AGO 1976 No. 22 - Dec 14 1976
OFFICES AND OFFICERS ‑- STATE ‑- REPORTS OF FINANCIAL INTEREST ‑- REPORTING PERIOD
(1) A person who, on January 1, 1977, is serving in one of the appointive positions covered by RCW 42.17.240, as amended by Referendum No. 36, will be required to file a financial disclosure report pursuant to that statute even though such person resigns from his office at sometime between that date and January 31, 1977.
(2) Such financial disclosure reports as are first required to be filed by persons holding appointive offices under RCW 42.17.240, as amended, during January, 1977, will not be required to include otherwise reportable transactions occurring before the effective date (December 2, 1976) of Referendum Bill No. 36.
- - - - - - - - - - - - -
December 14, 1976
Honorable Daniel J. Evans
Governor of the State of Washington
Olympia, Washington 98504
Cite as: AGO 1976 No. 22
Dear Governor Evans:
By recent letter, noting the approval of Referendum No. 36 at the November 2, 1976, general election, you have asked for our opinion on the following two questions pertaining to that measure:
(1) Will a person who, on January 1, 1977, is serving in one of the appointive positions covered by RCW 42.17.240, as amended by Referendum Bill No. 36, be required to file a financial disclosure report pursuant to that statute even though such person resigns from his office at sometime between that date and January 31, 1977?
(2) Will such financial disclosure reports as are first required to be filed by persons holding appointive positions under RCW 42.17.240, as amended, during January 1977, be required to include otherwise reportable transactions occurring before the effective date (December 2, 1976) of Referendum Bill No. 36?
[[Orig. Op. Page 2]]
We answer your first question in the affirmative and your second question in the negative for the reasons set forth in our analysis.
RCW 42.17.240, as you know, originated as a part of the state's public disclosure law (Initiative No. 276) in 1972. Basically, that section of the law, as thus enacted by the people of our state, required both elective officials and candidates for elective offices to file periodic reports with the state public disclosure commission covering a number of designated matters relating to their financial and business affairs. Specifically, the statute required elective officials to file such reports ". . . after January 1st and before January 31st of each year . . ." and then directed every candidate, likewise, to do so ". . . within two weeks of becoming a candidate . . ." In either event, the reports were to cover enumerated financial transactions or interests ". . . for the preceding twelve months . . ." Except as it pertained to persons appointed to fill vacancies in an elective office,1/ however, RCW 42.17.240, did not, in its original form, apply to appointive officials, generally. Thus, such officials have not previously been required to file the reports to which that statute refers.
During its 1976 session, however, the legislature decided, in its wisdom to revise that situation. It therefore passed an amendment, in the form of chapter 104, Laws of 1975-76, 2nd Ex. Sess., designed to expand the scope of RCW 42.17.240 so as to cause its reporting requirements, henceforth, not only to cover elective officials and candidates but, in addition, the following:
". . . every chief executive state officer as specified in RCW 43.17.020, as now or hereafter amended, the director of the office of program planning and fiscal management, the director of the department of personnel, and every member appointed to the state board for community college education, office of community development, data processing authority, state finance committee, department of fisheries, forest practices board, forest practices appeals board, gambling commission, game commission, department of game, each professional staff member of the office of the governor, and each professional staff [[Orig. Op. Page 3]] member of the legislature, higher education personnel board, state highway commission, horse racing commission, human rights commission, board of industrial insurance appeals, liquor control board, interagency commission for outdoor recreation, parks and recreation commission, personnel board, board of prison terms and paroles, public disclosure commission, public employees' retirement system, public pension commission, University of Washington board of regents, Washington State University board of regents, board of tax appeals, teachers' retirement system, Central Washington State College board of trustees, Eastern Washington State College board of trustees, Evergreen State College board of trustees, Western Washington State College board of trustees, board of trustees of each community college, and the utilities and transportation commission, and each chief executive officer of the various state boards, authorities, commissions, councils, and other political agencies enumerated in this section in addition to those specified in RCW 43.17.020 . . ."
Then, instead of referring to this amendatory act to you as the governor for your approval or veto under Article III, § 12 of our state constitution, the legislature attached a referendum clause to the measure. Accordingly, now known as Referendum Bill No. 36, the proposed extension of RCW 42.17.240 by-passed the gubernatorial veto process and was voted upon by the people ‑ in accordance with Article II, § 1 (Amendment 7) of our constitution ‑ at the recently concluded (November 2, 1976) state general election.2/ At that election the law was approved by the voters and thus, pursuant to applicable constitutional provisions, it took effect on December 2, 1976 ‑ the 30th day after the election at which it was approved.3/
[[Orig. Op. Page 4]]
Your first question assumes the case of a person who is holding one of the appointive offices to which RCW 43.17.240, as amended, is now applicable. In addition, you have asked us to assume that this same individual still occupies that office on January 1, 1977, but that thereafter, at sometime prior to January 31, 1977, (the deadline for filing of the subject financial disclosure reports) he resigns. Your question is whether, under those factual circumstances, a financial disclosure report will be required.
In AGLO 1973 No. 2 [[to Paul Klasen, Prosecuting Attorney, Grant County, on January 4, 1973, an Informal Opinion, AIR-73502]](copy enclosed) this office considered, and answered in the affirmative, essentially the same question in the context of persons holding elective offices to which the original version of RCW 42.17.240, as approved by the voters at the November 7, 1972, general election, applied. Relying, in turn, on AGO 1972 No. 29 [[to Irving Newhouse, State Representative, on December 22, 1972]], a copy of which is also enclosed and to which we will make further reference below in answering your second question, we said, at page 3, that
"'. . . Any elected official covered by § 24(1), supra, who actually holds office at any time in January of 1974, or in any subsequent January, will thereby be required to file the subject report for the previous calendar year in which he held office. He cannot avoid that duty by resigning or otherwise going out of office on January 2, or January 24, or any other time after December 31 of the year for which the report is due. . . .'"
We see no reason, at this time, to depart from our prior opinion. The point, basically, is that the legal obligation to file a financial disclosure report ". . . for the preceding twelve months . . ." arises as of January 1, of the ensuing calendar year even though the report itself may be filed at any time before January 31st of the year in which it is due. Thus, while a person newly covered by RCW 42.17.240 because of Referendum Bill No. 36 may avoid filing a financial disclosure report by resigning ". . . on or before December 31 . . ." of 1976, such a report will be required of every elective or (now) appointive official covered by the law, as amended, who still holds such a position on January 1, 1977 ‑ even though he or she then resigns at sometime prior to January 31st of that year.
[[Orig. Op. Page 5]]
Next you have asked:
Will such financial disclosure reports as are first required to be filed by persons holding appointive positions under RCW 42.17.240, as amended, during January 1977, be required to include otherwise reportable transactions occurring before the effective date (December 2, 1976) of Referendum Bill No. 36?
Like your first question, this question is also one which we have, in effect, answered before. We have reference to AGO 1972 No. 29, supra, together with AGO 65-66 No. 44 [[to Martin J. Durkam, State Senator, on October 5, 1965]], copy enclosed.
Although approved by the voters at the November, 1972, state general election, Initiative No. 276 did not take effect until January 1, 1973.4/ Accordingly, in AGO 1972 No. 29, supra, we were asked the following question:
" . . . Will those elected officials who are covered by § 24 be required to file any reports by January 31, 1973, or will the first reports required of those elected officials as such be due in January of 1974 to cover the twelve‑month period beginning on January 1, 1973, and ending on December 31, 1973?"
We responded in accordance with the second of these two alternatives; i.e., that the first such reports would not be due until January 31, 1974, and would only be required to cover the twelve‑month period beginning on January 1, and ending on December 31 of the previous year. Our reasoning, basically, was that § 24 of the initiative was not, in our judgment, intended to operate retrospectively.
This, likewise, was what we concluded in other opinion cited above, AGO 65-66 No. 44, in which this office had earlier considered an identical question with regard to another financial disclosure statute which had then just been enacted by the 1965 legislature ‑ chapter 150, Laws of 1965, Ex. Sess. (now codified as chapter 42.21 RCW). The effective date of that earlier law was August 6, 1965, or ninety days [[Orig. Op. Page 6]] after adjournment of the session during which it was passed. The financial statements which were required to be filed by public officials were there stated (as here) to be due ". . . on or before January 31st of each year . . ." and were to cover (again, as here) designated transactions occurring ". . . during the preceding twelve month period, . . ."5/ We ruled, however, that the first reports due under that law would only be required to cover the period following its effective date ‑ for reasons which we explained as follows:
"'. . . It is a general rule that statutes speak prospectively and not retrospectively; i.e., they speak only from the time of their taking effect. The court inState v. Ladiges, 63 Wn.2d 230, 386 p.2d 416 (1963), stated the rule as follows:
"'"As a general rule, newly enacted statutes and newly adopted court rules operate prospectively only. McDowell v. Burke, 57 Wn.(2d) 794, 359 P. (2d) 1037 (1961). See, also, 14 Am.Jur., Courts § 156, p. 361.
"'". . .
"'"An exception to the general rule that laws are to be given prospective effect only is recognized in instances where the enacting authority clearly indicates that a retroactive effect was intended. Ashenbrenner v. Department of Labor & Industries, 62 Wn. (2d) 22, 380 P. (2d) 730 (1963);Sorensen v. Western Hotels, 55 Wn. (2d) 625, 349 P. (2d) 232 (1960)." (Emphasis supplied.) (p. 234)
"'See, also,Tellier v. Edwards, 56 Wn.2d 652, 354 P.2d 925 (1960), and cases cited therein.
"'If the present act, § 6, chapter 150, Laws of 1965, Ex. Sess.,supra, were construed to require an initial report covering transactions that took place before its effective date, it would be operating retrospectively. In Hammack v. Monroe St. Lbr. Co., 54 Wn.2d 224, 339 P.2d 684 (1959), our court said:
[[Orig. Op. Page 7]]
"'"In 1814, Mr. Justice Story, in the Society for the Propagation of The Gospel v. Wheeler, No. 13, 156, 22 Fed.Cas. 756, defined a retrospective law as follows:
"'"'. . . Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability,in respect to transactions or considerations already past, must be deemed retrospective; . . .'" (Emphasis supplied.) (p. 229)'"
Precisely this same approach, as we see it, is equally applicable to Referendum No. 36. Nowhere within the four corners of that measure is there any indication whatsoever of legislative intent to require retrospective reporting; i.e., the reporting of otherwise reportable financial transactions occurring (or holdings in existence) prior to its effective date ‑ in this case, December 2, 1976. Therefore, just as we advised in AGO 1972 No. 29 that the first reports under the original terms of RCW 42.17.240,supra, would only cover matters occurring after its effective date ‑ and just as this office also reached a similar conclusion in the case of chapter 150, Laws of 1965, Ex. Sess., supra, in AGO 65-66 No. 44, ‑ we likewise are of the same opinion with regard to this most recent enactment. Thus, having answered your first question, above, in the affirmative we answer your second question in the negative. Although those appointive officials to whom RCW 42.17.240, as amended, applies who are still in office on January 1, 1977, will have to file the reports specified by that law (even though they later resign before January 31, 1977) those initial reports will not be required to include any transactions occurring before the effective date (December 2, 1976) of the law (Referendum Bill No. 36) by which coverage was extended to them.6/
[[Orig. Op. Page 8]]
We trust the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Those persons being required to file their first reports within two weeks of being so appointed.
2/See, State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966), in which the state supreme court held that a referendum bill is not subject to a gubernatorial veto.
3/See, Article II, § 1 (Amendment 7) at subsection (b) thereof.
4/This was so because of a delayed effective date contained in § 49 of the initiative ‑ as contrasted with Referendum Bill No. 36 which, because it contains no effective date provision at all, became effective on the 30th day following the election in accordance with Article II, § 1 (Amendment 7), supra.
6/In passing, by way of a contrast to such laws as Referendum Bill No. 36 or either of the other two financial disclosure laws (RCW 42.21.060 or the original version of RCW 42.17.240) which we have earlier held to be applicable only to transactions occurring after their effective dates, we note the recently enacted federal tax reform law of 1976 ‑ Public Law 94-455. As a part of each section of that law the Congress has expressly stated whether that particular section applies (1) only to transactions in ensuing taxable years, (2) only to transactions occurring after its effective date or (3) to transactions occurring in this or prior taxable years as well. See, also, to the same effect, §7851 of the Internal Revenue Code of 1954. Had provisions of the latter type also appeared in the laws discussed in this and our two previous opinions noted above, the results reached would obviously have been different.