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AGLO 1974 No. 48 -
Attorney General Slade Gorton


An intermediate school district may not contract with local school districts within its boundaries to establish and operate a special education program for handicapped children on behalf of those local districts, although it may provide support services to the district in connection with such programs.

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                                                                   April 16, 1974

Honorable Robert K. Leick
Prosecuting Attorney
Skamania County
Stevenson, Washington 98648                                                                                                               Cite as:  AGLO 1974 No. 48
Dear Sir:
            By letter previously acknowledged you have requested our opinion on two questions relating to the authority of an intermediate school district.  We paraphrase your questions as follows:
            (1) May an intermediate school district contract with local school districts within its boundaries to establish and to operate a special education program for handicapped children on behalf of those local districts?
            (2) For what purposes, if any, may an intermediate school district hire professional certificated personnel (e.g., classroom teachers, psychologists, speech therapists, audiologists and professional administrators) by direct contract with the ISD?1/
            We answer question (1) in the negative and question (2) in the manner set forth in our analysis.
            The questions you have raised relate to the authority of an intermediate school district (ISD) to provide educational services.  As a statutorily created  [[Orig. Op. Page 2]] political subdivision of the state, such a district is subject to the basic principle that political subdivisions may exercise only those powers expressly granted them by the legislature, those necessarily or fairly implied or incident to the powers granted, and those essential to the declared objects and purposes of such subdivisions.  Pacific Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947), and cases cited therein.  With this principle in mind, we turn to an examination of the statutes pertinent to your questions.
            The statutes establishing ISDs and enumerating their powers are found in chapter 28A.21 RCW.  RCW 28A.21.010 sets forth the purposes of such districts and provides, in part, that they shall serve ". . . as regional educational service agencies which will provide cooperative and informational services to local school districts; . . ."  The scope of an ISD's authority to provide services to local school districts is further delineated in RCW 28A.21.086, as follows:
            "In addition to other powers and duties as provided by law, every intermediate school district board shall:
            "(1) Comply with rules or regulations of the state board of education and the superintendent of public instruction.
            "(2) If the district board deems necessary, establish and operate for the schools within the boundaries of the intermediate school district a depository and distribution center for films, tapes, charts, maps, and other instructional material as recommended by the school district superintendents within the service area of the intermediate school district.
            "(3) Establish cooperative service programs for school districts within the intermediate school district:  Provided, That on matters relating to cooperative service programs the board and superintendent of the intermediate school district shall seek the prior advice of the superintendents of local school districts within the intermediate school district."  (Emphasis supplied.)
             [[Orig. Op. Page 3]]
            Question (1):
            The essence of your first question is whether an ISD may, on behalf of the common school districts within its boundaries, establish and assume responsibility for the full operation of an education program for the students of those districts as if it were, itself, a common school district.
            The key phrase in RCW 28A.21.086, supra, is "cooperative service programs."  Thus, it is not all types of programs which an ISD is authorized to establish but rather only cooperative programs and furthermore, only cooperative programs of a service nature.  While there is no definition of the phrase "cooperative service programs" in chapter 28A.21 RCW, we think that some idea as to its intended meaning may be drawn from the portion of RCW 28A.21.010 quoted above.  That statute states that one of the purposes of the several ISDs is to act as
            ". . . regional educational service agencies which will provide cooperative and informational services to local school districts; . . ."  (Emphasis supplied.)
            We interpret this section as meaning that an ISD is designed to assist the local districts located therein by helping coordinate their activities and by providing informational, consulting, and other supportive services.  We do not read it as authorizing an ISD to assume the operation of any regular common school district programs itself.  Under our view an ISD may assist such school districts in planning and establishing their own special education programs for handicapped children, but it could not itself operate those programs on behalf of the districts.  In other words, there may be a cooperative service program which is designed to assist in the establishment and coordination of such special education programs, but the two programs are distinct, and the actual instructional program for handicapped children would not come within the phrase "cooperative service program."
            Our view as to the appropriate role of an ISD in connection with special education programs for handicapped children is reinforced by certain other statutory provisions.  RCW 28A.21.088(2) provides that every ISD shall "Cooperate with the state supervisor of special aid for handicapped children as provided in chapter 28A.13 RCW . . ."  Thus, in order to determine the scope of an ISD's  [[Orig. Op. Page 4]] authority in this area, it is necessary to refer to that RCW chapter.2/
             Chapter 28A.13 RCW deals with special education programs for handicapped children.  The purpose of this chapter, as stated in RCW 28A.13.005, is
            ". . . to ensure that all handicapped children as defined in RCW 28A.13.010 shall have the opportunity for an appropriate education at public expense as guaranteed to them by the Constitution of this state."
            RCW 28A.13.030 sets forth the different ways by which that objective may be achieved, as follows:
            "The board of directors of each school district, for the purpose of compliance with the provisions of this chapter, RCW 28A.24.100 and 28A.41.053, shall cooperate with the superintendent of public instruction and with the administrative officer and shall provide an appropriate educational opportunity and give other appropriate aid and special attention to handicapped children in regular or special school facilities within the district or shall contract for such services with other agencies as provided in RCW 28A.13.045 or shall participate in an interdistrict arrangement in accordance with RCW 28A.58.075 and 28A.58.240 and/or 28A.58.245 and 28A.58.250."  (Emphasis supplied.)
            From the emphasized portion of this statute it would seem clear that it is the local school districts,  [[Orig. Op. Page 5]] and not their ISD, that are directed and authorized to provide these special education programs.3/
             It is also significant that RCW 28A.13.030, supra, expressly lists the following three possible methods of compliance:  (1) a school district may operate the program itself in its own facilities; (2) a school district may contract with other agencies approved by the state board of education to provide the program; or (3) a school district may participate in an interdistrict arrangement, as provided in RCW 28A.58.075, 28A.58.240 and/or 28A.58.245 and 28A.58.250.
            The rule of statutory construction which is pertinent here was expressed in the case of State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 282, 146 Pac. 630 (1915), as follows:
            ". . .  But where a person or board is charged by law with a specific duty, and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result.  . . ."
            In other words, the fact that three methods of compliance have been expressly set forth by the legislature gives rise to an inference that those methods are the only permissible ones.  Therefore, unless one of those methods can be said to authorize school districts to utilize their ISD to operate a special education program for them, it must be concluded that such operation is not allowable.
            It is apparent that the first method of compliance precludes an ISD's operation of the program, since, by definition, it is the local district itself which is providing the program.  As for the second method, this allows such a district to contract for special education services with "other agencies as provided in RCW 28A.13.145 . . ."  And this statute in turn provides that:
             [[Orig. Op. Page 6]] "For the purpose of carrying out the provisions of RCW 28A.13.010 through 28A.13.040, the board of directors of every school district shall be authorized to contract with agencies approved by the state board of education for operating handicapped programs.  Approval standards for such agencies shall conform substantially with those promulgated for approval of special education aid programs in the common schools."
            An ISD could, however, only be included within this reference to "agencies" in the event that it, like the school districts themselves, possessed the statutory authority to establish and operate a special education program for those school districts ‑ and we have already concluded that the statutes relating to ISDs in chapter 28A.21 RCW, supra, do not grant such authority.  Moreover, an examination of WAC 392-45-135 through 392-45-160 indicates that "other agencies," as that phrase is used in RCW 28A.13.030, supra, has in fact been interpreted administratively to exclude ISDs.  For example, WAC 392-45-135 provides that:
            "School districts, severally or jointly, with the approval of the superintendent of public instruction, shall be authorized to contract with nonpublic school agencies for appropriate educational opportunities for handicapped children, as defined in RCW 28A.13.045."  (Emphasis supplied.)
            Therefore, we conclude that the second permissible method for the conduct of special education programs by common school districts cannot be read as authorizing an ISD to contract with a local school district to provide the latter with a special education program for its handicapped children.  And finally, the third permissible method of compliance with RCW 28A.13.005, supra, deals with interdistrict arrangements entered into pursuant to RCW 28A.58.075.  By its terms, that statute pertains to agreements between school districts, and as already indicated, ISDs are not "school districts."
            In summary then, it is our opinion that both chapter 28A.21 RCW and 28A.13 RCW contemplate that the special education programs for handicapped children required by the latter shall be operated by the local school districts, and that ISDs are not authorized to assume the operation of such programs on behalf of those districts.  ISDs may, however, assist in the planning and establishment of such  [[Orig. Op. Page 7]] programs through their "cooperative service programs" as provided for in RCW 28A.21.086, supra.
            Moreover, the conclusion we have here reached does not mean that an ISD's involvement must end once the actual special education program has been established and is in operation.  In most cases, there will no doubt be a continuing need for the sorts of supportive services that an ISD is authorized to provide through its cooperative service programs.  Such supportive services could include the provision of managerial and technical advice (consultive services), as well as the provision of what are generally referred to as "itinerant" personnel (i.e., specialized personnel such as psychologists and communication disorder specialists whose services are supportive of the local districts' programs, and who serve on a part-time basis in two or more districts).  The critical point, however, is that the services provided by an ISD must be offered merely in support of a program operated and administered by the local school districts; they may not be of such nature or scope as to constitute operation of the actual special education program, or a substantial portion thereof, by the ISD itself.
            Question (2):
            Your second question asks whether an ISD is authorized to hire various types of professional certificated personnel "by direct contract with the intermediate school district."  If by this question you are simply asking whether such persons may be employed by an ISD, the answer is yes.  While no statutory provision expressly lists such individuals, RCW 28A.21.100 provides that an ISD superintendent
            ". . . may appoint with the consent of the intermediate school district board of education assistant superintendents and such other professional personnel and clerical help as may be necessary to perform the work of the office . . ."  (Emphasis supplied.)
            In addition, RCW 28A.21.105 and 28A.21.106 deal with employment and discharge of "certificated employees."  Based on these statutes, we conclude that an ISD has the authority to hire the listed persons.
            However, if by your second question you are asking whether an ISD has the authority to hire such persons in order to operate a special education program for handicapped children, then our answer would be no, based on our negative answer to your first question.  In our opinion, an ISD is to serve its local districts by providing consulting services and helping the districts organize and operate their own  [[Orig. Op. Page 8]] programs.  Thus, there would be nothing wrong with an ISD employing a speech therapist, for instance, to provide advice and assistance to its local districts in operating their programs or to act as an "itinerant" specialist, as discussed above.  The key is that an ISD would be providing support to a school district program, rather than itself operating the program.  In other words, the day-to-day management and operation of the special education program must be effected through one of the methods permitted by RCW 28A.13.030, but this does not preclude an ISD from providing services to aid in developing and improving that program.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General

                                                         ***   FOOTNOTES   ***
1/In your letter you asked a third question, relating to calculation of the teacher-administrative staff ratio by the state superintendent of public instruction's office.  Since the question was predicated on an affirmative answer to question (1), it has been rendered moot by our negative response to that question.  Therefore, we have deleted it from the body of this opinion.
2/Even if this express reference were not present, however, it would still be necessary to take the provisions of chapter 28A.13 RCW into consideration because of RCW 28A.98.040, which requires that
            "The provisions of this title, Title 28A RCW, shall be construed in pari materia even though as a matter of prior legislative history they were not originally enacted in the same statute.  . . ."
            Therefore, in construing any statute in Title 28A RCW, one must consider its relationship to all of the statutory provisions in the title, rather than simply reading a particular section by itself.
3/It might be contended that the term "school district" in RCW 28A.13.020 includes intermediate school districts.  However, previous opinions of this office have consistently held that intermediate school districts are not "school districts," as that term is used in Title 28A RCW.  See our opinions to the King county prosecuting attorney dated October 31, 1969, and to the state auditor dated August 18, 1972 [[to Robert V. Graham, State Auditor an Informal Opinion AIR-72564]].