Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1979 No. 38 -
Attorney General Slade Gorton


Explanation of the extent to which RCW 42.17.350 and RCW 42.17.190, as amended, permit members of the Public Disclosure Commission and its staff to lobby or otherwise communicate with the legislature.

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                                                                October 16, 1979

Honorable Graham E. Johnson
Public Disclosure Commission
403 Evergreen Plaza
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 38

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on the following questions:

            (1) "To what extent does RCW 42.17.350 as amended by Chapter 294, Laws of 1975, 1st Ex. Sess., permit the members . . . of the Commission to communicate with the legislature?"

            (2) "Does RCW 42.17.190 as amended grant any additional authority to the Commission to lobby its own official concerns to the same extent as other state agencies?"

            We respond to your first question in the manner set forth in our analysis and answer your second question in the affirmative as qualified therein.



            The statutes referenced in your request originated as separate sections of Initiative 276 which, following its approval by the voters in November, 1972, became chapter 1,  [[Orig. Op. Page 2]] Laws of 1973 (now codified as chapter 42.17 RCW).  The main substantive provisions of the law embrace four distinct subjects, including "lobbying," within the overall general subject of "open government."  Fritz v. Gorton, 83 Wn.2d 275, 517 P.2d 911 (1974).

            The principal provisions dealing with lobbying, by both private and public entities, are now codified as RCW 42.17.150-42.17.230.  In addition to those substantive provisions the law contains extensive definitional, administrative and enforcement sections.  One of those administrative sections, § 35 (now codified as RCW 42.17.350), established the Public Disclosure Commission to administer and enforce the law and, among other things, prescribed the qualifications of its members and placed certain explicit restrictions upon their activities.  One of those restricted activities is lobbying.

            Your request requires us to determine the meanings of the various provisions relating to lobbying and their relationship to each other.  That determination is essentially an exercise of statutory construction.  The fundamental object of any such endeavor is, of course, to ascertain and give effect to the intent of the legislative body.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  A cardinal rule, which your questions necessarily invoke, is that all sections and parts of an act must be read together and harmonized, giving significance and effect to each part.  Publishers Forests Prods. Co. v. State, 81 Wn.2d 814, 505 P.2d 453 (1973); Miller v. Pasco, 50 Wn.2d 229, 310 P.2d 863 (1957).

Question (1):

            Your first inquiry, repeated here for ease of reference, is as follows:

            "To what extent does RCW 42.17.350 as amended by Chapter 294, Laws of 1975, 1st Ex. Sess., permit the members . . . of the Commission to communicate with the legislature?"

            For the purposes of the law in question, RCW 42.17.020(18), defines the terms "lobby" and "lobbying" to 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, chapter 34.04 RCW and chapter 28B.19 RCW."

             [[Orig. Op. Page 3]]

            The right of acitizen to lobby, as a means of petitioning his or her government, is assured and protected by the First Amendment to the United States Constitution ‑ although even that right is subject to some statutory qualifications for the common good.  Fritz v. Gorton,supra.  On the other hand, the authority of a public agency to expend public funds for lobbying is entirely statutory.  Thus, in several decisions which antedate the passage of chapter 42.17 RCW, our state supreme court applied a common law rule to the effect that public funds may not be so expended in the absence of express statutory authority.  And, as you know, the common law is the "rule of decision" in the State of Washington to the extent that it has not been modified or superseded by statute.  See, RCW 4.04.010.

            As you have been advised previously, the provisions of Initiative 276 relating to lobbying by public agencies have superseded the common law rule on that subject.  See, letter opinion (copy enclosed) from the undersigned Assistant Attorney General to you dated December 17, 1976.  Accordingly, the general statutory rule which now prevails and must be considered in discussing any other law on the subject of lobbying by a public agency is RCW 42.17.190, codifying § 19 of the initiative.

            As it was originally enacted, this section of the law contained only four subsections, rather than the five it now contains.  Subsections (1), (3) and (4) dealt only with certain reporting requirements pertaining to lobbying by state agencies while subsection (2) set forth the general substantive authority of those agencies as follows:

            "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."

            Because of its peculiar nature as a modification of the common law rule, the first proviso, unlike most provisos, has since been construed to be an expression of intent to  [[Orig. Op. Page 4]] grant substantive authority to the Public Disclosure Commission as well as other public agencies to make certain lobbying expenditures described therein.  See,e.g., our two memorandum opinions to the Public Disclosure Commission dated January 8, and January 31, 1973, respectively, copies enclosed. And, because commission members and their staff are "state officers" or "employees," this subsection, if it stood alone, would thus grant them the same legal ability as other state officers and employees to engage in the limited lobbying described therein.

            However, the various parts of the act must be read together.  Having thus liberalized the common law rule for agencies generally, the drafters of this law added a section (RCW 42.17.350) which, among other things, imposed the following special restrictions on the conduct of Public Disclosure Commission members:

            ". . . No member of the commission, during his tenure, shall (1) hold or campaign for elective office; (2) be an officer of any political party or political committee; (3) permit his name to be used, or make contributions, in support of or in opposition to any candidate or proposition; (4) participate in any way in any election campaign; or (5) lobby or employ or assist a lobbyist. . . ."  (Emphasis supplied)

            This special provision, insofar as it was inconsistent with the general rule established by RCW 42.17.190, supra, created an exception to that rule.  See, Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973).  While the purpose of the general statute (RCW 42.17.190, supra) was simply to modify the common law rule against the use of public funds for lobbying, by RCW 42.17.350, supra, the drafters placed upon commissioners a rule even more strict than the common law itself.  This rule flatly prohibited any and all lobbying by commission members with or without expenditures of public funds.  Its apparent purpose, like that of the other restrictions in the same section, was to avoid any possibility of conflict between the commissioners' duty to administer and enforce the provisions of the act ‑ on the one hand ‑ and any interests that the commissioners might have, either as individuals or public officials, on the other.

            The prohibitory language was, however, so explicit, and the penalties for violation of any provision of the act so severe,1/ that the commissioners became increasingly reluctant to respond to questions from legislators or testify at committee hearings where their responses could be interpreted as "lobbying."  Furthermore, even though the prohibition was addressed only to members of the commission (and they were so advised per the above‑referenced memoranda), there was adopted an internal policy consistent with what the commission believed to be the  [[Orig. Op. Page 5]] overall intent of the law ‑ i.e., to curtail legislative activities by their staff members as well as commissioners themselves.  See, minutes of the Public Disclosure Commission's special meeting at Port Ludlow, March 29-30, 1974.

            The legislature, evidently favoring a more liberal policy of communication between branches and agencies of government, then enacted § 23, Laws of 1975, 1st Ex. Sess., which,inter alia, added the following proviso to RCW 42.17.350,supra:

            "Nothing in this section shall prohibit the commission, or any of its members or staff on the authority of the commission, from responding to communications from the legislature or any of its members or from any state agency or from appearing and testifying at an open public meeting (as defined by RCW 42.30.030) or a hearing to adopt rules held pursuant to RCW 34.04.025 on matters directly affecting the exercise of their duties and powers under this chapter."

            As earlier noted, theusual function of a proviso is to restrain or modify the provision which immediately precedes it.  Bayha v. Public Utility Dist. No. 1, 2 Wn.2d 85, 97 P.2d 614 (1939).  True to that principle, the language of this new proviso did not by its terms grant any substantive authority to lobby, but merely stated that certain activities were not prohibited by RCW 42.17.350.

            The effect of this new provision on staff members, as we view it, was merely to clarify and possibly emphasize what the law already provided; namely, that they werenot prohibited from engaging in certain kinds of communications with the legislature.  As to commission members, however, the law was significantly changed.  Technically, the 1975 proviso created an exception to an exception; that is, a limited exception to the RCW 42.17.350 exclusion of commissioners from the general rule of RCW 42.17.190.  Thus, the nature of this 1975 enactment was actually a limited grant of authority to commissioners to lobby on behalf of the commission.  However, the proviso expressly limited this authority to lobbying "only on matters directly affecting the exercise of their duties and powers under this chapter."  It did not address the broader prohibition in RCW 42.17.350 against lobbying by individual commissioners in any other capacity or manner, and being an exception to that general prohibition, the proviso must be narrowly construed as allowing only the exceptions expressly granted therein.  In re the Monks Club, Inc.,  [[Orig. Op. Page 6]] 64 Wn.2d 845, 394 P.2d 804 (1964).  Thus, RCW 42.17.350 continued to prohibit members of the commission from lobbying or employing a lobbyist, except on behalf of the Public Disclosure Commission itself, in their official capacities.

            In summary, and in direct answer to your first question, it is therefore our opinion that the combined provisions of RCW 42.17.190 and RCW 42.17.350,supra, as amended, permit individual members of the Public Disclosure Commission, when authorized by that body, to lobby on matters directly affecting the exercise of their duties and powers under chapter 42.17 RCW as follows:

            (1) Responding to communications from the legislature or any of its members, or from any state agency;2/

             (2) Appearing and testifying at an open public meeting of a multimember governing body other than the legislature;3/

             (3) Appearing and testifying at a hearing to adopt rules pursuant to the Administrative Procedures Act, RCW 34.04.025.

             [[Orig. Op. Page 7]]

Question (2):

            Your second question, also repeated for ease of reference, is as follows:

            "Does RCW 42.17.190 as amended grant any additional authority to the Commission to lobby its own official concerns to the same extent as other state agencies?"

            Our earlier analysis in this opinion demonstrates the respective natures of RCW 42.17.190 and RCW 42.17.350 as "general" and "special" provisions having different purposes.  Decisions of our supreme court and other courts have uniformly held that a legislative intent clearly expressed in a special statute will prevail over any implication that can be gathered from a general act, where both were approved contemporaneously.  State v. Clausen, 63 Wash. 535, 116 Pac. 7 (1911); State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).

            However, where the things which an act is designed to remedy are different from those for which the prior act provides, there is no repeal by implication.  State v. McDonald, 1 Wn. App. 592, 463 P.2d 174 (1969). Accordingly, as we advised the commission in January, 1973, RCW 42.17.350, supra, cannot be construed as a general prohibition against the expenditure of Public Disclosure Commission funds for lobbying, or a restriction on the conduct of the Public Disclosure Commission or its staff as a public agency, but only a restriction on the conduct of its members.  RCW 42.17.190,supra, as we have also seen, has always permitted the Public Disclosure Commission to lobby in the same general manner as agencies which had no other express statutory authority.  True, the extent of this substantive authority in the initial language of RCW 42.17.190,supra, was unclear and the 1975 proviso to RCW 42.17.350, supra, demonstrates its uncertainty.  But that is now a moot point.  The matter was finally set to rest by a 1977 amendment to RCW 42.17.190, supra.  Section 6, chapter 313, Laws of 1977, 1st Ex. Sess., added the following language which now appears as subsection (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:  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  [[Orig. Op. Page 8]] 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."

            When that language was adopted, the Public Disclosure Commission had no express authority to communicate directly with the legislature for the purpose of recommending legislation, except such authority as could be gleaned in common with other state agencies, from the original language of that section together with some minimal implied authority in other administrative sections of the act.  See again memorandum opinions of January 8 and 31, 1973,supra.  The 1975 amendment to RCW 42.17.350, supra, as we have just seen, merely relaxed the prohibition of that special statute by granting to the commissioners, and clarifying for staff members, their authority to make certain expenditures which RCW 42.17.190,supra, generally authorized for all agencies.  Pursuant to the 1977 amendment, supra, the Public Disclosure Commission now has the same authority to communicate its requests to the legislature, and to rule‑making agencies, as does any other agency which depends upon RCW 42.17.190, supra, for similar authorization ‑ with but one notable exception.  The commissioners themselves may lobby only in the limited manner described in RCW 42.17.350,supra, as amended.  Nothing in the passage of chapter 313, Laws of 1977, 1st Ex. Sess., supra, or any later amendment evidences any legislative intent to further amend or repeal that particular restriction.

            The most recent amendment to RCW 42.17.190, supra, is found in chapter 265, Laws of 1975, 1st Ex. Sess. (Substitute Senate Bill 2685).  That chapter significantly narrowed the reporting provisions of RCW 42.17.190,4/supra, but it made no change in the substantive authority of any agency and specifically did not amend RCW 42.17.350,supra, in any respect.  Thus, if we were to find in any of the legislative history we have just narrated any evidence of legislative intent to relax the prohibition of RCW 42.17.350,supra, beyond the wording of the 1975 proviso, we would have to find it in the 1977 amendments.  But, as we have already observed earlier in this opinion, nothing in the amendment to the general rule meets the judicially established requirements for the implied repeal or amendment of the special rule embodied in RCW 42.17.350, supra, pertaining to the commission's own activities.  The simple test is whether the two sections, as they are presently worded, could be set side by side, read together and harmonized.  That can be done just as easily today as it could in 1973 when they were first enacted with RCW 42.17.190,supra, being the general rule  [[Orig. Op. Page 9]] pertaining to agencies for which no other provision is made and RCW 42.17.350, supra, being a special rule governing the Public Disclosure Commission, thereby constituting an exception to that general rule.

            In conclusion, it is apparent that the drafters of Initiative 276 made a policy decision whereby, despite certain tolerances given to state agencies in § 19 (RCW 42.17.190,supra) to lobby, the members of the Public Disclosure Commission were made to adhere to special and much narrower standards of conduct (RCW 42.17.350).  The evident purpose of that prohibition, as we have said, was to prevent potential conflicts of interests.  The 1975 proviso to that section, while modifying its severity, continues to forbid the various members of the commission from lobbying except as expressly exempted in the proviso itself.  With that exception noted, however, we answer your second question in the affirmative.

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

Very truly yours,

Attorney General

Senior AssistantAttorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 42.17.390.

2/You have verbally asked that we provide some specific clarification of that language, and we explain as follows.

            The term "respond" means "to correspond or accord with something; to say something in return."  (Webster's International Dictionary.)  Accordingly, keeping in mind the strict construction of provisos generally, and the evident purpose of this particular proviso, the phrase "responding to communications" must be taken to include primarily such things as replying to specific inquiries, or testifying pursuant to an express request or invitation, at a designated hearing or series of hearings.

            We believe that the phrase is broad enough to allow the commission to communicate its views on a particular subject of legislation (or rule‑making) to a member or committee of the legislature (or to another state agency) on a continuing basis, if so requested by that member or committee or agency.  However, the request must be reasonably specific in terms of its subject matter and time period;e.g., a series or group of bills emerging in a particular session.  It cannot be a general invitation from a particular individual or committee to lobby the commission's concerns at will ‑ for if the proviso actually permitted that it would seem to grant to such individuals or committees (unconstitutionally) the power to amend the language of the act itself.  At least in our opinion, that would be an overly broad construction of the intent of the proviso as presently written.

3/The proviso authorizes commission lobbying (when not in response to a communication) only at an open public meeting ". . . as defined by RCW 42.30.030 . . ."  That statute expressly refers only to meetings of multimember governing bodies other than the legislature and the courts.

4/You have also verbally asked for clarification of the following point.  Despite some apparent belief to the contrary, nothing in RCW 42.17.190 as amended has changed the basic definition of "lobbying"; it merely excludes certain agency activities from that definition, for reporting purposes only.