OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- RECEIPT OF COMPENSATION FOR ASSISTANCE IN PREPARATION OF LEGISLATION

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- RECEIPT OF COMPENSATION FOR ASSISTANCE IN PREPARATION OF LEGISLATION

(1) Circumstances under which a state legislator will be guilty of receiving unlawful compensation under RCW 9A.68.030(1)(a) if, in his official capacity as an employee of either a private or other public agency (i.e., outside of his legislative employment), he gives advice or other assistance on legislation upon which he may later be required to testify or vote in the legislature.

(2) Circumstances under which the private or other public employer of such a legislator will be guilty of granting unlawful compensation under RCW 9A.68.030(1)(b) for paying the legislator for advice or other assistance in preparing or promoting a bill upon which the legislator may later be required to testify or vote in the legislature.

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                                                                February 24, 1976

Honorable Irving Newhouse
State Representative, 15th District
Legislative Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1976 No. 6

Dear Sir:

            By letter previously acknowledged you have directed our attention to RCW 9A.68.030, a section of the new state criminal code which becomes operative on July 1, 1976, and have asked for our opinion on several questions pertaining thereto.  We paraphrase your questions as follows:

            (1) Will a state legislator be guilty of receiving unlawful compensation under RCW 9A.68.030(1)(a) if, in his official capacity as an employee of either a private or other public agency (i.e., outside of his legislative employment), he gives advice or other assistance on legislation upon which he may later be required to testify or vote in the legislature?

             [[Orig. Op. Page 2]]

            (2) Assuming an affirmative answer to question (1) could the legislator escape legal liability by requesting to be excused from voting on the legislation?

            (3) Under the circumstances described in question (1) would the private or other public employer of the legislator involved be guilty of granting unlawful compensation under RCW 9A.68.030(1)(b)?

            (4) If the answer to question (3) is in the affirmative, is there any means available by which the employer could escape legal culpability while still retaining the services of the subject legislator?

            We answer these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            RCW 9A.68.030 reads as follows:

            "(1) A person is guilty of receiving or granting unlawful compensation if:

            "(a) Being a public servant, he requests, accepts, or agrees to accept compensation for advice or other assistance in preparing a bill, contract, claim, or transaction regarding which he knows he is likely to have an official discretion to exercise; or

            "(b) He knowingly offers, pays, or agrees to pay compensation to a public servant for advice or other assistance in preparing or promoting a bill, contract, claim, or other transaction regarding which the public servant is likely to have an official discretion to exercise.

            "(2) Receiving or granting unlawful compensation is a class C felony."

            In accordance with the implementing timetable set forth in RCW 9A.04.010, this statute will ". . . apply to any offense committed on or after July 1, 1976, . . ."  Conversely, RCW 9A.68.030, like the remainder of the new criminal code, is inapplicable to any action or conduct occurring prior to that date.  Accord, AGO 1976 No. 4 [[to Earl F. Tilly, State Representative on January 22, 1976]].

             [[Orig. Op. Page 3]]

            Question (1):

            It is clear that a state legislator will be a "public servant" within the meaning of RCW 9A.68.030, supra.  See, RCW 9A.04.110(22), a part of the definitions section appearing in the new criminal code, which reads as follows:

            "'Public servant' means any person other than a witness who presently occupies the position of or has been elected, appointed, or designated to become any officer or employee of government, including a legislator, judge, judicial officer, juror, and any person participating as an advisor, consultant, or otherwise in performing a governmental function;"

            Thus, paraphrasing RCW 9A.68.030(1)(a) in terms of your first question, it is apparent that a legislator will be guilty of receiving unlawful compensation if, as a part of his outside employment for which compensation is paid, he gives advice or other assistance in preparing a bill upon which he knows he is likely, later, to have occasion to exercise "an official discretion"; e.g., determining whether to sponsor or introduce the bill, passing upon it in committee or, to the extent compatible with Article II, § 30 of the state constitution, voting upon it on the floor of the house of which he is a member.1/   This, however, does not mean that a legislator can never be compensated, as a part of his outside employment, for any form of consultation regarding a proposed bill or other legislative measure.  RCW 9A.68.030,supra, is a criminal statute and, as such, must be strictly construed.  Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1960), and cases cited therein.  Thus, the statute is not to be extended  [[Orig. Op. Page 4]] beyond its plain terms by construction or implication.

            Insofar as a legislator or other public servant is concerned, the expressly defined crime under RCW 9A.68.030 is that of requesting, accepting, or receiving compensation for advice or other assistance in preparing a bill.  This, obviously, includes the function of bill drafting itself.  In addition, it includes giving advice to others as to how a particular bill should be drafted.  But it does not, in our opinion, cover the advocacy or promotion of the passage of a bill by the legislature.2/   Nor, by the same token, does it cover written or verbal explanations of a bill such as, for example, may occur when a legislator who is also an attorney is called upon to explain the legal consequences of a pending bill to a client or employer.

            In short, RCW 9A.68.030 means precisely what it says ‑ but no more.

            Question (2):

            Given a factual circumstance under which RCW 9A.68.030(1)(a) will apply (e.g., bill drafting for compensation by a legislator in his private capacity) you have next asked whether the legislator involved may escape legal culpability by requesting to be excused from voting on the legislation.

            If by voting you have reference to such voting as would be prohibited by Article II, § 30,supra, it would not seem to us that the act of disclosure and accompanying request to be excused would, in and of itself, constitute an exercise of official discretion within the meaning of the statute.  However, as above explained, the mere fact that a particular legislator may not be entitled, under the constitution, to vote on a bill because of a private interest therein will not immunize him from potential criminal liability under RCW 9A.68.030(1)(a) if, at the time he assists in preparing such  [[Orig. Op. Page 5]] a bill for compensation he nevertheless knows he is likely to have some other form of official discretion to exercise ‑ such as deciding whether or not to introduce or sponsor it, etc.  And, of course, whatever criminal liability arises under the statute will attach at the time of occurrence of the act of requesting, accepting, or agreeing to accept compensation for bill drafting assistance; and thus any later decision to ask for an excuse from voting as an exercise of discretion in a given case would be irrelevant.

            Question (3):

            Your third question is the converse of your first; i.e., under the circumstances described in question (1) would the private or other public employer of the legislator involved be guilty of granting unlawful compensation under RCW 9A.68.030(1)(b)?

            The portion of RCW 9A.68.030 which is relevant to this question, here repeated for ease of reference, reads as follows:

            "(1) A person is guilty of . . . granting unlawful compensation if:

            ". . ."

            "(b) He knowingly offers, pays, or agrees to pay compensation to a public servant for advice or other assistance in preparing or promoting a bill, contract, claim, or other transaction regarding which the public servant is likely to have an official discretion to exercise."

            Note, however, that this portion of the statute is broader in one significant respect than is RCW 9A.68.030(1)(a).  That earlier segment of the statute, which we discussed in responding to your first question, only speaks of ". . . advice or other assistance inpreparing a bill, . . ." while subsection (1)(b) prohibits a person from knowingly paying or offering to pay a legislator (public servant) for advice or other assistance in preparing or promoting a bill ". . . regarding which the public servant is likely to have an official discretion to exercise."

            Therefore, while a legislator will not be guilty of receiving unlawful compensation under the statute if he is paid solely for promoting the passage of a bill which  [[Orig. Op. Page 6]] someone else has prepared, the employer or other person who pays such compensation will be guilty of the counterpart crime of granting unlawful compensation ‑ assuming the requisite statutory knowledge of the legislator's status, etc., by the employer or other person making payment.

            Question (4):

            Finally you have asked:

            If the answer to question (3) is in the affirmative, is there any means available by which the employer could escape legal culpability while still retaining the services of the subject legislator?

            Given a factual situation in which RCW 9A.68.030(1)(b), supra, applies, as above explained, we can conceive of no legal means by which the employer in question could escape legal culpability under the statute.  Again, however, it should be noted that even though subsection (1)(b) is more broadly written than is subsection (1)(a), the statute still does not cover mere consultation or advice regarding the meaning or legal significance of a bill proposed or pending before the legislature.  Thus, even after RCW 9A.68.030 becomes operative on July 1, 1976, it will still be permissible, for example, for a client or other person employing the services of a lawyer-legislator to discuss and consult with such legislator regarding the meaning and impact which a given bill will have if enacted into law.  The statutory prohibition will only come into play if the client or other employer further offers compensation to the lawyer-legislator for assistance in the preparation of a bill (or amendments thereto) or the promotion of its passage.