – See page 5, which includes a definition of “safety-sensitive function.”
• Soap Lake Municipal Code Ch. 2.76 – See Sec. 2.76.040, which includes a definition of “safety-sensitive position.”
• Spokane County Policy No. 650 – Drug-Free Workplace Policy (2016) – See definition of “safety sensitive positions” on page 254 of the PDF.

Again, MRSC recommends you consult with your agency attorney regarding drug testing of employees.

In short, yes—if councilmembers (or other agency personnel) possess public records that are responsive to an agency Public Records Act (PRA) request, they have a duty to turn the records over to the agency for review and potential production to the requestor. In the recent case Valderrama v. City of Sammamish (2024), the court held (with emphasis added):

If an employee stores or is in control of agency records, we must interpret the PRA to balance the employee's privacy rights with the public's interest in government accountability. So, the onus remains with an agency to perform an adequate search for records, but the “agency employees are responsible for searching their files, devices, and accounts for records responsive” to a PRA request. Employees must produce responsive public records to the employer agency, and the agency then determines whether any of the records are exempt from production and discloses the records to the requestor.

When agency personnel possess responsive records outside the agency (for example, on a personal phone or computer), the case Nissen v. Pierce County (2015) establishes the typical process: the agency requests that the councilmember search their own personal devices for the records and then sign an affidavit about the records search and production to the agency.

If for some reason an agency official or staff refuses to search their devices, the Valderrama v. City of Sammamish case establishes that an agency’s good faith “search and affidavit” request from records-possessing personnel satisfies the agency’s record search obligation. The decision supports the conclusion that agencies are not required to take further legal action against personnel that refuse to cooperate with agency record production efforts.

With that said, a refusal to cooperate could have serious implications. For example, failing to produce requested records could lead to legal action against the agency, with corresponding legal consequences and “bad press” for potentially all involved. For a councilmember personally, knowingly “concealing” public records could also lead to criminal penalties under RCW 40.16.020.

General facilities charges (GFCs) are referred to in the statute as connection charges which are authorized at RCW 35.92.025. GFCs are assessed so that property owners “bear their equitable share of the cost of such system,” so it follows that such revenues should only go to capital costs of the system. The statute does not give examples of specific costs or delineate between staff versus contractor work. It should not matter if the work is done by city staff or by a contractor, so long as the work is for an eligible capital project of the utility that collected the GFCs since “[c]onnection charges collected shall be considered revenue of such system.” The city should make sure that it can demonstrate the work was for an eligible capital project through proper documentation.

RCW 39.04.152(3) notes “negotiation” as part of direct contracting. If a bid significantly exceeds the estimate, you should attempt to negotiate with the contractor. If some level of negotiation fails to reach an agreement, you may reject the bid and move on to the next rotated contractor. However, we suggest you work to understand why the bid came in so far outside of your original estimate.

For more information on this process generally, see our webpage Direct Contracting for Small Works.

The city does not have the authority to impose an affordable housing fee on development projects. Cities must have statutory authority to impose taxes. And while local governments have general authority to charge fees to recoup various costs (see Carrillo v. City of Ocean Shores (2004)), RCW 82.02.020 limits the fees a local government can collect associated with development. The statute provides, in relevant part:

Except as provided in RCW 64.34.440 and 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

The statute (RCW 82.02.020) then makes an exception for reasonable permit fees:

Nothing in this section prohibits cities, towns, counties, or other municipal corporations from collecting reasonable fees from an applicant for a permit or other governmental approval to cover the cost to the city, town, county, or other municipal corporation of processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C RCW, including reasonable fees that are consistent with RCW 43.21C.420(6), 43.21C.428, and beginning July 1, 2014, RCW 35.91.020. [Emphasis added]

Applying this statute, the Washington State Court of Appeals struck down a surcharge on building permits imposed by the City of Bainbridge Island to fund an affordable housing trust fund. See Home Builders Ass'n of Kitsap Cty. v. City of Bainbridge Island (2007).

So, cities are limited to charging fees for permits to cover costs associated with processing applications, inspecting and reviewing plans, and preparing statements required by the State Environmental Policy Act (SEPA). For further examples and discussion of fees that cities can charge, see MRSC’s Revenue Guide for Cities and the section Other Fees and Charges (p. 152).

Impact fees may also only be imposed as allowed under state law. Currently, impact fees are authorized for transportation, parks, schools, and fire facilities. See RCW 82.02.050-.110. An impact fee could therefore not be imposed to generate funds for affordable housing.

Here are some funding options currently available to cities for affordable housing:

• Affordable Housing Levy – This is an additional property tax levy up to $0.50 per $1,000 of assessed valuation. The revenues may only be used to finance affordable housing for “low-income” and “very low-income” households. A “low-income household” is defined as households with income below 80% of the county median income.
• Housing & Related Services Sales Tax – If the county hasn’t already done so, the city can impose a sales tax up to 0.1% for affordable housing and related services including behavioral health facilities and treatment programs.
• Lodging Tax – Lodging tax revenues can be used for general obligation bonds (RCW 67.28.150) and revenue bonds (RCW 67.28.160) for “financing loans or grants to nonprofit organizations or public housing authorities for affordable workforce housing within one-half mile of a transit station.” A transit station includes: all passenger facilities, structures, stops, shelters, bus zones, properties, and rights-of-way of all kinds that are owned, leased, held, or used by a transit authority for the purpose of providing public transportation services.
• REET 2 – Through January 1, 2026, REET 2 can be used for affordable housing projects. The amount is restricted to $100,000 or 25% of available REET 2 (not to exceed $1 million). The affordable housing project must be listed on the city’s capital facilities plan.
• Affordable Housing Sales Tax Credit (HB 1406) – Cities had to pass an ordinance to participate in this sales tax credit by July of 2020, and it is no longer an option for those cities that choose not to participate.

For additional options, see MRSC’s Affordable Housing Funding Sources webpage.

HB 1105, codified at RCW 42.30.250, became effective on June 6, 2024, and provides:

(1) A public agency that is required by state law to solicit public comment for a statutorily specified period of time, and is required by state law to provide notice that it is soliciting public comment, must specify the first and last date and time by which written public comment may be submitted.

(2) An agency that provides a notice that violates this section is subject to the same fines under the same procedures as other violations of this chapter are subject to under RCW 42.30.120.

Our understanding is that the new law only applies in those situations where state law requires an agency to solicit comment for a specified period of time (e.g., 14 or 30 days). It would not apply to situations where state law requires public comment but doesn’t provide a timeframe for those comments. For example, it would not apply to general public comment at council or board meetings as required by RCW 42.30.240 (“…a public agency shall provide an opportunity at or before every regular meeting at which final action is taken for public comment.”). Likewise, it would not apply to a statute like RCW 35A.14.472 (addressing interlocal agreements between a city and county for annexing unincorporated territory in the UGA), which requires a public comment opportunity but doesn’t include a statutorily specified period of time. We also don’t think that the law applies where the local code specifies a time period for notice, but state law does not. The local government could but would not be required to provide the beginning and end date of public comment in its notice.

Here is an Association of Washington Cities (AWC) piece that describes the new law. That article states, in part:

The one bill of note that passed was HB 1105, regarding posting of public comment periods, initially introduced in 2023. The original version of the bill created concerns, but AWC worked with the sponsor to narrowly tailor the bill to get the intended effect without negative unintended consequences. As it passed, the bill requires a city or other agency to post the specific calendar dates for a public comment period when the amount of time is identified in statute. For example, if there is a statutory requirement to have public comment open for 30 days on a land use issue, then the notice would require the exact calendar date (e.g., April 30) when the public comment period ends, so the public is less likely to misunderstand when their window closes.

Finally, this new requirement applies to any governing body, committee, or subagency that is subject to the Open Public Meetings Act (OPMA), as the bill amends Chapter 42.30 RCW.

The $2 million threshold applies to the engineer’s estimate that is published with the advertisement, not the actual bids received, and should include all applicable sales taxes.

RCW 39.04.320(i)(a)(ii) states that apprentice utilization requirements apply to “all public works contracts awarded by a municipality estimated to cost $2,000,000 or more...” [emphasis added].

This threshold will be reduced to $1.5 million beginning July 1, 2026 and $1 million beginning July 1, 2028.

For more information on this topic, see our page Apprentice Utilization Requirements for Public Works Contracts.

Yes, RCW 82.14.450 provides for a one-tenth of 1% public safety sales tax option for cities or towns. This option is also available to the county with voter approval for up to three-tenths of 1% sales tax. One-third of all money received must be used for “criminal justice purposes, fire protection purposes, or both.” If it is approved countywide then funds are shared with the cities 60/40. If a city adopts it on its own, then it is shared with the county 85/15.

An additional criminal justice sales tax option that is potentially available is RCW 82.14.340. This one-tenth of 1% sales tax option is available only to counties but requires that the counties share with cities within the county using a formula defined within the statute. This sales tax option does not require a vote.