SALARIES

OFFICES AND OFFICERS ‑- STATE BOARD FOR COMMUNITY COLLEGE EDUCATION ‑- COMMUNTIY COLLEGES ‑- EMPLOYEES ‑- SALARIES

WAC 131-16-300(2)(a) and (b), relating to salary increases for non-civil [[*sic (noncivil)]]service community college employees, authorize alternative choices or approaches which are legally available to all community colleges operating within the state system.

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                                                               November 22, 1974

Honorable George C. Corcoran
President, Seattle Community College District
401 Queen Anne Avenue N.
Seattle, Washington 98109                                                                                                               Cite as:  AGLO 1974 No. 99

Dear Sir:
 
            By recent letter you have asked for our opinion as to the meaning of a certain regulation recently promulgated by the state board for community college education.  Specifically, you have asked whether subparts (2)(a) and (2)(b) of WAC 131-16-300, relating to the subject of salary increases for non-civil [[noncivil]]service community college employees, authorize alternative choices or approaches which are legally available to all community colleges operating within the state system.
 
            We answer this question in the affirmative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            We begin with a summary of the relevant facts leading up to this request.
 
            In response to a failure by the 1974 special session of the state legislature to appropriate any moneys specifically earmarked for salary increases for non-civil [[noncivil]]service community college employees, the state board for community college education (hereinafter referred to as the state board), on May 9, 1974, adopted a resolution1/ by which it directed that:
 
            ". . . the various college district boards of trustees refrain from granting to noncivil service personnel any general salary increases for academic year 1974-75, either from appropriated general fund or budgeted local revenues; however, district boards may implement existing salary administration plans and schedules by granting incremental and/or promotional advancements as therein  [[Orig. Op. Page 2]] provided, when in the judgment of the district board of trustees sufficient funds to do so are available, such amounts not to exceed the total monetary amount of increments established in the 1973-74 schedules.  Districts without a specifically identified incremental feature in the salary schedule may pay a maximum of the systemwide average incremental percentage."  (Emphasis supplied.)
 
            The legal basis for this action, in accordance with the decision of the Washington supreme court in Greenwood v. State Bd. for Com. Col., 82 Wn.2d 667, 513 P.2d 57 (1973), was RCW 28B.50.090 which empowers the state board, in exercising general supervision and control over the state system of community colleges, to:
 
            "(1) Review the budgets prepared by the community college boards of trustees, prepare a single budget for the support of the state system of community colleges and adult education, and submit this budget to the governor as provided in RCW 43.88.090; the coordinating council shall assist with the preparation of the community college budget that has to do with vocational education programs;
 
            "(2) Establish guidelines for the disbursement of funds; and receive and disburse such funds for adult education and maintenance and operation and capital support of the community college districts in conformance with the state and district budgets, and in conformance with chapter 43.88 RCW;"
 
            Thereafter, however, before transforming the resolution into a formal administrative regulation under the state administrative procedures act, the board received comments from various sources.  Included among them was a recommended draft of the regulation itself, which was prepared by a task force committee composed of three state board members along with two community college presidents, two trustees, two full time and two part time faculty members, and, finally, two spokesmen from each of the major labor organizations representing community college employees.2/   In this draft, significantly, the  [[Orig. Op. Page 3]] above underscored final sentence of the earlier resolution was modified ‑ with the result that as it was officially adopted by the board on August 1, 1974, the regulation, since codified as WAC 131-16-300, read as follows:
 
            "(2) It is the judgment of the State Board that district boards should refrain from granting to non-civil [[noncivil]]service personnel any general salary increases for academic year 1974-75; however, district boards may:
 
            "(a) Implement existing salary administration plans and schedules by granting incremental and/or promotional advancements as therein provided when, in the judgment of the district board of trustees, sufficient funds to do so are available provided further that such amounts do not exceed the total monetary amount of increments established in the 1973-74 schedules;
 
            "(b) Implement in lieu of increments an increase equal to the system-wide average incremental percentage which is determined to be three percent; . . ."
 
            The difference between the resolution and the regulation, it will thus readily be seen, is that the alternative approach authorized by subparagraph (b) of the regulation was, under the resolution, only available to those community college districts ". . . without a specifically identified incremental feature in . . . [their] salary schedule . . .," whereas this qualifying language was omitted from the regulation.
 
            At this point you, in your capacity as president of the Seattle Community College District, entered the picture.  Interpreting this change in language in the regulation to mean that all community college districts thereby could either implement existing salary plans and schedules by granting incremental pay increases as therein provided or, in the alternative, provide for pay increases ". . . equal to the system-wide average incremental percentage which is determined to be three percent; . . .", you notified the director of the state community college system, on October 3, 1974, of a tentative agreement relating to your employees' salaries for 1974-75 which you summarized as follows:
 
             [[Orig. Op. Page 4]]
            "To provide further clarification on the salary offer, the following breakdown is provided for your information:
 
            "A. Provide regular increments for those eligible‑-1.75%
 
            "B. Add one step on al lanes (increment for those not currently eligible)‑-0.49%
 
            "C. Increase the salary schedules by .76%
 
            "The total amount of the above salary offer falls within the 3% guideline outlined in WAC 131-16-300 Salary Increases for NonCivil Service Personnel.  Specifically, we are referring to the section which states, 'implement in lieu of increments an increase equal to the system-wide average incremental percentage which is determined to be three percent; and . . .'"
 
            In response, however, you were told by the director, pursuant to his letter to you of October 9, 1974, that this tentative agreement could not be implemented for the following stated reason:
 
            ". . .  At the time your [1973-74] contract expired, the community college system was governed by an emergency rule absolutely restricting any salary adjustments except increments for eligible employees.  That rule was subsequently replaced by WAC 131-16-300.  Neither rule contemplated the option of providing 3% adjustments except for those institutions and groups of noncivil service employees who were not covered by an increment schedule during 1973-74."
 
            Questioning the correctness of this interpretation of the formal regulation (as opposed to the initial resolution) you then sought a review of the question by the state board itself.  However, at a special meeting of the board on  [[Orig. Op. Page 5]] November 14, 1974, a majority of its members3/ rejected your counter-arguments [[counterarguments]]and, instead, adopted the following two resolutions prepared for it by the director and his staff:
 
            "RESOLUTION NO. 74-47
 
            "BE IT RESOLVED:  That the State Board concludes that sections 2(a) and 2(b) in the Rule (WAC 131-16-300) did not constitute options which District 6 could jusifiably exercise.
 
            "RESOLUTION NO. 74-48
 
            "BE IT RESOLVED:  That the State Board sustain the staff recommendation relative to the agreement reached by the Board of Trustees and the faculty in District 6 and that the District be directed to modify its agreement to comply with Section 2(a) of WAC 131-16-300, effective November 14, 1974."
 
            Nevertheless, you have continued to question the correctness of this view as to the meaning of the regulation and, for that reason, you have asked for our opinion on the matter.  In so doing, of course, you have obviously placed us in a position of second guessing, so to speak, another state agency's interpretation of its own administrative regulation.  Thus, to some, we might be regarded as being out of place in honoring that request.  However, as explained in 2 Am.Jur.2d, Administrative Law, § 306:
 
            "While an administrative agency may construe the rules and regulations enacted by it, just as it may construe the statute it administers, and such construction or interpretation will be given great weight by the courts, it is the court, rather than the agency, which must ultimately determine the true construction or interpretation, just  [[Orig. Op. Page 6]] as it is in the case of the statute administered."
 
            Likewise, under the provisions of RCW 43.10.030, this office is required to provide legal counsel and representation to all state agencies and officers and, when requested, to
 
            ". . . give written opinions upon all constitutional legal questions relating to the duties of such officers;"
 
            In this case you, as the president of the Seattle Community College District, have requested such an opinion.  Our task in responding, therefore, is that of providing you with what, in effect, is our prognosis of how a court would rule as to the true legal meaning of WAC 131-16-300 under the circumstances surrounding this request if, instead, this dispute were to be resolved through litigation.  We may, for this reason, thus perform essentially the same function as would a court in determining that question.
 
            In doing so, moreover, we, like a court, are to be guided by the same rules of construction and interpretation as apply to statutes in the same field.  Accord, 2 Am.Jur. 2d, Administrative Law, § 307.  Thus, insofar as the significance of the state board's administrative construction in the instant case is concerned, we should follow the same rule as would a court under like circumstances; and this rule, as also stated in the above section of 2 Am.Jur. 2d, Administrative Law, is that:
 
            ". . .  An administrative construction of the agency's own regulations is controlling in determining their meaning unless plainly erroneous or inconsistent with the regulations."  (Emphasis supplied.)
 
            Here, in our opinion, we have a clear case for the application of the underscored exception to this general principle.  Omissions in a legislative‑type administrative regulation can no more be supplied by administrative interpretation than omissions in a statute can be supplied by an interpretive regulation.  M. Kraus & Bros. v. United States, 327 U.S. 614, 90 L.Ed. 894, 66 S.Ct. 705 (1946).  Yet that is precisely what the state board, by its resolution of November 14, 1974, supra, has attempted to do.  It has, in this manner, attempted to write into WAC 131-16-300(2)(b) the same qualification as appeared in its earlier, May 9, 1974,  [[Orig. Op. Page 7]] resolution; i.e., that the alternative approach to salary increases therein provided for is only to be deemed available to those community college districts ". . . without a specifically identified incremental feature in [their] salary schedule."
 
            But the regulation, as adopted by the board under the administrative procedures act, simply does not say that ‑ although it is obvious from the board's earlier resolution that its drafters knew how to express themselves otherwise when they wanted to do so.  However, in the transformation of that resolution into a formal administrative regulation, the critical, qualifying language of the resolution was dropped.  In this manner, the alternative procedure sanctioned by subpart (2)(b) was made available to all community college districts ‑ and not merely to those not having incremental salary schedules.
 
            If the state board now desires to amend its regulation so as to cause its terms to conform with those of the board's resolution, we have no doubt that it may do so ‑ at least insofar as any situations not already covered by 1974-75 employment contracts are concerned.4/   But any such amendment would have to be adopted in accordance with the same rule‑making procedures as governed the board in its original adoption of the present regulation.  In the meantime, notwithstanding the action taken by the state board at its November 14, 1974 meeting, in adopting Resolutions Nos. 74-47 and 74-48 as above described, it is our considered judgment that WAC 131-16-300, supra, must be taken to mean exactly what it now says.

            Thus, our direct answer to your question is in the affirmative.  In our opinion, in short, the plain, clear and unambiguous language of the subject regulation, as it  [[Orig. Op. Page 8]] was actually adopted by the board, sets forth alternative choices or approaches to the subject of salary increases for non-civil [[noncivil]]service community college employees which are legally available to all community colleges operating within the state system.  And this, likewise, is what we would expect a court to hold if the question were to be placed before it in the context of a lawsuit between your community college district and the state board.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                        ***   FOOTNOTES   ***
 
1/Resolution No. 74-9.
 
2/The American Federation of Teachers and the Association for Higher Education.
 
3/Under RCW 28B.50.050, the state board consists of seven members; however, only six of these positions are currently filled.  Another statute, RCW 28B.50.070, provides that no action shall be taken by less than a majority (four) of the board.  It is our understanding that the original vote on the subject resolutions below noted (which occurred earlier, on October 31, 1974) was three in favor, two against, and one absent.  At the later special meeting, however, upon further consideration, the resolutions passed by a five to one margin.
 
4/We will not, in this opinion, attempt to pass upon the effectiveness of any such amendment to WAC 131-16-300 in the case of those community college districts which have already entered into such contracts.  That issue, as we understand it, is likely to be soon involved in litigation in a case involving the applicability of WAC 131-16-300 to the Tacoma Community College District; and, as you will readily understand, it is a well-established policy of this office not to pass, in an opinion such as this, upon any question which is thus pending in court.