LOBBYIST ‑- REPORTING ‑- EXCEPTIONS ‑- GRASS ROOTS LOBBYING ‑- INITIATIVE NO. 276 ‑- WHO MUST REPORT

LOBBYIST ‑- REPORTING ‑- EXCEPTIONS ‑- GRASS ROOTS LOBBYING ‑- INITIATIVE NO. 276 ‑- WHO MUST REPORT

State agency lobbying under Initiative No. 276; exception of governor from reporting under § 19 (3); contents of reports required by other state offices.

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                                                                February 23, 1973

Honorable Daniel J. Evans
Governor
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 29

Dear Governor Evans:

            This is written in response to your recent letter requesting the opinion of this office on the following five questions regarding the meaning and applicability of certain provisions of Chapter II of Initiative No. 276 ‑ entitled "Lobbyist Reporting":

            (1) What persons and activities are regulated by the provisions of Chapter II of Initiative No. 276?

            (2) What is grass roots lobbying and to what extent is that activity regulated by Initiative No. 276?

            (3) Are the governor and lieutenant governor required by § 19 (3) or § 20 of Initiative No. 276 to file periodic reports regarding the lobbying activities of the subofficials or employees of their respective offices?

            (4) In reporting as required by § 19 (3) of Initiative No. 276, to what extent are state elected officials other than the governor or lieutenant governor required to include references to their own contacts with legislators, as distinguished from the lobbying activities of the subofficials or employees of their respective agencies?

            (5) If question (3),supra, is answered in the negative, do the personnel of the office of program planning and fiscal management and the planning and community affairs agency constitute employees of the governor's office for the purposes of this answer?

            We answer questions (1), (2) and (4) in the manner set forth in our analysis; question (3) is answered in the negative; and question (5) in the affirmative.

                                                                     ANALYSIS

            Question (1):

            As we have pointed out in previously issued opinions on this subject (commencing with AGO 1972 No. 29 [[to Irving Newhouse, State Representative on December 22, 1972]]), Initiative  [[Orig. Op. Page 2]] No. 276 is divided into several chapters.  Chapter II, encompassing §§ 15-20, is entitled "Lobbyist Reporting."  In general, the provisions of this chapter relate to all "persons" who engage in "lobbying" as that term is defined in § 2 (16) of the initiative; i.e.,

            "'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, chap. 34.04 R.C.W. and chap. 28B.19 R.C.W. [[chapter 34.04 RCW and chapter 28B.19 RCW]]."

            The word "person" is defined in § 2 (19) to include:

            ". . . an individual, partnership, joint venture, public or private corporation, association, federal, state or local governmental entity or agency however constituted, candidate, committee, political committee, political party, executive committee thereof, or any other organization or group of persons, however organized."

            The term "lobbyist" is defined in § 2 (17) as follows:

            "'Lobbyist' includes any person who shall lobby either in his own or another's behalf."

            Also to be noted here and discussed further below in responding to your second question is § 20, separately regulating an activity referred to as "grass roots lobbying" and defining this concept in subsection (1) as follows:

            "(1) Any person who has made expenditures, not reported under other sections of this act, exceeding five hundred dollars in the aggregate within any three month period or exceeding two hundred dollars in the aggregate within any one month period in presenting a program addressed to the public, a substantial portion of which is intended, designed, or calculated primarily to influence legislation shall be required to register and report, as provided in subsection (2), as a sponsor of a grass roots lobbying campaign.

            In determining what persons and activities are included within the various definitions set out above, it is equally important to identify those persons and activities which are  [[Orig. Op. Page 3]] expressly excluded from this portion of the initiative.  Section 16 exempts specific persons and activities in varying degrees from both the registration and the reporting requirement of §§ 15-20 as follows:

            "The following persons and activities shall be exempt from registration and reporting under Sections 15, 17, 19, and 20 of this act:

            "(1) Persons who limit their lobbying activities to appearance before public sessions of committees of the legislature, or public hearings of state agencies.

            "(2) News or feature reporting activities and editorial comment by working members of the press, radio, or television and the publication or dissemination thereof by a newspaper, book publisher, regularly published periodical, radio station, or television station.

            "(3) Lobbying without compensation or other consideration:  PROVIDED, such person makes no expenditure for or on behalf of any member of the legislature or elected official or public officer or employee of the State of Washington in connection with such lobbying.  Any person exempt under this subsection (3) may at his option register and report under this act.

            "(4) The Governor.

            "(5) The Lieutenant Governor.

            "(6) Except as provided by Section 19 (1), members of the legislature.

            "(7) Except as provided by Section 19 (1), persons employed by the legislature for the purpose of aiding in the preparation and enactment of legislation.

            "(8) Except as provided by Section 19 elected state officers, state officers appointed by the Governor subject to confirmation by the Senate, and employees of any state agency."

            Finally to be noted at this point, and also to be discussed further below in our coverage of your final three questions, is § 19, which reads as follows:

             [[Orig. Op. Page 4]]

            "(1) Every legislator and every committee of the Legislature shall file with the commission quarterly reports listing the names, addresses, and salaries of all persons employed by the person or committee making the filing for the purpose of aiding in the preparation and enactment of legislation during the preceding quarter.  The reports shall be made in the form and the manner prescribed by the commission and shall be filed between the first and tenth days of each calendar quarter.

            "(2) Unless expressly authorized by law, no state funds shall be used directly or indirectly for lobbying:  PROVIDED, this shall not prevent state officers or employees from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties:  PROVIDED FURTHER, that this subsection shall not apply to the legislative branch.

            "(3) Each state agency which expends state funds for lobbying pursuant to an express authorization by law or whose officers or employees communicate to members of the legislature on request of any member or communicate to the legislature requests for legislation or appropriations shall file with the commission quarterly statements providing the following information for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each employee engaged in such legislative activity, a general description of the nature of his legislative activities, and the proportionate amount of his time spent on such activities.

            "(c) In the case of any communications to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request.

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report.

            "(4) The provisions of this section shall not relieve any state officer or any employee of a  [[Orig. Op. Page 5]] state agency from complying with other provisions of this act, if such officer or employee is not otherwise exempted."1/

             From these several above‑quoted portions of this chapter of the initiative it will be seen that, in essence, the initiative coversbut separately regulates the lobbying activities of each of the three general classes of persons:

            (1) All persons who "lobby" within the definition of § 2 (16),supra, and are not expressly exempted by § 16;

            (2) State officers and employees, who are separately regulated by § 19,supra; and

            (3) Persons who engage in "grass roots lobbying campaigns," as that activity is described in § 20, supra.

            Question (2):

            Next you have asked for an explanation of this last noted separate regulatory provision.

            We have previously quoted the definition of "grass roots" lobbying as set forth in § 20 (1),supra.  The remainder of this section contains the details of the registration and reporting requirements of the initiative with respect to any "persons"1a/ engaged in this activity.

            Briefly, this section of the initiative requires that any person who makes expenditures which are not reported under some other section, exceeding a certain amount within a three‑month period or certain lesser amount within any one‑month period, in presenting a program to the public for the purpose of influencing legislation, must register and report as a ". . . sponsor of a grass roots lobbying campaign . . .".  Registration is accomplished by filing with the public disclosure commission a registration statement identifying the sponsor and the controlling persons responsible for managing the sponsor's affairs, together with other prescribed information.  In addition, every sponsor who has registered under § 20 must file monthly reports with the commission, detailing certain financial and other information.  Finally, upon termination of the campaign, the sponsor must file a notice of termination and final monthly report.

            Some confusion may arise because of the apparent similarity of "grass roots lobbying" expenditures as described in § 20, supra, to "lobbying" expenditures reportable under § 17 and also to expenditures reportable by candidates and political  [[Orig. Op. Page 6]] committees under §§ 8-11 of the initiative.  Undoubtedly recognizing that some such reporting requirements may overlap, § 20 requires reports only as to expenditures ". . . not reported under other sections of this act . . .".

            The expenditures reportable under § 20 have certain distinctive features to identify them, as a beginning point in determining their reportability under other sections.  First, they are expenditures in presenting programs to the public ‑ as distinguished from expenditures made in connection with addressing the legislature directly.  Second, they are expenditures for "influencing legislation" ‑ a term which does not include either administrative regulations of state agencies or ballot propositions ‑ with the possible exception of initiatives addressed to the legislature.  Section 2 (15) defines "legislation" as follows:

            "'Legislation' means bills, resolutions, motions, amendments, nominations, and other matters pending or proposed in either house of the state legislature, and includes any other matter which may be the subject of action by either house, or any committee of the legislature and all bills and resolutions which having passed both houses, are pending approval by the Governor."

            Question (3):

            Your third question, repeated for ease of reference, is as follows:

            "Are the governor and lieutenant governor required by § 19 (3) or § 20 of Initiative No. 276 to file periodic reports regarding the lobbying activities of the subofficials or employees of their respective offices?"

            The answer to this question is to be found in § 16, supra, to the extent that this section provides as follows:

            "The following persons and activities shall be exempt from registration and reporting under Sections 15, 17, 19, and 20 of this act:

            ". . .

            "(4) The Governor.

            "(5) The Lieutenant Governor.

            ". . ."

             [[Orig. Op. Page 7]]

            This language, which represents a total exemption of both the governor and lieutenant governor from either registration or reporting is to be contrasted with subsection (8) of this section which grants only qualified exemptions to other state officers and employees, as follows:

            ". . .

            "(8)Except as provided by Section 19 elected state officers, state officers appointed by the Governor subject to confirmation by the Senate, and employees of any state agency."  (Emphasis supplied)

            Notably, there are no lobbyist registration requirements for any state elected officials or their subofficials or employees to be found anywhere in the initiative.  Furthermore, the onlylobbyist reports required from those state elected officials who are nottotally exempted by § 16, supra, are those prescribed in § 19 (3) of the initiative,supra, whereby they must report the lobbying activities of their "employees" together with their communications with legislators in response to requests for information, etc.2/

             Therefore, the only conceivable objective the framers of the initiative could have had in formulating subsections (4) and (5) of § 16, supra, was to exempt the governor and lieutenant governor from having to makeany reports ‑ either as individuals or agency heads3/ - under § 19.  To conclude  [[Orig. Op. Page 8]] that those two state elected officials must file reports concerning either the legislative activities of their employees or any communications between legislators and their agencies would be to read subsections (4) and (5) out of the initiative entirely.  This we cannot do.  Such an interpretation would clearly violate the rule of statutory construction which requires meaning and effect to be given, wherever possible, to all words in the provisions of an enactment.  See,DeGrief v. Seattle, 50 Wn.2d 1, 297 P.2d 940 (1956).

            It is our opinion, therefore, that subsections (4) and (5) of § 16,supra, exempt the governor and lieutenant governor from making any of the statements or reports required by §§ 15-20 ‑ including the reports required of other state agencies by § 19 (3),infra.

            Question (4):

            Your next question involves those state elected officials not thus exempted from the reporting requirements of § 19 (3).  You ask:

            "In reporting as required by § 19 (3) of Initiative No. 276, to what extent are state elected officials other than the governor or lieutenant governor required to include references to their own contacts with legislators, as distinguished from the lobbying activities of the subofficials or employees of their respective agencies?"

            Section 19 (3),supra, here repeated for ease of reference, requires that:

            "(3) Each state agency which expends state funds for lobbying pursuant to an express authorization by law or whose officers or employees communicate to members of the legislature on request of any member or communicate to the legislature requests for legislation or appropriations shall file with the commission quarterly statements providing the following information for the quarter just completed:

            "(a) The name of the agency filing the statement;

            "(b) The name, title, and job description and salary of each employee engaged in such legislative activity, a general description of the nature of his legislative activities, and the proportionate amount of his time spent on such activities.

             [[Orig. Op. Page 9]]

            "(c) In the case of any communications to a member of the legislature in response to a request from the member, the name of the member making the request and the nature and subject of the request.

            "The statements shall be in the form and the manner prescribed by the commission and shall be filed within thirty days after the end of the quarter covered by the report."

            In our opinion this subsection requires each state agency head4/ not totally exempted from its reporting requirements (as are the governor and lieutenant governor) to list and detail separately in his agency's required quarterly report (a) the legislative activities of each "employee" of the agency; and (b) all communications to members of the legislature by officers and employees of the agency, in response to requests from such members.

            We reach this conclusion by carefully analyzing the wording of subsection (3),supra, reading each part together and with other sections of the initiative, and giving effect to every part; all as required by established rules of statutory construction which we summarized in AGO 1972 No. 29,supra.  See in particularHatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957), andState ex rel. Tacoma R. & P. Co. v. Pub. Serv. Com., 101 Wash. 601, 172 Pac. 890 (1918).

            Significantly the first part of § 19 (3), supra, applies expressly to ". . .  Each state agency . . ."  (1) which lobbies under express legal authority, or (2) whose officers or employees communicate with the legislature in certain permissible ways described in that subsection.  Subsection (3) then goes on  [[Orig. Op. Page 10]] to require the agency's report to provide several distinct categories of information listed separately in subsections (a) through (c).  The first, which is common to both other categories, requires simply an identification of the agency.  The second category, which is required by § 19 (3) (b), supra, is an identification of each "employee" engaged in such legislative activity, together with certain pertinent information.

            The third separate category, which is required by § 19 (3) (c), requires a listing of "any" communications initiated by members of the legislature; without any limitation as to the class of agency personnel with whom such communications are made.

            The words "officer" and "employee" as used in § 19 are commonly understood to refer to two distinct classes of state personnel.  See, AGO 65-66 No. 6 [[to C. J. Rabideau, Prosecuting Attorney, Franklin County on January 25, 1965]], a copy of which is enclosed.  The lawmakers in framing the wording of the initiative must be said to have intended to use their words in their ordinary sense, and neither word should be regarded as superfluous or surplusage.  See,Miller v. Pasco, 50 Wn.2d 229, 310 P.2d 863 (1957);State ex rel. Wash. Etc. Co. v. Murray, 181 Wash. 27, 42 P.2d 429 (1935).

            In our opinion, therfore [[therefore]], the phrase ". . . any communications . . ." cannot be regarded as including only communications between legislators and "employees"; otherwise, the word "officers" in the preceding introductory phrase "whose officers or employees communicate" would be meaningless and useless verbage.  Had the lawmakers intended to include only "employees" in both subsections (b) and (c) of § 19,supra, they undoubtedly would have indicated that intention by wording the qualifying phrase in question ". . . whose employees communicate . . ." or in some similar manner.  A legislative intention not expressed in an appropriate manner has no legal existence.  State ex rel. Gebhardt v. Superior Court, 15 Wn.2d 673, 131 P.2d 943 (1942).

            In summary, therefore, it is our opinion that each agency head in making the quarterly report required by § 19 (3), supra, must list under § 19 (3) (b) the legislative activities only of "employees" as that term is used in § 19.5/   However, the report  [[Orig. Op. Page 11]] must include a detailed list of communications between members of the legislature and any officer or employee of the agency, including the agency head himself, which have been initiated by a member of the legislature.

            Question (5):

            Finally, you have asked:

            "If question (3),supra, is answered in the negative, do the personnel of the office of program planning and fiscal management and the planning and community affairs agency constitute employees of the governor's office for the purposes of this answer?"

            (a) The office of program planning and fiscal management is not a separate state "agency" within the meaning of § 19 of the initiative.  The statutes which created that office expressly make it a part of the governor's office, and its statutory powers and duties under the present budget and accounting act are legally inseparable from those of the governor.  RCW 43.88.010 describes the purposes of the state budget and accounting act as follows:

            "It is the purpose of this chapter to establish an effective budget and accounting system for all activities of the state government; to prescribe thepowers and duties of the governor as these relate to securing such fiscal controls as will promote effective budget administration; and to prescribe the responsibilities of agencies of the executive branch of the state government."  (Emphasis supplied)

            RCW 43.88.020 (3) then defines the "director of program planning and fiscal management" as meaning:

            ". . . the official appointed by the governor to serve at the governor's pleasure andto whom the governor may delegate necessary authority to carry outthe governor's duties as provided in this chapter.  The director of program planning and fiscal management shall be head of the office of program planning and fiscal management which shall be in the office of the governor."  (Emphasis supplied)

            RCW 43.88.160, in describing the functions of the office of program planning and fiscal management, significantly provides, in pertinent part, as follows:

             [[Orig. Op. Page 12]]

            "(1) Governor; director of program planning and fiscal management.  The governor,through his director of program planning and fiscal management, shall devise and supervise a modern and complete accounting system for each agency to the end that all revenues, expenditures, receipts, disbursements, resources and obligations of the state shall be properly and systematically accounted for.  The accounting system shall include the development of accurate, timely records and reports of all financial affairs of the state.  The system shall also provide for comprehensive central accounts in the office of program planning and fiscal management.  The director of program planning and fiscal management may require such financial, statistical and other reports as he deems necessary from all agencies covering any period.

            "In addition, the director of program planning and fiscal management,as agent of the governor, shall:

            ". . ."  (Emphasis supplied)

            InYelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1950), at page 302, our supreme court, in construing that act said:

            ". . .  The legislature specified the governor, through the budget director, as the instrumentality to accomplish this objective [the establishment of a uniform budget and accounting system for state government].

            ". . .  The act provides that thegovernor, personally or through his designated agent, is to issue the regulations necessary to carry out the purpose of the act. . . ."  (Emphasis supplied)

            Accord,Weaver v. Evans, 80 W.D.2d 461 [[80 Wn.2d 461]], 472-473 (1972), characterizing budget and allotment activities under chapter 43.88 RCW as those of "the governor."

            Obviously, since the statutory activities of the office of program planning and fiscal management are those of "the governor," the employees in that office who engage in those activities must be regarded as the "employees" of the governor under § 19 (3), supra.  Otherwise, as we have just explained, exempting the governor would have been a vain act.

             [[Orig. Op. Page 13]]

            The law-making body which enacted Initiative No. 276, and in so doing expressly exempted the governor from certain of its provisions, must be presumed to have been familiar with the constitutional and statutory provisions pertaining to that office.  See, AGO 1972 No. 29,supra, and cases cited therein.  Furthermore, these lawmakers should be deemed to have been aware that the governor functions through and by means of a staff including the office of program planning and fiscal management; and other assistants and employees.  If it had been their intention to exempt the governor from filing reports as to only parts of his staff, or only some of the divisions of his office, presumably they would have said so in the initiative.  Instead, tested by the applicable rules of statutory construction, their intent must be regarded as that of exempting the governor from making reports covering any such staff members or employees.  For that reason we must conclude that the office of program planning and fiscal management (including its director) as a part of the governor's office, is exempt from all of the reporting or registration requirements of §§ 15-20 of the initiative.