By Tim Schermetzler of CSD Attorneys at Law P.S.

This past January I had the pleasure of attending WPPA 2025 Port Day in Olympia and observing WPPA Staff and members engage their state legislative delegations and other elected officials to advance the interests of ports all over Washington.  Those in attendance also heard from newly appointed department heads from the Department of Commerce, Department of Ecology, and Washington Department of Transportation.

WPPA members know the value of working with their legislators and state agencies to advance the important work ports contribute to their communities.  The level of port lobbying often depends on the size of the port and the projects they are pursuing.  Yet ports, both big and small, engage in some manner with their elected officials, so it’s helpful to remind ourselves of the laws around lobbying.

In this month’s column, we explore the allowances and limitations of lobbying by port employees and elected officials.  RCW 42.17A.005 defines “lobbying” as attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state administrative procedure act, chapter 34.05 RCW.   As this article discusses, the law treats the use of public funds or resources for lobbying differently depending on whether the activity advances the official business of the port versus a public employee’s personal agenda.

Lobbying for Official Port Business

State law generally prohibits expending public funds for lobbying, except as authorized by law.[1]  Understanding the exceptions is the key.  The exceptions are broad—the applicable statutes, read together, provide ports with the general authority to lobby the legislature in support of official port business including appropriation requests.  This rule makes sense as many ports expend public funds on lobbying, including hiring professional lobbyists or sending staff and commissioners to Olympia to meet with legislators.

The exceptions allow ports to communicate with a member of the legislature at the request of that member.  Independently of a member request, ports may request legislative action or appropriations that are deemed necessary for the efficient conduct of the port or make requests in the performance of official duties.  A port may also expend public funds for lobbying that is limited to providing information or communicating on matters pertaining to official port business or advocating for the official position or interest of the port to any elected official, officer, or employee of any agency.  Lobbying is regulated by the Public Disclosure Commission (“PDC”). When state-level government lobbying is allowed, there are specific reporting requirements that the Port must follow.  Ports should work with their auditor and/or CFO to track and report these activities and expenditures.

The exceptions provide plenty of space for ports to conduct their official business with the legislature and advance the interests of the port within your local community.  However, the use of public funds or resources can become problematic when port staff or commissioners begin lobbying for non-port business or outside their official duties.

Lobbying for Personal Business or Interests

A port employee does not forfeit their First Amendment right to free speech because they work for the government.  A port employee, when not using public resources can privately pursue issues and engage in the political process.  However, a port employee cannot use public resources to pursue private matters that are not the official business of the port.  A violation of the bar on using public resources for personal lobbying can be as simple as sending an email.  As was the case in Knudsen v. Washington State Executive Ethics Bd, where the State Supreme Court found a violation of lobbying restrictions when a college teacher at Spokane Community College sent an email encouraging recipients to urge legislators to approve two bills that would provide tenure-like protections for part-time college teachers.[2]

State law prohibits the use of public resources in a campaign for elected office or for ballot propositions, with narrowly drawn exceptions.  This rule applies to elected officials, as well as employees.[3]  In 2021, the State Supreme Court addressed a city council person’s use of public funds in support of a ballot initiative.  This council person used public funds to advertise meetings, provide food, and purchase posters and sign materials.  Importantly, the Supreme Court dismissed the council person’s argument that the use of the funds was within her official capacity to communicate and promote information to her constituents.  The Court found that by providing picket signs and phone banking for the initiative, the council person’s conduct crossed the line into the territory of improperly promoting a ballot initiative under RCW 42.17A.555.[4]

Using public resources, in the context of this rule, has been defined broadly to include such things as using information technology systems (such as an agency hosted Facebook page), agency publications (such as newsletters), wearing agency-issued uniforms at campaign functions, and making arrangements to stage a photo using agency-owned equipment, just to name a few.

The PDC has the authority to impose penalties and fines.  Complaints to the PDC are common and can be expensive.  Even having to respond to a PDC investigation can be costly and time consuming.  Understanding the line between permissible lobbying for official business of the port versus personal business or interests is important to avoid PDC investigations or complaints. 

Lobbying for a Ballot Initiative or Proposition

There are specific laws and limitations for lobbying associated with ballot propositions.  The general rule is that a port may not use port resources to campaign for any ballot proposition or initiative.[5]  Again, there are exceptions to this rule.  An individual port commissioner can support or oppose a ballot proposition if done in an “open press conference or in response to a specific inquiry” but it should not be done utilizing port resources or facilities.  A port commission can support or oppose a ballot proposition as a body by voting in an open public meeting that is (i) properly noticed, (ii) offers an agenda that includes the title and number of the ballot proposition, (iii) and all commissioners and members of the public are afforded an equal opportunity to express their views.  Port management can speak at community forums and clubs to present an objective and fair presentation of the facts on a ballot measure during regular work hours (i) if the presentation is part of normal and regular conduct of the port, and (ii) so long as the presentation does not cross the line into promoting or advocating the defeat of a proposition.

Finally, a port may not use public funds or resources to support or oppose efforts to get a ballot initiative before the legislature.  However, ports may lobby for the passage or defeat of initiatives once they are before the legislature, provided it is advancing the official business of the port as discussed above.  In 2019, the Port of Tacoma used public funds for a lawsuit challenging the validity of a ballot proposition.  While the ballot proposition was found invalid, in a separate action, the State of Washington, acting in support of the PDC, filed suit claiming that the port had no authority to expend public funds to undertake the original lawsuit challenging the ballot proposition.  The Court found the port in violation of RCW 42.17A.555 because the port engaged in a ballot proposition challenge.[6]  The rules around ballot initiatives and propositions can be complicated and a trap for the unwary—so make sure to exercise caution in this area, and when in doubt, contact your port legal counsel for advice.

 If you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com.

[1] RCW 42.17A.635(2), note that this law was effective until January 1, 2025, after which time the rules will be provided in RCW 29B.50.090.

[2] Knudsen v. Washington State Executive Ethics Bd, 156 Wn. App 852 (Div. 3 2010).

[3] RCW 43.17A.555.

[4] In the Matter of the Recall of Kshama Sawant, 197 Wn.2d 420 (2021).

[5] RCW 42.17A.555 (recodified in RCW 29B.45.010 after January 1, 2026).

[6] State of Washington v. Economic Development Board for Tacoma-Pierce County, 9 Wn. App.2d 1 (Div. 2 2019).  Note the initial court action invalidating the ballot proposition was not impacted by the later PDC case.