Supplemental Notice to WSR [08-14-155].
Preproposal statement of inquiry was filed as WSR 08-10-004.
Title of Rule and Other Identifying Information: Amendments to WAC 390-05-515 Member. This rule describes when a communication to a "member" as that term is used in chapter 42.17 RCW, the public disclosure commission statutes, including RCW 42.17.020 and 42.17.100, is an internal political communication and not a contribution.
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 firstname.lastname@example.org, 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: The amendments to WAC 390-05-515 are needed to more specifically address (and exclude) entities that describe their customers as "members" but their relationship is more akin to that of seller-buyer and to provide an additional factor to determine membership.
Reasons Supporting Proposal: To provide guidance and clarification regarding the public disclosure law to entities with "members."
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 clarify the definition of "member" for purposes of public disclosure.
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 11, 2008
AMENDATORY SECTION(Amending WSR 06-11-132, filed 5/23/06, effective 6/23/06)
WAC 390-05-515 Member. In determining whether a communication is to a "member" as that term is used in RCW 42.17.020 and 42.17.100, and for the purposes of RCW 42.17.105(8) ((
and)), 42.17.640 and 42.17.645:
(1) The commission will examine whether the organization is a legitimate membership organization with common interest goals and objectives, taking into account such factors as the organization's permanence, structure and whether it has formal organizing documents, membership criteria and services it provides its members.
(2) With respect to the status of members of an organization, the commission will examine whether a valid, active relationship exists between the organization and its members or classes of members for purposes other than influencing the outcome of an election, taking into account such factors as whether the members affirmatively accept membership and the rights and obligations conferred on members by the organization including whether members have the right to vote for:
(a) Election of directors or officers; or
(b) Changes to the articles or bylaws; or
(c) The disposition of all or substantially all of the assets of the organization or on a merger or dissolution.
A required payment of a predetermined amount of membership dues is also a factor; however, an organization will not be considered a membership organization if it is primarily a commercial entity or for-profit entity selling products to customers even though it may refer to its customers as "members."
(3) If a membership organization and its members satisfy the criteria regarding "membership associations" and "members" established by the Federal Election Commission (FEC) in 11 C.F.R. Sec. 100.134 (e)-(g), the commission will consider the organization and its members as qualifying for the exemption in RCW 42.17.020 (15)(b)(v) and (21)(g), unless the communication was not sent primarily to members. However, these FEC criteria are not the only indicators of legitimate membership organizations or valid members, a determination that will be made by the commission on a case-by-case basis as necessary.
(4) In determining whether an internal political communication is "primarily" limited to the members of an organization or political committee, the commission will consider whether any distribution to nonmembers is incidental and isolated.
[Statutory Authority: RCW 42.17.370 and 42.17.562. 06-11-132, § 390-05-515, filed 5/23/06, effective 6/23/06.]