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AGLO 1971 No. 94 - July 26, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                    July 26, 1971
Honorable Thomas S. Pryor
Director, Department of Civil Defense
4220 East Martin Way
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 94 (not official)
Dear Sir:
            By letter previously acknowledged you have asked for an opinion of this office on a question which we divide and paraphrase as follows:
            In a case covered by the provisions of RCW 38.52.110, as amended by § 1, chapter 8, Laws of 1971, 1st Ex. Sess., where a requisition is made by the appropriate civil defense authority to a school district for the use of its school buses:
            (a) May the school district refuse to allow the use of the buses thus requisitioned?
            (b) If not, may the school district nevertheless collect a reasonable rental charge for the use of the buses in question?
            (c) To what extent will the school district be indemnified with respect to damages to its buses when used in a civil defense situation under RCW 38.52.110, as amended?
            Your questions arise by reason of two separate enactments of the recently adjourned 1971 legislature.  First, during its regular session the legislature enacted chapter 24, Laws of 1971 ‑ an act containing an emergency clause which thus became effective when signed by the governor on March 22, 1971.  By this act, the legislature provided (in pertinent part) as follows:
            "NEW SECTION. Section 1. It is the intent of the legislature and the purpose of this 1971 amendatory act that in the event of major forest fires, floods, or other natural emergencies that boards of directors of school districts, in their discretion, may rent or lease school buses to governmental agencies for the purposes of transporting personnel, supplies and/or evacuees.
             [[Orig. Op. Page 2]]
            "NEW SECTION. Sec. 2. Each school district board shall determine its own policy as to whether or not its school buses will be rented or leased for the purposes of section 1 of this 1971 amendatory act, and if the board decision is to rent or lease, under what conditions, subject to the following:
            "(1) Such renting or leasing may take place only after the state director of civil defense or any of his agents so authorized has, at the request of an involved governmental agency, declared that an emergency exists in a designated area insofar as the need for additional transport is concerned.  "(2) The agency renting or leasing the school buses must agree, in writing, to reimburse the school district for all costs and expenses related to their use and also must provide an indemnity agreement protecting the district against any type of claim or legal action whatsoever, including all legal costs incident thereto."  (Emphasis supplied.)
            Thereafter, during the special legislative session which followed, the legislature enacted § 1, chapter 8, Laws of 1971, 1st Ex. Sess., ‑ to become effective on August 9, 1971.  By this enactment the legislature amended RCW 38.52.110, a part of the preexisting state civil defense act, as follows:
            "(1) In carrying out the provisions of this chapter, the governor and the executive heads of the political subdivisions of the state are directed to utilize the services, equipment, supplies, and facilities of existing departments, offices, and agencies of the state, ((and of the)) political subdivisions, and all other municipal corporations thereof including but not limited to districts and quasi municipal corporations organized under the laws of the state of Washington to the maximum extent practicable, and the officers and personnel of all such departments, offices, and agencies are directed to cooperate with and extend such services and facilities to the governor and to the civil defense organizations of the state upon request notwithstanding any other provision of law."  (Portions underlined represent new 1971 amendments.)
             [[Orig. Op. Page 3]]
            The apparent purpose behind the passage of the first of these two acts, chapter 24, Laws of 1971, was to provide authority for school bus use on a rental basis during certain designated natural emergency situations.  On the other hand, the legislature's apparent purpose in passing § 1, chapter 8, Laws of 1971, 1st Ex. Sess., was to include all municipalities and their resources (including, without question, school districts and their buses) within the circle of obligated agencies and governmental units which may be required to make their resources available in those civil defense emergency situations to which RCW 38.52.110 applies.
            In attempting to reconcile the provisions of these two separate acts of the 1971 legislature (albeit, acts passed by the legislature at separate sessions) the critical point to be noted, in our opinion, is the legislature's express inclusion of the phrase "notwithstanding any other provision of law" within the confines of the second of the two subject 1971 acts.  According to Webster's 3rd International Dictionary, the word "notwithstanding" means "without prevention or obstruction from or by; in spite of."  See, also, State ex rel. Morse v. Christianson, 262 Wis. 262, 55 N.W.2d 20 (1952); and Davis v. County of King, 77 Wn.2d 930, 468 P.2d 679 (1970).
            From this it follows, in our judgment, that in any civil defense emergency situation falling within the ambit of RCW 38.52.110, supra, the provisions of that statute apply "despite any enactment to the contrary" and "without prevention or obstruction by any prior act."  This means, clearly, that in such a case a board of school directors, when confronted with a requisition for use of the district's buses issued by the governor or other authorized civil defense authorities, will have no discretion as to whether or not to allow the use of the requested buses ‑ notwithstanding the permissive or discretionary provisions of chapter 24, Laws of 1971, supra.  Thus it follows that part (a) of your question must be answered in the negative.1/
             [[Orig. Op. Page 4]]
            Part (b) of your question assumes the foregoing negative answer to part (a) and asks whether the school district may, nevertheless, collect a reasonable rental charge for the use of its requisitioned buses.
            Based on the above set forth analysis of the relationship between the two 1971 acts to which you have referred, it is our opinion that a requirement for execution of some form of rental agreement may not be imposed in response to the requisition in such a manner as to "obstruct" the use of the equipment by the appropriate civil defense authorities under a situation covered by RCW 38.52.110.  In other words, where the need exists for this equipment under an emergency situation covered by the civil defense act, the school district whose buses are being requisitioned will have no legal basis to insist, as a precondition to their use, that a lease agreement be executed.
            However, nothing contained in § 1, chapter 8, Laws of 1971, 1st Ex. Sess., supra, nor in any other act relating to the use of school buses in civil defense emergency situations, purports to amend the general provisions of RCW 43.09.210.  This statute, which originated as § 3, chapter 76, Laws of 1909, provides in pertinent part as follows:
            "All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another."
            Based upon this statute, we conclude that even though it may not impose the requirement of execution of a rental agreement as a precondition to allowing the use of its school buses in a civil defense emergency situation, the school district whose buses are thus used may, nevertheless, make and enforce a claim against the utilizing civil defense agency for the "reasonable rental value" of the buses in question during the period of their use by the civil defense authority.
             [[Orig. Op. Page 5]]
            Finally, with respect to part (c) of your question ‑ again, for the same reasons as are set forth above, a school district whose buses are being requisitioned under RCW 38.52.110 in a civil defense emergency situation may not require, as a precondition to their use, the execution of an indemnification agreement such as is contemplated by § 2, chapter 24, Laws of 1971, supra.  However, this does not mean that the district will not have any right to be indemnified with respect to such damages to its buses as may be occasioned by their use in the subject situation.  Indemnification, in such a case, will be available to the district under the following express provisions of RCW 38.52.180:
            "(2) All legal liability for damage to property or injury or death to persons (except a civil defense worker, regularly enrolled and acting as such), caused by acts done, or attempted, under the color of this chapter in a bona fide attempt to comply therewith shall be the obligation of the state of Washington.  Suits may be instituted and maintained against the state for the enforcement of such liability, or for the indemnification of persons appointed and regularly enrolled as civil defense workers while actually engaged in civil defense duties, or as members of any agency of the state or political subdivision thereof engaged in civil defense activity, or their dependents, for damage done to their private property, or for any judgment against them for acts done in good faith in compliance with this chapter:  Provided, That the foregoing shall not be construed to result in indemnification in any case of wilful misconduct, gross negligence or bad faith on the part of any agent of civil defense:  Provided, That should the United States or any agency thereof, in accordance with any federal statute, rule or regulation, provide for the payment of damages to property and/or for death or injury as provided for in this section, then and in that event there shall be no liability or obligation whatsoever upon the part of the state of Washington for any such damage, death, or injury for which the United States government assumes liability."
             [[Orig. Op. Page 6]]
            We trust that the foregoing explanation of the matter will be of some assistance to you.
Very truly yours,
Charles F. Murphy

Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/On the other hand, it is equally clear that in a natural emergency situation which does not fall within the ambit of RCW 38.52.110, i.e., an emergency situation not coming within the jurisdiction and operation of the civil defense act, the provisions of chapter 24, Laws of 1971, will be applicable to the end that in such a case, the decision as to whether or not to allow the use of the requested school buses, and on what rental or other basis, will rest in the sound discretion of the school board to which the request is addressed.
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