WSR 08-20-112

PROPOSED RULES

PUBLIC DISCLOSURE COMMISSION


[ Filed September 30, 2008, 1:08 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-14-166.

Title of Rule and Other Identifying Information: Amendments to WAC 390-20-120 Forms for report of legislative activity by public agencies and 390-16-207 In-kind contributions -- Explanation and reporting.

Hearing Location(s): Commission Hearing Room, 711 Capitol Way, Room 206, Olympia, WA 98504, on December 4, 2008, at 9:30 a.m.

Date of Intended Adoption: December 4, 2008.

Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, e-mail dellis@pdc.wa.gov, fax (360) 753-1112, by November 24, 2008.

Assistance for Persons with Disabilities: Contact Nicole Stauffer by phone (360) 586-0544.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To update rules to provide guidance and clarification to filers. Amendments to WAC 390-20-120 Forms for report of legislative activity by public agencies, provide for the name and contact information of the person within each public agency who prepared the public agency lobbying report (PDC L-5). Amendments to WAC 390-16-207 will clarify that all candidates with contribution limits, including judicial and county candidates, are subject to limits when receiving in-kind contributions.

Reasons Supporting Proposal: To update and clarify rules.

Statutory Authority for Adoption: RCW 42.17.370.

Statute Being Implemented: RCW 42.17.190, 42.17.640, and 42.17.645.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The amended rules are designed to identify the person responsible for preparing the L-5 reports and to clarify that all candidates with contribution limits are subject to those limits when receiving in-kind contributions.

Name of Proponent:

Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rule amendments has minimal impact on small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. The public disclosure commission (PDC) is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to the adoption of these rules pursuant to subsection (5)(a)(i) of section 201, and, to date, JARRC has not made section 201 application [applicable] to the adoption of these rules.

September 30, 2008

Vicki Rippie

Executive Director

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AMENDATORY SECTION(Amending WSR 06-11-132, filed 5/23/06, effective 6/23/06)

WAC 390-16-207   In-kind contributions -- Explanation and reporting.   (1) An in-kind contribution occurs when a person provides goods, services or anything of value, other than money or its equivalent, to a candidate or political committee free-of-charge or for less than fair market value, unless the item or service given is not a contribution according to RCW 42.17.020 or WAC 390-17-405.

(2) An in-kind contribution also occurs when a person makes an expenditure that

Supports or opposes a candidate or a ballot measure,
Meets the definition of contribution in RCW 42.17.020 or WAC 390-05-210, and
Is other than a monetary contribution made directly to a candidate or political committee.
For example, an in-kind contribution occurs when a person, after collaborating with a candidate or a candidate's agent, purchases space in a newspaper for political advertising supporting that candidate or opposing that candidate's opponent.

(3) An in-kind contribution also occurs when a person makes an electioneering communication that is a contribution as provided in RCW 42.17.570.

(4) According to RCW 42.17.095 and WAC 390-16-238, a candidate may not use his or her campaign funds to make a contribution, including an in-kind contribution, to another candidate or a political committee. However, under RCW 42.17.095, a candidate may use surplus funds as defined in RCW 42.17.020 to make a contribution to a political party or caucus political committee.

(5) In-kind contributions to recipients who have limits under RCW 42.17.640 or 42.17.645.

(a) If a ((state office)) candidate receives in-kind contributions from any person valued at more than $25 in the aggregate ((during)) for an election ((cycle)), the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640 or 42.17.645.

(b) If a bona fide political party or legislative caucus committee receives in-kind contributions from any person valued at more than $25 in the aggregate during a calendar year, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limit provided in RCW 42.17.640.

(c) If ((a state)) an elected official against whom recall charges have been filed or a political committee supporting the recall of a state official receives in-kind contributions from any person valued at more than $25 in the aggregate during a recall campaign, the contribution is reportable by the giver and the recipient pursuant to chapter 42.17 RCW and is subject to the applicable contribution limits provided in RCW 42.17.640 or 42.17.645.

(6) Political committees that make in-kind contributions. Except as provided for in subsection (5) of this section, a political committee that makes in-kind contributions to a candidate or political committee totaling more than $50 in the aggregate during a reporting period must identify the recipient and the amount of the contribution as part of its C-4 report covering that period.

If the in-kind contribution is in the form of an expenditure that has been obligated, but not yet paid, the identity of the recipient candidate or political committee, along with a good faith estimate of the value of the contribution, must be disclosed in part 3 of Schedule B, in addition to the other information required by the form. When the expense is paid, the recipient's name and the amount of the contribution must be disclosed on Schedule A, along with the other information required by the form.

If a political committee provides equipment, property or anything else of value owned, leased or controlled by it to a candidate or political committee, the contributing committee must attach a statement to its C-4 report showing the name of the candidate or political committee to whom the contribution was made and the date, description and fair market value of the in-kind contribution.

(7) Reporting by recipients. Except as provided in subsection (5) of this section, in-kind contributions from one source are not reportable by the recipient candidate or political committee until the aggregate value of all in-kind contributions received from that source during a reporting period is more than $50. If this threshold is met, the in-kind contributions must be reported in part 1 of Schedule B to the C-4 report covering that reporting period.

(8) Valuing in-kind contributions.

(a) For purposes of determining the value of goods or services provided as in-kind contributions, refer to WAC 390-05-235, Definition--Fair market value.

(b) If an expenditure that constitutes an in-kind contribution is made, the value of the in-kind contribution to a particular candidate or political committee is the portion of the expense that benefits the candidate or political committee.

(9) Application of RCW 42.17.105 -- Last-minute contributions.

(a) If an expenditure that constitutes an in-kind contribution is made no later than twenty-two days before a general election and written notice of the in-kind contribution is in the possession of the recipient candidate committee or political committee twenty-two or more days before that general election, the contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105.

(b) If an in-kind contribution is in the form of personal services donated to a campaign for the duration of the twenty-one days before a general election, and if written notice of the value of this donation is in the possession of the recipient candidate or political committee twenty-two or more days before the election, that in-kind contribution is not subject to the respective $5,000 or $50,000 maximum amounts specified in RCW 42.17.105.

[Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, 390-16-207, filed 5/23/06, effective 6/23/06. Statutory Authority: RCW 42.17.370(1). 04-12-054, 390-16-207, filed 5/28/04, effective 6/28/04; 98-12-034, 390-16-207, filed 5/28/98, effective 6/28/98. Statutory Authority: RCW 42.17.390. 94-11-016, 390-16-207, filed 5/5/94, effective 6/5/94. Statutory Authority: RCW 42.17.370. 93-22-002, 390-16-207, filed 10/20/93, effective 11/20/93; 93-16-064, 390-16-207, filed 7/30/93, effective 8/30/93. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), 390-16-207, filed 2/5/86; 82-14-016 (Order 82-04), 390-16-207, filed 6/28/82; Order 79, 390-16-207, filed 6/25/76.]

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AMENDATORY SECTION(Amending WSR 02-03-018, filed 1/4/02, effective 2/4/02)

WAC 390-20-120   Forms for report of legislative activity by public agencies.   The official form for the report of legislative activity by public agencies as required by RCW 42.17.190 is designated "L-5," revised ((1/02)) 1/09. Copies of this form are available at the Commission Office, Room 206, Evergreen Plaza Building, Olympia, Washington 98504-0908. Any attachments shall be on 8-1/2" x 11" white paper.

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[Statutory Authority: RCW 42.17.370(1). 02-03-018, 390-20-120, filed 1/4/02, effective 2/4/02; 85-24-020 (Order 85-05), 390-20-120, filed 11/26/85; 80-02-106 (Order 80-02), 390-20-120, filed 1/24/80. Statutory Authority: RCW 42.17.160(4) and 42.17.370(1). 78-08-061 (Order 100), 390-20-120, filed 7/24/78; Order 94, 390-20-120, filed 10/31/77; Order 77, 390-20-120, filed 6/2/76; Order 62, 390-20-120, filed 8/26/75.]

Washington State Code Reviser's Office