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AGLO 1976 No. 66 - November 03, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- BOARD FOR COMMUNITY COLLEGE EDUCATION ‑- COMMUNITY COLLEGES ‑- FEES ‑- BUDGET LAW ‑- PREDISCHARGE EDUCATION PROGRAMS (PREP)

The state board for community college education does not have the authority, in complying with § 2, chapter 105, (RCW 28B.50.093), to exempt those predischarge education programs which were already being operated by a community college prior to the effective date of the aforesaid 1973 law from any review and determination by the state board that such programs ". . . will not deter from the primary functions of the community college system within this state."

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                                                                November 3, 1976

Honorable Gordon Sandison
State Senator, 24th District
P.O. Box 2025
Port Angeles, Washington 98362                                                                                                               Cite as:  AGLO 1976 No. 66

Dear Sir:

            By recent letter you directed our attention to chapter 105, Laws of 1973, authorizing the conduct by community colleges of predischarge education programs (PREP) for military personnel stationed outside of the state of Washington.  You then asked for our opinion on two questions pertaining to the administration of such programs by the state board for community college education.  Those questions, slightly paraphrased for purposes of clarity, are as follows:

            (1) Does the state board for community college education have the authority, in complying with § 2, chapter 105, supra, (RCW 28B.50.093) to exempt those predischarge education programs which were already being operated by a community college prior to the effective date of the aforesaid 1973 law from any review and determination by the state board that such programs ". . . will not deter from the primary functions of the community college system within this state"?

            (2) In the event that question (1) is answered in the affirmative, may the state board for community college education, instead of itself thus reviewing a pre‑1973 PREP operation, delegate responsibility for doing so to the local community college by which the particular program is being operated?

            We answer the first of these two questions in the negative, for the reasons set forth in our analysis, thereby rendering consideration of your second question unnecessary.

                                                                     ANALYSIS

            The essential history of the operation of predischarge education programs by community colleges in this state is set forth in a prior opinion of this office, AGLO 1975 No. 3 [[to  [[Orig. Op. Page 2]] Robert V. Graham, State Auditor, on January 13, 1975, an Informal Opinion, AIR-75503]], copy enclosed.  The basic law governing such programs is a federal law, Public Law 91-219, now codified as 38 U.S.C.A. § 1695, et seq.  Shortly after the enactment of that law in 1970, two community college districts in this state, Big Bend and Olympic, entered into arrangements with the federal government for the operation of such programs based upon an initial sanction by this office in the form of a memorandum opinion to the director of the state board for community college education dated November 19, 1971 [[to John C. Mundt, an Informal Opinion, AIR-71638]], a copy of which you will also find enclosed.  Because, however, the state statutory basis for our informal approval was, unquestionably, somewhat less than explicit1/ it was apparently felt desirable, if not necessary, for additional legislation to be enacted covering the subject.  Accordingly, during its 1973 session the legislature enacted chapter 105,supra, which has since been codified as RCW 28B.50.092 ‑ 28B.50.094.

            RCW 28B.50.092 reads as follows:

            "The state board for community college education may authorize any community college board of trustees to do all things necessary to conduct an education, training, and service program authorized by chapter 28B.50 RCW, as now or hereafter amended, for United States military personnel at any geographical location:  Provided, That any high school completion program conducted pursuant to this section shall comply with standards set forth in rules and regulations promulgated by the superintendent of public instruction and the state board of education:  And provided further, That the superintendent of public instruction shall issue the certificate or diploma in recognition of high  [[Orig. Op. Page 3]] school completion education provided pursuant to this section."2/

             RCW 28B.50.093 then qualifies the foregoing authorization by providing that

            "Prior to the state board granting authorization for any programs authorized under RCW 28B.50.092, the state board shall determine that such authorization will not deter from the primary functions of the community college system within the state of Washington as prescribed by chapter 28B.50 RCW."3/   And finally, by § 3, chapter 105,supra (RCW 28B.50.094), the legislature directed that:

            "The costs of funding programs authorized by RCW 28B.50.092 through 28B.50.094 shall ultimately be borne by grants or fees derived from nonstate treasury sources."

            Thereafter, on June 28, 1973, the state board acted to implement this specific legislative authorization by adopting certain written guidelines or policies.  Although you have cited those written policies in your letter requesting our opinion as WAC 4-50-070, our research discloses that they were not actually adopted as formal regulations under the state administrative procedures code but, instead, merely as internal policy not subject to the APA.  Be that as it may, the crux of the problem which has precipitated your request for our opinion is that the resulting guidelines and policies of the state board for community college education, insofar as they involved detailed program approval on the basis of specified standards, only purport to apply to "new" predischarge education programs ‑ meaning, presumably, those established subsequent to the enactment of chapter 105, Laws of 1973, supra, as distinguished from those which had already gone into operation earlier.  Conversely, as to preexisting programs the state board's policy statement merely says, in paragraph (4), that:

             [[Orig. Op. Page 4]]

            ". . .  Any such programs in operation on July 1, 1973, shall be considered to have met the requirements of these guidelines.  Expansion of any such existing programs to new theaters of operations or different military commands shall require approval as provided in these guidelines."

            Whatever may have been the legal basis for the operation of predischarge education programs by a community college prior to 1973, it seems quite clear to us from the above described historical facts that the only basis for such an operation at the present time is RCW 28B.50.092 ‑ 28B.50.094 (chapter 105,supra).  And under that legislation it is equally clear that state board authorization, in accordance with RCW 28B.50.092 and 28B.50.093, is a statutory prerequisite to the legal operation by a community college of any such program.  Those community colleges which, based upon our earlier, 1971 informal advice, had already established such programs had, at best, an arguable, nonspecific, legal basis for what they were doing.  Most certainly, however, they had no vested right to continue without regard to the provisions of the legislature's specific, 1973, enabling legislation.  And, quite obviously, although the 1973 legislature was clearly aware of those programs which were already in existence at the time it enacted chapter 105,supra, that legislation contains nothing whatsoever from which an intent to distinguish in any way between those existing programs and "new" programs can be discerned.

            For these reasons it necessarily follows, in our opinion, that the state board's apparent attempt in 1973 to draw a distinction between preexisting and new predischarge education programs is not legally supportable.  Instead, all such programs must be treated in the same manner and be operated in accordance with the same criteria as set forth by the state board in accordance with the enabling legislation.  Thus, your first question as above paraphrased must be answered in the negative ‑ thereby, of course, rendering any consideration of your second question unnecessary.4/

             [[Orig. Op. Page 5]]   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/See, RCW 28B.50.520, which merely authorizes the state board for community college education or any community college board of trustees

            ". . . to receive federal funds made available for the assistance of community colleges, in providing physical facilities, maintenance or operation of schools, or for any educational purposes, according to the provisions of the acts of congress making such funds available."

2/Section 1, chapter 105, supra.

3/Section 2, chapter 105, supra.

4/By this answer we do not, however, mean to imply that a continuation of the two pre‑1973 PREP operations above referred to has not been legally authorized by the state board.   Such authorization seems implicit in subsection (4) of the 1973 policies as above quoted.  All we are saying is that in actual operation these programs must be conducted in accordance with the same criteria as apply to "new" programs under whatever standards and quidelines the state board, from time to time, adopts.

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