SCHOOL DISTRICTS ‑- ELIGIBILITY FOR SCHOOL EMERGENCY CONSTRUCTION FUNDS.

SCHOOL DISTRICTS ‑- ELIGIBILITY FOR SCHOOL EMERGENCY CONSTRUCTION FUNDS.

The regulation of the School Emergency Construction Commission which prescribes minimum standards a school district must meet in order to be eligible for state emergency construction funds is in conflict with state law.  The statute is controlling.

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                                                                  March 23, 1956

Honorable William A. Gissberg
State Senator
Chairman, Subcommittee on Education
and Public Building
206-C Administration Building
University of Washington
Seattle 5, Washington                                                                                                              Cite as:  AGO 55-57 No. 230

Attention:  !ttDonald A. Sampson
            Executive Secretary

 Dear Sir:

             In your letter of February 21, 1956, you set out the statute which prescribes the requirements for eligibility a school district must meet to qualify for state aid for emergency school construction.  You then quote from the rules and regulations adopted by the School Emergency Construction Commission on May 14, 1955.

             You ask our opinion as follows:

             (1) Is the commission rule in conflict with the statute, and

             (2) if a school district authorizes a bond issue and thereafter obtains state aid for building construction but does not proceed to issue the bonds authorized, what is the position of the state in regard to its funds so granted?

              [[Orig. Op. Page 2]]

            We are of the opinion that the rule is in conflict with the statute and that the statute is controlling.  We are advised that the emergency construction funds are administered in conformity with the statute so that the problem you pose in your second question will not arise.

                                                                      ANALYSIS

             Chapter 3, Laws of 1955, Ex. Sess., provided a thirty million dollar appropriation for school construction in districts which are faced with an emergency.  To provide a minimum standard for eligibility the legislature included this provision in § 3 of the act:

             "* * *  Provided, That no part of the aforesaid thirty million dollars shall be allotted to a school district for the purpose aforesaid until such district has provided funds for school building construction purposes through the issuance of bonds or through the authorization of excess tax levies or both in an amount equivalent to ten percent of its taxable valuation plus such further amount as may be required by the school emergency construction commission:  * * *" (Emphasis supplied)

             The regulation which prescribes financial requirements for eligibility contains the following provision:

             "* * * a district must meet the following requirements:

             "a. Must have bonded indebtedness outstanding and/or authorized; or currently collectible and/or authorized excess tax levies for the building fund, or a combination of the foregoing, * * *" (Emphasis supplied)

             You are correct in your observation that the underscored language of the statute prescribes a more exacting requirement for eligibility than the underscored language of the regulation.  A school district could qualify under the regulation by authorizing a bond issue sufficient to bring the district up to ten percent of its taxable valuation.  Under the terms of the statute the bonds must actually have been issued.  It is well settled that commissions established by the legislature in exercising the rule‑making power must act within the limits of the power granted to them.  State v. Miles, 5 Wn. (2d) 322.

              [[Orig. Op. Page 3]]

            We are advised by representatives of the School Emergency Construction Commission that the purpose of the regulation was to expedite the processing of applications for emergency aid.  School districts complying with the terms of the regulation were given a tentative approval with the explicit understanding that the bonds authorized must have been issued and the proceeds disbursed by the local districts before any state funds are to be made available.

             We have been assured that in all cases the commission will act in complete conformity with the standards of eligibility prescribed by the statute.

             We thank you for directing this matter to our attention, and hope the foregoing comments will prove helpful.

 Very truly yours,
DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General