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Christine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON
1125 Washington Street SE · PO Box 40100 .. Olympia WA 98504-0100
MEMORANDUM
February 23,2004
TO:
DR. SHAON McGA VICK, President
Clover Park Technical College
FROM:
W. HOWAR FISCHER
Senior Assistant Attorney General
SUBJECT:
Use of Public Funds-Ballot Measures
The League of Education Voters' much discussed intiative drve. is likely to
generate substatial interest in the higher education communty.
Enclosed please fid our anual public on the prohibitions regardig the use of
public fuds, propert, and resources to support or approve ballot propositions.
As President ofW ACTC, would you please shae ths with the presidents.
Than you.
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W. HOWAR FISCHER
Senior Assistat Attorney General
(360) 586-2789
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Enclosure
cc: Earl Hale, Executive Director, SBCTC (w/enc.)
Cindy Hough, TACTC Admstrtor, SBCTC (w/enc.)
Beth Wilis, President, Trutees Association
All Education Division Attorneys (w/enc.)
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Christine O. Gregoire
ATTORNEY GENERAL OF WASHINGTON
1125 Washington Street SE e PO Box 40100 · Olympia WA 98504-0100
MEMORANDUM
February 13, 2004
DR. JAMS SULTON, JR
TO:
Executive Director
Higher Education Coordiating Board, 43430
FROM:
w. HOWAR FISCHER
Senior Assistat Attorney General
SUBJECT:
Use of Public Funds-Ballot Measures & Legislative Lobbying
Ths is a follow-up to our bnef conversation after the GET meetig on the subject of
the League of Education Voters intiative. It is unclear at the point whether the tiroposal
will take the form of an intiative ballot proposition to the voters or as a bi 1 in the
Legislature.
Enclosed please fid a copy of our anual publication on the prohibitions regardig
the use of public fuds, lropert, and resources to support or oppose ballot propositions.
Also enclosed' isa bne memo regardig lobbyig activities DY state agencies on bils
pending in the Legislatue. ' "
At some point, it may be importt
'to have a discussion with the Board members
about their involvement in the League's proposaL.
If you have any questions, pleae feel free to contact me. I look fOI'vard to meetig
with you on Februar 23.
Than you.
~
. W HER
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Senior Assistat Attorney General
(360) 586-2789
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Enclosures
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Christine O. Gregoire
ATIORNY GENERA OF WASHINGTON
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1125 Washington Street SE · PO Box 40100 e Olympia W A 98504-0100:;11:. ~-'
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MEMORANDUM
Augut 26, 2003
"(
RECEIVED
AUG 2 7 2003
CHRS GREGOIR
TO:
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EXECUTIV TEAM
OFFICE OF ATTORNEY GENERAL
EDUCATION OlV.-OLY. .-
TEAM
SOLICITOR GENERA TEAM
MAAGEMENT
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FROM:
/ ior Assistat Attoi-ey General, 0100
SUBJECT:
2003 lection-Restrictions On Use Of Public Funds And
-:erty To Support Or Oppose Candidates Or Ballot Measures
I. INTRODUClION
ths memoradum is to remind everyone in the Attorney Genera's
The primar purse of
Offce, and though them the client agencies, about the statutory prohibitions reardig the use of .
. public fuds and public propert and facilities to support or oppose cadidates or. ballot
November 2003, in which sttewide ballot
propositions. The State will conduct an election in
meaes will be submitted to the voters for their approval in addition to fillig severa hundred
loca govenuent offce. Furermore, fudrsing and capaigrng has aly begu for the
2004 election, which is a presidential election yea and is al a yea in which 1egilative,êxecutive,
and judicial offce will appea on the ballot The law establishes clea litaons on the use of
. public fuds or facilities for politica caaign puioses.
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IT. STATUTORYPROHIÌTION AGAIS't USE OF PUBLIC FACIIT
TO SUPPORT OR OPPOSE BALLOT PROPOSITIONS
as follows:'
have been governed by the state ethics
4252.RCW. RCW 42.52.010 defines "stae offcet'and "state émployee"
. Since' Januar 1, 1995, state agencies and emloyee
law, codified as Chapter
(18) "State offcet' mea every persn holding a position of public trt'iIi
or under an executive, legislative, or judicial offce of the state. "Stae offcer"
includes judges of the superior cour judges of the cour of appea, jusce of the
. supreme Cour members of the legislatu togeter with the secreta of
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and the chief clerk of the house of representatives, holders of elective offce in the
executive brach of state governent, chief executive offcers of state agencies,
members of boards, commissions, or committee with authority over one or more
the state who are engaged in
supervsory, policy-making, or policy-enforcing work. For the purposes of this
of
state agencies or' institutions, and employee
chapter, "state offcer" also includes any person exercising or underting to
exercise the powers or functions of a state offcer.
(19) "State employee" mean an individual who is employed by an agéncy in
any brach of state govenuent. For purses of ths chapter, employee of the
superior cour are not state offcers or state employee.
FuIermore, subsection (3) ofRCW 42.52.180 (enacted as Laws of 1994, ch. 154, § 118-te new
State Ethics' Law) speificaly provides that "(a)s to state offcers and employees, this section
operates to the exclusion ofRCW 42.17.130".
these changes, then, is to make RCW 42.52.180 (and not RCW 42.17.130)
the relevant statute for analyzing the extent to which state agencies and employee can use public
facilities in connection with political campaigns, including campaign on ballot propositions. The
The net effect of
text of RCW 42.52.180 is attached to this memoradum. Several features of the 1994 act merit
special attention.
First, RCW 42.52. i 80 provides that "(k)nowing acquiescence by a person with authority to
direct, control, or infuence the actions of the state offcer or state employee using public resources
in violation,of ths section constitutes a violation of ths section". The evident purose of ths
sentence is to create imputed liability for supervisors and others who "knowigly acquiesce" in a
violation by a subordinate employee. '
RCW 42.52.180 provides four types of exceptions to the general prohibition. The first of
those four (RCW 42.52.180(2)(a)) relates to action taken by the members of an elected
legislative body to express a collective decision supportng or opposing a ballot proposition. The
ths section for an
second exception (RCW 42.52.180(2)(b)) provides that "it is not a violation of
elected official to
respond to an inquiry regarding a ballot proposition, to make incidental
remarks concernng a ballot proposition in an offcial comrunication,or otherwse comment on
a ballot proposition without 'an actual, meaurble' expenditue of public fuds". The thd
exception (RCW 42.52.180(2)(c))èovers "(a)ctivities tht are par of the normal and reguar
conduct oftle offce or agency". The fourth exception (RCW 42.52.180(d)) permits "(d)e mins
use of public facilities by state-wide elected offcials and legislators incidental to the prepartion or
delivery of permissible communications, including wrtten and verbal communcations initiated by
their views on ballot propositions that fureseebly may afect a matter that falls withn their
them of
constitutional or sttutory responsibilities".\
i The first three exctptions are essentiany the satne as those provided in RCW 42.17.130. The four
exception is new with the 1994 Ethics Act.
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III. CASES, ATTORNY GENERA OPINIONS, AN INTERPRETIV RULES
There is not yet a body of appellate cae Jaw interpreting RÇW 42.52~ 180. However, the
Executive Ethics Board is grdually developing a body of administrtive interpretations. The
Board's advisory opinions ar ,.available from the Board on request or though its website
ww. wa.gov/ethics/opinions. '
the, cunt 'ethcs coe, state agencies were... ~ovemed "by
Before the enactment. ,of
which still
RCW 42.17.130,
applies to loc:. governents. Becuse the languge of
RCW 42.52.180 is simlar to RCW 42.17.130, the cae law and opinions constrng that statute may
relevance in constrng the newer law.2 There are thee formal attorney genera opinons
stil be of
construing RCW 42.17 generally, inCluding RCW 42.17.130. Attorneys trg to interpret the
curent act should read them, but they should also check their analysis caefully agait subsequent
changes in the statutes interpreted
The first of the thee opinons is AGO 1973 No. 14, a long opinon anwerig some 23
questions about Initiative 276 (the initiatve measure whose approval constituted the enactment of
what is now RCW 42.17). Tls opiiuon is valuable priarly as a discussion of the lustoncal
background of the law. AGO i 975 No. 23 constres the language concernng "normal and reguar
conduct of the offce or agency" and is worth reading since the same languge appea in
RCW 42.52.180. The new statute's additions clarfy the law in ths respect and are substtially in
harony with the analysis contaed in AGO 1975 No. 23. Finally, AGO 1979 No.3, constrng
RCW 42.17.130, concluded that the use of college or unversity facilities for political conventions,
meetings, and candidates' foru did not violate the section, and prolubitions such as
public propert, such as
politica activities. Since the
RCW 42.17.130 were not intended to cover "neutrl public foru" us of
the use of publicly owned facilities on a nondicriatory basis for
basic prolubition in RCW 42.52.180 is simlar to that contaed in RCW 42.17:130, ths opinon is
probably of continuing relevance in interpreting the new statute. ,My own view is that
RCW 42.52.180, like the older statute, should be interpreted to allow the use of "neutr public
available on a nondiscnmiatory basis for politica purses?
foru" facilities when made
rules interpretig RCW 42.52.180.
The Executive Ethcs Board has adopted two
"facilities of an agency" in
WAC 292-110-020 defines the term ''workig hour". Th~ defition of
RCW 42.52.180(1) includes "employee of the
agency
dung workig hour", and the rue is
intended to "flesh out" what the statory phr.mea. A send rue, WAC 292-110-030, defies
2 There are only two reported ca constrg RCW 42.17.130. King County Council v. Public Disclosure
Commission, 93 Wn.2d 559, 561, 611 P.2d 1227 (1980), concluded that a county council could, as a matter of "normal
and regular conduct", pas relutions endorsing a ballot meaure. City of Seatte v. State, 100 Wn.d 232. 668 P.2d
1266 (1983), held that a city ordince providig paal public fudig for cadidates in city elections did not violate
RCW 42.17.130. However, subseuent legislation ha rendered both of thes opiions moot Later amndmnts to
RCW 42.17.130 explicitly pemutted the conduct wluch the cour allowed in King County Council, wIe the ~nactit
ofInitiative 134 (RCW 42.17.128) spifically prolubited locl govenunts from using public fuds to fice political
campaign for state or locl offce.
i Alth9ugh AGO 1979 No. 3 doe not explicitly discuss it, some public propert constitutes trditional
"public forum" area in which citize have a constitutional right to asemble and spek. The ethics statute wa not
, intended to prohibit
political rall~ on the state,
capitol steps or
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parades on public streets.
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the term "meaurle expenditue". RCW 42.52.
inquiry
regarding a ballot
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80(2)(b) permts elected offcials to repond to an
proposition so long as there is no "actu, meaurble expenditue of
public fuds"; the rule interprets ths phre. These two rules are attched to this memo.
The Executive Ethics Board has issued several advisory opinions on the use of public
facilities for campaign puroses. One of the ealy ones, Advisory Opinion, No. 96-10, concluded
that. an electeg. offcial who headed a state agency could, as a matter of "normal and regular,
home addresses explaiing management
conduct", wrte '.a letter to agency employees at their
policies, notwiths~ding that the letter was wrtten durng an election capaign aiËI that theletter
might incidentaly assist the offcial's re-election effort The opinon was based an a pecular set of
facts, and anyone seeking to extend its reaonig to other fact pattern should be very cautious.
EEB AdvisoiyOpinon 00-08 concerned the uSe of a stte offcer's or employee's title in
connection with an election capaign. The opinon concluded that the title is not a "tangible
facilty of an agency" but that any use of a title "mus be accmpared by a disclaier that the
offcers or employees are speg only for themselves and not for their agencies."
Two recent advisory' opinons provide valuable guidance. EEB Advisory Opinion 02-02
answers a senes of frequently asked quesions on the use of state resources. Many of the key terms
in RCW 42.52.180 are discused. Ths opinon is geaed to the personal use of public resources in
general, and not specifically to the use of public resource for campaign puroses. EEB Advisory
Opinion 02-04 discusses the use of state facilities, including electronic mail, to distrbute newspaper
aricles and edtonal opinons.
AUofthe Executive Ethcs Board Advisory Opinons are available by mail from the Board,
2425 Bnstol Cour S.W., P.O. Box 40149, Olympia WA 98504-0149, or electronically at
wW.wagov/ethcs.
IV. ADDITIONAL COMMNTS ABOUT THE USE OF PUBLIC FACILITIES
together informal advice frm a varety
of source (pnmary generaed in response'to 'ballot meaures in previous yea), and to point to
Ths section of
sour available for help in.
are intended to be cautious and
the memoradum is intended to drw
anwerig new questions wluch may arse. Although th~se anwtrs
noncontroversial, the ethics laws are subject to interpretation like
all legislation, and reasonable minds might differ on some detals. This memo represents my
own analysis and' is not the offcial position of the offce. Attorneys who are asked for advice
about specific situations should check my anwers against the current language of the statute,
future interpretations of the statute by the
together with any curent regulations :ad any existing or
agencies with junsdiction.4 Where there is disagreement, we should engage in fuer dialogue with
an eye toward giving consistent advice. '
4 It would b~ Wi to chèck for int~retve statements both by the' Public
Dislosu
Conuion,(whch '
contiues to admnister the provisions ofRCW 42.17.130) and the relevant ethcs board (see RCW 42.52.310-.380).
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As noted abve, the Executive Etcs Board has adopted some interpretve rules concernng
langue of the
Gìven the
RCW 42.52.180.5.
statute itself:andfaonn in caes and opinions
is possble
interpreting the older state (RCW42.17.130) to some extent, it
activities
statements about political
under ROW 42.52.180. I thnk the following
to make some general
activities are quite
clealy prohibited by RCW 42.52.180:
1. Using iworkhour to. solicit: signatues' for ballot propositions, ,to rase fuds
for or against such propositions, or to organe caaigns for or agait such
propositions~ Theprolubition simlarly bar the use of work ,tje to
capaign for
or ag a cadidate for public offce.
2. Using public property to campaign for or against a cadidate or ballot
proposition, except that "neutr foru" public propert otheiwse open to
public use may be used for campaigning also.
3. Using public facilitiesffcespace, electronic mail and data procsing
equipment, word proing and copying facilities, paper, supplies, and any
other publicly owned property-for capaign for or agat a ballot
proposition, or for or agait a cadidate, whether durg or afer work
hour.
4. Displaying politicalmatenal in or on publicly owned vehicles.
5. Displayig or distrbutig campaign matenal on publicly owned or operated
premises (other than "neutr open foru" propert or "personal space"
propert as discused below).
6. -- Using public
supplies, equipment, or facilities to pnnt, mai or otheiwse'
produce or distbute materals supportg or opposing any cadidate or
ballot proposition.
7. Using publicly owned facilities to intrct or urge public employee to
campaign for or
agt a cadidae or ballot proposition on
their own tie,
or staing or implyig that their job performance might be judged acrdig
to thC?ir willingnes to use their own tie on a capaign.
S The law also contemplates mdividua agency rues on ethcs matter. RCW 42.2.00. Many agencies,
mcluding the Attorney General's Offce, have existig rules or policies which would be relevat to a pacularinquii.
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8. Using public time and/or facilties to dr or pass a resolution by an
appointed commttee, board, or commssion tang an offcial position for or
against a pendinf ballot proposition, or endorsing or opposing a cadidate, '
for public offce. "
be conduct which is not prohibited by
following appea to
Turning to the other side, the
RCW 42.52.180:
1. An elected legilative body may collectively endorse or oppose. & ballot
measure ifit meets the proceurl requirements ofRCW 42.52.
1
80(2)(a).7
2. An elected offcial may make a statement in support of, or in opposition to, a
ballot proposition at an open press conference or in response to a specific
inquiry or may make incidental remarks concerng a ballot proposition in
'an offcial communcation, so long as there is no actual, meaurable
expenditue of public fuds. Again, note that tlus exception' is limited to
elected offcials and does not, by its terms, extend to such "support" activity
as using staff tie or state facilities to prepare or distrbute such a statement,
at leat if any "meaurble expenditue" of public fuds is involved.
3. Statewide elected offcials and legislators may make de minimis use of
public facilities to prepare or deliver communcations giving their views on
ballot propositions that foreseeably may afect a matter that falls with their
constitutional or statutory responsibilities. Note that tlsexception is
limited agai to elected offcials, and that it is related to the scope of each
offcer's offcial duties. Thus, the Governor and the, members of the
Legislatue may have authority to make sttements on more issues than say,
the Inurce CoiIssioner, whose scope of
the Secreta of State or
operation is more narowly defied
4. Unless it is inconsistent with some other applicable law or regulation, a
public employee is not prohibited from capaigng for or agat a ballot
proposition on the employee's peonal tie.s It should be clea that the
activity is the individua's personal, choice and is not tied to job
performance in any way. For state employee, the term "persna time"
"
6 Note that RCW 42.52.180(2)(a) and (b) relate exclusively to elected offcials and members of an elected
legislative boy. Exception (d), relating to "'de minimis use of public facilties", als relates only to statewide elected
offcials and legislators. The olÙY exception which is concivably applicable to the activities to an appoined board or
comÍission is exception (c), relating to "£a)ctivities that are par of the ~omial and regular conduçt of the offce or
agency". In light of the speific exception for eleded bdds, it seems unikely tht appointed bo would be held to
have the sa power by implication. An anysis of th isue would reui a caefu look at the powers and duties of
the parcula board, commttee, Qr agency in question.
7
Note tht the body must be both elected and legislative in natue.
8 Some state employees whose work is fuded with federal fuds may be subject to the restrctions of the
, Hatch Act, a federal statute which is quite different in scope from the state ethcs law. Certin employees who work '
jointly for more thn one entity, or who work on contmcts for other governents, nught be
the scpe of
this memo to analyz federallaw, or restrctions enacted by
subject to, arother
governents or other states. '
jurisdiction's restrictions. It is beyond
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would ordiarly only include: (1) time outside the employee's normal work
day; or (2) tie when the employee is on vaction leave statu or is using
leave properly and lawfully accumulated and consistent with applicable
statutes and persnnel regulations; or (3) on unpaid leave status.9 As noted
ealier, the Executive Ethics Board has interpreted "working hours" in
WAC 292-1-10-020.10
the offce, to
5. Public employee may contact fellow employee, away from
circulate petitions or to
solicit ()ne another for fuds, volunteers, and other '.- .
activity for and agat a ballot proposition, but only under circlÌtace .
which strctly avoid the use of offce time and public propert. Offcers and
employee would be wise to avoid soliciting subordinate employee becuse,
un~er those circumtace, the subordinate employees may feel (no matter
how carefully the campaign is conducted or the inquir is phred) that the
superior is using improper infuence.
6.
Where public space is available on a nonrestrcted basis to post signs,
petitions, and advertsements, or to make speehes and hold meetings, public
employees may use these "neutr public foru" spaces to expres their own
views, including their views on pending ballot propositions, asumng they
are not otherwise violatig RCW 42.52.180. However, it might well be a
, the statUte for public employees to use their positions to gain
. violation of
special advantae in the us of such "public foru" spaces, such as by
signng up all the time for the use of a public auditorium before
the sae space,
non-employee have had an equal opportty to seek use of
or by using their acc to a public bulleti board to ocupy the entire space
with favored capaign material and leaving no space available for opposing
material (or material relatig to other matter).'
,.
7. Public agencies may conduct reseach into the likely results of the passage of
a ballot proposition. hidee where the pasage of the proposition would
directly afec the agency's duties, an agency might be remss for not
conductig such research activity. However, it must be clea that the
reseach is being cOnducted with the purose of gatherig the facts, is
the agency's business, and is not
directly relate to the ordinar conduct of
i
I I recmmend
deSigned to support or oppose a cadidate or ballot meaure.
9 It is an obvious corolla tht employees campaigng on their own personal ti should avoid statig or
imlyig tht they are campaign on behalf of the state or of a state agency.
\0 The rule recogniz tht elected statewide offcials do not have working hour as such., Thus, it is up to
each elected offcer to allocate tie between campaigning and other activities. WAC 292-110-020(8). However,
elected offcers are still prohibited
from using, or allowing the use of, staff time or offce facilties for campaign
puroses. ¡d.
i \ The Public Disclos~ Co~ion (PDC) ha wrestled with sinula questions for many years, espeially in
the ar of material generated by school distrcts concerng the possible effect of pasge or defeat of a school ditrct
levy proposition. The priciples develope by the PDC in respons to thes ca may prove intrctive to other
agencies. As of the wrtIg of th memo, the PDC wa awaiting a deision in a ca challenging the constitutionality of
decision is expted to define the PDc's role as well
this sttute. The
the PDC's interretion of
RCW 42.17.130 and of
'as th substative law concerng us of public facilties for political purse. As noted ealier, the ethcs ~ ar
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that agencies avoid conducting reseah Or asembling statistical data which
they expect to be requested for use in connection with a capaign unes
reseah or
they are satisfied that they would have underten the same
such as . planng for
statistical effort for independent reaons,
contingencies.
employees may supply public recrds in response
to requests made by the supporters or opponents of cadidates ~r _ ballot
8. Public agencies and public
. propositions. An agency should treat all capaign fairly and eauitåly in
responding to requests for public recrd. Ths is especially sensitive
and
importt, of coure, in agencies headed by elected offcers who are up for
re-election in the nea future.
agencies may
9. Where two or more meaures relate to the same subject,
publish factual information showing the compartive effects of
the meaures,
just as they could publish factual inormation showing the expected effect of
a single meaure. However, the agency may not use public facilities or
over the other, any more than it could urge
propert to favor one proposition
passage or defeat of
both meaures.
V. SOME HYPOTHETICAL QUESTIONS ABOUT CAMPAIGN ISSUES,
AND SOME SUGGESTIONS ABOUT THE ANSWERS
questions which might be asked about the ethics laws
should remember that their role is
and some comments in response. Assistant attorneys genera.
and
employees.
AAGs can tell individuals'
to advise state agencies and not individua offcers
what the position of the Attorney GeneraI and the agency might be on an issue, but they should
Following are some hypothetical
remind employees that our offce does not provide p'ersonal advice and that our offce would '.
there were a complait filed with
the Executive Ethcs Board against a state employee, the employee should expect to secure
represent the agency and the public interest in any litigation. If
personal counel on the matter or appear without counel. Emp1ayees have. to make their own
personal decisions concernng ethcs law Compliance. In queStionable caSes~ they should th
about conferrng with pnvate counsel.
1. I serve by appointment ana commision which govern a stae agency. I serve
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par-time
. . and receive no compensation except for attending commission meetings. The other day, I attended
a fund raiser in support of an initiative
meaure which would, if approved. put the commission on a
much more solid financial footing. I attended at my own expense and made a contribution 10 the
campaign, which was properly reported During the announcements, the announcer, specifcally
Vice Chair of the X Commission"~ I quickly
against my request, intoduced me to the crowq as i.
pointed out that I was attending as a private citizen. Was the Use 'ofmy title a. use ola ."public
facility or property"?
now developing their own cae law and advisry opinons,and thes als.mightprovide .anwetoauesonSabout
public resour~.
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Unlike paper or in or tie, an offcer's title caot be meaured or "expeiided" in any
meangful way. Knowledge that a parcular cadidate or ballot proposition is supported by
"Commissioner X" may lend some weight or dignity to a capaign event or advertsement, ,or, it
may not. Thus, while it may be prudent to avoid using a position or title, primarly to .avoid, any
implication that the agency or its offcers are "offcially" supportng a parcular cadidate .or
proposition, the mere identification of a persn by stating his/er title or position would notseelIto
be a
"use" of public facilties. However, it wa wise for you to point out th you w~re attnding:in .'.
your private capacity in order
to prevent any misunderstading on that pointl2 " ',. :; ..' '.. 'v
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2. The head of
my agency, Q. is an elected executive offcer who is a candidteforpublic
offce again this year. A close frend wants to support Q both with finacial contrbutions and
volunteering time. I do not /aow the addess or telephone number of Q 's campaign offce. Wo~ld it
be all right to send an offce voice"'mail or e-mail to Q, passing along my friend's f!e and
suggesting that Qjòrward this informaton to the campaign?
Remember that voice-mail and e-mail are both offce propert and facilities. Whle
fOlWarding the information to Q see a smal thg, it involves both you and Q (Q involuntaly) in
the use of offce facilities for capaign activity. On your own time, tae the steps to fid out how
to put your frend directly in touch with the capaign without using offce facilities. If you don't
want to be involved even that much; suggest that your frend contact the capaign diectly. A third
possibility would be to pass the inormation along using your own paper and stap and Q's home
address.
3. Everyone in my work unit is a strong opponent of Ballot Meaure B. We have all been
involved in the anti-B campaign, and we hae been careful not to use either our state time or any
computers, or copy machines, in our campaign work We need to
agency facilities, such as paper,
have a campaign meeting nèx weeJnd, and the organizers are hang trouble fiing a place for
the meeting.' Our agency has a large conference room which is not ordinariy open to the public'"but
which wil not be in use during the weeJnd. Can we offer the use of the room for the
capaign
meeting?
Although offce space is not "consumed" when us for a meetig (small amounts of heat
and light notwthtadig), the use, of a space not ordarly available to the public leaves the
defite impression that the capaign is benefitig from its use of a pubIic spac. The fact that your
work unt is all involved in the caaign reinorc ths unortate impresion.' In my, opinon,
open
to the public, hpwever, and is schedtIed for the capaign on the sae basis as anyone else could
schedule it, the anWer might 'be different. It stil might be prudent to have the meeting somewhere
else, just to avoid any question about misuse of public facilities.
using th parcular space would VÍQlate RCW 42.52.180. If the conference room is generaly
, 4. I am the regional offc. manager for a state agency and I supervise about 50 employees.
stae senator. May I invite all my offce to a Saturda morning
event at my home where they can meet .D and wil have the opportunity to contribute to the
campaign?
My close friend D is running for
11 AS noted earlier,EEB Adviory Opinon 00:.8 concluded that any employee's us of a title ~'must be
accompanied by a disclaimer" that the employee is not speking for.the agency. "
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Extreme caution is advised. For the obvious points first, avoid the use of offce space, offce
paper, e-mail, voicemail, or any other offce facilty for the invitations. Employee mailng lists are
also public facilties which should not be used for capaign purposes. Perhaps you know the phone
numbers and addresses by hea or
ca use publicly available source such as telephone and e-mail
these
are invited to a campaign fud raiser at your
employee. ,Wil one or more misunderstad why they
home? Wil they conclude, no, matter how you protest otheiwise, that they stad ,to gain your favor
then, remember that you
directories to get the'necessar information. Even
supervise alL
of
if they support D, or to lose your favor if they don't? ,Even if ths is not strctl~ a violation of
RCW 42.52.180, do you want to rase these issues?
5. My ,co-worlær and I have strongly diferent political philosophies. During the last
presidential election campaign, she wore a large button promoting a candidate I find repugnant,
and she placed the candidate's picture in her workstation next to the pictures of her husband and
her cat. Would it be appropriate for me to ask our supervisor to ban such overt displays this yeàrr
-Ethcal and policy considerations must always be balanced against free speech rights and the
legitimate interest of any employee in expressing her views and in arging her personal space.
The cour and the ethics agencies have recogned that capaign buttons on clothng are a personal
expression and do not violate the ethics statute.13 The use of personal assigned space in a
workstation probably meets the same requirement The anwer might be different if an employee
were using publicly visible space, such as a wall, window, or reception desk, which could leave the
impression that the campaign is favored by the agency or its leadership and is more than one
employee's personal choice.
6. Initiative J would, if approved by the people, repeal the tax that supports 90% of my
the tax were repealed, but it
is virtully certain that our agency's budget would be severely reduced Can we use staff time and
agency's activites. The Legilature might
replace some of
the money if
agency resources to assemble and publish a sheet that would just "show the facts
"-tha is, that
enactment of Initiative J would effectively end all of the popular programs my agency is involved
with?
contigency plans or
possible
effects.
of
a
meaure
for
plang
puroses.
Your
proposa goes
by reseaching the .
The major flaw in your logic is to charcteri as a "fact" your
considerably beyond that, though.
predicted outcome of the legislative session should the Iitiative be approved. The Legislatue is
legally free to replace the agency's fuding, no matter how unikely that outcome is. Therefore, it is'
As noted ealier, agencies ca anticipate ballot meaures by preparg
simply not a "fact" that the agency's progrs would be eliminated. It is only speulation. There
seems little purose for the agency to indulge in such speculation, except to infuence the election
results. Perhaps the agency could publish a tre "fact sheet" which, for intace, lists the current
progr administered by the agency. w!th their curent budget. Perhaps the material also could
13 For reasons going beyond ethics, public agency employei: have been held to have a limitea right to
restrct employees in some limited circumtances from wearing political buttons or engaging in poliucal activities.
political buttòns by
Scott v. Meyers, 191 F.3d 82 (2d Cir. 1999) (trnsit authority could probably regulate wearing of
trnsit employees while in contact with public, but not at other tims); Horsikoetter v. Dep'l of Pub. Safety, 159 F.3d
troopers from displaying political signs on their personal
1265 (iOth Cir. 1998) (upheld statuteprolubiting state
on jointly. owned
'not ' permit' removal of signs placed. by troopers' spouses
propert, but interpreted statute, to
propert).
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point out.the curent sour of
the agency's budget without speculating what would happen if
that
fuding source disappeaed.
VI. CONCLUSION
In closing, it is importt to remember that the public is generally very sensitive to the use
of public facilties or propert on ballot propositions and taes accusatons of violations very
seriously. Offcers and employees who tr to bwnp up agait the "line" that dividtS lawfl from
unlawful conduct in tls area may find, even if their conduct is eventually judged lawful, that their
questionable activity has incited a public backlash against the very position they were attempting to
advocate. As a result, public employee should wal a caeful line to assure that the public is fully
voting on a parcular meaure, without milng
unawful use of public money or propert to influence the result of the vote. State agencies and
offcers should consult closely with legal counel on all activities relating to matters before the
and adequately informed about the consequence of
voters, and they should use utmost skill and cae in expresing any comments on such matters.
Violations ofRCW 42.52 by executive brach employees are now witlun the jurisdiction of
the Executive Etlucs Board. Employee with questions in tls area should contact:
Brian Malarky, Executive Director
2425 Bristol Cour S.W.
P.O. Box 40149
Olympia WA 98504-0149
(360) 6640871
Assistat Attorney General Jean Wilknson serves as legal advisor to the Board.
JK/bw
Attchments
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RCW 42.52.180
RCW 42.52.180 Use of public resources for political campaigns. (I) No state offcer
or state employee
of an agency, directly or indirectly,
an offce or for the promotion, ',.,
may use or authonze the use of facilties
for the purpose of assisting a capaign for election .ofa person to
by a person withauthonty to:
of or opposition to a ballot proposition. Knowing acquiescence
or state employee using pubiic '~,:.i,f
direct, control, or infuence the actions of the state offcer
ths section constitutes a .violation ,of this section. FaciltieS.o(;an~\~!~:.'
resources in violation of
agency include, but are not lited to, use of stationeiy,postage, machies, and. equipment;use~,:i
of state employees of the agency durng working hours, vehicles, offce space, publications of .'
the agency, and clientele lists of persons served by the agency.
(2) Ths section shall not apply to the following activities:
(a) Action taken at an open public meeting by members of an elected legislative body to
express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or
ordinance, or to support or oppose a ballot proposition as long as (i) required notice of the
meeting includes the title and number of the ballot proposition, and (ii) members of the
legislative body or members of the public are aforded an approximately equal opportity for
the expression of an opposing view;
(b) A statement by an elected official in support of or in opposition, to any ballot
proposition at an open pres conference or in response to a specific inquiry. For the purposes of
ths section for an elected offcial to respond to an inquir
regardig a,ballot proposition, to make incidental remar concernng a ballot proposition in an
proposition without an actual,
measurble expenditue.of public fuds. The ethcs boards shall adopt by rue a definition of
this subsection, it is not a violation
,of
offcial coniuncation, or otherwse comment on a ballot
meaurble expenditue; - '
(c) Activities
that are par of
the normal and regular conduct of
the offce or
agency; and
(d) De .misuse of public facilties by stae-wide .elected offcials and legislators
incidental to the
prepartion or delivery
of permissible communcations, includig wntten and
verbal communcations intiated by them of their views .on ballot propositions tht foreseealy
may afect a matter that falls with their constitutional or statutoiy responsibilities.
(3) As to state offcers ~d employees, this section operates to the exclusion of
RCW 42.17.130. (199~ c 397 § 30; 1994 c 154 § 118.) Effective date-aption~everabilty-1995 c 397: See RCW 42.17.960 though
42.17.962.
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WAC 292-110-020
WAC 292-110-020 Working hours. (1) RCW 42.52.180(1) provides that no state
of an agency, directly or
offcer or state employee may use or authonze the use of facilties
indirectly, for the purpose of assisting a campaign for election of a person to an offce or for the
promotion of or oppositi'On to a ballot proposition. Facilties of an agency includes use of state
the rule is to .define the term
offcers or state employe(fs dunng working'hours. The purose of
The
govemment.
officers and employees of the executive 'hranch of state
"working hours" for
prohibition in 'RCW 42.52.180(1) only applies dunng working hours.' Nothing in'
RCW 42.52.180(1) or ths rule prohibits a state offcer or state employee from assisting in a
campaign dunng non-working hours. An offcer or employee who assists in a campaign dunng
non-working hours may not use any facilities of an agency.
(2) Some state offcers and state employees occupy positions that have fixed scheduies
with the same beginnng aId ending times. For offcers and employees with fixed schedules,
working hours are the hours between the staing and ending times of their positions. Offcers
and employees with fixed schedules may not assist in a campaign dunng these fixed working
hours, unless they are on a lunch break under section four of this rule or on anual leave under
section five of this rule.
Example 1: An employee works for an agency open to the public dunng the
hours of 8:00 a.m. to 5:00 p.m. The employee is in a position with a fixed
schedule of Monday though Fnday 8:00 a.m. to 5:00 p.m. The employee's
working hours are 8:00a.m. to 5:00 p.m. Monday through Fnday. The employee
may' not assist in a campaign dunng these hour unless the employee is on a lunch
break or on anual leave. The employee may assist in a carpaign before 8:00
a.m. or after 5:00 p.m. Monday though Fnday or on Satuday or Sunday.
Example 2: An employee works for an agency open to the public dunng the.
hours of8:00 a.m. to 5:00 p.m. Although the agency is open dunng the hour 8:00
of
Monday
fixed schedule
a.m. to ~:OO p.m., the employee is in a position with a
though Thursday 3:00 p.m. though 12:00 a.m. The employee's workg hour
are 3:00 p~m. to 12:00 a.m. Monday though Thurday. The' employee may not
assist in a campaign dunng these hour uIless the employee is 'On a lunch brea or
on anual
leave. The emplayee may assist in a campaign before 3:00 p.m. or after
12:00 a.m. Mond3:Y though Thurday or anytime on Fnday, Satuday or Sunday.
(3) Some state off6ers and state employees occupy positions that do not have fied
schedules with the
fixed'
offcers and employees who do not have
same staing and ending times. For
schedules, working hour are defined as either:
(a) The hours set forth in any policy on working hours adopted by an agency: Agencies
have flexibility in determining workng hour for the offcers and employee to meet their unque
needs so long as the time considered to be working hours is clearly established. If an agency does
be 8:00 a.m. to 5:00 p.m. Monday though
not adopt a working hours policy, working hours shall
Fnday when state agencies are generally open to the public; or
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(b) The work schedule for an offcer or employee approved by the agency, if it is
different from the agency policy or, if
the agency has not adopted a policy, 8:00 am. to 5:00 p.m.
Monday through Friday.
Example 3: An employee works for an agency that is open to the public 8:00 am.
to 5:00 p.m. Monday through Friday. Although the agency is open to the public at
these times, the work of the agency goes on twenty-four hours a day. The agency
has adopted a working höúrs policy that divides working hours into three shift:
the day shift (8:00 am. to 5:00 p.m.); swing shift (3:00 p.m. to 12:00 alJ.) and
midnight shift (12:00 a.m. to 9:00 am.). An employee without a fixed schedule is
assigned to the swing shift (3:00 p.m. to 12:00 a.m.) Monday through Fnday.
Since the employee does not have a fixed schedule, the employee sometimes
comes to work before 3:00 p.m. and sometimes after 3:00 p.m. Similarly, the
employee may leave work before or after 12:00 am. Ths employee's working
hours are 3:00 p.m. to 12:00 a.m. Monday through Friday. The employee may not
assist in a campaign durng these hours unless the employee is on a lunch brea or
on anual leave. The employee may assist in a campaign before 3:00 p.m. or after
12:00 a.m. Monday though Friday or on Saturday or Sunday.
Example 4: An employee works for an agency that is open to the public 8:00 a.m.
, to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on
working hours. An employee without a fied schedule usually work 8:00 am. to
,
5:00 p.m. Since the employee does not have a fixed
schedule, the employee
sometimes comes to work before 8:00 a.m. and somçtimes afer 8:00 ,am.
Similarly, the employee may leave work before or after 5:00 p_m. Since the'
agency has not adopted a policy on working hours, this employee's workig hours
are 8:00 ,a.m. to 5:00 p.m. Monday though Friday. The employee may not assist
in a campaign durg these hour unles
anual
leave.' The employee may
the elIloyee is~ on a lunch brea or on '
assist in a campaign before 8:00 a.m. or after
5:00 p.m. Monday though Friday, or on Satuday or Sunday.
Example 5: An employee works for ai agency that is open to the public 8:00 am.
the agency is open to the public
to 5:00 p.m. Monday though Friday. Although
. at these times,. the work of the agency goes on twenty-four hours a day. The
agency has adopted a workig hour policy that divides workng hour into thee
shift: the day shift (8:00 am. to 5:00 p.m.); swing shift (3:00 p.m. to 12:00 a.m.)
and midnght shift (12:00.a.m. to, 9:00 a.m.). An employee without a fied
. scJ:iedule is assigned to the day shift (8:00 a.m. to 5:00 p.m.) Monday though
Friday. However, the agency has approved a different work schedule for ths
employee.' Intead of the usual day shift of 8:00 am. to 5:00 p.m., the employee
works 7:00 a.m. 'to 4:00 p.m. Since the emp.loyee does not have a fixed schedule
the employee, sometimes comes to work before 7:00 am. and sometimes after
7:00 am. Similarly, the employee may leave work before or after 4:00 p.m. Ths
employee's working hour are 7:00 am. to 4:00 p.m. Monday though Friday.
The employee may not assist in a capaign durng these hour unles the
employee is on a lunch brea or on anual leave. The employee may assist in a
campaign before 7:00 am. or after 4:00 p.m. Monday though Friday, or on
Saturday or Sunday.
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(4) Working hour do not include state legal holidays unless the offcer's or employee's
work schedule requires the offcer or employee to work on a state legal holiday.
, .
(5) Working hours do not include the time approved and designated for an offcer's or
employee's lunch break. A lunch break is between 12:00 p.m. and 1:00 p.m., unless the agency
has designated a different time in a working hours policy or has approved a different lunch break
as par of an offcer's, or employee's work schedule. If an offcer or employee engages in
campaign activity durng the lunch brea the offcer or employee may not make:use of any of
the facilities ofthe agency.
Example 6: An employee work for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday though Friday. The agency has not adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to '
5:00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes afer 8:00 a.m.
Similarly, the employee may leave work before or afer 5:00 p.m. Since the
agency has not adopted a policy on workig hour, ths employee's working hour
are 8:00 a.m. to 5:00 p.m. Monday through Friday with a lunch .break between
12:00 p.m. and 1:00 p.m. The employee may assist in a campaign durg the
employee's lunch brea between 12:00 p.m. and 1:00 p.m.
(6) Working hours do not include the-time in offcial leave statu if the leave has received
advance documented or wntten authorization. An offcer or employee on leave'may assist in a
campaign.
Example 7: An employee works for an agency that is open to the public 8:00 a.m.
policy on
to 5:00 p.m. Monday though Friday~ The agency h;i not adopted a
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5:00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and someties after 8:00 a.m.
work before or afer 5:00 p.m. Since the
Similarly, the employee may leave
agency has not
hoUr, ths employee's workig hour
adopted a polìcy on workig
are 8:00 am. to 5:00 p.m. Monday though Friday. On Friday the employee
receiveS advance Wrtten authorization to' be on leave for .five days, Monday
though Friday of the next
'Week. The' emplayee may assist in a campaign durng
this leave.
Example 8: An employee work for an agency that is open to the public 8:00 a.m.
agency has not adopted a policy on
to 5:00 p.m. Monday though Friday. 'The
working hours. An employee without
a fixed schedule usu?lly works 8:00 a.m. to
Since the employee does not have a fied schedule the employ~
sometimes comes to work before 8:00 a.m.' and someties afer. 8:00. a.m.
5:QO p.m.
Similarly, the employee may leave work before ,or afer 5:00 p.m. Since the
a policy on working hour, this employee's working hour
agency has not adopted
employee
without fixed schedules tae leave during a month and then get written
authorization for the leave at the end of the month. An employee takes leave
are,'8:00 a.m. to 5:00 p.m. Monday though Friday. In this agency
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Monday through Friday and assists in a campaign At the end of the month the
leave. The employee has asisted
employee obtans wrtten authorization for the
in a campaign durng workng hoUr since the employee did not obtan wrtten
authorization pnor to taing leave to assist in a capaign. To assist in a
campaign while on leave, the employee must obtain wrtten authorization prior to
going on leave.
(7) The definition of workg hours aiso includes any time an offcer or employee is
actually workig. For an offcer or employee with a fied schedule, working h9ur includes
the fixed
schedule. For an offcer or employee without a fixed schedule, workig hour include any time
overtime when the offcer or employee is workng additional hour other than those in
the offcer or employee is workg. '
Example 9: An employee works for an agency that is open to .the public 8:00 am.
to 5:00 p.m. Monday tholigh Friday. The agency has not adopted a policy on
working hour. An employee without a fixed schedule usually works 8:00 am. to
5:00 p.m. Since the employee does nõt have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 am.
Similarly, the empioyee may leave work before or afer 5:00 p.m. Since the
agency has not adopted a policy on workig hour, tls employee's workig hour
are 8:00 a.m. to 5:00 p.m. Monday though Friday~ On a Monday the employee
'works from 8:00 a.m.'to 9:00 p.m. Even though the employees workig hour are
8:00 to 5:00 the ti~e spent working betw~n 5:00 p.m. and 9:00 p.m. are worlg
hours because
the employee is working for the agency during tls time. ' .
'(8) The governor, lieutenant governor, secreta of state, treaurer, auditor, attorney
general, supenntendeiit of public intrctÍon, commssioner of public lands, and the inurce
commissioner are state offcers in the executive brach subject to RCW 42.52.180. These
offcers are elt~cted to offce and hold offce for a term of four yea and until their succsors are '
not have
working hour and may asist in a C3mpaign at any time. However, if these offcers do assist in a
, e1t:ted and, qualified. Since these officers are elected to a term of offce, they, do
. '
campai~ they may not make use of any facilities of an agency excet as provided in
RCW 42.52.180(2).
(Statutory Authority RCW 42.52.18~1) and 42.52.36O~)(). 96-22-030, § 292-110-020, fied 10130/96, effective
11/30/96.)
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WAC 292-110-030
WAC 292-110-030 Measurable expenditure. (1) RCW 42.52.180(1) provides that no.
or
state offcer or state employee may use or authorize the use of facilities of an agency, directly
indirectly, for the purpose of assisting a campaign for election of a person to an offce or for the
promotion of or opposition to a Ðallot proposition. Facilities of an agency include, but are not
limited to, use of stationery, postage, machines and equipment, use of state employees durng
working hours, vehicles, offce space, publications of the agency, and clientele li~ts of persons
served by the agency.
(2) RCW 42.52.180(2) sets forth exceptions to the prohibition in RCW 42.52.180(1).
The exceptions include a statement by an elected offcial in support of or in opposition to any
ballot proposition at an open press conference or in response to a specific inquiry without an
actual measurable expenditue of
public funds (RCW 42.52.180(2)(b)); activities that are par of
the normal and regular conduct of the office (RCW 42.52.180(2)(c)); and de minimis use of
public facilities by state-wide elected offcials incidental to the preparation or delivery of
pennssible communications initiated by the offcial regardig the official's views on a ballot
proposition that may foreseeably affect a matter that falls within the official's constitutional or
statutory responsibilities (RCW 42.52.180(2)(d)).
(3) Elected offcials regularly expend, public fuds to respond to inquiries from
the media, constituents, and other persons' on matters unielated to ballot propositions.
180(2)(b ) permits elected officials. to resond to such inquiries regarding ballot'
RCW 42.52.
propositions without an actual measurable expenditue of public fuds. For puroses of
180(2)(b) measurable expenditue meas an expenditue or separtely identifiable
cost or specific portion of a cost incured by the agency beyond the normal and regular
expenditures or costs. incurred by the agency in respondig to inquiries from the media,
RCW 42.52.
constituents and other persons on
matters unelated to ballot propositions.
Example 1: A state-wide elected official conducts a press conference in state
offce space. Durng the conference the offcial is asked about' a ballot
proposition. The subject of the ballot proposition does not fall within the normal
and regular conduct ófthe offcial's agency nor with the offcial's constitutionaI
or statutory responsibilities. The offcial replies to the question explaining his or
her opinion on the ballot proposition and the reaon for the opinion. It is not aI
ethical violation to reply to such an inqui. The use of state office space, durig
the time the offcial answers the question about the ballot 'proposition, does not
result in a measurable expenditure of public fuds. This is because the
expenditure or cost of the offce space during this period is not a separately
identifiable cost. . '
Example 2: A state-wide elected offcial receives a letter from a constituent
the ballot
asking for the offcial's. position on a ballot proposition. The subject of
proposition does not fall within the normal and regular conduct of the official's
agency, nor within the offcial's constitutional or statutory responsibilties. The
offcial replies by letter explaining his or her opinion on the ballot proposition and
the reason for the opinion. In the course of preparng the reply the offcial has the
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assistace of staff and uses offce space, equipment, stationery and postage. It is
to reply to such an inquiry. There is no meaurble
expenditure of public funds because the agency has not incured a cost beyond the
not an ethical violation
normal aa.d regular costs incurred by the agency in responding to' inquiries from .
the media, constituents and other persons on matters unrelated to ballot
propositions.
Example 3: A state-wide elected offcial received a letter from a constituent
proposition. The subject ofthe.~allot
proposition does not fall within the normal and regular conduct of the offcial's
agency nor within the offcial's constitutional or statutory responsibilities. The
asking for the official's position on a ballot
offcial replies by letterexplainiiig his or her opinion on the ballot proposition and
the reason for the opinion. In the coure of preparng the reply the offcial has the
assistance "of staff and 'uses òffce space, equipment, stationery and postage. The
offcial sends copies òf the reply to other individuals on the agency mailing list.
This is an ethical violation. While it is permissible to reply to the constituent who
inquired about the official's'position (Example 1), it is improper to send copies of
the response to others. There is a measurable expenditue of public fuds because
the cost of
the paper and postage for the additional copies is a separte.iden.tifiable
cost beyond the normal and regular costs incured by the agency in responding to
inquiries from the media, constituents and other persons on matters unrelated to
ballot propositions.
Example 4: A state-wide elected ()fficial writes a letter to the editor of 'a
newspaper stating the official's position on a ballot proposition. The subject of
the ballot proposition does not fall withn the normal.and regUlar conduct of the
offcial's agency nor with the' offcial's constitutional or sttutory
responsibilities. In the coure of preparng the letter the official has the assistace
. of staff and uses office space,
equipment, stationery and postage. Ths is an
ethical violation. The offcial has used' the facilities of the agency and the
exception in RCW 42.52.180(2)(b) does not apply because the offcial is not
- rèsponding to an inquiry.' .
(Statutory Authority: RCW 42.52.180(2)(b) and 42.52.36O2)(b). 96-22-029, § 292-110-030, fied 10/30/96,
effective 11/30/96.)
18
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Christie O. Gregoire
ATTORNEY GENERAL OF 'WASHINGTON
1125 Washigton Street 5th Floor · PO Box 40100 · Olympia WA 98504-0100
MEMORANDUM
January 20,2000
TO: SANY WALL
Deputy Director
State Board for Community & Technical College, 42495
FROM: W. HOWAR FISCHER
Senior Assistant Attoniey General
SUBJECT: Reporting Requirements for Agency Lobbying
"
It has come to my attention that there may be some confion among the colleges
regarding what tyes of contacts with the Legislatue must be reported as lobbying.
The State Board's document "Guidelines for Public Disclosure Reporting
Requirements" correctly states that all lobbying activities must be reported to the Public
Disclosure Commission (PDC) on form L-5. Furter, it correctly lists the following
lobbying activities by colleges as authorized activities:
· Communca:tig with legislators at the member's reqest;
-00 .' ....
· Requesting necessar legislative action ~r appropriations through proper .
official channels;
· Providing information to legislators or staff on matters pertining to official
agency business; and
the agency.
· Advocating the offcial position or interest of
RCW 42.17.190(2), (3).
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.ATTQ~EY GENERAL OF WASHIr'TON
Sandy Wall
Januaiy 20,2000
Page 2
Although the "above referenced activities are considered lobbying, they need not be
reported if the aggregate lobbying activities of all agency employees totals no more than
. four
days or part of days dunng any three month penod, and, aggregate )ublic funds
spent on lobbying activities do not exceed fifteen dollars ($ I 5) in any three month penod.
190(5)(d).
RCW 42.17.
On the other hand, if either threshold is exceeded, colleges must report these
activities to the PDC. As noted in the State Board's "Guidelines" notice, testifying at
legislative committee heanngs is considered reportble lobbyin.g and counts against the 4-
day/$ 1 5 threshold. ' "
The following activities do not constitute lobbying and, therefore, need not be .
reported or counted toward the 4-day/$15 aggregate exemption:
· Telephone conversations or preparation ofwntten correspondence;
· Preparation or adoption of the official policy position of the college;
· Recommendations or report to the legislature in response to an express
request for a specific study, recommendation, or report by a college on a
partcular subject.
190(5)(d)(v).
RCW 42.1 7.
Therefore, a wntten or telephonic communication to a legislator at his or her
request would not be considered lobbying. A face-to-face communication, regardless of
whether the legislator' requested it or not, would have to be counted against the 4-dayaggregate.
I hope this helps to clanfy the reporting requirements for colleges.
~A/g~
,
W.HOWAR FISCHER
Senior Assistant Attorney General
(360) 586-2789
WHF:DAS:bb
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Guidelines for Public Disclosure Reporting
Requirements
Anual Reporting of Financial Afairs .
Communty and technca college dict and campus presidents mus aIualy file a
statement of financial afais with the Public Disclosue Commsion. The report is
due between
Januai 1 andApri15 for the precedig calenda
year. (RCW 42.17.240
(1) and RCW 42.17.2401 (1) )
Quarerly Reporting of Lobbying Activities
Each state agency must report quarerl to the Public Disclosue Commsion al
employees of the agency (pDC Form L-5). There is
one report per agency (college) and if therewas no lobbyig, there is no report.
lobbyig acuvity conducted by
Lobbyig is defined as attemptig to inuence the passage or defeat of any specifc
legilation by the stte leglatue. The lobbyg acuons by colleges are lited to: '
+ Communcatig with leglat()rs at the member's request;
necessar legilative acton or appropnations though proper
+ Requestg
,official chanel;
+ Providig inormation to legilators or staf on matters perg to official
agency busines; and
+ Advocatig the offcial position or interest of the agency
Reportable lobbying: Al in-person lobbyg diected at legislators and thei staf is
reportable. Thi includes tesg at public heags. If a leglator is on campus for
an event (gaduation, ribbon-cttg, etc.) none of that tie need to be considered as
"lobbyig." HoweVer, if a college president tal to a leglator at such an event about
some specifc legilatio~ then the 10 or 15 miutes need to be reported not the
lengt of the entie event. Alo, an non-public fuds over $15 spent on behal of
legilators or legilative staff mus be reported.
N onreportble lobbyig: No reportg is requied for phone conversations with
legislators or leters to leglators.
Public funds: Colleges are pertted to use public fuds when 1) communcatig
with state officeholders or employee on officia agency business; and 2) advocatig
only the official position or interests of the agency. Colleges are expressly prohibited
from spendig public fuds for gi or campaign contrbutions. Public fuds are an
fuds that are recorded on the financial records of the insttution. Discretionar
fuds may be used when entertaig a legislator or leglative staff. Discretionar
fuds come from private donations.
1
~
Political Campaign-Related Activities of and at
Colleges and Universities1
We summarize here "do's" and "don'ts" on potential entanglements of the institutions and their
personnel in campaigns for public office. The summary is not exhaustive and omits legal
citations. It is based on
judicial and IRS rulings under Section 50l(c)(3) of
the Internal Revenue
Code; and the Federal Election Campaign Act of 1971, as amended, as well as Federal Election
Commission regulations that apply to colleges and universities.
Additional state law requirements that govern campaigns for state and local offce vary from state
to state and are not addressed here. Also not specified here are the penalties for improper
political activity by and at a college or university. They can include loss of the institution's taxexempt status, imposition of taxes on the institution and its responsible managers, and other
risks, including federal or state governent lawsuits, audits, and investigations.
We recommend that the institution's counsel be consulted before proposed actions are taken in
this area. This memorandum states general propositions, is not legal advice, and does not address
the advisability as a matter of institutional policy of engaging in the activities identified below.
1 This memorandum was prepared by Martin Michaelson, Robert Kapp, and Adam Feuerstein of
the Washington, DC law firm Hogan & Hartson, LLP.
Department of Government and Public Affairs
American Council on Education
November 11, 2003
Page 2
I. POTENTIAL ACTIVITIES OF OR ATTRIBUTABLE TO THE INSTITUTION
A. Ilustrative permitted activities:
Yl. Genuine curricular activities aimed at educating students with
respect to the political process. (For example, the IRS approved a
political science program in which, as part of a for-credit course, university
students participated in several weeks of classroom work to learn about
political campaign methods, and then were excused from classes for two
weeks to participate in campaigns of their choice, without the university
influencing which campaigns were chosen.)
Y2. Partisan editorial activities of a student newspaper that is supported
by a college or university. (For example, the IRS approved, on the
ground that a university's educational purose was advanced, making
professors available as advisors to a student newspaper that published
editorial opinions on political and legislative matters. The university also
provided the newspaper financial support and offce space.)
Y3. Providing on an equal basis to all legally qualified candidates for a
public offce, and consistently within the limits imposed by Federal
Communications Commission standards, access to air time on a
university-owned radio station.
Y 4. Conducting institution-sponsored public forums to which all legally
qualified candidates (or, if impractical, at least all candidates who
meet certain objective criteria) for a public offce (or for the
nomination of a particular party) are invited and given equal access
and opportunity to speak, if the format and content of the forum are
presented in a neutral manner. If the institution chooses to invite
candidates to speak individually, it must take steps to ensure that all such
legally qualified candidates are invited, and that none are favored in relation
to the activity. Ordinarily it is prudent to make an explicit statement as
part of the introduction of the speaker that the institution does not
support or oppose the candidate. Political fundraising at the event should
be prohibited. The institution must make reasonable efforts to ensure that
the appearances constitute speeches, question-and-answer sessions, or
similar communications in an academic setting and are not conducted as
campaign ralles or events.
Department of Government and Public Affairs
American Council on Education
November 11 , 2003
Page 3
Y5. Certain "voter education" activities if related to the institution's
educational purpose. For example, annually preparing and making
voting records on major legislative
issues that involve a wide range of topics, without political skew and
without editorial opinion, is likely to be held permissible, particularly if
the information is not widely distributed and is not geared to coincide with
publicly available a compilation of
the election period.
Y6. Non-partisan voter registration activities of certain charitable
organizations have been approved, even when aimed at groups (such
as urban voters, young people or minorities) likely to favor a certain
political candidate or party; provided that the activities are not intended
to target voters of a particular part or to help particular candidates; and
provided further that particular geographic areas are not selected to favor
any party or candidates.
Y7. Circulating unbiased questionnaires to all candidates for an offce,
and tabulating and disseminating the results; provided that the
questionnaires cover a broad range of subjects, and neither reflect
poliical skew nor contain editorial opinion. As in other areas, counsel
should be consulted on whether the proposed activity is consistent with
the institution's tax-exempt mission.
Y8. Continuing usual and permissible lobbying and public policy
education activities, within the constraints ordinarily applicable to
such activities conducted by a college or university. This is a complex
topic warranting fuller analysis and advice. Special caution is indicated
with respect to heightened, different or targeted lobbying and public policy
education activities conducted during a campaign season.
Y9. Rearranging the academic calendar to permit students, faculty, and
administrators to participate in the election process, if the
rearrangement is made without reference to particular campaigns or
political issues; provided that the recess is in substitution for another
period that would have been free of curricular activity.
YlO. Use of institutional facilties by established student groups for
partisan political purposes, provided that such groups pay the usual
and normal charge, if any, for use of institutional facilties by
student groups. Fees usually are not required for traditional, on-campus
student political clubs. (Generally, groups other than student groups
Department of Government and Public Affairs
American Council on Education
November 11, 2003
Page 4
should be charged.) Administrators and faculty should take special care in
relation to any such proposed student activities, to avoid the appearance
of institutional endorsement and to observe the other principles this
memorandum describes. Independent institutions may as a matter of their
own general policy decline to permit their facilities to be used for such
purposes.
YL1. Conducting training programs designed to increase public
understanding of the electoral process or to encourage citizens to
become involved in the process, provided such training is nonpartisan in
nature and open to those traditionally interested in such activities
regardless of part affliation or candidate preference.
Y12. Conducting public opinion polls with respect to issues (rather than
candidates), provided that the questions are framed to be fair and neutral,
accepted polling techniques are used, and the questions do not directly or
indirectly concern records or positions of particular candidates or parties.
With respect to such activities of faculty, the limitations should be
addressed with due regard for academic freedom.
Y13. Providing a hyperlink to the webpages, or other space on a
legally qualified candidates for a public offce
as long as it is done in a manner that does not favor one candidate over
another.
university's website, for all
Y14. Establishing a voluntary payroll deduction plan that would allow
individual employees to direct a portion of their wages to the
poliical action committees ("P ACs") for their respective unions,
provided that the university's activities with respect to the PAC are
ministerial and simply involve transferring the funds earmarked by the
employees to the PAC chosen by the employee, the university has
absolutely no role in the management or governance of the PAC or any
influence over the selection of candidates or political parties to be
supported by the PAC, the university's name is not used or otherwise
acknowledged in connection with any contributions made by the PAC to
any candidates for public offce, the university is reimbursed for costs
associated with the plan, the university takes steps to ensure that no
employees associate the PAC with the university, and the university does
not allow employees to participate in PAC activities during work hours
other than in the performance of the ministerial activities described above.
Department of Government and Public Affairs
American Council on Education
November 11, 2003
Page 5
B. Ilustrative prohibited (or in some instances, questionable) activities if
undertaken by the institution or by an individual whose actions are
attributable to the institution:
Nl. Categorically: "Participating" or "intervening" in any campaign of
any candidate for public offce (including candidates for local, state, and
federal offce).
N2. Endorsing, expressly or impliedly, a candidate for public offce.
Examples of implied endorsement are public statements at a college or
university event by an offcial of the institution, praising a particular
candidate in relation to the holding of public offce, and a pattern of
institutional activities in relation to or support of a particular candidate.
N3. Providing mailng lists, use of offce space, telephones, photocopying
or other institutional facilties or support to a candidate, campaign,
political party, political action committee (PAC) or the like free of
charge. If mailng lists or facilities are sold or rented to a candidate or
campaign, the items must be made available to all other viable candidates
on the same terms and at fair market prices. Additionally, the institution
should be prepared to show that it did not take the initiative in making the
items available and that the sales or rentals are part of an ongoing pattern
in which similar items are provided to unrelated, nonpolitical entities.
Counsel should be consulted on the potential for taxation of revenues
generated by such sales or rentals.
N4. Coordinating institutional fund-raising with fund-raising of a
candidate for public offce, political party, PAC or the like.
N5. Sponsoring events to advance the candidacy of particular candidates.
N6. "Voter education" activities, such as those involving questionnaires,
if confined to a narrow range of issues or skewed in favor of certain
candidates or a political party. For example, the IRS has disapproved
such activities that involved selected voting records of certain incumbents
on a narrow range of issues (in that case, "land conservation").
N7. Voter registration activities that are similarly skewed. (See Y6,
above.)
Department of Government and Public Affairs
American Council on Education
November 11, 2003
Page 6
N8. Reimbursing university offcials for campaign contributions.
N9. Publishing ratings of the candidates, particularly in situations where
the ratings could be viewed as reflecting the views of the institution or
institutional resources are used in connection with the preparation or
publication of such ratings without reimbursement at the usual and normal
charge.
NlO. Commenting on specific actions, statements or positions taken by
candidates, including incumbents, in the course of their campaigns.
The institution is not forbidden to comment on specific issues pertinent to
its tax-exempt purposes, particularly if it has a track record of commenting
on such issues in non-election years.
NIL Promoting action (voting) with respect to issues that have become
highly identifed as dividing lines between the candidates. This does
not bar the institution from commenting on issues critical to its tax-exempt
purposes, if it has a track record of commenting on such issues in nonelection years, but does bar encouragement of voting on one side of such
issues.
N12. Coordinating voter education activities with campaign events.
N 13. Providing a candidate a forum to promote his or her campaign, even
if the forum is not intended to assist the candidate. (For example, the
IRS has published a memorandum concluding that a charitable organization
violated the prohibition on campaign intervention when the candidate
solicited funds on the organization's behalf, because the content of
the
solicitation included campaign rhetoric).
II, POTENTIAL ACTIVITIES OF FACULTY, ADMINISTRATORS, AND OTHER
EMPLOYEES OF THE INSTITUTION
A. Ilustrative permitted activities:
Y15. Members of the college or university community are entitled to
participate or not, off-hours, as they see fit, in the election process;
provided that speaking or acting in the name of the institution is prohibited
except as described in this memorandum, provided they are not acting at
the direction of an institutional offcial and provided that if the institution
Department of Government and Public Affairs
.'
American Council on Education
November 11 , 2003
Page 7
is mentioned as a means of introduction, it should be communicated that
the opinions that are expressed are not the opinions of the college or
university. (See also Yl6 and N14, below.)
Y16. A faculty member, administrator or other employee may, if
permitted by institutional policies and procedures, engage in federal
campaign-related activity that is (a) outside normal work hours; or
(b) within ordinary work hours, if the time is made up within a reasonable
period by devoting a comparable number of extra hours to work for the
institution; (c) charged to vacation time to which the person is then
leave; or (d) during a leave of
absence without pay taken with the institution's approvaL. The
institution should consult applicable state law concerning permitted
volunteer activities by employees relating to campaigns for state or local
offce. Senior institutional offcials (such as the president and the viceentitled or occurs durig a regular sabbatical
president for governental affairs) should ordinarily refrain from or
otherwise limit such activity, as there is risk that such activity would be
perceived as support or endorsement by the institution. (See also NI5).
B. Ilustrative prohibited (or questionable) activities:
Nl4. Use of institutional letterhead in support of a candidate, political
party, PAC or the like.
N 15. Public statements, oral or written, by institutional offcials (such as
the president and deans) in support of a candidate, poliical party,
PAC or the like, where there is risk that the statements would be
perceived as support or endorsement by the institution.
N16. Use of message boards and forums affliated with the institution's
website to support particular candidates if the statements of the
provider of the information can be reasonably attributed to the
institution. A disclaimer that states that the opinions are neither the
opinion of the institution nor sanctioned by the institution is
recommended in those public discussion areas where the information could
reasonably be attributed to the institution.
The foregoing is not exhaustive, and considerable judgment in the application of these principles is
likely to be required.
Department of Government and Public Affairs
,.1
Christine O. Gregoire
ATTORNEY GENERA OF WASHINGTON
1125 Washington Street SE . PO Box 40100 · Olympia WA 98504-0100
MEMORANDUM
August 26, 2003
CHRIS GREGOIR
EXECUTNE TEAM
TO:
MAAGEMENT TEAM
RECEIVED
AUG 2 7 2003
OFfiCE Of ATTORNEY GENERAL
EDUCATION DIV,-OLY. --
SOLICITOR GENERA TEAM
I
'~ARS
FROM:
/ ior Assistant Attorney General, 0100
SUBJECT:
2003 lection-Restrictions On Use Of Public Funds And
-:erty To Support Or Oppose Candidates Or Ballot Measures
i. INTRODUCTION
The primary purose of this memorandum is to remind everyone in the Attorney General's
Office, and through them the client agencies, about the statutory prohibitions regarding the use of
public fuds and public property and facilities to support or oppose candidates or ballot
propositions. The State will conduct an election in November 2003, in which statewide ballot
measures will be submitted to the voters for their approval, in addition to filling several hundred
local governent offces. Furhermore, fundraising and campaignng has already begu for the
2004 election, which is a presidential election year and is also a year in which legislative, executive,
and judicial offces will appear on the ballot. The law establishes clear limitations on the use of
public funds or facilities for political campaign purposes.
II. STATUTORY PROHIBITION AGAINST USE OF PUBLIC FACILITIES
TO SUPPORT OR OPPOSE BALLOT PROPOSITIONS
Since January 1, 1995, state agencies and employees have been governed by the state ethics
law, codified as Chapter 42.52.RCW. RCW 42.52.010 defines "state officer" and "state employee"
as follows:
(i 8) "State officer" means every person holding a position of public trst in
or under an executive, legislative, or judicial office of the state. "State officer"
includes judges of the superior court, judges of the cour of appeals, justices of the
supreme cour, members of the legislatue together with the secretar of the senate
and the chief clerk of the house of representatives, holders of elective offces in the
executive branch of state governent, chief executive offcers of state agencies,
members of boards, commissions, or committees with authority over one or more
state agencies or institutions, and employees of the state who are engaged in
supervisory, policy-making, or policy-enforcing work. For the purposes of this
chapter, "state officer" also includes any person exercising or undertaking to
exercise the powers or functions of a state officer.
(19) "State employee" means an individual who is employed by an agency in
any branch of state governent. For puroses of this chapter, employees of the
superior court are not state officers or state employees.
Furthermore, subsection (3) ofRCW 42.52.180 (enacted as Laws of 1994, ch. 154, § 1 18-the new
State Ethics Law) specifically provides that "( a)s to state offcers and employees, this section
operates to the exclusion ofRCW 42.17.130".
The net effect of these changes, then, is to make RCW 42.52 .180 (and not RCW 42.17.130)
the relevant statute for analyzing the extent to which state agencies and employees can use public
facilities in connection with political campaigns, including campaigns on ballot propositions. The
text of RCW 42.52.180 is attached to this memorandum. Several features of the 1994 act merit
special attention.
First, RCW 42.52. I 80 provides that "(k)nowig acquiescence by a person with authority to
direct, control, or influence the actions of the state offcer or state employee using public resources
in violation of this section constitutes a violation of ths section". The evident purose of this
sentence is to create imputed liability for supervisors and others who "knowigly acquiesce" in a
violation by a subordinate employee.
RCW 42.52.180 provides four types of exceptions to the general prohibition. The first of
those four (RCW 42.52.180(2)(a)) relates to action taken by the members of an elected
legislative body to express a collective decision supporting or opposing a ballot proposition. The
second exception (RCW 42.52.
180(2)(b)) provides that "it is not a violation of
this section for an
elected official to respond to an inquiry regarding a ballot proposition, to make incidental
remarks concerning a ballot proposition in an offcial communication, or otheiwise comment on
a ballot proposition without an actual, measurable expenditure of public funds". The third
exception (RCW 42.52.180(2)(c)) covers "(a)ctivities that are par of the normal and regular
conduct of
the office or agency". The fourth exception (RCW 42.52.180(d)) permits "(d)e minimis
use of public facilities by state-wide elected officials and legislators incidental to the preparation or
delivery of permissible communications, including written and verbal communications initiated by
them of
their views on ballot propositions that foreseeably may affect a matter that falls within their
constitutional or statutory responsibilities". i
i The first three exceptions are essentially the same as those provided in RCW 42. i 7.130. The fourth
exception is new with the i 994 Ethics Act.
2
,.1
III. CASES, ATTORNY GENERA OPINIONS, AND INTERPRETIVE RULES
There is not yet a body of appellate case law interpreting RCW 42.52. I 80. However, the
Executive Ethcs Board is gradually developing a body of administrative interpretations. The
Board's advisory opinions are available from the Board on request or though its website
ww. wa.gov/ethics/opinions.
Before the enactment of the curent ethcs code, state agencies were governed by
RCW 42.17.130, which still applies to local governents. Because the language of
RCW 42.52.180 is similar to RCW 42.17.130, the case law and opinions constring that statute may
still be ofrelevance in constring the newer law.2 There are three formal attorney general opinions
constring RCW 42.17 generally, including RCW 42. 17.130. Attorneys tryg to interpret the
curent act should read them, but they should also check their analysis carefully against subsequent
changes in the statutes interpreted.
The first of the three opinions is AGO 1973 No. 14, a long opinion answering some 23
questions about Initiative 276 (the initiative measure whose approval constituted the enactment of
what is now RCW 42.17). This opinion is valuable priarly as a discussion of the historical
background of
the law. AGO 1975 No. 23 construes the language concerning "normal and regular
conduct of the office or agency" and is worth reading since the same language appears in
RCW 42.52.180. The new statute's additions clarify the law in this respect and are substatially in
harony with the analysis contained in AGO 1975 No. 23. Finally, AGO 1979 No.3, construing
RCW 42.17.130, concluded that the use of college or university facilities for political conventions,
meetings, and candidates' forums did not violate the section, and prohibitions such as
public propert, such as
RCW 42.17.130 were not intended to cover "neutral public foru" uses of
the use of publicly owned facilities on a nondiscriminatory basis for political activities. Since the
basic prohibition in RCW 42.52.180 is similar to that contained in RCW 42.17.130, ths opinion is
probably of continuing relevance in interpreting the new statute. My own view is that
RCW 42.52. I 80, like the older statute, should be interpreted to allow the use of "neutral public
foru" facilities when made available on a nondiscriminatory basis for political puroses.3
The Executive Ethics Board has adopted two rules interpreting RCW 42.52.180.
WAC 292-1 10-020 defines the term "working hours". The definition of "facilities of an agency" in
RCW 42.52.180(1) includes "employees pf the agency durng working hours", and the rule is
intended to "flesh out" what the statutory phrase mean. A second rule, WAC 292- 110-030, defies
2 There are only two reported cases constring RCW 42.17.1 30. King County Council v. Public Disclosure
Commission,
93 Wn.2d 559,561,611 P.2d 1227 (1980), concluded that a county council could, as a matter of
"normal
and regular conduct", pass resolutions endorsing a ballot measure. City of Seattle v. State, 100 Wn.2d 232, 668 P.2d
1266 (1983), held that a city ordinance providing partal public fuding for candidates in city elections did not violate
RCW 42.17.130. However, subsequent legislation has rendered both of these opinons moot. Later amendments to
RCW 42.17.130 explicitly penntted the conduct which the court allowed in King County Council, while the enactment
of Initiative 134 (RCW 42.1 7.128) specifically prohibited local governents from using public fuds to finance political
campaign for state or local offce.
3 Although AGO 1979 No. 3 does not explicitly discuss it, some public propert constitutes traditional
"public forum" areas in which citizens have a constitutional right to assemble and speak. The ethics statute was not
intended to prohibit political rallies on the state capitol steps or parades on public streets.
3
-.,
180(2)(b) permits elected offcials to respond to an
inquiry regarding a ballot proposition so long as there is no "actual, measurable expenditue of
public fuds"; the rule interprets this phre. These two rules are attached to this memo.
the term "meaSurable expenditue". RCW 42.52.
The Executive Ethics Board has issued several advisory opinions on the use of public
facilities for campaign puroses. One of the early ones, Advisory Opinion, No. 96-10, concluded
that an elected offcial who headed a state agency could, as a matter of "normal and regular
conduct", wrte a letter to agency employees at their home addresses explaining management
policies, notwithstanding that the letter was wrtten during an election campaign and that the letter
might incidentally assist the offcial's re-election effort. The opinion was based on a peculiar set of
facts, and anyone seeking to extend its reasoning to other fact patterns should be very cautious.
EEB Advisory Opinion 00-08 concerned the use of a state offcer's or employee's title in
connection with an election campaign. The opinion concluded that the title is not a "tangible
facility of an agency" but that any use of a title "must be accompaned by a disclaimer that the
officers or employees are speakng only for themselves and not for their agencies."
Two recent advisory opinions provide valuable guidance. EEB Advisory Opinion 02-02
answers a series of frequently asked questions on the use of state resources. Many of the key terms
in RCW 42.52.180 are discussed. This opinion is geared to the personal use of public resources in
general, and not specifically to the use of public resources for campaign purposes. EEB Advisory
Opinion 02-04 discusses the use of state facilities, including electronic mail, to distrbute newspaper
articles and editorial opinions.
All of
the Executive Ethics Board Advisory Opinions are available by mail from the Board;
2425 Bristol Court S.W., P.O. Box 40149, Olympia W A 98504-0149, or electronically at
ww.wa.gov/ethics/.
iv. ADDITIONAL COMMENTS ABOUT THE USE OF PUBLIC FACILITIES
This section of
the memoradum is intended to draw together informal advice from a varety
of sources (primarily generated in response to ballot measures in previous years), and to point to
sources available for help in answering new questions which may arse. Although these answers
are intended to be cautious and noncontroversial, the ethics laws are subject to interpretation like
all legislation, and reasonable minds might differ on some details. This memo represents my
own analysis and is not the official position of the office. Attorneys who are asked for advice
about specific situations should check my answers against the current language of the statute,
together with any curent regulations and any existing or future interpretations of the statute by the
agencies with jurisdiction.4 Where there is disagreement, we should engage in further dialogue with
an eye toward giving consistent advice.
4 It would be wise to check for interpretive statements both by the Public Disclosure Commssion (which
continues to admnister the provisions of RCW 42.17.130) and the relevant ethcs board (see RCW 42.52.310-.380).
4
As noted above, the Executive Ethcs Board has adopted some interpretive rules concernng
RCW 42.52.180.5 Given the language of the statute itself, and factoring in cases and opinions
interpreting the older statute (RCW 42.17.130) to some extent, it is possible to make some general
statements about political activities under RCW 42.52.180. I think the following activities are quite
clearly prohibited by RCW 42.52.180:
i. Using work hours to solicit signatures for ballot propositions, to raise funds
for or against such propositions, or to organize campaigns for or against such
propositions. The prombition similarly bars the use of work time to
campaign for or against a candidate for public office.
2. Using public property to campaign for or against a candidate or ballot
proposition, except that "neutral forum" public property otherwse open to
public use may be used for campaigning also.
3. Using public facilities-Qffce space, electronic mail and data processing
equipment, word processing and copying facilities, paper, supplies, and any
other publicly owned property-for campaigns for or against a ballot
proposition, or for or against a candidate, whether durng or after work
hours.
4. Displaying political material in or on publicly owned vehicles.
5. Displaying or distrbuting campaign material on publicly owned or operated
premises (other than "neutrl open foru" propert or "personal space"
property
as discussed below).
6. Using public supplies, equipment, or facilities to print, mail, or otherwse
produce or distrbute materials supporting or opposing any candidate or
ballot proposition.
7. Using publicly owned facilities to instrct or urge public employees to
campaign for or against a candidate or ballot proposition on their own ti~e,
or stating or implyig that their job performance might be judged according
to their willingness to use their own time on a campaign.
5 The law also contemplates individual agency rules on etlcs matters. RCW 42.52.200. Many agencies,
including the Attorney General's Offce, have existing rules or policies which would be relevant to a paricular inquir.
5
8. Using public time and/or facilities to draft or pass a resolution by an
appointed committee, board, or commssion tang an offcial position for or
against a pendin~ ballot proposition, or endorsing or opposing a candidate
for public office.
Turning to the other side, the following appear to be conduct which is not prohibited by
RCW 42.52.180:
1. An elected legislative body may collectively endorse or oppose a ballot
measure if it meets the procedural requirements ofRCW 42.52.180(2)( a).7
2. An elected offcial may make a statement in support of, or in opposition to, a
ballot proposition at an open press conference or in response to a specific
inquiry or may make incidental remarks concerng a ballot proposition in
an official communcation, so long as there is no actual, measurable
expenditure of public fuds. Again, note that this exception is limited to
elected officials and does not, by its terms, extend to such "support" activity
as using staff time or state facilities to prepare or distrbute such a statement,
at least if any "measurable expenditue" of public fuds is involved.
3. Statewide elected offcials and legislators may make de minimis use of
public facilities to prepare or deliver communcations giving their views on
ballot propositions that foreseeably may affect a matter that falls within their
constitutional or statutory responsibilities. Note that this exception is
limited, again, to elected offcials, and that it is related to the scope of each
officer's official duties. Thus, the Governor and the members of the
Legislatue may have authority to make statements on more issues than, say,
the Secretary of State or the Insurance Commissioner, whose scope of
operation is more narowly defined.
4. Unless it is inconsistent with some other applicable law or regulation, a
public employee is not prohibited from campaignng for or against a ballot
proposition on the employee's personal time.8 It should be clear that the
activity is the individual's personal choice and is not tied to job
performance in any way. For state employees, the term "personal time"
6 Note that RCW 42.52.l80(2)(a) and (b) relate exclusively to elected offcials and members of an elected
legislative body. Exception (d), relating to "de minimis use of public facilities", also relates only to statewide elected
offcials and legislators. The only exception which is conceivably applicable to the activities to an appointed board or
commission is exception (c), relating to "(a)ctivities that are par of the nonnal and regular conduct of the offce or
agency". In light of the specific exception for elected boards, it seems unikely that appointed boards would be held to
look at the powers and duties of
have the same power by implication. An analysis of ths issue would require a careful
the parcular board, commttee, or agency in question.
7 Note that the body must be both elected and
legislative in nature.
S Some state employees whose work is funded with federal funds may be subject to the restrictions of the
Hatch Act, a federal statute which is quite different in scope from the state ethics law. Certain employees who work
jointly for more than one entity, or who work on contracts for other governents, might be subject to another
jurisdiction's restrictions. It is beyond the scope of
this memo to analyze federal law, or restrictions enacted by local
governents or other states.
6
I'
would .ordinarly only include: (1) time outside the employee's normal work
day; or (2) time when the employee is on vacation leave status or is using
leave properly and lawfully accumulated and consistent with applicable
statutes and personnel regulations; or (3) on unpaid leave status.9 As noted
earlier, the Executive Ethics Board has interpreted "working hours" in
WAC 292-110-020.\0 '
5. Public employees may contact fellow employees, away from the offce, to
circulate petitions or to solicit one another for fuds, volunteers, and other
activity for and against a ballot proposition, but only under circumstances
which strctly avoid the use of offce time and public property. Officers and
employees would be wise to avoid soliciting subordinate employees because,
under those circumstances, the subordinate employees may feel (no matter
how carefully the campaign is conducted or the inquiry is phrased) that the
superior is using improper influence.
6. Where public space is available on a nonrestrcted basis to post signs,
petitions, and advertisements, or to make speeches and hold meetings, public
employees may use these "neutral public foru" spaces to express their own
views, including their views on pending ballot propositions, assuming they
are not otherwise violating RCW 42.52.180. However, it might well be a
violation of the statute for public employees to use their positions to gain
special advantage in the use of such "public foru" spaces, such as by
signng up all the time for the use of a public auditoriwn before
the same space,
or by using their access to a public bulletin board to occupy the entire space
with favored campaign material and leaving no space available for opposing
material (or material relating to other matters).
non-employees have had an equal opportunity to seek use of
7. Public agencies may conduct research into the likely results of
the passage of
a ballot proposition. hideed, where the passage of the proposition would
directly affect the agency's duties, an agency might be remiss for not
conducting such research activity. However, it must be clear that the
research is being conducted with the purpose of gathering the facts, is
directly related to the ordinar conduct of the agency's business, and is not
designed to support or oppose a candidate or ballot measure. \ i I recommend
9 It is an obvious corollary that employees campaigng on their own personal tie should avoid stating or
imlyig tht they are campaigng on behalf of the state or of a state agency.
io The rule recognizes that elected statewide officials do not have working hours as such. Thus, it is up to
each elected offcer to allocate time between campaigning and other activities. WAC 292-110-020(8). However,
elected offcers are stil prohibited from using, or allowing the use of, staff time or office facilities for campaign
puroses. /d.
ii The Public Disclosure COnussion (PDq has wrestled with similar questions for many years, especially in
the area of material generated by school distrcts concerning the possible effect of passage or defeat of a school distrct
levy proposition. The priciples developed by the PDC in response to these cases may prove intrctive to other
agencies. As of
the writiIg of
this memo, the PDC was awaitig a decision in a case challenging the constitutionality of
this statute. The decision is expected to define the roc's role as well
as the substantive law concerning use of public facilities for political puroses. As noted earlier, the ethcs boards are
RCW 42.17.130 and ofthePDC's interpretation of
7
"I
that agencies avoid conducting research or assembling statistical data wruch
they expect to be requested for use in connection with a campaign, unless
they are satisfied that they would have underten the same research or
statistical effort for independent reasons, such as planng for
contingencies.
8. Public agencies and public employees may supply public records in response
to requests made by the supporters or opponents of candidates or ballot
propositions. An agency should treat all campaigns fairly and equitably in
responding to requests for public records. Ths is especially sensitive and
importnt, of course, in agencies headed by elected officers who are up for
re-election in the near future.
9. Where two or more measures relate to the same subject, agencies may
publish factual information showing the comparative effects ofthe measures,
just as they could publish factual inormation showing the expected effect of
a single measure. However, the agency may not use public facilities or
propert to favor one proposition over the other, any more than it could urge
passage or defeat of
both measures.
V. SOME HYPOTHETICAL QUESTIONS ABOUT CAMPAIGN ISSUES,
AND SOME SUGGESTIONS ABOUT THE ANSWERS
Following are some hypothetical questions which might be asked about the ethics laws
and some comments in response. Assistant attorneys general should remember that their role is
to advise state agencies and not individual officers and employees. AAGs can tell individuals
what the position of the Attorney General and the agency might be on an issue, but they should
remind employees that our offce does not provide personal advice and that our office would'
there were a complaint filed with
represent the agency and the public interest in any litigation. If
the Executive Ethics Board against a state employee, the employee should expect to secure
personal counsel on the matter or appear without counseL. Employees have to make their own
personal decisions concerning ethics law compliance. In questionable cases, they should think
about conferrng with private counsel.
1. I serve by appointment on a commission which govern a state agency. I serve part-time
and receive no compensation except for attending commission meetings. The other day, I attended
a fund raiser in support of an initiative measure which would, if approved, put the commission on a
much more solid financial footing. I attended at my own expense and made a contribution to the
campaign, which was properly reported. During the announcements, the announcer, specifcally
the X Commission"~ I quickly
against my request, introduced me to the crowd as "Vice Chair of
pointed out that I was attending as a private citizen. Was the use of my title a use of a "public
facility or property"?
now developing their own case law and advisory opinons, and these also might provide answers to questions about
public resources.
8
Unlike paper or in or tie, an offcer's title canot be measured or "expended" in any
meanngful way. Knowledge that a paricular candidate or ballot proposition is supported by
"Commissioner X" may lend some weight or dignity to a campaign event or advertsement, or it
may not. Thus, while it may be prudent to avoid using a position or title, primarly to avoid any
implication that the agency or its offcers are "offcially" supporting a paricular candidate or
proposition, the mere identification of a person by stating his/her title or position would not seem to
be a "use" of public facilities. However, it was wise for you to point out that you were attending in
your private capacity in order to prevent any misunderstanding on that point. 12
.
2. The head of my agency, Q, is an elected executive offcer who is a candidate for public
offce again this year. A close friend wants to support Q both with financial contributions and
volunteering time. I do not know the address or telephone number of Q's campaign offce. Would it
be all right to send an offce voice-mail or e-mail to Q, passing along my friend's name and
suggesting that Qforward this information to the campaign?
Remember that voice-mail and e-mail are both offce propert and facilities. Whle
forwarding the information to Q seems a small thing, it involves both you and Q (Q involuntaly) in
the use of office facilities for campaign activity. On your own tie, take the steps to find out how
to put your frend directly in touch with the campaign without
using offce facilities. If you don't
want to be involved even that much, suggest that your frend contact the campaign directly. A third
possibility would be to pass the inormation along using your own paper and stamp and Q's home
address.
3. Everyone in my work unit is a strong opponent of Ballot Measure B. We have all been
involved in the anti-B campaign, and we have been careful notto use either our state time or any
agency facilities, such as paper, computers, or copy machines, in our campaign work We need to
have a campaign meeting next weekend, and the organizers are having trouble finding a place for
the meeting. Our agency has a large conference room which is not ordinarily open to the public but
which wil not be in use during the weekend. Can we offer the use of the room for the campaign
meeting?
Although offce space is not "consumed" when used for a meeting (small amounts of heat
and light notwithstanding), the use of a space not ordinarly available to the public leaves the
defiite impression that the campaign is benefiting from its use of a public space. The fact that your
work unit is all involved in the campaign reinforces ths unfortate impression. In my opinion, .
using this paricular space would violate RCW 42.52. I 80. If the conference room is generally open
to the public, however, and is scheduled for the campaign on the same basis as anyone else could
schedule it, the answer might be different. It still might be prudent to have the meeting somewhere
else, just to avoid any question about misuse of public facilities.
4. I am the regional offce manager for a state agency and I supervise about 50 employees.
My close friend D is running for state senator. May I invite all my offce to a Saturday morning
event at my home where they can meet D and wil have the opportunity to contribute to the
campaign ?
12 As noted earlier, EEB Advisory Opinion 00-08 concluded that any employee's use of a title "must be
accompanied by a disclaimer" that the
employee is not speaking for the agency.
9
Extreme caution is advised. For the obvious points first, avoid the use of offce space, offce
paper, e-mail, voicemail, or any other offce facility for the invitations. Employee mailing lists are
know the phone
also public facilities which should not be used for campaign purposes. Perhaps you
numbers and addresses by hear, or can use publicly available sources such as telephone and e-mail
directories to get the necessar information. Even then, remember that you supervise all of these
employees. Will one or more misunderstand why they are invited to a campaign fund raiser at your
home? Will they conclude, no matter how you protest otheiwise, that they stand to gain your favor
if they support D, or to lose your favor if they don't? Even if this is not strictly a violation of
RCW 42.52.180, do you want to raise these issues?
5. My co-worker and I have strongly diferent political philosophies. During the last
presidential election campaign, she wore a large button promoting a candidate I find repugnant,
and she placed the candidate's picture in her workstation next to the pictures of her husband and
her cat. Would it be appropriate for me to ask our supervisor to ban such overt displays this year?
Ethical and policy considerations must always be balanced against free speech rights and the
legitimate interest of any employee in expressing her views and in arrangig her personal space.
The cours and the ethics agencies have recognized that campaign buttons on clothing are a personal
expression and do not violate the ethics statute.13 The use of personal assigned space in a
workstation probably meets the same requirement. The answer might be different if an employee
were using publicly visible space, such as a wall, window, or reception desk, which could leave the
impression that the campaign is favored by the agency or its leadership and is more than one
employee's personal choice.
6. Initiative J would, if approved by the people, repeal the tax that supports 90% of my
agency's activites. The Legislature might replace some of the money if the tax were repealed, but it
is virtually certain that our agency's budget would be severely reduced Can we use staf time and
agency resources to assemble and publish a sheet that would just "show the facts "-that is, that
enactment of Initiative J would effectively end all of the popular programs my agency is involved
with?
As noted earlier, agencies can anticipate ballot measures by preparng contingency plans or
by researching the possible effects of a measure for planing purposes. Your proposal goes
major flaw in your logic is to characterize as a "fact" your
predicted outcome of the legislative session should the initiative be approved. The Legislature is
legally free to replace the agency's fuding, no matter how unikely that outcome is. Therefore, it is
simply not a "fact" that the agency's programs would be eliminated. It is only speculation. There
seems little purpose for the agency to indulge in such speculation, except to influence the election
results. Perhaps the agency could publish a true "fact sheet" which, for instace, lists the current
programs administered by the agency with their curent budget. Perhaps the material also could
considerably beyond that, though. The
13 For reasons going beyond ethics, public agency employers have been held to have a limited right to
restrct employees in some limited circumstances from wearing political buttons or engaging in political activities.
Scott v. Meyers, 191 F.3d 82 (2d Cir. 1999) (transit authority could probably regulate wearing of political buttons by
transit employees while in contact with public, but not at other times); Horstkoetter v. Dep 't of Pub. Safety, 159 F.3d
1265 (10th Cir. 1998) (upheld statute prohibiting state troopers from displaying political signs on their personal
propert, but interpreted statute to not permit removal of signs placed by troopers' spouses on jointly owned
propert).
10
~
,'
point out the curent source of the agency's budget without speculating what would happen if that
funding source disappeared.
VI. CONCLUSION
In closing, it is important to remember that the public is generally very sensitive to the use
of public facilities or property on ballot propositions and takes accusations of violations very
seriously. Officers and employees who tr to bump up against the "line" that divides lawfl from
unlawful conduct in this area may find, even if their conduct is eventually judged lawful, that their
questionable activity has incited a public backlash against the very position they were attempting to
advocate. As a result, public employees should walk a careful line to assure that the public is fully
and adequately informed about the consequences of voting on a paricular measure, without makng
unawful use of public money or propert to influence the result of the vote. State agencies -and
officers should consult closely with legal counsel on all activities relating to matters before the
voters, and they should use utmost skill and care in expressing any comments on such matters.
Violations ofRCW 42.52 by executive branch employees are now within the jurisdiction of
the Executive Ethics Board. Employees with questions in this area should contact:
Brian Malarky, Executive Director
2425 Bristol Court S.W.
P.O. Box 40149
Olympia W A 98504-0149
(360) 664-0871
Assistant Attorney General Jean Wilkinson serves as legal advisor to the Board.
JK/bw
Attachments
11
..
RCW 42.52.180
RCW 42.52.180 Use of public resources for political campaigns. (1) No state offcer
or state employee may use or authorize the use of facilities of an agency, directly or indirectly,
for the purpose of assisting a campaign for election of a person to an offce or for the promotion
of or opposition to a ballot proposition. Knowing acquiescence by a person with authority to
direct, control, or influence the actions of the state officer or state employee using public
resources in violation of this section constitutes a violation of this section. Facilities of an
agency include, but are not limited to, use of stationery, postage, machines, and equipment, use
of state employees of the agency during working hours, vehicles, offce space, publications of
the agency, and clientele lists of persons served by the agency.
(2) This section shall not apply to the following activities:
(a) Action taken at an open public meeting by members of an elected legislative body to
express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or
ordinance, or to support or oppose a ballot proposition as long as (i) required notice of the
meeting includes the title and number of the ballot proposition, and (ii) members of the
legislative body or members of the public are afforded an approximately equal opportity for
the expression of an opposing view;
(b) A statement by an elected offcial in support of or in opposition to any ballot
proposition at an open press conference or in response to a specific inquiry. For the purposes of
this subsection, it is not a violation of this section for an elected official to respond to an inquiry
regarding a ballot proposition, to make incidental remarks concernng a ballot proposition in an
offcial communication, or otherwise comment on a ballot proposition without an actual,
measurable expenditue of public funds. The ethics boards shall adopt by rule a definition of
measurable expenditue;
(c) Activities that are part of
the no:mal and regular conduct of
the office or agency; and
(d) De minimis use of public facilities by state-wide elected officials and legislators
incidental to the preparation or delivery of permissible communications, including written and
verbal communications initiated by them of their views on ballot propositions that foreseeably
may affect a matter that falls within their constitutional or statutory responsibilities.
(3) As to state offcers and employees, this section operates to the exclusion of
RCW 42.17.130. (1995 c 397 § 30; 1994 c 154 § 118.)
Effective date-Captions-Severabilty-1995 c 397: See RCW 42.17.960 through
42.17.962.
12
10.
WAC 292~110-020
WAC 292-110-020 Working hours. (1) RCW 42.52.180(1) provides that no state
offcer or state employee may use or authorize the use of facilities of an agency, directly or
indirectly, for the purpose of assisting a campaign for election of a person to an offce or for the
promotion of or opposition to a ballot proposition. Facilities of an agency includes use of state
officers or state employees during working hours. The purpose of the rule is to define the term
"working hours" for officers and employees of the executive branch of state governent. The
prohibition in RCW 42.52.180(1) only applies during working hours. Nothing in
RCW 42.52.180(1) or this rule prohibits a state officer or state employee from assisting in a
campaign during non-working hours. An offcer or employee who assists in a campaign during
non-working hours may not use any facilities of an agency.
(2) Some state officers and state employees occupy positions that have fixed schedures
with the same beginning and ending times. For offcers and employees with fixed schedules,
working hours are the hours between the starting and ending times of their positions. Officers
and employees with fixed schedules may not assist in a campaign during these fixed working
hours, unless they are on a lunch break under section four of this rule or on annual leave under
five ofthIs rule.
section
Example 1: An employee works for an agency open to the public during the
hours of 8:00 a.m. to 5:00 p.m. The employee is in a position with a fixed
schedule of Monday through Friday 8:00 a.m. to 5:00 p.m. The employee's
working hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. The employee
may not assist in a campaign during these hours unless the employee is on a lunch
break or on annual leave. The employee may assist in a campaign before 8:00
a.m. or after 5:00 p.m. Monday through Friday or on Saturday or Sunday.
Example 2: An employee works for an agency open to the public during the
,agency is open during the hours 8:00
a.m. to 5:00 p.m., the employee is in a position with a fixed schedule of Monday
through Thursday 3:00 p.m. through 12:00 a.m. The employee's working hours
are 3:00 p.m. to 12:00 a.m. Monday through Thursday. The employee may not
assist in a campaign during these hours unless the employee is on a lunch break or
on annual leave. The employee may assist in a campaign before 3:00 p.m. or after
12:00 a.m. Monday through Thursday or anytime on Friday, Saturday or Sunday.
hours of 8:00 a.m. to 5:00 p.m. Although the
(3) Some state officers and state employees occupy positions that do not have fixed
schedules with the same starting and ending times. For officers and employees who do not have
fixed schedules, working hours are defined as either:
(a) The hours set forth in any policy on working hours adopted by an agency. Agencies
have flexibility in determining working hours for the offcers and employees to meet their unique
needs so long as the time considered to be working hours is clearly established. If an agency does
not adopt a working hours policy, working hours shall be 8:00 a.m. to 5:00 p.m. Monday through
Friday when state agencies are generallY,open to the public; or
13
, ,
...
(b) The work schedule for an offcer or employee approved by the agency, if it is
different from the agency policy or, if
the agency has not adopted a policy, 8:00 a.m. to 5:00 p.m.
Monday through Friday.
Example 3: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. Although the agency is open to the public at
these times, the work of the agency goes on twenty-four hours a day. The agency
, has adopted a working hours policy that divides working hours into three shifts:
the day shift (8:00 a.m. to 5:00 p.m.); swing shift (3:00 p.m. to 12:00 a.m.) and
midnight shift (12:00 a.m. to 9:00 a.m.). An employee without a fixed schedule is
assigned to the swing shift (3:00 p.m. to 12:00 a.m.) Monday through Friday.
Since the employee does not have a fixed schedule, the employee sometimes
comes to work before 3:00 p.m. and sometimes after 3:00 p.m. Similarly, the
employee may leave work before or after 12:00 a.m. This employee's working
hours are 3:00 p.m. to 12:00 a.m. Monday through Friday. The employee may not
assist in a campaign during these hours unless the employee is on a lunch break or
on annual leave. The employee may assist in a campaign before 3 :00 p.m. or after
12:00 a.m. Monday through Friday or on Saturday or Sunday.
Example 4: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5:00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m.
Sirrilarly, the employee may leave work before or after 5:00 p.m. Since the
agency has not adopted a policy on working hours, this employee's working hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday. The employee may not assist
in a campaign during these hours unless the employee is on a lunch break or on
annual leave. The employee may assist in a campaign before 8:00 a.m. or after
5:00 p.m. Monday through Friday, or on Saturday or Sunday.
Example 5: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. Although the agency is open to the public
at these times, the work of the agency goes on twenty-four hours a day. The
agency has adopted a working hours policy that divides working hours into three
shifts: the day shift (8:00 a.m. to 5:00 p.m.); swing shift (3:00 p.m. to 12:00 a.m;)
and midnight shift (12:00 a.m. to 9:00 a.m.). An employee without a fixed
schedule is assigned to the day shift (8:00 a.m. to 5:00 p.m.) Monday through
Friday. However, the agency has approved a different work schedule for this
employee. Instead of the usual day shift of 8:00 a.m. to 5:00 p.m., the employee
works 7:00 a.m. to 4:00 p.m. Since the employee does not have a fixed schedule
the employee, sometimes comes to work before 7:00 a.m. and sometimes after
7:00 a.m. Similarly, the employee may leave work before or after 4:00 p.m. This
employee's working hours are 7:00 a.m. to 4:00 p.m. Monday through Friday.
The employee may not assist in a campaign during these hours unless the
employee is on a lunch break or on anual leave. The employee may assist in a
campaign before 7:00 a.m. or after 4:00 p.m. Monday through Friday, or on
Saturday or Sunday.
14
'.
-.;
(4) Working hours do not include state legal holidays unless the offcer's or employee's
work schedule requires the offcer or employee to work on a state legal holiday.
(5) Working hours do not include the time approved and designated for an offcer's or
employee's lunch break. A lunch break is between 12:00 p.m. and 1 :00 p.m., unless the agency
has designated a different time in a working hours policy or has approved a different lunch break
as part of an offcer's or employee's work schedule. If an offcer or employee engages in
campaign activity during the lunch break, the offcer or employee may not make use of any of
the agency.
the facilities of
Example 6: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. The agency has not ,adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5 :00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m.
Similarly, the employee may leave work before or after 5:00 p.m. Since the
agency has not adopted a policy on working hours, this employee's working hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday with a lunch break between
12:00 p.m. and 1:00 p.m. The employee may assist in a campaign during the
employee's lunch break between 12:00 p.m. and 1 :00 p.m.
leave statu if
(6) Working hours do not include the time in official
the leave hasreceived
advance documented or written authorization. An offcer or employee on leave may assist in a
campaign.
Example 7: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5:00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m.
Similarly, the employee may leave work before or after 5:00 p.m. Since the
agency has not adopted a policy on working hours, this employee's working hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday. On Friday the employee
receives advance written authorization to be on leave for five days, Monday
through Friday of the next week. The employee may assist in a campaign during
this leave.
Example 8: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday thrOllgh Friday. The agency has not adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5:00 p.m. Since the employee does not have a fixed schedule the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m.
or after 5:00 p.m. Since the
Similarly, the employee may leave work before
agency has not adopted a policy on working hours, this employee's working hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday. In this agency employees
without fixed schedules take leave during a month and then get written
authorization for the leave at the end of the month. An employee takes leave
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"
Monday through Friday and assists in a campaign. At the end of the month the
employee obtains wrtten authorization for the leave. The employee has assisted
in a campaign during working hours since the employee did not obtain wrtten
authorization prior to taking leave to assist in a campaign. To assist in a
campaign while on leave, the employee must obtain wrtten authorization prior to
going on leave.
(7) The definition of working hours also includes any time an offcer or employee is
actually working. For an officer or employee with a fixed schedule, working hours includes
overtime when the offcer or employee is working additional hours other than those in the fixed
schedule. For an offcer or employee without a fixed schedule, working hours include any time
the offcer or employee is working.
Example 9: An employee works for an agency that is open to the public 8:00 a.m.
to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on
working hours. An employee without a fixed schedule usually works 8:00 a.m. to
5 :00 p.m. Since the employee does not have a fixed schedule, the employee
sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m.
Similarly, the employee may leave work before or after 5:00 p.m. Since the
agency has not adopted a policy on working hours, this employee's working hours
are 8:00 a.m. to 5:00 p.m. Monday through Friday; On a Monday the employee
works from 8:00 a.m. to 9:00 p.m. Even though the employees working hours are
8:00 to 5:00 the time spent working between 5:00 p.m. and 9:00 p.m. are working
hours because the employee is working for the agency during this time.
(8) The governor, lieutenant governor, secretary of state, treasurer, auditor, attorney
general, superintendent of public instruction, commissioner of public lands, and the insurance
commissioner are state officers in the executive branch subject to RCW 42.52.180. These
officers are elected to office and hold office for a term of four years and until their successors are
elected and qualified. Since these offcers are elected to a term of offce, they do not have
these offcers do assist in a
working hours and may assist in a campaign at any time. However, if
campaign, they may not make use of any facilities of an agency except as provided in
RCW 42.52. i 80(2).
(Statuory Authority: RCW 42.52.180(1) and 42.52.360(2)(b). 96-22-030, § 292-110-020, fied 10/30/96, effective
11/30/96.)
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..
WAC 292-110-030
WAC 292-110-030 Measurable expenditure. (1) RCW 42.52.180(1) provides that no
state offcer or state employee may use or authorize the use of facilities of an agency, directly or
indirectly, for the purpose of assisting a campaign for election of a person to an offce or for the
promotion of or opposition to a ballot proposition. Facilities of an agency include, but are not
limited to, use of stationery, postage, machines and equipment, use of state employees during
working hours, vehicles, offce space, publications of the agency, and clientele lists of persons
served by the agency.
(2) RCW 42.52.180(2) sets forth exceptions to the prohibition in RCW 42.52.180(1).
The exceptions include a statement by an elected offcial in support of or in opposition to any
ballot proposition at an open press conference or in response to a specific inquiry without. ~
180(2)(b)); activities that are par of
the normal and regular conduct of the offce (RCW 42.52.180(2)(c)); and de minimis use of
actual measurable expenditure of
public funds (RCW 42.52.
public facilities by state-wide elected offcials incidental to the preparation or delivery of
permissible communications initiated by the offcial regarding the official's views on a ballot
proposition that may foreseeably affect a matter that falls within the official's constitutional or
statutory responsibilities (RCW 42.52.180(2)( d)).
(3) Elected officials regularly expend public funds to respond to inquiries from
the media, constituents and other persons on matters unrelated to ballot propositions.
RCW 42.52.l80(2)(b) permits elected offcials to respond to such inquiries regarding ballot
propositions without an actual measurable expenditure of public funds. For purposes of
RCW 42.52.180(2)(b) measurable expenditure means an expenditure or separately identifiable
cost or specific portion of a cost incurred by the agency beyond the normal and regular
expenditures or costs incurred by the agency in responding to inquiries from the media,
constituents and other persons on matters unrelated to ballot propositions.
Example 1: A state-wide elected official conducts a press conference in state
offce space. During the conference the offcial is asked about a ballot
the ballot proposition does not fall within the normal
and regular conduct of the official's agency nor within the official's constitutional
or statutory responsibilities. The official replies to the question explaining his or
her opinion on the ballot proposition and the reason for the opinion. It is not an
ethical violation to reply to such an inquiry. The use of state offce space, during
the time the official answers the question about the ballot proposition, does not
proposition. The subject of
result in a measurable expenditure of public funds. This is because the
expenditure or cost of the offce space during this period is. not a separately
identifiable cost.
Example 2: A state-wide elected offcial receives a letter from a constituent
asking for the official's position on a ballot proposition. The subject of
the ballot
proposition does not fall within the normal and regular conduct of the official's
agency nor within the official's constitutional or statutory responsibilities. The
official replies by letter explaining his or her opinion on the ballot proposition and
the reason for the opinion. In the course of preparing the reply the official has the
17
assistance of staff and uses offce space, equipment, stationery and postage. It is
not an ethical violation to reply to such an inquiry. There is no measurable
expenditure of public funds because the agency has not incurred a cost beyond the
normal and regular costs incurred by the agency in responding to inquiries from
the media, constituents and other persons on matters unrelated to ballot
propositions.
Example 3: A state-wide elected official received a letter from a constituent
asking for the offcial's position on a ballot proposition. The subject of
the ballot
proposition does not fall within the normal and regular conduct of the official's
agency nor within the official's constitutional or statutory responsibilities. The
official replies by letter explaining his or her opinion on the ballot proposition and
the reason for the opinion. In the course of preparing the reply the offcial has the
assistance of staff and uses offce space, equipment, stationery and postage. The
official sends copies of the reply to other individuals on the agency mailing list.
This is an ethical violation. While it is permissible to reply to the constituent who
inquired about the official's position (Example i), it is improper to send copies of
public funds because
the paper and postage for the additional copies is a separate identifiable
cost beyond the normal and regular costs incurred by the agency in responding to
inquiries from the media, constituents and other persons on matters unrelated to
the response to others. There is a measurable expenditure of
the cost of
ballot propositions.
Example 4: A state-wide elected offcial writes a letter to the editor of a
newspaper stating the official's position on a ballot proposition. The subject of
the ballot proposition does not fall within the normal and regular conduct of the
official's agency nor within the official's constitutional or statutory
responsibilities. In the course of preparng the letter the offcial has the assistance
of staff and uses office space, equipment, stationery and postage. This is an
ethical violation. The official has used the facilities of the agency and the
exception in RCW 42.52.1-80(2)(b) does not apply because the offcial is not
responding to an inquiry.
(Statutory Authority: RCW 42.52.180(2)(b) and 42.52.360(2)(b). 96-22-029, § 292-110-030, fied 10/30/96,
effective 11/30/96.)
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