AGLO 1970 No. 1 - Jan 9 1970
- - - - - - - - - - - - -
January 9, 1970
Honorable Daniel J. Evans
Governor of the State of Washington
Olympia, Washington 98501
Cite as: AGLO 1970 No. 1
Attention: !ttMr. James M. Dolliver
This is written in response to your recent request for our opinion on a question pertaining to the relationship between two statutes which were passed by the 1969 legislature; namely, chapters 188 and 234, Laws of 1969, Ex. Sess. We paraphrase the issue raised by your request as follows:
Are the provisions of RCW 42.21.060, as amended by § 1, chapter 188, Laws of 1969, Ex. Sess., applicable to persons who are "state employees" as defined in § 13, chapter 234, Laws of 1969, Ex. Sess.?
We answer this question in the negative for the reasons set forth below.
The chronology of the events leading up to the 1969 legislature's passage of the two statutes to which you have referred begins some four and one‑half years ago with the legislature's passage of an act commonly known as the "1965 public officials' code of ethics act."1/ The essential coverage of this act (as we pointed out in AGO 65-66 No. 69 [[to Department of Licenses, Securities Division on January 18, 1966]], copy enclosed) was governed by a broad definition of the term "public official" which appeared in § 2 (RCW 42.21.020) as follows:
"'Public official' means every person holding a position of public trust in or under [[Orig. Op. Page 2]] an executive, legislative or judicial office of the state and includes judges of the superior and supreme courts, members of the legislature together with the secretary and sergeant at arms of the senate and the clerk and sergeant at arms of the house of representatives, elective and appointive state officials and such employees of the supreme court, of the legislature, and of the state offices as are engaged in supervisory, policy making or policy enforcing work."
Such persons as came within this definition were prohibited by various provisions of the act from using their official positions to secure special privileges,2/ from disclosing confidential information gained by reason of their positions,3/ and from accepting outside employment which might induce such disclosures.4/ In addition, all such persons, regardless of their particular office or employment, were required by § 6 of the act (RCW 42.21.060) to make periodic written reports (filed with the secretary of state) of certain financial interests and activities; namely:
"(1) The name of any corporation, firm or enterprise subject to the jurisdiction of a regulatory agency in which he has a direct financial interest of a value in excess of one thousand dollars: PROVIDED, That policies of insurance issued to himself or his spouse are not to be considered financial interests;
"(2) Every office or directorship held by him or his spouse in any corporation, firm or enterprise which is subject to the jurisdiction of a regulatory agency; and
[[Orig. Op. Page 3]]
"(3) The name of any person, corporation, firm, partnership, or other business association from which he receives compensation in excess of one thousand five hundred dollars during the preceding twelve month period by virtue of his being an officer, director, employee, partner or member of any such person, corporation, firm, partnership or other business association.
"(4) As to attorneys or others practicing before regulatory agencies during the preceding twelve month period, the name of the agency or agencies and the name of the firm, partnership or association of which he is a member, partner or employee."
Speaking of this section in the light of the broad scope of the term "public official" as defined in § 2, supra, we concluded in AGO 65-66 No. 69, supra, that:
"Under § 6 of the 1965 Public Officials' Code of Ethics Act (chapter 150, Laws of 1965, Ex. Sess.), which requires 'public officials' to make regular periodic written disclosures of certain financial interests and activities, the term 'public official' includes (a) all state officers expressly mentioned in § 2 of the act, (b) all other state officials, and (c) state employees who are engaged in supervisory, policy making or policy enforcing work. The term includes, but is not limited to, appointive executive department or service agency heads, directors, assistant directors, executive secretaries, and managers; appointive members of state boards or commissions; assistant attorneys general; supervisory employees of the supreme court; and supervisory or policy making or enforcing deputies or assistants to elective officials. Any state employee believing his position is by reason of its function thus included who has any reportable financial interest or activity should file a report unless he has received reliable legal advice to the contrary." (Emphasis supplied.)
No changes in this 1965 act were made by the next ensuing (1967) legislature. However, by the first of the two 1969 statutes to which you have referred, the [[Orig. Op. Page 4]] legislature ‑ without altering the terms of its previous definition of "public official" ‑ made provision for an administrative determination by the state personnel board with regard to which state civil service employees would, henceforth, be required to make reports of their financial interests and activities. By § 1, chapter 188, Laws of 1969, Ex. Sess., § 6 of the 1965 act (RCW 42.21.060) was amended to include the following new language:
"For the purposes of this section, and this section only, the Washington state personnel board, established by RCW 41.06.110, shall adopt and promulgate rules and regulations in accordance with the standards and policies set forth in RCW 41.06.150, delineating which classified personnel employed by the state shall be required to complete and file the financial statement set forth in sections 1 and 2 of this 1969 amendatory act, as they now exist or may hereafter be amended."5/
We now must note, carefully, a specific chronological matter. This amendatory act was passed by the House of Representatives on April 12, 1969 ‑ and by the Senate on April 19. The engrossed bill was then transmitted to the governor, with a copy simultaneously being filed with the secretary of state in accordance with RCW 44.20.010.6/ It was then signed into law by the governor and, in this form, transmitted to the secretary of state on April 25, 1969.7/
[[Orig. Op. Page 5]]
However, four days earlier on April 21, the governor had acted upon the second of the two 1969 acts referred to in your request ‑ chapter 234, Laws of 1969. The enrolled bill in this case had been sent to him on April 12 (seven days before the other). As thus transmitted, the measure contained a total of forty sections and provided for the establishment of a comprehensive new code of ethical conduct for all "state employees" ‑ a term defined in § 13, as follows:
"'State employee' means any individual who is appointed by an agency head, as defined in section 4 of this 1969 amendatory act, or his designee, and serves under the supervision and authority of an agency as defined in section 3 of this 1969 amendatory act."8/
"(1) Officers and employees in the legislative and judicial branches of the state of Washington;
[[Orig. Op. Page 6]]
"(2) A reserve of the Washington National Guard, when he is not on active duty and is not otherwise a state employee."
On April 21, the governor exercised his veto power with respect to an item contained in one section (§ 18) of the bill and approved the remainder. However, because of the item veto, the bill was returned to its house of origin for recommendation,9/ and was not finally transmitted to the secretary of state and given its numerical session law designation ‑ of chapter 234, Laws of 1969, Ex. Sess., until May 14, 1969.
The provision of this act which you have cited as being in apparent conflict with the other 1969 act (chapter 188, Laws of 1969, Ex. Sess., supra) to which your question refers appears in § 36, as follows:
"NEW SECTION. Sec. 36. There is added to chapter 42.21 RCW a new section to read as follows:
"This chapter shall have no application to any person who is a state employee as defined in section 13 of the executive conflict of interest act of 1969."
Without question, "This chapter" means chapter 42.21 RCW ‑ which, of course, includes RCW 42.21.060, the financial interest reporting section of chapter 150, Laws of 1965, Ex. Sess., which was amended by § 1, chapter 188, Laws of 1969, Ex. Sess. Thus, the situation presented apparently involves the 1969 legislature having said, by one enactment, that none of the provisions of chapter 42.21 RCW should any longer apply to any "state employees" of the executive branch of government ‑ and by another that the financial interest reporting requirements of RCW 42.21.060 shall continue to apply to those classified personnel designated by the state personnel board.
Since, under RCW 41.06.070, the state classified civil service is also limited to employees of the executive branch of government,10/ the conflict between these two [[Orig. Op. Page 7]] legislative provisions is clearly existent, and the question of which enactment is to prevail must be resolved on the basis of applicable principles of statutory construction. However, before proceeding, we may note that in this instance the matter is not determined by the somewhat mechanical rule of statutory construction which is set forth in RCW 1.12.025,11/ as follows:
"If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control."
The reason that this statute is not determinative of the question at hand is, of course, that we are not here dealing with "two or more acts amending the same section of the session laws or of the official code . . ." RCW 42.21.060 was not "twice amended" by the 1969 legislative session; rather it was amended by only one act,12/ in a manner rendering it of apparent continuing applicability to certain of those persons who are "state employees" under § 13, chapter 234, Laws of 1969, Ex. Sess., supra, but who are, nevertheless, designated to file financial interest reports by the personnel board. The conflict is between this amendment and the new provision in § 36, chapter 234, Laws of 1969, Ex. Sess., to the effect that no portion of chapter 42.21 RCW shall any longer apply to any "state employees."13/
[[Orig. Op. Page 8]]
Since RCW 1.12.025 does not apply with regard to the conflict between these two 1969 statutes, we must look to judicial precedent for the appropriate analytical processes to be used in determining which of the two acts should prevail. Insofar as the cases from our own jurisdiction are concerned, the message to be derived is, simply, that the question of which of two conflicting statutes, passed by the same session of the legislature, is to prevail is a question of legislative intent. See, Commissioners of King Co. v. Davies, 1 Wash. 290, 24 Pac. 540 (1890); Heilig v. Puyallup City Council, 7 Wash. 29, 34 Pac. 164 (1893); Whitfield v. Davies, 78 Wash. 256, 138 Pac. 883 (1914); Spokane County v. Certain Lots in Spokane, 153 Wash. 462, 279 Pac. 724 (1929); State ex rel. Scofield v. Easterday, 182 Wash. 209, 46 P.2d 1052 (1935); and State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 131 P.2d 943 (1942). However, in each of these cases, one of the two conflicting acts of the same legislature had an emergency clause and the other did not14/ - and in each case the court simply took legislative intent to be that the act with the emergency clause was regarded to be of more significance and, for this reason, should prevail over the other. Unfortunately, this distinguishing feature is not present in the case at hand, so our own prior decisions are of little more than generalized assistance.
Turning, then, to cases from other jurisdictions, various approaches may be found. In some cases, a purely mechanical approach ‑ giving effect to the last act filed ‑ or, perhaps, the last act signed by the governor ‑ has been followed. See, Sutherland, Statutory Construction (3rd ed.), § 2020 (pp. 483-485); also, Spokane County v. Certain Lots in Spokane, supra, at p. 471, noting the existence of such cases. In others, such as the Illinois case of S. Buchsbaum & Co. v. Gordon, 389 Ill. 493, 59 N.E. 2d 832 (1945),15/ this approach has been rejected and ‑ consistent with what would appear to be the spirit of our own prior cases, a more generalized search for evidences of legislative intent has been made. The rule as verbalized by the Illinois court in Buchsbaum, is as follows:
"Where acts are passed at the same session, containing conflicting provisions, the whole record of the legislation will be examined in order to ascertain the legislative intent which, if ascertained, must be given effect, regardless of priority of enactment. . . .
[[Orig. Op. Page 9]]
In all cases the primary question is the intention of the legislature, rather than the technical priority of the passage of the acts."16/
Focusing in on the matter from this point of view we believe it should be concluded that the legislature's true intent, in enacting chapter 234, Laws of 1969, Ex. Sess., supra, was to establish a new, complete and comprehensive "conflict of interest" law governing ‑ to the exclusion of other laws on the same subject ‑ the ethical conduct of all "state employees" ‑ as defined in § 13, supra. This intent was not only expressed with respect to the coverage of chapter 42.21 RCW ‑ by § 36, supra ‑ but was, notably also expressed in companion sections 34, 35 and 37 of the act, which similarly exempted "state employees" from the provision of all of the other preexisting codes of ethics or conflicts of interest laws by which these persons had been covered; namely, RCW 42.20.010; RCW 86.09.286; and chapter 42.22 RCW. Thus, the basic pattern which the legislature was following was one of saying that those state employees who are governed by the new act shall be governed by it alone ‑ and not by the other and pre‑existing [[preexisting]]ethics or conflict of interest laws which had been, from time to time, passed in previous years. Consistent therewith, we answer your question, as paraphrased, in the negative.17/
At least, this is the way we see it ‑ and, accordingly, answer your question (as paraphrased) in the negative. Of course, the current session of the [[Orig. Op. Page 10]] legislature can obviously remove any doubt from the matter by the enactment of clarifying legislation.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General
*** FOOTNOTES ***
1/Chapter 150, Laws of 1965, Ex. Sess., now codified as chapter 42.21 RCW.
2/Section 3 (RCW 42.21.030).
3/Section 5 (RCW 42.21.050).
4/Section 4 (RCW 42.21.040).
5/In addition, this 1969 amendment added a further reporting requirement regarding certain real property acquisitions by "public officials."
6/This statute provides that:
"Whenever any bill shall have passed both houses, the house transmitting the enrolled bill to the governor shall also file with the secretary of state the engrossed bill, together with the history of such bill up to the time of transmission to the governor."
7/At this point, it obtained its designation as chapter 188, Laws of 1969, Ex. Sess., in accordance with RCW 44.20.020, which directs the secretary of state to number each bill which has become law "in the order in which it became law."
8/"Agency," under § 3, was defined as meaning:
"(1) The office of the governor.
"(2) Any office, department, board, commission, or other separate unit or division, however designated, of the state government, together with all personnel thereof:
"(a) Upon which the statutes confer powers and impose duties in connection with operations of either a governmental or proprietary nature; and
"(b) That has as its chief executive officer a person or combination of persons such as a commission, board, or council, by law empowered to operate it, responsible either to (i) no other public officer or (ii) the governor."
Section 4 defined "agency head" to mean:
". . . the chief executive officer of an agency, who shall be the chairman in the case of an independent establishment which is a commission, board, or committee."
9/See, Washington Constitution, Article III, § 12; the legislature did not attempt to override the governor's item veto in this case.
10/Exclusive of persons occupying a number of designated exempt positions therein.
11/Enacted as chapter 162, Laws of 1955.
12/Chapter 188, Laws of 1969, Ex. Sess.
13/Were RCW 1.12.025 to be applicable to the situation at hand, we would still have something of a problem because of the different meanings which it is possible to give to the phrase "the act last filed with the secretary of state in point of time, shall control." If this means that the last act finally filed with the secretary of state after being approved by the governor, then chapter 234, Laws of 1969, Ex. Sess., would be the last act filed in the present situation; however, if, as was suggested by this office in AGO 59-60 No. 120 [[to Gordon L. Walgren, State Senator on May 31, 1960]], this statutory language refers to the filing of a copy of the enrolled bill with the secretary of state by the legislature, simultaneous with the transmission of the original to the governor for his approval, then chapter 188 ‑ which was sent to the governor a week after chapter 234, would be the last act filed.
14/See, Article II, § 1 (Amendment 26), Washington State Constitution.
15/Followed in People ex rel. Brenza v. Fleetwood, 413 Ill. 530, 109 N.E. 2d 741 (1952).
16/See, 59 N.E. 2d at pp. 836-837.
17/This determination of legislative intent still leaves considerable meaning and effect to be given to the provisions of chapter 188, Laws of 1969, Ex. Sess., supra. All that our conclusion does is to state that this 1965 statute, as amended by the 1969 legislature, must be regarded as applying only to public officials of the legislative and judicial branches of government, together with those public officials of the executive branch who are not "state employees" within the meaning of § 13, chapter 234, Laws of 1969, Ex. Sess., supra; e.g., elected officials of the executive branch.