Washington Court of Appeals Reports
ED HERBERT v. WA STATE PUB. DISCLS. COMM., 57502-3-I
(Wash.App. 12-18-2006) ED HERBERT, Appellant, v. WASHINGTON
STATE PUBLIC DISCLOSURE COMMISSION, Respondent., DENNIS
NUSBAUM, Appellant, v. WASHINGTON STATE PUBLIC DISCLOSURE
COMMISSION, Respondent. Nos. 57502-3-I, 57503-1-I. The
Court of Appeals of Washington, Division One. Filed:
December 18, 2006.
Appeal from King County Superior Court, Docket No:
05-2-09051-1, Judgment or order under review, Date filed:
12/02/2005, Judge signing: Honorable Douglass A North.
Counsel for Appellant(s), Harriet Kay Strasberg, Attorney
at Law, Olympia, WA.
Counsel for Respondent(s), Linda Anne Dalton, Atty
General’s Ofc Govt & Enforcement, Olympia, WA.
H. Bruce Marvin, WA State Attorney General’s Office,
Olympia, WA.
Authored by H JOSEPH COLEMAN, Concurring: SUSAN AGID,
WILLIAM BAKER.
COLEMAN, J.
Ed Herbert and Dennis Nusbaum are public school teachers
who were fined by the Public Disclosure Commission (PDC)
for using school facilities in violation of RCW 42.17.130’s
prohibition on the use of public resources for political
advocacy. They challenge the constitutionality of that
statute as applied to them, arguing that it does not pass
strict scrutiny as a restriction on their First Amendment
free speech rights and that the statute as applied is
arbitrary and capricious and overbroad. We conclude that
the PDC’s application of the statute is constitutional
because it is a reasonable and viewpoint-neutral speech
restriction in a nonpublic forum and that the statute as
applied is not arbitrary and capricious or overbroad.
Therefore, we affirm the PDC’s final order.
FACTS
Herbert and Nusbaum[fn1] are Seattle School District
teachers at Ballard High School. Herbert volunteers as a
building representative for the Seattle Education
Association (SEA), which is an affiliate of the Washington
Education Association, a voluntary statewide labor
organization. As an SEA building representative, Herbert
regularly distributes SEA information to members employed
at Ballard via school mailboxes or school e-mail. The
Seattle School District provides e-mail accounts to its
employees, subject to a use agreement that prohibits the
use of school computers to support or oppose ballot
measures.
In 2004, SEA members supported Referendum 55 and Initiative
884. Herbert placed blank petitions for the ballot measures
in teachers’ school mailboxes so that they could collect
signatures to place those measures on the ballot. He
directed them to place completed petitions in his school
mailbox. One morning before school started, Herbert
received an e-mail message from an SEA staff member
notifying him that petitions would be collected that
afternoon. Herbert forwarded this e-mail to all Ballard
staff, instructing them to place any completed petitions in
his school mailbox that day.
The Washington State PDC received a complaint that Herbert
had violated RCW 42.17.130 by using public resources to
support the ballot measure campaigns. Following an
investigation, the PDC held an administrative hearing.
Herbert stipulated to the underlying facts, and based on
those stipulations and the evidence and testimony offered
at the hearing, the PDC determined that Herbert had
violated the statute. The PDC assessed a $500 penalty
against Herbert, with $450 suspended if he did not violate
the statute again for two years.
Herbert filed a petition for judicial review under the
Administrative Procedure Act (APA) in King County Superior
Court. He argued that the PDC had misapplied the law and
that its order was unconstitutional. The superior court
affirmed the PDC’s order, and Herbert timely appeals.
STANDARD OF REVIEW
Under the APA, an appellate court shall reverse an
administrative order if it determines that, inter alia, (1)
the administrative agency has erroneously interpreted or
applied the law, (2) the order, or the statute on which the
order is based, is unconstitutional on its face or as
applied, or (3) the order is arbitrary and capricious. RCW
34.05.570(3). In reviewing the administrative order, this
court is in the same position as the superior court
— applying the APA standards to the administrative
record before the agency. Tapper v. Employment Sec. Dep’t,
122 Wn.2d 397, 402, 858 P.2d 494 (1993). This court reviews
the administrative record de novo, but gives substantial
weight to the agency’s interpretation of the law it
administers, particularly when the agency has expertise in
a certain area. Franklin County Sheriff’s Office v.
Sellers, 97 Wn.2d 317, 325 § 26, 646 P.2d 113 (1982).
ANALYSIS
Scope of RCW 42.17.130
Herbert argues that the PDC erroneously interpreted and
applied RCW 42.17.130 to find he violated the statute
because his “use” of government facilities was de minimus.
Even if he did use the facilities, he claims this conduct
was part of the “normal and regular” conduct of the school
district and, thus, not subject to the statute. The PDC
argues that there is no de minimus exception to RCW
42.17.130 and that using school e-mail and mailboxes for
political advocacy is not “normal and regular conduct” of
Ballard High School or the school district.
Washington voters passed Initiative 276 in 1972, which
enacted a series of laws related to campaign finance
reform. See RCW 42.17.010. The PDC was created as part of
Initiative 276 to enforce the provisions of the
initiative’s campaign finance laws. RCW 42.17.350 §
60. One of the laws enacted by Initiative 276 reads:
No elective official nor any employee of his [or her]
office nor any person appointed to or employed by any
public office or agency may use or authorize the use of
any of the facilities of a public office or agency,
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.
Facilities of a public office or agency include, but are
not limited to, use of stationery, postage, machines, and
equipment, use of employees of the office or agency
during working hours, vehicles, office space,
publications of the office or agency, and clientele lists
of persons served by the office or agency. However, this
does not apply to the following activities:
. . . .
(3) Activities which are part of the normal and regular
conduct of the office or agency.
RCW 42.17.130. Herbert argues that the statute’s prohibition
on the “use” of facilities, in the absence of any
definition of the word, should be interpreted to prohibit
only those uses that have a measurable monetary value.
According to Herbert, because his forwarding of an e-mail
and the deposit of petitions in mailboxes uses a negligible
amount of time and resources, it was essentially a de
minimus use and should not have been considered a violation
of the statute.
The PDC points out that the statute does not contain any de
minimus use exception in its wording and that the PDC
repealed a WAC section that contained a de minimus use
exception in 1978 and replaced it with a WAC section
without such an exception. Compare WAC 390-04-040
(repealed) with WAC 390-05-273.
Thus, because the statute is undisputedly unambiguous and
does not contain a de minimus use exception, we decline to
impose one. See State v. Bostrom, 127 Wn.2d 580, 586
§ 87, 902 P.2d 157 (1995) (“When the language of a
statute is unambiguous, courts may not alter the statute’s
plain meaning by construction.”). We reject Herbert’s
argument that such an exception should be implied,
particularly in light of the fact that the PDC repealed a
de minimus use exception in its administrative regulations,
and the fact that Herbert has not shown a clear way to
define a de minimus exception.
Second, Herbert claims that because the e-mail was part of
the “normal and regular” conduct of the school, his use is
covered by the proviso to RCW 42.17.130’s prohibition. WAC
390-05-273 explains that the “normal and regular” proviso
means:
Normal and regular conduct of a public office or agency,
as that term is used in the proviso to RCW 42.17.130,
means conduct which is (1) lawful, i.e., specifically
authorized, either expressly or by necessary implication,
in an appropriate enactment, and (2) usual, i.e., not
effected or authorized in or by some extraordinary means
or manner. No local office or agency may authorize a use
of public facilities for the purpose of assisting a
candidate’s campaign or promoting or opposing a ballot
proposition, in the absence of a constitutional, charter,
or statutory provision separately authorizing such use.
Herbert has not cited any constitutional, charter, or
statutory provision separately authorizing the use of
Seattle School District e-mail or mailboxes for the
purposes of promoting a ballot measure, and his use of
e-mail had been specifically prohibited by the school
district computer policy. There is no evidence that Ballard
High School or the school district customarily engaged in
distributing political materials, and thus, Herbert’s
actions were not within the “normal and regular conduct of
a public office or agency.” We thus conclude that this
proviso to RCW 42.17.130 does not apply to Herbert’s use.
Thus, because RCW 42.17.130 does not contain a de minimus
exception and the “normal and regular” proviso does not
apply here, we conclude that the PDC did not err in finding
that Herbert’s conduct violated the statute.
Tests for Determining Constitutionality
Herbert argues that even if he violated the statute, the
statute is unconstitutional as applied here because it is
not narrowly tailored to protect a compelling government
interest and his use did not cause a material and
substantial disruption to the school. The PDC argues that
because RCW 42.17.130 restricts certain forms of speech of
public employees in certain forums, forum analysis is the
appropriate test to determine whether the restrictions are
constitutional.
The First Amendment’s guarantee of free speech applies in
schools and other employment locations, but the United
States Supreme Court has noted that “‘[Nowhere] [have we]
suggested that students, teachers, or anyone else has an
absolute constitutional right to use all parts of a school
building or its immediate environs for . . . unlimited
expressive purposes.'” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 44, 103 S. Ct. 948, 74 L.
Ed. 2d 794 (1983) (quoting Grayned v. City of Rockford, 408
U.S. 104, 117 § 18, 92 S. Ct. 2294, 33 L. Ed. 2d 222
(1972)). RCW 42.17.130 prohibits the use of public
facilities for political advocacy by public employees, and
a variety of tests are used by courts to determine whether
such limits on expression are constitutional.
Herbert urges us to apply strict scrutiny because this is
a content-based restriction (its prohibition singles out
political advocacy speech). Herbert cites State v.
Williams, 144 Wn.2d 197, 26 P.3d 890 (2001) and Collier v.
City of Tacoma, 121 Wn.2d 737, 854 P.2d 1046 (1993) to
support the application of strict scrutiny to content-based
restrictions. In Williams, the statute at issue defined
harassment, and the court applied strict scrutiny to the
statute because it purported to prohibit speech based on
its content (whether it was threatening to the victim’s
“mental health”). While true threats to physical safety are
not protected by the First Amendment, threats to mental
health could be protected. The court concluded that after
applying strict scrutiny, the content-based restriction was
not necessary to promote a compelling government interest
and was not narrowly tailored to achieve that purpose.
Williams, 144 Wn.2d at 211.
The type of speech prohibited in Williams is easily
distinguishable from the type prohibited in RCW 42.17.130,
because the Williams speech occurred in conversations
between two people — no matter what the setting
— whereas the prohibited speech here is only that
speech that requires the use of public facilities. The
prohibition is on the use of facilities, not on political
speech generally in the school setting (and the WAC makes
clear that school employees may express their political
views in any way that does not use public facilities). Forum
analysis would not have been helpful in Williams because
the statute did not criminalize speech in a forum-dependent
way.
In Collier, the other Washington case cited by Herbert to
support the application of strict scrutiny as opposed to
forum analysis, the ordinance at issue restricted the use
of political yard signs on public parking strips. The court
concluded that parking strips are a public forum, and as
such, the restriction must be subjected to strict scrutiny.
Thus, Collier does not support Herbert’s position because
the court actually applied forum analysis to determine that
the forum at issue was a public forum, and restrictions in
a public forum are reviewed under strict scrutiny.
The PDC argues that because RCW 42.17.130 was applied to
prohibit political advocacy using public computers and
school mailboxes — forums that are open to other
types of communication — this type of forum
limitation requires review using forum analysis. It cites
City of Seattle v. Huff, 111 Wn.2d 923, 926, 767 P.2d 572
(1989), which states that federal case law applying forum
analysis is highly persuasive and has been consistently
followed in Washington.
Huff explains the steps of forum analysis:
The constitution allows regulation of protected speech in
certain circumstances. Bering v. Share, 106 Wn.2d 212, 221
§ 22, 721 P.2d 918 (1986), cert. dismissed, 479
U.S. 1050, 93 L. Ed. 2d 990, 107 S. Ct. 940 (1987). Speech
in public forums is subject to valid time, place, and
manner restrictions which “‘are content-neutral, are
narrowly tailored to serve a significant government
interest, and leave open ample alternative channels of
communication.'” Bering, at 222 (quoting United States v.
Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct.
1702 (1983)). “Additional restrictions [on speech in
public forums] such as an absolute prohibition on a
particular type of expression will be upheld only if
narrowly drawn to accomplish a compelling governmental
interest.” United States v. Grace, supra at 177.
A different standard applies to speech in nonpublic
forums. Speech in nonpublic forums may be restricted if
“‘. . . the distinctions drawn are reasonable in light of
the purpose served by the forum and are viewpoint
neutral.'” Seattle v. Eze, [111 Wn.2d 22], 32, [759 P.2d
366 (1988)] (quoting Cornelius v. NAACP Legal Defense &
Educ. Fund, Inc., 473 U.S. 788, 806, 87 L. Ed. 2d 567,
105 S. Ct. 3439 (1985)).
The parties did not address the public/nonpublic forum
distinction. This threshold question is critical, however,
because the type of forum determines which constitutional
standard applies when protected speech is sought to be
regulated.
Huff, 111 Wn.2d at 926. Forum analysis has been applied in
cases factually similar to Herbert’s case. See, e.g.,
Perry, 460 U.S. at 47 (addressing restriction on union
members’ access to school mailbox system); Chiu v. Plano
Indep. Sch. Dist., 260 F.3d 330, 350 (5th Cir. 2001)
(addressing restriction on parents’ use of school mailbox
system); May v. Evansville-Vanderburgh School Corp., 787
F.2d 1105, 1118 (7th Cir. 1986) (addressing restriction on
teachers’ use of facilities to hold meeting on school
premises).
Herbert points out that the Fifth Circuit Court of Appeals
did not apply forum analysis in a case similar to
Herbert’s, Texas State Teachers Ass’n v. Garland Indep.
Sch. Dist., 777 F.2d 1046 (5th Cir. 1985), and instead
applied the “material and substantial disruption” test from
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)) (holding that
student speech can be restricted only when the
communication or method thereof causes a material and
substantial disruption to the school). The Garland court
stated that the Tinker test applied to speech restrictions
on school “insiders,” as opposed to “outsiders” like
unions.
In Garland, the school district enacted a policy whereby
teachers could not, inter alia, use the internal mailbox
system to discuss the labor union on school premises during
school hours. The teachers could use the school mail system
for any other purpose, including personal matters. The
policy was defended by the school district as being
necessary for compliance with a Texas Education Code section
that forbade districts from coercing teachers to join any
organization. The Garland court stated that the policy was
not necessary for compliance with the Code (because if all
matters may be discussed via school mail, there can be no
possible coercion), and that no material or substantial
disruption had been shown by the teachers’ use of the school
mail system to discuss employee organizations. Garland, 777
F.2d at 1055.
Garland cites other Fifth Circuit cases for the proposition
that restrictions on teacher conversations among other
teachers are reviewed under the Tinker test and applies the
same test — without explaining any specific reasons
for doing so — to the use of the school mailbox
system. Herbert argues that this court should thus apply
the Tinker test because here the communications were also
between school “insiders.” But the Tinker test predates the
use of forum analysis, and subsequent cases have applied
forum analysis even when the speech restriction at issue
involves only “insiders.” See, e.g., Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592
(1988). Some federal courts have suggested that the
“insider”/ “outsider” dichotomy is no longer relevant
because of the use of forum analysis. See Hedges v.
Wauconda Cmty. Unit Sch. Dist. 118, 807 F. Supp. 444, 456
§ 57 (N.D. Ill. 1992) and Nelson v. Moline Sch.
Dist., 725 F. Supp. 965, 973 (C.D. Ill. 1989). And the
Ninth Circuit has recently applied forum analysis to
restrictions on public employees’ use of public facilities
at work for “insider” meetings. See Berry v. Dep’t of Soc.
Servs., 447 F.3d 642, 652 § 54 (9th Cir. 2006)
(applying forum analysis to prohibition of public employee
using employee conference room for prayer meeting).
Herbert attempts to distinguish Berry because it did not
involve a content-based restriction, because the employer
there forbade any nonwork-related use of the employee
conference room — the employee’s use was not
prohibited because it was for religious purposes, but only
because it was not work-related. But in other cases that
have involved content-based restrictions, courts have
applied forum analysis, suggesting that whether a
restriction is content-based does not affect whether forum
analysis should be applied — although whether a
restriction is content-based may affect whether it is
considered reasonable or viewpoint-neutral, under forum
analysis. See, e.g., Perry, 460 U.S. 37; Chiu, 260 F.3d
330; May 787 F.2d 1105.
Herbert also attempts to distinguish all the forum analysis
cases from his case because those cases involve the local
school district creating its own policy, whereas here the
state statute regulates (via the PDC) local teachers. He
cites two unpublished cases from other jurisdictions for
the proposition that forum analysis is not applied where the
State seeks to regulate local government property.
Pocatello Educ. Ass’n v. Heideman, 2005 U.S. Dist. LEXIS
34494 (D. Idaho Nov. 23, 2005), and Utah Educ. Ass’n v.
Shurtleff, 2006 U.S. Dist. LEXIS 27007 (D. Utah May 3,
2006). These cases are not published appellate decisions,
but rather unpublished district court cases, and
furthermore, they have limited (if any) applicability to
the facts of this case.[fn2] Thus, we decline to consider
Heideman and Shurtleff.
After considering the various constitutional tests, we
conclude that forum analysis applies to this case because
the restriction at issue is forum-dependent and forum
analysis has been applied in factually similar cases.
Although the Fifth Circuit’s Garland decision is factually
similar and forum analysis was not applied, the Ninth
Circuit’s Berry case (along with other cases from other
circuits described above) applied forum analysis to a
factually similar case involving public employee use of
work facilities.
And while it is true that most of the existing case law
applying forum analysis has done so where the school
district itself is regulating teacher communication (as
opposed to here, where a state statute regulates teacher
communication), Herbert has not demonstrated that this
distinction — mentioned in only two unpublished cases
from other jurisdictions — has any bearing on the
facts of his case, where the State’s funds are being used
to support the school facilities and the school districts
are political subdivisions of the State. Whereas in those
two cases, the states’ connection to the object of
regulation was tenuous or nonexistent, here State funds
support public school facilities. The distinction between
State property and local property is not as clear in this
case as it was in the cases from other jurisdictions, and
thus, we do not find them persuasive. For these reasons, we
conclude that forum analysis applies here.
Forum Analysis Applied to the Statute
The PDC argues that its interpretation of the statute is
constitutional under forum analysis. Herbert does not
address whether the statute is constitutional under forum
analysis because he argues that forum analysis is not the
proper test to determine the constitutionality of this
restriction. Because we reject Herbert’s proposed test as
discussed above and conclude that forum analysis is
appropriate here, we now apply forum analysis to determine
the constitutionality of RCW 42.17.130 as applied.
Forum analysis requires a two-step inquiry. First, we must
determine the type of forum affected by the restriction
here: Is it a public forum, a limited public forum, or a
nonpublic forum? If the forum is determined to be
nonpublic, the restriction is constitutional if it is
reasonable in light of the purposes of the forum and is
viewpoint-neutral. City of Seattle v. Mighty Movers, Inc.,
152 Wn.2d 343, 350 § 51, 96 P.3d 979 (2004).
A nonpublic forum is “[p]ublic property which is not by
tradition or designation a forum for public communication.”
Perry, 460 U.S. at 46. A school mailbox system has been
held to be a nonpublic forum where there is no evidence
that the system is open to the public or that access could
be obtained without permission of the school. Perry, 460
U.S. at 47. See also Chiu, 260 F.3d 330; Educ. Minn.
Lakeville v. Indep. Sch. Dist. 194, 341 F. Supp. 2d 1070,
1075 (D. Minn. 2004). Likewise, a school computer e-mail
system has also been found to be a nonpublic forum where
there was no evidence that the facilities were open to the
public or used for public communication. Loving v. Boren,
956 F. Supp. 953, 955 (W.D. Okla. 1997).
Here, school internal mail or computer systems are not
traditionally forums for public communication, and there is
no evidence in the record that Ballard High School opened
either its mailbox or computer system to the public. Both
systems exist to facilitate communication within the
school; although the computers may be used to contact those
outside the school, there is no evidence that anyone
outside school had access to the computers or e-mail
system. We conclude that the school’s internal mail and
computer systems are nonpublic forums.
Because these forums are nonpublic, we now must determine
whether the regulation on their use is reasonable in light
of their purpose and viewpoint neutral. See Mighty Movers,
152 Wn.2d at 361. The regulation need only be reasonable,
not the most reasonable. Mighty Movers, 152 Wn.2d at 361.
Viewpoint-neutral regulations are those not in place
“merely because public officials oppose the speaker’s view.”
Perry, 460 U.S. at 46.
We conclude that the PDC’s interpretation of RCW 42.17.130
— restricting the use of the internal school
mailboxes and the e-mail system — is reasonable and
viewpoint-neutral. The internal mail and computer systems
exist to facilitate communication between teachers to
ensure efficient sharing of information, and the
restrictions on their use do not eliminate or obstruct that
purpose — except to prohibit any use that would
constitute political advocacy. The statute was enacted to
ensure that public resources are not used to provide
advantages to a particular candidate or ballot measure, and
the restriction on the use of school systems furthers that
purpose.
Also, there were permissible alternative methods of
communication that would have allowed Herbert to
communicate about the ballot measure petitions without
violating RCW 42.17.130. For example, Herbert could have
used nonwork hours to set up receptacles for petitions in
break rooms or lunchrooms used only by staff. See PDC
Guidelines for School Districts in Election Campaigns,
available at
http://www.pdc.wa.gov/guide/interpretations/pdf/01-03A.pdf
(hereinafter PDC Guidelines). The existence of alternatives
is evidence of the reasonableness of a speech restriction.
See Perry, 460 U.S. at 53 (“[T]he reasonableness of the
limitations on PLEA’s access to the school mail system is
also supported by the substantial alternative channels that
remain open for union-teacher communication to take
place.”). Simply because e-mail was the fastest way to
disseminate a message to the Ballard High School staff does
not mean that restricting Herbert’s use of it is
unreasonable. See Cornelius v. NAACP Legal Defense & Educ.
Fund, Inc., 473 U.S. 788, 809, 105 S. Ct. 3439, 87 L. Ed. 2d
567 (1985) (“The First Amendment does not demand
unrestricted access to a nonpublic forum merely because use
of that forum may be the most efficient means of delivering
the speaker’s message.”).
The PDC’s interpretation of RCW 42.17.130 is also
viewpoint-neutral because it does not favor any particular
position. While Herbert argues that it is not a
viewpoint-neutral restriction because it prohibits the use
of public facilities for political purposes — thereby
singling out political speech — restricting
categories of speech (such as political speech) is in fact
constitutional, but restricting only certain viewpoints
(such as pro-union) within a category is impermissible. See
United Black Cmty. Fund, Inc. v. City of St. Louis, 613 F.
Supp. 739, 744 (E.D. Mo. 1985) (“The decisions of the court
make it clear that the state may exclude speakers based
upon the category or type of speech involved, e.g.,
political versus nonpolitical, but may not discriminate
against particular viewpoints expressed by speakers of a
certain type.”). The PDC did not interpret the statute to
permit certain types of political viewpoints but not
others, but did restrict the use of public facilities for
any political campaign activities — regardless of
the political position.
Thus, because the school mailbox and e-mail systems are
nonpublic forums and the restrictions on their use are
reasonable and viewpoint-neutral, we conclude that the
PDC’s interpretation of RCW 42.17.130 is constitutional.
Arbitrary and Capricious
Herbert argues that because there is no rational
distinction between what RCW 42.17.130 permits and
prohibits, the order is arbitrary and capricious. The PDC
claims that there is a rational basis for making
distinctions between different forums when applying
restrictions on employee use of facilities, and thus, the
order is not arbitrary and capricious.
A court may reverse an agency action if the action was
“‘willful and unreasoning, and taken without regard to the
attending facts or circumstances.'” Children’s Hosp. & Med.
Ctr. v. Dep’t of Health, 95 Wn. App. 858, 871, 975 P.2d 567
(1999) (quoting ITT Rayonier, Inc. v. Dalman, 122 Wn.2d
801, 908, 863 P.2d 64 (1993)). “Judging whether an agency’s
decision was arbitrary and capricious involves evaluating
the evidence considered by the agency in making its
decision.” Children’s, 95 Wn. App. at 871.
Herbert points to the fact that teachers could discuss a
political campaign in the teacher lunchroom — which
uses electricity and heating and building maintenance
— but could not e-mail their colleagues about the
issue to demonstrate that there is no rational distinction
between what is permitted and what is prohibited by the
PDC’s interpretation of RCW 42.17.130. But the distinction
is this: pure political speech is permitted, but using the
facilities to deliver speech is prohibited. The use element
provides the distinction between talking in the lunchroom
and using school computers to e-mail staff members. This
distinction is rational and reasonable in light of RCW
42.17.130’s policy goals of ensuring that public facilities
are used for their intended purposes and in maintaining the
State’s political neutrality. Therefore, we conclude that
the application of the statute here is not arbitrary and
capricious because the distinctions it draws are rationally
related to the statutory restriction on the use of public
facilities for political advocacy.
Overbreadth
Herbert argues that the statute is facially overbroad
because, in its prohibition on political communication,
legitimate nonpolitical communication may be squelched as
well. Herbert analogizes the prohibitions in RCW 42.17.130
to an order restricting workplace displays of religious
materials, as addressed in Tucker v. California Dep’t of
Educ., 97 F.3d 1204 (1996). Whereas in Tucker, the order
prohibited all “religious advocacy” at any time in the
workplace — which is essentially a prohibition on
pure speech — RCW 42.17.130’s restrictions target
only the use of public facilities to support or oppose a
political campaign. Thus, the statute itself is tailored,
and WAC 390-05-271 highlights this tailoring: “[RCW
42.17.130] 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,
if such expression does not involve a use of the facilities
of a public office or agency.” Herbert’s attempt to
characterize RCW 42.17.130 as a restriction on pure speech
fails.
Herbert points to a hypothetical example of a union
newsletter that contained nonpolitical messages, but could
not be delivered by a school employee to teacher mailboxes
because it also contained political messages. But the goal
of the statute is to prohibit public employees from using
public resources to distribute political messages; the
speech itself could be distributed by another means (such
as the United States Postal Service). Thus, the speech
itself is not chilled by the statute, but only the use of
the public facilities by public employees to deliver that
speech. The statute as applied carefully delineates speech
that uses public facilities and all other types of speech.
While it is true that Herbert’s hypothetical union
newsletter containing both political and nonpolitical
messages could not be delivered by a school employee
through the internal mailbox system, nothing prohibits the
union from separating the messages. A union newsletter
containing nonpolitical messages could still be distributed
through internal mail, while political messages could be
distributed via, for example, United States mail or in a
staff room during nonwork hours. See PDC Guidelines.
Herbert’s example does not demonstrate that RCW 42.17.130
as interpreted by the PDC chills nonpolitical speech
because it only seeks to prohibit the use of facilities for
political advocacy. Political messages may be communicated
in a way that does not use public facilities, and
nonpolitical messages are not regulated by RCW 42.17.130.
Thus, the statute as applied is not overbroad.
Attorney Fees
Herbert requests attorney fees under RCW 4.84.350(1), which
provides that “a court shall award a qualified party that
prevails in a judicial review of an agency action fees and
other expenses, including reasonable attorneys’ fees,
unless the court finds that the agency action was
substantially justified[.]” A party is considered to have
prevailed if that party obtains relief on a “significant
issue.” Citizens for Fair Share v. Dep’t of Corrections,
117 Wn. App. 411, 436, 72 P.3d 206 (2003). But because we
affirm the final order, concluding that Herbert has not
prevailed on a significant issue here, he is not awarded
fees.
For the foregoing reasons, we affirm.
WE CONCUR:
[fn1] Because the parties’ appeals have been consolidated
due to essentially identical facts and they filed joint
briefing, this opinion refers to appellants as “Herbert”
hereinafter for ease of reference.
[fn2] Both of the unpublished cases address restrictions on
local government employees’ payroll deductions for
political causes. The Heideman court reviewed the
restriction on political payroll deductions under strict
scrutiny and found that it was unconstitutional because the
prohibition was not narrowly tailored to affect only local
governments, but also included private employers. In
Shurtleff, the court reviewed a state prohibition on local
government employee political payroll deductions, arguing
that because the State did not maintain or administer local
government payroll systems, it could not regulate the
payroll systems as nonpublic forums. But here, although
Washington schools are locally administered and some
funding is provided locally, school districts are a
political subdivision of the State (see RCW
28.A.315.005(2)) and the State provides some funding and
building support to local school districts (see, e.g., RCW
28A.525.020). Therefore, neither of these cases are
applicable to Herbert’s case, where the statute at issue is
narrowly tailored and the State has some involvement in
maintaining public schools.