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AGO 1994 No. 20 - November 17, 1994
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Christine Gregoire | 1993-2004 | Attorney General of Washington

COUNTIES — CITIES — CITY-COUNTY CHARTERS — FREEHOLDERS — INCORPORATION — ANNEXATION — Options available to freeholders elected to present city-county charters

1.         A board of freeholders elected pursuant to article 11, section 16 of the Washington Constitution to draft and present a proposed city-county charter may not instead draft a charter relating to the county only.

2.         The state constitution requires that a city-county charter specifically provide for the legal status of cities within the new government's territory, and grants broad discretion to the voters in defining which, if any, of the powers and duties of existing cities would continue or change after adoption of a city-county charter.

3.         Cities remaining in existence in a city-county operating under a city-county charter retain authority to annex territory, only if and only to the extent that the charter grants such authority.

4.         All of the voters of a county may vote on the adoption of a proposed city-county charter, including those residing within any incorporated cities in the county.

5.         A board of freeholders lacks authority to use public funds or property to advocate or promote adoption of a city-county charter after it has been drafted and submitted pursuant to the constitution; however, the acts of soliciting and recording public opinion, drafting, debating, deliberating, selecting options, and submitting a charter to the county are all specifically implied by the freeholders' constitutional role and do not constitute an unlawful use of public property.

                                                 * * * * * * * * * * * * * * * * * * * *

                                                               November 17, 1994

HonorableBob McCaslin
State Senator, District 4
112 Institutions Building, MS 40404                                        
Olympia, WA  98504-0404                                                                

                                                                                                            Cite as:  AGO 1994 No. 20

Dear Senator McCaslin:

            By letter previously acknowledged, you have asked our opinion on the following paraphrased questions:

            1.         May a board of freeholders, elected under the authority of article 11, section 16, of the state constitution for the purpose of drafting a unified city-county charter, propose a charter for a form of county government other than a combined city-county government?

            2.         If a city-county charter is proposed, what limits, if any, are there on the creation or accommodation of cities under a combined city-county charter?

            3.         May cities that remain separately incorporated following the adoption of a city-county charter retain the authority to annex adjacent territory?

            4.         May the voters of cities that remain separately incorporated under a proposed city-county charter vote on the proposed charter?

            5.         What limitations would state law impose upon the board of freeholders in promoting a proposed charter to the public after a draft has been completed but before it is submitted to the county commissioners?

                                                              BRIEF ANSWERS

            For the reasons more fully described in our analysis, we answer your questions as follows.  In response to your first question, we answer that a board of freeholders elected for the purpose of drafting and proposing a city-county charter may not instead propose a different kind of charter.

            We answer your second question by concluding that the constitution allows broad latitude over the creation or accommodation of cities under a city-county charter.  The constitution allows for the retention of cities without qualification, directing that the charter shall prescribe the powers and duties of such retained cities.

            In response to your third question, we answer that retained cities may annex territory under such circumstances and procedures as the charter may provide.  If the charter does not so provide, retained cities lack this authority.

            We respond to your fourth question by concluding that the voters of cities that remain separately incorporated may vote on the proposed charter in the same manner as all other voters.

            Finally, in response to your fifth question, we provide a general discussion of the limitations on the use of public resources to present the proposed charter to the public and potentially urge its adoption.  Because specific conclusions would depend upon the precise facts of any given use of public resources, our discussion is necessarily general.

                                                                BACKGROUND

            Article 11 of the state constitution contains two provisions authorizing home rule charters that relate to your questions.  Section 4 authorizes the formation of county "Home Rule" charters, as a method of providing flexible, alternative forms of county government.  These charters are drafted by boards of 15 to 25 freeholders,[1] elected by the voters of the county.  The freeholders draft a proposed charter which, if approved by a majority of the county's voters, becomes the basic governing instrument of the county.  Const. art. 11, § 4.

            A charter adopted under section 4 changes the form of county government by authorizing home rule powers, and potentially making changes in the nature and duties of some county officers.  Id.  It does not, however, effectuate any changes regarding any municipal corporations other than the county itself.  Cities and special districts are unaffected by the charter.

            Article 11, section 16 authorizes a potentially broader form of home rule charter.  Under that section, "[a]ny county may frame a 'Home Rule' charter . . . to provide for the formation and government of combined city and county municipal corporations, each of which shall be known as 'city-county'".  Const. art. 11, § 16.  The manner of drafting and proposing city-county charters is similar to that under section 4, except that the only method of beginning the process (i.e., causing an election of the board of freeholders) is a voter petition.  Id.; AGO 1975 No. 2, at 5.

            A city-county charter may do more than provide an alternative form of county government.  It may merge the county legally with cities and other municipal corporations within its boundaries.  AGO 1975 No. 2, at 2.  The new entity shall "enjoy all rights, powers and privileges asserted in its charter, and in addition thereto, such rights, powers and privileges as may be granted to it, or to any city or county or class or classes of cities and counties".  Const. art. 11, § 16.  The city-county charter therefore creates a new type of local government in which the authority of various municipal corporations may be combined.  SeeHolsclaw v. Stephens, 507 S.W.2d 462, 470 (Ky. 1974).

            The charters authorized by these two sections therefore have in common the ability of county voters to provide for "Home Rule", and therefore greater flexibility in the management of their affairs.  A city-county charter under article 11, section 16, however, extends that flexibility to allow the creation of a new type of local government into which existing municipal corporations may be merged.

            Washington courts have not previously addressed your questions regarding home rule charters.  We therefore answer your questions based on the text of the constitutional provisions involved, and our previous advice in AGO 1975 No. 2, taking such guidance as we can from the decisions of courts of other states.

            With these points in mind, we turn to your specific questions.

                                                                    ANALYSIS

            Question 1:

            May a board of freeholders, elected under the authority of article 11, section 16, of the state constitution for the purpose of drafting a unified city-county charter propose a charter for a form of county government other than a combined city-county government?

            The constitution provides for two distinct varieties of county home rule charters.  The first, under article 11, section 4, provides for local decisions regarding the organization of county government.  The second, under article 11, section 16, allows the voters to replace traditional county government with a new type of entity known as a "city-county".  Const. art. 11, §§ 4, 16.

            The constitution could have provided for both of these options in a single section, thereby allowing the board of freeholders to study both options and bring the freeholders' recommendation to the voters.  The choice to embody each option in a separate section indicates that the decision of which of the two to explore must be made at the time the freeholders are initially elected.  In other words, the constitution contemplates that the voters charge the freeholders with the task of either proposing a charter to replace the existing form of county government, or to create a new "city-county" government.  The choice of which type of charter is to be explored is made at the time of selecting freeholders.

            This conclusion is made more clear by a consideration of the procedural distinction as to how a freeholders election is called under each section.  An election of freeholders for a county charter may be called either by the county legislative authority or by a petition of voters.  Const. art. 11, § 4.  An election of freeholders to draft a city-county charter, by contrast, may only be initiated by voter petition.  Const. art. 11, § 16; AGO 1975 No. 2, at 5.  The reason for this distinction may lie in the potential for a merger to aggrandize the powers of the county legislative authority.  In any event, it is apparent that the two sections authorize separate and distinct practices.

            The same conclusion may be reached by approaching this question from the perspective of the expectations of a voter deciding whether to cast a vote for or against the formation of a board of freeholders.  A city-county charter drafted pursuant to article 11, section 16 is distinctly different from a county charter drafted pursuant to article 11, section 4.  Where the voters invoke section 16 in authorizing the freeholders to proceed, they do so on the expectation that the final product will be a proposed city-county charter, and not a county charter.  Had they intended to grant authority under section 4 instead, they could have done so.

            For these reasons, we respond to your first question in the negative.  A board of freeholders elected under authority of article 11, section 16 may not propose a charter that is not based on the authority of section 16.

            Question 2:

            If a city-county charter is proposed, what limits, if any, are there on the creation or accommodation of cities under a combined city-county charter?

            The constitution allows broad latitude as to how to treat existing municipal corporations under a city-county charter.  It provides:  "Municipal corporations may be retained or otherwise provided for within the city-county.  The formation, powers and duties of such municipal corporations shall be prescribed by the charter."  Const. art. 11, § 16.[2]

            We have previously advised that this language allows a city-county charter to be written in such a way that all municipal corporations remain in existence and retain their present jurisdiction.[3]  AGO 1975 No. 2, at 2.  We noted, however, that ordinarily a city-county charter would be expected to merge the county with at least one existing city, since this would be a natural purpose of adopting such a charter.  Id. at 2-3.[4]

            Article 11, section 16 indicates that the adoption of a city-county charter would change the authority of even those cities that are separately retained.  Under a charter, a city's "powers and duties . . . shall be prescribed by the charter".  Const. art. 11, § 16.  The mandatory language "shall" indicates that coverage of this issue by the charter is required, rather than merely permitted.  The cities within a county essentially become integral components of the comprehensive plan of local government specified in the charter.  This is not to suggest that city officials would be subservient to those of the county in the sense of a chain of command, but the city's status would be defined by the charter.

            Even if a charter does not merge cities into a consolidated government, it would establish a new entity in the nature of a "city-county" providing municipal services to the county.  Under the constitution, city-counties are able to exercise all powers granted to either cities or counties.  Const. art. 11, § 16.  Therefore, even if cities are retained, the name "city-county" is descriptive of the governmental entity created by the charter.

            This conclusion is consistent with the manner in which courts of other states have described the legal entity created by city-county consolidation.  Courts of other states regard consolidated governments as new entities, exercising new authority, rather than as simply reformed county governments.  See, e.g.,Holsclaw v. Stephens, 507 S.W.2d at 470;Frazer v. Carr, 360 S.W.2d 449, 454 (Tenn. 1962).

            Similar principles would also relate to the possibility of incorporating new cities within the territory of a city-county after the adoption of a charter.  The constitution contemplates the formation of new municipal corporations under such provisions as the charter may contain.  "Theformation, powers and duties of such municipal corporations shall be prescribed by the charter."  Const. art. 11, § 16 (emphasis added).

            We therefore conclude that there are no mandatory restrictions on the creation or accommodation of cities within the county.  The constitution anticipates that such cities would either be merged into the city-county, or their future powers explicitly provided for by the charter.  A basic principle underlying the option of drafting home rule charters is that local citizens can best design creative structures most responsive to their circumstances.  Ritchmount Partnership v. Board of Supervisors, 388 A.2d 523, 529 (Md. 1978).  "[I]n adopting a home rule charter the people have the right to make provision therein for any form of government they deem suitable for their needs, so long as they do not in the process run afoul of the letter and spirit of the Federal and State Constitutions."  Id. at 530.[5]

            Question 3:

            May cities that remain separately incorporated following the adoption of a city-county charter retain the authority to annex adjacent territory?

            If a city remains separately incorporated, its "powers and duties . . . shall be prescribed by the charter".  Const. art. 11, § 16.  The charter would therefore determine whether retained cities may or may not annex adjacent territory and, if so, under what conditions and pursuant to what procedures.  "Being, in effect, a local constitution, the charter fixes the framework for the organization of the county government."  Ritchmount, 388 A.2d at 530.

            Under a city-county charter, retained cities would operate within the system advanced by the charter.  The powers and duties of the retained city would be those prescribed by the charter.  Const. art. 11, § 16.  The charter itself sets forth a comprehensive system of local government.  Retained cities must therefore derive their powers and duties from the charter itself, rather than from statutes drafted by the Legislature to address cities operating under the general law.[6]  It therefore follows that if the charter provides a method for retained cities to annex territory, a city may utilize that procedure.  Conversely, if the charter is silent, or if the charter explicitly precludes the provision to annex, cities would lack the power.

            We therefore conclude that a retained city may continue to annex adjacent territory under such terms and conditions as the city-county charter may provide, but not otherwise.

            Question 4:

            May the voters of cities that remain separately incorporated under a proposed city-county charter vote on the proposed charter?

            The constitution does not distinguish between voters residing within retained cities (or other municipal corporations) and those within the remainder of the proposed city-county.  Const. art. 11, § 16.  As we have previously advised:  "All are entitled to vote, and if a majority approve, the city-county is formed."  AGO 1975 No. 2, at 4.[7]

            This conclusion is further supported by two additional observations.  First, even if certain cities are retained as separate municipal corporations, the city-county charter will prescribe the powers and duties they retain.  Const. art. 11, § 16.  Second, counties provide numerous services (such as those of county prosecutors, auditors, and superior courts) that are utilized by residents of cities as well as counties.  City-county charters must "designate the respective officers of such city-county who shall perform the duties imposed by law upon county officers".  Id.  For both of these reasons, the provisions of a city-county charter will be of interest to voters residing within retained cities.

            We therefore conclude that the voters of cities that remain separately incorporated under a proposed city-county charter may vote on the proposed charter.

            Question 5:

            What limitations would state law impose upon the board of freeholders in promoting a proposed charter to the public after a draft has been completed but before it is submitted to the county commissioners?

            Article 11, section 16 provides that city-county charters shall be adopted in the same manner as provided for county charters under article 11, section 4.  Section 4 provides that the freeholders are to prepare and propose a charter, which is effective only after voter approval.

            The use of public facilities in a ballot measure campaign is limited by statute:

                        No elective official nor any employee of his office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.  Facilities of public office or agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency:  Provided, That the foregoing provisions of this section shall not apply to the following activities:

                        (1)        Action taken at an open public meeting by members of an elected legislative body to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition so long as (a) any required notice of the meeting includes the title and number of the ballot proposition, and (b) members of the legislative body or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;

                        (2)        A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry;

                        (3)        Activities which are part of the normal and regular conduct of the office or agency.

RCW 42.17.130.

            Freeholders are public officials of the county in which they are elected.  Fitts v. Gibbs, 40 Wn.2d 444, 447, 244 P.2d 241 (1952).  This statute would therefore govern their conduct.[8]  Their term in office, however, ends "with the fulfillment of the constitutional mandate to them to 'prepare and propose a charter for [the] county'".  Id. (quoting Const. art. 11, § 4).  The constitution does not explicitly state what action will constitute "proposing" the charter, but it is reasonable to conclude that the act of reporting the charter to the county legislative authority as the completed product of the board of freeholders satisfies this step.  Const. art 11, § 4.  Therefore once this has been done, the freeholders would no longer be public officials and would no longer be legally entitled to expend public resources in any event.

            As we have previously advised, "compliance or noncompliance with [RCW 42.17.130] requires a detailed factual analysis of the conduct involved, on a case by case basis, in the light of the constitutional and statutory powers of the elected official whose activities are in issue".  AGO 1975 No. 23, at 3.  We therefore caution that our general response to your question must be considered in light of any specific facts to which it might be applied.

            It is important to distinguish attempts by the freeholders to gather public input into ideas that might be included in the charter, as well as neutral efforts to inform the public of its contents, from activities designed to convince the public to cast votes in its favor at the polls.  To state the matter differently, RCW 42.17.130 prohibits advocacy of the measure with public funds, but does not prohibit "[a]ctivities which are part of the normal and regular conduct of the office or agency".  RCW 42.17.130(3).

            The Washington Supreme Court has reasoned that RCW 42.17.130 is intended to prohibit the partisan, or preferential, use of public resources to aid one side or the other in a campaign.  Even-handed efforts to provide information do not run afoul of the statute.  Seattle v. State, 100 Wn.2d 232, 247-48, 668 P.2d 1266 (1983).

            We have previously applied a three-part test to determine whether an activity is within the proviso permitting the use of public facilities in the course of "normal and regular conduct":

            (a)  Is the conduct prohibited by any law other than the main clause of RCW 42.17.130 or its common law counterpart?

            (b)  If not, is the conduct lawful in the sense that it is, or has been, actually authorized or permitted by or pursuant to law, either expressly or by necessary implication?

            (c)  Does the conduct constitute a normal or usual use of the public facilities of the agency involved as opposed to an extraordinary though lawful activity?

AGO 1979 No. 3, at 4.[9]  We have also explained that "legislative and certain executive officers of a local governmental entity may legally use the facilities of their offices to furnish information to their constituents under appropriate circumstances, to the extent that appropriations have been expressly or impliedly made for such purposes, on matters of a purely local nature affecting in some manner the office of the individual elected official in question".  AGO 1975 No. 23, at 16.

            Applying these principles to boards of freeholders, it seems reasonable to conclude that such actions as the holding of hearings to gather public input while a charter is being drafted would not violate the statute, particularly if all views are offered a fair hearing.  RCW 42.17.130(1).  Similarly, since the freeholders are charged by the constitution with the duty to propose a charter, the presentation of this charter to the public upon completion of the drafting would reasonably constitute a normal or usual use of the public facility.  RCW 42.17.130(3).  The act of proposing the charter might reasonably be taken as an endorsement of its contents by at least a majority of the board, a recommendation that would be authorized by the very nature of their constitutional task.  Const. art 11, § 4;King Cy. Coun. v. Public Disclosure Comm'n, 93 Wn.2d 559, 563, 611 P.2d 1227 (1980) (upholding the legality of an endorsement by the King County Council of a ballot measure).

            This does not mean, however, that the freeholders may use public resources to actively campaign in favor of a ballot measure.  Such conduct is not authorized by either sections 4 or 16 of article 11, and is clearly prohibited by RCW 42.17.130.  Furthermore, as noted, their terms of office expire when the charter is proposed, and so freeholders would no longer be public officials after that point.  Fitts, 40 Wn.2d at 447.  Nor could active campaigning, aimed particularly at the influencing of the public vote, be considered normal and regular conduct at any time, given that the freeholders' constitutional task is to draft and propose, not to campaign.  Const. art. 11, § 4.

            As this discussion illustrates, the legality of any particular action would depend upon its factual context.  While we have attempted to provide a broad discussion of legal parameters, our advice may not be applied without a consideration of the specific circumstances.

            We trust that this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General


                                                                        JEFFREY T. EVEN
                                                                        Assistant Attorney General

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    [1]By way of background, the term "freeholder" has historically meant "owners of either a legal or equitable title to real estate".  Sorenson v. Bellingham, 80 Wn.2d 547, 550, 496 P.2d 512 (1972).  Freeholders are public officers of the county, however.  Fitts v. Gibbs, 40 Wn.2d 444, 447, 244 P.2d 241 (1952).  Accordingly, the fourteenth amendment to the United States Constitution prohibits the imposition of a property ownership requirement.  Sorenson, 80 Wn.2d at 550.

    [2]The only exception to this broad authority is that a city-county charter must retain school districts as separate political subdivisions.  RCW 36.65.020.

    [3]The manner in which the current constitutional language was presented to the voters also suggests wide latitude regarding retained municipal corporations.  Article 11, section 16 was amended to its current form by Amendment 58 in 1972 (House Joint Resolution 21).  The ballot title presented to the voters described the amendment (in part) as allowing the adoption of a home rule charter "under which other municipal corporations having such powers and duties as are prescribed in the charter could also be retained or established, if desired".  Voters Pamphlet 46 (1972) (Ballot Title for HJR 21).

    [4]Merger with at least one city is not, however, a textual requirement of the constitution.  So long as the charter makes provisions concerning cities, we will not decide here whether those provisions would have to include a merger of one or more cities into the new city-county.  A city-county charter under article 11, section 16 can accomplish two purposes, other than merger with cities, that could not be accomplished under a section 4 county charter.  First, the city-county charter could be used to merge the county with the various special taxing districts established within it, even if cities were not merged.  Const. art. 11, § 16.  Second, a city-county charter shall "otherwise provide for" municipal corporations, and prescribe their powers and duties.  Id.

    [5]Charters must, however, comply with RCW 36.65.050, and .060, which set requirements regarding fire protection and law enforcement personnel, and public employee retirement and disability benefits, respectively.

    [6]Under general law, cities may annex contiguous unincorporated territory by complying with the provisions of chapter 35.13 RCW.  Cities may also annex territory from a contiguous city, or consolidate with a contiguous city, by following the dictates of chapter 35.10 RCW. These statutes, however, do not envision the sharply different context of a city retained pursuant to a comprehensive charter.  We conclude that they are inapplicable to cities operating within a city-county, unless the city-county charter makes them fully or partially applicable.

    [7]Our previous opinion also concluded that a proposed charter may not alter this requirement of a county-wide majority vote, such as by providing for separate majorities within and without a city limits.  Id. at 4-5.

    [8]We note that if your question concerned state, rather than local, officers, our inquiry would be governed by RCW 42.52.180, a provision of the recently-enacted state ethics law.  Previously RCW 42.17.130 governed both state and local actions, but this coverage has been changed by the new legislation.

    [9]See also WAC 390-05-273.

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