Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGLO 1974 No. 65 - July 05, 1974
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- FUNDS ‑- OFFICES AND OFFICERS ‑- STATE ‑- SUPERINTENDENT SUPERINTENDENT OF PUBLIC INSTRUCTION‑-FAILURE TO CONDUCT SCHOOL FOR 180 DAYS

(1) If a schools district fails to conduct school for at least 180 days by reason of a cause not constituting an "unforseen emergency" as defined in RCW 28A.41.170, the district must forfeit a pro rata portion of its annual entitlement of state apportionment funds under RCW 28A.41.130.    

(2) If the failure of a school district to conduct school for at least 180 days is occasioned by an "unforeseen emergency" as thus defined, the district will be eligible for its full annual entitlement of state apportionment funds if the state superintendent of public instruction has so provided by rules and regulations adopted pursuant to RCW 28A.41.170.

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

                                                                     July 5, 1974

Honorable Frank B. Brouillet
State Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 65

Dear Sir:
 
            This is in response to your request for our opinion regarding the basis for computing the allocation of annual state equalization apportionment funds under RCW 28A.41.130 in the event a school district fails to conduct at least the minimum of one hundred and eighty school days required by law during a given school year.  As you have explained, a district's failure to meet this requirement may be caused by an "unforeseen emergency" as defined in RCW 28A.41.170, or it may be the result of some other cause.
 
            You have asked for our opinion with respect to each of these two situations, and we respond in the manner set forth in the following analysis.
 
                                                                     ANALYSIS
 
            RCW 28A.58.180 provides that:
 
            "All school districts in this state shall maintain school at least one hundred eighty days each school year as defined in RCW 28A.01.020:  Provided, That for kindergartens the minimum annual term may be ninety days for each school year, as approved by the state board of education pursuant to rules and regulations promulgated for that purpose."
 
            The touchstone statute governing the distribution of state equalization apportionment funds is RCW 28A.41.130 which provides, in pertinent part, as follows:
 
            "From those funds made available by the legislature for the current use of the common schools, the superintendent of public instruction shall distribute annually as provided in RCW 28A.48.010 to each  [[Orig. Op. Page 2]] school district of the state operating a program approved by the state board of education an amount which, when combined with . . . [certain other listed] revenues, will constitute an equal guarantee in dollars for each weighted pupil enrolled, based upon one full school year of one hundred eighty days, except that for kindergartens one full school year may be ninety days as provided by RCW 28A.58.180:  . . ."  (Emphasis supplied.)
 
            RCW 28A.48.010, to which reference is therein made, then deals with the mechanics of this distribution of state equalization apportionment funds to school districts as follows:
 
            "On or before the last business day of September 1969 and each month thereafter, the superintendent of public instruction shall apportion from the current state school fund and/or the state general fund to the several intermediate school districts of the state the proportional share of the total annual amount due and apportionable to such intermediate school districts for the school districts thereof as follows:
 
            "September                                          10%
            "October                                                   8%
            "November                                            65%
            "December                                             85%
            "January                                               13%
            "February                                              13%
            "March                                                     11%
            "April                                                          5%
            "May                                                            5%
            "June                                                           3%
            "July                                                          85%
            "August                                                      85%
 
            "The annual amount due and apportionable shall be the amount apportionable for all apportionment credits estimated to accrue to the schools during the apportionment year beginning September first and continuing through August thirty-first.  Appropriations made for school districts for each year of a biennium shall be apportioned according to the schedule set forth in this section for the fiscal year starting July 1 of the then calendar year and ending June 30 of the next calendar year."
 
             [[Orig. Op. Page 3]]
            Finally to be noted before turning to the issues is RCW 28A.41.170, and particularly, the "proviso" thereto as last amended by § 1, chapter 78, Laws of 1973, 1st Ex. Sess.  This statute provides that:
 
            "The superintendent of public instruction shall have the power and duty to make such rules and regulations as are necessary for the proper administration of this chapter not inconsistent with the provisions thereof, and in addition to require such reports as may be necessary to carry out his duties under this chapter:  PROVIDED, That the superintendent of public instruction shall have the authority to make rules and regulations allowing school districts to receive state apportionment moneys as provided in RCW 28A.41.130 when said districts are unable to fulfill the requirements of a full school year of one hundred eighty days due to an unforeseen emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot, insurrection, community disaster, or act of God."
 
            Question (1):
 
            The first question to be here considered involves those situations coming within the purview of this last quoted statutory proviso.  The question is, in essence, as follows:
 
            Does state law require that a school district forfeit a pro rata portion of the district's total annual entitlement to state equalization apportionment funds in the event the district fails to conduct at least one hundred and eighty school days because of an "unforeseen emergency" as defined in RCW 28A.41.170, supra, or may the superintendent of public instruction provide by rule that the district shall, nevertheless, receive the full amount of such annual entitlement?
 
            In our opinion, assuming that regulations have been promulgated by your office which so provide, a school district which fails to conduct school for at least one hundred and eighty days (accord, RCW 28A.58.180, supra) solely because of the occurrences of one or more of the "unforeseen emergency" causes listed in that statute will be entitled to receive the full amount of its annual entitlement to state equalization apportionment funds.   [[Orig. Op. Page 4]]
RCW 28A.41.170, as we read it, contemplates that result by empowering you, as state superintendent of public instruction, to make rules ". . . allowing school districts to receive state apportionment moneys as provided in RCW 28A.41.130 when said districts are unable to fulfill . . ." the requirements of RCW 28A.58.180, supra, by reason of any of those causes.
 
            Question (2):
 
            This question involves the second situation described in your letter; i.e., the failure of a school district to conduct school for at least one hundred and eighty days for reasons other than those constituting an "unforeseen emergency" as defined in the above analyzed proviso to RCW 28A.41.170.
 
            It seems apparent from the legislature's enactment of this proviso that those school districts which fail to conduct school for at least one hundred eighty days for reasons other than those constituting an unforeseen emergency must forfeit their annual state equalization apportionment funds to some extent; otherwise, the proviso's passage would have been a "vain and useless" act, contrary to the well-established principle that no act of the legislature is to be so construed if at all possible.  As stated in Kelleher v. Ephrata School Dist., 56 Wn.2d 866, 873, 355 P.2d 989 (1960):
 
            ". . .  The courts will presume that the legislature does not indulge in vain and useless acts and that some significant purpose or object is implicit in every legislative enactment.  Guinness v. State (1952), 40 Wn.(2d) 677, 246 P.(2d) 433."
 
            The critical question, then, is whether such districts are to forfeit their entire state apportionment or, instead, are simply to lose a pro rata portion of this entire amount ‑ based upon the number of school days short of one hundred and eighty they failed to conduct for reasons other than those enumerated in the above proviso.  Our review of the applicable statutes leads us to conclude that the latter of these two possible results is the one intended by the legislature in those cases.
 
            This is not to say, by any means, that a school district is free to violate the requirements of RCW 28A.58.180, supra, with impunity.  Clearly it is not, for we find in RCW 28A.57.200 the following:
 
             [[Orig. Op. Page 5]]
            "In case any school district shall have an average enrollment of fewer than two pupils or shall not have maintained, during the preceding school year at least the minimum term of school required by law, the intermediate school district superintendent shall report said fact to the county committee, which committee shall dissolve the school district and annex the territory thereof to some other district or districts.  In case any territory is not a part of any school district, the intermediate school district superintendent shall present to the county committee a proposal for the annexation of said territory to some contiguous district or districts."  (Emphasis supplied.)
 
            But to conclude that in addition to this possibility of dissolution a school district conducting school for less than one hundred eighty days for other than "unforeseen emergency" reasons is also to forfeit all of its state equalization apportionment funds for that year ‑ rather than merely suffer a pro rata reduction ‑ is, in our judgment, simply not warranted by the applicable statutes.
 
            Although RCW 28A.41.130, supra, speaks of an annual distribution of equalization apportionment funds, that distribution is, in fact, made on a monthly basis during each school year in accordance with the percentage formula set forth in RCW 28A.48.010, also quoted above.  Thus, by the close of a given school year,1/ which will, in most cases be the first time that a particular district's compliance or noncompliance with the one hundred eighty day requirement can be ascertained, the district will have already received most of its apportionment funds for that year ‑ assuming that it is operating a program which, in the words of RCW 28A.41.130, has been "approved by the state board of education."  Accord, WAC 180-16-165, a regulation promulgated by the state board which provides:
 
            ". . .  That in the event a district fails to conduct school for the full minimum number of school days required by law, it shall nevertheless be deemed to have operated an approved program to the extent it conducted school days in an approved manner."
 
             [[Orig. Op. Page 6]]
            From this statutory scheme, as implemented by the referenced state board regulation, it appears to us that the principal intent of RCW 28A.41.130 is to provide state equalization apportionment funds to a school district on a monthly basis in order that the district may meet "current" expenses and continue operating an approved program.  The monthly percentage of a district's total annual entitlement prescribed by RCW 28A.48.010, supra, is characterized within the statute as "due and apportionable" ‑ or, in other words, as having (in effect) been "earned" by the district as of that point in time.  The essential qualification imposed by RCW 28A.41.130 upon the monthly distribution of the percentage "due and apportionable" is that the distributee school district is then operating an educational program approved by the state board of education.  And the state board's regulation, in turn, provides a basis for the scheduled monthly payment of funds to a district as they become "due and apportionable," by virtue of the district's having thus far operated an approved program, while also recognizing that a district which ultimately fails to operate for a full school year of one hundred and eighty days may not be entitled to receive the full amount of its annual equalization apportionment distribution.2/
 
             If we were to conclude, in addition, that a school district which fails to conduct a full one hundred and eighty school days by reason of a cause other than an "unforeseen emergency" is to forfeit its entire annual equalization apportionment and not merely a pro rata portion, it then would necessarily follow that the state would be required to recover back the apportionment  [[Orig. Op. Page 7]] funds already distributed to that district under RCW 28A.48.010, supra.  However, any action for such a recovery would be inconsistent with the above explained proposition that the district has earned at least the prescribed monthly percentage of its annual entitlement for having operated an approved program for as long as it did.
 
            Secondly, in the case of funds already expended by the district for its "current expenses," it would also likely be an impossibility in view of RCW 28A.57.200, supra, which provides that a school district that has failed to maintain school for the minimum term required by law is to be dissolved and annexed to some other school district (or districts).  This express mention of dissolution as the sanction for failure to conduct at least one hundred and eighty school days itself impliedly negates any unexpressed intent that the noncomplying district (or, in the event of dissolution, the nonexistent or successor school district) is to be liable for equalization apportionment funds already received by it in connection with such school days as were, in fact, conducted by it in an approved manner.
 
            And thirdly, it seems to us that any such action for a recovery of funds already distributed would also be contrary to the pattern of other legislation such as RCW 28A.57.180, RCW 28A.48.090 and RCW 28A.13.080, under which only a withholding of as yet undistributed apportionment funds is provided for in cases involving other failings on the part of a school district to meet specified requirements of state law.
 
            It is for these reasons that we do not believe the statutory scheme governing the distribution of state equalization apportionment funds to a school district demonstrates a legislative intent that a district is to forfeit its entire annual apportionment in the event the district ultimately fails to conduct school for the minimum term required by law by virtue of a cause other than an "unforeseen emergency" as now defined in RCW 28A.41.170, supra.  But such a district is, on the other hand, clearly to receive a pro rata reduction in that event ‑ for without question a school year of one hundred and eighty days is, nevertheless, a relevant educational program standard.  It is the basis or measure for computation of the maximum annual entitlement to equalization apportionment moneys and of the extent to which a district has earned such full entitlement.  See, so much of RCW 28A.41.130, supra, as directs the distribution of annual equalization apportionment ". . . based upon one full school year of one hundred eighty days, . . ."   [[Orig. Op. Page 8]]
Unless the district meets that requirement it is not to be paid with state equalization apportionment moneys as if it had ‑ except as now provided in RCW 28A.41.170, supra.  It is not to forfeit its entire apportionment for the year, but neither is it to receive what otherwise would have been its full share of those state funds.
 
            Although not directly in point, our research has disclosed an early Washington case which lends support to this view that a school district is not entitled to equalization apportionment funds for those days short of one hundred and eighty which the district ultimately fails to conduct by virtue of a cause other than an "unforeseen emergency."  We have reference to State ex rel. Seattle School Dist. v. Preston, 84 Wash. 79, 146 Pac. 175 (1915), in which our court upheld the denial of annual apportionment funds to the school district involved for its conduct of school on days prescribed by law as a vacation period.  Specifically, School District No. 301 had conducted five of the district's annual total of one hundred and eighty-seven days of school within that vacation period, and it was thereby held to have forfeited five days (or five one hundred eighty-sevenths) of its annual entitlement to state apportionment.  A logical extension of this case supports the lawfulness and reasonableness of a pro rated daily reduction in annual equalization apportionment moneys on the basis of a district's failure to conduct the number of school days prescribed by law for reasons other than those contemplated by RCW 28A.41.170, supra.

                        SUMMARY
 
            Based upon the foregoing analysis, it is thus our opinion that the allowable basis for computing a school district's annual entitlement to state equalization apportionment funds in the event of a failure to conduct at least one hundred and eighty school days is as follows:
 
            (1) If the failure to conduct at least one hundred and eighty school days is occasioned by a cause other than an unforeseen emergency, the district must forfeit, as a matter of law, a pro rata portion of its annual entitlement.  A reasonable basis for computing this pro rata reduction is to reduce the district's annual entitlement by 1/180th for each day short of the required one hundred and eighty days which it failed to conduct.
 
            (2) If the failure to conduct at least one hundred and eighty school days is occasioned by an "unforeseen emergency" as defined in RCW 28A.41.170, the district  [[Orig. Op. Page 9]] will be entitled to its full annual entitlement ‑ assuming that the state superintendent of public instruction has allowed for the forgiveness of such days missed by regulations adopted pursuant to that statute.
 
            We trust the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
ROBERT E. PATTERSON
Assistant Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/See, RCW 28A.01.020 which provides that:
 
            "The school year shall begin on the first day of July and end with the last day of June."
 
2/Lest we be misunderstood with respect to the state board's regulation, however, we should here explain that we are not suggesting, by any means, that the state board may approve in advance a school district program of less than one hundred eighty days, notwithstanding RCW 28A.58.180, supra.  All that WAC 180-16-165, supra, does is to allow a program which has been conducted for less than the number of days required by law to be treated as an approved program for the number of days in which it was thus conducted.

Content Bottom Graphic
AGO Logo