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AGLO 1976 No. 60 - September 27, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- ELECTIONS ‑- ADVISORY ‑- CONDUCT OF ADVISORY ELECTIONS BY COUNTIES

In connection with its adoption of an ordinance under RCW 36.32.120, a board of county commissioners may, but is not required to, conduct an advisory election to be participated in by the voters of the county.

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                                                              September 27, 1976

Honorable Ronald R. Carpenter
Prosecuting Attorney
Whitman County Court House
Colfax, Washington 99111                                                                                                               Cite as:  AGLO 1976 No. 60

Dear Sir:

            By recent letter you have inquired as to the legality of so-called "advisory" elections on local issues at the county level.  We respond to your question in the manner set forth below.

                                                                     ANALYSIS

            At the outset we, like you, are aware of no specific authorization for the conduct of a so-called "advisory election" by a board of county commissioners.  Nevertheless, we are at the same time aware that this practice, at both the county and the city levels, is not at all uncommon.

            A search of our own prior opinions reveals that the conduct of an advisory election has been sanctioned, at least in the case of a third class city governed by the provisions of chapter 35.24 RCW, in AGO No. 51-53-327 [[to Earl Coe, Secretary of State on June 17, 1952]], a copy of which you will find enclosed.  You will note that this opinion was written to the secretary of state, presumably in his capacity as chief elections officer under RCW 29.04.070.

            In the foregoing 1952 opinion implied authority for the conduct of an advisory election was deemed to exist, in the case of a third class city, by reason of RCW 35.24.290(18), which authorizes the city council of any such city

            ". . .  To make all such ordinances, bylaws, rules, regulations and resolutions, not inconsistent with the Constitution and laws of the state of Washington, as may be deemed expedient to maintain the peace, good government and welfare of the corporation and its trade, commerce and manufactures, and to do and perform any and all other acts and things necessary  [[Orig. Op. Page 2]] or proper to carry out the provisions of this chapter, and to enact and enforce within the limits of such city all other local, police, sanitary and other regulations as do not conflict with general laws."

            That statute, you will furthermore note, is quite similar to RCW 36.32.120(7) with respect to the statutory powers of a board of county commissioners.  Most certainly any such board of commissioners, in the exercise of its ordinance making power under RCW 36.32.120(7), may (and properly should) seek the advice of those of its constituents who may care to submit their views, in one form or another, to the commissioners.  One such method, of course, is through the conduct of open, public hearings in the manner specifically provided for by so much of RCW 36.32.120(7) as requires that:

            ". . . no such regulation, code, compilation, and/or statute shall be effective unless before its adoption, a public hearing has been held thereon by the county legislative authority of which at least ten days' notice has been given. . . ."

            This required means of proceeding, however, should not be taken to negate the use of such additional means of communication between a board of county commissioners and its constituents as may be deemed by the commissioners to be appropriate in a given case.  And, obviously, the conduct of an "advisory election," while perhaps not appropriate in every instance because of cost factors, etc., could well be the most practical approach in a particular case where widespread input, in the form of a simple "yes" or "no" advisory vote, is desired.

            On the other hand, unlike the above noted requirement of a public hearing, we know of no law under which a board of county commissioners can berequired to conduct any sort of an advisory election prior to its adoption of a given county ordinance or other measure.  On the basis of AGO No. 51-53-327, supra, it may do so, in its discretion, if it finds good reasons to exist for such an election but in no event is a board of county commissioners  [[Orig. Op. Page 3]] required to conduct an advisory election prior to adopting an ordinance or other measure under RCW 36.32.120(7), supra.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

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