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AGO 1973 No. 25 - December 20, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SCHOOLS ‑- EMPLOYEES ‑- PROFESSIONAL NEGOTIATIONS ‑- SALARIES ‑- POLICIES

(1) The board of directors of a public school district in this state is required by existing law to adopt an annual salary schedule for all of its certificated employees within the meaning of RCW 28A.67.066; it is not, however, so required by any specific statute to adopt official policies with regard to (a) the maximum number of students in a classroom; (b) the number of elementary specialists to be used in connection with such subjects as physical education and music; (c) secondary planning periods; or (d) a schedule calendar.      

(2) The provisions of the "professional negotiations act" for school district certificated personnel (chapter 28A.72 RCW) permit but do not require the board of directors of a school district (or a committee thereof) to "meet, confer and negotiate" with the representatives of a duly designated employee organization as to proposed school policies initiated by that organization rather than by the board itself, except where those proposals are submitted by the employee organization as counterproposals during the course of pending negotiations on school policies initially proposed to be adopted by the board.

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

                                                               December 20, 1973

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98823

                                                                                                                 Cite as:  AGO 1973 No. 25

Dear Sir:

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

            (1) Is the board of directors of a public school district in this staterequired by existing law to adopt official policies with regard to ‑

            (a) the maximum number of students in a classroom:

             [[Orig. Op. Page 2]]

            (b) a basic salary schedule for its employees;

            (c) an extracurricular salary schedule;

            (d) the number of elementary specialists to be used in connection with such subjects as physical education and music;

            (e) secondary planning periods; and

            (f) a schedule calendar?

            (2) Do the provisions of the "professional negotiations act" for school district certificated personnel (chapter 28A.72 RCW) require the board of directors of a school district (or a committee thereof) to "meet, confer and negotiate" with the representatives of a duly designated employee organization as to proposed school policies initiated by that organization rather than by the school board itself?

            We answer question (1) in the manner set forth in our analysis and question (2) in the negative as qualified therein.

                                                                     ANALYSIS

            Question (1):

            RCW 28A.58.110 provides that every board of directors of a public school district in this state

            ". . . shall have power to make such bylaws for their own government, and the government of the common schools under their charge, as they deem expedient, not inconsistent with the provisions of this title, or rules and regulations of the superintendent of public instruction or the state board of education."

            Under this statute it seems clear to us that the board of directors of a school district has theauthority to adopt policy regulations with respect to each of the matters listed in your first question.  In addition it isrequired  [[Orig. Op. Page 3]] by RCW 28A.67.066, in the case of its certificated employees (as that term is used therein) to take annual action with respect to items (b) and (c) ‑ this statute providing as follows:

            "Every school district by action of its board of directors shall adopt annual salary schedules and reproduce the same by printing, mimeographing or other reasonable method, which shall be the basis for salaries for all certificated employees in the district."

            On the other hand there is to our knowledge no such specific legal requirement for the adoption of school board policies covering the other matters described in your first question ‑ although in at least some instances there may well be apractical necessity for a school board to do so in view of the requirements of certain related laws.  For example, the annual adoption of a schedule calendar is in all probability necessitated by the requirement of RCW 28A.58.180 that all school districts ". . . shall maintain school at least one hundred eighty days each school year . . ."  Similarly, the definition of "school day" in RCW 28A.01.010 may well give rise to a practical necessity for the adoption of planning schedules by a school board.1/   But if, by your use of the word "required" in your question you mean only to imply a legally enforceable duty based upon a specific, mandatory, statute then our answer to your first question is that no such statute presently exists with respect to either of these two subjects or those of the maximum number of students in a classroom and the number of elementary specialists to be used in connection with such subjects a physical education and music ‑ the remaining two subjects listed in your question.

             [[Orig. Op. Page 4]]

            Question (2):

            Chapter 28A.72 RCW codifies the provisions of chapter 143, Laws of 1965, as amended, commonly referred to as the "professional negotiations act" for school district certificated employees.  RCW 28A.72.010, codifying § 1 of this 1965 act, states that:

            "It is the purpose of this chapter to strengthen methods of administering employer-employee relations through the establishment of orderly methods of communication between certificated employees and the school districts by which they are employed."

            RCW 28A.72.020 then defines the following terms:

            "As used in this chapter:

            "'Employee organization' means any organization which includes as members certificated employees of a school district and which has as one of its purposes the representation of the employees in their employment relations with the school district.

            "'Certificated employee' means any employee holding a regular teaching certificate of the state and who is employed by any school district with the exception of the chief administrative officer of each local district."

            The basic substantive requirement of this legislation is contained in RCW 28A.72.030 as follows:

            "Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the certificated employees within its school district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of directors of the school district or a  [[Orig. Op. Page 5]] committee thereof to communicate the considered professional judgment of the certificated staff prior to the final adoption by the board of proposed school policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties."

            Your second question, as above paraphrased, asks whether an employee organization's right under this statute, and its school board's correlative duty, to "meet, confer and negotiate" will be triggered by a proposal for the adoption of school policies that is initiated by the employee organization rather than by the board.  In responding, we note, first, the unique language of RCW 28A.72.030 as contrasted with that of all other existing state statutes establishing public employer-employee bargaining procedures.  In particular, no other such statute (except the identical provisions of chapter 28B.52 RCW) parallels the wording of the professional negotiations act in terms of defining when negotiations are to occur and what kinds of policy proposals are to be subject to mandatory negotiations between employer and employee.2/

             Under the provisions of RCW 28A.72.030,supra, there can be no doubt but that before the board of directors of a school district may finally adopt any policies, whether mandatory or permissive, relating to the kinds of things enumerated in that statute either the board or a committee thereof must "meet, confer and negotiate" with the duly designated employee representative of its certificated personnel if such negotiations are then requested.  In other words, compliance with this statute by a school board is  [[Orig. Op. Page 6]] now a condition precedent to its otherwise unfettered authority to adopt such policies governing the operations of the district as come within the purview of the statute.  Accord, AGLO 1973 No. 25 [[to Harry B. Lewis, State Senator on February 15, 1973 an Informal Opinion AIR-73525]].  But by the same token it seems equally evident to us that until and unless a school board itself first proposes to adopt a particular policy, there will be nothing against which this condition precedent can operate so as to give rise either to a right on the part of the employee organization or a duty on the part of the board to "meet, confer and negotiate" on anything.

            This does not mean, we would hasten to add, that in the course ofpending negotiations in connection with a policy proposal originally initiated by a school board the board may refuse to consider such counterproposals as may be presented to it by the employee organization as a part of the negotiating process.  As indicated in our opinion of June 13, 1969, to the president of Yakima Community College, copy enclosed, the term "negotiate" encompasses the process of bargaining.  It most certainly thus follows that once negotiations are under way on a policy proposal initiated by a school board, the board must, as a part of that process, entertain and consider at least such counterproposals by the employee organization as are reasonably related to the subject matter of the board's proposed policy in order to facilitate the process of bargaining in a meaningful manner.

            Subject to this qualification, however, we answer your second question in the negative.  Although a school board unquestionably may meet and negotiate with the representatives of a duly designated organization of its certificated employees as to proposed school policies within the purview of RCW 28A.72.030 which are initiated by that organization rather than by the board itself, it is not legally required to do so except in the case of a counter-proposal coming as a part of pending negotiations on a proposal initiated by the board.

             [[Orig. Op. Page 7]]

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

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 28A.01.010 defines the term "school day" to mean,

            ". . . each day of the school year on which pupils enrolled in the common schools of a school district are engaged in educational activity planned by and under the direction of the school district staff, as directed by the administration and board of directors of the district."

2/See and compare RCW 28B.16.100 (higher education employees' civil service); RCW 41.06.150 (state employees' civil service); RCW 47.64.030 and 47.64.040 (involving employees of the Washington state toll bridge authority); RCW 54.04.170 and 54.04.180 (public utility district employees); and RCW 53.18.101, et seq. (port district employees).

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