AGO 1987 No. 7 - Mar 5 1987
STATE ‑- HIGHER EDUCATION COORDINATING BOARD ‑- DELEGATION OF AUTHORITY TO EXECUTIVE DIRECTOR
The Higher Education Coordinating Board may not delegate to its executive director the authority to adopt rules.
The Board may delegate authority to its executive director to administer the administrative or ministerial but not the discretionary functions described in the degree authorization act contained in chapter 28B.85 RCW.
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March 5, 1987
Honorable A. Robert Thoeny
Higher Education Coordinating Board
908 East Fifth Avenue, EW-11
Olympia, Washington 98504
Cite as: AGO 1987 No. 7
Dear Mr. Thoeny:
By letter previously acknowledged you requested an opinion of this office on two questions concerning the authority of the Higher Education Coordinating Board:
1. May the Higher Education Coordinating Board delegate authority to its executive director to adopt rules implementing various programs?
2. May the Higher Education Coordinating Board delegate authority to its executive director to administer the degree authorization act contained in chapter 28B.85 RCW?
For the reasons discussed below, we answer your first question in the negative and your second question as set forth in our analysis.
The Higher Education Coordinating Board was created by statute in 1985 as the successor agency to the Council for Postsecondary Education. RCW 28B.80.300. It is composed of nine members appointed by the Governor and approved by the Senate. The members [[Orig. Op. Page 2]] are to be representative of the public, and they serve four-year terms. RCW 28B.80.390, 28B.80.400. The purpose of the Board is to:
provide planning, coordination, monitoring, and policy analysis for higher education in the state of Washington in cooperation and consultation with the institutions' autonomous governing boards and with all other segments of postsecondary education, including but not limited to the state board for community college education and the commission for vocational education. The legislature intends that the board represent the broad public interest above the interests of the individual colleges and universities.
RCW 28B.80.320. The powers and duties of the Board are set forth in RCW 28B.80.330 and other sections of chapter 28B.80 RCW. Among these powers is the authority to adopt rules "as necessary to implement this chapter." RCW 28B.80.370.
You have asked whether the Board may delegate this rulemaking power to its executive director. An examination of the statutes creating the Board and defining the scope of its powers and duties leads to the conclusion that it has not been authorized to redelegate its rulemaking authority.
The Board is a state agency created by the Legislature. As such it enjoys only those powers expressly conferred by statute or necessarily implied in furtherance of its statutorily defined duties. Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 125, 641 P.2d 163 (1982). A specific application of this rule is the well-settled principle that a public administrative body to which discretionary functions have been delegated cannot redelegate such functions, absent express authorization. Noe v. Edmonds Sch. Dist. 15, 83 Wn.2d 97, 515 P.2d 977 (1973); Ledgering v. State, 63 Wn.2d 94, 385 P.2d 522 (1963);Roehl v. Public Util. Dist. 1, 43 Wn.2d 214, 261 P.2d 92 (1953).
The courts have consistently held that a public body may not redelegate its powers unless they are administrative or ministerial as opposed to discretionary. Bunger v. Iowa High Sch. Athletic Assn, 197 N.W.2d 555 (Iowa 1972). The reason for this rule was stated by the California Supreme Court as follows:
When the Legislature has made clear its intent that one public body or official is to exercise a specified discretionary power, the power is in the nature of a [[Orig. Op. Page 3]] public trust and may not be exercised by others in the absence of statutory authorization.
Bagley v. Manhattan Beach, 18 Cal. 3d 22, 553 P.2d 1140, 1141, 132 Cal. Rptr. 668 (1976). Similar reasoning was expressed in an earlier California case:
A delegated power, when made subject to the delegatee's judgment or discretion, is purely personal and may not be further delegated in the absence of express statutory authorization . . . Merely administrative and ministerial functions may be delegated to assistants whose employment is authorized, but there is no authority to delegate acts discretionary or quasi-judicial in nature; an administrative board cannot legally confer upon its employees authority that under the law may be exercised only by the board.
Schechter v. County of Los Angeles, 258 Cal. App.2d 391, 65 Cal. Rptr. 739 (1968) (citations omitted).
In applying this rule to the two questions you have asked, discretionary authority must be distinguished from ministerial or administrative functions. Discretion has been described as follows:
Discretion implies knowledge and prudence and that discernment which enables a person to judge critically what is correct and proper. It is judgment directed by circumspection.
Cole v. Webster, 103 Wn.2d 280, 284, 692 P.2d 799 (1984). In analyzing your first question, we have concluded that rulemaking clearly falls within this description; it involves the exercise of judgment and discretion. The issue whether rulemaking authority can be redelegated was addressed in Bunger v. Iowa High Sch. Athletic Ass'n, 197 N.W.2d 555 (Iowa 1972). The question addressed was whether a local school board could redelegate its statutorily conferred rulemaking power regarding pupils to another organization, in this case a state athletic association. Finding that rulemaking involves the exercise of judgment and discretion, the court held that this authority could not be redelegated. "While a public board or body may authorize performance of ministerial or administrative functions by others, it cannot re‑delegate matters of judgment or discretion." Bunger, 197 N.W.2d at 560.
[[Orig. Op. Page 4]]
Since there can be no redelegation of rulemaking power absent express authorization, the question becomes whether there is any provision in chapter 28B.80 RCW that can be construed as such an express grant. We have found no language that we believe can be construed as such. Under RCW 28B.80.430, the Board has express authority to employ an executive director and it may delegate "agency management" to the director. Further, the director "shall, under the board's supervision, administer the provisions of this chapter." Thus, the Board has express authority to delegate administrative and management responsibilities to the director. There is no broad language, however, indicating a legislative intent to empower the Board to redelegate its discretionary authority to its executive director or any other body or individual.
In support of this conclusion are other statutes in which the Legislature has expressly conferred broad power upon an agency to redelegate its authority. For example, RCW 28B.10.528, pertaining to delegation of powers by the governing boards of institutions of higher education, provides:
The governing boards of institutions of higher education shall have power, when exercised by resolution, to delegate to the president or his designee, of their respective university or college, any of the powers and duties vested in or imposed upon such governing board by law. Delegated powers and duties may be exercised in the name of the respective governing boards.
Similarly, RCW 28B.50.140, pertaining to the powers and duties of community college boards of trustees, provides:
Each community college board of trustees:
. . .
(14) May, by written order filed in its office, delegate to the president or district president any of the powers and duties vested in or imposed upon it by this chapter. Such delegated powers and duties may be exercised in the name of the district board;
. . .
The contrast between these statutes and the Board delegation statute supports the conclusion that the Legislature did not intend [[Orig. Op. Page 5]] to confer broad authority on the Board to redelgate all of its powers, or specific authority to redelegate its rulemaking power.
The executive director and staff could, of course, perform many functions on behalf of the Board in the rulemaking process. They could, for example, perform fact-gathering and research functions, prepare drafts, conduct required public hearings, and prepare the information and recommendations to be submitted to and considered by the Board prior to its taking action on proposed rules. None of these preliminary steps in the rulemaking process involves the exercise of the judgment and discretion entrusted by the Legislature to the Board. So long as that ultimate judgment is exercised by the Board, it is entirely appropriate for its executive director and staff to perform those many administrative functions involved in the rulemaking process.
Having concluded that the Board may not redelegate its rulemaking authority, we turn now to your second question, restated here for ease of reference:
May the Higher Education Coordinating Board delegate authority to its executive director to administer the degree authorization act contained in chapter 28B.85 RCW?
The degree authorization act was enacted as chapter 136, Laws of 1986. Under this act, the Higher Education Coordinating Board is given authority to undertake various activities in connection with the oversight of degree‑granting institutions in the state of Washington. For example, under RCW 28B.85.020, the Board is authorized to adopt by rule minimum standards for degree‑granting institutions regarding such matters as the granting of degrees, quality of education, unfair business practices, and financial stability. Under that same statute, the Board is authorized to investigate institutions subject to the degree authorization act and to require institutions to submit information and produce records for examination. The Board is further authorized to require degree‑granting institutions to file an approved surety bond or other security with the Board and to suspend the degree‑granting institution's authorization if its bond is cancelled. RCW 28B.85.070. The Board is also given authority to investigate complaints filed with it, to hold administrative hearings, and to take certain actions following determination of such complaints.
In reviewing the various provisions of chapter 28B.85 RCW, it is clear that many of its provisions are administrative or [[Orig. Op. Page 6]] ministerial and, therefore, can be delegated to the Board's executive director and staff. For example, RCW 28B.85.070(4) provides:
Upon receiving notice of a bond cancellation, the board shall notify the institution that the authorization will be suspended on the effective date of the bond cancellation unless the institution files with the board another approved surety bond or other security.
In our opinion, this is a ministerial function that could be performed by the executive director. This act involves no discretion and requires no judgment; cancellation of the bond automatically triggers the sending of the notice. By contrast, RCW 28B.85.080 describes a discretionary function of the Board that, in our opinion, could not be delegated to the executive director. It provides:
The board may suspend or modify any of the requirements under this chapter in a particular case if the board finds that:
(1) The suspension or modification is consistent with the purposes of this chapter; and
(2) The education to be offered addresses a substantial, demonstrated need among residents of the state or that literal application of this chapter would cause a manifestly unreasonable hardship.
The findings and determination to be made under this section require the exercise of judgment and discretion, which must be exercised by the Board.
A third area addressed in chapter 28B.85 RCW concerns the investigation of complaints and holding of administrative hearings. See, RCW 28B.85.090. Many of the functions involved in complaint investigation could be performed by the executive director and staff because they do not involve discretionary judgments. The fact-gathering and analysis stages of the investigation are administrative matters property performed by the Board's staff. The ultimate decisionmaking function in such contested cases, however, must be performed by the Board. Once the Board reaches a decision, its orders and directives can then be carried out by its staff. For example, the mailing or service of an order involves a delegable ministerial function.
[[Orig. Op. Page 7]]
Because the question you asked is phrased in broad terms, our answer and analysis are necessarily drawn in general terms. We cannot anticipate every context in which a question regarding the propriety of delegating a certain function might arise. Nevertheless, we hope that the analytical framework we have provided will be of assistance to you in determining which of the statutory powers and duties vested in the Board may be delegated. In applying this analysis to particular issues, we refer you to two Washington cases that have considered delegation questions in different contexts. InLedgering v. State, 63 Wn.2d 94, 385 P.2d 522 (1963), the court considered whether the discretionary power to suspend a driver's license may be delegated by the Director of the Department of Licensing. The court held that, absent express authorization, this discretionary power could not be delegated. In reaching this holding, however, the court made it clear that only the basic responsibility for exercising the discretionary power of decision could not be delegated. There were many other steps before the ultimate decisionmaking stage in which the assistance of employed professional staff was obviously necessary and desirable. The court indicated that gathering, collating, and presenting facts; making recommendations; and preparing, signing, and mailing notices in the name of the Director are all delegable duties.
InPerce v. Lake Stevens Sch. Dist. 4, 84 Wn.2d 772, 529 P.2d 810 (1974), the delegation issue considered was whether a school district's board of directors could delegate certain functions to the school staff in connection with decisions to nonrenew probationary teachers. The court held that the Legislature had placed the ultimate responsibility for making the determination of nonrenewal in the board of directors, but that the board had not improperly delegated its authority in this case. Id. at 782. The court observed that it was entirely appropriate for the board to rely upon its administrative staff in determining which teaching positions and which programs should be eliminated. The court observed that this was the only practical manner in which necessary information could be generated. In reaching this conclusion, the court offered the following reasoning:
Statutes should always be given a reasonable construction and we cannot conceive that the legislature intended that school directors should perform the functions of professionals trained in the administration of schools, as well as those of making the policy decisions and final judgments which are required of them by express statutory enactment. We see no reason to read into the act a legislative intent to place such unreasonable [[Orig. Op. Page 8]] restrictions upon the power of the school directors to utilize the services of their administrative employees in reaching the determinations they are required to make.
While the line between administrative and discretionary functions may not always be clear, the reasoning set forth in these cases, as well as the language contained in chapter 28B.85 RCW, provides substantial guidance in determining which functions the Board may delegate to its executive director and staff. The Legislature expressly authorized the Board to employ a director and staff, and therefore it contemplated that the professional staff perform many functions and services on behalf of the Board. So long as the ultimate decisionmaking function is reserved to the Board in areas where the Legislature specified the Board should exercise discretion, the rule against redelegation will not be violated.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
SALLY P. SAVAGE
Senior Assistant Attorney General