Can a Washington state agency lobby the legislature for budget items the governor's office didn't include?
Plain-English summary
The Public Works Board's role under RCW 43.155 is to evaluate construction loan proposals from local governments, prioritize them, and submit funding recommendations to the legislature. Sometimes, the projects on the Board's list did not appear on the governor's budget, or the legislature's final budget did not match the Board's priorities. Stan Finkelstein, then Board Chair, asked whether the Board could lobby the legislature for its own positions and budget requests when those diverged from the governor's.
The AG concluded the Board could do so. Some communications by the Board to the legislature do not even count as lobbying under RCW 42.17A.635(5)(d): requests for appropriations, recommendations or reports made in response to specific legislative requests, official annual or biennial reports, communications between or within state agencies, and a list of further-defined "any other lobbying" carveouts including phone conversations, written correspondence, in-person lobbying capped at four days per quarter, and the preparation of policy positions. The Board's submission of its priority list directly to the legislature, statutorily required by RCW 43.155.070(5)(b) and (7), is squarely within the exclusions.
Where the Board's communications cross into actual "lobbying" (attempting to influence the passage or defeat of legislation), RCW 42.17A.635(2) prohibits expenditure of public funds for lobbying except as authorized by law. The next subsection (RCW 42.17A.635(3)) authorizes agency lobbying limited to (a) information or communication on official agency business, or (b) advocacy of the official position or interests of the agency. Together those provisions give the Board the general authority to lobby for its official positions and appropriation requests. RCW 43.155.040(5) backs this up with a power to "do all acts and things necessary or convenient" to carry out the Board's express or implied powers, which the AG read as covering advocacy for the Board's projects.
The AG flagged a separate point about individuals. Board members serve at the governor's pleasure under RCW 43.06.070 and Const. art. V, § 3. If the governor determined that a member's lobbying activity constituted misconduct or malfeasance in office, the governor could remove the member. The decision is final (State ex rel. Howlett v. Cheetham, 19 Wash. 330 (1898)) and the member is not entitled to a statement of facts justifying it (State ex rel. Davis v. Johns, 139 Wash. 525 (1926)). So while the legal authority to lobby exists, individual board members face a political-accountability check on its use.
Currency note
This opinion was issued in 2016. 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: What counts as "lobbying" for state agency rules?
A: Under RCW 42.17A.005(30), lobbying is "attempting to influence the passage or defeat of any legislation." But RCW 42.17A.635(5)(d) carves out a long list of communications that don't count, including agency budget requests submitted through the regular process, reports made in response to legislative requests, and statutorily required annual or biennial reports.
Q: How is a state board allowed to lobby at all? Don't agencies follow the governor?
A: The default rule is the opposite (RCW 42.17A.635(2)): public funds may not be spent on lobbying. RCW 42.17A.635(3) creates a limited exception that lets agencies provide information on official business and advocate for the agency's official positions. The Board's lobbying for its own projects fits the exception.
Q: Does the Board have to clear its position with the governor first?
A: The opinion did not impose a clearance requirement. The Board has direct authority to advocate for its official positions to the legislature. The political consequence is that board members can be removed by the governor for misconduct or malfeasance, which gives the governor an indirect lever.
Q: What's the four-day-per-quarter rule?
A: RCW 42.17A.635(5)(d)(v)(B) excludes from "lobbying" up to four days (or parts of days) of in-person lobbying per three-month period by an agency officer or employee, plus elected officials lobbying on behalf of the agency. Spending of nonpublic funds in connection with that lobbying for the benefit of any one or more legislators is capped at $15 per quarter.
Q: Can the Board pay outside lobbyists?
A: The opinion didn't directly address that, but the prohibition in RCW 42.17A.635(2) on expending public funds for lobbying except as authorized would tightly limit using state appropriations to retain outside lobbyists. The exceptions in subsections (3) and (5)(d) apply to agency officers and employees, not external contractors.
Q: What about individual board members lobbying as private citizens?
A: The opinion expressly limited its analysis to the Board itself, not individual members in their private capacities. Individuals retain their First Amendment right to engage with the legislature on their own time and at their own expense.
Background and statutory framework
The Public Works Board, established under RCW 43.155.030, provides financial and technical assistance to local governments for public works projects. Construction loan proposals run through a statutory pipeline in RCW 43.155.070: evaluation, prioritization, submission to the legislature for approval, with the legislature able to remove projects but not reorder them. Without legislative approval, the Board cannot finance a construction project (RCW 43.155.070(8)).
The governor's budget process, under RCW 43.88.060, builds the executive's recommendation from agency requests. Agency representatives may be called to testify on the governor's proposed budget, but the statute does not prohibit them from publicly disagreeing with that proposal. Disagreement plays out under the lobbying rules of RCW 42.17A.635, where an agency may spend public funds on lobbying only for the limited purposes authorized: communicating on agency business, advocating the agency's official position, or invoking one of the long list of statutory exclusions.
The lobbying definition exclusions in RCW 42.17A.635(5)(d) deserve careful reading. They include communications between agencies, requests submitted through OFM, in-person lobbying capped at four days per quarter, telephone conversations, written correspondence, and the preparation of policy positions.
The governor's removal power over board members is a separate constitutional and statutory matter (Const. art. V, § 3; RCW 43.06.070; RCW 43.155.030(5)).
Citations and references
Statutes and constitutional provisions:
- RCW 42.17A.635 – state agency lobbying authority and exclusions
- RCW 43.155.040(5) – Board powers
- RCW 43.155.070 – construction loan process
- RCW 43.06.070 – governor's removal power
- Const. art. V, § 3 – governor's authority
Cases:
- State ex rel. Howlett v. Cheetham, 19 Wash. 330, 53 P. 349 (1898), Washington Supreme Court, governor's removal not appealable
- State ex rel. Davis v. Johns, 139 Wash. 525, 248 P. 423 (1926), Washington Supreme Court, no entitlement to statement of facts on removal
Source
Original opinion text
Attorney General Bob Ferguson
LOBBYING—STATE AGENCIES—PUBLIC WORKS AND IMPROVEMENTS—Authority Of Public Works Board To Lobby The Legislature
The Public Works Board has the authority to provide the legislature with information relating to the Board’s business and may advocate for the Board’s official positions and appropriation requests.
May 16, 2016
Stan Finkelstein
Chair, Public Works Board
PO Box 42525
Olympia, WA 98504-2525
Cite As:
AGO 2016 No. 5
Dear Mr. Finkelstein:
By letter previously acknowledged, you have requested our opinion on the following question:
Is the Public Works Board authorized to lobby in support of policy positions, budget positions, and appropriation requests that may be inconsistent with, or directly contrary to, positions advanced by the governor and other cabinet agencies?
BRIEF ANSWER
Yes. The Public Works Board has the authority to provide the legislature with information relating to the Board’s business and may advocate for the Board’s official positions and appropriation requests. This may take the form of lobbying for policy positions, budget positions, and appropriation requests that may be inconsistent with or directly contrary to the positions of others.
FACTUAL BACKGROUND
The Board was created to provide financial and technical assistance to local governments for public works projects. RCW 43.155.030. The Board has the power to accept state and federal loans or grants (RCW 43.155.040), and then assist local governments in financing public works projects (RCW 43.155.060(1)).
Your question pertains to the Board’s responsibilities regarding construction loans. The Board evaluates construction loan proposals, determines whether they meet the statutory
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qualifications, and then either prioritizes or ranks the projects. RCW 43.155.070(1)-(5). The Board then submits its funding recommendations to the legislature for approval. RCW 43.155.070(5)(b), (7); WAC 399-30-050(1). The legislature may remove projects from the Board’s recommended list, but it cannot change the priority order of projects. RCW 43.155.070(8). The Board cannot finance a construction project without legislative approval.[1] RCW 43.155.070(8).
The governor also offers budget proposals to the legislature, based in significant part on the governor’s review of budgetary requests from agencies. RCW 43.88.060. The governor may call upon agency representatives to testify to the legislature regarding the governor’s proposed budget, but the statute does not address whether an agency representative may publicly disagree with the governor’s proposed budget. See RCW 43.88.060.
In your letter, you indicate that appropriations for public works projects included on the Board’s recommended list have not always been included in the governor’s proposed budgets or in the final budgets adopted by the legislature. You ask whether the Board has the ability to lobby the legislature for appropriations that may be contrary to or inconsistent with the governor’s proposed budget.
ANALYSIS
To answer your question, we first review agency lobbying authority in general. We then evaluate whether the legislature has specifically addressed the Board’s authority. Notably, this opinion does not analyze whether it would be expedient to lobby contrary to the governor’s position from a political or policy perspective. It also addresses only the authority of the Board itself and not that of individual Board members in their private capacities.
State boards and agencies generally have limited authority to lobby the legislature.[2] “Lobby” and “lobbying,” as applied to your question, mean “attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington[.]” RCW 42.17A.005(30). Some communications by the Board to the legislature may not constitute lobbying at all. This is because RCW 42.17A.635(5)(d) specifies that “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;
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(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. 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 may not exceed fifteen dollars for any three-month period. The exemption under this subsection (5)(d)(v)(B) is in addition to the exemption provided in (d)(v)(A) of this subsection;
(C) Preparation or adoption of policy positions.
RCW 42.17A.635(5)(d); see also WAC 390-20-120 (Public Disclosure Commission form setting out its view of what lobbying does not include). The Board could engage in any of the forms of communication listed above, including submitting its priority list directly to the legislature as required by statute, without such actions falling within the definition of “lobbying.”
If the Board were to engage in some other form of communication that would fall within the definition of “attempting to influence the passage or defeat of any legislation” (RCW 42.17A.005(30)), it would need to take into consideration the limits placed on state agencies’ ability to lobby. State law generally prohibits expending public funds for lobbying, except as authorized by law. RCW 42.17A.635(2). The next statutory paragraph authorizes agency lobbying and the expenditure of public funds for such lobbying only if the lobbying is “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.” RCW 42.17A.635(3). Additionally, agency officers and employees may communicate
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“with a member of the legislature on the request of that member” and communicate “to the legislature, through the proper official channels, requests for legislative action or appropriations that are deemed necessary for the efficient conduct of the public business or actually made in the proper performance of their official duties.” RCW 42.17A.635(2). These statutes, taken together, provide the Board, acting through its members, with the general authority to lobby the legislature in support of official Board positions and appropriation requests.
Nothing in RCW 43.155 alters the scope of the Board’s general lobbying authority granted to it by RCW 42.17A.635. While lobbying is not one of the Board’s statutory duties, the legislature granted the Board the power to “[d]o all acts and things necessary or convenient to carry out the powers expressly granted or implied” under RCW 43.155. RCW 43.155.040(5). This likely includes advocating for funding of the projects it recommends. Additionally, the legislature specified that the Board’s priority list and funding recommendations are submitted directly to the legislature, not the governor, for approval. RCW 43.155.070(5)(b), (7). The Board is not precluded from submitting its proposals and advocating for their inclusion in the final budget simply because such proposals were not included in the governor’s proposed budget.
As a final note, although we conclude the Board has the legal authority to lobby for a position that differs from the governor’s position, individual Board members are still subject to a governor’s executive authority. If the governor determined that a board member’s actions constituted misconduct or malfeasance in office, the governor could remove the board member. RCW 43.06.070; RCW 43.155.030(5); see also Const. art. V, § 3. The member cannot appeal the governor’s decision (State ex rel. Howlett v. Cheetham, 19 Wash. 330, 332-33, 53 P. 349 (1898)) and is not entitled to a statement of the facts justifying the governor’s determination (State ex rel. Davis v. Johns, 139 Wash. 525, 536, 248 P. 423 (1926)).
We trust that the foregoing will be useful to you.
ROBERT W. FERGUSON
Attorney General
ANNIKA SCHAROSCH
Assistant Attorney General
[1] The Board has broader authority over other types of loans, such as pre-construction loans. RCW 43.155.065, .068, .070(9)-(10).
[2] A state board is included in the definition of “agency” for purposes of the State’s lobbying and campaign finance disclosure laws. RCW 42.17A.005(2), .635.