AGO 1962 No. 142 - Jun 7 1962
OFFICES AND OFFICERS ‑- BOARD OF TRUSTEES ‑- STATE COLLEGES ‑- AGREEMENT WITH FEDERAL GOVERNMENT TO PROVIDE RELOCATION SITE.
The board of trustees of any of the state colleges and the governor have the authority to enter into an agreement with the United States Treasury Department whereby certain college buildings will be designated as a relocation site for the district offices of the internal revenue service.
- - - - - - - - - - - - -
June 7, 1962
Honorable Ensley Llewellyn
Director, Department of Civil Defense
P.O. Box 519
Cite as: AGO 61-62 No. 142
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
Does the board of trustees of Western Washington State College have the authority to enter into an agreement with the United States Treasury Department under the terms of which certain college buildings will be designated as a relocation site for the district offices of the internal revenue service?
We answer your question in the affirmative as qualified in our analysis.
The governing body of Western Washington State College is the board of trustees consisting of five members appointed by the governor with the consent of the senate. See, RCW 28.81.020. Since the college is an agency of the state created by statute, the board of trustees has only those powers expressly given it by statute or necessarily implied therefrom. See,State ex rel. Eastvold v. Maybury, 49 Wn. (2d) 533, 304 P. (2d) 663 (1956);State ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860, 239 P. (2d) 545 (1952).
The general powers and duties of the board of trustees applicable to your question are set forth in § 4, subchapter 3, chapter 97, Laws of 1909, page 252. This statute provides in pertinent part as follows:
[[Orig. Op. Page 2]]
"Each board of . . . trustees shall have power, and it shall be its duty‑-. . . Fourth: To have charge of the erection of all buildings pertaining to the school, unless otherwise expressly provided, and to have the care and management of all buildings and other property belonging to the school. . . ." (Emphasis supplied.) (Cf. RCW 28.81.050 (6).)
From the foregoing statute it is quite apparent that the legislature has vested in the board of trustees broad discretion concerning the use and management of all property belonging to the institution. We are enclosing for your information a copy of AGO 59-60 No. 75, in which we discuss at length the authority granted by the legislature to the board of regents of the University of Washington regarding the use to be made of the facilities and property at that University. In that opinion we stated:
"We think it is clear, therefore, that the legislature has delegated to the board of regents full discretionary power over the use to be made of the university property and facilities subject only to legislative review, and that the exercise of such discretion will not meet court interference in the absence of abuse. 14 C.J.S., Colleges and Universities, § 14; State v. Regents of Univ. Systems (Ga.) 175 S.E. 567. . . ."
In the instant case the board of trustees of Western Washington State College has been requested to enter into an agreement under the terms of which certain buildings, or rooms in buildings, will be designated as relocation sites for the district offices of the internal revenue service. The site will be used in the event of a nuclear attack upon the country to provide continuation of government. In the selection of relocation sites the state, as well as the federal government, has given preference to existing public buildings which are located outside potential target areas.
Under the agreement here in question, relocation of the federal agency would not take place until such time as a nuclear attack had occurred or had at least become imminently probable. However, the site will of necessity have to be prestocked with essential records and supplies and during test exercises will be occupied by the skeleton crew of essential personnel.
[[Orig. Op. Page 3]]
It is an accepted fact by state and federal authorities that in the event of a nuclear attack the normal education program at Western Washington State College will be suspended, at least for a limited time. Hence at that time there could be no conflict between the use desired to be made by the federal government and the ordinary educational functions of the college. As we pointed out in AGO 61-62 No. 117 [[to Superintendent of Public Instruction on April 19, 1962]], a copy of which is enclosed, it is necessarily implied that noneducational use of property should not be permitted to interfere with the primary purpose of any school. However, we believe that the board of trustees may conclude that the limited use of facilities by essential personnel during test exercises will be for a public purpose and will not to any degree interfere with the ordinary educational programs being conducted by the institution.
Accordingly, we believe that if the board of trustees desires or believes it to be in the public interest to authorize the federal government to use certain rooms in buildings located on the campus as a relocation site for district offices of the internal revenue service, said board has the authority to permit such public use. However, in view of the fact that our legislature has directed the governor of this state to utilize facilities of existing departments, offices and agencies of the state to the maximum extent practical to carry out the provisions of the civil defense act (see, RCW 38.52.110) we believe the governor as well as the board of trustees must sign any agreement with the federal government for said use of the property or facilities of the college for civil defense purposes.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIER
Assistant Attorney General