OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- WASHINGTON STATE WOMEN'S COUNCIL ‑- INITIATIVE AND REFERENDUM ‑- FACILITIES TO PROMOTE PASSAGE OR DEFEAT OF REFERNDUM NO. 40
It would not now be legal, under RCW 42.17.130, for the funds or facilities of the Washington State Women's Council to be used for the purpose of promoting or opposing Referendum No. 40 at the forthcoming state general election.
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October 21, 1977
Honorable Claude L. Oliver
State Representative, 8th District
302 S. Reed
Kennewick, Washington 99336 Cite as: AGLO 1977 No. 45
By recent letter you requested our opinion with regard to the legality, under RCW 42.17.130, of the use of funds or facilities of the Washington State Women's Council for the purpose of promoting or opposing Referendum No. 40 at the forthcoming state general election.
We answer your question in the manner set forth in our analysis.
RCW 42.17.130, which is a part of the state public disclosure law that originated with the passage of Initiative No. 276 in 1972, reads as follows:
"(1) No elective official nor any employee of his office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any [[Orig. Op. Page 2]] ballot proposition. Facilities of public office or agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency: PROVIDED, That the foregoing provisions of this section shall not apply to those activities which are part of the normal and regular conduct of the office or agency."
Because of the qualifying proviso at the end of this statute, however, we earlier concluded in AGO 1975 No. 23 [[to Arthur C. Brown, State Representative, on November 14, 1975]], copy enclosed, that the governor of our statemay use the facilities of his office to explain, or even to some extent, to advocate, his official position on statewide ballot measures pending before the people in their legislative capacity under Article II, § 1 (Amendment 7) of our state constitution. Accord, so much of Article III, § 6 of the constitution as provides that the Governor:
". . . shall communicate at every session by message to the legislature the condition of the affairs of the state, and recommend such measures as he shall deem expedient for their action."
In essence, our reasoning in AGO 1975 No. 23 was simply that because of Article II, § 1 (Amendment 7), which provides for the initiative and referendum in our state, the term "legislature" in Article III, § 6, supra, may now properly be construed to include the people in the exercise of their legislative powers under the constitution. Your present question, in turn, is whether the use of funds or facilities of the Washington State Women's Council for the purpose of promoting or opposing Referendum No. 40, relating to the establishment of a statutory Washington State Women's Commission in accordance with chapter 288, Laws of 1977, 1st Ex. Sess., would be legal under that same theory.1/
[[Orig. Op. Page 3]]
The state Women's Council is, as you know, not itself a statutory agency. Instead, the Council is merely a subordinate unit of the Governor's Office which was originally established several years ago by former Governor Evans through the issuance of an executive order. See, AGLO 1973 No. 52 [[to Joe Stortini, State Senator, on May 21, 1973, an Informal Opinion, AIR-73552]], a copy of which is also enclosed for your immediate reference. Accordingly, the only legal powers with which the Women's Council is presently vested are those powers which have been delegated to it by the governor.
It is further our understanding, however, that no new executive order has been promulgated by Governor Dixy Lee Ray since her ascendancy to office in January of this year. Instead, Governor Ray has simply accepted, and continued in existence, the Women's Council as earlier established by then Governor Evans' original executive order;i.e., Executive Order 71-02 which was issued on October 20, 1971, and pursuant to which the essential function of the Council was stated to be as follows:
". . . The Council is directed to consider appropriate questions pertaining to the rights and needs of women in contemporary America and to make recommendations to the Governor and state agencies with respect to desirable changes in program and law. . . ."2/
Bearing that in mind a negative answer to your question appears to be dictated. Unlike Article III, § 6 of the constitution, supra, which directs the governor to recommend measures to the legislature (and, hence, the people as above explained), the executive order by which it was created calls upon the Washington State Women's Council, instead, to make its legislative recommendations ". . . to the Governor and state agencies." Therefore, for that reason alone it would not now be legal, under RCW 42.17.130, for the funds or facilities of the Women's Council to be used for the purpose of promoting or opposing Referendum No. 40 at the forthcoming general election. Moreover, having so answered your specific question we should add a caveat in closing lest we be misunderstood. Even if the executive order were now to be amended so as to broaden the powers of the Women's Council to include the making of recommendations to the [[Orig. Op. Page 4]] legislature or people as well, that would still not permit the Women's Council to use its funds or facilities in an outright political campaign for or against the referendum for, as we also said in AGO 1975 No. 23,supra,
". . . we would limit our conclusion . . . [in regard to gubernatorial messages to the people on pending ballot measures] 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. . . ."3/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
Full Text of Executive Order No. 71-02
"The rapid rate of change occurring today in our social institutions is having a pronounced impact on the role of women in our society. Any evaluation of the rights and needs of women and of the opportunities available to women raises difficult, complex questions in such interrelated areas as education, job opportunities, property rights, and the institution of the family.
"It is appropriate that such issues be carefully examined in order that policy recommendations with respect to the rights of women may be formulated. To assist in the examination of such issues it is important that the ideas and talents of persons sympathetic to the needs of women be utilized.
"NOW, THEREFORE, I, Daniel J. Evans, do hereby constitute the Washington State Women's Council to be composed of approximately fifteen members to be appointed by the Governor. The Council is directed to consider appropriate questions pertaining to the rights and needs of women in contemporary America and to make recommendations to the Governor and state agencies with respect to desirable changes in program and law. Staff assistance will be provided to the Council through the Office of the Governor or such state agency which may be hereafter designated. Departments of state government are requested to provide appropriate and reasonable assistance to the Council, and local government officials and private citizens are requested to lend the Council their cooperation, as needed to accomplish its goals."
*** FOOTNOTES ***
1/Referendum No. 40 is aimed by its sponsors at defeating the 1977 legislature's passage of chapter 288, Laws of 1977, 1st Ex. Sess. Under the prescribed voting procedures, however, a "yes" vote on the referendum will be a vote in favor of the statutory commission and a "no" vote will be a vote against it.
2/The full text of this executive order is attached as an appendix at the end of this letter.
3/AGO 1975 No. 23 [[to Arthur C. Brown, State Representative, on November 14, 1975]], supra, at p. 14.