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Bob Ferguson

OPERATION OF PUBLIC HOSPITAL BY RELIGIOUS ORDER

AGLO 1976 No. 1 -
Attorney General Slade Gorton

DISTRICTS -- HOSPITALS -- CHURCHES -- CONTRACTS -- OPERATION OF PUBLIC HOSPITAL BY RELIGIOUS ORDER

Without an express grant of statutory authority it would not be permissible for a public hospital district to contract with a private organization, including a religious order, for the operation of a hospital facility owned by such a district.

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                                                                  January 5, 1976

Honorable Bruce A. Wilson
State Senator, Seventh District
P.O. Box F
Omak, Washington 98841                                                                                                                 Cite as:  AGLO 1976 No. 1

Dear Sir:

            By recent letter you have briefly described a proposal currently under development in Stevens County whereby construction of a new hospital would be financed by a public hospital district, utilizing public funds, and then turned over to a religious order for the purposes of administration and operation.  You have then asked for our advice on the following two questions:

            "(1) Is it permissible for a public hospital district to contract with a religious order for operation of a hospital built solely or substantially by public funds on the premise that the hospital would not be operated as a religious institution?

            "(2) If this is permissible, would the religious order have the authority to refuse use of hospital facilities for the performance of elective abortions and/or other services it considered morally objectionable?"

            We answer the first of these two questions in the negative, thereby rendering consideration of the second unnecessary.

                                                                     ANALYSIS

            Question (1):

            While the religious character of the private organization which would operate the hospital under the proposed contract very well could, depending upon its specific terms, pose a significant constitutional problem under Amendment I to the United States Constitution and/or  [[Orig. Op. Page 2]] Article I, § 11 of our own state constitution which relate to the separation of church and state,1/ we need not and do not reach that issue in disposing of your opening question.  Rather, we base our negative answer thereto upon a simple lack of statutory authority.

            It is a well settled rule, laid down by our court in numerous cases over the years, that where the legislature has delegated discretionary powers to a public officer or board, those powers cannot be subdelegated to others unless the legislature has so authorized.  Roehl v. Public Utility Dist. No. 1, 43 Wn.2d 214, 261 P.2d 92 (1953);Ledgering v. State, 63 Wn.2d 94, 385 P.2d 522 (1963);In re Puget Sound Pilots Ass'n, 63 Wn.2d 142, 385 P.2d 711 (1963).  As explained in theRoehl case, supra, at page 240:

            ". . .

            "Where the enabling legislation under which a municipal or quasi-municipal corporation derives its power confides legislative or discretionary functions in particular officials or boards, such functions may not be delegated to others.  2 McQuillin on Municipal Corporations (3d ed.) 672, § 10.39; cases cited in 37 Am.Jur. 732, Municipal Corporations, § 118, note 14.  Unless the enabling legislation provides otherwise, however, those in whom such functions repose may delegate to others the performance of duties of a purely ministerial or administrative nature.  Storey v. Seattle, 124 Wash. 598, 215 Pac. 514.

            ". . ."

            In this case, by its enactment of the various statutes codified as chapter 70.44 RCW, the legislature has provided for the establishment of public hospital districts under the general governance of an elected board of commissioners.  RCW 70.44.040.  This board, in turn, is required by RCW 70.44.070 to appoint a superintendent of whom RCW 70.44.080 then says:

             [[Orig. Op. Page 3]]

            "The superintendent shall be the chief administrative officer of the public district hospital and shall have control of administrative functions of said hospital.  He shall be responsible to the commission for the efficient administration of all affairs of the hospital.  In case of the absence or temporary disability of the superintendent a competent person shall be appointed by the commission.  The superintendent shall be entitled to attend all meetings of the commission and its committees and to take part in the discussion of any matters pertaining to the duties of his department, but shall have no vote."

            Likewise, see RCW 70.44.090 which goes on to provide that:

            "The public hospital district superintendent shall have power, and it shall be his duty:

            "(1) To carry out the orders of the commission, and to see that all the laws of the state pertaining to matters within the functions of his department are duly enforced.

            "(2) To keep the commission fully advised as to the financial condition and needs of the district.  To prepare, each year, an estimate for the ensuing fiscal year of the probable expenses of his department, and to recommend to the commission what development work should be undertaken, and what extensions and additions, if any, should be made, during the ensuing fiscal year, with an estimate of the costs of such development work, extensions and additions.  To certify to the commission all the bills, allowances and payrolls, including claims due contractors of public works.  To recommend to the commission salaries of the employees of his office and a scale of salaries or wages to be paid for the different classes of service required by the district."

            Without much question those general statutes would be subverted, and the above described rule against unauthorized subdelegation violated, by any contract purporting to turn over the function of operating a hospital facility constructed and owned by a public hospital district to a private organization regardless of the religious or sectarian characteristics of that organization.

             [[Orig. Op. Page 4]]

            Question (2):

            As far as your second question is concerned, the foregoing negative answer to your first one seemingly renders that further inquiry moot.  Nevertheless, you might be interested in reviewing the current status of the law respecting the performance of abortions in public hospital facilities, as recently outlined by this office in AGLO 1975 No. 71 at pages 5 and 6 [[to Alan Bluechel, State Senator on August 13, 1975 an Informal Opinion, AIR-75571]].  We are, therefore, also enclosing a copy of this prior opinion for your immediate reference.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Accord, the general discussion of this question which you will find in our letter opinion of March 3, 1971, to State Representative Dale E. Hoggins [[an Informal Opinion [AIR-71596]], copy enclosed.