INITIATIVE NO. 276 ‑- OFFICES AND OFFICERS ‑- LEGISLATORS ‑- FINANCIAL DISCLOSURE
(1) If a state legislator receives compensation for preparing, supporting or opposing particular legislation he is required to report that compensation under RCW 42.17.240(1)(e).
(2) The person making the payments thus referred to is required to report those payments as a lobbyist under RCW 42.17.170(2)(a).
(3) Funds received by a legislative candidate during his electoral campaign are to be reported as contributions under RCW 42.17.08-42.17.090 where paid with the understanding that the funds are to "cover" the candidate's time spent as such.
(4) Extent to which the act of paying a legislator for preparing, supporting or opposing legislation, or compensating a legislative candidate for his time spent as such, causes the person thus paying to become a lobbyist and his employer to be a lobbyist's employer.
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May 22, 1975
Honorable King Lysen
State Representative, 31st District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 54
By letter previously acknowledged you have requested our opinion on several questions pertaining to certain of the reporting requirements of Initiative No. 276, now codified as chapter 42.17 RCW. We paraphrase your questions as follows:
(1) If a state legislator receives compensation for preparing, supporting or opposing particular legislation is he required to report that compensation under RCW 42.17.240(1)(e)?
(2) Is the person making the payments referred to in question (1) required to report those payments as lobbying expenses under RCW 42.17.170(2)(a)?
(3) Are funds received by a legislative candidate during his electoral campaign to be reported as contributions under RCW 42.17.080-42.17.090 where paid with the understanding that the funds are to "cover" the candidate's time spent as such?
(4) Does the act of paying a legislator for preparing, supporting or opposing legislation, or compensating a legislative candidate for his time spent as such, cause the person thus paying to become a lobbyist as defined in RCW 42.17.020(17), and his employer to be a "lobbyist-employer" as defined in RCW 42.17.020(18)?
We answer questions (1) through (3) in the affirmative and question (4) as set forth in our analysis.
As you know, Initiative No. 276 was adopted by the voters of this state at the November 7, 1972, general election and became effective on January 1, 1973. It has since been codified as chapter 42.17 RCW and, consequently, we will hereinafter cite its provisions by their code designations in accordance with customary practice.
[[Orig. Op. Page 2]]Question (1):
Your first question involves so much of RCW 42.17.240 as provides that:
"(1) Every elected official (except president, vice president and precinct committeemen) shall on or before January 31st of each year, and every candidate (except for the offices of president, vice president and precinct committeeman) shall, within two weeks of becoming a candidate, file with the commission a written statement sworn as to its truth and accuracy stating for himself and his immediate family for the preceding twelve months:
". . .
"(e) All persons for whom actual or proposed legislation, rules, rates, or standards has been prepared, promoted, or opposed for current or deferred compensation; the description of such actual or proposed legislation, rules, rates or standards; and the amount of current or deferred compensation paid or promised to be paid; and . . ."
The term "elected official" as used in this section of the initiative is defined by RCW 42.17.020(9) to mean:
". . . any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office."
The term "public office" is defined by RCW 42.17.020(23) to mean:
". . . any federal, state, county, city, town, school district, port district, special district, or other state political subdivision elective office."
Consequently, there can be no question but that a state legislator is an "elected official" for the purposes of RCW 42.17.240, supra, and from this it readily follows that your first question must be answered in the affirmative. The course of conduct described therein falls squarely within the purview of subpart (1)(e) of the statute as above quoted. Accord, the publication entitled "Initiative 276 Data Handbook for Legislators," published by the office of [[Orig. Op. Page 3]] program research of the house of representatives, at page 71d wherein precisely the same question was affirmatively answered on the basis of the following reasoning:
". . . He is promoting legislation for a particular person for a sum in addition to his regular salary. Subsection (e) of Section 24 requires all persons to be listed for whom actual or proposed legislation has been prepared, promoted, or opposed for current or deferred compensation, the description of such legislation and the amount paid or promised to be paid for his efforts."
Repeated for ease of reference this question, as above paraphrased, reads as follows:
Is the person making the payments referred to in question (1) required to report those payments as lobbying expenses under RCW 42.17.170(2)(a)?
RCW 42.17.020(16) defines the term "lobby" and "lobbying" to mean:
". . . attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate or other legislative enactment of any state agency under the state Administrative Procedure Acts, chapter 34.04 RCW and chapter 28B.19 RCW."
A "lobbyist" is ". . . any person who shall lobby either in his own or another's behalf." RCW 42.17.020(17).
RCW 42.17.150-42.17.230 codify the portion of Initiative 276 which regulates the conduct of lobbyists. In particular, RCW 42.17.170 to which you have referred in your question requires all lobbyists who are required to register under RCW 42.17.150 (i.e., those not exempt from registration under RCW 42.17.160) to file periodic reports with the state public disclosure commission. As set forth in subsection (2) of the statute these reports are required to include:
"(a) The totals of all expenditures made or incurred by such lobbyist or on behalf of such lobbyist by the lobbyist's employer during the period covered by the report, which totals shall be segregated according to financial category, including food and refreshments; [[Orig. Op. Page 4]] living accommodations; advertising; travel; telephone; contributions; office expenses, including rent and the salaries and wages paid for staff and secretarial assistance, or the proportionate amount thereof, paid or incurred for lobbying activities; and other expenses or services: Provided however, That unreimbursed personal living and travel expenses of a lobbyist not incurred directly or indirectly for any lobbying purpose need not be reported: and Provided further, That the interim weekly reports of legislative lobbyists for the legislative session need show only the expenditures for food and refreshments; living accomodations; travel; contributions; and such other categories as the commission shall prescribe by rule. Each individual expenditure of more than fifteen dollars for entertainment shall be identified by date, place, amount, and the names of all persons in the group partaking in or of such entertainment including any portion thereof attributable to the lobbyist's participation therein but without allocating any portion of such expenditure to individual participants."
When an individual "employs" a legislator for compensation, paying him over and above his legislative salary to prepare, support or oppose particular legislation, that person is most certainly engaged in lobbying.1/ Therefore, [[Orig. Op. Page 5]] it necessarily follows that the amounts so paid must be reported by the "employer" as a lobbyist under the foregoing statutory language.
This question asks:
Are funds received by a legislative candidate during his electoral campaign to be reported as contributions under RCW 42.17.080-42.17.090 where paid with the understanding that the funds are to "cover" the candidate's time spent as such?
RCW 42.17.080 and 42.17.090 pertain to the contents of certain reports which are required to be filed with the state public disclosure commission by candidates for public office and/or their campaign treasurers. Among the items which are to be included in those reports are "contributions" which have been received by the candidate or his campaign committee during the reporting period. RCW 42.17.020(8) defines the term "contribution" as including:
". . . a loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment, transfer of funds between political committees, or transfer of anything of value, including personal and professional services for less than full consideration, but does not include ordinary home hospitality and the rendering of 'part time' personal services of the sort commonly performed by volunteer campaign workers or incidental expenses not in excess of twenty-five dollars personally paid for by any volunteer campaign worker. . . ."
When, during an electoral campaign, funds are paid to or for the benefit of a candidate in order to assist him in defraying his personal expenses while on a campaign trail, it is our opinion that the funds thus paid must be treated as "contributions" under the foregoing definition. The purpose of the payments, presumably, is to allow the [[Orig. Op. Page 6]] candidate to continue campaigning instead of having to return to his regular employment or the like ‑ or to work full time instead of part time, etc. Therefore, in a very real sense any such payments necessarily will constitute "contributions" in support of the candidacy of the individual involved.
Finally you have asked:
Does the act of paying a legislator for preparing, supporting or opposing legislation, or compensating a legislative candidate for his time spent as such, cause the person thus paying to become a lobbyist as defined in RCW 42.17.020(17), and his employer to be a "lobbyist-employer" as defined in RCW 42.17.020(18)?
We have already noted the definition of "lobbyist" as it appears in RCW 42.17.020(17),supra. The term "lobbyist-employer" is, in turn, defined by subsection (18) of this same statute to mean:
". . . the person or persons by whom a lobbyist is employed and all persons by whom he is compensated for acting as a lobbyist."
Thus, on the same basis as we have above concluded that the legislator's "employer" under the circumstances contemplated by your first and second questions is thereby a "lobbyist," it likewise follows that the employer of that lobbyist is a "lobbyist's employer." We thus, likewise, answer your final question in the affirmative insofar as it involves payments to a legislator for preparing, supporting or opposing legislation.
Your question, however, then goes on also to deal with payments made to the same individual earlier ‑ as a candidate for the legislature. In answering your third question we have labeled those payments as campaign "contributions" for the purposes of reporting under RCW 42.17.080 and 42.17.090. They are thus to be reported by the candidate or his campaign treasurer or committee under that statute rather than as "compensation" under RCW 42.17.240,supra ‑ assuming, as we do for the purposes of this aspect of your final question, that the payments are made gratuitously to cover the candidate's expenses, etc., and not as payment for services actually to be rendered by the candidate such as preparing legislation or the like.
[[Orig. Op. Page 7]] However, whether they will, in addition, also have to be reported as lobbying expenses under RCW 42.17.170,supra, ‑ or, in general, will cause those involved in making the payments to become either lobbyists or lobbyists-employers ‑ will depend upon whether, under the circumstances present, the expenditures can be said to have been made for the purpose of seeking to influence the passage or defeat of legislation; i.e., "lobbying" as defined in RCW 42.17.020(16), supra.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JAMES M. VACHE
Assistant Attorney General
*** FOOTNOTES ***
1/In addition, any such payment to a legislator (as opposed, perhaps, to some member of his family or the like) for supporting or opposing particular legislation pending before the legislature would quite possibly constitute bribery under RCW 9.18.010, which prohibits any person from giving
". . . any compensation, gratuity or reward to a member of the legislature, . . . to influence such member to give or withhold his vote or to absent himself from the house of which he is a member or from any committee thereof; . . ."
and makes such conduct a felony. Also, a legislator who would receive such compensation under those conditions could be guilty of asking or receiving a bribe under RCW 9.18.020. At least, such conduct by either a lobbyist or a legislator could constitute "grafting" under RCW 9.18.110.
See, also, so much of Article II, § 30 of the state constitution as provides that:
". . . A member who has a private interest in any bill or measure proposed or pending before the legislature, shall disclose the fact to the house of which he is a member, and shall not vote thereon."