DISTRICTS ‑- SCHOOLS ‑- STATE FINANCIAL SUPPORT ‑- ACCELERATION OF APPORTIONABLE FUNDS ‑- CONDITIONS ‑- EMERGENCY ‑- AUTHORITY OF STATE SUPERINTENDENT

DISTRICTS ‑- SCHOOLS ‑- STATE FINANCIAL SUPPORT ‑- ACCELERATION OF APPORTIONABLE FUNDS ‑- CONDITIONS ‑- EMERGENCY ‑- AUTHORITY OF STATE SUPERINTENDENT.

Under § 1, chapter 162, Laws of 1965, Ex. Sess., the legislature has vested the state superintendent of public instruction with the discretionary authority to accelerate, upon petition of a school district, the distribution to it of appropriated state funds not to exceed five percent of the total amount to become due and apportionable to the petitioning district during its fiscal year, if he finds:  (1) The emergency situation described in the petition of the district warrants such an advance distribution; and (2) funds are available with which to make the advance distribution.

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                                                                   March 8, 1966

Honorable Albert C. Thompson, Jr.
State Senator, 48th District
2300 108th S.E.
Bellevue, Washington

                                                                                                                Cite as:  AGO 65-66 No. 77

Dear Sir:

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

            Under what circumstances, if any, may the state superintendent of public instruction, pursuant to § 1, chapter 162, Laws of 1965, Ex. Sess., accelerate the distribution to a school district of state funds which are apportionable to the district under state law for a particular fiscal year?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The state superintendent of public instruction is charged by our state constitution1/ with the responsibility for the general supervision and control of the public schools.  Local  [[Orig. Op. Page 2]] authority over particular schools is, however, exercised by the respective school districts' boards of directors in accordance with statutes enacted by the legislature.2/

             The public schools are financedin part by state funds which are from time to time appropriated by the legislature to the state superintendent for distribution to school districts.  Such state funds as are thus appropriated to the state superintendent are to be apportioned to the school districts in accordance with a rather complex statutory formula appearing partly in §§ 2-4, chapter 154, Laws of 1965, Ex. Sess., and (for the current biennium) partly in the specific appropriation made by the 1965 legislature for this purpose.

            The procedure to be followed in allocating the apportionable funds to the several counties for distribution to the school districts located therein is set forth in RCW 28.48.010.  This statute, as amended by § 1, chapter 162, Laws of 1965, Ex. Sess., reads as follows:3/

            "On or before the ((twentieth day of each month from September to June, inclusive,))last business day of September, 1965 and each month thereafter, the superintendent of public instruction shall apportion from the current state school fund and/or the state general fund to the several counties of the state ((one‑tenth)) the proportional share of the total annual amount due and apportionable to such counties for the school districts thereof as follows:  In January, ten percent, in February, ten percent, in June, three and one‑half percent and in each of the other months respectively eight and one‑half percent.  The annual amount due and apportionable shall be the amount apportionable for all apportionment credits estimated to accrue to the schools during a year beginning September first and continuing through August thirty-first.  Appropriations made for school districts for the biennium beginning July 1, 1965, and ending June 30, 1967, shall be  [[Orig. Op. Page 3]] apportioned to cover the two school years beginning September 1, 1965, and ending August 31, 1967.  The apportionment from the state general fund for each month shall be an amount which together with the revenues of the current state school fund will equal the amount due and apportionable to the several counties during such month:  PROVIDED, That any school district may, through its county superintendent, petition the superintendent of public instruction for an emergency advance of funds which may become apportionable to it but not to exceed five percent of the total amount to become due and apportionable during the school district's fiscal year.  The superintendent of public instruction shall determine if the emergency warrants such advance, and if the funds are available therefor, and if he determines in the affirmative he may approve such advance and at the same time add such an amount to the apportionment for the county in which the district is located."

            By the proviso thereto, which was added by the 1965 amendment, it seems apparent that the legislature has granted the state superintendent the discretionary authority to accelerate the distribution to a school district of state funds which are apportionable to the district for the district's fiscal year, upon petition by the district therefor, if he finds that

            (1) the emergency situation described in the petition warrants such an advance distribution; and

            (2) funds are available with which to make the advance distribution.

            In our opinion, the question of whether or not an emergency does in fact exist is a fact which must be determined by the state superintendent in the sound exercise of his discretion.  In the absence of any provision in the statute to the contrary, it would seem to us that the ordinary dictionary definition of an emergency as

            "An unforeseen combination of circumstances which calls for immediate action; . . ."4/

             [[Orig. Op. Page 4]]

            would be applicable.  Pacific Etc. Alloys v. State, 49 Wn.2d 702, 306 P.2d 197 (1957).

            With regard to the matter of availability of funds, the ultimate governing limitation is, of course, the legislative appropriation from which the disbursement is to be made.  The pertinent provision of our state constitution is Article VIII, § 4 (Amendment 11), which provides:

            "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."

            Therefore, it is evident that if the state superintendent determines to accelerate the distribution of presently appropriated funds to any school district in accordance with § 1, chapter 162, Laws of 1965, Ex. Sess., (RCW 28.48.010,supra) such district may correspondingly be left without any state allocation for the final portion of the current biennium unless the legislature, in the meantime, makes an additional appropriation of funds sufficient to restore the monies previously advanced.5/

             In connection with the utilization of § 1, chapter 162, Laws of 1965, Ex. Sess., supra, we should further note and emphasize that in any event an emergency advance or acceleration of funds to a school district as permitted thereunder is expressly limited to an amount,

            ". . . not to exceed five percent of the total amount to become due and apportionable [to the district] during the school district's fiscal year."

             [[Orig. Op. Page 5]]