OFFICES AND OFFICERS ‑- STATE ‑- COMMISSION FOR VOCATIONAL EDUCATION ‑- DISTRICTS ‑- SCHOOLS ‑- ESTABLISHMENT OF SERVICE AREAS FOR VOCATIONAL ‑- TECHNICAL INSTITUTES

OFFICES AND OFFICERS ‑- STATE ‑- COMMISSION FOR VOCATIONAL EDUCATION ‑- DISTRICTS ‑- SCHOOLS ‑- ESTABLISHMENT OF SERVICE AREAS FOR VOCATIONAL ‑- TECHNICAL INSTITUTES

(1) In the absence of authorization by the commission for vocational education under chapter 174, Laws of 1975, 1st Ex. Sess. (chapter 28C.04 RCW), a school district which has a vocational-technical institute may not offer and conduct any of the vocational training programs of that institute at locations which are physically situated outside of the geographic boundaries of the school district.

(2) The commission for vocational education, in defining a "service area" for a common school vocational-technical institute in accordance with RCW 28C.04.020(6), may include therein certain geographic areas not physically situated within the boundaries of the school district involved and, by so doing, empower that district to establish, maintain and operate vocational training programs at locations outside of the district's boundaries but within the service area thus defined.

(3) The commission for vocational education, in establishing service areas for vocational-technical institutes under RCW 28C.04.020(6), is not required at the time of doing so to consider and apply the criteria specified in RCW 28C.04.040(2) for the adjudication of disputes between secondary and postsecondary education systems.

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

                                                               December 29, 1976

Honorable Max E. Benitz
State Senator, 8th District
Route 2, Box 181
Prosser, Washington 99350

                                                                                                                 Cite as:  AGO 1976 No. 23

Dear Senator Benitz:

            By letter previously acknowledged you have requested our opinion on certain questions relating to the establishment of service areas for vocational-technical institutes operated by public  [[Orig. Op. Page 2]] school districts.  We paraphrase your questions as follows:

            (1) In the absence of authorization by the commission for vocational education under chapter 174, Laws of 1975, 1st Ex. Sess. (chapter 28C.04 RCW), may a school district which has a vocational-technical institute offer and conduct any of the vocational training programs of that institute at locations which are physically situated outside of the geographic boundaries of the school district itself?

            (2) Assuming a negative answer to question (1), may the commission for vocational education, in defining the "service area" for a common school vocational-technical institute in accordance with RCW 28C.04.020(6), include therein certain geographic areas not physically situated within the boundaries of the school district involved and, by so doing, empower that district to establish, maintain and operate vocational training programs at locations outside of the district's boundaries but within the service area thus defined?

            (3) Is the commission for vocational education, in establishing service areas for vocational-technical institutes under RCW 28C.04.020(6), required at that time to consider and apply the criteria specified in RCW 28C.04.040(2) for the adjudication of disputes between secondary and postsecondary education systems?

            We answer questions (1) and (3) in the negative and question (2) in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The basic authority for the operation of vocational-technical institutes by public school districts in our state will be found in chapter 115, Laws of 1945, together with certain subsequent amendments to that law, all later codified as RCW 28.84.119 ‑ 28.84.150.  Of particular note are RCW 28.84.120 and 28.84.150 which read, respectively, as follows:

            RCW 28.84.120:

            "Any school district may add two years of vocational training and general education to the usual twelve years course of common school education under conditions and in accordance with regulations prescribed therefor by the state board of education:  Provided, That extended secondary type I programs not be allowed within a radius of twenty-five miles of a community college with available facilities as determined by the state board of education."

             [[Orig. Op. Page 3]]

            RCW 28.84.150:

            "Any class or classes maintained or operated under programs provided for in RCW 28.84.120 and under rules, regulations and standards provide for in RCW 28.84.130 may be attended by any high school graduate, war veteran, or others, irrespective of age, residing within the district maintaining such class or classes or residing within any other school district:  Provided, That such high school graduates, war veterans and others not residing within the school district maintaining such class or classes shall be admitted upon the same conditions and subject to the same fees as are those residing within the district and not otherwise."

            When, in 1967, the legislature established our present state community college system and transferred responsibility for the administration and operation of those institutions of higher education from local school districts to the state, it repealed both of these statutes, as well as the remainder of RCW 28.84.119 ‑ 28.84.150.  See, § 73, chapter 8, Laws of 1967, Ex. Sess.  At the same time, however, by § 77 of that act (later codified as RCW 28.85.770) the legislature provided as follows:

            "Notwithstanding any other provisions of this chapter, the board of directors of any public school district wherein there is an existing vocational-technical institute, may elect to have such vocational-technical institute remain a part of the public school system rather than have such institute become a part of the state community college system:  Provided, That within thirty days after the effective date of this act, any school district operating a vocational-technical institute which operates independently of any existing community college as of January 1, 1967 may elect to remain independent of any community college by resolution of the board of directors of such district:  And provided further, That any public school district may relinquish administrative control over a vocational-technical institute at the beginning of any fiscal biennium if by resolution dated before the preceding January 1st it shall so inform the state board of education and the state and district community college boards."

            Thus, those school districts which were operating vocational-technical institutes prior to 1967 were permitted by the legislature to continue doing so rather than turning those facilities over to the state community college system.  As  [[Orig. Op. Page 4]] we understand it, a total of five such school districts so opted and thus, notwithstanding the creation of the community college system, have continued to maintain and operate their VTIs as before.  In our opinion, the effect of §§ 73 and 77 of the 1967 community college act, read together insofar as vocational technical institutes are concerned, was to remove RCW 28.84.119 ‑ 28.84.150, supra, from the statute books while, at the same time, permitting school districts then operating such postsecondary vocational schools to continue doing so, as before, as if those enabling statutes had not been repealed.  Therefore, in the case of the five common school VTIs which have survived, the basic law governing their operation, except as modified by other, more recently enacted laws hereinafter to be noted, remains chapter 115, Laws of 1945,supra, as amended.  And from this it readily follows that if your first question was simply that of whether a vocational technical institute may serve nonresidents even in the absence of authorization by the commission for vocational education under chapter 174, Laws of 1975, 1st Ex. Sess.,supra, the answer would be in the affirmative.  See, again, RCW 28.84.150,supra, which expressly so provides.  As we understand it, however, the issue raised by your first question involves, instead, a different sort of extraterritoriality; i.e., the actual establishment of (in this case) facilities of a common school vocational-technical institute at locations physically situated outside of the territorial boundaries of the school district involved.

            It is a well-settled general rule of municipal law that a school district or other municipal corporation in this state has no implied authority to furnish the services for which it was formed on an extraterritorial basis ‑ i.e., beyond its territorial limits.  See,Farwell v. Seattle, 43 Wash. 141, 86 Pac. 217 (1906);Municipal League of Bremerton v. Tacoma, 166 Wash. 82, 6 P.2d 587 (1931); cf.,State ex rel P.U.D. Etc. v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947);Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963); and 12 McQuillin, Municipal Corporations, § 35.34.  In applying that rule, however, it is also necessary to refine it somewhat.  Thus, inDes Moines v. Hemenway, 73 Wn.2d 130, 437 P.2d 171 (1968), our court held that neither theWylie nor Farwell cases, supra, stood for the proposition that a municipality has no power to provide facilities which will be used by individuals residing outside its limits, saying:

            ". . .  Both cases involved attempts by municipal corporations through extensions of services to act in a municipal capacity beyond their corporate limits.  It is one thing for a municipality to attempt to establish services beyond its corporate limits, and it is quite another for a municipality to attempt to establish services within its corporate limits which are to be utilized by  [[Orig. Op. Page 5]] individuals who may or may not reside within its corporate limits but who must come within the corporate limits to avail themselves of the services. . . ."

            Accordingly, it is not the mere provision of services to nonresidents by means of facilities located within a municipality which, perse, violates the rule in the absence of specific authority; rather, it is, instead, only the other type of extraterritoriality ‑ but notably, the type with which we are here concerned ‑ that does so.1/   And unlike the question of admitting nonresidents, there is nothing whatsoever in any of the laws governing vocational-technical institutes which, in the absence of authorization by the commission for vocational education under chapter 174,supra, may be said to sanction such conduct.  Therefore, although in below answering your second question, supra, in the affirmative we will explain how such extraterritorial activities may now be engaged in by a common school vocational-technical institute pursuant to this last-cited 1975 legislation, it is our opinion that your first question, as above paraphrased, must be answered in the negative.

            Question (2):

            In order to set the stage for our consideration of your second question we must note, briefly, certain key provisions of chapter 174, Laws of 1975, 1st Ex. Sess., now codified as chapter 28C.04 RCW.  By that act the legislature established a seven-member commission for vocational education and empowered it to perform various functions relating to the administration of such education at both the secondary and postsecondary levels.  See, RCW 28C.04.030 ‑ 28C.04.040.  Among these functions is that of defining what are referred to as "service" areas for vocational-technical institutes in accordance with RCW 28C.04.020(6) which both defines that term and then expressly so provides, as follows:

            "'Vocational-technical institute' shall mean a specialized area nongraded vocational education facility established and operated for the purpose of offering comprehensive courses primarily oriented to the job market area in vocational education for persons sixteen years of age and older without regard to residence, pursuant to laws and rules and regulations pertaining to the maintenance, operation, and capital funding of vocational-technical institutes:  Provided, That service areas for common school vocational-technical institutes shall be defined specifically by the commission, recognizing areas traditionally served."

             [[Orig. Op. Page 6]]

            Also of note is RCW 28C.04.150 which provides, in material part, that:

            "Except as provided for by the rules and regulations of the commission, (1) common school vocational-technical institutes shall not offer new or expanded vocational programs outside their traditional service areas; (2) community colleges shall not offer new or expanded vocational programs outside their college districts.  Common school vocational-technical institutes and community colleges desiring to offer new or expanded programs outside their respective service areas or community college districts shall provide reasonable notice, as determined by the commission, to the common school and community college districts affected thereby."

            The question posed assumes the foregoing negative answer to question (1) and asks:

            ". . . may the commission for vocational education, in defining the 'service area' for a common school vocational-technical institute in accordance with RCW 28C.04.020(6), include therein certain geographic areas not physically situated within the boundaries of the school district involved and, by so doing, empower that district to establish, maintain and operate vocational training programs at locations outside of the district's boundaries but within the service area thus defined?"

            We answer in the affirmative.  Although the term "service area" is not defined in the law it seems to us, giving the phrase its common, ordinarily understood, meaning,2/ that it denotes a geographical area having set boundaries which is to be served by a vocational-technical institute.  Conversely, a "traditional service area" is one which, in the past, has been so served; i.e., based on our answer to question (1) above, the area of a school district which operates a vocational-technical institute.  And, while the commission is to recognize such district boundaries  [[Orig. Op. Page 7]] (i.e., areas traditionally served) when defining service areas for such institutes it is not bound to stay with those boundaries.  On the other hand, a vocational-technical institute may not offer new or expanded programs outside of itstraditional service area except as provided for by the rules and regulations of the commission.

           Also of note is the fact that vocational-technical institutes are already required to admit nonresidents of their respective school districts on the same basis as residents.  RCW 28.84.150,supra.  No mere administrative rule or regulation could change that.  Therefore, unless RCW 28C.04.020(6) and RCW 28C.04.150, supra, are construed to mean that with commission sanction a vocational-technical institute may actually maintain and operate vocational training programs at locations outside of its district's boundaries those statutes would be virtually meaningless.  Yet, as you know, there is a well-established presumption to the effect that the legislature does not deliberately engage in unnecessary or meaningless acts.  Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973).

            Therefore, in answer to your second question it is our opinion that the commission for vocational education may so define the service area of an existing VTI as to include therein territory not physically situated within the boundaries of the school district involved.  If the commission does so then, in turn, in accordance with commission rules and regulations the VTI in question may thereafter lawfully establish, maintain and operate vocational programs at any locations within its service area as so defined.

            Question (3):

            Your final question also relates to the establishment of service areas for VTIs and asks whether the commission, in performing this function, is ". . . required at that time to consider and apply the criteria specified in RCW 28C.04.040(2) for the adjudication of disputes between secondary and postsecondary education system?"

            RCW 28C.04.040(2) provides, in material part, as follows:

            "In adjudicating disputes between the two secondary and postsecondary education systems regarding the state plan, the commission will use at least the following criteria:  Recognition that secondary education is constitutionally the responsibility of the superintendent of public instruction and that by legislative action postsecondary education is the responsibility of institutions of higher education; adhere to the general policy set forth in the state plan; consider the particular vocational need of the community, region, or state and whether the common school or community college, or both,  [[Orig. Op. Page 8]] can best respond to those needs; encourage cooperation and coordination rather than competition and program conflict between secondary and postsecondary education systems; consider the desires and preferences of the residents of the immediate program service area and of the representatives of the fields of management, labor, and agriculture which benefit from possible program offerings; and avoid unnecessary duplication of vocational education programs and facilities."