Bob Ferguson
Other LanguagesAGLO 1971 No. 95 -
Attorney General Slade Gorton
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August 9, 1971
Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98501 Cite as: AGLO 1971 No. 95 (not official)
Dear Sir:
By letter previously acknowledged you have requested the advice of this office on certain questions relating to proposed expenditures by counties and other municipalities for tourism under § 1, chapter 61, Laws of 1971, Ex. Sess. In asking these questions you have explained that a certain county is putting together a tourist folder which is intended to publicize the general area in which the county is located; and that there is a proposal whereby the Chamber of Commerce, the county in question, all cities within the county, and a port district and public utility district within the county will each pay $2,000 toward the cost of the publication of the folder.
Specifically, your questions are as follows:
"(1) Do each of the four public bodies noted above have authority to spend money for a 'tourist folder'?
"(2) Can these public agencies proceed under Chapter 39.34, the Interlocal Cooperation Act, to publish a combined brochure? Can the Chamber of Commerce participate in this effort sharing costs jointly?
"(3) If the authority to spend money for such a purpose is denied a Public Utility District, can such District advertise in the brochure?"
[[Orig. Op. Page 2]]
For ease of reference in answering your questions, we quote § 1, chapter 61, Laws of 1971, Ex. Sess., which provides as follows:
"Any county in this state acting through its council or other legislative body shall have power to expend moneys and conduct promotion of resources and facilities in the county or general area by advertising, publicizing, or otherwise distributing information for the purpose of attracting visitors and encouraging tourist expansion."
As you pointed out, § 2 of the same chapter gives identical authority to cities and towns.
ANALYSIS
From an analysis of these two sections, then, it is clear that counties and cities each have the same general authority to expend funds for promoting the resources of the area by distributing information in the form of a tourist folder of the nature you have described.
The authority of a port district to advertise is stated in somewhat limited fashion in RCW 53.08.160, as follows:
"All port districts organized under the provisions of this act shall be, and they are hereby, authorized and empowered to initiate and carry on the necessary studies, investigations and surveys required for the proper development, improvement and utilization of all port properties, utilities and facilities, and to assemble and analyze the data thus obtained and to cooperate with the state of Washington, other port districts and other operators of terminal and transportation facilities for this purpose, and to make such expenditures as are necessary for said purpose, and for the proper promotion, advertising, improvement and development of such properties, utilities and facilities." (Emphasis supplied)
Nothing in that statute, or any other that our research has discovered, expressly authorizes a port district to expend funds in order to advertise the county or area in which it is located; as distinguished from the advertising of its own properties, utilities and facilities. On the other hand, such expenditures would seem to be properly classified under the heading "trade promotion," and arguably there is legislative authority for such expenditures under that heading. The basis of that implied authority begins with Article VIII, § 8 (Amendment 45) of the state constitution, approved by the voters November 1, 1966, which provides as follows:
[[Orig. Op. Page 3]]
"The use of public funds by port districts in such manner as may be prescribed by the legislature for industrial development or trade promotion and promotional hosting shall be deemed a public use for a public purpose, and shall not be deemed a gift within the provisions of section 7 of this Article."
Implementing that constitutional provision, RCW 53.36.120 provides as follows:
"Under the authority of Article VIII, section 8, of the state Constitution, port district expenditures for industrial development, trade promotion or promotional hosting shall be pursuant to specific budget items as approved by the port commission at the annual public hearings on the port district budget."
It could be argued that the phrase "trade promotion" in RCW 53.36.120, supra, refers only to the type of expenditure authorized specifically by RCW 53.08.160; namely, expenditures for advertisement of port facilities only. However, a more realistic construction of RCW 53.36.120 compels the broader conclusion that the legislature thereby recognized port districts to have general trade promotion powers similar to those just recently granted by §§ 1 and 2, chapter 61, Laws of 1971, Ex. Sess., supra, to counties and cities.
In our opinion, therefore, port districts have the same authority as counties and cities in that regard.
The authority of public utility districts to advertise is similar to that which was granted to port districts by RCW 53.08.160, supra. RCW 54.16.090 provides in pertinent part as follows:
"A district may enter into any contract or agreement with the United States, or any state, municipality, or other utility district, or any department of those entities, or with any cooperative, mutual, consumer-owned utility, or with any investor-owned utility or with an association of any of such utilities, for carrying out any of the powers authorized by this title.
". . .
"It may make contracts, employ engineers, attorneys, and other technical or professional assistance; print and publish information or literature; advertise or promote the sale and distribution of electricity or water and do [[Orig. Op. Page 4]] all other things necessary to carry out the provisions of this title.
"It may advance funds, jointly fund or jointly advance funds for surveys, plans, investigations, or studies as set forth in RCW 54.16.010, including costs of investigations, design and licensing of properties and rights of the type described in RCW 54.16.020, including the cost of technical and professional assistance, and for the advertising and promotion of the sale and distribution of electricity or water."
The final paragraph of that statute authorizing advances of funds and joint studies was recently added by § 7, chapter 106, Laws of 1969.
RCW 54.16.090, supra, has been construed in several previous opinions of this office. In AGO 4393 to the state auditor, dated February 28, 1940 [[1939-40 OAG 242]], for instance, we concluded that this statute did not empower a public utility district to "'pay out moneys raised from an annual tax levy for the purpose of obtaining, printing and distributing general educational information to the public'". Based on that opinion we also said in an informal opinion to the state auditor, May 13, 1952, that a PUD could not legally spend its funds for participation in the publication of a textbook on the subject of the resources of Washington state. Copies of those opinions are attached.
Despite the passage of time and a number of subsequent legislative sessions, no further statutory powers have been granted to public utility districts in this regard. True, § 7, chapter 106, Laws of 1969 granted certain added authority with regard to advances for and joint participation in promotional activities. See, for similar authority, chapter 54.44 RCW and Snohomish County PUD, et al. v. Taxpayers, et al., 78 W.D.2d 742 [[78 Wn.2d 742]](1971). However, insofar as is pertinent to the present question, the ultimate purposes of those expenditures were not broadened. With regard to promotion, the language of the statute expressly limits such advertising and promotion to "the sale and distribution of electricity or water." The construction placed upon RCW 54.16.090, supra, by this office in its opinions, with no effort by the legislature to broaden the statute in that regard, is evidence of a legislative interpretation in accordance with those opinions. See, State ex rel. Ball v. Rathbun, 144 Wash. 56, 256 Pac. 330 (1927); State ex rel. Bonsall v. Case, 172 Wash. 243, 19 P.2d 927 (1933).
It is our conclusion, accordingly, that a public utility district, unlike counties, cities and port districts, does not have the general authority to expend funds to [[Orig. Op. Page 5]] publicize the resources or advantages of a particular area, as distinguished from advertising of its own utilities, services, rates, or other matters peculiar to the operation of the PUD itself.
Under the provisions of the interlocal government cooperation act, chapter 39.34 RCW, public agencies which are covered by that act can join together in performing any function or act which each of the participating agencies can lawfully perform separately. RCW 39.34.030 provides in pertinent part as follows:
"(1) Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having the power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of the state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges and authority conferred by this chapter upon a public agency.
"(2) Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force.
". . ."
Public agencies covered by the act include counties, cities, port districts and public utility districts. See, RCW 39.34.020. However, reinforcing the requirement that there be a subsisting authorization for the conduct of the activity by each participating agency, we specifically note RCW 39.34.090, providing as follows:
"Nothing in this chapter shall be construed to increase or decrease existing authority of any public agency of this state to enter into agreements or contracts with any other [[Orig. Op. Page 6]] public agency of this state or of any other state or the United States with regard to the generation, transmission, or distribution of electricity or the existing powers of any private or public utilities."
Therefore, we conclude that the county, cities and port district which are the subject of your first question may lawfully enter into an agreement with each other for the joint publication of the proposed brochure. However, a public utility district, lacking the substantive authority to expend its funds for the broad purposes represented by the brochure, cannot be a fully participating member of the joint undertaking.
We have not overlooked the further element in your question; namely, the proposed participation by the Chamber of Commerce. However, there is no legal principle forbidding the participating public agencies from receiving assistance or cooperation from a private agency such as the Chamber of Commerce. It is evident that the interests of all participating agencies, including the Chamber of Commerce, would be identical; and for that reason the $2,000 contribution by the Chamber of Commerce could be treated as a grant under RCW 39.34.070, providing as follows:
"Any joint board created pursuant to the provisions of this chapter is hereby authorized to accept loans or grants of federal, state or private funds in order to accomplish the purposes of this chapter provided each of the participating public agencies is authorized by law to receive such funds."1/
In answer to your third and final question, the conclusion that a public utility district may not expend funds to promote generally the area in which it is located does not mean that a public utility district has no authority to advertise its own facilities and operations. On the contrary, the legislature has now expressly granted to public utility districts advertising powers very similar to those of private utilities engaged in similar proprietary functions. RCW 54.16.090, supra.
Therefore, in our opinion, a public utility district may agree to pay a reasonable amount to the public agencies participating in the joint undertaking for space and such [[Orig. Op. Page 7]] appropriate advertising in the brochure as may be within the PUD's own powers. The amount to be paid, of course, would be the subject of a separate agreement between the parties with the limitation that the amount paid by the PUD must be reasonably communsurate with the advertising service actually performed.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Robert F. Hauth
Assistant Attorney General
*** FOOTNOTES ***
1/The joint board mentioned in that statute is the administrative agency established by the participating public agencies to administer the joint undertaking. See, RCW 39.34.030.