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AGO 1990 No. 14 - November 02, 1990
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Ken Eikenberry | 1981-1992 | Attorney General of Washington


RCW 35.02.078 provides for an election on the question of incorporation of a city or town.  If incorporation is authorized, a separate election is held prior to the effective date of incorporation to elect persons to the offices prescribed by law.  The newly incorporated city or town is not liable for the costs of electing city officials after the election on the question of incorporation but prior to the effective date of incorporation.

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                                                                November 2, 1990

Honorable Norm Maleng
King County Prosecuting Attorney
E. 550 King County Courthouse
16 Third Avenue
Seattle, WA 98104

                                                                                                                 Cite as:  AGO 1990 No. 14


Dear Mr. Maleng:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Can a newly incorporated city be held liable for costs of city officials elections which are held after the election on the question of incorporation, but prior to the effective date of incorporation?

            We answer this question in the negative.


            We begin our analysis with an examination of AGO 1967 No. 18 (copy enclosed).  A review of this opinion is necessary because it addressed a question similar to the one presented here.  We believe that the analysis contained in that opinion is still sound and is largely dispositive of the question you have posed.

            In 1967 we were asked whether costs for an election on the question of incorporation could be imposed upon a city.  Based upon a review of the relevant statutes we concluded that a city  [[Orig. Op. Page 2]] could not be held liable for such costs.  That opinion rested upon two principal factors.  First, no statute expressly imposed costs of an incorporation election upon cities.  Second, statutes allocating election costs to cities applied only to city elections.  RCW 29.04.020, 29.13.045.  We reasoned that at the time an incorporation election is held, no city exists.  Incorporation elections are to determine whether a city will be created.  Laws of 1965, ch. 7, § 35.02.130.  Accordingly, we concluded that a city could not be held liable under chapter [Title] 29 RCW for incorporation election expenses since such elections could not becity elections.

            Pursuant to the laws in effect in 1967, the election on the issue of incorporation and the election of city officials were held simultaneously.  Laws of 1965, ch. 7, § 35.02.130.  In 1986, the Legislature amended the statutes relating to the incorporation process for cities.  Laws of 1986, ch. 234.  The election procedure was changed to provide separate elections on the issue of incorporation and on selection of city officials.  Under the present version of RCW 35.02.078 which governs such elections, an initial election relating only to the question of incorporation is held.  If incorporation is approved, then the county holds primary and general elections for selection of city officials.  It is in light of this current statutory scheme that we address your question regarding the allocation of expenses for election of city officials following an incorporation election.  We find nothing in the amended incorporation statutes or any other development in the law which causes us to alter the analysis employed in the 1967 AGO.

            We noted in the 1967 opinion that no statute expressly imposed upon cities costs of incorporation elections.  The 1986 amendments to the incorporation statutes did not include a provision discussing allocation of costs for incorporation or city officials elections.  Since the incorporation statutes do not specifically allocate initial city official election costs, we again must determine whether any other statute imposes such costs upon a city.

            The statutes governing elections in general contain a provision relative to allocation of election costs between cities and counties.  That section, RCW 29.13.045, provides in relevant part:

            Election costs borne by constituencies.  Every city, town, and district shall be liable for its proportionate share of the costs when such elections are held in conjunction with other elections held under RCW 29.13.010 and 29.13.020.

             [[Orig. Op. Page 3]]

            Whenever any city, town, or district shall hold any primary or election, general or special, on an isolated date, all costs of such elections shall be borne by the city, town, or district concerned.

            The purpose of this section is to clearly establish that the county is not responsible for any costs involved in the holding of any city, town, or district election.

(Emphasis added.)  In the 1967 opinion, we concluded that this statute imposes costs upon cities only for city elections.1/

            We employ the same analysis here.  In order to determine whether the election of city officials following a successful incorporation election is acity election, we must determine when the new entity legally becomes a city.

            A review of the statutory scheme reveals the incorporation date as the crucial factor.  The date of incorporation is specifically set forth in RCW 35.02.130, which provides in relevant part:  "The city or town officially shall become incorporated at a date from one hundred eighty days to three hundred sixty days after the date of the election on the question of incorporation."  (Emphasis added).

            A date certain for incorporation is thus established by the statute.  This date is given great significance in regard to the powers and authorities of the city.  The statute provides that an interim period shall exist between the time the newly elected officials have been elected and the official date of incorporation.  RCW 35.02.130.

            The powers of interim city officials are also governed by RCW 35.02.130.  During this time period the officials may take action in adopting ordinances and resolutions.  These legislative actions, however, shall not become effective until on or after the official date of incorporation.  Additionally, these officials may obtain facilities, supplies, equipment, insurance  [[Orig. Op. Page 4]] and staff during the interim period "as if the city or townwere in existence."  (Emphasis added.)  As shown by RCW 35.02.130 officials do not acquire their full powers until the date of incorporation.  This statutory provision establishes that a city does not exist until the date of incorporation.  Accordingly, a city cannot exist at the date of the election of officials since RCW 35.02.130 specifically provides that there must be an interim period between the election of these individuals and the date of incorporation.

            From a review of the RCW 35.02.130 as a whole, we conclude that a city does not exist until the date of incorporation.  Because the election of officials by statute must occur prior to the entity legally becoming a city, that election cannot be a city election.  Thus, under the analysis set forth above and in AGO 1967 No. 18, a city may not be held liable for the costs of the officials' election.

            We trust that the above will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In the 1967 AGO, we also discussed RCW 29.04.020.  We concluded that RCW 29.04.020 does not establish the liability of a city or town for the costs of certain elections.  Instead, that statute imposes a duty upon the county auditor to apportion to cities and towns election costs for which other statutes provide they may be liable.  We again affirm this analysis.  Because RCW 29.04.020 is not relevant to the imposition of liability for election expenses, it will not be discussed further in this opinion.


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