AGO 1979 No. 3 - Feb 16 1979
OFFICES AND OFFICERS ‑- STATE ‑- THE EVERGREEN STATE COLLEGE ‑- SCHOOLS AND COLLEGES ‑- POLITICAL PARTIES ‑- USE OF CAMPUS FACILITIES FOR CERTAIN POLITICAL OR OTHER ACTIVITIES
(1) The facilities of a state college or university may be used for a candidates' forum to which candidates for elective office would be invited on a nondiscriminatory basis to appear on campus to present their views and respond to questions from the audience, which forum would be sponsored by the student body or some other campus group and would involve no charge to the candidates for attendance or for use of the facilities.
(2) The facilities of a state college or university may be used for the conduct of a political party convention on campus provided that the political party involved actually rents the facilities from the college pursuant to a legitimate lease or rental agreement.
(3) A state college or university may allow student campus groups to sponsor meetings involving organizations such as the "Crab Shell Alliance" group opposing the Trident Base at Bangor and the "Greenpeace" group opposing nuclear power plants, utilizing the public facilities at the college as a forum for such organizations to espouse their beliefs.
(4) Assuming personal hand delivery of the materials outside of normal working hours, and assuming no use of campus mail service or other public facilities, persons may distribute campaign literature on campus so long as the activities in question do not involve the solicitation of contributions to be used for partisan political purposes in violation of RCW 41.06.250(1).
(5) Assuming that the activity takes place outside of working hours and in public areas of the campus rather than in offices where business is being conducted, a person may go on campus and solicit political contributions to be used for a campaign for some nonpartisan public office or in connection with a ballot proposition such as an initiative, referendum or proposed state constitutional amendment; where, however, the object of the solicitation is to obtain contributions for partisan political purposes, the statutory prohibition of RCW 41.06.250(1) applies except to the extent it conflicts with applicable federal law prohibiting interference with the mails.
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[[Orig. Op. Page 2]]
February 16, 1979
Honorable Daniel J. Evans
The Evergreen State College
Olympia, Washington 98505
Cite as: AGO 1979 No. 3
Dear President Evans:
By letter previously acknowledged you requested our opinion on several questions regarding the legality of certain political or other activities on the campus of The Evergreen State College. We will state those questions (as paraphrased), together with our answers, within the body of the analysis below.
First you have asked:
May college facilities be used for a candidates' forum to which candidates for elective office would be invited on a nondiscriminatory basis to appear on campus to present their views and respond to questions from the audience, which forum would be sponsored by the student body or some other campus group and would involve no charge to the candidates for attendance or for the use of the facilities?
We answer this question in the affirmative. In doing so, we begin by noting the following provision of RCW 42.17.130:
"(1) No elective official nor any employee of his office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition. Facilities of public office or agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the [[Orig. Op. Page 3]] office or agency: PROVIDED, That the foregoing provisions of this section shall not apply to those activities which are part of the normal and regular conduct of the office or agency."
We have said on several previous occasions that this statute ". . . is basically a codification of preexisting common-law principles forbidding or restricting the use of public funds for certain purposes." See,e.g., AGLO 1976 No. 43 (copy enclosed) at page 4. Those principles were recognized in this state long before the passage of Initiative No. 276 in 1972, of which RCW 42.17.130 is a part.
The threshold issue is whether this statute applies to The Evergreen State College (hereinafter TESC). Unquestionably, the various state institutions of higher learning, created by the legislature and supported by state funds, are state agencies. Centralia College Education Ass'n v. Board of Trustees of Comm. Col. Dist. No. 12, et al., 82 Wn.2d 128, 508 P.2d 1357 (1973). TESC's governing body is a board of trustees appointed by the Governor. RCW 28B.40.100. The board, in turn, employs the president and other administrators. RCW 28B.40.120(2). It therefore seems clear that RCW 42.17.130 applies to TESC as a state agency, to the board of trustees as persons appointed to a public office or agency, and to administrative personnel as employees of such office or agency.
Next, by the very terms of your question itself, it appears clearly that a ". . . use of . . . the facilities of a public office or agency . . ." would here be involved. Those facilities would undoubtedly include an appropriate assembly hall together with lighting, heat, water, security and the like‑-resulting in a measurable expenditure of public funds. Accord, WAC 390-04-040 by which the Public Disclosure Commission has specifically defined "use of facilities" for the purposes of RCW 42.17.130,supra.
This does not mean, however, that the prohibitory language of the statute therefore necessarily applies. As we have also said on previous occasions, the proviso to the statute must also be characterized as a codification of preexisting common law principles insofar as it exempts from the statutory prohibition those activities which are a part of the "normal and regular conduct" of the office. See AGLO 1976 No. 43 at page 4; AGLO 1976 No. 23 at page 3; and AGO 1973 No. 26 at page 5 (copies enclosed). Accordingly, to determine whether [[Orig. Op. Page 4]] the prohibition applies in the case here posited it is next necessary to determine whether the operation of a candidates' forum under the conditions described would be a part of the "normal and regular conduct of the office or agency."
When previously faced by this question, we have applied a three‑part test to determine whether the activity is within the proviso exempting normal and regular conduct. See,e.g., AGLO 1976 No. 43, supra. To paraphrase the test as there stated, we have asked:
(a) Is the conduct prohibited by any law other than the main clause of RCW 42.17.130 or its common law counterpart?
(b) If not, is the conduct lawful in the sense that it is, or has been, actually authorized or permitted by or pursuant to law, either expressly or by necessary implication?
(c) Does the conduct constitute a normal or usual use of the public facilities of the agency involved as opposed to an extraordinary though lawful activity?
Insofar as part (a) of this test is here concerned, the state constitution, in Article VII, § 1 (Amendment 14), requires that public funds be spent for public purposes only. Accord,State ex rel. Collier v. Yelle, 9 Wn.2d 317, 115 P.2d 373 (1941). In the past, we have advised that expenditures by a state institution of higher education, if made on a selective basis directly in support of or in opposition to a given individual's candidacy for office, would not be for a public purpose. See AGLO 1976 No. 43,supra, at page 5. We have said that such expenditures could not be justified merely by labeling them as "in aid of an overall educational objective." Conversely, however, the expenditure of state funds on a nonselective basis in aid of all candidates for a given office could be so structured as to meet the public purpose requirements of the state constitution. Accord, our letter opinion dated April 3, 1974, to State Representative Jeff Douthwaite (copy enclosed) and see also, WAC 174-136-011(4), quoted below.
As for the second part of the "normal and regular conduct" test, it is necessary to determine whether the conduct is [[Orig. Op. Page 5]] lawful in the sense that it is actually authorized or permitted pursuant to law, either expressly or by implication. This question relates to two parts of the factual situation posed: First, is it lawful for TESC, through its trustees and administration, to allow a candidates' forum on campus; and second, is it lawful for such a forum to be sponsored by a student association or organization?
With regard to the first issue we turn to RCW 28B.40.120 which, in part, states that the board of trustees "shall have full control of the state college and its property of various kinds." RCW 28B.40.120(1). This statute further provides that the board may
". . . promulgate such rules and regulations, and perform all other acts not forbidden by law, as the board of trustees may in its discretion deem necessary or appropriate to the administration of the college."1/
Pursuant to its "extensive and quite general powers," Good v. Associated Students, 86 Wn.2d 94, 97, 542 P.2d 762 (1975), the board has promulgated chapter 174-136 WAC, among the provisions of which is WAC 174-136-011(4) which reads as follows:
"College facilities may be used on a nondiscriminatory basis for the purpose of political campaigning by or for candidates who have filed for public office when space is provided to the candidate or party on a rented basis at rates the same as those charged to nonpolitical activities, or when sponsored as a public service by the college or its students, faculty or staff."
Thus, under this regulation, the use of college facilities for political campaigning by candidates who have filed for public office is subject to certain limits;i.e., (1) the availability of facilities on a rental basis must be nondiscriminatory and (2) where no rent is charged, the appearance must be sponsored by members of the student body, faculty, or staff.
[[Orig. Op. Page 6]]
Finally, it seems clear that both a public purpose and TESC's educational mission are served when political ideas, like ideas from other areas of social concern, are aired in the atmosphere of the college community. It thus seems to us that such political functions, coupled with regulations designed to ensure their proper conduct, are appropriate to the administration of the college. "The college classroom with its surrounding environs is peculiarly the marketplace of ideas. . . ." Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (Powell, J.).
Next let us consider the related question of whether student sponsorship of such a forum is lawful. This issue was addressed in a related context inGood v. Associated Students, supra. Like the University of Washington regents in that case, TESC trustees are subject to the provisions of chapter 28B.15 RCW which directs them to collect a services and activities fee. The funds thus raised are to be used "for the express purpose of funding student activities and programs. . . ." RCW 28B.15.041. Within that overall limitation of purpose, however, the board "has been granted broad discretion as to how such fees are to be used." 86 Wn.2d at 97. Basing its decision on this statutory grant of discretion the court in the Good case upheld the board's authority to permit student association expenditures to present and sponsor campus speakers and similar programs.
By analogy we here conclude that if sanctioned by the board of trustees or its delegee, pursuant to properly promulgated regulations which ensure that the function will take place on a nondiscriminatory basis as a part of the institution's broad educational mission, the sponsorship of such a candidates' forum as here contemplated by members of a student association or organization in the college community would be lawful.
The remaining issue of whether such an activity would be a usual use of college facilities rather than an extraordinary though lawful use is easily answered. In AGO 1973 No. 26 we described the lawfulness of the use of public school facilities for political meetings as "axiomatic" where such use was expressly authorized by statute.2/ While no comparable express statute [[Orig. Op. Page 7]] exists in the present case, it is reasonable to find analogous authority by implication within the broad powers granted governing boards of state institutions of higher education. Such implication comports with the
". . . traditional need and desirability of the university to provide an atmosphere of learning, debate, dissent, and controversy. . . .
"When a student enrolls at a university he or she enters an academic community‑-a world which allows the teaching, advocacy and dissemination of an infinite range of ideas, theories and beliefs. They may be controversial or traditional, radical or conformist. But the university is the arena in which accepted, discounted‑-even repugnant‑-beliefs, opinions and ideas challenge each other. . . ."3/
In conclusion, for the foregoing reasons it is our opinion that conduct of a candidates' forum such as is contemplated by your first question‑-where candidates for public office would be invited on a nondiscriminatory basis by members of the sponsoring student association or organization to appear‑-would be a part of the "normal and regular conduct of the office or agency;" such a forum would therefore be exempt from the prohibition of RCW 42.17.130 by the last clause thereof. We thus may answer your question, as above stated, in the affirmative.
Next you have asked:
May political party conventions be held on campus assuming the party involved actually rents the facility from the college?
We also answer this question in the affirmative even though, unlike the situation involved in your first question where the college would sponsor a candidates' forum for the education of a campus audience regarding public affairs, the [[Orig. Op. Page 8]] college here would merely rent a facility to a political organization for its own use.
Nevertheless, the board of trustees has broad authority to manage the property of the college. RCW 28B.40.120,supra. Subsection (1) if that statute, as we have seen, gives the trustees "full control of the state college and its property of various kinds." And, inState ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952) the court, in considering an alalogous grant of broad discretion to the board of regents to the University of Washington, concluded that the regents could exercise those powers expressly granted, or necessarily or fairly implied in, or incident to the powers expressly granted.
Even more to the point, this office has long advised that the same statute constitutes a grant of authority to rent facilities. For example, on October 10, 1956, in an opinion (copy enclosed) to the Vice President of the University of Washington we responded to the question of whether the Board of Regents could rent the facilities of the university to a group for the purpose of an open air religious meeting by saying that ". . . there is no doubt that the board of regents has the right to rent these facilities. . . . The renting of the University of Washington Stadium is a matter of administrative policy, solely within the purview of the board of regents. . . ."
Later, in AGO 59-60 No. 75 (copy enclosed) we similarly said:
"We think it is clear . . . that the legislature has delegated to the board of regents full discretionary power over the use to be made of the university property and facilities subject only to legislative review, and that the exercise of such discretion will not meet court interference in the absence of abuse. . . ."
We began the present analysis by noting that the legislature has granted the trustees of The Evergreen State College "full control of the state college and its property of various kinds." RCW 28B.40.120(1),supra. And like the regents in AGO 59-60 No. 75, these trustees have adopted a facilities usage policy, chapter 174-136 WAC, which states in pertinent part:
[[Orig. Op. Page 9]]
"(1) Preference in scheduling space for free use will be given to the college's regular instructional, research, public service, support or college activity programs.
"(2) The Director of Facilities or his/her designee shall decide whether the proposed use of the space relates to a college function. Sponsors of all other events or appearances will be charged for the use of college facilities in accordance with the schedule of charges established and published by the Business Manager.
". . .
"(5) Special services (e.g., extra janitorial, security, audio visual equipment, coffee) related to special events or appearances will be charged to the user."4/
Therefore, it must be concluded that the Board of Trustees of The Evergreen State College has exercised its discretion to make available on a rental basis the facilities of the college when not needed for the regular college activities. Moreover, we do not believe that, having so acted, the trustees could now exclude political parties from seeking to rent such facilities for the purpose of holding conventions there. The general rule of law applicable in this respect is that ". . . while a state is under no duty to make its public facilities available for private purposes, it it elects to do so, it must make them available on a nondiscriminatory basis.. . ." Hillside Community Church v. Tacoma, 76 Wn.2d 63, 67, 455 P.2d 350 (1969). (Emphasis supplied). Based upon this principle, it has been the consistent position of this office in advising various educational institutions that all outside groups must be treated equally in terms of entitlement to renting facilities of the college on a "time and space available" basis once the facilities are made available to the public.
[[Orig. Op. Page 10]]
Your third question asks:
May the college allow student campus groups to sponsor meetings involving organizations like the "Crabshell Alliance" group opposing the Trident base at Bangor and the "Greenpeace" group opposing nuclear power plants, which meetings use the public facilities at the college as a forum for such organizations to espouse their beliefs?
We also answer this question in the affirmative as, however, hereinafter qualified. In so doing we would first point out that RCW 42.17.130, supra, has no application in this case since that statute only restricts the use of public facilities in connection with campaigns for public office or ballot propositions.
As stated above, the Washington court has ruled (in a decision we regard as directly on point) that where the dissemination of ideas is fostered through such sponsorship as you here posit, the public purposes of institutions of higher education are being served. Good v. Associated Students, supra, at p. 105. Of course, such sponsorship must "not have the effect of imposing upon the student the acceptance or practice of religious, political or personal views repugnant to him or chilling his exercise of his constitutional rights." Id., quotingVeed v. Schwartzkopf, 353 F.Supp. 149 (D.Neb. 1973), aff'd mem. 478 F.2d 1407 (8th Cir. 1973), cert. denied, 414 U.S. 1135 (1974). But with this general qualification in mind it is our opinion that student organizations may lawfully sponsor campus appearances by representatives of such groups as you here describe.
Your fourth question asks:
May persons distribute campaign literature on campus, assuming personal hand delivery of the materials outside of normal working hours and further assuming no use of campus mail services or other public facilities?
We also answer this question in the affirmative as qualified below.
[[Orig. Op. Page 11]]
To begin with, the two stipulated assumptions stated in your question are sufficient to remove the described activities from the prohibition of RCW 42.17.130,supra. Moreover, so long as the persons distributing the campaign literature are not, at the same time, soliciting contributions to be used for partisan political purposes, there is no other statutory prohibition which would apply. With that in mind, then, our ultimate answer to the fourth question is qualifiedly in the affirmative. Assuming personal hand delivery of the materials outside of normal working hours, and assuming no use of campus mail service or other public facilities, persons may distribute campaign literature on campus so long as the activities in question do not involve the solicitation of contributions to be used for partisan political purposes in violation of RCW 41.06.250(1). See, however, our response to question (5) below with respect to the solicitation issue.
Your final question refers to this last cited statute and inquires as follows:
In the light of RCW 41.06.250(1), may a person solicit political contributions on campus, assuming it takes place outside of working hours and in public areas of the campus rather than in offices where business is being conducted?
RCW 41.06.250(1) originated as part of a state‑wide initiative establishing civil service for state employees. See, § 25, chapter 1, Laws of 1961 (Initiative No. 207). As most recently amended by § 1, chapter 136, Laws of 1974, 1st Ex. Sess., this statutory provision reads as follows:
"(1) Solicitation for or payment to any partisan, political organization or for any partisan, political purpose of any compulsory assessment or involuntary contribution is prohibited: PROVIDED, HOWEVER, That officers of employee associations shall not be prohibited from solicitating dues or contributions from members of their associations. No person shall solicit on state property or property of a political subdivision of this stateany contribution to be used for partisan, political purposes." (Emphasis supplied)
[[Orig. Op. Page 12]]
At the outset, it will readily be noted that this statute only prohibits the solicitation of contributions for partisan political purposes. Therefore, unlike RCW 41.17.130,supra, it in no way restricts the ability of a person to solicit, on state or other public property, contributions to be used exclusively for some nonpartisan electoral campaign. Accordingly, to that extent, our answer to your fifth question is in the affirmative. Assuming that the activity takes place outside of working hours and in public areas of the campus rather than in offices where business is being conducted (cf., RCW 42.17.130), a person may go on campus and solicit political contributions to be used for a campaign for some nonpartisan public office or in connection with a ballot proposition such as an initiative, referendum or proposed state constitutional amendment.
On the other hand, it is equally clear that a state college campus is "state property" for the purposes of RCW 41.06.250, supra. Moreover, of equal importance is the fact that although contained in the state civil service law, the provision is unrestricted in terms of the status of the person or persons involved in the solicitation activity. Accord, our letter opinion dated September 16, 1968, to then State Senator Frank Atwood, copy enclosed.
It is further notable that in 1974 an attempt by the legislature to narrow the provision's breadth failed because of a significant gubernatorial veto. As passed by both houses of the legislature, House Bill No. 474 contained the following amendment to RCW 41.06.250(1):
". . . No ((
person)) elected official or employee of the state or a political subdivision thereof shall solicit on state property or property of a political subdivision of this state any contribution to be used for (( partisan,)) political purposes."
In your then existing capacity as governor, however, you vetoed this amendment for the following stated reasons:
". . .
"One amendatory item in section 1 of RCW 41.06.250 would ease the present restriction of the law againstall persons from [[Orig. Op. Page 13]] soliciting on state property by confining the restriction to only elected officials or employees of the state and its political subdivisions. The consequences of this change would seem to be highly questionable and potentially disruptive. Thus, the door would be open to political solicitation not only by representatives of elected officials but also by any number of party or campaign officials and workers. For these reasons, I have determined to veto that item.
"A second item in the same section broadens the restriction against solicitations on public property to include contributions for any political purposes. The existing language restricts only contributions for partisan political purposes. I believe this change is unnecessarily broad in its effect and rules out the opportunity for many public employees to contribute to issue‑oriented political campaigns. Accordingly, I have vetoed the referenced item. With the foregoing exceptions, the remainder of House Bill No. 474 is approved." (Emphasis supplied)
Assuming, as you thus did, that the aim of House Bill No. 474 was to narrow the scope of the prohibition and not to expand it, it necessarily follows that the term "person" (in the phrase "no person shall solicit") means any person‑-and not merely an individual who is a classified state employee. Thus, although the provisions of chapter 41.06 RCW are, for the most part, not applicable to noncivil service state employees (see RCW 41.06.070) they apply in this one respect to all such employees and to all other "persons" as well. Whether effective or not, the purpose of this one provision appears to have been to guard against the imposition of partisan political pressures upon civil service employees through the simple expedient of an unqualified prohibition against any person soliciting partisan political contributions on any state or local governmental property. And you, as governor, concurred‑-hence, your veto. Moreover, as explained by our state supreme court some years ago in Shelton Hotel Co., Inc. v. Bates, 4 Wn.2d 498, 506, 104 P.2d 478 (1940):
[[Orig. Op. Page 14]]
"When referring to what the legislature intended, we must not forget that the governor, when acting upon bills passed by both houses of the legislature, is a part of the legislature, and acting in a legislative capacity, and we cannot therefore consider the intent of the house and the senate apart from the intent of the governor. . . ."
Therefore, on this aspect of your final question we must respond in the negative. It must be the position of this office that where the object of the solicitation is to obtain contributions for partisan political purposes, the statutory prohibition of RCW 41.06.250(1) applies.5/ In so concluding, however, we should also advise you of one notable exception. Responding to a subsidiary question, it is our opinion that where the United States Postal Service is used [[Orig. Op. Page 15]] in the delivery of campaign materials to persons residing on campus, the prohibition of RCW 41.06.250(1),supra, would be inoperative to the extent that it conflicts with applicable federal law prohibiting interference with the mails. See, e.g., 18 U.S.C. § 1702 which protects the mail from unauthorized opening until it is actually received by the addressee. Accord, the supremacy clause of the United States Constitution, Article VI, clause 2. Moreover, this protection is not ended by postal delivery to any intermediate addressee (such as the college mail room) but, instead, extends until delivered to the ultimate addressee. See,United States v. Ashford, 403 F.Supp. 461 (8th Cir., 1975). Therefore, even though state employees working in the campus mail service would actually handle such delivery, in our opinion, the federal laws where applicable would also remove such solicitation by mail from the prohibition of RCW 42.17.130,supra.
This completes our consideration of your several questions. We trust that the foregoing will be of assistance to you.
Very truly yours,
LARRY R. SCHREITER
Assistant Attorney General
*** FOOTNOTES ***
1/RCW 28B.40.120(11). Furthermore, such powers as the board has may be delegated to the president or his designee by board resolution. RCW 28B.10.528.
2/See RCW 28A.58.105(2).
3/Good v. Associated Students, supra, at pp. 104-105.
4/WAC 174-136-016 and see also, WAC 174-136-011(4), supra.
5/We acknowledge, in thus responding to this question, that constitutional objections could well be lodged against RCW 41.06.250(1), supra, in its present form. This office is not, however, at liberty to declare a duly enacted state statute unconstitutional in an attorney general's opinion. Perhaps the most succinct explanation of this longstanding policy appears in AGO 1945-46 p. 269 as follows:
". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts. Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."