Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1978 No. 21 -
Attorney General Slade Gorton


Properly interpreted, the provisions of WAC 180-16-205(4)(b) constitute a legally defensible administrative regulation of the state board of education in implementation of the requirement of RCW 28A.41.140 that annual average full time equivalent classroom teacher's direct classroom contact hours shall be at least twenty-five hours per week.

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                                                                    July 19, 1978

Honorable Art Clemente
State Representative, 39th Dist.
4422 228th S.E.
Bothell, Washington 98011                                                                                                               Cite as:  AGLO 1978 No. 21

Dear Sir:

            By recent letter you requested our opinion regarding the validity of a certain administrative regulation recently adopted by the state board of education in conjunction with RCW 28A.41.140 as amended by § 5, chapter 359, Laws of 1977, 1st Ex.Sess.  We respond in the manner set forth in our analysis below.


            As amended by chapter 359, supra,1/ RCW 28A.41.140 now includes the following directive with regard to public school classroom teachers:

            ". . .  Annual average full time equivalent certificated classroom teacher's direct classroom contact hours shall be at least twenty-five hours per week.  Classroom contact hours shall be exclusive of time required to be spent for preparation, conferences, or any other nonclassroom instruction duties. . . ."

             [[Orig. Op. Page 2]]   Also to be noted is RCW 28A.41.130, as amended by § 4, chapter 359, supra, which vests responsibility for the administration of the state's annual allocation of basic education funds (in accordance with RCW 28A.41.140,supra) in the state board of education.  Acting pursuant to this latter statute it appears that the state board, following the enactment of chapter 359, supra, adopted an implementing administrative regulation since codified as WAC 180-16-205.  Your question involves the validity of a portion of that regulation; namely, WAC 180-16-205(4)(b) which provides that in the computation of annual average direct classroom teachers,

            "Up to two hundred minutes as determined by the school district board of directors per average annual full-time equivalent classroom teacher for every five school days scheduled for the regular instructional school year . . ."

            may be added to the actual number of hours (60 minutes each) when teachers are scheduled to be in contact with and instructing students.  The apparent rationale for this regulation, in turn, is then set forth in the next ensuing sentence thereof as follows:

            ". . .  Up to two hundred minutes per week per average annual full-time equivalent classroom teacher is provided in order to reasonably account for informal, unstructured, instruction related contact with students."

            There are two basic legal principles to be noted in conjunction with the legal significance of this administrative regulation.  The first of these derives from the state supreme court's recognition that administrative agencies charged by law with the enforcement of a statute may make such interpretations of the statute as are necessary to "fill in the gaps."  See, e.g.,Hama Hama v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975) where, at p. 448, the court expressed itself as follows:

            ". . .  At times, administrative interpretation of a statute may approach 'lawmaking,' but we have heretofore recognized that it is an appropriate function for administrative agencies to 'fill in the gaps' where necessary to the effectuation of a general statutory scheme.  See  [[Orig. Op. Page 3]] Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wn.2d 155, 500 P.2d 540 (1972).  It is likewise valid for an administrative agency to 'fill in the gaps' via statutory construction‑-as long as the agency does not purport to 'amend' the statute."

            The second principal which is relevant here involves the last above‑stated qualification on the first; i.e., as once again recently held by the Washington supreme court inIn Re George, 90 Wn.2d 90,   P.2d    (1978),

            ". . . that an administrative agency may not, by interpretation, amend or alter the statutes under which it functions. . . ."

            Applying these legal principles to the above‑quoted provisions of WAC 180-16-205,supra, it is our opinion that the state board's adoption of this regulation constitutes what we would describe as a "legally defensible" action by the administrative agency involved.  By this we mean, simply, that if the regulation should be challenged in court in the manner contemplated by the state administrative procedures act2/ it would be possible to present reasonable legal arguments to the court in support of the regulation, properly interpreted.

            It is further our opinion, however, that the only proper and defensible interpretation of the regulation, as currently drafted, is that it is limited to specific instances (as factually determined by each school board) of actual informal contact of an instructional nature between one or more students and a teacher in a classroom at times other than during  [[Orig. Op. Page 4]] formal class periods; e.g., times otherwise scheduled for recess, class change, lunch periods and so forth.  Moreover, as we read the regulation, any such contact time must actually be accounted for by the school district in each instance in which it is claimed.  Otherwise (i.e., if such time was not required to be thus accounted for), the regulation would not merely constitute a permissible administrative interpretation of the statutorily undefined term "direct classroom contact hours" but, instead, it would be a legally ineffective and indefensible attempt to the state board of education to amend the subject statute.

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

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Commonly known as the 1977 Basic Education Act.

2/See, particularly, RCW 34.04.070 which provides, in material part, that:

            "(1) The validity of any rule may be determined upon petition for a declaratory judgment thereon addressed to the superior court of Thurston county, when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the petitioner.  The agency shall be made a party to the proceeding.  The declaratory judgment may be rendered whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.

            ". . ."