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AGLO 1982 No. 15 - June 17, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- ADMINISTRATIVE LAW ‑- SCHOOLS ‑- INTER-DISTRICT STUDENT TRANSFERS

After July 1, 1982, the hearing contemplated by WAC 392-137-060, relating to the approval of inter-district student transfers by the State Superintendent of Public Instruction, will have to be conducted by an administrative law judge in accordance with the provisions of chapter 34.12 RCW unless the hearing is conducted, instead, by the Superintendent of Public Instruction himself.

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                                                                   June 17, 1982

Honorable Frank Brouillet
Superintendent of Public
  Instruction
Old Capitol Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1982 No. 15

Dear Sir:

            This is written in response to your recent request for our opinion on the following question:

            "Whether, after July 1, 1982, the hearing contemplated by WAC 392-137-060 will have to be conducted by an administrative law judge in accordance with the provisions of chapter 34.12 RCW unless the hearing is conducted, instead, by the Superintendent of Public Instruction himself."

            We answer this question in the affirmative.

                                                                     ANALYSIS

            In response to an earlier letter we previously advised you, by letter dated May 27, 1982, that while the Superintendent of Public Instruction may, under RCW 28A.58.242, delegate the function of conducting a hearing on an application for an inter-district student transfer to ". . . his or her designee . . .", only the Superintendent himself,

                         [[Orig. Op. Page 2]]

". . . may order the resident district to release such a student who is under the age of twenty-one years in the event he or she or his or her designee finds that a special hardship or detrimental condition of a financial, educational, safety or health nature affecting the student or the student's immediate family or custodian may likely be significantly alleviated as a result of the transfer. . . ."

            In addition, we thereby advised you that the provisions of RCW 34.04.110, as set forth below,1/ are applicable even in the case of an agency (such as yours) which is headed by a single executive.

            With those propositions in mind we turn, for resolution of your present question, to RCW 34.12.040.  That statute, which will become effective July 1, 1982 (along with the remainder of chapter 34.12 RCW) reads, in pertinent part, as follows:

            "Whenever a state agency conducts a hearing which is not presided over by officials of the agency who are to render the final decision, the hearing shall be conducted by an administraive [administrative] law judge assigned under this chapter. . . ."

             [[Orig. Op. Page 3]]

            We also note, in determining the applicability of this statute to the subject proceeding, that the legislature has expressly excluded some agencies from its application‑-by virtue of the following definition of "state agency" in RCW 34.12.020:

            "'State agency' means any state board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches, the pollution control hearings board, the shorelines hearings board, the forest practices appeals board, the environmenal [environmental] hearings office, the board of industrial insurance appeals, the state personnel board, the higher education personnel board, the public employment relations commission, and the board of tax appeals."

            The Office of the State Superintendent of Public Instruction, however, is not one of those agencies which have thus been exempted.  It is therefore our opinion that your question, as above stated, must be answered in the affirmative.

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

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 34.04.110 reads as follows:

            "Whenever in a contested case a majority of the officials of the agency who are to render the final decision have not heard or read the evidence, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision, including findings of fact and conclusions of law has been served upon the parties, and an opportunity has been afforded each party adversely affected to file exceptions and present written argument to a majority of the officials who are to render the decision, who shall personally consider the whole record or such portions thereof as may be cited by the parties.  Oral arguments may be heard in the discretion of the agency."

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