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Can a public hospital district commissioner simultaneously serve on the city council of the same city in which the PHD is located?

 

 

The issue here is whether holding the two positions would constitute holding incompatible offices. We are not aware of a Washington court decision or state attorney general opinion addressing incompatibility with respect to these two specific positions. However, in our opinion, the two offices would probably be held to be incompatible. Our opinion is based on some attorney general opinions that have considered similar dual office-holding situations involving policy-making positions in overlapping jurisdictions.

In AGO 1978 No. 12, the attorney general's office concludes that "the same individual may not simultaneously serve as a port district commissioner and as mayor of a town (fourth class city) which is situated entirely within the boundaries of such a district." An important factor in that conclusion was the following:

... to the extent they are territorially situated within the boundaries of an incorporated city or town, the various public port districts in our state are now subject to both the zoning codes and the building codes of those municipalities. They thus may make only such use of lands owned by them within those municipalities as is permitted by the zoning ordinances of the latter  and they may only construct their necessary buildings or other structures upon those lands in accordance with the applicable building codes.

The same factor would appear to be present where the city here is located within the area of the public hospital district. Also, although the city/town position involved in that AGO was the mayor, it was the mayor's involvement in the legislative process and the adoption of building and zoning ordinances that was significant, and would, as such, be more significant where the city position at issue is a councilmember.

A 1983 Attorney General's Opinion, AGO 1983 No. 3, addressed the question of whether a person may simultaneously serve on a city or town council proposing to be annexed by a fire protection district and as a paid or volunteer firefighter for the subject district. In concluding that there was no incompatibility in that situation, the Attorney General's Office observed:

Were we speaking, instead, of the simultaneous occupancy of the positions of city or town council member and fire protection district commissioner, we would quite probably view the matter differently ...

Here, incompatibility concerns could arise because both positions are policy-making positions at the highest level, and the interests of the jurisdictions may be adverse in some situations. For example, the two governing bodies may have differing views or an antagonism of interests regarding what regulations are appropriate, and issues could arise with contract interests, such as with respect to an interlocal agreement where the two governing bodies have different interests and are seeking the best terms for their jurisdiction. See, e.g., Kennett v. Levine, 50 Wn.2d 212 (1957).

Generally, when the MRSC legal staff has been confronted with a potential incompatibility situation involving the positions of a mayor or councilmember and the commissioner of a special district that includes the same territory as the city, we have cautioned that incompatibility between the positions could likely be found if the holding of the two positions by the same person were challenged in court.

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Can a resolution to remove the superintendent be introduced and adopted at the same meeting of the Board of Commissioners?

 

 

No. RCW 70.44.070(1) specifically provides that removal of a superintendent "shall be by resolution, introduced at a regular meeting and adopted at a subsequent regular meeting by a majority vote."

So the Board cannot remove a superintendent by both introducing and adopting such a resolution at the same regular meeting because doing so would directly conflict with RCW 70.44.070.

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Does the Oath of Office need to be administered each time an existing Commissioner is reelected?

 

 

Yes, the commissioner needs to take the oath again. The last step to assuming office is taking the oath. In order to be "qualified" to take office, the commissioner must take the oath upon appointment and each time he/she is reelected. RCW 70.44.070(1) provides that Title 29A RCW governs public hospital districts except as provided in chapter 70.44 RCW (which does not address oaths specifically). RCW 70.44.040(1) also provides:

The initial commissioners shall take office immediately when they are elected and qualified. The term of office of each successor shall be six years. Each commissioner shall serve until a successor is elected and qualified and assumes office in accordance with RCW 29A.20.040.

RCW 29A.20.040 provides that the oath of office must be taken as the last step of qualification as defined in RCW 29A.04.133. RCW 29A.04.133(3) states that "qualified" when pertaining to a winner of an election means that for such election:

The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefor.

This issue is also addressed in our Getting into Office publication, at p. 23, which indicates that if a vacant elective office has been filled by appointment, the person appointed takes an oath before assuming office. When a person is elected into a position previously held by someone who has been appointed, that person takes an oath when the election is certified and again, if he or she has been elected to a new full term. See generally, RCW 29A.04.133; Article 2, section 15 of the Washington State Constitution; RCW 42.12.040 and RCW 42.12.070.

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Is health insurance for district commissioners considered compensation under RCW 70.44.050?

 

 

In addition to establishing the compensation for public hospital district commissioners, RCW 70.44.050 states that any district that provides group insurance for its employees which covers the employee, their immediate family, and dependents may provide insurance for its commissioners with the same coverage. Another key provision, RCW 41.04.190, includes public hospital districts (which are governed by chapter 70.44 RCW) as one of the local governments for which the cost of a medical policy or plan is not considered to be "additional compensation" to the elected commissioners. In accordance with RCW 41.04.190, presumably health coverage provided by a public hospital district to district commissioners would not be considered additional compensation under the compensation limits specified in RCW 70.44.050.

We also recommend that you consult with your district's representative from the Office of the State Auditor regarding this matter.

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What procedural requirements must be followed before a public hospital district may hire an administrator?

 

 

There are specific procedural requirements that must be followed which are set out in RCW 70.44.070. This statute provides in part:

The public hospital district commission shall appoint a superintendent, who shall be appointed for an indefinite time and be removable at the will of the commission. Appointments and removals shall be by resolution, introduced at a regular meeting and adopted at a subsequent regular meeting by a majority vote. The superintendent shall receive such compensation as the commission shall fix by resolution.

The procedures are not complicated but must be followed exactly. In this case, the Board would like to hire an interim administrator who was not nominated at an earlier meeting. In our opinion, this person may not be introduced and appointed at the same meeting. The statute is clear and even an interim administrator arguably should be appointed in the same manner, including that appointment at a special meeting is not an option because RCW 70.44.070 requires such appointments to be made at a regular meeting.

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What are the state laws protecting employees against a hostile working environment and what constitutes a hostile work environment?

 

 

The legal concept of a hostile work environment arises in the context of anti-discrimination laws. Washington State statutes against discrimination in employment are contained in Chapter 49.60 RCW, though those statutes do not define "hostile work environment," nor do they use the term. In all of state statutory law, the term is used only once (RCW 42.40.020), and state regulations do not use the term. Note that discrimination based in a hostile work environment is also actionable under federal law (Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e).

However, a hostile work environment is generally considered by the courts to mean speech or conduct that is severe or pervasive enough to create, for a reasonable person, a hostile or abusive work environment based on race, religion, sex, sexual orientation, national origin, age, disability, or other protected class. It is most often associated with sexual harassment. It does not mean simply an abusive work environment; the conduct or speech creating that environment must be based in discrimination regarding a protected class. So, for example, with respect to sexual discrimination:

To establish a hostile work environment sexual harassment case under RCW 49.60, [the plaintiff] must prove: (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment "affected the terms or conditions of employment," and (4) the harassment is imputed to the employer. To establish a federal claim under Title VII, [the plaintiff] must show that: (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was "'sufficiently severe or pervasive to alter the conditions of victim's employment and create an abusive working environment . . . .'"

(Citations omitted.) Estevez v. Faculty Club, 129 Wn. App. 774, 794 (2005).