SCHOOLS ‑- AUTHORITY OF BOARD OF DIRECTORS TO USE ITS EMPLOYEES IN MAINTAINING ITS BUILDINGS.

SCHOOLS ‑- AUTHORITY OF BOARD OF DIRECTORS TO USE ITS EMPLOYEES IN MAINTAINING ITS BUILDINGS.

The board of directors of a school district may legally utilize its employees in repairing and maintaining the district's buildings.

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                                                                February 18, 1959

Honorable Jerry Hagan, Director
Department of Labor & Industries
General Administration Building
Olympia, Washington                                                                                                      Cite as:  AGO 59-60 No. 13

Attention:  !ttMr. J. L. DiJulio, Supervisor
            Industrial Relations

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on several questions relating to school districts and public works contracts.  We believe a determination of the following question will adequately answer your inquiry:

            Does a board of directors of a school district have the power or authority under state law to utilize its own employees when repairing and maintaining its buildings?

            We answer this question in the affirmative.

                                                                     ANALYSIS

            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature; those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School v. Sharples, 159 Wash. 424, 293 Pac. 944 (1930); Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P. (2d) 78  [[Orig. Op. Page 2]] (1934); see also, State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934) RCW 28.58.010.

            In this state school districts are divided into first, second and third class districts.  (See RCW 28.57.140) The general powers granted, and the duties imposed by the legislature upon the boards of directors of all class school districts are set forth in chapter 28.58 of the Revised Code of Washington [[chapter 28.58 RCW]].  The pertinent statutes provide, in part, as follows:

            "A school district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes, and in that name and style may sue and be sued, purchase, hold, and sell personal property and real estate,and enter into such obligations as are authorized by law.  The board of directors of the school district shall have exclusive control of all school buildings and other property, real or personal, owned by the district."  (RCW 28.58.010)  (Emphasis supplied.)

            "Every board of directors, unless otherwise specially provided by law, shall:

            "(3) Rent,repair, furnish and insure schoolhouses and employ janitors, laborers andmechanics;

            "(4) Cause all schoolhouses to be properly heated, lighted and ventilated, and cause all school premises to be maintained in a cleanly and sanitary condition;" (RCW 28.58.100) (Emphasis supplied.)

            From a reading of these statutes, it is quite obvious that all school districts are expressly authorized and directed to repair and maintain their buildings.  However, our examination of the entire school code (Title 28 RCW) reveals only one statute relating to themeans or method of per forming such work and that statute, RCW 28.62.170, applies only to first class districts.  It provides as follows:

            "When, in the opinion of the board, the cost of any furniture, supplies,building, improvements, or repairs will equal or exceed the sum of one thousand dollars, the board shall give due notice by publication, in at least one legal newspaper published within the district, in three regular consecutive  [[Orig. Op. Page 3]] weekly issues, of the intention to receive bids therefor; and the board shall determine the specifications for such bids which shall be public:  Provided, That the board may, without giving such notice, make improvements or repairs to the property of the district through their shop and repair department."  (Emphasis supplied.)

            The language of this statute is clear and unambiguous, and the underlined portion thereof expressly authorizes a first class school district board to repair and/or maintain its property either:  (1) by contract; or (2)by utilizing its own personnel.

            Although the legislature has not enacted a similar statutory provision relative to second and third class districts, it is our opinion, that since these districts are required to perform repair and maintenance work and there is no limitation or restriction imposed by law on the method or means that may be employed by them, these districts, like first class districts, may exercise discretion in determining the manner in which such work should be performed.  This conclusion is in accord with the rule stated by our court in Dalton v. Clark, 18 Wn. (2d) 322, 139 P. (2d) 291 (1943):

            "It is a general rule of law that a municipal corporation vested with the authority to construct public works or make improvements to property operated by it, . . . may do soeither by and through its own officers and agents or by contract; and, if by contract, it is not required to advertise or call for bids or let the contract to the lowest bidder unless there be a constitutional, statutory, or charter provision requiring such a course to be pursued.  (Citations omitted)"  (p. 329) (Emphasis supplied.)

            In passing we should mention that we have considered chapter 183, Laws of 1923 (cf. chapter 39.04 RCW) which is a general act relating to public works of the state, its agencies and municipalities.

            Public work as that term is defined in section 1 thereof includes:

            ". . . all work, construction, alteration, repair or improvementother than ordinary maintenance, executed at the cost of the state or any municipality . . ." (cf. RCW 39.04.010) (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Section 2 (cf. RCW 39.04.020) provides, in part, as follows:

            "If the state, or such municipality [which term includes school districts] shall determine that it is necessary or advisable that such work shall be executed by any means or method other than by contract, and it shall appear by such estimate that the probable cost of executing such work will exceed the sum of twenty-five hundred dollars, then the state or such municipality shall at least fifteen days before beginning work cause such estimate, together with a description of the work, to be published at least once in a newspaper of general circulation in the county in which such work is to be done."  (Emphasis supplied.)

            This act does not require the work in question to be performed by contract.  It is apparent from a reading thereof that its purpose is merely to prescribe the procedure to be followed where public works, as defined therein, are carried on by a municipality, including a school district, by any means or method other than by contract for a fixed or determinable amount awarded after advertisement and bids.  See the opinion of the attorney general dated July 24, 1947, to the prosecuting attorney of Cowlitz County.  Therefore, the provisions of this act are consistent with and, in effect, supports the conclusion stated above.

            Furthermore, there is no conflict between chapter 39.12 of the Revised Code of Washington and our conclusion that all class school boards may repair and maintain their building either by contract or by utilizing their own personnel.  Chapter 39.12 RCW deals with "prevailing wages on public works" and it is provided therein:

            "The hourly wages to be paid to laborers, workmen or mechanics, upon all public works of the state or any county, municipality or political subdivision created by its laws, shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the locality within the state where such labor is performed.  This chapter shall not apply to workmen or other persons regularly employed on monthly or per diem salary by the state, or any county, municipality, or political subdivision created by its laws."  (RCW 39.12.020) (Emphasis supplied.)

             [[Orig. Op. Page 5]]

            In an opinion to the state auditor, dated May 3, 1957, (AGO 57-58 No. 54) this office interpreted the above statute in respect to its effect on public employees.  It is stated therein:

            ". . . if regular employees of the state, or any county, municipality, or political subdivision created by its laws, whose wages are predicated upon a monthly or per diem basis, are employed upon a public work, they are excluded from the required method of payment laid out in the first sentence of this statute.  This statute is not concerned as to how or in what capacity such employees may be utilized."  (Emphasis supplied.)

            Accordingly, you are advised that it is the opinion of this office that the board of directors of a school district are legally authorized to utilize regular employees of the district in repairing and maintaining its buildings.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General