Transcript o Flannary Collins, Legal Consultant, Municipal Research and

EV Charging Stations:
Legal Concerns for Local Governments
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Presented by Flannary P. Collins
MRSC Legal Consultant
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Legal Issues with EV Charging Stations
1. Is there a GIFT OF PUBLIC FUNDS issue?
a. Free charging for the public?
b. Free charging for employees’ personal vehicles?
2. Is there LOCAL GOVERNMENT LIABILITY if a charging unit fails?
3. Should an employer require a SIGNED EMPLOYEE AGREEMENT?
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GIFT OF PUBLIC FUNDS?
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Gift of Public Funds
PROHIBITION IN THE WASHINGTON STATE CONSTITUTION
• No county, city, town or other municipal corporation
• shall hereafter give any money, or property, or loan its money, or credit to or
in aid of
• any individual, association, company or corporation,
• except for the necessary support of the poor and infirm,
• or become directly or indirectly the owner of any stock in or bonds of any
association, company or corporation.
Article VIII, § 7
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Gift of Public Funds
Two Part Test
First Prong: Is the expenditure made to carry out a
fundamental governmental purpose?
Second Prong: If not, is there consideration and donative
intent?
Citizens for Clean Air v. City of Spokane, 114 Wn. 2d 20 (1990)
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Gift of Public Funds
First Prong: Fundamental Governmental Purpose
• Is the act performed for the common good of all?
• providing street lights
• disposal of solid waste
• flood protection
• Or, is the act performed for the special benefit of the
corporate entity and the entity’s customers?
• sale of electricity
• construction of sports stadium
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Gift of Public Funds
First Prong: Fundamental Governmental Purpose
Providing EV charging: a fundamental governmental purpose?
YES ARGUMENT
NO ARGUMENT
Washington State-owned EV charging stations:
free charging allowed by statute.
Provides for the “comfort and use” of individual
EV owners.
Washington State Clean Air Act: goal includes
enhancement of air quality.
Untested in Washington courts.
State of California approach
Prohibition is mandatory and must be strictly
observed.
Washington State Department of Commerce
comment
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Gift of Public Funds
Second Prong: Consideration and Donative Intent
MEMBERS OF THE PUBLIC
No: If public does not pay for the
CONSIDERATION? electricity, no consideration.
LOCAL GOV’T EMPLOYEES
Yes: If make this an employee benefit as
part of compensation package, there is
consideration.
Yes: If public pays for the electricity,
no gift of public funds issue.
DONATIVE
INTENT?
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Yes: Donating free electricity to
members of the public with no
expectation of reimbursement.
No: Employees are providing work in
exchange for compensation package,
which includes EV charging.
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So, provide free charging or not?
THREE POTENTIAL APPROACHES
APPROACH
CONSIDERATIONS
Approach ONE:
Provide EV vehicle charging for free to
employees and the public.
Be prepared to defend why the local
government considers providing EV charging a
fundamental governmental purpose:
1. Reduce air pollution
2. De minimis amount
Approach TWO
Provide EV vehicle charging for free to
employees but charge the public.
Add this into the Personnel Policy. Be clear that
all employees are being provided with this
benefit as part of their employee compensation
package.
Approach
THREE:
Charge employees and the public for EV
vehicle charging.
Most conservative approach - no gift of public
funds issue to defend.
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Liability and User Agreements
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Liability and User Agreements
Place SIGNAGE adjacent to
charging stations
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Require employees to sign an
USER AGREEMENT
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Questions?
Contact Flannary Collins, MRSC Legal Consultant:
(206) 625-1300
[email protected]
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