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AGO 1990 No. 5 - June 12, 1990
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CIVIL SERVICE--CONTRACTS--DEPARTMENT OF SOCIAL AND HEALTH SERVICES--EMPLOYERS AND EMPLOYEES

  1. RCW 71A.12.110 empowers the Secretary of the Department of Social and Health Services to enter into agreements to pay the contracting party to perform services that the Secretary is authorized to provide under Title 71A RCW.
  2. The Secretary's discretion to contract out, granted by RCW 71A.12.110, may be limited by negotiated collective bargaining agreements entered into pursuant to RCW 41.06.150(13).

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                                                               June 12, 1990

Honorable David R. Cooper
State Representative, 18th District
428 House Office Building
Olympia, WA  98504                                                                                                                Cite as:
                                                                                                                                 AGO 1990 No. 5 

Dear Representative Cooper:

By letter previously acknowledged you have requested our opinion on the following two questions which we paraphrase as follows:

1.                  Does the Department of Social and Health Services possess authority to contract with an independent contractor to provide direct care community residential services free of the limitations imposed by RCW 41.06.380?

2.                  If the level of community residential services provided by an independent contractor is lower than similar services provided by a state-operated program, could the State be held liable for such deficiencies?

We answer your first question in the affirmative, and your second question in the manner set forth below.

                                                                     ANALYSIS

We understand that the Department of Social and Health Services (DSHS) plans to provide community services for persons with developmental disabilities by use of a combination of current classified employees from state residential habilitation programs, newly hired classified employees and contracted services from providers.  Such services were not provided prior to April 23, 1979.

(1)  The first question requires an analysis of RCW 41.06.380 (1979 1st Ex. Sess., ch. 46, § 2, p. 1141) and the effect upon it of RCW 71A.12.110 (Laws of 1988, ch. 176, § 211, p. 772).

RCW 41.06.380 reads:

Nothing contained in this chapter shall prohibit any department, as defined in RCW 41.06.020, from purchasing services by contract with individuals or business entities if such services were regularly purchased by valid contract by such department prior to April 23, 1979:  Provided, That no such contract may be executed or renewed if it would have the effect of terminating classified employees or classified employee positions existing at the time of the execution or renewal of the contract.

This 1979 statute was enacted in response to Washington Federation of State Employees v. Spokane Community College, 90 Wn.2d 698, 585 P.2d 474 (1978), which held:

[A]s a matter of law, the College has no authority to enter into a contract for new services of a type which have regularly and historically been provided, and could continue to be provided, by civil service staff employees, and that the contract entered into here is void.

90 Wn.2d at 700.  In response to the Community College decision, the Legislature authorized state agencies to contract with independent contractors for services if: (1) such services were regularly purchased pursuant to a valid contract prior to April 23, 1979, and (2)the contract does not have the effect of terminating classified employees or classified employee positions existing at the time of the execution or renewal of the contract.  RCW 41.06.380.

If this were the only legislation in the books to consider, the answer would be obvious because DSHS authority to provide direct care community residential services was not established prior to the specified date (April 23, 1979).  However, RCW 71A.12.110, a 1988 statute, has a direct bearing on the question and must be considered:

(1)  The secretary may enter into agreements with any person, corporation, or governmental entity to pay the contracting party to perform services that the secretary is authorized to provide under this title, except for operation of residential habilitation centers under chapter 71A.20 RCW.

(2)  The secretary by contract or by rule may impose standards for services contracted for by the secretary.

Laws of 1988, ch. 176, § 211, p. 772.

RCW 71A.12.110 modifies RCW 41.06.380 insofar as it applies to the contracting out authority of the secretary of DSHS.  It expressly grants authority to the secretary to contract with independent contractors "to perform services that the secretary is authorized to provide under [Title 71A RCW]," (subject to an exception not relevant to your question).  Thus the secretary is given discretion to decide whether to provide the described services directly through state-operated programs or by contracting out.

The obvious effect of RCW 71A.12.110 is to remove the services specified by it from the limitations otherwise imposed by the 1979 statute, RCW 41.06.380.[1]

Our Supreme Court has addressed the problem of harmonizing two statutes passed at different points in time which deal with the same subject and which are in apparent conflict:

It is the law in this jurisdiction, as elsewhere, that where concurrent general and special acts are in pari materia and cannot be harmonized, the latter will prevail, unless it appears that the legislature intended to make the general act controlling. . . .

It is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act and thus conflict with it, the special act will be considered as an exception to, or qualification of, the general statute, whether it was passed before or after such general enactment. . . .

Wark v. Washington National Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976) (citation omitted).

A recent Supreme Court opinion on this subject reaffirms this rule.  SeeEstate of Little, 106 Wn.2d 269, 284, 721 P.2d 950 (1986).

In light of these opinions, we conclude that the special statute (RCW 71A.12.110) constitutes an exception to the earlier enacted general statute (RCW 41.06.380) and thus provides requisite authority for the secretary of DSHS to contract out for the provision of direct care community residential services.

Having reached the conclusion that the Secretary of DSHS possesses discretion to contract out for the provision of direct care community residential services does not, however, resolve another possible issue which might arise from collective bargaining negotiations.  Based on RCW 41.06.150(13), a negotiated collective bargaining agreement may prohibit or require negotiation prior to contracting out bargaining unit work.  DSHS collective bargaining agreements should be reviewed to determine if there is a limitation upon the secretary's discretion to contract out in such instances.

(2)  Your second question is really a hypothetical question which asks whether the State might be held liable if the secretary of DSHS allows independent contractors to provide services to clients which are "lower" than those provided by a state-run program of direct care community residential services.

Presumably the secretary will establish standards for services provided by independent contractors in accordance with RCW 71A.12.110(2) and will monitor their performance to ensure compliance.  Assuming, as we must, that the secretary will act prudently in carrying out these responsibilities, a potential claimant would have little likelihood of prevailing in a court case.  Absent factual amplification of the basis for a claim which might be filed on behalf of disgruntled clients against the state, it is not possible to provide more specific advice on this subject.

We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

J. LAWRENCE CONIFF
Senior Counsel
Assistant Attorney General
JLC:lcs


[1]RCW 28B.16.240 applies to institutions of higher education and specifies contracting out limitations identical to those set out in RCW 41.06.380.  It was also enacted into law in 1979.

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