APPLICABILITY OF MINORITY AND WOMEN'S BUSINESS ENTERPRISES ACT

OFFICES AND OFFICERS ‑- STATE ‑- CORRECTIONS STANDARDS BOARD ‑- JAILS ‑- COUNTIES ‑- CITIES ‑- APPLICABILITY OF MINORITY AND WOMEN'S BUSINESS ENTERPRISES ACT

(1) The State Corrections Standards Board is not required by chapter 120, Laws of 1983, the Minority and Women's Business Enterprises Act, to fix goals which would, in turn, necessitate that specified portions of the funds which are awarded by it to local governments be set aside for minority or women-owned businesses.

 (2) Chapter 120, Laws of 1983, the Minority and Women's Business Enterprises Act, applies only to public works projects undertaken by the State (or an agency thereof) itself and, therefore, does not impose any additional duties or responsibilities on local jurisdictions with respect to jail construction and renovation funded through the State Corrections Standards Board.

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                                                                  March 27, 1984

Honorable Larry V. Erickson
Chairman
Corrections Standards Board
110 East Fifth, M.S. GB‑12
Olympia, Washington 98504

Cite as:  AGO 1984 No. 11                                                                                                                

 Dear Sir:

             By letter previously acknowledged you requested the opinion of this office on two questions involving possible duties or responsibilities of the Corrections Standards Board under chapter 120, Laws of 1983, the Minority and Women's Business Enterprises Act.  Specifically, you asked:

             "1) Does Ch. 120, Laws of 1983 impose any additional duties or responsibilities on the Corrections Standards Board with respect to its funding of local jail construction?

             "2) Does Ch. 120, Laws of 1983 impose any additional duties or responsibilities on local jurisdictions with respect to jail construction and renovation funded through the Corrections Standards Board?"

              [[Orig. Op. Page 2]]

            We answer your first question in the manner set forth in our analysis and your second question in the negative for the reasons set forth therein.

                                                                      ANALYSIS

             The Minority and Women's Business Enterprises Act, now codified as chapter 39.19 RCW, was enacted by the 1983 legislature as chapter 120, Laws of 1983.  A principle purpose of that act is to provide an increased opportunity for minority and women-owned businesses to participate in ". . . public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector."  RCW 39.19.010.  That objective is to be implemented through the establishment of goals‑-by the Office of Minority and Women's Business Enterprises which is thereby created‑-for participation by protected businesses in public works contracts and contracts for goods and services which are entered into by state agencies.  See, RCW 39.19.030(4).  In turn, RCW 39.19.060 provides that:

             "Each state agency and educational institution shall comply with the annual goals established for that agency or institution under this chapter for public works and procuring goods and services.  This chapter applies to all public works and procurement by state agencies and educational institutions, including all contracts and other procurement under chapters 28B.10, 39.04, 39.29, 43.19, and 47.28 RCW."

             Through this process, certain percentages of state contracts are to be let to businesses owned by minorities and/or women.

            The Corrections Standards Board is clearly a "state agency" under the definition in RCW 39.19.020(9) which reads:

             "'State agency' includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions."

             The Corrections Standards Board, as successor to the Washington State Jails Commission (see, RCW 70.48.035), is responsible for the authorization of payments to local governments for the construction or remodelling of local jails when such projects are necessary to comply with the physical plant standards for jails adopted by the board.  See, RCW 70.48.010 and  [[Orig. Op. Page 3]] RCW 70.48.050(5).  The source of that funding is the local jail improvement and construction account in the state treasury, which, in turn, is funded from the proceeds of bond sales authorized by RCW 70.48.260,et seq., and RCW 70.48.020.

             Question (1):

             Your first question, repeated for ease of reference, asks:

             "Does Ch. 120, Laws of 1983 impose any additional duties or responsibilities on the Corrections Standards Board with respect to its funding of local jail construction?"

             In essence, as we understand it, you are thereby asking whether the Corrections Standards Board is required to fix goals so as to necessitate that specified portions of the funds which are awarded by it to local governments be set aside for minority or women-owned businesses.

             In addition to RCW 39.16.060 [39.19.060], supra, we also note, at this point, the definition of "public works" which appears in RCW 39.19.020(8) as follows:

             "'Public works' means all work, construction, highway and ferry construction, alteration, repair, or improvement other than ordinary maintenance, which a state agency or educational institution is authorized or required by law to undertake."

             This definition, like the substantive requirement in RCW 39.19.060,supra, is, by its express terms, limited to the activities of state agencies and educational institutions‑-as distinguished from counties, cities or towns, or other local governmental bodies.  Moreover, nowhere in the act is there any indication of legislative intent, express or implied, that the act also be applied to such local governmental bodies andtheir local public works projects.  Indeed, throughout the act reference is made only to state projects.  RCW 39.19.010 speaks of the basic goal of the legislation as "[a]n increased level of participation by minority and women-owned businesses . . . at all levels ofstate government . . ."  (Emphasis supplied); and see also, in the same vein, RCW 39.19.020(9), RCW 39.19.030(3), (4) and (5), and RCW 39.19.060.

             A public work, for purposes of the act, is a project which a "state agency . . . is authorized or required by law to undertake."  [[Orig. Op. Page 4]] While the Corrections Standards Board is authorized by law to approve funding for local jail construction or remodelling, the board itself is not "authorized or required" to "undertake" any jail project.  The decision to initiate a jail project remains with the particular local governmental body involved.  RCW 70.48.180.  In short, a local jail project is simply not a "public work" under the provisions of this particular legislation.

             We therefore would advise you, in response to your first question, that the Correction Standards Board is not required by anything in chapter 120, Laws of 1983,supra, to fix goals which would, in turn, necessitate that specified portions of the funds which are awarded by it to local governments be set aside for minority or women-owned businesses.

             Question (2):

             For the same reason we also answer your second question in the negative.  By that question you asked:

             "Does Ch. 120, Laws of 1983 impose any additional duties or responsibilities on local jurisdictions with respect to jail construction and renovation funded through the Corrections Standards Board?"

             As above indicated, we believe the legislature meant to apply the requirements of the subject legislation only to projects or contracts which are under the direct and continuing control of state agencies and educational institutions.  Conversely, it did not intend that the provisions of the act apply, either directly or indirectly (through controlling pass through monies), to contracts which are entered into at the local governmental level.  Therefore, we likewise conclude that the act does not apply directly to jail construction or remodelling projects which are entered into by units of local government.

              [[Orig. Op. Page 5]]

            We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General