Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1974 No. 86 -
Attorney General Slade Gorton


Ability of fourth class city and county to enter into agreement under the interlocal cooperation act whereby county road funds will be expended to repair and maintain a city street; the expenditure of county road funds to maintain a nonpublic roadway on school district property; applicability of interlocal cooperation act to intergovernmental disposition of school district property.

                                                                 - - - - - - - - - - - - -

                                                                 October 8, 1974

Honorable George F. Hanigan
Prosecuting Attorney
Wahkiakum County
P.O. Box 56
Cathlamet, Washington 98612                                                                                                               Cite as:  AGLO 1974 No. 86

Dear Sir:
            This is written in response to your recent letter requesting our opinion on a number of questions involving the interlocal cooperation act, chapter 39.34 RCW, and related matters.  We will set forth the essence of those questions, together with our answers thereto, in the following analysis.
            First you have asked whether a fourth class city and a county can enter into an agreement under the interlocal cooperation act (chapter 39.34 RCW) whereby county road funds will be expended to repair and maintain a city street not forming an extension of a county road within the contemplation of RCW
             In response to this question we are enclosing a copy of our opinion of September 26, 1967, to the prosecuting attorney of Benton county.  That opinion, as you will note, involved a proposal to have the cities of Pasco and Kennewick utilize the interlocal cooperation act in connection with the repair and maintenance of a bridge across  [[Orig. Op. Page 2]] the Columbia River which was not situated within the territorial boundaries of either.  Based upon the reasoning of that opinion, we must likewise answer your initial question in the negative.
            Conversely, if the city in question were to agree to reimburse the county for its expenditures in maintaining the city street involved (again, a city street not covered by RCW 36.75.205) the initial expenditure of county road fund money or assets on the project would be perfectly permissible.  See our opinion of June 28, 1968, to the Benton county prosecutor, a copy of which is also enclosed, together with AGO 61-62 No. 159 [[to Arthur L. Hawman, Prosecuting Attorney, Walla Walla County on September 4, 1962]], copy enclosed.
            This response to your first question is also generally applicable to your similar question relating to a proposed contract between a county and a school district for the repair and maintenance of a nonpublic roadway on school district property.  Again, the interlocal cooperation act will not afford a basis for a contract under which county road funds are to be expended for such purposes on a nonreimbursable basis.  However, a "service" contract executed under that act, comparable to that involved in our June 28, 1968, opinion to the Benton county prosecuting attorney, would be valid.2/
             By your remaining questions you have raised several issues regarding the sale of school district property to another public agency.  First, you have asked whether the interlocal cooperation act, in effect, affords an alternative statutory basis for the intergovernmental disposition of property so as to allow a school district to sell its property to a port district without compliance with either RCW 39.33.010 or RCW 28A.58.045.  This question, in our judgment, must be answered in the negative.  While it is entirely possible that real property owned by one or more of the contracting parties could be transferred as part of an interlocal cooperation act agreement, as an adjunct to its ultimate purpose, we do not read that act as authority for a simple sale of land by a school district to a port district or other public agency.
             [[Orig. Op. Page 3]]
            Next you have asked whether the procedure set forth in RCW 39.33.010 is the exclusive method to be utilized in connection with a sale of school district property to another public agency.  Although such was indicated by this office to be the case in our earlier opinion of June 21, 1971, to the Franklin county prosecuting attorney [[to C. J. Rabideau an Informal Opinion, AIR-71637]], copy enclosed,3/ it no longer is ‑ because the statute has since been amended by the legislature.  See, § 1, chapter 95, Laws of 1972, Ex. Sess., which states that the provisions of RCW 39.33.010:
            ". . . shall be deemed to provide an alternative method for the doing of the things authorized herein, and shall not be construed as imposing any additional condition upon the exercise of any other powers vested in the state, municipalities or political subdivisions."
            What this means, obviously, is that in disposing of real property to another public agency, a school district may now utilize either RCW 39.33.010 or RCW 28A.58.045.  It is no longer required, as we stated in our earlier opinion, to proceed exclusively under the first of these two statutes.  Cf., our opinion of September 16, 1968, to the Chelan county prosecuting attorney, a copy of which you will also find enclosed.

            It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***
1/RCW 36.75.205 provides that a street, in a town having a population of 1,000 or less, forming an extension of a county road may by mutual agreement and resolution of the board of county commissioners and the council of the town, be constructed, improved, repaired or maintained with the expenditure of county road funds, provided that the nature and scope of the work to be performed and the share of the cost of labor each shall bear is agreed upon prior to commencement of any work.
2/In addition to the three prior opinions cited above we are also including, in connection with these two questions, copies of several other opinions we have recently had occasion to issue on questions pertaining to the interlocal cooperation act, generally.  They are AGO 1969 No. 8 [[to William R. Conte, Director, Department of Institutions on March 10, 1969]]; letter opinion dated August 9, 1971 [[an Informal Opinion AIR-71595]], to the state auditor; and letter opinion dated March 27, 1970, to State Representative Harold S. Zimmerman [[an Informal Opinion AIR-70548]].
3/Accord, Davis v. King County, 77 Wn.2d 930, 468 P.2d 679 (1970).