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AGLO 1971 No. 93 - July 26, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                    July 26, 1971
 
 
 
The Board of Trustees
Seattle Community College
9600 Burke Avenue North
Seattle, Washington 98103
 
Attention:  Dr. Cecil Baxter, Jr.
            Chairman, Executive Committee
                                                                                            Cite as:  AGLO 1971 No. 93 (not official)
 
 
Gentlemen:
 
            This is written in response to your recent letter requesting an opinion of this office on several questions pertaining to the permissible uses of the "services and activities fees" to be levied by our state colleges and universities (including community colleges) under chapter 279, Laws of 1971, Ex. Sess.  We paraphrase your questions as follows:
 
            (1) May any revenues derived from such "services and activities fees" be used to pay the salaries of college employees who are involved in the administration of financial aid programs, athletics, libraries and instructional resource centers, or counseling and testing?
 
            (2) May any such revenues be used to fund the operational and administrative costs of special tutorial programs or curriculum development activities?
 
            (3) May any such revenues be used to fund the maintenance and operation costs of the college, or university, including general administrative costs, instructional salaries, supplies and equipment?
 
            (4) Where does the legal authority for the allocation of the "services and activities fees" reside, and what are the legal guidelines for the exercise of that authority?
 
            We answer questions (1) and (4) as indicated in the analysis set out below; questions (2) and (3) are answered in the negative as explained therein.
 
                                                                     ANALYSIS
 
            By its enactment of chapter 279, Laws of 1971, Ex. Sess.,1/ the legislature adopted a new scheme of tuition and fees to be implemented by all state colleges and universities ‑ defined in § 1 as follows:
 
             [[Orig. Op. Page 2]]
            "'Colleges and universities' for the purposes of this chapter shall mean Central Washington State College at Ellensburg, Eastern Washington State College at Cheney, Western Washington State College at Bellingham, The Evergreen State College in Thurston County, community colleges as are provided for in chapter 28B.50 RCW, the University of Washington and Washington State University."  (Emphasis supplied.)
 
            In so far as the act relates to community colleges such as yours, this new scheme is spelled out in § 10, amending the previous language of RCW 28B.15.500 as follows:
 
            "General tuition fees ((and incidental)), operating fees and services and activities fees charged students registered at each community college other than at summer quarters shall be as follows:
 
            "(1) Full time resident students:
 
                        "(a) General tuition ((fees)) fee ((fifty)) forty-one dollars and fifty cents per quarter; ((and))
 
                        "(b) ((Incidental)) Operating fees ((not more than twenty)), twenty-seven dollars per quarter; and
 
                        "(c) Services and activities fees, not more than fourteen dollars and fifty cents per quarter.
 
            "(2) Full time nonresident students:
 
                        "(a) General tuition ((fees)) fee, one hundred ((fifty)) thirty-one dollars and fifty cents per quarter; ((and))
 
                        "(b) ((Incidental)) Operating fees, ((not more than twenty)) eighty-one dollars per quarter; and
 
                        "(c) Services and activities fees, not more than fourteen dollars and fifty cents per quarter.
 
            "Tuition ((and incidental)), operating fees and activities fees consistent with the above schedule will be fixed by the state board for community colleges for summer school students.
 
            " . . . "
 
             [[Orig. Op. Page 3]]
            Similar amendments to the preexisting tuition and fee statutes for the University of Washington (RCW 28B.15.200), Washington State University (RCW 28B.15.300) and the four state colleges (RCW 28B.15.400) are contained in §§ 6, 7 and 9 of the act‑- with, however, certain dollar differences.2/   Thus, although your questions relating to the permissible uses of "services and activities fees" have been framed from the standpoint of a community college, this opinion will of necessity have a considerably broader application.
 
            In order to interpret chapter 279, Laws of 1971, Ex. Sess., in the light of your questions, it is necessary to look at the relevant rules of statutory construction.  The primary rule when construing statutes is to ascertain and give effect to the legislative intention.  King Cy. Etc. Ass'n. v. State Etc. Bd., 54 Wn.2d 1, 336 P.2d 387 (1959); Layton v. Home Indemnity Co., 9 Wn.2d 25, 113 P.2d 538 (1941); and McKenzie v. Mukilteo Water District, 4 Wn.2d 103, 102 P.2d 251 (1940).  This rule was perhaps best stated in the ancient case of Eyston v. Studd (England, 1574), 2 Plowden 460, 464 [cited with approval in Alderwood Water Dist. v. Pope & Talbot, Inc., 62 Wn.2d 319-321, 382 P.2d 639 (1963)]:
 
            " ' . . . intent of statutes is more to be regarded and pursued than the precise letter of them, for oftentimes things, which are within the words of statutes, are out of the purview of them, which purview extends no further than the intent of the makers of the act, and the best way to construe an act of Parliament is according to the intent rather than according to the words.  . . .' "
 
             [[Orig. Op. Page 4]]
            In addition, when determining the legislative intent of an amendment to a statute the old law must also be considered along with the new, ". . . for a presumption carries in all changes in statute law that the legislature had in mind a mischief . . . and a remedy."  In re Eichler's Estate, 102 Wash. 497-499, 173 Pac. 435 (1918).
 
            The sequence of application of these rules of statutory interpretation was stated in Ropo, Inc. v. Seattle, 67 Wn.2d 574-577, 409 P.2d 148 (1965), as follows:
 
            "It is an elementary principle of statutory interpretation that legislative intention may be inferred from extrinsic evidence such as the legislative history of prior enactment, the legislative history of the enactment itself, the interpretation given the statute by administrative officials, etc.  But the language of the statute is the point at which we begin our inquiry:  'In arriving at the intent of the legislative body, the first resort of the courts is to the context and subject matter of the legislation, because the intention of the lawmaker is to be deduced, if possible, from what is said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 697, 306 P.2d 745, 749 (1957).' "
 
            Thus, to answer your questions we will attempt to deduce legislative intent, first from the words of the statute and then from any secondary sources available.  In the case of your first three questions, our objective will be to provide you with the basis for a definitional application of the term "services and activities fees" to certain expenditures made by a college or university, while in the case of question (4), it will be to elucidate legislative intent with regard to the placement of authority to allocate these revenues.
 
            In answering these questions, it is first important to note that the principal thrust of the new tuition and fee scheme as set forth in § 10, supra, for community colleges ‑ and in the comparable provisions of §§ 6, 7 and 9 for the other institutions noted above ‑ is the replacement of the old "incidental fees" with two separate new fee categories ‑ "operating fees" and "services and activities fees."  Moreover, each of these two new terms is expressly defined in the act, as follows:
 
            Section 2:
 
            "The term 'operating fees' as used in this chapter shall include the fees, other than general tuition fees, charged all students registering at the state's colleges and universities but shall not include fees for short courses, marine station work, experimental station work, correspondence or  [[Orig. Op. Page 5]] extension courses, and individual instruction and student deposits or rentals, disciplinary and library fines, which colleges and universities shall have the right to impose, laboratory, gymnasium, health, and student activity fees, or fees, charges, rentals, and other income derived from any or all revenue producing lands, buildings and facilities of the colleges or universities heretofore or hereafter acquired, constructed or installed, including but not limited to income from rooms, dormitories, dining rooms, hospitals, infirmaries, housing or student activity buildings, vehicular parking facilities, land, or the appurtenances thereon, or such other special fees as may be established by any college or university board of trustees or regents from time to time.  Operating fees shall be used as otherwise provided by law or by rule or regulation of the board of trustees or regents of each of the state's colleges or universities for the general operation and maintenance of their particular institution."
 
            Section 3:
 
            "The term 'services and activities fees' as used in this chapter is defined to mean fees, other than general tuition and operating fees, charged to all students registering at the state's colleges and universities.  Services and activities fees shall be used as otherwise provided by law or by rule or regulation of the board of trustees or regents of each of the state's colleges or universities for the express purpose of funding student activities and programs of their particular institution."
 
            Reading, now, the provisions of these two definitional sections together with the substantive provisions of § 10, supra, we believe the basic purpose of these enactments to be apparent; namely, to replace the broad and undefined "incidental fee" with two somewhat more precise fees so that the legislature might more accurately direct the allocation of college and university fees, other than general tuition, between (a) operational expenditures and (b) student activities expenditures.
 
            In terms of Eichler's Estate, supra, the mischief which the legislature had in mind was the imprecision of the incidental fee, and the remedy was the division of that fee into "operating fees" and "services and activities fees."  Restated, the legislature intended that the operating fees not be expended for services and activities, and, conversely, that the services  [[Orig. Op. Page 6]] and activities fees not be expended for normal operating expenses; for clearly, these two terms, as defined above, are mutually exclusive.
 
            Question (1):
 
            By your first question you have asked whether any of the revenues derived from "services and activities fees" may be used to pay the salaries of college employees who are involved in the administration of financial aid programs, athletics, libraries and instructional resource centers, or counseling and testing.  Our opinion is that these salaries may be so funded only to the extent that the subject employees are engaged in student activities and programs ‑ as opposed to normal maintenance and operation functions of the college.  Thus, each case in this area will have to be judged on the basis of its own facts.  For example, our factual assumptions about the functioning of libraries and instructional resource centers would lead us to conclude that administrative personnel devoting their full time to the maintenance and operation of these facilities could not be paid from funds generated by services and activities fees.3/   On the other hand, we think that those employees engaged in the administration of intramural or intercollegiate athletic programs could be so paid to the extent that their efforts are directed toward those activities.  We also believe that those engaged in the administration of athletic programs which make up the regular program of the physical education department could not be paid from services and activities fees monies.  The same analysis when applied to the area of counseling and testing suggests that only that counseling which is not a part of the normal maintenance and operation of the college may be funded through the services and activities fees.
 
            Finally, the funding of salaries for financial aid administrators is also subject to the same analysis but with additional statutory support.  Section 4, chapter 279, Laws of 1971, Ex. Sess., states that:
 
            "The board of trustees or regents of each of the state's colleges or universities may allocate from services and activities fees in an amount not to exceed one dollar per quarter or one dollar and fifty cents per semester to an institutional student loan fund for needy students, to be administered by  [[Orig. Op. Page 7]] such rules or regulations as the board of trustees or regents may adopt:  Provided, That loans from such funds shall not be made for terms exceeding twelve months, and the true annual rate of interest charged shall be six percent."
 
            This section grants each of the governing boards of the subject institutions the authority to allocate a specified portion of their "services and activities fees" revenues to an institutional student loan fund.  It also grants them the rule‑making authority to facilitate the administration of such a fund.  This, we believe, reflects the legislature's recognition of the whole student financial aid area as a legitimate beneficiary of services and activities fees.  It is, of course, clear that the legislature intended to restrict each institution's allocation of these fees to the loan fund to the stated maximum.  However, the rule‑making authority contained in § 4, coupled with the admonition of § 3 that services and activities fees be spent for the purpose of funding student activities and programs, leads us to the conclusion that a governing board may, in addition, direct that the administrative expenses of the financial aid program be funded from services and activities fees.  In short, while the legislature restricted the amount of the allocation of services and activities fees which a governing board might make to the fund itself, it also expressly delegated to the respective boards the responsibility for administering that fund.  This recognition by the legislature of the financial aid area as a student activity or program also leads us to conclude that administrative salaries occasioned in connection with student aid funds other than the one created by § 4, supra, may be funded by the services and activities fees.
 
            To facilitate your application of the above analysis to a particular factual circumstance, we call to your attention certain remarks regarding the issue raised by this question which were made on the floor of the house of representatives during debate on the act.4/   Representatives King and Smythe were there discussing their understanding of the last sentence of § 3, supra, which reads:
 
            ". . . Services and activities fees shall be used as otherwise provided by law or by rule or regulation of the board of trustees or regents of each of the state's colleges or universities for the express purpose of funding student activities and programs of their particular institution."
 
             [[Orig. Op. Page 8]]
            It appears from this exchange to have been the legislature's intent to include some element of student desire or approval within the definition of "student activities and programs."  Consistent therewith, we would think that expenditures of the subject "services and activities fees" which are made in support of those activities or programs in which the student government has some degree of participation will more readily be regarded as expenditures appropriately made from funds generated by those fees than will expenditures made for other programs.
 
             [[Orig. Op. Page 9]]
            Question (2):
 
            Your second question inquires into the permissibility of funding special tutorial programs and curriculum development activities from services and activities fees.  Of course, consistent with the foregoing, you should be aware that the use of the words "programs" and "activities" will not be determinative.  As in the case of employees salaries, discussed above, the factual circumstances as opposed to the chosen labels will determine the permissibility of the expenditure.
 
            With this caveat in mind, it is our opinion that the funding of special tutorial programs, or of curriculum development activities thereto would not ordinarily constitute legally permissible uses of funds generated by services and activities fees.  This conclusion stems from our understanding that while such programs and activities may well be innovative, they are, nevertheless, designed to carry out the fundamental educational objective of the colleges and universities.  As such, they seem better suited to the characterization of maintenance and operation than to that of student activities and programs.
 
            Question (3):
 
            Your third question inquires as to whether revenues derived from services and activities fees may be used to fund the maintenance and operation costs of the college or university, including general administrative costs, instructional salaries, supplies and equipment.  Based upon the foregoing analysis, this question is clearly answerable in the negative.  These costs, instead, represent proper objects to be funded through revenues derived from the mutually exclusive "operating fees."
 
            Question (4):
 
            Your fourth question, repeated for ease of reference, is as follows:
 
            Where does the legal authority for the allocation of the "services and activities fees" reside, and what are the legal guidelines for the exercise of that authority?
 
            Section 5 of the subject act, amending RCW 28B.15.100, expressly delegates to the various governing boards of regents or trustees the authority to charge and collect general tuition fees, operating fees and services and activities fees.  Under §§ 6, 7, 9 and 10, these boards have the sole authority for setting the amount of the services and activities fees.  In so far as the use of these fees is concerned, § 3, supra, provides that it is the board of regents or trustees which possesses the authority to allocate the funds generated by these fees for the purposes stated in that section; i.e., funding student activities and programs.
 
             [[Orig. Op. Page 10]]
            Moreover, we do not regard the earlier quoted discussion between Representatives King and Smythe (see footnote 4, supra) as being inconsistent with these express statutory provisions.  Instead, as above indicated, their conception of the role of student government under the act falls within the definitional area (i.e., what is or is not a student activity or program) and not the area of budgeting or fund allocation.  Thus, the absence of student involvement in a given activity may well disqualify that activity for funding from the services and activities fees.  On the other hand, only the board of trustees or regents has the authority to allocate the funds generated by these fees to these activities or programs which do qualify.
 
            We trust the foregoing will be of assistance to you.
 


Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Douglas Cook
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Effective August 9, 1971.
 
2/See, also, § 5, dealing with all state colleges and universities (including community colleges), and amending RCW 28B.15.100, to read as follows:
 
            "The board of regents and board of trustees at each of the state's colleges and universities shall charge to and collect from each of the students registering at the particular institution such general tuition fees ((incidental)), operating fees, services and activities fees, and other fees as such board shall in its discretion determine:  Provided, That such general tuition fees and ((incidental)) operating fees for quarters other than summer session shall be in at least the amounts for the respective institutions as set forth in RCW 28B.15.200, 28B.15.300, 28B.15.400 and 28B.15.500 as now or hereafter amended: PROVIDED FURTHER, That the fees charged by boards of trustees of community college districts shall be consistent with RCW 28B.15.500 as now or hereafter amended."
 
3/For this analysis we have assumed that the maintenance and operation of instructional resource centers are more likely to be an operating expense rather than an activity expense.  We make an opposite assumption for the maintenance and operation of a student government.
 
4/On April 27, 1971, during the debate on the measure, it is recorded in the House Journal that the following exchange between Representatives King and Smythe occurred:
 
            "Mr. King yielded to question by Mr. Smythe.
 
            "Mr. Smythe:  'Representative King, the amendment reads for the "express purpose of funding student activities and programs."  Could you, for the benefit of the House, define what you term "activities and programs" that this would cover?'
 
            "Mr. King:  'Well, I believe the intent here is that it be anything that is adopted by the student government (whatever government that is) and hopefully by the governing body in addition to it.  It would include such things as their athletic programs (if they want to), their intercollegiate debate, their school dances‑-all the things that students do as a part of their activity programs.  In addition to that, I would believe that this amendment would cover the things necessary for the activities.  I think it would be possible if the student government decided to build an intramural building, for example, as part of their activities program, and they were involved in it, that this would cover that also.  I think the key thing is that it be related to a decision made by the students.'
 
            "Mr. Smythe:  'Thank you, and I think his main point and the one you should keep in mind is that the students themselves are being involved.  The decisions will be made by their governmental leadership.  At this point, we do not feel this is being done.  He also stated it would be with the concurrence of the administration.  I think this is a good amendment.  I think it will suffice to give us some kind of a definition until such time as a study comes forth with something better, and I really urge your support of it.'"
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