By Frank Chmelik of Chmelik Sitkin & Davis P.S. – WPPA Counsel – May 2019
It is an odd numbered year which means two things – a pink salmon run will occur this summer and this is the “election season” for ports and many other local governments. There were a lot of questions at the Spring Meeting. I think, because everyone wants to be careful to do the right thing, now is an appropriate time to revisit the issues surrounding elections.
Washington law starts with the basic prohibition found at RCW 42.17A.555. The statute prohibits the use of any public resources “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.” This goes beyond port district elections and applies to all elections and all ballot propositions. This broad prohibition applies to campaigning on port property (except maybe a park or public space which will be discussed below), using port issued cell phones, computers, stationary or other resources or allowing port staff to participate in campaigning on port-time.
Having set forth the general rule, here are some practical questions that have been answered over the years.
- What about free speech rights? Everyone, even port commissioners, have free speech rights. RCW 42.17A.555 does not restrict the right of any individual to express his or her own personal views concerning, supporting, or opposing any candidate or ballot proposition (see, WAC 390-05-271).
- Can an individual port commissioner support or oppose a particular candidate, even a port commissioner candidate? Yes, port commissioners can legally endorse or oppose candidates (even those running for port commission) in their port district or another port district. Notice, I used the word “legally” because I will leave the politics up to the reader. And, of course, it cannot be done on port property or utilizing port equipment or facilities.
- Can an individual port commissioner support or oppose a ballot proposition? Yes, but RCW 42.17A.555(2) requires that this be done in an “open press conference or in response to a specific inquiry.” And, of course, it cannot be done on port property or utilizing port equipment or facilities.
- Can the port commission support or oppose a ballot proposition? Yes, the port commission can act in an open public meeting to support or oppose a ballot proposition so long as the meeting notice (special meeting notice or published agenda) includes the title and number of the ballot proposition and all commissioners and members of the public are afforded an approximately equal opportunity for the expression of opposing views (RCW 42.17A.555(1)). Then the port commission can vote on a motion or resolution. Obviously, this is an exception to the general prohibition against the use of port resources, facilities or personnel to assist a campaign.
- Can a port challenge the validity of an initiative or ballot proposition? No, on May 21, 2019 Division II of the Washington Court of Appeals published its opinion in State of Washington v. Economic Development Board for Tacoma-Pierce County, Port of Tacoma and the Commissioners of the Port of Tacoma. There the Port of Tacoma used public funds for a lawsuit challenging the validity of a ballot proposition that would have required “any project requesting a daily consumption of at least one million gallons of water be submitted to a public vote.” The Pierce County Superior Court held that indeed the ballot proposition was invalid and could not go on the ballot – a win for the Port. But then after that ruling, in a separate action, the state acting in support of the PDC sued claiming that the Port had no authority to expend public funds to undertake the lawsuit. The Court of Appeals found that RCW 42.17A.555 was violated when the Port engaged in the ballot proposition challenge.
- Can a port employee participate in a port commissioner candidate’s campaign (including the campaign of an incumbent), or other campaign on their own time? Yes, political activities during non-work time and off port property are not prohibited and, in fact, are protected by the First Amendment. My non-legal advice to commissioners, executive directors, lawyers and port employees is that everyone (especially attorneys, executive directors and senior staff) steer clear of commissioner elections because no matter who is elected, the port executive director, staff and attorneys need to implement the commission direction.
- Can a port publish a factual statement about the effect a ballot proposition will have on its operations or budget? Yes, so long as the statement is factual, does not bleed over into advocacy and is part of the “normal and regular conduct” of the port (for example in a regular newsletter). I recommend that the Port attorney review the statement before it is finalized and make sure it complies with WAC 390-05-273.
- Can the port invite all candidates to the port for a pre-election briefing on port operations and budgets? Yes, such a briefing delivered to all candidates does not support a particular candidate but rather provides information. If a candidate later follows up with questions, care should be taken to provide factual answers only. Consider sharing the question and the answer with all the candidates. Also, remember to call a special meeting if the majority of the current port commission will be attending.
- How about election activities in a port-owned public park or other port-owned public space? Ports can make facilities available on a nondiscriminatory, equal access basis for political uses. The answer to this question depends on the port’s existing policy on the use of its public parks and public spaces. The best course of action is to have a policy in place (before any rental requests) that addresses this issue. In any event, be very careful and consult with your port attorney before deciding and be extremely careful if the candidate is running for port commissioner.
As for the other summer activity, fish for pink salmon using a small white flasher and a pink lure about 20 – 40 feet down trolling at about 1.5 mph. Once caught keep them on ice until you can put them in your smoker to make smoked salmon.
 The underlying win for the Port in the challenge to the ballot proposition was not affected by the ruling.