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AGLO 1970 No. 145 - November 16, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               November 16, 1970
 
 
 
Honorable Dwight S. Hawley
State Representative, 44th District
2208 N.W. Market Street
Seattle, Washington 98107
                                                                                                             Cite as:  AGLO 1970 No. 145
 
 
Dear Sir:
 
            You have asked for the opinion of this office on several questions concerning the pending proposal by the Washington state board against discrimination to adopt a policy and certain recommendations regarding clubs or fraternal organizations which exclude persons from membership because of race, creed, color or national origin.  Taking into account both your letter and a subsequent telephone conversation, your questions may be paraphrased as follows:
 
            (1) Does the Washington state board against discrimination have the power to adopt an advisory policy and recommendations regarding clubs which exclude persons from membership because of race, creed, color or national origin?
 
            (2) If so, does the board have the power to hold a hearing on whether to adopt such a policy and recommendations?
 
            (3) If so, is it lawful to circulate a draft of the proposed policy and recommendations in advance of the hearing?
 
            We answer all three of your questions in the affirmative.
 
                                                                     ANALYSIS
 
            Summarizing information received from both you and the board, it appears that earlier this year the staff of the Washington state board against discrimination drew up a proposed policy and recommendations on "exclusionary clubs" which it submitted to the board at its monthly meeting held on September 17, 1970.  The board at that time decided to solicit comments and to hold a public hearing before acting on the draft.  Thereupon, over 500 copies of the proposed policy and recommendations were distributed to various public officials, clubs, civil rights organizations and others, with an invitation to appear at a hearing on October 21, 1970.  Approximately 300 persons attended this hearing of which a total of  [[Orig. Op. Page 2]] 53 spoke.  The board also received a number of written comments.  The board then announced that the matter of adoption of the proposed policy, or a revised version of it, will be on the agenda of its next regular monthly meeting scheduled for November 19, 1970.
 
            The staff draft begins by defining the term "exclusionary club" to mean "a club or fraternal organization that excludes persons from membership because of race, creed, color or national origin when these qualifications are not relevant to the purpose of the club."  It then discusses what the proper relationship should be between government officers and agencies and exclusionary clubs, and concludes with the following advisory statement:
 
            "The posture of government toward exclusionary bona fide clubs should be one of tolerating them despite the harm they do, in order to preserve freedom of association.  Government should not subsidize exclusionary clubs economically, should not legitimize them with patronage or official recognition, and should not accord them special privileges.  The proper posture should not be neutrality, but tolerant disapproval."
 
            The draft then makes various advisory recommendations to public officers and agencies generally, and to legislators, officers of the executive branch, judges and specifically, to "all persons of good will."1/   These recommendations cover such matters as holding meetings in exclusionary clubs, liquor licenses, and membership in such clubs by public officers.
 
            Question (1):
 
            Your first question is whether the board has the power to adopt such a policy and recommendations on exclusionary clubs.  The framework for answering this question  [[Orig. Op. Page 3]] is the familiar rule of law that a state agency created by statute has only those powers expressly given to it or necessarily implied from its statutory authority.  See, e.g., State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).
 
            The principal source of powers for the board against discrimination is the state law against discrimination, codified in chapter 49.60 RCW.  One section of this chapter, RCW 49.60.110, provides that:
 
            "The board shall formulate policies to effectuate the purposes of this chapter and may make recommendations to agencies and officers of the state or local subdivisions of government in aid of such policies and purposes."
 
            We understand the thrust of your question to be whether the board has the power to adopt a policy and make recommendations concerning clubs.  Stated differently, in the terms of RCW 49.60.110, supra, the question is:  Does a policy concerning clubs "effectuate the purposes of this chapter" [the law against discrimination]?2/   In posing this question, you have noted that the board's power to process complaints and issue administrative orders is limited to the areas of employment, real property transactions, and places of public accommodation, and that the statutory definition of place of public accommodation expressly excludes a "bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations" except where public use is permitted.  RCW 49.60.040.
 
            However, the answer to your question is that the purposes of the law against discrimination, which a board against discrimination policy and recommendations must effectuate, are broader than simply furnishing a remedy to persons who have been discriminated against in employment, a real property transaction, or a place of public accommodation.  The law against discrimination also contains provisions covering ethnic discrimination in every area of life.  It is only those of its provisions creating administrative  [[Orig. Op. Page 4]] remedies which are limited to the areas of employment, real property transactions, and places of public accommodation (i.e., excluding clubs).
 
            The conclusion just stated is best evidenced from reading the law against discrimination as a whole, but the following sections are the most material ones:
 
            RCW 49.60.010:
 
            ". . .  The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, or national origin are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.  A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, in places of public resort, accommodation or amusement, and in real property transactions because of race, creed, color, or national origin; and the board established hereunder is hereby given general jurisdiction and power for such purposes."
 
            RCW 49.60.030:
 
            "The right to be free from discrimination because of race, creed, color, or national origin is recognized as and declared to be a civil right.  This right shall include, but not be limited to:
 
            "(1) The right to obtain and hold employment without discrimination;
 
            "(2) The right to the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement;
 
            "(3) The right to engage in real estate transactions without discrimination."  (Emphasis supplied.)
 
             [[Orig. Op. Page 5]]
            RCW 49.60.100:
 
            "The board . . . shall make such recommendations for further legislation as may appear desirable.  . . ."
 
            RCW 49.60.120:
 
            "The board shall have the functions, powers and duties:
 
            ". . .
 
            "(5) To issue such publications and such results of investigations and research as in its judgment will tend to promote good will and minimize or eliminate discrimination because of race, creed, color, or national origin.
 
            "(6) To make such technical studies as are appropriate to effectuate the purposes and policies of this chapter and to publish and distribute the reports of such studies."
 
            RCW 49.60.130:
 
            "The board has power to create such advisory agencies and conciliation councils, local, regional or state‑wide, as in its judgment will aid in effectuating the purposes of this chapter.  The board may empower them to study the problems of discrimination in all or specific fields of human relationships or in specific instances of discrimination because of race, creed, color or national origin; to foster through community effort or otherwise good will, cooperation, and conciliation among the groups and elements of the population of the state, and to make recommendations to the board for the development of policies and procedures in general and in specific instances, and for programs of formal and informal education which the board may recommend to the appropriate state agency."  (Emphasis supplied.)
 
            These portions of the law against discrimination are directed at discrimination because of race, creed, color or national origin in all fields of human relationships.  They express, as purposes of the law against discrimination,  [[Orig. Op. Page 6]] both of the following purposes:
 
            (1) To create an administrative remedy for ethnic discrimination in three carefully defined areas: employment, real property transactions and places of public accomodation.
 
            (2) To state a policy, create a civil right, and provide for administrative action other than law enforcement, directed at ethnic discrimination in all fields of human relationships.
 
            In the first area the board against discrimination is given "general jurisdiction and power" (RCW 49.60.010), including the power to receive complaints and issue complaints on its own (RCW 49.60.230); to investigate the complaints and attempt to resolve through conference and conciliation the ones that appear to be well founded (RCW 49.60.240); to hold evidentiary hearings and issue orders (RCW 49.60.250); and to enforce the orders in court (RCW 49.60.260).
 
            In the second area the board is given more limited powers:  To recommend legislation, make studies, issue publications, create advisory agencies and conciliation councils to study problems of discrimination in all or specific fields of human relationships, and to work for better relationships between all elements of the state's population.
 
            It is noteworthy that RCW 49.60.030, which declares without limitation as to place or subject matter, "The right to be free from discrimination because of race, creed, color, or national origin is recognized as and declared to be a civil right," appears to be self-executing.  This section does not need to be enforced by the board.  In fact, the sentence is followed by language (quoted above) expressly saying that the civil right is not limited to the three areas where the board has law enforcement jurisdiction.  This, along with the statement in RCW 49.60.130 (quoted above) that advisory agencies and conciliation councils may study ethnic discrimination "in all or specific fields of human relationships" shows a clear intent to have the law against discrimination cover all discrimination because of race, creed, color or national origin, and not just the three areas where the board against discrimination has been given law enforcement jurisdiction.
 
             [[Orig. Op. Page 7]]
            We therefore conclude that when RCW 49.60.110 defines the board's powers to formulate policies in terms of the purposes of the law against discrimination it means all the purposes of the chapter.  Policies and recommendations of the board against discrimination may therefore cover discrimination because of race, creed, color or national origin in areas such as clubs, as well as in areas where the board has law enforcement jurisdiction.
 
            This conclusion, we might add, is consistent with advice this office has given to the board against discrimination in the past.  See, letter to Alfred E. Cowles, Executive Secretary, Washington State Board Against Discrimination, dated March 29, 1966, a copy of which is enclosed.  Notably, the analysis in that letter is based on a 1965 memorandum on the board's power to look into claims of ethnic discrimination by police officers, another area where the board does not ordinarily have law enforcement jurisdiction.
 
            Thus, in direct response to your first question, it is the opinion of this office that the Washington state board against discrimination has the legal authority under RCW 49.60.110, supra, to adopt an advisory policy such as that presently being considered with regard to clubs that exclude persons because of race, creed, color, or national origin, and also to make such recommendations as are being proposed to public officers and agencies in aid of the policy.
 
            Question (2):
 
            Your second question is whether the board has power to hold a hearing prior to adopting such a policy.
 
            The law against discrimination says in RCW 49.60.140, that:
 
            "The board has power to hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the board.  . . ."
 
            This broad language seems appropriate to grant the board power to hold hearings in connection with the exercise of its power to adopt policies and make recommendations.   [[Orig. Op. Page 8]]
RCW 49.60.140 must have been intended to give the board power to hold hearings for purposes other than adjudicating complaints of unfair practices in the areas of employment, real property transactions and places of public accommodation because the hearing procedure for such cases is set out elsewhere in the chapter.  See, RCW 49.60.250.
 
            While the board's subpoena power is not involved in the present situation, it is noteworthy that under RCW 49.60.140 the board is empowered to subpoena books and papers "relating to any matter under investigation or in question before the board."  (Emphasis supplied.)
 
            If the board were proposing to adopt a rule (a general statement with mandatory effect, see, RCW 34.04.010) it would be required by the administrative procedures act to give notice and afford interested persons an opportunity to be heard.  See, RCW 34.04.025.  It seems logical to find that the law against discrimination authorizes the board to follow a similar procedure to aid its consideration of a policy and recommendations of widespread public interest, although it is not mandatory in effect.  We therefore conclude that the board against discrimination has authority, under RCW 49.60.140, to hold a hearing on whether to adopt a proposed policy and recommendations such as those presently under consideration.
 
            Question (3):
 
            Your third question is whether it was lawful for the board to circulate a draft of the proposed policy and recommendations in advance of the hearing.
 
            In the upper left-hand corner of the first page of the paper which was distributed appears the following: "DRAFT, 17 September 1970, FOR DISCUSSION PURPOSES."
 
            The board against discrimination has informed us that the draft which was circulated was a product of its staff and the board itself (the five‑member governing body) has taken no position on it to date, and will not do so before its next regular meeting on November 19, 1970.
 
            Of course, the circulation of a draft of proposed administrative action is a common practice of administrative agencies.  We have found no court cases on the propriety of doing so in the absence of a statutory directive.  The practice is praised in K. C. Davis' administrative law treatise, volume 1, § 6.02.


 
             [[Orig. Op. Page 9]]
            For rule making, the administrative procedures act says that a notice of rule making must contain a statement of either the terms or substance of the proposed rule or a description of the subjects and issues involved.  RCW 34.04.025 (1) (a).  The code reviser's official form of notice of intention to adopt rules permits attaching the text of the proposed rule to the notice.  Form CR-1, footnote 2, appended to Chapter 1-12, WAC.  See, WAC 1-12-030.
 
            In our opinion, circulating a copy of proposed action is appropriate when it facilitates giving notice of the action.  The practice appears to be included in the general understanding of what is notice of intended action.  We therefore conclude that the Washington state board against discrimination did not err in circulating a draft of its proposed policy and recommendations along with its invitation to a public hearing on whether to adopt them.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Except for the recommendations to "all persons of good will" and the last paragraph of the policy portion of the draft, which comments on the relationship of every citizen to exclusionary clubs, the policy and recommendations are directed entirely to public officers and agencies.  The statements to the public in general are probably best considered to be incidental to the main purpose of the paper, but in any event the board's authority to issue publications and promote better race relations, discussed below in this opinion, seem to be an adequate basis for recommendations to the public at large, as well as public officials.
 
2/Consistent with the proper scope and content of a legal opinion regarding the authority of a state agency such as the board, nothing contained herein should be regarded as constituting a comment or opinion as to the wisdom of the particular policy and recommendations which the board is now considering.  Whether the adoption of this policy and recommendations will have a beneficial or detrimental effect upon the subject matter of membership in "exclusionary clubs" is a question for the board, in its judgment, to decide.
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