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AGLO 1979 No. 21 - May 17, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

LEGISLATURE ‑- APPROPRIATIONS ‑- CRIMES ‑- FAILURE OF LEGISLATURE TO COMPLY WITH RCW 43.88.080

A failure by the state legislature to have finally adopted a budget for state government at least 30 calendar days prior to the beginning of the next ensuing biennium, as contemplated by RCW 43.88.080, will not subject the individual members of the two houses to criminal prosecution under RCW 43.88.270.

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                                                                   May 17, 1979

Honorable Duane Berentson
Republican Speaker
House of Representatives
3rd Floor ‑ Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 21

Dear Sir:

            This is written in response to your request for our opinion on a question which we paraphrase as follows:

            In the event that the state legislature does not finally adopt a budget for state government at least 30 calendar days prior to the beginning of the next ensuing biennium, as contemplated by RCW 43.88.080, will the individual members of the two houses, as a consequence, be subject to criminal prosecution under RCW 43.88.270?

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your question, quite obviously, has arisen in the context of the current legislative session.  At present each house has formulated and passed its own differing version of the biennial budget for the 1979-81 biennium.  Neither house, however, has yet been willing to accept the other's version.  Nor has a conference committee been  [[Orig. Op. Page 2]] formed (as has been customary in the past) to negotiate a mutually acceptable omnibus appropriations act because the Senate has refused to request of the House of Representatives to do so.

            With this stalemate situation in mind the governor, at a recent press conference, in an attempt to induce action cited two sections of the State Budget and Accounting Act.  The first of those sections is RCW 43.88.080 which reads as follows:

            "Adoption of the omnibus appropriation bill or bills by the legislature shall constitute adoption of the budget and the making of appropriations therefor.  A budget for state government shall be finally adopted not later than thirty calendar days prior to the beginning of the ensuing biennium."1/

             The other statute cited by the governor at her press conference is RCW 43.88.270, which was added to the Budget and Accounting Act, three years ago, through the adoption of § 3, chapter 83, Laws of 1975-76, 2nd Ex. Sess., and provides that:

            "Any officer or employee violating, or wilfully refusing or failing to comply with, any provision of this chapter shall be guilty of a misdemeanor."

            The question here posed is whether individual members of the state legislature will be subject to criminal prosecution under this last quoted provision as a consequence of a failure by the legislature, as a body, to comply with RCW 43.88.080, supra.  It is our opinion that this question is answerable in the negative.

            Undoubtedly, the legislature will be in violation of the law cited by the governor if it fails to complete work on the state budget by (in this case) June 1, 1979.  Accord, AGLO 1977 No. 11, copy enclosed, wherein we described the somewhat more significant legal consequences of a failure  [[Orig. Op. Page 3]] by the legislature to pass a biennial budget prior to the commencement of the fiscal period to be covered thereby (i.e. in this instance, by June 30, 1979).  But this clearly will not have the effect of depriving the legislature of its capacity to act on the budget at a later date‑-some time during the month of June, presumably.  That is so because, as we view it, RCW 43.88.080, supra, is a directory rather than a mandatory statute as those two labels were described and analyzed by the court in State v. Miller, 32 Wn.2d 149, 155, 201 P.2d 136 (1948).  And, as a matter of fact, both the 1975-77 and 1977-79 state budget acts were, indeed, passed well after the RCW 43.88.080 deadline here involved.2/

             Nor, responding directly to your question, will a failure by the legislature, as a body, to adopt a state budget by the time specified in RCW 43.88.080, supra, subject individual members of the legislature to criminal prosecution under RCW 43.88.270, supra, for a different but quite simple reason.  Unlike various other sections of the Budget and Accounting Act which contain requirements or limitations directed to the conduct of individual state officers or employees (mainly in the administration of the budget once it has been adopted), the particular statute here in question is directed at the legislature as a legal entity and not at its individual members in either house.  Therefore, no individual legislator can be deemed to be guilty of a violation of that statute‑-regardless of whether he votes for or against a particular proposal at any given point in time‑-even though, as a consequence of the action or inaction of all members acting together, the result is (as here posited) a failure by the legislature to have finally adopted a budget for state government ". . . not later than thirty calendar days prior to the beginning of the ensuing biennium."

            On the one hand the legislature, to which the above‑quoted language of RCW 43.88.080 is directed, is neither an "officer" nor an "employee" within the meaning of RCW 43.88.270, supra.  And on the other hand it is similarly to be seen that while individual legislators are, indeed, "officers" under that statute, it is not to them, individually, that the statute is directed.

             [[Orig. Op. Page 4]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/This section originated as part of the Budget and Accounting Act itself (chapter 328, Laws of 1959) and was last amended, in respects here immaterial, by § 5, chapter 100, Laws of 1973, 1st Ex. Sess.

2/Specifically, chapter 269, Laws of 1975, Ex. Sess., was passed by both houses on June 8, 1975 and signed by the governor on June 30, 1975; similarly, chapter 339, Laws of 1977, Ex. Sess. was passed by both houses on June 21, 1977 and signed by the governor on June 30, 1977.

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