AUTHORITY OF BOARD OF REGENTS TO LEASE PROPERTY AND FACILITIES OF THE UNIVERSITY

UNIVERSITY OF WASHINGTON - AUTHORITY OF BOARD OF REGENTS TO LEASE PROPERTY AND FACILITIES OF THE UNIVERSITY

The Board of Regents of the University has broad discretion concerning the use to be made of facilities and property of the University.

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                                                                October 15, 1959

Honorable Charles E. Odegaard
President
University of Washington
Seattle 5, Washington                                                                                                  Cite as:  AGO 59-60 No. 75

Dear Sir:

            This is in answer to your recent request for the opinion of this office on a question which we paraphrase as follows:

            Are there any legal limitations to the authority of the Board of Regents to rent the campus at the University of Washington including the building and facilities located thereon?

            We answer your question in the negative as qualified in the analysis.

                                                                     ANALYSIS

            In your letter you have advised us that the campus area of the University of Washington was established as follows:

            "One portion of the campus area was acquired under authority of Section 1, Chapter 122, Laws of 1893.  Section 6 of the same act defined the 'aim and purpose' of the University of Washington.  Section 3, Chapter 39, Laws of 1913, confirmed and validated the sale of this portion of the campus area 'for the use of the University of Washington for university purposes.'  The actual conveyance was in the form of a deed from the State of Washington to the State of Washington 'for the use and benefit  [[Orig. Op. Page 2]] of the University of Washington,' executed by the acting governor on August 18, 1913, recorded in Volume 869 of Deeds, page 209, records of King County.

            "The remainder of the basic campus area was donated to the University of Washington to 'be held and used for university purposes only' under Section 6, Chapter 3, Laws of 1907."

            The board of regents of the University of Washington consists of seven members who are appointed by the governor by and with the advice and consent of the senate.  (RCW 28.77.090)  They may be removed from office only after charges of misconduct or malfeasance have been stated in a petition for removal by the governor which must be filed with the clerk of the supreme court.  The chief justice thereupon appoints a tribunal composed of three members of the superior court to hear the charges.  (RCW 28.76.290)

            The powers and duties of the board of regents are enumerated in RCW 28.77.130.  Among its powers the board of regents is specifically authorized to:

            ". . . adopt bylaws and regulations for its own government.  The board of regents shall:

            "(1) Have full control of the university and its property of various kinds, and employ the president, members of the faculty, assistants and employees of the institution, who shall hold their positions during the pleasure of the board of regents;" (Emphasis supplied)

            Thus the regents are undoubtedly public officers, possessing broad discretionary powers by virtue of the statute, supra.  (55 Am.Jur., Universities and Colleges, § 13)  The regents, as officers of the state charged with the duty of management and control of the university and its property would not have power to abandon the property which has been set aside by the legislature for university purposes, or to otherwise dispose of it or exchange it for another site.  However, that does not mean that the board of regents is not legally authorized to determine what use of the university property or facilities constitutes its use for university purposes.

            In the case ofState ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860, 239 P. (2d) 545, the supreme court, in construing RCW 28.77.130 (1),  [[Orig. Op. Page 3]] which gives the regents full control of the university, held that the regents may exercise those powers expressly granted or necessarily or fairly implied in or incident to the powers expressly granted or those essential to the declared objects and purposes of the university.

            This office has had occasion in the past to issue several opinions interpreting the broad powers vested in the board of regents.  In one opinion written to Paul H. Johns, Secretary of the Board of Regents, on October 8, 1928, the attorney general ruled that it was within the discretion of the board of regents to expend $300.00 as a contribution to a national association for a pharmacy survey.

            In an earlier opinion dated May 20, 1904, to George H. King, member of the board of regents, we held that the regents were authorized to impose a $5.00 diploma fee under the general powers given them to enact ordinances, by-laws [[bylaws]]and regulations for the government of the university.

            During the long history of the university, only one attorney general's opinion was written which was concerned with the use which could be made of a portion of the university campus.  On February 6, 1931, this office advised W. E. Cox, assistant secretary of the board of regents, that the adaptation of a part of the university campus as a golf course, which was used in part by persons not connected with the university, did not jeopardize the state's or the university's title.  In discussing this question the writer stated as follows:

            "As we understand the facts from your letter, a corporation has been formed, known as the University Golf Club, which has all of the powers of an ordinary corporation not organized for profit, for the purpose of conducting and maintaining a golf club and golf course.  The present golf course on the University of Washington campus used by this club was developed by voluntary work on the part of private individuals interested in golf and, after the incorporation of the University Golf Club, the corporation has taken over the management and improvement of this course.  The course is used by the department of physical education of the university and by the faculty and student body of the university.  Persons not connected with the university are also permitted to play on the course upon the payment of green fees, which money goes to the University Golf Club and is used for improving the course and we presume for general expenses of the club.

             [[Orig. Op. Page 4]]

            ". . .

            "We have carefully examined the statement which you enclose and which gives the history of the title to the various university properties, including the original ten-acre tract and the present campus.  For the purpose of this opinion it is not necessary to go into detail concerning the title and just what conditions are imposed upon the use of the present campus.  It appears that this golf course is to some extent, at least, being used by the university for physical education, which, in our opinion, would be a use of this property for educational purposes just as much as property used for tennis courts, hand ball courts, base ball grounds and any other athletic field or pavilion located on the campus.  The fact that persons not in any way connected with the university are permitted to play on this course would not, in our opinion, be such use of the property as would jeopardize the title to either this property or the original ten-acre tract located in the business district of Seattle. . . ."

            That opinion concluded that since there was no lease of the property in question, the board of regents had authority at any time to restrict or prohibit the use of the property as a golf course.

            On October 10, 1956, a letter was written by this office to H. P. Everest, Vice President of the University of Washington, concerning the authority of the board of regents to lease the university stadium to a group known as Father Peyton's Family Crusade, in which he was advised that the rental of the University of Washington stadium for that purpose was not a violation of the 4th Amendment to the Constitution since the purpose of the rental was the raising of revenue and not the encouragement of religious activities.  The writer concluded as follows:

            "Constitutional questions aside, there is no doubt that the board of regents has the right to rent these facilities.  We call your attention to RCW 28.77.130 (1), which reads in part as follows:

            "'The board of regents may adopt bylaws or rules and regulations for its own government.  The board of regents shall:

             [[Orig. Op. Page 5]]

            "'(1) Have full control of the university and its property of various kinds, . . .' (Emphasis supplied)

            "The renting of the University of Washington Stadium is a matter of administrative policy, solely within the purview of the board of regents. . . ."

            The analogous term "for school purposes only" has been interpreted in several cases.  In the case ofPhillips Gas & Oil Co. v. Lingenfelter, 262 Pa. 500, the court ruled that use of that term in a deed to a parcel of land did not restrict the title of the district or prevent its leasing the property for the production of oil and gas.  In the case ofWilliams v. McKenzie, 203 Ky. 376, 262 S.W. 598 (1924) the court was concerned with a deed conveying land to school trustees so long as the property was used for common school purposes with a reversion when the property was no longer so used.  The court there stated that:

            ". . . we are unwilling to subscribe to the doctrine that, although school authorities in this commonwealth may have absolute title to land which is underlaid with valuable minerals, they may not for educational purposes enter into contracts with others to develop such minerals upon equitable terms for the benefit of the schools."  (p. 601)

            See also, 5 A.L.R. 1498, 39 A.L.R. 1340.

            We think it is clear, therefore, that the legislature has delegated to the board of regents full discretionary power over the use to be made of the university property and facilities subject only to legislative review, and that the exercise of such discretion will not meet court interference in the absence of abuse.  14 C.J.S., Colleges and Universities, § 14; State v. Regents of Univ. Systems (Ga.) 175 S.E. 567.  As we have previously pointed out the mere fact that a portion of the campus is used incidentally or occasionally by persons other than faculty members and students would not be controlling on the basic question of whether the campus is used for university purposes.  In addition, we are advised that the regents have, in fact, exercised their discretion in this matter several times in the past by renting the stadium to various groups for non-university events.

            For example, the board of regents has approved the rental of the stadium to Greater Seattle, Inc., for use for a professional football game during each and every year since 1955.  In addition, we are advised that on May 1, 1959, a statement of policy governing the use of university facilities was adopted by the board of regents which had been approved  [[Orig. Op. Page 6]] at the April 17, 1959 meeting.  The statement in question outlines the general policy as follows:

            "a. Because the University of Washington is an educational institution provided and maintained by the people of the state, its campus, buildings, properties, and facilities shall be reserved at all times for those activities which either are related directly to its educational mission or are justifiable on the basis of their contributions to the cultural, social, or economic development of the state."

            That statement of policy was reaffirmed by the board of regents at the meeting on September 9, 1959.  Such an action by the regents is clearly one within the powers granted them by the legislature and constitutes an exercise of discretion in determining administrative policy concerning the use of university facilities and property.

            We conclude, therefore, that in any specific situation which may arise concerning a proposed use of the university property or facilities, the board of regents must first of all resolve the question of whether such a use would be for university purposes.  If they resolve the question in the affirmative, then the regents must determine, in the exercise of their discretion, what constitutes a reasonable use for a reasonable period of time.  What constitutes a reasonable length of time could vary depending upon the specific facility involved and the nature of the proposed use.

            Accordingly, it is the opinion of this office, subject to the foregoing, that the board of regents of the University of Washington has been given complete discretion over the use of the property of the university and they may make such use of the property as in their discretion will promote the best interests of the university.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General