DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- PURCHASE OF SERVICE OF NONPROFIT CORPORATION ‑- PROGRAMS AND PROCEDURES PERTAINING TO POLICY MAKING

DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- PURCHASE OF SERVICE OF NONPROFIT CORPORATION ‑-  PROGRAMS AND PROCEDURES PERTAINING TO POLICY MAKING.

A school district may not legally subscribe to service of a nonprofit corporation for research and information directed toward coordinating programs and procedures pertaining to policy making on the director level since such services are legally available to districts only through the Washington state school directors' association.

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                                                                    May 3, 1962

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 127

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            May a school district in this state legally subscribe to the services of a nonprofit corporation for research and information directed toward coordination of programs and procedures pertaining to policy making on the directors' level?

            We answer this question in the negative as explained in the analysis.

                                                                     ANALYSIS

            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of a municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934).  The rule has been stated in several ways by the supreme court of this state.  In summary, it may be said that ". . . if the power is not expressly granted or fairly implied as incidental and essential to the powers granted, such powers must be denied."  SeeGriggs v. Port of Tacoma, 150 Wash. 402, 273 Pac. 521 (1928).

            To clarify this point, implied powers are such as are necessary to  [[Orig. Op. Page 2]] carry into effect those which are expressly granted, and which must, therefore, be presumed to have been within the intention of the legislative grant.  City of Madison v. Daley, 58 Fed. 751, 755 (1893).  If there is a fair or reasonable doubt as to whether or not a particular power has been granted it must be denied.  Griggs v. Port of Tacoma, supra; Pacific First Federal Savings and Loan Association v. Pierce County, 27 Wn. (2d) 347, 353, 178 P. (2d) 351 (1947); 2 McQuillin, Municipal Corporations, 3rd ed., § 10.12, page 609.

            The words "necessary" and "essential" in such cases refer to legal necessity, rather than practical necessity.  SeeState ex rel. State Board etc. v. Clausen, 84 Wash. 279, 283, 146 Pac. 630 (1915).

            Finally, and most important in the reasoning of this opinion, is the rule that where a person or board is charged by law with a specific duty, and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result.  State ex rel. State Board etc. v. Clausen, supra; State ex rel. Eastvold v. Maybury, 49 Wn. (2d) 533, 304 P. (2d) 663 (1956).

            The governing body of the district, empowered to exercise the foregoing powers, is, of course, the elected board of directors.  RCW 28.58.080;State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934).  Turning to the express powers of school district boards of directors, RCW 28.58.100 (14) authorizes each such board to

            "Join with boards of directors of other school districts in buying supplies, equipment and services collectively, by establishing and maintaining a joint purchasing agency or otherwise, when deemed to be for the best interests of the district."

            In a letter to the state superintendent of public instruction, February 24, 1959, we concluded informally that this statute authorized school districts to contract for cooperative services.  However, the letter dealt with educational research services in general terms, and neither the letter nor RCW 28.58.100 (14) makes any direct reference to the specific type of service with which we are presently concerned.

            In the absence of any express statutory direction on the subject, doubtless a school district would have the power, by implication, to hire the services of a private agency for research and information of the type mentioned in your inquiry.  However, in our opinion that subject matter is governed by the express provisions of RCW 28.58.320 through 28.58.360.  RCW 28.58.320 creates a state agency known  [[Orig. Op. Page 3]] as the Washington State School Directors' Association for the specific purpose of ". . . coordination of programs and procedures pertaining to policy making and to control and management. . . ."  Under RCW 28.58.330 the membership of the association is comprised of the members of all school district boards of directors in this state.  RCW 28.58.340 sets out the incidental powers of the association, and RCW 28.58.350 provides in pertinent part as follows:

            "It shall be the duty of the school directors' association (1) to take such action as the association deems advisable to effect a coordination of policy making, control, and management of the school districts of the state; . . ."

            RCW 28.58.360 provides for financing the activities of the association by dues assessed against the various districts.

            Clearly the legislature, by the enactment of these statutes, has both granted a power and designated the means by which the power shall be exercised.  In our opinion, no school district in this state has the power to subscribe to the services of a private agency "for the coordination of programs and procedures pertaining to policy making and to control and management among the school districts of the state" because that method of obtaining the service would be at variance with the procedure established by the legislature in RCW 28.58.320 through 28.58.360.

            This opinion is not intended to prohibit all contracts with private agencies for services, including cooperative educational research services.  Nor do we mean to say that a school district is legally precluded from purchasing books or subscribing to publications in the nature of magazines or periodicals, which have to do with the subject presently under discussion, paying a reasonable and uniform price for the subscription or individual publication.  It is our understanding, however, that the service in question is of a far different nature, being essentially a research service, the cost of the publication being merely an incidental part of the total contract.  In effect, this is an apparent duplication of a service contemplated by RCW 28.58.320 through 28.58.360,supra; i.e., a service which the legislature has placed under the exclusive control of the school directors' association.  The legislature has expressly provided a means to the school directors to carry out this function, and no other can be implied.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General