OFFICES AND OFFICERS ‑- STATE ‑- SECRETARY OF STATE ‑- APPROPRIATIONS PERFORMANCE OF NEW STATUTORY DUTIES
The secretary of state would not be legally justified in refusing to perform the new duties imposed upon his office by chapter 46, Laws of 1975-76, 2nd Ex. Sess., merely because the legislature failed to make a specific appropriation to fund the performance of those duties.
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May 5, 1976
Honorable Bruce K. Chapman
Secretary of State
Olympia, Washington 98504 Cite as: AGLO 1976 No. 32
By recent letter you have directed our attention to the provisions of chapter 46, Laws of 1975-76, 2nd Ex. Sess. (Senate Bill No. 3056) § 2 of which reads as follows:
"Not earlier than January 1st nor later than February 1st of each calendar year and not earlier than July 1st nor later than August 1st of each calendar year each county auditor shall provide to the secretary of state, or a data processing agency designated by him, a duplicate computer tape or data file of the records of the registered voters in that county, containing the information specified in RCW 29.07.220. The secretary of state shall reimburse each county for the actual cost of reproduction and mailing of the duplicate computer tape or data file. He shall arrange for a master computer tape or data file of the records of all the registered voters of the state to be compiled."
In addition, § 3 of this new law, which will take effect June 26, 1976,1/says that:
"No later than February 15th and no later than August 15th of each year, the secretary of state shall provide a duplicate copy of the master state‑wide computer tape or data file of registered voters to the state central committee of each major [[Orig. Op. Page 2]] political party, at actual duplication cost. The master state‑wide computer tape or data file of registered voters or portions of the tape or file shall be available to any other political party, at actual duplication cost, upon written request to the secretary of state. Restrictions as to the commercial use of the information on the state‑wide computer tape or data file of registered voters, and penalties for its misuse, shall be the same as provided in RCW 29.04.110 and 29.04.120 as now existing or hereafter amended."
You have then indicated that although the legislature thus imposed certain additional duties (including ones specifically involving the disbursement of state funds) upon the secretary of state it failed to make any correlative additional appropriation to your office, for the remainder of the current biennium, to fund the performance of those duties.
As we understand it your basic question, in the light of the foregoing, is whether your office would be legally justified, under the circumstances, in simply refusing to implement the provisions of chapter 46, supra, until and unless an additional appropriation is made. In posing this question you have directed our attention to another recently enacted statute; namely, § 2, chapter 83, Laws of 1975-76, 2nd Ex. Sess. (Senate Bill No. 3040), which adds the following new section to the state budget and accounting act (chapter 43.88 RCW):
"It shall be unlawful for any agency head or disbursing officer to incur any deficiency and any appointive officer or employee violating the provisions of this section shall be subject to summary removal."
A deficiency, within the meaning of this statute, presumably means, simply, a liability in excess of available funds. Accord, the preexisting provisions of RCW 43.88.130 (an original part of the budget and accounting act) which read as follows:
"No agency shall expend or contract to expend any money or incur any liability in excess of the amounts appropriated for that purpose: Provided, That nothing in this [[Orig. Op. Page 3]] section shall prevent the making of contracts or the spending of money for capital improvements, nor the making of contracts of lease or for service for a period exceeding the fiscal period in which such contract is made, when such contract is permitted by law. Any contract made in violation of this section shall be null and void."
See, also, RCW 43.88.070, which states that:
"Appropriations shall be deemed maximum authorizations to incur expenditures but the governor shall exercise all due supervision and control to ensure that expenditure rates are such that program objectives are realized within these maximums."
And, of course, the underlying constitutional basis for these several statutory provisions is clearly set forth in the following language of Article VIII, § 4 (Amendment 11) of our state constitution:
"No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; . . ."
Without question this all means that your office, in implementing §§ 2 and 3 of chapter 46,supra, may not incur liabilities or expend funds in excess of whatever appropriations are legally available to you for that purpose. That, however, does not mean that the mere absence of a specific, additional, appropriation to cover these particular new functions of your office will justify a refusal on your part to perform them. Instead, you will nevertheless be required to implement the law by drawing on such other appropriations for the 1975-77 biennium as are legally available to fund the performance of the lawful activities of the secretary of state, generally.2/
[[Orig. Op. Page 4]]
Alternatively, if necessary, you may properly seek to supplement your own funds with an allocation from such other appropriations as have been made to the governor for emergency purposes as contemplated by another portion of chapter 83, Laws of 1975-76, 2nd Ex. Sess., supra; i.e., § 1, thereof which reads as follows:
"Whenever an emergency shall arise necessitating an expenditure for the preservation of peace, health or safety, or for the carrying on of the necessary work required by law of any state agency for which insufficient or no appropriations have been made, the head of such agency shall submit to the governor, duplicate copies of a sworn statement, setting forth the facts constituting the emergency and the estimated amount of money required therefor. If the governor approves such estimate in whole or in part, the governor shall indorse on each copy of the statement the governor's approval, together with a statement of the amount approved as an allocation from any appropriation available for allocation for emergency purposes and transmit one copy to the head of the agency thereby authorizing the emergency expenditures."3/
This is not necessarily to say that an inability on your part to perform the specific functions provided for in chapter 46,supra, would constitute an "emergency" within the meaning of this last quoted provision. But presumably, your expenditure of funds generally appropriated for the operation of your office during the 1975-77 biennium to cover this new, 1976 law, could run you short somewhere else ‑ for example, in conducting the forthcoming 1976 state general elections ‑ so as to result in the kind of emergency situation to which § 1, chapter 83,supra, more clearly applies.
Finally, as far as the timing of any request by your office for an allocation of emergency funds is concerned, [[Orig. Op. Page 5]] that is really an administrative rather than a legal question as we view it. You might now anticipate a future need for the allocation of emergency funds because of the expenditures which you will have to make, for the first time in July and August of 1976, to implement chapter 46, supra, and submit your application on that basis before the emergency actually arises. Or, instead, you could delay the submission of an application for an emergency allocation until a later date when the precise amount needed and the full extent of the emergency can better be ascertained. The question, basically, is which of these two approaches is more likely to establish a kind of case upon which the governor may favorably act but that, obviously, is not a question which we may properly answer in a legal opinion such as this.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Accord, Article II, § 41 (Amendment 26) of the state constitution.
2/See, in particular, § 14, chapter 269, Laws of 1975, 1st Ex. Sess., which appropriated the sum of $2,109,690 to your office from the state general fund for the 1975-77 biennium.
3/See, also, § 11, chapter 269, Laws of 1975, 1st Ex. Sess., supra, for a specific appropriation of $630,000 to fund this substantive provision.