AGO 1976 No. 3 - Jan 21 1976
COUNTIES ‑- CITIES AND TOWNS ‑- MUNICIPAL CORPORATIONS ‑- LEGISLATURE ‑- EXPENDITURES OF COUNTY, CITY OR OTHER MUNICIPAL FUNDS FOR LOBBYING
(1) Neither the state public disclosure law (chapter 42.17 RCW) nor any other statute prohibits or restricts a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150; however, such a person may only be employed pursuant to specific legal authority to expend municipal funds for lobbying purposes ‑ either in the form of a state statute or, in the case of a first class or other charter city, code city or charter county, appropriate local legislation.
(2) Only a municipal corporation or political subdivision which is thus authorized to expend its funds for lobbying purposes may, in turn, authorize its officers or employees to appear and testify at municipal expense before a committee of the legislature in support of or opposition to proposed or pending legislation.
(3) Nothing in the state public disclosure law (chapter 42.17 RCW) purports to restrict the ability of any committee or member of the state legislature to seek information or opinions from officers or employees of a municipal corporation or political subdivision.
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January 21, 1976
Honorable Lowell Peterson
State Senator, 40th District
Concrete, Washington 98237
Cite as: AGO 1976 No. 3
By letter previously acknowledged you have requested our opinion on several questions pertaining to legislative lobbying by the officers or employees of municipal corporations or political subdivisions. We paraphrase the [[Orig. Op. Page 2]] questions here to be answered as follows:1/
(1) Does the state public disclosure law (chapter 42.17 RCW) or any other statute prohibit or restrict a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150?
(2) Is it lawful for a municipal corporation or political subdivision to authorize its officers or employees to appear and testify before a committee of the legislature regarding proposed or pending legislation?
(3) To what extent do the provisions of the public disclosure law (chapter 42.17 RCW) restrict or impair the ability of a state legislator to discuss with, or request the advice and opinions of, the officers or employees of a municipal corporation or political subdivision?
The state public disclosure law, which originated as Initiative No. 276, is now codified as chapter 42.17 RCW. Insofar as this law regulates legislative lobbying activities, the first portion of it to be noted is the definition of "lobbying" which appears in RCW 42.17.020(18) as follows:
"'Lobby' and 'lobbying' each 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, [[Orig. Op. Page 3]] chapter 34.04 RCW and chapter 28B.19 RCW."
Although the law contains, in RCW 42.17.190, an express prohibition against any expenditure ofstate funds for lobbying "unless expressly authorized by law," no similar prohibition is to be found in the law with respect to the funds of municipal corporations or political subdivisions. This does not, however, mean that those local units of government are legally free to engage in legislative lobbying activities.
In a line of cases decided long before the passage of Initiative No. 276 at the 1972 state general election, the Washington supreme court has determined it to be contrary to public policy, in the absence of a specific legal authorization, for any public agency to expend its funds to lobby for the passage or defeat of legislation. See,Port of Seattle ex rel. Dunbar v. Lamping, 135 Wash. 569, 238 Pac. 615 (1925);State ex rel. Rice v. Bell, 124 Wash. 647, 215 Pac. 326 (1923); andState ex rel. Port of Seattle v. Sup'r Ct., 93 Wash. 267, 160 Pac. 755 (1916). As was explained by the court inBell:
"Obviously, to permit public moneys to be used in an effort to influence the action of representatives of the people, whether in Congress or in the legislature, is contrary to sound public policy, and in the absence of express statutory authorization, no such authority will be implied." (Emphasis supplied.)
Likewise, on the basis of these cases this office has also issued several opinions similarly indicating a ban on publicly funded lobbying activities by state agencies and municipal officials without express authority. See, e.g., opinions dated March 4, 1969, to State Senator Elmer C. Huntley and August 28, 1969, to State Auditor Robert V. Graham, copies enclosed.
In the case of most municipalities, this requisite authorization to expend funds for lobbying purposes must come from the legislature itself. See, e.g., the twoPort of Seattle cases cited above. Where, however, the municipal corporation involved is a first class or other charter city,2/ a [[Orig. Op. Page 4]]
charter county3/ or a code city within the meaning of the optional municipal code (Title 35A RCW), the legal power to lobby may, instead, be granted by means of an ordinance or resolution passed by the legislative authority of the municipality involved. This is so because such municipalities have been held to possess within their respective jurisdictions the same legislative authority as that possessed by the legislature itself, subject only to those limitations imposed by the constitution or conflicting acts of the legislature, or by the provisions of their own charters, if any. See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein.4/
Thus, in other words, in the case of a first class or other charter city, a charter county or a code city, public fundsmay be used for the purposes of lobbying activities even without a specific statutory authorization from the legislature ‑ so long as the activities involvedhave been authorized, at the local level, by an appropriate city or county ordinance or other equivalent local legislation. Conversely, it would take affirmative action by the legislature to remove the existing distinction between those classes of municipalities which can expend their funds for lobbying on the basis of a local legislative enactment and those municipalities which cannot do so. There is, however, no constitutional barrier to the expenditure of public funds in a proper manner for the purpose of seeking to influence the passage or defeat of legislation ‑ and thus, in the final analysis, the question of whether, and to what extent, to grant this authority to those classes of municipalities which still rely upon the state legislature for their powers is purely a policy question to be decided by the legislature itself.
With the foregoing in mind we may now turn to your first question which, repeated for ease of reference, is as follows:
[[Orig. Op. Page 5]]
Does the state public disclosure law (chapter 42.17 RCW) or any other statute prohibit or restrict a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150?
A direct answer to this question would be in the negative. Neither chapter 42.17 RCW nor any other existing statute prohibits or restricts a political subdivision from employing a lobbyist and registering him as such in accordance with RCW 42.17.150, the basic registration requirement of the law. Because of the above outlined supreme court decisions, however, this mere lack of a statutory prohibition does not mean that lobbyists may legally be employed by any and all classes of municipal corporations. Instead, in each instance that question will have to be determined on the basis of the particular statutes governing the class of municipality involved5/ or, if it is a first class or other charter city, a charter county, or a code city, on the basis of the charter or ordinances of the municipality itself.
If the power to expend municipal funds for lobbying purposes can be found in the statutes, charter provisions or ordinances relating to a given municipal corporation or political subdivision, then it will follow that those funds may be utilized to employ either a full time or part time lobbyist. If a municipal corporation may lawfully expend its funds to lobby, it will have the implied power to employ such means as are necessary to carry out that purpose. See,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); also, 63 Am.Jur.2d, Public Officers, § 265. But if it does so, the municipality will be required to make sure that the person or persons thus employed are registered as lobbyists under RCW 42.17.1506/ [[Orig. Op. Page 6]] unless they are excused from registration by reason of one or more of the exemption provisions contained in RCW 22.214.171.124/ See, in this regard, RCW 42.17.220 which reads as follows:
[[Orig. Op. Page 7]]
"It shall be a violation of this chapter for any person to employ for pay or any consideration, or pay or agree to pay any consideration to, a person to lobby who is not registered under this chapter except upon condition that such person register as a lobbyist as provided by this chapter, and such person does in fact so register as soon as practicable."
The term "person" is expressly defined in RCW 42.17.020(21) to include, among others, any ". . . public or private corporation, association, federal, state or local governmental entity or agency however constituted, . . ." Consequently, a municipal corporation which has the authority to employ, and does employ, a lobbyist will thereby not only have the authority but the duty as well to cause such lobbyist to register and report to the extent that such registration and reporting are required of other lobbyists by the applicable provisions of the public disclosure law.
This answer to your first question is largely determinative of your second question (as above paraphrased) as well. Only a municipal corporation or political subdivision which is authorized (in the manner above explained) to expend its funds for lobbying purposes may authorize its officers or employees to appear and testify at municipal expense before a committee of the legislature in support of or opposition to proposed or pending legislation.
Your third question, repeated for ease of reference, asks:
To what extent do the provisions of the public disclosure law (chapter 42.17 RCW) restrict or impair the ability of a state legislator to discuss with, or request the advice [[Orig. Op. Page 8]] and opinions of, the officers or employees of a municipal corporation or political subdivision?
Nothing in the public disclosure law or in any other statute purports to restrict the ability of any committee or member of the state legislature to seek information or opinions from any one. The power of the legislature in that respect is necessarily broad, as will be seen from the following provisions of RCW 44.16.010:
"Every chairman or presiding member of any committee of either the senate or house of representatives, or any joint committee of the senate or house of representatives, which, by the terms of its appointment, shall be authorized to send for persons and papers, shall have power, under the direction of such committee, to issue compulsory process for the attendance of any witness within the state whom the committee may wish to examine."8/
[[Orig. Op. Page 9]]
Thus, whatever difficulties a member or committee of the legislature may experience in obtaining information or opinions from the officers or employees of a municipal corporation should not be viewed as stemming from either Initiative No. 276 or from any lack of authority on the part of the legislature to solicit such communications. Instead, any such difficulties will be the result of a lack of legal authority on the part of the officer or employee to provide such assistance at the expense of his or her employing municipality. If expenses will be incurred in connection with the activities required to supply the information or opinions requested, therefore, the requesting legislator or committee may well find itself in a position of having to defray those expenses rather than looking either to the municipal officer or employee or the municipal corporation by which he is employed to do so. Accord,Port of Seattle ex rel. Dunbar v. Lamping,supra, at p. 574.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/An additional question contained in your request, dealing with the reportability of certain kinds of communications between individual legislators and their constitutents under RCW 42.17.170, will not be covered in this opinion because of our long-standing policy of refraining from dealing, in an attorney general's opinion, with any questions which are involved in pending litigation before the courts ‑ in this instance,State v. Seattle First National Bank et al., King County Commrs., No. 804180.
2/Wash. Const., Article XI, § 10.
3/Wash. Const., Article XI, § 4.
4/See, also, AGO 1975 No. 18 [[to Robert L. Charette, State Representative on August 12, 1975]], AGLO 1973 No. 85 [[to Robert K. Leick, Prosecuting Attorney, Skamania County on July 27, 1973, an Informal Opinion, AIR-73585]], AGO 1972 No. 24 [[to Municipal Research Council on October 25, 1972]]and letter opinion dated October 7, 1971, to the King county prosecuting attorney [[to Christopher T. Bayley an Informal Opinion, AIR-71680]].
5/In the absence of some form of general legislative authorization such as we have above outlined.
6/". . . (1) Before doing any lobbying, or within thirty days after being employed as a lobbyist, whichever occurs first, a lobbyist shall register by filing with the commission a lobbyist registration statement, in such detail as the commission shall prescribe, showing: . . ." certain described information.
7/"The following persons and activities shall be exempt from registration and reporting under RCW 42.17.150, 42.17.170, 42.17.190 and 42.17.200:
"(1) Persons who limit their lobbying activities to appearance before public sessions of committees of the legislature, or public hearings of state agencies.
"(2) News or feature reporting activities and editorial comment by working members of the press, radio, or television and the publication or dissemination thereof by a newspaper, book publisher, regularly published periodical, radio station, or television station.
"(3) Lobbying without compensation or other consideration: Provided, Such person makes no expenditure for or on behalf of any member of the legislature or elected official or public officer or employee of the state of Washington in connection with such lobbying. Any person exempt under this subsection (3) may at his option register and report under this chapter.
"(4) The governor.
"(5) The lieutenant governor.
"(6) Except as provided by RCW 42.17.190(1), members of the legislature.
"(7) Except as provided by RCW 42.17.190(1), persons employed by the legislature for the purpose of aiding in the preparation and enactment of legislation.
"(8) Except as provided by RCW 42.17.190 elected state officers, state officers appointed by the governor, subject to confirmation by the senate, and employees of any state agency."
8/To the extent that persons are "employed" by a committee or member of the legislature to assist in the legislative process, reports of such employment must be filed with the public disclosure commission. RCW 42.17.190, as amended by § 12, chapter 294, Laws of 1975, 1st Ex. Sess., provides in pertinent part as follows:
"(1) Every legislator and every committee of the legislature shall file with the commission quarterly reports listing the names, addresses, and salaries of all persons employed by the person or committee making the filing for the purpose of aiding in the preparation or enactment of legislation or the performance of legislative duties of such legislator or committee during the preceding quarter. The reports shall be made in the form and the manner prescribed by the commission and shall be filed between the first and tenth days of each calendar quarter: Provided, That the information required by this subsection may be supplied, insofar as it is available, by the chief clerk of the house of representatives or by the secretary of the senate on a form prepared by the commission."
However, that provision appears to have no application to persons who are not actually hired by a committee or legislator as, for instance, legislative employees.