COMMUNITY COLLEGES ‑- EMPLOYEES ‑- PROFESSIONAL NEGOTIATIONS ‑- DELEGATION OF DUTY TO NEGOTIATE

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- PROFESSIONAL NEGOTIATIONS ‑- DELEGATION OF DUTY TO NEGOTIATE

The board of trustees of a community college may delegate its duty to meet, confer and negotiate with representatives of its academic employees under chapter 196, Laws of 1971, 1st Ex. Sess., to a committee composed of members of the board; however, it may not delegate this function to a negotiating committee that consists either partly or entirely of non-board members.

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                                                                 August 15, 1972

Honorable King Lysen
State Representative, 31st District
P.O. Box 66173
Seattle, Washington 98166

                                                                                                                 Cite as:  AGO 1972 No. 17

Dear Sir:

            By letter previously acknowledged you requested the opinion on two questions dealing with "professional negotiations" by the employees of a community college under the provisions of chapter 28B.52 RCW (codifying chapter 196, Laws of 1971, 1st Ex. Sess.).  Your questions regarding this chapter read as follows:

            (1) "In Chapter 196, Laws of 1971, extraordinary session, Section 3, does the term 'committee thereof' mean a committee consisting of Board of Trustee (Board) members only, a committee consisting of Board members and others appointed by the Board, or a committee of non-Board members?"

            (2) "May a community college board of trustees legally delegate its authority to a negotiating committee that consists entirely of non-board members?"

            We answer question (1) in the manner set forth in our analysis and question (2) in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Prior to the establishment of the present state system of community colleges under chapter 8, Laws of 1967, Ex. Sess., these institutions were operated throughout the state by local school districts.  Accordingly, their academic employees were then covered by the provisions of chapter 143, Laws of 1965, commonly known as the "professional negotiations" act, § 3 of which (now codified as RCW 28B.52.030) provides as follows:

            "Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the certificated employees within its school district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of directors of the school district or a committee thereof to communicate the considered professional judgment of the certificated staff prior to the final adoption by the board of proposed school policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties."

            In an opinion dated October 17, 1967, to Elmer W. Stanley, Executive Secretary, Washington State School Directors Association, copy enclosed, we concluded that the phrase "a committee thereof" as used in this 1965 statute refers to

            ". . . a committee of the board of directors of the school district; i.e., a committee composed of members of the board."

            In addition, we advised that although the requirement that the employee representative must proceed through "established administrative channels" would permit a school board to provide for initial conferences at a lesser level

            ". . . after proceeding through these 'established administrative channels,' the representatives of the employee organization have a clear statutory right if they elect  [[Orig. Op. Page 3]] to exercise it to meet, confer and negotiate with the board of directors itself, or a committee thereof; i.e., composed of members of the school board prior to the final adoption of policies as contemplated by RCW 28.72.030,supra."

            Upon transferring the community colleges from the control of local school districts to the state, the legislature provided in § 58, chapter 8, Laws of 1967, Ex. Sess., that:

            "Whenever the provisions of the professional negotiations law, chapter 28.72 RCW, as now or hereafter amended, applies to the faculty and staff of the said community colleges and vocational-technical institutes, it shall continue to apply after the effective date of this act, but negotiations and appeals shall be conducted with the respective board and the director of the state board for community college education."

            Two years later, in 1969, the legislature clarified the scope of this provision by amending it to read as follows:

            "((Whenever the provisions of)) The professional negotiations law, chapter 28.72 RCW, as now or hereafter amended, applies to the faculty and staff of ((the said)) community colleges and vocational-technical institutes, ((it shall continue to apply after April 3, 1967,)) but negotiations and appeals shall be conducted with the respective board and the director of the state board for community college education."1/

             And then, in 1971 ‑ apparently believing that the faculty members of the community colleges should be totally divorced from the local school district employees' "professional negotiations" act ‑ the legislature withdrew these personnel from that act and placed them under a new law, chapter 196, Laws of 1971, 1st Ex. Sess. (codified as chapter 28B.52 RCW), to which your questions are directed.

             [[Orig. Op. Page 4]]

            Except for its references to community college employees and boards, § 3 of this act is virtually identical to § 3, chapter 143, Laws of 1965, Ex. Sess.,supra; it provides that:

            "Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the academic employees within its community college district, shall have the right, after using established administrative channels, to meet, confer and negotiatewith the board of trustees of the community college district or a committee thereof to communicate the considered professional judgment of the academic staff prior to the final adoption by the board of proposed community college district policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties."  (Emphasis supplied.)

            Question (1):

            On the basis of the same reasoning as was involved in our opinion of October 17, 1967, to Elmer W. Stanley, supra, we think that the term "a committee thereof" appearing in § 3, chapter 196, supra, must be taken to mean a committee consisting of members of the board of trustees of the subject college ‑ and we answer your first question accordingly.

            Question (2):

            If § 3, chapter 196,supra, were the only statute to be considered in answering your second question relating to the delegability of the negotiating function to a committee composed of nonboard members, our task in disposing of this question would be no more difficult than was that of answering your first question.  However, in the case of community college boards of trustees there is another statutory provision which also must be noted; namely, § 21, chapter 57, Laws of 1971, 1st Ex. Sess. (now codified as RCW 28B.10.528).  This section was enacted as a part of the state higher education administrative procedures act of 1971, and provides as follows:

             [[Orig. Op. Page 5]]

            "The governing boards of institutions of higher education shall have power, when exercised by resolution, to delegate to the president or his designee, of their respective university or college, any of the powers and duties vested in or imposed upon such governing board by law.  Delegated powers and duties may be exercised in the name of the respective governing boards."  (Emphasis supplied.)

            Within the purview of this act, the term "institutions of higher education" is expressly defined to include the various community colleges.  See, § 2 (1).  Moreover, it is also to be noted that § 21, supra, refers, broadly, to ". . . any of the powers and duties vested in or imposed upon such governing boardby law. . ." and not merely "by this act."  Accordingly, in the case of community college boards of trustees it is possible to frame the following syllogistic argument:

            Major premise:  RCW 28B.52.030,supra, by granting a right to the duly elected representatives of an employee organization ". . . to meet, confer and negotiate with the board of trustees of the community college . . ." imposes a correlative duty upon such boards to meet and negotiate with these representatives after such administrative channels as have been established at the particular institution have been utilized.

            Minor premise:  Section 21, chapter 57,supra, authorizes a community college board of trustees to delegate to the college president or his designee ". . . any of the . . . duties . . . imposed upon such . . . board by law. . . ."

            Conclusion:  Therefore, a community college board of trustees may, by resolution, delegate to the president or his designee the duty of meeting, conferring and negotiating with the qualified representatives of the college's academic employees.

            In critically analyzing this argument, however, we are first struck by the timing of the legislature in enacting the two 1971 statutes involved.  Chapter 57,supra, was signed into law by the governor on May 6, 1971, and § 21 thereof, which authorizes a community college board to delegate its duties to its president or his designee, became effective on that date in accordance with a proviso appearing in § 22 of the act.  However, chapter 196, the professional negotiations act, was  [[Orig. Op. Page 6]] not even transmitted to the governor until May 10, 1971, and, after being signed by him on May 21, 1971, it remained ineffective until August 9, 1971, or ninety days after adjournment of the session, because of the absence of any emergency clause in this bill.

            Secondly, it is to be seen that § 3 of this latter act itself contains language keyed to the issue of delegability by (in effect) permitting a community college board of trustees to delegate the negotiating function to ". . . a committee thereof . . .".  As was indicated by our answer to your first questtion, this provision by negative implication prohibits a board to which the statute applies from delegating this function to a committee composed of nonboard members ‑ such as the president and/or his designees ‑ and thus it is in conflict with § 21, chapter 57,supra.

            This brings us, then, to a consideration of the oft-cited rules of construction which govern the relationship between "general" and "special" acts.  These rules are noted and discussed in 2 Sutherland, Statutory Construction, § 5204, page 541, as follows:

            "General and special acts may be inparimateria.  If so, they should be construed together.  Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling."  (Emphasis supplied.)

            InPeople v. Breyer, 139 Cal. App. 547, 34 P.2d 1065, 1066 (1934), the California court expressed itself on this point as follows:

            "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.

             [[Orig. Op. Page 7]]

            Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.  [Citations omitted.]"

            See, also,In re Williamson, 43 Cal.2d 651, 276 P.2d 593; Crawford v. Iowa State Highway Commission, 247 Iowa 736, 76 N.W.2d 187;In re McCleery's Estate, 162 Neb. 563, 76 N.W. 2d 459.

            Thus, even if the legislature's general grant of authority to a community college board to delegate to its president or his designee any of the duties imposed upon the board had been enacted after the special provision relating to the delegation of professional negotiations, the special provision contained therein would quite probably be deemed by a court to remain in effect as an exception to the general statute in the absence of a clear conflict necessitating an application of the doctrine of implied repeal.  But here, because of the actual time sequence involved in the legislature's enactment of the two measures now before us, we need not even reach this issue.  Here we have a case where the special act came later in time than the general and thus, by implication, repealedprotonto the provisions of the general statute with which it conflicts.  Accord,City of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959), and authorities cited therein.