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AGO 1991 No. 16 - April 04, 1991
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COMMUNITY COLLEGES ‑- BOARD FOR COMMUNITY COLLEGE EDUCATION ‑- CONTRACTS ‑- EDUCATION

1.  The Legislature has established limits upon community college enrollment.  As a creature of statute a community college must have specific statutory authority to enroll students in excess of those authorized by the Legislature.

2. RCW 28B.50.140(16) authorizes community colleges to offer educational services on a contractual basis to private and governmental entities.  The students receiving instruction pursuant to such a contract do not fall within the enrollment lid.  However, RCW 28B.50.140(16) does not authorize community colleges to avoid the enrollment lid by enrolling students on a contract basis when those students are treated the same as any other student and pay the same tuition and fees.

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                                                                    April 4, 1991

The Honorable Gerald L. Saling
State Senator, District 5
101 John A. Cherberg Building
Olympia, Washington 98504-0486
                                                                                                                 Cite as:  AGO 1991 No. 16

Dear Senator Saling:

            By letter previously acknowledged you have requested our opinion on the following paraphrased question:

            Do community colleges possess authority to exceed legislatively imposed enrollment limits by offering courses described as "self-supporting" at regular student tuition and fee rates and not reporting participants as a part of their allocated student FTE enrollment?

             [[Orig. Op. Page 2]]

            We answer your question essentially in the negative as explained in our analysis.1/

                                                                     ANALYSIS

            Your question concerns legislatively imposed enrollment limits at community colleges.  The Legislature, as has been its custom in recent years, has established limits upon community college FTE student allocations and, accordingly, has appropriated funds to the community colleges based upon student enrollment allocation.

            The general fund appropriation for the 1990-91 school year is found in Laws of 1990, 1st Ex. Sess., ch. 16, § 602, and contains the following pertinent language:

                        The appropriation in this section is subject to the following conditions and limitations:

                       . . .

                        (2) The enrollment increases funded by this appropriation shall be distributed among all the community college districts based on the weighted percentage enrollment plan developed by the state board for community college education, and contained in the legislative budget notes.

                       . . . .

            The legislative budget notes referred to disclose that the authorized FTE enrollment for community colleges for 1990 is 84,500 and for 1991 is 85,500.  The State Board for Community College Education implemented section 602 by allocation of available FTE's to each community college in accordance with a weighted percentage enrollment plan.

             [[Orig. Op. Page 3]]

            While the Legislature funds community colleges by general fund appropriation, tuition and fee charges for community college students are specified by statute.  The general tuition fee, also referred to as "building fees,"2/

            is required to be deposited in the state treasury for capital construction purposes.  RCW 28B.50.360.  Student charges also include "operating fees" which must be deposited to the state general fund and are not designated as to use.  RCW 28B.15.031.

            Your question is premised upon the assumption that a community college has reached its currently authorized enrollment level and is exceeding its allocated student FTE's by describing excess student enrollments as participants in a "self-supporting program or course" and not reporting them as FTE's to the Board.

            According to the letter accompanying your request, you are particularly concerned about a practice commonly known as "contemporary contracting."  It is our understanding that this is a contract between a community college and an organization such as an education service district.  The contract provides that people living within the area of the educational service district may enroll as regular students as the community college.  They are entitled to take any course offered by the college and they pay the standard tuition fee.  In addition, virtually all of the contract students contacts are with the community college rather than the contracting organization (e.g., an educational service district).  The student enrolls and registers directly with the college.  The organization has no involvement and perhaps even no knowledge of the courses that the student is taking.  The student pays tuition and fees directly to the college.  The organization pays nothing.

            The community college does not report the students enrolled pursuant to such "contemporary contracts" for purposes of the enrollment lid.  However, as for as the student is concerned, there is no difference between a student enrolled in the college who is reported to the Board and a student enrolled in the college who is reported to the Board and a student enrolled pursuant to said contemporary contract who is not reported.  Your question is whether a community college may circumvent the enrollment lid through the use of "contemporary contracts."  The answer to this question is no.

             [[Orig. Op. Page 4]]

            Inasmuch as a community college is a creature of statute, its powers are limited to those powers expressly granted or necessarily implied.  See Human Rights Comm'n v. Cheney Sch. Dist., 97 Wn2d 118, 125, 641 P.2d 163 (1982).  Thus, a community college must have specific statutory authority to avoid the enrollment lid otherwise imposed by the Legislature.  We have found one statute that confers this authority on community college boards of trustees.  RCW 28B.50.140(16) provides:

            Notwithstanding any other provision of law, may offer educational services on a contractual basis other than the tuition and fee basis set forth in chapter 28B.15 RCW for a special fee to private or governmental entities, consistent with rules and regulations adopted by the state board for community colleges education:  Provided, That the whole of such special fee shall go to the college district and be not less than the full instructional costs of such services including any salary increases authorized by the legislature for community college employees during the term of the agreement:  Provided further, Thatenrollments generated hereunder shall not be counted toward the official enrollment level of the college district for state funding purposes[.]

(Emphasis added.)

            RCW 28B.50.140(16) authorizes a community college to offer educational services on a contractual basis with private or governmental entities for a special fee that covers the full costs of instruction.  Students receiving instruction pursuant to RCW 28B.50.140(16) are not counted for purposes of the enrollment lid.

            While RCW 28B.50.140(16) authorizes community college to offer certain "self-supporting courses," the authority is limited.  In our judgment, RCW 28B.50.140(16) does not empower a community college to avoid the enrollment lid by enrolling an individual student, on a contract basis, to take a course offered by the community college, and that student pays the regular student tuition and fees.  The lid applies even if the student attends the community college pursuant to a so-called "contemporary contract."

            There are three reasons why RCW 28B.50.140(16) does not apply to regular students attending the community college and paying the regular tuition fee.

            First, the language of RCW 28B.50.140(16) does not apply to such students.  RCW 28B.50.140(16) permits a community college to offer "educational services on a contractual basis . . . for a  [[Orig. Op. Page 5]] special fee toprivate or governmental entities, consistent with rules and regulations adopted by the state board for community college education . . . ." (Emphasis added).  RCW 28B.50.140(16) is not a general authorization for a community college to admit students without regard to the enrollment lid.  Rather, it applies only to those situations where community colleges contract with private or governmental entities to provide educational services to those entities.

            It might be argued that the term "entities" is broad enough to include an individual student.  However, we are not persuaded by this argument.  To read the term "entities" that broadly would render the phrase "private or governmental entities" meaningless since it would authorize the community college to contract with anyone.

            This argument is also inconsistent with the rules adopted by the State Board for Community College Education.  RCW 28B.50.140(16) requires that the community college's actions be consistent with these rules.  WAC 131-28-027 governs contracted educational services and in pertinent part provides as follows:

            (1) College districts that choose to offer contractual educational courses or services, as authorized by RCW 28B.50.140(16),to private or governmental entities shall establish a special fee for the service or course to be paid by the entity involved.  Such special fee shall be set forth in the contractual agreement establishing such courses or services.

            (2) Contractual educational courses or services may be offered when a district makes a determination that it is not reasonably feasible for financial or other reasons, to offer such courses or services as a part of the regular curriculum.  Upon making such determination, the district may offer such courses or services and shall limit participation therein to employees, agents, or members of the particular entity.

             (3) Contractual educational courses or services are those instructional courses which may be provided tomeet special instructional needs of military, corporate, or other governmental or private entities where enrollments will be limited to the membership of the entity and includes administrative, organizational, research, public service or program development services of the college district.

(Emphasis added).  Under WAC 131-28-027 a community college may provide educational services for the employees, agents and  [[Orig. Op. Page 6]] members of a private or governmental entity.  Clearly, an entity cannot be an individual under this rule.

            We also believe that the so-called "contemporary contracts" do not fall within RCW 28B.50.140(16).  As we understand them, these contracts do not provide for special instruction for the employees, agents and members of private or governmental entities.  Students enrolled pursuant to these contracts are treated the same as any other student enrolled at the college and they pay the same tuition and fees.

            The purpose of RCW 28B.50.140(16) appears straightforward.  A community college may provide educational services for the employees, agents or members of a private or governmental entity.  When it is acting in this capacity, the students (employees, agents or members) are not counted for purposes of the enrollment lid.

            The second reason that RCW 28B.50.140(16) does not authorize a community college to enroll regular students for the regular tuition fee is that the statute specifically excludes educational services provided on the tuition and fee basis.  RCW 28B.50.140(16) provides community colleges may offer "educational services on a contractual basisother than the tuition and fee basis set forth in chapter 28B.15 RCW for a special fee . . . ." (Emphasis added).  A community college has no authority under RCW 28B.50.140(16) to offer educational services for the tuition and fees set forth in chapter 28B.15 RCW.3/

            Thus, a community  [[Orig. Op. Page 7]] college could not enter into a "contemporary contract" to provide educational services in return for its regular tuition and fee.

            The third reason we conclude that RCW 28B.50.140(16) does not authorize the admittance of regular students outside the enrollment lid is that such an interpretation would render the enrollment lid a nullity.  The Legislature has enacted enrollment lids.  Laws of 1990, 1st Ex. Sess., ch. 16 § 602(2).  This lid is renderedmeaningless if a community college can simply execute a "contemporary contract" and admit regular students in excess of those authorized by the Board.

            It is a well established rule of statutory construction that every portion of a statute should have meaning and that the court will not, by interpretation, modify a statute.  Armstrong v. Safeco Ins. Co., 111 Wn.2d 784, 792, 765 P.2d 276 (1988).  Further, a statute is not to be interpreted in such a way that it renders meaningless its enactment.  Kirk v. Moe, 114 Wn.2d 550, 554, 789 P.2d 84 (1990).  RCW 28B.50.140(16) authorizes a limited exception to the enrollment lid.  It does not authorize community colleges to simply stop reporting FTE's when they reach the lid.

            Although RCW 28B.50.140(16) does not authorize contracts with individual students for educational services, the law does provide for such contracts in another section.  RCW 28B.50.140(17) provides:

            Notwithstanding any other provision of law, may offer educational services on a contractual basis, charging tuition and fees as set forth in chapter 28B.15 RCW, counting such enrollments for state funding purposes, and may additionally charge a special supplemental fee when necessary to cover the full instructional costs of such services: Provided, That such contracts shall be subject to review by the state board for community college education and to such rules as the state board may adopt for that purpose in order to assure that the sum of the supplemental fee and the normal state funding shall to exceed the projected total cost of offering the educational service:  Provided further, That enrollments generated by courses offered on the basis of contracts requiring payment of a share of the  [[Orig. Op. Page 8]] normal costs of the course will be discounted to the percentage provided by the college[.]

            RCW 28B.50.140(17) applies to students in a way that RCW 28B.50.140(16) does not.  RCW 28B.50l.140(17) does not limit the contracts to private or governmental entities, nor does the statute exclude educational services provided on a tuition and fee basis.  On the contrary, RCW 28B.50.140(17) provides that community colleges may charge tuition and fees as set forth in chapter 28B.15 RCW in addition to special supplemental fees.  RCW 28B.50.140(17) also differs from RCW 28B.50.140(16) in that its enrollment counts for state funding purposes.

            In summary, a community college does not possess authority to exceed its enrollment lid except under the limited circumstances described in RCW 28B.50.140(16).  Therefore, the answer to your question is no.

            We trust that this opinion will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

J. LAWRENCE CONIFF
Senior Counsel
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/If the answer to question 1 is negative, you also asked whether the approval of such self-supporting courses by a community college's board of trustees constitute grounds for their removal from office?  We cannot answer this question because it would require us to make factual assumptions regarding the good faith of duly appointed college trustees.  Inasmuch as every public officer is presumed to honestly exercise discretion in performance of the duties of the position occupied, we decline to make a contrary assumption in the absence of compelling evidence of bad faith.

2/See RCW 28B.15.025 where the term "general tuition fee" is defined as follows:

            The term "building fees" is a renaming of the "general tuition fee," and shall not be construed to affect otherwise moneys pledged to, or used for bond retirement purposes.

3/Your question refers to "self-supporting courses" when the students are paying regular student tuition and fees.  We have some question whether a course can be "self-supporting" if the students are paying the regular student tuition and fees.  The statutory basis for calculating student tuition and fees, RCW 28B.15.070, provides that house and senate committees shall develop criteria and procedures for determining the cost for community colleges upon which tuition fees will be based.  RCW 28B.15.502(1) provides that the tuition for a full-time resident community college student shall be 23 percent of this cost.  The full cost, which includes both the fixed and marginal costs, of operating the community college system is calculated upon the full authorized enrollment.  Obviously, the costs of additional students raise the question of whether it should be computed only with reference to the marginal costs as the "fixed" costs have already been charged to the base enrollment or whether those "fixed" costs need to be recomputed to amortize those costs over the entire enrollment, not simply the authorized maximum.  We believe it would be the first, not the second, for this purpose.  See WAC 131-28-027.

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