What Type of Lobbying is Allowed

The statutory provisions governing lobbying by agencies using public funds are found in RCW 42.17.190, subsections (2) through (8), copy attached. This language sets out, in a fairly convoluted fashion, what agencies may and may not do when it comes to lobbying the state legislature.

Subsection (2) begins by prohibiting the use of public funds directly or indirectly for lobbying, absent express legal authority. However, it goes on to say that this prohibition does not prevent agency personnel from communicating with legislators at the member's request or from requesting, through proper official channels, necessary legislative action or funding.

Actually, this need for public officials and employees to use "proper official channels" has doubtless played a role in the evolution of legislative liaisons. The members of the legislature have stated pretty clearly that they don't want to see everyone within an agency who has a pitch to make on a given bill. They've required agencies to establish a system for communicating with them.

Subsection (3) grants all agencies general authority to lobby using public funds, but limits that authority to:
  1. communicating with state officeholders or employees on official agency business; and

  2. advocating only the official position or interests of the agency.
The legislature appears to be saying that it wants employees to refrain from using public funds to discuss subjects not related to their agency's mission. Further, legislators do not want to receive "mixed messages" from different individuals within an agency.

Subsection (3) also prohibits spending public funds, directly or indirectly, for gifts or campaign contributions. Both terms are broadly defined in law. Suffice it to say that a gift includes anything worth receiving: meals, beverages, travel expenses, theater or sporting event tickets, art work, flowers, etc. A campaign contribution, on the other hand, is anything of value to a campaign, be it a monetary contribution or an in-kind item or service provided to the campaign.

Initiatives to the Legislature

Subsection (4) prohibits anyone within the public sector from using or authorizing the use of public facilities in an effort to support or oppose an initiative to the legislature. The Public Disclosure Commission (PDC) has interpreted this prohibition as applying only during an initiative's signature-gathering phase. Once an initiative is certified by the Secretary of State as having received sufficient signatures and is before the state legislature, it is like any other piece of legislation and public agencies may lobby the legislature concerning it's passage or defeat.

However, during the signature-gathering phase, the only exceptions to the prohibition against using public funds to support or oppose an initiative to the legislature relate to official action by members of an elected body, statements by elected officials at an open press conference or in response to a specific inquiry, and activities that are part of the "normal and regular conduct" of the agency; that is, activities that are specifically authorized by law and that are usual for the agency.

It's safe to say, in general, the only authority a non-elected state official or employee has to lobby on an initiative to the legislature while it is being circulated for signatures stems from the normal and regular conduct provision. And, even with the aid of this provision, agencies are limited to providing objective and balanced information about the initiative; not advocating passage or defeat of the measure.

(Note that if an initiative to the legislature ends up going before the voters as a ballot proposition, there are other statutory provisions that prohibit using public facilities to support or oppose it.)

Reporting Lobbying Costs to PDC

Subsection (5) of RCW 42.17.190 speaks to what information will be reported by state agencies and other public entities. The report (PDC form L-5) is filed quarterly by the last day of the month following the end of each calendar quarter. See the attached

L-5 form for details on what types of expenditures are reportable. The focus is primarily on identifying persons who lobbied during the quarter, disclosing their salaries, and showing how much was spent on their travel allowances. There is an instruction manual to assist agencies in completing the form.

The following activities are not considered reportable lobbying activities:
  • Appropriation requests to the Office of Financial Management (OFM); or OFM's requests to the legislature for funds to support agencies other than itself;

  • Recommendations or reports to the legislature in response to a specific legislative request;

  • legally mandated annual or biennial legislative reports;

  • communications between or within state agencies or between or within local agencies;

  • telephone conversations, preparation of correspondence or preparation or adoption of policy positions;

  • In-person lobbying on behalf of the agency amounting to no more than four days or parts thereof during any three month period (that's an aggregate total for everyone who lobbies on behalf of the agency), assuming no more than $15 of non-public money was spent, in total, on state officeholders and staff;

  • all in-person lobbying done by an elected official, except if the official spends over $15 of non-public money on state officeholders or staff; and

  • all attempts to influence federal or local legislation.
Summary

Without specific authority elsewhere in law, the only lobbying agencies receiving public funds may undertake is:
  • communicating with legislators at the member's request;

  • requesting necessary legislative action or appropriations through proper official channels;

  • providing information to legislators or staff on matters pertaining to official agency business; and

  • advocating the official position or interests of the agency.
No grass roots lobbying campaigns aimed at the general public. No campaign contributions with taxpayer funds. And, no gifts paid for with public dollars.

When it comes to reporting, state agencies report only in-person lobbying conducted by non-elected officials or employees and directed at legislators and their staff members. This includes time spent testifying at public hearings. And, in addition, if anyone -- including an elected official -- spends over $15 of non-public money on behalf of legislators or legislative staff, attach a sheet to the L-5 showing the spender's name, the source of the funds, the amounts spent, the dates of the expenditures and the names of the legislators or staff persons on whose behalf the funds were spent.

Records supporting the information supplied on the reports must be kept for five years.

The L-5 Report: Each agency will submit one report for any calendar quarter during which there was reportable lobbying. No lobbying, no report. Reports must be mailed to PDC by the end of the month following the close of the quarter. First quarter reports are due on or before April 30.
    Lobby & Lobbying: Each mean "attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state Administrative Procedure Act, chapter 34.05 RCW.

    Neither 'lobby' or 'lobbying' includes an association's or other organization's act of communicating with the members of that association or organization." [RCW 42.17.020(27)]

    Legislation: Means "bills, resolutions, motions, amendments, nomination, and other matters pending or proposed in either house of the state legislature, and includes any other matter that may be subject of action by either house or any committee of the legislature and all bills and resolutions that, having passed both houses, are pending approval by the governor." [RCW 42.17.020(26)]
Legislation: Means "bills, resolutions, motions, amendments, nomination, and other matters pending or proposed in either house of the state legislature, and includes any other matter that may be subject of action by either house or any committee of the legislature and all bills and resolutions that, having passed both houses, are pending approval by the governor." [RCW 42.17.020(26)]


RCW 42.17.190

RCW 42.17.190 Legislative activities of state agencies, other units of government, elective officials, employees. (1) The house of representatives and the senate shall report annually: The total budget; the portion of the total attributed to staff; and the number of full-time and part-time staff positions by assignment, with dollar figures as well as number of positions.

(2) Unless authorized by subsection (3) of this section or otherwise expressly authorized by law, no public funds may be used directly or indirectly for lobbying: PROVIDED, This does not prevent officers or employees of an agency from communicating with a member of the legislature on the request of that member; or communicating to the legislature, through the proper official channels, requests for legislative action or appropriations which are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties: PROVIDED FURTHER, That this subsection does not apply to the legislative branch.

(3) Any agency, not otherwise expressly authorized by law, may expend public funds for lobbying, but such lobbying activity shall be limited to (a) providing information or communicating on matters pertaining to official agency business to any elected official or officer or employee of any agency or (b) advocating the official position or interests of the agency to any elected official or officer or employee of any agency: PROVIDED, That public funds may not be expended as a direct or indirect gift or campaign contribution to any elected official or officer or employee of any agency. For the purposes of this subsection, the term "gift" means a voluntary transfer of any thing of value without consideration of equal or greater value, but does not include informational material transferred for the sole purpose of informing the recipient about matters pertaining to official agency business. This section does not permit the printing of a state publication which has been otherwise prohibited by law.

(4) No elective official or any employee of his or her office or any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, in any effort to support or oppose an initiative to the legislature. "Facilities of a public office or agency" has the same meaning as in RCW 42.17.130 and 42.52.180. The provisions of this subsection 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 an initiative to the legislature so long as (i) any required notice of the meeting includes the title and number of the initiative to the legislature, and (ii) members of the legislative body or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;

(b) A statement by an elected official in support of or in opposition to any initiative to the legislature at an open press conference or in response to a specific inquiry;

(c) Activities which are part of the normal and regular conduct of the office or agency;

(d) Activities conducted regarding an initiative to the legislature that would be permitted under RCW 42.17.130 and 42.52.180 if conducted regarding other ballot measures.

(5) Each state agency, county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district which expends public funds for lobbying shall file with the commission, except as exempted by (d) of this subsection, quarterly statements providing the following information for the quarter just completed:

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

(b) The name, title, and job description and salary of each elected official, officer, or employee who lobbied, a general description of the nature of the lobbying, and the proportionate amount of time spent on the lobbying;

(c) A listing of expenditures incurred by the agency for lobbying including but not limited to travel, consultant or other special contractual services, and brochures and other publications, the principal purpose of which is to influence legislation;

(d) For purposes of this subsection the term "lobbying" does not include:

(i) Requests for appropriations by a state agency to the office of financial management pursuant to chapter 43.88 RCW nor requests by the office of financial management to the legislature for appropriations other than its own agency budget requests;

(ii) Recommendations or reports to the legislature in response to a legislative request expressly requesting or directing a specific study, recommendation, or report by an agency on a particular subject;

(iii) Official reports including recommendations submitted to the legislature on an annual or biennial basis by a state agency as required by law;

(iv) Requests, recommendations, or other communication between or within state agencies or between or within local agencies;

(v) Any other lobbying to the extent that it includes:

(A) Telephone conversations or preparation of written correspondence;

(B) In-person lobbying on behalf of an agency of no more than four days or parts thereof during any three-month period by officers or employees of that agency and in-person lobbying by any elected official of such agency on behalf of such agency or in connection with the powers, duties, or compensation of such official: PROVIDED, That the total expenditures of nonpublic funds made in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington do not exceed fifteen dollars for any three-month period: PROVIDED FURTHER, That the exemption under this subsection is in addition to the exemption provided in (A) of this subsection;

(C) Preparation or adoption of policy positions.

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

(6) In lieu of reporting under subsection (5) of this section any county, city, town, municipal corporation, quasi municipal corporation, or special purpose district may determine and so notify the public disclosure commission, that elected officials, officers, or employees who on behalf of any such local agency engage in lobbying reportable under subsection (5) of this section shall register and report such reportable lobbying in the same manner as a lobbyist who is required to register and report under RCW 42.17.150 and 42.17.170. Each such local agency shall report as a lobbyist employer pursuant to RCW 42.17.180.

(7) The provisions of this section do not relieve any elected official or officer or employee of an agency from complying with other provisions of this chapter, if such elected official, officer, or employee is not otherwise exempted.

(8) The purpose of this section is to require each state agency and certain local agencies to report the identities of those persons who lobby on behalf of the agency for compensation, together with certain separately identifiable and measurable expenditures of an agency's funds for that purpose. This section shall be reasonably construed to accomplish that purpose and not to require any agency to report any of its general overhead cost or any other costs which relate only indirectly or incidentally to lobbying or which are equally attributable to or inseparable from nonlobbying activities of the agency.

The public disclosure commission may adopt rules clarifying and implementing this legislative interpretation and policy.[1995 c 397 § 7; 1986 c 239 § 1; 1979 ex.s. c 265 § 1; 1977 ex.s. c 313 § 6; 1975 1st ex.s. c 294 § 12; 1973 c 1 § 19 (Initiative Measure No. 276, approved November 7, 1972).]


Public Agency Lobbying Administrative Rules

WAC 390-20-052 Application of RCW 42.17.190--Reports of Agency Lobbying. Pursuant to the authority granted in RCW 42.17.190(8), the commission adopts the following interpretations regarding the reporting of lobbying by public agencies pursuant to RCW 42.17.190:

(1) The phrase "in-person lobbying" contained in RCW 42.17.190(5)(d)(v)(B) includes activity which is intended to influence the passage or defeat of legislation, such as testifying at public hearings, but does not include activity which is not intended to influence legislation, such as attending a hearing merely to monitor or observe testimony and debate.

(2) The phrase "a legislative request" contained in RCW 42.17.190 (5)(d)(ii) includes an oral request from a member of the legislature or its staff.

(3) (a) When any subagency (i.e. department, bureau, board, commission or agency) within a state agency, county, city, town, municipal corporation, quasi-municipal corporation or special purpose district (i.e. primary agency) has independent authority to expend public funds for lobbying, that subagency may file a separate L-5 reporting the information required by RCW 42.17.190(5).

(b) When a subagency elects to file its own, separate L-5, it shall notify the commission and the administrative head of the primary agency of its intentions in writing. The primary agency shall not thereafter include information for the subagency in its L-5, and shall have no legal obligation for the filings of the subagency.

(4) Pursuant to RCW 42.17.190(6), certain local agencies may elect to have lobbying activity on their behalf reported by their elected officials, officers and employees in the same manner as lobbyists who register and report under RCW 42.17.150 and 42.17.170:

(a) Whenever such a local agency makes such an election, it shall provide the commission with a written notice.

(b) After such an election, those who lobby on behalf of such local agency shall register and report all lobbying activity reportable under RCW 42.17.190(5) in the

same manner as lobbyists who are required to register and report under RCW 42.17.150 and 42.17.170. Such a local agency shall report pursuant to RCW 42.17.180.

(c) In order to terminate such an election, such a local agency shall provide the commission with a written notice and it shall report pursuant to RCW 42.17.190(5) thereafter.

(d) The exemptions from reportable lobbying activity contained in RCW 42.17.190(5)(d) apply to all agencies, whether or not they have exercised the election to report in the same manner as lobbyists who report under RCW 42.17.150, 42.17.170 and 42.17.180. The exemptions contained in RCW 42.17.160(1), (4) and (5) do not apply to any agency.

(5) Unless an agency has elected to report its lobbying pursuant to RCW 42.17.190(6) and subsection (3) of this section, an agency shall include the reportable lobbying activity on its behalf by an elected official in its quarterly report. Such an elected official does not file any separate report of that activity.

(6) Reportable in-person lobbying by elected officials, officers and employees:

(a) An elected official does not engage in reportable in-person lobbying on behalf of this agency unless and until that elected official has expended in excess of fifteen dollars of nonpublic funds in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington during any three-month period as provided in RCW 42.17.190(5)(d)(v)(B).

(b) Other officers and employees do not engage in reportable in-person lobbying on behalf of their agency unless and until they have, in the aggregate, expended in excess of fifteen dollars of nonpublic funds in connection with such lobbying for or on behalf of any one or more members of the legislature or state elected officials or public officers or employees of the state of Washington or they have, in the aggregate, engaged in such lobbying for more than four days or parts thereof during any three month period as provided in RCW 42.17.190(5)(d)(v)(B).

(c) When limits in (a) or (b) of this subsection have been exceeded, the agency shall report such elected official, officer, or employee as a "person who lobbied this quarter" on the front of PDC Form L-5 and include a listing of those excess expenditures as noted on that form. (WSR 94-11-016, filed 5/5/94; WSR 91-16-072, filed 8/2/91; Order 85-05, filed 11/26/85; Order 80-01, filed 1/17/80.)

WAC 390-20-054 Agency Lobbying--Reporting of Lobbying by Independent Contractors. (1) An independent contractor who is retained to lobby on behalf of an agency shall register and report as a lobbyist pursuant to RCW 42.17.150 and 42.17.170.

(2) An agency which retains an independent contractor as a lobbyist and reports all of its expenditures in connection therewith pursuant to RCW 42.17.190 shall not be obligated to file a report pursuant to RCW 42.17.180 with regard to that lobbyist. (Order 81-01, filed 3/26/81.)

1996