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AGLO 1971 No. 6 -
Attorney General Slade Gorton

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                                                                 January 15, 1971
Honorable Gordon L. Walgren
State Senator, 23rd District
Legislative Building
Olympia, Washington 98501
                                                                                              Cite as:  AGLO 1971 No. 6 (not official)
Dear Sir:
            By letter previously acknowledged you have requested our opinion regarding the legality of a pending proposal by the governor and the secretary of social and health services to close down, and terminate the operation of, a certain facility in Kitsap county known as the Olympic Center.  Your question, specifically, is whether, in view of the provisions of chapter 11, Laws of 1965, this facility may be closed down by administrative action without specific legislative authorization.
            The full text of chapter 11, Laws of 1965, from which you have quoted parts in your letter of request, reads as follows:
            "Section 1. The state facilities to provide community services to the mentally and physically deficient and the mentally ill are inadequate to meet the present demand.  Great savings to the taxpayers can be achieved while helping to meet these worthwhile needs.  It is therefore the purpose of this act to provide for acquisition or lease of Harrison Memorial Hospital property and facilities and the operation thereof as a multi-use facility for the mentally and physically deficient and the mentally ill.
            "Sec. 2. The department of institutions is authorized to acquire by purchase, lease, or lease with option to purchase, and to accept a deed or execute a lease or lease and option to purchase in the name of the state of Washington, subject to the approval as to form by the attorney general, to that certain property located in Kitsap county and commonly known as Harrison Memorial Hospital, together with all necessary personal property, fixtures, and land.
             [[Orig. Op. Page 2]]
            "Sec. 3. After the acquisition of Harrison Memorial Hospital, the department of institutions is authorized to enter into contracts for the repair or remodeling of the hospital to the extent they are necessary and reasonable, in order to establish a multi-use facility for the mentally or physically deficient or the mentally ill.  The director of the department of institutions is authorized to determine the most feasible and desirable use of the facility and to operate the facility in the manner he deems most beneficial to the mentally and physically deficient, or the mentally ill, and is authorized, but not limited to programs for out-patient, diagnostic and referral, day care, vocational and educational services to the community which he determines are in the best interest of the state.
            "Sec. 4. This act is necessary for the immediate preservation of the public peace, health and safety, the support of the state government and its existing public institutions, and shall take effect immediately."  (Emphasis supplied.)
            By way of clarification at the outset, in terms of the references in this statute to the department of institutions, it should be noted that the 1970 session of the legislature abolished this department and consolidated its functions with those of certain other similarly abolished agencies in the newly created department of social and health services.  See, chapter 18, Laws of 1970.  Thus, the facility in question, which was renamed the Olympic Center after its acquisition by the state under the provisions of the aforesaid act, is currently under the control of the secretary of social and health services ‑ as the chief executive officer of the department of social and health services under § 4, chapter 18, Laws of 1970.
            Section 5 of this 1970 enactment contains the following extremely broad grant of authority to the secretary:
            "It is the intent of the legislature wherever possible to place the internal affairs of the department under the control of the secretary in order that he may institute therein the flexible, alert and intelligent management of its business that changing contemporary circumstances require.  Therefore, whenever his authority is not specifically limited by law, he shall have  [[Orig. Op. Page 3]] complete charge and supervisory powers over the department.  . . ."  (Emphasis supplied.)
            Also to be noted in connection with your question are certain pertinent provisions of the state budget and accounting act.  RCW 43.88.110, codifying § 11 of this act (i.e., chapter 328, Laws of 1959) provides, in pertinent part, as follows:
            "Subdivisions (1) and (2) of this section set forth the expenditure programs and the allotment and reserve procedures to be followed by the executive branch.
            "(1) Before the beginning of the fiscal period, all agencies shall submit to the governor a statement of proposed agency expenditures at such times and in such form as may be required by him.  The statement of proposed expenditures shall show, among other things, the requested allotments of appropriations for the ensuing fiscal period for the agency concerned for such periods as may be determined by the budget director for the entire fiscal period.  The governor shall review the requested allotments in the light of the agency's plan of work and, with the advice of the budget director, he may revise or alter agency allotments:  . . .
            "(2) Except for agencies headed by elective officials and for institutions for higher education, as provided in this section, the approved allotments may be revised during the course of the fiscal period in accordance with the regulations issued pursuant to this chapter.  If at any time during the fiscal period the governor shall ascertain that available revenues for the applicable period will be less than the respective appropriations, he shall revise the allotments concerned so as to prevent the making of expenditures in excess of available revenues.  . . ."  (Emphasis supplied.)
            Unquestionably, the department of social and health services is an "agency" within the meaning of this provision (see, RCW 43.88.020 (3)) ‑ and it is not one of those agencies which has been excluded by subsection (2) thereof from the expenditure programs and the allotment and reserve procedures which have been established by the office of  [[Orig. Op. Page 4]] program planning and fiscal management under the provisions of the budget and accounting act.  Thus it follows that the governor, through the budget office, is vested with authority under the provisions of the budget and accounting act to revise the expenditure authority of the department of social and health services with respect to the operation of any of the facilities, including the Olympic Center, which are under its general jurisdiction.
            Lastly, note should be made of the fact that, within the framework of the government of the state of Washington, the governor is "the supreme executive power of this state."  See, Article III, § 2, Washington State Constitution.  In addition, § 5 of this same constitutional article states that the governor
            ". . . may require information in writing from the officers of the state upon any subject relating to the duties of their respective offices, and shall see that the laws are faithfully executed."
            In State ex rel. Hartley v. Clausen, 146 Wash. 588, 592, 264 Pac. 403 (1928), the supreme court, after making note of these constitutional provisions, went on to state that
            "Under our form of government, it is the right and duty of the judicial department to interpret the law and declare its true meaning and intent.  Equally, it is the right and duty of the executive department to see that the laws as thus interpreted are properly enforced.  As the final right to determine the true intent and purpose of all laws is lodged in the supreme court of this state, so is the final determination as to their enforcement and execution lodged in the governor.  . . ."  (Emphasis supplied.)
            It is our understanding that the proposed action by the governor, and the secretary of social and health services, with respect to the closure of the Olympic Center (as well as the proposed closure of several other state institutions) has been prompted not only by a need to achieve certain economies in the state fiscal operations, in view of current revenue projections, but, as well, by the fact that the effective management of the programs of those institutions has permitted the populations of certain of them to be reduced to a point where the continued maintenance of these institutions is no longer necessary.
             [[Orig. Op. Page 5]]
            This leads us, then, to the ultimate question which your request has raised; namely, whether the legislation under which the present Olympic Center was initially acquired, and under which it is currently being operated, constitutes a legally enforceable mandate by the legislature to continue operation of this facility until the closure thereof is specifically authorized by the legislature itself.  We think not.
            Nothing contained in chapter 11, Laws of 1965, supra, as we read it, spells out any such mandate; instead, noting particularly the words and phrases of the statute which we have underscored in quoting it above, we believe that this statute merely constitutes enabling legislation (i.e., authorization) for the acquisition and operation of the particular institution mentioned therein.  Accordingly it follows that its closure by the secretary of social and health services, based upon either his own discretionary judgment under § 5, chapter 18, Laws of 1970, supra, or upon a curtailment of funds by the governor through the budget office, is authorized by the applicable legislative enactments and state constitutional provisions which we have referred to above.
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Stephen C. Way
Assistant Attorney General