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MRSC PUBLICATIONS › NEWS › Municipal Research News - Spring 2004
 

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Municipal Research News

Municipal Research and Services Center of Washington
Spring 2004 Issue

What's Inside

This newsletter is also available in Adobe Acrobat format.

Sexual Harassment

Avoiding Liability

Sexual harassment in the workplace is a form of employment discrimination, and damage awards against employers for such harassment can be substantial. Its presence can also, of course, make the workplace an unpleasant place to be. Sexual harassment potentially violates both state and federal law. Washington State statutes against discrimination are contained in Chapter 49.60 RCW, and federal prohibitions are contained in Title VII of the Civil Rights Act of 1964.

According to the federal Equal Employment Opportunity Commission, sexual harassment includes any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment; or (2) submission or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Local governments can substantially reduce their risk of liability for a sexual harassment claim by taking certain preventative measures. This article will review the key actions your city or county can take to protect it from claims in this area.

These actions, discussed in more detail below, can be summarized as follows:

1. Adopt an effective sexual harassment policy;

2. Train all employees concerning what is considered sexual harassment and the procedures to follow if they feel they have been harassed;

3. Train all supervisors in how to handle complaints; and

4. Investigate all complaints and follow your adopted policy for every complaint.

Adopt an Effective Sexual Harassment Policy

Every local government should have in place a clear policy prohibiting sexual harassment. MRSC has numerous examples of good policies if you have not adopted one or if you feel the need to review your existing one. Also, MRSC has on its Web site a sexual harassment page that discusses the law and provides links to relevant documents and additional information. See http://www.mrsc.org/Subjects/Personnel/sexharr/sexharr.aspx

Initially, the policy should clearly define sexual harassment and clearly announce that it will not be tolerated. Make sure the policy is written in language that the employees can understand, and include examples. The most common claims for sexual harassment are based on allegations that a "hostile work environment" was created, so be sure that this concept is fully explained and its manifestation is prohibited.

The policy should outline numerous avenues for complaint. Do not have the chief administrative officer as the only avenue for complaints; designate multiple personnel, including possibly a human resources officer or other person that employees will be comfortable dealing with, to receive and investigate complaints. Have clear procedures for dealing with a complaint against the chief administrative officer.

Adopt a no-tolerance policy for retaliation if an employee complains, and make this specifically and clearly a part of your policy.

Communicate the policy to the employees. Make certain the policy is distributed to all employees and, ideally, include written documentation that all employees have received and read the policy. Include the policy in the orientation package for new employees.

Train, Train, Train!

Once the policy has been adopted, hold mandatory training sessions for all employees on what is considered sexual harassment and outline the procedures to follow if they feel they have been harassed.

The training should emphasize that retaliation in any form will not be tolerated against anyone who makes a claim or assists in the investigation of a claim. Make clear that sexual harassment is a serious violation of the law and your employment policies, and that significant penalties may be imposed on offenders.

Make certain that all supervisors are trained to recognize sexual harassment when it occurs and to know their responsibilities under your policy, including how to handle complaints. Also, train supervisors to be alert to situations that may constitute harassment and to be preemptive in dealing with problematical situations.

Investigate All Complaints and Follow Your Policies

If a complaint is received, it must be treated seriously. Assure the complainant that there will be no retaliation for filing the complaint. A thorough investigation must be conducted promptly to determine the validity of the claim and if any disciplinary action is required. You may want to hire an outside investigator if there is no one in-house with expertise in conducting such an investigation.

Interview the parties involved and, if appropriate, other employees who may have observed the alleged sexual harassment or who may be in a similar situation as the complaining employee. Indicate to the complainant that the investigation will be kept confidential to the extent possible, but DO NOT promise absolute confidentiality where this may not be possible.

Once the process is complete, clearly communicate to the complaining party and the accused the results of the investigation, including any appropriate action designed to end the harassment.

Follow up with the employee to make sure the harassment has stopped and that no retaliation has taken place.

Summary

In many cases where sexual harassment has nevertheless occurred, a local government can avoid liability by proving: (1) that it exercised reasonable care to prevent sexual harassment in the workplace and to correct it when it occurs; and (2) that the employee harassed failed to complain and take advantage of the employer's corrective procedures. We strongly recommend that each city and county work closely with their legal advisors to be certain they have adopted an appropriate and complete sexual harassment policy, and have trained their employees and supervisors about the policy. Then make sure that you follow your policy by investigating all complaints promptly and thoroughly and by taking appropriate corrective and disciplinary action.

By Patrick Mason
Senior Legal Consultant
Municipal Research and Services Center

Calculating a Leave Year for FMLA

The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 work weeks of FMLA leave during an established leave year. When drafting a policy, employers should carefully define the "leave year" in a way that would avoid the possibility of "leave stacking." For example, if the employer uses a fixed "leave year," a qualified employee could feasibly add or "stack" eligible leave at the end of one year onto the eligible leave for the following year. This would give the employee 24 consecutive work weeks of eligible FMLA leave.

If you wish to avoid leave stacking, be sure you define the leave year as a "rolling" 12-month period measured backward from the date the FMLA leave is used by an eligible employee. This means that when an FMLA leave is requested, you go back and look at the 12-month period previous to the beginning of the leave request. If the employee has taken less than the allowed leave of 12 work weeks, she is permitted to take the balance of the entitlement for the present request. For example, an eligible employee requests FMLA leave today. During the previous 12-month period, she took four work weeks of FMLA leave; she now is entitled to take eight work weeks to add up to the entitled 12 work weeks of leave. Such a policy avoids leave stacking.

If you are planning to change your definition of leave year, you may do so by giving employees at least 60 days' notice of the change. Questions? Give MRSC a call.

Privately Owned Vehicle Reimbursement Rate

Effective January 2004, the POV mileage reimbursement rate is $.375. For additional travel reimbursement information and rates, see the Office of Financial Management's Web site at http://www.ofm.wa.gov/policy/10.90.doc.

Heads Up

Emerging information for local government

$avings Ideas in 2004

City and county budgets are an excellent source of information about programs, accomplishments, goals, intergovernmental partnerships, as well as the fiscal data. As we peruse the budgets this year, we focused on information about cutbacks, cost savings, and contracted services. A few cities are being spared budget cuts by a good local economy, thanks to some of the big box retailers that have moved into town. The majority of cities and counties, however, continue to seek cost cuts in one form or another. The most frequently used measures are not filling positions lost through attrition, consolidating and/or reorganizing staff positions, and cutting program funding in one department and moving the program funds to another. For example, the public works budget may be cut to fund a new police position.

Some of the successes of last year's cost-cutting measures and those proposed for 2004 are listed below, along with links if the budget is on the Web. The cost-saving measure may be something simple that yields small savings, similar to what might be done at home. Compounded, it can provide overall savings. Other measures are major and, in some instances, have been listed out in the budget narrative.

Battle Ground

- a jail agreement to house prisoners over 30 days in Wapato at a cost savings of $20 a day, per prisoner;

- in partnership with Fire District 6 (Hazel Dell) and Fire District 12 (Ridgefield), established a joint fire volunteer pool of nearly 80 volunteer fire fighters for staffing stations and emergency response.

Coupeville

- close city hall on Fridays;

- bill utilities every two months instead of every month.

Kirkland

- eliminate contracted service for flower pots and hanging baskets; these services would be provided by volunteer efforts and fundraising;

- reduce frequency of some cleaning, including exterior window washing, some janitorial duties (such as mid-day restroom cleaning), and supply restocking. See complete list on "Summary of Proposed Expenditure Reductions" at http://www.ci.kirkland.wa.us/depart/finance/pdfs/04_matrix.pdf.

Olympia

- budget includes a list of efficiency measures implemented in 2003 that save time and money. These are listed in the "Introduction of the 2004 Preliminary Budget" (p 36 of file) at http://www.ci.olympia.wa.us/Admin/pdf/2004preliminarybudget/00-Introduction.pdf.

Pierce County

- switched sheriff pursuit vehicles from premium to regular gas, for a cost savings of about $70,000;

- presorted over 960,000 pieces of mail, saving $68,000 in postage.

Mill Creek

- an interlocal agreement with Okanogan County stabilizing the cost of jail services related to housing and bookings for the duration of the contract, yielding a projected savings of $82,000 over the biennium.

Redmond

- accelerate the replacement of natural grass fields with artificial turf, cutting down on manpower, utilities, suppliers, and water to maintain lawns.

Thurston County

- implemented a cost cutting program in 2003. Reorganization, cross-training, use of technology, and collaborating with citizens and other governments have brought the county to a higher level of efficiency. The results are listed in the county's 2004 Budget message at http://www.co.thurston.wa.us/budget/2004/budgetmessage.pdf

Waterville

- coordinated meter reading at city pool with Douglas County PUD to coincide with opening and closing of pool for a savings of $800.

Wilbur

- use prisoner assistance for certain public works such as creek cleaning and weed control, working on waterlines, and streets and storm sewers, and in parks and cemeteries.

Ask MRSC

Summary of recent inquiries answered by MRSC consultants

Finance Charges - Must a city or county pay finance charges?

Yes, if it does not pay a bill within 30 days. RCW 39.76.011(1) states, in part:

every state agency, county, city, town, school district, board, commission, or any other public body shall pay interest at a rate of one percent per month, but at least one dollar per month, on amounts due on written contracts for public works, personal services, goods and services, equipment, and travel, whenever the public body fails to make timely payment.

Impact Fees - May impact fees be used to fund a community center or a library?

A community center would fall within the definition of "recreation facilities" in RCW 82.02.090(7) and would thus be a public facility for which impact fees could be collected and spent. Impact fees are collected only for new development that takes place following the adoption of the impact fee ordinance, and impact fees may be collected only for public facilities included in the jurisdiction's capital facilities element (RCW 82.02.050(4)). As a practical matter, it may be difficult to collect a substantial amount of impact fees for the community center. This is because impact fees may only be imposed for "system improvements that are reasonably related to the new development" (RCW 82.02.050(3)(a)). Further, the impact fees "shall not exceed a proportionate share of the costs of system improvements that are reasonably related to the new development" (RCW 82.02.050(3)(b)), and "shall be used for system improvements that will reasonably benefit the new development" (RCW 82.02.050(3)(c)). Since a community center is for the benefit of the entire community, one development's impact fee contribution to that facility will be but a small part of the cost of the facility.

GMA impact fees cannot be used to fund a new library, since library facilities are not authorized as a proper expenditure for impact fees under RCW 82.02.090(7). Impact fees are specifically authorized only for: "(1) public streets and roads; (2) publicly owned parks, open space, and recreation facilities; (3) school facilities; and (4) fire protection facilities in jurisdictions that are not part of a fire district."

Meal and Rest Periods - May a public employer allow an employee, at his or her request, to work a straight 8-hour day without taking a meal period?

Yes. A state Industrial Welfare Act regulation, WAC 296-126-092, requires that employers allow employees a meal period of at least 30 minutes, to begin between two and five hours after the beginning of a shift. However, the Industrial Welfare Act, at RCW 49.12.187, allows employees to enter into "employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods." So, an employee may voluntarily choose to forego a meal period, as long as the employer consents. We recommend that any such agreement be in writing and identify that the employee requests the meal period waiver.

Payroll - May a county or city require that all its employees receive their pay through direct deposit?

No. Direct deposit of an employee's pay is an option provided to local governments by statute. See RCW 41.04.240. While a local government may directly deposit an employee's paycheck upon the employee's request, it cannot mandate that its employees make use of the direct deposit system. AGLO 1976 No. 26 concludes that the statutory authority available to a school district did not allow the district to mandate that its employees enroll in a direct deposit system. Since a school district's authority for direct deposits is essentially the same as that for a county or city, the same conclusion as to mandating direct deposit should apply.

Public Disclosure - If a list of names and addresses of all licensed businesses in the city or county is requested pursuant to a public disclosure request, if the request is for commercial purposes, and if the list contains some business names that are merely the names of the individual business owner, must the city or county delete those names from the list?

The public disclosure law, at RCW 42.17.260(9), prohibits a public agency from providing "lists of individuals," if requested for commercial purposes. The attorney general's office has interpreted that "lists of individuals" as used in this statute was intended to refer to lists of "natural persons - as opposed to business entities, committees, or groups." AGO 1975 No. 15. In our opinion, the fact that some business names are the names of "natural persons" does not convert the list of businesses into a list of individuals. So, there would be no legal basis not to provide the list of businesses in question, and there is no legal basis to delete the names of individuals from that list.

Public Disclosure - Is the address of a former employee exempt from public disclosure after the employee has ceased to be employed by the city or county?

Yes. RCW 42.17.310(1)(u) exempts from public disclosure an employee's residential address and telephone number. The state court of appeals in Seattle Fire Fighters Union v. Hollister, 48 Wn. App. 129 (1987), held that a different public employee disclosure exemption continues even after the employee has retired. The court reasoned that the legislative intent of an exemption to protect the privacy rights of public employees logically leads to the conclusion that the exemption does not terminate upon retirement.

Public Disclosure - Are police-prepared accident reports subject to public disclosure?

Yes, accident reports prepared by law enforcement officers are subject to disclosure. According to the state supreme court in Guillen v. Pierce County, 144 Wn.2d 696 (2001), accident reports prepared by the police are disclosable. Also, a 2001 attorney general opinion concluded that reports prepared by investigating law enforcement officers under chapter 46.52 RCW, unlike reports prepared by the drivers or passengers of vehicles involved in accidents, are subject to public disclosure and copying, except to the extent some other exemption wholly or partially applies to the record in question, and are not rendered automatically confidential by RCW 46.52.080. See AGO 2001 No. 8.

State Holidays - Does the year 2004 have an extra holiday?

Yes. RCW 1.16.050 provides that, when a legal holiday falls on a Saturday, the preceding Friday is designated as the legal holiday. Since New Year's Day for 2005 falls on a Saturday, the legal holiday is December 31, 2004. So, the year 2004 will have an extra legal holiday and the year 2005 will have one less legal holiday than usual.

Utility Billing Information - May a city charge to cover the administrative cost of responding to inquiries from title companies requesting payment information on LID, utility, and latecomer accounts?

No. RCW 60.80.020(2) requires utilities to provide a written response when a closing agent asks for final utility billing information. There is no provision in the statute for a charge by the city. Other parties who might want this kind of information may make a public disclosure request, for which they can be charged a 15 cents a page copying charge.

Volunteer Fire Fighters - Is there a statutory limit on the number of volunteers allowed in a volunteer fire department?

No. RCW 41.24.050 used to provide that a volunteer fire department was limited to 25 members for each one thousand population. The 2002 legislature amended this statute to remove the limit.

Zoning - Is there a time limit from the date of a planning commission recommendation for a board of county commissioners to meet and review a zoning text amendment?

No, the statutes do not set forth a required time frame for the board of county commissioners to hold meetings or hearings or to take action on a proposed zoning text amendment. According to RCW 36.70.610, the planning commission must submit its recommendation to the board of commissioners within 14 days following action by the planning commission. Upon receipt of the planning commission recommendation, the board at its next regular public meeting is to set the date for a public meeting where it will adopt or reject the official control or amendment (RCW 36.70.620). State law does not require that this meeting be held and that action be taken on the planning commission recommendation within any specific time period. If the board of county commissioners decides that a change in the planning commission recommendation is necessary, the board is required to conduct its own public hearing (RCW 36.70.630). State law does not establish a specific date requirement for this public hearing either. See RCW 36.70.550 - RCW 36.70.670.

Zoning text amendments are not subject to regulatory reform requirements in chapter 36.70B RCW that are applicable to land use permit applications for specific development projects.

How to "Ask MRSC." Assistance from MRSC may be obtained by Phone (206) 625-1300 or 1-800-933-6772 for long-distance calls; Letter 2601 4th Avenue, Suite 800, Seattle, WA, 98121-1280; Fax (206) 625-1220; or E-mail mrsc@mrsc.org. Telephone inquiry service is available from 8:00 a.m. to 5:00 p.m. If a consultant is not immediately available, you can record a detailed request on voice mail 24-hours a day, and a staff member will call back as soon as possible.

Pipeline Safety

Join the Washington City and County Pipeline Safety Consortium

The Washington City and County Pipeline Safety Consortium (Consortium) was created in June 2000 by Interlocal agreement between ten cities and two counties concerned about pipeline safety in the wake of the fatal Bellingham pipeline rupture in June 1999. These jurisdictions represent more than 1.97 million people. The Consortium has worked to improve local jurisdictions' understanding and involvement in pipeline safety. The Consortium has advocated for tougher standards in testing pipelines, published white papers on national security and the public's right to know about pipelines in their area, and differing methods of inspecting pipelines. The Consortium maintains a Web site (through the assistance of MRSC) at http://www.pipelinesafetyconsortium.org/. While the Consortium's primary focus has been on the Olympic Pipeline and hazardous liquid pipelines, it is expanding its focus to include natural gas transmission lines as well. If you or your jurisdiction are interested in more information about the Consortium or in joining the Consortium, please contact Katie Hansen at khansen@ci.bellevue.wa.us or by phone at (425) 452-2035.

Library Listings: New resource materials now available

New Acquisitions

This list contains new publications, ordinances, and other materials recently received by the MRSC library. We also prepare a more comprehensive list of new acquisitions each month which is posted on our Web site at www.mrsc.org/library/newacq.htm. If you would like to borrow one or more of these publications, please contact Electra Enslow in our library at (206) 625-1300.

Environment

Critical Areas Assistance Handbook: Protecting Critical Areas within the Framework of the Washington Growth Management Act, by Washington State Trade and Economic Development, Growth Management Services, 2003

Finance

Fiscal Distress: Prescriptions for Good Management in Bad Times, by Thomas Sommer, 2003.

Standards for Effective Local Government: A Workbook for Performance Assessment, by Southwestern Pennsylvania Commission, 2000

Planning and Land Use

Cost of Community Services Studies: Making the Case for Conservation, by Julia Freedgood, 2002

Pedestrian- and Transit-Friendly Design: A Primer for Smart Growth, by Reid Ewing, 1999

Planning for Results Guidebook: Practical Advice for Building Successful Rural Communities, presented by the Western Community Stewardship Forum, 2003

Ten Principles for Rebuilding Neighborhood Retail, by Michael D.Beyard, Michael Pawlukiewicz, Alex Bond, 2003

Local Improvement Districts

Business Improvement Districts, by Lawrence O. Houstoun, 2003

Housing

Filling in the Spaces: Ten Essentials for Successful Urban Infill Housing, by The Housing Partnership, 2003

Public Safety

Standards for Law Enforcement Agencies: The Standards Manual of the Law Enforcement Agency Accreditation Program, by Commission on Accreditation for Law Enforcement Agencies, 2001

Public Works

Development Guidelines and Design and Construction Standards, by City of Tukwila, 2003

Transportation/Traffic/Streets

Regional Bicycle and Pedestrian Implementation Strategy for the Central Puget Sound, by the Puget Sound Regional Council, 2003

Resource Sharing

The Information Partnership Program seeks and collects current materials from Washington local governments. The materials received provide answers and support to the challenges faced by cities and counties every day. You may order the materials below by contacting the MRSC library at (206) 625-1300 or 1-800-933-6772 or e-mail us at mrsc@mrsc.org. Due to space limitations, the list below may not be complete. A comprehensive list of IP materials received may be requested from the library or viewed on our Web site at www.mrsc.org/library/rshare.htm.

Parks and Recreation Plans

Bellevue Parks & open system plan, 9/03 (P 3.2000 B44 P37 2003); Camas Parks & open space comprehensive plan update, 1/24/00 (P 3.2000 C3 P37 2000 CD); Olympia Olympia's parks, arts & recreation plan, 11/4/02 (P 3.2000 O46 O5 2002) ; Poulsbo Park, recreation, & open space plan, 5/17/00 (P 3.2000 P58 P37 2000); Westport Comprehensive park & recreation plan update: 2000-2004, 9/15/99 (P 3.2000 W45 C65 2000)

New Annexation Forms and Handouts

Bellingham Annexation petition forms, owners and registered voters; procedures for filing petition for annexation; application for annexation, 2003 (G 3.1360); Gig Harbor Notice of intent to annex; petition for annexation , 2003 (G 3.1360); Ordinance No. 939 reinstating, as a condition for the provision of water and/or sewer service outside the city limits, the requirement that a property owner sign a petition for annexation of his/her property when asked to do so by the city, 4 p., 8/25/03 (U 3.2000); Woodinville Notice of Intent to Petition for Annexation, 2003 (G 3.1360)

New Publication

The Municipal Research and Services Center is pleased to announce the newly updated 2004-05 Directory of Washington City & Town Officials has been completed. This might be our best ever directory! The directory contains a comprehensive list of the names and positions of elected officials and key employees of the 281 cities and towns in the state of Washington, plus lots more.

MRSC has already distributed several FREE copies of the directory to each and every city and town in the state. If you would like to order additional copies at a nominal fee ($20), log onto our Web site (www.mrsc.org) and place an order or give us a call at (206) 625-1300 or (800) 933-6772.

CONTACTING MRSC

Staff members may be reached through the Internet using first initial and last name @mrsc.org: for example, ryukubousky@mrsc.org.

Municipal Research News is published quarterly by the Municipal Research and Services Center of Washington, 2601 4th Avenue, Suite 800, Seattle, WA 98121-1280. Your ideas and comments are appreciated. If you have news you would like to share or if you would like to write a short feature article, please contact us.

Editor: Connie Elliot
Desktop Designer: Holly Stewart
2601 4th Avenue, Suite 800, Seattle, WA 98121-1280
206.625.1300 · Fax 206.625.1220
www.mrsc.org
mrsc@mrsc.org