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AGLO 1978 No. 39 - December 18, 1978
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

APPROPRIATIONS ‑- PUBLIC DISCLOSURE LAW ‑- REPORTING AGENCY EXPENDITURES IN SUBMITTING REQUESTS FOR APPROPRIATIONS

RCW 42.17.190 does not require a state agency to include, in its quarterly reports to the Public Disclosure Commission under subsection (4) thereof an itemized listing of expenditures incurred by such agency in connection with the submission of requests for appropriations.

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

                                                               December 18, 1978

Public Disclosure Commission
403 Evergreen Plaza Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1978 No. 39

ATTN:  Graham Johnson, Administrator

Gentlemen:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Does RCW 42.17.190 require a state agency to include, in its quarterly reports to the Public Disclosure Commission under subsection (4) thereof an itemized listing of expenditures incurred by such agency in connection with the submission of requests for appropriations?

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

                                                                     ANALYSIS

            I. Introduction:

            RCW 42.17.190 originated as a part of Initiative No. 276, commonly referred to as the public disclosure law, which  [[Orig. Op. Page 2]] was approved by the voters at the November, 1972, state general election.  As thus first enacted, the statute read, in material part, as follows:

            ". . .

            "(2) Unless expressly authorized by law, no state funds shall be used directly or indirectly for lobbying:  PROVIDED, this shall not prevent state officers or employees from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties:  PROVIDED FURTHER, that this subsection shall not apply to the legislative branch.

            "(3) Each state agency which expends state funds for lobbying pursuant to an express authorization by law or whose officers or employees communicate to members of the legislature on request of any member or communicate to the legislature requests for legislation or appropriations shall file with the commission quarterly statements providing the following information for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each employee engaged in such legislative activity, a general description of the nature of his legislative activities, and the proportionate amount of his time spent on such activities.

            "(c) In the case of any communications to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request.

             [[Orig. Op. Page 3]]

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report.

            ". . ."

            Since then, RCW 42.17.190 has been amended by the legislature on two occasions.  For ease of understanding we will set forth the pertinent text of both changes in bill form.  First, by § 12, chapter 294, Laws of 1975, Ex. Sess., the legislature amended the statute as follows:

            ". . .

            "(2) Unless expressly authorized by law, no state funds shall be used directly or indirectly for lobbying:  PROVIDED, This shall not prevent state officers or employees from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests or legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties:  PROVIDED FURTHER, That this subsection shall not apply to the legislative branch.

            "(3) Each state agency which expends state funds for lobbying pursuant to an express authorization by law or whose officers or employees communicateon legislation directly affecting the agency to members of the legislature on request of any member or communicate to the legislature requests for legislation ((or appropriations)) shall file with the commission quarterly statements providing the following information for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each employee engaged in such legislative activity, a general description of the nature of his legislative activities, and the proportionate amount of his time spent on such activities((;

             [[Orig. Op. Page 4]]

            (("(c) In the case of any communications to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request)).

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report."

            And then, by § 6, chapter 313, Laws of 1977, Ex. Sess., the legislature further amended RCW 42.17.190 in the following material respects:

            ". . .

            "(2) Unlessauthorized by subsection (3) of this section or otherwise expressly authorized by law, no ((state))public funds shall be used directly or indirectly for lobbying:  PROVIDED, This shall not prevent ((state)) officers or employees of an agency from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties:  PROVIDED FURTHER, That this subsection shall not apply to the legislative branch.

            "(3)Any agency, not otherwise expressly authorized by law, may expend public funds for lobbying, but such lobbying activity shall be limited to (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency:  [[Orig. Op. Page 5]] "PROVIDED, That public funds shall not be expended as a direct or indirect gift or campaign contribution to any elected official or officer or employee of any agency.  For the purposes of this subsection, the term 'gift' shall mean a voluntary transfer of any thing of value without consideration of equal or greater value, but shall not include informational material transferred for the sole purpose of informing the recipient about matters pertaining to official agency business:  PROVIDED FURTHER, That this section shall not permit the printing of a state publication which has been otherwise prohibited by law.

            "(4) Each state agency which expends state funds for lobbying pursuant to an express authorization by law and each state agency, county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district which expends public funds for lobbying pursuant to the authorization contained in subsection (3) of this section or whose officers or employees communicate on legislation directly affecting the agency to members of the legislature on request of any member or communicate to the legislature requests for legislation shall file with the commission quarterly statements providing the following information for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each elected official, officer, or employee engaged in such ((legislative activity)) activities, a general description of the nature of ((his legislative)) the activities, and the proportionate amount of ((his)) time spent on ((such))the activities;

            "(c) An itemized listing of any expenditures incurred by the agency for such activities.

             [[Orig. Op. Page 6]]

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report.

            ". . ."

            Based upon the intermediate, 1975, amendment to this statute the question which you have now posed was initially considered, and answered in the negative, by Senior Assistant Attorney General Robert F. Hauth in a memorandum opinion to you of March 17, 1978.  Later, by a further memorandum opinion dated October 10, 1978, Mr. Hauth reaffirmed his earlier advice to you on the question.  Nevertheless, apparently prompted by certain concerns which have since been expressed to the Public Disclosure Commission regarding the correctness of that conclusion, you have now called upon us to review it through the formal opinion process.  We are, of course, happy to do so.

            II.RCW 42.17.190 ‑- A Comparative Analysis:

            Since Mr. Hauth's advice was based primarily on the legislative history of RCW 42.17.190,supra, let us begin with a comparative analysis of the three versions thereof which we quoted (in pertinent part) above.  Each version, in substance, dealt with the following three distinct issues:

            (1) In what legislative activities are state agencies permitted to engage?

            (2) With respect to what legislative activities are state agencies required to report?

            (3) What information is to be contained in such reports?

            1972:

            As originally approved by the voters, § 19(2) of Initiative No. 276 responded to the three questions thus stated as follows:

            (1) State agencies are permitted:

            (a) To lobby pursuant to express statutory authority;

             [[Orig. Op. Page 7]]

            (b) To communicate with a member of the legislature on the request of that member; and

            (c) To communicate to the legislature, through the proper official channels, requests for legislative action or appropriations ". . . which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties . . ."

            (2) State agencies are required to report to the Public Disclosure Commission regarding the following activities:

            (a) Lobbying pursuant to an express statutory authorization;

            (b) Communications to members of the legislature on request of any member; and

            (c) Communications to the legislature of requests for legislationor appropriations.

            (3) Those reports are required to indicate:

            (a) The name of the agency filing the statement;

            (b) The name, title, job description and salary of each employee engaged in such legislative activities, a general description of the nature of those activities, and the proportionate amount of his time spent therein;

            (c) In the case of any communication to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request.

             [[Orig. Op. Page 8]]

            1975:

            Since § 12, chapter 294, Laws of 1975, Ex. Sess. made no change in the text of RCW 42.17.190(2), the same three distinct categories of legislative activities by state agencies remained permissible; i.e.,

            (a) To lobby pursuant to express statutory authority;

            (b) To communicate with a member of the legislature on the request of that member; and

            (c) To communicate to the legislature, through the proper official channels, requests for legislative action or appropriations ". . . which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties . . ."

            By reason of the legislature's amendments to subsection (3) of the statute, however, the enumeration of reportable legislative activities was modified as follows:

            (a) No change was made in the requirement that agencies report with respect to lobbying pursuant to express statutory authorization;

            (b) Agency reporting of communications to members of the legislature on request of any member was confined to such communications "on legislation directly affecting the agency;"

            (c) While agencies continue to be permitted by subsection (2) to communicate to the legislature, through proper channels, requests for legislative actionor appropriations, the phrase "or appropriations" was deleted from the list of reportable legislative activities in subsection (3).

             [[Orig. Op. Page 9]]

            And finally, agency reports of legislative activities were still required to identify the name of the agency involved as well as the name, title, job description and salary of each employee engaged in ". . . such legislative activity, . . ." (i.e., one or more of the three categories now reportable under subsection (3) as amended); however, those reports were no longer required to identify, in the case of communications to a member of the legislature in response to a request from the member, ". . . the name of the member making the request and the nature and subject of the request."

            1977:

            By leaving RCW 42.17.190(2) materially intact, the legislature, through its enactment of § 6, chapter 313, Laws of 1977, Ex. Sess., supra, again continued to sanction:

            (a) Agency lobbying pursuant to express authorization;

            (b) Communications to members of the legislature on request of any member; and

            (c) Communications to the legislature, through proper official channels, of requests for legislative action or appropriations ". . . which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties . . ."

            However, by new subsection (3) of the statute, the 1977 legislature added a fourth category of permissible legislative activities by state agencies (as well as municipalities); i.e.,

            ". . . (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency . . ."

             [[Orig. Op. Page 10]]

            As a result of this change the enumeration of reportable agency lobbying activities, now contained in newly renumbered subsection (4) of RCW 42.17.190, was correspondingly amended so as now to cover:

            (a) Agency lobbying pursuant to express authorization‑-as before;

            (b) Communications with individual legislators, on request thereof, of legislative action affecting the agency‑-likewise as before;

            (c) Communications to the legislature requesting legislation (still minus the phrase "or appropriations" in accordance with the 1975 amendment,supra); and

            (d) Agency communications or lobbying activities undertaken in accordance with new subsection (3), supra.

            Finally, one significant new element was added to the requisite content of agency reports by § 6, chapter 313, supra; namely,

            "(c) An itemized listing of any expenditures incurred by the agency for such activities."

            III.Relevance of Legislative History:

            We have gone to some length in presenting this comparative analysis of the 1972, 1975 and 1977 versions of RCW 42.17.190(2) through (4), even to the extent of a certain amount of repetition, because of the importance of the element of legislative history in the instant case‑-an element which can only be properly focused in upon in this manner.  In so doing, however, we recognize that in the minds of some (a) this history is legally irrelevant in the absence of a facial ambiguity in the statute as it now stands and (b) no such ambiguity exists because of the following express definition of the word "legislation" in RCW 42.17.020(17):

            "'Legislation' means bills, resolutions, motions, amendments, nominations, and other matters pending or proposed in  [[Orig. Op. Page 11]] either house of the state legislature, and includes any other matter which may be the subject of action by either house, or any committee of the legislature and all bills and resolutions which having passed both houses, are pending approval by the governor."

            As thus defined, those who have expressed disagreement with Mr. Hauth's memorandum opinion,supra, would argue, the term "legislation" includes appropriations.  Therefore, it has been argued that the current version of RCW 42.17.190(4), in requiring agencies to report their ". . . communications to the legislature requesting legislation," is unambiguous on the issue of whether agency requests for appropriations must be reported‑-and the legislative history of the provision is beside the point or, at most, it merely discloses an effort by the 1975 legislature to remove a redundancy.

            As was recently observed by the United States Supreme Court inTrain v. Colorado Pub. Int. Research Group, 426 U.S. 1, 48 L.Ed.2d 434, 96 S.Ct. 1938 (1976), however,

            ". . . 'When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination. . . ."'"

            Furthermore, the question is not whether appropriations are a form of legislation (or "legislative action," which is the corresponding term used in RCW 42.17.190(2),supra) for undoubtedly they are.1/    Rather, as we perceive it, the real  [[Orig. Op. Page 12]] issue here presented is whether an agency's communications to the legislature with regard to this particular kind of legislation (in essence, the agency's own periodic budget request)‑-which were clearly required to be included in the agency's reports to the PDC under the original version of the law‑-remain reportable under RCW 42.17.190 in spite of the legislature's 1975 amendment deleting the words "or appropriations" from the reporting section of the statute.

            IV.Significance of 1975 Amendment:

            This brings us to the ultimate question:  Was the reference to appropriations removed from RCW 42.17.190(3) by the 1975 legislature merely to eliminate a redundancy.  Or was this change made, instead, with a mind toward reducing the reporting burden of all state agencies under the law (and the corresponding costs of discharging that burden) by excluding requests for appropriations?2/

            Let us first briefly recap.  In the case of RCW 42.17.190 there was, initially, a total correlation between the three (original) categories of sanctioned legislative activities in which state agencies could legally engage and the list of activities upon which those agencies were required to report; i.e., precisely the same three categories of legislative activities were (1) permitted and (2) made reportable.  In 1975, however, the circle was broken to a limited extent.  While agencies were permitted to continue communicating to the legislature, through proper official channels, requests for legislative action or appropriations they were henceforth only required to report regarding their communications requesting "legislation." Thus, although a general parallelism between (1) what constituted permissible legislative activities and (2) what legislative activities by agencies were reportable was retained, one notable exception to this scheme of things came into existence‑-resulting from the legislature's deletion of the phrase "or appropriations" from RCW 42.17.190(3) but not from RCW 42.17.190(2).  And finally, nothing in the 1977 amendments to the statute (as contained in § 6, chapter 313, Laws of 1977, Ex. Sess., supra) restored the circle to its original form.

             [[Orig. Op. Page 13]]

            At the same time, let us also remember that the 1975 legislature made one other change in the reporting requirements of RCW 42.17.190(3).  Under its original version state agencies were required to report all communications ". . . to members of the legislature on request of any member. . . ."  By the 1975 act, however, agency reporting of communications to the legislature was limited to such communications "on legislation directly affecting the agency."  Clearly,this change in the statute was made in order to reduce the reporting burdens of state agencies‑-as any one who can recall the voluminous and largely meaningless reports of legislative contacts filed prior to the amendment can readily attest.  Is it not therefore quite reasonable to view the deletion of "or appropriations" from the same subsection of the statute as having had the same consistent object or purpose and not merely (as some have argued) the removal of a redundancy?3/

             There are, in addition, two other problems with this theory that the 1975 legislature was only attempting to remove a redundancy.  First, quite obviously, it flies directly in the face of one of the most fundamental of the rules of statutory construction.  When a statute is amended and a material change is made in the wording, it is presumed that the legislature intended a change in the law.  See,e.g.,Home Indemnity Co. v. McClennan Motors, Inc., 77 Wn.2d 1, 459 P.2d 389 (1969).  Or, to state the same principle of statutory construction in the negative, it is presumed that the legislature does not deliberately engage in unnecessary or meaningless acts.  Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973).

            Secondly, in this case, the so-called "redundancy" argument is directly at odds with what the 1975 legislation actually did; namely, to remove the phrase "or appropriations" from subsection (3) of RCW 42.17.190 while at the same time, leaving that same phrase in subsection (2) of the statute.  See, § 12, chapter 294, Laws of 1975, Ex. Sess., as quoted at pp. 3-4 above.  Had the legislature meant merely to remove a redundancy it would seemingly have acted in a more consistent manner.  Compare,Vannoy v. Pacific Power & Light Co., 59 Wn.2d 623, 369 P.2d 848 (1962).

             [[Orig. Op. Page 14]]

            V. Conclusion:

            In thus reviewing Mr. Hauth's earlier opinion to you on this question and responding to what we understand to be some of the contrary arguments which have been advanced, we do not mean to imply that a court could not possibly go that other way.  In truth, the question is a close one.  Fortunately, however, the legislature will again be in session soon and if it truly feels it to be necessary to require all state agencies to report to the Public Disclosure Commission "an itemized listing of expenditures incurred by the agency in connection with the submission of requests for appropriations . . ." it can readily manifest that intent by restoring the phrase "or appropriations" to what is now RCW 42.17.190(4).  But in the meantime, for the foregoing reasons, we would at this time affirm the advice you have previously received from this office and answer your question in the negative.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In addition to the definition of "legislation" in RCW 42.17.020(17), supra, see RCW 42.17.170(2)(d) which requires reporting by registered lobbyists of "[t]he subject matter of proposedlegislation or rule making . . . PROVIDED, That in the case ofappropriations bills the lobbyist shall enumerate the specific section or sections which he supported or opposed." (Emphasis supplied)

            See also, Wash. Const., Article VIII, § 4 (Amendment 11) which provides, in material part:

            "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; . . . ."

2/While only a relatively few state agencies will be requesting substantive departmental legislation during any given legislative session all such agencies, of constitutional necessity, must present and justify their budget requests (in accordance with the state budget and accounting act) at least once during the biennium.  Accord, Article VIII, § 4, (Amendment 11),supra.

3/Opponents of this conclusion cite, as support for their view, an apparent lack of publicity or outcry over what they would characterize as a relatively more serious diminution of agency reporting requirements than others that were effected in the same legislative session.  That argument invites sheer speculation and is not valid in our opinion.

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