OFFICES AND OFFICERS ‑- STATE OFFICES ‑- HIGHER EDUCATION ‑- STATUTORY PROHIBITION AGAINST SERVING AS MEMBER OF STATE BOARD AND DIRECTOR OF JOINT CENTER FOR HIGHER EDUCATION
RCW 28B.50.050 prohibits a member of the State Board for Community College Education from also serving as the interim director of the Joint Center for Higher Education.
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October 29, 1987
Honorable John N. Terrey
State Board for Community College Education
319 Seventh Avenue, FF-11
Olympia, Washington 98504-3111
Cite as: AGO 1987 No. 22
Dear Dr. Terrey:
By letter previously acknowledged, you requested our opinion on the following question which we paraphrase as follows:
Does RCW 28B.50.050 prohibit a member of the State Board for Community College Education from also serving as the interim director of the Joint Center for Higher Education?
We answer in the affirmative for the reasons set forth in our analysis.
In 1985, the Legislature created the Joint Center for Higher Education (JCHE).1/
RCW 28B.25.010 states:
Washington State and Eastern Washington Universities shall establish, in cooperation with the council for [[Orig. Op. Page 2]] postsecondary education or its successor agency,2/ joint center for higher education in Spokane on or before January 1, 1986.
The responsibilities of the JCHE are set forth in RCW 28B.25.020. Its primary responsibility is to coordinate degree programs at Washington State University (WSU) and Eastern Washington University (EWU). The JCHE is administered by a board consisting of two representatives of EWU appointed by the university board of trustees, two representatives of WSU appointed by the university board of regents, one representative of the community colleges in the Spokane area appointed by the board of trustees of the Spokane Community College District, and two citizens residing in Spokane County. RCW 28B.25.030. RCW 28B.25.040 states that the board shall hire a director who has the status of resident dean at the JCHE and of dean at both WSU and EWU.
The board has been unable to find an appropriate and qualified person to serve as the director. Thus, it entered into a contract with an individual to serve as a consultant to the JCHE. The contract also provides that the consultant will serve as the interim director3/ for a period of one year. The director's salary and expenses are paid for jointly by WSU and EWU.
The responsibilities of the interim director, as set forth in the contract, include providing advice to the administrative board of the JCHE, providing leadership and action necessary to stimulate cooperation between EWU, WSU, and other institutions of higher education, facilitating cooperative programs among Spokane area institutions, providing an impartial focal point for the Spokane community regarding higher education needs, and reviewing all contractual arrangements between public institutions and colleges and universities.
[[Orig. Op. Page 3]]
You have asked whether this individual, who is a member of the State Board for Community College Education, may concurrently serve as the interim director of the JCHE in light of the prohibition stated in RCW 28B.50.050:
No member of the [State Board for Community College Education] shall be, during his term of office, also a member of the state board of education, a member of a K-12 board, a member of the governing board of any public or private educational institution, a member of a community college board of trustees, or an employee of any of the above boards, or have any direct pecuniary interest in education within this state.
In answering your question, it would be helpful first to examine the legislative purpose behind the establishment of an independent community college system in Washington. In 1967, the Washington Legislature enacted the Community College Act of 1967, Laws of 1967, 1st Ex. Sess., ch. 8.4/
The legislature declared that the purpose was to create a new, independent system of community colleges. RCW 28B.50.020. The community colleges in the state were severed from the direction and control of school district boards of directors at the local level and from the State Superintendent of Public Instruction and the State Board of Education at the state level.
RCW 28B.50.050 creates the State Board for Community College Education. The Board is composed of eight members. One member is appointed by the Governor from each congressional district, and the appointees are approved by the Senate. The Board is empowered to supervise and control the state system of community colleges. RCW 28B.50.090. The powers and duties of the Board are set forth in chapter 28.50 RCW. The Board has authority to review the budgets prepared by the community college boards of trustees, establish guidelines for the disbursements of these funds, prepare a comprehensive master plan for the development of community college education in the state, encourage innovation in the development of new educational and training programs, and authorize the various community colleges to offer programs and courses in other districts.
Now, turning to your question, the JCHE board is not included among the boards specified in RCW 28B.50.050. Thus, it appears that an individual is not prohibited from serving as a member of [[Orig. Op. Page 4]] the State Board for Community College Education solely because of being a member of the JCHE board.5/
However, the director of the JCHE is an employee of the governing boards of EWU and WSU which are public educational institutions. This individual is therefore ineligible to serve as both a member of the State Board for Community College Education and the director of the JCHE.
The JCHE board, as discussed above, consists of representatives appointed by the governing bodies of EWU, WSU, and the Spokane Community College District, as well as two Spokane County residents. This board hires the JCHE director. The director's salary is paid jointly by EWU and WSU, and he has the status of resident dean at both universities. Because of this relationship with EWU and WSU, the JCHE director may be considered to be an employee of the governing boards of these two public educational institutions. The JCHE director's status as an employee brings him within the prohibition contained in RCW 28B.50.050. Therefore, he may not concurrently serve as the director of the JCHE and a member of the State Board for Community College Education.
Even if the director of the JCHE were not considered an employee of EWU and WSU, he would be prohibited from concurrent service on the State Board for Community College Education because he has a "direct pecuniary interest in education within this state." The Legislature did not define "direct pecuniary interest" in RCW 28B.50 [chapter 28B.50 RCW]. Absent a statutory definition, words of a statute should be accorded their usual and ordinary meaning. Pacific First Fed. Sav. & Loan Ass'n v. State, 92 Wn.2d 402, 598 P.2d 387 (1979). In its ordinary meaning, "pecuniary" means monetary or financial. Black's Law Dictionary 1288 (rev. 4th ed. 1968).
The Legislature clearly sought to prevent the appearance of conflict or incompatibility by prohibiting college board members from being otherwise financially interested in education in this [[Orig. Op. Page 5]] state.6/
Cf. Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957) (discussing common law doctrine of incompatible public offices). There are other areas of our government with similar prohibitions. For example, article 2, section 13 of the Washington Constitution prohibits members of the Legislature, during their term, from being elected or appointed to any civil office in the state.
The obvious direct pecuniary interest here is the director's salary. Two educational institutions, EWU and WSU, pay the JCHE director's salary, which he earns by coordinating educational programs in the Spokane area. His responsibilities include preparing budget documents and coordinating with EWU and WSU with regard to all expenditures on behalf of the JCHE, reviewing all contractual arrangements between public institutions and between public and independent colleges and universities, and encouraging negotiations that will provide a higher quality, cost effective education for people in the Spokane area.
The JCHE director's salary and the nature of his responsibilities with regard to education make him the employee of the governing body of a public educational institution and give him a direct pecuniary interest in education within this state. Therefore, the provisions of RCW 28B.50.050 prohibit this individual from concurrently serving as a member of the State Board for Community College Education and as director of the JCHE.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
Assistant Attorney General
*** FOOTNOTES ***
1/Laws of 1985, ch. 370, § 97, p. 1378. The powers, duties, and functions of the Council for Postsecondary Education were transferred to the Higher Education Coordinating Board by chapter 370, Laws of 1985.
2/The powers, duties, and functions of the Council for Postsecondary Education were transferred to the Higher Education Coordinating Board by chapter 370, Laws of 1985.
3/Although the consultant's title is the interim director, he is actually fulfilling the responsibilities of the director of the JCHE. Thus, his designation is not material to the conclusions reached in this opinion.
4/Now codified as RCW 28B.50.
5/The board of the JCHE is not the governing board of any public or private educational institution. Under RCW 28B.10.016, an "institution of higher education" is defined as the state universities, the regional universities, the Evergreen State College, and the community colleges. "Institution" appears to be limited to those facilities at which teaching occurs. No actual instruction takes place at the JCHE.
6/The community College Act contains another prohibition on service in dual capacities. A trustee of a community college district may not be an employee of the community college system, a member of the board of directors of any school district, or a member of the governing board of any public or private educational institution. RCW 28B.50.100.