PLANNING COMMISSION ‑- REGIONAL ‑- EMPLOYEES ‑- AGENCY OF THE PARTICIPATING MUNICIPAL CORPORATION

PLANNING COMMISSION ‑- REGIONAL ‑- EMPLOYEES ‑- AGENCY OF THE PARTICIPATING MUNICIPAL CORPORATION.

(1) A regional planning commission organized under RCW 35.63.070 is an agency of the participating municipal corporation and not a separate municipal corporation.

(2) Employees of such a commission are employees of the participating municipal corporations.

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                                                                   April 17, 1962

Honorable Roger L. Olson
Prosecuting Attorney
Franklin County
Pasco, Washington

                                                                                                              Cite as:  AGO 61-62 No. 115

Dear Sir:

            By letter previously acknowledged, you have requested an opinion of this office on questions paraphrased as follows:

            (1) Is a regional planning commission organized under RCW 35.63.070 a separate municipal corporation or is it merely an agency of the participating municipal corporations?

            (2) Are employees of such a commission employees of a separate municipal corporation or are they employees of the participating municipal corporations?

            We answer your questions as explained in the analysis.

                                                                     ANALYSIS

            The regional planning commission to which you refer is authorized by the following language:

            "The commissions of two or more adjoining counties, of two or more adjacent cities and towns, of one or more cities and towns and/or one or more counties, together with the boards of such counties and the councils of such cities and towns may cooperate to  [[Orig. Op. Page 2]] form, organize and administer a regional planning commission for the making of a regional plan for the region defined as may be agreed upon by the commissions, boards and councils.  The regional commission when requested by the commissions of its region, may further perform any of the other duties for its region that are specified in RCW 35.63.060 for city and county commissions.  The number of members of a regional commission, their method of appointment and the proportion of the cost of regional planning, surveys and studies to be borne respectively by the various counties and cities in the region, shall be such as may be agreed upon by commissions, boards and councils.

            "Any regional planning commission, or the councils or boards respectively of any city, town, or county, are authorized to receive grants-in-aid from the government of the United States or of any of its agencies, and are authorized to enter into any reasonable agreement with any department or agency of the government of the United States to arrange for the receipt of federal funds for planning in the interest of furthering the planning program."  Section 1, chapter 130, Laws of 1957 (RCW 35.63.070.)

            The commissions which are thus allowed to form a regional planning commission are created by the legislative bodies of counties, cities, and/or towns when such bodies have utilized the authorization contained in § 2, chapter 44, Laws of 1935 (RCW 35.63.020).

            The commission is expressly authorized to employ personnel who are paid through budgeted appropriations by the legislative bodies of the participating municipal corporations on an agreed-share basis.

            "The expenditures of any commission or regional commission authorized and established under this act, exclusive of gifts, shall be within the amounts appropriated for the purpose by the council or board.  Within such limits, any such commission is authorized to employ such employees and expert consultants as are deemed necessary for its work."  Section 4, chapter 44, Laws of 1935 (RCW 35.63.050).

             [[Orig. Op. Page 3]]

            The powers of such a commission are specified in § 10, chapter 44, Laws of 1935 (RCW 35.63.060) which states, in part, as follows:

            "Any such commission is authorized and empowered to act as the research and fact findingagency of city or county. . . ."  (Emphasis supplied.)

            Throughout the act the legislature used similar language to that underlined above, e.g.:

            "The commission may recommend to its council or board the plan . . ."  Section 8, chapter 44, Laws of 1935 (RCW 35.63.100).

            Such language, the method of creation, the lack of legislative power, the budgetary controls, and, most importantly, the purpose of such a commission indicate that it is merely an agency or department of its creators‑-the respective counties, cities and/or towns.

            While we have not previously had occasion to pass on the specific question you have now presented, the analogous situation of county planning commission employees was discussed in an opinion of this office issued shortly after the passage of the 1935 law, AGO 37-38, 4217 (September 16, 1937) [[1937-38 OAG 190 to Prosecuting Attorney, Spokane County]], a copy of which is enclosed.  We stated:

            "The county planning commission . . . when organized is solely and strictly an advisory body of the county and is an agency of the county and its members are to the extent of their authority county officers or employees.

            ". . .

            ". . . the parties whom the county planning commission is authorized to employ under the above section [§ 4, chapter 44, Laws of 1935] are merely such employees as are necessary to perform their duties as set out in section 10 of the act, and are really employees of the county under the control of the county commissioners. . . ." (Bracketed material supplied.)

            The supreme court has spoken of county planning commissions, using the following language:

            "When acting pursuant to our zoning statute, RCW chapter 35.63, a board of county commissioners is performing a legislative function.   [[Orig. Op. Page 4]] We stated in Lillions v. Gibbs, 47 Wn. (2d) 629, 289 P. (2d) 203 (1955), that

            "'. . . When a board of county commissioners acts pursuant to a statute relating to zoning, it is a legislative body exercising legislative powers. . . .'

            "The investigatory and advisory role of this legislative function is performed for the board by a planning commission.  SeeLauterbach v. Centralia, 49 Wn. (2d) 550, 304 P. (2d) 656 (1956)."  State ex rel. Gunning v. Odell, 158 Wash. Dec. 267 [[58 Wn.2d 275]], 270, 362 P. (2d) 254 (1961).  See, also, 1 McQuillin, Municipal Corporations, (3rd ed.) § 1.118.

            Further support for this conclusion is found in a recent amendment to the Planning Enabling Act, chapter 36.70 RCW, wherein the legislature referred to the counties, cities, towns, school districts, port districts, etc. which cooperate to form a regional planning commission as "participating municipal corporations."  Section 1, chapter 232, Laws of 1961.

            As we have indicated above, RCW 35.63.050 provides that the power to employ and pay employees of the regional commission is controlled by the governing bodies of the participating bodies.  In more general language:

            ". . . the cost of regional planning, surveys and studies to be borne respectively by the various counties and cities in the region, shall be such as may be agreed upon by commissions, boards and councils."  RCW 35.63.070.

            Included in this agreement on sharing costs may be found provisions pertinent to the status of the employees with regard to retirement benefits, sick leave and other prerequisites of employment.  Conceivably, the agreement could determine which employees would be considered as employees of each of the participating municipal corporations.

            It is our conclusion that a regional planning commission, engaging in its investigatory and advisory functions toward achieving comprehensive land-use planning, acts as an agency of the participating and cooperating municipal corporations and is not itself an agency of the  [[Orig. Op. Page 5]] state or a municipal corporation in its own right.  Its employees are employed by the commission on behalf of the participating municipal corporations and consequently are employees of those corporations.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID C. CUMMINS
Assistant Attorney General