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Bob Ferguson

AGLO 1975 No. 25 -
Attorney General Slade Gorton


Under existing law, a noncharter county may not expend federal revenue sharing moneys to fund a portion of the operation of a day care center for children of working mothers which is operated by a nonprofit corporation; however, to the extent permitted by Article VIII, § 7 of the state constitution such authority would be granted by the passage of House Bill No. 384 or Senate Bill No. 2151, currently pending before the 1975 legislature.

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                                                                  March 11, 1975

Honorable Mary Kay Becker
State Representative, 42nd District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 25

Dear Representative Becker:

            This letter is in response to your recent communication in which you have inquired whether a county which does not operate under a home rule charter may spend moneys received under the State and Local Assistance Act of 1972 to fund "a portion" of the operation of a day care center for children of working mothers which is operated by a nonprofit organization.

            We respond to this question in the manner set forth below.


            Pursuant to the State and Local Fiscal Assistance Act of 1972 (often referred to as the federal revenue sharing act), the federal government disburses federal funds (or "entitlements") to state and local units of government for "priority expenditures."  As defined in 31 U.S.C.A. § 1222, this latter term means only the following:

            "(1) ordinary and necessary maintenance and operating expenses for‑-

            "(A) public safety (including law enforcement, fire protection, and building code enforcement),

            "(B) environmental protection (including sewage disposal, sanitation, and pollution abatement),

            "(C) public transportation (including transit systems and streets and roads),

            "(D) health,

            "(E) recreation,

            "(F) libraries,

             [[Orig. Op. Page 2]] "(G) social services for the poor or aged, and

            "(H) financial administration; and

            "(2) ordinary and necessary capital expenditures authorized by law."

            For the purposes of this opinion we will assume that the proposed expenditures for the operation of a day care center with which you are concerned would meet the requirements of subpart (G) of this section ‑ an assumption which, necessarily, would require that they be limited to the funding of a day care center for children of the poor or aged.1/

            However, beyond that restriction, there is another also to be noted.  A further section of the federal act, 31 U.S.C.A. § 1243, provides that:

            "In order to qualify for any payment under subchapter I of this chapter [Chapter 24‑- Fiscal Assistance to State and Local Governments] for any entitlement period beginning on or after January 1, 1973, a state government or unit of local government must establish . . . to the satisfaction of the secretary that‑-

            ". . .

            "(4) it will provide for the expenditure of amounts received under subchapter I of this  [[Orig. Op. Page 3]] chapter only in accordance with the laws and procedures applicable to the expenditure of its own revenues; . . ."  (Emphasis supplied.)

            Accordingly, it is necessary to determine whether the proposed expenditures described in your letter would be legally permissible at this time for counties under Washington law if made with their own local revenues.  Our first task, therefore, is to identify any current authority which would permit counties to provide day care services in some matter ‑ for with the exception of counties operating under their own charters as permitted by Article XI, § 4 (Amendment 21) of the state constitution, counties in this state are vested only with those powers specifically granted by the legislature or necessarily implied therefrom.  See,State ex rel. Port of Seattle v. Supr'r Ct., 93 Wash. 267, 160 Pac. 755 (1916); and Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  And, as we observed in AGO 1973 No. 18 [[ to Robert V. Graham, State Auditor on August 2, 1973]], copy enclosed, the term "necessarily" for purposes of this rule has been regarded as meaning a legal necessity; i.e., a finding from the language of a particular statute that the legislature actually intended to grant the power in question as an incident to some other expressly granted power or duty.

            Secondly, since your question involves a proposal to use revenue sharing moneys to fund the operation of a day care center by a nonprofit corporation rather than by the county itself, it is necessary also to consider the form of the expenditure.  In AGO 1973 No. 18,supra, this office concluded that a county was precluded fromdonating revenue sharing funds to a nonprofit corporation which operated a senior citizens' center by reason of Article VIII, § 7 of the state constitution which provides that:

            "No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."

            In that opinion we pointed out that gratuitous contributions of public funds to private nonprofit corporations for any purpose are constitutionally prohibited even though the ultimate beneficiaries of such expenditures of public funds, as the "poor or infirm" to whom reference is specifically made in Article VIII, § 7, might be otherwise eligible for direct assistance from a public agency.  See also AGO 57-58 No. 154 [[to John C. Merkel, Prosecuting Attorney, Kitsap County on February 10, 1958]], a copy of which is attached.

             [[Orig. Op. Page 4]]   Our review of the current statutes and other authorities indicates that there is at present no statutory authorization for counties to provide child care services such as would be involved in the operation of a day care center.  Thus, in view of the above analysis of the federal revenue sharing act our ultimate answer to your question under the existing laws of our state would probably have to be in the negative, irrespective of whether or not this constitutional prohibition would also pose an obstacle to the plan involved.2/

            On the other hand, we note that two identical bills which are currently pending before the legislature would, if enacted,  [[Orig. Op. Page 5]] expressly authorize cities, towns and counties to provide for such services either directly or by contract with other agencies ‑ including nonprofit organizations.  See, House Bill No. 384 and Senate Bill No. 2151.  The authorization which would thus be given to local governments to obtain such services by contract would be consistent with the view that public agencies which have been authorized to implement specific programs may use appropriate and reasonable means for such purposes.  Accord, our informal opinions to the prosecuting attorney for Pierce county, dated April 5, 1974 [[to Ronald L. Hendry an Informal Opinion AIR-74607]], and to former Senator Robert Greive, dated January 26, 1967, copies of which are also enclosed.  And by the same token, the use of a bona fide contract for services ‑ as opposed to a mere grant or gift of funds to subsidize the operations of a private corporation ‑ would in all probability avoid any constitutional problems under Article VIII, § 7,supra.  With respect to this latter point, we would caution, however, as we also did in our above noted opinion to the Pierce county prosecutor, that any county expenditures under such a contract would have to be limited to periodic payments for services actually rendered for the county by the corporation.


            We conclude, therefore, that a county may use general revenue sharing moneys to fund a portion of the operations of a day care center maintained by a private, nonprofit corporation, provided the legislation such as HB No. 384 or SB No. 2151 is enacted3/ and on the further condition that the county enters into a bona fide contractual relationship with the private agency to obtain the services it is thereby authorized to provide.

            We trust that you will find these comments responsive to your inquiry.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In response to our earlier request you have submitted information indicating that day care services to be made available by the nonprofit organization in question would be for families of low income as recognized by federal and state standards.   The role of day care services in an integrated program of social and economic assistance is now well recognized and thus falls within the range of programs for amelioration of poverty and employment which have traditionally been recognized as public in nature.  See,State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933).

2/We say "probably" only for the sake of not foreclosing a possible use of Article XI, § 11 of our state constitution which provides that:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

            Although we would regard the enactment of specific enabling legislation such as House Bill No. 384 or Senate Bill No. 2151, infra, as the safer and surer way to go, it is possible that the same result could be obtained in a given county through the enactment of an ordinance under this constitutional provision.  Accord, AGO 47-49-502 [[to Lawrence Hubble, Chief Examiner, Division of Municipal Examiners on January 3, 1949]], copy enclosed, in which we said that the police powers of a fourth class city were sufficiently broad to permit the operation of an ambulance in the absence of specific statutory authority.  Such an ordinance would require a recitation that the provision of child care services was necessary for the health, safety and welfare of the locality, and if it were to permit the county to contract for such services and facilities in addition to allowing their direct establishment it would be subject to those same limitations attendant on statutes providing similar authorization, as are discussed elsewhere in this opinion.

3/Or, possibly, if a comparable ordinance is adopted at the local level under Article XI, § 11, supra.