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AGLO 1979 No. 3 -
Attorney General Slade Gorton


Extent of the legal ability of the Department of Social and Health Services, in the light of an existing collective bargaining agreement, to contract for the performance of crisis intervention services as proposed by Senate Bill No. 2036 (1979), amending RCW 74.13.031.

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                                                                 January 17, 1979

Honorable Alan Bluechel
State Senator, 45th Dist.
115-A Inst. Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1979 No. 3

Dear Senator Bluechel:

            By recent letter you directed our attention to so much of Senate Bill No. 2036 (currently pending before the legislature) as would amend RCW 74.13.031 to read as follows:

            "The department [of social and health services] shall have the duty to provide child welfare services as defined in RCW 74.13.020, and shall:

            ". . .

            "(5)Contract with local agencies for all levels of crisis intervention services to the maximum extent feasible and to avoid duplicate service delivery systems for crisis intervention services wherever possible.

            ". . ."

            You then requested our opinion as to ". . . whether Senate Bill No. 2036 can legally be implemented by the  [[Orig. Op. Page 2]] Department of Social and Health Services . . ." in view of one of the provisions of its reported existing collective bargaining agreement covering public assistance employees.

            We respond to your inquiry in the manner set forth in our analysis.


            As we understand it, the Department of Social and Health Services is now providing crisis intervention services to families who are in conflict through its own agency employees (rather than by contract) in accordance with its administrative interpretation of the earlier amendment to RCW 74.13.031 contained in § 22, chapter 291, Laws of 1977, 1st Ex. Sess.1/   Accord,Cunningham v. Community College Dist. No. 3, 79 Wn.2d 793, 489 P.2d 891 (1971) and the even more recent decision of our state supreme court inWashington Federation of State Employees v. Spokane Community College, 90 Wn.2d 698, . . . . P.2d . . . . (1978) holding that in the absence of an express statute to the contrary it is impermissible for a state agency to contract with an outside organization for the performance of services which could otherwise be, or have traditionally been, performed by state civil service employees.  Thus, in essence what Senate Bill No.  [[Orig. Op. Page 3]] 2036,supra, represents is a limited effort by the legislature to alter thisstatus quo through the enactment of a "statute to the contrary;"i.e., not merely to authorize but, further, to require DSHS to cease using its own employees in providing crisis intervention services and, henceforth, to contract with outside agencies for the performance of those services,

            ". . . to the maximum extent feasible and to avoid duplicate service delivery systems for crisis intervention services wherever possible."

            We next turn to the collective bargaining agreement referred to in your letter.  That agreement, as duly executed between DSHS and the Washington Federation of State Employees, covers employees in the public assistance segment of the department's field of responsibility through (as we understand it) December 31, 1979.  Insofar as is here pertinent the agreement reads as follows:

            "Management retains those rights based on law or state rules and regulations to contract and subcontract work, provided that Management will not contract or subcontract work when such action will lead to the elimination or supplanting of classified positions."

            Given the foregoing facts and circumstances we would respond to your question as follows‑-assuming the passage of Senate Bill No. 2036 in its present form:

            (1) First, obviously, once the term of the existing collective bargaining agreement comes to an end, the Department of Social and Health Services will be entirely free to respond to this legislative directive without the impediment of any conflicting contractual commitment to the contrary.  In fact, at that point in time it would be legally improper for the department to renew the contract in its present form without qualifying the above‑quoted portion thereof in the light of this (now proposed) intervening statutory amendment.

            (2) Secondly, even before then it would seem to be possible (at least) that the department could affirmatively respond to the legislative amendment by contracting with outside agencies for the performance of crisis intervention services while,  [[Orig. Op. Page 4]] at the same time, neither eliminating or supplanting any existing classified positions at all.  In that manner, both the statute and the contract could be fully honored without a conflict arising between the two.

            (3) Conversely, without regard to the terms of the collective bargaining agreement, it is also foreseeable that following passage of the bill the department nevertheless might simply find it not feasible, for any number of reasons, to contract with outside agencies for the performance of crisis intervention services and, having so determined, continue to utilize its own classified employees for the performance of those services.  Such an administrative determination by the department, while not conclusive, would be entitled to considerable weight in court should the matter ever be litigated for, seemingly, the feasibility of one approach over the other would be a question largely to be decided by the department itself.

            (4) Finally, along the same line the very existence of the above‑quoted provision of the collective bargaining agreement might very well, in and of itself, represent a legitimate basis for a finding by the department that it is not now feasible (during the reminder of the term of the agreement) to contract with outside agencies for the performance of crisis intervention services.  In all probability the department would be faced with a suit for breach of contract by the union representing its employees if it were to do otherwise and, as a result, were to lay off some or all of those classified employees who are currently involved in the program.

            Having so advised you on the basis the pertinent language of Senate Bill No. 2036 as drafted, we need not here reach the further question of whether a differently worded bill, containing an unqualified legislative mandate to the Department of Social and Health Services, coupled with a purely hypothetical state of facts which would require the elimination of existing classified positions within the department in order to respond to such a mandate, would be constitutionally enforceable during the remainder of the term of the collective bargaining agreement.  See Wash. Const., Article I, § 23 regarding legislation impairing the obligations of contracts.  We therefore express no opinion on that question in responding to your immediate request as above stated.2/

                         [[Orig. Op. Page 5]]

            We trust that the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Insofar as is here material this earlier amendment simply directed the department to ". . . offer, on a voluntary basis, crisis intervention to families who are in conflict . . ." and then briefly defined these services as follows:

            "Crisis intervention services (a) shall consist of an interview or series of interviews with the child or his or her family, as needed, conducted within a brief period of time by qualified professional persons, and designed to alleviate personal or family situations which present a serious and imminent threat to the health or stability of the child or the family; and (b) may include, but are not limited to, the provision of or referral to services for suicide prevention, psychiatric or other medical care, or psychological, welfare, legal, educational, or other social services, as appropriate to the needs of the child and the family."

2/While this question of a possible contract impairment was recently addressed in a memorandum opinion written on January 8, 1979, by Richard M. Montecucco, Senior Assistant Attorney General, to Frank M. Hensley, Principal Management Auditor, Legislative Budget Committee, you should be advised that Mr. Montecucco was there merely expressing his own personal opinion and, in so doing, was responding to an abstract legal question not involving any of the qualifying circumstances which we have identified and discussed in this opinion.