State ex rel. Evergreen Freedom Foundation v. Washington Education Ass'n

999 P.2d 602, 140 Wash. 2d 615

• Court: Washington Supreme Court
• Decided: May 18, 2000
• Docket: No. 67126-5
• Status: Published

Opinions

Smith, J.

Appellants Evergreen Freedom Foundation¹ and Teachers For A Responsible Union² seek direct review of orders of summary judgment and dismissal by the Thurston County Superior Court in favor of Respondent School Districts³ and Washington Education Associations⁴ in a lawsuit by Appellants claiming violation by Respondents of RCW 42.17.680(3) in withholding funds from wages or salaries for political contributions without obtaining annual written authorizations. The Superior Court concluded that the WEA, in its capacity as a labor organization, did not violate RCW 42.17.680(3) because the statute applies only to an “employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries.” Additionally, the court concluded that Respondent School Districts did not violate section 680(3) because WAC 390-17-100, the rule promulgated by the Public Disclosure Commission to implement the statute, is entitled to great weight and the School Districts have complied with it. We affirm.

QUESTIONS PRESENTED

The questions presented in this case are:

(1) Whether the Washington Education Association, in its capacity as a labor organization, is an “other person or entity responsible for the disbursement of funds in payment of wages or salaries” under RCW 42.17.680(3), which requires annual written authorization from members for payroll deductions by employers from wages or salaries for political contributions.

(2) Whether WAC 390-17-100, promulgated by the Public Disclosure Commission (PDC) to implement RCW 42.17-.680(3), properly requires an employer to obtain annual written authorization from employees for payroll deductions for political contributions only when payment from the deductions is made to a political committee required to report under chapter 42.17 RCW or a candidate for state or local office.

STATEMENT OF FACTS

The facts in this case are not disputed. RCW 42.17.680(3) was enacted as a consequence of passage of Initiative 134 as section 8 of the Fair Campaign Practices Act on November 3, 1992.⁵

In the 1991 legislative session, Engrossed Substitute Senate Bill 5864 was introduced to regulate political contributions, campaign expenditures and advertising⁶ The bill, the original version of which later became Initiative 134, passed the Senate on March 15, 1991.⁷ The House referred the bill back to the Senate where it remained without further action through expiration of the 1991 legislative session.⁸

In 1992, senators from one political party sponsored Initiative 134.⁹ The required signatures were obtained on the petition to the Legislature for the initiative to be placed on the November 1992 ballot.¹⁰ Initiative 134 was passed by popular vote on November 3, 1992 by a margin of 72 percent.

Before Initiative 134 was passed in 1992, the Washington Education Association (WEA) made political contributions through a registered political committee, Political Unity of Leaders in State Education (PULSE).¹¹ At that time, PULSE was funded by automatic payroll deductions from the salaries or wages of WEA members who were state employees.¹² There was no requirement for annual reauthorization of PULSE deductions. After passage of Initiative 134, the WEA determined it was then required to obtain annual written authorization from its members before making farther automatic payroll deductions for PULSE.¹³

The WEA dissolved PULSE in 1994¹⁴ and established two new entities: the Washington Education Association-Political Action Committee (WEA-PAC)¹⁵ and the Political Education Fund, later renamed the Community Outreach Program (COP).¹⁶ WEA PAC is funded by a separate payroll deduction for which the WEA obtains annual written authorizations from employee-members.¹⁷ COP is funded by “a special assessment on members” and not from a mandatory general membership dues deduction.¹⁸ Employees within the WEA bargaining units who choose not to become WEA members are assessed a separate “agency shop fee,”¹⁹ which does not include a COP assessment,²⁰ as provided in collective bargaining agreements with employee-members and under RCW 41.59.100.

In this case, the WEA has negotiated collective bargaining agreements on behalf of the recognized bargaining units of Respondent School Districts’ certificated employees affiliated with it.²¹ Under the collective bargaining agreements, Respondent School Districts, through payroll deductions, withhold WEA general membership dues and agency shop fees of non-WEA members in the amounts determined by the WEA.²² The WEA facilitates the payroll deduction process²³ and supplies the Respondent School Districts with membership manuals, rosters, various enrollment information, dues distribution information and written authorization forms. The school districts’ payroll officers transmit withheld funds to the WEA or its designees under terms of the collective bargaining agreements.²⁴ The WEA, COI* Uniserv Councils, and local education associations which receive funds withheld by Respondent School Districts have never registered as “political committees” under chapter 42.17 RCW nor have they been candidates for state or local political offices.²⁵

Since August 30, 1993, an administrative rule promulgated by the Public Disclosure Commission, WAC 390-17-100, has required employers to obtain annual written authorizations from employees for payroll deductions for political purposes only when a recipient is a registered political committee under chapter 42.17 RCW or a candidate for state or local office.²⁶ Respondent School Districts acknowledge they are “employers” under RCW 42.17.680(3) and Chapter 41.59 RCW, the Educational Employment Relations Act.²⁷

On June 24, 1997, Appellants Evergreen Freedom Foundation and Teachers For A Responsible Union²⁸ filed in the Thurston County Superior Court a complaint against Respondents School Districts and Education Association for campaign finance, reporting and contribution violations of chapter 42.17 RCW.²⁹ Their amended complaint filed on December 17, 1997 claimed several violations, including violation of RCW 42.17.680(3) by the WEA and Respondent School Districts for withholding funds from wages or salaries to be used for political committees or for use as political contributions without obtaining annual written authorizations.³⁰ Respondent Education Association filed its answer to the original complaint on August 12, 1997.³¹ The answer of Respondent School Districts³² to that complaint was filed on November 13, 1997.³³ Both Respondents denied each of the claimed violations of chapter 42.17 RCW.

On January 9, 1998, the Thurston County Superior Court, the Honorable Wm. Thomas McPhee, granted the motion of the Public Disclosure Commission (PDC) to intervene for the limited purpose of opposing Appellants’ motion to add additional causes of action to its amended complaint.³⁴ The court denied Appellants’ motion.³⁵

On April 3, 1998, Respondent Education Association, Appellants Evergreen Freedom Foundation, Respondent School Districts and Vancouver School District filed separate motions.³⁶ Respondent Education Association moved to dismiss the claims in Counts III and IV of Appellants’ amended complaint because the Association is not a “political committee.”³⁷ In their motion for partial summary judgment, Appellants claimed the WEA and Respondent School Districts have violated RCW 42.17.680(3) and that the WEA is a “political committee” under RCW 42.17-.020(33).³⁸

The trial court granted Respondent Education Association’s motion to dismiss and denied Appellants’ motion for partial summary judgment on July 2, 1998.³⁹ The court concluded the WEA is not an “employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries,” and is therefore not governed by RCW 42.17.680(3).⁴⁰ Relying on the “last antecedent rule” of statutory construction and the use of the phrase “employer or labor organizations” in subsections (1) and (2) of the statute, and its omission in subsection (3), the court concluded the drafters of the law intended to regulate labor organizations in some respects but did not intend for subsection (3) to apply to them.⁴¹

In the motions for summary judgment by Respondent School Districts and the Vancouver School District, they asserted there was no violation of RCW 42.17.680(3) and that they have complied with the PDC’s rule (WAC 390-17--100).⁴² The court granted summary judgment in favor of Respondent School Districts and the Vancouver School District.⁴³ The court stated that although RCW 42.17.680(3) contains both “patent”⁴⁴ and “latent”⁴⁵ ambiguities, the rule promulgated by the PDC as the enforcing agency is entitled to “great weight when construing Section .680(3); but the court still must make an independent determination about the [school] districts’ compliance with the statute.”⁴⁶ The court reasoned that, although the school districts are “employers,” the funds they deduct without prior annual authorization are not withheld as “political contributions” as that term is used in RCW 42.17.680(3) and, accordingly, Respondent School Districts did not violate the statute by withholding funds for the WEA. The court concluded “the [school] districts have complied with Section .680(3) as well as [WAC 390-17-100] . . . [and WAC 390-17-100 which] constru[es] the statute is consistent with the purposes of the Act.”⁴⁷

On July 28, 1998, Appellants moved for final judgment on the RCW 42.17.680(3) claims.⁴⁸ The court granted final judgment on August 24, 1998 dismissing counts III and IV of Appellants’ amended complaint; dismissing Respondent School Districts as defendants; and dismissing the claims against Respondent Education Association for violation of RCW 42.17.680(3).⁴⁹

On September 21, 1998, Appellants sought direct review by this Court.⁵⁰ On October 23, 1998, in response to Appellants’ request for discovery, the Superior Court issued a revised order dismissing all claims concerning COP because they were resolved in the settlement agreement of a separate lawsuit, WEA v. PDC, No. 96-2-04395-5 (Thurston County Super. Ct. Oct. 23, 1998).⁵¹ This Court granted direct appeal in this case on August 31, 1999.⁵²

DISCUSSION

Laws of 1993, ch. 2, § 8, based upon Initiative 134 passed by the voters on November 3, 1992, now codified in identical language as RCW 42.17.680, reads:

42.17.680 Limitations on employers or labor organizations.[⁵³] (1) No employer or labor organization may increase the salary of an officer or employee, or give an emolument to an officer, employee, or other person or entity, with the intention that the increase in salary, or the emolument, or a part of it, be contributed or spent to support or oppose a candidate, state official against whom recall charges have been filed, political party, or political committee.

(2) No employer or labor organization may discriminate against an officer or employee in the terms or conditions of employment for (a) the failure to contribute to, (b) the failure in any way to support or oppose, or (c) in any way supporting or opposing a candidate, ballot proposition, political party, or political committee.

(3) No employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries may withhold or divert a portion of an employee’s wages or salaries for contributions to political committees or for use as political contributions except upon the written request of the employee. The request must be made on a form prescribed by the commission informing the employee of the prohibition against employer and labor organization discrimination described in subsection (2) of this section. The request is valid for no more than twelve months from the date it is made by the employee.

(4) Each person or entity who withholds contributions under subsection (3) of this section shall maintain open for public inspection for a period of no less than three years, during normal business hours, documents and books of accounts that shall include a copy of each employee’s request, the amounts and dates funds were actually withheld, and the amounts and dates funds were transferred to a political committee. Copies of such information shall be delivered to the commission upon request.

(Emphasis added.)

Appellants Evergreen Freedom Foundation make two main contentions. First, they contend that Respondent Education Association, specifically the WEA, is an “employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries” and is therefore required to comply with RCW 42.17.680(3). Second, they claim the WEA and Respondent School Districts, with which it has collective bargaining agreements, have violated the statute because the school districts deducted WEA general membership dues from the salaries or wages of its employee-members without prior annual written authorization, and transmitted those dues to the WEA, which in turn utilized them for political contributions.

The trial court found no violation of Section 680(3) by either Respondent Education Association or Respondent School Districts.⁵⁴

Application of RCW 42.17.680(3) to Labor Organizations

In this case, certain claims of Appellants against Respondent Education Association were dismissed under Court Rule (CR) 12(b)(6) and summary judgment was granted in favor of Respondent School Districts. Dismissal of a claim under CR 12(b)(6) is reviewed de novo and is appropriate only if “ ‘it appears beyond a reasonable doubt that no facts exist that would justify recovery.’ ”⁵⁵ This Court reviews an order of summary judgment de novo and engages in the same inquiry as the trial court.⁵⁶ In doing this, the Court will affirm a summary judgment order “only if the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”⁵⁷

Appellants claim the WEA, in its capacity as a labor organization, is an “other person or entity responsible for the disbursement of funds in payment of wages or salaries” under RCW 42.17.680(3). They claim the terms “person”⁵⁸ and “entity”⁵⁹ are broadly defined and should be interpreted to include labor organizations.⁶⁰ The WEA concedes it is a “person or entity” but argues it is not “responsible for the disbursement of funds in payment of wages or salaries” to its members.⁶¹ Appellants respond that the statute should be broadly construed to effectuate its purposes, which they claim were to limit the taking of salaries or wages for political purposes opposed by an employee-member and to prevent the consolidation of political power in large organizations such as labor organizations.⁶² The WEA counters that the statute is not ambiguous, and thus an inquiry into legislative intent is not necessary.

But this case does require interpretation of RCW 42.17.680(3) as a matter of law.⁶³ It has not previously been interpreted by this Court.⁶⁴ The basic rules of statutory construction applicable to legislative enactments also apply to initiatives.⁶⁵ The objective of statutory interpretation is to execute the intent of the Legislature, which must be primarily determined from the language of the statute itself.⁶⁶ When words in a statute are plain and unambiguous, this Court is required to assume the Legislature meant what it said and apply the statute as written.⁶⁷

Section 8 of Initiative 134 was adopted by popular vote and later codified in identical language as RCW 42.17-.680(3). Subsection (3) prohibits those responsible for disbursement of funds in payment of employee wages from withholding or diverting a portion of those funds for political contributions. The prohibition of subsection (3) is directed to an “employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries.” The language of subsection (3) does include the words “labor organization,” but does not characterize the organization as an “employer or other person or entity” paying the wages or salaries of employees.

A review of the entire statute indicates several specific references to “labor organizations.” In particular, the phrase “employer or labor organizations” appears in both subsections (1) and (2), but the same words “employer or labor organizations” do not appear in subsection (3), although subsection (3) does refer to “employer or labor organizations discrimination.”⁶⁸

In this State general membership dues of a labor organization may be used as a source for political contributions.⁶⁹ The Federal Election Campaign Act of 1974,⁷⁰ 2 U.S.C. § 441b, to the contrary, prohibits use of corporate funds and labor organization funds for direct political contributions to federal election campaigns. The federal statute is clear and unequivocal in its language. Appellants’ argument that subsection (3) of the Washington statute, RCW 42.17.680, was intended to achieve a similar result is not supported by citation to any authority.

Appellants have not identified any ambiguity in RCW 42.17.680 as it relates to labor organizations. Where there is no ambiguity, the meaning of a statute is derived from its language alone.⁷¹ Where a statute is not ambiguous, it is not necessary to resort to legislative history to interpret it.⁷²

General rules of statutory construction require avoidance of unlikely, absurd, or strained results.⁷³ This Court does not ignore clear statutory language and will not strain to find an ambiguity where the language of the statute is clear.⁷⁴ The plain words in RCW 42.17.680(3), an “employer or other person or entity responsible for the disbursement of funds in payment of wages or salaries,” does not include labor organizations. Nor are they included in the identical wording of Initiative 134, section 8(3).

Interpretation of RCW 42.17.680(3) under WAC 390-17-100

The Public Disclosure Commission promulgated WAC 390-17-100 on authorizations for withholding political contributions under RCW 42.17.680(3). It reads:

WAC 390-17-100 Contribution withholding authorizations. (1) For purposes of RCW 42.17.680(3), all political contribution withholding authorizations existing on or before January 1, 1993, will expire no later than December 31, 1993. Beginning January 1, 1994, each employer or other person who withholds or otherwise diverts a portion of wages or salary of a Washington resident or a nonresident whose primary place of work is in the state of Washington

(a) For the purpose of making one or more contributions to any political committee required to report pursuant to RCW 42.17.040, [42.17].050, [42.17].060 or [42.17].090(1)(k), or

(b) For use, specifically designated by the contributing employee, for political contributions to candidates for state or local office is required to have on file the written authorization of the individual subject to the payroll withholding or diversion of wages.

Appellants contend that Respondent School Districts violated RCW 42.17.680(3) by withholding dues and COP assessment deductions from the salaries or wages of WEA member-employees without their prior annual written authorization for contributions to “political committees” or for use as “political contributions” to candidates for state or local office. Respondent School Districts counter that transmitting the withheld funds to the WEA is not a “political contribution” under subsection (3). Appellants respond that, since the WEA makes political contributions from the withheld funds, the payments to it are necessarily also “political contributions.” This is not necessarily so.

Respondent School Districts agree with the trial court’s conclusion that RCW 42.17.680(3) contains both “patent”⁷⁵ and “latent”⁷⁶ ambiguities which are resolved by the administrative rule promulgated by the PDC.⁷⁷ The School Districts’ main argument is that their transmitting WEA general membership dues and COP assessments complies with the statute because they have fully complied with WAC 390-17-100. The Districts maintain that WAC 390-17--100 resolves the ambiguities of subsection (3) by requiring employers to obtain annual authorizations for withholding salaries or wages only if (1) the payee is registered as a “political committee” with the PDC at the time the payment is made or (2) the payment is made as a designated contribution to a person who is a candidate for state or local political office. The Districts argue the contrary interpretation suggested by Appellants would require an employer to follow the money deducted from the employee-member’s paycheck, determine its intended use and then réquire authorization, regardless whether the recipient of the deduction uses the funds as intended. They assert they have no control over expenditure by the WEA of withheld funds they forward to it or its affiliates.

The powers of an administrative agency are derived from statutory authority expressly granted or necessarily implied.⁷⁸ The PDC has an express grant of authority to adopt rules to implement the policies and statutes contained in chapter 42.17 RCW.⁷⁹ Although an agency does not have the power to promulgate rules which amend or change legislative enactments, the agency may adopt rules which “fill in the gaps” if those rules are necessary for effectuation of a general statutory scheme.⁸⁰ Implementation and enforcement of RCW 42.17.680(3) required that the PDC promulgate rules for guidance to employers concerning the circumstances under which an employer must require written annual authorization prior to withholding or diverting a portion of an employee’s wages or salaries for political purposes.

“[A]dministrative rules adopted pursuant to a legislative grant of authority are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the statute being implemented.”⁸¹ “[A] party attacking the validity of an administrative rule has the burden of showing compelling reasons that the rule is in conflict with the intent and purpose of the legislation.”⁸² Appellants have not satisfied this burden.

WAC 390-17-100 requires an annual authorization only for funds withheld or diverted from an employee’s wages for contributions to a political committee or for political contributions to candidates for state or local offices specifically designated by the contributing employee. When an employer has notice that the funds deducted are for the use of a political committee or candidate, the employer may not then make that deduction without specific annual authorization. However, when the employer makes deductions under the Education Employment Relations Act, RCW 41.59.100, and the Public Employees Collective Bargaining Act, RCW 41.56.110, and the employer is not made aware of the specific intended use of the funds, the employer has no legal obligation or authority to seek annual written authorization.⁸³

In analyzing an administrative rule adopted by an agency charged with enforcing a statute, this Court has stated that:

The validity of an administrative rule may also be tested by the construction placed on the authorizing statute by the administrative agency. Moreover, an administrative construction nearly contemporaneous with the passage of the statute, especially when the legislature fails to repudiate the contemporaneous construction, is entitled to great weight.[⁸⁴]

(Citations omitted.) Initiative 134 was passed by popular vote on November 3, 1992 and codified in exact language as RCW 42.17.680 (3). WAC 390-17-100 was promulagated by the PDC to implement the statute and became effective on August 30, 1993.

In November 1996, the Executive Director of the PDC concluded that RCW 42.17.680(3) did not apply to the WEA nor labor organizations generally.⁸⁵ The Legislature has neither repudiated that interpretation by the PDC nor amended the statute. In 1997 and 1998, the Legislature considered proposed legislation which would have amended RCW 42.17.680(3) by restricting expenditures by entities receiving funds through payroll deductions. No such legislation was passed.⁸⁶ The Legislature has apparently acquiesced in the PDC’s interpretation of RCW 42.17.680(3) since 1996.

Appellants claim the intent of the drafters of Initiative 134, section 8, was to protect the “constitutional rights” of labor organization members. They advocate a liberal interpretation of RCW 42.17.680(3).⁸⁷ Respondents Education Association and School Districts both assert Appellants’ constitutional argument is without merit because neither the text of the initiative nor the Voters Pamphlet refer to the constitution.

The intent of the electorate in initiatives must be ascertained from the language of the initiative itself, as well as from statements contained in the official Voters Pamphlet.⁸⁸ Initiatives are not construed like other legislation because, in interpreting them, reviewing courts “focus on the language of the initiative £ “as the average informed lay voter would read it.” ’ ”⁸⁹ Although chapter 42.17 RCW is to be construed liberally, this Court need not do so if such a construction would result in an unlikely, absurd, or strained interpretation of the statutory language.⁹⁰

Appellants base their arguments on what they perceive to be the intent of subsection (3), while ignoring the language of Initiative 134 and the language of the Voters Pamphlet. In determining the purpose or intent of the statute based upon the initiative, the Court may consider arguments made for and against the initiative in the Voters Pamphlet.⁹¹ The Voters Pamphlet makes no reference to court decisions or agency practice.⁹²

The intent of the people of this State in enacting Initiative 134 can be determined from the declarations in RCW 42.17-.610 and .620.⁹³ Appellants contend that RCW 42.17.610(1) and RCW 42.17.620(2) support their position on the purpose of RCW 42.17.680(3). They claim subsection (3) was adopted to stop unions from “amassing large funds ... for politics without authorization.”⁹⁴ However, RCW 42.17.610(1) and RCW 42.17.620(2) relate only to campaign contributions to political candidates, as codified in RCW 42.17.640. The remaining findings in RCW 42.17.610 similarly limit their application to “candidates” and “elected officials.”

RCW 42.17.620(2) may be construed as applying only to contribution limits for political campaigns. It does not identify “large organizational contributors.” No distinction is made between labor organizations and corporations with respect to hmits on campaign contributions unless specifically noted as in RCW 42.17.760.

RCW 42.17.640 relates to contribution limits for all persons. Its language does not distinguish between labor organizations and corporations and treats all donors equally. Under RCW 42.17.640, the intent to reduce the “influence of large organizational contributors” is achieved by imposition of a maximum contribution limit on all donors. Contrary to Appellants’ assertions, the stated intent to “reduce the influence of large organizational contributors” does not mean that labor organizations are prohibited from using their general treasury funds .for contributions and expenditures defined under RCW 42.17-.020(14), (19).

The full context of Initiative 134 suggests the reference to limiting the influence of labor organizations and all “large organizational contributors” is associated with the provisions limiting contributions to candidates. This language does not justify creation of unstated prohibitions on a wide variety of campaign activity by labor organizations.

Prior to passage of Initiative 134, there were no restrictions on the type of funds a labor organization could use for contributions defined by RCW 42.17.020(14). RCW 42.17.760 restricts the expenditures a labor organization may make in only one way: by preventing labor organizations from using agency shop fees paid by nonmembers to operate a political committee or influence an election. In prohibiting only the use of agency shop fees paid by nonmembers, RCW 42.17.760 inferentially allows labor organizations to use dues paid by members for contributions to political committees and candidates. The drafters of Initiative 134 prohibited use of agency shop fees collected from nonmembers. This leads to the logical conclusion that the Initiative did not alter the ability of labor organizations to use members’ dues for contributions under chapter 42.17 RCW. Contrary to Appellants’ assertions, RCW 42.17.680(3) does not prohibit the use of a labor organization’s general treasury funds for political contributions.

The trial court was correct in its adoption of the PDC’s interpretation in WAC 390-17-100 which clarifies both RCW 42.17.680(3) and RCW 42.17.760. RCW 42.17.680(3) permits a labor organization to use for political purposes general treasury funds obtained from dues of members, while RCW 42.17.760 prohibits the labor organization from using for political purposes agency shop fees paid by nonmembers.

It is a basic rule of statutory construction that, whenever possible, statutes should be construed so that no part of the statutory scheme is rendered superfluous.⁹⁵ To accomplish this purpose, all provisions should be harmonized.⁹⁶ This we have done. There is no statutory prohibition against a labor organization using general treasury funds obtained from members’ dues for the purpose of operating a political committee, influencing an election or to otherwise make contributions to a political committee or candidate.

SUMMARY AND CONCLUSION

In determining whether the WEA as a labor organization is an “other person or entity responsible for the disbursement of funds in payment of wages or salaries” under RCW 42.17.680(3), the Court looks first to the statute. Under the clear and unambiguous language of the statute, it is evident that labor organizations are not subject to its provisions. Labor organizations are not required to obtain annual written authorization for use of funds for political contributions prior to receiving general membership dues by payroll deduction from its members.

The interpretation of RCW 42.17.680(3) by the Public Disclosure Commission in WAC 390-17-100 clarifies any ambiguity and helps to implement the statute without amending it or frustrating its intent.

We affirm the decision of the Thurston County Superior Court which dismissed the claims by Evergreen Freedom Foundation and Teachers For A Responsible Union for violations of RCW 42.17.680(3) against Respondent School Districts and granted summary judgment in favor of Respondent Education Association.

Guy, C.J., and Johnson, Talmadge, and Ireland, JJ., concur.

Alexander, J. (concurring in the result) — I agree with the majority opinion as far as it goes. I find it unsatisfactory only in that it fails to define the “notice” that triggers a school district employer’s responsibility to follow the dictates of RCW 42.17.680(3). I quickly add that I disagree with the view Justice Sanders expresses in his concurrence/ dissent to the effect that a district should be deemed to have notice if it learns or should learn, from public records or sources outside the Washington Education Association (WEA), about the destination of withheld funds. A more difficult question, though, is presented if a district receives information from one of its employees, who claims he or she is a member of the WEA and privy to the internal workings of the association, that withheld money is being used for the benefit of political candidates or committees. Under that scenario, a much stronger argument can be mounted that the district has actual notice, or that, at the very least, it must assume a burden to make further inquiries. One could argue that if we were to conclude otherwise, we would be rendering the statute, which was passed by the people, a nullity and would be placing too great a premium on the district’s right to turn a blind eye to information it receives from an employee who claims he or she is affected by the deduction.

Despite the concerns I express above, I nevertheless concur in the result here because there was no showing that the district received actual notice from any WEA member prior to the withholding of funds.

5 See RCW 42.17.680(3).

6 S.B. Rep. ESSB 5864, at 1 (Mar. 15, 1991).

7 Id.

1 Evergreen Freedom Foundation is a Washington nonprofit corporation. Clerk’s Papers at 14.

2 Teachers For A Responsible Union is an unincorporated association of public school employees. Clerk’s Papers at 14.

3 The 15 school districts named as Respondents in this case are referred to col- ' lectively as “Respondent School Districts.” Clerk’s Papers at 15-16 and 35.

4 The Washington Education Association (WEA) (a labor organization incorporated in Washington and affiliated with the National Education Association) (NEA). Kristeen Hanselman (an employee of NEA), the 21 individually named Uniserv Councils (regional affiliates of WEA and NEA), and the Seattle Education Association (a local education association affiliated with WEA) are referred to collectively as “Respondent Education Association.” Clerk’s Papers at 14-16, 26-29 and 154.

8 1 Legislative Digest and History of the Senate and House of Representatives, 52d Leg. 356 (Final No. 6, Wash. 1991-92).

9 Edward D. Seeberger, Sine Die: A Guide to the Washington State Legislative Process 164-65 (1997); see also S.B. Rep. ESSB 5864, at 1 (Mar. 15, 1991).

10 Senate Journal, 52d Leg., Reg. Sess. 17 (Wash. 1992); see Washington State Constitution, article II § 1(a).

11 Clerk’s Papers at 310.

12 WEA represents approximately 65,000 educational employees who work in the State’s K-12 and post secondary schools. An annual deduction of $13 per member was paid to PULSE with a portion distributed to Uniserv PACs. Clerk’s Papers at 154 and 310. This concept, also referred to as “reverse dues check-off,” occurred after an initial authorization to deduct dues from members’ salaries was received by the WEA, and all subsequent payroll deductions to fund PULSE were automatic and would be discontinued only at the employee’s request'. See Br. of Appellant at 14.

13 The WEA also noted a decline in the number of contributors to PULSE from a high of 44,785 to a low of 9,756 as of September 1995. Clerk’s Papers at 348. Contributions to PULSE after the passage of Initiative 134 fell by $455,364. Br. of Appellant at 15.

14 The WEA’s “Life After Initiative 134 Task Force” stated the PULSE structure was outmoded. In April 1994, based on the recommendations of the Task Force, the WEA Representative Assembly disbanded PULSE and the Uniserv PACs. The dissolution of PULSE reduced each WEA member’s payroll deduction by $13, while the deduction for general dues increased by $12. Clerk’s Papers at 151-57 and 310-11; see also Br. of Appellant at 17-19.

15 WEA-PAC is a centralized “political committee” as defined by RCW 42.17.020(33) and replaces the Uniserv PACs. WEA-PAC continues many of the political activities formerly conducted by PULSE, such as contributing to candidate campaigns, school levies and ballot propositions. Clerk’s Papers at 155-56 and 311.

16 An April 1994 amendment to WEA bylaws, Article II, Section 2, initially referred to the entity as “Political Education.” Since November 1996, COP has not been recognized by the Public Disclosure Committee as a “political committee” under RCW 42.17.020(33). Clerk’s Papers at 156-60 and 563.

17 Each WEA-PAC member is assessed a $12 annual payment ($1 per month). Clerk’s Papers at 156-57. Appellants do not claim funding of WEA-PAC violates RCW 42.17.680(3). See Br. of Appellant at 8; Br. of Resp’t School Districts at 2.

18 Resp’t Education Association’s Resp. to Amicus Curiae Br. of Foundation For Campaign Finance Compliance at 2; see Br. of Resp’t School Districts at 4; Clerk’s Papers at 151-57. (Respondent Education Association acknowledges that the WEA receives general dues from its members and uses general treasury funds for contributions defined by RCW 42.17.020(14)). Br. of Resp’t Education Association at 8.

19 Under United States Supreme Court precedent, the First Amendment rights of agency shop fee payers are preserved if they are not compelled to contribute to political or ideological causes they oppose. Specifically in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court did not hold that a labor organization cannot use its general treasury fund for participation in the political process, but stated that the United States Constitution requires only that expenditures be financed “by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.” Abood, 431 U.S. at 235-36; see also Railway Employees’ Dep’t v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956); International Ass’n of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961); Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 111 S. Ct. 1950, 114 L. Ed. 2d 572 (1991).

20 There is no dispute that “agency shop fees” collected by WEA for representing non-union members in its collective bargaining units are not used for political purposes. “Agency shop fee” payers, in addition to Community College, Technical College and four-year University members, are not assessed for WEA-PAC and NEA-PAC. “Agency shop fee” payers are not assessed for COE Clerk’s Papers at 148-49 and 151-57; Br. of Appellant at 18; and Resp’t Education Association’s Resp. to Amicus Curiae Br. of Foundation For Campaign Finance Compliance at 2.

21 Br. of Resp’t School Districts at 4; Clerk’s Papers at 460-509.

22 Before withholding general membership dues, payroll officers do not obtain annual written authorization from WEA member-employees prior to transmittal of funds to the WEA. Br. of Resp’t School Districts at 4. The payroll officers separately deduct dues from WEA members for the following: NEA, WEA, COR NEA-PAC, WEA-PAC, Uniserv and Local. Br. of Resp’t School Districts at 4; Clerk’s Papers at 151, 156-58, 183-218, 519 and 815.

23 The WEA’s local education associations obtain member signatures on forms and provide copies to the school districts’ payroll officers. The school districts do not independently verify compliance with RCW 42.17.680(3). Clerk’s Papers at 148-49 and 519; see Br. of Appellant at 18; and Br. of Resp’t Education Association at 8. A total deduction amount is provided by WEA to the school districts which in turn forward a single check reflecting the total deductions from the WEA member-employees’ salaries or wages. The funds collected by WEA are then disbursed to the various recipients. Clerk’s Papers at 460-509 and 518-19.

24 School district payroll officers transmit the withheld funds to Blue Cross of Washington and Alaska or the local affiliates of the WEA which then forward the funds to the NEA, WEA, Uniserv Councils and Local Education Associations. Br. of Resp’t School Districts at 4-5; Clerk’s Papers at 183-218 and 815.

25 Br. of Resp’t School Districts at 4-5; Clerk’s Papers at 153-66.

26 WAC 390-17-100; see also Clerk’s Papers at 100-03.

27 Br. of Resp’t School Districts at 3; Clerk’s Papers at 15-16 and 36.

28 Appellants Evergreen Freedom Foundation and Teachers For A Responsible Union are referred to collectively as “Appellants Evergreen Freedom Foundation.”

29 Clerk’s Papers at 12-25.

30 Appellants claimed the following violations of chapter 42.17 RCW: (Count I) Violation of RCW 42.17.040, .050, .080 and .090 — WEA failed to register and report as a political committee; (Count II) Violation of RCW 42.17.040, .050, .080 and .090 — Uniserv Councils failed to register and report as political committees; (Count III) Violation of RCW 42.17.680(3) — WEA directs school districts to withhold or divert funds in payment of wages or salaries for political committees or for use as political contributions without obtaining annual written authorizations; (Count IV) Violation of RCW 42.17.680(3) — School districts are “employers” and withhold or divert funds in payment of wages or salaries for political committees or for use as political contributions without obtaining annual written authorizations; (CountV) Violation of RCW 42.17.150, .155, .170 and .180 by the NEA and Kristeen Hanselman for filing incomplete reports under-reporting NEA and NEA-PAC contributions; (Count VI) Violation of RCW 42.17.100 and .180 by WEA for not reporting expenditures supporting local elections; and (Count VII) Violation of RCW 42.17.180 by Seattle Education Association for not reporting contributions in 1996. Clerk’s Papers at 42-54.

31 Clerk’s papers at 26-34.

32 Respondent School District’s answer was filed on behalf of all 15 school districts, including Vancouver School District 037. Clerk’s Papers at 35.

33 Clerk’s Papers at 35-41.

34 Clerk’s Papers at 86-88.

35 Clerk’s Papers at 89-90.

36 Clerk’s Papers at 91, 228-55, 271, 723-53.

37 Clerk’s Papers at 91 and 684-711A.

38 Clerk’s Papers at 228-55.

39 Clerk’s Papers at 648-51.

40 Clerk’s Papers at 648.

41 The trial court also concluded there are “clear issues of fact” concerning the Appellants’ contention that “Section 680(3) applies to WEA as the principal of the school districts, who act as its agents in withholding dues . . . deductions from the districts’ teachers.” The court concluded the school districts have not violated section 680(3), and therefore no liability can be imputed to Respondent Education Association. Clerk’s Papers at 649-51.

42 Clerk’s Papers at 271-93 and 712-53.

43 Clerk’s Papers at 643-47.

44 The court stated the “patent” ambiguities of RCW 42.17.680(3) involve the phrase “for use as a political contribution” being juxtaposed with the phrase “contributions to political committees.” Clerk’s Papers at 645.

45 The court stated the “latent” ambiguities of RCW 42.17.680(3) involve the “political committees to whom payments are regulated [but] are not identified[,] nor is the responsibility for identifying them assigned.” Clerk’s Papers at 645.

46 Clerk’s Papers at 647.

47 The court issued a third order on July 2, 1998 on the issue of whether the WEA is a “political committee” as defined by RCW 42.17.020(33). The court denied the motions of both Appellants and Respondent Education Association and stated that additional discovery is required before assessing the impact of the “primary purpose test” under State v. Dan J. Evans Campaign Committee, 86 Wn.2d 503, 546 P.2d 75 (1976), on the WEA. Clerk’s Papers at 647 and 652-56.

48 Clerk’s Papers at 657-59.

49 Clerk’s Papers at 663-67.

50 Clerk’s Papers at 668-70.

51 The settlement agreement in WEA v. PDC contained conclusions involving the active roles WEA, its affiliates and NEA played in the effort to defeat Initiatives 173 (establishment of vouchers to attend public or private schools) and 177 (creation of independent/charter schools and renewed school districts). Clerk’s Papers at 69-88 and 348-67. The agreement included the following conclusions: COP dues will not be used for payment of administrative expenses of WEA-PAC or for contributions to any other political committee, candidate or political party and any funds so expended will be returned to WEA members; at least since November 1966 COP has not been a “political committee” as defined by RCW 42.17.020(33); WEA-PAC violated the reporting requirements of RCW 42.17.080 and .090; WEA violated RCW 42.17.170 and .180 regarding its contributions to WEA-PAC and to the “No on 173/177 Committee”; WEA and NEA violated RCW 42.17.120 by submitting $410 to the “No on 173/177 Committee” without disclosing NEA as the source of those funds; NEA violated RCW 42.17.180 by failing to file employer lobbyist reports; WEA-PAC exceeded the contribution limits of RCW 42.17.640; and penalized WEA and its affiliates in the amount of $80,000 in addition to costs and attorneys’ fees in the amount of $20,000 both payable to the State. Clerk’s Papers at 153-66.

52 Order dated Aug. 31, 1999.

53 Laws of 1993, ch. 2, § 8.

54 Briefs amicus curiae were filed in support of the WEA by the Washington State Labor Council and in support of Appellants by the Foundation For Campaign Finance Compliance and the Initiative And Referendum Institute.

55 Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998) (quoting Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994)).

56 Reid, 136 Wn.2d at 201.

⁵⁷

58 “Person” as defined by RCW 42.17.020(30) “includes an individual, partnership, joint venture, public or private corporation, association, federal, state, or local governmental entity or agency however constituted, candidate, committee, political committee, political party, executive committee thereof, or any other organization or group of persons, however organized.”

59 “Entity” is not defined by chapter 42.17 RCW. Black’s Law Dictionary 532 (6th ed. 1990) defines it as “[a] real being; existence. An organization or being that possesses separate existence.”

60 Appellants also claim the WEA is “responsible for the disbursement of funds” by relying upon the collectively bargained contract right of the WEA to inform the school districts of the amount of the general membership dues to withhold and “may withhold or divert a portion of an employee’s wages or salaries.” Clerk’s Papers at 238-41.

61 According to Respondent Education Association it “may direct school district payroll officers as to the amount of union dues to be deducted from the salary of an employee, . . . [h]owever, this fact does not make the union an ‘entity responsible for [the] disbursement of funds in payment of wages or salaries.’ ” Respondent reiterates that school districts are “employers” and operate unilaterally in the area of disbursement of wages. Br. of Resp’t Education Association at 14-15.

62 Br. of Appellant at 31-40.

63 State v. Martin, 137 Wn.2d 774, 788, 975 P.2d 1020 (1999).

64 However, this Court interpreted another section of the statute, RCW 42.17.680(2) in Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 531, 936 P.2d 1123 (1997). (Fair Campaign Practices Act prohibits employers from discriminating against employees because of employees’ refusal to abstain from political involvement.).

65 State ex rel. Heavey v. Murphy, 138 Wn.2d 800, 808, 982 P.2d 611 (1999); Seeber v. Public Disclosure Comm’n, 96 Wn.2d 135, 139, 634 P.2d 303 (1981).

66 Roberts v. Johnson, 137 Wn.2d 84, 91, 969 P.2d 446 (1999). In re Custody of Smith, 137 Wn.2d 1, 8, 969 P.2d 21 (1998).

67 In re Custody of Smith, 137 Wn.2d at 8.

68 Accord Seeber, 96 Wn.2d at 139 (“It is an elementary rule that where certain language is used in one instance, and different language in another, there is a difference in legislative intent.”).

69 Chapter 42.17 RCW

70 2 U.S.C. §§ 431-55.

71 Geschwind v. Flanagan, 121 Wn.2d 833, 840, 854 P.2d 1061 (1993).

72 Geschwind, 121 Wn.2d at 841.

73 Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 799, 947 P.2d 727, 952 P.2d 590 (1997) (citing State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987)).

⁷⁴

75 The “patent” ambiguity relates to the phrase “for use as political contributions.” School Districts assert that although “contributions” are defined in RCW 42.17.020(14), chapter 42.17 RCW neither defines the term “political” nor the phrase “political contribution” to guide employers on when a withheld payment is “for use as a political contribution” under section 680(3). Br. of Resp’t School Districts at 7.

76 Similarly, the Districts identify a “latent” ambiguity: “No language guides employers on whether they must determine for themselves whether a payee of a withheld salarfy] or wag[e] is a political committee under RCW 42.17.020(33) or whether the duty to obtain annual requests applies only when the payee is registered as a political committee with the PDC.” Br. of Resp’t School Districts at 7.

77 Respondent School Districts indicate that although a “political committee” is defined under RCW 42.17.020(33) and such organizations must register with the PDC and file reports under RCW 42.17.040-.090 and .105, section 680(3) is ambiguous. Br. of Resp’t School Districts at 7.

78 State v. Ford, 110 Wn.2d 827, 831, 755 P.2d 806 (1988) (citing Green River Community College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 622 P.2d 826 (1980), modified, 95 Wn.2d 962, 633 P.2d 1324 (1981)).

79 RCW 42.17.370.

80 Green River Community College, 95 Wn.2d at 112 (citing Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975)).

81 Green River Community College, 95 Wn.2d at 112.

⁸²

83 In this case, chapters 41.56 and 41.59 RCW are the collective bargaining laws governing school district employees. These statutes require the employer under a collective bargaining agreement to deduct dues from salaries of employees and to transmit those dues to the other party to the agreement, the labor organization. The interpretation by the PDC of RCW 42.17.680(3) does not conflict with the collective bargaining statutes because that interpretation does not restrict the employer in making dues deductions intended for the general treasury of labor organizations.

84 Green River Community College, 95 Wn.2d at 117-18; see In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 903 P.2d 443 (1995).

85 Clerk’s Papers at 705-09.

86 Clerk’s Papers at 710-11A.

87 Br. of Appellant at 31. Also, Appellants provide no authority for their claim that precedent established by United States Supreme Court and United States Court of Appeals for the Ninth Circuit interpreting the constitutionality of labor organizations’ security provisions is the foundation for Initiative 134 and enactment of RCW 42.17.680(3). Br. of Appellant at 40-50.

88 State v. Thorne, 129 Wn.2d 736, 763, 921 P.2d 514 (1996).

89 Senate Republican Campaign Comm. v. PDC, 133 Wn.2d 229, 243, 943 P.2d 1358 (1997); see City of Spokane v. Taxpayers of City of Spokane, 111 Wn.2d 91, 98, 758 P.2d 480 (1988) (quoting Estate of Turner v. Department of Revenue, 106 Wn.2d 649, 654, 724 P.2d 1013 (1986)).

90 Senate Republican Campaign Comm. v. PDC, 133 Wn.2d at 243.

91 State v. Thorne, 129 Wn.2d at 763.

92 Only a single sentence in the Voters Famphlet relating to agency fees refers to sections 26 and 16 (codified as RCW 42.17.760). There is no reference to section 8(3). In the section entitled “The Effect of Initiative Measure 134, if approved as law” it states “[v]oluntary state payroll deductions for political committees would no longer be permitted and agency shop fees could not be used for political purposes without individual authorization.” Clerk’s Fapers at 743-44.

93 “42.17.610 Findings. The people of the state of Washington find and declare that:

“(1) The financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of candidates.

“(2) Rapidly increasing political campaign costs have led many candidates to raise larger percentages of money from special interests with a specific financial stake in matters before state government. This has caused the public perception that decisions of elected officials are being improperly influenced by monetary contributions.

“(3) Candidates are raising less money in small contributions from individuals and more money from special interests. This has created the public perception that individuals have an insignificant role to play in the political process.

“42.17.620 Intent. By limiting campaign contributions, the people intend to:

“(1) Ensure that individuals and interest groups have fair and equal opportunity to influence elective and governmental processes;

“(2) Reduce the influence of large organizational contributors; and

“(3) Restore public trust in governmental institutions and the electoral process.”

94 Br. of Appellant at 33.

95 State ex rel. Heavey, 138 Wn.2d at 807 n.2 (citing Sim v. State Parks & Recreation Comm’n, 90 Wn.2d 378, 383, 583 P.2d 1193 (1978)).

96 State v. Thomas, 121 Wn.2d 504, 511, 851 P.2d 673 (1993); see City of Puyallup v. Pacific N.W. Bell Tel. Co., 98 Wn.2d 443, 448, 656 P.2d 1035 (1982).