Bob Ferguson
Other LanguagesAGLO 1971 No. 110 -
Attorney General Slade Gorton
- - - - - - - - - - - - -
September 22, 1971
Honorable Margaret Hurley
State Representative, 3rd District
730 East Boone Avenue
Spokane, Washington 99202 Cite as: AGLO 1971 No. 110 (not official)
Dear Representative Hurley:
By letter previously acknowledged you requested our opinion with regard to the necessity for compliance with § 3, chapter 109, Laws of 1971, 1st Ex. Sess., on the part of the various organizations which may be involved in the proposed exposition, to be known as Expo '74, which is to be held in the city of Spokane in 1974 in accordance with certain other statutes passed by the recent, 1971 legislature. We paraphrase your question as follows:
(1) Do the provisions of § 3, chapter 109, Laws of 1971, 1st Ex. Sess., requiring the preparation of "environmental impact statements" by public agencies in this state under certain circumstances, apply to:
(a) Expo '74, a nonprofit corporation which is referred to in § 5, chapter 1, Laws of 1971, 1st Ex. Sess.;
(b) The Expo 74 commission which was created by § 4 of this 1971 act;
(c) The Washington state building authority and the state department of commerce and economic development which are authorized, under chapter 3, Laws of 1971, 1st Ex. Sess., to participate in certain aspects of the proposed Expo '74 presentation;
(d) The city of Spokane, which is also planning to participate in this exposition?
We answer all four subparts of this question in the affirmative for the reasons set forth in the following analysis.
ANALYSIS
[[Orig. Op. Page 2]]
Your first question involves the relationship between three measures enacted by the 1st extraordinary session of the 1971 legislature ‑ specifically, chapters 1, 3 and 109 of that session. By the first of these acts, the legislature made provision for the conduct of an exposition, to be known as "Expo '74," in the city of Spokane during 1974. This exposition is proposed to be held in celebration of Spokane's 100th anniversary as a city.
The governing body of this operation is to be the Expo 74 commission, as provided for in § 4 of the act, which reads as follows:
"There is created the Expo '74 commission to consist of fifteen members to be selected as follows: Five by the governor, of whom one shall be designated by the governor as chairman of the commission, three by the president of the senate (lieutenant governor) and three by the speaker of the house of representatives to serve until April 30, 1975, the lieutenant governor, the speaker of the house of representatives, one member of the board of county commissioners of Spokane county to be appointed by such board, and one member of the Spokane city council to be appointed by such council. The commission shall serve without compensation and shall meet at such time as it is called by the governor or by the chairman of the commission."
In conducting the exposition, the commission has been directed by the legislature to act through a nonprofit corporation organized under the provisions of chapter 24.03 RCW, in accordance with the following provisions of § 5 of the act:
"The members of the exposition commission may become directors of Expo '74, a nonprofit corporation organized under the provisions of chapter 24.03 RCW and may remain directors of the corporation as long as they are members of the commission or until their successors are appointed and qualified. The exposition commission through the nonprofit corporation shall stage an exposition [[Orig. Op. Page 3]] in the city of Spokane during the year 1974 or as soon thereafter as deemed practical by the commission and shall carry out the purposes of the exposition by suitable exhibits."1/
The second of the three acts to be noted, chapter 3, Laws of 1971, 1st Ex. Sess., provides, essentially, for state cooperation in the creation and operation of Expo '74. Under this act, the Washington state building authority and the state department of commerce and economic development have each been given authority to acquire land for the purposes of constructing buildings and improvements for the use of the state as a portion of the exposition.
In addition, it is contemplated that the city of Spokane will also participate in the creation and maintenance of the exposition to be staged within that city. Under the provisions of § 6, chapter 1, Laws of 1971, 1st Ex. Sess., the Expo '74 commission, the state departments of commerce and economic development and of ecology, as well as all other interested state departments and agencies, are directed to cooperate with the city of Spokane in order to further the development of the proposed exposition.
Lastly, the third of the 1971 acts to be here considered, chapter 109, Laws of 1971, 1st Ex. Sess., establishes certain requirements with respect to activities and proposals by all state and local agencies which have an environmental impact. Section 1 of this act declares the purposes thereof as follows:
"The purposes of this act are: (1) To declare a state policy which will encourage productive and enjoyable harmony between man and his environment; (2) to promote efforts which will prevent or eliminate damage to the environment and biosphere; (3) and stimulate the health and welfare of man; and (4) to enrich the understanding of the ecological systems and natural [[Orig. Op. Page 4]] resources important to the state and nation."
The requirement for preparation of a detailed statement of environmental impact is set forth in § 3 of the act as follows:
"The legislature authorizes and directs that, to the fullest extent possible: . . .
"(2) all branches of government of this state, including state agencies, municipal and public corporations, and counties shall:
". . .
"(c) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:
"(i) the environmental impact of the proposed action;
"(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;
"(iii) alternatives to the proposed action;
"(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
"(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;"
The issue raised by your question is whether each of the several organizations specified in subparts (a) through (d) thereof constitute " . . . branches of government of this state, including state agencies, municipal and public corporations, . . ." within the meaning of this statutory requirement.
Unquestionably, the Expo '74 commission which is provided for in § 4, chapter 1, Laws of 1971, 1st Ex. Sess., supra, is a state agency and thus is covered by [[Orig. Op. Page 5]] the provisions of § 3, chapter 109, Laws of 1971, 1st Ex. Sess., supra. Similarly, without question the state building authority and the state department of commerce and economic development meet this criteria, and thus are also governed by the "environmental impact statement" requirement of this statute. And, of course, the city of Spokane, as a municipal corporation of this state is likewise covered by this requirement beyond any doubt.
This leaves us, then, only with the Expo '74 nonprofit corporation to which reference is made in § 5, chapter 1, Laws of 1971, 1st Ex. Sess., supra. At first blush, it might appear that this organization is merely a private corporation and thus is not covered by the environmental impact requirements of chapter 109. However, close examination of the relationship between this corporation and the Expo 74 commission leads us to conclude that the corporation serves, in effect, as an alter ego of the commission for the purpose as expressed in § 5, chapter 1, Laws of 1971, 1st Ex. Sess., of staging the exposition to which this act refers. This section, it will be recalled, provides in material part that:
" . . . The exposition commission through the nonprofit corporation shall stage an exposition in the city of Spokane during the year 1974 or as soon thereafter as deemed practical by the commission and shall carry out the purposes of the expostition by suitable exhibits." (Emphasis supplied.)
From this it follows, in our judgment, that any activities of the corporation having an environmental impact within the meaning of chapter 109, Laws of 1971, 1st Ex. Sess., supra, must be regarded as being subject to the requirements of § 3, thereof ‑ as if they were activities of the Expo '74 commission itself. Accord, Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904, 447 P.2d 707 (1968). In this case, the fact that the Washington state oceanographic commission, as created by chapter 243, Laws of 1967, performs certain of its functions through the vehicle of a nonprofit corporation (the oceanographic institute) was material to the court's conclusion that the positions on the commission constituted "civil offices" within the meaning of Article II, § 13 of our state constitution.
We note further that the present act (chapter 1, Laws of 1971, 1st Ex. Sess., supra) creating the Expo '74 [[Orig. Op. Page 6]] commission, etc., is virtually identical to certain 1955 and 1957 legislation involving the Seattle "Century 21" World's Fair of 1962.2/ In litigation involving the status of the nonprofit corporation there involved (Century 21, Inc.), it was assumed but not squarely decided that the corporation was, itself, a state agency. See, Petschl v. Century 21 Corp., 61 Wn.2d 276, 377 P.2d 991 (1963). Thereafter, based upon advice issued by this office, the corporation was treated as a state agency for audit purposes under the provisions of RCW 43.09.290, et seq. (state departmental audits). We believe that this characterization of Centruy 21, Inc., was correct, and that it equally fits the Expo '74 nonprofit corporation in the case at hand.
Therefore, in summary with respect to the several subparts of your question as set forth above, it is our opinion that each of the organizations referred to therein must be regarded as a public agency which is subject to the "environmental impact statement" requirements of § 3, chapter 109, Laws of 1971, 1st Ex. Sess., supra.
Beyond this direct answer to the question which you posed, we believe it desirable ‑ particularly in view of our reference to the Oceanographic Commission case, supra ‑ to add our thoughts on a related question which you did not ask, but which, nevertheless must be regarded as being involved in the over-all subject matter of this opinion. This related question, of course, pertains to the constitutional eligibility of members of the 42nd legislature to serve on the Expo 74 commission during the remainder of their current terms of office under the provisions of § 4, chapter 1, Laws of 1971, 1st Ex. Sess., supra.
Under this section, three out of the fifteen members of the Expo '74 commission are to be designated by the president of the senate (lieutenant governor) and three are to be designated by the speaker of the house of representatives. In addition, the speaker himself is to serve on the commission. While there is no requirement in this statute that the persons thus designated must be members of the senate or the house, we are informed that, in fact, the individuals who have been appointed to fill these positions are state senators and representatives, respectively, and all were members of the 42nd legislature which created the Expo 74 commission.
[[Orig. Op. Page 7]]
The problem to be here discussed arises by virtue of Article II, § 13 of our state constitution which provides that:
"No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."
The five essential elements or attributes of a civil office, within the meaning of this constitutional provision, were most recently set forth by our court in Oceanographic Comm'n v. O'Brien, supra, at page 909, as follows:
"'. . . five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional.'"
See, also, AGO 1967 No. 32 [[to Governor on August 31, 1967]], in which this same five element test was applied in determining the constitutional eligibility of members of the 40th legislature for service on certain other state boards or commissions. In that opinion we concluded, specifically, that no member of the 40th legislature was eligible, during his then existing term of office, to serve as a member of the board of trustees of the new 4-year state college which was created by that [[Orig. Op. Page 8]] legislature, or as a member of the Washington state arts commission which was granted certain powers of government by that session.
As was the case with respect to those two bodies (as well as the state oceanographic commission under the decision of the court in the above‑cited case) we have no doubt that each of the five requisite elements of a "civil office" are present in the case of the Expo '74 commission. Unquestionably, this commission was created by the legislature, with legislatively defined powers and duties, for the purpose of exercising a sovereign power of government; namely, the conduct of a public exposition. Its duties are to be performed independently and without control of a superior power, other than the law; and, lastly, we believe that in providing for its continued existence through April 30, 1975, the legislature has imparted to the commission a sufficient degree of permanency and continuity to cause the final element in the applicable test to be met.
Therefore, we are compelled to conclude that the seven state senators or representatives (including the speaker of the house), members of the 42nd legislature, who are currently serving as members of the Expo '74 commission are constitutionally ineligible to do so during the remainder of their present legislative terms of office. Of course, we should point out that because Article II, § 13, only establishes a temporary ineligibility on the part of legislators, these individuals, or any other members of the 42nd legislature will be eligible to serve on the Expo '74 commission after the expiration of their current legislative terms.
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/We are informed that such a nonprofit corporation as is referred to in this section was created by the filing of incorporation papers with the secretary of state on May 5, 1971.
2/See, chapter 307, Laws of 1955, as amended by chapter 15, Laws of 1957.