EMPLOYEES ‑- STATE ‑- SALARY ‑- PAYROLL DEDUCTIONS FOR VOLUNTARY POLITICAL CONTRIBUTIONS

EMPLOYEES ‑- STATE ‑- SALARY ‑- PAYROLL DEDUCTIONS FOR VOLUNTARY POLITICAL CONTRIBUTIONS

(1) There is, at present, no state statutory authority whereby a state employee may cause portions of his or her salary or wages to be withheld, through a payroll deduction system, for the specified purpose of making voluntary political contributions to a labor union or other employee organization.

(2) Nothing contained in the Federal Elections Campaign Act of 1971, as amended, either authorizes or requires a state to provide for a system of payroll deductions in order to facilitate voluntary political contributions by state employees.

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                                                                October 26, 1978

Honorable Orin Smith
Director
Office of Financial Management
House Office Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1978 No. 28

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on two questions relating to payroll deductions for voluntary political contributions by state employees.  We paraphrase your first question as follows:

            Is there any state statutory authority whereby a state employee may cause portions of his or her salary or wages to be withheld, through a payroll deduction system, for the specified purpose of making voluntary contributions to a labor union or other employee organization for political purposes?

             [[Orig. Op. Page 2]]

            Secondly, you have asked:

            In the absence of any state statutory authority, does the Federal Elections Campaign Act of 1971 . . . [Public Law 92-225, as amended, 2 U.S.C., § 431,et seq.] contain authority for such a payroll deduction if the funds are segregated and used only for federal elections?

            We answer both questions in the negative for the reasons stated in our analysis.

                                                                     ANALYSIS

            At the outset let us make it clear that this opinion does not involve the propriety of a labor union or other employee organization's use of revenues derived from mandatory membership dues for political purposes.  Rather, we are here concerned only with the question of whether existing state law permits a state employee to cause a portion of his or her salary or wages to be withheld, through a separate, identifiable, payroll deduction, for the specified purpose of making voluntary contributions to the particular employee's labor union or other employee organization in order to assist in funding the political contributions or related political activities of such organization.  Except as it may be restricted by 2 U.S.C., § 441(b), which is noted below in conjunction with our response to your second question, a labor organization is free to expend funds from its treasury for political purposes and to establish its dues' structure in such a manner as to provide sufficient revenue to pay for those as well as other legitimate expenses.  See also,Powerhouse Engineers v. State, 89 Wn.2d 177, 570 P.2d 1042 (1977).1/

             Bearing the foregoing caveat in mind we turn, now, to the questions which are here presented by your request.

            Question (1):

            It is a well-established, often-quoted rule that public officers and employees have only those powers which are expressly granted to them by statute and those which are necessarily implied from express statutory terms.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956) and cases cited  [[Orig. Op. Page 3]] therein.  Implied powers are those powers which must be found to exist in order to carry out the expressly granted powers.  See,City of Madison v. Daley, 58 Fed. 751 (1893).  If there is a fair or reasonable doubt as to whether or not a particular power has been granted, it must be denied.  Griggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928); Pacific First Federal Savings and Loan Association v. Pierce County, et al., 27 Wn.2d 347, 178 P.2d 351 (1947).

            The powers of state agencies, officers and employees to facilitate payroll deductions are found in the express terms of several statutes.  And, as we earlier explained to you in our memorandum opinion of May 4, 1978, regarding another proposed payroll deduction (i.e., for what were there referred to as "combined health agencies"),

            ". . .  It is a firmly established rule of statutory construction that the mention of one thing implies the exclusion of others, under the maximum 'expressio unius est exclusio est alterius.'  State ex rel. Port of Seattle v. Dept. of Public Service, 1 Wn. 2d 102, 95 P. 2d 1007 (1939). . . ."

            Accordingly, as that memorandum opinion then concluded, the combined provisions of those express statutes set forth the exclusive purposes for which state payroll deductions may now be made.

            The principal and general statute on the subject is RCW 41.04.230 which reads, in full, as follows:

            "Any official of the state authorized to disburse funds in payment of salaries and wages of public officers or employees is authorized, upon written request of the officer or employee, to deduct each month from the salaries or wages of the officers or employees, the amount of money designated by the officer or employee for payment of the following:

            "(1) Credit union deductions:  PROVIDED, That the credit union is organized solely for public employees:  AND PROVIDED FURTHER, That twenty-five or more employees of a single state agency or total of one  [[Orig. Op. Page 4]] hundred or more state employees of several agencies have authorized such a deduction for payment to the same credit union.

            "(2) Parking fee deductions:  PROVIDED, That payment is made for parking facilities furnished by the agency or by the department of general administration.

            "(3) U.S. savings bond deductions:  PROVIDED, That a person within the particular agency shall be appointed to act as trustee.  The trustee will receive all contributions; purchase and deliver all bond certificates; and keep such records and furnish such bond or security as will render full accountability for all bond contributions.

            "(4) Board, lodging or uniform deductions when such board, lodging and uniforms are furnished by the state, or deductions for academic tuitions or fees or scholarship contributions payable to the employing institution.

            "(5) Dues and other fees deductions:  PROVIDED, That the deduction is for payment of membership dues to any professional organization formed primarily for public employees or college and university professors:  AND PROVIDED, FURTHER, That twenty-five or more employees of a single state agency, or a total of one hundred or more state employees of several agencies have authorized such a deduction for payment to the same professional organization.

            "(6) Labor or employee organization dues may be deducted in the event that a payroll deduction is not provided under a collective bargaining agreement under the provisions of RCW 41.06.150:  PROVIDED, That twenty-five or more officers or employees of a single agency, or a total of one hundred or more officers or employees of several agencies have authorized such a deduction for payment to the same labor  [[Orig. Op. Page 5]] or employee organizations:  PROVIDED, FURTHER, That labor or employee organizations with five hundred or more members in state government may have payroll deduction for employee benefit programs.

            "(7) Accident and casualty premiums to a single insurer:  PROVIDED, That twenty-five or more officers or employees of a single agency, or a total of one hundred or more officers or employees of several agencies have authorized such a deduction for payment to that insurer.

            "(8) Insurance contributions to the trustee of contracts for payment of premiums under contracts authorized by the state employees' insurance board.

            "Deductions from salaries and wages of public officers and employees other than those enumerated in this section or by other law, may be authorized by the budget director for purposes clearly related to state employment or goals and objectives of the agency.

            "The authority to make deductions from the salaries and wages of public officers and employees as provided for in this section shall be in addition to such other authority as may be provided by law:  PROVIDED, That the state or any department, division, or separate agency of the state shall not be liable to any insurance carrier or contractor for the failure to make or transmit any such deduction."

            Other similar statutes authorize payroll deductions under certain conditions for specific purposes such as "capitation payments to health maintenance organizations"  (RCW 41.04.233), payroll deductions for various kinds of insurance (RCW 41.04.020) and contributions to a United Fund agency for charitable purposes (RCW 41.04.035 ‑ 41.04.036).  The legislature has even seen fit to provide express statutory authorization to make direct bank deposits of all or part of the salaries and wages of public officers or employees under certain conditions.  See, RCW 41.04.240.  However, our research has disclosed no such specific statutory authorization for payroll deductions to facilitate political contributions by state officers or employees.  Therefore, we must conclude that no such authority exists unless it can be  [[Orig. Op. Page 6]] gleaned from an interpretation of the wording of one of the above‑cited statutes, or by necessary implication in aid of a statutory objective.  Accord, our earlier memorandum opinion also cited above.  And thus, the question becomes (as it often does) one of statutory construction.

            The sole object of statutory construction is, of course, to determine the intention of the legislature.  Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943).  The intention of the legislative body is to be deduced, if possible, from what it said.  Gaffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  Words and phrases used in a statute are to be interpreted in accordance with their ordinary meaning.  State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).  With this in mind, inasmuch as your question asks about political contributions to be made through the medium of an employee organization, let us first consider the possible utility of the authorization of RCW 41.04.230(6) to make deductions for "labor or employee organization dues. . . ."2/

             In our opinion the word "dues" does not include voluntary payments made by employees to a labor union for political purposes.  The ordinary definition of "dues," as found in both general and legal dictionaries, means payments required for membership in the organization itself.  Thus, for example,Webster's Third New International Dictionary defines the term "dues" as:

            ". . . the fee or charge required for membership, affiliation, initiation, use subscription, . . ."  (Emphasis supplied)

            Similarly,Black's Law Dictionary, Rev. 4th Ed., defines the term "dues" as follows:

            ". . .  As applied to club and other membership corporations, [the] word refers to sums paid toward [the] support of [the] society and to retain membership therein. . . .  And covers only fixed and definite charges applicable to all club members.  Hardt v. McLaughlin, D.C. Pa., 25 F.Supp. 684, 685."

            See also,Pipefitters Local Union v. United States, 407 U.S. 385, 33 L.Ed.2d 11, 92 S.Ct. 2247 (1972), distinguishing between political contributions which are effectively required  [[Orig. Op. Page 7]] for union membership and, hence, constitute "dues" and those which do not come within the scope of that term because they are madefreely and voluntarily.

            In addition, we have reviewed a previous opinion of our own office, AGO 55-57 No. 271, which has been cited to us as meaning (a) that a payroll deduction plan may be utilized to pay dues of state employees to labor unions and (b) that the word "dues" should be broadly construed to include political contributions.  However, this 1956 opinion merely concluded, on the basis of an earlier statute (RCW 49.52.060), that employees may utilize payroll deductions for union dues.  It did not attempt to define "dues" and is not authority for the proposition that the term "dues" includes voluntary political contributions.  Furthermore, the statute there involved is a general statute which, as interpreted in AGO 55-57 No. 271, then permitted all employers to make payroll deductions "expressly authorized . . . by the employee."  By subsequent statutes such as RCW 41.04.230, however, the legislature has since enumerated certain categories of payments eligible for payroll deduction "upon written request of the [state] officer or employee."  The provisions of these specific statutes prevail; accordingly the payroll deductions which a state officer or employee may authorize within the meaning of RCW 49.52.060 are only those permitted by RCW 41.04.230, etc.  See,State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960).  To the extent the provisions of the earlier law then allowed a broader range of deductions, that authority has simply been superseded by the limitations of the later enactments.  The City of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959).

            A second possible source of authority to be considered is the later portion of RCW 41.04.230 which provides that,

            ". . .

            "Deductions from salaries and wages of public officers and employees other than those enumerated in this section or by other law, may be authorized by the budget director for purposes clearly related to state employment or goals and objectives of the agency.

            ". . ."

            The obvious question which this provision raises is whether your office (as successor to the office of budget director) may, itself, afford the basis for an affirmative answer to your inquiry by taking action to authorize payroll deductions for  [[Orig. Op. Page 8]] voluntary political contributions thereunder.  Our answer, however, is that it may not because such deductions would neither be for ". . . purposesclearly related to state employment . . ." (emphasis supplied) nor for a purpose ". . . clearly related to goals and objectives of the agency."  In fact, to the extent that state property may be used at all in connection with the solicitation or making of political contributions, it is hedged with very careful restraints.  See, for instance, RCW 42.17.130; also, RCW 41.06.250(1).  Accordingly, while payroll deductions for political contributions might not clearlyconflict with either of those expressed purposes, we can find no basis for holding that this type of deduction would satisfy the express statutory requirement that it must be "clearly related."

           Question (2):

            Having thus answered your first question in the negative for lack ofstate statutory authority we next turn to your second which (repeated for ease of reference) asks:

            "In the absence of any state statutory authority, does the Federal Elections Campaign Act of 1971 . . . [Public Law 92-225, as amended, 2 U.S.C., § 431,et seq.] contain authority for such a payroll deduction if the funds are segregated and used only for federal elections?"

            This question, on first impression, would seem to ask merely whether our state may lawfully (i.e., without violating the cited federal act) enact a statute amending its present payroll deduction system to enable state employees to make certain contributions in connection with campaigns for federal elections.  If that were the only issue involved, our answer would be unquestionably in the affirmative.  The sections of the federal act which are relevant to your inquiry are §§ 441(b) and 453.  The first of these provisions qualifiedly prohibits certain practices by "national banks, corporations or labor organizations" in soliciting or making contributions in connection with federal elections while the second, § 453, provides as follows:

            "The provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office."

             [[Orig. Op. Page 9]]

            Among certain exceptions to the prohibition in § 441(b), however, is one which, as construed by the Federal Election Commission,3/ allows those entities listed to utilize payroll deductions to facilitate permissible political contributions to a segregated fund.  Thus, even if a state agency were to be regarded as one of the entities regulated by that section4/ of the law, it would not prohibit the state from establishing or extending its payroll deduction system for this purpose.

            Your real question, however, arises by reason of § 453 of the federal act,supra.  The issue presented is whether, under a theory of federal preemption, the Federal Elections Campaign Act and/or regulations promulgated thereunder go so far as torequire a state to establish a payroll deduction program which permits state officials and employees to use the payroll deduction device in making voluntary political contributions to candidates for election to federal office.5/

             At first blush, we might appear to be faced with the dilemma of two competing principles involving the relationship of federal and state governments.  On the one hand, it is certainly the rule that any true conflict between a duly enacted federal and state law must be resolved in favor of the former.  The basis of that rule is the supremacy clause of the United States Constitution, as contained in Article VI thereof, which provides that the Constitution of the United States and all laws made in pursuance thereof are the supreme law of the land.6/   Thus, in certain matters the constitution delegates to the federal government supreme sovereign power and in those matters a state's laws must yield to federal laws and regulations‑-such, for example, as in the matter of jurisdiction over navigable  [[Orig. Op. Page 10]] waters.  See,Tacoma v. Taxpayers of Tacoma, 60 Wn.2d 66, 371 P.2d 938 (1962).  But at the same time it is equally well-established that state agencies draw their powers and duties from the state constitution and statutes enacted thereunder.  See,State ex rel. Eastvold v. Maybury, supra; accord,Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).  They do not derive their powers from the federal government.  Furthermore, Congress itself exercises its powers by delegation and all other powers are reserved to the states and/or to the people.  Accord, Amendment 10 to the United States Constitution which reads as follows:

            "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

            Whether the question is one of reserved powers or the extent of delegated federal power, however, the considerations may be the same for, as was recently observed by the Supreme Court in examining the reach of federal power to matters of essential state concern:

            "'While the Tenth Amendment has been characterized as a "truism," stating merely that "all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124, [85 L.Ed 609, 61 S.Ct. 451, 132 A.L.R. 1430] (1941), it is not without significance.  The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system.'"  National League of Cities v. Usery, 426 U.S. 833 at 843 (1976).

            Here, in the light of the above‑quoted preemptive language of the subject federal act, these principles would thus add a significant constitutional dimension to your question if we were to conclude that the Congress, by its passage of § 441(b) of the act, supra, intended to require the several states to establish payroll deduction programs for their officers and employees wishing to contribute to candidates seeking election to federal offices.  Yet precisely that argument has been made to us  [[Orig. Op. Page 11]] by legal counsel representing certain employee organizations interested in this matter.  In so arguing counsel rely, in turn, on an opinion rendered earlier this year, on May 26, 1978, by an attorney from the Office of the General Counsel, AFSCME, AFL-CIO, a copy of which we have also received and thoroughly reviewed.  Based upon a reported advisory opinion by the Federal Election Commission, AO 1976-23 (cited therein as CCH-Federal Elections Campaign Financing, § 6027), the conclusion reached by that attorney was, in essence, that if a state does not affirmatively grant the requisite authority to facilitate payroll deductions for voluntary political contributions by its own officers and employees its implied denial of such authority is preempted and nullified by the federal act.

            The problem with this approach, however, (aside from the constitutional issue it raises) is simply that it is not supported either by the federal law itself or by the FEC opinion upon which it is predicated.  The latter ruling merely concluded, quite correctly, that a state statute forbidding the use of such a payroll deduction plan by a regulated private corporation or organization would be preempted by the federal act.  It did not say, nor is there any language in the federal act or regulations so saying, that the state or any other employer, private or public, must establish or maintain such a payroll deduction plan for its own employees.  In fact, the very opposite is expressly stated in FEC Regulations, § 114.5(k)(4) as follows:

            "If a corporation uses no method to solicit voluntary contributions or to facilitate the making of voluntary contributions from stockholders or executive or administrative personnel, it is not required by law to make any method available to the labor organization for its members.  The corporation and the labor organization may agree upon making any lawful method available even though such agreement is not required by the Act."

            Therefore, in summary, we must answer your second question, as well, in the negative on the basis of existing federal law; i.e., neither the Federal Elections Campaign Act of 1971 (2 U.S.C. §§ 431,et seq.) nor the regulations promulgated by the FEC under that act require a state, as an employer, to establish a payroll deduction system to facilitate contributions to candidates for election to federal offices, or for any other political purpose.