Telford: Casting Sunlight on Shadow Governments- Limits to the Delegation of Government Power to Associations of Officials and Agencies

• Publication year: 2000
• Citation: Vol. 24 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 1SUMMER 2000

NOTES

Telford: Casting Sunlight on Shadow Governments- Limits to the Delegation of Government Power to Associations of Officials and Agencies

Leslie L. Marshall(fn*)

A government by secrecy benefits no one. It injures the people it seeks to serve, it injures its own integrity and operation. It breeds mistrust, dampens the fervor of its citizens, and mocks their loyalty.(fn1)

I. Introduction

The Telford(fn2) case, little known to the public, may turn out to be one of the most important cases in Washington State, protecting the fundamental right of the public to know about, and control the actions of, government officials and agencies.

Telford sheds light on, and begins to correct, the growing tendency of government agencies and officials to delegate power and transfer public money to associations of officials and agencies. These associations, acting as agents for government officials and other agencies, take actions officials themselves are not allowed to-in effect, becoming super agencies. These tax-funded associations, claiming to be free of public disclosure rules, antilobbying laws, open meeting law requirements, and one-person-one-vote constitutional restraints, have a significant, yet little noticed, potential to undermine basic democratic principles.

Increasingly, state government officials and agencies are delegating power to associations that set policies, pass resolutions, lobby, take legal positions in court, and use public funds in political campaigns and on ballot measures. The executive directors and others who run these associations are not elected by the public and are mostly unknown to the public. In many respects they now form an unaccountable, powerful, and mostly invisible new branch of government: shadow governments.

Representative democracy depends on the ability of the people to hold their elected officials accountable for governmental actions, but when officials give public funds and delegate state powers to unelected associations, it becomes extraordinarily difficult for voters to determine whom to hold accountable.

In Washington State, the Public Disclosure Act(fn3) and the Open Public Meetings Act,(fn4) which are sometimes collectively referred to as the Sunshine Laws,(fn5) open government agencies to full public view and prohibit contributions to ballot measures and political campaigns by government agencies. The use of associations by state government officials and agencies for political purposes inevitably collides with the principles underlying the Sunshine Laws and similar limitations designed to protect representative democracy.(fn6)

In order to enforce the laws meant to protect public trust in government, the Telford court began to cast sunlight on these shadow governments. Telford, however, should be the start, not the end, of a principled review of how to bring associations of public officials and agencies "into the sunshine of public accountability."(fn7)

This Note engages in three areas of analysis. Part II reviews the case of Telford v. Thurston County Board of Commissioners(fn8) which, for the first time in Washington State, confronted the issue of whether associations of state officials or agencies are the equivalent of agencies for purposes of the state Public Disclosure Act.

Part III examines the broader implications of Telford: (1) whether the principles in Telford should be applied to other state safeguards and restrictions on government agencies, such as the state Open Public Meetings Act, (2) whether the constitutional requirement of one-person-one-vote should be applied to associations of officials that pass resolutions, lobby, and spend tax funds on political causes,(fn9) and (3) whether associations of officials and agencies are the equivalent of agencies, acting as "shadow governments,"(fn10) doing indirectly what public agencies cannot do directly, and thereby avoiding public accountability.

Part IV discusses whether the legislature has allowed the delegation of too much power and whether it should (1) restrict associations of government officials or agencies to narrowly defined, nondiscretion-ary information activities, and (2) open these associations to more effective public disclosure requirements than those provided in existing law, such as a requirement that all association activity be placed on publicly available Internet sites-an Internet Sunshine Law.

II. The Telford Case

A. The Allegations

On November 21, 1996, Paul Telford, a retired engineer and private citizen, sued the Thurston County Board of Commissioners, the Washington State Association of Counties (WSAC), and the Washington Association of County Officials (WACO), alleging that they illegally used taxpayer money on two separate ballot measures, illegally contributed to political campaigns, and illegally refused to disclose information about their activities.(fn11) Specifically, Mr. Telford alleged that WACO spent $17,000 to oppose Initiative 1-559, a property-tax reduction initiative,(fn12) and that WSAC spent $1,500 to support a referendum to increase taxes on alcohol, tobacco, and soda syrup.(fn13) He alleged that the staffs of WSAC and WACO worked on the ballot measures using association facilities.(fn14) He further alleged that WSAC donated $1,000 to the Senate Democratic Caucus, the House Democratic Caucus, the Senate Republican Caucus, and the House Republican Organizing committee.(fn15)

Mr. Telford requested a declaratory judgment and injunctive relief, asserting that the two associations were "agents of the Thurston County Commissioners and . . . therefore subject to the prohibitions on using public funds to promote or oppose a ballot issue or other political activities pursuant to [the Public Disclosure Act]."(fn16) He maintained that the court should order WACO and WSAC to comply with (1) prohibitions on the use of funds or facilities in campaigns, (2) the Open Records Act, (3) the Open Public Meetings Act, and (4) state audits.(fn17)

Mr. Telford summarized his allegations as follows: County officials have authorized, through WSAC and WACO, the use of public funds (and publicly paid-for facilities and staff) in campaigns. Defendants have exploited a loophole to eviscerate the intent of the state's Sunshine Laws. County Officials have used the Associations as alter egos to do indirectly what the officials cannot do directly.(fn18)

B. The State Public Disclosure Act

The Public Disclosure Act was enacted in 1972 as Initiative 276.(fn19) This Washington State citizen's initiative was designed to keep citizens informed so they could maintain control over government and hold it accountable.(fn20) "It prohibits the contribution of public funds to political campaigns and lobbying efforts, mandates reports of public officials' financial affairs, and requires disclosure of public records.(fn21)

Washington's Public Disclosure Act, known as the PDA, provides that the people, not government agencies, will decide what the public has the right to know.The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.(fn22)

Despite the inconvenience or embarrassment that disclosing information may create for a public agency, it is the policy behind the statute that open examination and disclosure of public records is in the interest of the public.(fn23) Under the PDA's strong policy in favor of disclosure, agencies must respond quickly to citizens, and the courts must fine agencies that have wrongfully denied information to citizens.(fn24) Agencies have a duty to provide "the fullest assistance to inquirers and the most timely possible action on requests for information."(fn25) Also, under the PDA, public agencies may not use public funds for campaigns,(fn26) use public facilities for political campaigns,(fn27) or engage in unregulated lobbying.(fn28)

In Washington State, an agency is generally defined as any state or local agency."State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local agency.(fn29)

Most state laws define "agency" in broad terms, such as any state or other governmental entity performing a governmental function for the state or any one or more municipalities thereof.(fn30) Further, the Washington Administrative Code defines "agent" as used in RCW chapter 42.17 (the PDA) as: a person, whether the authority or consent is direct or indirect, express or implied, oral or written who: (1) Is authorized by another to act on his or her behalf; or (2) Represents and acts for another with the authority or consent of the person represented; or (3) Acts for or in place of another by authority from him or her.(fn31)

These provisions of the PDA are liberally construed to cast as broad a net as possible in favor of disclosure.(fn32)

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