Letter Opinion 1972 No. 080

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                                                               November 17, 1972
 
 
 
Honorable Al Williams
State Representative, District 32-B
2515 North 40th
Seattle, Washington 98103
                                                                                            Cite as:  AGLO 1972 No. 80 (not official)
 
 
Dear Sir:
 
            This is written in further response to your recent letter requesting our opinion regarding the authority of a school district to rent or lease certain school buildings to a nongovernmental group providing social services to the adjacent community.
 
            The general authority of a school district to acquire, manage and dispose of both real and personal property is set forth in RCW 28A.58.040, as follows:
 
            "The board of directors of each school district shall have exclusive control of all school property, real or personal, belonging to the district; said board shall have power, subject to RCW 28A.58.045, in the name of the district, to convey by deed all the interest of their district in or to any real property of the district which is no longer required for school purposes.  Except as otherwise specially provided by law, and RCW 28A.58.045, the board of directors of each school district may purchase, lease, receive and hold real and personal property in the name of the district, and rent or sell the same, and all conveyances of real estate made to the district shall vest title in the district."
 
                                                                     ANALYSIS
 
            RCW 28A.58.045, which is cited in this statute, relates to the purchase and sale of real property by a school district only, and not to the leasing or rental thereof ‑ and thus, need not be considered in responding to your inquiry.  Nor need we here give consideration to the provisions of RCW 39.33.010, relating to the intergovernmental disposition of surplus property by means of either sale, lease or gift, because your question assumes that the recipient of the property under the proposed  [[Orig. Op. Page 2]] rental or lease agreement is a private, nongovernmental, entity rather than a governmental agency.
 
            Under the provisions of RCW 28A.58.040, supra, there can be no question but that a school district has the authority to lease or rent real or personal property owned by it to a nongovernmental agency for use by such agency in any lawful function.  However, of course, this statute like any other must be construed and applied in a manner consistent with the prohibition against gifts or loans of public credit which is set forth in the following provisions of Article VIII, § 7 of our state Constitution:
 
            "No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."
 
            Because this section has been held by the court not to apply where the recipient of the grant or gift is another public agency,1/ it poses no barrier to a gratuitous transfer of some interest in governmental property to another governmental agency as authorized under RCW 39.33.010, supra.  But where, as in the situation posited by your question, the renter or lessee is a nongovernmental body, the thrust of this constitutional restriction is one of requiring adequate rental or other consideration to be paid by the lessee for the school district property which it is seeking to utilize under the rental agreement.
 
            It was on the basis of this line of reasoning that this office, some years ago, was placed in a position of expressing informal disapproval of a particular proposed disposition of certain surplus school district property by the Seattle school district ‑ giving rise to the so-called "informal opinion" currently being relied upon by the Seattle school district in connection with the proposed transaction which has, apparently, prompted your present request; i.e., the proposed rental of a surplus school building to a nongovernmental group providing special services to the adjacent community.  We did not, however, mean by this advice to  [[Orig. Op. Page 3]] prohibit a valid, good faith rental agreement under which the district, in exchange for allowing the use of the facility by the lessee or renter, would receive adequate consideration either in the form of monetary rental or that of the performance of services (for example, related to the maintenance of the building) which would adequately reimburse the district for the use of this facility during the term of the rental agreement.
 
            Thus, in general terms, our answer to the question which you have posed regarding the authority of a school district to rent a surplus building to a nongovernmental agency is in the affirmative, subject to the foregoing qualifications or limitations arising by reason of the state Constitution, supra, where the lessee or renter is a nongovernmental agency.
 
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 

 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, e.g., Rands v. Clarke County, 179 Wash. 152, 139 Pac. 1090 (1914).