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AGO 1981 No. 18 - November 18, 1981
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- STATE BOARD FOR COMMUNITY COLLEGE EDUCATION ‑- COMMUNITY COLLEGES ‑- RESPECTIVE POWERS OF COLLEGE BOARD AND LOCAL BOARDS OF TRUSTEES 

(1) The State Board for Community College Education has the authority, under RCW 28B.50.090, to (a) specify the number of days in an academic year or quarter in which instruction must be offered by each of the various community colleges; (b) define the number of hours of instruction that must be provided as the basis for counting a unit of academic credit for state funding purposes; (c) prescribe the maximum number of academic credit units per each particular class that are allowed to be counted for a particular degree or certificate by students enrolled in the various courses offered by the community colleges; and (d) designate a class or course involving students who are repeating a course previously completed and reduce a college's state funded enrollment count by such repeat enrollments. 

(2) The State Board for Community College Education does not have the authority, under RCW 28B.50.090, to (a) change the academic year for all community colleges from a quarter plan to a semester or a trimester plan; or (b) establish a minimum number of days of compensable service to be rendered by faculty and administrators employed by the community colleges.

 (3) To the extent that the State Board for Community College Education determines that accomplishment of the goals described in RCW 28B.50.090(3) requires either or both of those courses of action, the College Board may (a) direct a particular community college to alter its mix of courses in a manner that would make its overall curriculum more comprehensive; and (b) direct a particular community college to terminate a given course or program either because it is deemed to be unproductive (i.e., low enrollment or few completions) or because such termination would enhance the comprehensiveness of the total curriculum. 

                                                              - - - - - - - - - - - - - 

                                                               November 18, 1981 

Honorable John N. Terrey
Executive Director
State Board for Community
   College Education
319 Seventh Avenue, FF-11
Olympia, Washington 98504

Cite as:  AGO 1981 No. 18                                                                                                                

[[Orig. Op. Page 2]]

Dear Dr. Terrey:

            By letter previously acknowledged, you requested the opinion of this office on several questions regarding the authority of the State Board for Community College Education.  We paraphrase your questions as follows:

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to:

             (1) Specify the number of days in an academic year or quarter during which instruction must be offered by each of the various community colleges;

             (2) Define the number of hours of instruction that must be provided as the basis for counting a unit of academic credit for state funding purposes;

             (3) Prescribe the maximum number of academic credit units per each particular class that are allowed to be counted for a particular degree or certificate by students enrolled in the various courses offered by the community colleges;

             (4) Change the academic year for all community colleges from a quarter plan to a semester or a trimester plan;

             (5) Designate a class or course involving students who are repeating a course previously completed and reduce a college's state‑funded enrollment count by such repeat enrollments;

             (6) Establish a minimum number of days of compensable service to be rendered by faculty and administrators employed by the community colleges;

             (7) Direct a particular community college to alter its mix of courses in a manner that would make its overall curriculum more comprehensive; and

              [[Orig. Op. Page 3]]

(8) Direct a particular community college to terminate a given course or program either because it is deemed to be unproductive (i.e., low enrollment or few completions) or because such termination would enhance the comprehensiveness of the total curriculum?

             We answer questions (1), (2), (3) and (5) in the affirmative, questions (4) and (6) in the negative, and questions (7) and (8) in the affirmative as qualified in our analysis.

                                                                      ANALYSIS

             Introduction:

             Chapter 28B.50 RCW codifies the Community College Act of 1967 (chapter 8, Laws of 1967, 1st Ex. Sess.) and subsequent amendments thereto.  Under that act the various community colleges, which were previously operated by local school districts, became state agencies directly administered by separate boards of trustees for each of the several community college districts enumerated in RCW 28B.50.040.  See, RCW 28B.50.100 through 28B.50.140.  In addition, however, the legislature established the State Board for Community College Education (hereinafter referred to as the College Board) by RCW 28B.58.050 and then, in RCW 28B.50.090, vested it with ". . . general supervision and control over the state system of community colleges."

             In order to set the stage for our disposition of your request, we first note the pertinent language of that last-cited section of the act (as most recently amended by § 2, chapter 246, Laws of 1981) which reads as follows:

             The college board shall have general supervision and control over the state system of community colleges.  In addition to the other powers and duties imposed upon the college board by this chapter, the college board shall be charged with the following powers, duties and responsibilities:

              [[Orig. Op. Page 4]]

            ". . .

             "(3) Ensure, through the full use of its authority:

             "(a) that each community college district shall offer thoroughly comprehensive educational, training and service programs to meet the needs of both the communities and students served by combining, with equal emphasis, high standards of excellence in academic transfer courses; realistic and practical courses in occupational education, both graded and ungraded; and community services of an educational, cultural, and recreational nature; and adult education: . . .

            ". . .

             "(7) Establish minimum standards to govern the operation of the community colleges with respect to:

             "(a) qualifications and credentials of instructional and key administrative personnel, except as otherwise provided in the state plan for vocational education,

             "(b) internal budgeting, accounting, auditing, and financial procedures as necessary to supplement the general requirements prescribed pursuant to chapter 43.88 RCW,

             "(c) the content of the curriculums and other educational and training programs, and the requirement for degrees and certificates awarded by the colleges,

             "(d) standard admission policies,

             "(e) eligibility of courses to receive state fund support;

            ". . .

              [[Orig. Op. Page 5]]

            "(10) Exercise any other powers, duties and responsibilities necessary to carry out the purposes of this chapter;

             ". . ."

             In turn, the powers of the local community college boards of trustees which relate to your inquiry are set forth in RCW 28B.50.140 which reads, in relevant part, as follows:

             "Each community college board of trustees:

             "(1) Shall operate all existing community colleges and vocational-technical institutes in its district;

             "(2) Shall create comprehensive programs of community college education and training and maintain an open-door policy in accordance with the provisions of RCW 28B.50.090(3);

             "(3) Shall employ for a period to be fixed by the board a college president for each community college, a director for each vocational-technical institute or school operated by a community college, a district president, if deemed necessary by the board, in the event there is more than one college and/or separated institute or school located in the district, members of the faculty and such other administrative officers and other employees as may be necessary or appropriate and fix their salaries and duties;

             ". . .

             "(11) Shall prescribe, with the assistance of the faculty, the course of study in the various departments of the community college or colleges under its control, and publish such catalogues and bulletins as may become necessary;

             ". . ."

              [[Orig. Op. Page 6]]

            Your inquiry thus involves some inherent questions regarding the relationship that the legislature, by its enactment of the 1967 Community College Act, intended to create between the College Board and the various local boards.

             At the outset, we have been told that the legislature, in passing that law, was guided in large part by a certain study and report, referred to as the "Arthur D. Little Report," which previously had been submitted to the Superintendent of Public Instruction by a private consulting firm.  That is probably correct for, prior to the enactment of chapter 8, Laws of 1967, 1st Ex. Sess.,supra, the legislature had enacted chapter 98, Laws of 1965, 1st Ex. Sess., calling for such a report.  Moreover, in § 1 of that act, it expressly defined the purposes of a community college, recognized the need for such institutions, and contemplated the creation of community college districts to manage the affairs of each community college.  And then, in addition to directing the Superintendent of Public Instruction to submit to the next legislative session a legislative proposal to accomplish those purposes, § 2 further provided, in relevant part, that:

             ". . .

             "Such proposal shall be accompanied by a comprehensive report and plan for the implementation thereof, which shall contain recommendations including, but not limited to, the following:

             ". . .

             "(5) Academic standards, course content, curriculum, and extracurricular activities.

             ". . ."1/

              [[Orig. Op. Page 7]]

            Subsequently, on June 30, 1966, such a report was presented to the state superintendent by the consulting firm of Arthur D. Little, Inc., and entitled "A Policy Plan for Community College Education in the State of Washington."  While we have found no further express legislative reference to that report in the House or Senate Journals, or in any other legislative records, we nevertheless believe it appropriate to proceed on the assumption that it was, indeed, used as the basis for at least some of the ensuing provisions of the 1967 Community College Act.

             Such studies and reports, when known to have been considered by the legislature in the enactment of a statute, are certainly entitled to at least some consideration in the later process of statutory interpretation.2/   We have, accordingly, studied this report as a possible source of legislative guidance on your present questions.  Having done so, we are satisfied that our answers to those questions are wholly consistent with its recommendations.  However, to the extent that there is any ambiguity, all rules of statutory construction must be observed.  State v. Clausen, 160 Wash. 618, 295 Pac. 751 (1931).  And most importantly, the primary source of legislative intent is always the language of the statute itself; and thus, where the language of the instant act is clear, there is no room for construction.  In Re Estate of Lyons, 83 Wn.2d 105, 515 P.2d 1293 (1973).

             Likewise, preambles and other statements as to the intent of a law may be helpful and legitimate aids in determining the meaning of a particular provision.  In Re Bale, 63 Wn.2d 83, 385 P.2d 545 (1963).  For, where the legislature prefaces an enactment with a statement of purpose, such declaration‑-although without operative force in itself‑-nevertheless serves as an important guide in understanding the intended effect of the operative section.  Hartman v. Washington State Game Commission, 85 Wn.2d 176, 532 P.2d 614 (1975).

             Basically, the Little Report recommended that there continue to be a certain measure of local autonomy, with a further specific recommendation that each local community college board should be empowered to (1) operate all existing community colleges and vocational-technical institutes; (2) create comprehensive systems of community college education; and (3) establish  [[Orig. Op. Page 8]] new colleges, under certain conditions, and with approval by a state board.3/ However, while this report likewise recommended that the system should place the "primary initiative" for planning, operations and administration in the hands of local people,4/ nothing in it suggests that the local boards were to be given exclusive control, or have the final word on the curriculum and similar subjects.  Rather, the report indicated that a state board, while not exercising "direct operating responsibility" in the matter of such things as specifying courses,5/ should nevertheless exercise strong supervisory control.  One method specified in the report on that subject will be found at page 81, where it was suggested that this state board should have the power and duty to:

             ". . .

             ". . .  Establish andadminister minimum standards to govern the operation of the community college districts with respect to:

             "‑-qualifications and credentials of instructional and key administrative personnel

             "‑-standards for educational facilities and facilities planning

             "‑-budgeting, accounting, auditing and financial procedures

             "‑-the content of educational programs and the requirements for degrees and diplomas awarded by the colleges.

             ". . ."  (Emphasis supplied)

              [[Orig. Op. Page 9]]

            From a review of RCW 28B.50.090, supra, it seems clear that the legislature did essentially that but then, in addition, went one or two steps farther.  Thus, the statute begins with the general prescription that:

             "The college board shall have general supervision and control over the state system of community colleges . . ."  (Emphasis supplied)

             And subsection (10) then empowers the College Board to:

             "(10) Exercise any other powers, duties and responsibilities necessary to carry out the purposes of this chapter;"

             It is thus evident that the legislature intended the College Board to have very strong powers with regard to the matters enumerated in the statute, together with regulatory authority to implement and enforce its standards.

             Questions Presented:

             We will now discuss separately each of your questions regarding the authority of the State Board for Community College Education.

             Question (1):

            First you have asked:

             May the College Board define the number of days in an academic year or quarter during which instruction must be offered by each of the various community colleges?

             We answer in the affirmative.

             Our answer to this question begins with the legislature's own directive, in the opening paragraph of RCW 28B.50.090, supra, which (repeated for ease of reference) provides that:

             "The college board shall have general supervision and control over the state system of community colleges . . ."

              [[Orig. Op. Page 10]]

            Following that statement is a list of powers, duties and responsibilities which the legislature then said were to be ". . . in addition" to other powers and duties imposed upon the College Board.  Included in that list, in subsection (7)(c), is a directive to the Board to:

            "(7) Establish minimum standards to govern the operation of the community colleges with respect to:

             ". . .

             "(c) the content of the curriculums and other educational and training programs. . . ."

             Also, in subsection (10) is the further direction to the College Board to:

             "Exercise any other powers, duties and responsibilities necessary to carry out the purposes of this chapter;"

             The most commonly accepted legal definition of "standard" is ". . . a type or model or a combination of elements accepted as correct or perfect."  Black's Law Dictionary, 4th Ed. Rev.; also, Ashwell v. Miller, 54 Ind. App. 381, 103 N.E. 37 (1913).  That appears to be what the legislature had in mind, in directing the College Board to establish minimum governing "standards" with respect to the content of the curriculums and other educational and training programs in the community colleges.  In other words, while it is not the function of the College Board to establish in detail the curriculum for each community college, it is, nevertheless, clearly the Board's duty to prescribe and administer a set of minimum standards;i.e., a type, model or combination of elements to which community college programs must conform.

             It is thus reasonable, in exercise of the College Board's broad supervisory and regulatory powers under subsections (7) and (10), supra, that the Board‑-having set the minimum standards for various educational programs‑-should include within those standards the minimum number of days in which various courses within the programs must be taught.  That, it appears to us, would be as much a part of the "standard" as the substantive elements of the program itself.

              [[Orig. Op. Page 11]]

            The grant of an express power to an agency ordinarily carries with it a sufficient quantum of implied power to enable an agency to do what is actually necessary to achieve the express purpose of the grant.  Anderson, Leech & Morse v. Liquor Board, 89 Wn.2d 688, 575 P.2d 221 (1978); 63 Am. Jur. 2d,Public Officers and Employees, § 265, p. 784.  In examining the powers of a particular agency, all statutes on the subject must be read together in order to determine legislative intent.  Greenwood v. State Board for Community College Education, 82 Wn.2d 667, 513 P.2d 57 (1973).  A reading of chapter 28B.50 RCW clearly reveals that

             ". . . while the boards possess district-wide duties, their powers of administration are primarily ministerial and, for the most part, specifically subject to the supervisory control of the state board, its rules, regulations and policies. . . ."  Centralia College Education Association, et al. v. Board of Trustees of Community College District No. 12, et al., 82 Wn.2d 128, 508 P.2d 1357 (1973) at p. 133;State v. King County, 74 Wn.2d 673, 446 P.2d 193 (1968) at p. 677.

             The reasoning of those cases, coupled with the language of RCW 28B.50.090 itself, thus gives to the College Board very broad regulatory power as to what should be the minimum content of educational programs in community colleges, and we find no language in the law which would conflict with the exercise of that power in the manner described in your question.  Specifically, there is nothing in the Community College Act which, instead, expressly authorizes individual community college boards to determine the minimum number of instructional days that will be offered in connection with particular courses.

             Question (2):

             Next you have asked:

             Does the College Board have the authority, under RCW 28B.50.090, to define the number of hours of instruction that must be provided as the basis for counting a unit of academic credit for state funding purposes?

              [[Orig. Op. Page 12]]

            Again, we answer in the affirmative.

             In this instance, however, we need not rely merely upon the general powers of the College Board under the law.  For, by § 2, chapter 246, Laws of 1981, the legislature specifically amended RCW 28B.50.090 to include‑-as a subject of the Board's prescription of minimum standards‑-

             ". . .

             "(e) eligibility of courses to receive state fund support;

             ". . ."

             Thus, clearly, in determining the eligibility of courses to receive state fund support, it would be appropriate for the College Board to define the number of hours of instruction to be provided as the basis for counting a unit of academic credit for state funding purposes.

             Question (3):

             Your third question asks:

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to prescribe the maximum number of academic credit units per each particular class that are allowed to be counted for a particular degree or certificate by students enrolled in the various courses offered by the community colleges?

             Our answer to this question is also in the affirmative.  RCW 28B.50.090(7)(c),supra, empowers the College Board to establish minimum standards with respect to:

             "(c) the content of the curriculums and other educational and training programs,and the requirement for degrees and certificates awarded by the colleges,"  (Emphasis supplied)

              [[Orig. Op. Page 13]]

            In our opinion, this subsection clearly authorizes the College Board to prescribe the minimum credits which a student must have in order to obtain a degree or certificate.  It is also our conclusion that the College Board must have implied authority to determine the maximum credit hours that can be given for a particular course; otherwise, an individual community college could circumvent the Board's minimum standards by giving more credit units to a course than the course reasonably merits.

             Consequently, for reasons paralleling those that we give in answering question (1), it is our opinion that such action by the College Board would also constitute an appropriate exercise of authority under RCW 28B.50.090(7)(c).

             Question (4):

             Next you have inquired:

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to change the academic year for all community colleges from a quarter plan to a semester or trimester plan?

             We answer this question in the negative.

            Despite the broad powers given to both the College Board and to individual community college district boards in chapter 28B.50 RCW, it is nevertheless still the rule that, like other state agencies, they have only such powers as have been granted expressly by the legislature, or those which are implied from the powers expressly granted.  Washington Water Power Co. v. Washington State Human Rights Commission, 91 Wn.2d 62, 586 P.2d 1149 (1978).

             The Community College Act does not expressly authorize either the College Board or the individual community college district boards to divide a calendar year into anything other than academic quarters.  Consequently, we have reviewed the act to determine whether or not that power may have been granted by necessary implication.  Instead, however, we have found that that particular power appears to have been impliedly  [[Orig. Op. Page 14]] denied, for the act discloses various instances in which the legislature, itself, has contemplated that the colleges will operate on a quarter basis.  See,e.g., RCW 28B.50.857; also, RCW 28B.50.551 and 28B.50.852.  Therefore, it necessarily follows that any change in the system would require amendatory action by the state legislature.

             Question (5):

             Your fifth question is as follows:

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to designate a class or course involving students who are repeating a course previously completed and reduce a college's state funded enrollment count by such repeat enrollments?

             We answer this question in the affirmative‑-on the same basis as we similarly answered question (2) above.  Once again, as amended by chapter 246, Laws of 1981, RCW 28B.50.090(7)(e) authorizes the College Board to determine "eligibility of courses to receive state fund support."  It therefore readily follows that the College Board, in the exercise of that authority, may (in the words of your question)

             ". . . designate a class or course involving students who are repeating a course previously completed and reduce a college's state‑funded enrollment count by such repeat enrollments . . ."

             Question (6):

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to establish a given number of days of compensable service to be rendered by faculty and administrators employed by the community colleges?

             We answer this question in the negative.

              [[Orig. Op. Page 15]]

            This particular question appears to us to involve a concern which the legislature meant to address to the discretion of the various local boards; specifically, by RCW 28B.50.140, supra, which provides that each community college board of trustees shall, among other things,

             ". . . employ for a period to be fixed by the board a college president for each community college, a director for each vocational-technical institute or school operated by a community college, a district president if more than one college and/or separated institute or school located in the district, members of the faculty and such other administrative officers and other employees as may be necessary or appropriate and fix their salaries and duties;"

             That power, like all others, is certainly subject to the "general supervision and control" of the College Board.  However, it does not fall within the various categories of "minimum standards" which the Board is supposed to prescribe;e.g., for the content of curriculum and educational programs.  Nor does it appear to fall within the category of regulations which would be necessary in order for the Board to exercise any of those other enumerated powers.

             Questions (7) and (8):

             Finally by your last two questions you have asked:

             Does the State Board for Community College Education have the authority, under RCW 28B.50.090, to

             ". . .

             "(7) Direct a particular community college to alter its mix of courses in a manner that would make its overall curriculum more comprehensive; and

              [[Orig. Op. Page 16]]

            "(8) Direct a particular community college to terminate a given course or program either because it is deemed to be unproductive (i.e., low enrollment or few completions) or because such termination would enhance the comprehensiveness of the total curriculum?"

             The basis for the College Board's authority to exercise powers of this nature is found in RCW 28B.50.090(3), supra, which provides that the Board shall:

             ". . .

             "(3) Ensure, through the full use of its authority:

             "(a) that each community college district shall offer thoroughly comprehensive educational, training and service programs to meet the needs of both the communities and students served by combining, with equal emphasis, high standards of excellence in academic transfer courses; realistic and practical courses in occupational education, both graded and ungraded; and community services of an educational, cultural, and recreational nature; and adult education:  PROVIDED, That notwithstanding any other provisions of this chapter, a community college shall not be required to offer a program of vocational-technical training, when such a program as approved by the coordinating council for occupational education is already operating in the district;

             ". . ."

             At the outset, it should be noted that the legislature has conferred upon individual community college districts, rather than the College Board, primary responsibility to ". . . create comprehensive programs of community college education and training . . ."  See, RCW 28B.50.140(2),supra.  It has also authorized those local boards to ". . . prescribe, with the assistance of the faculty, the course of study in the various departments of the community college or colleges under its  [[Orig. Op. Page 17]] control . . ."  RCW 28B.50.140(11).  However, even though not expressly stated in that section, all operations of community colleges are, by reason of RCW 28B.50.040, supra, under the "general supervision and control" of the College Board.  Furthermore, in both RCW 28B.50.140 and RCW 28B.50.090, the legislature has emphasized the duty of the College Board to ensure, through the full use of its authority, that comprehensive programs will be achieved by certain combinations.

             Consequently, to the extent that the College Board determines that the accomplishment of the goals described in RCW 28B.50.090(3) require either or both of the actions described in questions (7) and (8), we believe that the Board has the authority to require those actions.  Subject to that qualification, we therefore answer both of those questions in the affirmative.

             Finally, in answering your questions, we have not overlooked the provisions of chapter 28B.52 RCW, the Professional Negotiations Act, which affords local district trustees the right to negotiate with bargaining representatives on certain matters‑-including "curriculum."  To the extent we have answered your questions in the affirmative, however, the legislature has granted to the College Board the regulatory authority to establish the parameters which we have heretofore discussed in our analysis.  In turn, once the College Board has acted, its determinations are binding on the individual community colleges and those who deal with them, in the same manner as if the particular minimum standards and curriculum provisions involved had been established by the legislature itself.  In essence, such matters thereby become a "given" in subsequent negotiations, and the negotiations must proceed within the lines drawn through that process.

            This completes our consideration of your questions.  We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

ROBERT F. HAUTH
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   *** 

1/Nothing in that section, however, specifically addressed the question of what relationship ought to exist between community college districts and a state board.

 2/Accord, Weaver v. Evans, 80 Wn.2d 461, 495 P.2d 639 (1972).

 3/Arthur D. Little Report, page 4.

 4/Ibid., page 54.

 5/Ibid., page 85. 

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