COUNTIES ‑- CITIES AND TOWNS ‑- ADOPTION OF IDENTICAL ORDINANCES ‑- AGREEMENT FOR COUNTY TO ENFORCE BOTH ORDINANCES
An incorporated town within the county may by means of an ordinance adopt regulations identical to those of the county and then enter into an agreement for the enforcement of the town's regulations by county employees for which the town must pay true and full value to the county.
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December 19, 1985
Honorable George F. Hanigan
Prosecuting Attorney, Wahkiakum County
P.O. Box 39
Cathlamet, Washington 98612
Cite as: AGO 1985 No. 17
By letter previously acknowledged you requested our opinion on four questions which we paraphrase as follows:
(1) Where a county and an incorporated town within the county each have independent authority to adopt police and sanitary regulations, may the town, solely by means of an interlocal agreement with the county, provide that such regulations as are adopted by the county will be in effect within the incorporated boundaries of the town?
(2) If the answer to question number (1) is in the negative, may the town, by means of an ordinance adopt regulations which are identical to those adopted by the county so that the substantive regulations adopted by both entities will be uniform?
(3) If the answer to either question number (1) or question number (2) is in the affirmative, may the town and county enter into an interlocal agreement or contract providing that the county employees will enforce whatever regulations are in effect within the corporate boundaries of the town?
[[Orig. Op. Page 2]]
(4) If the answer to question number (3) is in the affirmative, must the interlocal agreement or contract provide for adequate consideration from the town to the county in return for the enforcement services which the county agrees to provide?
We answer your first question in the negative, and your second, third and fourth questions in the affirmative.
The purpose of the Interlocal Cooperation Act (Title 39.34 RCW) is to permit units of local government to make the most efficient use of their powers by enabling them to cooperate with other localities to provide services and facilities. The provisions of the Interlocal Cooperation Act are applicable to all "public agencies" which are defined under RCW 39.34.020 as follows:
"For the purposes of this chapter, the term 'public agency' shall mean any agency, political subdivision, or unit of local government of this state including, but not limited to, municipal corporations, quasi municipal corporations, special purpose and local service districts; any agency of the state government; any agency of United States; any Indian tribe recognized as such by the federal government; and any political subdivision of another state."
"The term 'state' shall mean a state of the United States."
Clearly, counties and towns are included in the foregoing definition.
RCW 39.34.030 provides that any power or powers, privileges or authority exercised or capable of exercise by a public agency may be exercised jointly with any other public agency having the power, privilege or authority to also act.
Your question deals with the authority of a county and a town, within the same county, to enter into an agreement regarding police [[Orig. Op. Page 3]] or sanitary regulations.1/ Under the Interlocal Cooperation Act, both public agencies (the county and town) must have power, privilege or authority to regulate police or sanitary matters in order for them to enter into any such agreement.2/
Within the Interlocal Cooperation Act, RCW 39.34.030(2) provides:
"Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter: Provided, That any such joint or cooperative action by public agencies which are educational service districts and/or school districts shall comply with the [[Orig. Op. Page 4]] provisions of RCW 28A.58.107, as now or hereafter amended. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force."3/
The provisions of RCW 39.34.030 (3) and (4) specify those matters which are to be included in any interlocal cooperation agreement. The clear language of this statute indicates that interlocal cooperation agreements are to be specific in nature. Thus, the mere existence of an interlocal cooperation agreement between two public agencies on one matter would not be construed to cover other matters not specifically addressed in the agreement. However, the agreement is not sufficient in and of itself unless, or until, each party to the agreement adopts an ordinance (or takes other appropriate action). Therefore, your first question which asks whether a town, solely by means of an interlocal agreement [[Orig. Op. Page 5]] with the county, may adopt the county's sanitary and health regulations must be answered in the negative.
We turn now to your second question which asks if the town may, by means of an ordinance, adopt regulations which are identical to those adopted by the county so that there will be uniformity in the regulations. As we discussed previously, each party to an interlocal cooperation agreement must have independent authority to act upon the matters contained in the agreement. Inasmuch as a town would have independent authority to adopt police and sanitary regulations, we answer your second question in the affirmative.4/
Your third and fourth questions, repeated for ease of reference, ask:
. . .may the town and county enter into an interlocal agreement or contract providing that the county employees will enforce whatever regulations are in effect within the corporate boundaries of the town? and
If the answer to question number (3) is in the affirmative, must the interlocal agreement or contract provide for adequate consideration from the town to the county in return for the enforcement services which the county agrees to provide?
Regarding your third question, interlocal cooperation agreements are for the purpose of allowing one or more public agencies to join together to accomplish a common goal which each agency has independent authority to affect. The agreement itself [[Orig. Op. Page 6]] must be sanctioned by the approving body of each agency and must specify (among other things) its duration, organization, purpose and methods to be employed in accomplishing the termination of the agreement. See RCW 39.34.030(3).
Additionally, RCW 39.34.080 provides:
"Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform: Provided, That such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives, and responsibilities of the contracting parties."
The foregoing clearly authorizes a public agency to enter into a contract with another public agency to obtain any governmental service (which would include police or sanitary regulations). Thus, two public agencies may enter into an interlocal cooperation agreement dealing with police or sanitary regulations, and they may then contract to have one of the agencies provide the service that is the subject of the agreement. Accordingly, we answer your third question in the affirmative.
Finally, you have asked whether there must be consideration for such a contract. RCW 43.09.210 states, in part:
". . .
"All service rendered by, or property transferred from, one department, public improvement, undertaking, institution, or public service industry to another, shall be paid for at its true and full value by the department, public improvement, undertaking, institution, or public service industry receiving the same, and no department, public improvement, undertaking, institution, or public service industry shall benefit in any financial manner whatever by an appropriation or fund made for the support of another.
". . ."
InState v. Grays Harbor County, 98 Wn.2d 606, 656 P.2d 1084 (1983) the court addressed the application of the foregoing [[Orig. Op. Page 7]] statute, holding that its provisions apply to state, county and city governments. Thus, if a county provides a service to a town within the county, pursuant to an interlocal cooperation agreement and contract, the town must pay true and full value for such service. Your fourth question is therefore answered in the affirmative.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
MEREDITH WRIGHT MORTON
Assistant Attorney General
1/We assume for the purposes of this opinion, because your question assumed, that the particular subject area of the police or sanitary regulations is one in which the county would lack authority to legislate on its own for the incorporated portions of the county. There may well be subject areas in which a county acting alone could make and enforce regulations within the town boundaries, in which case it would not be necessary to address any of your questions. Your questions must be addressed however in those subject areas where cities or towns by constitution or statute have exclusive authority to enact police or sanitary regulations.
2/See AGO 1969 No. 8 for a discussion of the necessity for both parties to an interlocal cooperation agreement to have authority to act independent of the agreement. Regarding the authority of a county to regulate police and sanitary regulations within unincorporated areas of the county, see Article XI, § 11 of the Washington State Constitution and RCW 36.32.120. Regarding the similar authority of a town see Article XI, § 11, RCW 35.01.040, and RCW 34.27.370(16) [35.27.370(16)].
It should also be noted that while your question relates to a county and a town, within that county, the provisions of Article XI, § 11 of the Constutition (police and sanitary regulations) and Article XI, § 10 (incorporation of municipalities): and, RCW 35.22.280 (powers of first class cities): RCW 35.23.440 (powers of second class cities): and RCW 35.24.290 (powers of third class cities) make the analysis contained herein applicable to interlocal agreements between a county and any incorporated area within that county.
3/Prior to 1981 this statute read as follows:
"Any two or more public agencies may enter into agreements with one another for joint or cooperative action pursuant to the provisions of this chapter. Appropriate action by ordinance, resolution or otherwise pursuant to law of the governing bodies of the participating public agencies shall be necessary before any such agreement may enter into force."
Chapter 308, Laws of 1981 (Engrossed Senate Bill No. 3752) added the proviso which now appears as the second sentence in RCW 39.34.030(2),supra. Whereas it may be alleged that the effect of the proviso is to make enactment of ordinances, resolutions or other laws, a necessity only in interlocal cooperation agreements involving educational service districts and/or school districts, we believe this was not the legislature's intention when ESB 3752 (1981) was enacted. It is a well-recognized rule of statutory construction that a proviso in a statute must be construed in light of the body of the statute, and in such a manner as to carry out the legislature's intent as manifested by the entire act and the laws in pari materi with it. State v. Wright, 84 Wn.2d 645, 529 P.2d 453 (1974). The Interlocal Cooperation Act has always required that each public agency entering into such an ordinance or resolution before the agreement shall be in force. We do not believe that the legislature intended to change this requirement when the law was amended.
4/This must be differentiated from matters which are specifically governed by statutes or constitutional provisions and, which vest the power to act in certain public agencies. For example: See AGO 1969 No. 8 (absence of authority of Department of Corrections to enter into agreement with county for detention of county prisoners in state correctional institutions) and Title 17 RCW which vests specific authority for control of noxious weeks in certain public agencies; or, Title 70 RCW which provides specific criteria for establishment of health districts.