Could a Washington city pay to put an advisory vote about becoming a first-class city on its primary ballot?

Plain-English summary

The Washington AG considered whether a third-class city could spend municipal money to ask voters at a primary election if they favored moving to first-class charter government. It found no statute governing that preliminary advisory question and said the Secretary of State could address the matter through administrative election rules. It did not directly decide that the city could proceed on its own authority.

The AG emphasized that even if the question were submitted, its result would be advisory. It would not substitute for the formal statutory steps for changing city classification.

The opinion states: “the matter is not governed by any statutory provision, consequently it is a proper subject to be governed by administrative rule issued by the secretary of state as chief elections officer.” (source).

Currency note

This opinion was issued in 1954. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG identify a statute authorizing the proposed ballot question?
A: No. It said no statute expressly governed this preliminary advisory vote in the described setting.

Q: Who did the AG say could set election rules for the question?
A: It identified the Secretary of State's rulemaking authority under RCW 29.04.080.

Q: Would a favorable advisory vote itself turn the city into a first-class city?
A: No. The AG said the vote was outside the regular statutory advancement process and would be advisory only.

Background and statutory framework

The Secretary of State asked about a third-class commission city considering a first-class charter. The city wanted an inexpensive early indication of voter preference before the full charter election process. The AG distinguished an expressly authorized classification vote under RCW 35.06.030 from this preliminary question, which it considered suitable for rules under RCW 29.04.080.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/elections-municipal-advisory-vote-advancement-classification-city-city-secretary-state

Original opinion text

Attorney General Don Eastvold

ELECTIONS ‑- MUNICIPAL ADVISORY VOTE ‑- ADVANCEMENT OF CLASSIFICATION OF CITY --CITY ‑- SECRETARY OF STATE

Whether the commissioners of a city of the third class operating under a commission form of government have authority to expend municipal funds in submitting to the voters the question of advancement to the rank of first class cities under charter government for an advisory vote, is a proper subject to be covered by administrative rule to be issued by the secretary of state under RCW 29.04.080.

January 8, 1954

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington Cite as: AGO 53-55 No. 190

Dear Sir:

This is in answer to your letter of December 15, 1953, posing certain questions arising out of the following situation:

A city of the third class operating under a commission form of government is considering advancing to the rank of first class under a charter government. The commissioners wish to place an advisory question on the city primary election ballot to determine the wishes of the electors concerning the advancement of classification. The cost of adding such advisory question to the ballot will be negligible. The reason for the submission of the advisory question is to avoid the excessive cost of election of freeholders, publication of the full text of the [[Orig. Op. Page 2]] proposed charter for 30 consecutive days and final election in the event such advancement is not favored by the majority of the electors.

Your question is: Do the city commissioners have authority to expend municipal funds in submitting such an advisory question to the voters at the approaching city primary?

Our answer is that the matter is not governed by any statutory provision, consequently it is a proper subject to be governed by administrative rule issued by the secretary of state as chief elections officer.

ANALYSIS

RCW 35.06.030 expressly authorizes the submission of such question to the electors in a situation where a census has shown that a city belongs to the higher class and where a prescribed petition has been filed. However, chapter 35.22 RCW, relating to the organization of cities of the first class under a charter form of government, appears to be in partial conflict with that section in that no provision is made in the latter section for submitting that question alone to the electors. Consequently, there seems to be no express statutory authority for the submission of such a question to the voters.

The general rule is that city commissioners have only those powers which are expressly vested in them by statute or those necessarily implied by the powers granted. However, in the field of elections, the secretary of state is required by RCW 29.04.080 to make rules and regulations not inconsistent with state, city and town election laws to facilitate the execution of the provisions of the election laws in an orderly manner. In this situation, the question of the need for such a vote or the propriety thereof does not appear to be governed by statute. We believe that it is a proper subject to be governed by administrative rule to be issued by the secretary of state under the provisions of RCW 29.04.080.

It should be noted, however, that since the submission of this preliminary question is not a part of the regular statutory procedure for advancement, the resulting answer of the vote of the people would be advisory only.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General