COMMUNITY COLLEGES ‑- FEES ‑- TUITION ‑- AUTHORITY TO WAIVE CERTAIN FEES

COMMUNITY COLLEGES ‑- FEES ‑- TUITION ‑- AUTHORITY TO WAIVE CERTAIN FEES
 
 A community college board of trustees does not have the authority to waive tuition, operating fees, and services and activities fees for students who are enrolled in programs designed to enable them to finish their high school education and obtain a high school diploma or certificate unless those students are "needy" as defined in RCW 28B.15.523.
  
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                                                                     July 3, 1973 
 
State Board for Community College Education
P.O. Box 1666
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 72
 
 
Attention:  !ttMr. Gilbert J. Carbone
            Assistant Director
Gentlemen:
 
            This is written in response to your recent request for an opinion of this office regarding the authority of a community college board of trustees to waive tuition, operating fees, and services and activities fees for students who are enrolled in programs designed to enable them to finish their high school education and obtain a high school diploma or certificate.  Your question is whether such a waiver may be granted to a person who does not come within the definition of "needy student" as set forth in RCW 28B.15.523.
 
            We answer this question in the negative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            As recently stated in AGLO 1973 No. 70 [[to Marion O. Oppelt, President and Secretary, Board of Trustees of Community College District on June 25, 1973, an Informal Opinion AIR-73570]],
 
            "The boards of trustees of our several state community colleges, as provided for in RCW 28B.50.010, serve and function as agencies of the state of Washington.  Accord, Centralia College Education Ass'n. v. Board of Trustees of Community College District No. 12, 82 Wn.2d 128, 508 P.2d 1357 (1973).  As such, these boards possess only such powers as have been expressly granted to them by the legislature, or as may necessarily be implied therefrom.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).
 
            In that opinion we were concerned with the authority of the board of trustees of a state community college to grant either a partial or total exemption from general  [[Orig. Op. Page 2]] tuition fees, operating fees, or services and activities fees to employees of the college who are also attending classes there.  Finding no statute granting such authority, we responded in the negative.  A similar approach in the instant case dictates the same answer to your present question.
 
            Although there is in this case (unlike the situation considered in AGLO 1973 No. 70) a statute permitting the various community colleges to waive general tuition and other fees for certain students enrolled therein who are within the general class described in your question, this statute is expressly limited by its own terms to needy students.  See RCW 28B.15.520 which provides that:
 
            "Notwithstanding any other provision of this chapter or chapter 28B.50 RCW as now or hereafter amended the college board shall be authorized to permit the boards of trustees of the various community colleges to waive general tuition fees, operating fees, services and activities fees, and any other fees for needy students who are enrolled in a course of study or program which will enable them to finish their high school education and obtain a high school diploma or certificate."  (Emphasis supplied.)
 
            The term "needy student" is then, in turn, defined by RCW 28B.15.523 as follows:
 
            "For the purpose of RCW 28B.15.520, 'needy student' shall mean a student who demonstrates to the board of trustees the financial inability, either through his parents, family and/or personally, to meet the total cost of general tuition fees, operating fees, services and activities fees, and any other fees or any portion of such total for any quarter or semester."
 
            On the basis of these statutes it is our opinion that no waiver of tuition and fees can be granted to a student enrolled in a community college program designed to enable him to finish high school who is not "needy," as thus  [[Orig. Op. Page 3]] defined.  In so concluding we should, however, note and briefly comment upon certain language appearing in § 8, chapter 131, Laws of 1973, Ex. Sess., which you have called to our attention.  By this section of an act adopting the 1973-75 biennial budget for the state's several institutions of higher education and community colleges, the legislature appropriated the sum of $135,400,216 to the state board for community colleges and provided, inter alia, that up to $1,430,130 of this amount
 
            ". . . shall be distributed by the State Board to the respective district boards of trustees as reimbursement for tuition fees, operating fees, and services and activities fees waived for any student who has not completed the twelfth grade and who is so enrolled for the purpose of pursuing a high school diploma or certificate . . ."  (Emphasis supplied.)
 
            In addressing yourself to this proviso in the higher education appropriations act you have pointed out in particular the absence of the qualifying word "needy" from its terms.  We do not, however, regard this factor as being of any legal significance with respect to your question for the reason that § 8, chapter 131, Laws of 1973, Ex. Sess., supra, is simply an appropriation ‑ and nothing more.  As such, it grants no substantive authority to any state agencies but, instead, simply allocates monies in the general fund to be expended by those agencies mentioned in the exercise of powers independently granted to them by general law ‑ such, of course, as are contained in RCW 28B.15.520 and 28B.15.523, supra, with respect to the waiver of tuition and fees for "needy" students who are completing their high school educations while attending community colleges.  See, State ex rel. Pub. Co., v. Lindsley, 3 Wash. 125 (1891); State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28 (1915); Crain v. Frohmiller, 45 Ariz. 490, 45 P.2d 955 (1935); State ex rel. Bonsteel v. Allen, 83 Fla. 214, 91 S. 104 (1922); Davis, et al. v. Stewart, 198 Ky. 248, 248 S.W. 531 (1923); 26 A.L.R. 735; State ex rel. Murray v. Carter, 167 Okla. 473, 30 P.2d 700 (1934); 42 Am.Jur., Public Funds, § 43.
 
            Because these general statutes are limited to "needy students" as specifically defined in the second of them, it therefore follows that even though this qualifying adjective does not also appear in the appropriation  [[Orig. Op. Page 4]] proviso above quoted, the monies appropriated by that proviso can only be used to reimburse community colleges for tuition or fee waivers granted by such colleges to those students completing their high school education at the community college level who can meet this need test; and, moreover, it is only to such needy students that such waivers as are described in your question can be granted under existing law.
 
            We trust the foregoing will be of some assistance to you.
 
Very truly yours
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Deputy Attorney General