1. EV Charging Stations: Legal Concerns for Local Governments Presented by Flannary P. Collins MRSC Legal Consultant Optional image goes here (or delete this box)

2. Research and consulting services for Washington local governments at no direct cost. About MRSC Legal and policy consultation Research support Training Opportunities Sample document library Online research tools Timely news and information MRSC.org

3. 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? October 17, 2014EV Charging Stations: Legal Concerns3

4. GIFT OF PUBLIC FUNDS? October 17, 2014EV Charging Stations: Legal Concerns4

5. Gift of Public Funds P ROHIBITION IN THE W ASHINGTON S TATE C ONSTITUTION 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 October 17, 2014EV Charging Stations: Legal Concerns5

6. 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 ) October 17, 2014EV Charging Stations: Legal Concerns6

7. 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 October 17, 2014EV Charging Stations: Legal Concerns7

8. Gift of Public Funds First Prong: Fundamental Governmental Purpose Providing EV charging: a fundamental governmental purpose? YES ARGUMENTNO 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 approachProhibition is mandatory and must be strictly observed. Washington State Department of Commerce comment October 17, 2014EV Charging Stations: Legal Concerns8

9. Gift of Public Funds Second Prong: Consideration and Donative Intent October 17, 2014EV Charging Stations: Legal Concerns9 MEMBERS OF THE PUBLICLOCAL GOV’T EMPLOYEES C ONSIDERATION ? No: If public does not pay for the electricity, no consideration. Yes: If public pays for the electricity, no gift of public funds issue. Yes: If make this an employee benefit as part of compensation package, there is consideration. D ONATIVE I NTENT ? 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.

10. So, provide free charging or not? THREE POTENTIAL APPROACHES APPROACHCONSIDERATIONS 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 TWOProvide 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. October 17, 2014EV Charging Stations: Legal Concerns10

11. Liability and User Agreements October 17, 2014EV Charging Stations: Legal Concerns11

12. Liability and User Agreements Place SIGNAGE adjacent to charging stations Require employees to sign an USER AGREEMENT October 17, 2014EV Charging Stations: Legal Concerns12

13. Questions? Contact Flannary Collins, MRSC Legal Consultant: (206) 625-1300 fcollins@mrsc.org October 17, 2014EV Charging Stations: Legal Concerns13