AGLO 1976 No. 34 - May 13 1976
OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- AUDITOR ‑- APPROPRIATIONS ‑- AUDITS OF MANSION MAINTENANCE ACCOUNT
Appropriations made to the office of governor for mansion maintenance are subject to audit by the state auditor under the provisions of RCW 43.09.290, et seq.
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May 13, 1976
Honorable Robert V. Graham
Olympia, Washington 98504 Cite as: AGLO 1976 No. 34
By recent letter you have requested our opinion on the following two questions:
"1. Are appropriations made to the Office of Governor for mansion maintenance subject to audit by the Office of State Auditor; that is, may this include examination of detailed evidence supporting final disbursement of the monies by the recipient, the Governor?
"2. Would the answer to question No. 1 apply to other 'pass-thru' types of appropriations?"
We answer both of these questions in the affirmative.
Among the appropriations contained in chapter 269, Laws of 1975, 1st Ex. Sess., the omnibus state budget act for the 1975-77 biennium, is the following as set forth in § 10:
"FOR THE OFFICE OF THE GOVERNOR
"General Fund Appropriation........ $ 1,661,691 "Total Appropriation........... $ 1,661,691
"The appropriation contained in this section shall be subject to the following conditions and limitations:
"(1) $1,358,293 for executive operations.
[[Orig. Op. Page 2]]
"(2) $20,000 for investigation and emergency purposes to be distributed on vouchers approved by the governor.
"(3) $190,690 for extradition expenses to carry out the provisions of RCW 10.34.030 providing for the return of fugitives when approved by the governor including prior claims and for legal services as determined by the attorney general.
"(4)$92,708 for mansion maintenance." (Emphasis supplied.)
Comparable appropriations to the governor's office for mansion maintenance have been made, periodically, for many past bienniums as well. Their constitutionality was considered at some length by this office, and upheld, in a lengthy opinion dated January 27, 1927, to then State Senator Daniel Landon, to which you have referred in your opinion request.
In a second opinion to which you have also referred, written to your own office July 13, 1942, we discussed a similar appropriation to the lieutenant governor by the 1941 legislative session. Comparing this appropriation with past appropriations to the governor for mansion maintenance, we observed that ". . . inasmuch as for many years the latter official has not submitted or been required to submit detailed information on vouchers withdrawing like appropriations we see no reason for requiring the submission of such data in the case of the lieutenant governor. . . ."
You have informed us that, based on those two prior opinions, you and other state auditors have not, in the past, regarded an appropriation to the governor for mansion maintenance to be subject to audit by your office. In addition, that same view has been reflected in statements included in past reports of your periodic examinations of the governor's office over the years. Likewise, in your most recent biennial report to the 1975 legislature under the caption "Auditing of Mansion Maintenance Funds Expenditures," you said:
"Based on the closing sentence of a January, 1927, Attorney General Opinion to Senator Daniel Landon and a July 13, 1942, Attorney General Opinion to the [[Orig. Op. Page 3]] State Auditor [[to Cliff Yelle]], this office has never gone behind the basic vouchers drawn for the purposes of mansion maintenance to confirm the public purpose and legality of such disbursements.
"Recognizing that added costs and inflationary effects have some effect on the growth, we would point out to the legislature the following facts:
"Mansion "For Governor's "Period Maintenance Salary "1927 Expenditures $ 6,250 $ 6,000 "1943 Expenditures 6,000 6,000 "1973-1974 Appropriations* 55,000 94,600 "*1/2 of 1973-75 appropriation 27,500 47,300 "The legislature may wish to review the authorization and application of these funds."
In commenting on the foregoing in response to your present request it might be helpful to note a distinction between the pre‑audit and post-audit functions of the state auditor. At the time the two opinions referred to in your letter were written the auditor was, or had been, exercising only pre‑audit authority; i.e., authority to determine the legality of expenditures before they were made by approving or disapproving vouchers drawn against appropriations.1/ Post-audit authority (i.e., authority to examine past expenditures by state agencies) had earlier been transferred from your office to other agencies. See, § 47, chapter 7, Laws of 1921, and § 19, chapter 176, Laws of 1935. Conversely, your present authority to conduct post-audits stems from § 3, chapter 196, Laws of 1941 (now codified as RCW 43.09.310) together with a provision of the 1959 budget and accounting act which is now codified as RCW 43.88.160.
One may properly conclude, as you have interpreted our July 13, 1942, opinion to say, that the working of some appropriations authorizing pre‑audit approval by the [[Orig. Op. Page 4]] agency to which the appropriation was made was such as to preclude your office from exercising pre‑audit approval of a given expenditure. Such a rationale, however, would not necessarily preclude your office from conducting apost-audit of the legality of expenditures after they have been made. See, our opinion to your office dated January 5, 1942 [[to Cliff Yelle]], a copy of which is enclosed.
Certainly some significance may be attached to the long-established administrative construction and practice of your office that is described in your 1974-75 biennial report to the legislature ‑ together with the legislature's own acquiescence in that construction for a period of fifty years or more. In view of such considerations it would be difficult now to say that your office presently has no discretion in the matter and thus must conduct periodic post-audits of mansion maintenance expenditures with the same regularity and to the same extent as with all other expenditures of state funds. In our opinion, however, it would be erroneous to conclude that your office has noauthority to conduct more detailed audits of such expenditures under the broad language of RCW 43.09.290-43.09.340 and chapter 43.88 RCW.2/ As we observed in our January 5, 1942, opinion, supra:
". . . we recognize the rule which is stated in Roberts v. Millikin, 200 Wash. 60, and numerous other decisions to the effect that departmental construction long adhered to will not be lightly disregarded by the courts, but this doctrine cannot be applied when to do so would in effect nullify a now existing statute."
It is our opinion, therefore, that your first question must be answered in the affirmative.3/
In connection with your second question you have likewise advised us that you have not, in the past, audited certain other appropriations which you have referred to as "pass through" appropriations and have exemplified as follows:
[[Orig. Op. Page 5]]
"1. Motor Vehicle Excise Fund Appropriation for the Municipal Research Council (1971-1973‑-$460,000.00)
"2. Special Appropriation to the Governor for the Council of State Government (1971-73‑-$56,360)
"3. General Fund Appropriation to the Superintendent of Public Instruction ‑ $150,000.00 for the Pacific Science Center during the 1971-73 biennium."
In our opinion, however, such appropriations as these are also subject to audit under RCW 43.09.290-43.09.340 and chapter 43.88 RCW in the same manner as is any other appropriation to a state agency which is subject to those statutes; and clearly, not only the governor's office but the municipal research council (RCW 43.110.010) and the state superintendent of public instruction constitute such agencies.
It is hoped that the foregoing will be of some assistance to you at the present time.
Very truly yours,
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/See, Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959), construing the 1959 budget and accounting act (chapter 328, Laws of 1959) which ultimately removed pre‑audit authority from the state auditor.
2/Although these statutes have recently been held not to authorize post-audits of all but minor aspects of the financial affairs of the Washington State Bar Association (see, Graham, et al. v. Wash. State Bar Ass'n, 86 Wn.2d624 (1976)), the rationale of that decision in no way mitigates against the auditing of any appropriations made to or for the support of the governor.
3/Nevertheless, in view of the past construction and practice in question, it might be advisable for you to seek clarification from the legislature at this juncture.