Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1976 No. 18 -
Attorney General Slade Gorton


To the extent that the planning functions of the council for postsecondary education are funded under § 1202 of the federal higher education act amendments of 1972 (Public Law 92-318), all members of the council are entitled to vote in accordance with RCW 28B.80.200.

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                                                                February 26, 1976

Honorable Walter C. Howe, Jr.
Chairman, Council for Postsecondary Education
908 East Fifth Street
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 18

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on the following two questions regarding the procedures to be taken by the council for postsecondary education when performing certain designated functions:

            "1. When the Council acts on its planning and policy recommendations (the state plan) or on other planning matters, is it doing so as the Council for Postsecondary Education or as the State '1202 Commission'?

            "2. When it is taking such actions relating to policy and planning matters, which procedures, those specified in RCW 28B.80.050 (pertaining to Council performance of its statewide planning role) or those specified in Section 9, Chapter 132, Laws of 1975, First Extraordinary Session, should prevail?"

            We answer these questions in the manner set forth in our analysis.


            The council on postsecondary education is a state agency which, in essence, "wears two different hats."  First, it serves as a planning agency with respect to postsecondary education in this state under the provisions of chapter 277, Laws of 1969, Ex. Sess., as amended by §§ 1-8, chapter 132, Laws of 1975, 1st Ex. Sess. (RCW 28B.80.010-28B.80.100).  Secondly, in accordance with §§ 9-15, chapter 132, supra, (RCW 28B.80.200-28B.80.240) the council also serves as the state postsecondary education commission under the following provisions of § 1202 of the  [[Orig. Op. Page 2]] federal higher education act of 1965, as amended in 1972 by Public Law 92-318 (20 U.S.C.A. § 1142a):

            "(a) Any State which desires to receive assistance under section 1142b of this title or subchapter X of this chapter shall establish a State Commission or designate an existing State agency or State Commission (to be known as the State Commission) which is broadly and equitably representative of the general public and public and private nonprofit and proprietary institutions of postsecondary education in the State including community colleges (as defined in subchapter X of this chapter), junior colleges, postsecondary vocational schools, area vocational schools, technical institutes, four-year institutions of higher education and branches thereof.

            "(b) Such State Commission may establish committees or task forces, not necessarily consisting of Commission members, and utilize existing agencies or organizations, to make studies, conduct surveys, submit recommendations, or otherwise contribute the best available expertise from the institutions, interest groups, and segments of the society most concerned with a particular aspect of the Commission's work.

            "(c)(1) At any time after July 1, 1973, a State may designate the State Commission established under subsection (a) of this section as the State agency or institution required under section 1005, 1123, or 1132a-3 of this title.  In such a case, the State Commission established under this section shall be deemed to meet the requirements of such sections for State agencies or institutions."

            The basic problem giving rise to your request is one of voting procedures.  Under RCW 28B.80.040, the overall composition of the council is as follows:

            "Nine citizen members to be appointed by the governor and confirmed by the senate as representatives of the public at large, one of whom shall be a full time undergraduate student at the time of his or her appointment at a postsecondary educational institution; the superintendent of public instruction; one  [[Orig. Op. Page 3]] member of the executive branch of government appointed by the governor; one president of the public universities and four-year colleges of the state who is the chairman of the council of presidents; the executive director of the state board for community college education; the executive director of the commission for vocational education; one president of the state's private universities or four-year colleges and one respresentative of postsecondary proprietary education, each appointed by the governor."

            RCW 28B.80.050, however, then provides that:

            "The nine citizen members of the council alone shall have the right to vote and decide by a simple majority all matters coming before the council.  The other members of the council shall have voice but no voting power."

            Conversely, RCW 28B.80.200, in designating the council as the state postsecondary education commission under § 1202, supra, says that:

            "The council is designated as the state commission as provided for in Section 1202 of the education amendments of 1972 (Public Law 92-318), as now or hereafter amended; and shall perform such functions as is necessary to comply with federal directives pertaining to the provisions of such law:  Provided, That notwithstanding the provisions of RCW 28B.80.050,all members of the council shall have full voting powers in taking actions related to federal postsecondary educational planning functions as provided for in this section and RCW 28B.80.210 through 28B.80.240."  (Emphasis supplied.)

            RCW 28B.80.210 through 28B.80.240, in turn, read as follows:

            "The council shall administer the following programs:  Title IV-B and VI of the Higher Education Act of 1965; Title I of the Higher Education Facilities Act of 1963; and any other federal act pertaining to higher education which is not administered by another state agency."  (RCW 28B.80.210.)

             [[Orig. Op. Page 4]]

            "The council shall:

            "(1) Prepare plans and participation as required by Title VI of the Higher Education Act of 1965 and Title I of the Higher Education Facilities Act of 1963.  The plan so prepared shall set forth objective standards and methods, consistent with basic criteria prescribed by the United States commissioner of education; for determining the relevant priorities; and the federal share of the development cost of eligible projects for construction of academic facilities and for the purchase of undergraduate instruction equipment submitted by institutions of higher education in this state.

            "(2) Conduct surveys and studies as may be necessary for the determination of the state participation in Title I of the Higher Education Facilities Act and Title VI of the Higher Education Act of 1965 and to this end may cooperate with other agencies.

            "(3) Provide for affording to every applicant who has submitted a project to the council an opportunity for a fair hearing before the council as to the priority assigned to such project or as to any other determination of the council adversely affecting such applicant.

            "(4) Provide for such fiscal control and fund accounting as may be necessary to assure proper disbursement of an accounting for federal funds paid to the council and for the making of such reports in such form and containing such information as may be necessary to enable the commissioner of education to perform his function."  (RCW 28B.80.220.)

            "The council is authorized to receive and expend federal funds and any private gifts or grants, such federal funds or private funds to be expended in accordance with the conditions contingent in such grant thereof."  (RCW 28B.80.230.)

             [[Orig. Op. Page 5]]

            "The council shall administer any state program or state‑administered federal program of student financila aid now or hereafter established."  (RCW 28B.80.240.)

            On the other hand, the basic planning and related functions of the council to which the special voting provisions of RCW 28B.80.050, supra, are applicable will be found in the following provisions of RCW 28B.80.030:

            "The council may perform any of the following functions:

            "(1) Engage in overall planning for postsecondary education in the state, which shall include the collection and analysis of necessary data from public, and where appropriate private institutions of postsecondary education.  The purpose shall be to:

            "(a) Assess and define the educational needs of the state to be served by postsecondary education;

            "(b) Recommend and coordinate studies to ascertain how defined educational needs are being met;

            "(c) Study and make recommendations concerning adult education, continuing education, public service and postsecondary educational programs;

            "(d) Identify priorities among the defined needs and specify the resources necessary to meet them;

            "(e) Differentiate roles of the community college system and the individual public institutions and identify the most effective division of responsibility among them in meeting defined needs.  To facilitate this, review and recommend the creation of all new degrees and recommend which institutions shall award them; and evaluate proposals for the elimination of existing degrees.  Identify changing conditions which may require the revision of these roles and division of responsibility of the institutions.

             [[Orig. Op. Page 6]]

            "(2) In the execution of the above planning responsibilities, develop criteria for the need for new baccalaureate institutions; and recommend the establishment, location and role of any new public baccalaureate granting institutions, and review the plans for the community college system in terms of their articulation with planning for postsecondary education in the state.

            "(3) Study levels of fees and charges to students and, when necessary, make recommendations to the institutions, legislature, and governor.

            "(4) Study and make recommendations concerning admission and transfer policies.

            "(5) Review individual institutional operating budget requests to determine the conformity or lack thereof to the state's postsecondary education plan:  Provided, That its review of community colleges be limited to the plan prepared by the state board for community college education.

            "(6) Review the individual institutional capital budget requests to determine their conformity or lack thereof to the state's postsecondary education plan:  Provided, That its review of community colleges be limited to the plan prepared by the state board for community college education.

            "(7) Study and make recommendations for the development of improved practices of administrative management in order to facilitate the most efficient operation of the public institutions and the avoidance of unnecessary duplication among the institutions.

            "(8) At the request of the governor, legislature, state board for community college education, or baccalaureate granting institutions of higher education, and in conjunction with such legislative standing committees on higher education as may be in existence, study and make recommendations regarding legislation affecting postsecondary education."

             [[Orig. Op. Page 7]]

            Thus, the question here to be resolved is whether the council, in performing the planning functions referred to in your letter, is doing something which falls exclusively under the provisions of this last quoted statute so as to be an action upon which only the nine citizen members provided for by RCW 28B.80.040 may vote ‑ in accordance with RCW 28B.80.050, or is engaged, either concurrently or exclusively, in the performance of one of the functions which the council has been authorized or directed to perform by RCW 28B.80.200-28B.80.240, so as to be governed by the legislature's expression of intent in RCW 28B.80.200 that all members shall have full voting powers.

            In requesting our opinion you have advised us that, wearing its state postsecondary education commission "hat" under § 1202 of the federal act,supra, the council earlier received some $26,105 in federal funds for fiscal year 1974-75 for planning activities under § 1203 of the federal act which provides, in material part, as follows:

            "The Commissioner is authorized to make grants to any State Commission established pursuant to section 1202(a) to enable it to expand the scope of the studies and planning required in title X through comprehensive inventories of, and studies with respect to, all public and private postsecondary educational resources in the State, including planning necessary for such resources to be better coordinated, improved, expanded, or altered so that all persons within the State who desire, and who can benefit from, postsecondary education may have an opportunity to do so."

            In addition, the council has been granted but not yet received another $38,819 for fiscal year 1975-76 from this same source.  Presumably, those funds have been and will be expended for such planning activities as come within the directive of § 1203,supra because otherwise, obviously, the council in utilizing this federal money would be in violation of that section of the federal law.  But from this it necessarily follows that any planning functions which are thus funded will, whatever else they may also be, constitute (in the words of RCW 28B.80.200,supra), ". . . functions . . . necessary to comply with federal directives pertaining to the provisions of such law . . ."; i.e., the educational amendments of 1972 (Public Law 92-318).  Accordingly (also in the words of  [[Orig. Op. Page 8]] RCW 28B.80.200), the council in taking any planning actions involving any use of its § 1203 funds will have to be viewed as ". . . taking actions related to federal postsecondary educational planning functions as provided for in . . ." the subject state statute, RCW 28B.80.200.

            It is presently our understanding that some of the $26,105 already received has in fact been expended to pay for the planning activities contemplated by your request ‑ even though those activities have generally been viewed as falling under the general "state plan" provisions of RCW 28B.80.030,supra.  In addition, a similar use may be made of the 1975-76 allotment which has been granted but not yet received.

            Therefore, applying the above described line of reasoning with regard to RCW 28B.80.200, we must conclude that to the extent the council's planning functions are thus funded a federally related planning action will also be being performed and the voting requirements of that statute will apply.  This will be so, legally speaking, even though the resulting product also bears the label of a state plan under RCW 28B.80.030.  Thus in any such case, the council must be deemed also to be functioning as the state § 1202 commission and all of its members, both citizen and institutional, will be eligible to vote ‑ notwithstanding the limited voting provision of RCW 28B.80.050,supra, which would apply if only a state planning function were being performed.

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

Very truly yours,

Attorney General

Deputy Attorney General