COMMUNITY COLLEGES ‑- EMPLOYEES ‑- RELEASED TIME FOR LABOR NEGOTIATIONS ‑- SUPPLIES AND MATERIALS FOR EMPLOYEE ORGANIZATION

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- RELEASED TIME FOR LABOR NEGOTIATIONS ‑- SUPPLIES AND MATERIALS FOR EMPLOYEE ORGANIZATION

(1) It is only permissible for a community college to authorize released time, without loss of compensation, for union activities by its employees if it can readily be shown, based upon the factual circumstances involved, that the work thus being performed is also of significant benefit to the college as employer.

(2) The board of trustees of a community college may agree to provide community college property and facilities to a teachers' union or other employee organization only if (a) such use of the property or facilities is not inconsistent with the purposes of the college and (b) some form of equivalent consideration is provided for in return.

(3) A community college board of trustees is authorized to adopt written policies providing for "personal leave" for its employees in the exercise of its discretion; therefore, the subject would also be one which would be negotiable with the employees and/or their representatives in collective bargaining proceedings.

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                                                                     July 7, 1977

Honorable F. L. Esvelt
President, Columbia Basin College
Tri-Cities, Washington 99302                                                                                                               Cite as:  AGLO 1977 No. 27

Dear Sir:

            By recent letter you have requested our opinion on several questions pertaining to the legal ability of a community college, through the process of employer-employee negotiations, to contractually commit itself to certain undertakings.  Specifically, you have asked:

            "1. Is it permissible, through the process of employer-employee negotiations, to provide the head of a local Teachers Union with a reduced teaching load assignment in order for that individual to work on union affairs?  Specifically, is it permissible for the  [[Orig. Op. Page 2]] institution to pay a full salary when such released time is given?

            "2. Is it permissible for an institution, through negotiations with the local Teachers Union to agree to provide such items as supplies, use of equipment or use of institutional facilities for office space for the local Teachers Union?

            "3. Is it permissible to include, in a negotiated agreement between the institution and the local Teachers Union, provisions for days off as 'personal leave' to be taken at the employee's discretion during the college calendar year?  These personal leave days would be taken from designated days on the college calendar listed as instructional days."

            We respond to the foregoing quesions in the manner set forth in our analysis.

                                                                     ANALYSIS

            At the outset, there is one central point to be established and emphasized with regard to your questions.  Community colleges, acting through their respective boards of trustees, are state agencies.  Centralia College Ed. Ass'n v. Board of Trustees, 82 Wn.2d 128, 508 P.2d 1357 (1973).  Accordingly, as in the case of all other such agencies, they have only those powers which have been granted to them by the legislature, either expressly or by necessary implication.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  Those powers which have thus been granted, in turn, are in no way expanded by reason of the collective bargaining process.  In other words, the mere fact that some form of collective bargaining is involved does not serve to justify, legally, contractual undertakings by a community college which it would not have the authority to make under other circumstances.

            Bearing that point in mind we turn, now, to your questions.

            Question (1):

            The question of "released time" for work on union affairs has previously been considered by this office on three separate occasions.  First, in a letter opinion dated May 30, 1972, to State Representative Otto Amen [[an Informal Opinion, AIR-72543]], copy enclosed, we concluded that a state agency may agree to pay the salaries of certain of its employees who,  [[Orig. Op. Page 3]] during their regular working hours, are participating in collective bargaining with the department as employee representatives.  The basic premise upon which that conclusion was based, however, was that the collective bargaining process itself was of mutual benefit both to the employees involved and to the agency by which they were employed.  Thus, in effect, those individuals who were allowed "released time" for the purpose of collective bargaining activities were providing a service of value to their employer at the same time as they were serving the other employees whom they were representing in the bargaining process.

            Next, by another letter opinion dated December 8, 1972, to State Senator Charles E. Newschwander, copy enclosed, we reaffirmed our earlier opinion to Representative Amen in the specific context of community college employees and,

            ". . . the legality of using funds appropriated by the legislature to the various community colleges to pay the salaries of employees of those colleges during periods of time that these employees are engaged in the '. . . conduct of faculty union or association business.'"

            In accordance with the rationale of our earlier opinion, however, any such compensated "released time" for union activities would be legally permissible only to the extent that the activities involved are of some demonstrable benefit to the community college, as employer, as well as to the union or other employee organization thus being served.  Otherwise, in accordance with the third of our previous opinions dealing with this general subject, the potential of an unconstitutional gift of public funds or property, in violation of Article VIII, §§ 5 and 7 of the state constitution, would be present.  See, AGO 1976 No. 10 [[to Susan Gould, State Senator, on April 6, 1976]], a copy of which we are also enclosing for your immediate reference.

            While AGO 1976 No. 10 dealt, specifically, with school districts and their employees, the basic principles enunciated therein are clearly applicable to community colleges as well.  In brief summary, the pertinent conclusions which we reached therein are as follows:

            (a) If a public agency, acting pursuant to statutory authority, allows its employees to take a leave of absence with pay as consideration for services previously rendered (e.g., annual leave or vacation) the employee may use such leave to perform services as an official of a state or local employee organization or union unless precluded from doing so by the employer's own particular leave policy; however, a leave  [[Orig. Op. Page 4]] policy designed specifically to allow the performance of that kind of service, whether by agreement with the employee organization or union involved or otherwise, would be of doubtful validity under Article VIII, §§ 5 and 7 (depending upon whether a state agency or a political subdivision is involved) of the state constitution.

            (b) Where, however, it can be shown that the employer derives a benefit ". . . from constructive interchanges of communications with employee representatives . . .," as in the case of collective bargaining activities themselves, in consequence of compensated "released time" provided for in a collective bargaining agreement, the constitutional objections which would otherwise be present may be overcome.

            We really can add little more, at this time, in direct response to your first question,supra.  In essence, therefore, we answer that question in the qualified affirmative.  Specifically, we conclude that it is permissible for a community college to authorize "released time," without loss of compensation, for union activities by its employees if, but only if, it can readily be shown, based upon the factual circumstances involved, that the work thus being performed is also of significant benefit to the college as employer.

            Question (2):

            The same basic reasoning is also applicable to your second question.  Pursuant to RCW 28B.50.140(9), every community college board of trustees has the statutory authority to

            ". . . authorize classrooms and other facilities to be used for summer or night schools, or for public meetings and for any other uses consistent with the use of such classrooms or facilities for community college purposes;"  (Emphasis supplied.)

            But where nonpublic agencies are involved, and the facilities being used are not such as are generally made available without charge to members of the public at large,1/ equivalent value should be received in return in order to avoid the problem of an unconstitutional gift.

            Thus, as in the case of your first question, we likewise answer your second question in thequalified affirmative.  Acting pursuant to RCW 28B.50.140(9), supra, the board of trustees of a community college may provide community college property and facilities to ". . . the local teachers' union . . .," but only if (a) such use of the property or facilities  [[Orig. Op. Page 5]] is not inconsistent with the purposes of the college and (b) some form of equivalent consideration is provided for in return.

            Question (3):

            Your final question, unlike your first two, is not specifically related to union or other employee organization functions or activities.  Instead, it deals with the broader question of community college leave policies in general.  Repeated for ease of reference, this portion of your opinion request reads as follows:

            "3.  Is it permissible to include, in a negotiated agreement between the institution and the local Teachers Union, provisions for days off as 'personal leave' to be taken at the employee's discretion during the college calendar year?  These personal leave days would be taken from designated days on the college calendar listed as instructional days."

            The statutory authority of a community college board of trustees to establish leave policies for employees of the college is expressly spelled out in RCW 28B.50.551, as follows:

            "The board of trustees of each community college district shall adopt for each community college under its jurisdiction written policies on granting leaves to employees of the district and those colleges, including but not limited to leaves for attendance at official or private institutions and conferences, sabbatical leaves for academic personnel, leaves for illness, injury, bereavement and emergencies, with such compensation as the board of trustees may prescribe, except that the board shall grant to all such persons leave with full compensation for illness, injury, bereavement and emergencies as follows:

            "(1) For persons under contract to be employed, or otherwise employed, for a least three quarters, at least fifteen days, commencing with the first day on which work is to be performed;

             [[Orig. Op. Page 6]]

            "(2) Such leave entitlement may be accumulated after the first three‑quarter period of employment at a minimum rate of five days per quarter for full time employees up to a maximum of one hundred eighty days, and may be taken at any time;

            "(3) Leave for illness, injury, bereavement and emergencies heretofore accumulated pursuant to law, rule, regulation or policy by persons presently employed by community college districts and community colleges shall be added to such leave accumulated under this section;

            "(4) Except as otherwise provided in this section or other law, accumulated leave under this section not taken at the time such person retires or ceases to be employed by community college districts or community colleges shall not be compensable;

            "(5) Accumulated leave for illness, injury, bereavement and emergencies under this section shall be transferred from one community college district or community college to another, to the state board for community college education, to the state superintendent of public instruction, to any educational service district, to any school district, or to any other institutions of higher learning of the state; and

            "(6) Leave accumulated by a person in a community college district or community college prior to leaving that district or college may, under the policy of the board of trustees, be granted to such person when he returns to the employment of that district or college."

            Two things will be readily noted about this statute.  First, the statute is mandatory insofar as compensated leaves ". . . for illness, injury, bereavement and emergencies . . ." are concerned whereas it is permissive in the case of other types of leave.  And secondly, because it contains the phrase ". . . including but not limited to . . ."  RCW 28B.50.551,supra, is broad enough to permit a community board of trustees to authorize other types of leaves than those specifically enumerated therein.

             [[Orig. Op. Page 7]]

            Accordingly it follows, in our opinion, that a community college board of trustees is authorized to adopt written policies providing for "personal leave" for its employees in the exercise of its discretion.  That being the case, the subject would most certainly also be one which would be negotiable with the employees and/or their representatives in collective bargaining proceedings.

            The rest, of course, is merely a matter of form.  Because the statute requires the adoption of written policies any such contractual commitment should merely be that of agreeing to adopt a particular policy with respect to "personal leave."  Then, in turn, the leave policy itself should be effectuated through the adoption, by appropriate board resolution, of the agreed upon policy itself.