Wash. commissions seek more government oversight
The goal of the amended version of HB 1361 is to provide more government oversight of the commissions. By doing that, said Bill Brookreson, deputy director of the state’s Agriculture Department, collecting assessments would fall under “government speech” and therefore not be a violation of free speech.
In the Washington Apple Commission case, U.S. District Judge Edward Shea said that mandatory assessments that fund generic advertising and promotions are “compelled speech” that violate the constitutional free-speech rights of the growers.
“All of the commissions are concerned that assessments could be considered unconstitutional,” said Brookreson.
Henry Bierlink, executive director of the state’s Red Raspberry Commission, agrees.
“There is a very real question about whether we should levy assessments this summer,” he said.
Mary Beth Lang, policy adviser for the Agriculture Department, said the new legislation is patterned after the Federal Beef Act, a law the National Beef Board operates under.
“That law was upheld by the court,” she said. “The commissions decided it would be good if they looked more like that.”
In working on the legislation, the commissions and the Agriculture Department also reviewed the Washington Apple Commission decision, as well as a recent ruling that said the California Table Grape Commission’s assessments were unconstitutional.
“We decided that it would be in the best interest of the state’s commissions to make a stronger case that commissions are government entities,” said Lang.
Key to all of this, of course, is to boost government oversight.
Here are some of the ways that amendments to HB 1361 would do that.
n The director of the state’s Agriculture Department would appoint one member of the department to represent the director on each commission board. The director’s representative would be a voting member of each commodity commission.
n Each commodity commission would develop and submit to the department director for approval any plans, programs and projects on a range of activities. These activities include advertising or promotion plans and market research projects.
n The department director would review each commission’s advertising or promotion program to ensure that no false claims are being made about the commodity.
n Prior to the beginning of its fiscal year, each commission would prepare and submit to the director for approval its research plan, its commodity-related education and training plan, and its budget on a fiscal period basis.
n The department director would either appoint all of the commission board members or a majority of them.
In the Washington Apple Commission ruling, the judge said that the job of recreating commissions to meet constitutional requirements is a task best left to the state legislatures and should be based on public debate.
Of the state’s commissions, the Apple, Beef, Tree Fruit, Dairy Products and Wine commissions are set up under separate state laws.
The Alfalfa Seed, Asparagus, Blueberry, Canola, Cranberry, Dry Pea and Lentil, Hop, Mint, Salmon, Red Raspberry, Turf Grass and Strawberry commissions are set up under RCW (Revised Code of Washington) 1565.
The Barley, Bulb, Fryer, Potato, Seed Potato and Wheat commissions are set up under RCW 1566.
The new legislation includes changes for all of the commissions under RCWs 1565 and 1566, as well as for the Beef and Dairy Products commissions. Just recently, the Wine Commission also decided to get on board.
Because the Washington Apple Commission is still weighing legal options and because the Tree Fruit Commission’s focus is on research, not promotion, these two commissions are not part of the legislative effort.
Pat Boss, executive director of the state’s Potato Commission, said the original bill HB 1361, which addressed pest control, royalty and auditing issues, was submitted to the Legislature two months ago. After the Washington Apple Commission decision, the industry got together to amend the bill in hopes that by doing so, commissions can meet the legal requirements of “government speech.”
“It’s a very modest fix,” said Boss. “It’s going to address the issues but not result in gigantic changes for the commissions.”
Brookreson pointed out that there’s no guarantee that the legislation will make commissions bulletproof from lawsuits.
“But it’s our best understanding of what the courts would want,” he said.
The amended bill, which can be viewed at www.leg.wa.gov, is now on its way to the full Senate for a vote.
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