CONTRIBUTIONS

INITIATIVE NO. 276 ‑- ELECTIONS ‑- FUNDS ‑- POLITICAL COMMITTEE ‑- CONTRIBUTIONS

An organization dealing with its own funds does not become a "political committee" under RCW 42.17.020(22), merely by making contributions of those funds to or in support of a candidate for public office or ballot proposition; such an organization, however, will constitute a political committee if it receives contributions from others which, with the actual or constructive knowledge of the contributors, are set aside to be used for the support of such candidates or proposition.

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                                                               December 28, 1973

Honorable Kenneth O. Eikenberry
State Representative, 36th District
Suite 500 Third & Lenora Building
Seattle, Washington 98121                                                                                                             Cite as:  AGLO 1973 No. 114

Dear Sir:
 
            This is written in response to your recent request for our opinion as to whether certain organizations described in your letter constitute "political committees" as that term is defined in RCW 42.17.020 (22), codifying § 2 (22) of Initiative No. 276.
 
            We respond to this question in the manner set forth in our analysis.
 
                                                                     ANALYSIS
 
            Within the body of your letter you have set forth the following factual descriptions of three specific organizations, the Washington State Council of Police Officers, the Seattle Fire Fighters Union Local # 27, and the Washington State Council of Fire Fighters:
 
                        I.
 
            "The Washington State Council of Police Officers is comprised of all rank and file officers of the ten first class cities; is an incorporated and non-profit [[nonprofit]]organization recorded with the Secretary of State's Office.
 
            "Its financing is derived from a monthly per capita dues of $1.25 which is collected at the local level by payroll deduction and forwarded by local organizational treasurers to the Council treasurer.
 
            "Council officers consist of a President, Vice President, Secretary, and Treasurer.  These officers along with six other members selected on the basis of one to each member city affiliate, make up the Council's Executive Committee.  The Executive Committee has the  [[Orig. Op. Page 2]] authority to employ a Council Executive Director.
 
            "The Washington State Council of Police Officers does not make public endorsements either for or against candidates or issues.  It does on occasion, however, make nominal financial contributions directly to individual candidates.  When this occurs, determination of the recipient and the amount expended is solely that of the Executive Director without knowledge or consent of the Council membership."
 
                        II.
 
            "The Seattle Fire Fighters Union Local # 27 is a local affiliate of the International Association of Fire Fighters.  Local # 27 is an incorporated, non-profit [[nonprofit]]organization recorded with the Secretary of State's Office.
 
            "The officers of Local # 27, elected at large by the membership, are a President, 1st Vice President, 2nd Vice President, and Secretary-Treasurer.
 
            "Funds with which to carry on the business of the Local are obtained from membership dues through payroll deduction.  The amount of $1.25 from each member's dues is deposited in the Legislative Fund each month.
 
            "Seattle Fire Fighters Union Local # 27 does recommend (endorse) city and state candidates as well as special issues which deal with our profession.  When endorsing candidates, we generally follow C.O.P.E. endorsements as we are an AFL-CIO affiliate.  In addition to making political recommendations, we may also make nominal contributions to the candidates' campaign fund.  The necessary funds for this participation is derived from the Legislative Fund of Local # 27.
 
            "Other expenditures from the Legislative Fund are used for lobbying during legislative sessions at Olympia as well as other hearings and meetings occurring in the interim.  All of the aforementioned disbursements from the Legislative Fund are made with the knowledge and approval of the membership of Seattle Fire Fighters Local Union # 27.
 
             [[Orig. Op. Page 3]]
                        III.
 
            "The Washington State Council of Fire Fighters is a non-profit [[nonprofit]]organization of professional fire fighters through voluntary membership of local unions chartered under the Constitution and By-Laws of the International Association of Fire Fighters, AFL-CIO.
 
            "Financing of the Council is provided by monthly per capita dues of $1.50 collected within the affiliated local unions and forwarded to the Council Secretary-Treasurer by financial officers of those local unions.
 
            "That Executive Board consists of a President, three Vice‑Presidents, and a Secretary-Treasurer.  The Board is authorized to and does appoint a representative, usually a Board member, whose duties include the evaluation and promotion or opposition of legislation affecting Council members.
 
            "The Washington State Council of Fire Fighters does not make public endorsements either for or against candidates or issues.  It does on occasion, however, make nominal financial contributions to individual candidates.  Determination of recipients and the amount of those contributions is a discretionary responsibility of the Board's representative and is not subject to approval of the Board or membership."
 
            In addition to so describing these three organizations you have also enclosed copies of their respective constitutions and/or bylaws, and we have found these materials to be quite helpful in obtaining an overall understanding of their various functions.  We must, however, express and strongly emphasize a caveat at this point as to the significance to be attached to this opinion in the light of the factual information which you have thus provided to us with your request.  As we have often said in the past, it is not a function of this office in an attorney general's opinion to determine the facts of a given case but only to formulate and express our views on questions of law.  Where, in addition, we are called upon to apply the law as we view it to a given state of facts we can only do so by means of an assumption, rather than a determination, of both the completeness and the correctness of all of the facts which we have been given  [[Orig. Op. Page 4]] in connection with the related opinion request.  From this it will readily be seen, in terms of the instant opinion, that the validity of the conclusions which we will here attempt to reach with respect to the legal status, under Initiative No. 276, of the three organizations which you have described will, in turn, be largely dependent upon the completeness and correctness of the relevant facts which you have asked us to treat as having been established for the purposes of this opinion.  Thus, in the final analysis, the principal thrust of this opinion should be viewed as its attempt to set forth the legal standards and criteria to be applied in determining the status, under the initiative, of such organizations as these, and not its attempt to apply those criteria to the facts of each case.
 
            With this explanation as to the scope of this opinion in mind, we may turn now to the key portion of this initiative measure ‑ RCW 42.17.020 (22).  This RCW section, which codifies § 2 (22) of the initiative, defines the term "political committee" to mean
 
            ". . . any person (except a candidate or an individual dealing with his own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition."
 
            In AGO 1973 No. 14 [[to Arthur C. Brown, State Representative on June 8, 1973]], copy enclosed, this office considered and answered a number of different questions involving the foregoing definition, together with other questions pertaining to the reporting and other requirements of the initiative with respect to such individuals or organizations as may come within its scope.  Among these questions was the following:
 
            "If a corporation or similar association or organization makes a contribution to a political committee or candidate, does it thereby itself become a political committee as defined in RCW 42.17.020 (22), supra?"
 
            For reasons set forth in some detail on pp. 24-27 of this prior opinion ‑ involving an analysis not only of RCW 42.17.020 (22), supra, but of various other provisions of the electoral campaign financing portion of Initiative No. 276 as well ‑ we then answered this question in the negative; i.e., that
 
            ". . . expenditures made by a corporation or other organization in the form of contributions to political committees or candidates do not make that organization a political committee . . ."
 
             [[Orig. Op. Page 5]]
            We adhere at this time to that conclusion and, thus, need not further concern ourselves in responding to your inquiry with the matter of expenditures by any of the organizations described in your letter for political purposes.  This leaves us, then, only with the question of whether any of these organizations may be said to receive contributions from either their members or others for such purposes; i.e., "in support of, or opposition to, any candidate or any ballot proposition."  In responding we must first attempt to establish the legal test to be applied in making this determination.  It is, in our judgment, basically as follows:
 
            If the only revenues of such groups as you have described are dues and/or assessments to fund the general operations of the organization, and no portion of these revenues are set aside, with the actual or constructive knowledge of the contributors, for use in supporting or opposing political candidates or ballot propositions, then the organization is not to be deemed a "political committee" as defined in RCW 42.17.020 (22), supra.  If on the other hand ‑ either as a part of their regular dues or in addition thereto ‑ the members of such an organization are called upon to make payments to it which are thus segregated and used for those purposes under circumstances whereby the contributors know (or should know, if reasonably observant) of that practice, then those payments will in our judgment be "contributions" within the meaning of that statutory definition and the organization, hence, will be a political committee as therein defined.
 
            Next we must apply this test to the facts which we are here called upon to assume with respect to the three particular organizations you have asked us to consider.
 
            (a) The Washington State Councils of Police Officers and Fire Fighters:
 
            From the information you have provided to us with respect to these two organizations (including their constitutions and bylaws), and assuming its correctness and completeness as above explained, we would conclude that neither of them is a "political committee" under the initiative, judged by the foregoing criteria.  For all that appears from your description of these two organizations, their revenues are limited to dues and/or assessments to fund the general operations of the organizations and no portion of those revenues is set aside, with the actual or constructive knowledge of the contributors, for use in supporting or opposing political candidates or ballot propositions.
 
             [[Orig. Op. Page 6]]
            (b) Seattle Fire Fighters Union Local No. 27:
 
            On the other hand, in the case of this organization the information you have given us appears to describe a receipt of moneys which are so segregated and earmarked for political campaign expenditures as to cause them in all probability to be "contributions" for those purposes ‑ and, for that reason to cause the organization receiving them to be a political committee under the initiative.
 
            First, the bylaws of this organization tell us that
 
            ". . . A minimum of one dollar and a quarter ($1.25) per month from the monthly Union dues of each member shall be set aside for legislative purposes."
 
            Secondly, we have your statement that these moneys are segregated into a "Legislative Fund" which, in addition to financing the lobbying activities of the organization, is used to ". . . make nominal contributions to the candidates' campaign fund . . ." of those candidates who are endorsed by it.  And finally, your description of this organization, as above quoted, states that "All of the aforementioned disbursements from the Legislative Fund are made with the knowledge and approval of the members of Seattle Fire Fighters Local Union # 27."
 
            In view of these facts we think it most probable that a court would hold this organization to be a "political committee" under RCW 42.17.020 (22), supra ‑ a result which, of course, we would similarly anticipate in the case of the other two associations you have described if, notwithstanding the facts we have above assumed in considering them, a comparable factual pattern were shown actually to exist with respect to one or both of those two state councils as well.  In other words, for example, if either the state council of police officers or the state council of fire fighters were shown to be making special assessments upon their members for funds to be used, with the actual or constructive knowledge of their members, to support or oppose candidates for public office or ballot propositions (as these items are defined in Initiative No. 276)1/ the resulting payments would, in our opinion, also be classified as "contributions" and the organizations as "political committees" for the purposes of this new state law.
 
             [[Orig. Op. Page 7]]
            In so advising we think it noteworthy, from the standpoint of the burdens that this conclusion might be thought to impose upon those labor organizations which do so conduct themselves as to constitute political committees in accordance with the foregoing criteria, that the Washington State Labor Council, AFL-CIO, itself, is currently complying with the reporting requirements of the initiative based, apparently, upon its own determination that it is a political committee thereunder.  Apparently, therefore, these reporting requirements do not present any insurmountable burdens to such organizations.
 
            We trust the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

ROBERT F. HAUTH
Senior Assistant
Attorney General

                                                         ***   FOOTNOTES   ***
 
1/See, RCW 42.17.020(2), (5) and (23).