SCHOOL DISTRICTS ‑- SCHOOL PROPERTY ‑- HEALTH CARE CLINICS
1. School districts may lease surplus school district property to public or private entities on the condition that the leased property be used for an adolescent health care clinic, where the board of directors finds that such a use is compatible with the district's other uses for its property and where the clinic is not, directly or indirectly, operated or controlled by the school district itself (see AGO 1988 No. 2).
2. School districts may lawfully refer students to adolescent health care clinics, whether located on school premises or elsewhere, and may distribute parental consent forms to students describing the services of the clinics.
3. A school district has no authority to advertise or promote the services of an adolescent health care clinic located on school district property; school districts may distribute information about such a clinic to students, parents, and/or district employees without "advertising" them in the ordinary sense of the word.
4. An adolescent health care clinic located on school district property is free to promote or advertise its services in any lawful manner, depending on the nature of the entity operating the clinic.
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September 20, 1989
Honorable Mike Padden
425 House Office Building
Olympia, WA 98504
Cite as: AGO 1989 No. 17
Dear Representative Padden:
By letter previously acknowledged, you requested our opinion on three questions that we have paraphrased as follows:
[[Orig. Op. Page 2]]
1. Do school districts have authority to conditionally lease surplus school district facilities to public or private entities so that such entities may establish and operate adolescent health care clinics?
2. Assuming an affirmative answer to question 1, may the district refer students to the clinic through the school physician or nurse and distribute parental consent forms to students describing the services of the clinic?
3. Assuming an affirmative answer to question 1, may the district advertise or allow others to advertise the services of the clinic on school premises?
We answer question 1 in the qualified affirmative, question 2 in the affirmative, and question 3 in the manner set forth below.
This office previously addressed questions relating to adolescent health care clinics in AGO 1988 No. 2. There, we were asked whether school districts have authority to establish "adolescent health care clinics" such as those contemplated in House Bills 376 and 975, two bills introduced in the 1987 Legislature that did not pass. These clinics would provide health education and general health care to prevent or minimize the long-term consequences of: (1) substance abuse, (2) abuse and neglect, (3) mental or emotional difficulties, (4) nutritional and health care deprivation, (5) sexual activity, (6) sexually transmitted diseases, (7) teen pregnancy, (8) low birthweight babies, (9) infant mortality, and (10) disruption of the family unit.
Although we acknowledged that school districts have several health-related powers and functions, we could discern no express or implied authority for school districts to establish and operate adolescent health care clinics. We also concluded that school districts may not use school district funds to construct, remodel, rent, or lease (as lessee) facilities to house such clinics. Finally, we concluded that school districts may not contract with public or private entities to jointly establish such clinics.
In AGO 1988 No. 2 we did not, however, address any of the issues presented in your current opinion request. With the above information as background, we now analyze those questions.
[[Orig. Op. Page 3]]
Do school districts have authority to conditionally lease surplus school district facilities to public or private entities so that such entities may establish and operate adolescent health care clinics?
School districts in Washington are considered to be municipal or quasi-municipal corporations. As such, they possess the powers contained in express legislative grants, together with those which are necessary, implied in, or incident to such expressed powers and those which are essential to the declared objects and purposes of the district. Noe v. Edmonds Sch. Dist. 15, 83 Wn.2d 97, 103, 515 P.2d 977 (1973).
RCW 28A.58.033 expressly grants school districts broad powers to lease surplus property, subject to certain limitations. That statute provides in part:
(1) Every school district board of directors is authorized to permit the rental, lease, or occasional use of all or any portion of any surplus real property owned or lawfully held by the district to any person, corporation, or government entity for profit or nonprofit, commercial or noncommercial purposes: Provided, That the leasing or renting or use of such property is for a lawful purpose, is in the best interest of the district, and does not interfere with conduct of the district's educational program and related activities: Provided further, That the lease or rental agreement entered into shall include provisions which permit the recapture of the leased or rented surplus property of the district should such property be needed for school purposes in the future.
RCW 28A.58.034 further provides in part:
(3) Nothing in RCW 28A.58.033 . . . shall prohibit a school board of directors and a lessee or tenant from agreeing to conditions to the lease otherwise lawful, including conditions of reimbursement or partial [[Orig. Op. Page 4]] reimbursement of costs associated with the lease or rental of the property.1/
Several points are apparent from the above statutes. First, school districts have broad authority to lease surplus property "to any person, corporation, or government entity for profit or nonprofit, commercial or noncommercial purposes." RCW 28A.58.033. Implicit in this legislative grant is the recognition that many such leases would enable the lessee to carry out activities the district could not carry out itself. School districts, for example, lack authority to engage in commercial ventures, yet they may lease surplus property to others for precisely this purpose. A lease of property to establish and operate an adolescent health care clinic presents a similar situation. Although school districts may not operate such clinics themselves, they are not thereby barred from leasing surplus property to others who wish to operate such clinics.2/
RCW 28A.58.033(1) does require that the lease serve a "lawful" purpose. But whether this requirement is met does not depend upon the school district's authority to operate an adolescent health care clinic. The relevant inquiry, rather, is whether the lessee or sublessee of the property has authority to operate such a clinic. If so, the statutory requirement of lawfulness is satisfied.3/
RCW 28A.58.033(1) also requires [[Orig. Op. Page 5]] that the lease be in the "best interest of the district" and "not interfere with the conduct of the district's education program and related activities". The statute, however, sets forth no guidelines for determining whether these goals will be met in a given case. Nor has the Legislature definitively stated that operation of an adolescent health care clinic on leased school district property is incompatible with these statutory goals. In this context, we believe the determination of a school district's best interests and the activities that are compatible with those interests, in the context of a lease of property, must be left to the informed discretion of the individual school district. It is neither our function nor duty to inquire into the wisdom of this determination.
Your opinion request raised additional concerns about a lease of property for adolescent health care clinics. Is it permissible for the lease to specify that the property shall be used only for such a clinic unless the district otherwise consents? And is it permissible for the district to insist on other restrictions regarding use of the property, such as requiring that the district approve the scope of services to be offered by the clinic or stipulating that the clinic not offer contraceptives or perform abortions?
Both of these questions are answered by RCW 28A.58.034(3), which states that "[n]othing . . . shall prohibit a school board of directors and a lessee or tenant from agreeing to conditions of the lease otherwise lawful". The statute clearly contemplates that a school district, as the owner of property, may place restrictions on its use in order to best serve the interests of the district. Of course, a district may not, under the guise of lease conditions, actually participate in the day-to-day operations of an adolescent health care clinic. But the above restrictions simply limit the lessee's use of the property to that of a health clinic which performs certain approved services. We conclude they are valid under RCW 28.58.034(3).4/
[[Orig. Op. Page 6]]
To summarize, we conclude that school districts may lease surplus school district facilities to public or private entities, as set forth above, so that such entities may establish and operate adolescent health care clinics.
Assuming an affirmative answer to question 1, may the district refer students to the clinic through the school physician or nurse and distribute parental consent forms to students describing the services of the clinic?
Your second question involves the performance of activities indirectly relating to the operation of an adolescent health care clinic. None of these activities, however, involve the expenditure of school district funds to operate the clinic or the use of school district personnel to operate the clinic. Thus, the conclusions we reached in AGO 1988 No. 2 regarding adolescent health care clinics are not controlling here.
You inquire whether a school district may refer students to an adolescent health care clinic through the school physician or nurse. Both first and second class school districts may employ a school physician or nurse to protect the health of the district's children. See RCW 28A.59.180(12); 28A.60.320. The health-related services that a school district itself may provide, however, are limited. See McGilvra v. Seattle Sch. Dist. 1, 113 Wash. 619, 194 P. 817 (1921) (school district lacked statutory authority to establish a clinic to provide medical, surgical, and dental treatment to students); RCW [chapter] 28A.31 [RCW] (school districts may provide visual and auditory screening, immunization programs and scoliosis screening programs for students). A school physician or nurse might therefore conclude, in a particular case, that a student's needs would best be served by seeking the services of another health care provider‑-whether a hospital, a specialist, [[Orig. Op. Page 7]] an adolescent health care clinic, or otherwise. While we have located no express statutory grant authorizing referral of students to an adolescent health care clinic, we believe this authority is necessarily implicit in the school physician's general charge to protect the health of the district's children. In making such referrals the physician is not providing unauthorized medical treatment but is simply exercising his or her professional judgment to inform the student of services available elsewhere.
We likewise conclude that the district, as part of the referral process, may distribute to students parental consent forms describing the services of the clinic. By distributing such forms, the district is neither engaging in the operation of the clinic, subsidizing the clinic, nor using school district funds or property to promote the clinic. It is simply providing information to parents to enable them to decide whether they would like their children to use the clinic's services. Whether these consent forms are distributed to the students or directly to the parents, we conclude they are a permissible adjunct to the referral process.
Assuming an affirmative answer to question 1, may the district advertise or allow others to advertise the services of the clinic on school premises?
At the outset, we stress that our answer here deals only with advertising in the conventional sense‑-e.g., placing signs, posters, or notices on school property. To the extent that your question concerns conveying information about the clinic's services through the referral/parental consent process, the validity of that process is addressed in our answer to question 2.
As to conventional advertising, its validity will turn upon who is funding the advertising and where such advertising is located. As indicated in AGO 1988 No. 2, school districts lack authority to establish or operate adolescent health care clinics or to contribute school district funds for this purpose. The use of such funds for the express purpose of advertising or promoting the clinic's services would, in our opinion, necessarily involve the district in the overall operation of the clinic. Hence, we conclude that such advertising is beyond the school district's statutory authority.
This does not mean, however, that the district is forbidden to allow the clinic to use its own funds to advertise its services on leased surplus school district premises. Indeed, RCW 28A.58.034(3) states that "[n]othing . . . shall prohibit a [[Orig. Op. Page 8]] school board of directors and a lessee or tenant [of surplus property] from agreeing to conditions of the lease otherwise lawful". So long as the entity in question has the requisite express or implied authority to advertise its services, we conclude that it may carry out clinic-related advertising on leased surplus school district property.
We trust that the above will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
GREGORY J. TRAUMAN
Assistant Attorney General
*** FOOTNOTES ***
1/RCW 28A.58.033 and RCW 28A.58.034 set forth additional requirements regarding the leasing of surplus school district property; none of these, however, appear to be at issue here. We assume, for purposes of this opinion, that any such applicable requirements have been met.
2/This principle has been recognized both in prior Attorney General opinions and in authoritative treatises. See AGO 1978 No. 10 (discussing school districts' authority to lease surplus property for commercial or noncommercial purposes under a related statute, RCW 28A.58.040); AGO 51-53 No. 348 (library district has authority to lease surplus building space to a private business firm); 10 E. McQuillin, Municipal Corporations § 28.42, at 107 (3d ed. 1981) (municipal corporation may generally lease its property which is no longer required for municipal or other public use, provided the public interest is not destroyed or diminished by such lease).
3/The particular lease that generated your opinion request involves a city as lessee, and a combined city-county health department as sublessee which operates the clinic. We know of no limitations on the latter entity's authority to operate an adolescent health care clinic. Furthermore, the lease stipulates that the city and health department shall comply fully with all applicable federal and state statutes and city ordinances.
4/Based on the information supplied in your opinion request, your question seems to contemplate a lease under which the district is receiving its standard rental rates for the use of the property. Given this factual setting, there is no possibility that the district is indirectly subsidizing an adolescent health care clinic through the disbursal of public property or public funds. (As we noted in AGO 1988 No. 2, a school district may not expend district funds for the operation of adolescent health care clinics.) Our opinion does not address the validity of a lease at a substantially reduced or nominal rental rate or an outright gift of the property, for the purpose of operating an adolescent health care clinic.