2008 Revised Code of Washington
Volume 4: Titles 38 through 44


Download as PDF VOLUME 4 Titles 38 through 44 2008 REVISED CODE OF WASHINGTON Published under the authority of chapter 1.08 RCW. Containing all laws of a general and permanent nature through the 2008 regular session, which adjourned sine die March 13, 2008. (2008 Ed.) [Preface—p i] REVISED CODE OF WASHINGTON 2008 Edition © 2008 State of Washington CERTIFICATE The 2008 edition of the Revised Code of Washington, published officially by the Statute Law Committee, is, in accordance with RCW 1.08.037, certified to comply with the current specifications of the committee. MARTY BROWN, Chair STATUTE LAW COMMITTEE PRINTED ON RECYCLABLE MATERIAL For recycling information call: Recycle Hotline 1-800-732-9253 [Preface—p ii] (2008 Ed.) PREFACE Numbering system: The number of each section of this code is made up of three parts, in sequence as follows: Number of title; number of chapter within the title; number of section within the chapter. Thus RCW 1.04.020 is Title 1, chapter 4, section 20. The section part of the number (.020) is initially made up of three digits, constitutes a true decimal, and provides a facility for numbering new sections to be inserted between old sections already consecutively numbered, merely by adding one or more digits at the end of the number. In most chapters of the code, sections have been numbered by tens (.010, .020, .030, .040, etc.), leaving nine vacant numbers between original sections so that for a time new sections may be inserted without extension of the section number beyond three digits. Citation to the Revised Code of Washington: The code should be cited as RCW; see RCW 1.04.040. An RCW title should be cited Title 7 RCW. An RCW chapter should be cited chapter 7.24 RCW. An RCW section should be cited RCW 7.24.010. Through references should be made as RCW 7.24.010 through 7.24.100. Series of sections should be cited as RCW 7.24.010, 7.24.020, and 7.24.030. History of the Revised Code of Washington; Source notes: The Revised Code of Washington was adopted by the legislature in 1950; see chapter 1.04 RCW. The original publication (1951) contained material variances from the language and organization of the session laws from which it was derived, including a variety of divisions and combinations of the session law sections. During 1953 through 1959, the Statute Law Committee, in exercise of the powers in chapter 1.08 RCW, completed a comprehensive study of these variances and, by means of a series of administrative orders or reenactment bills, restored each title of the code to reflect its session law source, but retaining the general codification scheme originally adopted. An audit trail of this activity has been preserved in the concluding segments of the source note of each section of the code so affected. The legislative source of each section is enclosed in brackets [ ] at the end of the section. Reference to session laws is abbreviated; thus "1891 c 23 § 1; 1854 p 99 § 135" refers to section 1, chapter 23, Laws of 1891 and section 135, page 99, Laws of 1854. "Prior" indicates a break in the statutory chain, usually a repeal and reenactment. "RRS or Rem. Supp.——" indicates the parallel citation in Remington's Revised Code, last published in 1949. Where, before restoration, a section of this code constituted a consolidation of two or more sections of the session laws, or of sections separately numbered in Remington's, the line of derivation is shown for each component section, with each line of derivation being set off from the others by use of small Roman numerals, "(i)," "(ii)," etc. Where, before restoration, only a part of a session law section was reflected in a particular RCW section the history note reference is followed by the word "part." "Formerly" and its correlative form "FORMER PART OF SECTION" followed by an RCW citation preserves the record of original codification. Double amendments: Some double or other multiple amendments to a section made without reference to each other are set out in the code in smaller (8-point) type. See RCW 1.12.025. Index: Titles 1 through 91 are indexed in the RCW General Index. Separate indexes are provided for the Rules of Court and the State Constitution. Sections repealed or decodified; Disposition table: Memorials to RCW sections repealed or decodified are tabulated in numerical order in the table entitled "Disposition of former RCW sections." Codification tables: To convert a session law citation to its RCW number (for Laws of 1951 or later) consult the codification tables. A similar table is included to relate the disposition in RCW of sections of Remington's Revised Statutes. Errors or omissions: (1) Where an obvious clerical error has been made in the law during the legislative process, the code reviser adds a corrected word, phrase, or punctuation mark in [brackets] for clarity. These additions do not constitute any part of the law. (2) Although considerable care has been taken in the production of this code, within the limits of available time and facilities it is inevitable that in so large a work that there will be errors, both mechanical and of judgment. When those who use this code detect errors in particular sections, a note citing the section involved and the nature of the error may be sent to: Code Reviser, Box 40551, Olympia, WA 98504-0551, so that correction may be made in a subsequent publication. (2008 Ed.) [Preface—p iii] TITLES OF THE REVISED CODE OF WASHINGTON 1 46 47 Highways and motor vehicles Motor vehicles Public highways and transportation 48 Insurance 49 50 51 Labor Labor regulations Unemployment compensation Industrial insurance 52 53 54 55 57 Local service districts Fire protection districts Port districts Public utility districts Sanitary districts Water-sewer districts 58 59 60 61 62A 63 64 65 Property rights and incidents Boundaries and plats Landlord and tenant Liens Mortgages, deeds of trust, and real estate contracts Uniform Commercial Code Personal property Real property and conveyances Recording, registration, and legal publication 66 67 68 69 70 71 71A 72 73 74 Public health, safety, and welfare Alcoholic beverage control Sports and recreation—Convention facilities Cemeteries, morgues, and human remains Food, drugs, cosmetics, and poisons Public health and safety Mental illness Developmental disabilities State institutions Veterans and veterans' affairs Public assistance 76 77 78 79 79A Public resources Forests and forest products Fish and wildlife Mines, minerals, and petroleum Public lands Public recreational lands 80 81 Public service Public utilities Transportation 82 83 84 Taxation Excise taxes Estate taxation Property taxes 85 86 87 88 89 90 91 Waters Diking and drainage Flood control Irrigation Navigation and harbor improvements Reclamation, soil conservation, and land settlement Water rights—Environment Waterways General provisions 2 3 4 5 6 7 8 9 9A 10 11 12 13 Judicial Courts of record District courts—Courts of limited jurisdiction Civil procedure Evidence Enforcement of judgments Special proceedings and actions Eminent domain Crimes and punishments Washington Criminal Code Criminal procedure Probate and trust law District courts—Civil procedure Juvenile courts and juvenile offenders 14 Aeronautics 15 16 17 Agriculture Agriculture and marketing Animals and livestock Weeds, rodents, and pests 18 19 20 21 22 Businesses and professions Businesses and professions Business regulations—Miscellaneous Commission merchants—Agricultural products Securities and investments Warehousing and deposits 23 23B 24 25 Corporations, associations, and partnerships Corporations and associations (Profit) Washington business corporation act Corporations and associations (Nonprofit) Partnerships 26 Domestic relations 27 28A 28B 28C Education Libraries, museums, and historical activities Common school provisions Higher education Vocational education 29A Elections 30 31 32 33 Financial institutions Banks and trust companies Miscellaneous loan agencies Mutual savings banks Savings and loan associations 34 35 35A 36 37 38 39 40 41 42 43 44 Government Administrative law Cities and towns Optional Municipal Code Counties Federal areas—Indians Militia and military affairs Public contracts and indebtedness Public documents, records, and publications Public employment, civil service, and pensions Public officers and agencies State government—Executive State government—Legislative [Preface—p iv] (2008 Ed.) Title 38 Chapters 38.04 38.08 38.10 38.12 38.14 38.16 38.20 38.24 38.32 38.36 38.38 38.40 38.42 38.44 38.48 38.52 Title 38 MILITIA AND MILITARY AFFAIRS General provisions. Powers and duties of governor. Emergency management assistance compact. Militia officers and advisory council. Washington state guard. Enlistments and reserves. Armories and rifle ranges. Claims and compensation. Offenses—Punishment. Trial procedure. Washington code of military justice. Miscellaneous provisions. Service members’ civil relief. Enrollment of persons. State and national defense. Emergency management. Explosives, manufacture, sale or storage: Chapter 70.74 RCW. Limitation on members of the legislature holding office in the state—Exception: State Constitution Art. 2 § 14. Microfilming of records to provide continuity of civil government: Chapter 40.10 RCW. Military subordinate to civil power: State Constitution Art. 1 § 18. National guard conditional scholarship program: Chapter 28B.103 RCW. National guard high school career training and national guard youth challenge program—Rules: RCW 28A.300.165. Quartering soldiers in residences: State Constitution Art. 1 § 31. Right to bear arms: State Constitution Art. 1 § 24. Special act relating to aerospace science and modeling center at Camp Murray: 1969 ex.s. c 85. SPECIAL ACTS RELATING TO ARMORIES: The following special or temporary acts relating to particular armories are not codified herein: (1) 1959 c 181; 1961 c 135; 1963 c 146, Seattle. (2) 1967 c 37, Prosser. (3) 1967 c 43, Centralia. (4) 1967 c 44, Chewelah. (5) 1967 c 214, Stevens County. (6) 1967 c 224, Tacoma and Pierce County. (7) 1967 c 226, Yakima. (8) 1969 ex.s. c 22, Kirkland. Special legislation: State Constitution Art. 2 § 28(2). Standing army in time of peace prohibited: State Constitution Art. 1 § 31. State flag furnished to armed forces: RCW 1.20.010. State militia: State Constitution Art. 10. Veterans and veterans’ affairs: Title 73 RCW. Chapter 38.04 Chapter 38.04 RCW GENERAL PROVISIONS Sections 38.04.010 38.04.020 38.04.030 38.04.040 General definitions. "Officer," "enlisted men," "enlisted persons" defined—Convictions and punishments. Composition of the militia. Composition of organized militia. Acknowledgments and powers of attorney of military personnel: Chapter 73.20 RCW. (2008 Ed.) Military personnel classified as resident students: RCW 28B.15.014. 38.04.010 General definitions. When used in this title, the following words, terms, phrases shall have the following meaning: The word "militia" shall mean the military forces provided for in the Constitution and laws of the state of Washington. The term "organized militia" shall be the general term to include both state and national guard and whenever used applies equally to all such organizations. The term "national guard" shall mean that part of the military force of the state that is organized, equipped and federally recognized under the provisions of the national defense act of the United States, and, in the event the national guard is called into federal service or in the event the state guard or any part or individual member thereof is called into active state service by the commander-in-chief, the term shall also include the "Washington state guard" or any temporary organization set up in times of emergency to replace either the "national guard" or "state guard" while in actual service of the United States. The term "state guard" shall mean that part of the military forces of the state that is organized, equipped, and recognized under the provisions of the State Defense Forces Act of the United States (32 U.S.C. Sec. 109, as amended). The term "active state service" or "active training duty" shall be construed to be any service on behalf of the state, or at encampments whether ordered by state or federal authority or any other duty requiring the entire time of any organization or person except when called or drafted into the federal service by the president of the United States. The term "inactive duty" shall include periods of drill and such other training and service not requiring the entire time of the organization or person, as may be required under state or federal laws, regulations, or orders, including travel to and from such duty. The terms "in service of United States" and "not in service of United States" as used herein shall be understood to mean the same as such terms when used in the national defense act of congress and amendments thereto. The term "military" refers to any or all of the armed forces. The term "armory" refers to any state-owned building, warehouse, vehicle storage compound, organizational maintenance shop or other facility and the lands appurtenant thereto used by the Washington national guard for the storage and maintenance of arms or military equipment or the administration or training of the organized militia. The term "member" refers to a soldier or airman of the organized militia. [1991 c 43 § 1; 1989 c 19 § 1; 1963 c 220 § 133; 1943 c 130 § 12; Rem. Supp. 1943 § 8603-12. Prior: 38.04.010 [Title 38 RCW—page 1] 38.04.020 Title 38 RCW: Militia and Military Affairs 1917 c 107 §§ 1, part, 3, part; 1909 c 134 § 10, part; 1895 c 108 § 10, part.] Short title: "This act shall be known as the Military Code of the state of Washington." [1943 c 130 § 1.] Severability—1943 c 130: "If any provisions of this act or the application thereof to any person or circumstances is held invalid for any reason, such determination shall not affect other provisions or applications of the act which can be given effect without the invalid provisions, and to this end, the provisions of this act are declared to be severable." [1943 c 130 § 95.] Martial law: RCW 38.08.030. Chapter 38.08 RCW POWERS AND DUTIES OF GOVERNOR Chapter 38.08 Sections 38.08.010 38.08.020 38.08.030 38.08.040 38.08.050 38.08.060 38.08.070 38.08.090 38.08.100 38.08.500 38.04.020 38.04.020 "Officer," "enlisted men," "enlisted persons" defined—Convictions and punishments. Whenever used in this title, the word "officer" shall be understood to designate commissioned and warrant officers, and the words "enlisted men" or "enlisted persons" shall be understood to designate members of the organized militia of Washington other than commissioned or warrant officers. The convictions and punishments mentioned unless otherwise specifically designated, shall be understood to be respectively convictions and punishments by military courts. [1989 c 19 § 2; 1943 c 130 § 80; Rem. Supp. 1943 § 8603-80. Prior: 1917 c 107 § 60.] 38.04.030 38.04.030 Composition of the militia. The militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganized militia. [1989 c 19 § 3; 1973 1st ex.s. c 154 § 55; 1963 c 74 § 1; 1943 c 130 § 2; Rem. Supp. 1943 § 8603-2. Prior: 1917 c 107 § 1; 1909 c 134 § 2; 1895 c 108 § 2.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. Militia—Who liable to military duty: State Constitution Art. 10 § 1. 38.04.040 38.04.040 Composition of organized militia. The organized militia of Washington shall consist of the commissioned officers, warrant officers, enlisted persons, organizations, staffs, corps, and departments of the regularly commissioned, warranted and enlisted militia of the state, organized and maintained pursuant to law. Its numerical strength, composition, distribution, organization, arms, uniforms, equipment, training and discipline shall be prescribed by the governor in conformity with, and subject to the limitations imposed by the laws and regulations of the United States and the laws of this state: PROVIDED, HOWEVER, That the minimum enlisted strength of the organized militia of this state shall never be less than two thousand. The organized militia may include persons residing outside the state of Washington. [1989 c 19 § 4; 1943 c 130 § 4; Rem. Supp. 1943 § 8603-4. Prior: 1917 c 107 § 3. Cf. 1909 c 108 § 10, part; 1895 c 108 § 10, part.] [Title 38 RCW—page 2] Conformance with federal laws. Governor as commander-in-chief—Adjutant general executive head. Proclamation of complete or limited martial law. Governor may order out organized militia. Governor may order out unorganized militia. Governor’s decision final. Personal staff for governor. Governor to promulgate rules. Compacts with other states for guarding boundaries. National guard mutual assistance counter-drug activities compact. Commander-in-chief: State Constitution Art. 3 § 8. Commander-in-chief may order enrollment: RCW 38.44.010. Militia—Organization—Discipline—Officers—Power to call out: State Constitution Art. 10 § 2. 38.08.010 Conformance with federal laws. The governor shall cause the organized militia of this state at all times to conform to all federal laws and regulations as are now or may hereafter from time to time become operative and applicable, notwithstanding anything in the laws of this state to the contrary. Except as and when otherwise specifically provided by federal laws, the organized militia of Washington, or any part thereof, shall be subject to call for United States service at such times, in such manner, and in such numbers as may from time to time be prescribed by the United States. In conformity with the provisions of federal statutes, officers and enlisted persons of the organized militia called or drafted into federal service by order or proclamation of the president of the United States, shall upon release from federal service revert to their former status, grade and rank, as members of the organized militia of Washington, and shall continue to serve in the organized militia of Washington until separated therefrom in the manner provided by law. [1989 c 19 § 5; 1943 c 130 § 5; Rem. Supp. 1943 § 8603-5. Prior: 1921 c 75 § 1; 1917 c 107 § 4; 1909 c 134 § 93; 1895 c 108 § 170.] 38.08.010 38.08.020 Governor as commander-in-chief—Adjutant general executive head. The militia of the state not in the service of the United States shall be governed and its affairs administered pursuant to law, by the governor, as commander-in-chief, through the adjutant general’s department, of which the adjutant general shall be the executive head. [1961 c 210 § 1; 1943 c 130 § 3; Rem. Supp. 1943 § 8603-3. Prior: 1917 c 107 § 2; 1909 c 134 §§ 13, 14; 1895 c 108 § 13.] 38.08.020 Governor commander-in-chief: State Constitution Art. 3 § 8. 38.08.030 Proclamation of complete or limited martial law. The governor may by proclamation declare the county or city in which troops are serving, or any specific portion thereof, to be under either complete or limited martial law to the extent, in his or her opinion, that the reestablishment or maintenance of law and order may be promoted. "Complete martial law" is the subordination of all civil authority to the military; "Limited military law" is a partial subordination of civil authority by the setting up of an additional police power 38.08.030 (2008 Ed.) Powers and Duties of Governor vested in the military force which shall have the right to try all persons apprehended by it in such area by a military tribunal or turn such offender over to civil authorities within five days for further action, during which time the writ of habeas corpus shall be suspended in behalf of such person. [1989 c 19 § 6; 1943 c 130 § 8; Rem. Supp. 1943 § 8603-8.] 38.08.040 Governor may order out organized militia. In event of war, insurrection, rebellion, invasion, tumult, riot, mob, or organized body acting together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of this state, or the United States, or in case of the imminent danger of the occurrence of any of said events, or at the lawful request of competent state or local authority in support of enforcement of controlled substance statutes, or whenever responsible civil authorities shall, for any reason, fail to preserve law and order, or protect life or property, or the governor believes that such failure is imminent, or in event of public disaster, or when otherwise required for the public health, safety, or welfare, or to perform any military duty authorized by state law, or to prepare for or recover from any of these events or the consequences thereof, the governor shall have power to order the organized militia of Washington, or any part thereof, into active service of the state to execute the laws, and to perform such duty as the governor shall deem proper. [2005 c 9 § 1; 1993 c 263 § 1; 1989 c 19 § 7; 1943 c 130 § 6; Rem. Supp. 1943 § 8603-6. Prior: 1917 c 107 § 7; 1913 c 66 § 2; 1909 c 134 § 15.] 38.08.040 Effective date—2005 c 9: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 28, 2005]." [2005 c 9 § 3.] 38.08.500 38.08.070 Personal staff for governor. Whenever the governor shall desire the attendance of a personal staff upon any occasion, he or she shall detail therefor officers from the active list of the organized militia of Washington; the officers detailed shall attend in uniform and shall constitute the personal staff of the governor for that occasion, reverting upon completion of such duty to their regular assignments. [1989 c 19 § 9; 1943 c 130 § 15; Rem. Supp. 1943 § 8603-15. Prior: 1917 c 107 § 6; 1909 c 134 § 14. Cf. 1895 c 108 § 13, part.] 38.08.070 38.08.090 Governor to promulgate rules. The governor, through the adjutant general, shall promulgate in orders such rules and amendments not inconsistent with law as the governor may deem necessary for the organization, maintenance and training of the militia, and the acquisition, use, issue or disposal of military property. The governor’s regulatory powers herein with respect to military property shall include reasonable authority to make regulations controlling the use and temporary disposal of military property including real property for civic purposes where consistent with federal law and regulations, in a manner similar to the law pertaining to the use of armories. The adopted regulations shall have the same force and effect as if enacted. [1989 c 19 § 10; 1969 ex.s. c 86 § 1; 1943 c 130 § 92; Rem. Supp. 1943 § 8603-92. Prior: 1917 c 107 § 123; 1909 c 134 § 94; 1895 c 108 § 171.] 38.08.090 Commander-in-chief authorized to make rules for specific armories (special or temporary acts not codified in this title): (1) 1907 c 55 § 11, Armories at Seattle, Spokane and Tacoma; (2) 1909 c 68 § 10, Armory at Bellingham; (3) 1913 c 67 § 9, Armory at North Yakima; (4) 1917 c 108 § 9, Armory at Walla Walla; (5) 1917 c 109 § 9, Armory at Aberdeen; (6) 1917 c 166 § 9, Armory at Everett. 38.08.100 Compacts with other states for guarding boundaries. The governor, with consent of congress, is authorized to enter into compacts and agreements with governors of bordering states concerning guarding and patrol of bridges crossing the common boundaries of said states, and for the patrol of said common boundaries. In any such compact or agreement the governor is authorized to permit militia of any bordering state to enter into areas of this state adjacent to said border, or to send militia of this state into areas of any bordering state adjacent to the common boundary as may be necessary to provide effective protection. [1951 c 253 § 1.] 38.08.100 38.08.050 Governor may order out unorganized militia. In event of, or imminent danger of, war, insurrection, rebellion, invasion, tumult, riot, resistance to law or process or breach of the peace, if the governor shall have ordered into active service all of the available forces of the organized militia of Washington and shall consider them insufficient in number to properly accomplish the purpose, he or she may then in addition order out the unorganized militia or such portion thereof as he may deem necessary, and cause them to perform such military duty as the circumstances may require. [1989 c 19 § 8; 1943 c 130 § 9; Rem. Supp. 1943 § 8603-9. Prior: 1917 c 107 § 9; 1909 c 134 § 17; 1903 c 155 § 15; 1895 c 108 § 112.] 38.08.050 38.08.060 Governor’s decision final. Whenever any portion of the militia is ordered to duty by the governor, the decision of the governor shall be final, incontrovertible, and unimpeachable. Whenever any portion of the militia has been ordered out by the governor, it shall be deemed that local law and order and the enforcement thereof has failed, and that the militia shall become an additional police power, retaining its separate entity and operating at all times as a military organization under military command, to cooperate with existing peace forces wherever possible, for the reestablishment of law and order and for the protection of life and property. [1943 c 130 § 7; Rem. Supp. 1943 § 8603-7.] 38.08.060 (2008 Ed.) 38.08.500 National guard mutual assistance counterdrug activities compact. (1) The governor, with the consent of congress, is authorized to enter into compacts and agreements for the deployment of the national guard with governors of other states concerning drug interdiction, counterdrug, and demand reduction activities. Article 1, section 10 of the Constitution of the United States permits a state to enter into a compact or agreement with another state, subject to the consent of congress. Congress, through enactment of Title 4 of the U.S.C. Section 112, encourages the states to enter such compacts for cooperative effort and mutual assistance. (2) The compact language contained in this subsection is intended to deal comprehensively with the supportive relationships between states in utilizing national guard assets in counter-drug activities. 38.08.500 [Title 38 RCW—page 3] 38.08.500 Title 38 RCW: Militia and Military Affairs NATIONAL GUARD MUTUAL ASSISTANCE COUNTER-DRUG ACTIVITIES COMPACT ARTICLE I PURPOSE The purposes of this compact are to: (a) Provide for mutual assistance and support among the party states in the utilization of the national guard in drug interdiction, counter-drug, and demand reduction activities. (b) Permit the national guard of this state to enter into mutual assistance and support agreements, on the basis of need, with one or more law enforcement agencies operating within this state, for activities within this state, or with a national guard of one or more other states, whether said activities are within or without this state in order to facilitate and coordinate efficient, cooperative enforcement efforts directed toward drug interdiction, counter-drug activities, and demand reduction. (c) Permit the national guard of this state to act as a receiving and a responding state as defined within this compact and to ensure the prompt and effective delivery of national guard personnel, assets, and services to agencies or areas that are in need of increased support and presence. (d) Permit and encourage a high degree of flexibility in the deployment of national guard forces in the interest of efficiency. (e) Maximize the effectiveness of the national guard in those situations that call for its utilization under this compact. (f) Provide protection for the rights of national guard personnel when performing duty in other states in counterdrug activities. (g) Ensure uniformity of state laws in the area of national guard involvement in interstate counter-drug activities by incorporating said uniform laws within the compact. ARTICLE II ENTRY INTO FORCE AND WITHDRAWAL (a) This compact shall enter into force when enacted into law by any two states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof. (b) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after the governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states. ARTICLE III MUTUAL ASSISTANCE AND SUPPORT (a) As used in this article: (1) "Drug interdiction and counter-drug activities" means the use of national guard personnel, while not in federal service, in any law enforcement support activities that are intended to reduce the supply or use of illegal drugs in the United States. These activities include, but are not limited to: (i) Providing information obtained during either the normal course of military training or operations or during counter-drug activities, to federal, state, or local law enforcement officials that may be relevant to a violation of any federal or state law within the jurisdiction of such officials; [Title 38 RCW—page 4] (ii) Making available any equipment, including associated supplies or spare parts, base facilities, or research facilities of the national guard to any federal, state, or local civilian law enforcement official for law enforcement purposes, in accordance with other applicable law or regulation; (iii) Providing available national guard personnel to train federal, state, or local civilian law enforcement in the operation and maintenance of equipment, including equipment made available above, in accordance with other applicable law; (iv) Providing available national guard personnel to operate and maintain equipment provided to federal, state, or local law enforcement officials pursuant to activities defined and referred to in this compact; (v) Operation and maintenance of equipment and facilities of the national guard or law enforcement agencies used for the purposes of drug interdiction and counter-drug activities; (vi) Providing available national guard personnel to operate equipment for the detection, monitoring, and communication of the movement of air, land, and sea traffic, to facilitate communications in connection with law enforcement programs, to provide transportation for civilian law enforcement personnel, and to operate bases of operations for civilian law enforcement personnel; (vii) Providing available national guard personnel, equipment, and support for administrative, interpretive, analytic, or other purposes; (viii) Providing available national guard personnel and equipment to aid federal, state, and local officials and agencies otherwise involved in the prosecution or incarceration of individuals processed within the criminal justice system who have been arrested for criminal acts involving the use, distribution, or transportation of controlled substances as defined in 21 U.S.C. Sec. 801 et seq., or otherwise by law, in accordance with other applicable law. (2) "Demand reduction" means providing available national guard personnel, equipment, support, and coordination to federal, state, local, and civic organizations, institutions and agencies for the purposes of the prevention of drug abuse and the reduction in the demand for illegal drugs. (3) "Requesting state" means the state whose governor requested assistance in the area of counter-drug activities. (4) "Responding state" means the state furnishing assistance, or requested to furnish assistance, in the area of counter-drug activities. (5) "Law enforcement agency" means a lawfully established federal, state, or local public agency that is responsible for the prevention and detection of crime and the enforcement of penal, traffic, regulatory, game, immigration, postal, customs, or controlled substances laws. (6) "Official" means the appointed, elected, designated, or otherwise duly selected representative of an agency, institution, or organization authorized to conduct those activities for which support is requested. (7) "Mutual assistance and support agreement" or "agreement" means an agreement between the national guard of this state and one or more law enforcement agencies or between the national guard of this state and the national guard of one or more other states, consistent with the purposes of this compact. (2008 Ed.) Powers and Duties of Governor (8) "Party state" refers to a state that has lawfully enacted this compact. (9) "State" means each of the several states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States. (b) Upon the request of a governor of a party state for assistance in the area of interdiction and counter-drug, and demand reduction activities, the governor of a responding state shall have authority under this compact to send without the borders of his or her state and place under the temporary operational control of the appropriate national guard or other military authorities of the requesting state, for the purposes of providing such requested assistance, all or any part of the national guard forces of his or her state as he or she may deem necessary, and the exercise of his or her discretion in this regard shall be conclusive. (c) The governor of a party state may, within his or her discretion, withhold the national guard forces of his or her state from such use and recall any forces or part or member thereof previously deployed in a requesting state. (d) The national guard of this state is hereby authorized to engage in interdiction and counter-drug activities and demand reduction. (e) The adjutant general of this state, in order to further the purposes of this compact, may enter into a mutual assistance and support agreement with one or more law enforcement agencies of this state, including federal law enforcement agencies operating within this state, or with the national guard of one or more other party states to provide personnel, assets, and services in the area of interdiction and counterdrug activities and demand reduction. However, no such agreement may be entered into with a party that is specifically prohibited by law from performing activities that are the subject of the agreement. (f) The agreement must set forth the powers, rights, and obligations of the parties to the agreement, where applicable, as follows: (1) Its duration; (2) The organization, composition, and nature of any separate legal entity created thereby; (3) The purpose of the agreement; (4) The manner of financing the agreement and establishing and maintaining its budget; (5) The method to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination; (6) Provision for administering the agreement, which may include creation of a joint board responsible for such administration; (7) The manner of acquiring, holding, and disposing of real and personal property used in this agreement, if necessary; (8) The minimum standards for national guard personnel implementing the provisions of this agreement; (9) The minimum insurance required of each party to the agreement, if necessary; (10) The chain of command or delegation of authority to be followed by national guard personnel acting under the provisions of the agreement; (11) The duties and authority that the national guard personnel of each party state may exercise; and (2008 Ed.) 38.08.500 (12) Any other necessary and proper matters. Agreements prepared under the provisions of this section are exempt from any general law pertaining to intergovernmental agreements. (g) As a condition precedent to an agreement becoming effective under this part, the agreement must be submitted to and receive the approval of the office of the attorney general of Washington. The attorney general of the state of Washington may delegate his or her approval authority to the appropriate attorney for the Washington national guard subject to those conditions which he or she decides are appropriate. The delegation must be in writing and is subject to the following: (1) The attorney general, or his or her agent as stated above, shall approve an agreement submitted to him or her under this part unless he or she finds that it is not in proper form, does not meet the requirements set forth in this part, or otherwise does not conform to the laws of Washington. If the attorney general disapproves an agreement, he or she shall provide a written explanation to the adjutant general of the Washington national guard; and (2) If the attorney general, or his or her authorized agent as stated above, does not disapprove an agreement within thirty days after its submission to him or her, it is considered approved by him or her. (h) Whenever national guard forces of any party state are engaged in the performance of duties, in the area of drug interdiction, counter-drug, and demand reduction activities, pursuant to orders, they shall not be held personally liable for any acts or omissions which occur during the performance of their duty. ARTICLE IV RESPONSIBILITIES (a) Nothing in this compact shall be construed as a waiver of any benefits, privileges, immunities, or rights otherwise provided for national guard personnel performing duty pursuant to Title 32 of the United States Code nor shall anything in this compact be construed as a waiver of coverage provided for under the Federal Tort Claims Act. In the event that national guard personnel performing counter-drug activities do not receive rights, benefits, privileges, and immunities otherwise provided for national guard personnel as stated above, the following provisions shall apply: (1) Whenever national guard forces of any responding state are engaged in another state in carrying out the purposes of this compact, the members thereof so engaged shall have the same powers, duties, rights, privileges, and immunities as members of national guard forces of the requesting state. The requesting state shall save and hold members of the national guard forces of responding states harmless from civil liability, except as otherwise provided herein, for acts or omissions that occur in the performance of their duty while engaged in carrying out the purposes of this compact, whether responding forces are serving the requesting state within the borders of the responding state or are attached to the requesting state for purposes of operational control. (2) Subject to the provisions of paragraphs (3), (4), and (5) of this Article, all liability that may arise under the laws of the requesting state or the responding states, on account of or in connection with a request for assistance or support, shall be assumed and borne by the requesting state. [Title 38 RCW—page 5] Chapter 38.10 Title 38 RCW: Militia and Military Affairs (3) Any responding state rendering aid or assistance pursuant to this compact shall be reimbursed by the requesting state for any loss or damage to, or expense incurred in the operation of, any equipment answering a request for aid, and for the cost of the materials, transportation, and maintenance of national guard personnel and equipment incurred in connection with such request, provided that nothing herein contained shall prevent any responding state from assuming such loss, damage, expense, or other cost. (4) Unless there is a written agreement to the contrary, each party state shall provide, in the same amounts and manner as if they were on duty within their state, for pay and allowances of the personnel of its national guard units while engaged without the state pursuant to this compact and while going to and returning from such duty pursuant to this compact. (5) Each party state providing for the payment of compensation and death benefits to injured members and the representatives of deceased members of its national guard forces in case such members sustain injuries or are killed within their own state shall provide for the payment of compensation and death benefits in the same manner and on the same terms in the event such members sustain injury or are killed while rendering assistance or support pursuant to this compact. Such benefits and compensation shall be deemed items of expense reimbursable pursuant to paragraph (3) of this Article. (b) Officers and enlisted personnel of the national guard performing duties subject to proper orders pursuant to this compact shall be subject to and governed by the provisions of their home state code of military justice whether they are performing duties within or without their home state. In the event that any national guard member commits, or is suspected of committing, a criminal offense while performing duties pursuant to this compact without his or her home state, he or she may be returned immediately to his or her home state and said home state shall be responsible for any disciplinary action to be taken. However, nothing in this section shall abrogate the general criminal jurisdiction of the state in which the offense occurred. ARTICLE V DELEGATION Nothing in this compact shall be construed to prevent the governor of a party state from delegating any of his or her responsibilities or authority respecting the national guard, provided that such delegation is otherwise in accordance with law. For purposes of this compact, however, the governor shall not delegate the power to request assistance from another state. ARTICLE VI LIMITATIONS Nothing in this compact shall: (a) Authorize or permit national guard units or personnel to be placed under the operational control of any person not having the national guard rank or status required by law for the command in question. (b) Deprive a properly convened court of jurisdiction over an offense or a defendant merely because of the fact that [Title 38 RCW—page 6] the national guard, while performing duties pursuant to this compact, was utilized in achieving an arrest or indictment. ARTICLE VII CONSTRUCTION AND SEVERABILITY This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the Constitution of the United States or of any state or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters. [1993 c 263 § 2.] Chapter 38.10 Chapter 38.10 RCW EMERGENCY MANAGEMENT ASSISTANCE COMPACT Sections 38.10.010 38.10.900 Emergency management assistance compact. Severability—2001 c 288. 38.10.010 38.10.010 Emergency management assistance compact. The emergency management assistance compact is enacted and entered into by this state with all other states legally joining the compact in the form substantially as follows: ARTICLE I PURPOSES AND AUTHORITIES This compact is made and entered into by and between the participating party states which enact this compact. For the purposes of this agreement, the term "states" means the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all United States territorial possessions. The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state or states, whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack. This compact shall also provide for mutual cooperation in emergency-related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states’ national guard forces, either in accordance with the national guard mutual assistance compact, or by mutual agreement between states. (2008 Ed.) Emergency Management Assistance Compact ARTICLE II GENERAL IMPLEMENTATION Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to the emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist. The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care, and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood. On behalf of the governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact. ARTICLE III PARTY STATE RESPONSIBILITIES (1) It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, as is practical, shall: (a) Review individual state hazards analyses and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency, or enemy attack; (b) Review party states’ individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency; (c) Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans; (d) Assist in warning communities adjacent to or crossing the state boundaries; (e) Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material; (f) Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness; (g) Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the responsibilities listed in this compact. (2008 Ed.) 38.10.010 (2) The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this agreement shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty days of the verbal request. Requests shall provide the following information: (a) A description of the emergency services function for which assistance is needed, such as, but not limited to, fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue; (b) The amount and type of personnel, equipment, materials, and supplies needed, and a reasonable estimate of the length of time they will be needed; (c) The specific place and time for staging of the assisting party’s response and a point of contact at that location. (3) There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States government, with free exchange of information, plans, and resource records relating to emergency capabilities. ARTICLE IV LIMITATIONS Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms of this compact. However, it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for the state. Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers except that of arrest unless specifically authorized by the receiving state, duties, rights, and privileges as are afforded forces of the state in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency services authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or commencement of exercises or training for mutual aid and shall continue so long as the exercise or training for mutual aid are in progress, the state of emergency or disaster remains in effect, or loaned resources remain in the receiving state or states, whichever is longer. ARTICLE V LICENSES AND PERMITS Whenever any person holds a license, certificate, or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by [Title 38 RCW—page 7] 38.10.010 Title 38 RCW: Militia and Military Affairs the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise. ARTICLE VI LIABILITY Officers or employees of a party state rendering aid in another state under this compact shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state under this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article may not include willful misconduct, gross negligence, or recklessness. ARTICLE VII SUPPLEMENTARY AGREEMENTS Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two or more states may differ from that among the states that are party to this compact, this instrument contains elements of a broad base common to all states, and nothing in this compact shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies. ARTICLE VIII COMPENSATION Each party state shall provide for payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid under this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state. ARTICLE IX REIMBURSEMENT Any party state rendering aid in another state under this compact shall be reimbursed by the party state receiving the aid for any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the costs incurred in connection with the requests. However, any aiding party state may assume in whole or in part the loss, damage, expense, or other cost, or may loan equipment or donate services to the receiving party state without charge or cost; and any two or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. [Title 38 RCW—page 8] Article VIII expenses may not be reimbursable under this article. ARTICLE X EVACUATION Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuation might occur. The plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for the evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of the evacuees. ARTICLE XI IMPLEMENTATION (1) This compact shall become operative immediately upon its enactment into law by any two states. After the first enactment, this compact shall become effective as to any other state upon its enactment by such state. (2) Any party state may withdraw from this compact by enacting a statute repealing the compact, but no withdrawal may take effect until thirty days after the governor of the withdrawing state has given notice in writing of the withdrawal to the governors of all other party states. This action may not relieve the withdrawing state from obligations assumed under this compact before the effective date of withdrawal. (3) Duly authenticated copies of this compact and such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states, and with the federal emergency management agency and other appropriate agencies of the United States government. ARTICLE XII ADDITIONAL PROVISIONS Nothing in this compact shall authorize or permit the use of military force by the national guard of a state at any place outside that state in any emergency for which the president is authorized by law to call into federal service the militia, or for any purpose for which the use of the army or the air force (2008 Ed.) Militia Officers and Advisory Council 38.12.020 would in the absence of express statutory authorization be prohibited under 18 U.S.C. Sec. 1385. [2001 c 288 § 1.] § 4, part; 1895 c 108 § 38, part; Rem. Supp. 1943 § 8603-16, part.] 38.10.900 Severability—2001 c 288. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2001 c 288 § 2.] 38.12.015 Department organized into separate divisions—Army national guard—Air national guard— Assistant adjutants general. The adjutant general’s department shall be organized into separate divisions for the Washington army national guard and the Washington air national guard. Each division may have a general officer at its head who will be referred to as the assistant adjutant general for the Washington army national guard and the assistant adjutant general for the Washington air national guard. [1961 c 210 § 2.] 38.10.900 Chapter 38.12 RCW MILITIA OFFICERS AND ADVISORY COUNCIL Chapter 38.12 Sections 38.12.010 38.12.015 38.12.020 38.12.030 38.12.060 38.12.070 38.12.095 38.12.105 38.12.115 38.12.125 38.12.135 38.12.150 38.12.160 38.12.170 38.12.180 38.12.200 Adjutant general—Bond. Department organized into separate divisions—Army national guard—Air national guard—Assistant adjutants general. Powers and duties. Adjutant general and assistant adjutants general—How chosen—Annual salaries—Members of judiciary eligible to serve in guard. Officers to be commissioned by the governor. Examining board. Appointment or promotion of commissioned officers to be made by officer promotion board—Exceptions. Criteria and guidelines for promotion of commissioned officers. Officer promotion board—Meetings—Powers and duties. Officer promotion board—Composition. Officer promotion board—Official acts—Approval requirements—Rules. Officer to take oath. Oath, form of. Termination of officers’ membership—Review of retention potential. Retirement of officers. Uniform allowance to officers. Militia—Organization—Discipline—Officers—Power to call out: State Constitution Art. 10 § 2. 38.12.010 Adjutant general—Bond. The governor, with the advice and consent of the senate, shall appoint an adjutant general who shall be chief of staff to the governor, and may be removed by the governor at will. The adjutant general shall appoint the civilian employees and other personnel of the department and may remove any of them in accordance with applicable law. The expenses of the adjutant general’s department, necessary to the military service, shall be audited, allowed, and paid as other military expenditures. The adjutant general must execute an official bond running to the state in the penal sum of twenty thousand dollars conditioned for the faithful performance of his or her duties. The bond shall be submitted to the attorney general for approval, and when approved shall be filed in the office of the secretary of state. The cost of the bond shall be paid by the state. The adjutant general may obtain and pay for, from funds appropriated for military purposes, a surety bond or bonds running to the state covering such officers of the organized militia responsible to the state for money or military property, as may be advisable to insure proper accountability. The bond or bonds shall be approved and filed in the same manner as the adjutant general’s bond. [1989 c 19 § 11; 1981 c 338 § 3; 1957 c 250 § 2. Prior: 1943 c 130 § 16, part; 1917 c 107 § 11, part; 1913 c 66 § 4, part; 1909 c 134 § 27, part; 1901 c 78 38.12.010 (2008 Ed.) 38.12.015 38.12.020 Powers and duties. The adjutant general shall: (1) Keep rosters of all active, reserve, and retired officers of the militia, and all other records, and papers required to be kept and filed therein, and shall submit to the governor such reports of the operations and conditions of the organized militia as the governor may require. (2) Cause the military law, and such other military publications as may be necessary for the military service, to be prepared and distributed at the expense of the state, to the departments and units of the organized militia. (3) Keep just and true accounts of all moneys received and disbursed by him or her. (4) Attest all commissions issued to military officers of this state. (5) Make out and transmit all militia reports, returns, and communications prescribed by acts of congress or by direction of the department of defense and the national guard bureau. (6) Have a seal, and all copies, orders, records, and papers in his or her office, duly certified and authenticated under the seal, shall be evidence in all cases in like manner as if the originals were produced. The seal now used in the office of the adjutant general shall be the seal of his or her office and shall be delivered by him or her to the successor. All orders issued from his or her office shall be authenticated with the seal. (7) Make such regulations pertaining to the preparation of reports and returns and to the use, maintenance, care, and preservation of property in possession of the state for military purposes, whether belonging to the state or to the United States, as in his or her opinion the conditions demand. (8) Attend to the care, preservation, safekeeping, and repairing of the arms, ordinance, accoutrements, equipment, and all other military property belonging to the state, or issued to the state by the United States for military purposes, and keep accurate accounts thereof. Any property of the state military department which, after proper inspection, is found unsuitable or no longer needed for use of the state military forces, shall be disposed of in such manner as the governor shall direct and the proceeds thereof used for replacements in kind or by other needed authorized military supplies, and the adjutant general may execute the necessary instruments of conveyance to effect such sale or disposal. (9) Issue the military property as the necessity of service requires and make purchases for that purpose. No military 38.12.020 [Title 38 RCW—page 9] 38.12.030 Title 38 RCW: Militia and Military Affairs property shall be issued or loaned to persons or organizations other than those belonging to the militia, except as permitted by applicable state or federal law. (10) Keep on file in his office the reports and returns of military units, and all other writings and papers required to be transmitted to and preserved at the general headquarters of the state militia. (11) Keep all records of volunteers commissioned or enlisted for all wars or insurrections, and of individual claims of citizens for service rendered in these wars or insurrections, and he or she shall also be the custodian of all records, relics, trophies, colors, and histories relating to such wars now in possession of, or which may be acquired by the state. (12) Establish and maintain as part of his or her office a bureau of records of the services of the organized militia of the state, and upon request furnish a copy thereof or extract therefrom, attested under seal of his or her office, and such attested copy shall be prima facie proof of service, birthplace, and citizenship. (13) Keep a record of all real property owned or used by the state for military purposes, and in connection therewith he or she shall have sole power to execute all leases to acquire the use of real property by the state for military purposes, or lease it to other agencies for use for authorized activities. The adjutant general shall also have full power to execute and grant easements for rights-of-way for construction, operation, and maintenance of utility service, water, sewage, and drainage for such realty. [1989 c 19 § 12; 1977 c 75 § 32; 1957 c 250 § 3. Prior: 1943 c 130 § 16, part; 1917 c 107 § 11, part; 1913 c 66 § 4, part; 1909 c 134 § 27, part; 1901 c 78 § 4, part; 1895 c 108 § 38, part; Rem. Supp. 1943 § 8603-16, part.] cations, the governor may appoint any officer or former officer of the organized militia of Washington as acting adjutant general or as an acting assistant adjutant general. If the officers on detail as the adjutant general or as assistant adjutants general are appointed, called, or drafted into the military service of the United States by order or proclamation of the president, they shall be granted leaves of absence by the governor, and are entitled, upon release from federal service, to return to their former status as adjutant general or as assistant adjutants general of Washington, and during the period that they are in federal service, the duties of these offices shall be performed by an acting adjutant general and acting assistant adjutants general, appointed by the governor, as provided in this section, who shall receive the same pay provided for the adjutant general and/or assistant adjutants general respectively, during the period of such assignments. The adjutant general shall receive an annual salary equal to the base pay of a major general in the United States army. The assistant adjutant general for the Washington army national guard and the assistant adjutant general for the Washington air national guard shall each receive an annual salary equal to the base pay of an officer of equivalent grade in the United States army or United States air force but not to exceed that of a brigadier general. So long as a member of the judiciary of the state of Washington is available for judicial work at such times and under such conditions as may be set forth by local rules and custom, that member may serve as an active member of the national guard or air national guard. [1989 c 19 § 13; 1983 c 218 § 1; 1965 ex.s. c 100 § 1; 1961 c 210 § 3; 1943 c 130 § 21; Rem. Supp. 1943 § 8603-21. Prior: 1921 c 75 § 2; 1917 c 107 § 14; 1909 c 134 § 31, part; 1895 c 108 § 42, part.] 38.12.030 Adjutant general and assistant adjutants general—How chosen—Annual salaries—Members of judiciary eligible to serve in guard. Whenever a vacancy has occurred, or is about to occur in the office of the adjutant general, the governor shall order to active service for that position from the active list of the Washington army national guard or Washington air national guard an officer not below the rank of a field grade officer who has had at least ten years service as an officer on the active list of the Washington army national guard or the Washington air national guard during the fifteen years next prior to such detail. The officer so detailed shall during the continuance of his or her service as the adjutant general hold the rank of a general officer. Whenever a vacancy has occurred, or is about to occur, in the offices of assistant adjutants general for the Washington army national guard or the Washington air national guard, the adjutant general with the concurrence of the governor may appoint an officer of the army national guard or the air national guard, who has had at least ten years service in the active list of his respective branch during the fifteen years next prior to such detail. The officer so detailed, may during the continuance of his service as assistant adjutant general hold the rank of a general officer. If, by reason of the call or draft of officers of the Washington army national guard and/or air national guard into federal service, there is no officer of the Washington national guard available for detail as the adjutant general or as an assistant adjutant general who possesses the requisite qualifi- 38.12.060 Officers to be commissioned by the governor. All commissioned and warrant officers of the organized militia of Washington shall be appointed and commissioned or warranted by the governor only as hereinafter provided. No person shall be so appointed and commissioned or warranted unless he or she shall be a citizen of the United States and of this state and more than eighteen years of age. Every commissioned and warranted officer shall hold office under his or her commission or warrant until he or she shall have been regularly appointed and commissioned or warranted to another rank or office, or until he or she shall have been regularly retired, discharged, dismissed or placed in the reserve. [1989 c 19 § 14; 1971 ex.s. c 292 § 41; 1943 c 130 § 19; Rem. Supp. 1943 § 8603-19. Prior: 1917 c 107 § 12, part; 1909 c 134 § 31, part; 1895 c 108 § 42, part.] 38.12.030 [Title 38 RCW—page 10] 38.12.060 Severability—1971 ex.s. c 292: See note following RCW 26.28.010. 38.12.070 Examining board. No person shall be appointed and commissioned or warranted to any office in the organized militia of Washington unless he or she shall have been examined and adjudged qualified therefor by an examining board, appointed by the adjutant general, and whose report shall have been approved by the authority appointing the board. The composition, appointment and procedure of examining boards and the nature and scope of examinations shall be as prescribed by the laws or regulations of the United States or those of this state. Whenever a com38.12.070 (2008 Ed.) Militia Officers and Advisory Council missioned officer shall have been examined for promotion pursuant to this section and shall have been adjudged not qualified therefor, upon approval by the authority appointing the board of its report to that effect such officer may be honorably discharged, retired or placed in the reserve as the governor shall direct. [1989 c 19 § 15; 1943 c 130 § 20; Rem. Supp. 1943 § 8603-20. Prior: 1917 c 107 § 13; 1909 c 134 § 32; 1895 c 108 § 53.] 38.12.095 Appointment or promotion of commissioned officers to be made by officer promotion board— Exceptions. Whenever a commissioned officer is to be appointed or promoted either to fill a vacancy in the organized militia (Washington army national guard, Washington air national guard and the Washington state guard) or for any other reason, the officer to be appointed or promoted shall be selected by the officer promotion board. This selection in no way will change the powers of the governor under RCW 38.12.060. This section in no way applies to appointments or promotions to adjutant general or assistant adjutant general, to the appointment of officers to the rank of captain, lieutenant, or warrant officer, or to the promotion of second lieutenants, first lieutenants, or warrant officers. [1989 c 19 § 16; 1974 ex.s. c 34 § 1.] 38.12.095 38.12.160 (2) For promotions or appointments of air national guard officers, the board will consist of the adjutant general, the assistant adjutant general air, and the five commanders senior in grade and date of rank in that grade in the Washington air national guard. If the board is selecting an officer for promotion to the rank of colonel, any member of the board who is a lieutenant colonel will be automatically disqualified and will not be replaced. If the board is selecting an officer for promotion to the rank of brigadier general, any member of the board who is a lieutenant colonel or who is a colonel will be automatically disqualified and will not be replaced. (3) For promotions or appointments of state guard officers, the board will consist of the adjutant general, the assistant adjutant general army, and the five officers senior in grade and in date of rank in that grade in the state guard. If the board is selecting an officer for promotion to the rank of colonel, any member of the board who is a lieutenant colonel will be automatically disqualified and will not be replaced. If the board is selecting an officer for promotion to the rank of brigadier general, any member of the board who is a lieutenant colonel or who is a colonel will be automatically disqualified and will not be replaced. [1989 c 19 § 18; 1974 ex.s. c 34 § 4.] 38.12.135 Officer promotion board—Official acts— Approval requirements—Rules. To be an official act of the officer promotion board, an act of that board must be approved by not less than four of the members of the board: PROVIDED, HOWEVER, That if the board consists of less than four officers, the approval of the board shall be unanimous. An action of an officer promotion board may be an official act of the board without a meeting if all members of the board approve in writing the act in question. The adjutant general will from time to time fix the rules under which the board will operate. [1974 ex.s. c 34 § 5.] 38.12.135 38.12.105 Criteria and guidelines for promotion of commissioned officers. All promotions of commissioned officers in the organized militia will be made on a best-qualified basis. The officer promotion board will select the bestqualified officer for each promotion from among those officers fully qualified for promotion. To be promoted, the selected officer must also meet the requirements of RCW 38.12.070. In no event will seniority be the sole guideline for selecting the officer to be promoted. The officer promotion board will, in determining the best qualified officer, consider the overall qualifications of an officer and not just the qualifications for one position. [1974 ex.s. c 34 § 2.] 38.12.105 38.12.150 Officer to take oath. Every officer, duly commissioned or warranted shall within such time as may be provided by law or by regulations, take the oath of office prescribed by law, and give bond, if required. In case of neglect or refusal so to do, the officer shall be considered to have resigned such office and a new appointment may be made as provided by law. [1989 c 19 § 19; 1943 c 130 § 29; Rem. Supp. 1943 § 8603-29. Prior: 1917 c 107 § 26; 1909 c 134 § 36, part; 1895 c 108 § 51.] 38.12.150 38.12.115 Officer promotion board—Meetings— Powers and duties. The officer promotion board will meet from time to time as directed by the adjutant general. The board will select the best qualified officer for each promotion to be made in the organized militia, and will do any other act pertaining thereto directed by the adjutant general or allowed or directed by statute. [1989 c 19 § 17; 1974 ex.s. c 34 § 3.] 38.12.115 38.12.125 Officer promotion board—Composition. The officer promotion board shall be composed as follows: (1) For promotions or appointments of army national guard officers, the board will consist of the adjutant general, the assistant adjutant general army, and the five commanders senior in grade and date of rank in that grade in the Washington army national guard. If the board is selecting an officer for promotion to the rank of colonel, any member of the board who is a lieutenant colonel will be automatically disqualified and will not be replaced. If the board is selecting an officer for promotion to the rank of brigadier general, any member of the board who is a lieutenant colonel or who is a colonel will be automatically disqualified and will not be replaced. 38.12.125 (2008 Ed.) 38.12.160 Oath, form of. The oath of office for commissioned and warrant officers in the organized militia of Washington shall be substantially as follows: "I, . . . . . ., do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the state of Washington, against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the president of the United States and of the governor of the state of Washington, that I make this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of . . . . . . in the organized militia of the state of Washington upon which I am about to enter, so help me God." 38.12.160 [Title 38 RCW—page 11] 38.12.170 Title 38 RCW: Militia and Military Affairs [1943 c 130 § 30; Rem. Supp. 1943 § 8603-30. Prior: 1917 c 107 § 27; 1909 c 134 § 37.] 21; 1984 c 198 § 2; 1943 c 130 § 33; Rem. Supp. 1943 § 8603-33. Prior: 1909 c 134 § 40; 1895 c 108 § 66.] Subversive activities: Chapter 9.81 RCW. 38.12.200 Uniform allowance to officers. Every commissioned officer of the organized militia of Washington shall, within sixty days from the date of the order whereby he or she shall have been appointed, provide at the officer’s own expense the uniform and equipment prescribed by the governor for his or her rank and assignment. There shall be audited and may be paid, at the option of the adjutant general, to each properly uniformed and equipped officer of the active list of the organized militia of Washington, not in federal service an initial uniform allowance of one hundred dollars and annually thereafter for each twelve months state service an additional uniform allowance of fifty dollars, subject to such regulations as the commanderin-chief may prescribe to be audited and paid upon presentation of proper voucher. [1991 c 43 § 2; 1989 c 19 § 22; 1982 c 93 § 1; 1943 c 130 § 37; Rem. Supp. 1943 § 8603-37. Prior: 1923 c 49 § 1; 1917 c 107 § 32; 1909 c 134 § 49; 1903 c 155 § 11; 1901 c 78 § 8; 1895 c 108 § 76.] 38.12.200 38.12.170 Termination of officers’ membership— Review of retention potential. The governor may terminate the membership of any commissioned or warrant officer of the organized militia of Washington for any of the following reasons: (1) Conviction of an infamous crime; (2) Absence from his or her command for more than thirty days without proper leave; (3) Sentence of dismissal by court martial, duly approved; (4) Upon muster out of the organization to which the officer is then assigned; (5) Acceptance of the resignation of the officer, but no officer may be discharged or his or her resignation accepted while under arrest or against whom military charges have been preferred, or until he or she has turned over to his or her successor or satisfactorily accounted for all state and federal moneys and military property for which he or she is accountable or responsible; (6) Removal of his or her actual residence to such distance from the station of his or her command as to render it impracticable for him or her to perform the duties of his or her office; (7) Incompetence or unfitness for military service as determined by the duly approved findings of a board of officers appointed for that purpose by the adjutant general. The adjutant general shall annually appoint and convene qualitative retention boards to review the military personnel records of officers who have completed three or more years service in the Washington state guard to determine their retention potential and acceptability for continuation in an active status. In the conduct of the reviews, the regulation issued by the adjutant general to implement this provision shall conform to the extent practicable to that governing the army national guard. [1989 c 19 § 20; 1984 c 198 § 1; 1943 c 130 § 31; 1925 ex.s. c 72 § 1; Rem. Supp. 1943 § 8603-31. Prior: 1917 c 107 § 28; 1909 c 134 § 39; 1895 c 108 § 63.] 38.12.170 38.12.180 Retirement of officers. Commissioned officers of the organized militia of Washington shall be retired by order of the commander-in-chief with the rank respectively held by them at the time of such retirement for the following reasons: (1) Unfitness for military service by reason of permanent physical disability. (2) Upon request after at least five years continuous service as an officer in the organized militia of Washington. Commissioned officers of the state guard shall upon reaching the age of sixty-four years be retired. Retired officers shall draw no pay or allowance from the state unless recalled to service. Retired officers are subject, with their consent, to temporary detail on active state service by the commander-in-chief, and while on such duty shall receive the same pay and allowances as officers of like rank on the active list. [1989 c 19 § 38.12.180 [Title 38 RCW—page 12] Chapter 38.14 Chapter 38.14 RCW WASHINGTON STATE GUARD Sections 38.14.006 38.14.012 38.14.018 38.14.024 38.14.030 38.14.036 Availability and composition of state guard. Federal military service. Pay of state guard members. Equipment and supplies. Training. Qualifications for appointment of officers. 38.14.006 Availability and composition of state guard. The Washington state guard will be available to serve, at the call of the governor in the place of the national guard of the state of Washington under the provisions of this title when the national guard is in the service of the United States, or when otherwise ordered to active state service by the governor. The Washington state guard shall consist of commissioned and warrant officers and enlisted persons commissioned, warranted, or enlisted under the provisions of this title. Persons enlisted under RCW 38.16.015 shall be enrolled in accordance with regulations promulgated by the adjutant general. [1989 c 19 § 23.] 38.14.006 38.14.012 Federal military service. No member of the Washington state guard shall by reason of such membership be exempt from federal military service under the laws of the United States. [1989 c 19 § 24.] 38.14.012 38.14.018 Pay of state guard members. Members of the Washington state guard shall serve without pay except when on active state service with the state as defined in RCW 38.04.010, or when serving on inactive duty as defined in RCW 38.04.010 under orders of the governor specifically authorizing pay. When ordered to active state service or when serving on inactive duty in a pay status, members of the Washington state guard will be paid as prescribed for members of the national guard in RCW 38.24.050, except longev38.14.018 (2008 Ed.) Armories and Rifle Ranges ity adjustments for pay will be based solely on total service with the Washington state guard. [1989 c 19 § 25.] 38.14.024 Equipment and supplies. The governor may obtain from the federal government such arms and other equipment and supplies as may be available for issue, donation or loan for the use of the Washington state guard. When such property is provided by the federal government, it will be utilized, maintained, and disposed of in accordance with federal requirements and with property rules and regulations promulgated under the provisions of RCW 38.08.090. [1989 c 19 § 26.] Chapter 38.20 ity. [1989 c 19 § 31; 1943 c 130 § 36; Rem. Supp. 1943 § 8603-36. Prior: 1917 c 107 § 31; 1909 c 134 § 45, part; 1895 c 108 § 67, part.] 38.14.024 38.14.030 Training. Members of the Washington state guard may participate in such training opportunities as may be available from the federal government and as approved by the adjutant general. Where required as a condition of such participation, the military department may reimburse the federal government for the costs of such training. [1989 c 19 § 27.] 38.14.030 38.14.036 Qualifications for appointment of officers. The adjutant general shall establish by regulation qualifications for appointment of commissioned and warrant officers in the Washington state guard. [1989 c 19 § 28.] 38.14.036 Chapter 38.16 Chapter 38.16 RCW ENLISTMENTS AND RESERVES 38.16.030 Inactive national guard. The inactive national guard of this state shall respectively be organized by the governor in regulations in conformance with the laws, rules and regulations of the United States. It shall consist of such organizations, officers and enlisted men as the governor shall prescribe. No commissioned officer shall be transferred or furloughed to the inactive national guard without the officer’s written consent, except as otherwise expressly provided by law. Any officer of the inactive national guard may be restored to the active list by order of the governor, subject to the same examination as in the case of an original appointment to his or her rank, and in such event his or her service in the inactive national guard shall not be counted in computing total length of service for relative seniority. [1991 c 43 § 3; 1989 c 19 § 32; 1943 c 130 § 34; Rem. Supp. 1943 § 8603-34. Prior: 1917 c 107 § 29.] 38.16.030 38.16.040 State guard reserve. In order to afford the utmost protection to the state of Washington and to the lives and property of citizens thereof, in times of emergency or anticipation thereof, the governor, through the state military department may provide for the organization and training of state guard reserve companies in communities not allocated a federally recognized or authorized state guard unit. [1943 c 130 § 86; Rem. Supp. 1943 § 8603-86.] 38.16.040 Sections 38.16.050 Appointment of members of the committee for employer support of the guard and reserve to civil affairs unit. To assist the state of Washington in the event of mobilization of state and federal military forces in the state, and notwithstanding other provisions of the state military law and other regulations governing appointment and promotion of officers and enlisted personnel of the Washington state guard, members of the Washington committee for employer support of the guard and reserve may be appointed to serve in a civil affairs unit of the Washington state guard. The rank shall be determined by the adjutant general. [1988 c 288 § 17.] 38.16.050 38.16.010 38.16.015 38.16.020 38.16.030 38.16.040 38.16.050 Period of enlistment in national guard. Period of enlistment in state guard. Discharge of enlisted persons. Inactive national guard. State guard reserve. Appointment of members of the committee for employer support of the guard and reserve to civil affairs unit. 38.16.010 Period of enlistment in national guard. The period of enlistment in the Washington national guard shall conform to the laws and regulations of the United States department of defense governing such enlistments including the term of such enlistments and the maximum and minimum age of enlistment. [1989 c 19 § 29; 1943 c 130 § 35; Rem. Supp. 1943 § 8603-35. Prior: 1917 c 107 § 30; 1909 c 134 § 41; 1895 c 108 § 57.] 38.16.010 38.16.015 Period of enlistment in state guard. The period of enlistment in the Washington state guard shall be set by regulation by the adjutant general: PROVIDED, That no original enlistment may be consummated unless the term thereof can be completed before the applicant attains the age of sixty-four. [1989 c 19 § 30.] Chapter 38.20 Chapter 38.20 RCW ARMORIES AND RIFLE RANGES 38.16.015 38.16.020 Discharge of enlisted persons. An enlisted person discharged from service in the organized militia of Washington shall receive a notice of discharge in writing in such form and classification as is or shall be prescribed by law or regulations, and in time of peace discharges may be given prior to the expiration of terms of enlistment under such regulations as may be prescribed by competent author38.16.020 (2008 Ed.) Sections 38.20.010 38.20.020 38.20.030 38.20.040 38.20.050 Regulations governing armories. City may acquire armory site. Counties may expend moneys for armory site. Rental of property, armories, and small arms ranges. Small arms ranges. ESTABLISHMENT OF ARMORIES: The following special or temporary acts relating to the establishment of armories are not codified herein: (1) 1907 c 55, Armories at Seattle, Spokane and Tacoma; (2) 1909 c 68, Armory at Bellingham; (3) 1913 c 67, Armory at North Yakima; (4) 1917 c 108, 1919 c 19, Armory at Walla Walla; (5) 1917 c 109, 1919 c 20, Armory at Aberdeen; (6) 1917 c 166, 1919 c 21, Armory at Everett; (7) 1939 c 152, Armory at Olympia; (8) 1939 c 215, Naval and marine corps reserve armory at Seattle; [Title 38 RCW—page 13] 38.20.010 Title 38 RCW: Militia and Military Affairs (9) 1941 c 236, Naval and marine corps reserve armory at Tacoma; (10) 1953 c 277 §§ 1, 2 and 3, Armory at Spokane. Explosives, manufacture, sale or storage: Chapter 70.74 RCW. Joint armory sites: RCW 36.64.050. Militia—Public arms: State Constitution Article 10 § 4. State, county and municipal indebtedness—Powers extended in certain cases: State Constitution Article 8 § 2. (2) 1967 c 37, Prosser (3) 1967 c 43, Centralia (4) 1967 c 44, Chewelah (5) 1967 c 214, Stevens County (6) 1967 c 224, Tacoma and Pierce County (7) 1967 c 226, Yakima (8) 1969 ex.s. c 22, Kirkland. 38.20.020 City may acquire armory site. Any city in the state of Washington in which a unit of the national guard is stationed, or is to be stationed, is hereby authorized and empowered to acquire a site for an armory by gift or purchase, and to construct an armory thereon, and to issue and sell its general obligation bonds for said purposes, within the debt limits prescribed by the Constitution, with full power to sell or lease the same to the state of Washington or to the United States. [1933 ex.s. c 16 § 1; RRS § 8598-1.] 38.20.020 38.20.010 Regulations governing armories. Except as provided in this section, state-owned armories shall be used strictly for military purposes. (1) One room, together with the necessary furniture, heat, light, and janitor service, may be set aside for the exclusive use of bona fide veterans’ organizations subject to the direction of the officer in charge. Members of these veterans’ organizations and their auxiliaries shall have access to the room and its use at all times. (2) A bona fide veterans’ organization may use any state armory for athletic and social events without payment of rent whenever the armory is not being used by the organized militia. The adjutant general may require the veterans’ organization to pay the cost of heating, lighting, or other miscellaneous expenses incidental to this use. (3) The adjutant general may, during an emergency, permit transient lodging of service personnel in armories. (4) The adjutant general may, upon the recommendation of the executive head or governing body of a county, city or town, permit transient lodging of anyone in armories. The adjutant general may require the county, city or town to pay no more than the actual cost of staffing, heating, lighting and other miscellaneous expenses incidental to this use. (5) Civilian rifle clubs affiliated with the National Rifle Association of America are permitted to use small arms ranges in the armories at least one night each week under regulations prescribed by the adjutant general. (6) State-owned armories shall be available, at the discretion of the adjutant general, for use for casual civic purposes, and amateur and professional sports and theatricals upon payment of fixed rental charges and compliance with regulations of the state military department. Children attending primary and high schools have a preferential right to use these armories. The adjutant general shall prepare a schedule of rental charges, including a cleaning deposit, and utility costs for each state-owned armory which may not be waived except for activities sponsored by the organized militia or activities provided for in subsection (4) of this section. The rental charges derived from armory rentals less the cleaning deposit shall be paid into the military department rental and lease account under RCW 38.40.210. [2005 c 252 § 3; 1989 c 19 § 33; 1985 c 295 § 1; 1983 c 268 § 1; 1975 1st ex.s. c 121 § 1; 1973 1st ex.s. c 154 § 56; 1963 c 149 § 1; 1949 c 125 § 1; 1947 c 204 § 1; 1943 c 130 § 93; Rem. Supp. 1949 § 8603-93. Prior: 1923 c 49 § 5; 1917 c 8 § 1; 1909 c 134 § 97; 1907 c 55 § 11; 1903 c 115 §§ 19, 20.] 38.20.010 Effective date—1975 1st ex.s. c 121: "The effective date of this act shall be July 1, 1977." [1975 1st ex.s. c 121 § 2.] Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. SPECIAL ACTS RELATING TO ARMORIES: The following special or temporary acts relating to particular armories are not codified herein: (1) 1959 c 181; 1961 c 135; 1963 c 146, Seattle [Title 38 RCW—page 14] 38.20.030 Counties may expend moneys for armory site. Any county of the state of Washington is hereby authorized and empowered to appropriate money for the purchase of an armory site whenever the legislature of this state shall appropriate money for or authorize the construction of an armory therein. [1907 c 55 § 3 1/2; No RRS.] 38.20.030 38.20.040 Rental of property, armories, and small arms ranges. All armories and small arms ranges and all property, real or personal, used by the national guard and not owned by the state of Washington or the United States, shall be leased or rented to the state upon such terms and conditions as shall be approved by the commander-in-chief. [1989 c 19 § 34; 1909 c 134 § 98; RRS § 8599.] 38.20.040 38.20.050 Small arms ranges. Under the direction of the governor, the adjutant general shall, at the expense and in the name of the state, buy or lease, establish, equip, maintain and control such small arms ranges and issue such ammunition, transportation and supplies as may be necessary to provide each unit of the organized militia of Washington with adequate means and opportunity for thorough instruction in small arms practice. [1989 c 19 § 35; 1943 c 130 § 91; Rem. Supp. 1943 § 8603-91. Prior: 1917 c 107 § 120; 1909 c 134 § 92; 1895 c 108 § 168.] 38.20.050 Chapter 38.24 Chapter 38.24 RCW CLAIMS AND COMPENSATION Sections 38.24.010 38.24.020 38.24.050 38.24.060 Payment of military claims and expenses. Audit and payment of awards. Pay of officers and enlisted personnel. Employment and reemployment rights upon return from militia duty. 38.24.010 Payment of military claims and expenses. All bills, claims and demands for military purposes shall be certified or verified and audited in the manner prescribed by regulations promulgated by the governor and shall be paid by the state treasurer from funds available for that purpose. In all cases where the organized militia, or any part of the organized militia, is called into active state service to perform duties under RCW 38.08.040, except for anticipated plan38.24.010 (2008 Ed.) Offenses—Punishment ning, training, exercises, and other administrative duties that are not of an emergent nature, warrants for allowed pay and expenses for such services or compensation for injuries or death shall be drawn upon the general fund of the state treasury and paid out of any moneys in said fund not otherwise appropriated. All such warrants shall be the obligation of the state and shall bear interest at the legal rate from the date of their presentation for payment. Claims and expenses for organized militia in active state service under RCW 38.08.040 that are not paid under this section may be paid under RCW 38.40.220. [2008 c 44 § 2; 2005 c 9 § 2; 1991 c 43 § 4; 1989 c 19 § 36; 1973 c 106 § 14; 1943 c 130 § 42; Rem. Supp. 1943 § 8603-42. Prior: 1917 c 107 § 36; 1909 c 134 § 56, part; 1895 c 108 § 91, part.] part; 1909 c 134 § 157, part; 1907 c 122 § 5, part; 1903 c 155 § 13, part; 1901 c 78 § 11, part; 1895 c 108 § 89, part.] Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 38.24.060 Employment and reemployment rights upon return from militia duty. All members of the organized militia of Washington who are called to active state service or inactive duty shall, upon return from such duty, have those rights accorded under RCW 73.16.031, 73.16.035, 73.16.041, 73.16.051, and 73.16.061. [1989 c 19 § 38; 1984 c 198 § 4; 1974 ex.s. c 46 § 2.] 38.24.060 Chapter 38.32 Effective date—2005 c 9: See note following RCW 38.08.040. 38.24.020 38.24.020 Audit and payment of awards. All compensation shall be payable in monthly installments and shall be audited and paid as any other claim against the military department and shall be payable from the general fund out of any moneys not otherwise appropriated. [1943 c 130 § 41; Rem. Supp. 1943 § 8603-41. Prior: 1917 c 107 § 35; 1909 c 134 § 56, part; 1895 c 108 § 41, part.] 38.24.050 38.24.050 Pay of officers and enlisted personnel. Commissioned officers, warrant officers, and enlisted personnel of the organized militia of Washington, while in active state service or inactive duty, are entitled to and shall receive the same amount of pay and allowances from the state of Washington as provided by federal laws and regulations for commissioned officers, warrant officers, and enlisted personnel of the United States army only if federal pay and allowances are not authorized. For periods of such active state service, commissioned officers, warrant officers, and enlisted personnel of the organized militia of Washington shall receive either such pay and allowances or an amount equal to one and one-half of the federal minimum wage, whichever is greater. The value of articles issued to any member and not returned in good order on demand, and legal fines or forfeitures, may be deducted from the member’s pay. If federal pay and allowances are not authorized, all members detailed to serve on any board or commission ordered by the governor, or on any court-martial ordered by proper authority, may, at the discretion of the adjutant general, be paid a sum equal to one day’s active state service for each day actually employed on the board or court or engaged in the business thereof, or in traveling to and from the same; and in addition thereto travel expenses in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended when such duty is at a place other than the city or town of his residence. Necessary transportation, quartermasters’ stores, and subsistence for troops when ordered on active state service may be contracted for and paid for as are other military bills. [1989 c 19 § 37; 1984 c 198 § 3; 1975-’76 2nd ex.s. c 34 § 81; 1974 ex.s. c 46 § 1; 1943 c 130 § 43; Rem. Supp. 1943 § 8603-43. Prior: 1925 c 28 § 2, part; 1919 c 137 § 1, part; 1917 c 107 § 37, part; 1915 c 47 § 1, part; 1913 c 66 § 10, (2008 Ed.) 38.32.030 Chapter 38.32 RCW OFFENSES—PUNISHMENT Sections 38.32.010 38.32.020 38.32.030 38.32.070 38.32.080 38.32.090 38.32.100 38.32.120 38.32.140 Offenses against laws of this state by members on duty status. Offenses under Washington code of military justice. Exemptions while on duty. Member removed from state, request for discharge. Penalty for failure to obey call. Penalty for physician making false certificate. Buying and receiving military property. Authority of commanding officer. Sentence to confinement. Militia—Organization—Discipline—Officers—Power to call out: State Constitution Art. 10 § 2. 38.32.010 Offenses against laws of this state by members on duty status. Any member of the organized militia on duty status as provided in RCW 38.38.624, or within state armories, committing offenses against the laws of the state, shall be promptly arrested by the military authorities and turned over to the civil authorities of the county or city in which the offense was committed. [1989 c 19 § 39; 1963 c 220 § 134; 1943 c 130 § 82; Rem. Supp. 1943 § 8603-82.] 38.32.010 38.32.020 Offenses under Washington code of military justice. Offenses under chapter 38.38 RCW committed while on inactive duty or active state service as defined in RCW 38.04.010 may be tried and punished as provided under chapter 38.38 RCW after this duty or service has terminated, and if found guilty the accused shall be punished accordingly. Any member of the organized militia on "inactive duty" or "active state service," as defined in RCW 38.04.010, committing any offense under chapter 38.38 RCW, where the offense charged is also made an offense by the civil law of this state, may, in the discretion of the officer whose duty it is to approve the charge, be turned over to the proper civil authorities for trial. Any member of the organized militia on "inactive duty" or "active state service," as defined in RCW 38.04.010, committing any offense under chapter 38.38 RCW, may, if such offense is committed upon a military reservation of the United States within this state, be turned over to the civil authorities for trial as provided by federal law. [1989 c 19 § 40; 1963 c 220 § 135; 1943 c 130 § 81; Rem. Supp. 1943 § 8603-81.] 38.32.020 38.32.030 Exemptions while on duty. No person belonging to the military forces of this state shall be arrested 38.32.030 [Title 38 RCW—page 15] 38.32.070 Title 38 RCW: Militia and Military Affairs on any warrant, except for treason or felony, while going to, remaining at, or returning from any place at which he may be required to attend military duty. Any members of the organized militia parading, or performing any duty according to the law shall have the right-of-way in any street or highway through which they may pass and while on field duty shall have the right to enter upon, cross or occupy any uninclosed lands, or any inclosed lands where no damage will be caused thereby: PROVIDED, That the carriage of the United States mail and legitimate functions of the police and fire departments shall not be interfered with thereby. [1943 c 130 § 45; Rem. Supp. 1943 § 8603-45. Prior: 1917 c 107 § 40; 1909 c 134 § 66; 1895 c 108 § 103.] 38.32.070 Member removed from state, request for discharge. If any member is known to have removed from the state, and, through ignorance or neglect, has failed to apply for discharge, the discharge may be requested by his or her immediate commanding officer. [1989 c 19 § 41; 1963 c 220 § 136; 1943 c 130 § 84; Rem. Supp. 1943 § 8603-84. Cf. 1917 c 107 § 83.] 38.32.070 38.32.080 Penalty for failure to obey call. Any member of the militia who shall have been ordered out for either state or federal service and who shall refuse or wilfully or negligently fail to report at the time and place and to the officer designated in the order or to the representative or successor of such officer, shall be deemed guilty of desertion, and shall suffer such penalty as a general court martial may direct, unless he or she shall produce a sworn certificate from a licensed physician of good standing that he or she was physically unable to appear at the time and place designated. Any person chargeable with desertion under this section may be taken by force and compelled to serve. [1989 c 19 § 42; 1943 c 130 § 10; Rem. Supp. 1943 § 8603-10. Prior: 1917 c 107 § 10; 1909 c 134 § 21; 1895 c 108 § 114.] 38.32.080 38.32.090 Penalty for physician making false certificate. Any physician who shall knowingly make and deliver a false certificate of physical disability concerning any member of the militia who shall have been ordered out or summoned for active service is guilty of perjury under chapter 9A.72 RCW and, upon conviction, as an additional penalty, shall forfeit forever his or her license and right to practice in this state. [2003 c 53 § 209; 1989 c 19 § 43; 1943 c 130 § 11; Rem. Supp. 1943 § 8603-11. Prior: 1909 c 134 § 22.] 38.32.090 Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. other duty may place in arrest for the time of such drill, parade, encampment or other duty any person or persons who shall trespass on the camp grounds, parade grounds, rifle range or armory, or in any way or manner interrupt or molest the orderly discharge of duty of those on duty, or who shall disturb or prevent the passage of troops going to or returning from any regularly ordered tour of duty; and may prohibit and prevent the sale or use of all spirituous liquors, wines, ale or beer, or holding of huckster or auction sales, and all gambling therein, and remove disorderly persons beyond the limits of such parade or encampment, or within a distance of two miles therefrom, and the commanding officer shall have full authority to abate as common nuisances all disorderly places, and bar all unauthorized sales within such limits. (2) Any person violating this section, or any order issued in pursuance thereof, is guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars, or imprisoned not more than thirty days, or both such fine and imprisonment. (3) No license or renewal thereof shall be issued or granted to any person, firm or corporation for the sale of intoxicating or spirituous liquors within a distance of three hundred feet from any armory used by the state of Washington for military purposes, without the approval of the adjutant general. [2003 c 53 § 210; 1989 c 19 § 44; 1963 c 220 § 137; 1943 c 130 § 52; Rem. Supp. 1943 § 8603-52. Prior: 1937 c 51 § 1; 1909 c 134 § 62; 1895 c 108 § 99.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 38.32.140 38.32.140 Sentence to confinement. All military courts of the organized militia of Washington shall have power to sentence to confinement in lieu of fines authorized to be imposed: PROVIDED, That such sentence of confinement shall not exceed one day for each dollar of fine authorized. [1943 c 130 § 61; 1917 c 107 § 53; Rem. Supp. 1943 § 8603-61.] Chapter 38.36 Chapter 38.36 RCW TRIAL PROCEDURE Sections 38.36.120 Fees and mileage. 38.36.120 38.32.100 Buying and receiving military property. Any person who shall purchase or receive in pawn or pledge any military property of the state or of the United States shall be guilty of a gross misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned for not more than six months or both such fine and imprisonment. [1943 c 130 § 87; Rem. Supp. 1943 § 8603-87. Cf. 1917 c 107 § 68.] 38.32.100 38.32.120 Authority of commanding officer. (1) The commanding officer at any drill, parade, encampment or 38.32.120 [Title 38 RCW—page 16] 38.36.120 Fees and mileage. Fees and mileage allowed for the service of process and for civilian witnesses shall be the same as in civil actions. All expenditures necessary to carry the provisions of chapter 130, Laws of 1943, into effect are hereby authorized to be incurred, and paid out of the appropriations for the maintenance of the organized militia of Washington. [1943 c 130 § 78; Rem. Supp. 1943 § 8603-78. Prior: 1917 c 107 § 59; 1909 c 134 § 90.] Juror expense payments: RCW 2.36.150. Travel expense in lieu of mileage in certain cases: RCW 2.40.030. Witness fees and mileage: RCW 2.40.010. (2008 Ed.) Washington Code of Military Justice Chapter 38.38 RCW WASHINGTON CODE OF MILITARY JUSTICE Chapter 38.38 Sections PART I—GENERAL PROVISIONS 38.38.004 38.38.008 38.38.012 38.38.016 38.38.020 38.38.024 Definitions. Persons subject to this code. Jurisdiction to try certain personnel. Dismissal of commissioned officer. Territorial applicability of the code. Judge advocates and legal officers. PART II—APPREHENSION AND RESTRAINT 38.38.064 38.38.068 38.38.072 38.38.076 38.38.080 38.38.084 38.38.088 38.38.092 Apprehension. Apprehension of deserters. Imposition of restraint. Restraint of persons charged with offenses. Confinement in jails. Reports and receiving of prisoners. Punishment prohibited before trial. Delivery of offenders to civil authorities. 38.38.440 Record of trial. 38.38.480 38.38.484 38.38.488 38.38.492 Cruel and unusual punishments prohibited. Maximum limits—Reduction in pay grade. Effective date of sentences. Execution of confinement. PART VIII—SENTENCES PART IX—REVIEW OF COURTS-MARTIAL 38.38.532 38.38.536 38.38.540 38.38.544 38.38.548 38.38.552 38.38.556 38.38.560 38.38.564 38.38.568 38.38.572 38.38.576 38.38.580 38.38.584 PART III—NONJUDICIAL PUNISHMENT 38.38.132 Commanding officer’s nonjudicial punishment—Suspension—Appeal. PART IV—COURTS-MARTIAL JURISDICTION 38.38.172 38.38.176 38.38.180 38.38.184 38.38.188 38.38.192 38.38.196 38.38.200 Courts-martial of organized militia not in federal service— Composition—Jurisdiction—Powers and proceedings. Jurisdiction of courts-martial in general. Jurisdiction of general courts-martial. Jurisdiction of special courts-martial—Dishonorable discharge. Jurisdiction of summary courts-martial. Sentences of dismissal or dishonorable discharge to be approved by the governor. Complete record of proceedings and testimony if dishonorable discharge or dismissal adjudged. Confinement instead of fine. PART V—APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL 38.38.240 38.38.244 38.38.248 38.38.252 38.38.256 38.38.260 38.38.264 38.38.268 Who may convene general courts-martial. Special courts-martial of organized militia not in federal service—Who may convene. Summary courts-martial of organized militia not in federal service—Who may convene. Who may serve on courts-martial. Military judge of a general or special court-martial. Detail of trial counsel and defense counsel. Detail or employment of reporters and interpreters. Absent and additional members. PART VI—PRETRIAL PROCEDURE 38.38.308 38.38.312 38.38.316 38.38.320 38.38.324 38.38.328 Charges and specifications. Compulsory self-incrimination prohibited. Investigation. Forwarding of charges. Advice of state judge advocate and reference for trial. Service of charges. PART VII—TRIAL PROCEDURE 38.38.368 38.38.372 38.38.376 38.38.380 38.38.384 38.38.388 38.38.392 38.38.396 38.38.400 38.38.404 38.38.408 38.38.412 38.38.416 38.38.420 38.38.424 38.38.428 38.38.432 38.38.436 (2008 Ed.) Governor may prescribe rules. Unlawfully influencing action of court. Duties of trial counsel and defense counsel. Sessions. Continuances. Challenges. Oaths. Statute of limitations. Former jeopardy. Pleas of the accused. Opportunity to obtain witnesses and other evidence. Refusal to appear or testify—Penalty. Contempts. Depositions. Admissibility of records of courts of inquiry. Voting, rulings, instructions. Number of votes required. Court to announce action. Chapter 38.38 Execution of sentence—Suspension of sentence. Initial action on the record. Initial action on the record—General court-martial records. Reconsideration and revision. Rehearings. Approval by the convening authority. Review of records—Disposition. Error of law—Lesser included offense. Review counsel. Vacation of suspension. Petition for a new trial. Remission and suspension. Restoration. Finality of proceedings, findings and sentences. PART X—PUNITIVE ARTICLES 38.38.624 38.38.628 38.38.632 38.38.636 38.38.640 38.38.644 38.38.648 38.38.652 38.38.656 38.38.660 38.38.664 38.38.668 38.38.672 38.38.676 38.38.680 38.38.684 38.38.688 38.38.692 38.38.696 38.38.700 38.38.704 38.38.708 38.38.712 38.38.716 38.38.720 38.38.724 38.38.728 38.38.732 38.38.736 38.38.740 38.38.744 38.38.748 38.38.752 38.38.756 38.38.760 38.38.764 38.38.768 38.38.772 38.38.776 38.38.780 38.38.784 38.38.788 38.38.792 38.38.796 38.38.800 Persons to be tried or punished. Principals. Accessory after the fact. Conviction of lesser included offense. Attempts. Conspiracy. Solicitation. Fraudulent enlistment, appointment, or separation. Unlawful enlistment, appointment, or separation. Desertion. Absence without leave. Missing movement. Contempt towards officials. Disrespect towards superior commissioned officer. Assaulting or wilfully disobeying superior commissioned officer. Insubordinate conduct toward warrant officer or noncommissioned officer. Failure to obey order or regulation. Cruelty and maltreatment. Mutiny or sedition. Resistance, breach of arrest, and escape. Releasing prisoner without proper authority. Unlawful detention of another. Noncompliance with procedural rules. Misbehavior before the enemy. Subordinate compelling surrender. Improper use of countersign. Forcing a safeguard. Captured or abandoned property. Aiding the enemy. Misconduct of a prisoner. False official statements. Military property—Loss, damage, destruction, or wrongful disposition. Property other than military property—Waste, spoilage, or destruction. Improper hazarding of vessel. Drunken or reckless driving. Drunk on duty—Sleeping on post—Leaving post before relief. Dueling. Malingering. Riot or breach of peace. Provoking speeches or gestures. Perjury. Frauds against the government. Larceny and wrongful appropriation. Conduct unbecoming an officer and a gentleman. General article. PART XI—MISCELLANEOUS PROVISIONS 38.38.840 38.38.844 38.38.848 38.38.852 38.38.856 38.38.860 38.38.864 Courts of inquiry. Authority to administer oaths. Sections to be explained. Complaints of wrongs. Redress of injuries to property. Execution of process and sentence. Process of military courts. [Title 38 RCW—page 17] 38.38.004 38.38.868 38.38.872 38.38.876 38.38.880 38.38.884 38.38.888 Title 38 RCW: Militia and Military Affairs Payment of fines and disposition thereof. Immunity for action of military courts. Presumption of jurisdiction. Delegation of authority by the governor. Uniformity of interpretation. Short title. Reviser’s note: Article numbers in this chapter parallel equivalent sections in the federal Uniform Code of Military Justice and do not constitute part of the law. PART I—GENERAL PROVISIONS 38.38.004 [Art. 1] Definitions. In this chapter, unless the context otherwise requires: (1) "Organized militia" means the national guard of the state, as defined in section 101(3) of title 32, United States Code, and any other military force organized under the laws of the state of Washington. (2) "Officer" means commissioned or warrant officer. (3) "Commissioned officer" includes a commissioned warrant officer. (4) "Commanding officer" includes only commissioned officers in command of a unit. (5) "Superior commissioned officer" means a commissioned officer superior in rank or command. (6) "Enlisted member" means a person in an enlisted grade. (7) "Grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation. (8) "Rank" means the order of precedence among members of the organized militia. (9) The term "active state service" or "active training duty" shall be construed to be any service on behalf of the state, or at encampments whether ordered by state or federal authority or any other duty requiring the entire time of any organization or person except when called or drafted into the federal service by the president of the United States. The term "inactive duty" shall include periods of drill and such other training and service not requiring the entire time of the organization or person, as may be required under state or federal laws, regulations, or orders, including travel to and from such duty. (10) "Military court" means a court-martial or a court of inquiry. (11) "Military judge" means the presiding officer of a general or special court-martial detailed in accordance with RCW 38.38.256. (12) "State judge advocate" means the commissioned officer responsible for supervising the administration of the military justice in the organized militia. (13) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any person who has an interest other than an official interest in the prosecution of the accused. (14) "Military" refers to any or all of the armed forces. (15) "Convening authority" includes, in addition to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command. (16) "May" is used in a permissive sense. The words "no person may. . ." mean that no person is required, authorized, or permitted to do the act prescribed. 38.38.004 [Title 38 RCW—page 18] (17) "Shall" is used in an imperative sense. (18) "Code" means this chapter. (19) "A month’s pay" or fraction thereof shall be calculated based upon a member’s basic pay entitlement as if the member were serving for a thirty-day period. [1989 c 48 § 1; 1963 c 220 § 1.] Effective date—1963 c 220: "This act shall take effect on July 1, 1963." [1963 c 220 § 140.] For codification of 1963 c 220, see Codification Tables, Volume 0. 38.38.008 [Art. 2] Persons subject to this code. This code applies to all members of the organized militia who are not in federal service. [1989 c 48 § 2; 1963 c 220 § 2.] 38.38.008 38.38.012 [Art. 3] Jurisdiction to try certain personnel. No person who has deserted from the organized militia may be relieved from amenability to the jurisdiction of this code by virtue of a separation from any later period of service. [1989 c 48 § 3; 1989 c 11 § 9; 1963 c 220 § 3.] 38.38.012 Reviser’s note: This section was amended by 1989 c 11 § 9 and by 1989 c 48 § 3, each without reference to the other. Both amendments are incorporated in the publication of this section pursuant to RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Severability—1989 c 11: See note following RCW 9A.56.220. 38.38.016 [Art. 4] Dismissal of commissioned officer. (1) If any commissioned officer, dismissed by order of the governor, makes a written application for trial by court-martial, setting forth, under oath, that he or she has been wrongfully dismissed, the governor, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which the officer was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and the officer shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which the officer is charged. The courtmartial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the chief of staff to the governor or adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue. (2) If the governor fails to convene a general court-martial within six months from the presentation of an application for trial under this code, the chief of staff to the governor or adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue. (3) If a discharge is substituted for a dismissal under this code, the governor alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the governor, that former officer would have attained had the officer not been dismissed. The reappointment of such a former officer may be made only if a vacancy is available under applicable tables of organization. All time between the dismissal and the reappointment shall be considered as actual service for all purposes. (4) If an officer is discharged from the organized militia by administrative action or by board proceedings under law, or is dropped from the rolls by order of the governor, the 38.38.016 (2008 Ed.) Washington Code of Military Justice officer has no right to trial under this section. [1989 c 48 § 4; 1963 c 220 § 4.] 38.38.020 [Art. 5] Territorial applicability of the code. (1) This code applies throughout the state. It also applies to all persons otherwise subject to this code while they are serving outside the state, and while they are going to and returning from such service outside the state, in the same manner and to the same extent as if they were serving inside the state. (2) Courts-martial and courts of inquiry may be convened and held in units of the organized militia while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state. [1989 c 48 § 5; 1963 c 220 § 5.] 38.38.080 and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein. [1989 c 48 § 7; 1963 c 220 § 7.] 38.38.020 38.38.024 [Art. 6] Judge advocates and legal officers. (1) The governor, on the recommendation of the adjutant general, shall appoint an officer of the organized militia as state judge advocate. To be eligible for appointment, an officer must be a member of the bar of the highest court of the state and must have been a member of the bar of the state for at least five years. (2) The adjutant general may appoint as many assistant state judge advocates as he or she considers necessary. To be eligible for appointment, assistant state judge advocates must be officers of the organized militia and members of the bar of the highest court of the state. (3) The state judge advocate or assistants shall make frequent inspections in the field in supervision of the administration of military justice. (4) Convening authorities shall at all times communicate directly with their staff judge advocates in matters relating to the administration of military justice; and the staff judge advocate of any command is entitled to communicate directly with the staff judge advocate of a superior or subordinate command, or with the state judge advocate. (5) No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer, or who has been a witness for either the prosecution or defense, in any case may later act as staff judge advocate to any reviewing authority upon the same case. [1989 c 48 § 6; 1963 c 220 § 6.] 38.38.024 PART II—APPREHENSION AND RESTRAINT 38.38.064 [Art. 7] Apprehension. (1) Apprehension is the taking of a person into custody. (2) Any person authorized by this code, or by regulations issued under it, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer authorized to do so by law, may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. (3) Commissioned officers, warrant officers, and noncommissioned officers have authority to quell quarrels, frays, 38.38.064 (2008 Ed.) 38.38.068 [Art. 8] Apprehension of deserters. Any civil officer having authority to apprehend offenders under the laws of the United States or of a state, territory, commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the state of Washington organized militia and deliver the offender into the custody of the state of Washington organized militia. If an offender is apprehended outside of the state of Washington, the return to the area must be in accordance with normal extradition procedures or reciprocal agreement. [1989 c 48 § 8; 1963 c 220 § 8.] 38.38.068 38.38.072 [Art. 9] Imposition of restraint. (1) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits. Confinement is the physical restraint of a person. (2) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code or through any person authorized by this code to apprehend persons. A commanding officer may authorize warrant officers or noncommissioned officers to order enlisted members of the officer’s command or subject to the officer’s authority into arrest or confinement. (3) A commissioned officer or a warrant officer may be ordered apprehended or into arrest or confinement only by a commanding officer to whose authority the officer is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons apprehended or into arrest or confinement may not be delegated. (4) No person may be ordered apprehended or into arrest or confinement except for probable cause. (5) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified. [1989 c 48 § 9; 1963 c 220 § 9.] 38.38.072 38.38.076 [Art. 10] Restraint of persons charged with offenses. Any person subject to this code charged with an offense under this code shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, such person shall not ordinarily be placed in confinement. When any person subject to this code is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform the person of the specific wrong of which he or she is accused and to try the person or to dismiss the charges and release the person. [1989 c 48 § 10; 1963 c 220 § 10.] 38.38.076 38.38.080 [Art. 10a] Confinement in jails. Persons confined other than in a guard house, whether before, during or after trial by a military court, shall be confined in civil jails, penitentiaries, or prisons designated by the governor or 38.38.080 [Title 38 RCW—page 19] 38.38.084 Title 38 RCW: Militia and Military Affairs by such person as the governor may authorize to act. [1989 c 48 § 11; 1963 c 220 § 11.] 38.38.084 [Art. 11] Reports and receiving of prisoners. (1) No provost marshal, commander of a guard, master at arms, warden, keeper, or officer of a city or county jail or any other jail, penitentiary, or prison designated under RCW 38.38.080, may refuse to receive or keep any prisoner committed to his or her charge, when the committing person furnishes a statement, signed by the committing person, of the offense charged against the prisoner. (2) Every commander of a guard, master at arms, warden, keeper, or officer of a city or county jail or of any other jail, penitentiary, or prison designated under RCW 38.38.080, to whose charge a prisoner is committed shall, within twenty-four hours after that commitment or as soon as he or she is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment. [1989 c 48 § 12; 1963 c 220 § 12.] 38.38.084 38.38.088 [Art. 13] Punishment prohibited before trial. Subject to RCW 38.38.488, no person, while being held for trial or the result of trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon the person be any more rigorous than the circumstances require to insure his or her presence, but the person may be subjected to minor punishment during that period for infractions of discipline. [1989 c 48 § 13; 1963 c 220 § 13.] 38.38.088 38.38.092 [Art. 14] Delivery of offenders to civil authorities. (1) Under such regulations as may be prescribed under this code a person subject to this code who is on active state service or inactive duty who is accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial. (2) When delivery under this section is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offense shall, upon the request of competent military authority, be returned to military custody for the completion of the sentence. [1989 c 48 § 14; 1963 c 220 § 14.] 38.38.092 PART III—NONJUDICIAL PUNISHMENT 38.38.132 [Art. 15] Commanding officer’s nonjudicial punishment—Suspension—Appeal. (1) Under such regulations as the governor may prescribe, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this section to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of 38.38.132 [Title 38 RCW—page 20] a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the organized militia under this section if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the governor, a commanding officer exercising general court-martial jurisdiction or an officer of general rank in command may delegate powers under this section to a principal assistant. (2) Subject to subsection (1) of this section, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial: (a) Upon officers of his or her command: (i) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive duty or drill days; (ii) If imposed by an officer exercising general courtmartial jurisdiction or an officer of general rank in command: (A) Forfeiture of up to thirty days’ pay, but not more than fifteen days’ pay per month; (B) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive drill or duty days; (C) Detention of up to forty-five days’ pay, but not more than fifteen days’ pay per month; (b) Upon other personnel of his or her command: (i) If imposed upon a person attached to or embarked in a vessel, confinement for not more than three consecutive days; (ii) Forfeiture of not more than seven days’ pay; (iii) Reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction; (iv) Extra duties, including fatigue or other duties for not more than fourteen duty or drill days, which need not be consecutive, and for not more than two hours per day, holidays included; (v) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days; (vi) Detention of not more than fourteen days’ pay; (vii) If imposed by an officer of the grade of major or above: (A) The punishment authorized in subsection (2)(b)(i) of this section; (B) Forfeiture of up to thirty days’ pay, but not more than fifteen days’ pay per month; (C) Reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; (D) Extra duties, including fatigue or other duties, for not more than fourteen drill or duty days, which need not be consecutive, and for not more than two hours per day, holidays included; (2008 Ed.) Washington Code of Military Justice (E) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days; (F) Detention of up to forty-five days’ pay, but not more than fifteen days’ pay per month. Detention of pay shall be for a stated period of not more than one year but if the offender’s term of service expires earlier, the detention shall terminate upon that expiration. Extra duties and restriction may not be combined to run consecutively in the maximum amount imposable for each. Whenever any such punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. (3) An officer in charge may impose upon enlisted members assigned to the unit of which the officer is in charge such of the punishment authorized under subsection (2)(b) of this section as the governor may specifically prescribe by regulation. (4) The officer who imposes the punishment authorized in subsection (2) of this section, or a successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection (2) of this section, whether or not executed. In addition, the officer may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. The officer may also mitigate reduction in grade to forfeiture or detention of pay. When mitigating extra duties to restriction, the restriction shall not be longer than the number of hours of extra duty that may have been imposed. When mitigating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention shall not be greater than the amount that could have been imposed initially under this section by the officer who imposed the punishment mitigated. (5) A person punished under this section who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (4) of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment of: (a) Forfeiture of more than seven days’ pay; (b) Reduction of one or more pay grades from the fourth or a higher pay grade; (c) Extra duties for more than ten days; (d) Restriction for more than ten days; or (e) Detention of more than fourteen days’ pay; the authority who is to act on the appeal shall refer the case to a judge advocate for consideration and advice, and may so refer the case upon appeal from any punishment imposed under subsection (2) of this section. (6) The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense grow(2008 Ed.) 38.38.180 ing out of the same act or omission, and not properly punishable under this section; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. (7) The governor may by regulation prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing. [1991 c 43 § 5; 1989 c 48 § 15; 1963 c 220 § 15.] PART IV—COURTS-MARTIAL JURISDICTION 38.38.172 [Art. 16] Courts-martial of organized militia not in federal service—Composition—Jurisdiction— Powers and proceedings. (1) In the organized militia not in federal service, there are general, special, and summary courts-martial constituted like similar courts of the armed forces of the United States. They have the jurisdiction and powers, except as to punishments, and shall follow the forms and procedures provided for those courts. (2) The three kinds of courts-martial are: (a) General courts-martial, consisting of a military judge and not less than five members, or only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves; (b) Special courts-martial, consisting of not less than three members, or a military judge and not less than three members, or only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in (a) of this subsection so requests; and (c) Summary courts-martial, consisting of one commissioned officer. [1989 c 48 § 16; 1963 c 220 § 16.] 38.38.172 38.38.176 [Art. 17] Jurisdiction of courts-martial in general. Each force of the organized militia has court-martial jurisdiction over all persons subject to this code. The exercise of jurisdiction by one force over personnel of another force shall be in accordance with regulations prescribed by the governor. [1989 c 48 § 17; 1963 c 220 § 17.] 38.38.176 38.38.180 [Art. 18] Jurisdiction of general courtsmartial. Subject to RCW 38.38.176, general courts martial have jurisdiction to try persons subject to this code for any offense made punishable by this code and may, under such limitations as the governor may prescribe, adjudge any of the following punishments: (1) A fine of not more than two hundred dollars; (2) Forfeiture of pay and allowances; (3) A reprimand; (4) Dismissal or dishonorable discharge; (5) Reduction of a noncommissioned officer to the ranks; or (6) Any combination of these punishments. [1963 c 220 § 18.] 38.38.180 [Title 38 RCW—page 21] 38.38.184 Title 38 RCW: Militia and Military Affairs 38.38.184 38.38.184 [Art. 19] Jurisdiction of special courtsmartial—Dishonorable discharge. Subject to RCW 38.38.176, special courts-martial have jurisdiction to try persons subject to this code for any offense for which they may be punished under this code. A special court-martial has the same powers of punishment as a general court-martial, except that a fine imposed by a special court-martial may not be more than one hundred dollars for a single offense. A dishonorable discharge may not be adjudged unless a complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under RCW 38.38.260 was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial because of physical conditions or military exigencies. In any such case in which a military judge was not detailed to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could not be detailed. [1989 c 48 § 18; 1963 c 220 § 19.] 38.38.188 38.38.188 [Art. 20] Jurisdiction of summary courtsmartial. (1) Subject to RCW 38.38.176, summary courtsmartial have jurisdiction to try persons subject to this code, except officers for any offense made punishable by this code. (2) No person with respect to whom summary courtsmartial have jurisdiction may be brought to trial before a summary court-martial if the person objects thereto, unless under RCW 38.38.132 the person has been permitted and has elected to refuse punishment under that section. If objection to trial by summary court-martial is made by an accused who has been permitted to refuse punishment under RCW 38.38.132, trial shall be ordered by special or general courtmartial, as may be appropriate. (3) A summary court-martial may sentence to a fine of not more than twenty-five dollars for a single offense, to forfeiture of pay and allowances, and to reduction of a noncommissioned officer to the ranks. [1989 c 48 § 19; 1963 c 220 § 20.] PART V—APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL 38.38.240 [Art. 22] Who may convene general courtsmartial. In the organized militia not in federal service, general courts-martial may be convened by the president or by the governor, or by the commanding general of the national guard of the District of Columbia. [1989 c 48 § 22; 1963 c 220 § 24.] 38.38.240 38.38.244 [Art. 23] Special courts-martial of organized militia not in federal service—Who may convene. (1) In the organized militia not in federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a brigade, regiment, wing, group, detached battalion, separate squadron, or other detached command, may convene special courts-martial. Special courts-martial may also be convened by superior authority. When any such officer is an accuser, the court shall be convened by superior competent authority. (2) A special court-martial may not try a commissioned officer. [1989 c 48 § 23; 1963 c 220 § 25.] 38.38.244 38.38.248 [Art. 24] Summary courts-martial of organized militia not in federal service—Who may convene. (1) In the organized militia not in federal service, the commanding officer of a garrison, fort, post, camp, air base, auxiliary air base, or other place where troops are on duty, or of a regiment, wing, group, detached battalion, detached squadron, detached company, or other detachment, may convene a summary court-martial consisting of one commissioned officer. The proceedings shall be informal. (2) When only one commissioned officer is present with a command or detachment the commissioned officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him or her. Summary courts-martial may, however, be convened in any case by superior competent authority when considered desirable. [1989 c 48 § 24; 1963 c 220 § 26.] 38.38.248 38.38.192 38.38.192 Sentences of dismissal or dishonorable discharge to be approved by the governor. In the organized militia not in federal service, no sentence of dismissal or dishonorable discharge may be executed until it is approved by the governor. [1963 c 220 § 21.] 38.38.196 38.38.196 Complete record of proceedings and testimony if dishonorable discharge or dismissal adjudged. A dishonorable discharge or dismissal may not be adjudged by any court-martial unless a complete record of the proceedings and testimony before the court has been made. [1989 c 48 § 20; 1963 c 220 § 22.] 38.38.200 38.38.200 Confinement instead of fine. In the organized militia not in federal service, a court-martial may, instead of imposing a fine, sentence to confinement for not more than one day for each dollar of the authorized fine. [1989 c 48 § 21; 1963 c 220 § 23.] [Title 38 RCW—page 22] 38.38.252 [Art. 25] Who may serve on courts-martial. (1) Any commissioned officer of or on duty with the organized militia is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial. (2) Any warrant officer of or on duty with the organized militia is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial. (3)(a) Any enlisted member of the organized militia who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member who may lawfully be brought before such courts for trial, but shall serve as a member of a court only if, before the conclusion of a session called by the military judge under RCW 38.38.380(1) prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested in writing 38.38.252 (2008 Ed.) Washington Code of Military Justice that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the court may be convened and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the record, stating why they could not be obtained. (b) In this section, the word "unit" means any regularly organized body of the organized militia not larger than a company, a squadron, or a body corresponding to one of them. (4)(a) When it can be avoided, no person subject to this code may be tried by a court-martial any member of which is junior to the person in rank or grade. (b) When convening a court-martial, the convening authority shall detail as members thereof such members as, in his or her opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member is eligible to serve as a member of a general or special court-martial when the member is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case. (c) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the governor may prescribe, the convening authority may delegate his or her authority under this subsection to the staff judge advocate or to any other principal assistant. [1989 c 48 § 25; 1963 c 220 § 27.] 38.38.256 [Art. 26] Military judge of a general or special court-martial. (1) A military judge shall be detailed to each general court-martial. Subject to regulations of the governor, a military judge may be detailed to any special courtmartial. The governor shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall preside over each open session of the court-martial to which he or she has been detailed. (2) A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a federal court or a member of the bar of the highest court of a state and who is certified to be qualified for duty as a military judge by the state judge advocate. (3) The military judge of a general court-martial shall be designated by the state judge advocate or a designee for detail in accordance with regulations prescribed under subsection (1) of this section. Unless the court-martial was convened by the governor, neither the convening authority nor any member of the staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he or she is assigned and directly responsible to the state judge advocate or designee, 38.38.256 (2008 Ed.) 38.38.260 and may perform duties of a judicial or nonjudicial nature other than those relating to the primary duty as a military judge of a general court-martial when such duties are assigned by or with the approval of the state judge advocate or designee. (4) No person is eligible to act as military judge in a case if the person is the accuser or a witness for the prosecution or has acted as investigating officer or a counsel in the same case. (5) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor may the military judge vote with the members of the court. [1989 c 48 § 26; 1963 c 220 § 28.] 38.38.260 [Art. 27] Detail of trial counsel and defense counsel. (1)(a) Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant and associate defense counsel may be detailed for each general and special court-martial. The governor shall prescribe regulations providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such courts-martial. (b) No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense, nor may any person who has acted for the defense act later in the same case for the prosecution. (2) Trial counsel or defense counsel detailed for a general court-martial: (a) Must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a federal court or of the highest court of a state, or must be a member of the bar of a federal court or of the highest court of a state; and (b) Must be certified as competent to perform such duties by the state judge advocate. (3) In the case of a special court-martial: (a) The accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under subsection (2) of this section unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained; (b) If the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening authority must be a person similarly qualified; and (c) If the trial counsel is a judge advocate or a member of the bar of a federal court or the highest court of a state, the defense counsel detailed by the convening authority must be one of the foregoing. [1991 c 43 § 6; 1989 c 48 § 27; 1963 c 220 § 29.] 38.38.260 [Title 38 RCW—page 23] 38.38.264 Title 38 RCW: Militia and Military Affairs 38.38.264 [Art. 28] Detail or employment of reporters and interpreters. Under such regulations as the governor may prescribe, the convening authority of a general or special court martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court. Under like regulations the convening authority of a military court may detail or employ interpreters who shall interpret for the court. [1963 c 220 § 30.] 38.38.264 38.38.268 [Art. 29] Absent and additional members. (1) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the convening authority for good cause. (2) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members. The trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides. (3) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, if any, the accused, and counsel for both sides. (4) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of RCW 38.38.172(2) (a) or (b), after the detail of a new military judge as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for both sides. [1989 c 48 § 28; 1963 c 220 § 31.] 38.38.268 PART VI—PRETRIAL PROCEDURE 38.38.308 [Art. 30] Charges and specifications. (1) Charges and specifications shall be signed by a person subject to this code under oath before a person authorized by this code to administer oaths and shall state: (a) That the signer has personal knowledge of, or has investigated, the matters set forth therein; and (b) That they are true in fact to the best of his or her knowledge and belief. (2) Upon the preferring of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in the interest of justice and disci38.38.308 [Title 38 RCW—page 24] pline, and the person accused shall be informed of the charges against him or her as soon as practicable. [1989 c 48 § 29; 1963 c 220 § 32.] 38.38.312 38.38.312 [Art. 31] Compulsory self-incrimination prohibited. (1) No person subject to this code may compel persons to incriminate themselves or to answer any question the answer to which may tend to incriminate them. (2) No person subject to this code may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing the person of the nature of the accusation and advising that the person does not have to make any statement regarding the offense of which he or she is accused or suspected and that any statement made by the person may be used as evidence against him or her in a trial by court-martial. (3) No person subject to this code may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade the person. (4) No statement obtained from any person in violation of this section, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial. [1989 c 48 § 30; 1963 c 220 § 33.] 38.38.316 38.38.316 [Art. 32] Investigation. (1) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline. (2) The accused shall be advised of the charges against him or her and of the right to be represented at that investigation by counsel. The accused has a right to be represented at that investigation as provided in RCW 38.38.376 and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him or her if they are available and to present anything the person may desire in his or her own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused. (3) If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused was present at the investigation and afforded the opportunities for representation, crossexamination, and presentation prescribed in subsection (2) hereof, no further investigation of that charge is necessary under this section unless it is demanded by the accused after being informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his or her own behalf. (2008 Ed.) Washington Code of Military Justice 38.38.376 (4) The requirements of this section are binding on all persons administering this code but failure to follow them does not divest a military court of jurisdiction. [1989 c 48 § 31; 1963 c 220 § 34.] the rules of evidence generally recognized in the trial of criminal cases in the courts of the state, but which may not be contrary to or inconsistent with this code. [1989 c 48 § 35; 1963 c 220 § 38.] 38.38.320 [Art. 33] Forwarding of charges. When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the governor. If that is not practicable, the officer shall report in writing to the governor the reasons for delay. [1989 c 48 § 32; 1963 c 220 § 35.] 38.38.372 [Art. 37] Unlawfully influencing action of court. (1) No authority convening a general, special, or summary court-martial nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his or her functions in the conduct of the proceeding. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of the court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to judicial acts. The foregoing provisions of this section shall not apply with respect to (a) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courtsmartial, or (b) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel. (2) In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the organized militia is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the organized militia, or in determining whether a member of the organized militia should be retained on active duty, no person subject to this chapter may, in preparing any such report (a) consider or evaluate the performance of duty of any such member of a court-martial, or (b) give a less favorable rating or evaluation of any member of the organized militia because of the zeal with which such member, as counsel, represented any accused before a court-martial. [1989 c 48 § 36; 1963 c 220 § 39.] 38.38.320 38.38.324 [Art. 34] Advice of state judge advocate and reference for trial. (1) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to the state judge advocate for consideration and advice. The convening authority may not refer a charge to a general court-martial for trial unless he or she has found that the charge alleges an offense under this code, is warranted by evidence indicated in the report of the investigation under RCW 38.38.316, if there is such a report, and the court-martial would have jurisdiction over the accused and the offense. (2) The advice of the staff judge advocate under subsection (1) of this section with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate: (a) Expressing conclusions with respect to each matter set forth in subsection (1) of this section; and (b) Recommending action that the convening authority take regarding the specification. If the specification is referred for trial, the recommendation of the state judge advocate shall accompany the specification. (3) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence may be made. [1989 c 48 § 33; 1963 c 220 § 36.] 38.38.324 38.38.328 [Art. 35] Service of charges. The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had. In time of peace no person may, against his or her objection, be brought to trial or be required to participate by himself or counsel in a session called by a military judge under RCW 38.38.380(1), in a general courtmartial within a period of five days after the service of the charges upon him or her, or before a special court-martial within a period of three days after the service of the charges upon him or her. [1989 c 48 § 34; 1963 c 220 § 37.] 38.38.328 PART VII—TRIAL PROCEDURE 38.38.368 [Art. 36] Governor may prescribe rules. The procedure, including modes of proof, in cases before military courts and other military tribunals may be prescribed by the governor by regulations, which shall, so far as the governor considers practicable, apply the principles of law and 38.38.368 (2008 Ed.) 38.38.372 38.38.376 [Art. 38] Duties of trial counsel and defense counsel. (1) The trial counsel of a general or special courtmartial shall prosecute in the name of the state, and shall, under the direction of the court, prepare the record of the proceedings. (2) The accused has the right to be represented in his or her defense before a general or special court-martial by civilian counsel if provided by the accused, or by military counsel of his or her own selection if reasonably available as defined in regulations of the governor, or by the defense counsel detailed under RCW 38.38.260. Should the accused have civilian counsel of his or her own selection, the defense counsel, and assistant defense counsel, if any, who were detailed, shall, if the accused so desires, act as associate counsel; otherwise they shall be excused by the military judge or president of a special court-martial. (3) In every court-martial proceeding, the defense counsel may, in the event of conviction, forward for attachment to the record of proceedings a brief of such matters the defense 38.38.376 [Title 38 RCW—page 25] 38.38.380 Title 38 RCW: Militia and Military Affairs counsel feels should be considered in behalf of the accused on review, including any objection to the contents of the record which he or she considers appropriate and assist the accused in the submission of any matter under RCW 38.38.536. (4) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when qualified to be a trial counsel as required by RCW 38.38.260, perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel. (5) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when qualified to be the defense counsel as required by RCW 38.38.260, perform any duty imposed by law, regulation, or the custom of the service upon counsel for the accused. [1989 c 48 § 37; 1963 c 220 § 40.] 38.38.380 [Art. 39] Sessions. (1) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to RCW 38.38.328, call the court into session without the presence of the members for the purpose of: (a) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; (b) Hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members of the court; (c) Holding the arraignment and receiving the pleas of the accused; and (d) Performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to RCW 38.38.368 and which does not require the presence of the members of the court. These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. (2) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and in cases in which a military judge has been detailed to the court, the military judge. [1989 c 48 § 38; 1963 c 220 § 41.] 38.38.380 38.38.384 [Art. 40] Continuances. The military judge or a court-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time and as often as may appear to be just. [1989 c 48 § 39; 1963 c 220 § 42.] 38.38.384 38.38.388 [Art. 41] Challenges. (1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated 38.38.388 [Title 38 RCW—page 26] to the court. The military judge or, if none, the court shall determine the relevance and validity of challenges for cause and may not receive a challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered. (2) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause. [1989 c 48 § 40; 1963 c 220 § 43.] 38.38.392 [Art. 42] Oaths. (1) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the governor. These regulations may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or associate defense counsel may be taken at any time by a judge advocate or other person certified to be qualified or competent for the duty, and if such an oath is taken it need not again be taken at the time the judge advocate, or other person, is detailed to that duty. (2) Each witness before a court-martial shall be examined on oath. [1989 c 48 § 41; 1963 c 220 § 44.] 38.38.392 38.38.396 [Art. 43] Statute of limitations. (1) A person charged with desertion or absence without leave in time of war, or with aiding the enemy or with mutiny may be tried and punished at any time without limitation. (2) Except as otherwise provided in this section, a person charged with desertion in time of peace or with the offense punishable under RCW 38.38.784 is not liable to be tried by court-martial if the offense was committed more than three years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command. (3) Except as otherwise provided in this section, a person charged with any offense is not liable to be tried by courtmartial or punished under RCW 38.38.132 if the offense was committed more than two years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under RCW 38.38.132. (4) Periods in which the accused was absent from territory in which the state has the authority to apprehend the accused, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this section. [1989 c 48 § 42; 1963 c 220 § 45.] 38.38.396 38.38.400 [Art. 44] Former jeopardy. (1) No person may, without the person’s consent, be tried a second time in any military court of the state for the same offense. (2) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this section until the finding of guilty has 38.38.400 (2008 Ed.) Washington Code of Military Justice become final after review of the case has been fully completed. (3) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this section. [1989 c 48 § 43; 1963 c 220 § 46.] 38.38.404 38.38.404 [Art. 45] Pleas of the accused. (1) If an accused arraigned before a court-martial makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty. (2) With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. [1991 c 43 § 7; 1989 c 48 § 44; 1963 c 220 § 47.] 38.38.408 38.38.408 [Art. 46] Opportunity to obtain witnesses and other evidence. (1) The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the governor may prescribe. (2) The president of a special court-martial, military judge, or a summary court officer may: (a) Issue a warrant for the arrest of any accused person who, having been served with a warrant and a copy of the charges, disobeys a written order by the convening authority to appear before the court; (b) Issue subpoenas duces tecum and other subpoenas; (c) Enforce by attachment the attendance of witnesses and the production of books and papers; and (d) Sentence for refusal to be sworn or to answer, as provided in actions before civil courts of the state. (3) Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall run to any part of the state and shall be executed by civil officers as prescribed by the laws of the state. [1989 c 48 § 45; 1963 c 220 § 48.] 38.38.412 38.38.412 [Art. 47] Refusal to appear or testify— Penalty. (1) Any person not subject to this code who: (a) Has been duly subpoenaed to appear as a witness or to produce books and records before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court; (2008 Ed.) 38.38.420 (b) Has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the superior court of the state; and (c) Wilfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce; is guilty of an offense against the state. (2) Any person who commits an offense named in subsection (1) of this section shall be tried before the superior court of this state having jurisdiction and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be punished by a fine of not more than five hundred dollars, or imprisonment for not more than six months, or both. (3) The prosecuting attorney in any such court, upon the certification of the facts by the military court, commission, court of inquiry, or board, shall prosecute any person violating this section. [1989 c 48 § 46; 1963 c 220 § 49.] 38.38.416 38.38.416 Contempts. A military court may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for thirty days or a fine of one hundred dollars, or both. [1963 c 220 § 50.] 38.38.420 38.38.420 [Art. 49] Depositions. (1) At any time after charges have been signed, as provided in RCW 38.38.308, any party may take oral or written depositions unless a military judge or court-martial without a military judge hearing the case, or if the case is not being heard, an authority competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness. (2) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. (3) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the state or by the laws of the place where the deposition is taken to administer oaths. (4) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any court-martial or in any proceeding before a court of inquiry, if it appears: (a) That the witness resides or is beyond the state in which the court-martial or court of inquiry is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing; (b) That the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or [Title 38 RCW—page 27] 38.38.424 Title 38 RCW: Militia and Military Affairs (c) That the present whereabouts of the witness is unknown. [1989 c 48 § 47; 1963 c 220 § 51.] 38.38.424 [Art. 50] Admissibility of records of courts of inquiry. (1) In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. (2) Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer. (3) Such testimony may also be read in evidence before a court of inquiry or a military board. [1963 c 220 § 52.] 38.38.424 38.38.428 [Art. 51] Voting, rulings, instructions. (1) Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a courtmartial without a military judge upon questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court. (2) The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a courtmartial without a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the military judge or the president of a court-martial without a military judge may change a ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a vote as provided in RCW 38.38.432, beginning with the junior in rank. (3) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them: (a) That the accused must be presumed to be innocent until guilt is established by legal and competent evidence beyond reasonable doubt; (b) That in the case being considered, if there is reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted; (c) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree to which there is no reasonable doubt; and (d) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state. 38.38.428 [Title 38 RCW—page 28] (4) Subsections (1), (2), and (3) of this section do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. [1989 c 48 § 48; 1963 c 220 § 53.] 38.38.432 38.38.432 [Art. 52] Number of votes required. (1) No person may be convicted of an offense, except as provided in RCW 38.38.404(2) or by the concurrence of two-thirds of the members present at the time the vote is taken. (2) All sentences shall be determined by the concurrence of two-thirds of the members present at the time that the vote is taken. (3) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty, or to reconsider a sentence with a view towards decreasing it, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused’s sanity is a determination against the accused. A tie vote on any other question is a determination in favor of the accused. [1989 c 48 § 49; 1963 c 220 § 54.] 38.38.436 38.38.436 [Art. 53] Court to announce action. A court martial shall announce its findings and sentence to the parties as soon as determined. [1963 c 220 § 55.] 38.38.440 38.38.440 [Art. 54] Record of trial. (1) Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason of death, disability, or absence. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions which would impose such a duty on a member under this subsection. (2) Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner required by such regulations as the governor may prescribe. (3)(a) A complete record of the proceedings and testimony shall be prepared: (i) In each general court-martial case in which the sentence adjudged includes a dismissal, a discharge, or, if the sentence adjudged does not include a discharge, any other punishment which exceeds that which may otherwise be adjudged by a special court-martial; and (2008 Ed.) Washington Code of Military Justice (ii) In each special court-martial case in which the sentence adjudged includes a dishonorable discharge. (b) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the governor. (4) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated. [1989 c 48 § 50; 1963 c 220 § 56.] PART VIII—SENTENCES 38.38.480 [Art. 55] Cruel and unusual punishments prohibited. Punishment by flogging, or by branding, marking or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited. [1963 c 220 § 57.] 38.38.480 38.38.484 [Art. 56] Maximum limits—Reduction in pay grade. (1) The punishment which a court-martial may direct for an offense may not exceed limits prescribed by this code. (2) Unless otherwise provided in regulations to be prescribed by the governor, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable discharge reduces that member to pay grade E-1, effective on the date of that approval. (3) If the sentence of a member who is reduced in pay grade under subsection (2) of this section is set aside or disapproved, or, as finally approved, does not include any punishment named in subsection (2) of this section, the rights and privileges of which the member was deprived because of that reduction shall be restored and the member is entitled to the pay and allowances to which the member would have been entitled for the period the reduction was in effect, had he or she not been so reduced. [1989 c 48 § 51; 1963 c 220 § 58.] 38.38.484 38.38.488 [Art. 57] Effective date of sentences. (1) No forfeiture may extend to any pay or allowances accrued before the date on which the sentence is approved by the person acting under RCW 38.38.536. (2) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is ordered to be executed by the convening authority, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement. Regulations prescribed by the governor may provide that sentences of confinement may not be executed until approved by designated officers. (3) All other sentences of courts-martial are effective on the date ordered executed. (4) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the accused is no longer under his or her jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned, may, in his or her sole discretion, defer service of the sentence to confinement. The deferment shall ter38.38.488 (2008 Ed.) 38.38.540 minate when the sentence is ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his or her jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned. [1989 c 48 § 52; 1963 c 220 § 59.] 38.38.492 [Art. 58] Execution of confinement. (1) A sentence of confinement adjudged by a military court, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the forces of the organized militia or in any jail, penitentiary, or prison designated for that purpose. Persons so confined in a jail, penitentiary, or prison are subject to the same discipline and treatment as persons confined or committed to the jail, penitentiary, or prison by the courts of the state or of any political subdivision thereof. (2) The omission of the words "hard labor" from any sentence or punishment of a court-martial adjudging confinement does not deprive the authority executing that sentence or punishment of the power to require hard labor as a part of the punishment. (3) The keepers, officers, and wardens of city or county jails and of other jails, penitentiaries, or prisons designated by the governor, or by such person as the governor may authorize to act under RCW 38.38.080, shall receive persons ordered into confinement before trial and persons committed to confinement by a military court and shall confine them according to law. No such keeper, officer, or warden may require payment of any fee or charge for so receiving or confining a person. [1989 c 48 § 53; 1963 c 220 § 60.] 38.38.492 PART IX—REVIEW OF COURTS-MARTIAL 38.38.532 Execution of sentence—Suspension of sentence. Except as provided in RCW 38.38.196 and 38.38.556, a court-martial sentence, unless suspended, may be ordered executed by the convening authority when approved by him or her. The convening authority shall approve the sentence or such part, amount, or commuted form of the sentence as he or she sees fit, and may suspend the execution of the sentence as approved by him or her. [1989 c 48 § 54; 1963 c 220 § 61.] 38.38.532 38.38.536 Initial action on the record. After a trial by court martial the record shall be forwarded to the convening authority, as reviewing authority, and action thereon may be taken by the person who convened the court, a commissioned officer commanding for the time being, a successor in command, or by the governor. [1963 c 220 § 62.] 38.38.536 38.38.540 [Art. 60] Initial action on the record— General court-martial records. The convening authority shall refer the record of each general court-martial to the staff judge advocate, who shall submit a written opinion thereon to the convening authority. If the final action of the court has resulted in an acquittal of all charges and specifications, the opinion shall be limited to questions of jurisdiction. [1989 c 48 § 55; 1963 c 220 § 63.] 38.38.540 [Title 38 RCW—page 29] 38.38.544 Title 38 RCW: Militia and Military Affairs 38.38.544 [Art. 61] Reconsideration and revision. (1) If a specification before a court martial has been dismissed on motion and the ruling does not amount to a finding of not guilty, the convening authority may return the record to the court for reconsideration of the ruling and any further appropriate action. (2) Where there is an apparent error or omission in the record or where the record shows improper or inconsistent action by a court martial with respect to a finding or sentence which can be rectified without material prejudice to the substantial rights of the accused, the convening authority may return the record to the court for appropriate action. In no case, however, may the record be returned: (a) For reconsideration of a finding of not guilty, or a ruling which amounts to a finding of not guilty; (b) For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some section of this code; or (c) For increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory. [1963 c 220 § 64.] 38.38.544 38.38.548 [Art. 62] Rehearings. (1) If the convening authority disapproves the findings and sentence of a court martial he may, except where there is lack of sufficient evidence in the record to support the findings, order a rehearing. In such a case he shall state the reasons for disapproval. If he disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. (2) Each rehearing shall take place before a court martial composed of members not members of the court martial which first heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court martial, and no sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. [1963 c 220 § 65.] 38.38.548 38.38.552 [Art. 63] Approval by the convening authority. In acting on the findings and sentence of a court martial, the convening authority may approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved. Unless he indicates otherwise, approval of the sentence is approval of the findings and sentence. [1963 c 220 § 66.] 38.38.552 38.38.556 [Art. 64] Review of records—Disposition. (1) If the convening authority is the governor, the governor’s action on the review of any record of trial is final. (2) In all other cases not covered by subsection (1), if the sentence of a special court-martial as approved by the convening authority includes a dishonorable discharge, whether or not suspended, the entire record shall be sent to the appropriate staff judge advocate of the state force concerned to be reviewed in the same manner as a record of trial by general court-martial. The record and the opinion of the staff judge advocate shall then be sent to the state judge advocate for review. (3) All other special and summary court-martial records shall be sent to the judge advocate of the appropriate force of the organized militia and shall be acted upon, transmitted, and disposed of as may be prescribed by regulations of the governor. (4) The state judge advocate shall review the record of trial in each case sent for review as provided under subsection (2) of this section. If the final action of the court-martial has resulted in an acquittal of all charges and specifications, the opinion of the state judge advocate is limited to questions of jurisdiction. (5) The state judge advocate shall take final action in any case reviewable by the state judge advocate. (6) In a case reviewable by the state judge advocate under this section, the state judge advocate may act only with respect to the findings and sentence as approved by the convening authority. The state judge advocate may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the state judge advocate finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the state judge advocate may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. If the state judge advocate sets aside the findings and sentence, the state judge advocate may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the state judge advocate sets aside the findings and sentence and does not order a rehearing, he shall order that the charges be dismissed. (7) In a case reviewable by the state judge advocate under this section, the state judge advocate shall instruct the convening authority to act in accordance with the state judge advocate’s decision on the review. If the state judge advocate has ordered a rehearing but the convening authority finds a rehearing impracticable, the state judge advocate may dismiss the charges. (8) The state judge advocate may order one or more boards of review each composed of not less than three commissioned officers of the organized militia, each of whom must be a member of the bar of the highest court of the state. Each board of review shall review the record of any trial by special court-martial, including a sentence to a dishonorable discharge, referred to it by the state judge advocate. Boards of review have the same authority on review as the state judge advocate has under this section. [1989 c 48 § 56; 1963 c 220 § 67.] 38.38.556 [Title 38 RCW—page 30] 38.38.560 [Art. 65] Error of law—Lesser included offense. (1) A finding or sentence of a court martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. (2) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm so much of the finding as includes a lesser included offense. [1963 c 220 § 68.] 38.38.560 (2008 Ed.) Washington Code of Military Justice 38.38.564 [Art. 66] Review counsel. (1) Upon the final review of a sentence of a general court-martial, the accused has the right to be represented by counsel before the reviewing authority, before the staff judge advocate, and before the state judge advocate. (2) Upon the request of an accused entitled to be so represented, the state judge advocate shall appoint a lawyer who is a member of the organized militia and who has the qualifications prescribed in RCW 38.38.260, if available, to represent the accused before the reviewing authority, before the staff judge advocate, and before the state judge advocate, in the review of cases specified in subsection (1) of this section. (3) If provided by the accused, an accused entitled to be so represented may be represented by civilian counsel before the reviewing authority, before the staff judge advocate, and before the state judge advocate. [1991 c 43 § 8; 1989 c 48 § 57; 1963 c 220 § 69.] 38.38.564 38.38.568 [Art. 67] Vacation of suspension. (1) Before the vacation of the suspension of a special court-martial sentence, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel if the probationer so desires. (2) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the governor in cases involving a general court-martial sentence and to the commanding officer of the force of the organized militia of which the probationer is a member in all other cases covered by subsection (1) of this section. If the governor or commanding officer vacates the suspension, any unexecuted part of the sentence except a dismissal shall be executed. (3) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence. [1989 c 48 § 58; 1963 c 220 § 70.] 38.38.568 38.38.572 [Art. 68] Petition for a new trial. At any time within two years after approval by the convening authority of a court-martial sentence which extends to dismissal or dishonorable discharge, the accused may petition the governor for a new trial on ground of newly discovered evidence or fraud on the court-martial. [1989 c 48 § 59; 1963 c 220 § 71.] 38.38.636 executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon a new trial or rehearing. (2) If a previously executed sentence of dishonorable discharge is not imposed on a new trial, the governor shall substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of his enlistment. (3) If a previously executed sentence of dismissal is not imposed on a new trial, the governor shall substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the governor alone to such commissioned grade and with such rank as in the opinion of the governor that former officer would have attained had he not been dismissed. The reappointment of such a former officer may be made if a position vacancy is available under applicable tables of organization. All time between the dismissal and reappointment shall be considered as service for all purposes. [1989 c 48 § 60; 1963 c 220 § 73.] 38.38.584 [Art. 71] Finality of proceedings, findings and sentences. The proceedings, findings and sentences of courts martial as reviewed and approved, as required by this code, and all dismissals and discharges carried into execution under sentences by courts martial following review and approval, as required by this code, are final and conclusive. Orders publishing the proceedings of courts martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the state, subject only to action upon a petition for a new trial as provided in RCW 38.38.572. [1963 c 220 § 74.] 38.38.584 PART X—PUNITIVE ARTICLES 38.38.624 [Art. 72] Persons to be tried or punished. No person may be tried or punished for any offense provided for in RCW 38.38.628 through 38.38.800, unless it was committed while he was in a duty status. [1963 c 220 § 75.] 38.38.624 38.38.572 38.38.576 [Art. 69] Remission and suspension. (1) A convening authority may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures. (2) The governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court martial. [1963 c 220 § 72.] 38.38.628 [Art. 73] Principals. Any person subject to this code who: (1) Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or (2) Causes an act to be done which if directly performed by him would be punishable by this code; is a principal. [1963 c 220 § 76.] 38.38.628 38.38.576 38.38.632 [Art. 74] Accessory after the fact. Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court martial may direct. [1963 c 220 § 77.] 38.38.632 38.38.636 [Art. 75] Conviction of lesser included offense. An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein. [1963 c 220 § 78.] 38.38.636 38.38.580 [Art. 70] Restoration. (1) Under such regulations as the governor may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an 38.38.580 (2008 Ed.) [Title 38 RCW—page 31] 38.38.640 Title 38 RCW: Militia and Military Affairs 38.38.640 [Art. 76] Attempts. (1) An act, done with specific intent to commit an offense under this code, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense. (2) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court martial may direct, unless otherwise specifically prescribed. (3) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated. [1963 c 220 § 79.] 38.38.640 38.38.644 [Art. 77] Conspiracy. Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court martial may direct. [1963 c 220 § 80.] 38.38.644 38.38.648 [Art. 78] Solicitation. (1) Any person subject to this code who solicits or advises another or others to desert in violation of RCW 38.38.660 or mutiny in violation of RCW 38.38.696 shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, he shall be punished as a court martial may direct. (2) Any person subject to this code who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of RCW 38.38.716 or sedition in violation of RCW 38.38.696 shall, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, he shall be punished as a court martial may direct. [1963 c 220 § 81.] 38.38.648 38.38.652 [Art. 79] Fraudulent enlistment, appointment, or separation. Any person who: (1) Procures his or her own enlistment or appointment in the organized militia by knowingly false representation or deliberate concealment as to qualifications for that enlistment or appointment and receives pay or allowances thereunder; or (2) Procures his or her own separation from the organized militia by knowingly false representation or deliberate concealment as to eligibility for that separation; shall be punished as a court-martial may direct. [1989 c 48 § 61; 1963 c 220 § 82.] 38.38.652 38.38.656 [Art. 80] Unlawful enlistment, appointment, or separation. Any person subject to this code who effects an enlistment or appointment in or a separation from the organized militia of any person who is known to the person to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct. [1989 c 48 § 62; 1963 c 220 § 83.] 38.38.656 38.38.660 [Art. 81] Desertion. (1) Any member of the organized militia who: 38.38.660 [Title 38 RCW—page 32] (a) Without authority goes or remains absent from the member’s unit, organization, or place of duty with intent to remain away therefrom permanently; (b) Quits the member’s unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service; or (c) Without being regularly separated from one of the organized militia enlists or accepts an appointment in the same or another one of the organized militia, or in one of the armed forces of the United States, without fully disclosing the fact that he or she has not been regularly separated; is guilty of desertion. (2) Any commissioned officer of the organized militia who, after tender of a resignation and before notice of its acceptance, quits his or her post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. (3) Any person found guilty of desertion or attempt to desert shall be punished as a court-martial may direct. [1989 c 48 § 63; 1963 c 220 § 84.] 38.38.664 [Art. 82] Absence without leave. Any person subject to this code who, without authority: (1) Fails to go to his appointed place of duty at the time prescribed; (2) Goes from that place; or (3) Absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed; shall be punished as a court martial may direct. [1963 c 220 § 85.] 38.38.664 38.38.668 [Art. 83] Missing movement. Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court martial may direct. [1963 c 220 § 86.] 38.38.668 38.38.672 [Art. 84] Contempt towards officials. Any person subject to this code who uses contemptuous words against the president, the governor, or the governor of any other state, territory, commonwealth, or possession in which that person may be serving, shall be punished as a court martial may direct. [1963 c 220 § 87.] 38.38.672 38.38.676 [Art. 85] Disrespect towards superior commissioned officer. Any person subject to this code who behaves with disrespect towards his superior commissioned officer shall be punished as a court martial may direct. [1963 c 220 § 88.] 38.38.676 38.38.680 [Art. 86] Assaulting or wilfully disobeying superior commissioned officer. Any person subject to this code who: (1) Strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or (2) Wilfully disobeys a lawful command of his superior commissioned officer; 38.38.680 (2008 Ed.) Washington Code of Military Justice 38.38.720 shall be punished as a court martial may direct. [1963 c 220 § 89.] restraint lawfully imposed shall be punished as a court martial may direct. [1963 c 220 § 94.] 38.38.684 Insubordinate conduct toward warrant officer or noncommissioned officer. Any warrant officer or enlisted member who: (1) Strikes or assaults a warrant officer or noncommissioned officer while that officer is in the execution of the officer’s office; (2) Wilfully disobeys the lawful order of a warrant officer or noncommissioned officer; or (3) Treats with contempt or is disrespectful in language or deportment toward a warrant officer or noncommissioned officer while that officer is in the execution of the officer’s office; shall be punished as a court-martial may direct. [1989 c 48 § 64; 1963 c 220 § 90.] 38.38.704 [Art. 92] Releasing prisoner without proper authority. Any person subject to this code who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court martial may direct, whether or not the prisoner was committed in strict compliance with law. [1963 c 220 § 95.] 38.38.684 38.38.704 38.38.708 [Art. 93] Unlawful detention of another. Any person subject to this code who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court martial may direct. [1963 c 220 § 96.] 38.38.708 38.38.712 [Art. 94] Noncompliance with procedural rules. Any person subject to this code who: (1) Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this code; or (2) Knowingly and intentionally fails to enforce or comply with any provision of this code regulating the proceedings before, during, or after trial of an accused; shall be punished as a court martial may direct. [1963 c 220 § 97.] 38.38.712 38.38.688 [Art. 88] Failure to obey order or regulation. Any person subject to this code who: (1) Violates or fails to obey any lawful general order or regulation; (2) Having knowledge of any other lawful order issued by a member of the organized militia which it is the person’s duty to obey, fails to obey the order; or (3) Is derelict in the performance of the person’s duties; shall be punished as a court-martial may direct. [1989 c 48 § 65; 1963 c 220 § 91.] 38.38.688 38.38.692 [Art. 89] Cruelty and maltreatment. Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court martial may direct. [1963 c 220 § 92.] 38.38.692 38.38.696 [Art. 90] Mutiny or sedition. (1) Any person subject to this code who: (a) With intent to usurp or override lawful military authority refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (b) With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; (c) Fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (2) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court martial may direct. [1963 c 220 § 93.] 38.38.696 38.38.700 [Art. 91] Resistance, breach of arrest, and escape. Any person subject to this code who resists apprehension or breaks arrest or who escapes from physical 38.38.700 (2008 Ed.) 38.38.716 [Art. 95] Misbehavior before the enemy. Any person subject to this code who before or in the presence of the enemy: (1) Runs away; (2) Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is the person’s duty to defend; (3) Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property; (4) Casts away arms or ammunition; (5) Is guilty of cowardly conduct; (6) Quits a place of duty to plunder or pillage; (7) Causes false alarms in any command, unit, or place under control of the armed forces of the United States or the organized militia; (8) Wilfully fails to do his or her utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is the person’s duty so to encounter, engage, capture, or destroy; or (9) Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies, to the state, or to any other state, when engaged in battle; shall be punished as a court-martial may direct. [1989 c 48 § 66; 1963 c 220 § 98.] 38.38.716 38.38.720 [Art. 96] Subordinate compelling surrender. Any person subject to this code who compels or attempts to compel the commander of any of the organized militia of the state, or of any other state, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an 38.38.720 [Title 38 RCW—page 33] 38.38.724 Title 38 RCW: Militia and Military Affairs enemy without proper authority, shall be punished as a courtmartial may direct. [1989 c 48 § 67; 1963 c 220 § 99.] 38.38.724 [Art. 97] Improper use of countersign. Any person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it, or who gives to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished as a court martial may direct. [1963 c 220 § 100.] document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court martial may direct. [1963 c 220 § 105.] 38.38.724 38.38.728 [Art. 98] Forcing a safeguard. Any person subject to this code who forces a safeguard shall be punished as a court martial may direct. [1963 c 220 § 101.] 38.38.728 38.38.732 [Art. 99] Captured or abandoned property. (1) All persons subject to this code shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control. (2) Any person subject to this code who: (a) Fails to carry out the duties prescribed in subsection (1) hereof; (b) Buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or (c) Engages in looting or pillaging; shall be punished as a court martial may direct. [1963 c 220 § 102.] 38.38.732 38.38.736 [Art. 100] Aiding the enemy. Any person subject to this code who: (1) Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall be punished as a court martial may direct. [1963 c 220 § 103.] 38.38.736 38.38.740 [Art. 101] Misconduct of a prisoner. Any person subject to this code who, while in the hands of the enemy in time of war: (1) For the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or (2) While in a position of authority over such persons maltreats them without justifiable cause; shall be punished as a court martial may direct. [1963 c 220 § 104.] 38.38.740 38.38.744 [Art. 102] False official statements. Any person subject to this code who, with intent to deceive, signs any false record, return, regulation, order, or other official 38.38.744 [Title 38 RCW—page 34] 38.38.748 [Art. 103] Military property—Loss, damage, destruction, or wrongful disposition. Any person subject to this code who, without proper authority: (1) Sells or otherwise disposes of; (2) Wilfully or through neglect damages, destroys, or loses; or (3) Wilfully or through neglect suffers to be damaged, destroyed, sold or wrongfully disposed of; any military property of the United States or of the state shall be punished as a court martial may direct. [1963 c 220 § 106.] 38.38.748 38.38.752 [Art. 104] Property other than military property—Waste, spoilage, or destruction. Any person subject to this code who, while in a duty status, wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongfully destroys or damages any property other than military property of the United States or of the state shall be punished as a court martial may direct. [1963 c 220 § 107.] 38.38.752 38.38.756 [Art. 105] Improper hazarding of vessel. (1) Any person subject to this code who wilfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces of the United States or of the organized militia shall be punished as a court-martial may direct. (2) Any person subject to this code who negligently hazards or suffers to be hazarded any vessel of the armed forces of the United States or of the organized militia shall be punished as a court-martial may direct. [1989 c 48 § 68; 1963 c 220 § 108.] 38.38.756 38.38.760 [Art. 106] Drunken or reckless driving. Any person subject to this code who operates any vehicle while drunk, or in a reckless or wanton manner, shall be punished as a court martial may direct. [1963 c 220 § 109.] 38.38.760 38.38.764 [Art. 107] Drunk on duty—Sleeping on post—Leaving post before relief. Any person subject to this code who is found drunk on duty or sleeping upon his post, or who leaves his post before he is regularly relieved, shall be punished as a court martial may direct. [1963 c 220 § 110.] 38.38.764 38.38.768 [Art. 108] Dueling. Any person subject to this code who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court martial may direct. [1963 c 220 § 111.] 38.38.768 38.38.772 [Art. 109] Malingering. Any person subject to this code who for the purpose of avoiding work, duty or service in the organized militia: (1) Feigns illness, physical disablement, mental lapse or derangement; or (2) Intentionally inflicts self-injury; 38.38.772 (2008 Ed.) Washington Code of Military Justice shall be punished as a court-martial may direct. [1989 c 48 § 69; 1963 c 220 § 112.] 38.38.776 [Art. 110] Riot or breach of peace. Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court martial may direct. [1963 c 220 § 113.] 38.38.776 38.38.780 [Art. 111] Provoking speeches or gestures. Any person subject to this code who uses provoking or reproachful words or gestures toward any other person subject to this code shall be punished as a court martial may direct. [1963 c 220 § 114.] 38.38.780 38.38.784 [Art. 112] Perjury. Any person subject to this code who in a judicial proceeding or in a course of justice conducted under this code wilfully and corruptly gives, upon a lawful oath or in any form allowed by law to be substituted for an oath, any false testimony material to the issue or matter of inquiry is guilty of perjury and shall be punished as a court martial may direct. [1963 c 220 § 115.] 38.38.840 sion of the owner or of any other person any money, personal property, or article of value of any kind: (a) With intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty of larceny; or (b) With intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation. (2) Any person found guilty of larceny or wrongful appropriation shall be punished as a court martial may direct. [1963 c 220 § 117.] 38.38.784 38.38.796 38.38.796 [Art. 115] Conduct unbecoming an officer and a gentleman. Any commissioned officer who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court martial may direct. [1963 c 220 § 118.] 38.38.800 38.38.788 [Art. 113] Frauds against the government. Any person subject to this code: (1) Who, knowing it to be false or fraudulent: (a) Makes any claim against the United States, the state, or any officer thereof; or (b) Presents to any person in the civil or military service thereof, for approval or payment any claim against the United States, the state, or any officer thereof; (2) Who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States, the state, or any officer thereof: (a) Makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; (b) Makes any oath to any fact or to any writing or other paper knowing the oath to be false; or (c) Forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or counterfeited; (3) Who, having charge, possession, custody, or control of any money, or other property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which the person receives a certificate or receipt; or (4) Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States or the state, furnished or intended for the armed forces of the United States or the organized militia, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States or the state; shall, upon conviction, be punished as a court-martial may direct. [1989 c 48 § 70; 1963 c 220 § 116.] 38.38.788 38.38.792 [Art. 114] Larceny and wrongful appropriation. (1) Any person subject to this code who wrongfully takes, obtains, or withholds, by any means, from the posses38.38.792 (2008 Ed.) 38.38.800 [Art. 116] General article. Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the organized militia, of which persons subject to this code may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. However, cognizance may not be taken of, and jurisdiction may not be extended to, the crimes of murder, manslaughter, rape, robbery, maiming, sodomy, arson, extortion, assault, burglary, or housebreaking, jurisdiction of which is reserved to civil courts. [1989 c 48 § 71; 1963 c 220 § 119.] PART XI—MISCELLANEOUS PROVISIONS 38.38.840 38.38.840 [Art. 117] Courts of inquiry. (1) Courts of inquiry to investigate any matter may be convened by the governor or by any other person designated by the governor for that purpose, whether or not the persons involved have requested such an inquiry: PROVIDED, That upon the request of the officer involved such an inquiry shall be instituted as hereinabove set forth. (2) A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint counsel for the court. (3) Any person subject to this code whose conduct is subject to inquiry shall be designated as a party. Any person subject to this code or employed in the state military department, who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence. (4) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court. (5) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath or affirmation to faithfully perform their duties. [Title 38 RCW—page 35] 38.38.844 Title 38 RCW: Militia and Military Affairs (6) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial. (7) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority. (8) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel. [1989 c 48 § 72; 1963 c 220 § 120.] 38.38.844 38.38.844 [Art. 118] Authority to administer oaths. (1) The following members of the organized militia may administer oaths for the purposes of military administration, including military justice, and affidavits may be taken for those purposes before persons having the general powers of a notary public: (a) The state judge advocate and all assistant state judge advocates; (b) All law specialists; (c) All summary courts-martial; (d) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants; (e) The military judge, president, trial counsel, and assistant trial counsel for all general and special courts-martial; (f) The president and the counsel for the court of any court of inquiry; (g) All officers designated to take a deposition; (h) All persons detailed to conduct an investigation; and (i) All other persons designated by regulations of the governor. (2) Officers of the organized militia may not be authorized to administer oaths as provided in this section unless they are on active state service or inactive duty for training in or with those forces under orders of the governor as prescribed in this code. (3) The signature without seal of any such person, together with the title of the person’s office, is prima facie evidence of the person’s authority. [1989 c 48 § 73; 1963 c 220 § 121.] 38.38.848 38.38.848 [Art. 119] Sections to be explained. RCW 38.38.008, 38.38.012, 38.38.064 through 38.38.132, 38.38.252, 38.38.260, 38.38.372, 38.38.480, 38.38.624 through 38.38.792, and 38.38.848 through 38.38.860 shall be carefully explained to every enlisted member at the time of the member’s enlistment or transfer or induction into, or at the time of the member’s order to duty in or with any of the organized militia or within thirty days thereafter. They shall also be explained annually to each unit of the organized militia. A complete text of this code and of the regulations prescribed by the governor thereunder shall be made available to any member of the organized militia, upon request, for personal examination. [1989 c 48 § 74; 1963 c 220 § 122.] [Title 38 RCW—page 36] 38.38.852 [Art. 120] Complaints of wrongs. Members of the organized militia who believe themselves wronged by their commanding officer, and who, upon due application to that commanding officer, are refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the governor or adjutant general. The governor or adjutant general shall examine the complaint and take proper measures for redressing the wrong complained of. [1989 c 48 § 75; 1963 c 220 § 123.] 38.38.852 38.38.856 [Art. 121] Redress of injuries to property. (1) Whenever complaint is made to any commanding officer that wilful damage has been done to the property of any person or that the person’s property has been wrongfully taken by members of the organized militia, the commanding officer may, subject to such regulations as the governor may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by the commanding officer shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive, except as provided in subsection (3) of this section, on any disbursing officer for the payment by the disbursing officer to the injured parties of the damages so assessed and approved. (2) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be paid to the injured parties from the military funds of the units of the organized militia to which the offenders belonged. (3) Any person subject to this code who is accused of causing wilful damage to property has the right to be represented by counsel, to summon witnesses in the person’s behalf, and to cross-examine those appearing against him or her. The person has the right of appeal to the next higher commander. [1989 c 48 § 76; 1963 c 220 § 124.] 38.38.856 38.38.860 [Art. 122] Execution of process and sentence. In the organized militia not in federal service, the processes and sentences of its courts-martial shall be executed by the civil officers prescribed by the laws of the state. [1989 c 48 § 77; 1963 c 220 § 125.] 38.38.860 38.38.864 [Art. 123] Process of military courts. (1) Military courts may issue any process or mandate necessary to carry into effect their powers. Such a court may issue subpoenae and subpoenae duces tecum and enforce by attachment attendance of witnesses and production of books and records, when it is sitting within the state and the witnesses, books and records sought are also so located. (2) Process and mandates may be issued by summary courts-martial, or the military judge of other military courts and may be directed to and may be executed by the marshals of the military court or any peace officer and shall be in such 38.38.864 (2008 Ed.) Miscellaneous Provisions form as may be prescribed by regulations issued under this code. (3) All officers to whom process or mandates may be so directed shall execute them and make return of their acts thereunder according to the requirements of those documents. Except as otherwise specifically provided in this code, no such officer may demand or require payment of any fee or charge for receiving, executing, or returning such a process or mandate or for any service in connection therewith. [1989 c 48 § 78; 1963 c 220 § 126.] 38.38.868 38.38.868 [Art. 124] Payment of fines and disposition thereof. Fines imposed by a military court may be paid to it or to an officer executing its process. The amount of such a fine may be noted upon any state roll or account for pay of the delinquent and deducted from any pay or allowance due or thereafter to become due the person, until the fine is liquidated. Any sum so deducted shall be turned in to the military court which imposed the fine. Notwithstanding any other law, the officer collecting a fine or penalty imposed by a military court upon an officer or enlisted person shall pay it within thirty days to the state treasurer. Such a fine becomes a part of, is credited to, and may be spent from, the military fund of the organization or detachment to which the officer or enlisted person who paid the fine belonged. The treasurer of the state shall then report the amount thereof designating the organization or detachment to which it belongs, to the adjutant general of the state, and shall pay it over to the organization or detachment on request of its commanding officer. [1989 c 48 § 79; 1963 c 220 § 127.] 38.40.010 38.38.888 [Art. 129] Short title. This chapter may be cited as the "Washington code of military justice." [1963 c 220 § 132.] 38.38.888 Chapter 38.40 Chapter 38.40 RCW MISCELLANEOUS PROVISIONS Sections 38.40.010 38.40.020 38.40.025 38.40.030 38.40.040 38.40.050 38.40.060 38.40.100 38.40.110 38.40.120 38.40.130 38.40.150 38.40.200 38.40.210 38.40.220 Liability of officers and enlisted persons on duty. Not liable for exercise of judgment. Liability of state for federal activities. Compensation for death or disability. Interference with employment—Penalty. Discharge from employment—Penalty. Military leave for public employees. Notice for duty. Employment or membership in other organizations—Discrimination prohibited—Penalty—Civil cause of action. Authorized military organizations. Corporations may be formed. Property to remain public property. Military department capital account. Military department rental and lease account. Military department active state service account. Acknowledgments and powers of attorney: Chapter 73.20 RCW. Acquisitions of lands for permanent military installations: Chapter 37.16 RCW. Common carriers—Special exceptions on carriage of property, government freight, etc.: RCW 81.28.080. Eminent domain condemnation for military purposes: RCW 8.04.170, 8.04.180. notice where military land is involved: RCW 8.28.030. Evidence proof of missing in action, capture by enemy, etc.: RCW 5.40.030. written finding of presumed death as prima facie evidence: RCW 5.40.020. Federal areas and jurisdiction: Title 37 RCW. 38.38.872 38.38.872 [Art. 125] Immunity for action of military courts. No accused may bring an action or proceeding against the convening authority or a member of a military court or officer or person acting under its authority or reviewing its proceedings because of the approval, imposition, or execution of any sentence or the imposition or collection of a fine or penalty, or the execution of any process or mandate of a military court. [1963 c 220 § 128.] 38.38.876 38.38.876 [Art. 126] Presumption of jurisdiction. The jurisdiction of the military courts and boards established by this code shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding. [1963 c 220 § 129.] 38.38.880 38.38.880 [Art. 127] Delegation of authority by the governor. The governor may delegate any authority vested in him under this code, and may provide for the subdelegation of any such authority, except the power given him by RCW 38.38.192 and 38.38.240. [1963 c 220 § 130.] 38.38.884 38.38.884 [Art. 128] Uniformity of interpretation. This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it and, so far as practical, to make that law uniform with the law of the United States. [1963 c 220 § 131.] (2008 Ed.) Gas bombs: RCW 70.74.310. Joint armory sites: RCW 36.64.050. Juries—Persons exempt: RCW 2.36.080. Mental illness hospitalization authority over patient—Federal agencies, private establishments: RCW 71.02.490. commitment to veterans administration or other federal agency—General provision: RCW 73.36.165. Militia privilege from arrest: State Constitution Art. 10 § 5. soldiers’ home: State Constitution Art. 10 § 3. Personal exemptions—Pension money exempt: RCW 6.15.020. Residence, contingencies affecting: State Constitution Art. 6 § 4. Soldiers’ and veterans’ homes and veterans’ cemetery: Chapter 72.36 RCW. Statute of limitations tolled—As to person in military service of United States: RCW 4.16.220. Tidelands and shorelands grants to United States: RCW 79.125.760 through 79.125.790. Unlawful firearms—Exception: RCW 9.41.190. Veterans and veterans’ affairs: Title 73 RCW. Veterans’ rehabilitation council: Chapter 43.61 RCW. Voter, when privileged from military duty: State Constitution Art. 6 § 5. 38.40.010 Liability of officers and enlisted persons on duty. Members of the militia ordered into active service of the state by any proper authority shall not be liable civilly or criminally for any act or acts done by them while on such duty nor shall any action lie against any officer or enlisted 38.40.010 [Title 38 RCW—page 37] 38.40.020 Title 38 RCW: Militia and Military Affairs person for any acts done by the officer or enlisted person in line of duty by virtue of any order which may thereafter be held invalid by any civil court. When a suit or proceeding shall be commenced in any court by any person against any officer or enlisted person of the militia for any act done by such officer or enlisted person in his or her official capacity or in the discharge of any duty, or against any person acting under the authority or order of such officer or by virtue of any warrant issued pursuant to law, the defendant may require the person prosecuting or instituting the proceeding to give security for the payment of all costs that may be awarded to the defendant, and the defendant in all cases may make a general denial and, under such general denial, give all other or any special defense matter in evidence. In case the plaintiff shall be nonsuited or the verdict or judgment be in favor of the defendant, treble costs shall be assessed against the plaintiff. The defendant in such action shall be defended by the attorney general at the expense of the state, but private counsel may also be employed by the defendant. The venue of all such actions shall be Thurston county and the state of Washington shall be in all cases a necessary party defendant. [1989 c 19 § 45; 1943 c 130 § 13; Rem. Supp. 1943 § 860313. Cf. 1909 c 134 § 25, part; 1895 c 108 § 173, part.] 38.40.020 Not liable for exercise of judgment. The commanding officer of any of the military forces of the state of Washington engaged under the order of proper authority in the suppression of insurrection, the dispersion of a mob, the protection of life or property, or the enforcement of the laws, shall exercise discretion as to the propriety of the means to be used in controlling or dispersing of any mob or other unlawful assembly and, if he or she exercises his or her honest judgment thereon, he or she shall not be liable in either a civil or criminal action for any act done in line of duty. [1989 c 19 § 46; 1943 c 130 § 14; Rem. Supp. 1943 § 8603-14. Cf. 1909 c 134 § 25, part; 1895 c 108 § 173, part.] 38.40.020 38.40.025 Liability of state for federal activities. Neither the state of Washington, its officers, employees, or agents, nor any member of the militia may be held liable in any civil action for damages arising out of any of the activities of the military forces of the state of Washington while engaged in activities during which the officers, employees, agents, or members are considered employees of the federal government under the federal tort claims act, *26 U.S.C. Sec. 2671 et seq. [1987 c 26 § 2.] 38.40.025 *Reviser’s note: The reference to 26 U.S.C. appears to be incorrect. Reference to 28 U.S.C. was apparently intended. Legislative declaration—1987 c 26: "The legislature recognizes that Congress has established comprehensive administrative programs to compensate members of the military forces for injuries they may incur while performing training for national defense." [1987 c 26 § 1.] Severability—1987 c 26: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1987 c 26 § 3.] 38.40.030 Compensation for death or disability. If any member of the organized militia is injured, incapacitated, or otherwise disabled while in active state service or inactive duty as a member of the organized militia, he or she shall receive from the state of Washington just and reasonable 38.40.030 [Title 38 RCW—page 38] relief in the amount to be determined as provided in this section, including necessary medical care. If the member dies from disease contracted or injury received or is killed while in active state service or inactive duty under order of the governor, then the dependents of the deceased shall receive such compensation as may be allowed as provided in this section. If the United States or any agent thereof, in accordance with any federal statute or regulation, furnishes monetary assistance, benefits, or other temporary or permanent relief to militia members or to their dependents for injuries arising out of and occurring in the course of their activities as militia members, but not including Social Security benefits, then the amount of compensation which any militia member or his or her dependents are otherwise entitled to receive from the state of Washington as provided in this section shall be reduced by the amount of monetary assistance, benefits, or other temporary or permanent relief the militia member or his or her dependents have received and will receive from the United States or any agent thereof as a result of his or her injury. All claims arising under this section shall be inquired into by a board of three officers, at least one being a medical officer, to be appointed by the adjutant general. The board has the same power to take evidence, administer oaths, issue subpoenas, compel witnesses to attend and testify and produce books and papers, and punish their failure to do so as is possessed by a general court martial. The amount of compensation or benefits payable shall conform as nearly as possible to the general schedule of payments and awards provided under the workers’ compensation law in effect in the state of Washington at the time the disability or death occurred. The findings of the board shall be reviewed by the adjutant general and submitted to the governor for final approval. The reviewing officer or the governor may return the proceedings for revision or for the taking of further testimony. The action of the board when finally approved by the governor is final and conclusive and constitutes the fixed award for the injury or loss and is a debt of the state of Washington. [1989 c 19 § 47; 1987 c 185 § 5; 1984 c 198 § 5; 1943 c 130 § 40; Rem. Supp. 1943 § 8603-40. Prior: 1923 c 49 § 3; 1917 c 107 § 38; 1909 c 134 § 60; 1895 c 108 § 92.] Intent—Severability—1987 c 185: See notes following RCW 51.12.130. Workers’ compensation: Title 51 RCW. 38.40.040 38.40.040 Interference with employment—Penalty. A person, who either alone, or with another, wilfully deprives a member of the organized militia of Washington of his or her employment or prevents such member being employed, or obstructs or annoys said member or his or her employer in their trade, business or employment, because he or she is such member, or dissuades any person from enlisting in said organized militia by threat or injury to him or her in their employment, trade or business, in case he or she shall so enlist, shall be guilty of a gross misdemeanor and on conviction thereof shall be fined in a sum not exceeding five hundred dollars, or imprisonment in the county jail not more than six months, or by both such fine and imprisonment. [1989 c 19 § 48; 1943 c 130 § 46; Rem. Supp. 1943 § 8603-46. Prior: 1917 c 107 § 41; 1909 c 134 § 67; 1895 c 108 § 104, part.] (2008 Ed.) Miscellaneous Provisions 38.40.050 Discharge from employment—Penalty. No member of the organized militia of Washington shall be discharged by his or her employer by reason of the performance of any military duties upon which he or she may be ordered. When any member of the organized militia of Washington is ordered upon active state service or inactive duty which takes the member from his or her employment the member may apply upon the termination of such duty to be restored to his or her position and employment, and if the tour of duty shall have continued for a period not longer than three months, any employer or the officer or manager of any firm or corporation having authority to reemploy such member and failing to do so shall be guilty of a gross misdemeanor, and on conviction thereof shall be fined in any sum not exceeding five hundred dollars, or imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment. [1989 c 19 § 49; 1943 c 130 § 48; Rem. Supp. 1943 § 8603-48. Prior: 1917 c 107 § 43; 1909 c 134 § 69; 1895 c 108 § 104, part.] 38.40.050 38.40.060 Military leave for public employees. Every officer and employee of the state or of any county, city, or other political subdivision thereof who is a member of the Washington national guard or of the army, navy, air force, coast guard, or marine corps reserve of the United States, or of any organized reserve or armed forces of the United States shall be entitled to and shall be granted military leave of absence from such employment for a period not exceeding twenty-one days during each year beginning October 1st and ending the following September 30th. Such leave shall be granted in order that the person may report for active duty, when called, or take part in active training duty in such manner and at such time as he or she may be ordered to active duty or active training duty. Such military leave of absence shall be in addition to any vacation or sick leave to which the officer or employee might otherwise be entitled, and shall not involve any loss of efficiency rating, privileges, or pay. During the period of military leave, the officer or employee shall receive from the state, or the county, city, or other political subdivision, his or her normal pay. [2008 c 71 § 5; 2001 c 71 § 1; 1991 c 25 § 1; 1989 c 19 § 50; 1957 c 236 § 1; 1939 c 113 § 1.] 38.40.060 Effective date—2001 c 71: "This act takes effect October 1, 2001." [2001 c 71 § 2.] 38.40.130 person giving such warning shall, when required, make a return thereof, containing the names of persons warned and the time, place and manner of warning. Such returns shall be verified on oath and shall be prima facie evidence, on the trial of any person returned as a delinquent, of the facts therein stated. [1989 c 19 § 51; 1943 c 130 § 53; Rem. Supp. 1943 § 8603-53. Prior: 1909 c 134 § 65; 1895 c 108 § 102.] 38.40.110 Employment or membership in other organizations—Discrimination prohibited—Penalty— Civil cause of action. No club, society, association, corporation, employer, or organization shall by any constitution, rule, bylaws, resolution, vote or regulation, or otherwise, discriminate against or refuse to hire, employ, or reemploy any member of the organized militia of Washington because of his or her membership in said organized militia. Any person or persons, club, society, association, employer, corporation, or organization, violating or aiding, abetting, or assisting in the violation of any provision of this section shall be guilty of a misdemeanor and on conviction thereof shall be fined in any sum not exceeding one hundred dollars and in addition thereto shall forfeit the right to do business for a period of thirty days. Any person who has been discriminated against in violation of this section shall have a civil cause of action for damages. [1991 c 43 § 9; 1989 c 19 § 52; 1943 c 130 § 47; Rem. Supp. 1943 § 8603-47. Prior: 1917 c 107 § 42; 1909 c 134 § 68.] 38.40.110 38.40.120 Authorized military organizations. No organized body other than the recognized militia organizations of this state, armed forces of the United States, students of educational institutions where military science is a prescribed part of the course of instruction or bona fide veterans organizations shall associate themselves together as a military company or organize or parade in public with firearms: PROVIDED, That nothing herein shall be construed to prevent authorized parades by the organized militia of another state or armed forces of foreign countries. Any person participating in any such unauthorized organization shall be guilty of a misdemeanor. [1989 c 19 § 53; 1943 c 130 § 54; Rem. Supp. 1943 § 8603-54. Prior: 1909 c 249 § 294; 1903 c 135 § 1.] 38.40.120 38.40.130 Corporations may be formed. The officers, or the officers and enlisted persons of any regiment, battalion, company or similar unit of the organized militia of Washington, or the officers and enlisted persons of any two or more companies or similar units of the organized militia of the state of Washington, located at the same station, are hereby authorized to organize themselves into a corporation for social purposes and for the purpose of holding, acquiring and disposing of such property, real and personal, as such military organizations may possess or acquire. Such corporations shall not be required to pay any filing or license fee to the state. The dissolution or disbandment of any such unit as a military organization shall not in itself terminate the existence of the corporation, but the existence of the same may continue for the period limited in its articles of incorporation for the benefit of such corporation. 38.40.130 Application—1991 c 25: "This act applies to all public employees and officers who reported for active duty or active training duty, under RCW 38.40.060, on or after August 2, 1990." [1991 c 25 § 2.] Military family leave act: Chapter 49.77 RCW. 38.40.100 Notice for duty. Orders for duty may be oral or written. Officers and enlisted persons may be warned for duty as follows: Either by stating the substance of the order, or by reading the order to the person warned, or by delivering a copy of such order to such person, or by leaving a copy of such order at his or her last known place of abode or business, with some person of suitable age and discretion, or by sending a copy of such order or notice containing the substance thereof, to such person by mail, directed to his or her last known place of abode or business. Orders may be transmitted by telegraph or telephone. Such warning may be given by any officer or authorized enlisted person. The officer or enlisted 38.40.100 (2008 Ed.) [Title 38 RCW—page 39] 38.40.150 Title 38 RCW: Militia and Military Affairs Upon the dissolution or disbandment of any such unit which shall not have incorporated, and which shall at the time of such dissolution or disbandment possess any funds or property, the title to such funds or property shall immediately vest in the state of Washington, and the adjutant general shall take possession thereof and dispose of the same to the best interest of the organized militia of Washington. [1989 c 19 § 54; 1943 c 130 § 49; Rem. Supp. 1943 § 8603-49. Prior: 1923 c 49 § 4; 1917 c 107 § 44; 1915 c 19 § 1; 1909 c 134 § 71; 1895 c 108 §§ 123, 124.] 38.40.150 Property to remain public property. All property issued to organizations and members of the organized militia of Washington shall be and remain public property. [1943 c 130 § 38; Rem. Supp. 1943 § 8603-38. Prior: 1917 c 107 § 33; 1909 c 134 § 51; 1895 c 108 § 78.] 38.40.150 38.40.200 Military department capital account. The military department capital account is created in the state treasury. All receipts from the sale of state-owned military department property must be deposited into the account. Money in the account may be spent only after appropriation. Expenditures from the account may be used only for military department capital projects. [2005 c 252 § 1.] 38.40.200 38.40.210 Military department rental and lease account. The military department rental and lease account is created in the state treasury. All receipts from the rental or lease of state-owned military department property must be deposited into the account. Money in the account may be spent only after appropriation. Expenditures from the account may be used only for operating and maintenance costs of military property. [2005 c 252 § 2.] 38.40.210 38.40.220 Military department active state service account. The military department active state service account is created in the state treasury. Moneys may be placed in the account from legislative appropriations and transfers, federal appropriations, or any other lawful source. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for claims and expenses for the organized militia called into active state service to perform duties under RCW 38.08.040 that are not paid under RCW 38.24.010 from nonappropriated funds, including but not limited to claims and expenses arising from anticipated planning, training, exercises, and other administrative duties that are not of an emergency nature. [2008 c 44 § 1.] 38.40.220 Chapter 38.42 Chapter 38.42 RCW SERVICE MEMBERS’ CIVIL RELIEF Sections 38.42.010 38.42.020 38.42.030 38.42.040 38.42.050 38.42.060 38.42.070 38.42.080 Definitions. Applicability of chapter. Protection of persons secondarily liable. Waiver of rights pursuant to written agreement. Protection of service members and their dependents against default judgments. Stay of proceedings when service member has notice. Fines and penalties under contracts. Codefendants. [Title 38 RCW—page 40] 38.42.090 38.42.100 38.42.110 38.42.900 38.42.901 38.42.902 38.42.903 Computation of statutes of limitation. Inappropriate use of chapter. Restructure of business loan interest rate. Short title. Captions not law—2005 c 254. Severability—2005 c 254. Effective date—2005 c 254. 38.42.010 Definitions. The definitions in this section apply throughout this chapter. (1) "Business loan" means a loan or extension of credit granted to a business entity that: (a) Is owned and operated by a service member, in which the service member is either (i) a sole proprietor, or (ii) the owner of at least fifty percent of the entity; and (b) experiences a material reduction in revenue due to the service member’s military service. (2) "Dependent" means: (a) The service member’s spouse; (b) The service member’s minor child; or (c) An individual for whom the service member provided more than one-half of the individual’s support for one hundred eighty days immediately preceding an application for relief under this chapter. (3) "Financial institution" means an institution as defined in RCW 30.22.041. (4) "Judgment" does not include temporary orders as issued by a judicial court or administrative tribunal in domestic relations cases under Title 26 RCW, including but not limited to establishment of a temporary child support obligation, creation of a temporary parenting plan, or entry of a temporary protective or restraining order. (5) "Military service" means a service member under a call to active service authorized by the president of the United States or the secretary of defense for a period of more than thirty consecutive days. (6) "National guard" has the meaning in RCW 38.04.010. (7) "Service member" means any resident of Washington state that is a member of the national guard or member of a military reserve component. [2006 c 253 § 1; 2005 c 254 § 1.] 38.42.010 38.42.020 Applicability of chapter. (1) Any service member who is ordered to report for military service and his or her dependents are entitled to the rights and protections of this chapter during the period beginning on the date on which the service member receives the order and ending one hundred eighty days after termination of or release from military service. (2) This chapter applies to any judicial or administrative proceeding commenced in any court or agency in Washington state in which a service member or his or her dependent is a defendant. This chapter does not apply to criminal proceedings. (3) This chapter shall be construed liberally so as to provide fairness and do substantial justice to service members and their dependents. [2005 c 254 § 2.] 38.42.020 38.42.030 Protection of persons secondarily liable. (1) Whenever pursuant to this chapter a court stays, postpones, or suspends (a) the enforcement of an obligation or liability, (b) the prosecution of a suit or proceeding, (c) the 38.42.030 (2008 Ed.) Service Members’ Civil Relief entry or enforcement of an order, writ, judgment, or decree, or (d) the performance of any other act, the court may likewise grant such a stay, postponement, or suspension to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be primarily or secondarily subject to the obligation or liability the performance or enforcement of which is stayed, postponed, or suspended. (2) When a judgment or decree is vacated or set aside, in whole or in part, pursuant to this chapter, the court may also set aside or vacate, as the case may be, the judgment or decree as to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be primarily or secondarily liable on the contract or liability for the enforcement of the judgment decree. [2005 c 254 § 3.] 38.42.040 Waiver of rights pursuant to written agreement. (1) A service member may waive any of the rights and protections provided by this chapter. In the case of a waiver that permits an action described in subsection (2) of this section, the waiver is effective only if made pursuant to a written agreement of the parties that is executed during or after the service member’s period of military service. The written agreement shall specify the legal instrument to which the waiver applies and, if the service member is not party to that instrument, the service member concerned. (2) The requirement in subsection (1) of this section for a written waiver applies to the following: (a) The modification, termination, or cancellation of a contract, lease, or bailment; or an obligation secured by a mortgage, trust, deed, lien, or other security in the nature of a mortgage; and (b) the repossession, retention, foreclosure, sale, forfeiture, or taking possession of property that is security for any obligation or was purchased or received under a contract, lease, or bailment. [2005 c 254 § 4.] 38.42.040 38.42.050 Protection of service members and their dependents against default judgments. (1) This section applies to any civil action or proceeding in which a service member or his or her dependent is a defendant and does not make an appearance under applicable court rules or by law. (2) In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (a) Stating whether the defendant is in military service, or is a dependent of a service member in military service, and showing necessary facts to support the affidavit; or (b) If the plaintiff is unable to determine whether the defendant is in military service or is a dependent of a service member in military service, stating that the plaintiff is unable to determine whether the defendant is in military service or is a dependent of a service member in military service. (3)(a) To determine whether or not a defendant is a dependent of a person in the military service under this chapter, the plaintiff may serve on or mail via first-class mail to the defendant a written notice in substantially the following form: 38.42.050 "NOTICE: State and federal law provide protections to defendants who are on active duty in the military service, and to their dependents. Dependents of a service member are the service member’s spouse, the service member’s minor child, (2008 Ed.) 38.42.050 or an individual for whom the service member provided more than one-half of the individual’s support for one hundred eighty days immediately preceding an application for relief. One protection provided is the protection against the entry of a default judgment in certain circumstances. This notice only pertains to a defendant who is a dependent of a member of the national guard or a military reserve component under a call to active service for a period of more than thirty consecutive days. Other defendants in military service also have protections against default judgments not covered by this notice. If you are the dependent of a member of the national guard or a military reserve component under a call to active service for a period of more than thirty consecutive days, you should notify the plaintiff or the plaintiff’s attorneys in writing of your status as such within twenty days of the receipt of this notice. If you fail to do so, then a court or an administrative tribunal may presume that you are not a dependent of an active duty member of the national guard or reserves, and proceed with the entry of an order of default and/or a default judgment without further proof of your status. Your response to the plaintiff or plaintiff’s attorneys about your status does not constitute an appearance for jurisdictional purposes in any pending litigation nor a waiver of your rights." (b) If the notice is either served on the defendant twenty or more days prior to an application for an order of default or a default judgment, or mailed to the defendant more than twenty-three days prior to such application, and the defendant fails to timely respond, then for purposes of entry of an order of default or default judgment, the court or administrative tribunal may presume that the defendant is not a dependent of a person in the military service under this chapter. (c) Nothing prohibits the plaintiff from allowing a defendant more than twenty days to respond to the notice, or from amending the notice to so provide. (4) If in an action covered by this section it appears that the defendant is in military service or is a dependent of a service member in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a service member or his or her dependent cannot locate the service member or dependent, actions by the attorney in the case do not waive any defense of the service member or dependent or otherwise bind the service member or dependent. (5) In an action covered by this section in which the defendant is in military service or is a dependent of a service member in military service, the court shall grant a stay of proceedings until one hundred eighty days after termination of or release from military service, upon application of defense counsel, or on the court’s own motion, if the court determines that: (a) There may be a defense to the action and a defense cannot be presented without presence of the defendant; or (b) After due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists. The defendant’s failure to communicate or cooperate with counsel after having been contacted is not grounds to find that counsel has been unable to contact the [Title 38 RCW—page 41] 38.42.060 Title 38 RCW: Militia and Military Affairs defendant or that counsel has been unable to determine if a meritorious defense exists. (6) No bar to entry of judgment under subsection (4) of this section or requirement for grant of stay under subsection (5) of this section precludes the entry of temporary orders in domestic relations cases. If a court or administrative tribunal enters a temporary order as allowed under this subsection, it shall include a finding that failure to act, despite the absence of the service member, would result in manifest injustice to the other interested parties. Temporary orders issued without the service member’s participation shall not set any precedent for the final disposition of the matters addressed therein. (7) If a service member or dependent who is a defendant in an action covered by this section receives actual notice of the action, the service member or dependent may request a stay of proceedings pursuant to RCW 38.42.060. (8) A person who makes or uses an affidavit permitted under this section knowing it to be false, is guilty of a class C felony. (9) If a default judgment is entered in an action covered by this section against a service member or his or her dependent during the service member’s period of military service or within one hundred eighty days after termination of or release from military service, the court entering the judgment shall, upon application by or on behalf of the service member or his or her dependent, reopen the judgment for the purpose of allowing the service member or his or her dependent to defend the action if it appears that: (a) The service member or dependent was materially affected by reason of that military service in making a defense to the action; and (b) The service member or dependent has a meritorious or legal defense to the action or some part of it. (10) If a court vacates, sets aside, or reverses a default judgment against a service member or his or her dependent and the vacating, setting aside, or reversing is because of a provision of this chapter, that action does not impair a right or title acquired by a bona fide purchaser for value. [2006 c 80 § 1; 2005 c 254 § 5.] 38.42.060 Stay of proceedings when service member has notice. (1) This section applies to any civil action or proceeding in which a defendant at the time of filing an application under this section: (a)(i) Is in military service, or it is within one hundred eighty days after termination of or release from military service; or (ii) Is a dependent of a service member in military service; and (b) Has received actual notice of the action or proceeding. (2) At any stage before final judgment in a civil action or proceeding in which a service member or his or her dependent described in subsection (1) of this section is a party, the court may on its own motion and shall, upon application by the service member or his or her dependent, stay the action until one hundred eighty days after termination of or release from military service, if the conditions in subsection (3) of this section are met. (3) An application for a stay under subsection (2) of this section shall include the following: 38.42.060 [Title 38 RCW—page 42] (a) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the service member’s or dependent’s ability to appear and stating a date when the service member or dependent will be available to appear; and (b) A letter or other communication from the service member’s commanding officer stating that the service member’s current military duty prevents either the service member’s or dependent’s appearance and that military leave is not authorized for the service member at the time of the letter. (4) An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense, including a defense relating to lack of personal jurisdiction. (5) A service member or dependent who is granted a stay of a civil action or proceeding under subsection (2) of this section may apply for an additional stay based on the continuing material affect of military duty on the service member’s or dependent’s ability to appear. Such application may be made by the service member or his or her dependent at the time of the initial application under subsection (2) of this section or when it appears that the service member or his or her dependent is unable to prosecute or defend the action. The same information required under subsection (3) of this subsection shall be included in an application under this subsection. (6) If the court refuses to grant an additional stay of proceedings under subsection (2) of this section, the court shall appoint counsel to represent the service member or his or her dependent in the action or proceeding. (7) A service member or dependent who applies for a stay under this section and is unsuccessful may not seek the protections afforded by RCW 38.42.050. [2005 c 254 § 6.] 38.42.070 Fines and penalties under contracts. (1) If an action for compliance with the terms of a contract is stayed pursuant to this chapter, a penalty shall not accrue for failure to comply with the terms of the contract during the period of the stay. (2) If a service member or his or her dependent fails to perform an obligation arising under a contract and a penalty is incurred arising from that nonperformance, a court may reduce or waive the fine or penalty if: (a)(i) The service member was in military service at the time the fine or penalty was incurred; or (ii) The action is against a dependent of the service member and the service member was in military service at the time the fine or penalty was incurred; and (b) The ability of the service member or dependent to perform the obligation was materially affected by the military service. [2005 c 254 § 7.] 38.42.070 38.42.080 Codefendants. If the service member or his or her dependent is a codefendant with others who are not in military service and who are not entitled to the relief and protections provided under this chapter, the plaintiff may proceed against those other defendants with the approval of the court. [2005 c 254 § 8.] 38.42.080 (2008 Ed.) Enrollment of Persons 38.42.090 Computation of statutes of limitation. (1) The period of a service member’s military service may not be included in computing any period limited by law, rule, or order, for the bringing of any action or proceeding in a court, or in any board bureau, commission, department, or other agency of a state, or political subdivision of a state, or the United States by or against the service member or the service member’s dependents, heirs, executors, administrators, or assigns. (2) A period of military service may not be included in computing any period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax, or assessment. (3) This section does not apply to any period of limitation prescribed by or under the internal revenue laws of the United States. [2005 c 254 § 9.] 38.42.090 38.42.100 Inappropriate use of chapter. If a court determines, in any proceeding to enforce a civil right, that any interest, property, or contract has been transferred or acquired with the intent to delay the just enforcement of such right by taking advantage of this chapter, the court shall enter such judgment or make such order as might lawfully be entered or made concerning such transfer or acquisition. [2005 c 254 § 10.] 38.42.100 38.42.110 Restructure of business loan interest rate. (1) Upon the request of a service member with a qualifying business loan, the financial institution must restructure the interest rate of the loan to the equivalent provisions in the federal servicemembers civil relief act (50 U.S.C. App. 501 et seq.). The service member must notify the institution at least five days prior to the beginning of military service and submit official documentation that substantiates their eligibility for the protections of this chapter. (2) This section applies only to loans with an outstanding balance of less than one hundred thousand dollars at the time the service member is called to military service. (3) This section applies only to business loans executed on or after January 1, 2007. [2006 c 253 § 2.] 38.42.110 38.42.900 Short title. This chapter may be known and cited as the Washington service members’ civil relief act. [2005 c 254 § 11.] 38.42.900 38.42.901 Captions not law—2005 c 254. Captions used in this act are no part of the law. [2005 c 254 § 12.] 38.42.901 Chapter 38.44 38.44.030 Chapter 38.44 RCW ENROLLMENT OF PERSONS Sections 38.44.010 38.44.020 38.44.030 38.44.040 38.44.050 38.44.060 Commander-in-chief may order enrollment. Notice of enrollment. Exemptions. Penalties for dereliction or false certificate. Compensation of enrolling officer. Examination of records. Militia—Exemption from military duty: State Constitution Art. 10 § 6. 38.44.010 Commander-in-chief may order enrollment. Whenever the commander-in-chief shall deem it necessary, in event of, or imminent danger of war, insurrection, rebellion, invasion, tumult, riot, resistance to law or process, breach of the peace, public disaster, or the imminent occurrence of any of these events, the commander-in-chief may order an enrollment by counties of all persons subject to military duty, designating the county assessor or some other person for each county to act as county enrolling officer. Each county enrolling officer may appoint such assistant or assistants as may be authorized by the commander-in-chief. In each county the enrollment shall include every sane able bodied inhabitant not under sentence for a felony, who is more than eighteen and less than forty-five years of age. The enrollment shall be made in triplicate and shall state the name, residence, age, occupation and previous or existing military or naval service of each person enrolled. When complete the rolls shall be verified under oath by the enrolling officer, who shall immediately thereupon file one copy with the adjutant general of the state and another with the county auditor, retaining the third copy for himself or herself. [1989 c 19 § 55; 1973 1st ex.s. c 154 § 57; 1909 c 134 § 4; 1895 c 108 § 4; RRS § 8456.] 38.44.010 Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 38.44.020 Notice of enrollment. Persons making an enrollment under this chapter shall, at the time of making same, serve a notice of such enrollment upon each person enrolled, by delivering such notice to the enrollee personally or by leaving it with some person of suitable age and discretion at his or her place of business or residence, or by mailing such notice to him or her at the enrollee’s last known place of residence, and shall make a return under oath of such service to accompany the copy of the enrollment filed with the adjutant general. The return shall be prima facie evidence of the facts therein. [1991 c 43 § 10; 1989 c 19 § 56; 1909 c 134 § 5; 1895 c 108 § 5; RRS § 8457.] 38.44.020 38.44.030 Exemptions. Whenever an enrollment shall have been ordered under this chapter, the commanding officers of existing organizations of militia, and the chiefs of all police and fire departments shall make and deliver to the enrolling officer of the county in which such organization and departments are stationed, verified lists in triplicate of the members of their respective commands and departments, and the enrolling officer shall mark "Exempt" opposite the names of all persons so listed, attaching one copy of each such list to each copy of the enrollment. The enrolling officer shall also mark "Exempt" opposite the names of all federal, state and county officers. All other persons claiming exemption must 38.44.030 38.42.902 Severability—2005 c 254. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2005 c 254 § 14.] 38.42.902 38.42.903 Effective date—2005 c 254. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 3, 2005]. [2005 c 254 § 15.] 38.42.903 (2008 Ed.) [Title 38 RCW—page 43] 38.44.040 Title 38 RCW: Militia and Military Affairs within fifteen days after service upon them of the notice of enrollment make a written verified claim in duplicate of such exemption and file the same in the office of the county auditor, who shall within five days thereafter forward one copy thereof with remarks and recommendations to the adjutant general. Upon the expiration of the time within which any claim of exemption may be filed and received by the adjutant general, the latter shall notify the county auditor of the decision in each case where exemption has been claimed, and the county auditor shall write upon the roll opposite the name of each person whose claim of exemption has been allowed by the adjutant general, the word "Exempt." All those on the roll not marked "Exempt" shall be subject to military duty. [1991 c 43 § 11; 1989 c 19 § 57; 1909 c 134 § 6; 1895 c 108 § 6, part; RRS § 8458.] 38.44.040 38.44.040 Penalties for dereliction or false certificate. If any officer or person, who becomes charged under this chapter with any duty relating to an enrollment of persons subject to military duty, refuses or neglects to perform the same within the time and substantially in the manner required by law, or if he or she shall knowingly make any false certificate, or if, when acting as county or assistant enrolling officer, he or she shall knowingly or willfully omit from the roll any person required by this chapter to be enrolled he or she shall thereby forfeit not less than one hundred nor more than five hundred dollars, to be sued for in the name of the state of Washington by the prosecuting attorney of the county in which such offense shall occur, the amount of the penalty to be determined by the court, and, when recovered, to be paid into the general fund of the state. [1991 c 43 § 12; 1989 c 19 § 58; 1909 c 134 § 7; RRS § 8459.] 38.44.050 38.44.050 Compensation of enrolling officer. Each county enrolling officer shall be allowed the sum of five cents per name enrolled and served with notice of enrollment by the enrolling officer or assistants, to be audited and paid as other military bills out of any moneys in the general fund appropriated to the military department, and from such allowance the enrolling officer must pay the assistant or assistants. [1991 c 43 § 13; 1989 c 19 § 59; 1909 c 134 § 8; RRS § 8460.] 38.44.060 38.44.060 Examination of records. All civil officers in each county, city and town shall allow persons authorized under this chapter to make enrollments, at all proper times, to examine their records and take copies thereof or information therefrom. It shall be the duty of every person, under the penalties provided in RCW 38.44.040, upon application of any person legally authorized to make an enrollment, truthfully to state all of the facts within his or her knowledge concerning any individual of whom the enroller shall make inquiry. In event of a violation of this section the enroller shall report the facts to the prosecuting attorney, who shall at once proceed to enforce the penalty. [1991 c 43 § 14; 1989 c 19 § 60; 1909 c 134 § 9; 1895 c 108 § 6, part; RRS § 8461.] [Title 38 RCW—page 44] Chapter 38.48 Chapter 38.48 RCW STATE AND NATIONAL DEFENSE Sections 38.48.050 Acceptance of national defense facilities act. Reviser’s note: The following acts, which appear to have been of limited duration, are omitted from RCW: (1) 1941 c 200, 1943 c 191; RRS §§ 8607-7 through 8607-15; Act in aid of national defense; (2) 1943 c 93; Authorizing sale or lease of tools and equipment to federal agencies; (3) 1943 c 200; Washington state war council; and (4) 1945 c 211; Armory drill pay for active state guard. 38.48.050 Acceptance of national defense facilities act. The legislature hereby expresses its intention to secure to this state the benefits of the act of congress entitled the "National Defense Facilities Act" (10 U.S.C. Sec. 2231, et seq., as amended), and the state military department shall be charged with the duty to cooperate with any official or agency of the United States having powers or duties under the provisions of the said act of congress for the acquisition, construction, expansion, rehabilitation or conversion of facilities necessary for the administration and training of units of the state military department and reserve components of the armed forces of the United States. The provisions of the said act of congress are hereby accepted by this state and this state will observe and comply with the requirements thereof. [1989 c 19 § 61; 1953 c 181 § 1; 1953 c 277 § 4.] 38.48.050 Chapter 38.52 Chapter 38.52 RCW EMERGENCY MANAGEMENT Sections 38.52.005 38.52.010 38.52.020 38.52.030 38.52.037 38.52.040 38.52.050 38.52.070 38.52.080 38.52.091 38.52.100 38.52.105 38.52.106 38.52.110 38.52.120 38.52.140 38.52.150 38.52.160 38.52.170 38.52.180 38.52.190 38.52.195 State military department to administer emergency management program—Local organizations authorized to change name. Definitions. Declaration of policy and purpose. Director—Comprehensive emergency management plan— Statewide enhanced 911 emergency communications network—State coordinator of search and rescue operations— State program for emergency assistance—State coordinator for radioactive and hazardous waste emergency response programs. Comprehensive state mine rescue plan—Submittal to legislature. Emergency management council—Members—Ad hoc committees—Function as state emergency response commission—Rules review. Governor’s general powers and duties. Local organizations and joint local organizations authorized— Establishment, operation—Emergency powers, procedures. Outside aid—Rights and liabilities—Claims. Mutual aid and interlocal agreements—Requirements. Appropriations—Acceptance of funds, services, etc. Disaster response account. Nisqually earthquake account. Use of existing services and facilities—Impressment of citizenry. Political activity prohibited. Status of civil service employee preserved. Orders, rules, regulations—Enforcement—Availability—Penalty. Matching funds from political subdivision may be required. Plan for federal area. Liability for property damage, bodily injury, death—Immunity—Assumption by state—Indemnification—Immunity from liability for covered volunteers. Compensation for injury or death—Chapter exclusive. Exemption from liability while providing construction, equipment or work. (2008 Ed.) Emergency Management 38.52.1951 38.52.198 38.52.200 38.52.205 38.52.207 38.52.210 38.52.220 38.52.230 38.52.240 38.52.250 38.52.260 38.52.270 38.52.280 38.52.290 38.52.300 38.52.310 38.52.320 38.52.330 38.52.340 38.52.350 38.52.360 38.52.370 38.52.380 38.52.390 38.52.400 38.52.410 38.52.420 38.52.430 38.52.500 38.52.501 38.52.505 38.52.510 38.52.520 38.52.525 38.52.530 38.52.532 38.52.535 38.52.540 38.52.545 38.52.550 38.52.561 38.52.900 38.52.920 38.52.930 Application of exemption from liability for architects and engineers. Emergency care, rescue, assistance, or recovery services in mine rescue or recovery work—Immunity from liability. Liability for compensation is in lieu of other liability—Exception. Claims arising from emergency management related activities—Filing—Contents. Claims arising from emergency management related activities—Filing—Consideration, adjustment, settlement, etc., by director—Effect. Compensation boards—Established. Compensation boards—Meetings—Claims not necessitating board meeting. Compensation boards—Attendance of witnesses, oaths, rules—Members uncompensated. Compensation boards—Duties as to compensation applications. Compensation boards—Quorum—Transmittal of minutes, claims—Appeal to department. When compensation furnished. Minors entitled to benefits. Compensation and benefits limited by appropriation. Applicability of workers’ compensation law. Right of action against third party. Coverage, classification, registration, of workers. Schedule of payments. Expenditures authorized—Claims, payment and disposition— Appeals. Benefits under other compensation plans. Benefits furnished under federal law—Reduction of state benefits. Medical, surgical or hospital treatment. Medical, surgical or hospital treatment—Reimbursement. State compensation denied if payment prevents federal benefits. Contracts or work on cost basis for emergency management activities. Search and rescue activities—Powers and duties of local officials. Search and rescue activities—Distribution of funds for compensation and reimbursement of volunteers. Model contingency plan for pollution control facilities and hazardous waste management. Emergency response caused by person’s intoxication—Recovery of costs from convicted person. Statewide enhanced 911 service—Finding. Statewide enhanced 911 service—Findings. Statewide enhanced 911 service—Automatic location identification—Rules. Statewide enhanced 911 service—Funding by counties. State enhanced 911 coordination office. State enhanced 911 coordination office—Public education materials. Enhanced 911 advisory committee. Enhanced 911 advisory committee—Annual legislative update. State enhanced 911 coordination office and advisory committee—Uniform national standards. Enhanced 911 account. Priorities for enhanced 911 funding. Emergency communications systems and information— Immunity from civil liability. 911 calls from radio communications service companies— Technical and operational standards. Short title. Repeal and saving. Transfer of powers, duties, and functions to state military department. Hazardous materials incidents, handling and liability: RCW 70.136.010 through 70.136.070. 38.52.005 State military department to administer emergency management program—Local organizations authorized to change name. The department shall administer the comprehensive emergency management program of the state of Washington as provided for in this chapter. All local organizations, organized and performing emergency management functions pursuant to RCW 38.52.070, may change their name and be called the . . . . . . 38.52.005 (2008 Ed.) 38.52.010 department/division of emergency management. [1995 c 391 § 1; 1986 c 266 § 22; 1984 c 38 § 1; 1972 ex.s. c 6 § 1.] Effective date—1995 c 391: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1995." [1995 c 391 § 18.] Transfer of powers and duties of department of emergency management and office of archaeology and historic preservation—Construction of statutory references: "The department of emergency management and the office of archaeology and historic preservation are hereby abolished and their powers, duties, and functions are hereby transferred to the department of community development. All references to the director of emergency management or the department of emergency management and the office of archaeology and historic preservation in the Revised Code of Washington shall be construed to mean the director or department of community development." [1986 c 266 § 1.] Severability—1986 c 266: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 266 § 138.] 38.52.010 Definitions. As used in this chapter: (1) "Emergency management" or "comprehensive emergency management" means the preparation for and the carrying out of all emergency functions, other than functions for which the military forces are primarily responsible, to mitigate, prepare for, respond to, and recover from emergencies and disasters, and to aid victims suffering from injury or damage, resulting from disasters caused by all hazards, whether natural, technological, or human caused, and to provide support for search and rescue operations for persons and property in distress. However, "emergency management" or "comprehensive emergency management" does not mean preparation for emergency evacuation or relocation of residents in anticipation of nuclear attack. (2) "Local organization for emergency services or management" means an organization created in accordance with the provisions of this chapter by state or local authority to perform local emergency management functions. (3) "Political subdivision" means any county, city or town. (4) "Emergency worker" means any person who is registered with a local emergency management organization or the department and holds an identification card issued by the local emergency management director or the department for the purpose of engaging in authorized emergency management activities or is an employee of the state of Washington or any political subdivision thereof who is called upon to perform emergency management activities. (5) "Injury" as used in this chapter shall mean and include accidental injuries and/or occupational diseases arising out of emergency management activities. (6)(a) "Emergency or disaster" as used in all sections of this chapter except RCW 38.52.430 shall mean an event or set of circumstances which: (i) Demands immediate action to preserve public health, protect life, protect public property, or to provide relief to any stricken community overtaken by such occurrences, or (ii) reaches such a dimension or degree of destructiveness as to warrant the governor declaring a state of emergency pursuant to RCW 43.06.010. (b) "Emergency" as used in RCW 38.52.430 means an incident that requires a normal police, coroner, fire, rescue, emergency medical services, or utility response as a result of 38.52.010 [Title 38 RCW—page 45] 38.52.020 Title 38 RCW: Militia and Military Affairs a violation of one of the statutes enumerated in RCW 38.52.430. (7) "Search and rescue" means the acts of searching for, rescuing, or recovering by means of ground, marine, or air activity any person who becomes lost, injured, or is killed while outdoors or as a result of a natural, technological, or human caused disaster, including instances involving searches for downed aircraft when ground personnel are used. Nothing in this section shall affect appropriate activity by the department of transportation under chapter 47.68 RCW. (8) "Executive head" and "executive heads" means the county executive in those charter counties with an elective office of county executive, however designated, and, in the case of other counties, the county legislative authority. In the case of cities and towns, it means the mayor in those cities and towns with mayor-council or commission forms of government, where the mayor is directly elected, and it means the city manager in those cities and towns with council manager forms of government. Cities and towns may also designate an executive head for the purposes of this chapter by ordinance. (9) "Director" means the adjutant general. (10) "Local director" means the director of a local organization of emergency management or emergency services. (11) "Department" means the state military department. (12) "Emergency response" as used in RCW 38.52.430 means a public agency’s use of emergency services during an emergency or disaster as defined in subsection (6)(b) of this section. (13) "Expense of an emergency response" as used in RCW 38.52.430 means reasonable costs incurred by a public agency in reasonably making an appropriate emergency response to the incident, but shall only include those costs directly arising from the response to the particular incident. Reasonable costs shall include the costs of providing police, coroner, fire fighting, rescue, emergency medical services, or utility response at the scene of the incident, as well as the salaries of the personnel responding to the incident. (14) "Public agency" means the state, and a city, county, municipal corporation, district, town, or public authority located, in whole or in part, within this state which provides or may provide fire fighting, police, ambulance, medical, or other emergency services. (15) "Incident command system" means: (a) An all-hazards, on-scene functional management system that establishes common standards in organization, terminology, and procedures; provides a means (unified command) for the establishment of a common set of incident objectives and strategies during multiagency/multijurisdiction operations while maintaining individual agency/jurisdiction authority, responsibility, and accountability; and is a component of the national interagency incident management system; or (b) an equivalent and compatible all-hazards, on-scene functional management system. (16) "Radio communications service company" has the meaning ascribed to it in RCW 82.14B.020. [2007 c 292 § 1; 2002 c 341 § 2; 1997 c 49 § 1; 1995 c 391 § 2. Prior: 1993 c 251 § 5; 1993 c 206 § 1; 1986 c 266 § 23; 1984 c 38 § 2; 1979 ex.s. c 268 § 1; 1975 1st ex.s. c 113 § 1; 1974 ex.s. c 171 § 4; 1967 c 203 § 1; 1953 c 223 § 2; 1951 c 178 § 3.] [Title 38 RCW—page 46] Severability—Effective date—2002 c 341: See notes following RCW 38.52.501. Effective date—1995 c 391: See note following RCW 38.52.005. Finding—Intent—1993 c 251: See note following RCW 38.52.430. Severability—1986 c 266: See note following RCW 38.52.005. 38.52.020 Declaration of policy and purpose. (1) Because of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness as defined in RCW 38.52.010(6), and in order to insure that preparations of this state will be adequate to deal with such disasters, to insure the administration of state and federal programs providing disaster relief to individuals, and further to insure adequate support for search and rescue operations, and generally to protect the public peace, health, and safety, and to preserve the lives and property of the people of the state, it is hereby found and declared to be necessary: (a) To provide for emergency management by the state, and to authorize the creation of local organizations for emergency management in the political subdivisions of the state; (b) To confer upon the governor and upon the executive heads of the political subdivisions of the state the emergency powers provided herein; (c) To provide for the rendering of mutual aid among the political subdivisions of the state and with other states and to cooperate with the federal government with respect to the carrying out of emergency management functions; (d) To provide a means of compensating emergency management workers who may suffer any injury, as herein defined, or death; who suffer economic harm including personal property damage or loss; or who incur expenses for transportation, telephone or other methods of communication, and the use of personal supplies as a result of participation in emergency management activities; and (e) To provide programs, with intergovernmental cooperation, to educate and train the public to be prepared for emergencies. (2) It is further declared to be the purpose of this chapter and the policy of the state that all emergency management functions of this state and its political subdivisions be coordinated to the maximum extent with the comparable functions of the federal government including its various departments and agencies of other states and localities, and of private agencies of every type, to the end that the most effective preparation and use may be made of the nation’s manpower, resources, and facilities for dealing with any disaster that may occur. [1986 c 266 § 24; 1984 c 38 § 3; 1979 ex.s. c 268 § 2; 1975 1st ex.s. c 113 § 2; 1974 ex.s. c 171 § 5; 1967 c 203 § 2; 1953 c 223 § 1; 1951 c 178 § 2.] 38.52.020 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.030 Director—Comprehensive emergency management plan—Statewide enhanced 911 emergency communications network—State coordinator of search and rescue operations—State program for emergency assistance—State coordinator for radioactive and hazardous waste emergency response programs. (1) The director may employ such personnel and may make such expenditures within the appropriation therefor, or from other funds made available for purposes of emergency manage38.52.030 (2008 Ed.) Emergency Management ment, as may be necessary to carry out the purposes of this chapter. (2) The director, subject to the direction and control of the governor, shall be responsible to the governor for carrying out the program for emergency management of this state. The director shall coordinate the activities of all organizations for emergency management within the state, and shall maintain liaison with and cooperate with emergency management agencies and organizations of other states and of the federal government, and shall have such additional authority, duties, and responsibilities authorized by this chapter, as may be prescribed by the governor. (3) The director shall develop and maintain a comprehensive, all-hazard emergency plan for the state which shall include an analysis of the natural, technological, or human caused hazards which could affect the state of Washington, and shall include the procedures to be used during emergencies for coordinating local resources, as necessary, and the resources of all state agencies, departments, commissions, and boards. The comprehensive emergency management plan shall direct the department in times of state emergency to administer and manage the state’s emergency operations center. This will include representation from all appropriate state agencies and be available as a single point of contact for the authorizing of state resources or actions, including emergency permits. The comprehensive emergency management plan must specify the use of the incident command system for multiagency/multijurisdiction operations. The comprehensive, all-hazard emergency plan authorized under this subsection may not include preparation for emergency evacuation or relocation of residents in anticipation of nuclear attack. This plan shall be known as the comprehensive emergency management plan. (4) In accordance with the comprehensive emergency management plans and the programs for the emergency management of this state, the director shall procure supplies and equipment, institute training programs and public information programs, and shall take all other preparatory steps, including the partial or full mobilization of emergency management organizations in advance of actual disaster, to insure the furnishing of adequately trained and equipped forces of emergency management personnel in time of need. (5) The director shall make such studies and surveys of the industries, resources, and facilities in this state as may be necessary to ascertain the capabilities of the state for emergency management, and shall plan for the most efficient emergency use thereof. (6) The emergency management council shall advise the director on all aspects of the communications and warning systems and facilities operated or controlled under the provisions of this chapter. (7) The director, through the state enhanced 911 coordinator, shall coordinate and facilitate implementation and operation of a statewide enhanced 911 emergency communications network. (8) The director shall appoint a state coordinator of search and rescue operations to coordinate those state resources, services and facilities (other than those for which the state director of aeronautics is directly responsible) requested by political subdivisions in support of search and rescue operations, and on request to maintain liaison with and (2008 Ed.) 38.52.030 coordinate the resources, services, and facilities of political subdivisions when more than one political subdivision is engaged in joint search and rescue operations. (9) The director, subject to the direction and control of the governor, shall prepare and administer a state program for emergency assistance to individuals within the state who are victims of a natural, technological, or human caused disaster, as defined by RCW 38.52.010(6). Such program may be integrated into and coordinated with disaster assistance plans and programs of the federal government which provide to the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan for purposes of assistance to individuals affected by a disaster. Further, such program may include, but shall not be limited to, grants, loans, or gifts of services, equipment, supplies, materials, or funds of the state, or any political subdivision thereof, to individuals who, as a result of a disaster, are in need of assistance and who meet standards of eligibility for disaster assistance established by the department of social and health services: PROVIDED, HOWEVER, That nothing herein shall be construed in any manner inconsistent with the provisions of Article VIII, section 5 or section 7 of the Washington state Constitution. (10) The director shall appoint a state coordinator for radioactive and hazardous waste emergency response programs. The coordinator shall consult with the state radiation control officer in matters relating to radioactive materials. The duties of the state coordinator for radioactive and hazardous waste emergency response programs shall include: (a) Assessing the current needs and capabilities of state and local radioactive and hazardous waste emergency response teams on an ongoing basis; (b) Coordinating training programs for state and local officials for the purpose of updating skills relating to emergency mitigation, preparedness, response, and recovery; (c) Utilizing appropriate training programs such as those offered by the federal emergency management agency, the department of transportation and the environmental protection agency; and (d) Undertaking other duties in this area that are deemed appropriate by the director. [1997 c 49 § 2; 1995 c 269 § 1201. Prior: 1991 c 322 § 20; 1991 c 54 § 2; 1986 c 266 § 25; 1984 c 38 § 4; 1975 1st ex.s. c 113 § 3; 1973 1st ex.s. c 154 § 58; 1967 c 203 § 3; 1951 c 178 § 4.] Effective date—1995 c 269: See note following RCW 9.94A.850. Part headings not law—Severability—1995 c 269: See notes following RCW 13.40.005. Findings—Intent—1991 c 322: See note following RCW 86.12.200. Referral to electorate—1991 c 54: "Sections 1 through 6 and 9 through 16 of this act shall be submitted to the people for their adoption and ratification, or rejection, at the next succeeding general election to be held in this state, in accordance with Article II, section 1 of the state Constitution, as amended, and the laws adopted to facilitate the operation thereof. The ballot title for this act shall be: "Shall enhanced 911 emergency telephone dialing be provided throughout the state and be funded by a tax on telephone lines?"" [1991 c 54 § 17.] Reviser’s note: "This act," chapter 54, Laws of 1991, was adopted and ratified by the people at the November 5, 1991, general election (Referendum Bill No. 42). Severability—1986 c 266: See note following RCW 38.52.005. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. [Title 38 RCW—page 47] 38.52.037 Title 38 RCW: Militia and Military Affairs Hazardous and radioactive wastes: Chapters 70.98, 70.99, 70.105, 70.136 RCW. 38.52.037 Comprehensive state mine rescue plan— Submittal to legislature. The department shall consult with appropriate local, state, federal, and private sector officials in developing a comprehensive state mine rescue plan. The plan shall identify mine rescue resources, set forth a framework for a coordinated response to mine rescue emergencies, identify shortfalls, and recommend solutions. The draft of the comprehensive state mine rescue plan and a schedule for submittal of the final plan shall be submitted to the legislature on January 13, 1986. [1986 c 266 § 26; 1985 c 459 § 6.] 38.52.037 Severability—1986 c 266: See note following RCW 38.52.005. Severability—1985 c 459: See note following RCW 79.14.510. 38.52.040 Emergency management council—Members—Ad hoc committees—Function as state emergency response commission—Rules review. (1) There is hereby created the emergency management council (hereinafter called the council), to consist of not more than seventeen members who shall be appointed by the governor. The membership of the council shall include, but not be limited to, representatives of city and county governments, sheriffs and police chiefs, the Washington state patrol, the military department, the department of ecology, state and local fire chiefs, seismic safety experts, state and local emergency management directors, search and rescue volunteers, medical professions who have expertise in emergency medical care, building officials, and private industry. The representatives of private industry shall include persons knowledgeable in emergency and hazardous materials management. The council members shall elect a chairman from within the council membership. The members of the council shall serve without compensation, but may be reimbursed for their travel expenses incurred in the performance of their duties in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended. (2) The emergency management council shall advise the governor and the director on all matters pertaining to state and local emergency management. The council may appoint such ad hoc committees, subcommittees, and working groups as are required to develop specific recommendations for the improvement of emergency management practices, standards, policies, or procedures. The council shall ensure that the governor receives an annual assessment of statewide emergency preparedness including, but not limited to, specific progress on hazard mitigation and reduction efforts, implementation of seismic safety improvements, reduction of flood hazards, and coordination of hazardous materials planning and response activities. The council or a subcommittee thereof shall periodically convene in special session and serve during those sessions as the state emergency response commission required by P.L. 99-499, the emergency planning and community right-to-know act. When sitting in session as the state emergency response commission, the council shall confine its deliberations to those items specified in federal statutes and state administrative rules governing the coordination of hazardous materials policy. The council shall review administrative rules governing state and local emer38.52.040 [Title 38 RCW—page 48] gency management practices and recommend necessary revisions to the director. [1995 c 269 § 1202; 1988 c 81 § 18; 1984 c 38 § 5; 1979 ex.s. c 57 § 8; 1975-’76 2nd ex.s. c 34 § 82; 1974 ex.s. c 171 § 6; 1951 c 178 § 5.] Effective date—1995 c 269: See note following RCW 9.94A.850. Part headings not law—Severability—1995 c 269: See notes following RCW 13.40.005. Effective date—Severability—1975-’76 2nd ex.s. c 34: See notes following RCW 2.08.115. 38.52.050 Governor’s general powers and duties. (1) The governor, through the director, shall have general supervision and control of the emergency management functions in the department, and shall be responsible for the carrying out of the provisions of this chapter, and in the event of disaster beyond local control, may assume direct operational control over all or any part of the emergency management functions within this state. (2) In performing his or her duties under this chapter, the governor is authorized to cooperate with the federal government, with other states, and with private agencies in all matters pertaining to the emergency management of this state and of the nation. (3) In performing his or her duties under this chapter and to effect its policy and purpose, the governor is further authorized and empowered: (a) To make, amend, and rescind the necessary orders, rules, and regulations to carry out the provisions of this chapter within the limits of the authority conferred upon him herein, with due consideration of the plans of the federal government; (b) On behalf of this state, to enter into mutual aid arrangements with other states and territories, or provinces of the Dominion of Canada and to coordinate mutual aid interlocal agreements between political subdivisions of this state; (c) To delegate any administrative authority vested in him under this chapter, and to provide for the subdelegation of any such authority; (d) To appoint, with the advice of local authorities, metropolitan or regional area coordinators, or both, when practicable; (e) To cooperate with the president and the heads of the armed forces, the emergency management agency of the United States, and other appropriate federal officers and agencies, and with the officers and agencies of other states in matters pertaining to the emergency management of the state and nation. [1997 c 49 § 3; 1986 c 266 § 27; 1984 c 38 § 6; 1974 ex.s. c 171 § 7; 1951 c 178 § 6.] 38.52.050 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.070 Local organizations and joint local organizations authorized—Establishment, operation—Emergency powers, procedures. (1) Each political subdivision of this state is hereby authorized and directed to establish a local organization or to be a member of a joint local organization for emergency management in accordance with the state comprehensive emergency management plan and program: PROVIDED, That a political subdivision proposing such establishment shall submit its plan and program for emergency management to the state director and secure his or her recommendations thereon, and verification of consistency 38.52.070 (2008 Ed.) Emergency Management with the state comprehensive emergency management plan, in order that the plan of the local organization for emergency management may be coordinated with the plan and program of the state. Local comprehensive emergency management plans must specify the use of the incident command system for multiagency/multijurisdiction operations. No political subdivision may be required to include in its plan provisions for the emergency evacuation or relocation of residents in anticipation of nuclear attack. If the director’s recommendations are adverse to the plan as submitted, and, if the local organization does not agree to the director’s recommendations for modification to the proposal, the matter shall be referred to the council for final action. The director may authorize two or more political subdivisions to join in the establishment and operation of a joint local organization for emergency management as circumstances may warrant, in which case each political subdivision shall contribute to the cost of emergency management upon such fair and equitable basis as may be determined upon by the executive heads of the constituent subdivisions. If in any case the executive heads cannot agree upon the proper division of cost the matter shall be referred to the council for arbitration and its decision shall be final. When two or more political subdivisions join in the establishment and operation of a joint local organization for emergency management each shall pay its share of the cost into a special pooled fund to be administered by the treasurer of the most populous subdivision, which fund shall be known as the . . . . . . emergency management fund. Each local organization or joint local organization for emergency management shall have a director who shall be appointed by the executive head of the political subdivision, and who shall have direct responsibility for the organization, administration, and operation of such local organization for emergency management, subject to the direction and control of such executive officer or officers. In the case of a joint local organization for emergency management, the director shall be appointed by the joint action of the executive heads of the constituent political subdivisions. Each local organization or joint local organization for emergency management shall perform emergency management functions within the territorial limits of the political subdivision within which it is organized, and, in addition, shall conduct such functions outside of such territorial limits as may be required pursuant to the provisions of this chapter. (2) In carrying out the provisions of this chapter each political subdivision, in which any disaster as described in RCW 38.52.020 occurs, shall have the power to enter into contracts and incur obligations necessary to combat such disaster, protecting the health and safety of persons and property, and providing emergency assistance to the victims of such disaster. Each political subdivision is authorized to exercise the powers vested under this section in the light of the exigencies of an extreme emergency situation without regard to time-consuming procedures and formalities prescribed by law (excepting mandatory constitutional requirements), including, but not limited to, budget law limitations, requirements of competitive bidding and publication of notices, provisions pertaining to the performance of public work, entering into contracts, the incurring of obligations, the employment of temporary workers, the rental of equipment, the purchase of supplies and materials, the levying of taxes, and (2008 Ed.) 38.52.091 the appropriation and expenditures of public funds. [1997 c 49 § 4; 1986 c 266 § 28; 1984 c 38 § 7; 1974 ex.s. c 171 § 9; 1951 c 178 § 8.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.080 Outside aid—Rights and liabilities— Claims. (1) Whenever the employees of any political subdivision are rendering outside aid pursuant to the authority contained in RCW 38.52.070 such employees shall have the same powers, duties, rights, privileges, and immunities as if they were performing their duties in the political subdivisions in which they are normally employed. (2) The political subdivision in which any equipment is used pursuant to this section shall be liable for any loss or damage thereto and shall pay any expense incurred in the operation and maintenance thereof. No claim for such loss, damage, or expense shall be allowed unless, within sixty days after the same is sustained or incurred, an itemized notice of such claim under oath is served by mail or otherwise upon the executive head of such political subdivision where the equipment was used. The term "employee" as used in this section shall mean, and the provisions of this section shall apply with equal effect to, volunteer auxiliary employees, and emergency workers. (3) The foregoing rights, privileges, and obligations shall also apply in the event such aid is rendered outside the state, provided that payment or reimbursement in such case shall or may be made by the state or political subdivision receiving such aid pursuant to a reciprocal mutual aid agreement or compact with such state or by the federal government. [1984 c 38 § 8; 1974 ex.s. c 171 § 10; 1951 c 178 § 9.] 38.52.080 38.52.091 Mutual aid and interlocal agreements— Requirements. (1) The director of each local organization for emergency management may, in collaboration with other public and private agencies within this state, develop or cause to be developed mutual aid arrangements for reciprocal emergency management aid and assistance in case of disaster too great to be dealt with unassisted. Such arrangements must be consistent with the state emergency management plan and program, and in time of emergency it is the duty of each local organization for emergency management to render assistance in accordance with the provisions of such mutual aid arrangements. The adjutant general shall maintain and distribute a mutual aid and interlocal agreement handbook. (2) The adjutant general and the director of each local organization for emergency management may, subject to the approval of the governor, enter into mutual aid arrangements with emergency management agencies or organizations in other states for reciprocal emergency management aid and assistance in case of disaster too great to be dealt with unassisted. All such arrangements must contain the language and provisions in subsection (3) of this section. (3) Mutual aid and interlocal agreements must include the following: 38.52.091 Purpose The purpose must state the reason the mutual aid or interlocal agreement or compact is coordinated, the parties to the agreement or compact, and the assistance to be provided. [Title 38 RCW—page 49] 38.52.100 Title 38 RCW: Militia and Military Affairs Authorization Article I, section 10 of the Constitution of the United States permits a state to enter into an agreement or compact with another state, subject to the consent of Congress. Congress, through enactment of Title 50 U.S.C. Sections 2281(g), 2283 and the Executive Department, by issuance of Executive Orders No. 10186 of December 1, 1950, encourages the states to enter into emergency, disaster and civil defense mutual aid agreements or pacts. Implementation The conditions that guide the agreement or compacts may include, but are not limited to: (a) A statement of which authority or authorities are authorized to request and receive assistance and the conditions that must exist for the request or receipt of assistance. (b) A statement of how the requests for assistance may be made, what documentation of the request is required, the specifics of any details included in the request, and the required approval for the request. (c) A statement of the direction and control relationship between the personnel and equipment provided by the jurisdiction to the requester and the requirements of the requester to coordinate the activities of the jurisdiction providing the assets. (d) A statement of the circumstances by which the assisting jurisdiction may withdraw support from the requester and the method by which this is to be communicated. General Fiscal Provisions The terms of reimbursement must be stated defining the relationship between the requesting jurisdiction and the aiding jurisdiction, when reimbursement will be made, and details of the claim for reimbursement. The provisions may include statements that discuss but are not limited to: (a) A statement of what costs are incurred by the requesting jurisdiction. (b) A statement of what costs and compensation benefits are made to individuals from the aiding jurisdiction by the requesting jurisdiction. Privileges and Immunities The conditions and immunities that are enjoyed by the individuals from the aiding jurisdiction to the requesting jurisdiction must be stated. These provisions may include but are not limited to: (a) A statement of the privileges and immunities from liability and the law an employee of a supporting jurisdiction enjoys while supporting the requesting jurisdiction. (b) A statement of the privileges and immunities from liability and the law a volunteer from a supporting jurisdiction enjoys while supporting the requesting jurisdiction. (c) A statement on the use of the national guard between the requesting and supporting jurisdictions. (d) A hold harmless agreement between the signatory jurisdictions. (e) The precedence this agreement takes with existing agreements. (f) A time line by which information required by the agreement is exchanged and updated annually. [Title 38 RCW—page 50] (g) The time in which the agreement becomes effective. (h) The time and conditions when a signatory may withdraw and render the agreement ineffective. [1997 c 195 § 1.] 38.52.100 38.52.100 Appropriations—Acceptance of funds, services, etc. (1) Each political subdivision shall have the power to make appropriations in the manner provided by law for making appropriations for the ordinary expenses of such political subdivision for the payment of expenses of its local organization for emergency management. (2) Whenever the federal government or any agency or officer thereof shall offer to the state, or through the state to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan, for purposes of emergency management, the state, acting through the governor, or such political subdivision, acting with the consent of the governor and through its executive head, may accept such offer and upon such acceptance the governor of the state or executive head of such political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of the state or such political subdivision, and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer. (3) Whenever any person, firm, or corporation shall offer to the state or to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan, for the purposes of emergency management, the state, acting through the governor, or such political subdivision, acting through its executive head, may accept such offer and upon such acceptance the governor of the state or executive head of such political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of the state or such political subdivision, and subject to the terms of the offer. [1984 c 38 § 10; 1974 ex.s. c 171 § 12; 1951 c 178 § 12.] 38.52.105 38.52.105 Disaster response account. The disaster response account is created in the state treasury. Moneys may be placed in the account from legislative appropriations and transfers, federal appropriations, or any other lawful source. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for support of state agency and local government disaster response and recovery efforts and to reimburse the workers’ compensation funds and self-insured employers under RCW 51.16.220. During the 2001-03 biennium, funds from the account may also be used for costs associated with national security preparedness activities. [2005 c 422 § 2; 2002 c 371 § 903; 1997 c 251 § 1.] Rules—Effective date—2005 c 422: See notes following RCW 51.16.220. Severability—Effective date—2002 c 371: See notes following RCW 9.46.100. Effective date—1997 c 251: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 5, 1997]." [1997 c 251 § 2.] (2008 Ed.) Emergency Management 38.52.106 Nisqually earthquake account. The Nisqually earthquake account is created in the state treasury. Moneys may be placed in the account from tax revenues, budget transfers or appropriations, federal appropriations, gifts, or any other lawful source. Moneys in the account may be spent only after appropriation. Moneys in the account shall be used only to support state and local government disaster response and recovery efforts associated with the Nisqually earthquake. During the 2003-2005 fiscal biennium, the legislature may transfer moneys from the Nisqually earthquake account to the disaster response account for fire suppression and mobilization costs. During the 2007-2009 fiscal biennium, moneys in the account may also be used to support disaster response and recovery efforts associated with flood and storm damage. [2008 c 329 § 909; 2003 1st sp.s. c 25 § 913; 2002 c 371 § 904; 2001 c 5 § 2.] 38.52.106 Severability—Effective date—2008 c 329: See notes following RCW 28B.105.110. Severability—Effective date—2003 1st sp.s. c 25: See notes following RCW 19.28.351. Severability—Effective date—2002 c 371: See notes following RCW 9.46.100. Nisqually earthquake emergency declaration—2001 c 5: "The legislature declares an emergency caused by a natural disaster, known as the Nisqually earthquake, which occurred on February 28, 2001, as proclaimed by the governor and the president of the United States." [2001 c 5 § 1.] Effective date—2001 c 5: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 12, 2001]." [2001 c 5 § 6.] 38.52.110 Use of existing services and facilities— Impressment of citizenry. (1) In carrying out the provisions of this chapter, the governor and the executive heads of the political subdivisions of the state are directed to utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the state, political subdivisions, and all other municipal corporations thereof including but not limited to districts and quasi municipal corporations organized under the laws of the state of Washington to the maximum extent practicable, and the officers and personnel of all such departments, offices, and agencies are directed to cooperate with and extend such services and facilities to the governor and to the emergency management organizations of the state upon request notwithstanding any other provision of law. (2) The governor, the chief executive of counties, cities and towns and the emergency management directors of local political subdivisions appointed in accordance with this chapter, in the event of a disaster, after proclamation by the governor of the existence of such disaster, shall have the power to command the service and equipment of as many citizens as considered necessary in the light of the disaster proclaimed: PROVIDED, That citizens so commandeered shall be entitled during the period of such service to all privileges, benefits and immunities as are provided by this chapter and federal and state emergency management regulations for registered emergency workers. [1984 c 38 § 11; 1974 ex.s. c 171 § 13; 1971 ex.s. c 8 § 1; 1955 c 210 § 1; 1951 c 178 § 13.] 38.52.110 38.52.120 Political activity prohibited. No organization for emergency management established under the 38.52.120 (2008 Ed.) 38.52.170 authority of this chapter shall participate in any form of political activity, nor shall it be employed directly or indirectly for political purposes. [1984 c 38 § 12; 1974 ex.s. c 171 § 14; 1951 c 178 § 14.] 38.52.140 38.52.140 Status of civil service employee preserved. Any civil service employee of the state of Washington or of any political subdivision thereof while on leave of absence and on duty with any emergency management agency authorized under the provisions of this chapter shall be preserved in his civil service status as to seniority and retirement rights so long as he regularly continues to make the usual contributions incident to the retention of such beneficial rights as if he were not on leave of absence. [1984 c 38 § 13; 1974 ex.s. c 171 § 16; 1951 c 178 § 16.] 38.52.150 38.52.150 Orders, rules, regulations—Enforcement—Availability—Penalty. (1) It shall be the duty of every organization for emergency management established pursuant to this chapter and of the officers thereof to execute and enforce such orders, rules, and regulations as may be made by the governor under authority of this chapter. Each such organization shall have available for inspection at its office all orders, rules, and regulations made by the governor, or under his or her authority. (2)(a) Except as provided in (b) of this subsection, every violation of any rule, regulation, or order issued under the authority of this chapter is a misdemeanor. (b) A second offense hereunder the same is a gross misdemeanor. [2003 c 53 § 211; 1984 c 38 § 14; 1974 ex.s. c 171 § 17; 1951 c 178 § 18.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 38.52.160 38.52.160 Matching funds from political subdivision may be required. The emergency management agency is hereby authorized to require of any political subdivision to which funds are allocated under this chapter for any project, use or activity that such subdivision shall provide matching funds in equal amounts with respect to such project, use or activity. [1984 c 38 § 15; 1974 ex.s. c 171 § 18; 1951 c 178 § 19.] 38.52.170 38.52.170 Plan for federal area. Whenever the director finds that it will be in the interest of the emergency management of this state or of the United States, the director may, with the approval of the governor, agree with the federal government, or any agency thereof carrying on activities within this state, upon a plan of emergency management applicable to a federally owned area, which plan may or may not conform to all of the other provisions of this chapter with the view to integrating federally owned areas into the comprehensive plan and program of the emergency management of this state. Such plan may confer upon persons carrying out such plan any or all of the rights, powers, privileges and immunities granted employees or representatives of the state and/or its political subdivisions by this chapter. The plan of emergency management authorized under this section may not include preparation for emergency evacuation or reloca[Title 38 RCW—page 51] 38.52.180 Title 38 RCW: Militia and Military Affairs tion of residents in anticipation of nuclear attack. [1986 c 266 § 30; 1984 c 38 § 16; 1974 ex.s. c 171 § 19; 1951 c 178 § 20.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.180 38.52.180 Liability for property damage, bodily injury, death—Immunity—Assumption by state— Indemnification—Immunity from liability for covered volunteers. (1) There shall be no liability on the part of anyone including any person, partnership, corporation, the state of Washington or any political subdivision thereof who owns or maintains any building or premises which have been designated by a local organization for emergency management as a shelter from destructive operations or attacks by enemies of the United States for any injuries sustained by any person while in or upon said building or premises, as a result of the condition of said building or premises or as a result of any act or omission, or in any way arising from the designation of such premises as a shelter, when such person has entered or gone upon or into said building or premises for the purpose of seeking refuge therein during destructive operations or attacks by enemies of the United States or during tests ordered by lawful authority, except for an act of willful negligence by such owner or occupant or his servants, agents, or employees. (2) All legal liability for damage to property or injury or death to persons (except an emergency worker, regularly enrolled and acting as such), caused by acts done or attempted during or while traveling to or from an emergency or disaster, search and rescue, or training or exercise authorized by the department in preparation for an emergency or disaster or search and rescue, under the color of this chapter in a bona fide attempt to comply therewith, except as provided in subsections (3), (4), and (5) of this section regarding covered volunteer emergency workers, shall be the obligation of the state of Washington. Suits may be instituted and maintained against the state for the enforcement of such liability, or for the indemnification of persons appointed and regularly enrolled as emergency workers while actually engaged in emergency management duties, or as members of any agency of the state or political subdivision thereof engaged in emergency management activity, or their dependents, for damage done to their private property, or for any judgment against them for acts done in good faith in compliance with this chapter: PROVIDED, That the foregoing shall not be construed to result in indemnification in any case of willful misconduct, gross negligence or bad faith on the part of any agent of emergency management: PROVIDED, That should the United States or any agency thereof, in accordance with any federal statute, rule or regulation, provide for the payment of damages to property and/or for death or injury as provided for in this section, then and in that event there shall be no liability or obligation whatsoever upon the part of the state of Washington for any such damage, death, or injury for which the United States government assumes liability. (3) No act or omission by a covered volunteer emergency worker while engaged in a covered activity shall impose any liability for civil damages resulting from such an act or omission upon: (a) The covered volunteer emergency worker; [Title 38 RCW—page 52] (b) The supervisor or supervisors of the covered volunteer emergency worker; (c) Any facility or their officers or employees; (d) The employer of the covered volunteer emergency worker; (e) The owner of the property or vehicle where the act or omission may have occurred during the covered activity; (f) Any local organization that registered the covered volunteer emergency worker; and (g) The state or any state or local governmental entity. (4) The immunity in subsection (3) of this section applies only when the covered volunteer emergency worker was engaged in a covered activity: (a) Within the scope of his or her assigned duties; (b) Under the direction of a local emergency management organization or the department, or a local law enforcement agency for search and rescue; and (c) The act or omission does not constitute gross negligence or willful or wanton misconduct. (5) For purposes of this section: (a) "Covered volunteer emergency worker" means an emergency worker as defined in RCW 38.52.010 who (i) is not receiving or expecting compensation as an emergency worker from the state or local government, or (ii) is not a state or local government employee unless on leave without pay status. (b) "Covered activity" means: (i) Providing assistance or transportation authorized by the department during an emergency or disaster or search and rescue as defined in RCW 38.52.010, whether such assistance or transportation is provided at the scene of the emergency or disaster or search and rescue, at an alternative care site, at a hospital, or while in route to or from such sites or between sites; or (ii) Participating in training or exercise authorized by the department in preparation for an emergency or disaster or search and rescue. (6) Any requirement for a license to practice any professional, mechanical or other skill shall not apply to any authorized emergency worker who shall, in the course of performing his duties as such, practice such professional, mechanical or other skill during an emergency described in this chapter. (7) The provisions of this section shall not affect the right of any person to receive benefits to which he would otherwise be entitled under this chapter, or under the workers’ compensation law, or under any pension or retirement law, nor the right of any such person to receive any benefits or compensation under any act of congress. [2007 c 292 § 2; 1987 c 185 § 7; 1984 c 38 § 17; 1974 ex.s. c 171 § 20; 1971 ex.s. c 8 § 2; 1953 c 145 § 1; 1951 c 178 § 11.] Intent—Severability—1987 c 185: See notes following RCW 51.12.130. 38.52.190 Compensation for injury or death—Chapter exclusive. Except as provided in this chapter, an emergency worker and his dependents shall have no right to receive compensation from the state, from the agency, from the local organization for emergency management with which he is registered, or from the county or city which has empowered the local organization for emergency management to register him and direct his activities, for an injury or 38.52.190 (2008 Ed.) Emergency Management death arising out of and occurring in the course of his activities as an emergency worker. [1984 c 38 § 18; 1974 ex.s. c 171 § 21; 1953 c 223 § 3.] 38.52.195 Exemption from liability while providing construction, equipment or work. Notwithstanding any other provision of law, no person, firm, corporation, or other entity acting under the direction or control of the proper authority to provide construction, equipment, or work as provided for in RCW 38.52.110, 38.52.180, 38.52.195, 38.52.205, 38.52.207, 38.52.220 and 38.52.390 while complying with or attempting to comply with RCW 38.52.110, 38.52.180, 38.52.195, 38.52.205, 38.52.207, 38.52.220 and 38.52.390 or any rule or regulation promulgated pursuant to the provisions of RCW 38.52.110, 38.52.180, 38.52.195, 38.52.205, 38.52.207, 38.52.220 and 38.52.390 shall be liable for the death of or any injury to persons or damage to property as a result of any such activity: PROVIDED, That said exemption shall only apply where all of the following conditions occur: (1) Where, at the time of the incident the worker is performing services as an emergency worker, and is acting within the course of his duties as an emergency worker; (2) Where, at the time of the injury, loss, or damage, the organization for emergency management which the worker is assisting is an approved organization for emergency management; (3) Where the injury, loss, or damage is proximately caused by his service either with or without negligence as an emergency worker; (4) Where the injury, loss, or damage is not caused by the intoxication of the worker; and (5) Where the injury, loss, or damage is not due to wilful misconduct or gross negligence on the part of a worker. [1984 c 38 § 19; 1974 ex.s. c 171 § 22; 1971 ex.s. c 8 § 7.] 38.52.195 38.52.1951 Application of exemption from liability for architects and engineers. For purposes of the liability of an architect or engineer serving as a volunteer emergency worker, the exemption from liability provided under RCW 38.52.195 extends to all damages, so long as the conditions specified in RCW 38.52.195 (1) through (5) occur. [1993 c 206 § 2.] 38.52.1951 38.52.198 Emergency care, rescue, assistance, or recovery services in mine rescue or recovery work— Immunity from liability. No person engaged in mine rescue or recovery work who, in good faith, renders emergency care, rescue, assistance, or recovery services at the scene of any emergency at or in a mine in this state or who employs, sponsors, or represents any person rendering emergency care, rescue, assistance, or recovery services shall be liable for any civil damages as a result of any act or omission by any person in rendering emergency care, rescue, assistance, or recovery service. [1985 c 459 § 9.] 38.52.198 Severability—1985 c 459: See note following RCW 79.14.510. 38.52.200 Liability for compensation is in lieu of other liability—Exception. Liability for the compensation provided by this chapter, as limited by the provisions thereof, 38.52.200 (2008 Ed.) 38.52.210 is in lieu of any other liability whatsoever to an emergency worker or his dependents or any other person on the part of the state, the agency, the local organization for emergency management with which the emergency worker is registered, and the county or city which has empowered the local organization for emergency management to register him and direct his activities, for injury or death arising out of and in the course of his activities while on duty as an emergency worker: PROVIDED, That nothing in this chapter shall limit or bar the liability of the state or its political subdivisions engaged in proprietary functions as distinguished from governmental functions that may exist by reason of injury or death sustained by an emergency worker. [1984 c 38 § 20; 1974 ex.s. c 171 § 23; 1953 c 223 § 9.] 38.52.205 38.52.205 Claims arising from emergency management related activities—Filing—Contents. All claims against the state for property damages or indemnification therefor arising from emergency management related activities will be presented to and filed with the director of financial management. Contents of all such claims shall conform to the tort claim filing requirements found in RCW 4.92.100 as now or hereafter amended. [1984 c 38 § 21; 1979 c 151 § 43; 1977 ex.s. c 144 § 6; 1974 ex.s. c 171 § 24; 1971 ex.s. c 8 § 4.] 38.52.207 38.52.207 Claims arising from emergency management related activities—Filing—Consideration, adjustment, settlement, etc., by director—Effect. The director, with the approval of the attorney general, may consider, ascertain, adjust, determine, compromise and settle property loss or damage claims arising out of conduct or circumstances for which the state of Washington would be liable in law for money damages of two thousand dollars or less. The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant; and upon the state of Washington, unless procured by fraud, and shall constitute a complete release of any claim against the state of Washington. A request for administrative settlement shall not preclude a claimant from filing court action pending administrative determination, or limit the amount recoverable in such a suit, or constitute an admission against interest of either the claimant or the state. [1986 c 266 § 31; 1984 c 38 § 22; 1974 ex.s. c 171 § 25; 1971 ex.s. c 8 § 5.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.210 38.52.210 Compensation boards—Established. (1) In each local organization for emergency management established by the legislative authority of the county in accordance with the provisions of RCW 38.52.070, there is hereby created and established a compensation board for the processing of claims as provided in this chapter. The compensation board shall be composed of: (a) The county executive if the county has an elected county executive or, if it does not, one member of the county legislative authority selected by the authority. The executive or the member will serve as the chair of the compensation board; (b) the county director of emergency services; (c) the prosecuting attorney; (d) the emergency services coordinator for medical and health services; [Title 38 RCW—page 53] 38.52.220 Title 38 RCW: Militia and Military Affairs and (e) the county auditor who will serve as secretary of the compensation board. (2) In each local organization for emergency management established by cities and towns in accordance with RCW 38.52.070, there is hereby created and established a compensation board for the processing of claims as provided in this chapter. The compensation board shall be composed of the mayor; the city director of emergency management; one councilmember or commissioner selected by the council or the commission; the city attorney or corporation counsel; and the local coordinator of medical and health services. The councilmember or commissioner so selected shall serve as the chair of the compensation board and the city director of emergency management shall serve as secretary of the board. [1986 c 266 § 32; 1984 c 38 § 23; 1981 c 213 § 6; 1974 ex.s. c 171 § 26; 1953 c 223 § 4.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.220 Compensation boards—Meetings— Claims not necessitating board meeting. Said compensation board shall meet on the call of its chairman on a regular monthly meeting day when there is business to come before it. The chairman shall be required to call a meeting on any monthly meeting day when any claim for compensation under this chapter has been submitted to the board: PROVIDED, That as to claims involving amounts of two thousand dollars or less, the local organization director shall submit recommendations directly to the state without convening a compensation board. [1984 c 38 § 24; 1971 ex.s. c 8 § 3; 1953 c 223 § 5.] 38.52.220 38.52.230 Compensation boards—Attendance of witnesses, oaths, rules—Members uncompensated. The compensation board, in addition to other powers herein granted, shall have the power to compel the attendance of witnesses to testify before it on all matters connected with the operation of this chapter and its chairman or any member of said board may administer oath to such witnesses; to make all necessary rules and regulations for its guidance in conformity with the provisions of this chapter: PROVIDED, HOWEVER, That no compensation or emoluments shall be paid to any member of said board for any duties performed as a member of said compensation board. [1953 c 223 § 6.] 38.52.230 38.52.240 Compensation boards—Duties as to compensation applications. The compensation board shall hear and decide all applications for compensation under this chapter. The board shall submit its recommendations to the director on such forms as he or she may prescribe. In case the decision of the director is different from the recommendation of the compensation board, the matter shall be submitted to the state emergency management council for action. [1986 c 266 § 33; 1984 c 38 § 25; 1974 ex.s. c 171 § 27; 1953 c 223 § 7.] 38.52.240 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.250 Compensation boards—Quorum—Transmittal of minutes, claims—Appeal to department. A majority of the compensation board shall constitute a quorum, and no business shall be transacted when a majority is 38.52.250 [Title 38 RCW—page 54] not present, and no claim shall be allowed when a majority of the board has not voted favorably thereon. The board shall send a copy of the minutes of all meetings to the department with copies of all material pertaining to each claim submitted and noting the action of the board on each claim. Appeals may be made by the emergency worker from any action by the board within one year by writing to the department. [1986 c 266 § 34; 1984 c 38 § 26; 1974 ex.s. c 171 § 28; 1953 c 223 § 8.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.260 When compensation furnished. Compensation shall be furnished to an emergency worker either within or without the state for any injury arising out of and occurring in the course of his activities as an emergency worker, and for the death of any such worker if the injury proximately causes death, in those cases where the following conditions occur: (1) Where, at the time of the injury the emergency worker is performing services as an emergency worker, and is acting within the course of his duties as an emergency worker. (2) Where, at the time of the injury the local organization for emergency management with which the emergency worker is registered is an approved local organization for emergency management. (3) Where the injury is proximately caused by his service as an emergency worker, either with or without negligence. (4) Where the injury is not caused by the intoxication of the injured emergency worker. (5) Where the injury is not intentionally self-inflicted. [1984 c 38 § 27; 1974 ex.s. c 171 § 29; 1953 c 223 § 10.] 38.52.260 38.52.270 Minors entitled to benefits. Emergency workers who are minors shall have the same rights as adults for the purpose of receiving benefits under the provisions of this chapter, but this provision shall not prevent the requirements that a guardian be appointed to receive and administer such benefits until the majority of such minor. Work as an emergency worker shall not be deemed as employment or in violation of any of the provisions of chapter 49.12 RCW. [1984 c 38 § 28; 1974 ex.s. c 171 § 30; 1953 c 223 § 11.] 38.52.270 38.52.280 Compensation and benefits limited by appropriation. No compensation or benefits shall be paid or furnished to emergency workers or their dependents pursuant to the provisions of this chapter except from money appropriated for the purpose of this chapter. [1984 c 38 § 29; 1974 ex.s. c 171 § 31; 1953 c 223 § 12.] 38.52.280 38.52.290 Applicability of workers’ compensation law. Insofar as not inconsistent with the provisions of this chapter, the maximum amount payable to a claimant shall be not greater than the amount allowable for similar disability under the workers’ compensation act, chapter 51.32 RCW as amended by chapter 289, Laws of 1971 ex.sess., and any amendments thereto. "Employee" as used in said title shall include an emergency worker when liability for the furnishing of compensation and benefits exists pursuant to the provisions of this chapter and as limited by the provisions of this 38.52.290 (2008 Ed.) Emergency Management chapter. Where liability for compensation and benefits exists, such compensation and benefits shall be provided in accordance with the applicable provisions of said sections of chapter 51.32 RCW and at the maximum rate provided therein, subject, however, to the limitations set forth in this chapter. [1987 c 185 § 8; 1984 c 38 § 30; 1974 ex.s. c 171 § 32; 1971 ex.s. c 289 § 71; 1953 c 223 § 13.] Intent—Severability—1987 c 185: See notes following RCW 51.12.130. Severability—Effective dates—1971 ex.s. c 289: See RCW 51.98.060 and 51.98.070. 38.52.300 Right of action against third party. If the injury to an emergency worker is due to the negligence or wrong of another not on emergency duty, the injured worker, or if death results from the injury, the surviving spouse, children, parents or dependents, as the case may be, shall elect whether to take under this chapter or seek a remedy against such other, such election to be in advance of any suit under this chapter; and if the surviving spouse takes under this chapter, the cause of action against such other shall be assigned to the department; if the other choice is made, the compensation under this chapter shall be only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated for such case under authority of this chapter: PROVIDED, That the department shall prosecute all claims assigned to it and do any and all things necessary to recover on behalf of the state any and all amounts which an employer or insurance carrier might recover under the provisions of the law. [1986 c 266 § 35; 1984 c 38 § 31; 1973 1st ex.s. c 154 § 59; 1953 c 223 § 14.] 38.52.300 Severability—1986 c 266: See note following RCW 38.52.005. Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030. 38.52.310 Coverage, classification, registration, of workers. The department shall establish by rule and regulation various classes of emergency workers, the scope of the duties of each class, and the conditions under which said workers shall be deemed to be on duty and covered by the provisions of this chapter. The department shall also adopt rules and regulations prescribing the manner in which emergency workers of each class are to be registered. [1986 c 266 § 36; 1984 c 38 § 32; 1974 ex.s. c 171 § 33; 1953 c 223 § 15.] 38.52.310 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.320 Schedule of payments. The department shall provide each compensation board with the approved maximum schedule of payments for injury or death prescribed in chapter 51.32 RCW: PROVIDED, That nothing in this chapter shall be construed as establishing any liability on the part of the department of labor and industries. [1986 c 266 § 37; 1984 c 38 § 33; 1974 ex.s. c 171 § 34; 1953 c 223 § 16.] 38.52.320 38.52.360 claimants for compensation as emergency workers and their dependents; to adjust and dispose of all claims submitted by a local compensation board. When medical treatment is necessary, the department is authorized to make medical and compensation payments on an interim basis. Nothing herein shall be construed to mean that the department or the state emergency management council or its officers or agents shall have the final decision with respect to the compensability of any case or the amount of compensation or benefits due, but any emergency worker or his or her dependents shall have the same right of appeal from any order, decision, or award to the same extent as provided in chapter 51.32 RCW. [1986 c 266 § 38; 1984 c 38 § 34; 1979 ex.s. c 268 § 3; 1974 ex.s. c 171 § 35; 1971 ex.s. c 289 § 72; 1953 c 223 § 17.] Severability—1986 c 266: See note following RCW 38.52.005. Severability—Effective dates—1971 ex.s. c 289: See RCW 51.98.060 and 51.98.070. 38.52.340 Benefits under other compensation plans. Nothing in this chapter shall deprive any emergency worker or his or her dependents of any right to compensation for injury or death sustained in the course of his or her regular employment even though his or her regular work is under direction of emergency management authorities: PROVIDED, That such worker, if he or she is eligible for some other compensation plan, and receives the benefits of such plan shall not also receive any compensation under this chapter. The department shall adopt such rules and regulations as may be necessary to protect the rights of such workers and may enter into agreements with authorities in charge of other compensation plans to insure protection of such workers: PROVIDED, That if the compensation from some other plan is less than would have been available under this chapter, he or she shall be entitled to receive the deficiency between the amount received under such other plan and the amount available under this chapter. [1986 c 266 § 39; 1984 c 38 § 35; 1974 ex.s. c 171 § 36; 1953 c 223 § 18.] 38.52.340 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.350 Benefits furnished under federal law— Reduction of state benefits. Should the United States or any agent thereof, in accordance with any federal statute or rule or regulation, furnish monetary assistance, benefits, or other temporary or permanent relief to emergency workers or to their dependents for injuries arising out of and occurring in the course of their activities as emergency workers, then the amount of compensation which any emergency worker or his dependents are otherwise entitled to receive from the state of Washington as provided herein, shall be reduced by the amount of monetary assistance, benefits, or other temporary or permanent relief the emergency worker or his dependents have received and will receive from the United States or any agent thereof as a result of his injury. [1984 c 38 § 36; 1974 ex.s. c 171 § 37; 1953 c 223 § 19.] 38.52.350 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.360 Medical, surgical or hospital treatment. If, in addition to monetary assistance, benefits or other temporary or permanent relief, the United States or any agent thereof furnishes medical, surgical or hospital treatment or any combination thereof to an injured emergency worker, 38.52.360 38.52.330 Expenditures authorized—Claims, payment and disposition—Appeals. The department is authorized to make all expenditures necessary and proper to carry out the provisions of this chapter including payments to 38.52.330 (2008 Ed.) [Title 38 RCW—page 55] 38.52.370 Title 38 RCW: Militia and Military Affairs then the emergency worker has no right to receive similar medical, surgical or hospital treatment as provided in this chapter. However, the department may furnish medical, surgical or hospital treatment as part of the compensation provided under the provisions of this chapter. [1986 c 266 § 40; 1984 c 38 § 37; 1974 ex.s. c 171 § 38; 1953 c 223 § 20.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.370 Medical, surgical or hospital treatment— Reimbursement. If, in addition to monetary assistance, benefits, or other temporary or permanent relief, the United States or any agent thereof, will reimburse an emergency worker or his or her dependents for medical, surgical or hospital treatment, or any combination thereof, furnished to the injured emergency worker, the emergency worker has no right to receive similar medical, surgical or hospital treatment as provided in this chapter, but the department, may furnish a medical, surgical or hospital treatment as part of the compensation provided under the provisions of this chapter and apply to the United States or its agent for the reimbursement which will be made to the emergency worker or his or her dependents. As a condition to the furnishing of such medical, surgical or hospital treatment, the department shall require the emergency worker and his dependents to assign to the state of Washington, for the purpose of reimbursing for any medical, surgical or hospital treatment furnished or to be furnished by the state, any claim or right such emergency worker or his or her dependents may have to reimbursement from the United States or any agent thereof. [1986 c 266 § 41; 1984 c 38 § 38; 1974 ex.s. c 171 § 39; 1953 c 223 § 21.] 38.52.370 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.380 State compensation denied if payment prevents federal benefits. If the furnishing of compensation under the provisions of this chapter to an emergency worker or his dependents prevents such emergency worker or his dependents from receiving assistance, benefits or other temporary or permanent relief under the provisions of a federal statute or rule or regulation, then the emergency worker and his dependents shall have no right to, and shall not receive, any compensation from the state of Washington under the provisions of this chapter for any injury for which the United States or any agent thereof will furnish assistance, benefits or other temporary or permanent relief in the absence of the furnishing of compensation by the state of Washington. [1984 c 38 § 39; 1974 ex.s. c 171 § 40; 1953 c 223 § 22.] 38.52.380 38.52.390 Contracts or work on cost basis for emergency management activities. The governor, or upon his or her direction, the director, or any political subdivision of the state, is authorized to contract with any person, firm, corporation, or entity to provide construction or work on a cost basis to be used in emergency management functions or activities as defined in RCW 38.52.010(1) or as hereafter amended, said functions or activities to expressly include natural disasters, as well as all other emergencies of a type contemplated by RCW 38.52.110, 38.52.180, 38.52.195, 38.52.205, 38.52.207, 38.52.220 and 38.52.390. All funds received for purposes of RCW 38.52.110, 38.52.180, 38.52.195, 38.52.205, 38.52.207, 38.52.220 and 38.52.390, whether 38.52.390 [Title 38 RCW—page 56] appropriated funds, local funds, or from whatever source, may be used to pay for the construction, equipment, or work contracted for under this section. [1986 c 266 § 42; 1984 c 38 § 40; 1971 ex.s. c 8 § 6.] Severability—1986 c 266: See note following RCW 38.52.005. 38.52.400 Search and rescue activities—Powers and duties of local officials. (1) The chief law enforcement officer of each political subdivision shall be responsible for local search and rescue activities. Operation of search and rescue activities shall be in accordance with state and local operations plans adopted by the elected governing body of each local political subdivision. These state and local plans must specify the use of the incident command system for multiagency/multijurisdiction search and rescue operations. The local emergency management director shall notify the department of all search and rescue missions. The local director of emergency management shall work in a coordinating capacity directly supporting all search and rescue activities in that political subdivision and in registering emergency search and rescue workers for employee status. The chief law enforcement officer of each political subdivision may restrict access to a specific search and rescue area to personnel authorized by him. Access shall be restricted only for the period of time necessary to accomplish the search and rescue mission. No unauthorized person shall interfere with a search and rescue mission. (2) When search and rescue activities result in the discovery of a deceased person or search and rescue workers assist in the recovery of human remains, the chief law enforcement officer of the political subdivision shall insure compliance with chapter 68.50 RCW. [1997 c 49 § 5; 1986 c 266 § 43; 1984 c 38 § 41; 1979 ex.s. c 268 § 4.] 38.52.400 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.410 Search and rescue activities—Distribution of funds for compensation and reimbursement of volunteers. Funds received by the department specifically for the purposes of compensating search and rescue volunteers shall be distributed by the director to help fund medical and compensation coverage provided by this chapter and provide reimbursement by the state for: (1) Costs involved in extraordinary search and rescue operations such as search and rescue operations lasting over twenty-four hours where food and lodging for workers is necessary; (2) excessive transportation and rescue costs incurred by out-of-county residents which would not be otherwise collectible; and (3) compensation as provided in RCW 38.52.020(1)(d) as now or hereafter amended. [1986 c 266 § 44; 1984 c 38 § 42; 1979 ex.s. c 268 § 5.] 38.52.410 Severability—1986 c 266: See note following RCW 38.52.005. 38.52.420 Model contingency plan for pollution control facilities and hazardous waste management. (1) The department, in consultation with appropriate federal agencies, the departments of natural resources, fish and wildlife, and ecology, representatives of local government, and any other person the director may deem appropriate, shall assist in the development of a model contingency plan, consistent with other plans required for hazardous materials by federal 38.52.420 (2008 Ed.) Emergency Management and state law, to serve as a draft plan for local governments which may be incorporated into the state and local emergency management plans. (2) The model contingency plan shall: (a) Include specific recommendations for pollution control facilities which are deemed to be most appropriate for the control, collection, storage, treatment, disposal, and recycling of oil and other spilled material and furthering the prevention and mitigation of such pollution; (b) Include recommendations for the training of local personnel consistent with other training proposed, funded, or required by federal or state laws for hazardous materials; (c) Suggest cooperative training exercises between the public and private sector consistent with other training proposed, funded, or required by federal or state laws for hazardous materials; (d) Identify federal and state laws requiring contingency or management plans applicable or related to prevention of pollution, emergency response capabilities, and hazardous waste management, together with a list of funding sources that local governments may use in development of their specific plans; (e) Promote formal agreements between the department and local entities for effective spill response; and (f) Develop policies and procedures for the augmentation of emergency services and agency spill response personnel through the use of volunteers: PROVIDED, That no contingency plan may require the use of volunteers by a responding responsible party without that party’s consent. [1997 c 49 § 6; 1995 c 391 § 4; 1994 c 264 § 11; 1988 c 36 § 11; 1987 c 479 § 3.] Effective date—1995 c 391: See note following RCW 38.52.005. 38.52.430 Emergency response caused by person’s intoxication—Recovery of costs from convicted person. A person whose intoxication causes an incident resulting in an appropriate emergency response, and who, in connection with the incident, has been found guilty of or has had their prosecution deferred for (1) driving while under the influence of intoxicating liquor or any drug, RCW 46.61.502; (2) operating an aircraft under the influence of intoxicants or drugs, RCW 47.68.220; (3) use of a vessel while under the influence of alcohol or drugs, *RCW 88.12.100; (4) vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); or (5) vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b), is liable for the expense of an emergency response by a public agency to the incident. The expense of an emergency response is a charge against the person liable for expenses under this section. The charge constitutes a debt of that person and is collectible by the public agency incurring those costs in the same manner as in the case of an obligation under a contract, expressed or implied. In no event shall a person’s liability under this section for the expense of an emergency response exceed one thousand dollars for a particular incident. If more than one public agency makes a claim for payment from an individual for an emergency response to a single incident under the provisions of this section, and the sum 38.52.430 (2008 Ed.) 38.52.505 of the claims exceeds the amount recovered, the division of the amount recovered shall be determined by an interlocal agreement consistent with the requirements of chapter 39.34 RCW. [1993 c 251 § 2.] *Reviser’s note: RCW 88.12.100 was recodified as RCW 88.12.025 pursuant to 1993 c 244 § 45. RCW 88.12.025 was subsequently recodified as RCW 79A.60.040 pursuant to 1999 c 249 § 1601. Finding—Intent—1993 c 251: "The legislature finds that a public agency incurs expenses in an emergency response. It is the intent of the legislature to allow a public agency to recover the expenses of an emergency response to an incident involving persons who operate a motor vehicle, boat or vessel, or a civil aircraft while under the influence of an alcoholic beverage or a drug, or the combined influence of an alcoholic beverage and a drug. It is the intent of the legislature that the recovery of expenses of an emergency response under this act shall supplement and shall not supplant other provisions of law relating to the recovery of those expenses." [1993 c 251 § 1.] 38.52.500 Statewide enhanced 911 service—Finding. The legislature finds that a statewide emergency communications network of enhanced 911 telephone service, which allows an immediate display of a caller’s identification and location, would serve to further the safety, health, and welfare of the state’s citizens, and would save lives. The legislature, after reviewing the study outlined in section 1, chapter 260, Laws of 1990, further finds that statewide implementation of enhanced 911 telephone service is feasible and should be accomplished as soon as practicable. [1991 c 54 § 1.] 38.52.500 Referral to electorate—1991 c 54: See note following RCW 38.52.030. 38.52.501 Statewide enhanced 911 service—Findings. The legislature finds that statewide enhanced 911 has proven to be a lifesaving service and that routing a 911 call to the appropriate public safety answering point with a display of the caller’s identification and location should be available for all users of telecommunications services, regardless of the technology used to make and transmit the 911 call. The legislature also finds that it is in the best public interest to ensure that there is adequate ongoing funding to support enhanced 911 service. [2002 c 341 § 1.] 38.52.501 Severability—2002 c 341: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2002 c 341 § 14.] Effective date—2002 c 341: "This act takes effect January 1, 2003." [2002 c 341 § 15.] 38.52.505 Statewide enhanced 911 service—Automatic location identification—Rules. The adjutant general shall establish rules on minimum information requirements of automatic location identification for the purposes of enhanced 911 emergency service. Such rules shall permit the chief of a local fire department or a chief fire protection officer or such other person as may be designated by the governing body of a city or county to take into consideration local circumstances when approving the accuracy of location information generated when calls are made to 911 from facilities within his or her service area. [1999 c 24 § 2.] 38.52.505 Findings—1999 c 24: "The legislature finds that the citizens of the state increasingly rely on the dependability of enhanced 911, a system that allows the person answering an emergency call to determine the location of the emergency immediately without the caller needing to speak. The legislature further finds that the degree of accuracy of the displayed information [Title 38 RCW—page 57] 38.52.510 Title 38 RCW: Militia and Military Affairs must be adequate to permit rapid location of the caller while taking into consideration variables specific to local conditions. The legislature further finds that it is appropriate that rules permitting local fire agencies to evaluate and approve the accuracy of location information relating to their service areas be adopted." [1999 c 24 § 1.] 38.52.510 Statewide enhanced 911 service—Funding by counties. By December 31, 1998, each county, singly or in combination with adjacent counties, shall implement district-wide, county-wide, or multicounty-wide enhanced 911 emergency communications systems so that enhanced 911 is available throughout the state. The county shall provide funding for the enhanced 911 communication system in the county or district in an amount equal to the amount the maximum tax under RCW 82.14B.030(1) would generate in the county or district or the amount necessary to provide full funding of the system in the county or district, whichever is less. The state enhanced 911 coordination office established by RCW 38.52.520 shall assist and facilitate enhanced 911 implementation throughout the state. [1991 c 54 § 3.] 38.52.510 Referral to electorate—1991 c 54: See note following RCW 38.52.030. 38.52.520 State enhanced 911 coordination office. A state enhanced 911 coordination office, headed by the state enhanced 911 coordinator, is established in the emergency management division of the department. Duties of the office shall include: (1) Coordinating and facilitating the implementation and operation of enhanced 911 emergency communications systems throughout the state; (2) Seeking advice and assistance from, and providing staff support for, the enhanced 911 advisory committee; and (3) Recommending to the utilities and transportation commission by August 31st of each year the level of the state enhanced 911 excise tax for the following year. [1991 c 54 § 4.] 38.52.520 Referral to electorate—1991 c 54: See note following RCW 38.52.030. 38.52.525 State enhanced 911 coordination office— Public education materials. The state enhanced 911 coordination office may develop and implement public education materials regarding the capability of specific equipment used as part of a private telecommunications system or in the provision of private shared telecommunications services to forward automatic location identification and automatic number identification. [1995 c 243 § 9.] 38.52.525 Findings—Severability—1995 c 243: See notes following RCW 80.36.555. 38.52.530 Enhanced 911 advisory committee. (Expires December 31, 2011.) The enhanced 911 advisory committee is created to advise and assist the state enhanced 911 coordinator in coordinating and facilitating the implementation and operation of enhanced 911 throughout the state. The director shall appoint members of the committee who represent diverse geographical areas of the state and include state residents who are members of the national emergency number association, the associated public communications officers Washington chapter, the Washington state fire chiefs association, the Washington association of 38.52.530 [Title 38 RCW—page 58] sheriffs and police chiefs, the Washington state council of firefighters, the Washington state council of police officers, the Washington ambulance association, the state fire protection policy board, the Washington fire commissioners association, the Washington state patrol, the association of Washington cities, the Washington state association of counties, the utilities and transportation commission or commission staff, a representative of a voice over internet protocol company, and an equal number of representatives of large and small local exchange telephone companies and large and small radio communications service companies offering commercial mobile radio service in the state. This section expires December 31, 2011. [2006 c 210 § 1; 2002 c 341 § 3; 2000 c 34 § 1; 1997 c 49 § 7; 1991 c 54 § 5.] Severability—Effective date—2002 c 341: See notes following RCW 38.52.501. Referral to electorate—1991 c 54: See note following RCW 38.52.030. 38.52.532 Enhanced 911 advisory committee— Annual legislative update. On an annual basis, the enhanced 911 advisory committee shall provide an update on the status of enhanced 911 service in the state to the appropriate committees in the legislature. [2006 c 210 § 2.] 38.52.532 38.52.535 State enhanced 911 coordination office and advisory committee—Uniform national standards. The state enhanced 911 coordination office and the enhanced 911 advisory committee may participate in efforts to set uniform national standards for automatic number identification and automatic location identification data transmission for private telecommunications systems and private shared telecommunications services. [1998 c 245 § 32; 1995 c 243 § 10.] 38.52.535 Findings—Severability—1995 c 243: See notes following RCW 80.36.555. 38.52.540 Enhanced 911 account. (1) The enhanced 911 account is created in the state treasury. All receipts from the state enhanced 911 excise taxes imposed by RCW 82.14B.030 shall be deposited into the account. Moneys in the account shall be used only to support the statewide coordination and management of the enhanced 911 system, for the implementation of wireless enhanced 911 statewide, and to help supplement, within available funds, the operational costs of the system, including adequate funding of counties to enable implementation of wireless enhanced 911 service and reimbursement of radio communications service companies for costs incurred in providing wireless enhanced 911 service pursuant to negotiated contracts between the counties or their agents and the radio communications service companies. (2) Funds generated by the enhanced 911 excise tax imposed by RCW 82.14B.030(3) shall not be distributed to any county that has not imposed the maximum county enhanced 911 tax allowed under RCW 82.14B.030(1). Funds generated by the enhanced 911 excise tax imposed by RCW 82.14B.030(4) shall not be distributed to any county that has not imposed the maximum county enhanced 911 tax allowed under RCW 82.14B.030(2). (3) The state enhanced 911 coordinator, with the advice and assistance of the enhanced 911 advisory committee, is 38.52.540 (2008 Ed.) Emergency Management authorized to enter into statewide agreements to improve the efficiency of enhanced 911 services for all counties and shall specify by rule the additional purposes for which moneys, if available, may be expended from this account. (4) During the 2001-2003 fiscal biennium, the legislature may transfer from the enhanced 911 account to the state general fund such amounts as reflect the excess fund balance of the account. [2002 c 371 § 905; 2002 c 341 § 4; 2001 c 128 § 2; 1998 c 304 § 14; 1994 c 96 § 7; 1991 c 54 § 6.] Reviser’s note: This section was amended by 2002 c 341 § 4 and by 2002 c 371 § 905, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Severability—Effective date—2002 c 371: See notes following RCW 9.46.100. Severability—Effective date—2002 c 341: See notes following RCW 38.52.501. Findings—2001 c 128: "The legislature finds that the statewide emergency communications network of enhanced 911 telephone service, which allows an immediate display of a caller’s identification and location, has served to further the safety, health, and welfare of the state’s citizens, and has saved lives. The legislature further finds that statewide operation and management of the enhanced 911 system will create efficiencies of operation and permit greater local control of county 911 operations, and further that some counties will continue to need assistance from the state to maintain minimum enhanced 911 service levels." [2001 c 128 § 1.] Effective date—2001 c 128: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 128 § 4.] Findings—Effective dates—1998 c 304: See notes following RCW 82.14B.020. Finding—Intent—Effective dates—1994 c 96: See notes following RCW 82.14B.020. 38.52.930 tion to emergency service providers responding to calls placed to a 911 or enhanced 911 emergency service; or (2) Design, development, installation, maintenance, or provision of consolidated 911 or enhanced 911 emergency communication systems or services other than an act or omission constituting gross negligence or wanton or willful misconduct. [2002 c 341 § 5; 1991 c 329 § 7.] Severability—Effective date—2002 c 341: See notes following RCW 38.52.501. 38.52.561 911 calls from radio communications service companies—Technical and operational standards. The state enhanced 911 coordinator, with the advice and assistance of the enhanced 911 advisory committee, shall set nondiscriminatory, uniform technical and operational standards consistent with the rules of the federal communications commission for the transmission of 911 calls from radio communications service companies to enhanced 911 emergency communications systems. These standards must not exceed the requirements set by the federal communications commission. The authority given to the state enhanced 911 coordinator in this section is limited to setting standards as set forth in this section and does not constitute authority to regulate radio communications service companies. [2002 c 341 § 6.] 38.52.561 Severability—Effective date—2002 c 341: See notes following RCW 38.52.501. 38.52.900 Short title. This chapter may be cited as the Washington Emergency Management Act. [1984 c 38 § 43; 1974 ex.s. c 171 § 41; 1951 c 178 § 1.] 38.52.900 38.52.920 Referral to electorate—1991 c 54: See note following RCW 38.52.030. 38.52.545 Priorities for enhanced 911 funding. In specifying rules defining the purposes for which available moneys may be expended, the state enhanced 911 coordinator, with the advice and assistance of the enhanced 911 advisory committee, shall consider base needs of individual counties for specific assistance. Priorities for available enhanced 911 funding are as follows: (1) To assure that 911 dialing is operational statewide; (2) to assist counties as necessary to assure that they can achieve a basic service level for 911 operations; and (3) to assist counties as practicable to acquire items of a capital nature appropriate to increasing 911 effectiveness. [2001 c 128 § 3.] 38.52.545 Findings—Effective date—2001 c 128: See notes following RCW 38.52.540. 38.52.550 Emergency communications systems and information—Immunity from civil liability. A telecommunications company, or radio communications service company, providing emergency communications systems or services or a business or individual providing database information to emergency communication system personnel shall not be liable for civil damages caused by an act or omission of the company, business, or individual in the: (1) Good faith release of information not in the public record, including unpublished or unlisted subscriber informa38.52.550 (2008 Ed.) 38.52.920 Repeal and saving. Chapter 177, Laws of 1941, chapters 6 and 24, Laws of 1943, and chapter 88, Laws of 1949 are repealed: PROVIDED, That this section shall not affect the validity of any order, rule, regulation, contract, or agreement made or promulgated under authority of the repealed acts, which orders, rules, regulations, contracts, or agreements shall remain in force until they may be repealed, amended, or superseded by orders, rules, regulations, contracts, or agreements made or promulgated under this chapter: PROVIDED FURTHER, That this section shall not affect the tenure of any officer, employee, or person serving under authority of any repealed act and such officer, employee, or person shall continue in his position until such time as a successor is appointed or employed under the provisions of this chapter. [1951 c 178 § 17.] 38.52.930 Transfer of powers, duties, and functions to state military department. All powers, duties, and functions of the department of community, trade, and economic development pertaining to emergency management are transferred to the state military department. All references to the director or the department of community development or the department of community, trade, and economic development in the Revised Code of Washington shall be construed to mean the adjutant general or the state military department when referring to the functions transferred in this section. [1995 c 391 § 10.] 38.52.930 Effective date—1995 c 391: See note following RCW 38.52.005. [Title 38 RCW—page 59] Title 39 Title 39 PUBLIC CONTRACTS AND INDEBTEDNESS Chapters 39.04 Public works. 39.06 Public works—Registration, licensing, of contractors. 39.08 Contractor’s bond. 39.10 Alternative public works contracting procedures. 39.12 Prevailing wages on public works. 39.19 Office of minority and women’s business enterprises. 39.23 Purchase of products and services of sheltered workshops, DSHS programs. 39.24 Public purchase preferences. 39.28 Emergency public works. 39.29 Personal service contracts. 39.30 Contracts—Indebtedness limitations—Competitive bidding violations. 39.32 Purchase of federal property. 39.33 Intergovernmental disposition of property. 39.34 Interlocal cooperation act. 39.35 Energy conservation in design of public facilities. 39.35A Performance-based contracts for water conservation, solid waste reduction, and energy equipment. 39.35B Life-cycle cost analysis of public facilities. 39.35C Energy conservation projects. 39.35D High-performance public buildings. 39.36 Limitation of indebtedness of taxing districts. 39.40 Vote required at bond elections. 39.42 State bonds, notes, and other evidences of indebtedness. 39.44 Bonds—Miscellaneous provisions, bond information reporting. 39.46 Bonds—Other miscellaneous provisions— Registration. 39.48 Bonds sold to government at private sale. 39.50 Short-term obligations—Municipal corporations. 39.52 Funding indebtedness in counties, cities, and towns. 39.53 Refunding bond act. 39.56 Warrants. 39.58 Public funds—Deposits and investments— Public depositaries. 39.59 Public funds—Authorized investments. 39.60 Investment of public funds in bonds, notes, etc.—Collateral. 39.62 Uniform facsimile signature of public officials act. 39.64 Taxing district relief. 39.67 Agreements between taxing districts. 39.69 Public loans to municipal corporations. 39.72 Lost or destroyed evidence of indebtedness. 39.76 Interest on unpaid public contracts. 39.80 Contracts for architectural and engineering services. 39.84 Industrial development revenue bonds. 39.86 Private activity bond allocation. (2008 Ed.) 39.88 39.89 39.90 39.92 39.94 39.96 39.98 39.100 39.102 Community redevelopment financing act. Community revitalization financing. Validation of bonds and financing proceedings. Local transportation act. Financing contracts. Payment agreements. School district credit enhancement program. Hospital benefit zones. Local infrastructure financing tool program. Cities and towns—Leases—Ballot proposition—Rental or option payment in excess of debt limit—Election: RCW 35.42.200 through 35.42.220. Colleges and university, contracts by student associations: RCW 28B.10.640. Community renewal: Chapter 35.81 RCW. Conditional sales contracts by school districts for acquisition of property or property rights: RCW 28A.335.200. Contracts by cemetery districts for public facilities, services, and purchasing: RCW 68.52.192 and 68.52.193. Conveyance of real property by public bodies—Recording: RCW 65.08.095. County owned real property—Exchange for privately owned real property of equal value: RCW 36.34.330. Credit card use by local governments: RCW 43.09.2855. Credit of state and municipal corporations not to be loaned: State Constitution Art. 8 §§ 5, 7. Higher education facilities authority: Chapter 28B.07 RCW. Highway and road improvement, validity of agreement to indemnify against liability for negligence: RCW 4.24.115. Hospitalization and medical aid for public employees and dependents—Premiums, governmental contributions authorized: RCW 41.04.180, 41.04.190. Municipal revenue bond act: Chapter 35.41 RCW. Participation in world fairs by municipal corporations and political subdivisions authorized: Chapter 35.60 RCW. Public bodies may retain collection agencies to collect public debts—Fees: RCW 19.16.500. Public officer requiring bond or insurance from particular insurer, agent or broker, procuring bond or insurance, violations: RCW 48.30.270. School district hot lunch program, federal surplus or donated food commodities: Chapter 28A.235 RCW. State money to be disbursed only by appropriation: State Constitution Art. 8 § 4 (Amendment 11). Subcontractors to be identified by bidder, when: RCW 39.30.060. Chapter 39.04 Chapter 39.04 RCW PUBLIC WORKS Sections 39.04.010 39.04.015 39.04.020 39.04.040 39.04.050 39.04.060 39.04.070 39.04.080 39.04.100 Definitions. Adjustment to bid price—Conditions. Plans and specifications—Estimates—Publication—Emergencies. Work to be executed according to plans—Supplemental plans. Contents of original estimates. Supplemental estimates. Account and record of cost. Certified copy to be filed—Engineers’ certificate. Records open to public inspection—Certified copies. [Title 39 RCW—page 1] 39.04.010 39.04.105 39.04.107 39.04.110 39.04.120 39.04.130 39.04.133 39.04.135 39.04.140 39.04.155 39.04.156 39.04.160 39.04.170 39.04.175 39.04.180 39.04.190 39.04.200 39.04.210 39.04.220 39.04.230 39.04.240 39.04.250 39.04.260 39.04.270 39.04.280 39.04.290 39.04.300 39.04.310 39.04.320 39.04.330 39.04.340 39.04.350 39.04.900 39.04.901 Title 39 RCW: Public Contracts and Indebtedness Competitive bidding—Written protests—Notice of contract execution. Competitive bidding—Bidder claiming error. Penalty for false entries. Change orders due to environmental protection requirements—Costs—Dispute resolution. Application of RCW 39.04.120. State capital improvement or construction projects—Product standards. Demolition projects—Recycling or reuse of materials. Contracts affected by increase in price of petroleum products—Termination—Continuation with contracting agency sharing increased costs—Conditions. Small works roster contract procedures—Limited public works process—Definition. Small works roster manual—Notification to local governments. Contracts subject to requirements established under office of minority and women’s business enterprises. Application of chapter to performance-based contracts for energy equipment. Application of chapter to certain agreements relating to water pollution control, solid waste handling facilities. Trench excavations—Safety systems required. Purchase contract process—Other than formal sealed bidding. Small works roster or purchase contracts—Listing of contracts awarded required. Correctional facilities construction and repair—Findings. Correctional facilities construction and repair—Use of general contractor/construction manager method for awarding contracts—Demonstration projects. Correctional facilities construction and repair—Alternative contracting method to remain in force until contracts completed. Public works contracts—Awarding of attorneys’ fees. Payments received on account of work performed by subcontractor—Disputed amounts—Remedies. Private construction performed pursuant to contract for rental, lease, or purchase by state—Must comply with prevailing wage law. Electronic data processing and telecommunications systems— Municipalities—Acquisition method—Competitive negotiation—Findings, intent. Competitive bidding requirements—Exemptions. Contracts for building engineering systems. Apprenticeship training programs—Purpose. Apprenticeship training programs—Definitions. Apprenticeship training programs—Public works contracts— Adjustment of specific projects—Report and collection of agency data—Apprenticeship utilization advisory committee created. Use of wood products—Compliance with chapter 39.35D RCW. Apprenticeship and training council outreach effort. Bidder responsibility criteria—Supplemental criteria. Rights may not be waived—Construction—1992 c 223. Application—1992 c 223. Buildings, earthquake standards for construction: Chapter 70.86 RCW. Counties, class A and first class, competitive bids: RCW 36.32.240 through 36.32.270. County road equipment and materials: RCW 36.82.100 through 36.82.120. County roads and bridges—Plans, approval, bids, etc.: Chapter 36.77 RCW. Liens for labor, materials, taxes on public works: Chapter 60.28 RCW. Municipalities—Energy audits and efficiency: RCW 43.19.691. Port district contracts: Chapter 53.08 RCW. Public buildings, provision to be made for aged and individuals with disabilities: Chapter 70.92 RCW. Second-class city or town, public contracts: RCW 35.23.352. State highway construction and maintenance: Chapter 47.28 RCW. Suppression of competitive bidding on public works, penalty: RCW 9.18.120 through 9.18.150. Traffic control at work sites: RCW 47.36.200. Workers’ compensation law applicable to contracts for public works: RCW 51.12.050, 51.12.070. [Title 39 RCW—page 2] 39.04.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Award" means the formal decision by the state or municipality notifying a responsible bidder with the lowest responsive bid of the state’s or municipality’s acceptance of the bid and intent to enter into a contract with the bidder. (2) "Contract" means a contract in writing for the execution of public work for a fixed or determinable amount duly awarded after advertisement and competitive bid, or a contract awarded under the small works roster process in RCW 39.04.155. (3) "Municipality" means every city, county, town, port district, district, or other public agency authorized by law to require the execution of public work, except drainage districts, diking districts, diking and drainage improvement districts, drainage improvement districts, diking improvement districts, consolidated diking and drainage improvement districts, consolidated drainage improvement districts, consolidated diking improvement districts, irrigation districts, or other districts authorized by law for the reclamation or development of waste or undeveloped lands. (4) "Public work" means all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein. All public works, including maintenance when performed by contract shall comply with chapter 39.12 RCW. "Public work" does not include work, construction, alteration, repair, or improvement performed under contracts entered into under RCW 36.102.060(4) or under development agreements entered into under RCW 36.102.060(7) or leases entered into under RCW 36.102.060(8). (5) "Responsible bidder" means a contractor who meets the criteria in RCW 39.04.350. (6) "State" means the state of Washington and all departments, supervisors, commissioners, and agencies of the state. [2008 c 130 § 16; 2007 c 133 § 1; 2000 c 138 § 102; 1997 c 220 § 402 (Referendum Bill No. 48, approved June 17, 1997); 1993 c 174 § 1; 1989 c 363 § 5; 1986 c 282 § 1; 1982 c 98 § 1; 1977 ex.s. c 177 § 1; 1923 c 183 § 1; RRS § 103221.] 39.04.010 Purpose—Part headings not law—2000 c 138: See notes following RCW 39.04.155. Referendum—Other legislation limited—Legislators’ personal intent not indicated—Reimbursements for election—Voters’ pamphlet, election requirements—1997 c 220: See RCW 36.102.800 through 36.102.803. Part headings not law—Severability—1997 c 220: See RCW 36.102.900 and 36.102.901. Severability—1986 c 282: See RCW 82.18.900. Municipalities—Energy audits and efficiency: RCW 43.19.691. 39.04.015 Adjustment to bid price—Conditions. Notwithstanding the provisions of RCW 39.04.010, a state contracting authority is authorized to negotiate an adjustment to a bid price, based upon agreed changes to the contract plans and specifications, with a low responsive bidder under the following conditions: (1) All bids for a state public works project involving buildings and any associated building utilities and appen39.04.015 (2008 Ed.) Public Works dants exceed the available funds, as certified by the appropriate fiscal officer; (2) The apparent low responsive bid does not exceed the available funds by: (a) Five percent on projects valued under one million dollars; (b) the greater of fifty thousand dollars or two and one-half percent for projects valued between one million dollars and five million dollars; or (c) the greater of one hundred twenty-five thousand dollars or one percent for projects valued over five million dollars; and (3) The negotiated adjustment will bring the bid price within the amount of available funds. [1989 c 59 § 1.] 39.04.020 Plans and specifications—Estimates— Publication—Emergencies. Whenever the state or any municipality shall determine that any public work is necessary to be done, it shall cause plans, specifications, or both thereof and an estimate of the cost of such work to be made and filed in the office of the director, supervisor, commissioner, trustee, board, or agency having by law the authority to require such work to be done. The plans, specifications, and estimates of cost shall be approved by the director, supervisor, commissioner, trustee, board, or agency and the original draft or a certified copy filed in such office before further action is taken. If the state or such municipality shall determine that it is necessary or advisable that such work shall be executed by any means or method other than by contract or by a small works roster process, and it shall appear by such estimate that the probable cost of executing such work will exceed the sum of twenty-five thousand dollars, then the state or such municipality shall at least fifteen days before beginning work cause such estimate, together with a description of the work, to be published at least once in a legal newspaper of general circulation published in or as near as possible to that part of the county in which such work is to be done. When any emergency shall require the immediate execution of such public work, upon a finding of the existence of such emergency by the authority having power to direct such public work to be done and duly entered of record, publication of description and estimate may be made within seven days after the commencement of the work. [1994 c 243 § 1; 1993 c 379 § 111; 1986 c 282 § 2; 1982 c 98 § 4; 1975 1st ex.s. c 230 § 2; 1967 c 70 § 1; 1923 c 183 § 2; RRS § 10322-2. Formerly RCW 39.04.020 and 39.04.030.] 39.04.020 Intent—Severability—Effective date—1993 c 379: See notes following RCW 28B.10.029. Severability—1986 c 282: See RCW 82.18.900. 39.04.040 Work to be executed according to plans— Supplemental plans. Whenever plans and specifications shall have been filed the work to be done shall be executed in accordance with such plans and specifications unless supplemental plans and specifications of the alterations to be made therein shall be made and filed in the office where the original plans and specifications are filed. In the event that the probable cost of executing such work in accordance with the supplemental plans and specifications shall be increased or decreased from the estimated cost as shown by the original estimate to an amount in excess of ten percent of such estimate, then a supplemental estimate shall be made of the increased or decreased cost of executing 39.04.040 (2008 Ed.) 39.04.100 the work in accordance with the supplemental plans and specifications and filed in the office where the original estimate is filed. [1923 c 183 § 3; RRS § 10322-3.] 39.04.050 Contents of original estimates. Original estimates shall show in detail the estimated cost of the work; the estimated quantities of each class of work; the estimated unit cost for each class; the estimated total cost for each class; the time limit, allowed for the completion of the work and the estimated dates of commencement and completion. [1986 c 282 § 3; 1923 c 183 § 4; RRS § 10322-4.] 39.04.050 Severability—1986 c 282: See RCW 82.18.900. 39.04.060 Supplemental estimates. Supplemental estimates shall show the estimated increase or decrease in the total quantities of each class, in the unit cost of each class, in the total cost for each class and in the total cost of the work as shown by the original estimate, together with any change in the time limit and in the estimated dates of commencing and completing the work. [1923 c 183 § 5; RRS § 10322-5.] 39.04.060 39.04.070 Account and record of cost. Whenever the state or any municipality shall execute any public work by any means or method other than by contract or small works roster, it shall cause to be kept and preserved a full, true and accurate account and record of the costs of executing such work in accordance with the budgeting, accounting, and reporting system provisions prescribed by law for the state agency or municipality. [1986 c 282 § 4; 1923 c 183 § 6; RRS § 10322-6.] 39.04.070 Severability—1986 c 282: See RCW 82.18.900. State auditor to prescribe standard form for costs of public works: RCW 43.09.205. 39.04.080 Certified copy to be filed—Engineers’ certificate. A true copy of such account or record, duly certified by the officer or officers having by law authority to direct such work to be done, to be a full, true and accurate account of the costs of executing such work shall be filed in the office where the original plans and specifications are filed within sixty days after the completion of the work. The engineer or other officer having charge of the execution of such work shall execute a certificate which shall be attached to and filed with such certified copy, certifying that such work was executed in accordance with the plans and specifications on file and the times of commencement and completion of such work. If the work is not in accordance with such plans and specifications he shall set forth the manner and extent of the variance therefrom. [1923 c 183 § 7; RRS § 10322-7.] 39.04.080 39.04.100 Records open to public inspection—Certified copies. All plans, specifications, estimates, and copies of accounts or records and all certificates attached thereto shall, when filed, become public records and shall at all reasonable times be subject to public inspection. Certified copies of any estimate, account or record shall be furnished by the officer having the custody thereof to any person on demand and the payment of the legal fees for mak39.04.100 [Title 39 RCW—page 3] 39.04.105 Title 39 RCW: Public Contracts and Indebtedness ing and certifying the same. [1923 c 183 § 9; RRS § 103229.] 39.04.105 Competitive bidding—Written protests— Notice of contract execution. When a municipality receives a written protest from a bidder for a public works project which is the subject of competitive bids, the municipality shall not execute a contract for the project with anyone other than the protesting bidder without first providing at least two full business days’ written notice of the municipality’s intent to execute a contract for the project; provided that the protesting bidder submits notice in writing of its protest no later than two full business days following bid opening. Intermediate Saturdays, Sundays, and legal holidays are not counted. [2003 c 300 § 1.] 39.04.105 39.04.107 Competitive bidding—Bidder claiming error. A low bidder on a public works project who claims error and fails to enter into a contract is prohibited from bidding on the same project if a second or subsequent call for bids is made for the project. [2003 c 300 § 2.] American arbitration association. [1998 c 196 § 1; 1973 1st ex.s. c 62 § 1.] Severability—1973 1st ex.s. c 62: "If any provision or part of this 1973 act shall be judged to be invalid or unconstitutional, such adjudication shall not affect the validity of any provision or part of this 1973 act not adjudged invalid or unconstitutional." [1973 1st ex.s. c 62 § 4.] Delay due to litigation, change orders, costs, arbitration, termination: RCW 60.28.080. 39.04.130 Application of RCW 39.04.120. RCW 39.04.120 shall take effect in ninety days but shall not apply to any contract awarded pursuant to an invitation for bids issued on or before the date it takes effect, or to any persons or bonds in respect of any such contract. [1973 1st ex.s. c 62 § 2.] 39.04.130 Severability—1973 1st ex.s. c 62: See note following RCW 39.04.120. 39.04.107 39.04.110 Penalty for false entries. Any director, supervisor, officer or employee of the state and any commissioner, trustee, supervisor, officer or employee of any municipality who shall knowingly make any false entry in any account or record required by this chapter or who shall knowingly certify to any false statement in any certificate required by this chapter, shall be guilty of a misdemeanor. [1923 c 183 § 10; RRS § 10322-10.] 39.04.110 39.04.133 State capital improvement or construction projects—Product standards. (1) The state’s preferences for the purchase and use of recycled content products shall be included as a factor in the design and development of state capital improvement projects. (2) If a construction project receives state public funding, the product standards, as provided in RCW 43.19A.020, shall apply to the materials used in the project, whenever the administering agency and project owner determine that such products would be cost-effective and are readily available. (3) This section does not apply to contracts entered into by a municipality. [2002 c 299 § 2; 1996 c 198 § 5.] 39.04.133 Misconduct of public officers: Chapter 42.20 RCW. 39.04.135 Demolition projects—Recycling or reuse of materials. Material from demolition projects shall be recycled or reused whenever practicable. [1996 c 198 § 6.] 39.04.120 Change orders due to environmental protection requirements—Costs—Dispute resolution. If the successful bidder must undertake additional work for public construction projects issued by the state of Washington, its authorities or agencies, or a political subdivision of the state due to the enactment of new environmental protection requirements or the amendment of existing environmental protection statutes, ordinances, or rules occurring after the submission of the successful bid, the awarding agency shall issue a change order setting forth the additional work that must be undertaken, which shall not invalidate the contract. The cost of such a change order to the awarding agency shall be determined in accordance with the provisions of the contract for change orders or, if no such provision is set forth in the contract, then the cost to the awarding agency shall be the contractor’s costs for wages, labor costs other than wages, wage taxes, materials, equipment rentals, insurance, and subcontracts attributable to the additional activity plus a reasonable sum for overhead and profit. However, the additional costs to undertake work not specified in the contract documents shall not be approved unless written authorization is given the successful bidder prior to his undertaking such additional activity. In the event of a dispute between the awarding agency and the contractor, dispute resolution procedures may be commenced under the applicable terms of the construction contract, or, if the contract contains no such provision for dispute resolution, the then obtaining rules of the 39.04.140 Contracts affected by increase in price of petroleum products—Termination—Continuation with contracting agency sharing increased costs—Conditions. (1) The legislature finds (a) that the increase in the price of petroleum products resulting from the world wide shortage of crude oil has created a condition which has rendered performance by contractors of many public works contracts economically impossible and (b) that provision should be made to provide for the orderly termination of such contracts; the deletion of work affected by petroleum prices without the necessity of litigation; or, alternatively at the election of any contracting agency, the continuation of the contract with the agency assuming a share of the increased petroleum costs. (2) Whenever the state or any municipality shall have awarded any public works contract during the performance of which (a) any legally enforceable private agreement or contractual arrangement between either the contractor or a first tier subcontractor and his suppliers of crude oil, residual fuel oil, refined petroleum products, or asphalt required in order to complete performance of the public works contract are superseded, with resulting increased costs of performance of the public works contract, by force majeure regulations, rules, allocations, or rulings issued by any federal, state, or other agency acting pursuant to any federal or state economic stabilization act, petroleum allocation act, or other legislation authorizing the same; or (b) the cost of petroleum products for which has increased by more than twenty percent over the Falsifying accounts: RCW 42.20.070. 39.04.120 [Title 39 RCW—page 4] 39.04.135 39.04.140 (2008 Ed.) Public Works current market price thereof as the date of contract award, then the contractor may elect to terminate the contract in its entirety or to delete such portions of the work from the contract, and the state or municipality shall pay the contractor for all work performed prior to the date of termination of the contract or deletion of such work. The state or municipality shall also pay the contractor for all acceptable materials ordered by the contractor and delivered on the work site prior to the termination of the contract or deletion of such work by the contractor. Such materials shall be purchased from the contractor by the state or the municipality at the actual cost of such material to the contractor and shall thereupon become the property of the state or municipality. No payment shall be made to the contractor for overhead costs or anticipated profits as to work not performed as a result of deletion of such work or termination of the contract. Amounts retained and accumulated under RCW 60.28.010 shall be held for a period of thirty days following the election of the contractor to terminate the contract in its entirety: PROVIDED, That if the contractor elects to terminate or delete such portions of the work and the state or such municipality finds that it is in the public interest to complete performance on such public works contract then the state or such municipality shall require the contractor to complete performance of the public works contract and the state or such municipality shall modify the provisions of that public works contract to increase the contract price so that the state or municipality shall bear eighty percent of such increased costs over the contractor’s estimated cost at the time of contract bid opening and the contractor shall bear the balance thereof. Upon request by the state or municipality the contractor shall make his records available for audit by the state or municipality to verify such increased costs. (3) This section shall apply only to public works contracts awarded prior to November 1, 1973, and only to work under such contracts which has not been performed on the date the contractor elects to terminate the contract or delete such work from the contract. [1974 ex.s. c 194 § 1.] Severability—1974 ex.s. c 194: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1974 ex.s. c 194 § 2.] 39.04.155 Small works roster contract procedures— Limited public works process—Definition. (1) This section provides uniform small works roster provisions to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property that may be used by state agencies and by any local government that is expressly authorized to use these provisions. These provisions may be used in lieu of other procedures to award contracts for such work with an estimated cost of two hundred thousand dollars or less. The small works roster process includes the limited public works process authorized under subsection (3) of this section and any local government authorized to award contracts using the small works roster process under this section may award contracts using the limited public works process under subsection (3) of this section. (2)(a) A state agency or authorized local government may create a single general small works roster, or may create a small works roster for different specialties or categories of 39.04.155 (2008 Ed.) 39.04.155 anticipated work. Where applicable, small works rosters may make distinctions between contractors based upon different geographic areas served by the contractor. The small works roster or rosters shall consist of all responsible contractors who have requested to be on the list, and where required by law are properly licensed or registered to perform such work in this state. A state agency or local government establishing a small works roster or rosters may require eligible contractors desiring to be placed on a roster or rosters to keep current records of any applicable licenses, certifications, registrations, bonding, insurance, or other appropriate matters on file with the state agency or local government as a condition of being placed on a roster or rosters. At least once a year, the state agency or local government shall publish in a newspaper of general circulation within the jurisdiction a notice of the existence of the roster or rosters and solicit the names of contractors for such roster or rosters. In addition, responsible contractors shall be added to an appropriate roster or rosters at any time they submit a written request and necessary records. Master contracts may be required to be signed that become effective when a specific award is made using a small works roster. (b) A state agency establishing a small works roster or rosters shall adopt rules implementing this subsection. A local government establishing a small works roster or rosters shall adopt an ordinance or resolution implementing this subsection. Procedures included in rules adopted by the department of general administration in implementing this subsection must be included in any rules providing for a small works roster or rosters that is adopted by another state agency, if the authority for that state agency to engage in these activities has been delegated to it by the department of general administration under chapter 43.19 RCW. An interlocal contract or agreement between two or more state agencies or local governments establishing a small works roster or rosters to be used by the parties to the agreement or contract must clearly identify the lead entity that is responsible for implementing the provisions of this subsection. (c) Procedures shall be established for securing telephone, written, or electronic quotations from contractors on the appropriate small works roster to assure that a competitive price is established and to award contracts to the lowest responsible bidder, as defined in RCW 39.04.010. Invitations for quotations shall include an estimate of the scope and nature of the work to be performed as well as materials and equipment to be furnished. However, detailed plans and specifications need not be included in the invitation. This subsection does not eliminate other requirements for architectural or engineering approvals as to quality and compliance with building codes. Quotations may be invited from all appropriate contractors on the appropriate small works roster. As an alternative, quotations may be invited from at least five contractors on the appropriate small works roster who have indicated the capability of performing the kind of work being contracted, in a manner that will equitably distribute the opportunity among the contractors on the appropriate roster. However, if the estimated cost of the work is from one hundred thousand dollars to two hundred thousand dollars, a state agency or local government that chooses to solicit bids from less than all the appropriate contractors on the appropriate small works roster must also notify the remaining contractors [Title 39 RCW—page 5] 39.04.156 Title 39 RCW: Public Contracts and Indebtedness on the appropriate small works roster that quotations on the work are being sought. The government has the sole option of determining whether this notice to the remaining contractors is made by: (i) Publishing notice in a legal newspaper in general circulation in the area where the work is to be done; (ii) mailing a notice to these contractors; or (iii) sending a notice to these contractors by facsimile or other electronic means. For purposes of this subsection (2)(c), "equitably distribute" means that a state agency or local government soliciting bids may not favor certain contractors on the appropriate small works roster over other contractors on the appropriate small works roster who perform similar services. (d) A contract awarded from a small works roster under this section need not be advertised. (e) Immediately after an award is made, the bid quotations obtained shall be recorded, open to public inspection, and available by telephone inquiry. (3) In lieu of awarding contracts under subsection (2) of this section, a state agency or authorized local government may award a contract for work, construction, alteration, repair, or improvement projects estimated to cost less than thirty-five thousand dollars using the limited public works process provided under this subsection. Public works projects awarded under this subsection are exempt from the other requirements of the small works roster process provided under subsection (2) of this section and are exempt from the requirement that contracts be awarded after advertisement as provided under RCW 39.04.010. For limited public works projects, a state agency or authorized local government shall solicit electronic or written quotations from a minimum of three contractors from the appropriate small works roster and shall award the contract to the lowest responsible bidder as defined under RCW 39.04.010. After an award is made, the quotations shall be open to public inspection and available by electronic request. A state agency or authorized local government shall attempt to distribute opportunities for limited public works projects equitably among contractors willing to perform in the geographic area of the work. A state agency or authorized local government shall maintain a list of the contractors contacted and the contracts awarded during the previous twenty-four months under the limited public works process, including the name of the contractor, the contractor’s registration number, the amount of the contract, a brief description of the type of work performed, and the date the contract was awarded. For limited public works projects, a state agency or authorized local government may waive the payment and performance bond requirements of chapter 39.08 RCW and the retainage requirements of chapter 60.28 RCW, thereby assuming the liability for the contractor’s nonpayment of laborers, mechanics, subcontractors, materialpersons, suppliers, and taxes imposed under Title 82 RCW that may be due from the contractor for the limited public works project, however the state agency or authorized local government shall have the right of recovery against the contractor for any payments made on the contractor’s behalf. (4) The breaking of any project into units or accomplishing any projects by phases is prohibited if it is done for the purpose of avoiding the maximum dollar amount of a contract that may be let using the small works roster process or limited public works process. [Title 39 RCW—page 6] (5)(a) A state agency or authorized local government may use the limited public works process of subsection (3) of this section to solicit and award small works roster contracts to small businesses that are registered contractors with gross revenues under one million dollars annually as reported on their federal tax return. (b) A state agency or authorized local government may adopt additional procedures to encourage small businesses that are registered contractors with gross revenues under two hundred fifty thousand dollars annually as reported on their federal tax returns to submit quotations or bids on small works roster contracts. (6) As used in this section, "state agency" means the department of general administration, the state parks and recreation commission, the department of natural resources, the department of fish and wildlife, the department of transportation, any institution of higher education as defined under RCW 28B.10.016, and any other state agency delegated authority by the department of general administration to engage in construction, building, renovation, remodeling, alteration, improvement, or repair activities. [2008 c 130 § 17. Prior: 2007 c 218 § 87; 2007 c 210 § 1; 2007 c 133 § 4; 2001 c 284 § 1; 2000 c 138 § 101; 1998 c 278 § 12; 1993 c 198 § 1; 1991 c 363 § 109.] Intent—Finding—2007 c 218: See note following RCW 1.08.130. Purpose—2000 c 138: "The purpose of this act is to establish a common small works roster procedure that state agencies and local governments may use to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property." [2000 c 138 § 1.] Part headings not law—2000 c 138: "Part headings used in this act are not any part of the law." [2000 c 138 § 302.] Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. Competitive bids—Contract procedure: RCW 36.32.250. 39.04.156 Small works roster manual—Notification to local governments. The department of community, trade, and economic development, in cooperation with the municipal research and services center, shall prepare a small works roster manual and periodically notify the different types of local government authorized to use a small works roster process about this authority. [2000 c 138 § 104.] 39.04.156 Purpose—Part headings not law—2000 c 138: See notes following RCW 39.04.155. 39.04.160 Contracts subject to requirements established under office of minority and women’s business enterprises. All contracts entered into under this chapter by the state on or after September 1, 1983, are subject to the requirements established under chapter 39.19 RCW. [1983 c 120 § 11.] 39.04.160 Effective date—Applicability—Severability—Conflict with federal requirements—1983 c 120: See RCW 39.19.910, 39.19.920. 39.04.170 Application of chapter to performancebased contracts for energy equipment. This chapter shall not apply to performance-based contracts, as defined in *RCW 39.35A.020(3), that are negotiated under chapter 39.35A RCW. [1985 c 169 § 5.] 39.04.170 *Reviser’s note: RCW 39.35A.020 was amended by 2001 c 214 § 18, changing subsection (3) to subsection (4). (2008 Ed.) Public Works 39.04.175 Application of chapter to certain agreements relating to water pollution control, solid waste handling facilities. This chapter does not apply to the selection of persons or entities to construct or develop water pollution control facilities or to provide water pollution control services under RCW 70.150.040 or the selection of persons or entities to construct or develop solid waste handling facilities or to provide solid waste handling services under RCW 35.21.156 or under RCW 36.58.090. [1989 c 399 § 11; 1986 c 244 § 13.] 39.04.175 Severability—1986 c 244: See RCW 70.150.905. 39.04.180 Trench excavations—Safety systems required. On public works projects in which trench excavation will exceed a depth of four feet, any contract therefor shall require adequate safety systems for the trench excavation that meet the requirements of the Washington industrial safety and health act, chapter 49.17 RCW. This requirement shall be included in the cost estimates and bidding forms as a separate item. The costs of trench safety systems shall not be considered as incidental to any other contract item and any attempt to include the trench safety systems as an incidental cost is prohibited. [1988 c 180 § 1.] 39.04.220 that process at least once every year. The list shall contain the name of the contractor or vendor awarded the contract, the amount of the contract, a brief description of the type of work performed or items purchased under the contract, and the date it was awarded. The list shall also state the location where the bid quotations for these contracts are available for public inspection. [2000 c 138 § 103; 1993 c 198 § 3; 1991 c 363 § 111.] Purpose—Part headings not law—2000 c 138: See notes following RCW 39.04.155. Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. 39.04.180 39.04.190 Purchase contract process—Other than formal sealed bidding. (1) This section provides a uniform process to award contracts for the purchase of any materials, equipment, supplies, or services by those municipalities that are authorized to use this process in lieu of the requirements for formal sealed bidding. The state statutes governing a specific type of municipality shall establish the maximum dollar thresholds of the contracts that can be awarded under this process, and may include other matters concerning the awarding of contracts for purchases, for the municipality. (2) At least twice per year, the municipality shall publish in a newspaper of general circulation within the jurisdiction a notice of the existence of vendor lists and solicit the names of vendors for the lists. Municipalities shall by resolution establish a procedure for securing telephone or written quotations, or both, from at least three different vendors whenever possible to assure that a competitive price is established and for awarding the contracts for the purchase of any materials, equipment, supplies, or services to the lowest responsible bidder as defined in RCW 43.19.1911. Immediately after the award is made, the bid quotations obtained shall be recorded, open to public inspection, and shall be available by telephone inquiry. A contract awarded pursuant to this section need not be advertised. [1993 c 198 § 2; 1991 c 363 § 110.] 39.04.190 Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. 39.04.200 Small works roster or purchase contracts—Listing of contracts awarded required. Any local government using the uniform process established in RCW 39.04.190 to award contracts for purchases must post a list of the contracts awarded under that process at least once every two months. Any state agency or local government using the small works roster process established in RCW 39.04.155 to award contracts for construction, building, renovation, remodeling, alteration, repair, or improvement of real property must make available a list of the contracts awarded under 39.04.200 (2008 Ed.) 39.04.210 Correctional facilities construction and repair—Findings. The legislature recognizes that fair and open competition is a basic tenet of public works procurement, that such competition reduces the appearance of and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically, and that effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which contractual services are procured. The legislature finds that there will continue to exist a need for additional correctional facilities due to the inadequate capacity of existing correctional facilities to accommodate the predicted growth of offender populations and that it is necessary to provide public works contract options for the effective construction and repair of additional department of corrections facilities. [1994 c 80 § 1; 1991 c 130 § 1.] 39.04.210 Severability—1994 c 80: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1994 c 80 § 4.] Effective date—1994 c 80: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [March 23, 1994]." [1994 c 80 § 5.] Severability—1991 c 130: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1991 c 130 § 4.] 39.04.220 Correctional facilities construction and repair—Use of general contractor/construction manager method for awarding contracts—Demonstration projects. (1) In addition to currently authorized methods of public works contracting, and in lieu of the requirements of RCW 39.04.010 and 39.04.020 through 39.04.060, capital projects funded for over ten million dollars authorized by the legislature for the department of corrections to construct or repair facilities may be accomplished under contract using the general contractor/construction manager method described in this section. In addition, the general contractor/construction manager method may be used for up to two demonstration projects under ten million dollars for the department of corrections. Each demonstration project shall aggregate capital projects authorized by the legislature at a single site to total no less than three million dollars with the approval of the office of financial management. The department of general administration shall present its plan for the aggregation of projects under each demonstration project to the oversight advisory committee established under subsec39.04.220 [Title 39 RCW—page 7] 39.04.230 Title 39 RCW: Public Contracts and Indebtedness tion (2) of this section prior to soliciting proposals for general contractor/construction manager services for the demonstration project. (2) For the purposes of this section, "general contractor/construction manager" means a firm with which the department of general administration has selected and negotiated a maximum allowable construction cost to be guaranteed by the firm, after competitive selection through a formal advertisement, and competitive bids to provide services during the design phase that may include life-cycle cost design considerations, value engineering, scheduling, cost estimating, constructability, alternative construction options for cost savings, and sequencing of work, and to act as the construction manager and general contractor during the construction phase. The department of general administration shall establish an independent oversight advisory committee with representatives of interest groups with an interest in this subject area, the department of corrections, and the private sector, to review selection and contracting procedures and contracting documents. The oversight advisory committee shall discuss and review the progress of the demonstration projects. The general contractor/construction manager method is limited to projects authorized on or before July 1, 1997. (3) Contracts for the services of a general contractor/construction manager awarded under the authority of this section shall be awarded through a competitive process requiring the public solicitation of proposals for general contractor/construction manager services. Minority and women enterprise total project goals shall be specified in the bid instructions to the general contractor/construction manager finalists. The director of general administration is authorized to include an incentive clause in any contract awarded under this section for savings of either time or cost or both from that originally negotiated. No incentives granted shall exceed five percent of the maximum allowable construction cost. The director of general administration or his or her designee shall establish a committee to evaluate the proposals considering such factors as: Ability of professional personnel; past performance in negotiated and complex projects; ability to meet time and budget requirements; location; recent, current, and projected work loads of the firm; and the concept of their proposal. After the committee has selected the most qualified finalists, these finalists shall submit sealed bids for the percent fee, which is the percentage amount to be earned by the general contractor/construction manager as overhead and profit, on the estimated maximum allowable construction cost and the fixed amount for the detailed specified general conditions work. The maximum allowable construction cost may be negotiated between the department of general administration and the selected firm after the scope of the project is adequately determined to establish a guaranteed contract cost for which the general contractor/construction manager will provide a performance and payment bond. The guaranteed contract cost includes the fixed amount for the detailed specified general conditions work, the negotiated maximum allowable construction cost, the percent fee on the negotiated maximum allowable construction cost, and sales tax. If the department of general administration is unable to negotiate a satisfactory maximum allowable construction cost with the firm selected that the department of general administration determines to be fair, reasonable, and within the available funds, negotia[Title 39 RCW—page 8] tions with that firm shall be formally terminated and the department of general administration shall negotiate with the next low bidder and continue until an agreement is reached or the process is terminated. If the maximum allowable construction cost varies more than fifteen percent from the bid estimated maximum allowable construction cost due to requested and approved changes in the scope by the state, the percent fee shall be renegotiated. All subcontract work shall be competitively bid with public bid openings. Specific contract requirements for women and minority enterprise participation shall be specified in each subcontract bid package that exceeds ten percent of the department’s estimated project cost. All subcontractors who bid work over two hundred thousand dollars shall post a bid bond and the awarded subcontractor shall provide a performance and payment bond for their contract amount if required by the general contractor/construction manager. A low bidder who claims error and fails to enter into a contract is prohibited from bidding on the same project if a second or subsequent call for bids is made for the project. Bidding on subcontract work by the general contractor/construction manager or its subsidiaries is prohibited. The general contractor/construction manager may negotiate with the low-responsive bidder only in accordance with RCW 39.04.015 or, if unsuccessful in such negotiations, rebid. (4) If the project is completed for less than the agreed upon maximum allowable construction cost, any savings not otherwise negotiated as part of an incentive clause shall accrue to the state. If the project is completed for more than the agreed upon maximum allowable construction cost, excepting increases due to any contract change orders approved by the state, the additional cost shall be the responsibility of the general contractor/construction manager. (5) The powers and authority conferred by this section shall be construed as in addition and supplemental to powers or authority conferred by any other law, and nothing contained in this section may be construed as limiting any other powers or authority of the department of general administration. However, all actions taken pursuant to the powers and authority granted to the director or the department of general administration under this section may only be taken with the concurrence of the department of corrections. [1996 c 18 § 5; 1994 c 80 § 2; 1991 c 130 § 2.] Severability—Effective date—1994 c 80: See notes following RCW 39.04.210. Severability—1991 c 130: See note following RCW 39.04.210. 39.04.230 Correctional facilities construction and repair—Alternative contracting method to remain in force until contracts completed. Methods of public works contracting authorized by RCW 39.04.210 and 39.04.220 shall remain in full force and effect until completion of projects authorized on or before July 1, 1997. [1994 c 80 § 3; 1991 c 130 § 3.] 39.04.230 Severability—Effective date—1994 c 80: See notes following RCW 39.04.210. Severability—1991 c 130: See note following RCW 39.04.210. 39.04.240 Public works contracts—Awarding of attorneys’ fees. (1) The provisions of RCW 4.84.250 through 4.84.280 shall apply to an action arising out of a pub39.04.240 (2008 Ed.) Public Works lic works contract in which the state or a municipality, or other public body that contracts for public works, is a party, except that: (a) The maximum dollar limitation in RCW 4.84.250 shall not apply; and (b) in applying RCW 4.84.280, the time period for serving offers of settlement on the adverse party shall be the period not less than thirty days and not more than one hundred twenty days after completion of the service and filing of the summons and complaint. (2) The rights provided for under this section may not be waived by the parties to a public works contract that is entered into on or after June 11, 1992, and a provision in such a contract that provides for waiver of these rights is void as against public policy. However, this subsection shall not be construed as prohibiting the parties from mutually agreeing to a clause in a public works contract that requires submission of a dispute arising under the contract to arbitration. [1999 c 107 § 1; 1992 c 171 § 1.] 39.04.250 Payments received on account of work performed by subcontractor—Disputed amounts—Remedies. (1) When payment is received by a contractor or subcontractor for work performed on a public work, the contractor or subcontractor shall pay to any subcontractor not later than ten days after the receipt of the payment, amounts allowed the contractor on account of the work performed by the subcontractor, to the extent of each subcontractor’s interest therein. (2) In the event of a good faith dispute over all or any portion of the amount due on a payment from the state or a municipality to the prime contractor, or from the prime contractor or subcontractor to a subcontractor, then the state or the municipality, or the prime contractor or subcontractor, may withhold no more than one hundred fifty percent of the disputed amount. Those not a party to a dispute are entitled to full and prompt payment of their portion of a draw, progress payment, final payment, or released retainage. (3) In addition to all other remedies, any person from whom funds have been withheld in violation of this section shall be entitled to receive from the person wrongfully withholding the funds, for every month and portion thereof that payment including retainage is not made, interest at the highest rate allowed under RCW 19.52.025. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to costs of suit and reasonable attorneys’ fees. [1992 c 223 § 5.] 39.04.250 Effective date—1992 c 223: See note following RCW 39.76.011. Waiver of rights, construction—Application—1992 c 223: See RCW 39.04.900 and 39.04.901. 39.04.260 Private construction performed pursuant to contract for rental, lease, or purchase by state—Must comply with prevailing wage law. Any work, construction, alteration, repair, or improvement, other than ordinary maintenance, that the state or a municipality causes to be performed by a private party through a contract to rent, lease, or purchase at least fifty percent of the project by one or more state agencies or municipalities shall comply with chapter 39.12 RCW. [1993 c 110 § 1.] 39.04.260 Application—1993 c 110: "Section 1 of this act shall not apply to any project for which a call for competitive bids was made before July 25, 1993." [1993 c 110 § 2.] (2008 Ed.) 39.04.280 39.04.270 Electronic data processing and telecommunications systems—Municipalities—Acquisition method—Competitive negotiation—Findings, intent. (1) The legislature finds that the unique aspects of electronic data processing and telecommunications systems and the importance of these systems for effective administration warrant separate acquisition authority for electronic data processing and telecommunication systems. It is the intent of the legislature that municipalities utilize an acquisition method for electronic data processing and telecommunication systems that is both competitive and compatible with the needs of the municipalities. (2) A municipality may acquire electronic data processing or telecommunication equipment, software, or services through competitive negotiation rather than through competitive bidding. (3) "Competitive negotiation," for the purposes of this section, shall include, as a minimum, the following requirements: (a) A request for proposal shall be prepared and submitted to an adequate number of qualified sources, as determined by the municipality in its discretion, to permit reasonable competition consistent with the requirements of the procurement. Notice of the request for the proposal must be published in a newspaper of general circulation in the municipality at least thirteen days before the last date upon which proposals will be received. The request for proposal shall identify significant evaluation factors, including price, and their relative importance. (b) The municipality shall provide reasonable procedures for technical evaluation of the proposals received, identification of qualified sources, and selection for awarding the contract. (c) The award shall be made to the qualified bidder whose proposal is most advantageous to the municipality with price and other factors considered. The municipality may reject any and all proposals for good cause and request new proposals. [1996 c 257 § 1.] 39.04.270 39.04.280 Competitive bidding requirements— Exemptions. This section provides uniform exemptions to competitive bidding requirements utilized by municipalities when awarding contracts for public works and contracts for purchases. The statutes governing a specific type of municipality may also include other exemptions from competitive bidding requirements. The purpose of this section is to supplement and not to limit the current powers of any municipality to provide exemptions from competitive bidding requirements. (1) Competitive bidding requirements may be waived by the governing body of the municipality for: (a) Purchases that are clearly and legitimately limited to a single source of supply; (b) Purchases involving special facilities or market conditions; (c) Purchases in the event of an emergency; (d) Purchases of insurance or bonds; and (e) Public works in the event of an emergency. (2)(a) The waiver of competitive bidding requirements under subsection (1) of this section may be by resolution or by the terms of written policies adopted by the municipality, 39.04.280 [Title 39 RCW—page 9] 39.04.290 Title 39 RCW: Public Contracts and Indebtedness at the option of the governing body of the municipality. If the governing body elects to waive competitive bidding requirements by the terms of written policies adopted by the municipality, immediately after the award of any contract, the contract and the factual basis for the exception must be recorded and open to public inspection. If a resolution is adopted by a governing body to waive competitive bidding requirements under (b) of this subsection, the resolution must recite the factual basis for the exception. This subsection (2)(a) does not apply in the event of an emergency. (b) If an emergency exists, the person or persons designated by the governing body of the municipality to act in the event of an emergency may declare an emergency situation exists, waive competitive bidding requirements, and award all necessary contracts on behalf of the municipality to address the emergency situation. If a contract is awarded without competitive bidding due to an emergency, a written finding of the existence of an emergency must be made by the governing body or its designee and duly entered of record no later than two weeks following the award of the contract. (3) For purposes of this section "emergency" means unforeseen circumstances beyond the control of the municipality that either: (a) Present a real, immediate threat to the proper performance of essential functions; or (b) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken. [1998 c 278 § 1.] 39.04.290 Contracts for building engineering systems. (1) A state agency or local government may award contracts of any value for the design, fabrication, and installation of building engineering systems by: (a) Using a competitive bidding process or request for proposals process where bidders are required to provide final specifications and a bid price for the design, fabrication, and installation of building engineering systems, with the final specifications being approved by an appropriate design, engineering, and/or public regulatory body; or (b) using a competitive bidding process where bidders are required to provide final specifications for the final design, fabrication, and installation of building engineering systems as part of a larger project with the final specifications for the building engineering systems portion of the project being approved by an appropriate design, engineering, and/or public regulatory body. The provisions of chapter 39.80 RCW do not apply to the design of building engineering systems that are included as part of a contract described under this section. (2) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise. (a) "Building engineering systems" means those systems where contracts for the systems customarily have been awarded with a requirement that the contractor provide final approved specifications, including fire alarm systems, building sprinkler systems, pneumatic tube systems, extensions of heating, ventilation, or air conditioning control systems, chlorination and chemical feed systems, emergency generator systems, building signage systems, pile foundations, and curtain wall systems. (b) "Local government" means any county, city, town, school district, or other special district, municipal corporation, or quasi-municipal corporation. 39.04.290 [Title 39 RCW—page 10] (c) "State agency" means the department of general administration, the state parks and recreation commission, the department of fish and wildlife, the department of natural resources, any institution of higher education as defined under RCW 28B.10.016, and any other state agency delegated authority by the department of general administration to engage in building, renovation, remodeling, alteration, improvement, or repair activities. [2001 c 34 § 1.] 39.04.300 Apprenticeship training programs—Purpose. A well-trained construction trades workforce is critical to the ability of the state of Washington to construct public works. Studies of the state’s workforce highlight population trends that, without a concerted effort to offset them, will lead to an inadequate supply of skilled workers in the construction industry. State government regularly constructs public works. The efficient and economical construction of public works projects will be harmed if there is not an ample supply of trained construction workers. Apprenticeship training programs are particularly effective in providing training and experience to individuals seeking to enter or advance in the workforce. By providing for apprenticeship utilization on public works projects, state government can create opportunities for training and experience that will help assure that a trained workforce will be available, including returning veterans, in sufficient numbers in the future for the construction of public works. Furthermore, the state of Washington hereby establishes its intent to assist returning veterans through programs such as the "helmets to hardhats" program, which is administered by the center for military recruitment, assessment, and veterans employment. It is the state’s intent to assist returning veterans with apprenticeship placement career opportunities, in order to expedite the transition from military service to the construction workforce. [2006 c 321 § 1; 2005 c 3 § 1.] 39.04.300 Effective date—2005 c 3: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [February 24, 2005]." [2005 c 3 § 5.] 39.04.310 Apprenticeship training programs—Definitions. The definitions in this section apply throughout this section and RCW 39.04.300 and 39.04.320 unless the context clearly requires otherwise. (1) "Apprentice" means an apprentice enrolled in a stateapproved apprenticeship training program. (2) "Apprentice utilization requirement" means the requirement that the appropriate percentage of labor hours be performed by apprentices. (3) "Labor hours" means the total hours of workers receiving an hourly wage who are directly employed on the site of the public works project. "Labor hours" includes hours performed by workers employed by the contractor and all subcontractors working on the project. "Labor hours" does not include hours worked by foremen, superintendents, owners, and workers who are not subject to prevailing wage requirements. (4) "School district" has the same meaning as in RCW 28A.315.025. (5) "State-approved apprenticeship training program" means an apprenticeship training program approved by the 39.04.310 (2008 Ed.) Public Works Washington state apprenticeship council. [2007 c 437 § 1; 2005 c 3 § 2.] Effective date—2005 c 3: See note following RCW 39.04.300. 39.04.320 Apprenticeship training programs—Public works contracts—Adjustment of specific projects— Report and collection of agency data—Apprenticeship utilization advisory committee created. (1)(a) Except as provided in (b) and (c) of this subsection, from January 1, 2005, and thereafter, for all public works estimated to cost one million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices. (b)(i) This section does not apply to contracts advertised for bid before July 1, 2007, for any public works by the department of transportation. (ii) For contracts advertised for bid on or after July 1, 2007, and before July 1, 2008, for all public works by the department of transportation estimated to cost five million dollars or more, all specifications shall require that no less than ten percent of the labor hours be performed by apprentices. (iii) For contracts advertised for bid on or after July 1, 2008, and before July 1, 2009, for all public works by the department of transportation estimated to cost three million dollars or more, all specifications shall require that no less than twelve percent of the labor hours be performed by apprentices. (iv) For contracts advertised for bid on or after July 1, 2009, for all public works by the department of transportation estimated to cost two million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices. (c)(i) This section does not apply to contracts advertised for bid before January 1, 2008, for any public works by a school district, or to any project funded in whole or in part by bond issues approved before July 1, 2007. (ii) For contracts advertised for bid on or after January 1, 2008, for all public works by a school district estimated to cost three million dollars or more, all specifications shall require that no less than ten percent of the labor hours be performed by apprentices. (iii) For contracts advertised for bid on or after January 1, 2009, for all public works by a school district estimated to cost two million dollars or more, all specifications shall require that no less than twelve percent of the labor hours be performed by apprentices. (iv) For contracts advertised for bid on or after January 1, 2010, for all public works by a school district estimated to cost one million dollars or more, all specifications shall require that no less than fifteen percent of the labor hours be performed by apprentices. (2) Awarding agency directors or school districts may adjust the requirements of this section for a specific project for the following reasons: (a) The demonstrated lack of availability of apprentices in specific geographic areas; (b) A disproportionately high ratio of material costs to labor hours, which does not make feasible the required minimum levels of apprentice participation; 39.04.320 (2008 Ed.) 39.04.320 (c) Participating contractors have demonstrated a good faith effort to comply with the requirements of RCW 39.04.300 and 39.04.310 and this section; or (d) Other criteria the awarding agency director or school district deems appropriate, which are subject to review by the office of the governor. (3) The secretary of the department of transportation shall adjust the requirements of this section for a specific project for the following reasons: (a) The demonstrated lack of availability of apprentices in specific geographic areas; or (b) A disproportionately high ratio of material costs to labor hours, which does not make feasible the required minimum levels of apprentice participation. (4) This section applies to public works contracts awarded by the state and to public works contracts awarded by school districts. However, this section does not apply to contracts awarded by state four-year institutions of higher education or state agencies headed by a separately elected public official. (5)(a) The department of general administration must provide information and technical assistance to affected agencies and collect the following data from affected agencies for each project covered by this section: (i) The name of each apprentice and apprentice registration number; (ii) The name of each project; (iii) The dollar value of each project; (iv) The date of the contractor’s notice to proceed; (v) The number of apprentices and labor hours worked by them, categorized by trade or craft; (vi) The number of journey level workers and labor hours worked by them, categorized by trade or craft; and (vii) The number, type, and rationale for the exceptions granted under subsection (2) of this section. (b) The department of labor and industries shall assist the department of general administration in providing information and technical assistance. (6) The secretary of transportation shall establish an apprenticeship utilization advisory committee, which shall include statewide geographic representation and consist of equal numbers of representatives of contractors and labor. The committee must include at least one member representing contractor businesses with less than thirty-five employees. The advisory committee shall meet regularly with the secretary of transportation to discuss implementation of this section by the department of transportation, including development of the process to be used to adjust the requirements of this section for a specific project. The committee shall provide a report to the legislature by January 1, 2008, on the effects of the apprentice labor requirement on transportation projects and on the availability of apprentice labor and programs statewide. (7) At the request of the senate labor, commerce, research and development committee, the house of representatives commerce and labor committee, or their successor committees, and the governor, the department of general administration and the department of labor and industries shall compile and summarize the agency data and provide a joint report to both committees. The report shall include recommendations on modifications or improvements to the [Title 39 RCW—page 11] 39.04.330 Title 39 RCW: Public Contracts and Indebtedness apprentice utilization program and information on skill shortages in each trade or craft. [2007 c 437 § 2; 2006 c 321 § 2; 2005 c 3 § 3.] Effective date—2005 c 3: See note following RCW 39.04.300. 39.04.330 Use of wood products—Compliance with chapter 39.35D RCW. For purposes of determining compliance with chapter 39.35D RCW, the department of general administration shall credit the project for using wood products with a credible third party sustainable forest certification or from forests regulated under chapter 76.09 RCW, the Washington forest practices act. [2005 c 12 § 11.] 39.04.330 39.04.340 Apprenticeship and training council outreach effort. The Washington state apprenticeship and training council shall lead and coordinate an outreach effort to educate returning veterans about apprenticeship and career opportunities in the construction industry. The outreach effort shall include information about the "helmets to hardhats" program and other paths for making the transition from military service to the construction workforce. The outreach effort shall be developed and coordinated with apprenticeship programs, other state agencies involved in workforce training, and representatives of contractors and labor. [2006 c 321 § 3.] 39.04.340 (c) If the bidder fails to supply information requested concerning responsibility within the time and manner specified in the bid documents, the state or municipality may base its determination of responsibility upon any available information related to the supplemental criteria or may find the bidder not responsible. (d) If the state or municipality determines a bidder to be not responsible, the state or municipality must provide, in writing, the reasons for the determination. The bidder may appeal the determination within the time period specified in the bidding documents by presenting additional information to the state or municipality. The state or municipality must consider the additional information before issuing its final determination. If the final determination affirms that the bidder is not responsible, the state or municipality may not execute a contract with any other bidder until two business days after the bidder determined to be not responsible has received the final determination. (3) The capital projects advisory review board created in *RCW 39.10.800 shall develop suggested guidelines to assist the state and municipalities in developing supplemental bidder responsibility criteria. The guidelines must be posted on the board’s web site. [2007 c 133 § 2.] *Reviser’s note: RCW 39.10.800 was recodified as RCW 39.10.220 pursuant to 2007 c 494 § 511, effective July 1, 2007. 39.04.900 Rights may not be waived—Construction—1992 c 223. (1) The rights provided in chapter 223, Laws of 1992 may not be waived by the parties and a contract provision that provides for waiver of the rights provided in chapter 223, Laws of 1992 is void as against public policy. (2) Chapter 223, Laws of 1992 is to be liberally construed to provide security for all parties intended to be protected by its provisions. [1992 c 223 § 6.] 39.04.900 39.04.350 Bidder responsibility criteria—Supplemental criteria. (1) Before award of a public works contract, a bidder must meet the following responsibility criteria to be considered a responsible bidder and qualified to be awarded a public works project. The bidder must: (a) At the time of bid submittal, have a certificate of registration in compliance with chapter 18.27 RCW; (b) Have a current state unified business identifier number; (c) If applicable, have industrial insurance coverage for the bidder’s employees working in Washington as required in Title 51 RCW; an employment security department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW; and (d) Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3). (2) In addition to the bidder responsibility criteria in subsection (1) of this section, the state or municipality may adopt relevant supplemental criteria for determining bidder responsibility applicable to a particular project which the bidder must meet. (a) Supplemental criteria for determining bidder responsibility, including the basis for evaluation and the deadline for appealing a determination that a bidder is not responsible, must be provided in the invitation to bid or bidding documents. (b) In a timely manner before the bid submittal deadline, a potential bidder may request that the state or municipality modify the supplemental criteria. The state or municipality must evaluate the information submitted by the potential bidder and respond before the bid submittal deadline. If the evaluation results in a change of the criteria, the state or municipality must issue an addendum to the bidding documents identifying the new criteria. 39.04.350 [Title 39 RCW—page 12] Effective date—1992 c 223: See note following RCW 39.76.011. Application—1992 c 223: See RCW 39.04.901. 39.04.901 Application—1992 c 223. (1) RCW 39.76.011, 60.28.011, 60.28.021, 60.28.051, 39.04.250, and 39.04.900 are applicable to all public works contracts entered into on or after September 1, 1992, relating to the construction of any work of improvement. (2) RCW 39.76.010, 60.28.010, 60.28.020, and 60.28.050 are applicable to all public works contracts entered into prior to September 1, 1992, relating to the construction of any work of improvement. [1992 c 223 § 7.] 39.04.901 Effective date—1992 c 223: See note following RCW 39.76.011. Chapter 39.06 Chapter 39.06 RCW PUBLIC WORKS—REGISTRATION, LICENSING, OF CONTRACTORS Sections 39.06.010 39.06.020 Contracts with unregistered or unlicensed contractors and with other violators prohibited. Verification of subcontractor responsibility criteria. 39.06.010 Contracts with unregistered or unlicensed contractors and with other violators prohibited. No agency of the state or any of its political subdivisions may execute a contract: 39.06.010 (2008 Ed.) Contractor’s Bond (1) With any contractor who is not registered or licensed as may be required by the laws of this state other than contractors on highway projects who have been prequalified as required by RCW 47.28.070, with the department of transportation to perform highway construction, reconstruction, or maintenance; or (2) For two years from the date that a violation is finally determined, with any person or entity who has been determined by the respective administering agency to have viol a t e d R C W 5 0 . 1 2 . 0 7 0 ( 1 ) ( b ) , 5 1 .1 6 . 0 7 0 ( 1 ) ( b ) , o r *82.32.070(1)(b). During this two-year period, the person or entity may not be permitted to bid, or have a bid considered, on any public works contract. [1997 c 54 § 1; 1984 c 7 § 43; 1967 c 70 § 3.] *Reviser’s note: RCW 82.32.070 was amended by 1999 c 358 § 14, changing subsection (1)(b) to subsection (2). Severability—1984 c 7: See note following RCW 47.01.141. Construction building permits—Cities, towns or counties prohibited from issuing without verification of registration: RCW 18.27.110. 39.06.020 Verification of subcontractor responsibility criteria. A public works contractor must verify responsibility criteria for each first tier subcontractor, and a subcontractor of any tier that hires other subcontractors must verify responsibility criteria for each of its subcontractors. Verification shall include that each subcontractor, at the time of subcontract execution, meets the responsibility criteria listed in RCW 39.04.350(1) and possesses an electrical contractor license, if required by chapter 19.28 RCW, or an elevator contractor license, if required by chapter 70.87 RCW. This verification requirement, as well as the responsibility criteria, must be included in every public works contract and subcontract of every tier. [2007 c 133 § 3.] 39.06.020 Chapter 39.08 Chapter 39.08 RCW CONTRACTOR’S BOND Sections 39.08.010 39.08.015 39.08.030 39.08.065 39.08.080 39.08.100 Bond required—Conditions—Retention of contract amount in lieu of bond—Contracts of one hundred thousand dollars or less. Liability for failure to take bond. Conditions of bond—Notice of claim—Action on bond— Attorney’s fees. Notice to contractor condition to suit on bond when supplies are furnished to subcontractor. Liens for labor, materials, taxes, on public works. Marine vessel construction—Security in lieu of bond. Public officer requiring bond or insurance from particular insurer, agent or broker, procuring bond or insurance, violations: RCW 48.30.270. 39.08.010 Bond required—Conditions—Retention of contract amount in lieu of bond—Contracts of one hundred thousand dollars or less. Whenever any board, council, commission, trustees, or body acting for the state or any county or municipality or any public body shall contract with any person or corporation to do any work for the state, county, or municipality, or other public body, city, town, or district, such board, council, commission, trustees, or body shall require the person or persons with whom such contract is made to make, execute, and deliver to such board, council, commission, trustees, or body a good and sufficient bond, with a surety company as surety, conditioned that such per39.08.010 (2008 Ed.) 39.08.030 son or persons shall faithfully perform all the provisions of such contract and pay all laborers, mechanics, and subcontractors and material suppliers, and all persons who supply such person or persons, or subcontractors, with provisions and supplies for the carrying on of such work, which bond in cases of cities and towns shall be filed with the clerk or comptroller thereof, and any person or persons performing such services or furnishing material to any subcontractor shall have the same right under the provisions of such bond as if such work, services, or material was furnished to the original contractor: PROVIDED, HOWEVER, That the provisions of RCW 39.08.010 through 39.08.030 shall not apply to any money loaned or advanced to any such contractor, subcontractor or other person in the performance of any such work: PROVIDED FURTHER, That on contracts of thirty-five thousand dollars or less, at the option of the contractor the respective public entity may, in lieu of the bond, retain fifty percent of the contract amount for a period of thirty days after date of final acceptance, or until receipt of all necessary releases from the department of revenue and the department of labor and industries and settlement of any liens filed under chapter 60.28 RCW, whichever is later: PROVIDED FURTHER, That for contracts of one hundred thousand dollars or less, the public entity may accept a full payment and performance bond from an individual surety or sureties: AND PROVIDED FURTHER, That the surety must agree to be bound by the laws of the state of Washington and subjected to the jurisdiction of the state of Washington. [2007 c 218 § 88; 2007 c 210 § 3; 1989 c 145 § 1; 1982 c 98 § 5; 1975 1st ex.s. c 278 § 23; 1967 c 70 § 2; 1915 c 28 § 1; 1909 c 207 § 1; RRS § 1159. Prior: 1897 c 44 § 1; 1888 p 15 § 1.] Reviser’s note: This section was amended by 2007 c 210 § 3 and by 2007 c 218 § 88, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Intent—Finding—2007 c 218: See note following RCW 1.08.130. Construction—Severability—1975 1st ex.s. c 278: See notes following RCW 11.08.160. Liens for labor, material, taxes on public works—Reserve fund required: RCW 60.28.010. State highway construction and maintenance, bond and surety requirements: Chapter 47.28 RCW. 39.08.015 Liability for failure to take bond. If any board of county commissioners of any county, or mayor and common council of any incorporated city or town, or tribunal transacting the business of any municipal corporation shall fail to take such bond as herein required, such county, incorporated city or town, or other municipal corporation, shall be liable to the persons mentioned in RCW 39.08.010, to the full extent and for the full amount of all such debts so contracted by such contractor. [1909 c 207 § 2; RRS § 1160. Prior: 1888 p 15 § 2. Formerly RCW 39.08.070.] 39.08.015 39.08.030 Conditions of bond—Notice of claim— Action on bond—Attorney’s fees. (1) The bond mentioned in RCW 39.08.010 shall be in an amount equal to the full contract price agreed to be paid for such work or improvement, except under subsection (2) of this section, and shall be to the state of Washington, except as otherwise provided in RCW 39.08.100, and except in cases of cities and towns, in which 39.08.030 [Title 39 RCW—page 13] 39.08.065 Title 39 RCW: Public Contracts and Indebtedness cases such municipalities may by general ordinance fix and determine the amount of such bond and to whom such bond shall run: PROVIDED, The same shall not be for a less amount than twenty-five percent of the contract price of any such improvement, and may designate that the same shall be payable to such city, and not to the state of Washington, and all such persons mentioned in RCW 39.08.010 shall have a right of action in his, her, or their own name or names on such bond for work done by such laborers or mechanics, and for materials furnished or provisions and goods supplied and furnished in the prosecution of such work, or the making of such improvements: PROVIDED, That such persons shall not have any right of action on such bond for any sum whatever, unless within thirty days from and after the completion of the contract with an acceptance of the work by the affirmative action of the board, council, commission, trustees, officer, or body acting for the state, county or municipality, or other public body, city, town or district, the laborer, mechanic or subcontractor, or material supplier, or person claiming to have supplied materials, provisions or goods for the prosecution of such work, or the making of such improvement, shall present to and file with such board, council, commission, trustees or body acting for the state, county or municipality, or other public body, city, town or district, a notice in writing in substance as follows: To (here insert the name of the state, county or municipality or other public body, city, town or district): Notice is hereby given that the undersigned (here insert the name of the laborer, mechanic or subcontractor, or material supplier, or person claiming to have furnished labor, materials or provisions for or upon such contract or work) has a claim in the sum of . . . . . . dollars (here insert the amount) against the bond taken from . . . . . . (here insert the name of the principal and surety or sureties upon such bond) for the work of . . . . . . (here insert a brief mention or description of the work concerning which said bond was taken). (here to be signed) . . . . . . . . . . . . . Such notice shall be signed by the person or corporation making the claim or giving the notice, and said notice, after being presented and filed, shall be a public record open to inspection by any person, and in any suit or action brought against such surety or sureties by any such person or corporation to recover for any of the items hereinbefore specified, the claimant shall be entitled to recover in addition to all other costs, attorney’s fees in such sum as the court shall adjudge reasonable: PROVIDED, HOWEVER, That no attorney’s fees shall be allowed in any suit or action brought or instituted before the expiration of thirty days following the date of filing of the notice hereinbefore mentioned: PROVIDED FURTHER, That any city may avail itself of the provisions of RCW 39.08.010 through 39.08.030, notwithstanding any charter provisions in conflict herewith: AND PROVIDED FURTHER, That any city or town may impose any other or further conditions and obligations in such bond as may be deemed necessary for its proper protection in the fulfillment of the terms of the contract secured thereby, and not in conflict herewith. (2) Under the job order contracting procedure described in *RCW 39.10.130, bonds will be in an amount not less than [Title 39 RCW—page 14] the dollar value of all open work orders. [2007 c 218 § 89; 2003 c 301 § 4; 1989 c 58 § 1; 1977 ex.s. c 166 § 4; 1915 c 28 § 2; 1909 c 207 § 3; RRS § 1161. Prior: 1899 c 105 § 1; 1888 p 16 § 3. Formerly RCW 39.08.030 through 39.08.060.] *Reviser’s note: RCW 39.10.130 was recodified as RCW 39.10.420 pursuant to 2007 c 494 § 511, effective July 1, 2007. Intent—Finding—2007 c 218: See note following RCW 1.08.130. Severability—1977 ex.s. c 166: "If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to the other persons or circumstances is not affected." [1977 ex.s. c 166 § 9.] 39.08.065 Notice to contractor condition to suit on bond when supplies are furnished to subcontractor. Every person, firm or corporation furnishing materials, supplies or provisions to be used in the construction, performance, carrying on, prosecution or doing of any work for the state, or any county, city, town, district, municipality or other public body, shall, not later than ten days after the date of the first delivery of such materials, supplies or provisions to any subcontractor or agent of any person, firm or corporation having a subcontract for the construction, performance, carrying on, prosecution or doing of such work, deliver or mail to the contractor a notice in writing stating in substance and effect that such person, firm or corporation has commenced to deliver materials, supplies or provisions for use thereon, with the name of the subcontractor or agent ordering or to whom the same is furnished and that such contractor and his bond will be held for the payment of the same, and no suit or action shall be maintained in any court against the contractor or his bond to recover for such material, supplies or provisions or any part thereof unless the provisions of this section have been complied with. [1915 c 167 § 1; RRS § 1159-1. Formerly RCW 39.08.020.] 39.08.065 39.08.080 Liens for labor, materials, taxes, on public works. See chapter 60.28 RCW. 39.08.080 39.08.100 Marine vessel construction—Security in lieu of bond. On contracts for construction, maintenance, or repair of a marine vessel, the department of transportation or any county may permit, subject to specified format and conditions, the substitution of one or more of the following alternate forms of security in lieu of all or part of the bond: Certified check, replacement bond, cashier’s check, treasury bills, an irrevocable bank letter of credit, assignment of a savings account, or other liquid assets specifically approved by the secretary of transportation or county engineer, for their respective projects. The secretary of transportation or county engineer, respectively, shall predetermine and include in the special provisions of the bid package the amount of this alternative form of security or bond, or a combination of the two, on a case-by-case basis, in an amount adequate to protect one hundred percent of the state’s or county’s exposure to loss. Assets used as an alternative form of security shall not be used to secure the bond. By October 1, 1989, the department shall develop and adopt rules under chapter 34.05 RCW that establish the procedures for determining the state’s exposure to loss on contracts for construction, maintenance, or repair of a marine vessel. Prior to awarding any contract limiting security to the county’s exposure to loss, a county shall 39.08.100 (2008 Ed.) Alternative Public Works Contracting Procedures develop and adopt an ordinance that establishes the procedure for determining the county’s exposure to loss on contracts for construction, maintenance, or repair of a marine vessel. [2005 c 101 § 1; 1989 c 58 § 2.] Effective date—2005 c 101: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [April 20, 2005]." [2005 c 101 § 2.] Chapter 39.10 Chapter 39.10 RCW ALTERNATIVE PUBLIC WORKS CONTRACTING PROCEDURES Sections 39.10.200 39.10.210 39.10.220 39.10.230 39.10.240 39.10.250 39.10.260 39.10.270 39.10.280 39.10.290 39.10.300 39.10.310 39.10.320 39.10.330 39.10.340 39.10.350 39.10.360 39.10.370 39.10.380 39.10.390 39.10.400 39.10.410 39.10.420 39.10.430 39.10.440 39.10.450 39.10.460 39.10.470 39.10.480 39.10.490 39.10.500 39.10.510 39.10.900 39.10.901 39.10.903 39.10.904 39.10.905 Finding—Purpose. Definitions. Board—Membership—Vacancies. Board—Powers and duties. Project review committee—Creation—Members. Project review committee—Duties. Project review committee—Meetings—Open and public. Project review committee—Certification of public bodies. Project review committee—Project approval process. Appeal process. Design-build procedure—Uses. Design-build procedure—Negotiated adjustments to lowest bid or proposal—When allowed. Design-build procedure—Project management and contracting requirements. Design-build contract award process. General contractor/construction manager procedure—Uses. General contractor/construction manager procedure—Project management and contracting requirements. General contractor/construction manager procedure—Contract award process. General contractor/construction manager procedure—Maximum allowable construction cost. General contractor/construction manager procedure—Subcontract bidding procedure. General contractor/construction manager procedure—Subcontract work. General contractor/construction manager procedure—Prebid determination of subcontractor eligibility. General contractor/construction manager procedure—Subcontract agreements. Job order procedure—Which public bodies may use—Authorized use. Job order procedure—Contract award process. Job order procedure—Contract requirements. Job order procedure—Work orders. Job order procedure—Required information to board. Public inspection of certain records—Protection of trade secrets. Construction of chapter—Waiver of other limits and requirements. Application of chapter. Exemptions. Previously advertised projects. Captions not law—1994 c 132. Severability—1994 c 132. Part headings and captions not law—2007 c 494. Effective dates—2007 c 494. Severability—2007 c 494. Reviser’s note—Sunset Act application: The alternative public works contracting procedures are subject to review, termination, and possible extension under chapter 43.131 RCW, the Sunset Act. See RCW 43.131.407. RCW 39.10.200 through 39.10.903 are scheduled for future repeal under RCW 43.131.408. 39.10.200 Finding—Purpose. The legislature finds that the traditional process of awarding public works contracts in lump sum to the lowest responsible bidder is a fair and objective method of selecting a contractor. However, under certain circumstances, alternative public works contracting procedures may best serve the public interest if such 39.10.200 (2008 Ed.) 39.10.210 procedures are implemented in an open and fair process based on objective and equitable criteria. The purpose of this chapter is to authorize the use of certain supplemental alternative public works contracting procedures, to prescribe appropriate requirements to ensure that such contracting procedures serve the public interest, and to establish a process for evaluation of such contracting procedures. [2007 c 494 § 1; 1994 c 132 § 1. Formerly RCW 39.10.010.] Sunset Act application: See note following chapter digest. 39.10.210 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Alternative public works contracting procedure" means the design-build, general contractor/construction manager, and job order contracting procedures authorized in RCW 39.10.300, 39.10.340, and 39.10.420, respectively. (2) "Board" means the capital projects advisory review board. (3) "Committee" means the project review committee. (4) "Design-build procedure" means a contract between a public body and another party in which the party agrees to both design and build the facility, portion of the facility, or other item specified in the contract. (5) "Total contract cost" means the fixed amount for the detailed specified general conditions work, the negotiated maximum allowable construction cost, and the percent fee on the negotiated maximum allowable construction cost. (6) "General contractor/construction manager" means a firm with which a public body has selected and negotiated a maximum allowable construction cost to provide services during the design phase and to act as construction manager and general contractor during the construction phase. (7) "Job order contract" means a contract in which the contractor agrees to a fixed period, indefinite quantity delivery order contract which provides for the use of negotiated, definitive work orders for public works as defined in RCW 39.04.010. (8) "Job order contractor" means a registered or licensed contractor awarded a job order contract. (9) "Maximum allowable construction cost" means the maximum cost of the work to construct the project including a percentage for risk contingency, negotiated support services, and approved change orders. (10) "Negotiated support services" means items a general contractor would normally manage or perform on a construction project including, but not limited to surveying, hoisting, safety enforcement, provision of toilet facilities, temporary heat, cleanup, and trash removal. (11) "Percent fee" means the percentage amount to be earned by the general contractor/construction manager as overhead and profit. (12) "Public body" means any general or special purpose government, including but not limited to state agencies, institutions of higher education, counties, cities, towns, ports, school districts, and special purpose districts. (13) "Certified public body" means a public body certified to use design-build or general contractor/construction manager contracting procedures, or both, under RCW 39.10.270. 39.10.210 [Title 39 RCW—page 15] 39.10.220 Title 39 RCW: Public Contracts and Indebtedness (14) "Public works project" means any work for a public body within the definition of "public work" in RCW 39.04.010. (15) "Total project cost" means the cost of the project less financing and land acquisition costs. (16) "Unit price book" means a book containing specific prices, based on generally accepted industry standards and information, where available, for various items of work to be performed by the job order contractor. The prices may include: All the costs of materials; labor; equipment; overhead, including bonding costs; and profit for performing the items of work. The unit prices for labor must be at the rates in effect at the time the individual work order is issued. (17) "Work order" means an order issued for a definite scope of work to be performed pursuant to a job order contract. [2007 c 494 § 101; 2005 c 469 § 3. Prior: 2003 c 352 § 1; 2003 c 301 § 2; 2003 c 300 § 3; 2001 c 328 § 1; 2000 c 209 § 1; 1997 c 376 § 1; 1994 c 132 § 2. Formerly RCW 39.10.020.] Sunset Act application: See note following chapter digest. Effective date—2001 c 328: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2001." [2001 c 328 § 8.] Effective date—1997 c 376: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997." [1997 c 376 § 10.] 39.10.220 Board—Membership—Vacancies. (1) The board is created in the department of general administration to provide an evaluation of public capital projects construction processes, including the impact of contracting methods on project outcomes, and to advise the legislature on policies related to public works delivery methods. (2)(a) The board shall consist of the following members appointed by the governor: Two representatives from construction general contracting; one representative from the architectural profession; one representative from the engineering profession; two representatives from construction specialty subcontracting; two representatives from construction trades labor organizations; one representative from the office of minority and women’s business enterprises; one representative from a higher education institution; one representative from the department of general administration; two representatives from private industry; and one representative of a domestic insurer authorized to write surety bonds for contractors in Washington state. All appointed members must be knowledgeable about public works contracting procedures. (b) Three members shall be positions representing different local public owners, selected by the association of Washington cities, the Washington state association of counties, and the Washington public ports association, respectively. (c) One member shall be a representative from the public hospital districts, selected by the association of Washington public hospital districts. (d) One member shall be a representative from school districts, selected by the Washington state school directors’ association. (e) The board shall include two members of the house of representatives, one from each major caucus, appointed by 39.10.220 [Title 39 RCW—page 16] the speaker of the house of representatives, and two members of the senate, one from each major caucus, appointed by the president of the senate. Legislative members are nonvoting. (3) Members selected under subsection (2)(a) of this section shall serve for terms of four years, with the terms expiring on June 30th on the fourth year of the term. (4) The board chair is selected from among the appointed members by the majority vote of the voting members. (5) Legislative members of the board shall be reimbursed for travel expenses in accordance with RCW 44.04.120. Nonlegislative members of the board, project review committee members, and subcommittee chairs shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060. (6) If a vacancy occurs of the appointive members of the board, the governor shall fill the vacancy for the unexpired term. Members of the board may be removed for malfeasance or misfeasance in office, upon specific written charges by the governor, under chapter 34.05 RCW. (7) The board shall meet as often as necessary. (8) Board members are expected to consistently attend board meetings. The chair of the board may ask the governor to remove any member who misses more than two meetings in any calendar year without cause. (9) The department of general administration shall provide staff support as may be required for the proper discharge of the function of the board. (10) The board may establish subcommittees as it desires and may invite nonmembers of the board to serve as committee members. (11) The board shall encourage participation from persons and entities not represented on the board. [2007 c 494 § 102; 2005 c 377 § 1. Formerly RCW 39.10.800.] Sunset Act application: See note following chapter digest. 39.10.230 Board—Powers and duties. The board has the following powers and duties: (1) Develop and recommend to the legislature policies to further enhance the quality, efficiency, and accountability of capital construction projects through the use of traditional and alternative delivery methods in Washington, and make recommendations regarding expansion, continuation, elimination, or modification of the alternative public works contracting methods; (2) Evaluate the use of existing contracting procedures and potential future use of other alternative contracting procedures including competitive negotiation contracts; (3) Appoint members of the committee; and (4) Develop and administer questionnaires designed to provide quantitative and qualitative data on alternative public works contracting procedures on which evaluations are based. [2007 c 494 § 103; 2005 c 377 § 2. Formerly RCW 39.10.810.] 39.10.230 Sunset Act application: See note following chapter digest. 39.10.240 Project review committee—Creation— Members. (1) The board shall establish a project review committee to review and approve public works projects using the design-build and general contractor/construction manager contracting procedures authorized in RCW 39.10.300 and 39.10.240 (2008 Ed.) Alternative Public Works Contracting Procedures 39.10.340 and to certify public bodies as provided in RCW 39.10.270. (2) The board shall, by a majority vote of the board, appoint persons to the committee who are knowledgeable in the use of the design-build and general contractor/construction manager contracting procedures. Appointments must represent a balance among the industries and public owners on the board listed in RCW 39.10.220. (a) When making initial appointments to the committee, the board shall consider for appointment former members of the school district project review board and the public hospital district project review board. (b) Each member of the committee shall be appointed for a term of three years. However, for initial appointments, the board shall stagger the appointment of committee members so that the first members are appointed to serve terms of one, two, or three years from the date of appointment. Appointees may be reappointed to serve more than one term. (c) The committee shall, by a majority vote, elect a chair and vice-chair for the committee. (d) The committee chair may select a person or persons on a temporary basis as a nonvoting member if project specific expertise is needed to assist in a review. (3) The chair of the committee, in consultation with the vice-chair, may appoint one or more panels of at least six committee members to carry out the duties of the committee. Each panel shall have balanced representation of the private and public sector representatives serving on the committee. (4) Any member of the committee directly or indirectly affiliated with a submittal before the committee must recuse himself or herself from the committee consideration of that submittal. (5) Any person who sits on the committee or panel is not precluded from subsequently bidding on or participating in projects that have been reviewed by the committee. (6) The committee shall meet as often as necessary to ensure that certification and approvals are completed in a timely manner. [2007 c 494 § 104.] Sunset Act application: See note following chapter digest. 39.10.250 Project review committee—Duties. The committee shall: (1) Certify, or recertify, public bodies for a period of three years to use the design-build or general contractor/construction manager, or both, contracting procedures for projects with a total project cost of ten million dollars or more; (2) Review and approve the use of the design-build or general contractor/construction manager contracting procedures on a project by project basis for public bodies that are not certified under RCW 39.10.270; and (3) Review and approve the use of the general contractor/construction manager contracting procedure by certified public bodies for projects with a total project cost under ten million dollars. [2007 c 494 § 105.] 39.10.250 Sunset Act application: See note following chapter digest. 39.10.260 Project review committee—Meetings— Open and public. (1) The committee shall hold regular public meetings to carry out its duties as described in RCW 39.10.260 (2008 Ed.) 39.10.270 39.10.250. Committee meetings are subject to chapter 42.30 RCW. (2) The committee shall publish notice of its public meetings at least twenty days before the meeting in a legal newspaper circulated in the area where the public body seeking certification is located, or where each of the proposed projects under consideration will be constructed. All meeting notices must be posted on the committee’s web site. (3) The meeting notice must identify the public body that is seeking certification or project approval, and where applicable, a description of projects to be considered at the meeting. The notice must indicate when, where, and how the public may present comments regarding the committee’s certification of a public body or approval of a project. Information submitted by a public body to be reviewed at the meeting shall be available on the committee’s web site at the time the notice is published. (4) The committee must allow for public comment on the appropriateness of certification of a public body or on the appropriateness of the use of the proposed contracting procedure and the qualifications of a public body to use the contracting procedure. The committee shall receive and record both written and oral comments at the public hearing. [2007 c 494 § 106.] Sunset Act application: See note following chapter digest. 39.10.270 39.10.270 Project review committee—Certification of public bodies. (1) A public body may apply for certification to use the design-build or general contractor/construction manager contracting procedure, or both. Once certified, a public body may use the contracting procedure for which it is certified on individual projects with a total project cost over ten million dollars without seeking committee approval. The certification period is three years. A public body seeking certification must submit to the committee an application in a format and manner as prescribed by the committee. The application must include a description of the public body’s qualifications, its capital plan during the certification period, and its intended use of alternative contracting procedures. (2) To certify a public body, the committee shall determine that the public body: (a) Has the necessary experience and qualifications to determine which projects are appropriate for using alternative contracting procedures; (b) Has the necessary experience and qualifications to carry out the alternative contracting procedure including, but not limited to: (i) Project delivery knowledge and experience; (ii) personnel with appropriate construction experience; (iii) a management plan and rationale for its alternative public works projects; (iv) demonstrated success in managing public works projects; (v) demonstrated success in managing at least one general contractor/construction manager or design-build project within the previous five years; (vi) the ability to properly manage its capital facilities plan including, but not limited to, appropriate project planning and budgeting experience; and (vii) the ability to meet requirements of this chapter; and (c) Has resolved any audit findings on previous public works projects in a manner satisfactory to the committee. [Title 39 RCW—page 17] 39.10.280 Title 39 RCW: Public Contracts and Indebtedness (3) The committee shall, if practicable, make its determination at the public meeting during which an application for certification is reviewed. Public comments must be considered before a determination is made. Within ten business days of the public meeting, the committee shall provide a written determination to the public body, and make its determination available to the public on the committee’s web site. (4) The committee may revoke any public body’s certification upon a finding, after a public hearing, that its use of design-build or general contractor/construction manager contracting procedures no longer serves the public interest. (5) The committee may renew the certification of a public body for one additional three-year period. The public body must submit an application for recertification at least three months before the initial certification expires. The application shall include updated information on the public body’s capital plan for the next three years, its intended use of the procedures, and any other information requested by the committee. The committee must review the application for recertification at a meeting held before expiration of the applicant’s initial certification period. A public body must reapply for certification under the process described in subsection (1) of this section once the period of recertification expires. (6) Certified public bodies must submit project data information as required in RCW 39.10.320 and 39.10.350. [2007 c 494 § 107.] Sunset Act application: See note following chapter digest. 39.10.280 39.10.280 Project review committee—Project approval process. (1) A public body not certified under RCW 39.10.270 must apply for approval from the committee to use the design-build or general contractor/construction manager contracting procedure on a project. A public body seeking approval must submit to the committee an application in a format and manner as prescribed by the committee. The application must include a description of the public body’s qualifications, a description of the project, and its intended use of alternative contracting procedures. (2) To approve a proposed project, the committee shall determine that: (a) The alternative contracting procedure will provide a substantial fiscal benefit or the use of the traditional method of awarding contracts in lump sum to the low responsive bidder is not practical for meeting desired quality standards or delivery schedules; (b) The proposed project meets the requirements for using the alternative contracting procedure as described in RCW 39.10.300 or 39.10.340; (c) The public body has the necessary experience or qualified team to carry out the alternative contracting procedure including, but not limited to: (i) Project delivery knowledge and experience; (ii) sufficient personnel with construction experience to administer the contract; (iii) a written management plan that shows clear and logical lines of authority; (iv) the necessary and appropriate funding and time to properly manage the job and complete the project; (v) continuity of project management team, including personnel with experience managing projects of similar scope and size to the [Title 39 RCW—page 18] project being proposed; and (vi) necessary and appropriate construction budget; (d) For design-build projects, construction personnel independent of the design-build team are knowledgeable in the design-build process and are able to oversee and administer the contract; and (e) The public body has resolved any audit findings related to previous public works projects in a manner satisfactory to the committee. (3) The committee shall, if practicable, make its determination at the public meeting during which a submittal is reviewed. Public comments must be considered before a determination is made. (4) Within ten business days after the public meeting, the committee shall provide a written determination to the public body, and make its determination available to the public on the committee’s web site. If the committee fails to make a written determination within ten business days of the public meeting, the request of the public body to use the alternative contracting procedure on the requested project shall be deemed approved. (5) The requirements of subsection (1) of this section also apply to certified public bodies seeking to use the general contractor/construction manager contracting procedure on projects with a total project cost of less than ten million dollars. (6) Failure of the committee to meet within sixty calendar days of a public body’s application to use an alternative contracting procedure on a project shall be deemed an approval of the application. [2007 c 494 § 108.] Sunset Act application: See note following chapter digest. 39.10.290 39.10.290 Appeal process. Final determinations by the committee may be appealed to the board within seven days by the public body or by an interested party. A written notice of an appeal must be provided to the committee and, as applicable, to the public body. The board shall resolve an appeal within forty-five days of receipt of the appeal and shall send a written determination of its decision to the party making the appeal and to the appropriate public body, as applicable. The public body shall comply with the determination of the board. [2007 c 494 § 109.] Sunset Act application: See note following chapter digest. 39.10.300 39.10.300 Design-build procedure—Uses. (1) Subject to the process in RCW 39.10.270 or 39.10.280, public bodies may utilize the design-build procedure for public works projects in which the total project cost is over ten million dollars and where: (a) The design and construction activities, technologies, or schedule to be used are highly specialized and a designbuild approach is critical in developing the construction methodology or implementing the proposed technology; or (b) The project design is repetitive in nature and is an incidental part of the installation or construction; or (c) Regular interaction with and feedback from facilities users and operators during design is not critical to an effective facility design. (2008 Ed.) Alternative Public Works Contracting Procedures (2) Subject to the process in RCW 39.10.270 or 39.10.280, public bodies may use the design-build procedure for parking garages, regardless of cost. (3) The design-build procedure also may be used for the construction or erection of preengineered metal buildings or prefabricated modular buildings, regardless of cost and is not subject to approval by the committee. (4) Except for utility projects, the design-build procedure may not be used to procure operations and maintenance services for a period longer than three years. State agency projects that propose to use the design-build-operate-maintain procedure shall submit cost estimates for the construction portion of the project consistent with the office of financial management’s capital budget requirements. Operations and maintenance costs must be shown separately and must not be included as part of the capital budget request. [2007 c 494 § 201. Prior: 2003 c 352 § 2; 2003 c 300 § 4; 2002 c 46 § 1; 2001 c 328 § 2. Formerly RCW 39.10.051.] Sunset Act application: See note following chapter digest. Effective date—2002 c 46: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 14, 2002]." [2002 c 46 § 5.] Effective date—2001 c 328: See note following RCW 39.10.210. 39.10.310 Design-build procedure—Negotiated adjustments to lowest bid or proposal—When allowed. Notwithstanding the provisions of RCW 39.04.015, a public body using the design-build contracting procedure is authorized to negotiate an adjustment to the lowest bid or proposal price for a public works project based upon agreed changes to the contract plans and specifications under the following conditions: (1) All responsive bids or proposal prices exceed the available funds, as certified by an appropriate fiscal officer; (2) The apparent low-responsive bid or proposal does not exceed the available funds by the greater of one hundred twenty-five thousand dollars or two percent for projects valued over ten million dollars; and (3) The negotiated adjustment will bring the bid or proposal price within the amount of available funds. [2007 c 494 § 202; 1994 c 132 § 8. Formerly RCW 39.10.080.] 39.10.310 Sunset Act application: See note following chapter digest. 39.10.320 Design-build procedure—Project management and contracting requirements. (1) A public body utilizing the design-build contracting procedure shall provide for: (a) Reasonable budget contingencies totaling not less than five percent of the anticipated contract value; (b) Employment of staff or consultants with expertise and prior experience in the management of comparable projects; (c) Contract documents that include alternative dispute resolution procedures to be attempted prior to the initiation of litigation; (d) Submission of project information, as required by the board; and (e) Contract documents that require the contractor, subcontractors, and designers to submit project information required by the board. 39.10.320 (2008 Ed.) 39.10.330 (2) A public body utilizing the design-build contracting procedure may provide incentive payments to contractors for early completion, cost savings, or other goals if such payments are identified in the request for proposals. [2007 c 494 § 203; 1994 c 132 § 7. Formerly RCW 39.10.070.] Sunset Act application: See note following chapter digest. 39.10.330 Design-build contract award process. (1) Contracts for design-build services shall be awarded through a competitive process using public solicitation of proposals for design-build services. The public body shall publish at least once in a legal newspaper of general circulation published in, or as near as possible to, that part of the county in which the public work will be done, a notice of its request for qualifications from proposers for design-build services, and the availability and location of the request for proposal documents. The request for qualifications documents shall include: (a) A general description of the project that provides sufficient information for proposers to submit qualifications; (b) The reasons for using the design-build procedure; (c) A description of the qualifications to be required of the proposer including, but not limited to, submission of the proposer’s accident prevention program; (d) A description of the process the public body will use to evaluate qualifications and finalists’ proposals, including evaluation factors and the relative weight of factors and any specific forms to be used by the proposers; (i) Evaluation factors for request for qualifications shall include, but not be limited to, technical qualifications, such as specialized experience and technical competence; capability to perform; past performance of the proposers’ team, including the architect-engineer and construction members; and other appropriate factors. Cost or price-related factors are not permitted in the request for qualifications phase; (ii) Evaluation factors for finalists’ proposals shall include, but not be limited to, the factors listed in (d)(i) of this subsection, as well as technical approach design concept; proposal price; ability of professional personnel; past performance on similar projects; ability to meet time and budget requirements; ability to provide a performance and payment bond for the project; recent, current, and projected workloads of the firm; and location. Alternatively, if the public body determines that all finalists will be capable of producing a design that adequately meets project requirements, the public body may award the contract to the firm that submits the responsive proposal with the lowest price; (e) The form of the contract to be awarded; (f) The amount to be paid to finalists submitting responsive proposals and who are not awarded a design-build contract; (g) The schedule for the procurement process and the project; and (h) Other information relevant to the project. (2) The public body shall establish an evaluation committee to evaluate the responses to the request for qualifications based on the factors, weighting, and process identified in the request for qualifications. Based on the evaluation committee’s findings, the public body shall select not more than five responsive and responsible finalists to submit pro39.10.330 [Title 39 RCW—page 19] 39.10.340 Title 39 RCW: Public Contracts and Indebtedness posals. The public body may, in its sole discretion, reject all proposals and shall provide its reasons for rejection in writing to all proposers. (3) Upon selection of the finalists, the public body shall issue a request for proposals to the finalists, which shall provide the following information: (a) A detailed description of the project including programmatic, performance, and technical requirements and specifications; functional and operational elements; minimum and maximum net and gross areas of any building; and, at the discretion of the public body, preliminary engineering and architectural drawings; and (b) The target budget for the design-build portion of the project. (4) The public body shall establish an evaluation committee to evaluate the proposals submitted by the finalists. Design-build contracts shall be awarded using the procedures in (a) or (b) of this subsection. The public body must identify in the request for qualifications which procedure will be used. (a) The finalists’ proposals shall be evaluated and scored based on the factors, weighting, and process identified in the initial request for qualifications and in any addenda published by the public body. Public bodies may request best and final proposals from finalists. The public body shall initiate negotiations with the firm submitting the highest scored proposal. If the public body is unable to execute a contract with the firm submitting the highest scored proposal, negotiations with that firm may be suspended or terminated and the public body may proceed to negotiate with the next highest scored firm. Public bodies shall continue in accordance with this procedure until a contract agreement is reached or the selection process is terminated. (b) If the public body determines that all finalists are capable of producing a design that adequately meets project requirements, the public body may award the contract to the firm that submits the responsive proposal with the lowest price. (5) The firm awarded the contract shall provide a performance and payment bond for the contracted amount. The public body shall provide appropriate honorarium payments to finalists submitting best and final proposals that are not awarded a design-build contract. Honorarium payments shall be sufficient to generate meaningful competition among potential proposers on design-build projects. In determining the amount of the honorarium, the public body shall consider the level of effort required to meet the selection criteria. [2007 c 494 § 204.] Sunset Act application: See note following chapter digest. 39.10.340 39.10.340 General contractor/construction manager procedure—Uses. Subject to the process in RCW 39.10.270 or 39.10.280, public bodies may utilize the general contractor/construction manager procedure for public works projects where: (1) Implementation of the project involves complex scheduling, phasing, or coordination; (2) The project involves construction at an occupied facility which must continue to operate during construction; [Title 39 RCW—page 20] (3) The involvement of the general contractor/construction manager during the design stage is critical to the success of the project; (4) The project encompasses a complex or technical work environment; or (5) The project requires specialized work on a building that has historic significance. [2007 c 494 § 301. Prior: 2003 c 352 § 3; 2003 c 300 § 5; 2002 c 46 § 2; 2001 c 328 § 3. Formerly RCW 39.10.061.] Sunset Act application: See note following chapter digest. Effective date—2002 c 46: See note following RCW 39.10.300. Effective date—2001 c 328: See note following RCW 39.10.210. 39.10.350 General contractor/construction manager procedure—Project management and contracting requirements. (1) A public body using the general contractor/construction manager contracting procedure shall provide for: (a) The preparation of appropriate, complete, and coordinated design documents; (b) Confirmation that a constructability analysis of the design documents has been performed prior to solicitation of a subcontract bid package; (c) Reasonable budget contingencies totaling not less than five percent of the anticipated contract value; (d) To the extent appropriate, on-site architectural or engineering representatives during major construction or installation phases; (e) Employment of staff or consultants with expertise and prior experience in the management of comparable projects, critical path method schedule review and analysis, and the administration, pricing, and negotiation of change orders; (f) Contract documents that include alternative dispute resolution procedures to be attempted before the initiation of litigation; (g) Contract documents that: (i) Obligate the public owner to accept or reject a request for equitable adjustment, change order, or claim within a specified time period but no later than sixty calendar days after the receipt by the public body of related documentation; and (ii) provide that if the public owner does not respond in writing to a request for equitable adjustment, change order, or claim within the specified time period, the request is deemed denied; (h) Submission of project information, as required by the board; and (i) Contract documents that require the contractor, subcontractors, and designers to submit project information required by the board. (2) A public body using the general contractor/construction manager contracting procedure may include an incentive clause for early completion, cost savings, or other performance goals if such incentives are identified in the request for proposals. No incentives granted may exceed five percent of the maximum allowable construction cost. No incentives may be paid from any contingency fund established for coordination of the construction documents or coordination of the work. (3) If the construction is completed for less than the maximum allowable construction cost, any savings not otherwise 39.10.350 (2008 Ed.) Alternative Public Works Contracting Procedures negotiated as part of an incentive clause shall accrue to the public body. If the construction is completed for more than the maximum allowable construction cost, the additional cost is the responsibility of the general contractor/construction manager. (4) If the public body and the general contractor/construction manager agree, in writing, on a price for additional work, the public body must issue a change order within thirty days of the written agreement. If the public body does not issue a change order within the thirty days, interest shall accrue on the dollar amount of the additional work satisfactorily completed until a change order is issued. The public body shall pay this interest at a rate of one percent per month. [2007 c 494 § 302.] Sunset Act application: See note following chapter digest. 39.10.360 General contractor/construction manager procedure—Contract award process. (1) Public bodies should select general contractor/construction managers early in the life of public works projects, and in most situations no later than the completion of schematic design. (2) Contracts for the services of a general contractor/ construction manager under this section shall be awarded through a competitive process requiring the public solicitation of proposals for general contractor/construction manager services. The public solicitation of proposals shall include: (a) A description of the project, including programmatic, performance, and technical requirements and specifications when available; (b) The reasons for using the general contractor/construction manager procedure; (c) A description of the qualifications to be required of the firm, including submission of the firm’s accident prevention program; (d) A description of the process the public body will use to evaluate qualifications and proposals, including evaluation factors and the relative weight of factors; (e) The form of the contract, including any contract for preconstruction services, to be awarded; (f) The estimated maximum allowable construction cost; and (g) The bid instructions to be used by the general contractor/ construction manager finalists. (3) Evaluation factors for selection of the general contractor/construction [manager] shall include, but not be limited to: (a) Ability of the firm’s professional personnel; (b) The firm’s past performance in negotiated and complex projects; (c) The firm’s ability to meet time and budget requirements; (d) The scope of work the firm proposes to self-perform and its ability to perform that work; (e) The firm’s proximity to the project location; (f) Recent, current, and projected workloads of the firm; and (g) The firm’s approach to executing the project. (4) A public body shall establish a committee to evaluate the proposals. After the committee has selected the most qualified finalists, these finalists shall submit final proposals, 39.10.360 (2008 Ed.) 39.10.370 including sealed bids for the percent fee on the estimated maximum allowable construction cost and the fixed amount for the general conditions work specified in the request for proposal. The public body shall select the firm submitting the highest scored final proposal using the evaluation factors and the relative weight of factors published in the public solicitation of proposals. A public body shall not evaluate or disqualify a proposal based on the terms of a collective bargaining agreement. (5) Public bodies may contract with the selected firm to provide services during the design phase that may include life-cycle cost design considerations, value engineering, scheduling, cost estimating, constructability, alternative construction options for cost savings, and sequencing of work, and to act as the construction manager and general contractor during the construction phase. [2007 c 494 § 303.] Sunset Act application: See note following chapter digest. 39.10.370 General contractor/construction manager procedure—Maximum allowable construction cost. (1) The maximum allowable construction cost shall be used to establish a total contract cost for which the general contractor/construction manager shall provide a performance and payment bond. The maximum allowable construction cost shall be negotiated between the public body and the selected firm when the construction documents and specifications are at least ninety percent complete. (2) Major bid packages may be bid in accordance with RCW 39.10.380 before agreement on the maximum allowable construction cost between the public body and the selected general contractor/construction manager. The general contractor/construction manager may issue an intent to award to the responsible bidder submitting the lowest responsive bid. (3) The public body may, at its option, authorize the general contractor/construction manager to proceed with the bidding and award of bid packages and construction before receipt of complete project plans and specifications. Any contracts awarded under this subsection shall be incorporated in the negotiated maximum allowable construction cost. (4) The total contract cost includes the fixed amount for the detailed specified general conditions work, the negotiated maximum allowable construction cost, the negotiated support services, and the percent fee on the negotiated maximum allowable construction cost. Negotiated support services may be included in the specified general conditions at the discretion of the public body. (5) If the public body is unable to negotiate a satisfactory maximum allowable construction cost with the firm selected that the public body determines to be fair, reasonable, and within the available funds, negotiations with that firm shall be formally terminated and the public body shall negotiate with the next highest scored firm and continue until an agreement is reached or the process is terminated. (6) If the maximum allowable construction cost varies more than fifteen percent from the bid estimated maximum allowable construction cost due to requested and approved changes in the scope by the public body, the percent fee shall be renegotiated. [2007 c 494 § 304.] 39.10.370 Sunset Act application: See note following chapter digest. [Title 39 RCW—page 21] 39.10.380 Title 39 RCW: Public Contracts and Indebtedness 39.10.380 General contractor/construction manager procedure—Subcontract bidding procedure. (1) All subcontract work and equipment and material purchases shall be competitively bid with public bid openings. Subcontract bid packages and equipment and materials purchases shall be awarded to the responsible bidder submitting the lowest responsive bid. In preparing subcontract bid packages, the general contractor/construction manager shall not be required to violate or waive terms of a collective bargaining agreement. (2) All subcontract bid packages in which bidder eligibility was not determined in advance shall include the specific objective criteria that will be used by the general contractor/construction manager and the public body to evaluate bidder responsibility. If the lowest bidder submitting a responsive bid is determined by the general contractor/construction manager and the public body not to be responsible, the general contractor/construction manager and the public body must provide written documentation to that bidder explaining their intent to reject the bidder as not responsible and afford the bidder the opportunity to establish that it is a responsible bidder. Responsibility shall be determined in accordance with criteria listed in the bid documents. Protests concerning bidder responsibility determination by the general contractor/construction manager and the public body shall be in accordance with subsection (4) of this section. (3) All subcontractors who bid work over three hundred thousand dollars shall post a bid bond. All subcontractors who are awarded a contract over three hundred thousand dollars shall provide a performance and payment bond for the contract amount. All other subcontractors shall provide a performance and payment bond if required by the general contractor/construction manager. (4) If the general contractor/construction manager receives a written protest from a subcontractor bidder or an equipment or material supplier, the general contractor/construction manager shall not execute a contract for the subcontract bid package or equipment or material purchase order with anyone other than the protesting bidder without first providing at least two full business days’ written notice to all bidders of the intent to execute a contract for the subcontract bid package. The protesting bidder must submit written notice of its protest no later than two full business days following the bid opening. Intermediate Saturdays, Sundays, and legal holidays are not counted. (5) A low bidder who claims error and fails to enter into a contract is prohibited from bidding on the same project if a second or subsequent call for bids is made for the project. (6) The general contractor/construction manager may negotiate with the lowest responsible and responsive bidder to negotiate an adjustment to the lowest bid or proposal price based upon agreed changes to the contract plans and specifications under the following conditions: (a) All responsive bids or proposal prices exceed the available funds, as certified by an appropriate fiscal officer; (b) The apparent low responsive bid or proposal does not exceed the available funds by the greater of one hundred twenty-five thousand dollars or two percent for projects valued over ten million dollars; and (c) The negotiated adjustment will bring the bid or proposal price within the amount of available funds. 39.10.380 [Title 39 RCW—page 22] (7) If the negotiation is unsuccessful, the subcontract work or equipment or material purchases must be rebid. (8) The general contractor/construction manager must provide a written explanation if all bids are rejected. [2007 c 494 § 305.] Sunset Act application: See note following chapter digest. 39.10.390 General contractor/construction manager procedure—Subcontract work. (1) Except as provided in this section, bidding on subcontract work or for the supply of equipment or materials by the general contractor/construction manager or its subsidiaries is prohibited. (2) The general contractor/construction manager, or its subsidiaries, may bid on subcontract work or for the supply of equipment or materials if: (a) The work within the subcontract bid package or equipment or materials is customarily performed or supplied by the general contractor/construction manager; (b) The bid opening is managed by the public body and is in compliance with RCW 39.10.380; and (c) Notification of the general contractor/construction manager’s intention to bid is included in the public solicitation of bids for the bid package or for the equipment or materials. (3) In no event may the general contractor/construction manager or its subsidiaries purchase equipment or materials for assignment to subcontract bid package bidders for installation or warranty. The value of subcontract work performed and equipment and materials supplied by the general contractor/construction manager may not exceed thirty percent of the negotiated maximum allowable construction cost. Negotiated support services performed by the general contractor/construction manager shall not be considered subcontract work for purposes of this subsection. [2007 c 494 § 306.] 39.10.390 Sunset Act application: See note following chapter digest. 39.10.400 General contractor/construction manager procedure—Prebid determination of subcontractor eligibility. (1) If determination of subcontractor eligibility prior to seeking bids is in the best interest of the project and critical to the successful completion of a subcontract bid package, the general contractor/construction manager and the public body may determine subcontractor eligibility to bid. The general contractor/construction manager and the public body must: (a) Conduct a hearing and provide an opportunity for any interested party to submit written and verbal comments regarding the justification for conducting bidder eligibility, the evaluation criteria, and weights for each criteria and subcriteria; (b) Publish a notice of intent to evaluate and determine bidder eligibility in a legal newspaper published in or as near as possible to that part of the county where the public work will be constructed at least fourteen calendar days before conducting a public hearing; (c) Ensure the public hearing notice includes the date, time, and location of the hearing, a statement justifying the basis and need for performing eligibility analysis before bid opening, and specific eligibility criteria and applicable weights given to each criteria and subcriteria that will be used during evaluation; 39.10.400 (2008 Ed.) Alternative Public Works Contracting Procedures (d) After the public hearing, consider written and verbal comments received and determine if establishing bidder eligibility in advance of seeking bids is in the best interests of the project and critical to the successful completion of a subcontract bid package; and (e) Issue a written final determination to all interested parties. All protests of the decision to establish bidder eligibility before issuing a subcontractor bid package must be filed with the superior court within seven calendar days of the final determination. Any modifications to the eligibility criteria and weights shall be based on comments received during the public hearing process and shall be included in the final determination. (2) Determinations of bidder eligibility shall be in accordance with the evaluation criteria and weights for each criteria established in the final determination and shall be provided to interested persons upon request. Any potential bidder determined not to meet eligibility criteria must be afforded the opportunity to establish its eligibility. Protests concerning bidder eligibility determinations shall be in accordance with subsection (1) of this section. [2007 c 494 § 307.] Sunset Act application: See note following chapter digest. 39.10.410 39.10.410 General contractor/construction manager procedure—Subcontract agreements. Subcontract agreements used by the general contractor/construction manager shall not: (1) Delegate, restrict, or assign the general contractor/construction manager’s implied duty not to hinder or delay the subcontractor. Nothing in this subsection (1) prohibits the general contractor/construction manager from requiring subcontractors not to hinder or delay the work of the general contractor/construction manager or other subcontractors and to hold subcontractors responsible for such damages; (2) Delegate, restrict, or assign the general contractor/construction manager’s authority to resolve subcontractor conflicts. The general contractor/construction manager may delegate or assign coordination of specific elements of the work, including: (a) The coordination of shop drawings among subcontractors; (b) the coordination among subcontractors in ceiling spaces and mechanical rooms; and (c) the coordination of a subcontractor’s lower tier subcontractors. Nothing in this subsection prohibits the general contractor/construction manager from imposing a duty on its subcontractors to cooperate with the general contractor/construction manager and other subcontractors in the coordination of the work; (3) Restrict the subcontractor’s right to damages for changes to the construction schedule or work to the extent that the delay or disruption is caused by the general contractor/construction manager or entities acting for it. The general contractor/construction manager may require the subcontractor to provide notice that rescheduling or resequencing will result in delays or additional costs; (4) Require the subcontractor to bear the cost of trade damage repair except to the extent the subcontractor is responsible for the damage. Nothing in this subsection (4) precludes the general contractor/construction manager from (2008 Ed.) 39.10.430 requiring the subcontractor to take reasonable steps to protect the subcontractor’s work from trade damage; or (5) Require the subcontractor to execute progress payment applications that waive claims for additional time or compensation or bond or retainage rights as a condition of receipt of progress payment, except to the extent the subcontractor has received or will receive payment. Nothing in this section precludes the general contractor/construction manager from requiring the subcontractor to provide notice of claims for additional time or compensation as a condition precedent to right of recovery or to execute a full and final release, including a waiver of bond and retainage rights, as a condition of final payment. [2007 c 494 § 308.] Sunset Act application: See note following chapter digest. 39.10.420 Job order procedure—Which public bodies may use—Authorized use. (1) The following public bodies are authorized to use the job order contracting procedure: (a) The department of general administration; (b) The University of Washington; (c) Washington State University; (d) Every city with a population greater than seventy thousand and any public authority chartered by such city under RCW 35.21.730 through 35.21.755; (e) Every county with a population greater than four hundred fifty thousand; (f) Every port district with total revenues greater than fifteen million dollars per year; (g) Every public utility district with revenues from energy sales greater than twenty-three million dollars per year; (h) Every school district; and (i) The state ferry system. (2) The department of general administration may issue job order contract work orders for Washington state parks department projects. (3) Public bodies may use a job order contract for public works projects when a determination is made that the use of job order contracts will benefit the public by providing an effective means of reducing the total lead-time and cost for the construction of public works projects for repair and renovation required at public facilities through the use of unit price books and work orders by eliminating time-consuming, costly aspects of the traditional public works process, which require separate contracting actions for each small project. [2007 c 494 § 401; 2003 c 301 § 1. Formerly RCW 39.10.130.] 39.10.420 Sunset Act application: See note following chapter digest. 39.10.430 Job order procedure—Contract award process. (1) Job order contracts shall be awarded through a competitive process using public requests for proposals. (2) The public body shall make an effort to solicit proposals from certified minority or certified woman-owned contractors to the extent permitted by the Washington state civil rights act, RCW 49.60.400. (3) The public body shall publish, at least once in a statewide publication and legal newspaper of general circulation published in every county in which the public works project 39.10.430 [Title 39 RCW—page 23] 39.10.440 Title 39 RCW: Public Contracts and Indebtedness is anticipated, a request for proposals for job order contracts and the availability and location of the request for proposal documents. The public body shall ensure that the request for proposal documents at a minimum includes: (a) A detailed description of the scope of the job order contract including performance, technical requirements and specifications, functional and operational elements, minimum and maximum work order amounts, duration of the contract, and options to extend the job order contract; (b) The reasons for using job order contracts; (c) A description of the qualifications required of the proposer; (d) The identity of the specific unit price book to be used; (e) The minimum contracted amount committed to the selected job order contractor; (f) A description of the process the public body will use to evaluate qualifications and proposals, including evaluation factors and the relative weight of factors. The public body shall ensure that evaluation factors include, but are not limited to, proposal price and the ability of the proposer to perform the job order contract. In evaluating the ability of the proposer to perform the job order contract, the public body may consider: The ability of the professional personnel who will work on the job order contract; past performance on similar contracts; ability to meet time and budget requirements; ability to provide a performance and payment bond for the job order contract; recent, current, and projected workloads of the proposer; location; and the concept of the proposal; (g) The form of the contract to be awarded; (h) The method for pricing renewals of or extensions to the job order contract; (i) A notice that the proposals are subject to RCW 39.10.470; and (j) Other information relevant to the project. (4) A public body shall establish a committee to evaluate the proposals. After the committee has selected the most qualified finalists, the finalists shall submit final proposals, including sealed bids based upon the identified unit price book. Such bids may be in the form of coefficient markups from listed price book costs. The public body shall award the contract to the firm submitting the highest scored final proposal using the evaluation factors and the relative weight of factors published in the public request for proposals and will notify the board of the award of the contract. (5) The public body shall provide a protest period of at least ten business days following the day of the announcement of the apparent successful proposal to allow a protester to file a detailed statement of the grounds of the protest. The public body shall promptly make a determination on the merits of the protest and provide to all proposers a written decision of denial or acceptance of the protest. The public body shall not execute the contract until two business days following the public body’s decision on the protest. (6) The requirements of RCW 39.30.060 do not apply to requests for proposals for job order contracts. [2007 c 494 § 402.] Sunset Act application: See note following chapter digest. 39.10.440 Job order procedure—Contract requirements. (1) The maximum total dollar amount that may be 39.10.440 [Title 39 RCW—page 24] awarded under a job order contract is four million dollars per year for a maximum of three years. (2) Job order contracts may be executed for an initial contract term of not to exceed two years, with the option of extending or renewing the job order contract for one year. All extensions or renewals must be priced as provided in the request for proposals. The extension or renewal must be mutually agreed to by the public body and the job order contractor. (3) A public body may have no more than two job order contracts in effect at any one time, with the exception of the department of general administration, which may have four job order contracts in effect at any one time. (4) At least ninety percent of work contained in a job order contract must be subcontracted to entities other than the job order contractor. The job order contractor must distribute contracts as equitably as possible among qualified and available subcontractors including minority and woman-owned subcontractors to the extent permitted by law. (5) The job order contractor shall publish notification of intent to perform public works projects at the beginning of each contract year in a statewide publication and in a legal newspaper of general circulation in every county in which the public works projects are anticipated. (6) Job order contractors shall pay prevailing wages for all work that would otherwise be subject to the requirements of chapter 39.12 RCW. Prevailing wages for all work performed pursuant to each work order must be the rates in effect at the time the individual work order is issued. (7) If, in the initial contract term, the public body, at no fault of the job order contractor, fails to issue the minimum amount of work orders stated in the public request for proposals, the public body shall pay the contractor an amount equal to the difference between the minimum work order amount and the actual total of the work orders issued multiplied by an appropriate percentage for overhead and profit contained in the contract award coefficient for services as specified in the request for proposals. This is the contractor’s sole remedy. (8) All job order contracts awarded under this section must be signed before July 1, 2013; however the job order contract may be extended or renewed as provided for in this section. (9) Public bodies may amend job order contracts awarded prior to July 1, 2007, in accordance with this chapter. [2007 c 494 § 403.] Sunset Act application: See note following chapter digest. 39.10.450 Job order procedure—Work orders. (1) The maximum dollar amount for a work order is three hundred fifty thousand dollars. For each job order contract, public bodies shall not issue more than two work orders equal to or greater than three hundred thousand dollars in a twelvemonth contract period. (2) All work orders issued for the same project shall be treated as a single work order for purposes of the dollar limit on work orders. (3) No more than twenty percent of the dollar value of a work order may consist of items of work not contained in the unit price book. 39.10.450 (2008 Ed.) Alternative Public Works Contracting Procedures (4) Any new permanent, enclosed building space constructed under a work order shall not exceed two thousand gross square feet. (5) A public body may issue no work orders under a job order contract until it has approved, in consultation with the office of minority and women’s business enterprises or the equivalent local agency, a plan prepared by the job order contractor that equitably spreads certified women and minority business enterprise subcontracting opportunities, to the extent permitted by the Washington state civil rights act, RCW 49.60.400, among the various subcontract disciplines. (6) For purposes of chapters 39.08, 39.12, 39.76, and 60.28 RCW, each work order issued shall be treated as a separate contract. The alternate filing provisions of RCW 39.12.040(2) apply to each work order that otherwise meets the eligibility requirements of RCW 39.12.040(2). (7) The job order contract shall not be used for the procurement of architectural or engineering services not associated with specific work orders. Architectural and engineering services shall be procured in accordance with RCW 39.80.040. [2007 c 494 § 404.] Sunset Act application: See note following chapter digest. 39.10.460 Job order procedure—Required information to board. A public body shall provide to the board the following information for each job order contract at the end of each contract year: (1) A list of work orders issued; (2) The cost of each work order; (3) A list of subcontractors hired under each work order; (4) If requested by the board, a copy of the intent to pay prevailing wage and the affidavit of wages paid for each work order subcontract; and (5) Any other information requested by the board. [2007 c 494 § 405.] 39.10.460 Sunset Act application: See note following chapter digest. 39.10.470 Public inspection of certain records—Protection of trade secrets. (1) Except as provided in subsection (2) of this section, all proceedings, records, contracts, and other public records relating to alternative public works transactions under this chapter shall be open to the inspection of any interested person, firm, or corporation in accordance with chapter 42.56 RCW. (2) Trade secrets, as defined in RCW 19.108.010, or other proprietary information submitted by a bidder, offeror, or contractor in connection with an alternative public works transaction under this chapter shall not be subject to chapter 42.56 RCW if the bidder, offeror, or contractor specifically states in writing the reasons why protection is necessary, and identifies the data or materials to be protected. [2005 c 274 § 275; 1994 c 132 § 10. Formerly RCW 39.10.100.] 39.10.470 Sunset Act application: See note following chapter digest. Part headings not law—Effective date—2005 c 274: See RCW 42.56.901 and 42.56.902. 39.10.480 Construction of chapter—Waiver of other limits and requirements. This chapter shall not be construed to affect or modify the existing statutory, regulatory, or charter powers of public bodies except to the extent that a 39.10.480 (2008 Ed.) 39.10.900 procedure authorized by this chapter is adopted by a public body for a particular public works project. In that event, the normal contracting or procurement limits or requirements of a public body as imposed by statute, ordinance, resolution, or regulation shall be deemed waived or amended only to the extent necessary to accommodate such procedures for a particular public works project. [1994 c 132 § 9. Formerly RCW 39.10.090.] Sunset Act application: See note following chapter digest. 39.10.490 Application of chapter. The alternative public works contracting procedures authorized under this chapter are limited to public works contracts signed before July 1, 2013. Methods of public works contracting authorized under this chapter shall remain in full force and effect until completion of contracts signed before July 1, 2013. [2007 c 494 § 501; 2001 c 328 § 5. Prior: 1997 c 376 § 7; 1997 c 220 § 404 (Referendum Bill No. 48, approved June 17, 1997); 1995 3rd sp.s. c 1 § 305; 1994 c 132 § 12. Formerly RCW 39.10.120.] 39.10.490 Sunset Act application: See note following chapter digest. Effective date—2001 c 328: See note following RCW 39.10.210. Effective date—1997 c 376: See note following RCW 39.10.210. Referendum—Other legislation limited—Legislators’ personal intent not indicated—Reimbursements for election—Voters’ pamphlet, election requirements—1997 c 220: See RCW 36.102.800 through 36.102.803. Part headings not law—Severability—1997 c 220: See RCW 36.102.900 and 36.102.901. Part headings not law—Effective date—1995 3rd sp.s. c 1: See notes following RCW 82.14.0485. 39.10.500 Exemptions. Projects approved by the school district project review board established under *RCW 39.10.115, and the hospital district project review board established under *RCW 39.10.117 before July 1, 2007, may proceed without the approval of the committee established in RCW 39.10.240. The board may grant an exemption from any provision of chapter 494, Laws of 2007 for projects advertised before July 1, 2007. A public body seeking an exemption must submit a request in writing to the board no later than December 31, 2007. The board must respond to the request within sixty calendar days. [2007 c 494 § 502.] 39.10.500 *Reviser’s note: RCW 39.10.115 and 39.10.117 were repealed by 2007 c 494 § 509, effective July 1, 2007. Sunset Act application: See note following chapter digest. 39.10.510 Previously advertised projects. Projects using the design-build or general contractor/construction manager contracting procedures in which advertising for selection of a contractor has begun by July 1, 2007, but no contract has been awarded may proceed without seeking approval of the committee under the processes in RCW 39.10.270 and 39.10.280. [2007 c 494 § 503.] 39.10.510 Sunset Act application: See note following chapter digest. 39.10.900 Captions not law—1994 c 132. Captions as used in this act do not constitute any part of law. [1994 c 132 § 13.] 39.10.900 Sunset Act application: See note following chapter digest. [Title 39 RCW—page 25] 39.10.901 Title 39 RCW: Public Contracts and Indebtedness 39.10.901 Severability—1994 c 132. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1994 c 132 § 14.] 39.10.901 Sunset Act application: See note following chapter digest. 39.10.903 Part headings and captions not law—2007 c 494. Part headings and captions used in chapter 494, Laws of 2007 are not any part of the law. [2007 c 494 § 510.] 39.10.903 Sunset Act application: See note following chapter digest. 39.10.904 Effective dates—2007 c 494. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 2007, except for section 104 of this act, which takes effect immediately [May 15, 2007], and section 508 of this act, which takes effect June 30, 2007. [2007 c 494 § 512.] 39.10.904 39.10.905 Severability—2007 c 494. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [2007 c 494 § 513.] 39.10.905 Chapter 39.12 RCW PREVAILING WAGES ON PUBLIC WORKS Chapter 39.12 Sections 39.12.010 39.12.015 39.12.020 39.12.021 39.12.022 39.12.026 39.12.030 39.12.040 39.12.042 39.12.050 39.12.055 39.12.060 39.12.065 39.12.070 39.12.080 39.12.900 Definitions. Industrial statistician to make determinations of prevailing rate. Prevailing rate to be paid on public works and under public building service maintenance contracts—Posting of statement of intent—Exception. Prevailing rate to be paid on public works—Apprentice workers. Vocationally handicapped—Exemption from RCW 39.12.020—Procedure. Surveys—Applicability by county. Contract specifications must state minimum hourly rate— Stipulation for payment. Statement of intent to pay prevailing wages, affidavit of wages paid—Alternative procedure. Compliance with RCW 39.12.040—Liability of public agencies to workers, laborers, or mechanics. False statement or failure to file—Penalty—Unpaid wages lien against bond and retainage—Prohibitions on bidding on future contracts—Hearing. Prohibitions on bidding on future contracts. Director of labor and industries to arbitrate disputes. Investigation of complaints—Hearing—Remedies—Penalties. Fees authorized for approvals, certifications, and arbitrations. Public works administration account. Severability—1945 c 63. Enforcement of wage claims: RCW 49.48.040. Hours of labor on public works: Chapter 49.28 RCW. Workers’ compensation applicable to public works contracts: RCW 51.12.050, 51.12.070. 39.12.010 Definitions. (1) The "prevailing rate of wage", for the intents and purposes of this chapter, shall be the rate of hourly wage, usual benefits, and overtime paid in the locality, as hereinafter defined, to the majority of workers, laborers, or mechanics, in the same trade or occupation. 39.12.010 [Title 39 RCW—page 26] In the event that there is not a majority in the same trade or occupation paid at the same rate, then the average rate of hourly wage and overtime paid to such laborers, workers, or mechanics in the same trade or occupation shall be the prevailing rate. If the wage paid by any contractor or subcontractor to laborers, workers, or mechanics on any public work is based on some period of time other than an hour, the hourly wage for the purposes of this chapter shall be mathematically determined by the number of hours worked in such period of time. (2) The "locality" for the purposes of this chapter shall be the largest city in the county wherein the physical work is being performed. (3) The "usual benefits" for the purposes of this chapter shall include the amount of: (a) The rate of contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan, or program; and (b) The rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to workers, laborers, and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program which was communicated in writing to the workers, laborers, and mechanics affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance, or accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs, or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal, state, or local law to provide any of such benefits. (4) An "interested party" for the purposes of this chapter shall include a contractor, subcontractor, an employee of a contractor or subcontractor, an organization whose members’ wages, benefits, and conditions of employment are affected by this chapter, and the director of labor and industries or the director’s designee. [1989 c 12 § 6; 1985 c 15 § 1; 1965 ex.s. c 133 § 1; 1945 c 63 § 3; Rem. Supp. 1945 § 10322-22.] Severability—1985 c 15: See note following RCW 39.12.065. 39.12.015 Industrial statistician to make determinations of prevailing rate. All determinations of the prevailing rate of wage shall be made by the industrial statistician of the department of labor and industries. [1965 ex.s. c 133 § 2.] 39.12.015 39.12.020 Prevailing rate to be paid on public works and under public building service maintenance contracts—Posting of statement of intent—Exception. The hourly wages to be paid to laborers, workers, or mechanics, upon all public works and under all public building service maintenance contracts of the state or any county, municipality or political subdivision created by its laws, shall be not less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality within the state where such labor is performed. For a contract in excess of ten thousand dollars, a contractor required to pay the prevailing rate of wage shall post in a location readily visible to workers at the job site: PROVIDED, That on road construction, sewer 39.12.020 (2008 Ed.) Prevailing Wages on Public Works line, pipeline, transmission line, street, or alley improvement projects for which no field office is needed or established, a contractor may post the prevailing rate of wage statement at the contractor’s local office, gravel crushing, concrete, or asphalt batch plant as long as the contractor provides a copy of the wage statement to any employee on request: (1) A copy of a statement of intent to pay prevailing wages approved by the industrial statistician of the department of labor and industries under RCW 39.12.040; and (2) The address and telephone number of the industrial statistician of the department of labor and industries where a complaint or inquiry concerning prevailing wages may be made. This chapter shall not apply to workers or other persons regularly employed by the state, or any county, municipality, or political subdivision created by its laws. [2007 c 169 § 1; 1989 c 12 § 7; 1982 c 130 § 1; 1981 c 46 § 1; 1967 ex.s. c 14 § 1; 1945 c 63 § 1; Rem. Supp. 1945 § 10322-20.] 39.12.021 Prevailing rate to be paid on public works—Apprentice workers. Apprentice workers employed upon public works projects for whom an apprenticeship agreement has been registered and approved with the state apprenticeship council pursuant to chapter 49.04 RCW, must be paid at least the prevailing hourly rate for an apprentice of that trade. Any worker for whom an apprenticeship agreement has not been registered and approved by the state apprenticeship council shall be considered to be a fully qualified journey level worker, and, therefore, shall be paid at the prevailing hourly rate for journey level workers. [1989 c 12 § 8; 1963 c 93 § 1.] 39.12.021 39.12.022 Vocationally handicapped—Exemption from RCW 39.12.020—Procedure. The director of the department of labor and industries, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations provide for the employment of individuals whose earning capacity is impaired by physical or mental deficiency or injury, under special certificates issued by the director, at such wages lower than the prevailing rate applicable under RCW 39.12.020 and for such period as shall be fixed in such certificates. [1972 ex.s. c 91 § 1.] 39.12.022 39.12.026 Surveys—Applicability by county. (1) In establishing the prevailing rate of wage under RCW 39.12.010, 39.12.015, and 39.12.020, all data collected by the department may be used only in the county for which the work was performed. (2) This section applies only to prevailing wage surveys initiated on or after August 1, 2003. [2003 c 363 § 206.] 39.12.026 Findings—Intent—2003 c 363 §§ 201-206: See note following RCW 49.04.041. Part headings not law—Severability—2003 c 363: See notes following RCW 47.28.241. 39.12.030 Contract specifications must state minimum hourly rate—Stipulation for payment. The specifications for every contract for the construction, reconstruction, maintenance or repair of any public work to which the state or any county, municipality, or political subdivision created by its laws is a party, shall contain a provision stating the 39.12.030 (2008 Ed.) 39.12.040 hourly minimum rate of wage, not less than the prevailing rate of wage, which may be paid to laborers, workers, or mechanics in each trade or occupation required for such public work employed in the performance of the contract either by the contractor, subcontractor or other person doing or contracting to do the whole or any part of the work contemplated by the contract, and the contract shall contain a stipulation that such laborers, workers, or mechanics shall be paid not less than such specified hourly minimum rate of wage. [1989 c 12 § 9; 1945 c 63 § 2; Rem. Supp. 1945 § 10322-21.] 39.12.040 Statement of intent to pay prevailing wages, affidavit of wages paid—Alternative procedure. (1) Except as provided in subsection (2) of this section, before payment is made by or on behalf of the state, or any county, municipality, or political subdivision created by its laws, of any sum or sums due on account of a public works contract, it shall be the duty of the officer or person charged with the custody and disbursement of public funds to require the contractor and each and every subcontractor from the contractor or a subcontractor to submit to such officer a "Statement of Intent to Pay Prevailing Wages". For a contract in excess of ten thousand dollars, the statement of intent to pay prevailing wages shall include: (a) The contractor’s registration certificate number; and (b) The prevailing rate of wage for each classification of workers entitled to prevailing wages under RCW 39.12.020 and the estimated number of workers in each classification. Each statement of intent to pay prevailing wages must be approved by the industrial statistician of the department of labor and industries before it is submitted to said officer. Unless otherwise authorized by the department of labor and industries, each voucher claim submitted by a contractor for payment on a project estimate shall state that the prevailing wages have been paid in accordance with the prefiled statement or statements of intent to pay prevailing wages on file with the public agency. Following the final acceptance of a public works project, it shall be the duty of the officer charged with the disbursement of public funds, to require the contractor and each and every subcontractor from the contractor or a subcontractor to submit to such officer an "Affidavit of Wages Paid" before the funds retained according to the provisions of RCW 60.28.010 are released to the contractor. Each affidavit of wages paid must be certified by the industrial statistician of the department of labor and industries before it is submitted to said officer. (2) As an alternate to the procedures provided for in subsection (1) of this section, for public works projects of two thousand five hundred dollars or less and for projects where the limited public works process under RCW 39.04.155(3) is followed: (a) An awarding agency may authorize the contractor or subcontractor to submit the statement of intent to pay prevailing wages directly to the officer or person charged with the custody or disbursement of public funds in the awarding agency without approval by the industrial statistician of the department of labor and industries. The awarding agency shall retain such statement of intent to pay prevailing wages for a period of not less than three years. (b) Upon final acceptance of the public works project, the awarding agency shall require the contractor or subcon39.12.040 [Title 39 RCW—page 27] 39.12.042 Title 39 RCW: Public Contracts and Indebtedness tractor to submit an affidavit of wages paid. Upon receipt of the affidavit of wages paid, the awarding agency may pay the contractor or subcontractor in full, including funds that would otherwise be retained according to the provisions of RCW 60.28.010. Within thirty days of receipt of the affidavit of wages paid, the awarding agency shall submit the affidavit of wages paid to the industrial statistician of the department of labor and industries for approval. (c) A statement of intent to pay prevailing wages and an affidavit of wages paid shall be on forms approved by the department of labor and industries. (d) In the event of a wage claim and a finding for the claimant by the department of labor and industries where the awarding agency has used the alternative process provided for in subsection (2) of this section, the awarding agency shall pay the wages due directly to the claimant. If the contractor or subcontractor did not pay the wages stated in the affidavit of wages paid, the awarding agency may take action at law to seek reimbursement from the contractor or subcontractor of wages paid to the claimant, and may prohibit the contractor or subcontractor from bidding on any public works contract of the awarding agency for up to one year. (e) Nothing in this section shall be interpreted to allow an awarding agency to subdivide any public works project of more than two thousand five hundred dollars for the purpose of circumventing the procedures required by RCW 39.12.040(1). [2007 c 210 § 4; 1991 c 15 § 1; 1982 c 130 § 2; 1981 c 46 § 2; 1975-’76 2nd ex.s. c 49 § 1; 1965 ex.s. c 133 § 3; 1945 c 63 § 4; Rem. Supp. 1945 § 10322-23.] 39.12.042 39.12.042 Compliance with RCW 39.12.040—Liability of public agencies to workers, laborers, or mechanics. If any agency of the state, or any county, municipality, or political subdivision created by its laws shall knowingly fail to comply with the provisions of RCW 39.12.040 as now or hereafter amended, such agency of the state, or county, municipality, or political subdivision created by its laws, shall be liable to all workers, laborers, or mechanics to the full extent and for the full amount of wages due, pursuant to the prevailing wage requirements of RCW 39.12.020. [1993 c 404 § 3; 1989 c 12 § 11; 1975-’76 2nd ex.s. c 49 § 2.] Effective date—1993 c 404: See note following RCW 39.12.070. 39.12.050 39.12.050 False statement or failure to file—Penalty—Unpaid wages lien against bond and retainage— Prohibitions on bidding on future contracts—Hearing. (1) Any contractor or subcontractor who files a false statement or fails to file any statement or record required to be filed under this chapter and the rules adopted under this chapter, shall, after a determination to that effect has been issued by the director after hearing under chapter 34.05 RCW, forfeit as a civil penalty the sum of five hundred dollars for each false filing or failure to file, and shall not be permitted to bid, or have a bid considered, on any public works contract until the penalty has been paid in full to the director. The civil penalty under this subsection shall not apply to a violation determined by the director to be an inadvertent filing or reporting error. Civil penalties shall be deposited in the public works administration account. [Title 39 RCW—page 28] To the extent that a contractor or subcontractor has not paid wages at the rate due pursuant to RCW 39.12.020, and a finding to that effect has been made as provided by this subsection, such unpaid wages shall constitute a lien against the bonds and retainage as provided in RCW 18.27.040, 19.28.041, 39.08.010, and 60.28.010. (2) If a contractor or subcontractor is found to have violated the provisions of subsection (1) of this section for a second time within a five year period, the contractor or subcontractor shall be subject to the sanctions prescribed in subsection (1) of this section and shall not be allowed to bid on any public works contract for one year. The one year period shall run from the date of notice by the director of the determination of noncompliance. When an appeal is taken from the director’s determination, the one year period shall commence from the date of the final determination of the appeal. The director shall issue his or her findings that a contractor or subcontractor has violated the provisions of this subsection after a hearing held subject to the provisions of chapter 34.05 RCW. [2001 c 219 § 1; 1985 c 15 § 3; 1977 ex.s. c 71 § 1; 1973 c 120 § 1; 1945 c 63 § 5; Rem. Supp. 1945 § 10322-24.] Severability—1985 c 15: See note following RCW 39.12.065. 39.12.055 Prohibitions on bidding on future contracts. A contractor shall not be allowed to bid on any public works contract for one year from the date of a final determination that the contractor has committed any combination of two of the following violations or infractions within a five-year period: (1) Violated RCW 51.48.020(1) or 51.48.103; or (2) Committed an infraction or violation under chapter 18.27 RCW for performing work as an unregistered contractor. [2008 c 120 § 3.] 39.12.055 Conflict with federal requirements—Severability—2008 c 120: See notes following RCW 18.27.030. 39.12.060 Director of labor and industries to arbitrate disputes. Such contract shall contain a further provision that in case any dispute arises as to what are the prevailing rates of wages for work of a similar nature and such dispute cannot be adjusted by the parties in interest, including labor and management representatives, the matter shall be referred for arbitration to the director of the department of labor and industries of the state and his or her decision therein shall be final and conclusive and binding on all parties involved in the dispute. [1989 c 12 § 10; 1965 ex.s. c 133 § 4; 1945 c 63 § 6; Rem. Supp. 1945 § 10322-25.] 39.12.060 Arbitration of disputes: Chapter 49.08 RCW. Uniform arbitration act: Chapter 7.04A RCW. 39.12.065 Investigation of complaints—Hearing— Remedies—Penalties. (1) Upon complaint by an interested party, the director of labor and industries shall cause an investigation to be made to determine whether there has been compliance with this chapter and the rules adopted hereunder, and if the investigation indicates that a violation may have occurred, a hearing shall be held in accordance with chapter 34.05 RCW. The director shall issue a written determination including his or her findings after the hearing. A 39.12.065 (2008 Ed.) Prevailing Wages on Public Works judicial appeal from the director’s determination may be taken in accordance with chapter 34.05 RCW, with the prevailing party entitled to recover reasonable costs and attorneys fees. A complaint concerning nonpayment of the prevailing rate of wage shall be filed with the department of labor and industries no later than thirty days from the acceptance date of the public works project. The failure to timely file such a complaint shall not prohibit a claimant from pursuing a private right of action against a contractor or subcontractor for unpaid prevailing wages. The remedy provided by this section is not exclusive and is concurrent with any other remedy provided by law. (2) To the extent that a contractor or subcontractor has not paid the prevailing rate of wage under a determination issued as provided in subsection (1) of this section, the director shall notify the agency awarding the public works contract of the amount of the violation found, and the awarding agency shall withhold, or in the case of a bond, the director shall proceed against the bond in accordance with the applicable statute to recover, such amount from the following sources in the following order of priority until the total of such amount is withheld: (a) The retainage or bond in lieu of retainage as provided in RCW 60.28.010; (b) If the claimant was employed by the contractor or subcontractor on the public works project, the bond filed by the contractor or subcontractor with the department of labor and industries as provided in RCW 18.27.040 and 19.28.041; (c) A surety bond, or at the contractor’s or subcontractor’s option an escrow account, running to the director in the amount of the violation found; and (d) That portion of the progress payments which is properly allocable to the contractor or subcontractor who is found to be in violation of this chapter. Under no circumstances shall any portion of the progress payments be withheld that are properly allocable to a contractor, subcontractor, or supplier, that is not found to be in violation of this chapter. The amount withheld shall be released to the director to distribute in accordance with the director’s determination. (3) A contractor or subcontractor that is found, in accordance with subsection (1) of this section, to have violated the requirement to pay the prevailing rate of wage shall be subject to a civil penalty of not less than one thousand dollars or an amount equal to twenty percent of the total prevailing wage violation found on the contract, whichever is greater, and shall not be permitted to bid, or have a bid considered, on any public works contract until such civil penalty has been paid in full to the director. If a contractor or subcontractor is found to have participated in a violation of the requirement to pay the prevailing rate of wage for a second time within a five-year period, the contractor or subcontractor shall be subject to the sanctions prescribed in this subsection and as an additional sanction shall not be allowed to bid on any public works contract for two years. Civil penalties shall be deposited in the public works administration account. If a previous or subsequent violation of a requirement to pay a prevailing rate of wage under federal or other state law is found against the contractor or subcontractor within five years from a violation under this section, the contractor or subcontractor shall not be allowed to bid on any public works contract for two (2008 Ed.) 39.12.080 years. A contractor or subcontractor shall not be barred from bidding on any public works contract if the contractor or subcontractor relied upon written information from the department to pay a prevailing rate of wage that is later determined to be in violation of this chapter. The civil penalty and sanctions under this subsection shall not apply to a violation determined by the director to be an inadvertent filing or reporting error. To the extent that a contractor or subcontractor has not paid the prevailing wage rate under a determination issued as provided in subsection (1) of this section, the unpaid wages shall constitute a lien against the bonds and retainage as provided herein and in RCW 18.27.040, 19.28.041, 39.08.010, and 60.28.010. [2001 c 219 § 2; 1994 c 88 § 1; 1985 c 15 § 2.] Severability—1985 c 15: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 15 § 4.] 39.12.070 Fees authorized for approvals, certifications, and arbitrations. The department of labor and industries may charge fees to awarding agencies on public works for the approval of statements of intent to pay prevailing wages and the certification of affidavits of wages paid. The department may also charge fees to persons or organizations requesting the arbitration of disputes under RCW 39.12.060. The amount of the fees shall be established by rules adopted by the department under the procedures in the administrative procedure act, chapter 34.05 RCW. The fees shall apply to all approvals, certifications, and arbitration requests made after the effective date of the rules. All fees shall be deposited in the public works administration account. The department may refuse to arbitrate for contractors, subcontractors, persons, or organizations which have not paid the proper fees. The department may, if necessary, request the attorney general to take legal action to collect delinquent fees. The department shall set the fees permitted by this section at a level that generates revenue that is as near as practicable to the amount of the appropriation to administer this chapter, including, but not limited to, the performance of adequate wage surveys, and to investigate and enforce all alleged violations of this chapter, including, but not limited to, incorrect statements of intent to pay prevailing wage, incorrect certificates of affidavits of wages paid, and wage claims, as provided for in this chapter and chapters 49.48 and 49.52 RCW. However, the fees charged for the approval of statements of intent to pay prevailing wages and the certification of affidavits of wages paid shall be forty dollars. [2008 c 285 § 2; 2006 c 230 § 1; 1993 c 404 § 1; 1982 1st ex.s. c 38 § 1.] 39.12.070 Effective date—2008 c 285 § 2: "Section 2 of this act takes effect July 1, 2008." [2008 c 285 § 3.] Intent—Captions not law—2008 c 285: See notes following RCW 43.22.434. Effective date—2006 c 230: "This act takes effect July 1, 2007." [2006 c 230 § 3.] Effective date—1993 c 404: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993." [1993 c 404 § 4.] 39.12.080 Public works administration account. The public works administration account is created in the state 39.12.080 [Title 39 RCW—page 29] 39.12.900 Title 39 RCW: Public Contracts and Indebtedness treasury. The department of labor and industries shall deposit in the account all moneys received from fees or civil penalties collected under RCW 39.12.050, 39.12.065, and 39.12.070. Appropriations from the account may be made only for the purposes of administration of this chapter, including, but not limited to, the performance of adequate wage surveys, and for the investigation and enforcement of all alleged violations of this chapter as provided for in this chapter and chapters 49.48 and 49.52 RCW. [2006 c 230 § 2; 2001 c 219 § 3; 1993 c 404 § 2.] Effective date—2006 c 230: See note following RCW 39.12.070. Effective date—1993 c 404: See note following RCW 39.12.070. 39.12.900 Severability—1945 c 63. If any section or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. [1945 c 63 § 7.] 39.12.900 Chapter 39.19 RCW OFFICE OF MINORITY AND WOMEN’S BUSINESS ENTERPRISES Chapter 39.19 Sections 39.19.010 39.19.020 39.19.030 39.19.041 39.19.050 39.19.060 39.19.070 39.19.075 39.19.080 39.19.090 39.19.100 39.19.110 39.19.120 39.19.140 39.19.150 39.19.160 39.19.170 39.19.200 39.19.210 39.19.220 39.19.230 39.19.240 39.19.910 39.19.920 39.19.921 Intent. Definitions. Office of minority and women’s business enterprises—Director—Powers and duties. Ad hoc advisory committees. Standard clauses required in requests for proposals, advertisements, and bids. Compliance with public works and procurement goals—Plan to maximize opportunity for minority and women-owned businesses. Compliance with goals—Bidding procedures. Compliance with goals—Valuation of goods or services. Prohibited activities—Penalties. Compliance with chapter or contract—Remedies. Enforcement by attorney general—Injunctive relief. Enforcement by attorney general—Investigative powers. Certification of business enterprises. Implementation of statewide certification. Local government may petition for reconsideration of business certification. Local government responsible for monitoring compliance. Prequalification of minority and women-owned businesses— Waiver of performance bond. Minority and women’s business enterprises account—Created. Businesses using the office—Fees. Political subdivisions—Fees. State agencies and educational institutions—Fees. Linked deposit program—Compilation of information—Notification regarding enterprises no longer certified—Monitoring loans. Effective date—Applicability—1983 c 120. Severability—Conflict with federal requirements—1983 c 120. Severability—1987 c 328. Minority and women business development office: RCW 43.31.0925. 39.19.010 Intent. The legislature finds that minority and women-owned businesses are significantly under-represented and have been denied equitable competitive opportunities in contracting. It is the intent of this chapter to mitigate societal discrimination and other factors in participating in public works and in providing goods and services and to delineate a policy that an increased level of participation by 39.19.010 [Title 39 RCW—page 30] minority and women-owned and controlled businesses is desirable at all levels of state government. The purpose and intent of this chapter are to provide the maximum practicable opportunity for increased participation by minority and women-owned and controlled businesses in participating in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector. [1987 c 328 § 1; 1983 c 120 § 1.] 39.19.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Advisory committee" means the advisory committee on minority and women’s business enterprises. (2) "Broker" means a person that provides a bona fide service, such as professional, technical, consultant, brokerage, or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of a contract. (3) "Director" means the director of the office of minority and women’s business enterprises. (4) "Educational institutions" means the state universities, the regional universities, The Evergreen State College, and the community colleges. (5) "Goals" means annual overall agency goals, expressed as a percentage of dollar volume, for participation by minority and women-owned and controlled businesses and shall not be construed as a minimum goal for any particular contract or for any particular geographical area. It is the intent of this chapter that such overall agency goals shall be achievable and shall be met on a contract-by-contract or class-of-contract basis. (6) "Goods and/or services" includes professional services and all other goods and services. (7) "Office" means the office of minority and women’s business enterprises. (8) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons. (9) "Procurement" means the purchase, lease, or rental of any goods or services. (10) "Public works" means all work, construction, highway and ferry construction, alteration, repair, or improvement other than ordinary maintenance, which a state agency or educational institution is authorized or required by law to undertake. (11) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions. [1996 c 69 § 4; 1987 c 328 § 2; 1983 c 120 § 2.] 39.19.020 Intent—1996 c 69: See note following RCW 39.19.030. 39.19.030 Office of minority and women’s business enterprises—Director—Powers and duties. There is hereby created the office of minority and women’s business enterprises. The governor shall appoint a director for the office, subject to confirmation by the senate. The director may employ a deputy director and a confidential secretary, both of which shall be exempt under chapter 41.06 RCW, and 39.19.030 (2008 Ed.) Office of Minority and Women’s Business Enterprises such staff as are necessary to carry out the purposes of this chapter. The office shall consult with the minority and women’s business enterprises advisory committee to: (1) Develop, plan, and implement programs to provide an opportunity for participation by qualified minority and women-owned and controlled businesses in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector; (2) Develop a comprehensive plan insuring that qualified minority and women-owned and controlled businesses are provided an opportunity to participate in public contracts for public works and goods and services; (3) Identify barriers to equal participation by qualified minority and women-owned and controlled businesses in all state agency and educational institution contracts; (4) Establish annual overall goals for participation by qualified minority and women-owned and controlled businesses for each state agency and educational institution to be administered on a contract-by-contract basis or on a class-ofcontracts basis; (5) Develop and maintain a central minority and women’s business enterprise certification list for all state agencies and educational institutions. No business is entitled to certification under this chapter unless it meets the definition of small business concern as established by the office. All applications for certification under this chapter shall be sworn under oath; (6) Develop, implement, and operate a system of monitoring compliance with this chapter; (7) Adopt rules under chapter 34.05 RCW, the Administrative Procedure Act, governing: (a) Establishment of agency goals; (b) development and maintenance of a central minority and women’s business enterprise certification program, including a definition of "small business concern" which shall be consistent with the small business requirements defined under section 3 of the Small Business Act, 15 U.S.C. Sec. 632, and its implementing regulations as guidance; (c) procedures for monitoring and enforcing compliance with goals, regulations, contract provisions, and this chapter; (d) utilization of standard clauses by state agencies and educational institutions, as specified in RCW 39.19.050; and (e) determination of an agency’s or educational institution’s goal attainment consistent with the limitations of RCW 39.19.075; (8) Submit an annual report to the governor and the legislature outlining the progress in implementing this chapter; (9) Investigate complaints of violations of this chapter with the assistance of the involved agency or educational institution; and (10) Cooperate and act jointly or by division of labor with the United States or other states, and with political subdivisions of the state of Washington and their respective minority, socially and economically disadvantaged and women business enterprise programs to carry out the purposes of this chapter. However, the power which may be exercised by the office under this subsection permits investigation and imposition of sanctions only if the investigation relates to a possible violation of chapter 39.19 RCW, and not to violation of local ordinances, rules, regulations, however denominated, adopted by political subdivisions of the state. (2008 Ed.) 39.19.070 [1996 c 69 § 5; 1989 c 175 § 85; 1987 c 328 § 3; 1983 c 120 § 3.] Intent—1996 c 69: "It is the intent of the legislature to ensure that the counting of the dollar value of an agency’s or educational institution’s expenditures to certified minority and women’s business enterprises meaningfully reflects the actual financial participation of the certified businesses." [1996 c 69 § 3.] Effective date—1989 c 175: See note following RCW 34.05.010. 39.19.041 Ad hoc advisory committees. The director may establish ad hoc advisory committees, as necessary, to assist in the development of policies to carry out the purposes of this chapter. [1995 c 269 § 1302.] 39.19.041 Effective date—1995 c 269: See note following RCW 9.94A.850. Part headings not law—Severability—1995 c 269: See notes following RCW 13.40.005. 39.19.050 Standard clauses required in requests for proposals, advertisements, and bids. The rules adopted under RCW 39.19.030 shall include requirements for standard clauses in requests for proposals, advertisements, bids, or calls for bids, necessary to carry out the purposes of this chapter, which shall include notice of the statutory penalties under RCW 39.19.080 and 39.19.090 for noncompliance. [1983 c 120 § 5.] 39.19.050 39.19.060 Compliance with public works and procurement goals—Plan to maximize opportunity for minority and women-owned businesses. Each state agency and educational institution shall comply with the annual goals established for that agency or institution under this chapter for public works and procuring goods or services. This chapter applies to all public works and procurement by state agencies and educational institutions, including all contracts and other procurement under chapters 28B.10, 39.04, 39.29, 43.19, and 47.28 RCW. Each state agency shall adopt a plan, developed in consultation with the director and the advisory committee, to insure that minority and womenowned businesses are afforded the maximum practicable opportunity to directly and meaningfully participate in the execution of public contracts for public works and goods and services. The plan shall include specific measures the agency will undertake to increase the participation of certified minority and women-owned businesses. The office shall annually notify the governor, the state auditor, and the joint legislative audit and review committee of all agencies and educational institutions not in compliance with this chapter. [1996 c 288 § 28; 1993 c 512 § 9; 1983 c 120 § 6.] 39.19.060 Compliance with chapter 39.19 RCW: RCW 28B.10.023, 39.04.160, 39.29.050, 43.19.536, 47.28.030, 47.28.050, 47.28.090. 39.19.070 Compliance with goals—Bidding procedures. It is the intent of this chapter that the goals established under this chapter for participation by minority and womenowned and controlled businesses be achievable. If necessary to accomplish this intent, contracts may be awarded to the next lowest responsible bidder in turn, or all bids may be rejected and new bids obtained, if the lowest responsible bidder does not meet the goals established for a particular contract under this chapter. The dollar value of the total contract used for the calculation of the specific contract goal may be 39.19.070 [Title 39 RCW—page 31] 39.19.075 Title 39 RCW: Public Contracts and Indebtedness increased or decreased to reflect executed change orders. An apparent low-bidder must be in compliance with the contract provisions required under this chapter as a condition precedent to the granting of a notice of award by any state agency or educational institution. [1994 c 15 § 1; 1987 c 328 § 4; 1983 c 120 § 7.] 39.19.075 39.19.075 Compliance with goals—Valuation of goods or services. For purposes of measuring an agency’s or educational institution’s goal attainment, any regulations adopted under RCW 39.19.030(7)(e) must provide that if a certified minority and women’s business enterprise is a broker of goods or materials required under a contract, the contracting agency or educational institution may count only the dollar value of the fee or commission charged and not the value of goods or materials provided. The contracting agency or educational institution may, at its discretion, fix the dollar value of the fee or commission charged at either the actual dollar value of the fee or commission charged or at a standard percentage of the total value of the brokered goods, which percentage must reflect the fees or commissions generally paid to brokers for providing such services. [1996 c 69 § 6.] Intent—1996 c 69: See note following RCW 39.19.030. 39.19.080 39.19.080 Prohibited activities—Penalties. (1) A person, firm, corporation, business, union, or other organization shall not: (a) Prevent or interfere with a contractor’s or subcontractor’s compliance with this chapter, or any rule adopted under this chapter; (b) Submit false or fraudulent information to the state concerning compliance with this chapter or any such rule; (c) Fraudulently obtain, retain, attempt to obtain or retain, or aid another in fraudulently obtaining or retaining or attempting to obtain or retain certification as a minority or women’s business enterprise for the purpose of this chapter; (d) Knowingly make a false statement, whether by affidavit, verified statement, report, or other representation, to a state official or employee for the purpose of influencing the certification or denial of certification of any entity as a minority or women’s business enterprise; (e) Knowingly obstruct, impede, or attempt to obstruct or impede any state official or employee who is investigating the qualification of a business entity that has requested certification as a minority or women’s business enterprise; (f) Fraudulently obtain, attempt to obtain, or aid another person in fraudulently obtaining or attempting to obtain public moneys to which the person is not entitled under this chapter; or (g) Knowingly make false statements that any entity is or is not certified as a minority or women’s business enterprise for purposes of obtaining a contract governed by this chapter. (2) Any person or entity violating this chapter or any rule adopted under this chapter shall be subject to the penalties in RCW 39.19.090. Nothing in this section prevents the state agency or educational institution from pursuing such procedures or sanctions as are otherwise provided by statute, rule, or contract provision. [1987 c 328 § 5; 1983 c 120 § 8.] [Title 39 RCW—page 32] 39.19.090 39.19.090 Compliance with chapter or contract— Remedies. If a person, firm, corporation, or business does not comply with any provision of this chapter or with a contract requirement established under this chapter, the state may withhold payment, debar the contractor, suspend, or terminate the contract and subject the contractor to civil penalties of up to ten percent of the amount of the contract or up to five thousand dollars for each violation. The office shall adopt, by rule, criteria for the imposition of penalties under this section. Wilful repeated violations, exceeding a single violation, may disqualify the contractor from further participation in state contracts for a period of up to three years. An apparent lowbidder must be in compliance with the contract provisions required under this chapter as a condition precedent to the granting of a notice of award by any state agency or educational institution. The office shall follow administrative procedures under chapter 34.05 RCW in determining a violation and imposing penalties under this chapter. The procedures and sanctions in this section are not exclusive; nothing in this section prevents the state agency or educational institution administering the contracts from pursuing such procedures or sanctions as are otherwise provided by statute, rule, or contract provision. [1987 c 328 § 6; 1983 c 120 § 9.] 39.19.100 39.19.100 Enforcement by attorney general— Injunctive relief. The attorney general may bring an action in the name of the state against any person to restrain and prevent the doing of any act prohibited or declared to be unlawful in this chapter. The attorney general may, in the discretion of the court, recover the costs of the action including reasonable attorneys’ fees and the costs of investigation. [1987 c 328 § 12.] 39.19.110 39.19.110 Enforcement by attorney general—Investigative powers. (1) Whenever the attorney general believes that any person (a) may be in possession, custody, or control of any original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated, that the attorney general believes to be relevant to the subject matter of an investigation, the attorney general may require such person to answer written interrogatories or give oral testimony regarding a possible violation of this chapter, or of any provision of a contract as required by this chapter, or (b) may have knowledge of any information that the attorney general believes relevant to the subject matter of such an investigation, the attorney general may, before instituting a civil proceeding thereon, execute in writing and cause to be served upon such a person, a civil investigative demand requiring the person to produce the documentary material and permit inspection and copying, to answer in writing written interrogatories, to give oral testimony, or any combination of demands pertaining to the documentary material or information. Documents and information obtained under this section shall not be admissible in criminal prosecutions. (2) Each such demand shall: (2008 Ed.) Office of Minority and Women’s Business Enterprises (a) State the statute, the alleged violation of which is under investigation, and the general subject matter of the investigation; (b) State with reasonable specificity what documentary material is required, if the demand is for the production of documentary material; (c) Prescribe a return date governed by the court rules within which the documentary material is to be produced, the answers to written interrogatories are to be made, or a date, time, and place at which oral testimony is to be taken; and (d) Identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying, to whom answers to written interrogatories are to be made, or who are to conduct the examination for oral testimony. (3) No such demand may: (a) Contain any requirement that would be unreasonable or improper if contained in a subpoena duces tecum, a request for answers to written interrogatories, or a notice of deposition upon oral examination issued under the court rules of this state; or (b) Require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state. (4) Service of any such demand may be made by: (a) Delivering a duly executed copy thereof to the person to be served, or, if that person is not a natural person, to any officer or managing agent of the person to be served; (b) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or (c) Mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state, or, if that person has no place of business in this state, to the person’s principal office or place of business. (5)(a) Documentary material demanded under this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served, or at such other times and places as may be agreed upon by the person served and the attorney general; (b) Written interrogatories in a demand served under this section shall be answered in the same manner as provided in the civil rules for superior court; (c) The oral testimony of any person obtained pursuant to a demand served under this section shall be taken in the same manner as provided in the civil rules for superior court for the taking of depositions. In the course of the deposition, the assistant attorney general conducting the examination may exclude all persons other than the person being examined, the person’s counsel, and the officer before whom the testimony is to be taken from the place where the examination is held; (d) Any person compelled to appear pursuant to a demand for oral testimony under this section may be accompanied by counsel; (e) The oral testimony of any person obtained pursuant to a demand served under this section shall be taken in the county within which the person resides, is found, or transacts (2008 Ed.) 39.19.110 business, or in such other place as may be agreed upon between the person served and the attorney general. (6) No documentary material, answers to written interrogatories, or transcripts of oral testimony produced pursuant to a demand, or copies thereof, may, unless otherwise ordered by a superior court for good cause shown, be produced for inspection or copying by, nor may the contents thereof be disclosed to, anyone other than an authorized employee or agent of the attorney general, without the consent of the person who produced such material, answered written interrogatories, or gave oral testimony: PROVIDED, That under such reasonable terms and conditions as the attorney general shall prescribe, the copies of such documentary material, answers to written interrogatories, or transcripts of oral testimony shall be available for inspection and copying by the person who produced the material, answered written interrogatories, or gave oral testimony, or any duly authorized representative of that person. The attorney general or any assistant attorney general may use such copies of documentary material, answers to written interrogatories, or transcripts of oral testimony as he or she determines necessary to enforce this chapter, including presentation before any court: PROVIDED FURTHER, That any such material, answers to written interrogatories, or transcripts of oral testimony that contain material designated by the declarant to be trade secrets shall not be presented except with the approval of the court in which the action is pending after adequate notice to the person furnishing the material, answers to written interrogatories, or oral testimony. (7) At any time before the return date specified in the demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date for, or to modify or set aside a demand issued pursuant to subsection (1) of this section, stating good cause, may be filed in the superior court for Thurston county, or in any other county where the parties reside or are found. A petition, by the person on whom the demand is served, stating good cause, to require the attorney general or any person to perform any duty imposed by this section, and all other petitions in connection with a demand, may be filed in the superior court for Thurston county, or in the county where the parties reside. The court shall have jurisdiction to impose such sanctions as are provided for in the civil rules for superior court with respect to discovery motions. (8) Whenever any person fails to comply with any civil investigative demand for documentary material, answers to written interrogatories, or oral testimony duly served upon that person under this section, or whenever satisfactory copying or reproduction of any such material cannot be done and the person refuses to surrender such material, the attorney general may file, in the trial court of general jurisdiction in the county in which the person resides, is found, or transacts business, and serve upon that person a petition for an order of the court for the enforcement of this section, except that if such person transacts business in more than one county, the petition shall be filed in the county in which the person maintains his or her principal place of business or in such other county as may be agreed upon by the parties to the petition. Whenever any petition is filed under this section in the trial court of general jurisdiction in any county, the court shall have jurisdiction to hear and determine the matter so pre[Title 39 RCW—page 33] 39.19.120 Title 39 RCW: Public Contracts and Indebtedness sented and to enter such order or orders as may be required to carry into effect this section, and may impose such sanctions as are provided for in the civil rules for superior court with respect to discovery motions. [1987 c 328 § 13.] 39.19.120 Certification of business enterprises. The office shall be the sole authority to perform certification of minority business enterprises, socially and economically disadvantaged business enterprises, and women’s business enterprises throughout the state of Washington. Certification by the state office will allow these firms to participate in programs for these enterprises administered by the state of Washington, any city, town, county, special purpose district, public corporation created by the state, municipal corporation, or quasi-municipal corporation within the state of Washington. This statewide certification process will prevent duplication of effort, achieve efficiency, and permit local jurisdictions to further develop, implement, and/or enhance comprehensive systems of monitoring and compliance for contracts issued by their agencies. [1987 c 328 § 7.] 39.19.120 39.19.140 Implementation of statewide certification. Implementation of statewide certification shall be effective January 1, 1988, following consultation by the office with appropriate state and local officials who currently administer similar certification programs. Any business having been certified under any of the programs identified pursuant to *RCW 39.19.130 as a minority and women’s business enterprise shall be deemed certified by the office as of January 1, 1988. [1987 c 328 § 9.] 39.19.140 *Reviser’s note: RCW 39.19.130 expired June 30, 1991. 39.19.150 Local government may petition for reconsideration of business certification. (1) Any city, county, town, special purpose district, public corporation created by the state, municipal corporation, or quasi-municipal corporation having reason to believe that a particular minority and women’s business enterprise should not have been certified under RCW 39.19.140 may petition the office for reconsideration. The basis for the petition may be one or more of the following: (a) The office’s rules or regulations were improperly applied; or (b) Material facts relating to the minority and women’s business enterprise’s certification application to the office are untrue. (2) The petitioner shall carry the burden of persuasion. The affected minority or women’s business enterprise shall receive notice of the petition and an opportunity to respond. (3) After reviewing the information presented in support of and in opposition to the petition, the office shall issue a written decision, granting or denying the petition. If the office grants the petition, it may revoke, suspend, or refuse to renew the certification or impose sanctions under this chapter as appropriate. (4) The office’s decision on a petition is administratively final and the rights of appeal set out in the office regulations shall apply. A certification shall remain in effect while a petition is pending. [1987 c 328 § 10.] 39.19.150 [Title 39 RCW—page 34] 39.19.160 Local government responsible for monitoring compliance. Any city, town, county, special purpose district, public corporation created by the state, municipal corporation, or quasi-municipal corporation within the state of Washington utilizing the certification by the office retains the responsibility for monitoring compliance with the programs under its jurisdiction. The office shall not be responsible for enforcement of local ordinances, rules, or regulations, however titled. [1987 c 328 § 11.] 39.19.160 39.19.170 Prequalification of minority and womenowned businesses—Waiver of performance bond. (1) State agencies shall not require a performance bond for any public works project that does not exceed twenty-five thousand dollars awarded to a prequalified and certified minority or woman-owned business that has been prequalified as provided under subsection (2) of this section. (2) A limited prequalification questionnaire shall be required assuring: (a) That the bidder has adequate financial resources or the ability to secure such resources; (b) That the bidder can meet the performance schedule; (c) That the bidder is experienced in the type of work to be performed; and (d) That all equipment to be used is adequate and functioning and that all equipment operators are qualified to operate such equipment. [1993 c 512 § 10.] 39.19.170 39.19.200 39.19.200 Minority and women’s business enterprises account—Created. The minority and women’s business enterprises account is created in the custody of the state treasurer. All receipts from RCW 39.19.210, 39.19.220, and 39.19.230 shall be deposited in the account. Expenditures from the account may be used only for the purposes defraying all or part of the costs of the office in administering this chapter. Only the director or the director’s designee may authorize expenditures from the account. Moneys in the account may be spent only after appropriation. [1993 c 195 § 1.] Effective date of 1993 c 195—1993 sp.s. c 24: "Chapter 195, Laws of 1993 is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993." [1993 sp.s. c 24 § 930.] 39.19.210 Businesses using the office—Fees. The office may charge a reasonable fee or other appropriate charge, to be set by rule adopted by the office under chapter 34.05 RCW, to a business using the services of the office. [1993 c 195 § 2.] 39.19.210 Effective date of 1993 c 195—1993 sp.s. c 24: See note following RCW 39.19.200. 39.19.220 Political subdivisions—Fees. The office may charge to a political subdivision in this state a reasonable fee or other appropriate charge, to be set by rule adopted by the office under chapter 34.05 RCW, prorated on the relative benefit to the political subdivision, for the certification under this chapter of a business. [1993 c 195 § 3.] 39.19.220 Effective date of 1993 c 195—1993 sp.s. c 24: See note following RCW 39.19.200. (2008 Ed.) Purchase of Products and Services of Sheltered Workshops, DSHS Programs 39.19.230 State agencies and educational institutions—Fees. The office may charge to a state agency and educational institutions, as both are defined in RCW 39.19.020, a reasonable fee or other appropriate charge, to be set by rule adopted by the office under chapter 34.05 RCW, based upon the state agency’s or educational institution’s expenditure level of funds subject to the office. [1993 c 195 § 4.] 39.19.230 Effective date of 1993 c 195—1993 sp.s. c 24: See note following RCW 39.19.200. 39.23.020 the allocation of federal funds to the state the conflicting part of this chapter is hereby declared to be inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and such finding or determination shall not affect the operation of the remainder of this chapter in its application to the agencies concerned. The rules under this chapter shall meet federal requirements which are a necessary condition to the receipt of federal funds by the state. [1983 c 120 § 18.] 39.19.921 Severability—1987 c 328. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1987 c 328 § 17.] 39.19.921 39.19.240 Linked deposit program—Compilation of information—Notification regarding enterprises no longer certified—Monitoring loans. (1) The office shall, in consultation with the state treasurer and the department of community, trade, and economic development, compile information on minority and women’s business enterprises that have received financial assistance through a qualified public depositary under the provisions of RCW 43.86A.060. The information shall include, but is not limited to: (a) Name of the qualified public depositary; (b) Geographic location of the minority or women’s business enterprise; (c) Name of the minority or women’s business enterprise; (d) Date of last certification by the office and certification number; (e) Type of business; (f) Amount and term of the loan to the minority or women’s business enterprise; and (g) Other information the office deems necessary for the implementation of this section. (2) The office shall notify the state treasurer of minority or women’s business enterprises that are no longer certified under the provisions of this chapter. The written notification shall contain information regarding the reason for the decertification and information on financing provided to the minority or women’s business enterprise under RCW 43.86A.060. (3) The office shall, in consultation with the state treasurer and the department of community, trade, and economic development, monitor the performance of loans made to minority and women-owned business enterprises under RCW 43.86A.060. [2005 c 302 § 5; 2002 c 305 § 2.] 39.19.240 Intent—2005 c 302: See note following RCW 43.86A.030. 39.19.910 Effective date—Applicability—1983 c 120. (1) This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect July 1, 1983. (2) Contracts entered into before September 1, 1983, are not subject to this act. [1983 c 120 § 21.] 39.19.910 39.19.920 Severability—Conflict with federal requirements—1983 c 120. (1) If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. (2) If any part of this chapter is found to be in conflict with federal requirements which are a prescribed condition to 39.19.920 (2008 Ed.) Chapter 39.23 Chapter 39.23 RCW PURCHASE OF PRODUCTS AND SERVICES OF SHELTERED WORKSHOPS, DSHS PROGRAMS Sections 39.23.005 39.23.010 39.23.020 Declaration of intent. Definitions. Products and/or services, purchase of—Authorization—Determining fair market price. 39.23.005 Declaration of intent. It is the intent of the legislature to encourage municipalities to purchase products and/or services manufactured or provided by sheltered workshops and programs of the department of social and health services which operate facilities serving the handicapped and disadvantaged. [1975 c 20 § 1.] 39.23.005 39.23.010 Definitions. As used in RCW 39.23.005 and 39.23.020 the term "sheltered workshops" shall have the meaning ascribed to it by RCW 82.04.385 and "programs of the department of social and health services" shall mean the group training homes and day training centers defined in *RCW 72.33.800 and "municipality" shall have the meaning ascribed to it by RCW 39.04.010. [1975 c 20 § 2.] 39.23.010 *Reviser’s note: RCW 72.33.800 was repealed by 1988 c 176 § 1007. See Title 71A RCW. 39.23.020 Products and/or services, purchase of— Authorization—Determining fair market price. Municipalities are hereby authorized to purchase products and/or services manufactured or provided by sheltered workshops and programs of the department of social and health services. Such purchases shall be at the fair market price of such products and services as determined by a municipality. To determine the fair market price a municipality shall use the last comparable bid on the products and/or services or in the alternative the last price paid for the products and/or services. The increased cost of labor, materials, and other documented costs since the last comparable bid or the last price paid are additional cost factors which shall be considered in determining fair market price. Upon the establishment of the fair market price as provided for in this section a municipality is hereby empowered to negotiate directly with sheltered workshops or officials in charge of the programs of the department 39.23.020 [Title 39 RCW—page 35] Chapter 39.24 Title 39 RCW: Public Contracts and Indebtedness of social and health services for the purchase of the products or services. [1977 ex.s. c 10 § 1; 1975 c 20 § 3.] Chapter 39.24 Chapter 39.24 RCW PUBLIC PURCHASE PREFERENCES Sections 39.24.050 Purchase of paper products meeting certain specifications required. Powers and duties of division of purchasing: RCW 43.19.190. Purchase of correctional industries produced products: Chapter 72.60 RCW. Reciprocity in bidding: RCW 43.19.704. 39.24.050 Purchase of paper products meeting certain specifications required. A governmental unit shall, to the maximum extent economically feasible, purchase paper products which meet the specifications established by the department of general administration under RCW 43.19.538. [1982 c 61 § 3.] 39.24.050 Chapter 39.28 Chapter 39.28 RCW EMERGENCY PUBLIC WORKS Sections authorized or required by law to undertake or any lawful purpose for which any municipality is authorized or required by law to make an appropriation; (8) The term "contract" or "agreement" between a federal agency and a municipality shall include contracts and agreements in the customary form and shall also be deemed to include an allotment of funds, resolution, unilateral promise, or commitment by a federal agency by which it shall undertake to make a loan or grant, or both, upon the performance of specified conditions or compliance with rules and regulations theretofore or thereafter promulgated, prescribed or published by a federal agency. In the case of such an allotment of funds, resolution, unilateral promise, or commitment by a federal agency, the terms, conditions and restrictions therein set forth and the rules and regulations theretofore or thereafter promulgated, prescribed or published shall, for the purpose of RCW 39.28.010 through 39.28.030, be deemed to constitute covenants of such a contract which shall be performed by the municipality, if the municipality accepts any money from such federal agency. [1971 c 76 § 4; 1937 c 107 § 2; RRS § 10322A-8. Prior: 1935 c 107 § 2; RRS § 10322A2.] Short title: "This act may be cited as ’The Municipal Emergency Procedure Act (Revision of 1937)’." [1937 c 107 § 1; RRS § 10322A-7. Prior: 1935 c 107 § 1; RRS § 10322A-1.] Definitions. Powers conferred. Construction of act. Loans and grants to finance preliminary public works expenditures. Severability—1937 c 107: "If any provision of this act, or the application thereof to any person, body, or circumstances shall be held invalid, the remainder of the act and the application of each provision to persons, bodies, or circumstances other than those as to which it shall have been held invalid shall not be affected thereby." [1937 c 107 § 5; RRS § 10322A-11. Prior: 1935 c 107 § 5; RRS § 10322A-5.] 39.28.010 Definitions. The following terms wherever used or referred to in RCW 39.28.010 through 39.28.030 shall have the following meaning unless a different meaning appears from the context. (1) The term "municipality" shall mean the state, a county, city, town, district or other municipal corporation or political subdivision; (2) The term "governing body" shall mean the body, a board charged with the governing of the municipality; (3) The term "law" shall mean any act or statute, general, special or local, of this state, including, without being limited to, the charter of any municipality; (4) The term "bonds" shall mean bonds, interim receipts, certificates, or other obligations of a municipality issued or to be issued by its governing body for the purpose of financing or aiding in the financing of any work, undertaking or project for which a loan or grant, or both, has heretofore been made or may hereafter be made by any federal agency; (5) The term "Recovery Act" shall mean any acts of the congress of the United States of America to reduce and relieve unemployment or to provide for the construction of public works; (6) The term "federal agency" shall include the United States of America, the president of the United States of America, and any agency or instrumentality of the United States of America, which has heretofore been or hereafter may be designated, created or authorized to make loans or grants; (7) The term "public works project" shall mean any work, project, or undertaking which any municipality, is 39.28.020 Powers conferred. Every municipality shall have power and is hereby authorized: (1) To accept from any federal agency grants for or in aid of the construction of any public works project; (2) To make contracts and execute instruments containing such terms, provisions, and conditions as in the discretion of the governing body of the municipality may be necessary, proper or advisable for the purpose of obtaining grants or loans, or both, from any federal agency pursuant to or by virtue of the Recovery Act; to make all other contracts and execute all other instruments necessary, proper or advisable in or for the furtherance of any public works project and to carry out and perform the terms and conditions of all such contracts or instruments; (3) To subscribe to and comply with the Recovery Act and any rules and regulations made by any federal agency with regard to any grants or loans, or both, from any federal agency; (4) To perform any acts authorized under RCW 39.28.010 through 39.28.030 through or by means of its own officers, agents and employees, or by contracts with corporations, firms or individuals; (5) To award any contract for the construction of any public works project or part thereof upon any day at least fifteen days after one publication of a notice requesting bids upon such contract in a newspaper of general circulation in the municipality: PROVIDED, That in any case where publication of notice may be made in a shorter period of time under the provisions of existing statute or charter, such statute or charter shall govern; 39.28.010 39.28.020 39.28.030 39.28.040 39.28.010 [Title 39 RCW—page 36] 39.28.020 (2008 Ed.) Personal Service Contracts (6) To sell bonds at private sale to any federal agency without any public advertisement; (7) To issue interim receipts, certificates or other temporary obligations, in such form and containing such terms, conditions and provisions as the governing body of the municipality issuing the same may determine, pending the preparation or execution of definite bonds for the purpose of financing the construction of a public works project; (8) To issue bonds bearing the signatures of officers in office on the date of signing such bonds, notwithstanding that before delivery thereof any or all the persons whose signatures appear thereon shall have ceased to be the officers of the municipality issuing the same; (9) To include in the cost of a public works project which may be financed by the issuance of bonds: (a) Engineering, inspection, accounting, fiscal and legal expenses; (b) the cost of issuance of the bonds, including engraving, printing, advertising, and other similar expenses; (c) any interest costs during the period of construction of such public works project and for six months thereafter on money borrowed or estimated to be borrowed; (10) To stipulate in any contract for the construction of any public works project or part thereof the maximum hours that any laborer, worker, or mechanic should be permitted or required to work in any one calendar day or calendar week or calendar month, and the minimum wages to be paid to laborers, workers, or mechanics in connection with any public works project: PROVIDED, That no such stipulation shall provide for hours in excess of or for wages less than may now or hereafter be required by any other law; (11) To exercise any power conferred by RCW 39.28.010 through 39.28.030 for the purpose of obtaining grants or loans, or both, from any federal agency pursuant to or by virtue of the Recovery Act, independently or in conjunction with any other power or powers conferred by RCW 39.28.010 through 39.28.030 or heretofore or hereafter conferred by any other law; (12) To do all acts and things necessary or convenient to carry out the powers expressly given in RCW 39.28.010 through 39.28.030. [1989 c 12 § 12; 1937 c 107 § 3; RRS § 10322A-9. Prior: 1935 c 107 § 3; RRS § 10322A-3.] Short title—Severability—1937 c 107: See notes following RCW 39.28.010. 39.28.030 Construction of act. The powers conferred by RCW 39.28.010 through 39.28.030 shall be in addition and supplemental to and not in substitution for the powers now or hereafter conferred upon any municipality by any other law. RCW 39.28.010 through 39.28.030 is intended to aid in relieving the existing emergency by simplifying the procedure for the construction and financing of public works projects. RCW 39.28.010 through 39.28.030 is remedial in nature and the powers hereby granted shall be liberally construed. Nothing in RCW 39.28.010 through 39.28.030 shall be construed to authorize the issuance of bonds for any purpose by any municipality not authorized to issue bonds for such purpose under any other law heretofore or hereafter enacted, nor to dispense with the approval by a state department, board, officer or commission of a public works project where such approval is necessary under provisions of existing law: PROVIDED, That any port district which is now 39.28.030 (2008 Ed.) Chapter 39.29 indebted in an amount equal to or in excess of the indebtedness which may be contracted without a vote of the electors of the district is hereby authorized, for the purposes of RCW 39.28.010 through 39.28.030, through its governing body, to contract a further indebtedness and borrow money for port purposes and issue general bonds therefor, as in RCW 39.28.010 through 39.28.030 provided, in an additional amount not exceeding three-sixteenths of one percent of the value of the taxable property in the district, as the term "value of the taxable property" is defined in RCW 39.36.015, without the assent of the voters of the district: PROVIDED, FURTHER, That such additional indebtedness together with the existing indebtedness of such port district shall not exceed the total indebtedness permitted to be incurred by such port district under existing laws. [1970 ex.s. c 42 § 25; 1937 c 107 § 4; RRS § 10322A-10. Prior: 1935 c 107 § 4; RRS § 10322A-4.] Severability—Effective date—1970 ex.s. c 42: See notes following RCW 39.36.015. Short title—Severability—1937 c 107: See notes following RCW 39.28.010. 39.28.040 Loans and grants to finance preliminary public works expenditures. The state of Washington, its various counties, municipal corporations, quasi municipal corporations, cities, towns, villages and all other political subdivisions of the state are hereby authorized to accept from the federal government all loans, advances, grants in aid, or donations that may be made available by any federal agency for the purpose of financing the cost of architectural, engineering, and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other acts preliminary to the construction of public works. [1971 c 76 § 5; 1945 c 106 § 1; Rem. Supp. 1945 § 10322-45.] 39.28.040 Chapter 39.29 Chapter 39.29 RCW PERSONAL SERVICE CONTRACTS Sections 39.29.003 39.29.006 39.29.008 39.29.011 39.29.016 39.29.018 39.29.020 39.29.025 39.29.040 39.29.050 39.29.055 39.29.065 39.29.068 39.29.068 39.29.075 39.29.080 39.29.090 39.29.100 39.29.110 39.29.120 Intent. Definitions. Limitation on personal service contracts. Competitive solicitation required—Exceptions. Emergency contracts. Sole source contracts. Compliance—Expenditure of funds prohibited—Civil penalty. Amendments. Exemption of certain contracts. Contracts subject to requirements established under office of minority and women’s business enterprises. Contracts—Filing—Public inspection—Review and approval—Effective date. Office of financial management to establish procedures— Adjustment of dollar thresholds. Office of financial management to maintain list of contracts— Report to legislature (as amended by 1998 c 101). Office of financial management to maintain list of contracts (as amended by 1998 c 245). Summary reports on contracts. Data generated under personal services contracts. Contracts awarded by institutions of higher education. Contract management—Uniform guidelines—Guidebook. Use of guidelines—Report to office of financial management. Contract management—Training—Risk-based audits— Reports. [Title 39 RCW—page 37] 39.29.003 39.29.130 39.29.900 Title 39 RCW: Public Contracts and Indebtedness Contract audits and investigative findings—Report by state auditor and attorney general. Severability—1987 c 414. 39.29.003 Intent. It is the intent of this chapter to establish a policy of open competition for all personal service contracts entered into by state agencies, unless specifically exempted under this chapter. It is further the intent to provide for legislative and executive review of all personal service contracts, to centralize the location of information about personal service contracts for ease of public review, and ensure proper accounting of personal services expenditures. [1998 c 101 § 1; 1993 c 433 § 1; 1987 c 414 § 1; 1979 ex.s. c 61 § 1.] 39.29.003 39.29.006 Definitions. As used in this chapter: (1) "Agency" means any state office or activity of the executive and judicial branches of state government, including state agencies, departments, offices, divisions, boards, commissions, and educational, correctional, and other types of institutions. (2) "Client services" means services provided directly to agency clients including, but not limited to, medical and dental services, employment and training programs, residential care, and subsidized housing. (3) "Competitive solicitation" means a documented formal process providing an equal and open opportunity to qualified parties and culminating in a selection based on criteria which may include such factors as the consultant’s fees or costs, ability, capacity, experience, reputation, responsiveness to time limitations, responsiveness to solicitation requirements, quality of previous performance, and compliance with statutes and rules relating to contracts or services. (4) "Consultant" means an independent individual or firm contracting with an agency to perform a service or render an opinion or recommendation according to the consultant’s methods and without being subject to the control of the agency except as to the result of the work. The agency monitors progress under the contract and authorizes payment. (5) "Emergency" means a set of unforeseen circumstances beyond the control of the agency that either: (a) Present a real, immediate threat to the proper performance of essential functions; or (b) May result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken. (6) "Evidence of competition" means documentation demonstrating that the agency has solicited responses from multiple firms in selecting a consultant. (7) "Personal service" means professional or technical expertise provided by a consultant to accomplish a specific study, project, task, or other work statement. This term does not include purchased services as defined under subsection (9) of this section. This term does include client services. (8) "Personal service contract" means an agreement, or any amendment thereto, with a consultant for the rendering of personal services to the state which is consistent with RCW 41.06.142. (9) "Purchased services" means services provided by a vendor to accomplish routine, continuing and necessary functions. This term includes, but is not limited to, services acquired under RCW 43.19.190 or 43.105.041 for equipment maintenance and repair; operation of a physical plant; secu- rity; computer hardware and software maintenance; data entry; key punch services; and computer time-sharing, contract programming, and analysis. (10) "Sole source" means a consultant providing professional or technical expertise of such a unique nature that the consultant is clearly and justifiably the only practicable source to provide the service. The justification shall be based on either the uniqueness of the service or sole availability at the location required. [2002 c 354 § 235; 1998 c 101 § 2; 1993 c 433 § 2; 1987 c 414 § 2; 1981 c 263 § 1; 1979 ex.s. c 61 § 2.] Short title—Headings, captions not law—Severability—Effective dates—2002 c 354: See RCW 41.80.907 through 41.80.910. 39.29.006 [Title 39 RCW—page 38] 39.29.008 Limitation on personal service contracts. Personal services may be procured only to resolve a particular agency problem or issue or to expedite a specific project that is temporary in nature. An agency may procure personal services only if it documents that: (1) The service is critical to agency responsibilities or operations, or is mandated or authorized by the legislature; (2) Sufficient staffing or expertise is not available within the agency to perform the service; and (3) Other qualified public resources are not available to perform the service. [1993 c 433 § 6.] 39.29.008 39.29.011 Competitive solicitation required—Exceptions. All personal service contracts shall be entered into pursuant to competitive solicitation, except for: (1) Emergency contracts; (2) Sole source contracts; (3) Contract amendments; (4) Contracts between a consultant and an agency of less than twenty thousand dollars. However, contracts of five thousand dollars or greater but less than twenty thousand dollars shall have documented evidence of competition. Agencies shall not structure contracts to evade these requirements; and (5) Other specific contracts or classes or groups of contracts exempted from the competitive solicitation process by the director of the office of financial management when it has been determined that a competitive solicitation process is not appropriate or cost-effective. [1998 c 101 § 3; 1987 c 414 § 3.] 39.29.011 39.29.016 Emergency contracts. Emergency contracts shall be filed with the office of financial management and made available for public inspection within three working days following the commencement of work or execution of the contract, whichever occurs first. Documented justification for emergency contracts shall be provided to the office of financial management when the contract is filed. [1998 c 101 § 4; 1996 c 288 § 29; 1987 c 414 § 4.] 39.29.016 39.29.018 Sole source contracts. (1) Sole source contracts shall be filed with the office of financial management and made available for public inspection at least ten working days prior to the proposed starting date of the contract. Documented justification for sole source contracts shall be provided to the office of financial management when the con39.29.018 (2008 Ed.) Personal Service Contracts tract is filed. For sole source contracts of twenty thousand dollars or more, documented justification shall include evidence that the agency attempted to identify potential consultants by advertising through statewide or regional newspapers. (2) The office of financial management shall approve sole source contracts of twenty thousand dollars or more before any such contract becomes binding and before any services may be performed under the contract. These requirements shall also apply to sole source contracts of less than twenty thousand dollars if the total amount of such contracts between an agency and the same consultant is twenty thousand dollars or more within a fiscal year. Agencies shall ensure that the costs, fees, or rates negotiated in filed sole source contracts of twenty thousand dollars or more are reasonable. [1998 c 101 § 5; 1996 c 288 § 30; 1993 c 433 § 5; 1987 c 414 § 5.] 39.29.020 Compliance—Expenditure of funds prohibited—Civil penalty. No state officer or activity of state government subject to this chapter shall expend any funds for personal service contracts unless the agency has complied with the competitive procurement and other requirements of this chapter. The state officer or employee executing the personal service contracts shall be responsible for compliance with the requirements of this chapter. Failure to comply with the requirements of this chapter shall subject the state officer or employee to a civil penalty in the amount of three hundred dollars. A consultant who knowingly violates this chapter in seeking or performing work under a personal services contract shall be subject to a civil penalty of three hundred dollars or twenty-five percent of the amount of the contract, whichever is greater. The state auditor is responsible for auditing violations of this chapter. The attorney general is responsible for prosecuting violations of this chapter. [1987 c 414 § 6; 1974 ex.s. c 191 § 2.] 39.29.020 39.29.025 Amendments. (1) Substantial changes in either the scope of work specified in the contract or in the scope of work specified in the formal solicitation document must generally be awarded as new contracts. Substantial changes executed by contract amendments must be submitted to the office of financial management, and are subject to approval by the office of financial management. (2) An amendment or amendments to personal service contracts, if the value of the amendment or amendments, whether singly or cumulatively, exceeds fifty percent of the value of the original contract must be provided to the office of financial management. (3) The office of financial management shall approve amendments provided to it under this section before the amendments become binding and before services may be performed under the amendments. (4) The amendments must be filed with the office of financial management and made available for public inspection at least ten working days prior to the proposed starting date of services under the amendments. (5) The office of financial management shall approve amendments provided to it under this section only if they meet the criteria for approval of the amendments established 39.29.025 (2008 Ed.) 39.29.050 by the director of the office of financial management. [1998 c 101 § 6; 1996 c 288 § 31; 1993 c 433 § 3.] 39.29.040 Exemption of certain contracts. This chapter does not apply to: (1) Contracts specifying a fee of less than five thousand dollars if the total of the contracts from that agency with the contractor within a fiscal year does not exceed five thousand dollars; (2) Contracts awarded to companies that furnish a service where the tariff is established by the utilities and transportation commission or other public entity; (3) Intergovernmental agreements awarded to any governmental entity, whether federal, state, or local and any department, division, or subdivision thereof; (4) Contracts awarded for services to be performed for a standard fee, when the standard fee is established by the contracting agency or any other governmental entity and a like contract is available to all qualified applicants; (5) Contracts for services that are necessary to the conduct of collaborative research if prior approval is granted by the funding source; (6) Contracts for client services except as otherwise indicated in this chapter; (7) Contracts for architectural and engineering services as defined in RCW 39.80.020, which shall be entered into under chapter 39.80 RCW; (8) Contracts for the employment of expert witnesses for the purposes of litigation; (9) Contracts for bank supervision authorized under RCW 30.38.040; and (10) Contracts for interpreter services and interpreter brokerage services on behalf of limited-English speaking or sensory-impaired applicants and recipients of public assistance. [2002 c 260 § 11; 2002 c 200 § 2; 1998 c 101 § 7; 1996 c 2 § 19; 1995 c 80 § 1; 1987 c 414 § 7; 1986 c 33 § 3; 1979 ex.s. c 61 § 4.] 39.29.040 Reviser’s note: This section was amended by 2002 c 200 § 2 and by 2002 c 260 § 11, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Findings—2002 c 200: "The legislature finds that limited-English speaking and sensory-impaired applicants and recipients of public assistance often require interpreter services in order to communicate effectively with employees of the department of social and health services, medical professionals, and other social services personnel. The legislature further finds that interpreter services can be procured and delivered through a variety of different means. It is in the public’s interest for the department to deliver interpreter services, to the extent funds are available, by the means which it determines most cost-effectively ensure that limited-English speaking and sensory-impaired persons are able to communicate with department employees and service providers." [2002 c 200 § 1.] Severability—1996 c 2: See RCW 30.38.900. 39.29.050 Contracts subject to requirements established under office of minority and women’s business enterprises. All contracts entered into under this chapter on or after September 1, 1983, are subject to the requirements established under chapter 39.19 RCW. [1983 c 120 § 12.] 39.29.050 Effective date—Applicability—Severability—Conflict with federal requirements—1983 c 120: See RCW 39.19.910, 39.19.920. [Title 39 RCW—page 39] 39.29.055 Title 39 RCW: Public Contracts and Indebtedness 39.29.055 39.29.055 Contracts—Filing—Public inspection— Review and approval—Effective date. (1) Personal service contracts subject to competitive solicitation shall be (a) filed with the office of financial management and made available for public inspection; and (b) reviewed and approved by the office of financial management when those contracts provide services relating to management consulting, organizational development, marketing, communications, employee training, or employee recruiting. (2) Personal service contracts subject to competitive solicitation that provide services relating to management consulting, organizational development, marketing, communications, employee training, or employee recruiting shall be made available for public inspection at least ten working days before the proposed starting date of the contract. All other contracts shall be effective no earlier than the date they are filed with the office of financial management. [1998 c 101 § 8; 1996 c 288 § 32; 1993 c 433 § 7.] 39.29.065 39.29.065 Office of financial management to establish procedures—Adjustment of dollar thresholds. To implement this chapter, the director of the office of financial management shall establish procedures for the competitive solicitation and award of personal service contracts, recordkeeping requirements, and procedures for the reporting and filing of contracts. For reporting purposes, the director may establish categories for grouping of contracts. The procedures required under this section shall also include the criteria for amending personal service contracts. At the beginning of each biennium, the director may, by administrative policy, adjust the dollar thresholds prescribed in RCW 39.29.011, 39.29.018, 39.29.040, and *39.29.068 to levels not to exceed the percentage increase in the implicit price deflator. Adjusted dollar thresholds shall be rounded to the nearest five hundred dollar increment. [1998 c 101 § 9; 1987 c 414 § 8.] *Reviser’s note: The dollar thresholds prescribed in RCW 39.29.068 were amended by 1998 c 101 § 10, and removed by 1998 c 245 § 33. 39.29.068 39.29.068 Office of financial management to maintain list of contracts—Report to legislature (as amended by 1998 c 101). The office of financial management shall maintain a publicly available list of all personal service contracts entered into by state agencies during each fiscal year. The list shall identify the contracting agency, the contractor, the purpose of the contract, effective dates and periods of performance, the cost of the contract and funding source, any modifications to the contract, and whether the contract was competitively procured or awarded on a sole source basis. The office of financial management shall also ensure that state accounting definitions and procedures are consistent with RCW 39.29.006 and permit the reporting of personal services expenditures by agency and by type of service. Designations of type of services shall include, but not be limited to, management and organizational services, legal and expert witness services, financial services, computer and information services, social or technical research, marketing, communications, and employee training or recruiting services. The office of financial management shall report annually to the fiscal committees of the senate and house of representatives on sole source contracts filed under this chapter. The report shall describe: (1) The number and aggregate value of contracts for each category established in this section; (2) the number and aggregate value of contracts of ((two)) five thousand ((five hundred)) dollars or greater but less than ((ten)) twenty thousand dollars; (3) the number and aggregate value of contracts of ((ten)) twenty thousand dollars or greater; (4) the justification provided by agencies for the use of sole source contracts; and (5) any trends in the use of sole source contracts. [1998 c 101 § 10; 1993 c 433 § 8.] [Title 39 RCW—page 40] 39.29.068 39.29.068 Office of financial management to maintain list of contracts (as amended by 1998 c 245). The office of financial management shall maintain a publicly available list of all personal service contracts entered into by state agencies during each fiscal year. The list shall identify the contracting agency, the contractor, the purpose of the contract, effective dates and periods of performance, the cost of the contract and funding source, any modifications to the contract, and whether the contract was competitively procured or awarded on a sole source basis. The office of financial management shall also ensure that state accounting definitions and procedures are consistent with RCW 39.29.006 and permit the reporting of personal services expenditures by agency and by type of service. Designations of type of services shall include, but not be limited to, management and organizational services, legal and expert witness services, financial services, computer and information services, social or technical research, marketing, communications, and employee training or recruiting services. ((The office of financial management shall report annually to the fiscal committees of the senate and house of representatives on sole source contracts filed under this chapter. The report shall describe: (1) The number and aggregate value of contracts for each category established in this section; (2) the number and aggregate value of contracts of two thousand five hundred dollars or greater but less than ten thousand dollars; (3) the number and aggregate value of contracts of ten thousand dollars or greater; (4) the justification provided by agencies for the use of sole source contracts; and (5) any trends in the use of sole source contracts.)) [1998 c 245 § 33; 1993 c 433 § 8.] Reviser’s note: RCW 39.29.068 was amended twice during the 1998 legislative session, each without reference to the other. For rule of construction concerning sections amended more than once during the same legislative session, see RCW 1.12.025. 39.29.075 Summary reports on contracts. As requested by the legislative auditor, the office of financial management shall provide information on contracts filed under this chapter for use in preparation of summary reports on personal services contracts. [1987 c 414 § 9.] 39.29.075 39.29.080 Data generated under personal services contracts. A state agency may not enter into a personal services contract with a consultant under which the consultant could charge additional costs to the agency, the joint legislative audit and review committee, or the state auditor for access to data generated under the contract. A consultant under such contract shall provide access to data generated under the contract to the contracting agency, the joint legislative audit and review committee, and the state auditor. For purposes of this section, "data" includes all information that supports the findings, conclusions, and recommendations of the consultant’s reports, including computer models and the methodology for those models. [1997 c 373 § 1.] 39.29.080 39.29.090 Contracts awarded by institutions of higher education. Personal service contracts awarded by institutions of higher education from nonstate funds do not have to be filed in advance and approved by the office of financial management. Any such contract is subject to all other requirements of this chapter, including the requirements under *RCW 39.29.068 for annual reporting of personal service contracts to the office of financial management. [1998 c 101 § 11.] 39.29.090 *Reviser’s note: Annual reporting requirements under RCW 39.29.068 were amended by 1998 c 101 § 10, and removed by 1998 c 245 § 33. 39.29.100 Contract management—Uniform guidelines—Guidebook. (1) The office of financial management shall adopt uniform guidelines for the effective and efficient management of personal service contracts and client service 39.29.100 (2008 Ed.) Contracts—Indebtedness Limitations—Competitive Bidding Violations contracts by all state agencies. The guidelines must, at a minimum, include: (a) Accounting methods, systems, measures, and principles to be used by agencies and contractors; (b) Precontract procedures for selecting potential contractors based on their qualifications and ability to perform; (c) Incorporation of performance measures and measurable benchmarks in contracts, and the use of performance audits; (d) Uniform contract terms to ensure contract performance and compliance with state and federal standards; (e) Proper payment and reimbursement methods to ensure that the state receives full value for taxpayer moneys, including cost settlements and cost allowance; (f) Postcontract procedures, including methods for recovering improperly spent or overspent moneys for disallowance and adjustment; (g) Adequate contract remedies and sanctions to ensure compliance; (h) Monitoring, fund tracking, risk assessment, and auditing procedures and requirements; (i) Financial reporting, record retention, and record access procedures and requirements; (j) Procedures and criteria for terminating contracts for cause or otherwise; and (k) Any other subject related to effective and efficient contract management. (2) The office of financial management shall submit the guidelines required by subsection (1) of this section to the governor and the appropriate standing committees of the legislature no later than December 1, 2002. (3) The office of financial management shall publish a guidebook for use by state agencies containing the guidelines required by subsection (1) of this section. [2002 c 260 § 7.] Effective date—2002 c 260 § 7: "Section 7 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 29, 2002]." [2002 c 260 § 12.] Chapter 39.30 tain training on effective and efficient contract management under the guidelines established under RCW 39.29.100. State agencies shall require agency employees responsible for executing or managing personal service contracts and client service contracts to complete the training course to the satisfaction of the office of financial management. Beginning January 1, 2004, no agency employee may execute or manage personal service contracts or client service contracts unless the employee has completed the training course. Any request for exception to this requirement shall be submitted to the office of financial management in writing and shall be approved by the office of financial management prior to the employee executing or managing the contract. (2)(a) The office of financial management shall conduct risk-based audits of the contracting practices associated with individual personal service and client service contracts from multiple state agencies to ensure compliance with the guidelines established in RCW 39.29.110. The office of financial management shall conduct the number of audits deemed appropriate by the director of the office of financial management based on funding provided. (b) The office of financial management shall forward the results of the audits conducted under this section to the governor, the appropriate standing committees of the legislature, and the joint legislative audit and review committee. [2002 c 260 § 9.] Effective date—2002 c 260 §§ 8 and 9: See note following RCW 39.29.110. 39.29.130 Contract audits and investigative findings—Report by state auditor and attorney general. The state auditor and the attorney general shall annually by November 30th of each year provide a collaborative report of contract audit and investigative findings, enforcement actions, and the status of agency resolution to the governor and the policy and fiscal committees of the legislature. [2002 c 260 § 10.] 39.29.130 39.29.900 Severability—1987 c 414. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1987 c 414 § 13.] 39.29.900 39.29.110 Use of guidelines—Report to office of financial management. (1) A state agency entering into or renewing personal service contracts or client service contracts shall follow the guidelines required by RCW 39.29.100. (2) A state agency that has entered into or renewed personal service contracts or client service contracts during a calendar year shall, on or before January 1st of the following calendar year, provide the office of financial management with a report detailing the procedures the agency employed in entering into, renewing, and managing the contracts. (3) The provisions of this section apply to state agencies entering into or renewing contracts after January 1, 2003. [2002 c 260 § 8.] 39.29.110 Effective date—2002 c 260 §§ 8 and 9: "Sections 8 and 9 of this act take effect January 1, 2003." [2002 c 260 § 13.] 39.29.120 Contract management—Training—Riskbased audits—Reports. (1) The office of financial management shall provide a training course for agency personnel responsible for executing and managing personal service contracts and client service contracts. The course must con39.29.120 (2008 Ed.) Chapter 39.30 RCW CONTRACTS—INDEBTEDNESS LIMITATIONS— COMPETITIVE BIDDING VIOLATIONS Chapter 39.30 Sections 39.30.010 39.30.020 39.30.040 39.30.045 39.30.050 39.30.060 39.30.070 Executory conditional sales contracts for purchase of property—Limit on indebtedness—Election, when. Contracts requiring competitive bidding or procurement of services—Violations by municipal officer—Penalties. Purchases—Competitive bidding—Local governments may consider tax revenues—Purchase of recycled or reused materials or products. Purchase at auctions. Contracts to require use of paper products meeting certain specifications. Bids on public works—Identification, substitution of subcontractors. Exceptions—Contracts or development agreements related to stadium and exhibition center. [Title 39 RCW—page 41] 39.30.010 Title 39 RCW: Public Contracts and Indebtedness 39.30.010 Executory conditional sales contracts for purchase of property—Limit on indebtedness—Election, when. Any city or town or metropolitan park district or county or library district may execute an executory conditional sales contract with a county or counties, the state or any of its political subdivisions, the government of the United States, or any private party for the purchase of any real or personal property, or property rights in connection with the exercise of any powers or duties which they now or hereafter are authorized to exercise, if the entire amount of the purchase price specified in such contract does not result in a total indebtedness in excess of three-fourths of one percent of the value of the taxable property in such library district or the maximum amount of nonvoter-approved indebtedness authorized in such county, city, town, or metropolitan park district. If such a proposed contract would result in a total indebtedness in excess of this amount, a proposition in regard to whether or not such a contract may be executed shall be submitted to the voters for approval or rejection in the same manner that bond issues for capital purposes are submitted to the voters. Any city or town or metropolitan park district or county or library district may jointly execute contracts authorized by this section, if the entire amount of the purchase price does not result in a joint total indebtedness in excess of the nonvoter-approved indebtedness limitation of any city, town, metropolitan park district, county, or library district that participates in the jointly executed contract. The term "value of the taxable property" shall have the meaning set forth in RCW 39.36.015. [1997 c 361 § 2; 1970 ex.s. c 42 § 26; 1963 c 92 § 1; 1961 c 158 § 1.] 39.30.010 Severability—Effective date—1970 ex.s. c 42: See notes following RCW 39.36.015. 39.30.020 Contracts requiring competitive bidding or procurement of services—Violations by municipal officer—Penalties. In addition to any other remedies or penalties contained in any law, municipal charter, ordinance, resolution or other enactment, any municipal officer by or through whom or under whose supervision, in whole or in part, any contract is made in willful and intentional violation of any law, municipal charter, ordinance, resolution or other enactment requiring competitive bidding or procurement procedures for consulting, architectural, engineering, or other services, upon such contract shall be held liable to a civil penalty of not less than three hundred dollars and may be held liable, jointly and severally with any other such municipal officer, for all consequential damages to the municipal corporation. If, as a result of a criminal action, the violation is found to have been intentional, the municipal officer shall immediately forfeit his or her office. For purposes of this section, "municipal officer" means an "officer" or "municipal officer" as those terms are defined in RCW 42.23.020(2). [2008 c 130 § 2; 1974 ex.s. c 74 § 1.] 39.30.020 Contracts by cities or towns, bidding requirements: RCW 35.23.352. 39.30.040 Purchases—Competitive bidding—Local governments may consider tax revenues—Purchase of recycled or reused materials or products. (1) Whenever a unit of local government is required to make purchases from the lowest bidder or from the supplier offering the lowest price for the items desired to be purchased, the unit of local 39.30.040 [Title 39 RCW—page 42] government may, at its option when awarding a purchase contract, take into consideration tax revenue it would receive from purchasing the supplies, materials, or equipment from a supplier located within its boundaries. The unit of local government must award the purchase contract to the lowest bidder after such tax revenue has been considered. However, any local government may allow for preferential purchase of products made from recycled materials or products that may be recycled or reused. The tax revenues which units of local government may consider include sales taxes that the unit of local government imposes upon the sale of such supplies, materials, or equipment from the supplier to the unit of local government, and business and occupation taxes that the unit of local government imposes upon the supplier that are measured by the gross receipts of the supplier from such sale. Any unit of local government which considers tax revenues it would receive from the imposition of taxes upon a supplier located within its boundaries, shall also consider tax revenues it would receive from taxes it imposes upon a supplier located outside its boundaries. (2) As used in this section, the term "unit of local government" means any county, city, town, metropolitan municipal corporation, public transit benefit area, county transportation authority, or other municipal or quasi-municipal corporation authorized to impose sales and use taxes or business and occupation taxes. [1989 c 431 § 58; 1985 c 72 § 1.] Severability—1989 c 431: See RCW 70.95.901. 39.30.045 Purchase at auctions. Any municipality, as defined in RCW 39.04.010, may purchase any supplies, equipment, or materials at auctions conducted by the government of the United States or any agency thereof, any agency of the state of Washington, any municipality or other government agency, or any private party without being subject to public bidding requirements if the items can be obtained at a competitive price. [1993 c 198 § 4; 1991 c 363 § 112.] 39.30.045 Purpose—Captions not law—1991 c 363: See notes following RCW 2.32.180. 39.30.050 Contracts to require use of paper products meeting certain specifications. Any contract by a governmental unit shall require the use of paper products to the maximum extent economically feasible that meet the specifications established by the department of general administration under RCW 43.19.538. [1982 c 61 § 4.] 39.30.050 39.30.060 Bids on public works—Identification, substitution of subcontractors. (1) Every invitation to bid on a prime contract that is expected to cost one million dollars or more for the construction, alteration, or repair of any public building or public work of the state or a state agency or municipality as defined under RCW 39.04.010 or an institution of higher education as defined under RCW 28B.10.016 shall require each prime contract bidder to submit as part of the bid, or within one hour after the published bid submittal time, the names of the subcontractors with whom the bidder, if awarded the contract, will subcontract for performance of the work of: HVAC (heating, ventilation, and air conditioning); plumbing as described in chapter 18.106 RCW; and electrical as described in chapter 19.28 RCW, or to name 39.30.060 (2008 Ed.) Purchase of Federal Property itself for the work. The prime contract bidder shall not list more than one subcontractor for each category of work identified, unless subcontractors vary with bid alternates, in which case the prime contract bidder must indicate which subcontractor will be used for which alternate. Failure of the prime contract bidder to submit as part of the bid the names of such subcontractors or to name itself to perform such work or the naming of two or more subcontractors to perform the same work shall render the prime contract bidder’s bid nonresponsive and, therefore, void. (2) Substitution of a listed subcontractor in furtherance of bid shopping or bid peddling before or after the award of the prime contract is prohibited and the originally listed subcontractor is entitled to recover monetary damages from the prime contract bidder who executed a contract with the public entity and the substituted subcontractor but not from the public entity inviting the bid. It is the original subcontractor’s burden to prove by a preponderance of the evidence that bid shopping or bid peddling occurred. Substitution of a listed subcontractor may be made by the prime contractor for the following reasons: (a) Refusal of the listed subcontractor to sign a contract with the prime contractor; (b) Bankruptcy or insolvency of the listed subcontractor; (c) Inability of the listed subcontractor to perform the requirements of the proposed contract or the project; (d) Inability of the listed subcontractor to obtain the necessary license, bonding, insurance, or other statutory requirements to perform the work detailed in the contract; or (e) The listed subcontractor is barred from participating in the project as a result of a court order or summary judgment. (3) The requirement of this section to name the prime contract bidder’s proposed HVAC, plumbing, and electrical subcontractors applies only to proposed HVAC, plumbing, and electrical subcontractors who will contract directly with the prime contract bidder submitting the bid to the public entity. (4) This section does not apply to job order contract requests for proposals under *RCW 39.10.130. [2003 c 301 § 5; 2002 c 163 § 2; 1999 c 109 § 1; 1995 c 94 § 1; 1994 c 91 § 1; 1993 c 378 § 1.] *Reviser’s note: RCW 39.10.130 was recodified as RCW 39.10.420 pursuant to 2007 c 494 § 511, effective July 1, 2007. Intent—2002 c 163: "This act is intended to discourage bid shopping and bid peddling on Washington state public building and works projects." [2002 c 163 § 1.] Application—1994 c 91: "This act applies prospectively only and not retroactively. It applies only to invitations to bid issued on or after June 9, 1994." [1994 c 91 § 2.] Application—1993 c 378: "This act applies prospectively only and not retroactively. It applies only to invitations to bid issued on or after July 25, 1993." [1993 c 378 § 2.] 39.30.070 Exceptions—Contracts or development agreements related to stadium and exhibition center. This chapter does not apply to contracts entered into under RCW 36.102.060(4) or development agreements entered into under RCW 36.102.060(7). [1997 c 220 § 403 (Referendum Bill No. 48, approved June 17, 1997).] 39.30.070 Referendum—Other legislation limited—Legislators’ personal intent not indicated—Reimbursements for election—Voters’ pamphlet, (2008 Ed.) 39.32.010 election requirements—1997 c 220: See RCW 36.102.800 through 36.102.803. Part headings not law—Severability—1997 c 220: See RCW 36.102.900 and 36.102.901. Chapter 39.32 Chapter 39.32 RCW PURCHASE OF FEDERAL PROPERTY Sections 39.32.010 39.32.020 39.32.035 39.32.040 39.32.060 39.32.070 39.32.080 39.32.090 Definitions. Acquisition of surplus property authorized. Administration and use of general administration services account—Director’s authority to lease and acquire surplus property. Procedure to purchase—Requisitions—Price at which sold— Disposition of proceeds—Duties of governor. Rules and regulations. Purchase of property from federal government authorized— Authority to contract—Bidding—Payment. Purchase of property from federal government authorized— Inconsistent provisions suspended. Purchases by political subdivisions from or through United States authorized. Authority of counties to receive and distribute federal surplus commodities to needy: RCW 36.39.040. State purchasing and material control director: RCW 43.19.190. Public assistance recipients, certification of to receive federal surplus commodities: RCW 74.04.340 through 74.04.360. 39.32.010 Definitions. For the purposes of RCW 39.32.010 through 39.32.060: The term "eligible donee" means any public agency carrying out or promoting for the residents of a given political area one or more public purposes, such as conservation, economic development, education, parks and recreation, public health, and public safety; or nonprofit educational or public health institutions or organizations, such as medical institutions, hospitals, clinics, health centers, schools, colleges, universities, schools for the mentally retarded, schools for the physically handicapped, child care centers, radio and television stations licensed by the federal communications commission as educational radio or educational television stations, museums attended by the public, and public libraries serving all residents of a community, district, state, or region, and which are exempt from taxation under Section 501 of the Internal Revenue Code of 1954, for purposes of education or public health, including research for any such purpose. The term "public agency" means the state or any subdivision thereof, including any unit of local government, economic development district, emergency services organization, or any instrumentality created by compact or other agreement between the state and a political subdivision, or any Indian tribe, band, group, or community located on a state reservation. The term "surplus property" means any property, title to which is in the federal, state, or local government or any department or agency thereof, and which property is to be disposed of as surplus under any act of congress or the legislature or local statute, heretofore or hereafter enacted providing for such disposition. [1995 c 137 § 2; 1977 ex.s. c 135 § 1; 1967 ex.s. c 70 § 1; 1945 c 205 § 1; Rem. Supp. 1945 § 10322-60.] 39.32.010 [Title 39 RCW—page 43] 39.32.020 Title 39 RCW: Public Contracts and Indebtedness 39.32.020 Acquisition of surplus property authorized. The director of general administration is hereby authorized to purchase, lease or otherwise acquire from federal, state, or local government or any surplus property disposal agency thereof surplus property to be used in accordance with the provisions of this chapter. [1995 c 137 § 3; 1977 ex.s. c 135 § 2; 1967 ex.s. c 70 § 2; 1945 c 205 § 2; Rem. Supp. 1945 § 10322-61.] 39.32.020 Authority of superintendent of public instruction to acquire federal surplus or donated food commodities for school district hot lunch program: Chapter 28A.235 RCW. 39.32.035 Administration and use of general administration services account—Director’s authority to lease and acquire surplus property. The general administration services account shall be administered by the director of general administration and be used for the purchase, lease or other acquisition from time to time of surplus property from any federal, state, or local government surplus property disposal agency. The director may purchase, lease or acquire such surplus property on the requisition of an eligible donee and without such requisition at such time or times as he or she deems it advantageous to do so; and in either case he or she shall be responsible for the care and custody of the property purchased so long as it remains in his or her possession. [1998 c 105 § 3; 1995 c 137 § 4; 1977 ex.s. c 135 § 3; 1967 ex.s. c 70 § 4; 1945 c 205 § 4; Rem. Supp. 1945 § 10322-63. Formerly RCW 39.32.030, part.] 39.32.035 Effective date—1998 c 105: See note following RCW 43.19.025. 39.32.040 Procedure to purchase—Requisitions— Price at which sold—Disposition of proceeds—Duties of governor. In purchasing federal surplus property on requisition for any eligible donee the director may advance the purchase price thereof from the general administration services account, and he or she shall then in due course bill the proper eligible donee for the amount paid by him or her for the property plus a reasonable amount to cover the expense incurred by him or her in connection with the transaction. In purchasing surplus property without requisition, the director shall be deemed to take title outright and he or she shall then be authorized to resell from time to time any or all of such property to such eligible donees as desire to avail themselves of the privilege of purchasing. All moneys received in payment for surplus property from eligible donees shall be deposited by the director in the general administration services account. The director shall sell federal surplus property to eligible donees at a price sufficient only to reimburse the general administration services account for the cost of the property to the account, plus a reasonable amount to cover expenses incurred in connection with the transaction. Where surplus property is transferred to an eligible donee without cost to the transferee, the director may impose a reasonable charge to cover expenses incurred in connection with the transaction. The governor, through the director of general administration, shall administer the surplus property program in the state and shall perform or supervise all those functions with respect to the program, its agencies and instrumentalities. [1998 c 105 § 4; 1995 c 137 § 5; 1977 ex.s. c 135 § 4; 1967 ex.s. c 70 § 5; 1945 c 205 § 5; Rem. Supp. 1945 § 10322-64.] 39.32.040 Effective date—1998 c 105: See note following RCW 43.19.025. [Title 39 RCW—page 44] 39.32.060 Rules and regulations. The director of general administration shall have power to promulgate such rules and regulations as may be necessary to effectuate the purposes of RCW 39.32.010 through 39.32.060 and to carry out the provisions of the Federal Property and Administrative Services Act of 1949, as amended. [1977 ex.s. c 135 § 5; 1967 ex.s. c 70 § 6; 1945 c 205 § 7; Rem. Supp. 1945 § 10322-66.] 39.32.060 39.32.070 Purchase of property from federal government authorized—Authority to contract—Bidding—Payment. The state of Washington, through any department, division, bureau, board, commission, authority, or agency thereof, and all counties, cities, towns, and other political subdivisions thereof, is hereby authorized to enter into any contract with the United States of America, or with any agency thereof, for the purchase of any equipment, supplies, materials, or other property, without regard to the provisions of any law requiring the advertising, giving of notices, inviting or receiving bids, or which may require the delivery of purchases before payment, and to this end the executive head of any such department, division, bureau, board, commission, authority, or agency of the state, the county commissioners and the executive authority of any city or town, may designate by appropriate resolution or order any office holder or employee of its own to enter a bid or bids in its behalf at any sale of any equipment, supplies, material or other property real or personal owned by the United States of America or any agency thereof, and may authorize said person to make any down payment, or payment in full, required in connection with such bidding. [1945 c 180 § 1; Rem. Supp. 1945 § 10322-50. FORMER PART OF SECTION: 1945 c 88 § 1 now codified as RCW 39.32.090.] 39.32.070 39.32.080 Purchase of property from federal government authorized—Inconsistent provisions suspended. Any provisions of any law, charter, ordinance, resolution, bylaw, rule or regulation which are inconsistent with the provisions of RCW 39.32.070 and 39.32.080 are suspended to the extent such provisions are inconsistent herewith. [1945 c 180 § 2; Rem. Supp. 1945 § 10322-51.] 39.32.080 39.32.090 Purchases by political subdivisions from or through United States authorized. Whenever authorized by ordinance or resolution of its legislative authority any political subdivision of the state shall have power to purchase supplies, materials and/or equipment from or through the United States government without calling for bids, notwithstanding any law or charter provision to the contrary. [1945 c 88 § 1; Rem. Supp. 1945 § 10322-40. Formerly RCW 39.32.070, part.] 39.32.090 Chapter 39.33 Chapter 39.33 RCW INTERGOVERNMENTAL DISPOSITION OF PROPERTY Sections 39.33.010 39.33.020 Sale, exchange, transfer, lease of public property authorized— Section deemed alternative. Disposal of surplus property—Hearing—Notice. (2008 Ed.) Intergovernmental Disposition of Property 39.33.050 39.33.060 39.33.070 39.33.090 Public mass transportation systems—Contracts for services or use. Transfer of property or contract for use for park and recreational purposes. School districts and libraries—Disposal of obsolete or surplus reading materials—Procedures. Chapter not applicable to certain transfers of property. 39.33.010 Sale, exchange, transfer, lease of public property authorized—Section deemed alternative. (1) The state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political subdivision thereof, or the federal government, on such terms and conditions as may be mutually agreed upon by the proper authorities of the state and/or the subdivisions concerned. In addition, the state, or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease, or otherwise dispose of personal property, except weapons, to a foreign entity. (2) This section shall be deemed to provide an alternative method for the doing of the things authorized herein, and shall not be construed as imposing any additional condition upon the exercise of any other powers vested in the state, municipalities or political subdivisions. (3) No intergovernmental transfer, lease, or other disposition of property made pursuant to any other provision of law prior to May 23, 1972, shall be construed to be invalid solely because the parties thereto did not comply with the procedures of this section. [2003 c 303 § 1; 1981 c 96 § 1; 1973 c 109 § 1; 1972 ex.s. c 95 § 1; 1953 c 133 § 1.] 39.33.010 Effective date—2003 c 303: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [May 14, 2003]." [2003 c 303 § 2.] Exchange of county tax title lands with other governmental agencies: Chapter 36.35 RCW. 39.33.020 Disposal of surplus property—Hearing— Notice. Before disposing of surplus property with an estimated value of more than fifty thousand dollars, the state or a political subdivision shall hold a public hearing in the county where the property or the greatest portion thereof is located. At least ten days but not more than twenty-five days prior to the hearing, there shall be published a public notice of reasonable size in display advertising form, setting forth the date, time, and place of the hearing at least once in a newspaper of general circulation in the area where the property is located. A news release pertaining to the hearing shall be disseminated among printed and electronic media in the area where the property is located. If real property is involved, the public notice and news release shall identify the property using a description which can easily be understood by the public. If the surplus is real property, the public notice and news release shall also describe the proposed use of the lands involved. If there is a failure to substantially comply with the procedures set forth in this section, then the sale, transfer, exchange, lease, or other disposal shall be subject to being declared invalid by a court. Any such suit must be brought within one year from the date of the disposal agreement. [1995 c 123 § 1; 1981 c 96 § 2.] 39.33.070 39.33.050 Public mass transportation systems—Contracts for services or use. The legislative body of any municipal corporation, quasi municipal corporation or political subdivision of the state of Washington authorized to develop and operate a public mass transportation system shall have power to contract with the legislative body of any other municipal corporation, quasi municipal corporation or political subdivision of the state of Washington, or with any person, firm or corporation for public transportation services or for the use of all or any part of any publicly owned transportation facilities for such period and under such terms and conditions and upon such rentals, fees and charges as the legislative body operating such public transportation system may determine, and may pledge all or any portion of such rentals, fees and charges and all other revenue derived from the ownership or operation of publicly owned transportation facilities to pay and to secure the payment of general obligation bonds and/or revenue bonds of such municipality issued for the purpose of acquiring or constructing a public mass transportation system. [1969 ex.s. c 255 § 16.] 39.33.050 Construction—Severability—1969 ex.s. c 255: See notes following RCW 35.58.272. Public transportation systems: RCW 35.58.272 and 35.58.2721. 39.33.060 Transfer of property or contract for use for park and recreational purposes. Any governmental unit, as defined in RCW 36.93.020(1) as it now exists or is hereafter amended, may convey its real or personal property or any interest or right therein to, or contract for the use of such property by, the county or park and recreation district wherein such property is located for park or recreational purposes, by private negotiation and upon such terms and with such consideration as might be mutually agreed to by such governmental unit and the board of county commissioners or the park and recreation district board of commissioners. [1971 ex.s. c 243 § 7.] 39.33.060 Severability—1971 ex.s. c 243: See RCW 84.34.920. 39.33.020 (2008 Ed.) 39.33.070 School districts and libraries—Disposal of obsolete or surplus reading materials—Procedures. Any school district or educational service district, after complying with the requirements of RCW 28A.335.180, and any library, as defined in RCW 27.12.010, may dispose of surplus or obsolete books, periodicals, newspapers, and other reading materials as follows: (1) If the reading materials are estimated to have value as reading materials in excess of one thousand dollars, they shall be sold at public auction to the person submitting the highest reasonable bid following publication of notice of the auction in a newspaper with a general circulation in the library or school district. (2) If no reasonable bids are submitted under subsection (1) of this section or if the reading materials are estimated to have value as reading materials of one thousand dollars or less, the library or school district may directly negotiate the sale of the reading materials to a public or private entity. (3) If the reading materials are determined to have no value as reading materials or if no purchaser is found under subsection (2) of this section the reading materials may be recycled or destroyed. 39.33.070 [Title 39 RCW—page 45] 39.33.090 Title 39 RCW: Public Contracts and Indebtedness These methods for disposing of surplus or obsolete reading materials shall be in addition to any other method available to libraries and school districts for disposal of the property. [1990 c 33 § 567; 1979 ex.s. c 134 § 1.] Purpose—Statutory references—Severability—1990 c 33: See RCW 28A.900.100 through 28A.900.102. 39.33.090 Chapter not applicable to certain transfers of property. This chapter does not apply to transfers of property under *sections 1 and 2 of this act. [2006 c 35 § 7.] 39.33.090 *Reviser’s note: The reference to "sections 1 and 2 of this act" appears to be erroneous. Reference to "sections 2 and 3 of this act" codified as RCW 43.99C.070 and 43.83D.120 was apparently intended. Findings—2006 c 35: See note following RCW 43.99C.070. Chapter 39.34 Chapter 39.34 RCW INTERLOCAL COOPERATION ACT Sections 39.34.010 39.34.020 39.34.030 39.34.040 39.34.050 39.34.055 39.34.060 39.34.070 39.34.080 39.34.085 39.34.090 39.34.100 39.34.110 39.34.130 39.34.140 39.34.150 39.34.160 39.34.170 39.34.180 39.34.190 39.34.200 39.34.210 39.34.220 39.34.230 39.34.900 39.34.910 39.34.920 Declaration of purpose. Definitions. Joint powers—Agreements for joint or cooperative action, requisites, effect on responsibilities of component agencies—Financing of joint projects. Methods of filing agreements—Status of interstate agreements—Real party in interest—Actions. Duty to submit agreement to jurisdictional state officer or agency. Public purchase agreements with public benefit nonprofit corporations. Participating agencies may appropriate funds and provide personnel, property, and services. Authority of joint boards to receive loans or grants. Contracts to perform governmental activities which each contracting agency is authorized to perform. Agreements for operation of bus services. Agencies’ contracting authority regarding electricity, utilities’ powers, preserved. Powers conferred by chapter are supplemental. Powers otherwise prohibited by Constitutions or federal laws. Transactions between state agencies—Charging of costs— Regulation by director of financial management. Transactions between state agencies—Procedures for payments through transfers upon accounts. Transactions between state agencies—Advancements. Transactions between state agencies—Time limitation for expenditure of advance—Unexpended balance. Transactions between state agencies—Powers and authority cumulative. Criminal justice responsibilities—Interlocal agreements— Termination. Watershed management plan projects—Use of water-related revenues. Watershed management partnerships—Formation. Watershed management partnerships—Indebtedness—Bonds. Watershed management plans—Additional authority for implementation—Existing agreements not affected. Covered emergencies—Interlocal agreements for mutual aid and cooperation—Liability of state—Existing rights. Short title. Severability—1967 c 239. Effective date—1967 c 239. Hydroelectric resources, creation of separate legal authority by irrigation districts and cities, towns, or public utility districts: RCW 87.03.828. Irrigation districts, creation of legal authority to carry out powers: RCW 87.03.018. School district associations’ right to mortgage or convey money security interest in association property—Limitations: RCW 28A.335.100. School districts agreements with other governmental entities for transportation of students, the public or other noncommon school purposes— Limitations: RCW 28A.160.120. [Title 39 RCW—page 46] 39.34.010 Declaration of purpose. It is the purpose of this chapter to permit local governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby to provide services and facilities in a manner and pursuant to forms of governmental organization that will accord best with geographic, economic, population and other factors influencing the needs and development of local communities. [1967 c 239 § 1.] 39.34.010 Joint operations by municipal corporations and political subdivisions, deposit and control of funds: RCW 43.09.285. 39.34.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Public agency" means any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi municipal corporations, special purpose districts, and local service districts; any agency of the state government; any agency of the United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state. (2) "State" means a state of the United States. (3) "Watershed management partnership" means an interlocal cooperation agreement formed under the authority of RCW 39.34.200. (4) "WRIA" has the definition in RCW 90.82.020. [2003 c 327 § 3; 1985 c 33 § 1; 1979 c 36 § 1; 1977 ex.s. c 283 § 13; 1975 1st ex.s. c 115 § 1; 1973 c 34 § 1; 1971 c 33 § 1; 1969 c 88 § 1; 1969 c 40 § 1; 1967 c 239 § 3.] 39.34.020 Finding—Intent—2003 c 327: See note following RCW 39.34.190. Seve ra bili ty— 1977 e x.s. c 283 : Se e no te fo llo wing R CW 28A.310.010. 39.34.030 Joint powers—Agreements for joint or cooperative action, requisites, effect on responsibilities of component agencies—Financing of joint projects. (1) Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of the state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges and authority conferred by this chapter upon a public agency. (2) Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter, except that any such joint or cooperative action by public agencies which are educational service districts and/ or school districts shall comply with the provisions of RCW 28A.320.080. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force. (3) Any such agreement shall specify the following: (a) Its duration; 39.34.030 (2008 Ed.) Interlocal Cooperation Act (b) The precise organization, composition and nature of any separate legal or administrative entity created thereby together with the powers delegated thereto, provided such entity may be legally created. Such entity may include a nonprofit corporation organized pursuant to chapter 24.03 or 24.06 RCW whose membership is limited solely to the participating public agencies or a partnership organized pursuant to chapter 25.04 or 25.05 RCW whose partners are limited solely to participating public agencies, or a limited liability company organized under chapter 25.15 RCW whose membership is limited solely to participating public agencies, and the funds of any such corporation, partnership, or limited liability company shall be subject to audit in the manner provided by law for the auditing of public funds; (c) Its purpose or purposes; (d) The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget therefor; (e) The permissible method or methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon such partial or complete termination; and (f) Any other necessary and proper matters. (4) In the event that the agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, the agreement shall contain, in addition to provisions specified in subsection (3)(a), (c), (d), (e), and (f) of this section, the following: (a) Provision for an administrator or a joint board responsible for administering the joint or cooperative undertaking. In the case of a joint board, public agencies that are party to the agreement shall be represented; and (b) The manner of acquiring, holding and disposing of real and personal property used in the joint or cooperative undertaking. Any joint board is authorized to establish a special fund with a state, county, city, or district treasurer servicing an involved public agency designated "Operating fund of . . . . . . joint board". (5) No agreement made pursuant to this chapter relieves any public agency of any obligation or responsibility imposed upon it by law except that: (a) To the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made pursuant to this chapter, the performance may be offered in satisfaction of the obligation or responsibility; and (b) With respect to one or more public agencies purchasing or otherwise contracting through a bid, proposal, or contract awarded by another public agency or by a group of public agencies, any statutory obligation to provide notice for bids or proposals that applies to the public agencies involved is satisfied if the public agency or group of public agencies that awarded the bid, proposal, or contract complied with its own statutory requirements and either (i) posted the bid or solicitation notice on a web site established and maintained by a public agency, purchasing cooperative, or similar service provider, for purposes of posting public notice of bid or proposal solicitations, or (ii) provided an access link on the state’s web portal to the notice. (6) Financing of joint projects by agreement shall be as provided by law. [2008 c 198 § 2; 2004 c 190 § 1; 1992 c 161 (2008 Ed.) 39.34.055 § 4; 1990 c 33 § 568; 1981 c 308 § 2; 1972 ex.s. c 81 § 1; 1967 c 239 § 4.] Finding—2008 c 198: "The legislature finds that it is in the public interest for public utility districts to develop renewable energy projects to meet requirements enacted by the people in Initiative Measure No. 937 and goals of diversifying energy resource portfolios. By developing more efficient and cost-effective renewable energy projects, public utility districts will keep power costs as low as possible for their customers. Consolidating and clarifying statutory provisions governing various aspects of public utility district renewable energy project development will reduce planning time and expense to meet these objectives." [2008 c 198 § 1.] Intent—1992 c 161: See note following RCW 70.44.450. Purpose—Statutory references—Severability—1990 c 33: See RCW 28A.900.100 through 28A.900.102. Severability—1981 c 308: See note following RCW 28A.320.080. Joint operations by municipal corporations or political subdivisions, deposit and control of funds: RCW 43.09.285. 39.34.040 Methods of filing agreements—Status of interstate agreements—Real party in interest—Actions. Prior to its entry into force, an agreement made pursuant to this chapter shall be filed with the county auditor or, alternatively, listed by subject on a public agency’s web site or other electronically retrievable public source. In the event that an agreement entered into pursuant to this chapter is between or among one or more public agencies of this state and one or more public agencies of another state or of the United States the agreement shall have the status of an interstate compact, but in any case or controversy involving performance or interpretation thereof or liability thereunder, the public agencies party thereto shall be real parties in interest and the state may maintain an action to recoup or otherwise make itself whole for any damages or liability which it may incur by reason of being joined as a party therein. Such action shall be maintainable against any public agency or agencies whose default, failure of performance, or other conduct caused or contributed to the incurring of damage or liability by the state. [2006 c 32 § 1; 1995 c 22 § 1; 1992 c 161 § 5; 1967 c 239 § 5.] 39.34.040 Intent—1992 c 161: See note following RCW 70.44.450. 39.34.050 Duty to submit agreement to jurisdictional state officer or agency. In the event that an agreement made pursuant to this chapter shall deal in whole or in part with the provision of services or facilities with regard to which an officer or agency of the state government has constitutional or statutory powers of control, the agreement shall, as a condition precedent to its entry into force, be submitted to the state officer or agency having such power of control. The agreement shall be approved or disapproved by the state officer or agency with regard to matters within his, her, or its jurisdiction within ninety days after receipt of the agreement. If a state officer or agency fails to act within the ninety-day time limit, the agreement shall be deemed approved by that state officer or agency. [1992 c 161 § 6; 1967 c 239 § 6.] 39.34.050 Intent—1992 c 161: See note following RCW 70.44.450. 39.34.055 Public purchase agreements with public benefit nonprofit corporations. The office of state procurement within the department of general administration may enter into an agreement with a public benefit nonprofit corporation to allow the public benefit nonprofit corporation to 39.34.055 [Title 39 RCW—page 47] 39.34.060 Title 39 RCW: Public Contracts and Indebtedness participate in state contracts for purchases administered by the office of state procurement. Such agreement must comply with the requirements of RCW 39.34.030 through 39.34.050. For the purposes of this section "public benefit nonprofit corporation" means a public benefit nonprofit corporation as defined in RCW 24.03.005 that is receiving local, state, or federal funds either directly or through a public agency other than an Indian tribe or a political subdivision of another state. [1994 c 98 § 1.] 39.34.060 Participating agencies may appropriate funds and provide personnel, property, and services. Any public agency entering into an agreement pursuant to this chapter may appropriate funds and may sell, lease, give, or otherwise supply property, personnel, and services to the administrative joint board or other legal or administrative entity created to operate the joint or cooperative undertaking. [1992 c 161 § 7; 1967 c 239 § 7.] 39.34.060 Intent—1992 c 161: See note following RCW 70.44.450. 39.34.070 Authority of joint boards to receive loans or grants. Any joint board created pursuant to the provisions of this chapter is hereby authorized to accept loans or grants of federal, state or private funds in order to accomplish the purposes of this chapter provided each of the participating public agencies is authorized by law to receive such funds. [1967 c 239 § 8.] 39.34.070 39.34.080 Contracts to perform governmental activities which each contracting agency is authorized to perform. Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform: PROVIDED, That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties. [1967 c 239 § 9.] 39.34.080 39.34.085 Agreements for operation of bus services. In addition to the other powers granted by chapter 39.34 RCW, one or more cities or towns or a county, or any combination thereof, may enter into agreements with each other or with a public transportation agency of a contiguous state, or contiguous Canadian province, to allow a city or such other transportation agency to operate bus service for the transportation of the general public within the territorial boundaries of such city and/or county or to allow such city and/or county to operate such bus service within the jurisdiction of such other public agency when no such existing bus certificate of public convenience and necessity has been authorized by the Washington utilities and transportation commission: PROVIDED, HOWEVER, That such transportation may extend beyond the territorial boundaries of either party to the agreement if the agreement so provides, and if such service is not in conflict with existing bus service authorized by the Washington utilities and transportation commission. The provisions of this section shall be cumulative and nonexclusive and shall not affect any other right granted by this chapter or 39.34.085 [Title 39 RCW—page 48] any other provision of law. [1977 c 46 § 1; 1969 ex.s. c 139 § 1.] 39.34.090 Agencies’ contracting authority regarding electricity, utilities’ powers, preserved. Nothing in this chapter shall be construed to increase or decrease existing authority of any public agency of this state to enter into agreements or contracts with any other public agency of this state or of any other state or the United States with regard to the generation, transmission, or distribution of electricity or the existing powers of any private or public utilities. [1967 c 239 § 10.] 39.34.090 39.34.100 Powers conferred by chapter are supplemental. The powers and authority conferred by this chapter shall be construed as in addition and supplemental to powers or authority conferred by any other law, and nothing contained herein shall be construed as limiting any other powers or authority of any public agency. [1967 c 239 § 11.] 39.34.100 39.34.110 Powers otherwise prohibited by Constitutions or federal laws. No power, privilege, or other authority shall be exercised under this chapter where prohibited by the state Constitution or the Constitution or laws of the federal government. [1967 c 239 § 12.] 39.34.110 39.34.130 Transactions between state agencies— Charging of costs—Regulation by director of financial management. Except as otherwise provided by law, the full costs of a state agency incurred in providing services or furnishing materials to or for another agency under chapter 39.34 RCW or any other statute shall be charged to the agency contracting for such services or materials and shall be repaid and credited to the fund or appropriation against which the expenditure originally was charged. Amounts representing a return of expenditures from an appropriation shall be considered as returned loans of services or of goods, supplies or other materials furnished, and may be expended as part of the original appropriation to which they belong without further or additional appropriation. Such interagency transactions shall be subject to regulation by the director of financial management, including but not limited to provisions for the determination of costs, prevention of interagency contract costs beyond those which are fully reimbursable, disclosure of reimbursements in the governor’s budget and such other requirements and restrictions as will promote more economical and efficient operations of state agencies. Except as otherwise provided by law, this section shall not apply to the furnishing of materials or services by one agency to another when other funds have been provided specifically for that purpose pursuant to law. [1979 c 151 § 45; 1969 ex.s. c 61 § 1.] 39.34.130 Duty to submit agreement of jurisdictional state officer or agency: RCW 39.34.050. 39.34.140 Transactions between state agencies—Procedures for payments through transfers upon accounts. The director of financial management may establish procedures whereby some or all payments between state agencies may be made by transfers upon the accounts of the state trea39.34.140 (2008 Ed.) Interlocal Cooperation Act 39.34.190 39.34.150 Transactions between state agencies— Advancements. State agencies are authorized to advance funds to defray charges for materials to be furnished or services to be rendered by other state agencies. Such advances shall be made only upon the approval of the director of financial management, or his order made pursuant to an appropriate regulation requiring advances in certain cases. An advance shall be made from the fund or appropriation available for the procuring of such services or materials, to the state agency which is to perform the services or furnish the materials, in an amount no greater than the estimated charges therefor. [1979 c 151 § 47; 1969 ex.s. c 61 § 3.] 39.34.160 Transactions between state agencies— Time limitation for expenditure of advance—Unexpended balance. An advance made under RCW 39.34.130 through 39.34.150 from appropriated funds shall be available for expenditure for no longer than the period of the appropriation from which it was made. When the actual costs of materials and services have been finally determined, and in no event later than the lapsing of the appropriation, any unexpended balance of the advance shall be returned to the agency for credit to the fund or account from which it was made. [1969 ex.s. c 61 § 4.] (3) If an agreement as to the levels of compensation within an interlocal agreement or contract for gross misdemeanor and misdemeanor services cannot be reached between a city and county, then either party may invoke binding arbitration on the compensation issued by notice to the other party. In the case of establishing initial compensation, the notice shall request arbitration within thirty days. In the case of nonrenewal of an existing contract or interlocal agreement, the notice must be given one hundred twenty days prior to the expiration of the existing contract or agreement and the existing contract or agreement remains in effect until a new agreement is reached or until an arbitration award on the matter of fees is made. The city and county each select one arbitrator, and the initial two arbitrators pick a third arbitrator. (4) A city or county that wishes to terminate an agreement for the provision of court services must provide written notice of the intent to terminate the agreement in accordance with RCW 3.50.810 and 35.20.010. (5) For cities or towns that have not adopted, in whole or in part, criminal code or ordinance provisions related to misdemeanor and gross misdemeanor crimes as defined by state law, this section shall have no application until July 1, 1998. [2001 c 68 § 4; 1996 c 308 § 1.] Effective date—1996 c 308: "This act shall take effect January 1, 1997." [1996 c 308 § 2.] surer in lieu of making such payments by warrant or check. Such procedures, when established, shall include provision for corresponding entries to be made in the accounts of the affected agencies. [1979 c 151 § 46; 1969 ex.s. c 61 § 2.] 39.34.150 39.34.160 39.34.170 Transactions between state agencies— Powers and authority cumulative. The powers and authority conferred by RCW 39.34.130 through 39.34.160 shall be construed as in addition and supplemental to powers or authority conferred by any other law, and not to limit any other powers or authority of any public agency expressly granted by any other statute. [1969 ex.s. c 61 § 5.] 39.34.170 39.34.180 Criminal justice responsibilities—Interlocal agreements—Termination. (1) Each county, city, and town is responsible for the prosecution, adjudication, sentencing, and incarceration of misdemeanor and gross misdemeanor offenses committed by adults in their respective jurisdictions, and referred from their respective law enforcement agencies, whether filed under state law or city ordinance, and must carry out these responsibilities through the use of their own courts, staff, and facilities, or by entering into contracts or interlocal agreements under this chapter to provide these services. Nothing in this section is intended to alter the statutory responsibilities of each county for the prosecution, adjudication, sentencing, and incarceration for not more than one year of felony offenders, nor shall this section apply to any offense initially filed by the prosecuting attorney as a felony offense or an attempt to commit a felony offense. (2) The following principles must be followed in negotiating interlocal agreements or contracts: Cities and counties must consider (a) anticipated costs of services; and (b) anticipated and potential revenues to fund the services, including fines and fees, criminal justice funding, and state-authorized sales tax funding levied for criminal justice purposes. 39.34.180 (2008 Ed.) 39.34.190 Watershed management plan projects— Use of water-related revenues. (1) The legislative authority of a city or county and the governing body of any special purpose district enumerated in subsection (2) of this section may authorize up to ten percent of its water-related revenues to be expended in the implementation of watershed management plan projects or activities that are in addition to the county’s, city’s, or district’s existing water-related services or activities. Such limitation on expenditures shall not apply to water-related revenues of a public utility district organized according to Title 54 RCW. Water-related revenues include rates, charges, and fees for the provision of services relating to water supply, treatment, distribution, and management generally, and those general revenues of the local government that are expended for water management purposes. A local government may not expend for this purpose any revenues that were authorized by voter approval for other specified purposes or that are specifically dedicated to the repayment of municipal bonds or other debt instruments. (2) The following special purpose districts may exercise the authority provided by this section: (a) Water districts, sewer districts, and water-sewer districts organized under Title 57 RCW; (b) Public utility districts organized under Title 54 RCW; (c) Irrigation, reclamation, conservation, and similar districts organized under Titles 87 and 89 RCW; (d) Port districts organized under Title 53 RCW; (e) Diking, drainage, and similar districts organized under Title 85 RCW; (f) Flood control and similar districts organized under Title 86 RCW; (g) Lake or beach management districts organized under chapter 36.61 RCW; (h) Aquifer protection areas organized under chapter 36.36 RCW; and 39.34.190 [Title 39 RCW—page 49] 39.34.200 Title 39 RCW: Public Contracts and Indebtedness (i) Shellfish protection districts organized under chapter 90.72 RCW. (3) The authority for expenditure of local government revenues provided by this section shall be applicable broadly to the implementation of watershed management plans addressing water supply, water transmission, water quality treatment or protection, or any other water-related purposes. Such plans include but are not limited to plans developed under the following authorities: (a) Watershed plans developed under chapter 90.82 RCW; (b) Salmon recovery plans developed under chapter 77.85 RCW; (c) Watershed management elements of comprehensive land use plans developed under the growth management act, chapter 36.70A RCW; (d) Watershed management elements of shoreline master programs developed under the shoreline management act, chapter 90.58 RCW; (e) Nonpoint pollution action plans developed under the Puget Sound water quality management planning authorities of chapter 90.71 RCW and chapter 400-12 WAC; (f) Other comprehensive management plans addressing watershed health at a WRIA level or sub-WRIA basin drainage level; (g) Coordinated water system plans under chapter 70.116 RCW and similar regional plans for water supply; and (h) Any combination of the foregoing plans in an integrated watershed management plan. (4) The authority provided by this section to expend revenues for watershed management plan implementation shall be construed broadly to include, but not be limited to: (a) The coordination and oversight of plan implementation, including funding a watershed management partnership for this purpose; (b) Technical support, monitoring, and data collection and analysis; (c) The design, development, construction, and operation of projects included in the plan; and (d) Conducting activities and programs included as elements in the plan. [2008 c 301 § 26; 2003 c 327 § 2.] Finding—Intent—2003 c 327: "The legislature finds that throughout Washington state there are many active efforts to protect, manage, and restore watersheds. The state’s river systems provide a variety of benefits for society’s many needs, so efforts to protect these watersheds should reflect the diversity of social, environmental, and economic factors that make the state unique. Yet, there is a conflict between the natural flow of river systems and the way watersheds are governed. From a hydrological standpoint, a watershed is a single, integrated system. But these systems usually flow through a number of cities, counties, and other municipalities as they move from their source to the sea. As a result, many are subject to the full range of management interests, including multiple government entities with jurisdiction over water. In many cases, the political boundaries of government do not align with the hydrological boundaries of watersheds and may actually hinder the implementation of coordinated, cooperative plans. Cooperative watershed management actions by local governments, special districts, and utilities can help maintain healthy watershed function and support the beneficial use of water by these entities and protect the quality of the resource that they use or affect. By participating in cooperative watershed management actions, local governments, special districts, and utilities are acting in the public interest and in a manner that is intended to sustain maximum beneficial use and high quality of water over time and to maintain the services that these entities provide. Therefore, it is the intent of this act to remove statutory barriers that [Title 39 RCW—page 50] may prevent local governments from working together in the creation and implementation of cooperative, coordinated watershed plans. In addition, it is the further intent of this act to provide additional authorities to assist in such implementation." [2003 c 327 § 1.] 39.34.200 Watershed management partnerships— Formation. Any two or more public agencies may enter into agreements with one another to form a watershed management partnership for the purpose of implementing any portion or all elements of a watershed management plan, including the coordination and oversight of plan implementation. The plan may be any plan or plan element described in RCW 39.34.190(3). The watershed partnership agreement shall include the provisions required of all interlocal agreements under RCW 39.34.030(3). The agreement shall be filed pursuant to RCW 39.34.040 with the county auditor of each county lying within the geographical watershed area to be addressed by the partnership. The public agencies forming the partnership shall designate a treasurer for the deposit, accounting, and handling of the funds of the partnership. The treasurer shall be either a county treasurer or a city treasurer of a county or city participating in the agreement to form the partnership. [2003 c 327 § 4.] 39.34.200 Finding—Intent—2003 c 327: See note following RCW 39.34.190. 39.34.210 Watershed management partnerships— Indebtedness—Bonds. Where a watershed management partnership formed under the authority of RCW 39.34.200 establishes a separate legal entity to conduct the cooperating undertaking of the partnership, such legal entity is authorized for the purpose of carrying out such undertaking to contract indebtedness and to issue and sell general obligation bonds pursuant to and in the manner provided for general county bonds in chapters 36.67 and 39.46 RCW and other applicable statutes, and to issue revenue bonds pursuant to and in the manner provided for revenue bonds in chapter 36.67 RCW and other applicable statutes. The joint board established by the partnership agreement shall perform the functions referenced in chapter 36.67 RCW to be performed by the county legislative authority in the case of county bonds. [2003 c 327 § 6.] 39.34.210 Finding—Intent—2003 c 327: See note following RCW 39.34.190. 39.34.220 Watershed management plans—Additional authority for implementation—Existing agreements not affected. The amendments by chapter 327, Laws of 2003 to the interlocal cooperation act authorities are intended to provide additional authority to public agencies for the purposes of implementing watershed management plans, and do not affect any agreements among public agencies existing on July 27, 2003. [2003 c 327 § 7.] 39.34.220 Finding—Intent—2003 c 327: See note following RCW 39.34.190. 39.34.230 Covered emergencies—Interlocal agreements for mutual aid and cooperation—Liability of state—Existing rights. (1) During a covered emergency, the department of community, trade, and economic development may enter into interlocal agreements under this chapter with one or more public agencies for the purposes of providing mutual aid and cooperation to any public agency affected by the cause of the emergency. 39.34.230 (2008 Ed.) Energy Conservation in Design of Public Facilities (2) All legal liability by a public agency and its employees for damage to property or injury or death to persons caused by acts done or attempted during, or while traveling to or from, a covered emergency, or in preparation for a covered emergency, pursuant to an interlocal agreement entered into under this section, or under the color of this section in a bona fide attempt to comply therewith, shall be the obligation of the state of Washington. Suits may be instituted and maintained against the state for the enforcement of such liability, or for the indemnification of any public agency or its employees for damage done to their private property, or for any judgment against them for acts done in good faith in compliance with this chapter: PROVIDED, That the foregoing shall not be construed to result in indemnification in any case of willful misconduct, gross negligence, or bad faith on the part of any public agency or any of a public agency’s employees: PROVIDED, That should the United States or any agency thereof, in accordance with any federal statute, rule, or regulation, provide for the payment of damages to property and/or for death or injury as provided for in this section, then and in that event there shall be no liability or obligation whatsoever upon the part of the state of Washington for any such damage, death, or injury for which the United States government assumes liability. (3) For purposes of this section, "covered emergency" means an emergency for which the governor has proclaimed a state of emergency under RCW 43.06.010, and for which the governor has authorized the department of community, trade, and economic development to enter into interlocal agreements under this section. (4) This section shall not affect the right of any person to receive benefits to which he or she would otherwise be entitled under the workers’ compensation law, or under any pension or retirement law, nor the right of any such person to receive any benefits or compensation under any act of congress. [2008 c 181 § 101.] Part headings not law—2008 c 181: See note following RCW 43.06.220. 39.34.900 Short title. This chapter may be cited as the "Interlocal Cooperation Act." [1967 c 239 § 2.] 39.34.900 39.34.910 Severability—1967 c 239. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1967 c 239 § 14.] 39.34.910 39.34.920 Effective date—1967 c 239. The effective date of this chapter is July 1, 1967. [1967 c 239 § 15.] 39.35.060 39.35.900 39.35.020 Life-cycle cost analysis—Review fees. Severability—1975 1st ex.s. c 177. 39.35.010 Legislative finding. The legislature hereby finds: (1) That major publicly owned or leased facilities have a significant impact on our state’s consumption of energy; (2) That energy conservation practices including energy management systems and renewable energy systems adopted for the design, construction, and utilization of such facilities will have a beneficial effect on our overall supply of energy; (3) That the cost of the energy consumed by such facilities over the life of the facilities shall be considered in addition to the initial cost of constructing such facilities; (4) That the cost of energy is significant and major facility designs shall be based on the total life-cycle cost, including the initial construction cost, and the cost, over the economic life of a major facility, of the energy consumed, and of the operation and maintenance of a major facility as they affect energy consumption; and (5) That the use of energy systems in these facilities which utilize renewable resources such as solar energy, wood or wood waste, or other nonconventional fuels, and which incorporate energy management systems, shall be considered in the design of all publicly owned or leased facilities. [2001 c 214 § 15; 1982 c 159 § 1; 1975 1st ex.s. c 177 § 1.] 39.35.010 Findings—2001 c 214: "(1) The legislature hereby finds that: (a) The economy of the state and the health, safety, and welfare of its citizens are threatened by the current energy supply and price instabilities; (b) Many energy efficiency programs for public buildings launched during the 1970s and 1980s were not maintained during the subsequent sustained period of low energy costs and abundant supply; and (c) Conservation programs originally established in the 1970s and 1980s can be improved or updated. New programs drawing on recently developed technologies, including demand-side energy management systems, can materially increase the efficiency of energy use by the public sector. (2) It is the policy of the state of Washington that: (a) State government is committed to achieving significant gains in energy efficiency. Conventional conservation programs will be reviewed and updated in light of experience gained since their commencement; (b) State government must play a leading role in demonstrating updated and new energy efficiency technologies. New programs or measures made possible by technological advances, such as demand-side response measures and energy management systems, shall be treated in the same manner as conventional conservation programs and will be integrated into the state’s energy efficiency programs." [2001 c 214 § 14.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Applicability—1982 c 159: "This act does not apply to a major facility construction or renovation on which a life-cycle cost analysis is commenced under chapter 39.35 RCW before June 10, 1982." [1982 c 159 § 5.] 39.34.920 Chapter 39.35 Chapter 39.35 RCW ENERGY CONSERVATION IN DESIGN OF PUBLIC FACILITIES Sections 39.35.010 39.35.020 39.35.030 39.35.040 39.35.050 (2008 Ed.) Legislative finding. Legislative declaration. Definitions. Facility design to include life-cycle cost analysis. Life-cycle cost analysis—Guidelines. 39.35.020 Legislative declaration. The legislature declares that it is the public policy of this state to insure that energy conservation practices and renewable energy systems are employed in the design of major publicly owned or leased facilities and that the use of at least one renewable energy system is considered. To this end the legislature authorizes and directs that public agencies analyze the cost of energy consumption of each major facility to be planned and constructed or renovated after September 8, 1975. [1982 c 159 § 2; 1975 1st ex.s. c 177 § 2.] 39.35.020 Applicability—1982 c 159: See notes following RCW 39.35.010. [Title 39 RCW—page 51] 39.35.030 Title 39 RCW: Public Contracts and Indebtedness 39.35.030 Definitions. For the purposes of this chapter the following words and phrases shall have the following meanings unless the context clearly requires otherwise: (1) "Public agency" means every state office, officer, board, commission, committee, bureau, department, and all political subdivisions of the state. (2) "Department" means the state department of general administration. (3) "Major facility" means any publicly owned or leased building having twenty-five thousand square feet or more of usable floor space. (4) "Initial cost" means the moneys required for the capital construction or renovation of a major facility. (5) "Renovation" means additions, alterations, or repairs within any twelve-month period which exceed fifty percent of the value of a major facility and which will affect any energy system. (6) "Economic life" means the projected or anticipated useful life of a major facility as expressed by a term of years. (7) "Energy management system" means a program, energy efficiency equipment, technology, device, or other measure including, but not limited to, a management, educational, or promotional program, smart appliance, meter reading system that provides energy information capability, computer software or hardware, communications equipment or hardware, thermostat or other control equipment, together with related administrative or operational programs, that allows identification and management of opportunities for improvement in the efficiency of energy use, including but not limited to a measure that allows: (a) Energy consumers to obtain information about their energy usage and the cost of energy in connection with their usage; (b) Interactive communication between energy consumers and their energy suppliers; (c) Energy consumers to respond to energy price signals and to manage their purchase and use of energy; or (d) For other kinds of dynamic, demand-side energy management. (8) "Life-cycle cost" means the initial cost and cost of operation of a major facility over its economic life. This shall be calculated as the initial cost plus the operation, maintenance, and energy costs over its economic life, reflecting anticipated increases in these costs discounted to present value at the current rate for borrowing public funds, as determined by the office of financial management. The energy cost projections used shall be those provided by the department. The department shall update these projections at least every two years. (9) "Life-cycle cost analysis" includes, but is not limited to, the following elements: (a) The coordination and positioning of a major facility on its physical site; (b) The amount and type of fenestration employed in a major facility; (c) The amount of insulation incorporated into the design of a major facility; (d) The variable occupancy and operating conditions of a major facility; and (e) An energy-consumption analysis of a major facility. 39.35.030 [Title 39 RCW—page 52] (10) "Energy systems" means all utilities, including, but not limited to, heating, air-conditioning, ventilating, lighting, and the supplying of domestic hot water. (11) "Energy-consumption analysis" means the evaluation of all energy systems and components by demand and type of energy including the internal energy load imposed on a major facility by its occupants, equipment, and components, and the external energy load imposed on a major facility by the climatic conditions of its location. An energy-consumption analysis of the operation of energy systems of a major facility shall include, but not be limited to, the following elements: (a) The comparison of three or more system alternatives, at least one of which shall include renewable energy systems, and one of which shall comply at a minimum with the sustainable design guidelines of the United States green building council leadership in energy and environmental design silver standard or similar design standard as may be adopted by rule by the department; (b) The simulation of each system over the entire range of operation of such facility for a year’s operating period; and (c) The evaluation of the energy consumption of component equipment in each system considering the operation of such components at other than full or rated outputs. The energy-consumption analysis shall be prepared by a professional engineer or licensed architect who may use computers or such other methods as are capable of producing predictable results. (12) "Renewable energy systems" means methods of facility design and construction and types of equipment for the utilization of renewable energy sources including, but not limited to, hydroelectric power, active or passive solar space heating or cooling, domestic solar water heating, windmills, waste heat, biomass and/or refuse-derived fuels, photovoltaic devices, and geothermal energy. (13) "Cogeneration" means the sequential generation of two or more forms of energy from a common fuel or energy source. Where these forms are electricity and thermal energy, then the operating and efficiency standards established by 18 C.F.R. Sec. 292.205 and the definitions established by 18 C.F.R. 292.202 (c) through (m) as of July 28, 1991, shall apply. (14) "Selected buildings" means educational, office, residential care, and correctional facilities that are designed to comply with the design standards analyzed and recommended by the department. (15) "Design standards" means the heating, air-conditioning, ventilating, and renewable resource systems identified, analyzed, and recommended by the department as providing an efficient energy system or systems based on the economic life of the selected buildings. [2001 c 214 § 16; 1996 c 186 § 402; 1994 c 242 § 1; 1991 c 201 § 14; 1982 c 159 § 3; 1975 1st ex.s. c 177 § 3.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. Captions not law—Severability—1991 c 201: See RCW 39.35C.900 and 39.35C.901. Applicability—1982 c 159: See notes following RCW 39.35.010. (2008 Ed.) Performance-Based Contracts—Water Conservation, Waste Reduction, Energy Equipment 39.35.040 Facility design to include life-cycle cost analysis. Whenever a public agency determines that any major facility is to be constructed or renovated, such agency shall cause to be included in the design phase of such construction or renovation a provision that requires a life-cycle cost analysis conforming with the guidelines developed in RCW 39.35.050 to be prepared for such facility. Such analysis shall be approved by the agency prior to the commencement of actual construction or renovation. A public agency may accept the facility design if the agency is satisfied that the life-cycle cost analysis provides for an efficient energy system or systems based on the economic life of the major facility. Nothing in this section prohibits the construction or renovation of major facilities which utilize renewable energy systems. [1994 c 242 § 2; 1982 c 159 § 4; 1975 1st ex.s. c 177 § 4.] 39.35.040 Applicability—1982 c 159: See notes following RCW 39.35.010. 39.35.050 Life-cycle cost analysis—Guidelines. The department, in consultation with affected public agencies, shall develop and issue guidelines for administering this chapter. The purpose of the guidelines is to define a procedure and method for performance of life-cycle cost analysis to promote the selection of low-life-cycle cost alternatives. At a minimum, the guidelines must contain provisions that: (1) Address energy considerations during the planning phase of the project; (2) Identify energy components and system alternatives including energy management systems, renewable energy systems, and cogeneration applications prior to commencing the energy consumption analysis; (3) Identify simplified methods to assure the lowest lifecycle cost alternatives for selected buildings with between twenty-five thousand and one hundred thousand square feet of usable floor area; (4) Establish times during the design process for preparation, review, and approval or disapproval of the life-cycle cost analysis; (5) Specify the assumptions to be used for escalation and inflation rates, equipment service lives, economic building lives, and maintenance costs; (6) Determine life-cycle cost analysis format and submittal requirements to meet the provisions of chapter 201, Laws of 1991; (7) Provide for review and approval of life-cycle cost analysis. [2001 c 214 § 17; 1996 c 186 § 403; 1994 c 242 § 3; 1991 c 201 § 15.] 39.35.050 Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. Captions not law—Severability—1991 c 201: See RCW 39.35C.900 and 39.35C.901. 39.35.060 Life-cycle cost analysis—Review fees. The department may impose fees upon affected public agencies for the review of life-cycle cost analyses. The fees shall be deposited in the general administration services account. The purpose of the fees is to recover the costs by the department 39.35.060 (2008 Ed.) 39.35A.020 for review of the analyses. The department shall set fees at a level necessary to recover all of its costs related to increasing the energy efficiency of state-supported new construction. The fees shall not exceed one-tenth of one percent of the total cost of any project or exceed two thousand dollars for any project unless mutually agreed to. The department shall provide detailed calculation ensuring that the energy savings resulting from its review of life-cycle cost analysis justify the costs of performing that review. [2001 c 292 § 1; 1996 c 186 § 404; 1991 c 201 § 16.] Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. Captions not law—Severability—1991 c 201: See RCW 39.35C.900 and 39.35C.901. 39.35.900 Severability—1975 1st ex.s. c 177. If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1975 1st ex.s. c 177 § 5.] 39.35.900 Chapter 39.35A RCW PERFORMANCE-BASED CONTRACTS FOR WATER CONSERVATION, SOLID WASTE REDUCTION, AND ENERGY EQUIPMENT Chapter 39.35A Sections 39.35A.010 Findings. 39.35A.020 Definitions. 39.35A.030 Performance-based contracts for water conservation services, solid waste reduction services, and energy equipment and services. 39.35A.040 Application of other procurement requirements. 39.35A.050 Energy service contractor registry—Identification of performance-based contracting services. 39.35A.010 Findings. The legislature finds that: (1) Conserving energy and water in publicly owned buildings will have a beneficial effect on our overall supply of energy and water; (2) Conserving energy and water in publicly owned buildings can result in cost savings for taxpayers; and (3) Performance-based energy contracts are a means by which municipalities can achieve energy and water conservation without capital outlay. Therefore, the legislature declares that it is the policy that a municipality may, after a competitive selection process, negotiate a performance-based energy contract with a firm that offers the best proposal. [2007 c 39 § 1; 1985 c 169 § 1.] 39.35A.010 39.35A.020 Definitions. Unless the context clearly indicates otherwise, the definitions in this section shall apply throughout this chapter. (1) "Energy equipment and services" means energy management systems and any equipment, materials, or supplies that are expected, upon installation, to reduce the energy use or energy cost of an existing building or facility, and the services associated with the equipment, materials, or supplies, including but not limited to design, engineering, financing, installation, project management, guarantees, operations, and maintenance. Reduction in energy use or energy cost may 39.35A.020 [Title 39 RCW—page 53] 39.35A.030 Title 39 RCW: Public Contracts and Indebtedness also include reductions in the use or cost of water, wastewater, or solid waste. (2) "Energy management system" has the definition provided in RCW 39.35.030. (3) "Municipality" has the definition provided in RCW 39.04.010. (4) "Performance-based contract" means one or more contracts for water conservation services, solid waste reduction services, or energy equipment and services between a municipality and any other persons or entities, if the payment obligation for each year under the contract, including the year of installation, is either: (a) Set as a percentage of the annual energy cost savings, water cost savings, or solid waste cost savings attributable under the contract; or (b) guaranteed by the other persons or entities to be less than the annual energy cost savings, water cost savings, or solid waste cost savings attributable under the contract. Such guarantee shall be, at the option of the municipality, a bond or insurance policy, or some other guarantee determined sufficient by the municipality to provide a level of assurance similar to the level provided by a bond or insurance policy. (5) "Water conservation" means reductions in the use of water or wastewater. [2007 c 39 § 2; 2001 c 214 § 18; 1985 c 169 § 2.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. 39.35A.030 Performance-based contracts for water conservation services, solid waste reduction services, and energy equipment and services. (1) Each municipality shall publish in advance its requirements to procure water conservation services, solid waste reduction services, or energy equipment and services under a performance-based contract. The announcement shall state concisely the scope and nature of the equipment and services for which a performance-based contract is required, and shall encourage firms to submit proposals to meet these requirements. (2) The municipality may negotiate a fair and reasonable performance-based contract with the firm that is identified, based on the criteria that is established by the municipality, to be the firm that submits the best proposal. (3) If the municipality is unable to negotiate a satisfactory contract with the firm that submits the best proposal, negotiations with that firm shall be formally terminated and the municipality may select another firm in accordance with this section and continue negotiation until a performancebased contract is reached or the selection process is terminated. [2007 c 39 § 3; 1985 c 169 § 3.] 39.35A.030 39.35A.040 Application of other procurement requirements. If a municipality chooses, by resolution or other appropriate mechanism, to negotiate a performancebased contract under this chapter, no otherwise applicable statutory procurement requirement applies. [1985 c 169 § 4.] 39.35A.040 39.35A.050 Energy service contractor registry— Identification of performance-based contracting services. The state department of general administration shall maintain a registry of energy service contractors and provide assis39.35A.050 [Title 39 RCW—page 54] tance to municipalities in identifying available performancebased contracting services. [2001 c 214 § 19.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. Chapter 39.35B Chapter 39.35B RCW LIFE-CYCLE COST ANALYSIS OF PUBLIC FACILITIES Sections 39.35B.010 39.35B.020 39.35B.030 39.35B.040 39.35B.050 Legislative findings. Legislative declaration. Intent. Implementation. Life-cycle cost model and analysis—Duties of the office of financial management. 39.35B.010 Legislative findings. The legislature finds 39.35B.010 that: (1) Operating costs of a facility over its lifetime may greatly exceed the initial cost of the facility; (2) In the planning, design, and funding for new construction or major renovation of state-owned facilities it is desirable to consider not only the initial costs relating to design and construction or acquisition, but the anticipated operating costs relating to the building throughout its life; (3) The consideration of both initial and operating costs is known as life-cycle cost or life-cycle cost analysis; (4) Operating costs of a facility for purposes of this chapter include, but are not limited to, energy costs, maintenance and repair costs, and costs of the work or activity performed within the facility, including wages and salaries; (5) Current law, chapter 39.35 RCW, speaks to life-cycle cost analysis only in relation to energy conservation; and (6) Life-cycle cost may not be suitable or cost-effective for all capital projects or all components of a facility, and is not an exclusive criteria for decision-making, but is nonetheless a useful framework for evaluating design and capital investment alternatives. [1986 c 127 § 1.] 39.35B.020 Legislative declaration. The legislature declares that: (1) It is the policy of the state to consider life-cycle costs in the selection of facility design alternatives, to the full extent practical, reasonable, and cost-effective; (2) Life-cycle cost should be considered by the state government, school districts, and state universities and community colleges in the planning, design, and funding for new construction or major renovations; and (3) Use of life-cycle cost should be encouraged for cities, counties, and other governmental districts including special purpose districts. [1986 c 127 § 2.] 39.35B.020 39.35B.030 Intent. It is the intent of the legislature to: (1) Expand the definition and use of "life-cycle cost" and "life-cycle cost analysis" to include consideration of all operating costs, as opposed to only energy-related costs as addressed by chapter 39.35 RCW; (2) Encourage the recognition, development, and use of life-cycle cost concepts and procedures by both the executive 39.35B.030 (2008 Ed.) Energy Conservation Projects and legislative branches in the state’s design development and capital budgeting processes; (3) Ensure the dissemination and use of a common and realistic discount rate by all state agencies in the calculation of the present value of future costs; (4) Allow and encourage the executive branch to develop specific techniques and procedures for the state government and its agencies, and state universities and community colleges to implement this policy; and (5) Encourage cities, counties, and other governmental districts including special purpose districts to adopt programs and procedures to implement this policy. [1986 c 127 § 3.] 39.35B.040 Implementation. The principal executives of all state agencies are responsible for implementing the policy set forth in this chapter. The office of financial management in conjunction with the department of general administration may establish guidelines for compliance by the state government and its agencies, and state universities and community colleges. The office of financial management shall include within its biennial capital budget instructions: (1) A discount rate for the use of all agencies in calculating the present value of future costs, and several examples of resultant trade-offs between annual operating costs eliminated and additional capital costs thereby justified; and (2) Types of projects and building components that are particularly appropriate for life-cycle cost analysis. [1986 c 127 § 4.] 39.35C.010 39.35C.025 Energy audit of school district facilities—Completion dates— Identification, implementation of cost-effective energy conservation measures. 39.35C.030 Department coordination of conservation development with utilities. 39.35C.040 Sale of conserved energy. 39.35C.050 Authority of state agencies and school districts to implement conservation. 39.35C.060 Authority to finance conservation in school districts and state agencies. 39.35C.070 Development of cogeneration projects. 39.35C.080 Sale of cogenerated electricity and thermal energy. 39.35C.090 Additional authority of state agencies. 39.35C.100 Energy efficiency construction account. 39.35C.130 Adoption of rules. 39.35C.900 Captions not law—1991 c 201. 39.35C.901 Severability—1991 c 201. 39.35B.040 39.35B.050 Life-cycle cost model and analysis— Duties of the office of financial management. The office of financial management shall: (1) Design and implement a cost-effective life-cycle cost model by October 1, 2008, based on the work completed by the joint legislative audit and review committee in January 2007 and in consultation with legislative fiscal committees; (2) Deploy the life-cycle cost model for use by state agencies once completed and tested; (3) Update the life-cycle cost model periodically in consultation with legislative fiscal committees; (4) Establish clear policies, standards, and procedures regarding the use of life-cycle cost analysis by state agencies including: (a) When state agencies must use the life-cycle cost analysis, including the types of proposed capital projects and leased facilities to which it must be applied; (b) Procedures state agencies must use to document the results of required life-cycle cost analyses; (c) Standards regarding the discount rate and other key model assumptions; and (d) A process to document and justify any deviation from the standard assumptions. [2007 c 506 § 3.] 39.35B.050 Findings—Intent—2007 c 506: See note following RCW 43.82.035. Chapter 39.35C Chapter 39.35C RCW ENERGY CONSERVATION PROJECTS Sections 39.35C.010 Definitions. 39.35C.020 State agency and school district conservation projects—Implementation—Department assistance. (2008 Ed.) 39.35C.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Cogeneration" means the sequential generation of two or more forms of energy from a common fuel or energy source. If these forms are electricity and thermal energy, then the operating and efficiency standards established by 18 C.F.R. Sec. 292.205 and the definitions established by 18 C.F.R. Sec. 292.202 (c) through (m) apply. (2) "Conservation" means reduced energy consumption or energy cost, or increased efficiency in the use of energy, and activities, measures, or equipment designed to achieve such results, but does not include thermal or electric energy production from cogeneration. "Conservation" also means reductions in the use or cost of water, wastewater, or solid waste. (3) "Cost-effective" means that the present value to a state agency or school district of the energy reasonably expected to be saved or produced by a facility, activity, measure, or piece of equipment over its useful life, including any compensation received from a utility or the Bonneville power administration, is greater than the net present value of the costs of implementing, maintaining, and operating such facility, activity, measure, or piece of equipment over its useful life, when discounted at the cost of public borrowing. (4) "Energy" means energy as defined in RCW 43.21F.025(1). (5) "Energy audit" has the definition provided in RCW 43.19.670, and may include a determination of the water or solid waste consumption characteristics of a facility. (6) "Energy efficiency project" means a conservation or cogeneration project. (7) "Energy efficiency services" means assistance furnished by the department to state agencies and school districts in identifying, evaluating, and implementing energy efficiency projects. (8) "Department" means the state department of general administration. (9) "Performance-based contracting" means contracts for which payment is conditional on achieving contractually specified energy savings. (10) "Public agency" means every state office, officer, board, commission, committee, bureau, department, and all political subdivisions of the state. (11) "Public facility" means a building or structure, or a group of buildings or structures at a single site, owned by a state agency or school district. 39.35C.010 [Title 39 RCW—page 55] 39.35C.020 Title 39 RCW: Public Contracts and Indebtedness (12) "State agency" means every state office or department, whether elective or appointive, state institutions of higher education, and all boards, commissions, or divisions of state government, however designated. (13) "State facility" means a building or structure, or a group of buildings or structures at a single site, owned by a state agency. (14) "Utility" means privately or publicly owned electric and gas utilities, electric cooperatives and mutuals, whether located within or without Washington state. (15) "Local utility" means the utility or utilities in whose service territory a public facility is located. [2007 c 39 § 4; 2001 c 214 § 20; 1996 c 186 § 405; 1991 c 201 § 2.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.020 State agency and school district conservation projects—Implementation—Department assistance. (1) Each state agency and school district shall implement cost-effective conservation improvements and maintain efficient operation of its facilities in order to minimize energy consumption and related environmental impacts and reduce operating costs. Each state agency shall undertake an energy audit and implement cost-effective conservation measures pursuant to the time schedules and requirements set forth in chapter 43.19 RCW, except that any state agency that, after December 31, 1997, has completed energy audits and implemented cost-effective conservation measures, or has contracted with an energy service company for energy audits and conservation measures, is deemed to have met the requirements of this subsection for those facilities included in the audits and conservation measures. Each school district shall undertake an energy audit and implement cost-effective conservation measures pursuant to the time schedules and requirements set forth in RCW 39.35C.025. Performancebased contracting shall be the preferred method for completing energy audits and implementing cost-effective conservation measures. (2) The department shall assist state agencies and school districts in identifying, evaluating, and implementing costeffective conservation projects at their facilities. The assistance shall include the following: (a) Notifying state agencies and school districts of their responsibilities under this chapter; (b) Apprising state agencies and school districts of opportunities to develop and finance such projects; (c) Providing technical and analytical support, including procurement of performance-based contracting services; (d) Reviewing verification procedures for energy savings; and (e) Assisting in the structuring and arranging of financing for cost-effective conservation projects. (3) Conservation projects implemented under this chapter shall have appropriate levels of monitoring to verify the performance and measure the energy savings over the life of the project. The department shall solicit involvement in program planning and implementation from utilities and other energy conservation suppliers, especially those that have 39.35C.020 [Title 39 RCW—page 56] demonstrated experience in performance-based energy programs. (4) The department shall comply with the requirements of chapter 39.80 RCW when contracting for architectural or engineering services. (5) The department shall recover any costs and expenses it incurs in providing assistance pursuant to this section, including reimbursement from third parties participating in conservation projects. The department shall enter into a written agreement with the public agency for the recovery of costs. [2001 c 214 § 21; 1996 c 186 § 406; 1991 c 201 § 3.] Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.025 Energy audit of school district facilities—Completion dates—Identification, implementation of cost-effective energy conservation measures. (1) Except as provided in subsections (2) and (3) of this section, each school district shall conduct an energy audit of its facilities. This energy audit may be conducted by contract or by other arrangement, including appropriate district staff. Performance-based contracting shall be the preferred method for implementing and completing energy audits. (a) For each district facility, the energy consumption surveys shall be completed no later than December 31, 2001, and the walk-through surveys shall be completed no later than October 1, 2002. Upon completion of each walk-through survey, the district shall implement energy conservation maintenance and operation procedures that may be identified for any district facility. These procedures shall be implemented as soon as possible, but not later than twelve months after the walk-through survey. (b) Except as provided in subsection (3) of this section, if a walk-through survey has identified potentially cost-effective energy conservation measures, the district shall undertake an investment grade audit of the facility. Investment grade audits shall be completed no later than June 30, 2003, and installation of cost-effective conservation measures recommended in the investment grade audit shall be completed no later than December 31, 2004. (2) A school district that, after December 31, 1997, has completed energy audits and implemented cost-effective conservation measures, or has contracted with an energy service company for energy audits and conservation measures, is deemed to have met the requirements of this section for those facilities included in the audits and conservation measures. (3) A school district that after reasonable efforts and consultation with the department is unable to obtain a contract with an energy service company to conduct an investment grade audit or install cost-effective conservation measures recommended in an investment grade audit, is exempt from the requirements of subsection (1)(b) of this section. [2001 c 214 § 22.] 39.35C.025 Severability—Effective date—2001 c 214: See notes following RCW 80.50.010. Findings—2001 c 214: See note following RCW 39.35.010. (2008 Ed.) Energy Conservation Projects 39.35C.030 Department coordination of conservation development with utilities. (1) The department shall consult with the local utilities to develop priorities for energy conservation projects pursuant to this chapter, cooperate where possible with existing utility programs, and consult with the local utilities prior to implementing projects in their service territory. (2) A local utility shall be offered the initial opportunity to participate in the development of conservation projects in the following manner: (a) Before initiating projects in a local utility service territory, the department shall notify the local utility in writing, on an annual basis, of public facilities in the local utility’s service territory at which the department anticipates costeffective conservation projects will be developed. (b) Within sixty days of receipt of this notification, the local utility may express interest in these projects by submitting to the department a written description of the role the local utility is willing to perform in developing and acquiring the conservation at these facilities. This role may include any local utility conservation programs which would be available to the public facility, any competitive bidding or solicitation process which the local utility will be undertaking in accordance with the rules of the utilities and transportation commission or the public utility district, municipal utility, cooperative, or mutual governing body for which the public facility would be eligible, or any other role the local utility may be willing to perform. (c) Upon receipt of the written description from the local utility, the department shall, through discussions with the local utility, and with involvement from state agencies and school districts responsible for the public facilities, develop a plan for coordinated delivery of conservation services and financing or make a determination of whether to participate in the local utility’s competitive bidding or solicitation process. The plan shall identify the local utility in roles that the local utility is willing to perform and that are consistent with the provisions of RCW 39.35C.040(2) (d) and (e). [1996 c 186 § 407; 1991 c 201 § 4.] 39.35C.030 Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.040 Sale of conserved energy. (1) It is the intent of this chapter that the state, state agencies, and school districts are compensated fairly for the energy savings provided to utilities and be allowed to participate on an equal basis in any utility conservation program, bidding, or solicitation process. State agencies and school districts shall not receive preferential treatment. For the purposes of this section, any type of compensation from a utility or the Bonneville power administration intended to achieve reductions or efficiencies in energy use which are cost-effective to the utility or the Bonneville power administration shall be regarded as a sale of energy savings. Such compensation may include credits to the energy bill, low or no interest loans, rebates, or payment per unit of energy saved. The department shall, in coordination with utilities, the Bonneville power administration, state agencies, and school districts, facilitate the sale of energy savings at public facilities including participation in any competitive bidding or solicitation which has been agreed to by the state agency or school district. Energy sav39.35C.040 (2008 Ed.) 39.35C.040 ings may only be sold to local utilities or, under conditions specified in this section, to the Bonneville power administration. The department shall not attempt to sell energy savings occurring in one utility service territory to a different utility. Nothing in this chapter mandates that utilities purchase the energy savings. (2) To ensure an equitable allocation of benefits to the state, state agencies, and school districts, the following conditions shall apply to transactions between utilities or the Bonneville power administration and state agencies or school districts for sales of energy savings: (a) A transaction shall be approved by both the state agency or school district and the department. (b) The state agency or school district and the department shall work together throughout the planning and negotiation process for such transactions unless the department determines that its participation will not further the purposes of this section. (c) Before making a decision under (d) of this subsection, the department shall review the proposed transaction for its technical and economic feasibility, the adequacy and reasonableness of procedures proposed for verification of project or program performance, the degree of certainty of benefits to the state, state agency, or school district, the degree of risk assumed by the state or school district, the benefits offered to the state, state agency, or school district and such other factors as the department determines to be prudent. (d) The department shall approve a transaction unless it finds, pursuant to the review in (c) of this subsection, that the transaction would not result in an equitable allocation of costs and benefits to the state, state agency, or school district, in which case the transaction shall be disapproved. (e) In addition to the requirements of (c) and (d) of this subsection, in areas in which the Bonneville power administration has a program for the purchase of energy savings at public facilities, the department shall approve the transaction unless the local utility cannot offer a benefit substantially equivalent to that offered by the Bonneville power administration, in which case the transaction shall be disapproved. In determining whether the local utility can offer a substantially equivalent benefit, the department shall consider the net present value of the payment for energy savings; any goods, services, or financial assistance provided by the local utility; and any risks borne by the local utility. Any direct negative financial impact on a nongrowing, local utility shall be considered. (3) Any party to a potential transaction may, within thirty days of any decision to disapprove a transaction made pursuant to subsection (2)(c), (d), or (e) of this section, request an independent reviewer who is mutually agreeable to all parties to the transaction to review the decision. The parties shall within thirty days of selection submit to the independent reviewer documentation supporting their positions. The independent reviewer shall render advice regarding the validity of the disapproval within an additional thirty days. [1996 c 186 § 408; 1991 c 201 § 5.] Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. [Title 39 RCW—page 57] 39.35C.050 Title 39 RCW: Public Contracts and Indebtedness 39.35C.050 Authority of state agencies and school districts to implement conservation. In addition to any other authorities conferred by law: (1) The department, with the consent of the state agency or school district responsible for a facility, a state or regional university acting independently, and any other state agency acting through the department of general administration or as otherwise authorized by law, may: (a) Develop and finance conservation at public facilities in accordance with express provisions of this chapter; (b) Contract for energy services, including performancebased contracts; (c) Contract to sell energy savings from a conservation project at public facilities to local utilities or the Bonneville power administration. (2) A state or regional university acting independently, and any other state agency acting through the department of general administration or as otherwise authorized by law, may undertake procurements for third-party development of conservation at its facilities. (3) A school district may: (a) Develop and finance conservation at school district facilities; (b) Contract for energy services, including performancebased contracts at school district facilities; and (c) Contract to sell energy savings from energy conservation projects at school district facilities to local utilities or the Bonneville power administration directly or to local utilities or the Bonneville power administration through third parties. (4) In exercising the authority granted by subsections (1), (2), and (3) of this section, a school district or state agency must comply wi th the pr ov is ions of R CW 39.35C.040. [1996 c 186 § 409; 1991 c 201 § 6.] 39.35C.050 Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.060 Authority to finance conservation in school districts and state agencies. State agencies may use financing contracts under chapter 39.94 RCW to provide all or part of the funding for conservation projects. The department shall determine the eligibility of such projects for financing contracts. The repayments of the financing contracts shall be sufficient to pay, when due, the principal and interest on the contracts. [1996 c 186 § 410; 1991 c 201 § 7.] 39.35C.060 Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.070 Development of cogeneration projects. (1) Consistent with the region’s need to develop cost-effective, high efficiency electric energy resources, the state shall investigate and, if appropriate, pursue development of costeffective opportunities for cogeneration in existing or new state facilities. (2) To assist state agencies in identifying, evaluating, and developing potential cogeneration projects at their facilities, the department shall notify state agencies of their responsibilities under this chapter; apprise them of opportunities to develop and finance such projects; and provide technical and analytical support. The department shall recover costs for such assistance through written agreements, including 39.35C.070 [Title 39 RCW—page 58] reimbursement from third parties participating in such projects, for any costs and expenses incurred in providing such assistance. (3)(a) The department shall identify priorities for cogeneration projects at state facilities, and, where such projects are initially deemed desirable by the department and the appropriate state agency, the department shall notify the local utility serving the state facility of its intent to conduct a feasibility study at such facility. The department shall consult with the local utility and provide the local utility an opportunity to participate in the development of the feasibility study for the state facility it serves. (b) If the local utility has an interest in participating in the feasibility study, it shall notify the department and the state agency whose facility or facilities it serves within sixty days of receipt of notification pursuant to (a) of this subsection as to the nature and scope of its desired participation. The department, state agency, and local utility shall negotiate the responsibilities, if any, of each in conducting the feasibility study, and these responsibilities shall be specified in a written agreement. (c) If a local utility identifies a potential cogeneration project at a state facility for which it intends to conduct a feasibility study, it shall notify the department and the appropriate state agency. The department, state agency, and local utility shall negotiate the responsibilities, if any, of each in conducting the feasibility study, and these responsibilities shall be specified in a written agreement. Nothing in this section shall preclude a local utility from conducting an independent assessment of a potential cogeneration project at a state facility. (d) Agreements written pursuant to (a) and (b) of this subsection shall include a provision for the recovery of costs incurred by a local utility in performing a feasibility study in the event such utility does not participate in the development of the cogeneration project. If the local utility does participate in the cogeneration project through energy purchase, project development or ownership, recovery of the utility’s costs may be deferred or provided for through negotiation on agreements for energy purchase, project development or ownership. (e) If the local utility declines participation in the feasibility study, the department and the state agency may receive and solicit proposals to conduct the feasibility study from other parties. Participation of these other parties shall also be secured and defined by a written agreement which may include the provision for reimbursement of costs incurred in the formulation of the feasibility study. (4) The feasibility study shall include consideration of regional and local utility needs for power, the consistency of the proposed cogeneration project with the state energy strategy, the cost and certainty of fuel supplies, the value of electricity produced, the capability of the state agency to own and/or operate such facilities, the capability of utilities or third parties to own and/or operate such facilities, requirements for and costs of standby sources of power, costs associated with interconnection with the local electric utility’s transmission system, the capability of the local electric utility to wheel electricity generated by the facility, costs associated with obtaining wheeling services, potential financial risks and losses to the state and/or state agency, measures to miti(2008 Ed.) Energy Conservation Projects gate the financial risk to the state and/or state agency, and benefits to the state and to the state agency from a range of design configurations, ownership, and operation options. (5) Based upon the findings of the feasibility study, the department and the state agency shall determine whether a cogeneration project will be cost-effective and whether development of a cogeneration project should be pursued. This determination shall be made in consultation with the local utility or, if the local utility had not participated in the development of the feasibility study, with any third party that may have participated in the development of the feasibility study. (a) Recognizing the local utility’s expertise, knowledge, and ownership and operation of the local utility systems, the department and the state agency shall have the authority to negotiate directly with the local utility for the purpose of entering into a sole source contract to develop, own, and/or operate the cogeneration facility. The contract may also include provisions for the purchase of electricity or thermal energy from the cogeneration facility, the acquisition of a fuel source, and any financial considerations which may accrue to the state from ownership and/or operation of the cogeneration facility by the local utility. (b) The department may enter into contracts through competitive negotiation under this subsection for the development, ownership, and/or operation of a cogeneration facility. In determining an acceptable bid, the department and the state agency may consider such factors as technical knowledge, experience, management, staff, or schedule, as may be necessary to achieve economical construction or operation of the project. The selection of a developer or operator of a cogeneration facility shall be made in accordance with procedures for competitive bidding under chapter 43.19 RCW. (c) The department shall comply with the requirements of chapter 39.80 RCW when contracting for architectural or engineering services. (6)(a) The state may own and/or operate a cogeneration project at a state facility. However, unless the cogeneration project is determined to be cost-effective, based on the findings of the feasibility study, the department and state agency shall not pursue development of the project as a state-owned facility. If the project is found to be cost-effective, and the department and the state agency agree development of the cogeneration project should be pursued as a state-owned and/or operated facility, the department shall assist the state agency in the preparation of a finance and development plan for the cogeneration project. Any such plan shall fully account for and specify all costs to the state for developing and/or operating the cogeneration facility. (b) It is the general intent of this chapter that cogeneration projects developed and owned by the state will be sized to the projected thermal energy load of the state facility over the useful life of the project. The principal purpose and use of such projects is to supply thermal energy to a state facility and not primarily to develop generating capacity for the sale of electricity. For state-owned projects with electricity production in excess of projected thermal requirements, the department shall seek and obtain legislative appropriation and approval for development. Nothing in chapter 201, Laws of 1991 shall be construed to authorize any state agency to sell electricity or thermal energy on a retail basis. (2008 Ed.) 39.35C.080 (7) When a cogeneration facility will be developed, owned, and/or operated by a state agency or third party other than the local serving utility, the department and the state agency shall negotiate a written agreement with the local utility. Elements of such an agreement shall include provisions to ensure system safety, provisions to ensure reliability of any interconnected operations equipment necessary for parallel operation and switching equipment capable of isolating the generation facility, the provision of and reimbursement for standby services, if required, and the provision of and reimbursement for wheeling electricity, if the provision of such has been agreed to by the local utility. (8) The state may develop and own a thermal energy distribution system associated with a cogeneration project for the principal purpose of distributing thermal energy at the state facility. If thermal energy is to be sold outside the state facility, the state may only sell the thermal energy to a utility. [1996 c 186 § 411; 1991 c 201 § 8.] Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.080 Sale of cogenerated electricity and thermal energy. It is the intention of chapter 201, Laws of 1991 that the state and its agencies are compensated fairly for the energy provided to utilities from cogeneration at state facilities. Such compensation may include revenues from sales of electricity or thermal energy to utilities, lease of state properties, and value of thermal energy provided to the facility. It is also the intent of chapter 201, Laws of 1991 that the state and its agencies be accorded the opportunity to compete on a fair and reasonable basis to fulfill a utility’s new resource acquisition needs when selling the energy produced from cogeneration projects at state facilities through energy purchase agreements. (1)(a) The department and state agencies may participate in any utility request for resource proposal process, as either established under the rules and regulations of the utilities and transportation commission, or by the governing board of a public utility district, municipal utility, cooperative, or mutual. (b) If a local utility does not have a request for resource proposal pending, the energy office [department] or a state agency may negotiate an equitable and mutually beneficial energy purchase agreement with that utility. (2) To ensure an equitable allocation of benefits to the state and its agencies, the following conditions shall apply to energy purchase agreements negotiated between utilities and state agencies: (a) An energy purchase agreement shall be approved by both the department and the affected state agency. (b) The department and the state agency shall work together throughout the planning and negotiation process for energy purchase agreements, unless the department determines that its participation will not further the purposes of this section. (c) Before approving an energy purchase agreement, the department shall review the proposed agreement for its technical and economic feasibility, the degree of certainty of benefits, the degree of financial risk assumed by the state and/or the state agency, the benefits offered to the state and/or state agency, and other such factors as the department deems pru39.35C.080 [Title 39 RCW—page 59] 39.35C.090 Title 39 RCW: Public Contracts and Indebtedness dent. The department shall approve an energy purchase agreement unless it finds that such an agreement would not result in an equitable allocation of costs and benefits, in which case the transaction shall be disapproved. (3)(a) The state or state agency shall comply with and shall be bound by applicable avoided cost schedules, electric power wheeling charges, interconnection requirements, utility tariffs, and regulatory provisions to the same extent it would be required to comply and would be bound if it were a private citizen. The state shall neither seek regulatory advantage, nor change regulations, regulatory policy, process, or decisions to its advantage as a seller of cogenerated energy. Nothing contained in chapter 201, Laws of 1991 shall be construed to mandate or require public or private utilities to wheel electric energy resources within or beyond their service territories. Nothing in chapter 201, Laws of 1991 authorizes any state agency or school district to make any sale of energy or waste heat beyond the explicit provisions of chapter 201, Laws of 1991. Nothing contained in chapter 201, Laws of 1991 requires a utility to purchase energy from the state or a state agency or enter into any agreement in connection with a cogeneration facility. (b) The state shall neither construct, nor be party to an agreement for developing a cogeneration project at a state facility for the purpose of supplying its own electrical needs, unless it can show that such an arrangement would be in the economic interest of the state taking into account the cost of (i) interconnection requirements, as specified by the local electric utility, (ii) standby charges, as may be required by the local electric utility, and (iii) the current price of electricity offered by the local electric utility. If the local electric utility can demonstrate that the cogeneration project may place an undue burden on the electric utility, the department or the state agency shall attempt to negotiate a mutually beneficial agreement that would minimize the burden upon the ratepayers of the local electric utility. (4) Any party to an energy purchase agreement may, within thirty days of any decision made pursuant to subsection (2)(c) of this section to disapprove the agreement made pursuant to this section, request an independent reviewer who is mutually agreeable to all parties to review the decision. The parties shall within thirty days of selection submit to the independent reviewer documentation supporting their positions. The independent reviewer shall render advice regarding the validity of the disapproval within an additional thirty days. (5) For the purposes of this section, "waste heat" means the thermal energy that otherwise would be released to the environment from an industrial process, electric generation, or other process. [1996 c 186 § 412; 1996 c 33 § 4; 1991 c 201 § 9.] Reviser’s note: This section was amended by 1996 c 33 § 4 and by 1996 c 186 § 412, each without reference to the other. Both amendments are incorporated in the publication of this section under RCW 1.12.025(2). For rule of construction, see RCW 1.12.025(1). Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. Findings—1996 c 33: See note following RCW 80.04.550. 39.35C.090 Additional authority of state agencies. In addition to any other authorities conferred by law: (1) The department, with the consent of the state agency responsible for a facility, a state or regional university acting independently, and any other state agency acting through the department of general administration or as otherwise authorized by law, may: (a) Contract to sell electric energy generated at state facilities to a utility; and (b) Contract to sell thermal energy produced at state facilities to a utility. (2) A state or regional university acting independently, and any other state agency acting through the department of general administration or as otherwise authorized by law, may: (a) Acquire, install, permit, construct, own, operate, and maintain cogeneration and facility heating and cooling measures or equipment, or both, at its facilities; (b) Lease state property for the installation and operation of cogeneration and facility heating and cooling equipment at its facilities; (c) Contract to purchase all or part of the electric or thermal output of cogeneration plants at its facilities; (d) Contract to purchase or otherwise acquire fuel or other energy sources needed to operate cogeneration plants at its facilities; and (e) Undertake procurements for third-party development of cogeneration projects at its facilities, with successful bidders to be selected based on the responsible bid, including nonprice elements listed in RCW 43.19.1911, that offers the greatest net achievable benefits to the state and its agencies. (3) After July 28, 1991, a state agency shall consult with the department prior to exercising any authority granted by this section. (4) In exercising the authority granted by subsections (1) and (2) of this section, a state agency must comply with the provisions of RCW 39.35C.080. [1996 c 186 § 413; 1991 c 201 § 10.] Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.100 Energy efficiency construction account. (1) The energy efficiency construction account is hereby created in the state treasury. Moneys in the account may be spent only after appropriation and only for the following purposes: (a) Construction of energy efficiency projects, including project evaluation and verification of benefits, project design, project development, project construction, and project administration. (b) Payment of principal and interest and other costs required under bond covenant on bonds issued for the purpose of (a) of this subsection. (2) Sources for this account may include: (a) General obligation and revenue bond proceeds appropriated by the legislature; (b) Loan repayments under RCW 39.35C.060 sufficient to pay principal and interest obligations; and (c) Funding from federal, state, and local agencies. [1996 c 186 § 414; 1991 c 201 § 11.] 39.35C.100 39.35C.090 [Title 39 RCW—page 60] Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. (2008 Ed.) High-Performance Public Buildings 39.35C.130 Adoption of rules. The department may adopt rules to implement RCW 39.35C.020 through 39.35C.040, 39.35C.070, 39.35C.080, and 39.35.050. [1996 c 186 § 416; 1991 c 201 § 17.] 39.35C.130 Findings—Intent—Part headings not law—Effective date—1996 c 186: See notes following RCW 43.330.904. 39.35C.900 Captions not law—1991 c 201. Captions as used in chapter 201, Laws of 1991 constitute no part of the law. [1991 c 201 § 22.] 39.35C.900 39.35C.901 Severability—1991 c 201. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1991 c 201 § 24.] 39.35C.901 Chapter 39.35D RCW HIGH-PERFORMANCE PUBLIC BUILDINGS Chapter 39.35D Sections 39.35D.010 39.35D.020 39.35D.030 39.35D.040 39.35D.050 39.35D.060 39.35D.070 39.35D.080 39.35D.090 39.35D.800 Finding—Intent. Definitions. Standards for major facility projects—Annual reports. Public school district major facility projects—Standards— Annual reports—Advisory committee. Annual reports—Submission to legislature. Guidelines for administration of chapter—Amendment of fee schedules—Architecture and engineering services—Building commissioning—Preproposal conferences—Advisory committee. Liability for failure to meet standards. Affordable housing projects—Exemption. Use of local building materials and products—Intent. Performance review—Report. 39.35D.010 Finding—Intent. (1) The legislature finds that public buildings can be built and renovated using highperformance methods that save money, improve school performance, and make workers more productive. High-performance public buildings are proven to increase student test scores, reduce worker absenteeism, and cut energy and utility costs. (2) It is the intent of the legislature that state-owned buildings and schools be improved by adopting recognized standards for high-performance public buildings and allowing flexible methods and choices in how to achieve those standards. The legislature also intends that public agencies and public school districts shall document costs and savings to monitor this program and ensure that economic, community, and environmental goals are achieved each year, and that an independent performance review be conducted to evaluate this program and determine the extent to which the results intended by this chapter are being met. [2005 c 12 § 1.] 39.35D.010 39.35D.020 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Department" means the department of general administration. (2) "High-performance public buildings" means highperformance public buildings designed, constructed, and certified to a standard as identified in this chapter. 39.35D.020 (2008 Ed.) 39.35D.030 (3) "Institutions of higher education" means the state universities, the regional universities, The Evergreen State College, the community colleges, and the technical colleges. (4) "LEED silver standard" means the United States green building council leadership in energy and environmental design green building rating standard, referred to as silver standard. (5)(a) "Major facility project" means: (i) A construction project larger than five thousand gross square feet of occupied or conditioned space as defined in the Washington state energy code; or (ii) a building renovation project when the cost is greater than fifty percent of the assessed value and the project is larger than five thousand gross square feet of occupied or conditioned space as defined in the Washington state energy code. (b) "Major facility project" does not include: (i) Projects for which the department, public school district, or other applicable agency and the design team determine the LEED silver standard or the Washington sustainable school design protocol to be not practicable; or (ii) transmitter buildings, pumping stations, hospitals, research facilities primarily used for sponsored laboratory experimentation, laboratory research, or laboratory training in research methods, or other similar building types as determined by the department. When the LEED silver standard is determined to be not practicable for a project, then it must be determined if any LEED standard is practicable for the project. If LEED standards or the Washington sustainable school design protocol are not followed for the project, the public school district or public agency shall report these reasons to the department. (6) "Public agency" means every state office, officer, board, commission, committee, bureau, department, and public higher education institution. (7) "Public school district" means a school district eligible to receive state basic education moneys pursuant to RCW 28A.150.250 and 28A.150.260. (8) "Washington sustainable school design protocol" means the school design protocol and related information developed by the office of the superintendent of public instruction, in conjunction with school districts and the school facilities advisory board. [2006 c 263 § 330; 2005 c 12 § 2.] Findings—Purpose—Part headings not law—2006 c 263: See notes following RCW 28A.150.230. 39.35D.030 Standards for major facility projects— Annual reports. (1) All major facility projects of public agencies receiving any funding in a state capital budget, or projects financed through a financing contract as defined in RCW 39.94.020, must be designed, constructed, and certified to at least the LEED silver standard. This subsection applies to major facility projects that have not entered the design phase prior to July 24, 2005, and to the extent appropriate LEED silver standards exist for that type of building or facility. (2) All major facility projects of any entity other than a public agency or public school district receiving any funding in a state capital budget must be designed, constructed, and certified to at least the LEED silver standard. This subsection applies to major facility projects that have not entered the grant application process prior to July 24, 2005, and to the 39.35D.030 [Title 39 RCW—page 61] 39.35D.040 Title 39 RCW: Public Contracts and Indebtedness extent appropriate LEED silver standards exist for that type of building or facility. (3)(a) Public agencies, under this section, shall monitor and document ongoing operating savings resulting from major facility projects designed, constructed, and certified as required under this section. (b) Public agencies, under this section, shall report annually to the department on major facility projects and operating savings. (4) The department shall consolidate the reports required in subsection (3) of this section into one report and report to the governor and legislature by September 1st of each evennumbered year beginning in 2006 and ending in 2016. In its report, the department shall also report on the implementation of this chapter, including reasons why the LEED standard was not used as required by RCW 39.35D.020(5)(b). The department shall make recommendations regarding the ongoing implementation of this chapter, including a discussion of incentives and disincentives related to implementing this chapter. [2005 c 12 § 3.] 39.35D.040 Public school district major facility projects—Standards—Annual reports—Advisory committee. (1) All major facility projects of public school districts receiving any funding in a state capital budget must be designed and constructed to at least the LEED silver standard or the Washington sustainable school design protocol. To the extent appropriate LEED silver or Washington sustainable school design protocol standards exist for the type of building or facility, this subsection applies to major facility projects that have not received project approval from the superintendent of public instruction prior to: (a) July 1, 2006, for volunteering school districts; (b) July 1, 2007, for class one school districts; and (c) July 1, 2008, for class two school districts. (2) Public school districts under this section shall: (a) Monitor and document appropriate operating benefits and savings resulting from major facility projects designed and constructed as required under this section for a minimum of five years following local board acceptance of a project receiving state funding; and (b) report annually to the superintendent of public instruction. The form and content of each report must be mutually developed by the office of the superintendent of public instruction in consultation with school districts. (3) The superintendent of public instruction shall consolidate the reports required in subsection (2) of this section into one report and report to the governor and legislature by September 1st of each even-numbered year beginning in 2006 and ending in 2016. In its report, the superintendent of public instruction shall also report on the implementation of this chapter, including reasons why the LEED standard or Washington sustainable school design protocol was not used as required by RCW 39.35D.020(5)(b). The superintendent of public instruction shall make recommendations regarding the ongoing implementation of this chapter, including a discussion of incentives and disincentives related to implementing this chapter. (4) The superintendent of public instruction shall develop and issue guidelines for administering this chapter for public school districts. The purpose of the guidelines is to 39.35D.040 [Title 39 RCW—page 62] define a procedure and method for employing and verifying compliance with the LEED silver standard or the Washington sustainable school design protocol. (5) The superintendent of public instruction shall utilize the school facilities advisory board as a high-performance buildings advisory committee comprised of affected public schools, the superintendent of public instruction, the department, and others at the superintendent of public instruction’s discretion to provide advice on implementing this chapter. Among other duties, the advisory committee shall make recommendations regarding an education and training process and an ongoing evaluation or feedback process to help the superintendent of public instruction implement this chapter. [2006 c 263 § 331; 2005 c 12 § 4.] Findings—Purpose—Part headings not law—2006 c 263: See notes following RCW 28A.150.230. 39.35D.050 Annual reports—Submission to legislature. On or before January 1, 2009, the department and the superintendent of public instruction shall summarize the r e po r ts s ub m itt e d u n de r R CW 3 9. 3 5D .0 3 0( 4 ) a nd 39.35D.040(3) and submit the individual reports to the legislative committees on capital budget and ways and means for review of the program’s performance and consideration of any changes that may be needed to adapt the program to any new or modified standards for high-performance buildings that meet the intent of this chapter. [2005 c 12 § 5.] 39.35D.050 39.35D.060 Guidelines for administration of chapter—Amendment of fee schedules—Architecture and engineering services—Building commissioning—Preproposal conferences—Advisory committee. (1)(a) The department, in consultation with affected public agencies, shall develop and issue guidelines for administering this chapter for public agencies. The purpose of the guidelines is to define a procedure and method for employing and verifying activities necessary for certification to at least the LEED silver standard for major facility projects. (b) The department and the office of the superintendent of public instruction shall amend their fee schedules for architectural and engineering services to accommodate the requirements in the design of major facility projects under this chapter. (c) The department and the office of the superintendent of public instruction shall procure architecture and engineering services consistent with chapter 39.80 RCW. (d) Major facility projects designed to meet standards identified in this chapter must include building commissioning as a critical cost-saving part of the construction process. This process includes input from the project design and construction teams and the project ownership representatives. (e) As provided in the request for proposals for construction services, the operating agency shall hold a preproposal conference for prospective bidders to discuss compliance with and achievement of standards identified in this chapter for prospective respondents. (2) The department shall create a high-performance buildings advisory committee comprised of representatives from the design and construction industry involved in public works contracting, personnel from the affected public agencies responsible for overseeing public works projects, the 39.35D.060 (2008 Ed.) Limitation of Indebtedness of Taxing Districts office of the superintendent of public instruction, and others at the department’s discretion to provide advice on implementing this chapter. Among other duties, the advisory committee shall make recommendations regarding an education and training process and an ongoing evaluation or feedback process to help the department implement this chapter. (3) The department and the office of the superintendent of public instruction shall adopt rules to implement this section. [2006 c 263 § 332; 2005 c 12 § 6.] Findings—Purpose—Part headings not law—2006 c 263: See notes following RCW 28A.150.230. 39.35D.070 Liability for failure to meet standards. A member of the design or construction teams may not be held liable for the failure of a major facility project to meet the LEED silver standard or other LEED standard established for the project as long as a good faith attempt was made to achieve the LEED standard set for the project. [2005 c 12 § 10.] 39.35D.070 39.35D.080 Affordable housing projects—Exemption. Except as provided in this section, affordable housing projects funded out of the state capital budget are exempt from the provisions of this chapter. On or before July 1, 2008, the department of community, trade, and economic development shall identify, implement, and apply a sustainable building program for affordable housing projects that receive housing trust fund (under chapter 43.185 RCW) funding in a state capital budget. The department of community, trade, and economic development shall not develop its own sustainable building standard, but shall work with stakeholders to adopt an existing sustainable building standard or criteria appropriate for affordable housing. Any application of the program to affordable housing, including any monitoring to track the performance of either sustainable features or energy standards or both, is the responsibility of the department of community, trade, and economic development. Beginning in 2009 and ending in 2016, the department of community, trade, and economic development shall report to the department as required under RCW 39.35D.030(3)(b). [2005 c 12 § 12.] 39.36.015 (1) The performance audit shall include, but not be limited to: (a) The identification of the costs of implementation of high-performance building[s] standards in the design and construction of major facility projects subject to this chapter; (b) The identification of operating savings attributable to the implementation of high-performance building[s] standards, including but not limited to savings in energy, utility, and maintenance costs; (c) The identification of any impacts of high-performance buildings standards on worker productivity and student performance; and (d) An evaluation of the effectiveness of the high-performance building[s] standards established under this chapter, and recommendations for any changes in those standards that may be supported by the committee’s findings. (2) The committee shall make a preliminary report of its findings and recommendations on or before December 1, 2010, and a final report on or before July 1, 2011. [2005 c 12 § 14.] 39.35D.080 39.35D.090 Use of local building materials and products—Intent. It is the intent and an established goal of the LEED program as authored by the United States green building council to increase demand for building materials and products that are extracted and manufactured locally, thereby reducing the environmental impacts and to support the local economy. Therefore, it is the intent of the legislature to emphasize this defined goal and establish a priority to use Washington state based resources, building materials, products, industries, manufacturers, and other businesses to provide economic development to Washington state and to meet the objectives of this chapter. [2005 c 12 § 13.] 39.35D.090 39.35D.800 Performance review—Report. The joint legislative audit and review committee, or its successor legislative agency, shall conduct a performance review of the high-performance buildings program established under this chapter. 39.35D.800 (2008 Ed.) Chapter 39.36 Chapter 39.36 RCW LIMITATION OF INDEBTEDNESS OF TAXING DISTRICTS Sections 39.36.010 39.36.015 39.36.020 39.36.030 39.36.040 39.36.050 39.36.060 39.36.900 Definitions. "Value of the taxable property" defined. Limitation of indebtedness prescribed. Computation of indebtedness. Authorizations in violation of chapter void. Ballot proposition authorizing indebtedness—Excess property tax levies. Chapter not applicable to loan agreements under chapter 39.69 RCW. Validation—1969 c 142. Limitation of state debt: State Constitution Art. 8 § 1. Limitation on levies: State Constitution Art. 7 § 2. Limitations on municipal indebtedness: State Constitution Art. 8 § 6. 39.36.010 Definitions. The term "taxing district" as herein used shall be held to mean and embrace all counties, cities, towns, townships, port districts, school districts, metropolitan park districts or other municipal corporations which now, or may hereafter exist. The term "the last assessed valuation of the taxable property in such taxing district" as used herein shall be held to mean and embrace the aggregate assessed valuation for such taxing district as placed on the last completed and balanced tax rolls of the county next preceding the date of contracting the debt or incurring the liability. [1917 c 143 § 4; RRS § 5608.] 39.36.010 39.36.015 "Value of the taxable property" defined. Whenever used in chapter 42, Laws of 1970 ex. sess., the term "value of the taxable property" shall mean the actual value of the taxable property in a taxing district incurring indebtedness, as the term "taxing district" is defined in RCW 39.36.010, to be ascertained by the last assessment for state and county purposes previous to the incurring of such indebtedness except that in incorporated cities the assessment shall be taken from the last assessment for city purposes, plus the 39.36.015 [Title 39 RCW—page 63] 39.36.020 Title 39 RCW: Public Contracts and Indebtedness timber assessed value for the district as defined in RCW 84.33.035. [1984 c 204 § 15; 1970 ex.s. c 42 § 1.] Savings—Effective date—1984 c 204: See notes following RCW 84.33.035. Severability—1970 ex.s. c 42: "If any provision of this 1970 amendatory act, or its application to any person or circumstance is held invalid, the remainder of this 1970 amendatory act, or the application of the provision to other persons or circumstances is not affected." [1970 ex.s. c 42 § 41.] Effective date—1970 ex.s. c 42: "The effective date of this 1970 amendatory act is November 1, 1970." [1970 ex.s. c 42 § 42.] 39.36.020 Limitation of indebtedness prescribed. (1) Except as otherwise expressly provided by law or in subsections (2), (3) and (4) of this section, no taxing district shall for any purpose become indebted in any manner to an amount exceeding three-eighths of one percent of the value of the taxable property in such taxing district without the assent of three-fifths of the voters therein voting at an election to be held for that purpose, nor in cases requiring such assent shall the total indebtedness incurred at any time exceed one and one-fourth percent on the value of the taxable property therein. (2)(a)(i) Public hospital districts are limited to an indebtedness amount not exceeding three-fourths of one percent of the value of the taxable property in such public hospital districts without the assent of three-fifths of the voters therein voting at an election held for that purpose. (ii) Counties, cities, and towns are limited to an indebtedness amount not exceeding one and one-half percent of the value of the taxable property in such counties, cities, or towns without the assent of three-fifths of the voters therein voting at an election held for that purpose. (b) In cases requiring such assent counties, cities, towns, and public hospital districts are limited to a total indebtedness of two and one-half percent of the value of the taxable property therein. However, any county that has assumed the rights, powers, functions, and obligations of a metropolitan municipal corporation under chapter 36.56 RCW may become indebted to a larger amount for its authorized metropolitan functions, as provided under chapter 35.58 RCW, but not exceeding an additional three-fourths of one percent of the value of the taxable property in the county without the assent of three-fifths of the voters therein voting at an election held for that purpose, and in cases requiring such assent not exceeding an additional two and one-half percent of the value of the taxable property in the county. (3) School districts are limited to an indebtedness amount not exceeding three-eighths of one percent of the value of the taxable property in such district without the assent of three-fifths of the voters therein voting at an election held for that purpose. In cases requiring such assent school districts are limited to a total indebtedness of two and one-half percent of the value of the taxable property therein. (4) No part of the indebtedness allowed in this chapter shall be incurred for any purpose other than strictly county, city, town, school district, township, port district, metropolitan park district, or other municipal purposes: PROVIDED, That a city or town, with such assent, may become indebted to a larger amount, but not exceeding two and one-half percent additional, determined as herein provided, for supplying such city or town with water, artificial light, and sewers, 39.36.020 [Title 39 RCW—page 64] when the works for supplying such water, light, and sewers shall be owned and controlled by the city or town; and a city or town, with such assent, may become indebted to a larger amount, but not exceeding two and one-half percent additional for acquiring or developing open space, park facilities, and capital facilities associated with economic development: PROVIDED FURTHER, That any school district may become indebted to a larger amount but not exceeding two and one-half percent additional for capital outlays. (5) Such indebtedness may be authorized in any total amount in one or more propositions and the amount of such authorization may exceed the amount of indebtedness which could then lawfully be incurred. Such indebtedness may be incurred in one or more series of bonds from time to time out of such authorization but at no time shall the total general indebtedness of any taxing district exceed the above limitation. The term "value of the taxable property" as used in this section shall have the meaning set forth in RCW 39.36.015. [2000 c 156 § 1; 1994 c 277 § 1; 1993 c 240 § 12; 1971 ex.s. c 218 § 1; 1971 c 38 § 1; 1970 ex.s. c 42 § 27; 1969 c 142 § 3; 1967 c 107 § 4; 1959 c 227 § 1; 1953 c 163 § 2; 1917 c 143 § 1; RRS § 5605.] Effective date—2000 c 156: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 27, 2000]." [2000 c 156 § 2.] Severability—Effective date—1970 ex.s. c 42: See notes following RCW 39.36.015. Validating—1953 c 163: "Bonds authorized, issued and sold by any school district prior to the effective date of this act [March 18, 1953] and not in excess of the limitations provided in sections 1 and 2 thereof are hereby approved, ratified and validated, and are a legal and irrevocable obligation of such school district." [1953 c 163 § 3.] Cemetery districts, limitation upon indebtedness: RCW 68.52.310. Cities other than first class, limitations upon indebtedness: RCW 35.37.040, 35.37.050. Conditional sales contract debt, not counted as part of debt limit: RCW 28A.335.200, 39.30.010. Counties, limitations upon indebtedness: Chapter 36.67 RCW. Executory conditional sales contracts, limitations on indebtedness: RCW 28A.335.200, 39.30.010. Leases by cities and towns, limitations on indebtedness: RCW 35.42.200. Metropolitan municipal corporations, limitations on indebtedness: RCW 35.58.450. Metropolitan park districts, incurring indebtedness: RCW 35.61.100, 35.61.110. Municipal corporations, limitations upon indebtedness: State Constitution Art. 8 § 6 (Amendment 27). Port districts, limitations upon indebtedness: RCW 39.28.030, 53.36.030. Public utility districts, limitations upon indebtedness: RCW 54.24.018. School districts, limitations upon indebtedness: Chapters 28A.530, 28A.535 RCW. Validation requirement: RCW 39.40.010. Water-sewer districts, limitations upon indebtedness: RCW 57.20.110, 57.20.120. 39.36.030 Computation of indebtedness. (1) Whenever it shall be necessary to compute the indebtedness of a taxing district for bonding or any other indebtedness purposes, taxes levied for the current year and cash on hand received for the purpose of carrying on the business of such taxing district for such current year shall be considered as an 39.36.030 (2008 Ed.) Vote Required At Bond Elections asset only as against indebtedness incurred during such current year which is payable from such taxes or cash on hand: PROVIDED, HOWEVER, That all taxes levied for the payment of bonds, warrants or other public debts of such taxing district, shall be deemed a competent and sufficient asset of the taxing district to be considered in calculating the constitutional debt limit or the debt limit prescribed by this chapter for any taxing district: PROVIDED, That the provisions of this section shall not apply in computing the debt limit of a taxing district in connection with bonds authorized pursuant to a vote of the electors at an election called prior to March 1, 1917. (2) If reductions in assessed valuation of property within a taxing district result in the outstanding indebtedness of the taxing district exceeding its statutory indebtedness limitations, the amount of such excess indebtedness shall not be included in the statutory indebtedness ceiling. Additional indebtedness that is subject to indebtedness limitations, other than refinancing indebtedness that does not increase the total amount of indebtedness, may not be issued by such a taxing district until its total outstanding indebtedness, including that which this subsection removes from the statutory indebtedness limitations, is below these limitations. (3) Nothing in this section authorizes taxing districts to incur indebtedness beyond constitutional indebtedness limitations. [1986 c 50 § 1; 1921 c 123 § 1; 1917 c 143 § 2; RRS § 5606.] 39.36.040 Authorizations in violation of chapter void. All orders, authorizations, allowances, contracts, payments or liabilities to pay, made or attempted to be made in violation of this chapter, shall be absolutely void and shall never be the foundation of a claim against a taxing district. [1994 c 81 § 75; 1923 c 45 § 1; 1917 c 143 § 3; RRS § 5607.] 39.36.040 39.36.050 Ballot proposition authorizing indebtedness—Excess property tax levies. The governing body of a taxing district desiring to place a ballot proposition authorizing indebtedness before the voters may submit the proposition at any special election held on the dates authorized in *chapter 29.13 RCW. The ballot proposition shall include the maximum amount of the indebtedness to be authorized, the maximum term any bonds may have, a description of the purpose or purposes of the bond issue, and whether excess property tax levies authorized under RCW 84.52.056 will be authorized. When it is required that such bonds be retired by excess property tax levies, or when the governing body desires such bonds be retired by excess property tax levies, the ballot proposition shall also include authorization for such excess bond retirement property tax levies provided under RCW 84.52.056. Notice of the proposed election shall be published as required by **RCW 29.27.080. [1984 c 186 § 3.] 39.36.050 Reviser’s note: *(1) District election dates are set by RCW 29A.04.330. **(2) RCW 29.27.080 was recodified as RCW 29A.52.350 pursuant to 2003 c 111 § 2401, effective July 1, 2004. RCW 29A.52.350 was subsequently repealed by 2004 c 271 § 193. Later enactment of RCW 29A.52.350, see RCW 29A.52.351. Purpose—1984 c 186: See note following RCW 39.46.110. (2008 Ed.) 39.40.030 39.36.060 Chapter not applicable to loan agreements under chapter 39.69 RCW. This chapter does not apply to a loan made pursuant to a loan agreement under chapter 39.69 RCW, and any computation of indebtedness under this chapter shall exclude the amount of any loan under such a loan agreement. [1987 c 19 § 5.] 39.36.060 39.36.900 Validation—1969 c 142. All bonds heretofore issued, or heretofore voted and which may have been or may hereafter be issued, by any taxing district pursuant to any of the foregoing sections as amended or for any of the purposes authorized by any of said sections are hereby validated. [1969 c 142 § 6.] 39.36.900 Chapter 39.40 RCW VOTE REQUIRED AT BOND ELECTIONS Chapter 39.40 Sections 39.40.010 39.40.020 39.40.030 39.40.040 39.40.900 Forty percent poll of voters required. Existing election laws to apply. Certification of votes—Canvass. Prior bonds not affected. Severability—1925 c 13. County acquisition of land for military purposes, bond election for: Chapter 37.16 RCW. County roads and bridges, bond elections: Chapter 36.76 RCW. Irrigation districts, bond elections: Chapter 87.03 RCW. Port districts, vote required for certain bond issues: RCW 53.36.030. Public utility districts, bond elections, vote required: RCW 54.24.018. 39.40.010 Forty percent poll of voters required. No general obligation bonds of any county, port district, or metropolitan park district upon which a vote of the people is required under existing laws shall be issued, nor shall they become a lien upon the taxable property within such county or district unless, in addition to all other requirements provided by law in the matter of the issuance of general obligation bonds by such county or district, the total vote cast upon such proposition shall exceed forty percent of the total number of voters voting in such county or district at the general county or state election next preceding such bond election. [1961 ex.s. c 15 § 1; 1959 c 290 § 3; 1925 c 13 § 1; RRS § 5646-1.] 39.40.010 Exceeding debt limitation by municipalities: State Constitution Art. 8 § 6 (Amendment 27). Vote required for excess levy to retire bonds issued for capital purposes: RCW 84.52.056. 39.40.020 Existing election laws to apply. In all such elections the provisions of existing law with respect to registration, opening and closing of registration books and the duties of officers and the appointment and selection of election officials shall apply. [1925 c 13 § 2; RRS § 5646-2.] 39.40.020 Election laws in general: Title 29A RCW. 39.40.030 Certification of votes—Canvass. The election officials in each of the precincts included within any such district shall, as soon as possible and in no case later than five days after the closing of the polls of any election involving the issuance of bonds, certify to the county auditor of the county within which such district is located the total 39.40.030 [Title 39 RCW—page 65] 39.40.040 Title 39 RCW: Public Contracts and Indebtedness number of votes cast for and against each separate proposal and the vote shall be canvassed and certified by a canvassing board consisting of the chairman of the board of county commissioners, the county auditor, and the prosecuting attorney who shall declare the result thereof. [1959 c 290 § 4; 1925 c 13 § 3; RRS § 5646-3.] 39.40.040 Prior bonds not affected. This chapter shall not affect the validity or the issuance of any such bonds voted at any lawful election held prior to the taking effect of this chapter. [1925 c 13 § 4; RRS § 5646-4.] 39.40.040 39.40.900 Severability—1925 c 13. If any section or provision of this chapter be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole, or any section, provision or part thereof not adjudged invalid or unconstitutional. [1925 c 13 § 5; RRS § 5646-5.] 39.40.900 Chapter 39.42 Chapter 39.42 RCW STATE BONDS, NOTES, AND OTHER EVIDENCES OF INDEBTEDNESS Sections 39.42.010 39.42.020 39.42.030 39.42.040 39.42.050 39.42.060 39.42.070 39.42.080 39.42.090 39.42.100 39.42.110 39.42.120 39.42.900 Scope of application. Evidences of indebtedness—Issuance—Signature. Evidences of indebtedness—Issuance—State finance committee, duties and powers. Disposition of proceeds from sale of bonds. Anticipation notes—Issued, when—Payment of principal and interest. Limitation on issuance of evidences of indebtedness—Annual computation of amount required to pay on outstanding debt. Computation of general state revenues—Filing of certificate— Estimate of debt capacity. Obligations allowable under debt limitation. Certificates of indebtedness—Issued, when—Retirement. Evidences of indebtedness—Defects not to affect validity— Copy of resolution authorizing issuance filed—Action to contest before delivery. Evidences of indebtedness—As negotiable instruments, legal investments, and security for deposits. Excess earnings account—Payments to United States treasury. Effective date—1971 ex.s. c 184. 39.42.010 Scope of application. This chapter shall apply to all bonds, notes and other evidences of indebtedness of the state authorized by the legislature after *the effective date of this chapter, unless otherwise provided in the authorizing acts. [1971 ex.s. c 184 § 1.] 39.42.010 *Reviser’s note: For "the effective date of this chapter," see RCW 39.42.900. 39.42.020 Evidences of indebtedness—Issuance— Signature. Bonds, notes or other evidences of indebtedness shall be issued by the state finance committee. They may be issued at one time or in a series from time to time. The maturity date of each series shall be determined by the state finance committee, but in no case shall any bonds mature later than thirty years from the date of issue. All evidences of indebtedness shall be signed in the name of the state by the governor and the treasurer. The facsimile signature of said officials is authorized and said evidences of indebtedness may be issued notwithstanding that any of the officials signing them or whose facsimile signatures appear on such evi39.42.020 [Title 39 RCW—page 66] dences of indebtedness has ceased to hold office at the time of issue or at the time of delivery to the purchaser. [1971 ex.s. c 184 § 2.] 39.42.030 Evidences of indebtedness—Issuance— State finance committee, duties and powers. The state finance committee shall determine by resolution the amount, date or dates, terms, conditions, covenants, denominations, interest rate or rates (which may be fixed or variable), maturity or maturities, redemption rights, manner of execution and authentication, manner and price of sale and form of all bonds, notes, or other evidences of indebtedness. Such bonds, notes, or other evidences of indebtedness shall be payable either to the bearer or to the registered owner as provided in RCW 39.46.030. The resolution may provide for the deposit in trust with any qualified public depository of all or any part of the proceeds of the bonds, notes, or other evidences of indebtedness or money set aside for the payment thereof. The state finance committee shall also determine by resolution whether interest on all or any part of the bonds is to be payable periodically during the term of such bonds or only at the maturity of the bonds. For purposes of the limitations on the amount of bonds authorized to be issued contained in the acts authorizing their issuance, the amount of bonds which pay interest only at maturity shall be equal to the price, exclusive of accrued interest, at which the bonds are initially offered to the public. The state finance committee may issue, under chapter 39.53 RCW and this chapter, bonds, notes, or other evidences of indebtedness to refund at or prior to maturity any outstanding state bonds, notes, or other evidences of indebtedness. The state finance committee may obtain bond insurance, letters of credit or other credit support instruments for the purpose of guaranteeing the payment or enhancing the marketability, or both, of any state bonds, notes, or other evidences of indebtedness, and may authorize the execution and delivery of agreements, promissory notes, and other related instruments. [1989 1st ex.s. c 14 § 16; 1983 c 167 § 104; 1971 ex.s. c 184 § 3.] 39.42.030 Severability—Effective dates—1989 1st ex.s. c 14: See RCW 43.99H.900 and 43.99H.901. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.42.040 Disposition of proceeds from sale of bonds. The proceeds of the sale of any bonds shall be used solely for the purposes, including any expense incurred in connection with the issuance and sale of such bonds, specified in the general statute or special act authorizing the issuance of such bonds. [1971 ex.s. c 184 § 4.] 39.42.040 39.42.050 Anticipation notes—Issued, when—Payment of principal and interest. When the state finance committee has decided to issue such bonds or a portion thereof, it may, pending the issuing of such bonds, issue, in the name of the state, temporary notes in anticipation of the money to be derived from the sale of such bonds, which notes shall be designated as "anticipation notes". If, prior to the issuance of the bonds, it becomes necessary to redeem outstanding notes, additional bond anticipation notes may be 39.42.050 (2008 Ed.) State Bonds, Notes, and Other Evidences of Indebtedness issued to redeem the outstanding notes. Such portion of the proceeds of the sale of such bonds as may be required for such purpose shall be applied to the payment of the principal of such anticipation notes which have been issued. The interest on anticipation notes shall be paid from the revenue source and with the same priority of payment specified in the respective bond acts for payment of principal of and interest on the bonds against which anticipation notes are sold. The procedure for paying the interest on the notes, including the transfer of necessary funds for that purpose, shall be the same as prescribed for the bonds. If the bonds shall constitute general obligations of the state and pledge the full faith and credit of the state to the payment thereof, then the notes issued in anticipation thereof shall state that they are a general obligation of the state of Washington, shall pledge the full faith and credit of the state to the payment of the principal thereof and the interest thereon, and shall contain an unconditional promise to pay the principal and interest as the same shall become due. The owner and holder of any of the notes or the trustee for the owner and holder of any of the notes may, by a mandamus or other appropriate proceeding, require the transfer and payment of funds as directed in this section. [1981 c 29 § 1; 1971 ex.s. c 184 § 5.] Application—1981 c 29: "This act shall apply to all outstanding bond anticipation notes of the state, and interest on the notes shall be paid as provided in RCW 39.42.050: PROVIDED, That in the event such interest is not paid as provided in RCW 39.42.050 it shall be paid from such source or sources as are specified in such notes." [1981 c 29 § 2.] 39.42.060 Limitation on issuance of evidences of indebtedness—Annual computation of amount required to pay on outstanding debt. No bonds, notes, or other evidences of indebtedness for borrowed money shall be issued by the state which will cause the aggregate debt contracted by the state to exceed that amount for which payments of principal and interest in any fiscal year would require the state to expend more than seven percent of the arithmetic mean of its general state revenues, as defined in RCW 39.42.070, for the three immediately preceding fiscal years as certified by the treasurer in accordance with RCW 39.42.070. It shall be the duty of the state finance committee to compute annually the amount required to pay principal of and interest on outstanding debt. In making such computation, the state finance committee shall include all borrowed money represented by bonds, notes, or other evidences of indebtedness which are secured by the full faith and credit of the state or are required to be paid, directly or indirectly, from general state revenues and which are incurred by the state, any department, authority, public corporation or quasi public corporation of the state, any state university or college, or any other public agency created by the state but not by counties, cities, towns, school districts, or other municipal corporations, and shall include debt incurred pursuant to section 3 of Article VIII of the Washington state Constitution, but shall exclude the following: (1) Obligations for the payment of current expenses of state government; (2) Indebtedness incurred pursuant to RCW 39.42.080 or 39.42.090; (3) Principal of and interest on bond anticipation notes; 39.42.060 (2008 Ed.) 39.42.060 (4) Any indebtedness which has been refunded; (5) Financing contracts entered into under chapter 39.94 RCW; (6) Indebtedness authorized or incurred before July 1, 1993, pursuant to statute which requires that the state treasury be reimbursed, in the amount of the principal of and the interest on such indebtedness, from money other than general state revenues or from the special excise tax imposed pursuant to chapter 67.40 RCW; (7) Indebtedness authorized and incurred after July 1, 1993, pursuant to statute that requires that the state treasury be reimbursed, in the amount of the principal of and the interest on such indebtedness, from (a) moneys outside the state treasury, except higher education operating fees, (b) higher education building fees, (c) indirect costs recovered from federal grants and contracts, and (d) fees and charges associated with hospitals operated or managed by institutions of higher education; (8) Any agreement, promissory note, or other instrument entered into by the state finance committee under RCW 39.42.030 in connection with its acquisition of bond insurance, letters of credit, or other credit support instruments for the purpose of guaranteeing the payment or enhancing the marketability, or both, of any state bonds, notes, or other evidence of indebtedness; (9) Indebtedness incurred for the purposes identified in RCW 43.99N.020; (10) Indebtedness incurred for the purposes of the school district bond guaranty established by chapter 39.98 RCW; (11) Indebtedness incurred for the purposes of replacing the waterproof membrane over the east plaza garage and revising related landscaping construction pursuant to RCW 43.99Q.070; (12) Indebtedness incurred for the purposes of the state legislative building rehabilitation, to the extent that principal and interest payments of such indebtedness are paid from the capitol building construction account pursuant to RCW 43.99Q.140(2)(b); (13) Indebtedness incurred for the purposes of financing projects under RCW 47.10.867; and (14) Indebtedness incurred for the purposes of school construction assistance grants and capital improvements for skill centers under RCW 28A.527.010. To the extent necessary because of the constitutional or statutory debt limitation, priorities with respect to the issuance or guaranteeing of bonds, notes, or other evidences of indebtedness by the state shall be determined by the state finance committee. [2008 c 179 § 301; 2003 c 147 § 13; 2002 c 240 § 7; 2001 2nd sp.s. c 9 § 18; 1999 c 273 § 9; 1997 c 220 § 220 (Referendum Bill No. 48, approved June 17, 1997); 1993 c 52 § 1. Prior: 1989 1st ex.s. c 14 § 17; 1989 c 356 § 7; 1983 1st ex.s. c 36 § 1; 1979 ex.s. c 204 § 1; 1971 ex.s. c 184 § 6.] Part headings not law—Severability—Effective date—2008 c 179: See RCW 28A.527.900 through 28A.527.902. Effective date—2003 c 147: See note following RCW 47.10.861. Severability—Effective date—2002 c 240: See RCW 43.99G.902 and 43.99G.903. Severability—Effective date—2001 2nd sp.s. c 9: See RCW 43.99Q.900 and 43.99Q.901. Contingent effective date—1999 c 273: See RCW 39.98.900. [Title 39 RCW—page 67] 39.42.070 Title 39 RCW: Public Contracts and Indebtedness Referendum—Other legislation limited—Legislators’ personal intent not indicated—Reimbursements for election—Voters’ pamphlet, election requirements—1997 c 220: See RCW 36.102.800 through 36.102.803. Part headings not law—Severability—1997 c 220: See RCW 36.102.900 and 36.102.901. Effective date—1993 c 52: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1993." [1993 c 52 § 2.] Severability—Effective dates—1989 1st ex.s. c 14: See RCW 43.99H.900 and 43.99H.901. 39.42.070 Computation of general state revenues— Filing of certificate—Estimate of debt capacity. (1) On or after *the effective date of this act, the treasurer shall compute general state revenues for the three fiscal years immediately preceding such date and shall determine the arithmetic mean thereof. As soon as is practicable after the close of each fiscal year thereafter, he or she shall do likewise. In determining the amount of general state revenues, the treasurer shall include all state money received in the treasury from each and every source whatsoever except: (a) Fees and revenues derived from the ownership or operation of any undertaking, facility or project; (b) moneys received as gifts, grants, donations, aid or assistance or otherwise from the United States or any department, bureau or corporation thereof, or any person, firm or corporation, public or private, when the terms and conditions of such gift, grant, donation, aid or assistance require the application and disbursement of such moneys otherwise than for the general purposes of the state of Washington; (c) moneys to be paid into and received from retirement system funds, and performance bonds and deposits; (d) moneys to be paid into and received from trust funds including but not limited to moneys received from taxes levied for specific purposes and the several permanent funds of the state and the moneys derived therefrom but excluding bond redemption funds; (e) proceeds received from the sale of bonds or other evidences of indebtedness. Upon computing general state revenues, the treasurer shall make and file in the office of the secretary of state, a certificate containing the results of such computations. Copies of said certificate shall be sent to each elected official of the state and each member of the legislature. The treasurer shall, at the same time, advise each elected official and each member of the legislature of the current available debt capacity of the state, and may make estimated projections for one or more years concerning debt capacity. (2) For purposes of this chapter, general state revenues shall also include revenues that are deposited in the general fund under RCW 82.45.180(2), lottery revenues as provided in RCW 67.70.240(3), revenues paid into the general fund under RCW 84.52.067, and revenues deposited into the student achievement fund and distributed to school districts as provided in RCW 84.52.068. [2007 c 215 § 2; 2003 1st sp.s. c 9 § 1; 2002 c 240 § 8; 1971 ex.s. c 184 § 7.] 39.42.070 *Reviser’s note: For "the effective date of this act," see RCW 39.42.900. Finding—Intent—2007 c 215: "The legislature finds that after passage of a constitutional amendment (*House Joint Resolution No. 4215 or Senate Joint Resolution No. 8220), the state investment board will be permitted in accordance with RCW 43.33A.140 to invest a portion of the higher education permanent funds in equities. The legislature further recognizes that by [Title 39 RCW—page 68] investing in equities, the value of the higher education permanent funds may fluctuate over time due to market changes even if no disposition of the fund principal is made. The removal of the word "irreducible" in this act, describing the higher education permanent funds, is needed to clarify that the mere reduction in market value of a permanent fund due to such fluctuations would not violate the mandate of the statute. It is the intent of the legislature to clarify state law to permit equity investment of higher education permanent funds even if there is a decline in the value of a permanent fund due to market changes. It is not the intent of the legislature to change the requirement that unless otherwise allowed by law the principal amounts in the higher education permanent funds are to be held in perpetuity for the benefit of the designated institutions and future generations, and that only the earnings from a higher education permanent fund may be appropriated to support the benefited institution." [2007 c 215 § 1.] *Reviser’s note: House Joint Resolution No. 4215 passed the legislature on April 11, 2007. Contingent effective date—2007 c 215: "This act takes effect if the proposed amendment to Article XVI of the state Constitution regarding investment of certain state moneys is validly submitted to and is approved and ratified by the voters at the next general election. If the proposed amendment is not approved and ratified, this act is void in its entirety." [2007 c 215 § 10.] The proposed amendment to Article XVI of the state Constitution (Substitute House Joint Resolution No. 4215) was approved by the people at the November 6, 2007, general election. Severability—Effective date—2002 c 240: See RCW 43.99G.902 and 43.99G.903. 39.42.080 Obligations allowable under debt limitation. The foregoing limitation on the aggregate amount of indebtedness of the state shall not prevent: (1) The issuance of obligations to refund or replace any such indebtedness existing at any time in an amount not exceeding 1.05 times the amount which, taking into account earnings from the investment of the proceeds of the issue, is required to pay the principal thereof, interest thereon, and any premium payable with respect thereto, and the costs incurred in accomplishing such refunding, as provided in chapter 39.53 RCW, as now or hereafter amended: PROVIDED, That any proceeds of the refunding, bonds in excess of those acquired to accomplish such refunding or any obligations acquired with such excess proceeds, shall be applied exclusively for the payment of principal, interest, or call premiums with respect to such refunding obligations; (2) The issuance of obligations in anticipation of revenues to be received by the state during a period of twelve calendar months next following their issuance; (3) The issuance of obligations payable solely from revenues of particular public improvements; (4) A pledge of the full faith, credit, and taxing power of the state to guarantee the payment of any obligation payable from any of revenues received from any of the following sources: (a) the fees collected by the state as license fees for motor vehicles; (b) excise taxes collected by the state on the sale, distribution, or use of motor vehicle fuel; and (c) interest on the permanent common school fund: PROVIDED, That the legislature shall, at all times, provide sufficient revenues from such sources to pay the principal and interest due on all obligations for which said source of revenue is pledged. [1974 ex.s. c 111 § 1; 1971 ex.s. c 184 § 8.] 39.42.080 Severability—1974 ex.s. c 111: "If any provision of this 1974 amendatory act, or its application to any person or circumstance is held invalid, the (2008 Ed.) Bonds—Miscellaneous Provisions, Bond Information Reporting remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1974 ex.s. c 111 § 6.] 39.42.090 Certificates of indebtedness—Issued, when—Retirement. The state finance committee may issue certificates of indebtedness in such sum or sums that may be necessary to meet temporary deficiencies of the treasury. Such certificates may be issued only to provide for the appropriations already made by the legislature and such certificates must be retired and the debt discharged other than by refunding within twelve months after the date of issuance. For the purposes of this section, the state treasury shall include all statutorily established funds and accounts except for any of the permanent funds of the state treasury. [2007 c 215 § 3; 1985 c 57 § 21; 1971 ex.s. c 184 § 9.] 39.42.090 Finding—Intent—Contingent effective date—2007 c 215: See notes following RCW 39.42.070. Effective date—1985 c 57: See note following RCW 18.04.105. 39.42.100 Evidences of indebtedness—Defects not to affect validity—Copy of resolution authorizing issuance filed—Action to contest before delivery. Bonds, notes, or other obligations issued and sold by the state of Washington pursuant to and in conformity with this chapter shall not be invalid for any irregularity or defect in the proceedings of the issuance or sale thereof, except as provided in this paragraph, and shall be incontestable in the hands of a bona fide purchaser or holder thereof. Whenever the state finance committee determines to issue bonds, notes or other evidences of indebtedness, it shall file with the treasurer a certified copy of the resolution authorizing their issuance at least thirty days prior to delivery to the purchaser of such bonds, notes, of other evidences of indebtedness. At any time prior to delivery, any person in interest shall have the right to institute an appropriate action or proceeding to contest the validity of the authorized indebtedness, the pledge of revenues for the payment of principal and interest on such indebtedness, the validity of the collection and disposition of revenue necessary to pay the principal and interest on such indebtedness, the expenditure of the proceeds derived from the sale of the evidences of indebtedness for the purposes specified by law, and the validity of all other provisions and proceedings in connection with the authorization and issuance of the evidences of indebtedness. If such action or proceeding shall not have been instituted prior to delivery, then the validity of the evidences of indebtedness shall be conclusively presumed and no court shall have authority to inquire into such matters. [1971 ex.s. c 184 § 10.] 39.42.100 39.42.110 Evidences of indebtedness—As negotiable instruments, legal investments, and security for deposits. All evidences of indebtedness issued under the provisions of this chapter shall be fully negotiable instruments and shall be legal investment for all state funds or for funds under state control and all funds of municipal corporations, and shall be legal security for all state, county and municipal deposits. [1971 ex.s. c 184 § 11.] 39.42.110 39.42.120 Excess earnings account—Payments to United States treasury. The excess earnings account is created in the state treasury. From the revenue funds from which 39.42.120 (2008 Ed.) 39.44.070 principal and interest payments on bonds are provided, the state treasurer shall periodically transfer to the excess earnings account such amounts as are owed to the federal government under section 148 of the federal internal revenue code. Pursuant to legislative appropriation from the excess earnings account, the state treasurer shall periodically remit to the United States treasury any amounts owed to the federal government under section 148 of the federal internal revenue code. [1988 c 92 § 1.] 39.42.900 Effective date—1971 ex.s. c 184. This act shall become effective coincident with the effective date of the constitutional amendment to Article VIII, section 1 and to Article VIII, section 3 of the Washington state Constitution as presented for a vote of the people by HJR 52, 1971 regular session. Unless such constitutional amendment shall be approved by the people at the next general election, this chapter shall be null and void. [1971 ex.s. c 184 § 12.] 39.42.900 Reviser’s note: House Joint Resolution No. 52 was approved by the voters at the November 1972 general election. Chapter 39.44 RCW BONDS—MISCELLANEOUS PROVISIONS, BOND INFORMATION REPORTING Chapter 39.44 Sections 39.44.070 39.44.100 39.44.101 39.44.102 39.44.110 39.44.120 39.44.130 39.44.140 39.44.200 39.44.210 39.44.230 39.44.240 39.44.900 Life of bonds. Facsimile signatures on bonds and coupons. Facsimile signatures on bonds and coupons—Fraud— Destruction of plates—Penalty. Facsimile signatures on bonds and coupons—Statements and signatures required on registered bonds. Registration—Payment—Assignment. Payment of coupon interest. Treasurers as registration officers—Fiscal agent. Revenue bonds—Funds for reserve purposes may be included in issue amount. State and local government bond information—Definitions. State and local government bond information—Submittal— Contents—Annual report. State and local government bond information—Rules. State and local government bond information—Validity of bonds not affected. Validation—Savings—1982 c 216. Cities and towns, local improvement bonds: Chapter 35.45 RCW. Counties, bonds form, interest, etc.: Chapter 36.67 RCW. to acquire land for military purposes, form, interest, etc.: Chapter 37.08 RCW. County road bonds, form, interest, etc.: Chapter 36.76 RCW. Funding bonds, interest rate, form, sale, payment, etc.: Chapter 39.52 RCW. Industrial development revenue bonds: Chapter 39.84 RCW. Irrigation district bonds, form, interest, maturity, etc.: RCW 87.03.200. Municipal revenue bond act: Chapter 35.41 RCW. Port district bonds, form, terms, etc.: Chapters 53.40 and 53.44 RCW. Public utility district bonds, form, terms, etc.: RCW 54.24.018. School district bonds, form, terms of sale, etc.: Chapter 28A.530 RCW. Validation: Chapter 39.90 RCW. Water-sewer district bonds, form, terms, etc.: RCW 57.20.010. 39.44.070 Life of bonds. Notwithstanding the provisions of any charter to the contrary, bonds issued under *RCW 39.44.010 through 39.44.080 may be issued to run for a period up to forty years from the date of the issue and shall, as near as practicable, be issued for a period which shall not 39.44.070 [Title 39 RCW—page 69] 39.44.100 Title 39 RCW: Public Contracts and Indebtedness exceed the life of the improvement to be acquired by the use of the bonds. [1967 c 107 § 5; 1923 c 151 § 5; RRS § 55835.] *Reviser’s note: RCW 39.44.010, 39.44.011, 39.44.020, 39.44.030, 39.44.060, and 39.44.080 were repealed by 1984 c 186 § 70. 39.44.100 39.44.100 Facsimile signatures on bonds and coupons. On all bonds hereafter issued by the state or any agency thereof or by any county, city, town, municipal corporation, quasi municipal corporation, junior taxing district, school district or other political subdivision of the state, the printed, engraved or lithographed facsimile signatures of the officers required by law to sign the bonds or any interest coupons thereon shall be sufficient signature on such bonds or coupons: PROVIDED, That such facsimile signatures shall not be used on the bonds of issues of less than one hundred thousand dollars par value and may always be used on interest coupons. Whenever such facsimile signature reproduction of the signature of any officer is used in place of the personal signature of such officer, the issuing authority shall specify in a written order or requisition to the printer, engraver, or lithographer, the number of bonds or coupons upon which such facsimile signature is to be printed, engraved, or lithographed, and the manner of numbering the bonds or coupons upon which such signature shall be placed. Within ninety days after the completion of the printing, engraving, or lithographing of such bonds or coupons, the plate or plates used for the purpose of affixing the facsimile signature shall be destroyed and it shall be the duty of the issuing authority, within ninety days after receipt of the completed bonds or coupons, to ascertain that such plate or plates have been destroyed. [1983 c 167 § 107; 1961 c 141 § 3; 1955 c 375 § 1; 1941 c 52 § 1; Rem. Supp. 1941 § 5583-1a.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Uniform facsimile signature of public officials act: Chapter 39.62 RCW. 39.44.110 Registration—Payment—Assignment. Upon the presentation at the office of the officer or agent hereinafter provided for, any bond which is bearer in form that has heretofore been or may hereafter be issued by any county, city, town, port, school district, or other municipal or quasi municipal corporation in this state, may, if so provided in the proceedings authorizing the issuance of the same, be registered as to principal in the name of the owner upon the books of such municipality to be kept in said office, such registration to be noted on the reverse of the bond by such officer or agent. The principal of any bond so registered shall be payable only to the payee, his legal representative, successors or assigns, and such bond shall be transferable to another registered holder or back to bearer only upon presentation to such officer or agent, with a written assignment duly acknowledged or proved. The name of the assignee shall be written upon any bond so transferred and in the books so kept in the office of such officer or agent. [1983 c 167 § 108; 1961 c 141 § 4; 1915 c 91 § 1; RRS § 5494.] 39.44.110 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.44.120 Payment of coupon interest. If so provided in the proceedings authorizing the issuance of any such bonds, upon the registration thereof as to principal, or at any time thereafter, the coupons thereto attached, evidencing all interest to be paid thereon to the date of maturity, may be surrendered to the officer or agent hereinafter provided and the bonds shall also become registered as to interest. Such coupons shall be canceled by such officer or agent, who shall sign a statement endorsed upon such bond of the cancellation of all unmatured coupons and the registration of such bond. Thereafter the interest evidenced by such canceled coupons shall be paid at the times provided therein to the registered owner of such bond in lawful money of the United States of America mailed to his address. [1983 c 167 § 109; 1961 c 141 § 5; 1915 c 91 § 2; RRS § 5495.] 39.44.120 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.44.101 39.44.101 Facsimile signatures on bonds and coupons—Fraud—Destruction of plates—Penalty. Every printer, engraver, or lithographer, who with the intent to defraud, prints, engraves, or lithographs a facsimile signature upon any bond or coupon without written order of the issuing authority, or fails to destroy such plate or plates containing the facsimile signature upon direction of such issuing authority, is guilty of a class B felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 212; 1955 c 375 § 2.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. Fraud, forgery: Chapter 9A.60 RCW. 39.44.102 39.44.102 Facsimile signatures on bonds and coupons—Statements and signatures required on registered bonds. Where any bond so issued requires registration by the county treasurer, that bond shall bear a statement on the back thereof showing the name of the person to whom sold, date of issue, the number and series of the bond, and shall be signed by the county treasurer in his own name or by a deputy county treasurer in his own name. [1955 c 375 § 3.] [Title 39 RCW—page 70] 39.44.130 Treasurers as registration officers—Fiscal agent. (1) The duties prescribed in this chapter as to the registration of bonds of any city or town shall be performed by the treasurer thereof, and as to those of any county, port or school district by the county treasurer of the county in which such port or school district lies; but any treasurer as defined in RCW 39.46.020 may designate its legally designated fiscal agency or agencies for the performance of such duties, after making arrangements with such fiscal agency therefor, which arrangements may include provision for the payment by the bond owner of a fee for each registration. (2) The county treasurer as ex officio treasurer of a special district shall act as fiscal agent or may appoint the fiscal agent to be used by the county. [1995 c 38 § 5; 1994 c 301 § 9; 1985 c 84 § 2; 1983 c 167 § 110; 1971 ex.s. c 79 § 1; 1915 c 91 § 3; RRS § 5496.] 39.44.130 Acts of municipal officers ratified and confirmed—1995 c 38: See note following RCW 3.02.045. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Fiscal agencies: Chapter 43.80 RCW. (2008 Ed.) Bonds—Miscellaneous Provisions, Bond Information Reporting 39.44.140 Revenue bonds—Funds for reserve purposes may be included in issue amount. Any county, city, town, political subdivision, or other municipal or quasi municipal corporation authorized to issue revenue bonds may include in the amount of any such issue funds for the purpose of establishing, maintaining or increasing reserves to: (1) Secure the payment of the principal of and interest on such revenue bonds; or (2) Provide for replacements or renewals of or repairs or betterments to revenue producing facilities; or (3) Provide for contingencies, including, but not limited to, loss of revenue caused by such contingencies. The authority granted pursuant to this section is additional and supplemental to any existing authority to issue revenue bonds and nothing in this section shall prevent the issuance of such bonds pursuant to any other law: PROVIDED, That no such bond issue may include an amount in excess of fifteen percent thereof for the purpose of establishing, maintaining or increasing reserves as enumerated above. [1983 c 167 § 111; 1977 ex.s. c 229 § 1.] 39.44.140 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.44.200 State and local government bond information—Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 39.44.200 through 39.44.240. (1) "Bond" means "bond" as defined in RCW 39.46.020, but also includes any other indebtedness that may be issued by any local government to fund private activities or purposes where the indebtedness is of a nonrecourse nature payable from private sources, including debt issued under chapter 39.50 RCW. (2) "Local government" means "local government" as defined in RCW 39.46.020. (3) "Type of bond" includes: (a) General obligation bonds, including councilmanic and voter-approved bonds; (b) revenue bonds; (c) local improvement district bonds; (d) special assessment bonds such as those issued by irrigation districts and diking districts; and (e) other classes of bonds. (4) "State" means "state" as defined in RCW 39.46.020 but also includes any commissions or other entities of the state. [2001 c 299 § 14; 1990 c 220 § 1; 1989 c 225 § 1; 1987 c 297 § 12; 1985 c 130 § 5.] 39.44.900 and (6) the type of bonds that are issued. A copy of the bond covenants shall be supplied with this information. For each state or local government bond issued, the issuer’s bond counsel promptly shall provide to the underwriter or to the department of community, trade, and economic development information on the amount of any fees charged for services rendered with regard to the bond issue. Each local government that issues any type of bond shall make a report annually to the department of community, trade, and economic development that includes a summary of all the outstanding bonds of the local government as of the first day of January in that year. Such report shall distinguish the outstanding bond issues on the basis of the type of bond, as defined in RCW 39.44.200, and shall report the local government’s outstanding indebtedness compared to any applicable limitations on indebtedness, including RCW 35.42.200, 39.30.010, and 39.36.020. [1995 c 399 § 54; 1990 c 220 § 2; 1989 c 225 § 2; 1985 c 130 § 1.] Fiscal agencies: Chapter 43.80 RCW. Publication of local government bond information by department of community, trade, and economic development—Adoption of rules: RCW 43.63A.155. 39.44.200 Severability—1987 c 297: See RCW 39.86.906. 39.44.210 State and local government bond information—Submittal—Contents—Annual report. For each state or local government bond issued, the underwriter of the issue shall supply the department of community, trade, and economic development with information on the bond issue within twenty days of its issuance. In cases where the issuer of the bond makes a direct or private sale to a purchaser without benefit of an underwriter, the issuer shall supply the required information. The bond issue information shall be provided on a form prescribed by the department of community, trade, and economic development and shall include but is not limited to: (1) The par value of the bond issue; (2) the effective interest rates; (3) a schedule of maturities; (4) the purposes of the bond issue; (5) cost of issuance information; 39.44.210 (2008 Ed.) 39.44.230 39.44.230 State and local government bond information—Rules. The department of community, trade, and economic development may adopt rules and regulations pursuant to the administrative procedure act to require (1) the submission of bond issuance information by underwriters and bond counsel to the department of community, trade, and economic development in a timely manner and (2) the submission of additional information on bond issues by state and local governments, including summaries of outstanding bond issues. [1995 c 399 § 55; 1989 c 225 § 3; 1985 c 130 § 3.] 39.44.240 39.44.240 State and local government bond information—Validity of bonds not affected. Failure to file the information required by RCW 39.44.210 and 39.44.230 shall not affect the validity of the bonds that are issued. [1989 c 225 § 4; 1985 c 130 § 4.] 39.44.900 39.44.900 Validation—Savings—1982 c 216. All bonds, the issuance of which was authorized or ratified at a general or special election held within the issuing jurisdiction prior to April 3, 1982, or the proposition for the issuance of which will be submitted at such an election pursuant to action of the legislative authority of the issuer taken prior to April 3, 1982, may be sold and issued with an interest rate or rates greater than any interest rate restriction contained in the ballot proposition or ordinance or resolution relating to such authorization or ratification if such bonds are or were sold and issued in accordance with the sale provisions and with an interest rate or rates not greater than those permitted by the applicable provision of *this amendatory act, and any such bonds heretofore sold are declared valid obligations of the issuer. This section shall not apply to bonds having a total value exceeding fifteen million dollars. [1982 c 216 § 12.] *Reviser’s note: For codification of "this amendatory act" [1982 c 216], see Codification Tables, Volume 0. [Title 39 RCW—page 71] Chapter 39.46 Chapter 39.46 Title 39 RCW: Public Contracts and Indebtedness Chapter 39.46 RCW BONDS—OTHER MISCELLANEOUS PROVISIONS—REGISTRATION Sections 39.46.010 39.46.020 39.46.030 39.46.040 39.46.050 39.46.060 39.46.070 39.46.100 39.46.110 39.46.120 39.46.150 39.46.160 Purposes—Liberal construction. Definitions. Registration system authorized—Requirements—Fiscal agencies, agents. Bonds—Issuer to determine amount, terms, conditions, interest, etc. Bonds—Issuer authorized to establish lines of credit. Bonds—Reproduction of physical instrument. Bonds—Payment of costs of issuance and sale. RCW 39.46.010 through 39.46.070 constitutes alternative method. Local government general obligation bonds—Indebtedness— Payment—Notice by special district. Notice of intent to sell general obligation bonds. Revenue bonds—Alternative method of issuance—Limitations. Revenue bonds—Alternative method of issuance—Bonds may include reserve funds. 39.46.010 Purposes—Liberal construction. The purposes of this chapter are to permit the state and local governments to conform with registration requirements of federal law which are necessary to exempt interest payments from federal income taxes when the state or local governments issue bonds or incur other obligations and to authorize the establishment and maintenance of differing systems of registering bonds and other obligations as these systems are developed and recognized, which may be instituted, discontinued, and reinstituted from time to time. It is further the purpose of this chapter to grant local governments an alternative flexible authority to structure and sell their bond issues and to include a variety of features on their bonds. This act shall be liberally construed to effect its purposes. [1983 c 167 § 1.] 39.46.010 Severability—1983 c 167: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 c 167 § 273.] 39.46.020 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Bond" means any agreement which may or may not be represented by a physical instrument, including notes, warrants, or certificates of indebtedness, that evidences an indebtedness of the state or a local government or a fund thereof, where the state or local government agrees to pay a specified amount of money, with or without interest, at a designated time or times to either registered owners or bearers, including debt issued under chapter 39.50 RCW. (2) "Local government" means any county, city, town, special purpose district, political subdivision, municipal corporation, or quasi municipal corporation, including any public corporation created by such an entity. (3) "Obligation" means an agreement that evidences an indebtedness of the state or a local government, other than a bond, and includes, but is not limited to, conditional sales contracts, lease obligations, and promissory notes. (4) "State" includes the state, agencies of the state, and public corporations created by the state or agencies of the state. 39.46.020 [Title 39 RCW—page 72] (5) "Treasurer" means the state treasurer, county treasurer, city treasurer, or treasurer of any other municipal corporation. [2001 c 299 § 15; 1995 c 38 § 6; 1994 c 301 § 10; 1983 c 167 § 2.] Acts of municipal officers ratified and confirmed—1995 c 38: See note following RCW 3.02.045. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.030 Registration system authorized—Requirements—Fiscal agencies, agents. (1) The state and local governments are authorized to establish a system of registering the ownership of their bonds or other obligations as to principal and interest, or principal only. Registration may include, without limitation: (a) A book entry system of recording the ownership of a bond or other obligation whether or not a physical instrument is issued; or (b) recording the ownership of a bond or other obligation together with the requirement that the transfer of ownership may only be effected by the surrender of the old bond or other obligation and either the reissuance of the old bond or other obligation or the issuance of a new bond or other obligation to the new owner. (2) The system of registration shall define the method or methods by which transfer of the registered bonds or other obligations shall be effective, and by which payment of principal and any interest shall be made. The system of registration may permit the issuance of bonds or other obligations in any denomination to represent several registered bonds or other obligations of smaller denominations. The system of registration may also provide for any writing relating to a bond or other obligation that is not issued as a physical instrument, for identifying numbers or other designations, for a sufficient supply of certificates for subsequent transfers, for record and payment dates, for varying denominations, for communications to the owners of bonds or other obligations, for accounting, canceled certificate destruction, registration and release of securing interests, and for such other incidental matters pertaining to the registration of bonds or other obligations as the issuer may deem to be necessary or appropriate. (3)(a) The state treasurer or a local treasurer may appoint (i) one or more of the fiscal agencies appointed from time to time by the state finance committee in accordance with chapter 43.80 RCW or (ii) other fiscal agents to act with respect to an issue of its bonds or other obligations as authenticating trustee, transfer agent, registrar, and paying or other agent and specify the rights and duties and means of compensation of any such fiscal agency so acting. The state treasurer or local treasurers may also enter into agreements with the fiscal agency or agencies in connection with the establishment and maintenance by such fiscal agency or agencies of a central depository system for the transfer or pledge of bonds or other obligations. (b) The county treasurer as ex officio treasurer of a special district shall act as fiscal agent for such special district, unless the county treasurer appoints either one or more of the fiscal agencies appointed from time to time by the state finance committee in accordance with chapter 43.80 RCW or other fiscal agents selected in a manner consistent with RCW 43.80.120 to act with respect to an issue of its bonds or other obligations as authenticating trustee, transfer agent, registrar, 39.46.030 (2008 Ed.) Bonds—Other Miscellaneous Provisions—Registration and paying or other agent and specify the rights and duties and means of compensation of any such fiscal agency. (4) Nothing in this section precludes the issuer, or a trustee appointed by the issuer pursuant to any other provision of law, from itself performing, either alone or jointly with other issuers, fiscal agencies, or trustees, any transfer, registration, authentication, payment, or other function described in this section. [1995 c 38 § 7; 1994 c 301 § 11; 1985 c 84 § 1; 1983 c 167 § 3.] Acts of municipal officers ratified and confirmed—1995 c 38: See note following RCW 3.02.045. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.110 tion of construction, necessary and related engineering, architectural, planning, and inspection costs, and other similar activities or purposes. (2) In addition to the costs enumerated in subsection (1) of this section, costs authorized under this section include capitalized interest for up to seventy-two months from the date of issuance for bonds issued by the state for the construction of a public toll bridge under chapter 47.46 RCW. [2002 c 114 § 22; 1983 c 167 § 7.] Finding—Intent—2002 c 114: See RCW 47.46.011. Captions not law—2002 c 114: See note following RCW 47.46.011. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.040 Bonds—Issuer to determine amount, terms, conditions, interest, etc. A local government authorized to issue bonds shall determine for the bond issue its amount, date or dates, terms not in excess of the maximum term otherwise provided in law, conditions, bond denominations, interest rate or rates, which may be fixed or variable, interest payment dates, maturity or maturities, redemption rights, registration privileges, manner of execution, price, manner of sale, covenants, and form, including registration as to principal and interest, registration as to principal only, or bearer. Registration may be as provided in RCW 39.46.030. [1983 c 167 § 4.] 39.46.100 RCW 39.46.010 through 39.46.070 constitutes alternative method. RCW 39.46.010 through 39.46.070 shall be deemed to provide a complete, additional, and alternative method for the performance of those subjects authorized by these sections and shall be regarded as supplemental and additional to powers conferred by other state laws. Whenever bonds and other obligations are issued and sold in conformance with RCW 39.46.010 through 39.46.070, such issuance and sale need not comply with contrary requirements of other state laws applicable to the issuance and sale of bonds or other obligations. [1983 c 167 § 8.] Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.050 Bonds—Issuer authorized to establish lines of credit. Each local government authorized to issue bonds is authorized to establish lines of credit with any qualified public depository to be drawn upon in exchange for its bonds or other obligations, to delegate to its treasurer authority to determine the amount of credit extended, and to pay interest and other finance or service charges. The interest rates on such bonds or other obligations may be a fixed rate or rates set periodically or a variable rate or rates determined by agreement of the parties. [2003 c 23 § 1; 1983 c 167 § 5.] 39.46.110 Local government general obligation bonds—Indebtedness—Payment—Notice by special district. (1) General obligation bonds of local governments shall be subject to this section. Unless otherwise stated in law, the maximum term of any general obligation bond issue shall be forty years. (2) General obligation bonds constitute an indebtedness of the local government issuing the bonds that are subject to the indebtedness limitations provided in Article VIII, section 6 of the state Constitution and are payable from tax revenues of the local government and such other money lawfully available and pledged or provided by the governing body of the local government for that purpose. Such governing body may pledge the full faith, credit and resources of the local government for the payment of general obligation bonds. The payment of such bonds shall be enforceable in mandamus against the local government and its officials. The officials now or hereafter charged by law with the duty of levying taxes pledged for the payment of general obligation bonds and interest thereon shall, in the manner provided by law, make an annual levy of such taxes sufficient together with other moneys lawfully available and pledge [pledged] therefor to meet the payments of principal and interest on the bonds as they come due. (3) General obligation bonds, whether or not issued as physical instruments, shall be executed in the manner determined by the governing body or legislative body of the issuer. If the issuer is the county or a special district for which the county treasurer is the treasurer, the issuer shall notify the county treasurer at least thirty days in advance of authorizing the issuance of bonds or the incurrence of other certificates of indebtedness. 39.46.040 39.46.050 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.060 Bonds—Reproduction of physical instrument. Where bonds are issued by the state or a local government as physical instruments, the bonds shall be printed, engraved, lithographed, typed, or reproduced and the manual or facsimile signatures of both a designated officer and chairperson of the governing body or chief executive shall be included on each bond. [1983 c 167 § 6.] 39.46.060 Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.46.070 Bonds—Payment of costs of issuance and sale. (1) Except as provided in subsection (2) of this section, the proceeds of any bonds issued by the state or a local government may be used to pay incidental costs and costs related to the sale and issuance of the bonds. Such costs include payments for fiscal and legal expenses, obtaining bond ratings, printing, engraving, advertising, establishing and funding reserve accounts and other accounts, an amount for working capital, capitalized interest for up to six months after comple39.46.070 (2008 Ed.) 39.46.100 39.46.110 [Title 39 RCW—page 73] 39.46.120 Title 39 RCW: Public Contracts and Indebtedness (4) Unless another statute specifically provides otherwise, the owner of a general obligation bond, or the owner of an interest coupon, issued by a local government shall not have any claim against the state arising from the general obligation bond or interest coupon. (5) As used in this section, the term "local government" means every unit of local government, including municipal corporations, quasi municipal corporations, and political subdivisions, where property ownership is not a prerequisite to vote in the local government’s elections. [1998 c 106 § 7; 1995 c 38 § 8; 1994 c 301 § 12; 1984 c 186 § 2.] Acts of municipal officers ratified and confirmed—1995 c 38: See note following RCW 3.02.045. Purpose—1984 c 186: "The purpose of this 1984 act is to provide simplified and uniform authorities for various local governments to issue and sell general obligation bonds. It is not the purpose of this 1984 act to alter the indebtedness limitation of local governments." [1984 c 186 § 1.] 39.46.120 Notice of intent to sell general obligation bonds. Notice of intent to sell general obligation bonds at a public sale shall be provided in a reasonable manner as determined by the legislative authority or governing body of the issuer. [1984 c 186 § 4.] 39.46.120 Purpose—1984 c 186: See note following RCW 39.46.110. 39.46.150 Revenue bonds—Alternative method of issuance—Limitations. (1) Any local government authorized to issue revenue bonds may issue revenue bonds under this section and RCW 39.46.160. If a local government chooses to issue revenue bonds under this section and RCW 39.46.160, the issue shall be subject to the limitations and restrictions of these sections. The authority to issue revenue bonds under this section and RCW 39.46.160 is supplementary and in addition to any authority otherwise existing. The maximum term of any revenue bonds shall be forty years unless another statute authorizing the local government to issue revenue bonds provides for a different maximum term, in which event the local government may issue revenue bonds only with terms not in excess of such different maximum term. (2) The governing body of a local government issuing revenue bonds shall create a special fund or funds, or use an existing special fund or funds, exclusively from which, along with reserve funds which may be created by the governing body, the principal and interest on such revenue bonds shall be payable. These reserve funds include those authorized to be created by RCW 39.46.160. Subject to the limitations contained in this section, the governing body of a local government may provide such covenants as it may deem necessary to secure the payment of the principal of and interest on revenue bonds, and premium on revenue bonds, if any. Such covenants may include, but are not limited to, depositing certain revenues into a special fund or funds as provided in subsection (3) of this section; establishing, maintaining, and collecting fees, rates, charges, tariffs, or rentals, on facilities and services, the income of which is pledged for the payment of such bonds; operating, maintaining, managing, accounting, and auditing the local government; appointing trustees, depositaries, and paying agents; and any and all matters of like or different character, which affect the security or protection of the revenue bonds. 39.46.150 [Title 39 RCW—page 74] (3) The governing body may obligate the local government to set aside and pay into a special fund or funds created under subsection (2) of this section a proportion or a fixed amount of the revenues from the following: (a) The public improvements, projects, or facilities that are financed by the revenue bonds; or (b) the public utility or system, or an addition or extension to the public utility or system, where the improvements, projects, or facilities financed by the revenue bonds are a portion of the public utility or system; or (c) all the revenues of the local government; or (d) any other money legally available for such purposes. As used in this subsection, the term "revenues" includes the operating revenues of a local government that result from fees, rates, charges, tariffs, or rentals imposed upon the use or availability or benefit from projects, facilities, or utilities owned or operated by the local government and from related services provided by the local government and other revenues legally available to be pledged to secure the revenue bonds. The proportion or fixed amount of revenue so obligated shall be a lien and charge against these revenues, subject only to maintenance and operating expenses. The governing body shall have due regard for the cost of maintenance and operation of the public utility, system, improvement, project, facility, addition, or extension that generates revenues obligated to be placed into the special fund or funds from which the revenue bonds are payable, and shall not set aside into the special fund or funds a greater amount or proportion of the revenues that in its judgment will be available over and above such cost of maintenance and operation and the proportion or fixed amount, if any, of the revenue so previously pledged. Other revenues, including tax revenues, lawfully available for maintenance or operation of revenue generating facilities may be used for maintenance and operation purposes even though the facilities are acquired, constructed, expanded, replaced, or repaired with moneys arising from the sale of revenue bonds. However, the use of these other revenues for maintenance and operation purposes shall not be deemed to directly or indirectly guarantee the revenue bonds or create a general obligation. The obligation to maintain and impose fees, rates, charges, tariffs, or rentals at levels sufficient to finance maintenance and operations shall remain if the other revenues available for such purposes diminish or cease. The governing body may also provide that revenue bonds payable out of the same source or sources of revenue may later be issued on a parity with any revenue bonds being issued and sold. (4) A revenue bond issued by a local government shall not constitute an obligation of the state, either general or special, nor a general obligation of the local government issuing the bond, but is a special obligation of the local government issuing the bond, and the interest and principal on the bond shall only be payable from the special fund or funds established pursuant to subsection (2) of this section, the revenues lawfully pledged to the special fund or funds, and any lawfully created reserve funds. The owner of a revenue bond shall not have any claim for the payment thereof against the local government arising from the revenue bond except for payment from the special fund or funds, the revenues lawfully pledged to the special fund or funds, and any lawfully created reserve funds. The owner of a revenue bond issued by a local government shall not have any claim against the state (2008 Ed.) Short-Term Obligations—Municipal Corporations arising from the revenue bond. Tax revenues shall not be used directly or indirectly to secure or guarantee the payment of the principal of or interest on revenue bonds. [(5)] The substance of the limitations included in this subsection shall be plainly printed, written, engraved, or reproduced on: (a) Each revenue bond that is a physical instrument; (b) the official notice of sale; and (c) each official statement associated with the bonds. (6) The authority to create a fund shall include the authority to create accounts within a fund. (7) Local governments issuing revenue bonds, payable from revenues derived from projects, facilities, or utilities, shall covenant to maintain and keep these projects, facilities, or utilities in proper operating condition for their useful life. [1986 c 168 § 1.] Funds for reserve purposes may be included in issue amount: RCW 39.44.140. 39.46.160 Revenue bonds—Alternative method of issuance—Bonds may include reserve funds. Any local government issuing revenue bonds under this section and RCW 39.46.150 may include in the amount of any such issue money for the purpose of establishing, maintaining, or increasing reserve funds to: (1) Secure the payment of the principal of and interest on such revenue bonds; or (2) Provide for replacements or renewals of or repairs or betterments to revenue producing facilities; or (3) Provide for contingencies, including, but not limited to, loss of revenue caused by such contingencies. [1986 c 168 § 2.] 39.46.160 Chapter 39.48 Chapter 39.48 RCW BONDS SOLD TO GOVERNMENT AT PRIVATE SALE Sections 39.48.010 39.48.020 39.48.030 39.48.040 Authority conferred. Amortization—Requirements relaxed. "Issuer" defined. Chapter optional. 39.48.010 Authority conferred. Bonds and securities of all kinds heretofore or hereafter authorized, issued by any issuing corporation or district (hereinafter called the "issuer" and as hereinafter specified), whether such bonds and securities be issued for such issuer itself or for any other taxing or assessment district within its limits, and whether payable in whole or in part out of and from general taxes or payable in whole or in part out of and from the earnings to be derived from any utility, system, construction, work, or works, belonging to or operated by any such issuer, or payable in whole or in part out of and from "local" or "benefit" assessments upon lands within any assessment district or assessment subdivision within any such issuer, may be sold to the United States government or to any department, corporation or agency thereof by private sale without giving any prior notice thereof by publication or otherwise and in such manner as the governing authority of such issuer may provide: PROVIDED, Only that bonds or other securities sold at private sale under the authority of this chapter shall bear interest at a rate or rates as authorized by the issuer and that all bonds and securities sold and issued under the authority of this chapter shall be sold, if now required by existing law, at not less than par and accrued interest. [1970 ex.s. c 56 § 59; 1969 ex.s. c 232 § 76; 1933 ex.s. c 30 § 1; RRS § 5583-11.] Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Validation—Saving—Severability—1969 ex.s. c 232: See notes following RCW 39.52.020. 39.48.020 Amortization—Requirements relaxed. It shall be proper to provide with respect to any bonds now required to be amortized as provided by *RCW 39.44.010 through 39.44.080, that such amortized annual maturities shall commence to be payable at any time on or before five years from the date of said bonds, and that any bonds, or any part thereof, issued under the authority of this chapter, shall be redeemable prior to their fixed maturities, as provided by the governing board or authority of any such issuer. [1933 ex.s. c 30 § 2; RRS § 5583-12.] 39.48.020 *Reviser’s note: RCW 39.44.010, 39.44.011, 39.44.020, 39.44.030, 39.44.060, and 39.44.080 were repealed by 1984 c 186 § 70. 39.48.030 "Issuer" defined. The issuing corporations, districts, and subdivisions hereinbefore referred to and described as "issuer", shall include any county, city, town, school district, port district, metropolitan park district, taxing district, assessment district or any public corporation or municipal corporation authorized by existing law to issue bonds, securities or other evidences of indebtedness for itself or for any other taxing or assessment district therein or department thereof. [1933 ex.s. c 30 § 3; RRS § 5583-13.] 39.48.030 39.48.040 Chapter optional. It shall be optional with any such issuer, at its discretion, to exercise all or any of the powers conferred by this chapter in connection with the adoption and exercise by any such issuer of the provisions and powers granted by existing law. [1933 ex.s. c 30 § 4; RRS § 5583-14.] 39.48.040 Chapter 39.50 39.48.010 (2008 Ed.) 39.50.010 Chapter 39.50 RCW SHORT-TERM OBLIGATIONS— MUNICIPAL CORPORATIONS Sections 39.50.010 39.50.020 39.50.030 39.50.040 39.50.050 39.50.060 39.50.070 39.50.900 Definitions. Short-term obligations authorized. Issuance of short-term obligations—Procedure—Interest rate—Contracts for future sale. Refunding and renewal of short-term obligations. Short-term obligations—Security. Nonvoted general indebtedness. Funds for payment of principal and interest. Chapter cumulative—Applicability to joint operating agencies. 39.50.010 Definitions. As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise. (1) "Governing body" means the legislative authority of a municipal corporation by whatever name designated; (2) "Local improvement district" includes local improvement districts, utility local improvement districts, road 39.50.010 [Title 39 RCW—page 75] 39.50.020 Title 39 RCW: Public Contracts and Indebtedness improvement districts, and other improvement districts that a municipal corporation is authorized by law to establish; (3) "Municipal corporation" means any city, town, county, water-sewer district, school district, port district, public utility district, metropolitan municipal corporation, public transportation benefit area, park and recreation district, irrigation district, fire protection district or any other municipal or quasi municipal corporation described as such by statute, or regional transit authority, except joint operating agencies under chapter 43.52 RCW; (4) "Ordinance" means an ordinance of a city or town or resolution or other instrument by which the governing body of the municipal corporation exercising any power under this chapter takes formal action and adopts legislative provisions and matters of some permanency; and (5) "Short-term obligations" are warrants, notes, capital leases, or other evidences of indebtedness, except bonds. [2001 c 299 § 16; 1999 c 153 § 54; 1998 c 106 § 8; 1985 c 332 § 8; 1982 c 216 § 2.] Part headings not law—1999 c 153: See note following RCW 57.04.050. 39.50.020 Short-term obligations authorized. Subject to any applicable budget requirements, any municipal corporation may borrow money and issue short-term obligations as provided in this chapter, the proceeds of which may be used for any lawful purpose of the municipal corporation. Shortterm obligations may be issued in anticipation of the receipt of revenues, taxes, or grants or the sale of (1) general obligation bonds if the bonds may be issued without the assent of the voters or if previously ratified by the voters; (2) revenue bonds if the bonds have been authorized by ordinance; (3) local improvement district bonds if the bonds have been authorized by ordinance. These short-term obligations shall be repaid out of money derived from the source or sources in anticipation of which they were issued or from any money otherwise legally available for this purpose. [1982 c 216 § 3.] 39.50.020 39.50.030 Issuance of short-term obligations—Procedure—Interest rate—Contracts for future sale. (1) The issuance of short-term obligations shall be authorized by ordinance of the governing body which ordinance shall fix the maximum amount of the obligations to be issued or, if applicable, the maximum amount which may be outstanding at any time, the maximum term and interest rate or rates to be borne thereby, the manner of sale, maximum price, form including bearer or registered as provided in RCW 39.46.030, terms, conditions, and the covenants thereof. For those municipalities and taxing and assessment districts for which the county treasurer is not the designated treasurer by law, the ordinance may provide for designation and employment of a paying agent for the short-term obligations and may authorize a designated representative of the municipal corporation, subject to the terms of the ordinance in selling and delivering short-term obligations authorized and fixing the dates, price, interest rates, and other details as may be specified in the ordinance. For the county and those taxing and assessment districts for which the county treasurer is the designated treasurer by law or other appointment, the county treasurer shall be notified thirty days in advance of borrowing under this chapter and will be the designated paying agent to act on its 39.50.030 [Title 39 RCW—page 76] behalf for all payments of principal, interest, and penalties for that obligation, subject to the terms of the ordinance in selling and delivering short-term obligations authorized and fixing the dates, price, interest rates, and other details as may be specified in the ordinance. Short-term obligations issued under this section shall bear such fixed or variable rate or rates of interest as the governing body considers to be in the best interests of the municipal corporation. Variable rates of interest may be fixed in relationship to such standard or index as the governing body designates. The governing body may make contracts for the future sale of short-term obligations pursuant to which the purchasers are committed to purchase the short-term obligations from time to time on the terms and conditions stated in the contract, and may pay such consideration as it considers proper for the commitments. Short-term obligations issued in anticipation of the receipt of taxes shall be paid within six months from the end of the fiscal year in which they are issued. For the purpose of this subsection, short-term obligations issued in anticipation of the sale of general obligation bonds shall not be considered to be obligations issued in anticipation of the receipt of taxes. (2) Notwithstanding subsection (1) of this section, such short-term obligations may be issued and sold in accordance with chapter 39.46 RCW. [2001 c 299 § 17; 1995 c 38 § 9; 1994 c 301 § 13; 1985 c 71 § 1; 1983 c 167 § 112; 1982 c 216 § 4.] Acts of municipal officers ratified and confirmed—1995 c 38: See note following RCW 3.02.045. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. 39.50.040 Refunding and renewal of short-term obligations. Short-term obligations may, from time to time, be renewed or refunded by the issuance of short-term obligations and may be funded by the issuance of revenue, local improvement district, special assessment, or general obligation bonds. Short-term obligations payable from taxes shall not be renewed or refunded to a date later than six months from the end of the fiscal year in which the original shortterm obligation was issued. For the purpose of this section, short-term obligations issued in anticipation of the sale of general obligation bonds shall not be considered to be shortterm obligations payable from taxes. [1985 c 332 § 9; 1985 c 71 § 2; 1982 c 216 § 5.] 39.50.040 39.50.050 Short-term obligations—Security. Short-term obligations issued in anticipation of the receipt of taxes or the sale of general obligation bonds and the interest thereon shall be secured by the full faith, credit, taxing power, and resources of the municipal corporation. Shortterm obligations issued in anticipation of the sale of revenue or local improvement district bonds and the interest thereon may be secured in the same manner as the revenue and local improvement district bonds in anticipation of which the obligations are issued and by an undertaking to issue the bonds. Short-term obligations issued in anticipation of grants, loans, or other sources of money shall be secured in the manner set forth in the ordinance authorizing their issuance. [1982 c 216 § 6.] 39.50.050 (2008 Ed.) Funding Indebtedness in Counties, Cities, and Towns 39.50.060 Nonvoted general indebtedness. A municipal corporation may incur nonvoted general indebtedness under this chapter up to an amount which, when added to all other authorized and outstanding nonvoted indebtedness of the municipal corporation, is equal to the maximum amount of indebtedness the municipal corporation is otherwise permitted to incur without a vote of the electors. [1982 c 216 § 7.] 39.50.060 39.50.070 Funds for payment of principal and interest. For the purpose of providing funds for the payment of principal of and interest on short-term obligations, the governing body may authorize the creation of a special fund or funds and provide for the payment from authorized sources to such funds of amounts sufficient to meet principal and interest requirements. [1982 c 216 § 8.] 39.50.070 39.50.900 Chapter cumulative—Applicability to joint operating agencies. The authority granted by this chapter shall be in addition and supplemental to any authority previously granted and shall not limit any other powers or authority previously granted to any municipal corporation. The authority granted by this chapter to public utility districts organized under Title 54 RCW shall not extend to joint operating agencies organized under chapter 43.52 RCW. [1982 c 216 § 9.] 39.50.900 Chapter 39.52 RCW FUNDING INDEBTEDNESS IN COUNTIES, CITIES, AND TOWNS Chapter 39.52 Sections 39.52.010 39.52.015 39.52.020 39.52.035 39.52.050 Issuance of funding bonds authorized. Validation of prior bond issues. Limitations on issuance of bonds. Tax levy—Purpose. "Corporate authorities" defined. Cities and towns, ratification and funding of indebtedness: Chapter 35.40 RCW. Metropolitan municipal corporations, funding and refunding bonds: RCW 35.58.470. Port districts, funding and refunding indebtedness: Chapter 53.44 RCW. Public utility districts, funding and refunding bonds: RCW 54.24.090. School districts, refunding bonds: RCW 28A.530.040. 39.52.010 Issuance of funding bonds authorized. Any county, city, or town in the state of Washington which now has or may hereafter have an outstanding indebtedness evidenced by warrants or bonds, including warrants or bonds of any county, city, or town which are special fund obligations of and constitute a lien upon the waterworks or other public utilities of such county, city, or town, and are payable only from the income or funds derived or to be derived therefrom, whether issued originally within the limitations of the Constitution of this state, or of any law thereof, or whether such outstanding indebtedness has been or may hereafter be validated or legalized in the manner prescribed by law, may, by its corporate authorities, provide by ordinance or resolution for the issuance of funding bonds with which to take up and cancel such outstanding indebtedness in the manner hereinafter described, said bonds to constitute general obligations 39.52.010 (2008 Ed.) 39.52.020 of such county, city, or town: PROVIDED, That special fund obligations payable only from the income funds of the public utility, shall not be refunded by the issuance of general municipal bonds where voter approval is required before general municipal bonds may be issued for such public utility purposes, unless such general municipal bonds shall have been previously authorized. Nothing in this chapter shall be so construed as to prevent any such county, city, or town from funding its indebtedness as now provided by law. [1995 2nd sp.s. c 17 § 6; 1984 c 186 § 36; 1917 c 145 § 1; 1895 c 170 § 1; RRS § 5617.] Severability—1995 2nd sp.s. c 17: See RCW 43.99K.900. Purpose—1984 c 186: See note following RCW 39.46.110. 39.52.015 Validation of prior bond issues. That all bonds heretofore voted or issued, and which may have been or may hereafter be issued by any county, city or town, for any of the purposes authorized by the preceding section as hereby amended, including general fund bonds issued for the purpose of refunding special utility fund bonds or warrants, shall be validated and have the same force and effect as though said section had been in full force and effect at the time said bonds were either authorized or issued. [1917 c 145 § 2; RRS § 5618.] 39.52.015 39.52.020 Limitations on issuance of bonds. No bonds issued under this chapter shall be issued for a longer period than twenty years. Nothing in this chapter shall be deemed to authorize the issuing of any funding bonds which exceeds any constitutional or statutory limitations of indebtedness. Such bonds shall be issued and sold in accordance with chapters 39.46 and 39.53 RCW, exclusive of RCW 39.53.120. [1995 2nd sp.s. c 17 § 7; 1984 c 186 § 37; 1983 c 167 § 113; 1970 ex.s. c 56 § 60; 1969 ex.s. c 232 § 31; 1895 c 170 § 2; RRS § 5619.] 39.52.020 Severability—1995 2nd sp.s. c 17: See RCW 43.99K.900. Purpose—1984 c 186: See note following RCW 39.46.110. Liberal construction—Severability—1983 c 167: See RCW 39.46.010 and note following. Purpose—1970 ex.s. c 56: "Because market conditions are such that the state, state agencies, state colleges and universities, and the political subdivisions, municipal corporations and quasi municipal corporations of this state are finding it increasingly difficult and, in some cases, impossible to market bond issues and all other obligations, at the maximum permissible rate of interest payable on such bonds and obligations, it is the purpose of this 1970 amendatory act to remove all maximum rates of interest payable on such bonds and obligations." [1970 ex.s. c 56 § 1; 1969 ex.s. c 232 § 1.] Validation—Saving—1969 ex.s. c 232: "All bonds, the issuance of which was authorized or ratified at a general or special election held within the issuing jurisdiction prior to the effective date of this amendatory act or the proposition for the issuance of which will be submitted at such an election pursuant to action of the legislative authority of the issuer taken prior to the effective date of this amendatory act, may be sold and issued with an interest rate or rates greater than any interest rate restriction contained in the ballot proposition or ordinance or resolution relating to such authorization or ratification if such bonds are sold and issued with an interest rate or rates not greater than those permitted by the applicable provision of this amendatory act." [1969 ex.s. c 232 § 94.] Severability—1969 ex.s. c 232: "If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section, or part of this 1969 amendatory act, such judgment or decree shall not affect, impair or nullify the remainder of this act, but the effect thereof shall be confined to the clause, sentence, paragraph, section, or part of this act so adjudged to be invalid or unconstitutional." [1969 ex.s. c 232 § 95.] [Title 39 RCW—page 77] 39.52.035 Title 39 RCW: Public Contracts and Indebtedness Bonds, form, terms of sale, payment, etc.: Chapter 39.44 RCW. 39.52.035 Tax levy—Purpose. The corporate authorities of any such county, city or town shall provide annually by ordinance or resolution for the levy and extension on the tax rolls of such county, city or town, and for the collection thereof, of a direct annual tax in addition to all other county, city or town taxes to be levied according to law, which shall be sufficient to meet the interest on all of said bonds promptly as the same matures, and also sufficient to fully pay each series of bonds as the same matures: PROVIDED, That such ordinance or resolution shall not be repealed until the levy therein provided for shall be fully paid, or the bonds both principal and interest shall be paid or canceled. [1895 c 170 § 4; RRS § 5621. Formerly RCW 39.52.030, part.] 39.52.035 39.52.050 "Corporate authorities" defined. The words "corporate authorities", used in this chapter, shall be held to mean the county legislative authority, or the council or commission of the city or town. [1984 c 186 § 38; 1895 c 170 § 6; RRS § 5623.] 39.52.050 Purpose—1984 c 186: See note following RCW 39.46.110. Chapter 39.53 Chapter 39.53 RCW REFUNDING BOND ACT Sections 39.53.010 39.53.020 39.53.030 39.53.040 39.53.045 39.53.050 39.53.060 39.53.070 39.53.080 39.53.090 39.53.100 39.53.110 39.53.120 39.53.130 39.53.140 39.53.900 39.53.910 39.53.920 39.53.921 Definitions. Issuance authorized—Purposes—Saving to public body, criteria. Refunding bonds may be exchanged for bonds to be refunded or sold. What bonds may be refunded—Refunding plans—Redemption of refunding bonds. Bonds payable from special assessments—Not subject to refunding. Refunding bonds, principal amount—Disposition of reserves held to secure the bonds to be refunded. Application of proceeds of sale of refunding bonds and other funds—Investment in government obligations—Incidental expenses. Application of proceeds of sale of refunding bonds and other funds—Contracts for safekeeping and application—Use to pay and secure refunding bonds—Pledge of revenues—Duty to provide sufficient money to accomplish refunding. Pledge of revenues to payment of refunding bonds when amounts sufficient to pay revenue bonds to be refunded are irrevocably set aside. Annual maturities of general obligation refunding bonds issued to refund voted general obligation bonds. Use of deposit moneys and investments in computing indebtedness. Refunding and other bonds may be issued in combination. Refunding bonds to be issued in accordance with laws applicable to type of bonds to be refunded—Transfer of funds to applicable bond retirement account. Amendment of power contracts pursuant to refunding of certain bond issues. Issuance of general obligation refunding bonds to refund general obligation or revenue bonds. Short title. Additional authority—Effect as to other laws. Severability—1965 ex.s. c 138. Severability—1977 ex.s. c 262. 39.53.010 Definitions. Except where the context otherwise requires, the definitions in this section apply throughout this chapter: (1) "Bond" means any revenue bond or general obligation bond. 39.53.010 [Title 39 RCW—page 78] (2) "General obligation bond" means any bond, note, warrant, certificate of indebtedness, or other obligation of a public body which constitutes an indebtedness within the meaning of the constitutional debt limitation. (3) "Governing body" means the council, commission, board of commissioners, board of directors, board of trustees, board of regents, or other legislative body of the public body designated herein in which the legislative powers of the public body are vested. With respect to the state, "governing body" means the state finance committee. (4) "Government obligations" means any of the following: (a) Direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America and bank certificates of deposit secured by such obligations; (b) bonds, debentures, notes, participation certificates, or other obligations issued by the banks for cooperatives, the federal intermediate credit bank, the federal home loan bank system, the export-import bank of the United States, federal land banks, or the federal national mortgage association; (c) public housing bonds and project notes fully secured by contracts with the United States; and (d) obligations of financial institutions insured by the federal deposit insurance corporation or the federal savings and loan insurance corporation, to the extent insured or to the extent guaranteed as permitted under any other provision of state law. (5) "Issuer" means the public body issuing any bond or bonds. (6) "Ordinance" means an ordinance of a city or town, or ordinance, resolution or other instrument by which the governing body of the public body exercising any power under this chapter takes formal action and adopts legislative provisions and matters of some permanency. (7) "Public body" means the state of Washington, its agencies, institutions, political subdivisions, and municipal and quasi-municipal corporations now or hereafter existing under the laws of the state of Washington. (8) "Refunding bonds" means bonds issued for the purpose of paying the principal of or redemption premiums or interest on any outstanding bonds of the issuer, its predecessor, or a related public body. (9) "Refunding plan" means the plan adopted by an ordinance of a public body to issue refunding bonds and redeem the bonds to be refunded. (10) "Revenue bond" means any bond, note, warrant, certificate of indebtedness, or other obligation for the payment of money that is payable from designated revenues, special assessments, or a special fund but excluding any obligation constituting an indebtedness within the meaning of the constitutional debt limitation. [1999 c 230 § 1; 1984 c 186 § 68; 1973 1st ex.s. c 25 § 1; 1965 ex.s. c 138 § 2.] Application—Construction—1999 c 230: "The authority of a public body to issue refunding bonds pursuant to this act is additional to any existing authority to issue such bonds and nothing in this act shall prevent the issuance of such bonds pursuant to any other law, and this act shall not be construed to amend any existing law authorizing the issuance of refunding bonds by a public body." [1999 c 230 § 13.] Severability—1999 c 230: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 230 § 14.] Purpose—1984 c 186: See note following RCW 39.46.110. (2008 Ed.) Refunding Bond Act 39.53.020 Issuance authorized—Purposes—Saving to public body, criteria. The governing body of any public body may by ordinance provide for the issuance of refunding bonds without an election (1) in order to pay or discharge all or any part of an outstanding series or issue of bonds, including any redemption premiums or interest thereon, in arrears or about to become due, and for which sufficient funds are not available, (2) when necessary or in the best interest of the public body to modify debt service or reserve requirements, sources of payment, covenants, or other terms of the bonds to be refunded, or (3) in order to effect a saving to the public body. To determine whether or not a saving will be effected, consideration shall be given to the interest to fixed maturities of the refunding bonds and the bonds to be refunded, the costs of issuance of the refunding bonds, including any sale discount, the redemption premiums, if any, to be paid, and the known earned income from the investment of the refunding bond proceeds pending redemption of the bonds to be refunded. [1999 c 230 § 2; 1977 ex.s. c 262 § 1; 1974 ex.s. c 111 § 2; 1965 ex.s. c 138 § 3.] 39.53.020 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. Severability—1974 ex.s. c 111: See note following RCW 39.42.080. 39.53.030 Refunding bonds may be exchanged for bonds to be refunded or sold. Any refunding bonds issued may be delivered in exchange for the bonds to be refunded or may be sold in such manner and at such price as the governing body may in its discretion determine advisable. [1999 c 230 § 3; 1973 1st ex.s. c 25 § 2; 1965 ex.s. c 138 § 4.] 39.53.030 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.040 What bonds may be refunded—Refunding plans—Redemption of refunding bonds. Bonds may be refunded under this chapter or under any other law of this state which authorizes the issuance of refunding bonds. In any refunding plan under this chapter the governing body shall provide irrevocably in the ordinance authorizing the issuance of the advance refunding bonds for the redemption or payment of the bonds to be refunded. The ordinance authorizing the issuance of refunding bonds under this chapter may contain such provisions for the redemption of the refunding bonds prior to maturity and for payment of a premium upon such redemption as the governing body in its discretion may determine advisable. [1999 c 230 § 4; 1977 ex.s. c 262 § 2; 1973 1st ex.s. c 25 § 3; 1965 ex.s. c 138 § 5.] 39.53.040 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.045 Bonds payable from special assessments— Not subject to refunding. Bonds payable solely from special assessments or special assessments and a guaranty fund issued on or prior to June 7, 1984, shall not be subject to refunding under this chapter. [1984 c 186 § 69.] 39.53.045 Purpose—1984 c 186: See note following RCW 39.46.110. 39.53.050 Refunding bonds, principal amount—Disposition of reserves held to secure the bonds to be refunded. The principal amount of refunding bonds may 39.53.050 (2008 Ed.) 39.53.070 exceed the principal amount of the bonds to be refunded by an amount deemed reasonably required to effect such refunding. The principal amount of the refunding bonds may be less than or the same as the principal amount of the bonds to be refunded so long as provision is duly and sufficiently made for the retirement or redemption of such bonds to be refunded. Any reserves held to secure the bonds to be refunded, or other available money, may be used to accomplish the refunding in accordance with the refunding plan. Reserves not so used shall be pledged as security for the refunding bonds to the extent the reserves, if any, are required. The balance of any such reserves may be used for any lawful purpose. [1999 c 230 § 5; 1983 1st ex.s. c 69 § 1; 1977 ex.s. c 262 § 3; 1974 ex.s. c 111 § 3; 1965 ex.s. c 138 § 6.] Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. Severability—1974 ex.s. c 111: See note following RCW 39.42.080. 39.53.060 Application of proceeds of sale of refunding bonds and other funds—Investment in government obligations—Incidental expenses. Prior to the application of the proceeds derived from the sale of refunding bonds to the purposes for which such bonds have been issued, such proceeds, together with any other funds the governing body may set aside for the payment of the bonds to be refunded, may be invested and reinvested only in government obligations maturing or having guaranteed redemption prices at the option of the holder at such time or times as may be required to provide funds sufficient to pay principal, interest and redemption premiums, if any, in accordance with the refunding plan. To the extent incidental expenses have been capitalized, such bond proceeds may be used to defray such expenses. [1999 c 230 § 6; 1973 1st ex.s. c 25 § 4; 1965 ex.s. c 138 § 7.] 39.53.060 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.070 Application of proceeds of sale of refunding bonds and other funds—Contracts for safekeeping and application—Use to pay and secure refunding bonds—Pledge of revenues—Duty to provide sufficient money to accomplish refunding. The governing body may contract with respect to the safekeeping and application of the refunding bond proceeds and other funds included therewith and the income therefrom including the right to appoint a trustee which may be any trust company or state or national bank having powers of a trust company within or without the state of Washington. The governing body may provide in the refunding plan that until such moneys are required to redeem or retire the bonds to be refunded, the refunding bond proceeds and other funds, and the income therefrom shall be used to pay and secure the payment of the principal of and interest on the refunding bonds. The governing body may additionally pledge for the payment of revenue refunding bonds any revenues which might legally be pledged for the payment of revenue bonds of the issuer of the type to be refunded. Provisions must be made by the governing body for moneys sufficient in amount to accomplish the refunding as scheduled. [1999 c 230 § 7; 1973 1st ex.s. c 25 § 5; 1965 ex.s. c 138 § 8.] 39.53.070 [Title 39 RCW—page 79] 39.53.080 Title 39 RCW: Public Contracts and Indebtedness Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.080 Pledge of revenues to payment of refunding bonds when amounts sufficient to pay revenue bonds to be refunded are irrevocably set aside. When a public body has irrevocably set aside for and pledged to the payment of revenue bonds to be refunded refunding bond proceeds and other moneys in amounts which together with known earned income from the investment thereof are sufficient in amount to pay the principal of and interest and any redemption premiums on such revenue bonds as the same become due and to accomplish the refunding as scheduled, the governing body may provide that the refunding revenue bonds shall be payable from any source which, either at the time of the issuance of the refunding bonds or the revenue bonds to be refunded, might legally be or have been pledged for the payment of the revenue bonds to be refunded to the extent it may legally do so, notwithstanding the pledge of such revenues for the payment of the revenue bonds to be refunded. [1999 c 230 § 8; 1965 ex.s. c 138 § 9.] 39.53.080 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. refunded—Transfer of funds to applicable bond retirement account. (1) Except as specifically provided in this chapter, refunding bonds issued under this chapter shall be issued in accordance with the provisions of law applicable to the type of bonds of the issuer to be refunded, at the time of the issuance of either the refunding bonds or the bonds to be refunded. (2) For all refunding bonds previously or hereafter issued by the state of Washington under this chapter, the state treasurer shall transfer from the designated funds or accounts the amount necessary for the payment of principal of and interest on the refunding bonds to the applicable bond retirement account for such refunding bonds on each date on which the interest or principal and interest payment is due on such refunding bonds unless an earlier transfer date, as determined by the state finance committee, is necessary or appropriate to the financial framework of the refunding bonds. [2005 c 487 § 7; 1999 c 230 § 11; 1965 ex.s. c 138 § 13.] Severability—Effective date—2005 c 487: See RCW 43.99S.900 and 43.99S.901. Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.130 Amendment of power contracts pursuant to refunding of certain bond issues. If bonds are to be issued under this chapter for refunding of any bonds issued specifically to finance any electric power and energy project or facility and there are contracts in existence for the sale of electric power and energy generated by such project or facility wherein the cost of power to a purchaser specifically includes a portion of the debt service on the bonds to be refunded, such power contracts shall be amended to reflect in each year during the remaining terms of such contracts that portion of the savings to be realized from such refunding during each such year equal to the percentage of power output from such project or facility purchased by the purchaser under such power contracts. Nothing in this chapter shall be construed to alter, modify or change any such power contracts without the mutual agreement of the parties thereto. [1965 ex.s. c 138 § 15.] 39.53.130 39.53.090 Annual maturities of general obligation refunding bonds issued to refund voted general obligation bonds. The various annual maturities of general obligation refunding bonds issued to refund voted general obligation bonds shall not extend over a longer period of time than the bonds to be refunded. Such maturities may be changed in amount or shortened in term if the estimated respective annual principal and interest requirements of the refunding bonds, computed upon the anticipated effective interest rate the governing body shall in its discretion determine will be borne by such bonds, will not exceed the respective annual principal and interest requirements of the bonds to be refunded, except the issuer may increase the principal amount of annual maturities for the purpose of rounding out maturities to the nearest five thousand dollars. [1999 c 230 § 9; 1965 ex.s. c 138 § 10.] 39.53.090 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.100 Use of deposit moneys and investments in computing indebtedness. In computing indebtedness for the purpose of any constitutional or statutory debt limitation there shall be deducted from the amount of outstanding indebtedness the amounts of money and investments credited to or on deposit for general obligation bond retirement. [1973 1st ex.s. c 25 § 6; 1965 ex.s. c 138 § 11.] 39.53.100 39.53.110 Refunding and other bonds may be issued in combination. Refunding bonds and bonds for any other purpose or purposes authorized may be issued separately or issued in combination in one or more series or issues by the same issuer. [1999 c 230 § 10; 1965 ex.s. c 138 § 12.] 39.53.110 Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. 39.53.120 Refunding bonds to be issued in accordance with laws applicable to type of bonds to be 39.53.120 [Title 39 RCW—page 80] 39.53.140 Issuance of general obligation refunding bonds to refund general obligation or revenue bonds. Any public body may issue general obligation refunding bonds to refund any general obligation or revenue bonds of such issuer or its agencies or instrumentalities. The payment of general obligation refunding bonds may be additionally secured by a pledge of the revenues pledged to the payment of the revenue bonds to be refunded. If the payment of revenue bonds to be refunded by general obligation bonds of the state is secured by (1) fees collected by the state as license fees for motor vehicles, or (2) excise taxes collected by the state on the sale, distribution or use of motor vehicle fuel, or (3) interest on the permanent school fund, then the state shall also pledge to the payment of such refunding bonds the same fees, excise taxes, or interest that were pledged to the payment of the revenue bonds to be refunded. Any public body may issue revenue refunding bonds to refund any general obligation of such issuer or its agencies or instrumentalities if the bonds to be refunded were issued for 39.53.140 (2008 Ed.) Public Funds—Deposits and Investments—Public Depositaries purposes for which those revenue refunding bonds could be issued. [1999 c 230 § 12; 1974 ex.s. c 111 § 4; 1973 1st ex.s. c 25 § 7.] Application—Construction—Severability—1999 c 230: See notes following RCW 39.53.010. Severability—1974 ex.s. c 111: See note following RCW 39.42.080. 39.53.900 Short title. This chapter shall be known as the "Refunding Bond Act." [1965 ex.s. c 138 § 1.] 39.53.900 39.53.910 Additional authority—Effect as to other laws. The authority of a public body to issue refunding bonds pursuant to this chapter is additional to any existing authority to issue such bonds and nothing in this chapter shall prevent the issuance of such bonds pursuant to any other law, and this chapter shall not be construed to amend any existing law authorizing the issuance of refunding bonds by a public body. [1965 ex.s. c 138 § 14.] 39.53.910 39.53.920 Severability—1965 ex.s. c 138. If any provision of this chapter, or its application to any person or circumstance is held invalid, the remainder of the chapter, or the application of the provision to other persons or circumstances is not affected. [1965 ex.s. c 138 § 16.] 39.53.920 39.53.921 Severability—1977 ex.s. c 262. If any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1977 ex.s. c 262 § 4.] 39.53.921 Chapter 39.56 Chapter 39.56 RCW WARRANTS Sections 39.56.020 39.56.030 39.56.040 39.56.050 Interest on judgments: RCW 4.56.110. Usurious rates of interest: Chapter 19.52 RCW. 39.56.020 Rate on municipal warrants. All county, city, town and school warrants, and all warrants or other evidences of indebtedness, drawn upon or payable from any public funds, shall bear interest at a rate or rates as authorized by the issuing authority. [1970 ex.s. c 56 § 106; 1899 c 80 § 4; RRS § 7302. Prior: 1895 c 136 § 3.] 39.56.020 Purpose—1970 ex.s. c 56: See note following RCW 39.52.020. Cities and towns, local improvement district warrants, interest rate: RCW 35.45.130. 39.56.030 Issuing officer to fix rate. It shall be the duty of every public officer issuing public warrants to make monthly investigation to ascertain the market value of the current warrants issued by him, and he shall, so far as practicable, fix the rate of interest on the warrants issued by him during the ensuing month so that the par value shall be the market value thereof. [1981 c 156 § 16; 1981 c 10 § 4; 1899 c 80 § 5; RRS § 7303.] 39.56.030 (2008 Ed.) 39.56.040 Cancellation of municipal warrants. Registered or interest bearing warrants of any municipal corporation not presented within one year of the date of their call, or other warrants not presented within one year of their issue, shall be canceled by passage of a resolution of the governing body of the municipal corporation, and upon notice of the passage of such resolution the auditor of the municipal corporation and the treasurer of the municipal corporation shall transfer all records of such warrants so as to leave the funds as if such warrants had never been drawn. [1975 1st ex.s. c 131 § 1.] 39.56.040 39.56.050 Municipal corporations authorized to establish line of credit for payment of warrants—Interest. See RCW 43.09.2853. 39.56.050 Chapter 39.58 RCW PUBLIC FUNDS—DEPOSITS AND INVESTMENTS— PUBLIC DEPOSITARIES Chapter 39.58 Sections 39.58.010 39.58.020 39.58.030 39.58.040 39.58.045 39.58.050 39.58.060 39.58.065 39.58.070 39.58.080 39.58.085 39.58.090 39.58.100 Rate on municipal warrants. Issuing officer to fix rate. Cancellation of municipal warrants. Municipal corporations authorized to establish line of credit for payment of warrants—Interest. 39.58.010 39.58.103 39.58.105 39.58.108 39.58.120 39.58.130 39.58.135 39.58.140 39.58.155 39.58.750 Definitions. Public funds—Protection against loss. Public deposit protection commission—State finance committee constitutes—Proceedings. General powers of commission. Financial institutions claiming exemption from sales, use or ad valorem taxes—Notification of commission. Collateral for deposits—Segregation—Eligible securities. Loss in a bank public depositary—Procedure for payment. Loss in a thrift public depositary—Procedure for payment. Subrogation of commission to depositor’s rights—Sums received from distribution of assets, payment. Deposit of public funds in public depositary required—Deposits in institutions located outside the state. Demand accounts in out-of-state and alien banks—Limitations. Authority to secure deposits in accordance with chapter— Bonds and securities for deposits dispensed with. Reports of public depositaries—Certification by director of financial institutions. Notice to commission of reduced net worth. Investigation of financial institution applying to become public depositary—Report. Requirements to become depositary. Interest rates. Investment deposits—Net worth of public depositary. Limitations on deposits. Liability of treasurers. Statewide custodian—Exemption from chapter. Receipt, disbursement, or transfer of public funds by wire or other electronic communication means authorized. Department of financial institutions: Chapter 43.320 RCW. State investment board: Chapter 43.33A RCW. Surplus funds in state treasury, investment program: Chapter 43.86A RCW. 39.58.010 Definitions. In this chapter, unless the context otherwise requires: (1) "Public funds" means moneys under the control of a treasurer or custodian belonging to, or held for the benefit of, the state or any of its political subdivisions, public corporations, municipal corporations, agencies, courts, boards, commissions, or committees, including moneys held as trustee, agent, or bailee; (2) "Public depositary" means a financial institution which does not claim exemption from the payment of any sales or compensating use or ad valorem taxes under the laws of this state, which has been approved by the commission to 39.58.010 [Title 39 RCW—page 81] 39.58.020 Title 39 RCW: Public Contracts and Indebtedness hold public deposits, and which has segregated for the benefit of the commission eligible collateral having a value of not less than its maximum liability. Addition of the word "bank" denotes a bank, trust company, or national banking association and the word "thrift" denotes a savings association or savings bank; (3) "Loss" means the issuance of an order by a regulatory or supervisory authority or a court of competent jurisdiction (a) restraining a public depositary from making payments of deposit liabilities or (b) appointing a receiver for a public depositary; (4) "Commission" means the Washington public deposit protection commission created under RCW 39.58.030; (5) "Eligible collateral" means securities which are enumerated in RCW 39.58.050 (5) and (6) as eligible collateral for public deposits; (6) The "maximum liability" of a public depositary on any given date means a sum equal to ten percent of (a) all public deposits held by the *qualified public depositary on the then most recent commission report date, or (b) the average of the balances of said public deposits on the last four immediately preceding reports required pursuant to RCW 39.58.100, whichever amount is greater, less any assessments paid to the commission pursuant to this chapter since the then most recent commission report date; (7) "Public funds available for investment" means such public funds as are in excess of the anticipated cash needs throughout the duration of the contemplated investment period; (8) "Investment deposits" means time deposits, money market deposit accounts, and savings deposits of public funds available for investment; (9) "Treasurer" shall mean the state treasurer, a county treasurer, a city treasurer, a treasurer of any other municipal corporation, and any other custodian of public funds; (10) "Financial institution" means any national or state chartered commercial bank or trust company, savings bank, or savings association, or branch or branches thereof, located in this state and lawfully engaged in business; (11) "Commission report" means a formal accounting rendered by all public depositaries to the commission in response to a demand for specific information made by the commission detailing pertinent affairs of each public depositary as of the close of business on a specified date, which is the "commission report date." "Commission report due date" is the last day for the timely filing of a commission report; (12) "Director of financial institutions" means the Washington state director of the department of financial institutions; (13) "Net worth" of a public depositary means (a) the equity capital as reported to its primary regulatory authority on the quarterly report of condition or statement of condition and may include capital notes and debentures which are subordinate to the interests of depositors, or (b) equity capital adjusted by rule of the commission; (14) "Depositary pledge agreement" means a tripartite agreement executed by the commission with a financial institution and its designated trustee. Such agreement shall be approved by the directors or the loan committee of the financial institution and shall continuously be a record of the financial institution. New securities may be pledged under [Title 39 RCW—page 82] this agreement in substitution of or in addition to securities originally pledged without executing a new agreement; (15) "Trustee" means a third-party safekeeping agent which has completed a depositary pledge agreement with a public depositary and the commission. Such third-party safekeeping agent may be the federal reserve bank of San Francisco, the federal home loan bank of Seattle, the trust department of the public depositary, or such other third-party safekeeping agent approved by the commission. [1996 c 256 § 1; 1994 c 92 § 494; 1984 c 177 § 10; 1983 c 66 § 3; 1977 ex.s. c 95 § 1; 1975 1st ex.s. c 77 § 1; 1973 c 126 § 9; 1969 ex.s. c 193 § 1.] *Reviser’s note: The term "qualified public depositary" was redefined as "public depositary" by 1996 c 256 § 1. Severability—1983 c 66: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1983 c 66 § 24.] Severability—1969 ex.s. c 193: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of this act, or the application of the provision to other persons or circumstances is not affected." [1969 ex.s. c 193 § 32.] Construction—1969 ex.s. c 193: "Nothing in this act shall be construed so as to impair the obligation of any contract or agreement entered into prior to its effective date." [1969 ex.s. c 193 § 33.] City depositaries: Chapter 35.38 RCW. County depositaries: Chapter 36.48 RCW. State depositaries: Chapter 43.85 RCW. 39.58.020 Public funds—Protection against loss. All public funds deposited in public depositaries, including investment deposits and accrued interest thereon, shall be protected against loss, as provided in this chapter. [1996 c 256 § 2; 1984 c 177 § 11; 1983 c 66 § 5; 1973 c 126 § 10; 1969 ex.s. c 193 § 2.] 39.58.020 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.030 Public deposit protection commission— State finance committee constitutes—Proceedings. The Washington public deposit protection commission shall be the state finance committee. The record of the proceedings of the public deposit protection commission shall be kept in the office of the commission and a duly certified copy thereof, or any part thereof, shall be admissible in evidence in any action or proceedings in any court of this state. [1983 c 66 § 6; 1969 ex.s. c 193 § 3.] 39.58.030 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.040 General powers of commission. The commission shall have power (1) to make and enforce regulations necessary and proper to the full and complete performance of its functions under this chapter; (2) to require any public depositary to furnish such information dealing with public deposits and the exact status of its net worth as the commission shall request. Any public depositary which refuses or neglects to give promptly and accurately or to allow verification of any information so requested shall no longer be a public depositary and shall be excluded from the right to receive or hold public deposits until such time as the commission shall acknowledge that such depositary has furnished the information requested; (3) to take such action as it deems best for the protection, collection, compromise or settlement of 39.58.040 (2008 Ed.) Public Funds—Deposits and Investments—Public Depositaries any claim arising in case of loss; (4) to prescribe regulations, subject to this chapter, fixing the requirements for qualification of financial institutions as public depositaries, and fixing other terms and conditions consistent with this chapter, under which public deposits may be received and held; (5) to make and enforce regulations setting forth criteria establishing minimum standards for the financial condition of bank and thrift depositaries and, if the minimum standards are not met, providing for additional collateral requirements or restrictions regarding a public depositary’s right to receive or hold public deposits; (6) to fix the official date on which any loss shall be deemed to have occurred taking into consideration the orders, rules and regulations of supervisory authority as they affect the failure or inability of a public depositary to repay public deposits in full; and (7) in case loss occurs in more than one public depositary, to determine the allocation and time of payment of any sums due to public depositors under this chapter. [1996 c 256 § 3; 1986 c 25 § 2; 1984 c 177 § 12; 1983 c 66 § 7; 1975 1st ex.s. c 77 § 2; 1969 ex.s. c 193 § 4.] Severability—1983 c 66: See note following RCW 39.58.010. 39.58.045 Financial institutions claiming exemption from sales, use or ad valorem taxes—Notification of commission. The director of the department of revenue shall notify the public deposit protection commission quarterly on the first day of October, January, April, and July of the names and addresses of any financial institutions which have claimed exemption from the payment of any sales or compensating use or ad valorem taxes under the laws of this state. [1983 c 66 § 4.] 39.58.045 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.050 Collateral for deposits—Segregation—Eligible securities. (1) Every public depositary shall complete a depositary pledge agreement with the commission and a trustee, and shall at all times maintain, segregated from its other assets, eligible collateral in the form of securities enumerated in this section having a value at least equal to its maximum liability and as otherwise prescribed in this chapter. Such collateral shall be segregated by deposit with the depositary’s trustee and shall be clearly designated as security for the benefit of public depositors under this chapter. (2) Securities eligible as collateral shall be valued at market value, and the total market value of securities pledged in accordance with this chapter shall not be reduced by withdrawal or substitution of securities except by prior authorization, in writing, by the commission. (3) The public depositary shall have the right to make substitutions of an equal or greater amount of such collateral at any time. (4) The income from the securities which have been segregated as collateral shall belong to the public depositary without restriction. (5) Each of the following enumerated classes of securities, providing there has been no default in the payment of principal or interest thereon, shall be eligible to qualify as collateral: (a) Certificates, notes or bonds of the United States, or other obligations of the United States or its agencies, or of 39.58.050 (2008 Ed.) 39.58.060 any corporation wholly owned by the government of the United States; (b) State, county, municipal, or school district bonds or warrants of taxing districts of the state of Washington or any other state of the United States, provided that such bonds and warrants shall be only those found to be within the limit of indebtedness prescribed by law for the taxing district issuing them and to be general obligations; (c) The obligations of any United States governmentsponsored corporation whose obligations are or may become eligible as collateral for advances to member banks as determined by the board of governors of the federal reserve system; (d) Bonds, notes, letters of credit, or other securities or evidence of indebtedness constituting the direct and general obligation of a federal home loan bank or federal reserve bank; (e) Revenue bonds of this state or any authority, board, commission, committee, or similar agency thereof, and any municipality or taxing district of this state; (f) Direct and general obligation bonds and warrants of any city, town, county, school district, port district, or other political subdivision of any state, having the power to levy general taxes, which are payable from general ad valorem taxes; (g) Bonds issued by public utility districts as authorized under the provisions of Title 54 RCW, as now or hereafter amended; (h) Bonds of any city of the state of Washington for the payment of which the entire revenues of the city’s water system, power and light system, or both, less maintenance and operating costs, are irrevocably pledged, even though such bonds are not general obligations of such city; (6) In addition to the securities enumerated in this section, every public depositary may also segregate such bonds, securities, and other obligations as are designated to be authorized security for public deposits under the laws of this state. (7) The commission may at any time or times declare any particular security as ineligible to qualify as collateral when in the commission’s judgment it is deemed desirable to do so. [1996 c 256 § 4; 1989 c 97 § 4; 1984 c 177 § 13; 1983 c 66 § 8; 1975 1st ex.s. c 77 § 3; 1973 c 126 § 11; 1969 ex.s. c 193 § 5.] Severability—1983 c 66: See note following RCW 39.58.010. 39.58.060 Loss in a bank public depositary—Procedure for payment. When the commission determines that a loss has occurred in a bank public depositary, it shall as soon as possible make payment to the proper public officers of all funds subject to such loss, pursuant to the following procedures: (1) For the purposes of determining the sums to be paid, the director of financial institutions or the receiver shall, within twenty days after issuance of a restraining order or taking possession of any bank public depositary, ascertain the amount of public funds on deposit therein as disclosed by its records and the amount thereof covered by deposit insurance and certify the amounts thereof to the commission and each such public depositor; 39.58.060 [Title 39 RCW—page 83] 39.58.065 Title 39 RCW: Public Contracts and Indebtedness (2) Within ten days after receipt of such certification, each such public depositor shall furnish to the commission verified statements of its deposits in such bank public depositary as disclosed by its records; (3) Upon receipt of such certificate and statements, the commission shall ascertain and fix the amount of such public deposits, net after deduction of any amount received from deposit insurance, and, after determining and declaring the apparent net loss, assess the same against all then bank public depositaries, as follows: First, against the public depositary in which the loss occurred, to the extent of the full value of collateral segregated pursuant to this chapter; second, against all other bank public depositaries pro rata in proportion to the maximum liability of each such depositary as it existed on the date of loss; (4) Assessments made by the commission shall be payable on the second business day following demand, and in case of the failure of any public depositary so to pay, the commission shall forthwith take possession of the securities segregated as collateral by such depositary pursuant to this chapter and liquidate the same for the purpose of paying such assessment; (5) Upon receipt of such assessment payments, the commission shall reimburse the public depositors of the public depositary in which the loss occurred to the extent of the depositary’s net deposit liability to them. [1996 c 256 § 5; 1983 c 66 § 9; 1973 c 126 § 12; 1969 ex.s. c 193 § 6.] Severability—1983 c 66: See note following RCW 39.58.010. 39.58.065 Loss in a thrift public depositary—Procedure for payment. When the commission determines that a loss has occurred in a thrift public depositary, it shall as soon as possible make payment to the proper public officers of all funds subject to such loss, pursuant to the following procedures: (1) For the purposes of determining the sums to be paid, the director of financial institutions or the receiver shall, within twenty days after issuance of a restraining order or taking possession of any thrift public depositary, ascertain the amount of public funds on deposit therein as disclosed by its records and the amount thereof covered by deposit insurance and certify the amounts thereof to the commission and each such public depositor; (2) Within ten days after receipt of such certification, each such public depositor shall furnish to the commission verified statements of its deposits in such thrift depositary as disclosed by its records; (3) Upon receipt of such certificate and statements, the commission shall ascertain and fix the amount of such public deposits, net after deduction of any amount received from deposit insurance, and, after determining and declaring the apparent net loss, assess the same against all then thrift public depositaries, as follows: First, against the public depositary in which the loss occurred, to the extent of the full value of collateral segregated pursuant to this chapter; second, against all other thrift public depositaries pro rata in proportion to the maximum liability of each such depositary as it existed on the date of loss; (4) Assessments made by the commission shall be payable on the second business day following demand, and in 39.58.065 [Title 39 RCW—page 84] case of the failure of any public depositary so to pay, the commission shall forthwith take possession of the securities segregated as collateral by such depositary pursuant to this chapter and liquidate the same for the purpose of paying such assessment; (5) Upon receipt of such assessment payments, the commission shall reimburse the public depositors of the public depositary in which the loss occurred to the extent of the depositary’s net deposit liability to them. [1996 c 256 § 6; 1983 c 66 § 10.] Severability—1983 c 66: See note following RCW 39.58.010. 39.58.070 Subrogation of commission to depositor’s rights—Sums received from distribution of assets, payment. Upon payment to any public depositor, the commission shall be subrogated to all of such depositor’s right, title and interest against the public depositary in which the loss occurred and shall share in any distribution of its assets ratably with other depositors. Any sums received from any distribution shall be paid to the public depositors to the extent of any unpaid net deposit liability and the balance remaining shall be paid to the public depositaries against which assessments were made, pro rata in proportion to the assessments actually paid by each such depositary: PROVIDED, That the public depositary in which the loss occurred shall not share in any such distribution of the balance remaining. If the commission incurs expense in enforcing any such claim, the amount thereof shall be paid as a liquidation expense of the public depositary in which the loss occurred. [1996 c 256 § 7; 1973 c 126 § 13; 1969 ex.s. c 193 § 7.] 39.58.070 39.58.080 Deposit of public funds in public depositary required—Deposits in institutions located outside the state. (1) Except for funds deposited pursuant to a fiscal agency contract with the state fiscal agent or its correspondent bank, funds deposited pursuant to a custodial bank contract with the state’s custodial bank, and funds deposited pursuant to a local government multistate joint self-insurance program as provided in RCW 48.62.081, no public funds shall be deposited in demand or investment deposits except in a public depositary located in this state or as otherwise expressly permitted by statute: PROVIDED, That the commission, or the chair upon delegation by the commission, upon good cause shown, may authorize, for such time and upon such terms and conditions as the commission or chair deem appropriate, a treasurer to maintain a demand deposit account with a banking institution located outside the state of Washington solely for the purpose of transmitting money received to public depositaries in the state of Washington for deposit. (2) Notwithstanding subsection (1) of this section, the commission, or the chair upon delegation by the commission, upon good cause shown, may authorize, for that time and upon the terms and conditions as the commission or chair deems appropriate, a treasurer to maintain a demand deposit account with a banking institution located outside the state of Washington for deposit of certain higher education endowment funds, for a specified instructional program or research project being performed outside the state of Washington. [2005 c 203 § 1; 1996 c 256 § 8; 1991 sp.s. c 30 § 27; 1986 c 39.58.080 (2008 Ed.) Public Funds—Deposits and Investments—Public Depositaries 160 § 1; 1984 c 177 § 14; 1983 c 66 § 11; 1969 ex.s. c 193 § 8.] Effective date, implementation, application—Severability—1991 sp.s. c 30: See RCW 48.62.900 and 48.62.901. Severability—1983 c 66: See note following RCW 39.58.010. 39.58.085 Demand accounts in out-of-state and alien banks—Limitations. (1)(a) The commission, or the chair upon delegation by the commission, may authorize state and local governmental entities to establish demand accounts in out-of-state and alien banks in an aggregate amount not to exceed one million dollars. No single governmental entity shall be authorized to hold more than fifty thousand dollars in one demand account. (b) The governmental entities establishing such demand accounts shall be solely responsible for their proper and prudent management and shall bear total responsibility for any losses incurred by such accounts. Accounts established under the provisions of this section shall not be considered insured by the commission. (c) The state auditor shall annually monitor compliance with this section and the financial status of such demand accounts. (2) Subsection (1)(a) of this section does not apply to RCW 39.58.080(2). [2005 c 203 § 2; 1996 c 256 § 9; 1987 c 505 § 21; 1986 c 160 § 2.] 39.58.085 39.58.130 39.58.105 Investigation of financial institution applying to become public depositary—Report. The commission may require the state auditor or the director of financial institutions to thoroughly investigate and report to it concerning the condition of any financial institution which makes application to become a public depositary, and may also as often as it deems necessary require such investigation and report concerning the condition of any financial institution which has been designated as a public depositary. The expense of all such investigations or reports shall be borne by the financial institution examined. In lieu of any such investigation or report, the commission may rely upon information made available to it or the director of financial institutions by the office of the comptroller of the currency, the office of thrift supervision, the federal deposit insurance corporation, the federal reserve board, or any state bank or thrift regulatory agency. The director of financial institutions shall in addition advise the commission of any action he or she has directed any public depositary to take which will result in a reduction of greater than ten percent of the net worth of such depositary as shown on the most recent report it submitted pursuant to RCW 39.58.100. [1996 c 256 § 12; 1983 c 66 § 14; 1975 1st ex.s. c 77 § 5.] 39.58.105 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.108 Requirements to become depositary. Any financial institution may become a depositary upon approval by the commission and segregation of collateral in the manner as set forth in this chapter, and upon compliance with all rules as promulgated by the commission. For the first twelvemonth period following qualification as a public depositary, the depositary shall at all times pledge and segregate eligible securities in an amount equal to not less than ten percent of all public funds on deposit in the depositary. [1996 c 256 § 13; 1984 c 177 § 17; 1983 c 66 § 15; 1975 1st ex.s. c 77 § 6.] 39.58.108 39.58.090 Authority to secure deposits in accordance with chapter—Bonds and securities for deposits dispensed with. All institutions located in this state which are permitted by the statutes of this state to hold and receive public funds shall have power to secure such deposits in accordance with this chapter. Except as provided in this chapter, no bond or other security shall be required of or given by any public depositary for any public funds on deposit. [1996 c 256 § 10; 1984 c 177 § 15; 1969 ex.s. c 193 § 9.] 39.58.090 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.100 Reports of public depositaries—Certification by director of financial institutions. On or before each commission report due date, each public depositary shall render to the commission a written report, certified under oath, indicating the total amount of public funds on deposit held by it, the net worth of the depositary, and the amount and nature of eligible collateral then segregated for the benefit of the commission. The commission may instruct the director of financial institutions to examine and thereafter certify as to the accuracy of any statement to the commission by any public depositary. [1996 c 256 § 11; 1984 c 177 § 16; 1983 c 66 § 12; 1969 ex.s. c 193 § 10.] 39.58.100 Severability—1983 c 66: See note following RCW 39.58.010. 39.58.103 Notice to commission of reduced net worth. Each public depositary shall notify the commission in writing within five working days of the happening of an event which causes its net worth to be reduced by an amount greater than ten percent of the amount shown as its net worth on the most recent report submitted pursuant to RCW 39.58.100. [1983 c 66 § 13; 1975 1st ex.s. c 77 § 4.] 39.58.103 Severability—1983 c 66: See note following RCW 39.58.010. (2008 Ed.) 39.58.120 Interest rates. Time deposits issued pursuant to this chapter shall bear interest at a rate not in excess of the maximum rate permitted by any applicable governmental regulation. [1974 ex.s. c 50 § 1; 1969 ex.s. c 193 § 12.] 39.58.120 39.58.130 Investment deposits—Net worth of public depositary. A treasurer is authorized to deposit in a public depositary any public funds available for investment and secured by collateral in accordance with the provisions of this chapter, and receive interest thereon. The authority provided by this section is additional to any authority now or hereafter provided by law for the investment or deposit of public funds by any such treasurer: PROVIDED, That in no case shall the aggregate of demand and investment deposits of public funds by any such treasurer in any one public depositary exceed at any time the net worth of that depositary. If a public depositary’s net worth is reduced, a treasurer may allow public funds on deposit in excess of the reduced net worth to remain until maturity upon pledging by the depositary of eligible securities valued at market value in an amount at least equal to the amount of the excess deposits. The collateral shall be segregated as provided in RCW 39.58.050. If the additional 39.58.130 [Title 39 RCW—page 85] 39.58.135 Title 39 RCW: Public Contracts and Indebtedness securities required by this section are not pledged by the depositary, the depositary shall permit withdrawal prior to maturity by the treasurer of deposits, including accrued interest, in accordance with applicable statutes and governmental regulations. [1996 c 256 § 14; 1984 c 177 § 18; 1983 c 66 § 16; 1969 ex.s. c 193 § 13.] Severability—1983 c 66: See note following RCW 39.58.010. Chapter 39.59 Chapter 39.59 RCW PUBLIC FUNDS—AUTHORIZED INVESTMENTS Sections 39.59.010 39.59.020 39.59.030 39.59.900 Definitions. Authorized investments—Bonds, warrants, and other investments. Authorized investments—Mutual funds and money market funds. Severability—1988 c 281. 39.58.135 39.58.135 Limitations on deposits. Notwithstanding RCW 39.58.130, (1) aggregate deposits received by a public depositary from all public treasurers shall not exceed at any time one hundred fifty percent of the value of the depositary’s net worth, nor (2) shall the aggregate deposits received by any public depositary exceed thirty percent of the total aggregate deposits of all public treasurers in all depositaries as determined by the public deposit protection commission. However, a public depositary may receive deposits in excess of the limits provided in this section if eligible securities, as prescribed in RCW 39.58.050, are pledged as collateral in an amount equal to one hundred percent of the value of deposits received in excess of the limitations prescribed in this section. [1996 c 256 § 15; 1986 c 25 § 1; 1984 c 177 § 19.] 39.58.140 39.58.140 Liability of treasurers. When deposits are made in accordance with this chapter, a treasurer shall not be liable for any loss thereof resulting from the failure or default of any public depositary without fault or neglect on his or her part or on the part of his or her assistants or clerks. [1996 c 256 § 16; 1969 ex.s. c 193 § 29.] Liability of state treasurer: RCW 43.85.070. 39.58.155 39.58.155 Statewide custodian—Exemption from chapter. A statewide custodian under RCW 43.08.280 may be exempted from the requirements of this chapter, based on rules adopted by the public deposit protection commission. [1999 c 293 § 3.] Purpose—Effective date—1999 c 293: See notes following RCW 43.08.280. 39.58.750 39.58.750 Receipt, disbursement, or transfer of public funds by wire or other electronic communication means authorized. Notwithstanding any provision of law to the contrary, the state treasurer or any county, city, or other municipal treasurer or other custodian of public funds may receive, disburse, or transfer public funds under his or her jurisdiction by means of wire or other electronic communication in accordance with accounting standards established by the state auditor under RCW 43.09.200 with regard to municipal treasurers or other custodians or by the office of financial management under RCW 43.88.160 in the case of the state treasurer and other state custodians to safeguard and insure accountability for the funds involved. [1996 c 256 § 17; 1981 c 101 § 1; 1979 c 151 § 48; 1977 ex.s. c 15 § 1. Formerly RCW 39.58.150.] Effective date—1977 ex.s. c 15: "The effective date of this act shall be July 1, 1977." [1977 ex.s. c 15 § 2.] [Title 39 RCW—page 86] 39.59.010 Definitions. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter. (1) "Bond" means any agreement which may or may not be represented by a physical instrument, including but not limited to bonds, notes, warrants, or certificates of indebtedness, that evidences an obligation under which the issuer agrees to pay a specified amount of money, with or without interest, at a designated time or times either to registered owners or bearers. (2) "Local government" means any county, city, town, special purpose district, political subdivision, municipal corporation, or quasi-municipal corporation, including any public corporation, authority, or other instrumentality created by such an entity. (3) "Money market fund" means a mutual fund the portfolio which consists of only bonds having maturities or demand or tender provisions of not more than one year, managed by an investment advisor who has posted with the risk management division of the office of financial management a bond or other similar instrument in the amount of at least five percent of the amount invested in the fund pursuant to RCW 39.59.030 (2) or (3). (4) "Mutual fund" means a diversified mutual fund registered with the federal securities and exchange commission and which is managed by an investment advisor with assets under management of at least five hundred million dollars and with at least five years’ experience in investing in bonds authorized for investment by this chapter and who has posted with the risk management division of the office of financial management a bond or other similar instrument in the amount of at least five percent of the amount invested in the fund pursuant to RCW 39.59.030(1). (5) "State" includes a state, agencies, authorities, and instrumentalities of a state, and public corporations created by a state or agencies, authorities, or instrumentalities of a state. [2002 c 332 § 22; 1988 c 281 § 1.] 39.59.010 Intent—Effective date—2002 c 332: See notes following RCW 43.41.280. Enforcement of bonds under RCW 39.59.010 (3) and (4): RCW 43.41.330. 39.59.020 Authorized investments—Bonds, warrants, and other investments. In addition to any other investment authority granted by law and notwithstanding any provision of law to the contrary, the state of Washington and local governments in the state of Washington are authorized to invest their funds and money in their custody or possession, eligible for investment, in: (1) Bonds of the state of Washington and any local government in the state of Washington, which bonds have at the 39.59.020 (2008 Ed.) Investment of Public Funds in Bonds, Notes, Etc.—Collateral time of investment one of the three highest credit ratings of a nationally recognized rating agency; (2) General obligation bonds of a state other than the state of Washington and general obligation bonds of a local government of a state other than the state of Washington, which bonds have at the time of investment one of the three highest credit ratings of a nationally recognized rating agency; (3) Subject to compliance with RCW 39.56.030, registered warrants of a local government in the same county as the government making the investment; or (4) Any investments authorized by law for the treasurer of the state of Washington or any local government of the state of Washington other than a metropolitan municipal corporation but, except as provided in chapter 39.58 RCW, such investments shall not include certificates of deposit of banks or bank branches not located in the state of Washington. [1988 c 281 § 2.] 39.59.030 Authorized investments—Mutual funds and money market funds. In addition to any other investment authority granted by law, the state of Washington and local governments in the state of Washington are authorized to invest their funds and money in their custody or possession, eligible for investment and subject to the arbitrage provisions of section 148 of the federal internal revenue code or similar provision concerning the investment of state and local money and funds, in: (1) Shares of mutual funds with portfolios consisting of only United States government bonds or United States government guaranteed bonds issued by federal agencies with average maturities less than four years, or bonds described in RCW 39.59.020 (1) or (2), except that bonds otherwise described in RCW 39.59.020 (1) or (2) shall have one of the four highest credit ratings of a nationally recognized rating agency; (2) Shares of money market funds with portfolios consisting of only bonds of states and local governments or other issuers authorized by law for investment by local governments, which bonds have at the time of investment one of the two highest credit ratings of a nationally recognized rating agency; or (3) Shares of money market funds with portfolios consisting of securities otherwise authorized by law for investment by local governments. [1988 c 281 § 3.] 39.59.030 39.59.900 Severability—1988 c 281. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1988 c 281 § 10.] 39.59.900 Chapter 39.60 RCW INVESTMENT OF PUBLIC FUNDS IN BONDS, NOTES, ETC.—COLLATERAL Chapter 39.60 Sections 39.60.010 39.60.020 39.60.030 (2008 Ed.) Investment of public and trust funds authorized. Exchange of securities for federal agency bonds. Obligations eligible as collateral security. 39.60.040 39.60.050 39.60.010 Insured shares, deposits or accounts as collateral—Partially guaranteed obligations. Investment of public and trust funds in notes, bonds or debentures authorized—Requirements. Bonds and warrants of state and municipal corporations as investment and collateral for public funds: ferry system bonds: RCW 47.60.100. highway construction bonds: RCW 47.10.050, 47.10.190, 47.10.320, 47.10.450, 47.10.710. metropolitan municipal corporation bonds: RCW 35.58.510. public utility district bonds and warrants: RCW 54.24.120. state warrants: RCW 43.84.120. toll bridge bonds: RCW 47.56.150, 47.58.070, 47.60.100. Investments in bonds and warrants of state and municipal corporations authorized for: cities of first class, employees’ retirement fund: RCW 41.28.080. city and town pension funds: RCW 35.39.060. current state funds: RCW 43.84.080. insurers: RCW 48.13.040. metropolitan municipal corporation funds: RCW 35.58.520. mutual savings banks: RCW 32.20.050, 32.20.070, 32.20.110, 32.20.120, 32.20.130. permanent school fund: State Constitution Art. 16 § 5 (Amendment 44). savings and loan associations: RCW 33.24.030, 33.24.050, 33.24.080. statewide city employees’ retirement fund: RCW 41.44.100. volunteer firefighters’ and reserve officers’ relief and pension principal fund: RCW 41.24.030. workers’ compensation funds: RCW 51.44.100. Investments in federal bonds and securities authorized for: cities and towns: RCW 35.39.030. current state funds: RCW 43.84.080. insurers: RCW 48.13.040. mutual savings banks: RCW 32.20.030. savings and loan associations: RCW 33.24.020. school district capital projects fund: RCW 28A.320.330. school districts, first class, insurance reserve funds: RCW 28A.330.110. statewide city employees’ retirement fund: RCW 41.44.100. workers’ compensation funds: RCW 51.44.100. 39.60.010 Investment of public and trust funds authorized. Notwithstanding the provisions of any other statute of the state of Washington to the contrary, it shall be lawful for the state of Washington and any of its departments, institutions and agencies, municipalities, districts, and any other political subdivision of the state, or any political or public corporation of the state, or for any insurance company, savings and loan association, or for any bank, trust company or other financial institution, operating under the laws of the state of Washington, or for any executor, administrator, guardian or conservator, trustee or other fiduciary to invest its funds or the moneys in its custody or possession, eligible for investment, in notes or bonds secured by mortgage which the Federal Housing Administrator has insured or has made a commitment to insure in obligations of national mortgage associations, in debentures issued by the Federal Housing Administrator, and in the bonds of the Home Owner’s Loan Corporation, a corporation organized under and by virtue of the authority granted in H.R. 5240, designated as the Home Owner’s Loan Act of 1933, passed by the congress of the United States and approved June 13, 1933, and in bonds of any other corporation which is or hereafter may be created by the United States, as a governmental agency or instrumentality. [1939 c 32 § 1; 1935 c 11 § 1; 1933 ex.s. c 37 § 1; RRS § 5545-1.] 39.60.010 Severability—1933 ex.s. c 37: "If any section, subsection, sentence, clause or phrase of this act for any reason shall be held to be unconstitutional, such holding shall not affect the validity of the remaining portion of this act. The legislature hereby declares that it would have passed this act in each sec[Title 39 RCW—page 87] 39.60.020 Title 39 RCW: Public Contracts and Indebtedness tion, subsection, sentence, clause and phrase thereof, separately and irrespective of the fact that any one or more of the sections, subsections, sentences, clauses or phrases be unconstitutional." [1933 ex.s. c 37 § 4.] 39.60.020 Exchange of securities for federal agency bonds. Notwithstanding the provisions of any other statute of the state of Washington to the contrary, it shall be also lawful for the state of Washington and any of its departments, institutions and agencies, municipalities, districts, and any other political subdivisions of the state, or any political or public corporation of the state, or for any insurance company, savings and loan association, building and loan association, or for any bank, trust company or other financial institution, operating under the laws of the state of Washington, or for any executor, administrator, guardian or conservator, trustee or other fiduciary, to exchange any mortgages, contracts, judgments or liens owned or held by it, for the bonds of the Home Owners’ Loan Corporation, a corporation organized under and by virtue of the authority granted in H.R. 5240, designated as The Home Owners’ Loan Act of 1933, passed by the congress of the United States and approved June 13, 1933, or for the bonds of any other corporation which is or hereafter may be created by the United States as a governmental agency or instrumentality; and to accept said bonds at their par value in any such exchange. [1933 ex.s. c 37 § 2; RRS § 5545-2.] the generality of the foregoing, any bond, recognizance, or undertaking. [1967 ex.s. c 48 § 1; 1941 c 249 § 2; Rem. Supp. 1941 § 3791-2.] 39.60.020 Severability—1933 ex.s. c 37: See note following RCW 39.60.010. 39.60.030 Obligations eligible as collateral security. Wherever, by statute of this state, collateral is required as security for the deposit of public or other funds; or deposits are required to be made with any public official or department; or an investment of capital or surplus, or a reserve or other fund is required to be maintained consisting of designated securities, the bonds and other securities herein made eligible for investment shall also be eligible for such purpose. [1939 c 32 § 2; 1935 c 11 § 2; 1933 ex.s. c 37 § 3; RRS § 5545-3.] 39.60.030 Severability—1933 ex.s. c 37: See note following RCW 39.60.010. 39.60.040 Insured shares, deposits or accounts as collateral—Partially guaranteed obligations. The obligations issued pursuant to said Federal Home Loan Bank Act and to said Title IV of the National Housing Act as such acts are now or hereafter amended, and the shares, deposits or accounts of any institution which has the insurance protection provided by Title IV of the National Housing Act, as now or hereafter amended, may be used at face value or withdrawal value, and bonds or other interest bearing obligations as to which the payment of some but less than the full principal and interest is guaranteed by the United States of America or any agency thereof may be used to the extent of the portion so guaranteed, wherever, by statute of this state or otherwise, collateral is required as security for the deposit of public or other funds, or deposits are required to be made with any public official or department, or an investment of capital or surplus, or a reserve or other fund, is required to be maintained consisting of designated security, or wherever by statute of this state or otherwise, any surety, whether personal, corporate, or otherwise, or any collateral or security, is required or permitted for any purpose, including without limitation on 39.60.040 [Title 39 RCW—page 88] 39.60.050 Investment of public and trust funds in notes, bonds or debentures authorized—Requirements. Notwithstanding the provisions of any other statute of the state of Washington to the contrary, it shall be lawful for the state of Washington and any of its departments, institutions and agencies, municipalities, districts, and any other political subdivision, or any political or public corporation of the state, or for any executor, administrator, guardian, or conservator, trustee or other fiduciary, to invest its funds or the moneys in its custody or possession, eligible for investment, in notes, bonds, or debentures of savings and loan associations, banks, mutual savings banks, savings and loan service corporations operating with approval of the federal home loan bank, and corporate mortgage companies: PROVIDED, That the notes, bonds or debentures are rated not less than "A" by a nationally recognized rating agency, or are insured or guaranteed by an agency of the federal government or by private insurer authorized to do business in the state: PROVIDED FURTHER, That the notes, bonds and debentures insured or guaranteed by a private insurer shall also be backed by a pool of mortgages equal to the amount of the notes, bonds or debentures. [1970 ex.s. c 93 § 1.] 39.60.050 Severability—1970 ex.s. c 93: "If any provision of this act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected." [1970 ex.s. c 93 § 4.] Investment in local improvement district notes: RCW 35.45.150. Chapter 39.62 Chapter 39.62 RCW UNIFORM FACSIMILE SIGNATURE OF PUBLIC OFFICIALS ACT Sections 39.62.010 39.62.020 39.62.030 39.62.040 39.62.900 39.62.910 39.62.920 Definitions. Facsimile signature—Authorized—Legal effect. Facsimile seal—Authorized—Legal effect. Unauthorized use—Penalty. Construction—Uniformity. Short title. Severability—1969 c 86. Facsimile signatures on bonds and coupons: RCW 39.44.100 through 39.44.102. 39.62.010 Definitions. As used in this chapter: (1) "Public security" means a bond, note, certificate of indebtedness, or other obligation for the payment of money, issued by this state or by any of its departments, agencies, counties, cities, towns, municipal corporations, junior taxing districts, school districts, or other instrumentalities or by any of its political subdivisions. (2) "Instrument of payment" means a check, draft, warrant, or order for the payment, delivery, or transfer of funds. (3) "Authorized officer" means any official of this state or any of its departments, agencies, counties, cities, towns, municipal corporations, junior taxing districts, school districts, or other instrumentalities or any of its political subdivisions whose signature to a public security or instrument of payment is required or permitted. 39.62.010 (2008 Ed.) Taxing District Relief (4) "Facsimile signature" means a reproduction by engraving, imprinting, stamping, or other means of the manual signature of an authorized officer. [1969 c 86 § 1.] 39.62.020 39.62.020 Facsimile signature—Authorized—Legal effect. Any authorized officer, after filing with the secretary of state his manual signature certified by him under oath, may execute or cause to be executed with a facsimile signature in lieu of his manual signature: (1) Any public security: PROVIDED, That at least one signature required or permitted to be placed thereon shall be manually subscribed, and (2) Any instrument of payment. Upon compliance with this chapter by the authorized officer, his facsimile signature has the same legal effect as his manual signature. [1969 c 86 § 2.] 39.62.030 39.62.030 Facsimile seal—Authorized—Legal effect. When the seal of this state or any of its departments, agencies, counties, cities, towns, municipal corporations, junior taxing districts, school districts, or other instrumentalities or of any of its political subdivisions is required in the execution of a public security or instrument of payment, the authorized officer may cause the seal to be printed, engraved, stamped or otherwise placed in facsimile thereon. The facsimile seal has the same legal effect as the impression of the seal. [1969 c 86 § 3.] 39.62.040 39.62.040 Unauthorized use—Penalty. Any person who with intent to defraud uses on a public security or an instrument of payment: (1) A facsimile signature, or any reproduction of it, of any authorized officer, or (2) Any facsimile seal, or any reproduction of it, of this state or any of its departments, agencies, counties, cities, towns, municipal corporations, junior taxing districts, school districts, or other instrumentalities or of any of its political subdivisions is guilty of a class B felony punishable according to chapter 9A.20 RCW. [2003 c 53 § 213; 1969 c 86 § 4.] Intent—Effective date—2003 c 53: See notes following RCW 2.48.180. 39.62.900 39.62.900 Construction—Uniformity. This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it. [1969 c 86 § 5.] Chapter 39.64 39.64.040 Chapter 39.64 RCW TAXING DISTRICT RELIEF Sections 39.64.005 39.64.010 39.64.020 39.64.030 39.64.040 39.64.050 39.64.060 39.64.070 39.64.080 39.64.085 39.64.090 39.64.900 Short title. Purpose of chapter. Definitions. Exercise of powers granted. Petition in bankruptcy. Resolution of authorization. Resolution consenting to readjustment. Plan of readjustment. Powers under plan of readjustment. Authority of operating agencies to levy taxes. Validation of prior bankruptcy proceedings. Construction—Severability—1935 c 143. 39.64.005 Short title. This chapter may be cited as the taxing district relief act. [1935 c 143 § 1; RRS § 5608-1.] 39.64.005 39.64.010 Purpose of chapter. The purpose of this chapter is to facilitate and permit taxing districts which are unable to meet their debts either in their present amount and/or at the time they fall due, to obtain relief by the readjustment of such debts as provided for by the act of congress hereinafter referred to, by supplementing the powers of those taxing districts for which refunding of debts is provided for by existing statutes, and by providing a method of refunding of debts for those taxing districts for which no method of refunding such debts has heretofore been provided, and by other provisions appropriate to such purposes. This chapter shall not be construed as in anywise limiting the powers of the federal courts to grant relief as provided for in said act of congress. [1935 c 143 § 2; RRS § 5608-2.] 39.64.010 39.64.020 Definitions. For the purposes of this chapter a "taxing district" is defined to be a "taxing district" as described in section 80 of chapter IX of the act of congress entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved July 1, 1898, as amended, to wit: "Any municipality or other political subdivision of any state, including (but not hereby limiting the generality of the foregoing) any county, city, borough, village, parish, town, or township, unincorporated tax or special assessment district, and any school, drainage, irrigation, reclamation, levee, sewer, or paving, sanitary, port, improvement or other district (hereinafter referred to as a ’taxing district’)." Said act of congress and acts amendatory thereof and supplementary thereto, as the same may be amended from time to time, are herein referred to as the "federal bankruptcy act." [1935 c 143 § 3; RRS § 5608-3.] 39.64.020 39.64.030 Exercise of powers granted. All powers herein granted to taxing districts in state of Washington may be exercised by such districts. If a taxing district has no officers of its own, such powers may be exercised in its behalf by the officer or officers, board, council or commission having the power to contract in behalf of such district or to levy special assessments or special taxes within such district. [1935 c 143 § 4; RRS § 5608-4.] 39.64.030 39.62.910 39.62.910 Short title. This act may be cited as the uniform facsimile signature of public officials act. [1969 c 86 § 6.] 39.62.920 39.62.920 Severability—1969 c 86. If any provision of this 1969 act, or its application to any person or circumstance is held invalid, the remainder of the act, or the application of the provision to other persons or circumstances is not affected. [1969 c 86 § 7.] (2008 Ed.) 39.64.040 Petition in bankruptcy. Any taxing district in the state of Washington is hereby authorized to file the 39.64.040 [Title 39 RCW—page 89] 39.64.050 Title 39 RCW: Public Contracts and Indebtedness petition mentioned in section 80 of chapter IX of the federal bankruptcy act. [1935 c 143 § 5; RRS § 5608-5.] 39.64.050 Resolution of authorization. Before the filing of any petition referred to in RCW 39.64.040, such taxing district shall adopt a resolution authorizing the filing thereof and authorizing its duly and regularly elected or appointed attorney or special counsel duly appointed for such purpose to file the same and to represent it in the proceedings with respect thereto in the competent United States district court. [1935 c 143 § 6; RRS § 5608-6.] 39.64.050 39.64.060 Resolution consenting to readjustment. No final decree or order of such United States district court confirming a plan of readjustment shall be effective for the purpose of binding such taxing district unless and until such taxing district files with such court a certified copy of a resolution of such taxing district, adopted by it or by the officer or officers, board, council or commission referred to in RCW 39.64.030, consenting to the plan of readjustment set forth or referred to in such final decree or order. [1935 c 143 § 7; RRS § 5608-7.] 39.64.060 39.64.070 Plan of readjustment. Such taxing district is hereby authorized and empowered to take any and all action necessary to carry out any plan of readjustment contemplated in said petition, or as the same may be modified from time to time, notwithstanding any other provisions of law. In case of the refunding of debts of irrigation districts, diking or drainage improvement districts, general debts of cities, or debts of other taxing districts for the refunding of which provision is already made under existing statutes, such refunding shall be had and done as provided for in such existing statutes, except that the tenor and character of the refunding bonds and the assessments levied to meet such bonds may be modified to conform to the capacity of the taxing district, or the individual lots, tracts, or parcels of real property therein, to meet and carry the charges, both direct and contingent, against them, as found and set forth in the plan of readjustment and decree of court; and except also as such existing provisions of law may be otherwise supplemented by such plan of readjustment or the provisions of this chapter. [1935 c 143 § 8; RRS § 56088.] 39.64.070 39.64.080 Powers under plan of readjustment. Such taxing district shall have power to consummate the plan of readjustment, as adopted by the court’s decree and approved by it as aforesaid, and if such plan, as approved by such decree, so requires, may, for such purpose, exercise any of the following powers: (1) Cancel in whole or in part any assessments or any interest or penalties assessed thereon which may be outstanding and a lien upon any property in such taxing district, as and when such assessments are replaced by the readjusted or revised assessments provided for in the plan of readjustment approved by such decree. (2) Issue refunding bonds to refund bonds theretofore issued by such taxing district. Such refunding bonds shall have such denominations, rates of interest and maturities as shall be provided in such plan of readjustment and shall be 39.64.080 [Title 39 RCW—page 90] payable by special assessments or by general taxes, according to the nature of the taxing district, in the manner provided in such plan of readjustment and decree. (3) Apportion and levy new assessments or taxes appropriate in time or times of payment to provide funds for the payment of principal and interest of such refunding bonds, and of all expenses incurred by such taxing district in filing the petition mentioned in RCW 39.64.040, and any and all other expenses necessary or incidental to the consummation of the plan of readjustment. In the case of special assessment districts for the refunding of whose debts no procedure is provided by existing laws, such assessments shall be equitably apportioned and levied upon each lot, tract or parcel of real property within such taxing district, due consideration being given to the relative extent to which the original apportionments upon the various lots, tracts or parcels of real property within such taxing district have already been paid and due consideration also being given to the capacity of the respective lots, tracts or parcels of real property to carry such charges against them. Before levying or apportioning such assessment such taxing district or the officer or officers, board, council or commission mentioned in RCW 39.64.030 shall hold a hearing with reference thereto, notice of which hearing shall be published once a week for four consecutive weeks in the newspaper designated for the publication of legal notices by the legislative body of the city or town, or by the board of county commissioners of the county within which such taxing district or any part thereof is located, or in any newspaper published in the city, town or county within which such taxing district or any part thereof is located and of general circulation within such taxing district. At such hearing every owner of real property within such taxing district shall be given an opportunity to be heard with respect to the apportionment and levy of such assessment. (4) In the case of special assessment districts, of cities or towns, provide that if any of the real property within such taxing district shall not, on foreclosure of the lien of such new assessment for delinquent assessments and penalties and interest thereon, be sold for a sufficient amount to pay such delinquent assessments, penalties and interest, or if any real property assessed was not subject to assessment, or if any assessment or installment or installments thereof shall have been eliminated by foreclosure of a tax lien or made void in any other manner, such taxing district shall cause a supplemental assessment sufficient in amount to make up such deficiency to be made on the real property within such taxing district, including real property upon which any such assessment or any installment or installments thereof shall have been so eliminated or made void. Such supplemental assessment shall be apportioned to the various lots, tracts and parcels of real property within such taxing district in proportion to the amounts apportioned thereto in the assessment originally made under such plan of readjustment. (5) Provide that refunding bonds may, at the option of the holders thereof, be converted into warrants of such denominations and bearing such rate of interest as may be provided in the plan of readjustment, and that the new assessments mentioned in subdivision (3) and the supplemental assessments mentioned in subdivision (4) of this section may be paid in refunding bonds or warrants of such taxing district (2008 Ed.) Agreements Between Taxing Districts without regard to the serial numbers thereof, or in money, at the option of the person paying such assessments, such refunding bonds and warrants to be received at their par value in payment of such assessments. In such case such refunding bonds and warrants shall bear the following legend: "This bond (or warrant) shall be accepted at its face value in payment of assessments (including interest and penalties thereon) levied to pay the principal and interest of the series of bonds and warrants of which this bond (or warrant) is one without regard to the serial number appearing upon the face hereof." (6) Provide that all sums of money already paid to the treasurer of such taxing district or other authorized officer in payment, in whole or in part, of any assessment levied by or for such taxing district or of interest or penalties thereon, shall be transferred by such treasurer or other authorized officer to a new account and made applicable to the payment of refunding bonds and warrants to be issued under such plan of readjustment. (7) Provide that such treasurer or other authorized officer shall have authority to use funds in his possession not required for payment of current interest of such bonds and warrants, to buy such bonds and warrants in the open market through tenders or by call at the lowest prices obtainable at or below par and accrued interest, without preference of one bond or warrant over another because of its serial number, or for any other cause other than the date and hour of such tender or other offer and the amount which the owner of such bond or warrant agrees to accept for it. In such case such refunding bonds and warrants shall bear the following legend: "This bond (or warrant) may be retired by tender or by call without regard to the serial number appearing upon the face hereof." (8) Provide that if, after the payment of all interest on refunding bonds and warrants issued under any plan of readjustment adopted pursuant to this chapter and chapter IX of the federal bankruptcy act and the retirement of such bonds and warrants, there shall be remaining in the hands of the treasurer or other authorized officer of the taxing district which issued such bonds and warrants money applicable under the provisions of this chapter to the payment of such interest, bonds and warrants, such money shall be applied by such treasurer or other authorized officer to the maintenance, repair and replacement of the improvements originally financed by the bonds readjusted under this chapter and the federal bankruptcy act. (9) The above enumeration of powers shall not be deemed to exclude powers not herein mentioned that may be necessary for or incidental to the accomplishment of the purposes hereof. [1935 c 143 § 9; RRS § 5608-9.] 39.67.020 39.64.090 Validation of prior bankruptcy proceedings. In the event that any taxing district in the state of Washington, before this chapter takes effect, shall have filed or purported or attempted to file a petition under the provisions of chapter IX of the federal bankruptcy act, or shall have taken or purported or attempted to take any other proceedings under or in contemplation of proceedings under the provisions of said chapter IX, then and in every such case all acts and proceedings of such taxing district, in connection with such petition or proceedings, are hereby, to all intents and purposes, declared as legal and valid as though taken after the *effective date of this chapter. [1935 c 143 § 10; RRS § 5608-10.] 39.64.090 *Reviser’s note: The "effective date of this chapter" was March 21, 1935. 39.64.900 Construction—Severability—1935 c 143. This chapter and all its provisions shall be liberally construed to the end that the purposes hereof may be made effective. If any section, part or provision of this chapter shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole, or of any section, provision or part thereof not adjudged invalid or unconstitutional. [1935 c 143 § 11; RRS § 5608-11.] 39.64.900 Chapter 39.67 RCW AGREEMENTS BETWEEN TAXING DISTRICTS Chapter 39.67 Sections 39.67.010 39.67.020 Agreements contingent on property tax levy—Authorized. Transfer of funds between taxing districts. 39.67.010 Agreements contingent on property tax levy—Authorized. Any agreement or contract between two taxing districts other than the state which is otherwise authorized by law may be made contingent upon a particular property tax levy rate of an identified taxing district other than the state where such rate affects the regular property tax rate of one of the parties to the contract and therefore affects the party’s resources with which to perform under the contract. The governing body of every taxing district that could have its tax levy adversely affected by such a contract shall be notified about the contract. [1988 c 274 § 2; 1986 c 107 § 1.] 39.67.010 Purpose—Severability—1988 c 274: See notes following RCW 84.52.010. Severability—1986 c 107: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1986 c 107 § 5.] Construction—1986 c 107 §§ 1 and 2: "Sections 1 and 2 of this act are supplementary and in addition to any other authority granted by law and shall not be construed to limit any other law." [1986 c 107 § 6.] 39.64.085 39.64.085 Authority of operating agencies to levy taxes. Nothing in this chapter may be deemed to grant to any operating agency organized under chapter 43.52 RCW, or a project of any such operating agency, the authority to levy any tax or assessment not otherwise authorized by law. [1983 2nd ex.s. c 3 § 54.] Construction—Severability—Effective dates—1983 2nd ex.s. c 3: See notes following RCW 82.04.255. (2008 Ed.) 39.67.020 Transfer of funds between taxing districts. Any taxing district other than the state may transfer funds to another taxing district other than the state where the regular property tax levy rate of the second district may affect the regular property tax levy rate of the first district and where such transfer is part of an agreement whereby proration or reduction of property taxes is lessened or avoided. The governing body of every taxing district that could have its tax 39.67.020 [Title 39 RCW—page 91] Chapter 39.69 Title 39 RCW: Public Contracts and Indebtedness levy adversely affected by such an agreement shall be notified about the agreement. [1988 c 274 § 3; 1986 c 107 § 2.] Purpose—Severability—1988 c 274: See notes following RCW 84.52.010. Severability—Construction—1986 c 107: See notes following RCW 39.67.010. Chapter 39.69 Chapter 39.69 RCW PUBLIC LOANS TO MUNICIPAL CORPORATIONS Sections 39.69.010 39.69.020 39.69.030 39.69.040 "Municipal corporation" defined. Loan agreements. Application of constitutional debt limitations. Chapter supplemental. 39.69.010 39.69.010 "Municipal corporation" defined. As used in this chapter, "municipal corporation" includes counties, cities, towns, port districts, water-sewer districts, school districts, metropolitan park districts, or such other units of local government which are authorized to issue obligations. [1999 c 153 § 53; 1987 c 19 § 1.] Part headings not law—1999 c 153: See note following RCW 57.04.050. 39.69.020 39.69.020 Loan agreements. Any municipal corporation may enter into a loan agreement containing the terms and conditions of a loan from an agency of the state of Washington or the United States of America and evidencing the obligation of the municipal corporation to repay that loan under the terms and conditions set forth in the loan agreement. A loan agreement may provide that the municipal corporation will repay the loan solely from revenues set aside into a special fund for repayment of that loan. In the case of a municipal corporation authorized to borrow money payable from taxes, and authorized to levy such taxes, the loan agreement may provide that repayment of the loan is a general obligation of the municipal corporation, or both a general obligation and an obligation payable from revenues set aside into a special fund. The state or federal agency making the loan shall have such rights of recovery in the event of default in payment or other breach of the loan agreement as may be provided in the loan agreement or otherwise by law. [1987 c 19 § 2.] Chapter 39.72 Chapter 39.72 RCW LOST OR DESTROYED EVIDENCE OF INDEBTEDNESS Sections 39.72.010 39.72.020 Local government indebtedness—Issuance of duplicate instrument. Local government indebtedness—Records to be kept—Cancellation of originals. 39.72.010 Local government indebtedness—Issuance of duplicate instrument. In case of the loss or destruction of a warrant for the payment of money, or any bond or other instrument or evidence of indebtedness, issued by any county, city or town, district or other political subdivision or municipal corporation of the state of Washington, hereinafter referred to as a municipal corporation, or by any department or agency of such municipal corporation, such municipal corporation may cause a duplicate to be issued in lieu thereof, subject to the same requirements and conditions, and according to the same procedure, as prescribed for the issuance of duplicate state instruments in RCW 43.08.064 and 43.08.066 as now or hereafter amended: PROVIDED, That the requirements of *RCW 43.08.066(2) shall not be applicable to instruments received by employees of the above issuers for the payment of salary or wages or as other compensation for work performed nor shall those requirements be applicable to instruments received by former employees or their beneficiaries for the payment of pension benefits. [1975-’76 2nd ex.s. c 77 § 1; 1965 ex.s. c 61 § 4.] 39.72.010 *Reviser’s note: Subsection (2) of RCW 43.08.066 was removed by chapter 71, Laws of 1979 ex. sess. Lost or destroyed evidence of indebtedness issued by state: RCW 43.08.064 through 43.08.068. 39.72.020 Local government indebtedness—Records to be kept—Cancellation of originals. When a municipal corporation issues a duplicate instrument, as authorized in this chapter, the issuing officer of such municipal corporation shall keep a full and complete record of all warrants, bonds or other instruments alleged to have been lost or destroyed, which were issued by such municipal corporation, and of the issue of any duplicate therefor; and upon the issuance of any duplicate such officer shall enter upon his books the cancellation of the original instrument and immediately notify the treasurer of the county, city or other municipal corporation, the state auditor, and all trustees and paying agencies authorized to redeem such instruments on behalf of the municipal corporation, of such cancellation. The treasurer shall keep a similar list of all warrants, bonds or other instruments so canceled. [1965 ex.s. c 61 § 5.] 39.72.020 39.69.030 39.69.030 Application of constitutional debt limitations. Nothing in this chapter authorizes municipal corporations to incur indebtedness beyond constitutional indebtedness limitations. [1987 c 19 § 3.] 39.69.040 39.69.040 Chapter supplemental. The authority under this chapter is supplemental and in addition to the authority to issue obligations under any other provision of law. [1987 c 19 § 4.] [Title 39 RCW—page 92] Chapter 39.76 RCW INTEREST ON UNPAID PUBLIC CONTRACTS Chapter 39.76 Sections 39.76.010 39.76.011 39.76.020 39.76.030 39.76.040 Interest on unpaid public contracts—Timely payment. Interest on unpaid public contracts—When payment is considered to be made. Interest on unpaid public contracts—Exceptions. Penalties by state agencies to be paid from administrative funds. Interest on unpaid public contracts—Attorney fees. (2008 Ed.) Interest on Unpaid Public Contracts 39.76.010 Interest on unpaid public contracts— Timely payment. (1) Except as provided in RCW 39.76.020, every state agency and unit of local government shall pay interest at the 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 state agency or unit of local government fails to make timely payment. (2) For purposes of this section, payment shall be timely if: (a) A check or warrant is mailed or is available on the date specified for the amount specified in the applicable contract documents or, if no date is specified, within thirty days of receipt of a properly completed invoice or receipt of goods or services, whichever is later. (b) For any amount which is required to be withheld under state or federal law, a check or warrant is mailed or is available in the proper amount on the date the amount may be released under the applicable law. [1981 c 68 § 1.] 39.76.010 Application—1992 c 223: See RCW 39.04.901. 39.76.011 Interest on unpaid public contracts— When payment is considered to be made. (1) Except as provided in RCW 39.76.020, 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. (2) For purposes of this section, payment shall be timely if: (a) Except as provided otherwise in this subsection, a check or warrant is mailed or is available on the date specified for the amount specified in the applicable contract documents but not later than thirty days of receipt of a properly completed invoice or receipt of goods or services, whichever is later. If a contract is funded by grant or federal money, the public body shall pay the prime contractor for satisfactory performance within thirty calendar days of the date the public body receives a payment request that complies with the contract or within thirty calendar days of the date the public body actually receives the grant or federal money, whichever is later. (b) On written contracts for public works, when part or all of a payment is going to be withheld for unsatisfactory performance or if the payment request made does not comply with the requirements of the contract, the public body shall notify the prime contractor in writing within eight working days after receipt of the payment request stating specifically why part or all of the payment is being withheld and what remedial actions must be taken by the prime contractor to receive the withheld amount. (c) If the notification by the public body required by (b) of this subsection does not comply with the notice contents required under (b) of this subsection, the public body shall pay the interest under subsection (1) of this section from the ninth working day after receipt of the initial payment request until the contractor receives notice that does comply with the notice contents required under (b) of this subsection. 39.76.011 (2008 Ed.) 39.76.020 (d) If part or all of a payment is withheld under (b) of this subsection, the public body shall pay the withheld amount within thirty calendar days after the prime contractor satisfactorily completes the remedial actions identified in the notice. If the withheld amount is not paid within the thirty calendar days, the public body shall pay interest under subsection (1) of this section from the thirty-first calendar day until the date paid. (e)(i) If the prime contractor on a public works contract, after making a request for payment to the public body but before paying a subcontractor for the subcontractor’s performance covered by the payment request, discovers that part or all of the payment otherwise due to the subcontractor is subject to withholding from the subcontractor under the subcontract for unsatisfactory performance, the prime contractor may withhold the amount as allowed under the subcontract. If the prime contractor withholds an amount under this subsection, the prime contractor shall: (A) Give the subcontractor notice of the remedial actions that must be taken as soon as practicable after determining the cause for the withholding but before the due date for the subcontractor payment; (B) Give the contracting officer of the public body a copy of the notice furnished to the subcontractor under (e)(i)(A) of this subsection; and (C) Pay the subcontractor within eight working days after the subcontractor satisfactorily completes the remedial action identified in the notice. (ii) If the prime contractor does not comply with the notice and payment requirements of (e)(i) of this subsection, the contractor shall pay the subcontractor interest on the withheld amount from the eighth working day at an interest rate that is equal to the amount set forth in subsection (1) of this section. (3) For the purposes of this section: (a) A payment is considered to be made when mailed or personally delivered to the party being paid. (b) An invoice is considered to be received when it is date-stamped or otherwise marked as delivered. If the invoice is not date-stamped or otherwise marked as delivered, the date of the invoice is considered to be the date when the invoice is received. [1992 c 223 § 1.] Effective date—1992 c 223: "This act shall take effect September 1, 1992." [1992 c 223 § 9.] Waiver of rights, construction—Application—1992 c 223: See RCW 39.04.900 and 39.04.901. 39.76.020 Interest on unpaid public contracts— Exceptions. RCW 39.76.010 does not apply to the following: (1) Interagency or intergovernmental