AGLO 1970 No. 12 - Jan 26 1970
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January 26, 1970
Honorable Thomas A. Swayze, Jr.
State Representative, 26th District
Olympia, Washington 98501
Cite as: AGLO 1970 No. 12
This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:
May a first class charter city, pursuant to the powers granted to such cities by Article XI, § 10 of the Washington Constitution, designate itself as a local community action agency in accordance with the 1967 amendments to the federal economic opportunity act of 1964 (i.e., Public Law 88-452, as amended by Public Law 90-222)?
You have indicated interest in this question because of the current pendency before the House of Representatives of a bill (H.B. No. 71) relating to state and local governmental participation in programs under the economic opportunity act. Section 3 of this bill would grant the following express authority to all classes of cities:
"The legislative authority of any city or town may take whatever action it deems necessary to enable the city or town to participate in the programs set forth in the Economic Opportunity Act of 1964 (Public Law 88-452; 78 Stat. 508), as amended at the effective date of this 1970 amendatory act. The city or town may participate acting alone or in conjunction or cooperation with the state, any county, any other city or town or municipal corporation, or any private corporation qualified under the Economic Opportunity Act."
Responding to your question in the light of this bill, we may advise you, for the reasons set forth below, that an affirmative answer to the question posed1/ could, quite possibly be [[Orig. Op. Page 2]] reached by a court without the enactment of specific enabling legislation such as that contained in the bill; however, removal of any doubts on the question would best be facilitated through its passage.
(1) Federal Requirements for Community Action Agencies:
The 1967 amendments to the federal economic opportunity act of 1964 are contained in Public Law 90-222. Under § 210 thereof (42 U.S.C. § 2790), it is provided that, in order to qualify as a local community action agency, a state or political subdivision thereof must be able to attest that it,
". . . has the power and authority and will perform the functions set forth in section 212, including the power to enter into contracts with public and private nonprofit agencies and organizations to assist in fulfilling the purposes of this title, . . ."
Section 212, in turn, states that:
"(a) In order to carry out its overall responsibility for planning, coordinating, evaluating, and administering a community action program, a community action agency must have authority under its charter or applicable law to receive and administer funds under this title, funds and contributions from private or local public sources which may be used in support of a community action program, and funds under any Federal or State assistance program pursuant to which a public or private nonprofit agency (as the case may be) organized in accordance with this part could act as grantee, contractor, or sponsor of projects appropriate for inclusion in a community action program. A community action agency must also be empowered to transfer funds so received, and to delegate powers to other agencies, subject to the powers of its governing board and its overall program responsibilities. This power to transfer funds and delegate powers must include the power to make transfers and delegations covering component projects in all cases where this will contribute to efficiency and effectiveness or otherwise further program objectives.
". . ."
[[Orig. Op. Page 3]]
In addition, subsection (b) of this same section contains a list of numerous specific functions which a community action agency must be able to perform in order to qualify as such.
(2) Present State Statutes:
The only presently existing state statutes relating to the participation of the state of Washington or its political subdivisions in programs governed by the economic opportunity act are RCW 36.32.410 and RCW 43.06.110 ‑ codifying, respectively, the provisions of §§ 1 and 2, chapter 14, Laws of 1965. The first of these statutes reads as follows:
"The board of county commissioners of any county is hereby authorized and empowered in its discretion by resolution or ordinance passed by a majority of the board, to take whatever action it deems necessary to enable the county to participate in the programs set forth in the Economic Opportunity Act of 1964 (Public Law 88-452; 78 Stat. 508). Such participation may be engaged in as a sole county operation or in conjunction or cooperation with the state, any other county, city, or municipal corporation, or any private corporation qualified under said Economic Opportunity Act."
The second statute, RCW 43.06.110, relates to state participation in these federally sanctioned programs, and provides that:
"The governor, or his designee, is hereby authorized and empowered to take whatever action is necessary to enable the state to participate in the programs set forth in the Economic Opportunity Act of 1964 (Public Law 88-452; 78 Stat. 508). The governor, or his designee, is also authorized and empowered to accept and disburse federal grants or federal matching or other funds or donations from any source when made, granted or donated for a purpose covered by the said Economic Opportunity Act."
Within the context of your question, there are two critical points which must be noted with respect to the scope of this existing state legislation. The first is that while § 1 of this [[Orig. Op. Page 4]] 1965 act (RCW 36.32.410) speaks of participation by one or more counties in cooperation, inter alia, with ". . . any other . . . city . . .", nothing contained in the act grants any form of authority to cities of any class. Secondly, even as to counties (under § 1) and the state itself (pursuant to § 2), to which the act does grant authority, the authority granted pertains only to participation in programs set forth in the economic opportunity act of 1964 ‑ and not in the programs visualized by the 1967 amendments thereto, supra. Significantly, as was pointed out in our opinion of May 1, 1968, to the Yakima county prosecuting attorney (copy enclosed), the 1964 federal act, unlike the 1967 version,
". . . did not contemplate or require an ability on the part of a community action agency to do the various things spelled out in § 212 of the 1967 amendment, . . ."
Therefore, in view of the limited scope of the authority granted by chapter 14, Laws of 1965, supra,2/ we went on in this 1968 opinion to advise,
". . . that it is the official opinion of the attorney general that the only authority presently possessed by a county (until further action is taken by our state legislature) is authority to participate in the Economic Opportunity program only to the extent contemplated by the original Economic Opportunity Act of 1964 ‑ exclusive of the 1967 amendments to which you have referred."
(3) Powers of a First Class Charter City:
This conclusion was based upon the well-established rule that counties have only such powers as have been expressly granted to them by statute, or as are necessarily to be implied from the powers expressly granted. See, Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938). Of course, this rule is also applicable to cities generally. Othello v. Harter, 46 Wn.2d 747, 284 P.2d 1099 (1955).3/
[[Orig. Op. Page 5]]
However, it is equally well established that a different rule applies in determining the powers of cities of the first class which have framed their own charters under the provisions of Article XI, § 10 of our state Constitution.4/ With respect to such cities, the rule is as stated by our supreme court in Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), as follows:
". . . With respect to the powers of a city of the first class, we said in State ex rel. Ennis v. Superior Court (1929), 153 Wash. 139, 279 Pac. 601:
"'It is evident from the constitution of this state and legislative enactments that, in Washington, cities of the first class are vested with very extensive powers, and that, under Rem. Comp. Stat., § 8982, supra, the statutes of this state concerning the same must be liberally construed by the courts for the purpose of carrying out the manifest intent of the legislature to establish cities of the first class as self-governing bodies, only "subject to and controlled by general laws.'"
"It is clear from the Ennis case and from many other decisions of this court that the only limitation on the power of cities of the first class is that their action cannot contravene any constitutional provision or any legislative enactment. See State ex rel. Billington v. Sinclair (1947), 28 Wn.2d 575, 183 P.2d 813; State ex rel. Griffiths v. Superior Court (1934), 177 Wash. 619, 33 P.2d 94; Walker v. Spokane (1911), 62 Wash. 312, 113 Pac. 775. (Cf. Washington Fruit & Produce Co. v. Yakima (1940), 3 Wn.2d 152, 100 P.2d 8, 103 P.2d 1106, 128 A.L.R. 159; and Brennan v. Seattle (1929), [[Orig. Op. Page 6]] 151 Wash. 665, 276 Pac. 886, relative to the broad police powers of a city of the first class.) The principles adhered to in the preceding cases clearly indicate that a city of the first class has as broad legislative powers as the state, except when restricted by enactments of the state legislature."
Thus, the question ultimately to be resolved in determining the ability of a first class charter city to designate itself as a local community action agency in accordance with the 1967 economic opportunity act amendments is not so much one of whether the legislature has granted it all of the power and authority necessary to perform the various functions set forth in § 212 of the 1967 act, supra. Instead, the question is basically one of whether such a city's performance of any of these functions, in accordance with authority granted by its charter or ordinances, would be in contravention of some state constitutional provision or legislative enactment.
(4) Consideration of the Question:
However, even under this approach to the matter ‑ or perhaps, more properly, because of the mechanics involved in its application ‑ we are confronted with a rather substantial obstacle to the rendition of an immediate and clear-cut affirmative answer to the question you have posed.5/ As you are aware, there is a considerable volume of existing legislation bearing upon the activities of cities and other political subdivisions. Before expressing a categorical affirmation that nothing contained in this existing legislation would be contravened by a first class charter city's exercise of any of the numerous functions which it must be able to perform under § 212 of the 1967 amendments, supra, we would want sufficient time to make a fairly detailed examination and study of the relationship between these functions and the existing state laws.
[[Orig. Op. Page 7]]
In addition, even if we were able in the time allotted to assure ourselves on this point, we would still be faced with the necessity of considering whether, perhaps, some sort of state preemption of the field of governmental participation in federal economic opportunity programs might be said to arise from the actions which the legislature has taken ‑ or not taken ‑ in this area since 1965. Insofar as our 1965 state act itself is concerned (i.e., chapter 14, Laws of 1965, supra, granting authority to the governor and to the various counties to participate in programs under the 1964 version of the economic opportunity act), we do not think it likely that a court would hold that this legislation precludes a first class charter city, which is not dependent upon the legislature for its authority, from operating in the federal economic opportunity field. However, in addition to this affirmative legislative action in 1965, the determination of the 1969 legislature not to enact the provisions of House Bill No. 478 might also be considered somewhat relevant.
This bill (like the presently pending H.B. No. 71) would have expressly conferred upon all classes of cities and towns the full authority to take whatever action is necessary to participate in the program set forth in the economic opportunity act of 1964 "as amended at the effective date of this 1969 amendatory act." The bill was passed by the House of Representatives but died in the Senate Rules Committee. Arguably, the rejection of this bill might be viewed by a court as evidence of legislative intent not to allow cities to operate in the field ‑ reserving the field, instead, to the state itself and the various counties (and then, only to the extent of participation under the 1964 federal act).
It is for these reasons that our advice to you, as set forth at the outset of this letter, is in terms of recognition that while an affirmative answer to the question posed could, quite possibly, be reached by a court without the enactment of specific enabling legislation, the removal of any doubts on the question would best be facilitated through passage of a bill such as House Bill No. 71, currently pending.
We trust this will be of some assistance to you.
Yours very truly,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General
*** FOOTNOTES ***
1/Limited only to a first class charter city, and not to cities generally, for reasons hereinafter to be indicated.
2/Notably, §§ 1 and 2 of House Bill No. 71, supra, would expressly amend RCW 36.32.410 and RCW 43.06.110 to remedy this deficiency.
3/But see RCW 35A.01.010 and RCW 35A.11.020 in the case of cities which have taken appropriate steps to come under the provisions of the optional municipal code ‑ chapter 119, Laws of 1967, Ex. Sess.
4/This constitutional provision provides, in pertinent part, as follows:
"Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the constitution and laws of this state . . ."
5/In your letter you asked that our advice on your question be transmitted to you ". . . within the time limits already established for consideration of measures in this special session." See, Senate Concurrent Resolution No. 1 as to this established time schedule, under which the last day for the House to consider its own bills is the 19th day of the session.