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AGO 1983 No. 13 - July 25, 1983
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- TRANSPORTATION ‑- CONTRACTS ‑- APPLICABILITY OF PREVAILING WAGE LAW TO CONTRACTS FOR SCHOOL BUS TRANSPORTATION 

The provisions of chapter 39.12 RCW, the state prevailing wage law, do not apply to bus drivers or like personnel employed by private companies providing transportation services to a school district by contract.

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

                                                                    July 25, 1983 

Honorable Frank J. Warnke
St. Sen., 31st District
29457 51st Avenue S.
Auburn, WA 98002

Cite as:  AGO 1983 No. 13                                                                                                                 

Dear Sir:

             By recent letter you requested our opinion on the question,

             ". . . of whether the provisions of RCW 39.12 apply to the contracting out of school bus transportation by a school district?"

             We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             Chapter 39.12 RCW relates to the payment of "prevailing wages" to persons employed by certain public contractors.  The basic substantive requirement of the law is contained in RCW 39.12.020 as follows:

             "The hourly wages to be paid to laborers, workmen or mechanics, upon all public works and under all public building service maintenance contracts of the state or any county, municiality [municipality] or political subdivision created by its laws, shall be not less than the prevailing rate of wage for an hour's work in the same trade or occupation in the locality within the state where such labor is performed. . .

             ". . .

              [[Orig. Op. Page 2]]

The final sentence of that section then provides that:

             "This chapter shall not apply to workmen or other persons regularly employed on monthly or per diem salary by the state, or any county, municipality, or political subdivision created by its laws."

             Clearly, by virtue of that final sentence of this statute, chapter 39.12 RCW does not apply to school bus drivers employed by a school district itself.  But what, you ask, of those bus drivers who are employed by private firms which supply transportation (or bussing) services to a school district by contract?

             We can conceive of no basis for concluding that such a contract, for school district transportation, would be a "public building service maintenance contract" within the purview of the 1967 amendment which added such contracts to the coverage of RCW 39.12.020, supra.  See, § 1, chapter 14, Laws of 1967, 1st Ex. Sess.  Therefore, we are left only with the meaning and scope of the term "public works" as also used in the same statute.

             In AGO 59-60 No. 156, copy enclosed, we specifically concluded that the prevailing wage to be paid to employees of contractors performing public works for school districtsis governed by the provisions of chapter 39.12 RCW.  In so concluding, however, we noted that the term "public works" is not expressly defined in that law.  Therefore, based upon applicable principles of statutory construction we determined that the appropriate definition of that term, for the purposes of the prevailing wage law, is the definition which is set forth in RCW 39.04.010 relating to public works, generally.  That definition, in turn, reads as follows:

             "The term public work shall include all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein, but nothing herein shall apply to the construction, alteration, repair, or improvement of any municipal street railway system.

. . ."

             We should note, at this point, that the specific question which you have now asked (i.e., the applicability of the prevailing  [[Orig. Op. Page 3]] wage law to contract school bus drivers)1/ was not involved in the foregoing 1960 opinion.  Rather, the question there presented was more general in nature and asked only whether chapter 39.12 RCW applied, at all, to persons employed under school district public works contracts.  While our response to that question was in the affirmative since it considered "public works," we believe that your present question, without a further amendment to RCW 39.12.020,supra, must answered in the negative.

             A "public work," as defined in RCW 39.04.010, supra, appears to us to denote some activity related to the actual construction, alteration, repair or improvement (other than ordinary maintenance) of some public building or facility.  It was, moreover, presumably because of the exclusion of "ordinary maintenance" from the definition that the 1967 legislature found it necessary to expressly amend RCW 39.12.020,supra, in order to cause persons employed under public building service maintenance contracts to be covered by the prevailing wage law.  But, as above observed, even that amendment did not purport to reach the employees of public contractors performing other services not related to the maintenance of public buildings or facilities.

           If you desire, we can assist you in drafting a further amendment to chapter 39.12 RCW to deal with the situation with which you are now concerned.  In the absence of such an amendment, however, we must thus conclude, in direct answer to your inquiry, that the provisions of chapter 39.12 RCW donot apply to (in the words of your question) ". . . the contracting out of school bus transportation by a school district."

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Senior Deputy Attorney General 

                                                         ***   FOOTNOTES   ***

 1/We assume, for purposes of this opinion, the normal situation in which the buses themselves are both owned and maintained, by the contractor and thus the "work" involved is basically that of simply driving the buses for the particular district. 

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