Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1962 No. 160 - Sep 5 1962
Attorney General John J. O'Connell


The board of directors of a second class school district has the authority under certain conditions to lease the basement of a former school building to a community organization for a community fallout shelter.

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                                                               September 5, 1962

Honorable Alf M. Jacobsen
Prosecuting Attorney
Klickitat County
Goldendale, Washington

                                                                                                              Cite as:  AGO 61-62 No. 160

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office upon the following question:

            "Has a school district of the second class the power to lease property to a community organization for a community fallout shelter, such property consisting of a former school building basement situate within the general area of school property required by the district for school purposes?"

            We answer your question in the affirmative, as explained in the analysis.


            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied in or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School District No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934).  The governing body of the district, empowered to exercise the foregoing powers, is, of course, the elected board of directors (RCW 28.58.080).  State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934).

             [[Orig. Op. Page 2]]

            The legislature has given "exclusive control" of all school property owned by the district to the board of directors thereof.  RCW 28.58.010 specifically provides:

            "A school district shall constitute a body corporate and shall possess all the usual powers of a corporation for public purposes, and in that name and style may sue and be sued, purchase, hold, and sell personal property and real estate, and enter into such obligations as are authorized by law.  The board of directors of the school district shall have exclusive control of all school buildings and other property, real or personal, owned by the district."

            RCW 28.58.040 and RCW 28.58.045, which must be read together, provide that:

            "The board of directors of each school district shall have custody of all school property belonging to the district, and may transfer it, in the name of the district: . . ."  (RCW 28.58.040.)

            and that the board of directors may:

            "(1) Sell for cash, at public or private sale, and convey by deed all interest of the district in or to any of the real property of the district which is no longer required for school purposes if the value thereof is twenty thousand dollars or less; . . ."  (RCW 28.58.045.)

            On the basis of the above provisions this office has, on several occasions, held that the power to lease must necessarily be implied from these expressed powers.  To this effect see AGO dated September 26, 1929, to G. E. Clark, Prosecuting Attorney of Yakima County; AGO dated November 14, 1951, to John Panesko, Prosecuting Attorney of Lewis County; and AGO dated February 24, 1959, to Lloyd J. Andrews, Superintendent of Public Instruction, copies of which are enclosed.  It must be pointed out however that we are not discussing those cases in which the property can be classified as, "no longer required for school purposes" and therefore surplus to the needs of the district.  RCW 28.58.045.  We are speaking only of property which is situated within the general school grounds area which is notpresently required for school purposes.

             [[Orig. Op. Page 3]]

            The problem in the past, as in the instant situation, concerns the purpose for which the buildings or lands may be leased and the conditions under which the lease may be executed.  In the informal opinion to the Honorable Lloyd J. Andrews, supra, we said:

            ". . . we conclude that under the circumstances a board of directors in the exercise of its discretion, may lease or rent space in existing school buildings to be used as offices for the nonprofit corporation where:  (1) the space is not [presently] required for school purposes; (2) the leasing or renting thereof will not interfere with the building's use for school purposes; (3) the tenancy to be granted the corporation either by a lease or rent agreement will not be for an unreasonable term so as to place this portion of the building beyond the control of the district in the event that the same should become necessary for school purposes; (4) a reasonable rental charge is imposed for the use of the space by the corporation."  (Emphasis supplied.)

            In 47 Am.Jur., Schools, § 67, p. 345, it is also noted that leases of school property are not without limitation:

            "Even in those jurisdictions wherein the use of schoolhouses for other than school purposes is recognized, certain limitations are imposed.  Unquestionably, school directors have no authority to permit schoolhouses to be used for any purpose interfering with their use as schools, and any contract providing for such use is void. . . ."  (Emphasis supplied.)

            Such conditions are equally applicable to a lease of school lands.

            It should be noted here that RCW 38.52.110 provides that the local agencies and political subdivisions of the state shall cooperate with the civil defense authorities by making available to them the facilities of such agencies and subdivisions.  Although possibly not controlling in this instance, this statute shows that the legislature has recognized that the best way to establish an effective civil defense system is to authorize the use of existing local governmental facilities to the maximum extent possible.

            In conclusion, we are of the opinion that the board of directors of a second class school district can lease property to a community organization for a community fallout shelter, if such lease meets the  [[Orig. Op. Page 4]] conditions we have quoted above.  Whether or not such a transaction, as you have outlined, could meet these conditions is a factual question which we are not in a position to answer.  However, under the facts as you have presented them and taking the transaction as a whole, it is entirely conceivable that such a lease could be validly executed.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General