SUBJECTS › LEGAL › Recent Attorney General Opinions of Interest to City and County Officials

Updated 4/23/08

Recent Attorney General Opinions of Interest to Local Government Officials

The following recent formal opinions from the Attorney General's Office may be of interest to you. (This is not a complete list of all new AGOs that affect cities, counties, and special districts in the State of Washington, but is a selection of highlights. The full text of these opinions can be found through the links below or at the Attorney General's Office Web site.)

AGO 2008 No. 6 - addresses the authority of a city, county, and university to enter into an interlocal agreement to provide services concerning the potential effects of climate change. It concludes that they have the authority to enter into an interlocal agreement under which the city would contract to use the services of the university’s extension program with the county to provide educational programs and other services concerning the potential effects of climate change.
AGO 2008 No. 5 - addresses the authority of a county health board to order fluoridation of a water supply system. It concludes:

A county health board may lawfully order the fluoridation of a water supply system owned and operated by a public utility district and located within the county’s jurisdiction.
Subject to constitutional requirements, a county health board may lawfully order a public utility district to fluoridate a discrete portion of the PUD’s water supply system.
A county health board may enact a regulation requiring the fluoridation of water supply systems generally but, subject to constitutional requirements, a generally applicable regulation is not prerequisite to the issuance of enforcement orders on the subject.
A county health board may lawfully order the fluoridation of a water supply system where the order is contingent upon a third-party source of funding for the fluoridation process.

AGO 2008 No. 3 - addresses the effect of multi-year levy lid lift on the calculation of a taxing district’s levy lid in years subsequent to those covered by the lid lift. It concludes that, if a taxing district gains voter approval for a multi-year property tax levy lid lift as permitted by RCW 84.55.050 and does not specify that the levy is for a limited period of time or for a limited purpose, subsequent levy lids will be calculated using the actual amount levied by the district in the final year of the period covered by the levy lid lift, adjusted thereafter by the statutory limit factor and by any additional factors applicable under the law.
AGO 2008 No. 1 - concludes as follows:

The Growth Management Act (GMA) does not apply directly to a site-specific decision such as siting a wetlands mitigation bank, although the GMA applies to the development regulations and comprehensive plans.
Certification of a wetlands mitigation bank by the Department of Ecology does not legally obligate a county to issue required permits for the bank.
The Department of Ecology’s certification of a wetlands mitigation bank does not make the GMA or the State Environmental Policy Act (SEPA) inapplicable.
The substantive provisions of the GMA do not apply to the Department of Ecology’s certification of a wetlands mitigation bank.

AGO 2007 No. 6 - addresses the “employer” status for retirement system purposes of a nonprofit corporation formed by cities and fire protection districts to carry out cooperative functions under the Interlocal Cooperation Act. It concludes that, where a combination of cities and fire protection districts enters into an interlocal agreement under chapter 39.34 RCW and forms a nonprofit corporation under the authority of that act to carry out cooperative activities, the corporation would qualify as an “employer” to the same extent as the government entities responsible for creating the corporation for purposes of: (1) the LEOFF Retirement System Plans 1 and 2; (2) the PERS Retirement System Plans 1, 2, and 3; and (3) the Volunteer Fire Fighters’ and Reserve Officers’ Relief and Pensions Plan.
AGO 2007 No. 2 - addresses whether cities and towns lying within an Indian reservation are subject to assessment for expenses of an air pollution control authority. It concludes that, where an air pollution control authority is coterminous with a county, and portions of the county are within an Indian reservation, and the EPA directly sets air quality standards within the reservation pursuant to federal law, cities and towns lying within the reservation are still fully subject to property taxation and statutory assessments for the expenses of the air pollution control authority.
AGO 2007 No. 1 - addresses the extent to which hydraulic project approval permits or shoreline substantial development permits are required for the planting, growing, and harvesting of farm-raised geoduck clams. It concludes:

The Department of Fish and Wildlife may not require hydraulic project approval permits under RCW 77.55.021 to regulate planting, growing, or harvesting of farm-raised geoduck clams by private parties.
The planting, growing, and harvesting of farm-raised geoduck clams require a substantial development permit under the Shoreline Management Act if a specific project or practice would cause substantial interference with normal public use of the surface waters, but not otherwise.
Where a geoduck clam culture project would require a substantial development permit, the local government and the Department of Ecology would have a variety of enforcement options available; in some cases, conditional use permits might also be used to regulate this practice.

AGO 2006 No. 19 - addresses whether certain payments to current firefighters are “basic salary” for purposes of calculating pensions under chapter 41.18 RCW, the Firemen’s Relief and Pensions Act of 1955. It concludes that an increase in salary generally payable to all current firefighters, such as additional payment to all firefighters for qualifying as EMTs, is “basic salary” for purposes of calculating the pensions of firefighters retired under chapter 41.18 RCW; by contrast, employer contributions to a deferred compensation plan would not meet the “basic salary” definition of the same statute.
AGO 2006 No. 18 - addresses the effect on a city and county if the city chooses not to impose the optional sales and use tax authorized by RCW 82.14.030(2). It opines:

If a city has chosen not to impose the optional sales and use tax authorized by RCW 82.14.030(2), and the county in which the city is located has chosen to impose the same tax, the revenue from the tax would go to the county.
If a city chooses to impose a local real estate excise tax authorized by RCW 82.46.010 in lieu of the optional sales and use tax authorized by RCW 82.14.030(2), the city may not arrange for the county to continue to pay the city a portion of the revenue from the optional sales and use tax, unless the city and county have entered into a local service agreement under chapter 36.115 RCW.

AGO 2006 No. 17 - addresses the extent of the Department of Ecology’s discretion in reviewing decisions of local water conservancy boards. It concludes:

In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not limited to reviewing the record established by the water conservancy board but may base its decision upon an independent factual investigation.
In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not required to: 1) defer to the water conservancy board’s findings of fact, or 2) defer to the board’s interpretation of the law.
A water conservancy board, in making a decision concerning a water right transfer application, is not legally required to follow policies or guidelines of the Department of Ecology which have not been adopted as statutes or administrative rules; however, the Department of Ecology may refer to and follow its own policies or guidelines in reviewing the local board’s decision.

AGO 2006 No. 12 - concerns the authority of a county to use sales tax revenue to provide housing for persons of low and moderate income. It concludes:

RCW 82.46.075 authorizes a county to impose certain sales and use taxes for the purpose of providing affordable housing for persons of low and moderate income; it does not violate the constitutional provisions against gifts and lending of credit to provide housing assistance to persons or households whose incomes could reasonably be described as “low” or “moderate.”
RCW 82.46.075 authorizes a county to develop criteria for eligibility for housing programs funded through the sales tax authorized by the statute; the statute is broad enough to permit a county to provide a preference to public employees if the county can show that such a preference will further the statutory purpose of the program.

AGO 2006 No. 11 - addresses including the cost of tort liability in a city/county agreement concerning allocation of criminal investigation and prosecution costs.

When negotiating an interlocal agreement under RCW 39.34.180(2), a city and a county may include, as a “cost of services,” costs related to anticipated tort liability resulting from the agreement.
When negotiating an interlocal agreement under RCW 39.34.180(2), a city and a county may lawfully include a provision in which the city or the county agrees to hold the other harmless for tort liability arising out of the agreement, except for liability resulting from intentional injuries.

AGO 2006 No. 9 - addresses the effect on a fire protection district’s taxing authority of annexing part of the district into a code city. It conludes that, if a fire protection district issues non-voted, limited tax general obligation bonds and if a portion of the district is subsequently annexed by a code city, the fire protection district retains the authority to levy a tax on property in the annexed area for the purpose of repaying its existing bond obligations.
AGO 2006 No. 8 - addresses the extent of a county’s authority to alter the budget and plan of assessments submitted by a conservation district. It concludes:

A county has the authority to modify a conservation district’s proposed system of assessments but lacks the authority to modify the proposed budget or plan of expenditure.
If a county modifies the conservation district’s proposed system of assessments, the district is bound to follow the system as modified by the county but may propose a different system the following year.
A conservation district may withdraw or modify its proposed budget and system of assessments after they have been submitted to the county, but any re-submittal must occur within the time deadlines and statutory requirements that are applicable.
Conservation district special assessments are statutorily earmarked for use by the district and are not available for use by the county for other purposes (RCW 89.08.400).

AGO 2006 No. 6 - addresses the applicability of Open Public Meetings Act when a quorum of the members of a governing body are present at a meeting not called by that body. It concludes that the presence of a quorum of the members of a city or county council at a meeting not called by the council does not, in itself, make the meeting a “public meeting” of that city or county council for purposes of the Open Public Meetings Act, chapter 42.30 RCW. The Open Public Meetings Act would apply if the councilmembers took any “action” as defined in RCW 42.30.020(3) at the meeting, such as voting, deliberating together, or using the meeting as a source of public testimony for council action.
AGO 2006 No. 4 - addresses the legality of certain uses of the lodging tax and of advance payment to private organizations for tourism promotion. It concludes:
1. A municipality lacks authority to allocate lodging tax revenue to operate a tourism-related facility in which the municipality has no ownership interest.
2. A municipality may not spend lodging tax revenue on operating expenses of special events and festivals designed to attract tourists where such events and festivals are operated by non-governmental entities.
3. A municipality may not provide advance payment to private organizations for tourism promotion; payment must occur after the services have been performed.
AGO 2006 No. 3 - addresses the right of teachers and other public employees to strike, and it concludes:
1. State and local public employees, including teachers, have no legally protected right to strike.
2. State law establishes no specific penalties for unlawful public employee strikes; in some cases, courts may grant injunctive relief to prevent or end unlawful strikes.
3. The Legislature could enact laws establishing penalties for unlawful public employee strikes, provided that such laws are consistent with protected free speech and other state and federal constitutional rights.
AGO 2006 No. 2 - addresses the extent to which shorelines should be designated as critical areas for purposes of the Growth Management Act (GMA), chapter 36.70A RCW. It concludes:
1. When a local jurisdiction designates critical areas under the GMA, it is not obligated to include, as designated critical areas, shorelines of statewide significance or other shorelines within the jurisdiction; however, the jurisdiction should designate those shorelines within the area, or portions of them, and meet the statutory criteria for designation as critical areas.
2. If a local jurisdiction determines that some of the shorelines within its area should be designated as critical areas under the GMA, that determination is subject to administrative and judicial review as provided in statute.
AGO 2006 No. 1 - addresses the authority of governing boards of special purpose districts to pass resolutions endorsing or opposing ballot propositions. It concludes that the governing bodies of special purpose districts lack authority to adopt motions or resolutions supporting or opposing ballot propositions. The Legislature has not granted such districts the authority to support or oppose ballot measures and, absent such authority, doing so would not constitute "normal and regular conduct."
AGO 2005 No. 18 - addresses the authority to operate off-road vehicles (ORVs) on public highways and roads. It concludes that:
1. A properly tagged ORV is not permitted to be operated along a public highway.
2. A county, city, or public subdivision of the state lacks the authority to permit ORVs to be operated within its boundaries, except on roads which meet the statutory definition of "nonhighway roads" in RCW 46.09.020(7).
AGO 2005 No. 14 - addresses the authority of a public facilities district to begin one project and later switch funding to other projects. It concludes that a public facilities district created under chapter 35.57 RCW may allocate properly collected sales and use tax revenues to one or more regional centers as the public facilities district determines appropriate, to the extent consistent with applicable interlocal agreements.
AGO 2005 No. 12 - examines the extent of authority of cities that have individually formed public facilities districts to also form a joint public facilities district with additional taxing authority. It concludes that a group of cities that have formed individual public facilities districts levying sales and use taxes under chapter 82.14 RCW may not also form a joint public facilities district with authority to levy additional taxes.
AGO 2005 No. 11 - considers the authority of growth management hearings boards to remand cases. It concludes:
1. The growth management hearings boards have no authority to remand a case back to a county or city for the purpose of amending its comprehensive plan or development regulations, except where the board has found the plan or regulations to be out of compliance with the Growth Management Act.
2. WAC 242-02-720, which deals with the procedure for dismissal of cases before the growth management hearings boards, is consistent with the statutory authority granted to the boards.
AGO 2005 No. 8 - addresses the issue of who has the financial responsibility for the costs of medical care provided to arrestees after detainment but before booking into jail. It concludes that the costs of providing medical care to a person arrested on a criminal charge but not yet booked or admitted to the jail fall (1) on the Department of Social and Health Services if some payment under chapter 74.09 RCW is available; or (2) on the arrestee personally, to the extent there are resources available; or (3) on whichever unit of government has agreed to assume these costs through an interlocal agreement; or (4) if there is no interlocal agreement, on the unit of government whose law enforcement officers initiated the charges.
AGO 2005 No. 5 - addresses the authority of a public library to charge fees and/or assess fines for keeping loaned materials beyond due date, and it concludes:
1. A public library organized under chapter 27.12 RCW may not charge "user fees" for public access to library materials.
2. A public library has authority to assess and collect reasonable fines as a penalty for keeping loaned library material beyond its due date.
AGO 2005 No. 4 - addresses the meaning of the term "elected legislative body" as used in RCW 42.17.130, which concerns the use of public office or agency facilities in campaigns. It states:
1. For purposes of RCW 42.17.130, which generally prohibits the use of public resources on election campaigns but contains an exception for certain acts of "elected legislative bodies," the term is limited to bodies composed entirely of persons elected by the people to serve on that body, and it does not include "mixed&" bodies of partly elected and partly appointed members or bodies composed of officers serving "ex officio" by virtue of their election to some other position.
2. The term "legislative" for purposes of RCW 42.17.130 is restricted to governing bodies with the power to enact general laws within a defined geographic area, such as the legislative bodies of counties, cities, and towns, and it does not include the governing bodies of districts created for special purposes.
AGO 2005 No. 2 - addresses the authority of a county to impose procedural requirements on the recording of property boundary disputes resolved by agreement. It concludes:
1. RCW 58.04.007 permits property owners to resolve uncertain or disputed property boundaries when the boundary line cannot be ascertained through a reference to public records or physical landmarks, or where there is an actual dispute between landowners about the location of the boundary line.
2. A charter county has authority to implement and facilitate the operation of RCW 58.04.007 by prescribing procedures to be followed in recording written agreements concerning the resolution of unknown or disputed boundary lines, including requirements for county review of documents presented for recording where the county provisions are not in conflict with statutory law.
AGO 2005 No. 1 - addresses the authority of a county to donate land and buildings to a nonprofit corporation operating programs for the developmentally disabled. It concludes that when a noncharter county has acquired land and/or buildings with funds derived from chapter 43.83D RCW (Referendum 29) and/or chapter 43.99C RCW (Referendum 37) and has leased the buildings to a nonprofit corporation operating programs for the developmentally disabled and the lease has expired, the county lacks statutory authority to donate the buildings and lands to the lessee.
AGO 2004 No. 4 - addresses the responsibility of a county jail to accept for booking persons arrested and presented at the jail by state patrol officers or other state employees with law enforcement powers. It concludes:
1. A county sheriff, as supervisor of the county jail, is required to accept arrestees presented at the jail for booking and housing pending disposition of charges, whether the arrestees are presented by county officers, by state patrol officers, or by other state employees with criminal law enforcement responsibilities.
2. The county sheriff does not have authority to (1) limit the hours during which the county jail will accept arrestees presented for booking by state officers, or (2) limit the number of arrestees that can be presented during a stated time period.
3. RCW 43.135.060 does not require the state to reimburse counties for the cost of booking or housing arrestees presented at the county jail by state patrol officers or other state employees, since this practice is neither a "new program" nor an "expansion of an existing program."
AGO 2003 No. 11 - addresses the authority of cities, towns, and counties to provide telecommunications services, and concludes that those counties and cities that have "home rule" powers (charter counties, first class cities, and code cities) have authority to provide telecommunications services to their residents; other cities, towns, and counties lack this authority.
AGO 2003 No. 10 - addresses the authority of a city to grant options to landowners when imposing development conditions pursuant to RCW 82.02.020. It concludes that, under RCW 82.02.020, a city may lawfully (1) require landowners seeking a building permit to install sidewalks, assuming the city can meet the standards set forth in the statute for imposing such a condition; and (2) offer landowners the option of deferring the installation of sidewalks for a reasonable time, and, at the end of the deferral period, offer landowners several options, including the option of paying the city a specified portion of the cost of installing sidewalks, the money to be used for right-of-way improvements in the city.
AGO 2003 No. 9 - addresses the extent to which city-owned property is subject to special assessment for operations of a mosquito control district. It opines that lands owned by a city, which are located within the corporate limits of the city and also within the boundaries of a mosquito control district, are subject to assessment by the district pursuant to RCW 17.28.255, to the extent that the city-owned lands receive a special benefit from the operation of the district.
AGO 2003 No. 6 - addresses application of the military leave statute, RCW 38.40.060, to elected officials. It opines that RCW 38.40.060, which provides fifteen days of military leave for state officers and employees who are subject to military duty, does not apply to elected officials, who are entitled to extended leave for military duty under RCW 73.16.041.
AGO 2003 No. 3 - addresses whether the recipient of a notice of traffic infraction is entitled to receive a copy of the infraction bearing the recipients own signature. The opinion concludes that the recipient of a "notice of traffic infraction" under chapter 46.63 RCW or a "traffic citation and notice to appear" under chapter 46.64 RCW must be served with a notice or citation that bears his or her signature, assuming the person signed the document.
AGO 2002 No. 6 - addresses the discretion of the county auditor to decide whether to deliver or electronically transmit a recorded document. It concludes that that RCW 65.04.090 grants a choice to the party presenting a document for recording to choose whether the record will be personally delivered or transmitted to the address on the face of the document. The county auditor is obligated to honor the choice made by the party in question.
AGO 2002 No. 4 - addresses when convicted persons are entitled to restoration of firearm possession rights. It concludes:
1. RCW 9.41.040 defines the circumstances under which a person convicted of a misdemeanor might lose the right to possess a firearm and the circumstances in which such a right might be restored.
2. If a person is convicted of a crime for which RCW 9.41.040 prescribes no procedure for the restoration of firearm possession rights, the only available statutory remedy is a pardon by the governor with a finding either of innocence or of rehabilitation.
AGO 2002 No. 2 - addresses the applicability of public records sections of chapter 42.17 RCW to associations comprised of counties, county officials, cities, and port districts (Washington State Association of Counties, the Washington Association of County Officials, Association of Washington Cities, and the Washington Public Ports Association). The opinion concludes that, while associations comprised of counties or local public officers are not "agencies" as defined in RCW 42.17.020, they could in certain circumstances be found to be "functional equivalents" of agencies for purposes of applying particular portions of the Public Disclosure Act; this would be dependent greatly on the facts of a particular case.
AGO 2002 No. 1 - addresses the authority of a rural county to use special sales tax revenues to pay for installation of fiber optic cable for privately-owned electrical utility. It concludes:
1. A county may not use revenue from taxes levied under RCW 82.14.370 to acquire or install fiber optic cable for a utility which provides cable service to the county but which is privately owned and operated.
2. RCW 82.14.370, in limiting the use of special sales tax revenue to "public facilities," does not specify the extent to which an operation might be jointly owned or operated in a public/private partnership and still remain a "public facility."