- What restrictions apply to city and county employees or officials in providing information pertaining to a ballot measure?
Cities and counties are allowed to provide factual information to the voters regarding the specific effects of a ballot measure as long as it is in the normal course of business and not intended to influence the outcome of the election. The Public Disclosure Commission has published guidelines for local governments in the preparation of ballot measures.
The Attorney General's Office has also published guidelines on the role of local governments and agencies in support of a ballot measure. This memo states that:
Public agencies may conduct research into the likely results of the passage of a ballot proposition. Indeed, 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 ordinary conduct of the agency's business (is "normal and regular" for the agency), and is not designed to support or oppose a candidate or ballot measure.
See also an MRSC memo on the use of public facilities to support or oppose a ballot measure. Basically, a city or town may engage in
. . . activities which are part of the normal and regular conduct of the local government. . . . a local government could prepare an objective and neutral presentation of facts concerning a ballot measure. For example, details could be provided to citizens concerning the financial impact of an initiative on the local government, such as how revenues would be affected by its passage. Care must be taken that this information be presented in a fair, objective manner.
- May a mayor send a letter to all city employees soliciting campaign contributions for his election campaign, whether for city or state-wide office?
No. County or city officials may not knowingly solicit, directly or indirectly, a contribution for any candidate for public office, including themselves, from an employee in their agency. This rule is stated in RCW 42.17.750, which was amended in 1995 to apply to local officials as well as state officials. The term "agency" means the county, city, or town, and every office, department, division, board, commission, or agency within the county, city, or town.
Because the law requires that an official not "knowingly" solicit contributions, it would not appear to be a violation if an official used a list of registered voters or other lists of potential contributors not related to the agency for purposes of soliciting campaign contributions and the list happened to contain individuals who were also employees in the official's county or city. It does not make a difference if the official is running for a state-wide office, rather than a county or city office, because the rule applies to all solicitations of campaign contributions.
Outside of work, individual county and city employees still have the right to participate in the political campaigns of officials of the same county or city as the employee, including making private campaign contributions. The law simply prohibits a local official from "knowingly" soliciting contributions from employees of the same local government as the official.
As we move into the campaign and election season, you may wish to review the following (dealing with issues such as use of public funds and facilities for ballot propositions or campaign purposes; personnel policies on campaign activity in the workplace; and regulation of political signs in the public right-of-way):
"Election Campaigns Prohibition Against Use of Public Facilities," Municipal Research News, September 1995.
- May city councilmember, who is running for another elective office, wear his campaign button to city council meeting?
Yes, according to the Public Disclosure Commission (PDC), this would not violate RCW 42.17.130. I faxed the caller a copy of PDC Interpretation No. 92-01 (March 24, 1992), which states as follows:
- An elected official or public employee is not acting in violation of RCW 42.17.130 when he or she wears a typical campaign pin or button during normal working hours. Simply wearing a button which encourages support for or opposition to any candidate or ballot proposition, either directly or indirectly, is a form of personal expression and is not to be regarded as a "use of facilities" within the meaning and intent of the above-referenced statute.
- Officials or employees who choose to wear such pins or buttons are urged to exercise caution and prudence. Such personal expression can quite easily lead to other activities which are prohibited.
NOTE: This statement should not be construed as an authorization to wear political pins, buttons, etc., which would override or supersede an agency's statute, ordinance, rule, policy, etc., restricting such expressions.
(Emphasis in original.)
- May a city councilmember or county commissioner/board member, who is running for a higher county or state office, or for reelection, seek endorsements and/or contributions from employees?
He or she may seek endorsements but may not solicit contributions. See RCW 42.17.750(1) that states:
No state or local official or state or local official's agent may knowingly solicit, directly or indirectly, a contribution to a candidate for public office, political party, or political committee from an employee in the state or local official's agency. This prohibition has added significance, given the broad definition of the term "contribution." RCW 42.17.020 (14)(a) defines the term "contribution" to include:
(i) A loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment, transfer of funds between political committees, or anything of value, including personal and professional services for less than full consideration;
(ii) An expenditure made by a person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a political committee, or their agents;
(iii) The financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising prepared by a candidate, a political committee, or its authorized agent;
(iv) Sums paid for tickets to fund-raising events such as dinners and parties, except for the actual cost of the consumables furnished at the event.
- Request for information on the process of winning a local ballot measure including campaign costs and whether these must be paid by outside sources.
Due to state limitations on the use of public facilities and funds to assist or oppose political campaigns, cities are actually fairly limited in what they can do and pay for in this area. Because of these limitations, the types of activities that might normally be characterized as a "campaign" in support of a local ballot measure must be funded and staffed by outside sources and individuals, although city officials and employees are allowed to participate in campaign activities on their own time as private citizens.
For local public entities, the primary statute on this subject is RCW 42.17.130. The statute reads:
No elective official nor any employee of his office nor 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, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition. Facilities of public office or agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of employees of the office or agency during working hours, vehicles, office space, publications of the office or agency, and clientele lists of persons served by the office or agency: PROVIDED, That the foregoing provisions of this section shall not apply to the following activities:
(1) 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 so long as (a) any required notice of the meeting includes the title and number of the ballot proposition, and (b) members of the legislative body or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;
(2) A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry;
(3) Activities which are part of the normal and regular conduct of the office or agency.
WAC 390-05-271 provides further clarification. Any employee can express his or her personal views on a ballot proposition as long as it does not involve the use of public facilities. So, for example, speaking for a bond issue as a citizen outside working hours is permissible. A fair, balanced, and factual presentation of the issues to inform the citizens about the bond issue, can be done using city facilities and staff if such action is part of the normal and regular conduct of the office. So, for example, a city may prepare and distribute a neutral fact sheet concerning the impacts of a given ballot measure.
For more information on this subject, see the following resources:
Campaign Cost Data
With respect to campaign cost data, the best and perhaps only source of information can be found on the Public Disclosure Commission's Web site. Their "Database" page contains information on political committee contributions and expenditures including political committees formed to campaign for local ballot measures. Note that political committees in towns or districts that had fewer than 1,000 registered voters as of the last general election are usually exempt from reporting if their sole purpose is to support or oppose a local ballot measure (WAC 390-05-300). So, there is usually no data for committees in these smaller jurisdictions. For 2002 contribution and expenditure data from local political committees see:
The expenditure data for each local committee includes detailed descriptions of expenditure amounts and the purpose of the expenditure, so, for example, it is possible to get a sense of the total dollar amounts spent by selected campaigns for such items as postage/mailing permits, printing and/or surveys and polls.
It is even possible to search the entire database by expenditure type, so, for example, you could produce a table listing survey and polling expenditures (by typing "survey" in the "Partial Expenditure Description" field) by all political committees. The resulting table also lists the vendors that provided the particular service.
Election Campaign Strategy
We also have the following articles on strategies for winning bond elections available through our library that may be of some interest:
- "Selling a Bond Issue to the Voters," from A Debt Primer for Washington's Cities and Towns, MRSC Report No. 30, August 1994
- "Selling the Bonds Before the Bond Sale: Elements of a Successful Bond Referendum," Lawrence W. Pierce, Government Finance Review, June 1987
- "Votes and Goodwill - Achieving Genuine Success in Bond Elections," by M. Gray Donaldson, PM, July 1991
- "Planning a City Bond Election Campaign," by B.B. (Ted) Thomas, Jr., North Dakota League of Cities, January 1986
Web Resources
The following resources are available on the Web:
- May an ordinance enacted by initiative be amended by a vote of the city council in a code city?
No. The procedural rules that apply to initiative in a code city are contained in the statutes relating to the commission form of government. RCW 35.17.340 provides that an ordinance adopted by a vote of the people cannot be amended or repealed except by a vote of the people.
So once an ordinance has been adopted by a vote of the people pursuant to an initiative, it cannot be amended or repealed by the council.
- May a local government allow use of a public meeting room on a nondiscriminatory basis for a public forum to discuss or debate the impacts of Initiative 695?
Yes, a local government may do this if it has a policy that routinely allows use of one of their meeting rooms by the public. Use of the meeting room as a forum for a debate would then be a part of the normal and regular conduct of the local government. The meeting room should be made available on the same terms as apply to other groups who use the room. For example, rent should be charged for use of the meeting room if that is the normal policy. Also, both proponents and opponents of Initiative 695 must have access to the meeting room on a nondiscriminatory basis.
- May a local government elected official make a statement in support of or in opposition to Initiative 695 at a press conference?
Yes, this also is allowed as an exception to the general prohibition. This exception only applies to elective officials and not to other staff or employees. The exception is limited to making the statement; it does not allow staff to distribute the statement at public expense.
- May a local governing body, such as city council or a board of county commissioners, pass a resolution in support of or in opposition to Initiative 695 at an open public meeting?
Yes, this may be done if two procedural steps are followed. First, any required notice for the meeting must include the title and number of the ballot proposition. Second, members of the legislative body or the public who hold an opposite view must be given an approximately equal opportunity to express their views at the meeting. If these procedures are followed, the elective governing body of a local government may pass a formal resolution in opposition to or in support of Initiative 695.
- May a local government officer or employee write, on his or her own time, a letter to the editor of the local newspaper expressing a position on Initiative 695?
Yes, and the officer or employee may also identify in the letter his or her position with the local government. However, there should be no implication in the letter that the writer of the letter is expressing an official position on behalf of the local government concerning this initiative.
- May local government employees or officials prepare and distribute to citizens a neutral fact sheet concerning the impacts of Initiative 695 on agency revenues and possible impacts on expenditures?
Yes, and this may include using staff to research the impact of a ballot proposition for the purpose of gathering facts. The Washington Administrative Code in WAC 390-05-271 specifically allows a local government to make an objective and fair presentation of facts relevant to a ballot proposition, when such action is a normal and regular part of the conduct of the local government. This information may be distributed to citizens using the normal methods of communication that each local government uses to communicate with its citizens such as newsletters, utility mailings, and so on
- May a local government officer or employee campaign for or against Initiative 695 on his or her own time?
Yes, this is permissible As long as public facilities are not utilized and the work is done on private time, there is no violation of state law. This is expressly authorized in WAC 390-05- 271(1), which provides that RCW 42.17.130 does not restrict the right of any individual to express his or her personal views concerning, supporting, or opposing a ballot proposition so long as such expression does not involve a use of public facilities.
- May local government staff or officials prepare or distribute campaign materials during working hours in support of or in opposition to Initiative 695?
No. Clearly this would violate the prohibition in RCW 42.17.130 against use of public office to support or oppose ballot propositions. This prohibition applies to elective and appointive officials and employees of counties, cities, towns, school districts, port districts, transit districts, and other special districts.
- What are the powers of initiative and referendum?
An initiative is the means, established by charter or statute, for the enactment of municipal legislation by the direct action of the voters of the city.
Referendum is the right of the people, established by charter or statute, to have an ordinance which has been enacted by the local legislative body submitted to the voters of the city for their approval or rejection.
- Which classes of cities in this state have the powers of initiative and referendum?
All of the first class cities in this state have the powers of initiative and referendum. These powers are set out in the municipal charters.
Cities organized under the commission plan of government have the powers of initiative and referendum.
There is no specific statutory authorization for cities of the second class and towns to have the powers of initiative and referendum. Therefore, second class cities and towns do not have such powers.
Code cities do not automatically have the powers of initiative and referendum but they may be adopted locally. This is authorized by RCW 35A.11.080.
- Do all code cities automatically have the powers of initiative and referendum?
No. The powers are not automatically included within the powers of a code city. They are available but must be adopted by positive action of the city.
- Have most code cities adopted the powers of initiative and referendum?
No. The majority of code cities have never adopted the powers of initiative and referendum. Only a relative few have done so.
- If a town were to reclassify and become a code city, would it automatically have the powers of initiative and referendum?
A town upon reclassification as a code city does not automatically have the powers of initiative and referendum. Those powers can be acquired, either by petition or resolution, by following the procedures set out in RCW 35A.11.080 - .100. Towns, on the other hand, do not have the ability to acquire the powers of initiative and referendum.
- How are the powers of initiative and referendum acquired?
Initiative and referendum procedures in first class cities are controlled by each city's charter.
Cities operating under the commission form of government automatically have the powers of initiative and referendum.
Code cities do not automatically have the powers of initiative and referendum but once such powers have been acquired, the powers must be exercised according to the procedures governing commission cities.
- What are the methods for acquiring the powers of initiative and referendum by a code city?
The code city statutes indicate that the powers of initiative and referendum are to be acquired through use of the process used to reclassify under the optional municipal code. RCW 35A.11.080.
The first method, under RCW 35A.02.020, is by direct petition which requires a petition signed by qualified electors equal in number to not less than 50 percent of the votes cast at the last general municipal election. This petition is then filed with the city clerk who must then determine whether the petition is sufficient. If it is, the petition is filed with the legislative body, which then must pass a resolution declaring that the inhabitants of the city or town have decided to provide for the powers of initiative and referendum. The resolution must be published in a newspaper of general circulation within 10 days of its adoption. Thereafter, there is a 90-day waiting period during which a second "referendum" petition can be filed to force an election on the issue. The second petition is sufficient if it has been signed by qualified electors equal in number to not less than 10 percent of the votes cast at the last general municipal election. If a sufficient second (or referendum) petition is filed, there must be an election on the issue at the next general municipal election, if that election will be held within 180 days after the filing of the referendum, or otherwise at a special election. If there is an election on the issue, the powers would only be adopted if a majority of those voting on the issue favor adoption of the powers. If there is no referendum (or second) petition filed within 90 days of the council resolution, the council must adopt the powers of initiative and referendum by ordinance.
The second method, provided for in RCW 35A.02.030, is by resolution. Under this method, the city council may pass a resolution to provide for the powers of initiative and referendum. This resolution, like the direct petition method resolution, is subject to a referendum if, within 90 days after publication of the resolution, a timely 10 percent petition is filed, as provided for in RCW 35A.02.035.
- What are the limitations on the powers of initiative and referendum in a code city?
There are certain statutory limitations placed upon the referendum power in code cities and city charter limitations upon those powers in first class cities. RCW 35A.11.090 excepts the following:
- Ordinances necessary for the immediate preservation of public peace, health, safety or for the support of city government and its public institutions which contain a statement of urgency and are passed by unanimous vote of the council;
- Ordinances providing for local improvement districts;
- Ordinances providing for or approving collective bargaining;
- Ordinances providing for the compensation of or working conditions of city employees; and
- Ordinances authorizing or repealing the levy of taxes.
In addition to the above statutory exceptions, our courts have carved out various other actions which are not subject to initiative and referendum. The courts have maintained "that direct legislation by the people, acting through the power of initiative or referendum, may not interfere with the exercise of any power delegated, by state law, to the mayor and city council as the governing body of the city." In other words, where the grant of power by the state legislature is to the "corporate authorities" of the city, that is, to the mayor and city council, and not to the city as a "corporate entity", or the electorate, an ordinance which does no more than exercise the power granted by state law is not subject to the referendum provisions.
Another distinction made by our courts is the difference between legislative policy, which falls within the scope of the powers of initiative and referendum; and administrative action which does not. (See, e.g., Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447 (1973).)
- Can the powers of initiative and referendum, once adopted, ever be abandoned by a code city?
Yes, they can be. RCW 35A.11.080 provides that the exercise of the powers "may be restricted or abandoned" through use of the procedures that are followed to abandon the plan of government of a noncharter code city, RCW 35A.06.030 - .060. No code city has ever abandoned the powers once adopted.
- How does one determine whether an issue is legislative or administrative in order to determine if it is subject to initiative and referendum?
Two tests have been suggested for determining whether an issue is legislative or administrative. First, actions relating to subjects of a permanent and general character are usually regarded as "legislative" and thus subject to the powers of initiative and referendum. Those actions taken on subjects of a temporary and special character are usually regarded as "administrative" and are not subject to the powers. Citizens v. Spokane, 99 Wn.2d 339, 662 P.2d 845 (1983). A second test suggests that a matter is legislative if it prescribes a new policy or plan, and administrative if it merely pursues a plan that has already been adopted.
- How do voters of a code city with the powers of initiative and referendum initiate an ordinance?
The process is begun by filing a petition with the city clerk. The petition must be signed by registered voters equal in number to at least 15 percent of the persons who were registered to vote at the last city general election. RCW 35A.11.100.
- Can an initiative petition contain a number of items?
There is a provision in RCW 35A.12.130 which indicates that no ordinance shall contain more than one subject and that must be clearly expressed in its title. This requirement would also seem to apply to an ordinance proposed by initiative.
- By what process is an ordinance passed by the legislative body in a city with the power of referendum referred to the voters for affirmation or rejection?
The procedure is the same as for initiating an ordinance. A petition must be filed with the city clerk within the 30 days following passage of the ordinance. This petition must be signed by registered voters equal to 15 percent of the total number of registered voters in the city as of the date of the last preceding city general election.
- How many days do citizens have to circulate a referendum petition on an ordinance enacted by the city?
RCW 35A.11.090 indicates that the electors have 30 days from the time of final passage of an ordinance to circulate a referendum petition.
- What percentage of signatures must be obtained on a referendum petition in order for it to be valid in a noncharter code city?
RCW 35A.11.100 indicates that the number of registered voters needed to sign a petition for an initiative or a referendum in a noncharter code city shall be 15 percent of the total number of names of persons listed as registered voters within the city on the day of the last preceding general election.
- Is a motion or resolution subject to initiative and referendum?
Motions and resolutions are not subject to initiative and referendum powers. The powers of initiative and referendum applies only to certain types of ordinances.
- Are amendments to the zoning code subject to initiative and referendum?
The courts in this state have indicated previously that amendments to the zoning code are not a proper subject for an initiative. See the cases of Lince v. Bremerton, 25 Wn. App. 309 (1980) and Leonard v. Bothell, 87 Wn.2d 847 (1976).
Part of the rationale for these decisions is the doctrine that the powers of initiative and referendum do not apply to actions which have been delegated by the state legislature to the governing body (city council) of a city or town as opposed to the city or town as a corporate entity. RCW 35A.63.100 appears to indicate that the power to enact land use zones has been granted to the city councils in noncharter code cities. Since this is a power which has been specifically granted to the city council by the state legislature, it is not an appropriate subject for the initiative process.
- Is a budget ordinance subject to a referendum?
RCW 35A.11.090 outlines the exceptions to the initiative and referendum powers of a code city. Among those exceptions are ordinances appropriating money and ordinances providing for the compensation of city employees. The budget ordinance would encompass both of these exceptions and consequently is not subject to a referendum.
- Would powers of initiative and referendum apply to an annexation proceeding in a code city?
No. The annexation statutes applicable to code cities do not provide for a system of initiative and referendum. Additionally, the initiative and referendum procedures do not contemplate action on annexations. In any case, the Supreme Court in State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 409 P.2d 458 (1965) held that there is no power of referendum as to annexations. The court concluded that the power of referendum as to annexation would have to be given to a city by the state; the city could not assume powers not delegated to it. The court concluded that the power as to annexations is not given to the electorate. Given the court's strong opinion in the Bowen case, it is also apparent that the power of initiative would not apply to annexations.
- How many cities have initiative and referendum powers?
Of the 277 municipalities in Washington, only first class cities and optional municipal code cites have available the powers of initiative and referendum. All ten first class cities have these powers.
The last comprehensive conducted by MRSC on this issue was in 1994 and that time there were 28 code cities that had adopted the powers of initiative and referendum. There are currently 170 code cites. The 77 towns and 18 second class municipalities do not have the authority to adopt powers of initiative and referendum.
Thus there are approximately 38 total cities in Washington that have the powers of initiative and referendum.
- May the council in a code city refer an issue to the voters for a binding decision if the city does not have the powers of initiative and referendum?
No. The council can refer an issue to the voters for an advisory ballot, but the council cannot delegate their responsibility by simply referring an issue to the voters.
- Which types of cities have referendum authority?
Initiative and/or referendum authority in Washington is not automatic, but must be granted by the legislature. All of the first class cities in Washington have initiative and/or referendum authority included in their charters. Code cities only have such authority if they have taken the prescribed action to adopt the powers of initiative and/or referendum. Second class cities and towns explicitly do not have such authority.
- How are the powers of initiative and referendum exercised?
The powers of initiative and referendum are means by which citizens can impact legislation directly. Initiative is the power of the public to initiate ordinances by petition. Referendum is the means by which the public can have enacted ordinances referred to them for review. These powers of the public are not universally available. In fact, the powers of initiative and referendum are only available in first class cities (RCW 35.22.200 and the charters), code cities (RCW 35A.11.080 - .100), and cities organized under the commission form of government (RCW 35.17.240 -.360). Code cities do not automatically have the powers of initiative and referendum, but may adopt them, either by citizen resolution or by resolution of a majority of the city council.
Initiative and referendum procedures in first class cities are controlled by each city's charter. Voters of a commission city or a code city which has acquired the powers of initiative and referendum may initiate ordinances or have certain ordinances which have been passed by the legislative body referred to them for affirmation or rejection at an election. In either instance, the process is begun by petition. In a commission city, a petition is filed, signed by registered voters equal in number to 25 percent of the votes cast for mayoral candidates at the last preceding city election. In a code city, the petition requires signatures of registered voters equal to 15 percent of the number of registered voters in the city as of the date of the last preceding city general election.
Certain ordinances are not subject to referendum. The following ordinances are excepted from the process in both commission and code cities:
- Ordinances initiated by petition;
- Ordinances necessary for the immediate preservation of public peace, health, and safety, or for the support of city government and its existing public institutions, which contain a statement of urgency and are passed by a unanimous vote of the commission or council; and
- Ordinances providing for local improvement districts.
In addition, the following types of ordinances are exempt from referendum in a code city:
- Ordinances appropriating money;
- Ordinances providing for or approving collective bargaining;
- Ordinances providing for the compensation of or working conditions of city employees; and
- Ordinances authorizing or repealing the levy of taxes.
If a valid petition is filed seeking a referendum, the ordinance does not go into effect until it has received a majority of the votes cast at the election. If a valid initiative petition is filed (accompanied by a proposed ordinance), the commission or council shall either pass the ordinance within 20 days of the clerk 's certification of the petition, or else submit the ordinance to the voters at a general or special election called for that purpose. (RCW 35.17.260).
- To what extent, if any, may a city or county, oppose or promote an initiative to the legislature?
A city's or county's activities with respect to an initiative to the legislature are subject in RCW 42.17.190(4) to limitations identical to those provided in RCW 42.17.130 with respect to ballot propositions and political campaigns. Specifically, the former statute provides as follows:
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.
However, because an initiative to the legislation involves a process that is different than a campaign for or against a ballot proposition, at least when the initiative is in the legislature, this prohibition needs to be analyzed separately with respect to an initiative to the legislature. Clearly, before an initiative to the legislature garners sufficient signatures and is certified and presented to the legislature, there is really no difference between the application of the prohibition in RCW 42.17.130 and RCW 42.17.190(4).
Fortunately, the Public Disclosure Commission (PDC) has addressed the issue of what a public agency may do with respect to an initiative to the legislature when it is going through the legislative process (e.g., may it lobby in the legislature for or against the initiative?). In Declaratory Ruling No. 14, the PDC concludes that that public agencies may engage in lobbying activities authorized by RCW 42.17.190(2) and (3) with respect to initiatives to the legislature. RCW 42.17.190(2) and (3) set out the basic authority and limitations on lobbying of the legislature by public agencies. Since public agencies have specific statutory authority to lobby, as long as the lobbying activities are limited to those allowed by RCW 42.17.190(2) and (3), lobbying in support or opposition to an initiative to the legislature is considered "part of the normal and regular conduct" of a public agency. Thus, such activities fall under the exemption to the prohibition on the use of public office or facilities in RCW 42.17.190(4)(c).
Although there is no other authority on this issue, the courts will defer to the PDC's interpretation, as it is the agency charged with enforcement of chapter 42.17 RCW.
- Must the city satisfy the publication requirement in RCW 35.17.310 regarding the notice of an election on an initiative even if no daily or weekly newspapers are published within the city?
In our opinion, the city still must comply with this publication requirement and should publish the ordinance or proposition in the official newspaper of the city even if it is not published within the city.
RCW 35.17.310 provides that:
The city clerk shall cause any ordinance or proposition required to be submitted to the voters at an election to be published once in each of the daily newspapers in the city not less than five nor more than twenty days before the election, or if no daily newspaper is published in the city, publication shall be made in each of the weekly newspapers published therein.
The intent of this statute is that the citizens should be able to read the language in an ordinance or proposition which will be voted upon at an election. As you are aware, every city in the state must designate an official newspaper for publication of ordinances and other required legal notices. The official newspaper does not have to be published within the city but is the official vehicle for complying with publication requirements.
In order to comply with the intent of RCW 35.17.310, the proposed ordinance should be published in the official newspaper. While this does not literally comply with the language in RCW 35.17.310 because the official newspaper is not published within the city, it does substantially satisfy the intent of the statutory requirement.
- What is the status of an initiative petition that has been filed with the city even though the city has not adopted the powers of initiative and referendum?
In our opinion, this would not be a valid initiative petition and it may not be submitted to the voters in its present format at the November election.
Citizens in code cities do not automatically have the powers of initiative and referendum on local issues. While these powers are available to citizens on statewide issues under the state constitution, there is no provision in the constitution that grants voters a similar right to initiative and referendum powers on local matters.
In view of the fact that the state constitution does not provide for local powers of initiative and referendum, the state legislature, when it adopted the Optional Municipal Code, Title 35A RCW, provided a mechanism by which the powers of initiative and referendum can be adopted by each city individually. This process is set out in RCW 35A.11.080 – 35A.11.100. Most code cities in this state have not adopted the powers of initiative and referendum. Of the state's 188 code cities, only 50 have adopted the powers of initiative and referendum. Code cities that have not followed the process to adopt these powers may not utilize them. In view of this, the petition submitted has no legal effect and may not be processed as a formal initiative.
There are at least three options available to the city council in view of the fact that this petition has been submitted. The first is for the council to take no formal action on the petition because it is not a valid initiative and no response is required under state or local regulations. Second, the city council could adopt the ordinance on this subject as requested in the petition in the same manner that they adopt any other city ordinance. This is always an option on a legislative matter. Third, the council does have the authority to submit an issue to the voters at an election on the basis of what we would call an “advisory ballot.” It is important to recognize the difference between an advisory ballot and a formal initiative to enact a specific ordinance. The advisory ballot is just what it implies – it is a nonbinding vote to obtain an understanding of the sentiment of the public on an issue, but it has no legal significance in regard to any required council action. The council can follow the majority vote of the citizens and take the action requested, or the council can decide not to act, even if a majority of the voters favor the measure submitted on the advisory ballot. There is not really an established process for an advisory ballot, but the city council would need to pass and submit a resolution to the county auditor asking that a city issue be placed on the ballot as an advisory measure. No petition or citizen signatures are required for an advisory ballot.