August 2020
IN THIS ISSUE
How many meetings can a town councilmember miss?

Do we have an obligation to produce records back to 1909 if the city still retains them?

Is overpayment to an employee a gift of public funds?

Can we include language in A/E contracts that could hold A/E firms accountable for the cost of design errors?

Can a city council increase or decrease the awards to recipients made by their lodging tax advisory committees?

Scroll down to read the answers

Officials and employees from eligible government agencies can use our free one-on-one inquiry service, Ask MRSC.
How many meetings can a town councilmember miss?

A town councilmember cannot miss three consecutive meetings without permission from the council. There are no other additional restrictions related to attendance set forth in state law. If a councilmember does miss three consecutive meetings without being excused, then the council can declare the position vacant and fill the position. See RCW 35.27.140. There is a similar provision for code cities at RCW 35A.12.060. (If you find yourself with a vacant council position, we have a helpful blog post that details how to fill that vacancy.)

The determination whether an absence is excused is at the discretion of the town council. State law does not dictate how the council’s decision should be made. And state law does not indicate how many absences from meetings can be excused. Your council rules may establish what constitutes an excused versus unexcused absence.

For excused absences, we recommend that each absence be excused by a vote of the council at the council meeting that is missed and the excused absence be reflected in the meeting minutes.
Do we have an obligation to produce records back to 1909 if the city still retains them?

Yes, even if public records are kept beyond applicable retention schedules or if they are kept permanently for historical purposes, they remain subject to records requests under the Public Records Act (PRA), and must be produced unless an applicable exemption or prohibition applies. RCW 42.56.100 prohibits destroying public records once they are subject to a pending PRA request.

If there is no pending record request, an agency can/should destroy or archive old records pursuant to the state record retention laws. Here is a link to the State Archivist’s retention schedules for Local Government Common Records Retention Schedule (CORE).

You may also be interested in reviewing the following MRSC resources:

Is overpayment to an employee a gift of public funds?

Yes, overpayment to an employee is a gift of public funds and should be recovered. State law sets forth a process for an employer to recover the overpayment of wages. See RCW 49.48.200. If recovery of the overpayment is made by deduction from future wages, the deductions cannot exceed 5% of the employee’s disposable earning in any pay period, other than the final pay period, unless the employee agrees to a greater deduction. For more information, see our 2015 blog article, What if We Accidentally Overpaid an Employee?
Can we include language in A/E contracts that could hold A/E firms accountable for the cost of design errors?

The process by which architects and engineers are selected is governed by Chapter 39.80 RCW, which we describe on our Architecture and Engineering Contracts webpage.

RCW 4.24.115 places limitations on requiring an architect or engineer to indemnify or defend against liability for damages arising out of such services or out of bodily injury to persons or damage to property. MRSC published a blog article in 2012 (which is the last time the statute was amended) that provides further analysis and sample indemnification language for architect and engineering contracts that meet the requirements of the statute.

Examples of A/E contract provisions can be found on both the Architecture and Engineering Contracts webpage, as well as MRSC’s sample document library. Of course, you will want to consult with your legal counsel when developing or updating your A/E contract language.
Can a city council increase or decrease the awards to recipients made by their lodging tax advisory committees?

If the council wishes to deviate from the amounts recommended by the LTAC it can do so only after following the procedural requirements of RCW 67.28.1817. This interpretation is based on an informal Attorney General opinion issued in 2016, which is discussed on our Lodging Tax (Hotel-Motel Tax) page:

  • What Does the Municipality Do with the LTAC's Recommendations? The legislative body "may choose only recipients from the list of candidates and recommended amounts provided by the local lodging tax advisory committee" (RCW 67.28.1816(2)(b)(ii), emphasis added). However, an informal opinion from the Attorney General's Office in 2016 states that the legislative body may award amounts different from the LTAC’s recommended amounts, but only after satisfying the procedural requirements of RCW 67.28.1817(2). This requires the municipality to submit its proposed change(s) to the LTAC for review and comment at least forty-five days before final action is taken. For more details, see our blog post on Informal AG Opinion Clarifies Lodging Tax Awards.

So, council may accept the recommendation or reject it without any further action – a vote is all that is required. If the council wants to change the amount awarded to a recommended recipient, it must refer the proposed changes to the LTAC for review and comment.
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