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AGO 1975 No. 23 - November 14, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- COUNTY ‑- CITY ‑- GOVERNOR ‑- LEGISLATOR ‑- COUNTY COMMISSIONERS ‑- CITY COUNCILMEN ‑- ELECTIONS ‑- USE OF OFFICE FACILITIES TO PROMOTE PASSAGE OR DEFEAT OF BALLOT PROPOSITIONS.

(1) Although a state legislator may, at public expense, inform his constituents on matters pending, proposed, enacted or defeated by the legislature (including the legislator's own views and/or voting record on such matters), such a legislator is prohibited by RCW 42.17.130 from using the facilities of his office or expending funds appropriated for legislative purposes to persuade or attempt to persuade his constituents or other persons to vote one way or another on a statewide ballot proposition; the question of whether a particular communication is or is not in violation of this statute will depend upon all of the facts of each case including, particularly, the timing thereof as related to the time of the election at which the measure or measures are to be voted upon.

(2) The governor, because of his constitutional responsibility to communicate with the legislature in order to ". . . recommend such measures as he shall deem expedient for their action," may use the facilities of his office to explain, or even, to some extent, to advocate, his official position on a statewide ballot measure pending before the people in their legislative capacity; in the case of other officers of the executive branch of the government, however, the legality of such action will depend upon the constitutional or statutory authority of the particular officer and the relationship of the ballot measure involved to the functions and duties of the office in question.

(3) These same principles also apply, with certain qualifications,21,, to officers of the legislative or executive branches of counties, cities and towns, with respect to comparable local ballot measures.

                                                              - - - - - - - - - - - - -

                                                               November 14, 1975

 

Honorable Arthur C. Brown
tate Representative, First District
16020 Densmore Avenue No.
Seattle, Washington 98133                                                                                                                 Cite as:  AGO 1975 No. 23

 

Dear Sir:

            By letter previously acknowledged you have requested the  [[Orig. Op. Page 2]] opinion of this office on the following three questions relating to RCW 42.17.130 (originally § 13 of Initiative No. 276):

            "(1) May a state legislator use his office facilities to inform his constituents of his position on a matter which is the subject of a statewide ballot measure without violating the provisions of RCW 42.17.130?

            "(2) If question (1) is answered in the affirmative, may a state elected official use his office facilities to inform the public of his position on a matter which is the subject of a statewide ballot measure, to the same extent as the legislator described in question (1), without violating the provisions of RCW 42.17.130?

            "(3) Do the same considerations which lead to your answers to questions (1) and (2) apply, as well, to legislative and executive officials at the local level as related to local ballot measures?"

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Before attempting to answer your specific questions it will be necessary to discuss some principles and problems applicable to all of them ‑ beginning with the language of the subject statute itself.  RCW 42.17.130, which was enacted as a part of Initiative No. 276 in 1972, provides as follows:

            "No elective official nor any employee of his office may use or authorize the use of any of the facilities of his public office, directly or indirectly, for the purpose of assisting his campaign for reelection to the office he holds, or for election to any other office, or for election of any other person to any office or for the promotion or opposition to any ballot proposition.  Facilities of public office include, but are not limited to, use of stationery, postage, machines and equipment, use of employees of the office during working hours,  [[Orig. Op. Page 3]] vehicles, office space, publications of the office, and clientele lists of persons served by the office:  Provided, That this section shall not apply to those activities performed by the official or his office which are part of the normal and regular conduct of the office."

            As we have indicated on several previous occasions, this section is basically a codification of preexisting commonlaw principles ‑ forbidding or restricting the use of public funds for certain purposes ‑ which were recognized in this state long prior to the passage of the initiative.  See our memorandum of January 31, 1973, to the Public Disclosure Commission and our letter of March 13, 1973, to Mr. Eugene Seligmann, as well as AGO 1973 No. 26 [[to Alan Bluechel, State Representative on December 26, 1973]]and AGO 1973 No. 14 [[to Arthur C. Brown, State Representative on June 8, 1973]], copies of which are all enclosed.  What is different about this new statute is its attachment of civil penalties to such conduct1/ - along with its proviso which expressly exempts from the statutory prohibition a certain category of activities described therein.2/

             Primarily because of this proviso any question regarding compliance or noncompliance with the statute 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.  Initially, it must be determined whether the  [[Orig. Op. Page 4]] conduct actually constituted a "use of the facilities" of his or her office.  Addressing itself to a part of this problem, the Public Disclosure Commission3/ has adopted an administrative rule explaining RCW 42.17.130,supra, as follows:

            "Whereas sec. 13 of the Act forbids certain political uses of the office facilities of elected public officials but expressly denies the application of that section to activities which are a part of the normal and regular conduct of an office; it shall be the policy of the Commission to construe the term 'use of any facilities' in sec. 13 of the Act as meaning only (1) uses of 'facilities', as that term is therein defined, which constitute or result in a measurable expenditure of public funds; or (2) such uses which have a measurable dollar value.

            "Examples of activities or uses which the commission considers to be excluded from sec. 13 of the act are verbal endorsements or statements favoring or opposing candidates or ballot issues which endorsements or statements do not directly or indirectly involve any measurable expenditures of public funds."  (WAC 390-04-040.)

            Thus, the term "use of facilities" has been administratively defined to include only uses which result directly or indirectly in expenditures of measurable amounts of public funds.4/

             [[Orig. Op. Page 5]]

            Other fact questions which have to be answered in each particular case include such as who authorized the expenditures, what funds were involved, and what was the objective nature and purpose of the expenditure or activity involved.  See, our letters to Senator Ted Bottiger of June 18, 1973, and to Mr. Harley H. Hoppe, of June 18, 1973, copies of which are also enclosed.  However, once all of these questions have been answered in such a manner as to bring the case within the prohibitory language, perhaps the most difficult part of the task at hand arises ‑ that of ascertaining whether, nevertheless, the activity involved comes within the scope of the statute's proviso exempting such activities as are ". . . performed by the official or his office which are part of the normal and regular conduct of the office."

            The phrase ". . . normal and regular conduct . . ." is not defined anywhere in the law or in any other related provision.  Therefore, we must resort to general and basic considerations, including principles of statutory construction, to determine the meaning of that phrase.

            The only object of statutory construction is to determine the legislative body's intention, and first resort must be made to the language and content of the statutory provision involved.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  To the extent, however, that such language is ambiguous or unclear, it must be construed in a manner consistent with the apparent intention of the legislative body.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  Furthermore, it must be interpreted in such a manner as to avoid, if possible, absurd results.  State v. Lake City Bowlers' Club, Inc., 26 Wn.2d 292, 173 P.2d 783 (1946).  And finally, the legislative body must be presumed to have enacted a statute with full knowledge of existing law on the subject.  See,State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937); Graffell v. Honeysuckle, supra.5/

             Consistent with these principles it would appear to us that any definition of "normal and regular," when referring to the "conduct" of an "office" in this state, must initially include an element of lawfulness.  In other words, the  [[Orig. Op. Page 6]] phrase can encompass only those activities which are actually permitted by law ‑ either expressly or by necessary implication.  As we said in AGO 1973 No. 26,supra:

            "A determination of what is 'normal and regular conduct' of an office necessitates a review of the statutes pertaining to that office.  The question is principally one of statutory construction, because public officers have only those powers which are granted to them by statute.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Conversely, for illustration, any conduct of a public officer which is not thus authorized by law cannot be considered 'normal and regular'; rather, its characterization is that of ultra vires."

            Generally speaking, the powers of public officers, both state and local, are strictly construed.  If there is any doubt as to the existence of a power, it is thus usually denied.  See,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Moreover, while a different rule applies in the case of cities of the first class, code cities and charter counties,6/ this is only so with respect to official actions of the municipal legislative body acting as such.  See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958).  Thus, the rule of that case provides no direct assistance in determining the powers of individual members of such governing bodies7/ or of other individual elected officials.  And, of course, the rule has no application at all to those state officers with which your first two questions are concerned.

            Members of state and local legislative bodies are public officers and thus their powers fall within the above principles.   [[Orig. Op. Page 7]] See, 3 McQuillin, Municipal Corporations, § 12.31; Throop on Public Officers, § 10; 63 Am.Jur.2d, Public Officers, § 25.  No individual member of such a body, as a general rule, may exercise powers separately and independently from the governing body itself.  "A public corporation may act only as a body, properly convened and functioning as such; separate individual action of its members is ineffectual . . ."  4 McQuillin,supra, § 13.01, p. 472.  Furthermore, the public policy of the governed entity is determined by its governing body and that function cannot be delegated.  Accord, Article II, § 1 (Amendment 30), Washington state constitution; 4 McQuillin,supra, §§ 13.01-13.03A; and 10 McQuillin, supra, § 29.15.

            The possible authority of any public officer or employee to expend funds to influence legislative action by another governmental body is to be viewed with special strictness.  In fact, as we have pointed out in previous opinions, the rule in this state has long been that such expenditures are contrary to public policy and illegalin the absence of express authority either from the state legislature or from the legislative bodies of those classes of municipal governments which come under the "Winkenwerder rule."  See, our opinion of March 4, 1969, to Senator Huntley and our memorandum opinion of August 28, 1969, to the state auditor, copies enclosed, and authorities cited therein.

            This restriction has been most often applied to expenditures for influencing action of the state legislature.  However a similar rule has been consistently applied to expenditures made by municipal corporations (such as school districts) for the purpose of influencing votes on ballot propositions.  See, our opinion of January 20, 1972 [[an Informal Opinion, AIR-72598]], to Senator Rasmussen, copy enclosed, where we summarized several other previous opinions of this office which reached that same conclusion based on a lack of statutory authority.  As we also pointed out therein, subsequent statutory provisions have emphasized the strict public policy against such expenditures by authorizing school boards to expend funds to make studies and to distribute information regarding the operation and maintenance of their schools while, at the same time, expressly disclaiming any such authority to engage in that activity for the purpose of influencing the outcome of a school district election.  See, e.g., RCW 28A.58.610.

            A further principle of construction to be here considered  [[Orig. Op. Page 8]] is that usage and custom may become a basis for determining the scope of an officer's powers or duties where the statutes are unclear on the subject ‑ simply because long-established custom or usage may be evidence of actual legislative intent.  See, 63 Am.Jur.2d, Public Officers & Employees, §§ 264-265.  As is further stated in this text, however,

            ". . . usage or custom cannot be availed of to enlarge the statutory powers of a public officer to include acts otherwise unauthorized or contrary to established law, or to enable the officer to perform his duties in a manner other than that prescribed by statute."

            Finally, in determining whether an elected official is or is not in compliance with RCW 42.17.130,supra, one cannot safely rely solely upon a determination of whether a particular act may be legal in a technical sense.  The phrase "normal and regular" in the proviso thereto must be taken to denote some qualification of conduct over and above that of being merely lawful; otherwise, presumably, the proviso would have used that term.  Every word and phrase of a statute must be given its full meaning, where possible, and no word or choice of wording should be regarded as insignificant.  Murray v. Dept. of Labor & Industries, 151 Wash. 95, 275 Pac. 66 (1929).  Consequently, to give full effect to the proviso, the phrase must be construed to mean such activities as are not only lawful, but also to at least some extent, within the "usual" conduct of the office in question.  Thus, an action by an elected official for a purpose prohibited by RCW 42.17.130 will not necessarily be saved by the proviso merely because the governing body of the agency ultimately ratified the expenditure ‑ or even gave the official in question special authority, in advance, to expend funds for the purpose in question.  In practical effect what this means is that the proviso must be strictly construed as provisos usually are.  Tabb v. Funk, 170 Wash. 545, 17 P.2d 18 (1932).  Generally, therefore, expenditures made in extraordinary cases, or authorized in some extraordinary manner or by some extraordinary process of reasoning, cannot be held to be "normal and regular conduct" of an office under the proviso with which  [[Orig. Op. Page 9]] we are here concerned.8/

             With all of the foregoing in mind we may now turn, finally, to your specific questions.

            Question (1):

            First you have asked:

            "May a state legislator use his office facilities to inform his constituents of his position on a matter which is the subject of a statewide ballot measure without violating the provisions of RCW 42.17.130?"

            Clearly, RCW 42.17.130 does not restrict all communications between legislators and their constituents ‑ even as to pending ballot measures.  What the statute does do, however, is to bar them from using their office facilities (or expending funds appropriated for the operation of their offices) to promote or oppose such measures.  Thus, the threshold question in any case is whether the activity involved is aimed at persuading or attempting to persuade constituents or others to vote for or against the ballot proposition which is the subject of a given communication.  If it is, then the second question to be answered is whether, nevertheless, the activity falls within legally authorized and usual or ordinary functions of the office of state senator or representative.9/

             [[Orig. Op. Page 10]]

            Our research has disclosed no constitutional or statutory provision, nor any senate or house rule or resolution, which expressly deals with the question of how appropriations for legislative purposes are to be expended.  The matter appears to be governed mainly by informal policies and customs of long standing which, as we have said above, may be utilized in determining legislative intent in doubtful cases.  63 Am.Jur.2d,supra, §§ 264-265; see, also, State ex rel. Christensen v. Hinkle, 169 Wash. 1, 13 P.2d 42 (1932), andState ex rel. Todd v. Yelle, 7 Wn.2d 443, 110 P.2d 162 (1941).  For instance, it appears that members of both houses are each allotted certain amounts for postage on a periodic basis ‑ a practice which, as evidenced by the 1913 Senate Journal at p. 17, has gone on for many years.  See, also, memorandum dated February 4, 1975, from the Speaker to the Chief Clerk of the House of Representatives, copy enclosed.10/   Likewise, it is customary for each member of the House to receive periodic allotments (currently $125 every three months) as reimbursement for unspecified legislative expenses ‑ and such members are also allotted certain uses of state printing facilities.  We are further informed that a similar custom exists in the Senate and that the underlying purpose of such allowances, together with postage, stationery and printing, is to enable all legislators to communicate with their constituents by means of newsletters, opinion polls, and similar correspondence.

            Based upon these long-established customs and understandings, which are clearly indicative of actual legislative intent, we therefore have no hesitation in concluding that it is not only lawful but also "normal and regular conduct" for a legislator to utilize the facilities of his office for the purpose of (a) soliciting the views of his constituents on matters which are or may be the subject of action in the legislature and (b) informing his constituents on bills or other matters pending, proposed, enacted or defeated in the legislature,  [[Orig. Op. Page 11]] including the legislator's own views and/or voting record on such matters.  Nor do we mean this to be an exclusive listing of the actions which members of the legislature may take with the resources of their offices ‑ for there may be others.

            Moreover, even if such a bill or other legislative measure becomes the subject of a ballot proposition11/ we would still think it possible to characterize such communications as being a part of the "normal and regular" conduct of a legislator's office ‑ depending, however, upon all of the circumstances.  One particularly relevant question would be that of when in relation to the time of the election the communication occurs.  For instance, if a newsletter from a legislator to his constituents expressing his views on a ballot measure previously before the legislature was timed in such a way as to coincide with an election on the proposition occurring several months after the legislative session at which it was considered, it would be much more difficult (if not impossible) to view the underlying expenditure as "normal and regular" than if the same communication had been made earlier ‑ during the session or immediately after its adjournment.  And, obviously, a publicly paid for newsletter or like communication from a legislator to his constituents expounding upon one or more ballot propositions would be at least as suspect, if not more so, if timed to coincide with an election at which the legislator himself is a candidate.

            By the same token, if the substance and timing of the communication reveals it to be otherwise clearly valid under the criteria set forth in this opinion, the inclusion of some unauthorized material which is strictly minimal and incidental to the main object of the expenditure (e.g., a sentence urging the personal viewpoint of the legislator as an incidental part of a much larger general and abstract report by a legislator to his constituents) will not necessarily result in an  [[Orig. Op. Page 12]] actionable violation of RCW 42.17.130.

            Generally, the legality of an expenditure of public funds is determined by its objective nature and not by the subjective motive of an officer in making it.  Accord, People v. Westchester County Nat. Bank, 231 N.Y. 465, 132 N.E. 241 (1921);State ex rel. O'Connell v. Pt. of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965).  However, expenditures like those involved in this discussion may often serve dual purposes.  Each expenditure, therefore, must be closely examined in the light of all of the circumstances under which it was made to ascertain its true nature and legality.  If those circumstances show, primarily, a normal and regular communication between a legislator and his constituents with only an incidental (and remote, from the standpoint of time) advocacy of passage or defeat of a ballot measure previously considered by the legislature, the statute will probably not have been violated ‑ at least so long as the "incidental" part of the particular communication resulted in no added expense to the public.12/

             But if, instead, the apparent primary and immediate purpose of a newsletter or other communication from a legislator to his constituents (at public expense) is that of persuading or attempting to persuade them or other persons to vote one way or another on a pending or proposed statewide ballot proposition ‑ even one previously considered by the legislature itself13/ - a different result should be anticipated.  Simply stated, in direct answer to your first question it is our opinion that there is no legal basis for allowing a member of the legislature to use the facilities of his office or expend funds appropriated for legislative purposes to communicate with his constituents in order to obtain their affirmative or negative votes on such a ballot measure.   [[Orig. Op. Page 13]] Therefore, the proviso to RCW 42.17.130 will not afford a defense and the activity will, in any such case, be a violation of the main part of the statute.

            In so concluding we would emphasize again, however, that the question in each case will depend upon all of the facts of that case, as presented to an appropriate fact-finding body; i.e., the Public Disclosure Commission pursuant to RCW 42.17.360 et seq., or a court in a civil lawsuit.

            Question (2):

            "If question (1) is answered in the affirmative, may a state elected official use his office facilities to inform the public of his position on a matter which is the subject of a statewide ballot measure, to the same extent as the legislator described in question (1), without violating the provisions of RCW 42.17.130?"

            Our analysis leads us to answer this question generally in the affirmative, except that there will be further variations depending upon which state elected official is involved.

            As a general proposition, it would be definitely not considered "normal and regular conduct" for an elected state official, at public expense, to campaign actively for or against a ballot proposition on the basis of a personal interest on one side or the other.  However, if the subject matter of such a measure relates to the official functions of his office and the purpose of the communication is simply to explain the measure in relation to those functions, or if publication of the information would be part of the powers or duties of such office irrespective of the pendency of such a ballot proposition, there may be no statutory violation at all.

            One example of a nonviolative activity would be a public statement made by the governor for or against a state ballot proposition.  Article III, § 2 of the state constitution gives the governor a unique role as the chief executive, exercising ". . . the supreme executive power of this state . . ."  It is further his specific constitutional duty, under Article III, § 5, to ". . . see that the laws are faithfully executed. . . ."; and he is also specifically directed by Article III, § 6 to communicate with the legislature and to  [[Orig. Op. Page 14]] ". . . recommend such measures as he shall deem expedient for their action . . ."  While the "legislature" thus referred to undoubtedly meant only the formal state legislative body (House of Representatives and Senate) when the constitution was first adopted in 1889 ‑ inasmuch as the people did not reserve the power to enact laws by direct legislation until twenty-three years later14/ - constitutional provisions should be interpreted to give effect to the manifest purposes for which they were adopted.  Their language is to be taken in its general and ordinary sense and when words used therein have both a general and restricted meaning, the general should prevail over the restricted unless the nature of the subject matter or context indicates that a restricted sense was intended.  State ex rel. Linn v. Sup. Ct., 20 Wn.2d 138, 146 P.2d 543 (1944).  As the court said in that case, constitutional provisions should be interpreted to meet and cover changing conditions of social and economic life.  Thus, by reason of Amendment 7, supra, the term "legislature" in the constitution may now properly be construed to includethe people in the exercise of their legislative powers under the constitution.  Accord, in addition toState ex rel. Linn v. Superior Ct., supra, State ex rel. Mullen v. Howell, 107 Wash. 167, 181 Pac. 920 (1919), andCooley, Constitutional Limitations, 6th ed. p. 39.

            Moreover, the above cited sections of Article III of the constitution, coupled with the broad provisions of chapter 43.06 RCW, indicate that the people and the legislature have always intended their chief executive to be actively involved in all matters and measures affecting the welfare of the state.  Consequently, it would seem illogical to say that the governor may not use the facilities of his office to explain (or even to some extent advocate) his official position on a measure pending before the people, as well as before the legislature.  And, as we are aware, governors customarily issue such statements.15/

             [[Orig. Op. Page 15]]

            To a certain extent the same would be true of the office of attorney general and other offices whose constitutional and/or statutory duties clearly contemplate an active role by their incumbents in public affairs.16/   However, an exhaustive analysis of those offices and powers, and of the situations in which such activities would or would not be lawful, would be impossible in an opinion of this nature.  No such determinations can be made except on the basis of specific inquiries related to specific activities or offices.  Accord, our letter to Senator Bottiger of June 18, 1973,supra.

            Question (3):

            Your third and final question, repeated for ease of reference, asks:

            "Do the same considerations which lead to your answers to questions (1) and (2) apply, as well, to legislative and executive officials at the local level as related to local ballot measures?"

            Generally we would also answer this question in the affirmative, and conclude that the local officials are similarly or even more strictly limited.  Individual members of city councils and other municipal governing bodies, except where otherwise provided by statute, can exercise no powers separately or other than as members of such legislative or governing bodies.  4 McQuillin, Municipal Corporations, supra, §§ 13.01-13.03; also 10 McQuillin, Municipal Corporations, § 29.15.  All elective and appointive officials of a municipality exercise delegated powers which are strictly construed; perhaps even more so than elected state officials whose functions are prescribed by the constitution.  Furthermore, even the extent  [[Orig. Op. Page 16]] to which a governing body of a local governmental entity can delegate such powers to any of its members or to other city or municipal officers is more limited than in the case of the legislature ‑ at least in those classes of municipalities which do not operate under the "Winkenwerder rule" (i.e., first class and code cities and charter counties).

            On the affirmative side, it may nevertheless be possible to conclude, in a given case, 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.  However, it would not be possible for this office, in the absence of express legislative authority, to say that a municipal officer might expend public funds to campaign actively for or against a local initiative or other local ballot proposition.  In a city or county operating under the "Winkenwerder rule" an ordinance or resolution expressly authorizing such activity could be held to be valid.  However, it is doubtful that anything short of such legislation, even in such a municipality, would suffice to cause such conduct to become lawful ‑ and something more might well be necessary to establish such conduct as "normal and regular" within the meaning of RCW 42.17.130,supra.

            Concluding General Observations

            Before closing this discussion we should address some attention to a category of activities which may involve the use of office facilities other than printing and mailing.  This part of our discussion applies to all three of your questions and, in some degree, involves principles common to elective offices in all branches and units of government, both state and local.

            It is a fact, of which our supreme court undoubtedly would take judicial notice, that elected officials customarily respond informally to questions with which they are presumed to have some special familiarity by virtue of their respective offices.  Likewise, they customarily honor requests to make formal speeches on such subjects, etc., often on office time.  These activities, since time immemorial, have been considered to be usual functions ‑ if not actual duties ‑ of state  [[Orig. Op. Page 17]] elected officials and, to some extent, municipal officers as well.  The public reasonably expects such services from its officeholders and even regards them as obligations to the voting constituency.  We are confident that no court would hold a continuation of such customs within reasonable bounds to be a violation of RCW 42.17.130.  Again, however, both the extent to which such activities would come within the "normal and regular conduct" of a particular office and the extent to which departures from that norm would involve "measurable" expenditures involve factual determinations which can be made only in specific cases, after appropriate investigation.

            In final analysis, we must repeat that each case will necessarily depend upon its own facts.  Thus, we can in the abstract provide no more definite answers to any of your questions.  The law wisely envisions that officers and agencies will be guided by general principles and will exercise their discretion accordingly.  In cases of possible abuse, the law provides a mechanism whereby complaints can be analyzed by the Public Disclosure Commission17/ and/or the state auditor,18/ and ultimate determinations will continue to be made on a case‑by-case basis pursuant to findings of either or both of those offices.

            We trust this information will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 42.17.390, which provides, interalia, that:

            "Any person who violates any of the provisions of this chapter may be subject to a civil penalty of not more than ten thousand dollars for each such violation."

2/The proviso itself must also be characterized as a codification of a preexisting common-law principle, insofar as it exempts from the statutory prohibition that conduct which is a part of the ". . . regular conduct of the office . . ."  The term "regular" imports the idea of "lawfulness."  See,Accountability and Audit of Government ‑ E. L. Normanton ‑ p. 22.  However, to the extent that the proviso also uses the term "normal," it is somewhat less permissive than if it merely contained the word "lawful."  See our discussion below.

3/I.e., the agency which administers Initiative No. 276 in accordance with RCW 42.17.350, et seq.

4/The term therefore does not apply to "de minimis" uses; e.g., the minimal use of office time and space while responding verbally to an inquiry; an incidental remark made in the course of an official communication, etc.

5/These rules, notably, are equally applicable to statutes which have been enacted through the initiative process.  See, AGO 59-60 No. 171 [[to Sam Smith, State Representative on December 30, 1960]]and cases cited therein.

6/See, e.g., AGO 1973 No. 18 [[to Robert V. Graham, State Auditor on August 2, 1973]].

7/The rule may have an indirect effect upon the powers of individual officers insofar as it may enlarge the power of a governing body which may, in turn, delegate certain functions to individuals.

8/An exception would be recognized, of course, if such approval were made by or possibly even pursuant to some express statute, which could be construed as an implied amendment to RCW 42.17.130 to the extent of any possible conflict between such statutes.

9/As we said in our above‑referenced letter to Mr. Hoppe regarding a proposed investigation of certain alleged violations of RCW 42.17.130 which he had earlier described to us:

            "Thus, a proper investigation of your charges will necessitate answers to questions such as:

            ". . .

            "(3) To what extent might the printing and distribution of such materials constitute a legally recognized part of the activities of individual members of the legislature to the extent that they may or may not be said to be part of the 'normal and usual' activities of that office within the meaning intended by the proviso of § 13, supra?

            ". . ."

10/Such allotments, of course, are included in our reference to "funds appropriated for legislative purposes" elsewhere in this opinion.

11/As, for example, in the case of an initiative to the legislature or a constitutional amendment or referendum bill or measure upon which the legislature, of necessity, has previously acted (see, Wash. Const., Article II, § 1 (Amendment 7), Article VIII, § 3, and Article XXIII, § 1); or, likewise, in the case of an initiative to the people which, basically, covers the same subject as a bill recently or presently before the legislature.

12/Accord, WAC 390-04-040, supra.

13/Just as the mere fact that a bill which was earlier before the legislature has become the subject of a ballot proposition will not bar all publicly funded communications regarding it by a legislator, so also the mere fact that a given ballot measure was previously the subject of a legislative bill will not justify patent advocacy by a legislator at public expense.

14/By Article II, § 1 (Amendment 7), adopted in 1912.

15/Of course, we would limit our conclusion in this regard to such expenditures as may be necessary to cause a reasonable communication of the governor's message to the people in his capacity as chief executive ‑ as distinguished from an extensive lobbying campaign in the ordinary sense of that term.

16/For some other specific (but nonexclusive) examples we would suggest a reference to the duties of the attorney general regarding consumer protection (chapter 19.86 RCW) or to the function of the superintendent of public instruction with regard to ". . . supervision over all matters pertaining to public schools . . ." (Article III, § 22, Washington state constitution).  On the other hand, the legislature has specifically listed the types of public information which may be distributed by certain officers and such an enumeration may be exclusive.

17/See, RCW 42.17.350, et seq.

18/See, RCW 43.09.260 and 43.09.290.

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