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AGO 1974 No. 4 - January 31, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

                                                                 January 31, 1974

HonorableMac E. Benitz
State Representative, District 8‑B
Legislative Building
Olympia, Washington 98504                                                                         Cite as:AGO 1974 No. 4

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a number of questions relating to the conduct of adult education programs by school districts.  We paraphrase your questions as follows:

            (1) May a school district, in providing community education programs on a nontuition and noncredit basis pursuant to § 1, chapter 138, Laws of 1973, include within such programs one or more courses of study which come within the purview of the term "vocational education" as defined in RCW 28A.09.120 (1)?

            (2) In view of the fact that chapter 138, Laws of 1973, only authorizes a school district to provide community education programs on a noncredit and nontuition basis, what authority is there under any other existing state statutes for a school district which had not established a vocational‑technical institute under former RCW 28.09.050 prior to its repeal by § 73, chapter 8, Laws of 1967, Ex. Sess., either to charge tuition or to grant credit to adults [Orig. Op. Page 3] enrolled in a vocational education course being conducted by it outside of its regular K‑12 (elementary and secondary school) programs?

            (3) If a school district, having previously operated an adult education program in accordance with a contract with a community college district under RCW 28B.50.530, terminates that contract and then proceeds to provide the same courses of study itself on a nontuition and noncredit basis pursuant to § 1, chapter 138, Laws of 1973, will the program in question then constitute a "new community education program" so as to be ineligible for immediate state funding to begin it under the final proviso of that statute?

            (4) In order to adopt valid rules for the conduct and operation of community education programs as authorized by chapter 138, Laws of 1973, must the state superintendent of public instruction have solicited and received the approval of those rules in their final form from the state board for community college education, or does this statute, instead, merely require that the state superintendent shall have asked for or received suggestions from the state board with respect to the content of those rules prior to their final adoption?

            (5) To what extent, if at all, may the legislature expand upon the substantive authority granted to school districts by chapter 138, Laws of 1973, by means of provisions contained in an appropriations act?

            (6) May the coordinating council for occupational education, by refusing to approve an expenditure of federal funds which it administers on the ground that the proposed expenditure is in violation of the state plan for vocational education, effectively preclude that expenditure from being made?[1]

            [Orig. Op. Page 4]

            We answer questions (1), (3) and (6) in the affirmative, and questions (2), (4) and (5) in the manner set forth in our analysis.

                                                                     ANALYSIS

 

            By its enactment of chapter 138, Laws of 1973, the legislature provided that:

            "Notwithstanding the provisions of RCW 28B.50.250, 28B.50.530 or any other law, rule, or regulation,any school district is authorized to provide community education programs in the form of instructional, recreational and/or service programs on a noncredit and nontuition basis, excluding fees for supplies, materials, or instructor costs, for the purpose of stimulating the full educational potential and meeting the needs of the  district's residents of all ages, and making the fullest use of the district's school facilities: PROVIDED, That such programs shall be consistent with rules and regulations promulgated by the state superintendent of public instruction governing cooperation between common schools, community college districts, and other civic and governmental organizations which shall have been developed in cooperation with the state board for community college education and shall be programs receiving the approval of said superintendent: PROVIDED FURTHER, That no state funds appropriated to the common [Orig. Op. Page 5] schools or the superintendent of public instruction's office shall be used to begin new community education programs or expand existing community education programs." (Emphasis supplied.)

             Question (1):

            Your first question asks whether, in providing community education programs on a nontuition and noncredit basis under this new law, a school district may include within such programs one or more courses of study which come within the purview of the term "vocational education" as defined in RCW 28A.09.120 (1).

            In considering both this and your remaining questions in this opinion we must, of course, continually bear in mind the proposition that school districts in this state are municipal corporations and, as such, they may exercise only those powers expressly granted them by the legislature, those necessarily or fairly implied or incident to the powers granted, and those essential to the declared objects and purposes of such municipal corporations.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930); andJuntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P.2d 78 (1934). The same basic principle also applies to the state agencies which your questions touch upon.State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952); andState ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            The portions of chapter 138, supra, which we have underscored in above quoting it are the critical ones, so far as your first question is concerned, and are the basis for our affirmative response to that question.

            As expressed in the statute itself, the purposes of a program initiated under the authority granted to all school districts by it are two‑fold:  First, to stimulate "thefull educational potential" and  meet "the needs of the district's residents of all ages;" and second, to make "the fullest use of the district's school facilities. . . ." (Emphasis supplied.)

            This statutory language manifests a clear legislative intent to advance certain very broad educational goals by making school district facilities readily available to all district [Orig. Op. Page 6] residents, regardless of age or previous educational background.  This intent is emphasized by the qualification that programs provided under the authority of the act must be provided on a "noncredit and nontuition basis, excluding fees for supplies, materials or instructor costs. . . ." Thus, the aim of the statute is to make "community education programs" available to as broad a spectrum of the district populace as possible.

            This broad grant of authority to school districts to provide "community education programs" is further emphasized by the scope given to the term "community education programs" itself.  Although there is no specific definition of that term in chapter 138, supra, the statute provides that "community education programs" may take the form of "instructional, recreational and/or service programs. . . ."  Again, the language employed would appear to evince a legislative intent to grant broad authority to school districts to afford educational opportunities in a wide range of subject areas.

            With these points in mind we turn, next, to the preexisting provisions of RCW 28A.09.120 (1) wherein the term "vocational education" is defined for the purposes of Title 28A RCW to mean:

            ". . . a planned series of learning experiences, the specific objective of which is to prepare persons to enter, continue in or upgrade themselves in gainful employment in recognized occupations and homemaking, which are not designated as professional or requiring a baccalaureate or higher degree."

            To reason that this term and the term "community education programs" as used in chapter 138,supra, are, somehow, mutually exclusive of each other would, in our opinion, unduly frustrate the obvious purposes of this new, 1973, enactment. That is to say, if all of the subjects includable within the foregoing definition of "vocational education" were thereby to be deemed to have been excluded by the legislature from the permissible scope of a "community education" program under chapter 138, the result most certainly would be far short of the legislature's stated objective by that act (here repeated for ease of reference) of

            [Orig. Op. Page 7]

            ". . . stimulating the full educational potential and meeting the needs of the district's residents of all ages, and making the fullest use of the district's school facilities: . . ."

            Accordingly, consistent with the well‑established principle that statutes are to be construed in the light of the object which they were intended to accomplish, we reject that line of reasoning and, instead, advise you that, in our opinion, a school district, in providing "community education programs" pursuant to chapter 138, Laws of 1973, supra, may include within those programs one or more courses which come within the purview of the term "vocational education" as defined in RCW 28A.09.120 (1), supra.

            Question (2):

            Your second question takes cognizance of the fact that chapter 138,supra, only authorizes a school district to provide community education programs on a noncredit and nontuition basis.  In view of this you ask what authority there is under any other existing state statutes for a school district which had not established a vocational‑technical institute under former RCW 28.09.050 prior to its repeal by § 73, chapter 8, Laws of 1967, Ex. Sess., either to charge tuition or to grant credit to adults enrolled in a vocational education course being conducted by it outside of its regular K‑12 (elementary and secondary school) programs.

            In responding to this question let us first explain the qualification in it with respect to vocational‑technical institutes.  Prior to the enactment of the Community College Act of 1967, chapter 8, Laws of 1967, Ex. Sess., all school districts in this state (along with other designated educational institutions) were authorized by a statute then codified as RCW 28.09.050 to

            ". . . establish and maintain vocational schools or classes giving instruction of less than college grade in agriculture, trades and industries, distributive education, or in home economics, . . ."

            As a part of the 1967 act transferring control over the community college system from local school districts to the state, however, the legislature repealed this statute and in its place enacted a new provision to be noted below. [Orig. Op. Page 8] But at the same time, by § 27 of this act (now RCW 28B.50.770) the legislature provided that:

            "Notwithstanding any other provisions of this chapter, the board of directors of any public school district wherein there is an existing vocational‑technical institute, may elect to have such vocational‑technical institute remain a part of the public school system rather than have such institute become a part of the state community college system . . ."

            Pursuant to this authorization we are advised that there are, at the present time, some five school districts which had established and were operating vocational‑technical institutes prior to the repeal of former RCW 28.09.050,supra, that have elected to keep them as school district programs rather than to turn them over to the community college system. Because we do not understand your question to involve one of those five districts, however, we have so paraphrased it as to exclude them from the scope of this opinion.

            In repealing RCW 28.09.050, supra, the 1967 legislature replaced it with a new statute, § 24, chapter 8, Laws of 1967, Ex. Sess., stating that:

            "The state board of education shall have the power to authorize the school districts to offer vocational education programs which are a part of the high school curriculum and to offer adult education and post‑high school vocational educational programs which are not in conflict with community college programs, as determined by the coordinating council."

            Then, in 1969, the legislature amended this statute, now codified as RCW 28A.09.100, to remove all of its references to adult education and post‑high school education[2] ‑ after which, in 1971, it inserted the term "elementary [Orig. Op. Page 9] and secondary schools" in place of "high school"[3] so that as of now, this statute reads as follows:

            "The state board of education shall have the power to authorize the school districts to offer vocational education programs in the elementary and secondary schools and the state board shall adopt rules and regulations to implement such programs and shall also adopt such rules and regulations for programs authorized by RCW 28A.58.245 and 28B.50.770."

            Also as a part of its 1969 amendatory act the legislature, by § 25, chapter 261, Laws of 1969, Ex. Sess., amended the preexisting provisions of RCW 28B.50.250 (a part of the 1967 community college act) to read as follows:

            "The state board for community college education and the state board of education are hereby authorized to permit, on an ad hoc basis, the common school districts to conduct pursuant to RCW 28B.50.530 a program in adult education in behalf of a community college district when such program will not conflict with existing programs of the same nature and in the same geographical area conducted by the community college districts: Provided, That federal programs for adult education which are funded directly to the state board of education shall be administered by the superintendent of public instruction in cooperation with the director of the state board for community college education."

            In addition, by § 18 of this act it expressly defined the term "adult education" to mean:

            ". . . all education or instruction, including academic, vocational education or training, and 'occupational education' provided by public educational institutions, [Orig. Op. Page 10] including common school districts for persons who are eighteen years of age and over or who hold a high school diploma or certificate: Provided, That 'adult education' shall not include academic education or instruction for persons under twenty‑one years of age who do not hold a high school degree or diploma and who are attending a public high school for the sole purpose of obtaining a high school diploma or certificate:Provided, further, That 'adult education' shall not include education or instruction provided by any four year public institution of higher education:And provided further, That adult education shall not include education or instruction provided by a vocational‑technical institute." (Emphasis supplied.)

            Lastly to be noted is RCW 28B.50.530, referred to in RCW 28B.50.250,supra, and codifying § 53 of the 1967 community college act.  This statute provides that:

            "The district boards of trustees and the common school boards are hereby authorized to enter into agreements for the use by either of the other's services, facilities or equipment and for the presentation of courses of either for students of the other where such agreements are deemed to be in the best interests of the education of the students involved."

            [Orig. Op. Page 10]

            Since RCW 28A.09.100,supra, as amended in 1969 and 1971, now relates only to the unilateral conduct of vocational education programs by a school district within its established elementary and secondary schools, whereas your question is expressly directed to the instruction of adults "outside" of the regular K‑12 programs of these schools, what all of the foregoing means, in our opinion, is this: If a school district not operating a vocational‑technical institute under former RCW 28.09.050, supra, as permitted by RCW 28B.50.770, supra, desires to offer the type of adult vocational education program contemplated by your second question, as above paraphrased, it may only do so in the manner provided for by the three sections of the community college act last above quoted; [Orig. Op. Page 11] i.e., (1) with the authorization of both the state board for community college education and the state board of education; (2) in behalf of a community college district pursuant to a contract as authorized by RCW 28B.50.530; and (3) when such "adult education" programs would not conflict with existing programs of the same nature and in the same geographical area conducted by the community college districts.

            Only by complying with the provisions of these statutes, then, may a school district currently charge tuition or grant academic credit to adults enrolled in a vocational education course being conducted by it outside of its regular K‑12 (elementary and secondary school) programs.

            Question (3):

           Next you have asked us to assume the case of a school district whichis currently operating an adult education program in accordance with a contract with a community college district under RCW 28B.50.530, supra. If it terminates that contract and then proceeds to provide the same courses of study itself on a nontuition and noncredit basis pursuant to chapter 138, Laws of 1973, supra, you have asked us whether the program in question will then constitute a "new community education program" so as to be ineligible for immediate state funding to begin it under so much of chapter 138, supra, as states that:

            ". . . no state funds appropriated to the common schools or the superintendent of public instruction's office shall be used to begin new community education programs or expand existing community education programs." (Emphasis supplied.)

            Based upon our answers to your first two questions, we conclude that the answer to your third question must be "yes." By definition, a "community education program" is not the same thing as an "adult education program" carried on under the provisions of RCW 28B.50.250, supra. When acting under this latter statute, the school district is not acting on its own; instead, it is conducting the program "in behalf of a community college district . . ." From this language it may be inferred that the adult education program is really a program of the community college district rather than one of the school district. At the most, such a [Orig. Op. Page 12] program could only be said to be a joint program of the school district and the community college district.

            [Orig. Op. Page 12]

            By contrast, a community education program carried on under chapter 138,supra, is clearly a program solely of the school district.  Moreover, whereas tuition and/or academic credit may be included in an adult education program, we have seen that chapter 138, supra, expressly requires that community education programs be provided only on a nontuition and noncredit basis.

            We are of the opinion, therefore, that if a school district now operating an adult education program in accordance with a contract with a community college district terminates that contract and proceeds to offer the same courses of study itself on a noncredit and nontuition basis pursuant to chapter 138,supra, the resulting program will constitute a "new community education program."  Just because the subject matter taught is the same, it does not follow that theprogram is the same, and certainly, it is the total nature of the program and not merely the content of its component courses which must be considered since the term "program" is the one at issue. Quite clearly, one element of a "program" would be the content of the subject matter taught, but that does not mean that two programs involving the same subject matter thereby are the same single program. And, as already indicated, there are a variety of distinctions between an adult education program under RCW 28B.50.250 and 28B.50.530, supra, and a community education program which make these two types of programs substantially different innature.

            Given that fact, it thus is our opinion that if a school district terminates an adult education program now being conducted by it by contract with a community college district, and then commences a community education program under chapter 138,supra, it will be beginning a "new" program within the meaning of that 1973 act rather than continuing the same program ‑ and, thus, it will be ineligible for state funding until after the initial acts of beginning the program have been completed by the district at its own expense and the program is in operation.[4]

            [Orig. Op. Page 13]

            Question (4):

            Your next question relates to so much of chapter 138, supra, as states that any community education programs offered by school districts thereunder

            ". . . shall be consistent with rules and regulations promulgated by the state superintendent of public instruction governing cooperation between common schools, community college districts, and other civic and governmental organizations which shall have beendeveloped in cooperation with the state board for community college education and shall be programs [Orig. Op. Page 13] receiving the approval of said superintendent: . . ." (Emphasis supplied.)

            Your question regarding this portion of the statute, here repeated for ease of reference, is as follows:

            In order to adopt valid rules for the conduct and operation of community education programs as authorized by chapter 138, Laws of 1973, must the state superintendent of public instruction have solicited and received the approval of those rules in their final form from the state board for community college education, or does this statute, instead, merely require that the state superintendent shall have asked for or received suggestions from the state board with respect to the content of those rules prior to their final adoption?

            Significantly, the statute quoted above states that the actual promulgation of those rules and regulations will be by the state superintendent of public instruction; there is no indication in it that joint action by the state superintendent and the state board for community college education is contemplated in such promulgation. Instead, it is in the development of those rules and regulations that cooperation is required. Therefore, it is our opinion that while there must be cooperation between the state superintendent and the state board of community college education in formulating and developing the rules and regulations which are contemplated by this portion of chapter 138, supra, the ultimate decision as to their form and content, as promulgated, is solely that of the state superintendent of public instruction. It thus [Orig. Op. Page 14] follows that valid rules and regulations may be adopted by the state superintendent without prior approval by the state board for community college education.

            Question (5):

            Next, you have asked us:

            To what extent, if at all, may the legislature expand upon the substantive authority granted to school districts by chapter 138, Laws of 1973, by means of provisions contained in an appropriations act?

            It is well established that the mere act of making an appropriation in the ordinary form will not result in an expansion of the substantive authority of a public agency. As was stated in State ex rel. Wash. Toll v. Yelle, 54 Wn.2d 545, 551, 342 P.2d 588 (1959).

            "'. . . An appropriation bill is not a law in its ordinary sense. It is not a rule of action. It has no moral or divine sanction. It defines no rights and punishes no wrongs. It is purelylex scripta. It is a means only to the enforcement of law, the maintenance of good order, and the life of the state government. Such bills pertain only to the administrative functions of government . . .'"

            This does not mean, however, that a grant of substantive authority may never be included within the body of an appropriations bill. The [Orig. Op. Page 14] only constitutional restraint against such an inclusion is Article II, § 19 of the

State Constitution which provides that:

            "No bill shall embrace more than one subject, and that shall be expressed in the title."

            It thus would be possible to satisfy this requirement simply by drafting a bill title that is broad enough to include more than a mere appropriation. See, e.g., chapter 275, Laws of 1971, Ex. Sess. In effect, then, the act would becomean act containing an appropriation, rather than an appropriations act. By utilizing this technique it would, [Orig. Op. Page 15] therefore, be possible for the legislature to include an expansion of the substantive authority granted to school districts by chapter 138, Laws of 1973, supra, in an act also containing one or more appropriation items.

            Question (6):

            Your final question, as above paraphrased, deals with a somewhat different subject. Referring to the coordinating council for occupational education which was established by RCW 28B.50.160, you have asked whether this council, by refusing to approve an expenditure of federal funds which it administers on the ground that the proposed expenditure is in violation of the state plan for vocational education, may effectively preclude that expenditure from being made?

            Referring to the legislation establishing and defining the powers and duties of the coordinating council, we find that there are two statutes most pertinent to this question: RCW 28B.50.160 and RCW 28B.50.220. The first of these statutes, as above noted, establishes the coordinating council and in so doing designates it as the sole state agency for the receipt of federal vocational education funds. In addition, the statute empowers the council to carry out the applicable acts of Congress relating to the distribution of federal vocational funds and to supervise the administration of the state plan for vocational education to the extent necessary to comply with such acts, as follows:

            "In order to facilitate the greatest possible coordination and cooperation between the agencies of the state and the federal government, and to carry out the purposes and intent of this chapter and the acts of Congress relating to distribution of federal funds for the support of vocational education, there is created the coordinating council for occupational education to serve as the sole agency of the state for the receipt of federal funds made available by acts of Congress for vocational education within this state.

            "Consistent with the requirements of Public Law 88‑210, and other acts of Congress dealing with vocational education, and to the extent necessary to [Orig. Op. Page 16] comply therewith the coordinating council shall have power to supervise the administration of the state plan for vocational education in the community college system; and, subject to the supervisory powers of the state superintendent of public instruction, the coordinating council shall have the power to administer the state plan for vocational education in the public schools of the state."

            We are of the opinion that this grant of authority to supervise the administration of the state plan for vocational education is broad enough to include the authority to preclude the expenditure of federal funds in connection with a program which is in violation of the state plan. This conclusion is supported by the fact that the coordinating council is designated as thesole agency of the state for the receipt of federal funds made available for vocational education.

            In turn, RCW 28B.50.220 provides that:

            "In addition to its other powers and duties, the coordinating council shall have the following powers and duties:

            "(1) To prepare, adopt and certify the state plan for vocational education;

            "(2) To adopt necessary rules and regulations and do such other acts not forbidden by law necessary to carry out the provisions of this chapter and the federal acts:Provided, That the coordinating council shall meet, consult and cooperate with the office of the state superintendent of public instruction on all matters falling within his constitutional supervisory powers in advance of exercising any of the powers or duties granted to the council by this section;

            "(3) To carry out the aims and purposes of the acts of Congress pertaining to vocational education."

            [Orig. Op. Page 17]

            We believe that the phrase ". . . and do such other acts not forbidden by law necessary to carry out the provisions of this chapter and the federal acts . . ." would include the act of refusing to approve the expenditure of federal funds in cases where the proposed expenditure would be in violation of the state plan for vocational education. In fact, such refusal would appear to be aduty of the coordinating council.

            Finally, RCW 28B.50.230 (2) provides that

            "In determining the allocation of funds, the council shall comply with federal statute."

            Implicit in this section is the authority of the coordinating councilto determine the allocation of federal funds. Therefore, we are of the opinion that the coordinating council may effectively preclude a proposed expenditure of federal funds, by refusing to approve the expenditure on the ground that it is in violation of the state plan for vocational education.

            We trust the foregoing will be of assistance to you.

Very truly yours,


SLADE GORTON
Attorney General


JOHN R. PETTIT
Assistant Attorney General



    [1]In thus paraphrasing your questions, we acknowledge an additional question contained in your letter with respect to the legal "standing" of the coordinating council for occupational education to maintain a lawsuit aimed at challenging either the operation of a community education program by a school district or the funding of such a program by the state superintendent of public instruction ‑ on the ground that the program in question is not being conducted in the manner contemplated by chapter 138, Laws of 1973. While we will, of course, be most happy to provide legal advice to the coordinating council with respect to this question should any basis for such legal action ever arise, we do not believe it appropriate to deal with it in a formal attorney general's opinion such as this. It has long been the policy of this office in connection with such opinions not to there pass upon any questions which presuppose or assume an intent on the part of a public official to perform an illegal act.

    [2]Section 24, chapter 261, Laws of 1969, Ex. Sess.

    [3]Section 1, chapter 285, Laws of 1971, Ex. Sess.

    [4]By the same token, any school district which may have had a community education program of some sort in existence as of the effective date of chapter 138, supra, while eligible for state funds to continue that program, will not be eligible for such funds to expand it.

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