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AGLO 1971 No. 136 - December 27, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               December 27, 1971
 
 
 
Honorable Alan Thompson
State Representative, 18th District
303 Estey Drive
Castle Rock, Washington 98611
                                                                                          Cite as:  AGLO 1971 No. 136 (not official)
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting an opinion of this office on a question which we paraphrase as follows:
 
            "May tax funds generated by a county pursuant to RCW 71.20.110 be used by the county to pay the costs incurred by it in the detention of persons awaiting sanity hearings in a maximum security psychiatric facility maintained by a local private hospital with which the county has a service contract?"
 
            On the basis of the information which you have provided to us in connection with your request we believe that this question must be answered in the negative.  As detailed below, it does not appear that the program contemplated would involve either mental retardation or mental health services within the meaning of the applicable statutes.
 
                                                                     ANALYSIS
 
            RCW 71.20.110, as amended by § 1, chapter 84, Laws of 1971, 1st Ex. Sess., reads, as follows:
 
            "In order to provide additional funds for the coordination of community mental retardation services and to provide community mental retardation or mental health services, the board of county commissioners of each county in the state shall budget and levy annually a tax in a sum equal to the amount which would be raised by a levy of one‑fortieth of a mill against the actual value of the taxable property in the county to be used for such purposes:  PROVIDED, That all or part of the funds collected from the tax levied for the purposes of this section may be transferred to the state of Washington, department of social and health services, for the purpose of obtaining federal matching  [[Orig. Op. Page 2]] funds to provide and coordinate community mental retardation and mental health services.  In the event a county elects to transfer such tax funds to the state for this purpose, the state shall grant these moneys and the additional funds received as matching funds to service‑providing community agencies in the county which has made such transfer, pursuant to the plan approved by the county, as provided by chapters 71.16, 71.20, 71.24, and 71.28 RCW."
 
            Under the portion of this statute preceding the proviso, which was added by the 1971 amendment, it will be seen that a board of county commissioners may directly allocate the funds derived from the levy to various community mental retardation and mental health programs within its county without going through the state department of social and health services.  The proviso, in spelling out an alternative procedure, is clearly permissive.
 
            However, it will also be seen from our RCW 71.20.110, supra, that the funds, if directly allocated locally, may only be used for (a) a community mental retardation service, or (b) a community mental health service.  The ultimate question to be determined, then, is whether the maintenance of a maximum security psychiatric unit for persons awaiting mental illness commitment proceedings (under chapter 71.02 RCW) can be said to fall within either of those two categories.
 
            Before proceeding to consider this issue, we believe that some explanation of the relationship between a board of county commissioners and a community mental health program administrative board is appropriate, for we understand your request to have been precipitated by an application received from the board of commissioners of Cowlitz County seeking approval from such an administrative board to allocate the subject tax proceeds for the program in question.  These boards are provided for by RCW 71.24.060, as follows:
 
            "Every county or combination of counties desirous of establishing a community mental health program shall, before it may come within the provisions of this chapter, establish a community mental health program administrative board which shall be composed of not less than nine nor more than fifteen members . . ."
 
             [[Orig. Op. Page 3]]
            The duties of a community mental health program administrative board are set forth in RCW 71.24.070 as follows:
 
            "The community mental health program administrative board shall:
 
            (1) Review and evaluate the mental health needs, services, facilities and special problems of the area to be served by the community mental health program.
 
            (2) Advise the county commissioners as to a program of community mental health services; which program shall reflect the fullest feasible utilization of already existing services, and, when appropriate, advise the county commissioners concerning the appointment of a supervisor of community mental health services.
 
            (3) Receive and review all applications for financial support under the provisions of this chapter submitted by a nonprofit corporation, local health department, or supervisor of community mental health services and submit recommendations concerning these applications to the board or boards of county commissioners.
 
            (4) After adoption of a program, supervise the financial and service components of the mental health program through the supervisor of community mental health services, or through a nonprofit corporation or corporations or a local health department or any combination thereof in order to be assured that actual expenditures and programs remain consistent with the agreements contained in the application as provided.
 
            (5) Submit annually to the county commissioners a report of the activities of the community mental health program, including a financial accounting of expenditures.
 
            (6) Submit annually to the county commissioners for approval, a plan of proposed expenditures."
 
            With these provisions in mind we next note RCW 71.24.050, which provides that:
 
             [[Orig. Op. Page 4]]
            "The board or boards of county commissioners, after receipt of recommendations from the community mental health program administrative board, may provide mental health services directly which shall be administered by a supervisor of community mental health services, or may contract for such services from a nonprofit corporation or corporations or secure such services through a local health department . . ."
 
            Thus, the ultimate function of the administrative board is merely advisory and recommendatory; its advice and recommendation with regard to any program contemplated by a board of county commissioners must be sought and considered ‑ but it need not necessarily be followed.  Moreover of course, it is not the function of this administrative board to determine the legality of a particular proposed expenditure; instead, any legal questions pertaining to the program should be reviewed by the prosecuting attorney of the county in question, as the statutory legal advisor to all county officers under RCW 36.27.010, et seq.
 
            Turning now to the ultimate question of whether the program described in your question can be characterized as either a community mental retardation program or a community mental health service, we note, first, the express provisions of RCW 71.20.070, as follows:
 
            "Community mental retardation programs may consist of any or all of the following services:
 
            (1) Diagnostic and evaluation services of mentally retarded persons,
 
            (2) Medical and dental services for those mentally retarded individuals unable to obtain private care;
 
            (3) Psychiatric services of those mentally retarded unable to obtain private care in cooperation with any existing community mental health program.
 
            (4) Group homes providing full or part time care, support and maintenance for mentally retarded persons;
 
            (5) Facilities for vocational training and education of mentally retarded persons;
 
             [[Orig. Op. Page 5]]
            (6) Day care centers for mentally retarded persons;
 
            (7) Informational service to the general public and educational services furnished by qualified personnel to schools, courts, health and welfare agencies and other appropriate public or private agencies or groups;
 
            (8) Consultant services to public or private agencies for the promotion and coordination of services to the mentally retarded."
 
            It is, of course, possible that some aspect of the maximum security psychiatric unit referred to in your letter is related to the treatment of mentally retarded persons ‑ but this would not appear to be within the purview of its function as a place of custody for persons awaiting mental illness commitments under Chapter 71.02 RCW.  Therefore, it would be our opinion that if this program is to be brought within the scope of RCW 71.20.110, supra, it must be on the basis of providing a mental health service rather than a mental retardation program to which issue we now turn.
 
            The legislature has defined mental health service in RCW 71.24.020 (3), as follows:
 
            "(3) 'Mental health needs,' 'mental health programs' and 'mental health services' as used in this chapter shall include but not be limited to all those items set forth in section 7 of this 1971 anendatory act."
 
            The reference to "section 7 of this 1971 amendatory act" in the above section is to RCW 71.24.03, which reads as follows:
 
            "The director is authorized, pursuant to the provisions of this chapter and the rules and regulations promulgated to effectuate its purposes, to make grants to assist counties or combinations of counties in the establishment and operation of community mental health programs to provide one or more of the following services:
 
            (1) Outpatient diagnostic and treatment services.
 
            (2) Inpatient psychiatric services.
 
            (3) Rehabilitation services for patients with psychiatric illnesses.
 
             [[Orig. Op. Page 6]]
            (4) Informational services to the general public and educational services furnished by qualified mental health personnel to schools, courts, health agencies, welfare agencies, probation departments and other appropriate public or private agencies or groups.
 
            (5) Consultant services to public or private agencies for the promotion and coordination of services that preserve mental health and for the early recognition and management of conditions that might develop into psychiatric illnesses.
 
            Such inservice training as may be necessary in providing any of the foregoing services shall be proper items of expenditure in connection therewith."
 
            This definition of "mental health service" is made applicable to the use of RCW 71.20.110 tax receipts by RCW 71.24.050, supra, which reads in full as follows:
 
            "The board or boards of county commissioners, after receipt of recommendations from the community mental health program administrative board, may provide mental health services directly which shall be administered by a supervisor of community mental health services, or may contract for such services from a nonprofit corporation or corporations or secure such services through a local health department.  Services obtained on contract from a nonprofit corporation or corporations or through a local health department shall be subject to the provisions of this act, except that those provisions requiring the appointment of a supervisor of community mental health services shall be inapplicable.  Such nonprofit corporation or corporations or local health departments shall be responsible for carrying out the duties of a supervisor of mental health services as set forth in RCW 71.24.090 and as otherwise provided in this chapter, or such part or parts of that responsibility which may be deemed appropriate in accordance with the services called for in the contract."  (Emphasis supplied)
 
            Reading both RCW 71.24.020 and 71.24.030 together, it seems clear that the detention program contemplated under the proposed contract would have to include some treatment or rehabilitation feature to come within one of the specified services set forth in the law.  However, there is nothing in the  [[Orig. Op. Page 7]] information which you have forwarded to us which would indicate that such treatment or rehabilitation is contemplated by the hospital's program under the proposed detention contract which precipitated your question.  Consequently, the only question that remains is whether or not the contemplated program could be a mental health service beyond those specified in RCW 71.24.030, a possibility which arises as a result of the caveat contained in RCW 71.24.020 to the effect that mental health services "shall include but not be limited to all those items set forth" in RCW 71.24.030.


 
            In analyzing this possibility, the only guidelines given by the legislature, from which its intent can be deduced, are those contained in RCW 71.24.030.  As previously noted in part, all of the services referred to there contain a component of treatment, rehabilitation or education.  Consequently, applying the "ejusdem generis" rule of statutory construction which requires that general words used in a statute in connection with specific terms shall be accorded a meaning analogous to the latter,1/ it would be our opinion that unless a contemplated program contained one of these components, it would not fall within the meaning of "mental health service" as either defined or intended by the legislature.
 
            Since, as above stated, it does not appear that either of these component features will be included in the program under consideration, we must conclude that it would not be a program susceptible of being funded by tax receipts generated by a county pursuant to RCW 71.20.110.  Of course, if the facts should ultimately turn out to be other than as we presently understand them, a different answer might then be given to your question.
 
            We trust that the foregoing has been of assistance to you.  If you have further questions, please do not hesitate to contact us.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
JOHN H. BRIGHT
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, e.g., State v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951).
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