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Recent Attorney General Opinions of Interest to Local Governments

This is a selection of recent formal opinions from the Attorney General's Office affecting cities, towns, counties, and special purpose districts in Washington State within the last 10 years.

For a complete list of Attorney General's Opinions, see the Attorney General's Office website.

2024

Superior court judges have options about whether to hear cases in their home court or in the court they are visting.

AGO 2024 No. 1 – This opinion addresses some procedural issues arising when a superior court judge from one county serves as a visiting judge in another county. The opinion concludes that:

  1. Generally, a visiting judge should hold a proceeding in the county in which they are visiting. However, there are some exceptions. Parties in a civil action may consent to a visiting judge holding a court proceeding in the visiting judge’s home county, and a criminal defendant can waive their right to a jury comprised of citizens of the county in which the offense is alleged to have been committed. In addition, a visiting judge may appear remotely during certain court proceedings.
  2. [...] RCW 2.08.190 recognizes that any visiting judge may hear a matter in their home county with the parties’ consent; RCW 2.08.190’s language shows that the legislature intended for the statute to apply to all judicial districts in the state, including single-county judicial districts.
  3. The superior court clerk for the visited county is responsible for keeping a record of the proceedings over which a visiting judge presides. By statute, a superior court clerk is required to keep a record of the proceedings for only the court or courts in which they are a clerk.
  4. A visiting judge may delegate authority to an appointed court commissioner of the county in which the judge is visiting. A visiting judge may not independently appoint a regular court commissioner or a temporary pro tem court commissioner for the county in which the judge is visiting unless the visiting judge is also designated as the presiding judge pro tem for the visited county.

2023

None identified as relevant.

2022

Local governments are in the best position to determine whether a particular development project requires design work by an architect or an engineer, or both.

AGO 2022 No. 3 – The AG opinion was written to clarify any confusion resulting from AGO 2021 No. 2, which opined that the stamping of architectural drawings by non-architects is a violation of the Architect’s Act and possibly the unlicensed practice of architecture. The 2021 opinion did not opine on when drawings are architectural or engineering in nature, nor did it preclude an engineer from stamping design documents that fall within their scope of practice.

State law recognizes overlap between design work completed by architects and by engineers and local building codes may define the nature of design work for any given project. RCW 18.43.020(12) requires that design of significant structures, including essential facilities, must be performed by a structural engineer but, otherwise, there is no bright line rule governing when design work is architectural or engineering in nature. Thus, the local permitting office is in the best position to determine whether a project requires architectural or engineering designs (or both), based on local building codes and the specifications of each project.

A Faculty Senate that develops and recommends university policies for the university president’s approval is not subject to the OPMA.

AGO 2022 No. 2 – This opinion involves applicability of the Open Public Meetings Act (OPMA) to the Academic Senate of Eastern Washington University (“EWU”). EWU is governed by a Board of Trustees (“Board”) and its statutory duties including consultation with the Academic Senate when considering change to policies or procedures. The Academic Senate is part of a separate governance body within the university known as the Faculty Organization, which has its own constitution and bylaws. The Academic Senate is the legislative arm of the Faculty Organization, and its responsibilities include formulation and recommendation of university-related policies for the president’s approval and advice and counsel to the president and others regarding interpretation and implementation of the policies.

The question considered in the AGO is whether the Academic Senate is considered a “committee thereof” and “acts on behalf” of the Board. Ultimately, the AGO concluded that the Academic Faculty is not a committee and it does not act on behalf of the Board.

Committee Thereof

Unlike other university-level faculty bodies, there is no statute that creates EWU’s Faculty Organization or its Academic Senate or grants governing authority to these groups. The Board did not formally create or ratify the existence of the Academic Senate; rather, the Faculty Organization formed itself and is a self-governing body. The AGO also noted that, while the OPMA specifically applies to Associated Students of EWU (see RCW 42.30.200), it does not specifically apply to faculty bodies like the Academic Senate.

Acts on Behalf

The AGO then looked to whether the Academic Senate acts on behalf of the Board by exercising “actual or de facto decision-making authority on behalf of the governing body.” The Board has delegated to the university president the authority to adopt academic policy changes recommended by the Academic Senate. While the president rarely rejects the academic policies proposed by the Academic Senate, the Academic Senate’s actions are ultimately recommendations, not final decisions. Therefore, the AGO concluded that the Academic Senate does not have actual or de facto decision-making authority.

2021

Fire protections districts must provide fire and emergency services to all persons and property within its boundaries, including property within the borders of a federally recognized tribe’s reservation. Tribes are charged a negotiated fee for services; the fee cannot be unilaterally imposed by the district.

AGO 2021 No. 3 – The boundaries of a fire protection district may include areas within the reservation of a federally recognized Indian tribe and once the county legislative authority approves creation of the district and establishes its boundaries, RCW 52.02.060 prohibits the district from excluding land within those boundaries from the district. The district is authorized under RCW 52.30.080 to enter into an agreement with tribes for service to tax-exempt tribal property but there is no authority for the district to decline service in the alternative. There is no limit or standards for the amount charged, but incentives exist for districts and tribes to reach agreement on the compensation amount. Further, districts do not have authority to unilaterally impose a fee for fire and emergency services on a tribe; the remedy is to withdraw the territory from the district and the tribe can then enter into an agreement with another district or establish its own fire protection services. Finally, under RCW 52.12.031(4), a different fire protection district can provide services within another district if both districts enter into a contract for that purpose.

While counties may intervene in the process of releasing or placing in a less restrictive alternative (LRA) a person that has been involuntarily committed, the county may not categorically prohibit or block a committed person’s release or LRA placement.

AGO 2021 No. 4 – People may be involuntarily committed for a variety of reasons under state law; once committed, the person has certain constitutional and statutory rights to be considered for treatment in a less restrictive setting than total confinement. The State must create a conditional release or discharge plan for those committed; one option is to receive treatment in a less restrictive alternative (LRA) setting, such as an adult family home, an enhanced services facility, or a secure community transition facility. County prosecutors may participate in the release or LRA process by, for example, intervening in a motion to modify a commitment that includes an LRA or petitioning for or participating in a hearing prior to their release. State law does not, however, permit the county or other local government to categorically prohibit the placement of a committed person. Adoption of such a prohibition by a local government would conflict or could violate the following: (1) the State’s exclusive authority over placement of sexually violent predators; (2) the prohibition in the Americans with Disabilities Act (ADA), Rehabilitation Act, Federal Fair Housing Act (FFHA), Washington Law Against Discrimination (WLAD) and Women's Health Protection Act (WHPA) against intentional discrimination against or having a disparate impact on people with disabilities (which would include those involuntarily committed); and (3) the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the privileges and immunities clause of the state constitution.

The mere presence of signature gatherers in a public plaza is not likely to constitute use of city facilities implicating RCW 42.17A.555. The city may prohibit signature gathering on its property, so long as it does so consistently with First Amendment and other applicable legal principles.

Informal Opinion (4/8/2021) – Regarding Initiative Signature Gathering and RCW 42.17A.555, from Assistant Attorney General Debra Lefing to Senator Mona Das

Conclusion: RCW 42.17A.555 prohibits the use of public facilities directly or indirectly for the promotion of or opposition to any ballot proposition, including initiative propositions. The Public Disclosure Commission has construed "use of facilities" as constituting or resulting in measurable expenditure of public funds or such uses which have a measurable dollar value. Facilities under the statute "include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency." Citing State v. Larson, 184 Wn.2d 843 (2015), the AGO Opinion notes: "[T]he statutory phrase "including but not limited" generally indicates that additional items not listed are included only when they are similar to the specific items listed."

Based on the list in RCW 42.17A.555, the AGO opinion opines that mere presence of persons on public property is not use of public facilities; further, there is no measurable dollar value attached to the presence of signature gatherers on city property. Even if their presence is "use of facilities," it can be permitted under RCW 42.17A.555 if it is "part of the normal and regular conduct of the office or agency." The AGO opines that signature gathering on a public plaza is likely to meet the normal and regular conduct exception if the city allows other political activity and public expression on the property.

Signature gathering is an expressive activity under the First Amendment and the city’s ability to prohibit signature gathering on city property depends on whether the city property is a traditional or intentional public forum. If it is, any restriction on signature gathering must pass heightened scrutiny. This is a fact specific exercise, and there is no black and white answer to this question.

Engineers may not stamp and sign architectural drawings on building permits.

AGO 2021 No. 2 – May an engineer stamp and sign architectural drawings for submission for building permits?

Conclusion: RCW 18.08.370(2) requires that architects sign and seal or stamp their architectural drawings submitted in support of an application for a building permit. Certain activities as set forth in RCW 18.08.410 are exempt from the scope of the practice of architecture; however, the exemption allowing an engineer to stamp and sign architectural drawings was removed in 2010. Therefore, engineers may not stamp architectural drawings for submission to building officials for permits.

Status of elected officials as employees under Washington’s Paid Family and Medical Leave Act

AGO 2021 No. 1 – Addresses whether state, county and elected officials qualify as employees under Washington’s Paid Family and Medical Leave Act and whether they are subject to withholding of premiums under the Act.

Conclusion: Yes. The Paid Family and Medical Leave Act excludes four categories of people from the Act; elected officials are not an excluded category, although they are excluded from the Employment Securities Act and the Minimum Wage Act. In addition, the Act defines “employment” to mean “personal service” of any nature, which courts would likely apply as whether the state and local governments receive a benefit from the service of elected officials. These both suggest that elected officials should be considered employees under the Act. Therefore, state and local governments may collect the statutorily-defined portion of the premium from the elected official’s wages and the government is required to pay the balance of the insurance premiums.

2020

None identified as relevant.

2019

Eligibility of County Commissioners for Appointment to Vacant State Legislative Positions

AGO 2019 No. 6 – Addresses whether county commissioners and councilmembers may be appointed to fill vacant state legislative positions.

Conclusion: Yes. Although the members of the county legislative body select the individual who will be appointed to a state legislative vacancy, nothing in the state constitution, state statute, or common law rule in Washington prohibits sitting commissioners or councilmembers from being eligible for the appointment. The opinion notes, however, that ethical restrictions, including RCW 42.23.070, “would prohibit councilmembers from deliberating or voting in an appointment process in which they were a nominee.”

Consent of County Prosecuting Attorney for Appointment of Outside Counsel

AGO 2019 No. 4 – Addresses whether a county prosecuting attorney must consent to use of outside counsel to represent the county under a joint self-insurance program.

Conclusion: Yes. Statutory and constitutional provisions restrict entities other than the prosecuting attorney from representing a county or delegating this representation; therefore, a self-insurance program cannot delegate use of outside counsel for the county without the prosecutor’s consent. Under case law discussed in the opinion, counties may employ outside counsel in three circumstances: (1) when the prosecuting attorney is unable to perform their duties; (2) when the office is vacant; or (3) when the prosecuting attorney consents. Advising and defending the county and county officials are core functions of the prosecuting attorney; the legislative branch cannot interfere with these core functions and the appointment of outside counsel “implicates the electorate’s constitutional right to choose who provides the services of county prosecuting attorneys.” Although state law authorizes counties to form joint self-insurance programs and allows those programs to contract for legal counsel for legal services, these statutes must be read in harmony with the statutes governing delegation of prosecuting attorney responsibilities. Therefore, prosecuting attorney consent is required for the appointment of counsel to defend or advise counties pursuant to a joint self-insurance program.

The Public Records Act Prohibition Against Disclosing Lists of Individuals as Applied to Property Tax Information

AGO 2019 No. 3 – Addresses whether the Public Records Act prohibition against providing a list of individuals for a commercial purpose applies to electronically-stored property assessment and tax data.

Conclusion: Yes. The Public Records Act commercial purpose prohibition provides that agencies shall not provide access to lists of individuals requested for a commercial purpose. In concluding that this prohibition applies to county property tax information, the opinion distinguished a 1980 AGO opinion (AGO 1980 No. 1), which concluded that static, hard copy real property tax information does not constitute lists of individuals because the tax information primarily listed properties, not individuals. Today, however, property tax information is retained in electronic databases that can be sorted to display lists of individuals; a request for electronic records of property tax information that can be sorted to display lists of individuals implicates the prohibition. It is proper for agencies to redact the individuals’ names from the tax assessment information and provide the redacted records without violating the prohibition. If the names cannot be redacted, agencies should determine whether they can provide customized access to provide the information without violating the prohibition.

2018

Application of the Open Public Meetings Act to Ferry Advisory Committees

AGO 2018 No. 2 – Addresses whether ferry advisory committees and the Ferry Advisory Executive Committee are subject to the Open Public Meetings.

Conclusion: Ferry advisory committees are subject to the Open Public Meetings Act (OPMA) because they are treated as subagencies and their input is a necessary prerequisite to certain decisions of the Department Transportation (DOT) and the Transportation Commission.

In contrast, the Ferry Advisory Executive Committee is not subject to the OPMA.  There are 13 ferry advisory committees, all in western Washington. By statute, the chairs of the several committees constitute an executive committee “of the Washington state ferry users” and meet twice each year “with representatives of the marine division of the department [DOT] to review ferry system issues.”  See RCW 47.60.310(5).

The ferry advisory committees are local committees appointed by local government officials that advise DOT and the Transportation Commission regarding the operation of specific ferry routes. DOT must consult with the ferry advisory committees in developing its ferry fare rate proposal for the commission and before changing ferry service levels.  Thus, advice of the ferry advisory committees is required by law and they are subagencies subject to the OPMA.  The Ferry Advisory Executive Committee is not subject to the OPMA because there is not a similar legal requirement for DOT or the Transportation Commission to consult it before taking action.

Authority of Mosquito Control Districts to Assess State Owned Property

AGO 2018 No. 1 – Addresses whether a mosquito control district has authority to assess state owned property.

Conclusion: No, mosquito control districts lack the authority to levy assessments against property owned by the state because state-owned property is not expressly identified in RCW 17.28.255.  Under case law discussed in the opinion, the rule for subjecting state-owned property to a special assessment is different than the rule for other publicly owned property. For state-owned property there must be a constitutional or statutory provision explicitly including state property and the property must be specially benefitted by the improvements. Other publicly owned property is subject to assessment as long as it is not expressly excluded by statute and the property is specially benefitted by the improvement. See AGO 2003, No. 9.

2017

Confidentiality of Information Learned in Executive Session

AGO 2017 No. 5 – Addresses four questions relating to whether information learned in an executive session is confidential.

  1. Are the members of the governing body of a public agency prohibited by the Open Public Meetings Act from disclosing information shared during executive sessions that are properly called under the Open Public Meetings Act? Yes. Participants in an executive session have a legal duty under the OPMA to hold in confidence information that they obtain in the course of a properly convened executive session, but only if the information at issue is within the scope of the statutorily authorized purpose for which the executive session was called.
  2. Are the members of the governing body of a public agency prohibited by the Code of Ethics for Municipal Officers from disclosing information shared during executive sessions that are properly called under the Open Public Meetings Act? Yes. RCW 42.23.070(4) prohibits a municipal officer from disclosing confidential information learned in an executive session or otherwise using such information for personal gain. The term “confidential information” for purposes of RCW 42.23.070(4) therefore means: “(a) specific information, rather than generalized knowledge, that is not available to the general public on request or (b) information made confidential by law.” RCW 42.52.010(5).
  3. If the law prohibits public officials from disclosing information exchanged during executive sessions, would a violation of that prohibition constitute a misdemeanor under RCW 42.20.100 and/or “official misconduct” under RCW 9A.80.010? It is conceivable that facts could arise under which the disclosure of information learned in an executive session under the OPMA might constitute a misdemeanor under one or the other of the cited statutes. But such cases would be difficult to prove and should rarely arise.
  4. Under what circumstances, if any, may the governing body of a public agency exclude an elected member from executive session because of concerns about confidential information? A governing body may ask a court to enforce the confidentiality of an executive session through a writ of mandamus or injunction, pursuant to RCW 42.30.130. It is unlikely that a governing body would ordinarily have the authority to exclude one of its members from attending an executive session without such an injunction, but we do not rule out the possibility that some governing bodies may be authorized to do so pursuant to the statutes or local charters under which specific governing boards may operate.

Legislative Authority of a Governing Body to Hold Regular Meetings By Telephone or Video Conference Call

AGO 2017 No. 4 – Addresses whether a governing body of a public agency can, under the Open Public Meetings Act (OPMA), conduct a public meeting exclusively by telephone (or video) conference call.

It concludes that yes, a governing body may conduct a properly-noticed public meeting exclusively via telephone or video conference call so long as the conference call is broadcast over a speakerphone or similar technology at a set location where the public can attend and listen to the proceedings without difficulty and the technology used permits the public to participate as needed in the meeting. Even though the opinion analyzes a state governing body, the AGO’s opinion applies equally to governing bodies of local governments.

Designation and Compensation of Unclassified Employees of the County Sheriff’s Office

AGO 2017 No. 3 – Addresses fourteen questions relating to unclassified service in county sheriffs’ offices. The opinion provides the following paraphrased questions and answers:

  1. Does RCW 41.14.140 apply to the unclassified service (exempt) positions authorized by RCW 41.14.070? Yes. RCW 41.14.140 applies to positions “within the purview” of chapter 41.14 RCW. The designation of positions as unclassified is authorized by RCW 41.14.070, and are therefore within the purview of that chapter. This does not mean that chapter 41.14 RCW applies to classified and unclassified positions in the same ways, however.
  2. Does the creation of new unclassified service (exempt) positions pursuant to RCW 36.16.070 and RCW 41.14.140 require the county commissioners’ consent? See answer to question 3.
  3. Does RCW 41.14.070 require the county commissioners’ consent for the county sheriff’s designation of specific positions as unclassified service (exempt)? Questions 2 and 3 are closely related, and we combine our answers to them. We conclude in response to question 2 that the creation of new positions in the sheriff’s office requires the consent of the county commissioners. We also conclude in response to question 3 that the county commissioners’ consent is not required when the sheriff designates specific positions as unclassified. The distinction between these two answers is that question 2 addresses the decision to create new positions, while question 3 relates to the choice of which positions will be unclassified.
  4. If the sheriff, with the consent of the civil service commission, makes changes to the job titles and job descriptions of one or more of the already existing unclassified service positions authorized by RCW 41.14.070, are such new job titles and job descriptions subject to the “consent” of the county commissioners under RCW 36.16.070 or RCW 41.14.070? No. The statute does not contemplate the involvement of the county commissioners in the sheriff’s modifications to job titles and job descriptions of preexisting unclassified positions.
  5. Does the answer to question number 4 depend on whether the change in job title or job description may result in a salary adjustment to the position? No. Neither RCW 41.14.070 nor RCW 36.16.070 suggest that a resulting salary adjustment would make a change in job title or job description subject to county commissioner consent.
  6. If an adjustment to salary is required, are the county commissioners still required to “fix the compensation” pursuant to RCW 36.16.070? Yes. RCW 36.16.070 vests the authority to fix compensation in the county commissioners. RCW 41.14.140 does not deprive the commissioners of that authority or vest it in the sheriff.
  7. If the creation, selection, or change in job title or job description does require the “consent” of the county commissioners, what factors may the commissioners consider, in light of the holdings of Osborn v. Grant County, 130 Wn.2d 615, 926 P.2d 911 (1996), and Crossler v. Hille, 136 Wn.2d 287, 961 P.2d 327 (1998)? We concluded in response to question 2, 3, and 4 that the consent of the county commissioners is required for the creation of positions, but not for the selection of unclassified positions or for changes in the job titles or job descriptions of such positions. Neither Osborn nor Crossler address the creation of new positions, and therefore those decisions are inapplicable.
  8. If the county commissioners have set compensation for an unclassified position previously, may the sheriff pay an individual less than the compensation the county commissioners have set? No. Having concluded in response to question 6 that the county commissioners fix the compensation, the sheriff is precluded from paying less.
  9. Are there any “deputy” positions in any of the county elected offices that RCW 36.16.070 would not apply to? We concluded in response to question 6 that RCW 36.16.070 applies to the sheriff’s office. We have not identified any statute that would exempt other county offices from it.
  10. Does the holding in Crossler v. Hille, 136 Wn.2d 287, 961 P.2d 327 (1998), change the analysis in AGO 1982 No. 8? No. Crossler does not change our analysis in AGO 1982 No. 8.
  11. Are the county commissioners required by statute to fund an unclassified service position in the sheriff’s office created by RCW 41.14.070? No. By determining the total staff positions for the sheriff’s office, the county commissioners also affect the number of those positions that the sheriff can designate as unclassified under RCW 41.14.070. It might ordinarily follow that by providing for a certain number of staff positions the commissioners also commit themselves to funding the number of unclassified positions that follow from that decision. We see nothing in statute, however, that would affirmatively obligate the county commissioners to fund every otherwise-authorized position in any particular budget cycle.
  12. Do the county commissioners or the civil service commission have the authority to review job descriptions for unclassified service positions in the sheriff’s office created by RCW 41.14.070 before they can be filled? No. State law makes no provision for the county commissioners or the civil service commission to review job descriptions for unclassified positions before the positions may be filled.
  13. Do the budget authority of the county commissioners and the limitations imposed on county officials in RCW 36.40.100 supersede the ability of the sheriff to create or rename an unclassified service position in the sheriff’s office created by RCW 41.14.070? No. RCW 36.40.100 prohibits all county officers, including the sheriff, from spending in excess of the budget adopted by the county commissioners under RCW 36.40.080. While the sheriff’s office is limited by an overall budgetary cap, nothing in RCW 36.40.100 supersedes the authority vested in the sheriff by RCW 40.14.070 to designate unclassified positions.
  14. Does a budget adopted pursuant to RCW 36.40.080 that includes job descriptions in the line items require a hearing and amendment approved by the county commissioners before adopting any changes in job descriptions proposed by the head of that county department, such as the sheriff’s office? No. We concluded in response to question 12 that neither RCW 36.16.070 nor RCW 41.14.070 vest authority in the county commissioners to write job descriptions for specific positions. The county commissioners may not vest themselves with that authority by writing job descriptions into budget items.

Use of Race- or Sex-Conscious Measures or Preferences to Remedy Discrimination in State Contracting

AGO 2017 No. 2 – Addresses whether Initiative 200 (I-200) prohibits the state from implementing race- or sex-conscious measures to address well-documented and significant disparities in the public contracting sector.

It concludes that I-200 does not categorically prohibit all race- and sex-conscious actions regarding state contracting. I-200 draws a distinction between (1) preferences that have the effect of using race or gender to select a less qualified contractor over a more qualified contractor, and (2) race- or sex-conscious measures that do not have that effect. I-200 conditionally prohibits the former, with important exceptions, but does not prohibit the latter. AGO 2017 No. 2 then draws the following three conclusions in response to the question presented:

  1. I-200 prohibits only situations in which government uses race or gender to select a less qualified contractor over a more qualified contractor. We use the word “preference” to describe such measures. It does not prohibit measures that, although race- or sex-conscious, do not use race or gender to select a less qualified contractor over a more qualified contractor. This category of measures that are not prohibited is open to innovation, but examples could include aspirational goals, outreach, training, use of race or gender as a tiebreaker between equally qualified contractors, and similar measures that do not cause a less qualified contractor to be selected over a more qualified contractor. RCW 49.60.400(1).
  2. Under very narrow circumstances, I-200 may allow agencies to use preferences based on race or gender that may elevate a less qualified contractor over a more qualified contractor. Such circumstances could arise based upon evidence of discrimination in state contracting that cannot be resolved through race- or sex- neutral means. We do not suggest that a statistical disparity documented through a valid disparity study is necessarily sufficient to justify the use of a preference. We do conclude, however, that evidence of discrimination in state contracting that race- or sex-neutral measures are insufficient to remedy, may justify the use of a race- or sex-conscious preference to remedy that disparity. RCW 49.60.400(1), (3).
  3. Finally, we conclude that agencies may employ preferences based on race or gender when necessary to avoid losing eligibility for programs providing federal funds. RCW 49.60.400(6).

Eligibility of Counties to Receive State Fuel Tax Revenues under the Rural Arterial Program

AGO 2017 No. 1 – Addresses whether counties lose eligibility to participate in the rural arterial program if the county chooses to divert revenues from the county road levy to pay for (1) civil or criminal traffic prosecutions, (2) court costs of adjudication, (3) indigent defense, (4) incarceration, or (5) coroner activities.

It concludes that yes, a county would lose its eligibility to participate if it diverted revenue for such purposes. Specifically, it concludes that incarceration and coroner activities are not road purposes under article 2, section 40 of the State Constitution. Similarly, it states that costs related to prosecution, adjudication, and indigent defense of traffic offenses present a closer question, but it concludes that it is most likely that these would also not be considered road purposes under the Washington Constitution and RCW 36.79.140.

2016

Whether the same person may hold the offices of school director and planning commissioner at the same time

AGO 2016 No. 7 – It concludes:

  1. Although it is an extremely close question and could depend on the facts of a particular situation, the offices of school director and planning commissioner are likely incompatible, and so the same person may not hold both offices at the same time.
  2. The same person is not precluded from holding both the offices of school director and planning commissioner by any rule against a conflict of interest.
  3. The appearance of fairness doctrine does not per se prohibit the same person from holding the offices of school director and planning commissioner at the same time, but might disqualify such a person from participating as a planning commissioner in hearing a quasi-judicial matter involving the school district that the same person serves as a school director.

Regulatory authority of the Department of Fish and Wildlife under the hydraulic project approval process related to activities above the ordinary high water line

AGO 2016 No. 6 – It concludes that:

The regulatory authority of the Department of Fish and Wildlife to require hydraulic project approval is not limited to activities conducted at or below the ordinary high water line. It includes authority over work “that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” Fixing a precise limit to the department’s authority above the ordinary high water line is impossible in the abstract; whether a particular project is subject to hydraulic project approval will depend on the facts in the given situation. 

Whether a municipality creates indebtedness when it enters into a lease purchase agreement as part of a performance-based energy contract

AGO 2016 No. 2 – It concludes that:

An equipment lease purchase agreement under which a municipality is not required to make payments entered into by a municipality relating to a performance-based energy contract under chapter 39.35A RCW would likely not constitute indebtedness for purposes of the municipality’s constitutional debt limit, though each lease would need to be analyzed on its specific facts. Such a lease likely would, however, create debt for purposes of the municipality’s statutory debt limit, depending upon the statutory treatment of the municipality and the specifics of the agreement.

Authority of code cites to modify the system for electing city councilmembers to comply with the federal Voting Rights Act

AGO 2016 No. 1 – It concludes:

  1. State law allows a code city to divide into wards for use at the primary for nominating candidates for the city council but requires that all city council members be elected at large at the general election.
  2. A code city may choose to use wards for both nominating candidates in the primary and for electing city council members at the general election if, but only if, the city has a strong basis in evidence for concluding that section 2 of the federal Voting Rights Act compels the city to do so.

2015

Authority of counties to provide by charter for the prosecuting attorney to be elected as a nonpartisan office

AGO 2015 No. 6 – It concludes that "Article 11, section 4 of the Washington Constitution does not prohibit a county from providing in its charter for the election of the prosecuting attorney as a nonpartisan office."

Petitions to establish city library in a city annexed to a rural library district

AGO 2015 No. 5 – It concludes:

  1. A taxpayer petition does not trigger an election under RCW 27.12.030 on whether to establish a city library when the city is annexed into a rural library district.
  2. A proposal for a city to withdraw from a rural library district may be placed before a city's voters at the discretion of the city council.
  3. Under RCW 35A.01.040(9), where petitions are to be signed by the owners of property, it is the county assessor who determines the petition's sufficiency.

Accepting a person into custody who voluntarily surrenders pursuant to an arrest warrant constitutes an arrest

AGO 2015 No. 4 – It concludes:

  1. Accepting a person into custody who voluntarily surrenders pursuant to an arrest warrant constitutes an arrest.
  2. Only a commissioned Washington law enforcement officer with the power to enforce criminal laws may arrest a person who voluntarily surrenders pursuant to an arrest warrant.

Authority of certain second class cities to transfer surplus funds from their utility accounts to the current expense funds

AGO 2015 No. 3 – It concludes:

  1. A city subject to RCW 35.23.535 may transfer excess income from its utility fund to its current expense fund.
  2. The annual charge under RCW 35.23.535 paid from a city’s utility fund to the current expense fund authorizes a city to recover costs not accounted for in direct repair, replacement, interest, or depreciation charges.
  3. Under RCW 35.92.050, a city has authority to determine its utility rates. If ratepayers challenged the rates in court, a court would review the rates under a deferential standard, but might reject rates it deems unreasonable, arbitrary, or capricious.

Authority of counties to allow the use of off-road vehicles and wheeled all-terrain vehicles

AGO 2015 No. 2 – It concludes that:

RCW 46.09.360 authorizes counties to designate roads or highways to be suitable for use by off-road vehicles, but excludes wheeled all-terrain vehicles from this authority. Counties derive authority to authorize the use of wheeled all-terrain vehicles under RCW 46.09.455, which applies only to roads with speed limits of 35 miles per hour or less. County authority to authorize the use of wheeled all-terrain vehicles is therefore limited to roads with speed limits of 35 miles per hour or less.

2014

Issue of video and audio recording of communications between citizens and law enforcement officers using body cameras attached to police uniforms

AGO 2014 No. 8 – It concludes:

  1. The Washington Privacy Act, chapter 9.73 RCW, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.

Whether a county legislative authority can meet outside the county to hold a joint meeting with another county’s legislative authority

AGO 2014 No. 7 – It concludes that "[a] county legislative authority may not meet outside of its county in order to hold a joint meeting with the legislative authority of another county unless a specific exception applies, but the legislative authorities may conduct joint meetings using video conferencing."

Whether a criminal conviction in a foreign country disqualifies an applicant from obtaining a concealed pistol license

AGO 2014 No. 6 – It concludes:

  1. An individual who has been convicted in a foreign country of a crime that is comparable to a felony under Washington law is prohibited from possessing a firearm in Washington and, accordingly, is ineligible for a concealed pistol license.
  2. An issuing authority is prohibited from issuing a concealed pistol license to any applicant with a foreign conviction comparable to a Washington felony.

Organization's immunity from liability for acts of covered volunteer emergency workers

AGO 2014 No. 3 – It concludes that "[a]n organization that sponsors a team of its members to act as covered volunteer emergency workers is immune from liability under RCW 38.52.180(3)(d) or (f) only if the organization is the employer of the covered volunteer emergency workers or is a local organization (created by a county, city, or town) that registered the covered volunteer emergency workers."

Whether the statewide initiative (Initiative 502) establishing a system for licensing marijuana producers, processors, and retailers preempts local ordinances

AGO 2014 No. 2 – It concludes:

  1. Initiative 502, which establishes a licensing and regulatory system for marijuana producers, processors, and retailers, does not preempt counties, cities, and towns from banning such businesses within their jurisdictions.
  2. Local ordinances that do not expressly ban state-licensed marijuana licensees from operating within the jurisdiction but make such operation impractical are valid if they properly exercise the local jurisdiction’s police power.

Process for appointing a new county prosecuting attorney to fill a vacancy

AGO 2014 No. 1 – It concludes:

  1. If the county commission appoints a person to fill a vacancy in the office of county prosecuting attorney within 60 days of the vacancy occurring, but the appointee declines to accept the position, the authority to fill the vacancy does not transfer to the governor 60 days after the initial vacancy arose.
  2. If an individual appointed by a county commission to fill a vacancy in the office of county prosecuting attorney declines to accept the position, the county commission may request that the relevant political party provide a new list of three nominees.
  3. The county commission lacks the authority to appoint a person who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney.
  4. If the county commission appoints an individual who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney, that individual lacks the legal authority to act as prosecuting attorney.

Last Modified: April 01, 2024