Authority Of Public Works Board To Lobby The Legislature

LOBBYING—STATE AGENCIES—PUBLIC WORKS AND IMPROVEMENTS—Authority Of Public Works Board To Lobby The Legislature

The Public Works Board has the authority to provide the legislature with information relating to the Board’s business and may advocate for the Board’s official positions and appropriation requests.

May 16, 2016

Dear Mr. Finkelstein:

            By letter previously acknowledged, you have requested our opinion on the following question:

Is the Public Works Board authorized to lobby in support of policy positions, budget positions, and appropriation requests that may be inconsistent with, or directly contrary to, positions advanced by the governor and other cabinet agencies?

BRIEF ANSWER

            Yes. The Public Works Board has the authority to provide the legislature with information relating to the Board’s business and may advocate for the Board’s official positions and appropriation requests. This may take the form of lobbying for policy positions, budget positions, and appropriation requests that may be inconsistent with or directly contrary to the positions of others.

FACTUAL BACKGROUND

            The Board was created to provide financial and technical assistance to local governments for public works projects. RCW 43.155.030. The Board has the power to accept state and federal loans or grants (RCW 43.155.040), and then assist local governments in financing public works projects (RCW 43.155.060(1)).

            Your question pertains to the Board’s responsibilities regarding construction loans. The Board evaluates construction loan proposals, determines whether they meet the statutory

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qualifications, and then either prioritizes or ranks the projects. RCW 43.155.070(1)-(5). The Board then submits its funding recommendations to the legislature for approval. RCW 43.155.070(5)(b), (7); WAC 399-30-050(1). The legislature may remove projects from the  Board’s recommended list, but it cannot change the priority order of projects. RCW 43.155.070(8). The Board cannot finance a construction project without legislative approval.[1] RCW 43.155.070(8).

            The governor also offers budget proposals to the legislature, based in significant part on the governor’s review of budgetary requests from agencies. RCW 43.88.060. The governor may call upon agency representatives to testify to the legislature regarding the governor’s proposed budget, but the statute does not address whether an agency representative may publicly disagree with the governor’s proposed budget. See RCW 43.88.060.

            In your letter, you indicate that appropriations for public works projects included on the Board’s recommended list have not always been included in the governor’s proposed budgets or in the final budgets adopted by the legislature. You ask whether the Board has the ability to lobby the legislature for appropriations that may be contrary to or inconsistent with the governor’s proposed budget.

ANALYSIS

            To answer your question, we first review agency lobbying authority in general. We then evaluate whether the legislature has specifically addressed the Board’s authority. Notably, this opinion does not analyze whether it would be expedient to lobby contrary to the governor’s position from a political or policy perspective. It also addresses only the authority of the Board itself and not that of individual Board members in their private capacities.

            State boards and agencies generally have limited authority to lobby the legislature.[2] “Lobby” and “lobbying,” as applied to your question, mean “attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington[.]” RCW 42.17A.005(30). Some communications by the Board to the legislature may not constitute lobbying at all. This is because RCW 42.17A.635(5)(d) specifies that “lobbying” does not include:

            (i) Requests for appropriations by a state agency to the office of financial management pursuant to chapter 43.88 RCW nor requests by the office of financial management to the legislature for appropriations other than its own agency budget requests;

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            (ii) Recommendations or reports to the legislature in response to a legislative request expressly requesting or directing a specific study, recommendation, or report by an agency on a particular subject;

            (iii) Official reports including recommendations submitted to the legislature on an annual or biennial basis by a state agency as required by law;

            (iv) Requests, recommendations, or other communication between or within state agencies or between or within local agencies;

            (v) Any other lobbying to the extent that it includes:

            (A) Telephone conversations or preparation of written correspondence;

            (B) In-person lobbying on behalf of an agency of no more than four days or parts thereof during any three-month period by officers or employees of that agency and in-person lobbying by any elected official of such agency on behalf of such agency or in connection with the powers, duties, or compensation of such official. The total expenditures of nonpublic funds made in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington may not exceed fifteen dollars for any three-month period. The exemption under this subsection (5)(d)(v)(B) is in addition to the exemption provided in (d)(v)(A) of this subsection;

            (C) Preparation or adoption of policy positions.

RCW 42.17A.635(5)(d); see also WAC 390-20-120 (Public Disclosure Commission form setting out its view of what lobbying does not include). The Board could engage in any of the forms of communication listed above, including submitting its priority list directly to the legislature as required by statute, without such actions falling within the definition of “lobbying.”

            If the Board were to engage in some other form of communication that would fall within the definition of “attempting to influence the passage or defeat of any legislation” (RCW 42.17A.005(30)), it would need to take into consideration the limits placed on state agencies’ ability to lobby. State law generally prohibits expending public funds for lobbying, except as authorized by law. RCW 42.17A.635(2). The next statutory paragraph authorizes agency lobbying and the expenditure of public funds for such lobbying only if the lobbying is “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.” RCW 42.17A.635(3). Additionally, agency officers and employees may communicate

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“with a member of the legislature on the request of that member” and communicate “to the legislature, through the proper official channels, requests for legislative action or appropriations that are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties.” RCW 42.17A.635(2). These statutes, taken together, provide the Board, acting through its members, with the general authority to lobby the legislature in support of official Board positions and appropriation requests.

            Nothing in RCW 43.155 alters the scope of the Board’s general lobbying authority granted to it by RCW 42.17A.635. While lobbying is not one of the Board’s statutory duties, the legislature granted the Board the power to “[d]o all acts and things necessary or convenient to carry out the powers expressly granted or implied” under RCW 43.155. RCW 43.155.040(5). This likely includes advocating for funding of the projects it recommends. Additionally, the legislature specified that the Board’s priority list and funding recommendations are submitted directly to the legislature, not the governor, for approval. RCW 43.155.070(5)(b), (7). The Board is not precluded from submitting its proposals and advocating for their inclusion in the final budget simply because such proposals were not included in the governor’s proposed budget.

            As a final note, although we conclude the Board has the legal authority to lobby for a position that differs from the governor’s position, individual Board members are still subject to a governor’s executive authority. If the governor determined that a board member’s actions constituted misconduct or malfeasance in office, the governor could remove the board member. RCW 43.06.070; RCW 43.155.030(5); see also Const. art. V, § 3. The member cannot appeal the governor’s decision (State ex rel. Howlett v. Cheetham, 19 Wash. 330, 332-33, 53 P. 349 (1898)) and is not entitled to a statement of the facts justifying the governor’s determination (State ex rel. Davis v. Johns, 139 Wash. 525, 536, 248 P. 423 (1926)).

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

   Attorney General

ANNIKA SCHAROSCH

   Assistant Attorney General