*1 noted, majority I in the concur Except respects opinion. JJ., Brachtenbach, concur with
Stafford, Utter, J. Horowitz, 5, January 1979. granted
Reconsideration En Banc. October 1978.] 44689. [No. Washington AFL-CIO, Employees, Federation State Spokane Appellant,
Council al, Respondents. College, et (of Cordes, Jr., Cordes, Younglove), F. Cordes & Clifford for appellant. Gorton, General, A. Mc- and James Attorney
Slade Devitt, Assistant, for respondents. *2 here is whether a question J. The dispositive
Horowitz, may its facilities governmental agency expanding which is provide contract with an contractor to services independent customarily done civil ser- those facilities are vants, no could not be showing where there is the services for done and the sole reason enter- servants where ing savings into contract is an relationship anticipated below, court the relevant civil interpreting cost. The statutes, service held no bar to such a contract there was and the contract at issue here. We reverse. approved Community College April Washington State (the No. 17 for bids for a con- College) District advertised provide tract to custodial for new administration services a building Spokane Community College. at the The Wash- (the Federation), ington Employees Federation of State herein, appellant objected on the that custodial ser- ground by civil staff historically provided vices have been service employees of A College. 1-year contract was nonethe- less Co. of Building awarded the American Maintenance Spokane. for contracting
The reason
for
out
given
College
cost
projected
savings.
the custodial services is a substantial
gross pay
The annual
for one civil servant
custodial
be,
would
at a
employee
required
$6,360.
costs,
found,
minimum,
the court
Accompanying
cost
would raise the total
custodial
contract,
hand,
$15,684
annually.
1-year
The
the other
$4,788.
for
The antici-
provide equivalent
would
$10,000
year.
pated
per
cost
is thus more than
savings
Moreover,
contracting out for cus-
College expects
buildings
for
and additions
todial service
its five other new
sav-
$210,000
resulting
per year.
save a total
would
to student
instruction.
applied
would be
argued,
it is
ings,
for an
in June 1976
complaint
Federation filed a
contract,
to the
effect
College giving
injunction against
illegal
was
the contract
declaratory judgment
affida-
By motion and
A
issued.
temporary injunction
void.
the Col-
summary judgment;
moved
vit the Federation
In memoran-
summary judgment.
cross-moved
lege
held
court below
1976 the
in November
filed
opinion
dum
fact,
there
material
issue of
genuine
there was
statutes,
civil service
in the relevant
to the contract
no bar
Statu-
summary judgment.
was entitled
College
College.
to the
attorney fees were awarded
tory
court erred
contends
appeal
On
the Federation
it
College because
summary
entering
judgment
law,
regularly
for services
not,
contract
as a matter
alternative,
In the
historically provided by
staff
that,
if
has the
contends
the Federation
if
cost
do so
real
may only
for such
*3
is genu-
there
argues
The Federation
savings will be made.
to be made
savings
the
regarding
fact
ine issue of material
The
case,
summary
inappropriate.
making
judgment
in this
attorney
full
to
it is entitled
College cross-appeals, alleging
law,
College has
that,
the
as a matter
fees. We hold
type
for new
authority to enter into a
provided, and
historically been
regularly
which have
staff
by civil service
provided,
continue
to be
could
void.
into here is
contract entered
employees,
presented.
the other issues
we do not reach
Therefore
statutory construction.
is one of
issue
The central
28B.16,
Law, RCW
Education Personnel
The State
nonprofessional
for
a civil service
creates
state com
including
higher learning,
institutions
of state
College Dist.
Cunningham v.
munity colleges.
(1971). Although certain
793, 798,
7Q1 ours.) (Italics legisla- be RCW The exempted". 28B.16.040. to give ture's intent full civil service to mainte- protections nance is thus workers clear. 43.19.190,
The involved which second statute is RCW powers sets out and duties of the state purchasing director of General Administration. Department grant This to purchas- statute amended ing "[p]urchase material, supplies, director the all equipment support, services and needed for the mainte- nance, institutions, colleges, community and use all state (Italics ours.) colleges authority may and universities". This 43.19.190(4). The Col- delegated agencies. lege provision this contends is to be construed as authori- zation to contract for buildings. custodial services its new argument upon main of the College, grounds and the which the court below granted College's motion for summary judgment, is that personnel only law applies to existing civil service It said to protect is them from discharge, lay-off (except or transfer statutorily under circumstances) authorized protect but not any specific type of performed, or flatly prohibit procurement of case, maintenance services contract. this out, points there is no discharge, lay-off transfer or of civil service employees. Although the services a type are of servants, could be performed by civil they have not performed these particular services in the past because the need for is totally them new. administration above, provision law cited argued, the Col- authorizes lege to into enter a contract provision of these ser- vices as an alternative creating positions new classified government employees.
Furthermore, it is argued, College's action is not an attempt purposes system. to thwart *4 In view of the savings anticipated, College substantial action necessary maintains its is both and reasonable of goal achievement its of providing high quality a edu- cation to its students.
702 Sigall points support College
In of its v. view Cleaning 308, Contractors, Aetna 45 Ohio St. 2d 345 (1976), Supreme N.E.2d in which the Court found 61 Ohio no violation of civil service where services a state laws type usually provided by classified civil service provided independent were an contractor. that case University, agency, the state Kent had been unable to State complement full custodial workers maintain a state University despite programs. The had active recruitment ser- for custodial thus been forced additional years. special Despite circum- vices for 10 these almost holding stances, however, the court's was a broad rule Ohio expressly prohibit that the civil contracting-out did not service statutes where such a contract and that saving funds it does not violate results state Cleaning supra Sigall Contractors, v. at service Aetna laws. 314. reasoning agree and
We
cannot
Sigall
ignores
the essential
case because
system
system
our civil
regarding
a merit
establish
—to
appointment
classification,
selection,
and
as
personnel.
discipline
discharge, of
well as
(1972);
48,
Seattle,
61,
Herriott v.
703 showing is no provide that civil servants could not those services, a contract for such and in services is unauthorized violation of the State Education Personnel Law. regardless
This is so savings might the cost be made through such a contract. civil service laws embody a determination interests the state are by best of merit system personnel. served selection Such a goes beyond determination considerations of mere efficiency costs to other such as encompass benefits Seattle, v. supra. Herriott system. avoidance "spoils" Thus, an anticipated savings real cost cannot be a basis for avoiding policy and mandate civil service Cunningham 3, v. Dist. laws. supra at 804-05. position firmly
Our is supported civil service law. is per- rule public are to be formed wherever practicable public employees. Nei- ther private individual nor a firm to be hired perform the or routine public agency. normal duties of a however, The agency may, "farm work out" which is beyond the capacity agency to If undertake. contract than employer-employee establishes more an relation, the merit of filling public employments would be violated. may conclude, therefore,
We public that where the agency seeks to agreement make an an individual perform personal municipality services for the under its (as direction and supervision lar employees), regu- done cases of its agreement or makes an to an delegating individual, firm or corporation authority employ persons to perform personal government, services for the to supervised by paid by government be and to be directed and governmental clearly or it agency, appears that such arrangement seeks to evade the rules, law employments service be held invalid. such contract would (1958). H. Kaplan, The Law Civil Service 98-99 The courts of York New and California have reached the v. Delaney, same conclusion. Turel N.Y. 285 32 N.E.2d (civil (1041) 774 governing public service laws selection by competitive exam and require appointment servants services); with individual prohibit Stockburger Riley, P.2d 741 2d App. Cal. (1937) (services may not civil servants performed be if greater contractor even performed independent obtained). Although the economy efficiency can be systems adopted pursuant of those states were constitutions, basic pur- found in the state mandates to ours. systems are identical poses policies Moreover, interpre- with the interpretation our coincides *6 the by general the federal civil service laws given tation An opinion civil commission. from counsel of the that counsel the nature of services must be regarding by as the rel- federal servants enforced performed in Lodge court legal evant standard a federal district v. Administra- Employees American Fed'n Gov't tor, NASA, 1976). (D.D.C. 424 F. The court there Supp. 186 prohibited laws NASA concluded that federal which had into services entering contracts of civil While the certain characteristics service. specified have relevance to this characteristics listed there do all case, applied the rule does: general
"In legislation expressly of clear authoriz- the absence perform regu- ing lar procurement personnel regard without agencies functions laws, adherence scrupulous we must insist personnel to those laws and embody. Accord- they
the policies viewed, which, realistically con- when ingly, contracts . . . . . . constitute following tain elements by the proscribed services procurement personal laws. personnel Administrator, Gov't Employees
American Fed'n of NASA, supra at 190. policy of the State of the basic and view Law, conclude that Education Personnel we
Higher procure director to purchasing cannot RCW 43.19.190 community colleges granted ordinarily for services construed to authorize contracts by civil servants. provided capable being provided, interpretation suggested would derogate substantially from the rights, express both necessarily implied, of civil sérvice We are not persuaded the legislature intended such derogation, in the absence any clear legislative expression to that eifect. We recog- nize that some historically services have procured been contract. agree Federation, We however, RCW 43.19.190 was not intended to enlarge the authority of the Director of General Administration with regard the types of services which procured. be so The con- tract entered into here would be such an enlargement. We therefore hold unauthorized, the contract was and is void.
Reversed.
Wright, C.J., Rosellini, Hamilton, Utter, JJ., concur. Dolliver,
Hicks, J. (dissenting) Having reviewed the State — Law, Education Personnel 28B.16, and found it lacking, the majority simply dons its legislating hat and drafts a provision which accomplishes what the statute did not. Such legislating by court, in any event, undesirable is particularly flagrant this instance. The rule announced goes far beyond the expressed purpose of personnel *7 statute and simply eliminates the authority to contract statute, 43.19.190(2). conferred another RCW purpose The of RCW clearly 28B.16 is in stated its open- ing paragraph:
The interests of state institutions of higher education and the employees of those institutions will be furthered by the system enactment of a personnel of administra- tion designed specifically to particular meet needs in connection with employer-employee relations state institutions of higher education. general pur- The pose of chapter this is to establish a personnel administration of higher institutions education the state which is based on principles merit and scientific methods, and which governs appointment, promo- tion, transfer, layoff, recruitment, retention, classification
706 removal, pay plans, discipline, and welfare of under this
employees chapter. covered (Italics mine.) It RCW 28B.16.010. is clear the cover- age "personnel of the act limited matters of adminis- "employer-employee" tration" and relations. act does when the must create a purport position dictate state It in which employment. merely regulates the manner existing positions employment governs are filled and transfer, promotion, they and dismissal of once have been hired. particular than protects employees,
That the act rather work, abundantly from types services or is also clear or provisions "employees" of the act. words subsequent section, "personnel" nearly every appear reiterating persons. single provi- those Not one purpose protecting much suggests spec- sion even so the broader as which ifying particular performed by must be state relies, 16.040, upon majority RCW which the Even 28B. merely "employee" may no maintenance provides that only means exempted plainly the act. This of RCW to all protections state must 28B.16 whom an maintenance it has established workers relationship. It does not mean that employer-employee thereby building constructs a new every time it must establish such has a need maintenance relationship by creating employment. a new position majority or did until the decreed option, has the The state otherwise, own employees services with its perform new out services. to contract for those any in the finds act construing
No 28B.16 case be contracted might direction to what services as act, it are applying state. the cases out Like relationships which protection confined to the state. established previously have been Dist. Cunningham Community College Wn.2d held that P.2d (1971), only college we *8 a food service facility with years operated had several a termination could not effectuate employees, its own they per- out the services employees by contracting those in with spe- found not accord formed. The termination was was ordered to regulations cific administrative and the state positions. Noth- protected employees reinstate the their in ing suggests contracting that case out food that no services would be unlawful where current were affected. context, recently has Appeals a related the Court
held in necessary, person that where a reduction force is in be let employed an unauthorized consultant status must go before a civil service the act. employee protected v. University Washington, 17 Wn. App. Osterlof (1977). P.2d 814 That two persons, case concerned one whom though acting employee University, as an "consultant", classified not as an but as a a non- civil service status. As to that it was person, clear University attempted had to circumvent RCW 28B.16 establishing essentially what was an employer-employee in with relationship require- a manner inconsistent ments of the person employed act. The other involved was within the terms of RCW protected 28B.16 as a in employee. only question was which of case these persons job had when in priority a reduction the work force necessary. protected became The court ruled favor of the employee and ordered her reinstatement over the "unau- thorized consultant".
Again, nothing case generally deals authority of a to contract out nor it in college does any way suggest applies that RCW 28B.16 situations where a has not position employment been created the state. own
Purportedly relying and its statement Osterlof the act's concludes: purpose, majority
Therefore, where a new need for services which have customarily historically provided by been civil ser- arises, showing vants and where there is ser- could those a contract vants *9 and in the State such services is unauthorized violation Higher Education Personnel Law. might regardless savings which be is so of the cost This through such a contract. made By majority provides pronouncement, what the this the specifics legislature in the not. No the statute for did basis any majority refer to identified; is nor does the this rule by express provision the violated the statute is govern legislative a intent which evinces affecting positions matters established statutory authority quite is for this reason omission simple rule is neither man- is none. The announced —there by product judicial supported act; the nor the it is dated fiat. support majori- if basis of for the
Even there were some 43.19.190(2) ty's compels contrary decision, result. provision, comprehensively That last amended Laws delegates p. Sess., 21, 2, 49, 50, 1975-76, § 2d Ex. ch. Department purchasing General director " sup- [p] material, urdíase all Administration the plies, support, equipment needed services and community colleges maintenance, ..." . . . and use of all (Some mine.) italics memoranda series of letters and record contains a specifically Department Administration of General purchase par-
authorizing Spokane including "janitorial Thus, if even services". ticular provisions as could construed of RCW 28B.16 authority implying that the contract outside specific college, delegation RCW 43.19.190 evidenced contrary direct result. the record and these documents majority opin- exemplified legislation Judicial as my justify impossible when, here, view, as is, ion clearly deliberately beyond of an stated reaches particularly legislative function This incursion act. express accomplished deplorable of an in the face it is when 43.19.190). (RCW contrary statute to I dissent. Hicks, J. JJ., concur Brachtenbach,
Stafford 14, 1978. denied December Reconsideration 19, 1978.] October En Banc. 45156. [No. Appellants, v. The Inc., al, et Cinema,
Northend Respondent. City Seattle,