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AGO 1989 No. 7 - March 31, 1989
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

SUPERINTENDENT OF PUBLIC INSTRUCTION ‑- RULES AND REGULATIONS ‑- SCHOOLS ‑- CERTIFICATED EMPLOYEES ‑- CREDIT FOR IN-SERVICE TRAINING 

WAC 392-121-260(3)(c) as adopted by the Superintendent of Public Instruction is invalid as inconsistent with state statute to the extent that it purports to allow permanent credit for in-service training in a manner inconsistent with the state‑wide salary allocation schedule adopted by the Legislature for common-school certificated employees. 

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

                                                                  March 31, 1989

Honorable Len McComb
Acting Director
Office of Financial Management
Insurance Building, AQ-44
Olympia, WA 98504 

Cite as:  AGO 1989 No. 7                                                                                                                  

 Dear Mr. McComb:

           Recently your predecessor requested an opinion from this office regarding the validity of an administrative rule promulgated by the Superintendent of Public Instruction (SPI).  The rule in question pertains to the definition of "eligible credits" for placement on the state‑wide salary allocation schedule established by the Legislature for common-school certificated employees.  We have paraphrased your question as follows:

             Is WAC 392-121-260(3)(c) beyond the scope of authority of the Superintendent of Public Instruction insofar as it conflicts with provisions of the state‑wide salary allocation schedule established by the Legislature?

            For the reasons discussed in our analysis, we answer your question in the affirmative.

                                                                      ANALYSIS

            Your question concerns the relationship between provisions of the state‑wide salary allocation schedule established by the Legislature for the allocation of basic-education instructional  [[Orig. Op. Page 2]] staff salary funds and rules promulgated by the Superintendent of Public Instruction for implementation and administration of the state‑wide schedule.  To answer your question, several statutory provisions must be analyzed.

             The first is RCW 28A.41.112.  This statute requires the Legislature to establish a state‑wide salary-allocation schedule for determination and distribution of appropriated funds for common-school instructional staff salaries.  The salary schedule is used for allocation purposes only.  Placement of personnel on the schedule determines the amount that must be allocated for basic-education instructional salaries and how that amount should be distributed; it does not determine an individual employee's salary.

             Pursuant to RCW 28A.41.112, the Legislature established a state‑wide salary-allocation schedule for certificated instructional staff in the 1987 appropriations act.  Laws of 1987, 1st Ex. Sess., ch. 7, § 504, p. 2723.  For ease of reference, the entire schedule is reproduced as Appendix A.

             The schedule is used to determine a school district's average instructional staff salary by placing employees at the proper places on the schedule.  The district average then is used to determine and distribute the appropriation for state‑funded basic-education instructional salaries.  RCW 28A.41.112(2), .140 [28A.41.140]; Laws of 1987, 1st Ex. Sess., ch. 7, § 503(2), p. 2719.

             In 1987 the Legislature enacted another provision affecting the state‑wide schedule.  Section 1, chapter 519, Laws of 1987 added a new section to chapter 28A.71 RCW authorizing credit on the salary schedule for in-service training and continuing education.1/

              [[Orig. Op. Page 3]]

            Before the enactment of this statute, SPI's rules recognized only regular academic credits and disallowed the use of "in-service credits" in determining placement on the salary schedule.  Former WAC 392-121-140 (repealed 1988).

           Obviously, the enactment of RCW 28A.71.110 necessitated a change in SPI's rules because credit on the salary schedule now is to be given for "in-service" and "continuing education" credits as well as "academic" credits.  Therefore, SPI adopted a set of new rules to implement the legislative change.  For ease of reference, the relevant rules are reproduced in their entirety as Appendix B.

             The portion of these rules at issue in your question is WAC 392-121-260, which defines the credits eligible for placement on the salary allocation schedule.  WAC 392-121-260(3)(c) recognizes "in-service credits" 2/ earned before the award of the master's degree, if the credits were earned before August 31, 1988.  The effect of this provision is to allow credit on a permanent basis for course work completed before the award of a degree, because the work is never subsumed in the subsequently awarded degree.  Your question is whether this granting of credits earned before the employee's highest degree is consistent with RCW 28A.71.110 and the salary allocation schedule.

             RCW 28A.71.110 specifies that ten hours of approved in-service training or continuing education shall be treated as "the equivalent of a one credit college quarter course on the salary schedule . . . ."  The salary schedule establishes a structure in which credits beyond a given degree are recognized and compensated:  BA+15, BA+30, MA+45, MA+90, and so forth.  The definitional section of the schedule specifies that the notation "+(N)" "means the number of college quarter hour credits earnedsince the highest degree."  Laws of 1987, 1st Ex. Sess., ch. 7, § 504(3)(c)(iv), p. 2723 (emphasis added).

              [[Orig. Op. Page 4]]

            In analyzing the SPI rule, the issue is whether credits earnedbefore the award of the highest degree may be recognized, so that, for example, a person could be placed at "MA+45" even though some of the credits comprising the "+45" were earned before the master's degree.  The specific language defining the term "+(N)" as credits earned "since the highest degree" dictates a negative answer.

             The only argument that might support the SPI rule would be that there is some basis for treating "in-service" and "continuing education" credits differently from other kinds of credits.  This argument, however, is precluded by the language of RCW 28A.71.110, which provides that certificated personnel shall receive "the equivalent of a one credit college quarter course on the salary schedule" for each ten hours of approved in-service or continuing education earned.  The use of the word "equivalent" indicates a legislative intent that in-service and continuing education credits be treated the same as college course credits.

             When the salary schedule's provisions are read together with RCW 28A.71.110, it is clear that the Legislature intended to change the prior rule disallowing credit for in-service training and continuing education and that these credits now are to be treated the same as other academic credits.  There is nothing in any of the legislative provisions relating to this topic that indicates an intent to treat these credits differently.3/ Based on this reading of the Legislature's expressed intent, we conclude that the Superintendent of Public Instruction was without authority to adopt WAC 392-121-260(3)(c) because it is in conflict with the statutes it is intended to implement.  SPI's rulemaking authority relevant to this issue is established in RCW 28A.41.170(1).  This statute provides:

             The superintendent of public instruction shall have the power and duty to make such rules and regulations as are necessary for the proper administration of this chapter not inconsistent with the provisions thereof, and in addition to require such reports as may be necessary to carry out his duties under this chapter.

 In construing this authority, certain well-established principles of administrative law provide guidance.  An administrative agency has only those powers expressly granted or necessarily implied  [[Orig. Op. Page 5]] from the statutory grant.  Yakima v. Yakima Police & Fire Civil Serv. Comm'n, 29 Wn. App. 756, 763, 631 P.2d 400,review denied, 96 Wn.2d 1013 (1981).  An agency may not amend or change legislative enactments through the promulgation of administrative rules.  Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980),adhered to and modified on other grounds, 95 Wn.2d 962, 633 P.2d 1324 (1981).  Rules must be written within the framework and policy of the applicable statutes.  Kitsap-Mason Dairymen's Ass'n v. Washington State Tax Comm'n, 77 Wn.2d 812, 815, 467 P.2d 312 (1970).

             For the reasons discussed above, WAC 392-121-260(3)(c) is not consistent with legislative intent; this rule clearly changes a legislative enactment and therefore is beyond the scope of authority of the Superintendent of Public Instruction.  While SPI has been delegated authority to adopt rules to administer chapter 28A.41 RCW, it may not legislate under the guise of its rulemaking authority.  Kitsap-Mason Dairymen's Ass'n, at 815.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

SALLY P. SAVAGE
Sr. Assistant Attorney General

            [Appendix A [Orig. Op. Page 1]]

 APPENDIX A

 (a) 1987-88 STATE‑WIDE ALLOCATION SCHEDULE

FOR INSTRUCTIONAL STAFF

 Years of

Service               BA                 BA+15            BA+30            BA+45

           0                        17,050 17,510 17,988 18,465

          1                        17,681 18,158 18,653 19,164

          2                        18,329 18,823 19,335 19,897

          3                        19,011 19,522 20,051 20,648

          4                        19,710 20,255 20,801 21,432

          5                        20,443 21,006 21,568 22,250

          6                        21,210 21,773 22,370 23,103

          7                        21,995 22,574 23,188 23,972

          8                        22,796 23,410 24,041 24,893

          9                                                24,279 24,944 25,831

        10                                                                        25,865 26,820

        11                                                                                                27,843

14 or more

 1987-88 STATE‑WIDE ALLOCATION SCHEDULE

FOR INSTRUCTIONAL STAFF

 

Years of                                                                                                           MA+90

Service             BA+90BA+135             MA                MA+45            or PHD

          0            20,000 20,989 20,000 21,210 22,250

          1            20,750 21,756 20,750 21,995 23,069

          2            21,517 22,557 21,517 22,813 23,921

          3            22,301 23,393 22,301 23,648 24,808

          4            23,137 24,262 23,137 24,518 25,728

          5            23,989 25,166 23,989 25,439 26,666

          6            24,876 26,087 24,876 26,376 27,655

          7            25,797 27,058 25,797 27,348 28,678

          8            26,751 28,064 26,751 28,354 29,752

          9            27,740 29,104 27,740 29,411 30,843

        10            28,763 30,179 28,763 30,502 31,986

        11            29,838 31,287 29,838 31,628 33,162

        12            30,946 32,446 30,946 32,804 34,390

        13            32,088 33,640 32,088 34,015 35,669

14 or more                               34,88433,265 35,276 36,981

 

(b) 1988-89 STATE‑WIDE ALLOCATION SCHEDULE

FOR INSTRUCTIONAL STAFF

 

Years of

Service                           BA                 BA+15            BA+30            BA+45

          0                        17,600 18,075 18,568 19,061

          1                        18,251 18,744 19,254 19,782

          2                        18,920 19,430 19,958 20,539

          3                        19,624 20,152 20,698 21,314

          4                        20,346 20,909 21,472 22,123

          5                        21,102 21,683 22,264 22,968

          6                        21,894 22,475 23,091 23,848

          7                        22,704 23,302 23,936 24,746

          8                        23,531 24,165 24,816 25,696

          9                                                25,062 25,749 26,664

        10                                                                        26,699 27,685

        11                                                                                                28,741

        12                                               

        13                                               

14 or more

 

1988-89 STATE‑WIDE ALLOCATION SCHEDULE

FOR INSTRUCTIONAL STAFF

 

Years of                                                                                                                       MA+90

Service                         BA+90BA+135            MA                MA+45            or PHD

          0                        20,645 21,666 20,645 21,894 22,968

          1                        21,419 22,458 21,419 22,704 23,813

          2                        22,211 23,285 22,211 23,549 24,693

          3                        23,021 24,147 23,021 24,411 25,608

          4                        23,883 25,045 23,883 25,309 26,558

          5                        24,763 25,978 24,763 26,259 27,526

          6                        25,678 26,928 25,678 27,227 28,547

          7                        26,629 27,931 26,629 28,230 29,603

          8                        27,614 28,970 27,614 29,269 30,712

          9                        28,635 30,043 28,635 30,360 31,838

        10                        29,691 31,152 29,691 31,486 33,018

        11                        30,800 32,296 30,800 32,648 34,232

        12                        31,944 33,493 31,944 33,862 35,499

        13                        33,123 34,725 33,123 35,112 36,819

14 or more                                           36,01034,338 36,414 38,174

 (c) As used in this subsection:

 (i) "BA" means a baccalaureate degree;

 (ii) "MA" means a masters degree;

 (iii) "PHD" means a doctorate degree;

 (iv) "+(N)" means the number of college quarter hour credits            earned since the highest degree.

  APPENDIX B

 WAC 392-121-250 DEFINITION‑-HIGHEST DEGREE LEVEL.  As used in this chapter, the term "highest degree level" means the highest degree earned by the employee from an accredited college or university.

             WAC 392-121-255 DEFINITION‑-ACADEMIC CREDITS.  As used in this chapter, "academic credits" means credits determined as follows:   

             (1)  Credits are earned after the awarding or conferring of the employee's first bachelor's degree.

             (2)  Credits are earned on or before October 1 of the year for which allocations are being calculated pursuant to this chapter.

             (3)  Credits are earned from an accredited community college, college, or university.

             (4) Credits are transferable or applicable to a bachelor's or more advanced degree program.

             (5)  Credits are not counted as in-service credits pursuant to WAC 392-121-257.

             (6)  The number of credits equals the number of quarter hours, units or semester hours each converted to quarter hours earned from the community college, college, or university.

             WAC 392-121-257 DEFINITION‑-IN-SERVICE CREDITS.  As used in this chapter, "in-service credits" means credits determined as follows:

             (1)  Credits are earned after August 31, 1987.

             (2)  Credits are earned on or before October 1 of the year for which allocations are being calculated pursuant to this chapter.           

             (3) Credits are earned in either:

                         (a) A locally approved in-service training program which means a program approved by a school district board of directors, and meeting standards adopted by the state board of education pursuant to the standards in WAC 180-85-200 and the development of which has been participated in by an in-service training task force whose membership is the same as provided under RCW 28A.71.210; or[Appendix B [Orig. Op. Page 2]]

                         (b) A state approved continuing education program offered by an education agency approved to provide in-service for the purposes of continuing education as provided for under rules adopted by the state board of education pursuant to chapter 180-85 WAC.

             (4)  Credits are not counted as academic credits pursuant to WAC 392-121-255.

             (5)  Credits are not earned for the purpose of satisfying the requirements of the employee's next highest degree.

             (6)  Ten locally approved in-service or state approved continuing education credit hours defined in WAC 180-85-030 equal one in-service credit.

             WAC 392-121-260 DEFINITION‑-TOTAL ELIGIBLE CREDITS.  As used in this chapter, "total eligible credits" means the number of credits determined as follows:

             (1)  For an employee whose highest degree is a bachelor's degree, sum academic and in-service credits as defined in WAC 392-121-255 and 392-121-257.

             (2)  For an employee whose highest degree is a master's degree which was awarded or conferred on or before August 31, 1987, sum academic and in-service credits as defined in WAC 392-121-255 and 392-121-257 earned after the awarding or conferring of the master's degree.

             (3)  For an employee whose highest degree is a master's degree earned after August 31, 1987, sum the following:

                         (a) Academic credits as defined in WAC 392-121-255 earned after the awarding or conferring of the master's degree;

                         (b) In-service credits as defined in WAC 392-121-257 earned after the awarding or conferring of the master's degree; and

                         (c) In-service credits as defined in WAC 392-121-257 earned after August 31, 1987, and before August 31, 1988, or the awarding or conferring of the master's degree whichever is earlier.

                                                        ***   FOOTNOTES   ***

 1/RCW 28A.71.110 provides in part:

                         (1) Certified personnel shall receive for each ten clock hours of approved in-service training attended the equivalent of a one credit college quarter course on the salary schedule developed by the legislative evaluation and accountability program committee.

                         (2) Certificated personnel shall receive for each ten clock hours of approved continuing education earned, as continuing education is defined by rule adopted by the state board of education, the equivalent of a one credit college quarter course on the salary schedule developed by the legislative evaluation and accountability program committee.

                          . . .

                         (4) Clock hours eligible for application to the salary schedule developed by the legislative evaluation and accountability program committee as described in subsections (1) and (2) of this section, shall be those hours acquired after August 31, 1987.

 2/Defined to include "continuing education" credits as well.  WAC 392-121-257(3)(b).

 3/Indeed, the Legislature confirmed this interpretation the following year in the 1988 appropriations act when it amended the language defining "+(N)" specifically to exclude in-service credits earned before the highest degree.  Laws of 1988, ch. 289, § 503, p. 1459.

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