INITIATIVE NO. 276 ‑- SCHOOL DISTRICTS ‑- USE OF SCHOOL FACILITIES FOR PRESENTATION OF PROGRAMS ‑- LEGISLATURE ‑- ELECTIONS

INITIATIVE NO. 276 ‑- SCHOOL DISTRICTS ‑- USE OF SCHOOL FACILITIES FOR PRESENTATION OF PROGRAMS ‑- LEGISLATURE ‑- ELECTIONS

It is not a violation of § 13 of Initiative No. 276 (RCW 42.17.130 for the board of directors of a school district to allow the facilities of that district to be used by others on a nondiscriminatory basis for the conduct of meetings at which members of the legislature, or others, appear and speak either in favor of, or in opposition to pending ballot proposals or candidates for election to public office.

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                                                               December 26, 1973

Honorable Alan Bluechel
State Representative, 45th District
12534 66th Avenue N.E.
Kirkland, Washington 98033

                                                                                                                 Cite as:  AGO 1973 No. 26

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            Is it a violation of § 13 of Initiative No. 276 (RCW 42.17.130) for the board of directors of a school district to allow the facilities of that district to be used by others on a nondiscriminatory basis for the conduct of meetings at which members of the legislature, or others, appear and speak either in favor of, or in opposition to pending ballot proposals or candidates for election to public office?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Initiative No. 276 was adopted by the voters of this state at the November 7, 1972, general election and became effective on January 1, 1973.  It has since been codified as chapter 42.17 RCW and the section with which you are concerned is now designated therein as RCW 42.17.130.  This  [[Orig. Op. Page 2]] section of the initiative deals with the uses made of the facilities of those public offices which are occupied by elective officials or their employees and provides that:

            "No elective official nor any employee of his office may use or authorize the use of any of the facilities of his public office, directly or indirectly, for the purpose of assisting his campaign for reelection to the office he holds, or for election to any other office, or for election of any other person to any office or for the promotion or opposition to any ballot proposition.  Facilities of public office include, but are not limited to, use of stationery, postage, machines and equipment, use of employees of the office during working hours, vehicles, office space, publications of the office, and clientele lists of persons served by the office:  Provided, That this section shall not apply to those activities performed by the official or his office which are part of the normal and regular conduct of the office."

            RCW 42.17.020(9) defines the term "elected official," for the purposes of the initiative, as meaning:

            ". . . any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office."

            RCW 42.17.020(23), in turn, defines the term "public office" to mean:

            ". . . any federal, state, county, city, town, school district, port district, special district, or other state political subdivision elective office."  (Emphasis supplied.)

            Since the office of school district director is an elective office under RCW 28A.57.312, et seq., it thus readily follows that this office is among those to which the prohibitory language of RCW 42.17.130,supra, is applicable.  Furthermore, in our opinion, all school district "facilities" (as that term is defined therein) must be viewed for the purposes of  [[Orig. Op. Page 3]] this statute as "facilities of [the directors'] public office" because all such facilities are, by statute, under the direct and exclusive administrative control of the board of directors of the district.  See, RCW 28A.58.040 which provides as follows:

            "The board of directors of each school district shall have exclusive control of all school property, real or personal, belonging to the district; said board shall have power, subject to RCW 28A.58.045, in the name of the district, to convey by deed all the interest of their district in or to any real property of the district which is no longer required for school purposes.  Except as otherwise specially provided by law, and RCW 28A.58.045, the board of directors of each school district may purchase, lease, receive and hold real and personal property in the name of the district, and rent or sell the same, and all conveyances of real estate made to the district shall vest title in the district."

            Having established these requisite preliminary points we may turn, now, to the substance of your question; namely, whether it is a violation of RCW 42.17.130,supra, for the board of directors of a school district to allow the facilities of that district to be used by others on a nondiscriminatory basis for the conduct of meetings at which members of the legislature, or others, appear and speak either in favor of, or in opposition to pending ballot proposals or candidates for election to public office.

            Addressing ourselves to this particular section of Initiative No. 276 in AGO 1973 No. 14 [[to Arthur C. Brown, State Representative on June 8, 1973]], a comprehensive opinion answering some twenty separate questions relating to the regulation of political campaign activities by its various provisions, we said, at p. 30:

            "This section appears to be rather self-explanatory.  It expressly prohibits an elective official or any of the employees of his office from directly or indirectly using '. . . any of the facilities of his public office . . .' for the purpose of assisting his campaign either for reelection  [[Orig. Op. Page 4]] or election to another office, or for the election of any other person to office, or, thirdly, for the promotion or opposition to any ballot proposition.  The only exception to this rule covers the activities providing such assistance which are performed by the official or his office as a part of the normal and regular conduct of that office."

            Then, however, we went on to note that:

            "In apparent recognition of a need for a slightly greater degree of precision as to the over-all impact of this section of the initiative, . . . the Public Disclosure Commission has recently adopted an interpretive regulation which we should also include in this opinion for ease of reference.  The regulation is WAC 390-04-040 and reads as follows:

            "'Whereas sec. 13 of the Act forbids certain political uses of the office facilities of elected public officials but expressly denies the application of that section to activities which are a part of the normal and regular conduct of an office; it shall be the policy of the Commission to construe the term "use of any facilities" in sec. 13 of the Act as meaning only (1) uses of "facilities", as that term is therein defined, which constitute or result in a measurable expenditure of public funds; or (2) such uses which have a measurable dollar value.

            "'Examples of activities or uses which the commission considers to be excluded from sec. 13 of the act are verbal endorsements or statements favoring or opposing candidates or ballot issues which endorsements or statements do not directly or indirectly involve any measurable expenditures of public funds.'"

            Depending upon the facts of the particular case it might  [[Orig. Op. Page 5]] thus be possible, by application of this rule, to reach a conclusion that a meeting held on school premises at which verbal statements for or against candidates or ballot measures are made would not be in violation of RCW 42.17.130, supra, regardless of whether or not the activity came within the purview of the exclusionary proviso appearing at the end of that statute.  We need not rely on that line of reasoning in this instance, however, because it is our opinion that, in any event, the proviso here applies.  In other words, assuming that the activities described in your letter would otherwise fall within the prohibition of the statute itself, it is our opinion that such activities constitute "normal and regular conduct" of the offices of school board directors within the meaning of this proviso.

            A determination of what is "normal and regular conduct" of an office necessitates a review of the statutes pertaining to that office.  The question is principally one of statutory construction, because public officers have only those powers which are granted to them by statute.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956); Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Conversely, for illustration, any conduct of a public officer which is not thus authorized by law cannot be considered "normal and regular"; rather, its characterization is that of ultravires.

            The general powers and duties of school boards are found in chapter 28A.58 RCW.  RCW 28A.58.105 expressly authorizes all such boards to permit the use of school facilities for meetings,including political meetings.  That section, as reenacted by chapter 223, Laws of 1969, 1st Ex. Sess., reads in pertinent part as follows:

            "Every board of directors, unless otherwise specifically provided by law, shall:

            ". . .

            "(2) Authorize school facilities to be used for summer schools or for meetings, whether public, literary, scientific, religious, political, mechanical, agricultural or whatever, upon approval of the board under such rules or regulations as the board of directors may adopt, which rules or regulations may require a reasonable rental for the use of such facilities."

             [[Orig. Op. Page 6]]

            In addition, RCW 28A.60.190 grants similar general authority, in somewhat broader language, for school districts of the second and third classes ‑ as follows:

            "School boards in each district of the second class and third class may provide for the free, comfortable and convenient use of the school property to promote and facilitate frequent meetings and association of the people in discussion, study, improvement, recreation and other community purposes, and may acquire, assemble and house material for the dissemination of information of use and interest to the farm, the home and the community, and facilities for experiment and study, especially in matters pertaining to the growing of crops, the improvement and handling of livestock, the marketing of farm products, the planning and construction of farm buildings, the subjects of household economies, home industries, good roads, and community vocations and industries; and may call meetings for the consideration and discussion of any such matters, employ a special supervisor, or leader, if need be, and provide suitable dwellings and accommodations for teachers, supervisors and necessary assistants."

            It would seem to us axiomatic that conduct which is expressly authorized by statutes such as these two ‑ statutes which existed long before the passage of Initiative No. 276 ‑ must be considered "normal and regular" conduct of the elective office to which such statutes pertain.  Because these two laws pertain to school districts it thus follows that in accordance with its exclusionary provision, RCW 42.17.130, supra, does not prohibit a school board from allowing the use by others of school district facilities on a nondiscriminatory basis for (in the words of the question stated) ". . . the conduct of meetings at which members of the legislature, or others, appear and speak either in favor of, or in opposition to pending ballot proposals or candidates for election to public office."

            We thus answer your question in the negative, and trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

ROBERT F. HAUTH
Assistant Attorney General