COUNTIES ‑- CITIES AND TOWNS ‑- MUNICIPAL CORPORATIONS ‑- LEGISLATURE ‑- EXPENDITURES OF COUNTY, CITY OR OTHER MUNICIPAL FUNDS FOR LOBBYING

COUNTIES ‑- CITIES AND TOWNS ‑- MUNICIPAL CORPORATIONS ‑- LEGISLATURE ‑- EXPENDITURES OF COUNTY, CITY OR OTHER MUNICIPAL FUNDS FOR LOBBYING

(1) Neither the state public disclosure law (chapter 42.17 RCW) nor any other statute prohibits or restricts a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150; however, such a person may only be employed pursuant to specific legal authority to expend municipal funds for lobbying purposes ‑ either in the form of a state statute or, in the case of a first class or other charter city, code city or charter county, appropriate local legislation.

(2) Only a municipal corporation or political subdivision which is thus authorized to expend its funds for lobbying purposes may, in turn, authorize its officers or employees to appear and testify at municipal expense before a committee of the legislature in support of or opposition to proposed or pending legislation.

(3) Nothing in the state public disclosure law (chapter 42.17 RCW) purports to restrict the ability of any committee or member of the state legislature to seek information or opinions from officers or employees of a municipal corporation or political subdivision.

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                                                                 January 21, 1976

Honorable Lowell Peterson
State Senator, 40th District
Box 249
Concrete, Washington 98237

                                                                                                                   Cite as:  AGO 1976 No. 3

Dear Sir:

            By letter previously acknowledged you have requested our opinion on several questions pertaining to legislative lobbying by the officers or employees of municipal corporations or political subdivisions.  We paraphrase the  [[Orig. Op. Page 2]] questions here to be answered as follows:1/

             (1) Does the state public disclosure law (chapter 42.17 RCW) or any other statute prohibit or restrict a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150?

            (2) Is it lawful for a municipal corporation or political subdivision to authorize its officers or employees to appear and testify before a committee of the legislature regarding proposed or pending legislation?

            (3) To what extent do the provisions of the public disclosure law (chapter 42.17 RCW) restrict or impair the ability of a state legislator to discuss with, or request the advice and opinions of, the officers or employees of a municipal corporation or political subdivision?

                                                                     ANALYSIS

            The state public disclosure law, which originated as Initiative No. 276, is now codified as chapter 42.17 RCW.  Insofar as this law regulates legislative lobbying activities, the first portion of it to be noted is the definition of "lobbying" which appears in RCW 42.17.020(18) as follows:

            "'Lobby' and 'lobbying' each 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,  [[Orig. Op. Page 3]] chapter 34.04 RCW and chapter 28B.19 RCW."

            Although the law contains, in RCW 42.17.190, an express prohibition against any expenditure ofstate funds for lobbying "unless expressly authorized by law," no similar prohibition is to be found in the law with respect to the funds of municipal corporations or political subdivisions.  This does not, however, mean that those local units of government are legally free to engage in legislative lobbying activities.

            In a line of cases decided long before the passage of Initiative No. 276 at the 1972 state general election, the Washington supreme court has determined it to be contrary to public policy, in the absence of a specific legal authorization, for any public agency to expend its funds to lobby for the passage or defeat of legislation.  See,Port of Seattle ex rel. Dunbar v. Lamping, 135 Wash. 569, 238 Pac. 615 (1925);State ex rel. Rice v. Bell, 124 Wash. 647, 215 Pac. 326 (1923); andState ex rel. Port of Seattle v. Sup'r Ct., 93 Wash. 267, 160 Pac. 755 (1916).  As was explained by the court inBell:

            "Obviously, to permit public moneys to be used in an effort to influence the action of representatives of the people, whether in Congress or in the legislature, is contrary to sound public policy, and in the absence of express statutory authorization, no such authority will be implied."  (Emphasis supplied.)

            Likewise, on the basis of these cases this office has also issued several opinions similarly indicating a ban on publicly funded lobbying activities by state agencies and municipal officials without express authority.  See, e.g., opinions dated March 4, 1969, to State Senator Elmer C. Huntley and August 28, 1969, to State Auditor Robert V. Graham, copies enclosed.

            In the case of most municipalities, this requisite authorization to expend funds for lobbying purposes must come from the legislature itself.  See, e.g., the twoPort of Seattle cases cited above.  Where, however, the municipal corporation involved is a first class or other charter city,2/ a  [[Orig. Op. Page 4]]

charter county3/ or a code city within the meaning of the optional municipal code (Title 35A RCW), the legal power to lobby may, instead, be granted by means of an ordinance or resolution passed by the legislative authority of the municipality involved.  This is so because such municipalities have been held to possess within their respective jurisdictions the same legislative authority as that possessed by the legislature itself, subject only to those limitations imposed by the constitution or conflicting acts of the legislature, or by the provisions of their own charters, if any.  See,Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein.4/

             Thus, in other words, in the case of a first class or other charter city, a charter county or a code city, public fundsmay be used for the purposes of lobbying activities even without a specific statutory authorization from the legislature ‑ so long as the activities involvedhave been authorized, at the local level, by an appropriate city or county ordinance or other equivalent local legislation.  Conversely, it would take affirmative action by the legislature to remove the existing distinction between those classes of municipalities which can expend their funds for lobbying on the basis of a local legislative enactment and those municipalities which cannot do so.  There is, however, no constitutional barrier to the expenditure of public funds in a proper manner for the purpose of seeking to influence the passage or defeat of legislation ‑ and thus, in the final analysis, the question of whether, and to what extent, to grant this authority to those classes of municipalities which still rely upon the state legislature for their powers is purely a policy question to be decided by the legislature itself.

            Question (1):

            With the foregoing in mind we may now turn to your first question which, repeated for ease of reference, is as follows:

             [[Orig. Op. Page 5]]

            Does the state public disclosure law (chapter 42.17 RCW) or any other statute prohibit or restrict a municipal corporation or political subdivision from employing a lobbyist to be registered as such in accordance with RCW 42.17.150?

            A direct answer to this question would be in the negative.  Neither chapter 42.17 RCW nor any other existing statute prohibits or restricts a political subdivision from employing a lobbyist and registering him as such in accordance with RCW 42.17.150, the basic registration requirement of the law.  Because of the above outlined supreme court decisions, however, this mere lack of a statutory prohibition does not mean that lobbyists may legally be employed by any and all classes of municipal corporations.  Instead, in each instance that question will have to be determined on the basis of the particular statutes governing the class of municipality involved5/ or, if it is a first class or other charter city, a charter county, or a code city, on the basis of the charter or ordinances of the municipality itself.

            If the power to expend municipal funds for lobbying purposes can be found in the statutes, charter provisions or ordinances relating to a given municipal corporation or political subdivision, then it will follow that those funds may be utilized to employ either a full time or part time lobbyist.  If a municipal corporation may lawfully expend its funds to lobby, it will have the implied power to employ such means as are necessary to carry out that purpose.  See,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); also, 63 Am.Jur.2d, Public Officers, § 265.  But if it does so, the municipality will be required to make sure that the person or persons thus employed are registered as lobbyists under RCW 42.17.1506/  [[Orig. Op. Page 6]] unless they are excused from registration by reason of one or more of the exemption provisions contained in RCW 42.17.160.7/   See, in this regard, RCW 42.17.220 which reads as follows:

             [[Orig. Op. Page 7]]

            "It shall be a violation of this chapter for any person to employ for pay or any consideration, or pay or agree to pay any consideration to, a person to lobby who is not registered under this chapter except upon condition that such person register as a lobbyist as provided by this chapter, and such person does in fact so register as soon as practicable."

            The term "person" is expressly defined in RCW 42.17.020(21) to include, among others, any ". . . public or private corporation, association, federal, state or local governmental entity or agency however constituted, . . ."  Consequently, a municipal corporation which has the authority to employ, and does employ, a lobbyist will thereby not only have the authority but the duty as well to cause such lobbyist to register and report to the extent that such registration and reporting are required of other lobbyists by the applicable provisions of the public disclosure law.

            Question (2):

            This answer to your first question is largely determinative of your second question (as above paraphrased) as well.  Only a municipal corporation or political subdivision which is authorized (in the manner above explained) to expend its funds for lobbying purposes may authorize its officers or employees to appear and testify at municipal expense before a committee of the legislature in support of or opposition to proposed or pending legislation.

            Question (3):

            Your third question, repeated for ease of reference, asks:

            To what extent do the provisions of the public disclosure law (chapter 42.17 RCW) restrict or impair the ability of a state legislator to discuss with, or request the advice  [[Orig. Op. Page 8]] and opinions of, the officers or employees of a municipal corporation or political subdivision?