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October 15, 1970
Honorable Louis Bruno
State Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington 98501
Cite as: AGLO 1970 No. 131
This is written in response to your recent letter requesting an opinion of this office on two questions pertaining to the provisions of chapter 28A.72 RCW. Your two questions read as follows:
"1. What connotation and definition shall be given to the term 'negotiate' as used in this chapter?
"2. Does the term 'negotiate' require or mandate a concluding written agreement on matters in which the school board and local education association have concurred?"
Chapter 28A.72 RCW codifies the provisions of chapter 143, Laws of 1965, and deals with the subject of negotiations between school districts and representatives of their certificated employees. The portion of the act which is particularly germane to your questions is § 3, presently codified as RCW 38A.72.030, which reads as follows:
"Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the certificated employees within its school district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of directors of the school district or a committee thereof to communicate the considered professional judgment of the certificated staff prior to the final adoption by the board of proposed school policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties." (Emphasis supplied.)
[[Orig. Op. Page 2]]
The meaning to be given to the term "negotiate" as used in this statute was previously considered by this office in an opinion to the president of Yakima Valley Community College, dated June 13, 1969, a copy of which is enclosed herewith. Beyond this, it would be inappropriate for us, at this time, to comment further on the meaning of this term, for this question is currently involved in litigation in the courts. See, Seattle Community College Federation of Teachers, et al. v. Board of Trustees, Community College District VI, et al., King County cause No. 727875. It has long been the policy of this office not to issue an opinion on a question which is in litigation before the courts or before an administrative tribunal having jurisdiction. Once a question reaches this posture, the function of determining it is exclusively a function of the tribunal having jurisdiction, and not of this office by means of an advisory attorney general's opinion.
In so far as your second question is concerned, a reading of chapter 28A.72 RCW in its entirety reveals no provision therein requiring that an agreement which may be reached between representatives of an employee organization and a school board, after negotiations under RCW 28A.72.030, be reduced to any sort of a formal written document. Of course, in many instances there will be sound practical reasons for executing a formal written contract covering those agreements which are reached after negotiations have taken place under the act. In such instances, the use of a formal written contract is perfectly permissible and undoubtedly wise. However, in the absence of any express requirement within the subject act that the parties to an agreement reached thereunder must sign any sort of a written contract evidencing the terms of their agreement, we believe that your second question as you have stated it, is answerable in the negative.1/
[[Orig. Op. Page 3]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General
*** FOOTNOTES ***
1/In this regard, chapter 143, Laws of 1965 (chapter 28A.72 RCW) should be contrasted with the National Labor Management Relations Act (29 U.S.C.A. § 141, et seq.) commonly known as the Taft-Hartley Act. Under § 158 (d) of this latter act, the execution of a formal written agreement as the culmination of collective bargaining between an employer and an employee organization representing the group of its employees is expressly provided for and required; cf., H. J. Heinz Co. v. National Labors Relations Board, 311 U.S. 514, 85 L.Ed. 309 (1940).