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AGLO 1982 No. 28 - December 16, 1982
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS -- STATE -- COMMISSION FOR VOCATIONAL EDUCATION -- STATE BOARD FOR COMMUNITY COLLEGE EDUCATION -- SUPERINTENDENT OF PUBLIC INSTRUCTION -- SCHOOLS -- RESPONSIBILITY FOR VOCATIONAL EDUCATION

(1) The 1975 Vocational Education Act establishes a trichotomous relationship between the Commission for Vocational Education, the State Superintendent of Public Instruction and the State Board for Community College Education whereby those three agencies share the responsibility and authority for directing public vocational education in the state.   

(2) Consideration, in light of the 1975 act and its declared purposes, of the authority of the Commission for Vocational Education to adopt a state plan for vocational education; to develop and enforce approval standards for vocational education offered by public or private schools; to establish minimum student performance standards, facility and equipment standards, and teaching and support personnel standards, for vocational programs; to withhold federal, state or local funds from other governmental entities under certain described circumstances; to adopt a state plan for vocational education in the event that the secondary or postsecondary education systems fail to make any initial planning efforts; to carry out the daily administration of the state plan on behalf of either the State Superintendent or the college board in the event that either fails to perform such activities; and to conduct compliance audits.

                                                                 - - - - - - - - - - - - -

                                                               December 16, 1982

Mr. William P. Mohler
Executive Director
Washington State Commission for
     Vocational Education
Building 17, Airdustrial Park, LS-10
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1982 No. 28

Dear Mr. Mohler:

            By letter previously acknowledged the Commission for Vocational Education requested our opinion on a number of questions which, for the most part, involve the relationship established by law between the commission, the office of the Superintendent of Public Instruction and the State Board for Community College Education.  Due to the multiple references to  [[Orig. Op. Page 2]] these three agencies throughout the balance of this opinion we will hereafter refer to them respectively as the commission, the state superintendent and the college board for the sake of brevity.  With that in mind, the questions posed for our consideration are, in essence, as follows:

            "(1) What authority does the commission have for the direction of public vocational education in the state?

            (2) Does the 1975 Vocational Education Act establish a trichotomous relationship between the commission, the state superintendent and the college board whereby the three share the responsibility and authority for directing public vocational education in the state?

            (3) Does the commission have the authority to adopt a state plan providing for single comprehensive standards for vocational education?

            (4) Does the commission have the authority to develop and enforce approval standards for vocational education offered by any public or private school or any other training facility where local, state or federal vocational funds are used?

            (5) Does the commission have the authority to establish (1) minimum student performance standards, (2) facility and equipment standards, and (3) teaching and support personnel standards, for all vocational programs supported with federal, state or local vocational funds?

            (6) Does the commission have the authority to withhold federal, state and local funds from other governmental entities in the following instances:  (a) in the event any agency or subagency fails to meet the standards of the state plan; (b) in the event any school or system fails to abide by the commission's final determination of a dispute pursuant to RCW 28C.04.040; (c) in the event either the state superintendent or the college board fail to carry out its responsibility for the daily administration of the state plan as provided in RCW 28C.04.040; and (d) in the event the secondary and postsecondary education systems fail to make any initial planning for the state plan as provided in RCW 28C.04.040?

            (7) Does the commission have the authority to adopt a state plan for vocational education in the event that the secondary or postsecondary education systems fail to make any initial planning efforts as required by RCW 28C.04.040(1), or their planning efforts are not submitted in a timely manner?

             [[Orig. Op. Page 3]]

            (8) Does the commission have the authority to carry out the daily administration of the state plan in behalf of either the state superintendent or the college board in the event either fails to perform such activities?

            (9) Does the commission have the authority to conduct compliance audits with all federal, state and local educational policies, rules and regulations adopted by Congress, the legislature, the commission, the state superintendent, the community college board or other appropriate bodies?

                                                                     ANALYSIS

            Our basic function in this opinion is to determine the powers and duties of the commission based upon a reading of its enabling legislation, the 1975 Vocational Education Act,1/ now codified in chapter 28C.04 RCW.  For, as we have often stated, a state agency has only those powers expressly given it by statute or those necessarily implied therefrom.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952); and,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).

            We will also be guided in the course of construing the subject legislation by the principle of statutory construction that legislative intent is to be derived from a reading of the statutory text which is involved as a whole (and not from a single sentence or paragraph in isolation) interpreted in terms of the general purpose of the act.  Greenwood v. State Board for Community College Education, 82 Wn.2d 667, 513 P.2d 57 (1973); and,State ex rel. Tarver v. Smith, 78 Wn.2d 152, 470 P.2d 172 (1970).

            Prior to reviewing the provisions of chapter 28C.04 RCW we believe it will be helpful in dealing with your questions if we first review the legislative history and evolution of the various state vocational education agencies. This history will assist in placing matters in perspective and, although not necessarily determinative of legislative intent, serves as a useful aid in arriving at legislative intent.  See,Weaver v. Evans, 80 Wn.2d 461, 495 P.2d 639 (1972).

            The commission is actually the third in line of three state vocational education agencies created by the legislature.  In the beginning there was the State Board for Vocational Education  [[Orig. Op. Page 4]] which was established in 1919 pursuant to chapter 160, Laws of 1919.  That board consisted of members of the State Board of Education and, of particular note, it was created at a time when the delivery system for public vocational education programs was essentially limited to the common school system of which the State Board of Education was (as it still is) an administrative adjunct.

            School districts were authorized by section 5 of the 1919 act,supra, to establish all day, part-time and evening vocational schools and classes of less than college grade.  Those vocational schools and classes were eligible for state and federal funding where they met the standards, courses and requirements established by the State Board for Vocational Education.  See, sections 5 and 6 of the 1919 act, supra.

            The original state board was also given responsibility respecting funding, teacher training, teacher qualifications and the promotion of vocational education in the public schools.  Specifically, section 5 of the 1919 act, supra, empowered the board to administer both state and federal vocational education funds; to formulate plans for the promotion of vocational education in the public schools; to provide for the preparation of vocational education teachers, including the maintenance of teacher preparation courses; to prescribe the qualifications of vocational education teachers, directors and supervisors; and to make investigations relating to vocational education.

            For approximately 48 years this board continued to function in that manner and to retain essentially the responsibilities we have just outlined.2/   Then, in 1967, the legislature enacted the Community College Act of 19673/ which created the state community college system and vested it with the responsibility for, in essence, the 13th and 14th grades - including the vocational programs that were a part thereof - previously conducted by various school districts in facilities previously referred to as junior colleges.  In addition, by this act, the State Board for Vocational Education was abolished and a new state agency, the Coordinating Council for Occupational Education, was created - concurrent with this division in  [[Orig. Op. Page 5]] jurisdictional responsibility for vocational education between the common school and community college delivery systems.4/

             The responsibility of the coordinating council as an agency independent of the two delivery systems, was however, basically limited to complying with conditions to the state's receipt of federal vocational education funds.  In this respect, section 16 of the Community College Act of 1967 (which created the coordinating council) provided in part that the council was created "to serve as the sole agency of the state for the receipt of federal funds made available by acts of Congress for vocational education . . ."  In turn, section 22 of the 1967 act granted the council the power:

            "(1) To prepare, adopt and certify the state plan for vocational education . . .;

            "(2) To adopt necessary rules and regulations and do such other acts not forbidden by law necessary to carry out the provisions of this act and the federal acts . . .;

            "(3) To carry out the aims and purposes of the acts of Congress pertaining to vocational education . . ."

            The role of the coordinating council was, thus, decidedly narrower than that of its predecessor.  For example, the 1967 act contained no express grant of power respecting vocational school and course standards, or the qualifications to be met by vocational personnel.

            The coordinating council, in turn, was not destined to exist and function for nearly half a century as had its predecessor.  The competing philosophical differences of the two public vocational education delivery systems were quickly manifested in the form of conflicting House of Representatives bills introduced in the 1973 legislative session at the request of the state superintendent and the college board, respectively.  The Senate reacted by refusing to take action on the only one of those bills which passed the House and by then directing that a select committee study the desirability of modifying the state's vocational education systems.  Senate Resolution 1973-1.  That study was subsequently continued by Senate Resolution 1975-6, and  [[Orig. Op. Page 6]] eventually resulted in a document known as the 1975 Report and Recommendations of the Senate Select Committee on Vocational Education.

            In essence, that 1975 study report recommended the enactment of Substitute Senate Bill 2463 abolishing the coordinating council and creating, in its place, the present commission.  In support of that recommendation, the committee wrote:

            "The Senate Select Committee on Vocational Education recommends:

            "1. That the Legislature reaffirm that the State of Washington is best served by comprehensive educational programs which will provide a strong emphasis on vocational and occupational training.

            "2. That vocational training is best provided by cooperation between existing delivery systems in the common schools, area vocational technical institutes, and the community colleges.

            "3. That in order to avoid jurisdictional confusions there be a clear definition of secondary and postsecondary education program systems.

            "4. That the Coordinating Council on Occupational Education, established as part of the 1967 Community College Act, be abolished and replaced by a Commission on Vocational Education whose functions shall be:

            a. state plan development for vocational education, (for federal requirements, see Appendix 8, pgs. '365-71')

            b. supervision of the state plan, although daily administration should be the responsibility of the secondary and postsecondary systems, and

            c. adjudication of any disputes arising between the systems in the implementation of the state plan.

             [[Orig. Op. Page 7]]

            "5. That to the extent possible, cooperative agreements worked out locally between common school and community college districts which will best provide vocational opportunities to the state's citizens, be authorized as long as they do not deviate from the general policies set forth in statute or the state plan for vocational education.  Where differences or plan deviations occur, an attempt should be first made to resolve them at the secondary and postsecondary state agency level, and only program or policy disputes should be referred to the Commission for its final determination.

            ". . .

            "7. That the present staff positions of the Coordinating Council for Occupational Education, whose primary function is state policy plan development, be retained with the new Commission of Vocational Education; but that those positions dedicated to program administration be transferred respectively to the secondary and postsecondary systems if it is determined that such functions previously were provided in direct support of those systems."  (Emphasis supplied)5/

             Further insight into the differences in the functions of the coordinating council and the proposed commission, as perceived by the Senate Select Committee, is provided by the following portion of the same study:

            ". . . the Select Committee was not motivated in its recommendations to establish a Commission for Vocational Education simply in order for the state to qualify for the receipt of federal funds.

            "Rather, the primary purpose of the Select Committee's recommendation to maintain a single agency is its recognition that the  [[Orig. Op. Page 8]] common schools and community colleges have not in the past demonstrated the ability to resolve their policy differences and provide necessary educational opportunities without the intervention of a third party.

            "For this reason, the primary purpose of the Commission, in the Select Committee's view, is the adjudication of disputes.  The secondary purpose of the Commission is to initially establish a state plan1/ for vocational education which is in the best interests of vocational and occupational training needs of the state.  Corollary to that responsibility for plan development is performance auditing to insure that the systems are responding to the general policies of the state plan.  And in order to do so, the Commission must be armed with sufficient authority and statutory guidance to make policy determinations when necessary, either for evaluating proposals to modify the state vocational educational plan or for resolving disputes arising therefrom." (Emphasis supplied)6/ Senate Bill 2463 was subsequently enacted as the 1975 Vocational Education Act, chapter 174, supra, with relatively little change in the bill as recommended by the Senate Select Committee.

            Background Summary:

            It will be seen from the foregoing that, over the years, the legislature has deemed it expedient to designate a particular state agency for federal vocational education funding purposes.  This is the point universally shared by each of the three vocational education agencies that have existed.  Furthermore, it seems clear that the relatively comprehensive responsibility for vocational education possessed by the original agency (i.e., the 1919 State Board) ebbed substantially following the emergence of  [[Orig. Op. Page 9]] the community college system, in 1967, as a second delivery system with jurisdictional responsibility for vocational education.  The power of the coordinating council which succeeded the original state board was essentially limited to the performance of functions necessary to qualify the state for federal vocational education funds.  Thereafter, however, as evidenced by the 1975 report of the Senate Select Committee, passage of the 1975 act and the creation of the present commission were motivated by an intent to again broaden the powers of the state vocational agency to some extent by granting it the power to adjudicate certain disputes and to conduct compliance audits in order to assure that the delivery systems are responding to the general policies of the state plan.

            Consideration of Questions Presented:

            Against this backdrop we now turn to the questions here posed by the commission:

            Question (1):

            This threshold question asks:

            What authority does the commission have for the direction of public vocational education in the state?

            The remaining questions each also involve the authority of the commission, and collectively they address the broad issue raised by question (1).  Accordingly, we believe it should suffice at this point to note that the commission's authority to direct public vocational education hinges principally upon its authority to provide for the development of a state plan and to take action insuring compliance with the terms and conditions attached to the grant of federal funds to the state, as explained further in our responses to those other, more specific, questions.

            Question (2):

            This question inquires as follows:

            Does the 1975 Vocational Education Act establish a trichotomous relationship between the commission, the state superintendent and the college board whereby the three share the responsibility and authority for directing public vocational education in the state?

            We answer this question in the affirmative.  We do not believe it was either the purpose or the effect of 1975 Act to grant any of the three agencies identified in question (2) with exclusive control over public vocational education in the state.  [[Orig. Op. Page 10]] The situation today is not what it was in 1919 when there was a unitary system for the delivery of vocational education.  And, in that respect, the 1975 Act expressly recognizes, in what is now RCW 28C.04.020(2) and (3) and RCW 28C.04.040(2), that there is both a "secondary education system" within the jurisdiction of the state superintendent and a "postsecondary education system" within the jurisdiction of the state's higher education system.

            Instead, the purpose of the 1975 Act, as expressed at RCW 28C.04.010, is:

            ". . . to provide for a comprehensive planning process and a decision making system for vocational education programs in the state of Washington and to establish administrative responsibility for the receipt and allocation of federal vocational funds.

            ". . ."

            The provisions of this legislation which best express the joint planning process and the decision making process which were thus contemplated, are RCW 28C.04.040(1) and (2), and 28C.04.150.  RCW 28C.04.040 provides that the "functions" of the commission include the responsibility for development of a state plan based upon the initial planning of the secondary and postsecondary systems, and for the adjudication of state plan disputes involving new program and facility decisions which the two systems cannot resolve.  And subsections (1) and (2) thereof read as follows:

            "(1) Plan development.  The commission shall be responsible for complying with federal directives to insure the development and maintenance of a state plan for vocational education but initial planning shall be accomplished by the secondary and postsecondary education systems. . . .

            "(2) State plan modification adjudication.  Decisions on new programs and/or facilities for vocational education shall be made internally within the respective secondary or postsecondary education system in accordance with the provisions of the state plan. . . .

            ". . .  The commission, subject to dispute resolution rules adopted by said commission, shall have the final determination on any disputes arising out of such program proposals.

            ". . ."

             [[Orig. Op. Page 11]]

            RCW 28C.04.150, in turn, directs the common school and community college districts to cooperate in offering vocational programs and establishing facilities and, again, provides for the commission to act as an arbitrator in the event the secondary and postsecondary systems cannot resolve their disputes as follows:

            "Common school districts and community college districts shall cooperate in offering vocational education programs, particularly when establishing specialized facility support for such programs.  Such cooperation shall also extend to noncredit vocational courses in common school community education programs and community college community service programs as the same are authorized in RCW 28A.58.247 and 28B.50.020.

            ". . .

            "If such joint cooperation cannot be attained at the local level the superintendent of public instruction and the state board for community college education shall attempt to resolve the matter.  Matters unresolved shall be referred to the commission for adjudication."

            Accordingly, as contemplated by the Senate Select Committee Report in 1975, the resulting 1975 Act does, indeed, establish a trichotomous relationship between the commission and the two delivery systems whereby (a) the two systems possess the principal responsibility for developing, operating and maintaining vocational programs, and (b) the commission possesses the responsibility for both drawing the systems together for planning purposes and pushing the systems apart, so to speak, by arbitrating disputes which arise in connection with the planning and development of vocational programs.

            Question (3):

            Next we are asked:

            Does the commission have the authority to adopt a state plan providing for single comprehensive standards for vocational education?

            We answer this question in the affirmative as qualified below.

             [[Orig. Op. Page 12]]

            As noted in connection with our response to question (2), one of the commission's functions pursuant to RCW 28C.04.040(1), supra, is to be responsible for complying with federal directives to insure the development and maintenance of a state plan.  This same statutory provision also says that "[p]rior to the adoption of the state plan, the commission shall request comments . . ."; and, thus, by implication, that the commission is the agency empowered to adopt the state plan developed in conjunction with the secondary and postsecondary education systems.

            We must, however, refer to the definitions section of the 1975 Act and, as well, to federal law in order to determine what is meant by the term "state plan" and, thus, what standards, if any, the legislature intended such a plan to encompass.  Turning first to RCW 28C.04.020, we find that the term "state plan" is defined as follows:

            " 'State plan' shall mean the Washington state plan for vocational education, adopted as required by Public Law 88-210 as amended, and other federal congressional and administrative directives pertaining to vocational education, and shall be the single comprehensive plan which provides approval standards for vocational education, operated in or by community colleges, common schools, area nongraded vocational-technical institutes, occupational skill centers, state institutions, private proprietary and parochial schools, on-the job training facilities, or any other training location where local, state or federal vocational funds are allocated:  Provided, That standards of, rules and regulations for, and supervision of indentured apprenticeship in the apprenticeable crafts shall continue to be governed by the director of labor and industries and the state apprenticeship council in accordance with chapter 49.04 RCW."

            Question (3), as above stated, apparently arises by virtue of that portion of the above quoted paragraph which reads "and shall be the single comprehensive plan which provides approval standards for vocational education. . . ."  While this language recognizes that a state plan contains some form of approval standards, we do not view the quoted language as providing any substantive content to the definition of a state plan.  Instead, the language which we think provides substantive content is the  [[Orig. Op. Page 13]] preceding portion of the sentence which states that the term "state plan" means:

            ". . . the Washington state plan for vocational education, adopted as required by Public Law 88-210 as amended, and other federal congressional and administrative directives pertaining to vocational education, . . ."

            Therefore, we turn next to P.L. 88-210 (The Vocational Education Act of 1963) which was amended in its entirety in 1976 by P.L. 94-482 and codified in 20 U.S.C. §§ 2301 et seq.   At 20 U.S.C. § 2307 the requirements for a state plan are set forth at length, as follows:

            "(a)(1) Any State desiring to receive funds under this Act shall submit to the Commissioner, during fiscal year 1977 and during each fifth fiscal year occurring thereafter, a State plan for vocational education for the five fiscal years succeeding each such fiscal year in which the plan is submitted. . . ."

            ". . .

            "(b) The five year State plans shall be submitted to the Commissioner by the July 1st preceding the beginning of the first fiscal year for which such plan is to take effect and shall -

            "(1) assess the current and future needs for job skills within the State and, where appropriate, within the pertinent region of the country, through consideration of the latest available data of present and projected employment, including the data available under section 161 [20 USCS § 2391];

            "(2) set out explicitly the goals the State will seek to achieve by the end of the five year period of the State plan in meeting he need for particular job skills identified through the assessment undertaken in accordance with paragraph (1), including (A) a description of these goals in terms of -

             [[Orig. Op. Page 14]]

            "(i) the courses and other training opportunities to be offered to achieve those skills,

            "(ii) the projected enrollments of those courses and other training opportunities,

            "(iii) the allocations of responsibility for the offering of those courses and training opportunities among the various levels of levels of education and among the various institutions of the State, and

            "(iv) the allocations of all local, State, and Federal financial resources available in the State among these courses and training opportunities, levels of education, and institutions within the State,

            and (B) the reasons for choosing these courses and training opportunities, enrollments, allocations of responsibilities, and allocations of resources;

            "(3) (A) set out explicitly the planned uses of Federal, State, and local vocational education funds for each fiscal year of the State plan and show how these uses will enable the State to achieve these goals, including (i) a description of these uses of funds in terms of the elements listed in clauses (2)(A)(i) through (2)(A)(iv) above, and (ii) the reasons for choosing these particular uses, . . .

            "(4) (A) set forth policies and procedures which the State will follow so as to assure equal access to vocational education programs by both women and men including -

            "(i) a detailed description of such policies and procedures,

            "(ii) actions to be taken to overcome sex discrimination and sex stereotyping in all State and local vocational education programs, and

             [[Orig. Op. Page 15]]

            "(iii) incentives, to be provided to eligible recipients so that such recipients will -

            "(I) encourage the enrollment of both women and men in nontraditional courses of study, and

            "(II) develop model programs to reduce sex stereotyping in all occupations; and

            "(B) set forth a program to assess and meet the needs of persons described in section 120 (b) (1) (L) [20 USCS § 2330 (b) (1) (L)] which shall provide for (i) special courses for such persons in learning how to seek employment, and (ii) placement services for such graduates of vocational education programs and courses; and

            ". . ."  (Emphasis supplied)

            As indicated by the language which we have underscored, the federal requirements for a state plan, as referred to in RCW 28C.04.020 and set forth in 20 U.S.C. § 2307, supra, do thus include a concept which could literally be considered to be "single, comprehensive standards for vocational education."

            Accordingly, our response to question (3) is in the affirmative, to the extent that the standards contemplated by that question are limited to the requirements of 20 U.S.C. § 2307, supra.  And that, in turn, means that those standards simply consist of the goals which the state will seek to achieve in meeting needs for job skills during the period encompassed by the state plan -as expressed in terms of the courses and other training opportunities to be offered, projected enrollments, allocations of responsibility for offerings, and allocations of financial resources.

            Question (4):

            This question asks:

            Does the commission have the authority to develop and enforce approval standards for vocational education offered by any public or private school or any other training facility where local, state or federal vocational funds are used?

            The lone reference to "approval standards" which appears in the 1975 Act is the nonsubstantive portion of the definition of a  [[Orig. Op. Page 16]] "state plan" (RCW 28C.04.020(5)) which we discussed in response to question (3).  And, as we indicated, that language apparently recognizes that the contents of the state plan required by law do constitute approval standards for vocational education purposes.  The Act does not, however, otherwise use the term "approval standards" nor expressly provide anywhere therein that the commission is empowered to "approve" or "disapprove" vocational education programs.  The only provision of the Act which appears in the context of an approval type function (other that in a more remote sense those relating to dispute adjudications by the commission) is RCW 28C.04.230 which provides that the State Board of Education has the power to authorize school districts to offer vocational programs.

            We think, however, that the answer to this question is to be found in the applicable federal law - as indicated by the fact the term "approval standards" is used in RCW 28C.04.020(5) in context with federally established state plan requirements.  Turning to the federal vocational education act, therefore, we find that 20 U.S.C. § 2306 does indeed provide that state boards (such as the commission) shall distribute federal funds on the basis of the approval of applications made therefor:

            "(a) Any State desiring to receive the amount for which it is eligible for any fiscal year pursuant to this Act shall, through its State board, submit to, and maintain on file with, the Commissioner a general application providing assurances -

            ". . .

            "(5) (A) that the State shall, in considering the approval of such applications, give priority to those applicants which -

            "(i) are located in economically depressed areas and areas with high rates of unemployment, and are unable to provide the resources necessary to meet the vocational education needs of those areas without Federal assistance, and

            "(ii) propose programs which are new to the area to be served and which are designed to meet new and emerging manpower needs and job opportunities in the area and, where relevant, in the State and the Nation; and

             [[Orig. Op. Page 17]]

            ". . ."  (Emphasis supplied)7/

             The approval criteria to which the commission is to give priority pursuant to subsection (a)(5)(A) of 20 U.S.C. § 2306, supra, (e.g., new programs designed to meet manpower needs and job opportunities) appear to be tied directly to the state plan job skills needs assessment and goals requirements established by 20 U.S.C. § 2307, supra.

            Accordingly, in answer to question (4), we believe the commission has the authority to adopt and enforce approval standards for vocational education to the extent it has the authority to adopt a state plan in compliance with 20 U.S.C. § 2307, supra; and in so doing it is to base its approval of applications for federal funding upon the contents of the state plan as provided for in 20 U.S.C. § 2306, supra.

            Question (5):

            Next you have inquired:

            Does the commission have the authority to establish (1) minimum student performance standards, (2) facility and equipment standards, and (3) teaching and support personnel standards, for all vocational programs supported with federal, state or local vocational funds?

            We answer this question in the negative.  We find nothing within the 1975 Act or the requirements of a state plan set forth in 20 U.S.C. § 2307, supra, which indicates a legislative intent to vest the commission with the authority to establish qualitative standards of the nature enumerated in the question as above stated.

            As indicated by the evolutionary history of state vocational agencies which we outlined initially herein, the authority possessed by the first state vocational agency to establish qualitative standards (such as personnel qualifications) was apparently given, instead, to the two delivery systems upon the emergence (in 1967) of the coordinating council as the first state vocational agency to be established independent of a delivery system.  Consistent therewith, the 1975 Act in turn indicates that the council's successor, the commission, has at best  [[Orig. Op. Page 18]] the power to make recommendations to the legislature regarding "provisions for personnel standards for vocational education instructors."  See, RCW 28C.04.050.

            Question (6):

            This question combines several issues raised by your letter and asks:

            Does the commission have the authority to withhold federal, state and local funds from other governmental entities in the following instances:  (a) in the event any agency or subagency fails to meet the standards of the state plan; (b) in the event any school or system fails to abide by the commission's final determination of a dispute pursuant to RCW 28C.04.040; (c) in the event either the state superintendent or the college board fails to carry out its responsibility for the daily administration of the state plan as provided in RCW 28C.04.040; and (d) in the event the secondary and postsecondary education systems fail to make any initial planning for the state plan as provided in RCW 28C.04.040?

            Each of the four subquestions of this question was originally set forth as a separate question in the commission's opinion request.  We have, however, decided to consider them together for the reason there are basic points which apply equally to each part which, in turn, leads us to believe that unequivocal affirmative or negative responses cannot be provided regarding the actual extent of the commission's power to withhold funds in each of the four situations addressed by the question as above stated.

            The first of those points in common stems from the axiomatic proposition that the commission, to the extent it has any authority to withhold funds, only has the power to do so with respect to those funds which it receives and disburses to other agencies.  The commission has no power or control over state funds which, for example, are appropriated by the legislature to the state superintendent or college board or over local tax levy funds received by the school districts.  Therefore, the scope of question (6) must be deemed to be limited essentially to such federal funds which the commission receives pursuant to the federal vocational act as appropriated to the commission by the legislature.8/

             [[Orig. Op. Page 19]]

            The second point in common is that we have not found in our research any express statutory authorization (such as is possessed by certain other agencies) to the commission to withhold funds.  Compare, for example, RCW 28A.41.130 which expressly authorizes the State Board of Education to direct the withholding of state funds from a school district which is in violation of basic education program requirements until compliance is assured; and see also, RCW 28A.13.080 which authorizes the state superintendent to withhold state aid from a school district until compliance with the state education of the handicapped law is assured.  Therefore, under the basic rule stated at the beginning of this opinion, such authority as the commission has to withhold federal funds must be based, instead, upon authority which is necessarily implied by less explicit statutes.

            The principal statutory authority of the commission which we here have in mind is to be found within what we will refer to as the "take whatever action is necessary" clause of RCW 28C.04.060.  That clause provides:

            ". . .The commission is further authorized to take whatever action is necessary to insure compliance with federal vocational education enactments and state legislative and administrative directives concerning vocational education. . . ."

            This general authorization is relatively broad in that it purports to grant the commission unspecified power respecting compliance with both federal and state law.  Our focus, however, is upon that portion respecting compliance with federal law since we believe that any withholding of federal funds based upon this state statute must necessarily be compatible with the terms and conditions of the federal government's grant of vocational education funds to the state.  And therein lies our dilemma insofar as providing clear and unequivocal responses to question (6).

            We are sufficiently familiar with the provisions of both the 1975 State Act and the federal act commencing at 20 U.S.C. § 2301 to understand that federal funds are conditioned upon the approval of the state plan (20 U.S.C. § 2309) as well as a general application which provides assurances of the state's compliance with various federal requirements (e.g., 20 U.S.C. § 2306).  We further understand that the situations described in question (6) may very well involve the disbursement of federal funds, or the withholding thereof, by the commission based upon the applicant's, or recipient's, compliance with federal requirements or federally approved conditions (e.g., the state  [[Orig. Op. Page 20]] plan) upon the expenditure of the funds.  For example, 20 U.S.C. § 2306 appears to condition the disbursement of federal funds received by the state upon the approval of annual applications which evidence compliance with the standards contained in the state as identified in terms of training needs and the provision of courses to meet such needs, etc.  Similarly, in the case of dispute adjudications respecting the state plan and proposed new programs as provided for in RCW 28C.04.040(2), the factors to be considered by the commission in reaching a determination must include factors which are addressed by the state plan.  It could just as well be the case, however, that in some other given factual situation the nexus between the commission's desire to withhold federal funds and compliance with federal law is slim or nonexistent.

            What all this leads us to is the following overall response to question (6) and its four subquestions:  We believe that the commission does have the general authority to withhold federal funds in the four situations described in those cases in which it can factually be established that the withholding of funds is necessary to insure compliance with federal requirements and conditions to the state's expenditures of the funds.  By that we mean, for example, those cases in which it can be factually established that the expenditure of the funds by the recipient or applicant is (or would be) contrary to the standards established by the state plan or the lawful terms and conditions of the federal government's grant and, in turn, the commission's subgrant of the funds.  Such determinations, however, must necessarily be made on a case by-case basis and in their absence the authority to withhold funds does not exist.

            Question (7):

            The next question inquires as follows:

            Does the commission have the authority to adopt a state plan for vocational education in the event that the secondary or postsecondary education systems fail to make any initial planning efforts as required by RCW 28C.04.040(1) or their planning efforts are not submitted in a timely manner?

            We answer this question in the negative.

            The statute here in point is RCW 28C.04.040(1) which unequivocally provides that the initial planning for the state plan shall be accomplished by the two delivery systems.  The authority of the commission to insure the development of a state plan is thereby qualified in this respect as follows:

              [[Orig. Op. Page 21]]

            ". . . The commission shall be responsible for complying with federal directives to insure the development and maintenance of a state plan for vocational education but initial planning shall be accomplished by the secondary and postsecondary education systems. . . ."

            We recognize that RCW 28C.04.040(1), supra, authorizes the commission to "insure the development" of a state plan.  And, furthermore, the "take whatever action is necessary" clause of RCW 28C.04.060, supra, provides in a similar vein that the commission is to take whatever action is necessary to insure compliance with federal law.  In our judgment, however, the authority of the commission to insure the development of a state plan and to insure compliance with the federal enactments falls short of the authority needed to actually perform the functions assigned exclusively to, and required by law of, other agencies.  Nor, in any case, would the development of a state plan solely and exclusively by the commission necessarily result in compliance with federal state plan requirements.  See, 20 U.S.C. § 2307 (a) (1) which states that a state board such as the commission "shall involve the active participation of" a number of secondary and postsecondary representatives in "at least four meetings during the planning year."

            Question (8):

            This question asks:

            Does the commission have the authority to carry out the daily administration of the state plan in behalf of either the state superintendent or the college board in the event either fails to perform such activities?

            We also must answer this question in the negative.

            The subject 1975 Act does not provide for the daily administration of the state plan by the commission.  Nor does the federal vocational education act require that the state vest the commission with such authority as a condition to federal funding.  The federal act, in 20 U.S.C. § 2304 (a) (1), provides the state with the option of designating or creating an agency such as the commission responsible either for "the administration, or for the supervision of the administration" of the programs authorized by the act.  That same section of the federal act also highlights the fundamental policy role of such an agency by providing that responsibilities involving the administration, operation, or  [[Orig. Op. Page 22]] supervision of vocational education programs under the federal act may be delegated to one or more appropriate state agencies, except the responsibility for (a) the coordination of the development of policy, (b) the coordination of the development and actual submission of state plans from time to time, and (c) consultation with the State Advisory Council on Vocational Education as provided for in the federal act.9/

             [[Orig. Op. Page 23]]

            We have no doubt that our legislature recognized the latitude allowed by the federal act as first indicated by the 1975 Report of the Senate Select Committee.  The committee's recommendations earlier quoted herein provided that the commission's functions should include supervision rather than actual administration of the state plan, and that the staff to be transferred to the commission was to include state policy plan development personnel to the exclusion of program administration personnel.

            The resulting 1975 Act mirrors the recommendations of the Senate Select Committee by first providing, in what is not RCW 28C.04.040 (3), that - with stated exceptions - the state superintendent and college board shall be primarily responsible for the daily administration of the state plan.  This provision of the Act reads:

            ". . . The supervision of the state plan shall be carried out by the commission; however, daily administration of the state plan shall be primarily the responsibility of the superintendent of public instruction and the state board for community college education:  Provided, That the commission shall review and approve state plan development proposals or special programs requiring personal service contracts, and activities beyond the program responsibilities of the superintendent of public instruction and the state board for community college education.

            ". . ."

            RCW 28C.04.510, in turn, reflects the committee's recommendation respecting the nature of the commission's staff by authorizing the Governor to transfer to the state superintendent, the college board, and other agencies those personnel who performed functions not transferred by the Act to the commission.  The Governor implemented RCW 28C.04.510 by transferring program administrative personnel to the state superintendent, the college board, and various other agencies.

            Against this backdrop it appears clear that the intent of the legislature was diametrically opposed to the assumption of responsibility for daily administration of the state plan by the commission under any circumstances.  We believe this to be so notwithstanding the "take whatever action is necessary" clause of RCW 28C.04.060.  Assuming arguendo that this clause encompasses  [[Orig. Op. Page 24]] either the state superintendent's or college board's failure to provide daily administration of the state plan, the commission's authority to "insure compliance" with their statutory duties still cannot be read as authorizing the commission to assume the performance of the duties contrary to the manifest intent of the legislature.

            Question (9):

            Finally, you have asked, in essence:

            Does the commission have the authority to conduct compliance audits with all federal, state and local educational policies, rules and regulations adopted by Congress, the legislature, the commission, state superintendent, the community college board or other appropriate bodies?

            The statutory provision which gives rise to this question is that portion of RCW 28C.04.040 (3) which states:

            "Under the state plan the commission shall make periodic compliance audits at least once a biennium of the vocational education programs individually and jointly conducted by the common schools and community colleges to insure compliance with the state plan."

            This provision, however, requires a negative response to question (9) for the most part.  Compliance audits authorized by the statute are expressly limited, consistent with the recommendations of the Senate Select Committee, supra, to audits necessary to insure compliance with the state plan.  We find nothing in the federal requirements for a state plan, as set forth in 20 U.S.C. § 2307, which contemplates that the plan is to contain the numerous multi-governmental level policies, rules and regulations encompassed by your question as above stated.  Nor have we discovered any provision of the federal law in point, other than 20 U.S.C. § 2308 which requires annual accountability reports.  These reports are essentially limited in their required scope, however, to matters encompassed by the state plan requirements of 20 U.S.C. § 2307.

            Accordingly, it is our opinion that "compliance audits" authorized by RCW 28C.04.040 (3) are essentially limited to the audit of the policies and other provisions contained in the state  [[Orig. Op. Page 25]] plan as required by 20 U.S.C. § 2307.10/

             This completes our consideration of your questions.  We trust that you will find the foregoing to be of assistance.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILLIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 174, Laws of 1975, 1st Ex. Sess.

2/Those responsibilities were, however, modified to a certain extent over time pursuant to chapter 183, Laws of 1939, and chapter 179, Laws of 1957.

3/Chapter 8, Laws of 1967, 1st Ex. Sess.

4/Section 16 of the Community College Act (chapter 8, Laws of 1967, 1st Ex. Sess.) created the coordinating council and section 73 repealed the laws of 1919 and 1957 respecting the original state board.

5/Senate Select Committee Report (1975) at pp. 2 and 3.

1/The Federal requirements for "State Plans" are detailed in Appendix 8, 20 USC section 1263, pages 365-71.

6/Senate Select Committee Report (1975) at p. 7.

7/20 U.S.C. § 2306.

8/See, e.g., sec. 118, Laws of 1981, 1st Ex. Sess., by which $27,157,000 in such federal funds were appropriated to the commission.

9/20 U.S.C. § 2304 (a) (1) provides in part:

            "Any State desiring to participate in the programs authorized by this Act shall, consistent with State law, designate or establish a State board or agency (hereinafter in this Act referred to as the 'State board') which shall be the sole State agency responsible for the administration, or for the supervision of the administration, of such programs.  The responsibilities of the State board shall include -

            "(A) the coordination of the development of policy with respect to such programs;

            "(B) the coordination of the development, and the actual submission to the Commissioner, of the five year State plan required by section 107 [20 USCS § 2307] and of the annual program plan and accountability report required by section 108 [20 USCS § 2308]; and

            "(C) the consultation with the State advisory council on vocational education and other appropriate State agencies, councils, and individuals involved in the planning and reporting as required by sections 107 [20 USCS § 2307] and 108 [20 USCS § 2308].

            "Except with respect to those functions set forth in the preceding sentence, the State board may delegate any of its other responsibilities involving administration, operation, or supervision, in whole or in part, to one or more appropriate State agencies."  (Emphasis supplied)

10/We do not mean to infer, however, that the commission does not at least possess the implied authority to conduct other audits which are necessary to comply with federal laws and regulations to which the commission has bound itself by virtue of its acceptance of federal funds.

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