May the Governor use state resources to draft a statement supporting or opposing the passage of ballot proposition that will be published in the statewide voters’ pamphlet?

The answer is yes under specific circumstances. When the Governor is officially appointed to a statewide voters’ pamphlet committee, using state resources to draft arguments that oppose or support a pending ballot proposition is authorized under RCW 42.52.180(2)(c).

In May 2002, the Office of Governor informally asked the Board staff if it would be appropriate for the Governor to use state resources to draft a statement supporting passage of Referendum 51 for inclusion in the Washington State voters’ pamphlet. In June 2002, the Board staff informally responded noting that if asked to do so by the Secretary of State, it would be appropriate for the Governor to use state resources to draft arguments for inclusion in the voters’ pamphlet that support or oppose passage of a statewide referendum.

Soon after providing this informal analysis, the Governor’s Office told Board staff that a private organization would draft arguments supporting passage of Referendum 51 and that no state resources would be used for that work. Nevertheless, the Governor’s Office requested a formal Board opinion regarding this matter so that the issue will be resolved for future statewide voters’ pamphlets.

Under RCW 29.80.210, the Secretary of State distributes a statewide voters' pamphlet, which contains the text of any statewide ballot propositions and arguments both for and against passage of those ballot propositions. The arguments printed in the voters’ pamphlet are drafted by committees, which are selected by the Secretary of State and other elected officials. RCW 29.80.240 provides that

Sometime after Referendum 51 was approved by the State Legislature the Secretary of State, the presiding officer of the senate, and the presiding officer of the house of representatives appointed the Governor to be an initial member of the committee supporting passage of Referendum 51. The question before the Board is whether appointment to a voters’ pamphlet committee under RCW 29.80.240 authorizes the Governor to use state facilities to draft an argument supporting or opposing a statewide ballot proposition.

The Ethics in Public Service Act generally prohibits the use of state facilities to support or oppose a statewide ballot proposition. RCW 42.52.180(1) provides that:

The statute, however, contains several specific exemptions that apply to statewide elected officers such as the Governor. RCW 42.52.180(2) provides that:

1. …
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 that are part of the normal and regular conduct of the office or agency; and
4. De minimis use of public facilities by statewide 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. (Emphasis added)

Prior to 1995, the political use restrictions provided in RCW 42.52.180 were included in RCW 42.17.130, which is enforced by the Public Disclosure Commission (PDC). RCW 42.17.130 continues to apply to local governments. To maintain consistency when applying these statues, the Board may refer to relevant PDC opinions, declaratory rulings, court cases or Washington State Attorney General opinions when considering issues of first impression. In EEB advisory opinions 99-01 and 02-04, the Board adopted a PDC rule regarding the normal and regular conduct of a state agency. In WAC 390-05-273, the PDC defines normal and regular conduct of an agency as:

As was the case in Referendum 51, the Governor has on several occasions been appointed to a committee that will draft an argument supporting passage of a statewide ballot proposition for inclusion in the statewide voters’ pamphlet. When appointed under RCW 29.80.240 such activities would be considered part of the normal and regular conduct of Governor’s Office. Therefore, when the Governor has been appointed, in accordance with RCW 29.80.240, to a statewide voters’ pamphlet committee, the use of state resources to draft arguments for the committee is a normal and regular part of the Governor’s official duties and authorized under RCW 42.52.180(2)(c).

The Board’s advisory opinion is based on the general facts as stated above. The Board does not investigate the facts. Please be aware that modification of the facts, or knowledge of more specific facts or circumstances, might cause the Board to reach a different conclusion. In addition, Board advisory opinions are narrowly drawn to interpret the Ethics in Public Service Act. They do not address whether the proposed action is prudent, good public policy or effective management practice.

Approved by the Executive Ethics Board, this 10th day of January 2003.

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Brian R. Malarky

Executive Director