INSTITUTIONS, DEPT. OF ‑- NATURE OF DUTY TO CARE FOR MENTALLY DEFICIENT CHILDREN -- LEASING OF TEMPORARY FACILITIES FOR CARE OF MENTALLY DEFICIENT CHILDREN

INSTITUTIONS, DEPT. OF ‑- NATURE OF DUTY TO CARE FOR MENTALLY DEFICIENT CHILDREN -- LEASING OF TEMPORARY FACILITIES FOR CARE OF MENTALLY DEFICIENT CHILDREN

The Governor may legally allocate from the Public Institutions Contingency Fund monies sufficient to provide facilities for the temporary institutionalization of mentally deficient children who have been committed to the two state schools, the Department of Institutions having a mandatory obligation to provide such facilities.

                                                                  - - - - - - - - - - - - -

                                                                   May 22, 1957

Dr. G. Lee Sandritter
Acting Director
Department of Institutions
P.O. Box 867
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 66

Dear Sir:

            You have requested our opinion on certain legal questions which may be paraphrased as follows:

            May the Governor legally allocate monies from the seven million dollar Department of Institutions Contingency Funds appropriated by the 1957 Legislature, to be expended for the leasing of facilities for the temporary institutionalization of mentally deficient children committed to the two state schools, but not admitted due to lack of facilities.

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The 1957 session of the state legislature appropriated a contingency fund to the governor for the department of institutions.  It provides as follows:

             [[Orig. Op. Page 2]]

            "Excerpt from Enrolled Sub. House Bill No. 719

                        FROM THE GENERAL FUND

            "FOR THE GOVERNOR:

            "To be allocated by the Governor to the Department of Institutions in the event that appropriations otherwise available are insufficient to carry out the duties, required by law of such department. . . . $7,000,000.00"

            The answer to your question lies in whether or not the legislature has imposed a mandatory duty upon the department of institutions and its division of children and youth services to provide facilities for the care and support of mentally deficient children committed by the superior courts and otherwise eligible for admission, but not accepted by reason of lack of space and facilities for their care and treatment at the two state schools.  RCW 43.19.370 provides in part as follows:

            "Thedivision of children and youth services shall establish, maintain,operate and administer a comprehensive program for thecustody, care, education, treatment, instruction, guidance, control and rehabilitationof all persons who may be committed or admitted to institutions, schools, or other facilities controlled and operated by the division * * *"  (Emphasis supplied.)

            By this statute the legislature has imposed a mandatory duty upon the department of institutions, through its division of children and youth services, to operate a comprehensive program for the care, treatment and guidance of all mentally deficient children committed by the superior courts.

            In view of the language used by the legislature in framing the duties and responsibilities of the department of institutions and its division of children and youth services in the statute cited and quoted form above, it is our opinion that the department of institutions, through its division of children and youth services, has a legal obligation to provide adequate facilities for the care and treatment of mentally deficient children committed to the two state schools, but not admitted by reason of lack of  [[Orig. Op. Page 3]] facilities in those two institutions.

            This office has rendered an opinion upon a similar question requested by the prosecuting attorney of Mason County under date of August 13, 1946, in which the same conclusion as expressed above was reached in answer to that question.  For your information we enclose a copy of that opinion.

            In reviewing the laws relating to the department of institutions, we do not find that the legislature has ever enacted a statute giving the department a general leasing authority which would enable it to accomplish the leasing facilities for the temporary institutionalization of mentally deficient children on the waiting list for admission to the two state schools.

            It is a fundamental principle of statutory construction that an agency of state government created by the legislature has only that power and authority specifically granted by the legislature, or that which must necessarily be implied, in order to reasonably carry out the specific authority given.  Accordingly, it must necessarily follow that if the department of institutions has authority to enter into contracts of lease for the acquiring of facilities for the temporary institutionalization of mentally deficient children on the waiting list of the two state schools, it must be implied from the duties and responsibilities imposed upon the department by the legislature.

            As a consequence of our opinion that the legislature intended that the department of institutions be required to establish and maintain a comprehensive program for the care and treatment of all mentally deficient children in the state committed to its institutions, it is our further opinion that the department of institutions has the implied authority to take such reasonable steps as may be necessary to carry out the intention of the legislature.  In our view such implied authority would include the leasing of facilities to provide care and treatment for mentally deficient children committed to the two state schools, but not admitted by reason of lack of facilities.

            Therefore, in conclusion, it is our opinion that the governor would be legally justified in allocating to the department of institutions a sum of money sufficient to enable the department to acquire by lease, and operate, facilities for the temporary institutionalization of mentally deficient  [[Orig. Op. Page 4]] children committed by the courts to the two state schools, but not admitted by reason of lack of facilities.  This result of course presumes that appropriations otherwise made are insufficient to carry out the duties and responsibilities of providing care and treatment for such children.

            We trust that the foregoing analysis will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Asistant Attorney General