Washington Federation of State Emp., AFL-CIO, Council 28 v. Spokane Community College

• Decision Date: 19 October 1978
• Docket Number: AFL-CIO,No. 44689,44689
• Citation: 585 P.2d 474,90 Wn.2d 698
• Parties: , 25 Cont.Cas.Fed. (CCH) P 82,842 WASHINGTON FEDERATION OF STATE EMPLOYEES,COUNCIL 28, Appellant, v. SPOKANE COMMUNITY COLLEGE, Washington State Community College District 17, and Walter S. Johnson, President, Respondents.
• Court: Washington Supreme Court

Page 698

90 Wn.2d 698

585 P.2d 474, 25 Cont.Cas.Fed. (CCH) P 82,842

WASHINGTON FEDERATION OF STATE EMPLOYEES, AFL-CIO COUNCIL 28, Appellant, v. SPOKANE COMMUNITY COLLEGE, Washington State Community College District 17, and Walter S. Johnson President, Respondents.

No. 44689.

Supreme Court of Washington, En Banc.

Oct. 19, 1978.

Cordes, Cordes & Younglove, Clifford F. Cordes, Jr., Olympia, for appellant.

Reed, Otterstrom & Giesa, Spokane, James A. McDevitt, Sp. Asst. Atty. Gen., for respondents.

HOROWITZ, Justice.

The dispositive question here is whether a governmental agency which is expanding its facilities may contract with an independent contractor to provide services in those facilities which are customarily done by civil servants, where there is no showing the services could not be done by civil servants and where the sole reason for entering into the contract relationship is an anticipated savings in cost. The court below, interpreting the relevant civil service statutes, held there was no bar to such a contract and approved the contract at issue here. We reverse.

In April 1976, the Washington State Community College District 17 (the College) advertised for bids for a contract to provide custodial services for a new administration building at the Spokane Community College. The Washington Federation of State Employees (the Federation), appellant herein, objected on the ground that custodial services have historically been provided by civil service staff employees of the College. A one-year contract was nonetheless awarded to the American Building Maintenance Co. of Spokane.

The reason given by the College for contracting out for the custodial services is a substantial projected cost savings. The annual gross pay for one civil servant custodial employee to provide the required service would be, at a minimum, $6360. Accompanying costs, the court found, would raise the total employee custodial service cost to $15,684 annually. The one-year contract, on the other hand, would provide equivalent services for $4788. The anticipated cost savings is thus more than $10,000 per year. Moreover, the College expects that contracting out for custodial service for its 5 other new buildings and additions would save a total of $210,000 per year. The resulting savings, it is argued, would be applied to student instruction.

The Federation filed a complaint in June 1976 for an injunction against the College giving effect to the contract, and a declaratory judgment the contract was illegal and void. A temporary injunction issued. By motion and affidavit the Federation moved for summary judgment; the College cross-moved for summary judgment. In a memorandum opinion filed in November 1976 the court below held there was no genuine issue of material fact, that there was no bar to the contract in the relevant civil service statutes, and the College was entitled to summary judgment. Statutory attorney fees were awarded to the College.

On appeal the Federation contends the court erred in entering summary judgment for the College because it may not, as a matter of law, contract for services regularly and historically provided by staff employees. In the alternative, the Federation contends that, if the College has the power to contract for such services, it may only do so if real cost savings will be made. The Federation argues there is genuine issue of material fact regarding the savings to be made in this case, making summary judgment inappropriate. The College cross-appeals, alleging it is entitled to full attorney fees. We hold that, as a matter of law, the College has no authority to enter into a contract for new services of a type which have regularly and historically been provided, and could continue to be provided, by civil service staff employees, and that the contract entered into here is void. Therefore we do not reach the other issues presented.

The central issue is one of statutory construction. The State Higher Education Personnel Law, Ch. 28B.16 RCW, creates a civil service system for nonprofessional employees of state institutions of higher learning, including state community colleges. Cunningham v. Community College Dist. No. 3, 79 Wash.2d 793, 798, 489 P.2d 891 (1971). Although certain exemptions are created from coverage of the law, it specifically provides that "no nonacademic employee engaged in office, clerical, Maintenance, or food and trade services may be exempted." RCW 28B.16.040. (Italics ours). The legislature's intent to give full civil service protections to maintenance workers is thus clear.

The second statute involved is RCW 43.19.190, which sets out the powers and duties of the state purchasing director for the Department of General Administration. This statute was amended in 1976 to grant to the purchasing director the power to "(p)urchase all materials, supplies, Services and equipment needed for the support, Maintenance, and use of all state institutions, colleges, community colleges and universities." (Italics ours.) This authority may be delegated to state agencies. RCW 43.19.190(4). The College contends this provision is to be construed as authorization to contract for custodial services in its new buildings.

The main argument of the College, and the grounds upon which the court below granted the College's motion for summary judgment, is that the personnel law applies only to existing civil service employees. It is said to protect them from discharge, lay-off or transfer (except under statutorily authorized circumstances) but not to protect any specific type of service performed, or flatly prohibit procurement of maintenance services by contract. In this case, the College points out, there is no discharge, transfer or lay-off of civil service employees. Although the services are of a type which could be performed by civil servants, they have not performed these Particular services in the past because the need for them is totally new. The General Administration law provision cited above, it is argued, authorizes the College to enter into a contract for the provision of these services as an alternative to creating new positions for classified government employees.

Furthermore, it is argued, the College's action is not an attempt to thwart the purposes of the civil service system. In view of the substantial savings anticipated, the College maintains its action is both reasonable and necessary to the achievement of its goal of providing a high quality of education to its students.

In support of its view the College points to Sigall v. Aetna Cleaning Contractors of Cleveland, 45 Ohio St.2d 308, 345 N.E.2d 61 (1976), in which the Ohio Supreme Court found no violation of state civil service laws where services of a type usually provided by classified civil service employees were provided by an independent contractor. In that case the state agency, Kent State University, had been unable to maintain a full complement of state custodial workers despite active recruitment programs. The University had thus been forced to contract for additional custodial services for almost 10 years. Despite these special circumstances, however, the Ohio court's holding was a broad rule that the civil service statutes did not expressly prohibit the contracting-out for services, and that where such a contract results in a saving of state funds it does not violate civil service laws. Sigall v. Aetna Cleaning Contractors of Cleveland, supra at 314, 345 N.E.2d 61.

We cannot agree with the reasoning of the College and the Sigall case because it ignores the essential purpose of our civil service system to establish a merit system regarding the selection, appointment and classification, as well as the discipline and discharge, of state personnel. Herriott v. Seattle, 81 Wash.2d 48, 61, 500 P.2d 101 (1972); Gogerty v. Dep't of Institutions, 71 Wash.2d 1, 4-5, 426 P.2d 476 (1967). See RCW 28B.16.010 (State Higher Education Personnel Law); RCW 41.06.010 (State Civil Service Law). The policy of the civil service system is to establish merit as the basis for selecting personnel. It creates a classified service composed of civil servants selected on the basis of merit to fill the state's personnel needs. Procurement of services ordinarily and regularly provided by classified civil servants through independent contracts, although not specifically prohibited by the State Higher Education Personnel Law, directly contravenes its basic policy and purpose. Osterlof v. University of Washington, 17 Wash.App. 621, 564 P.2d 814 (1977). Therefore, where a new need for services which have been customarily and historically provided by civil servants arises, and where there is no showing that civil servants could not provide those services, a contract for such services is unauthorized and in violation of the State Higher Education Personnel Law.

This is so regardless of the cost savings which might be made through such a contract. The civil service laws embody a determination that the interests of the state are best served by a system of merit selection of personnel. Such a determination goes beyond considerations of mere costs to encompass other benefits such as efficiency and avoidance of the "spoils" system. Herriott v. Seattle, supra. Thus, an anticipated or real savings in cost cannot be a basis for avoiding the policy and mandate of civil service laws. Cunningham v. Community College Dist. No. 3, supra, 79 Wash.2d at 804-05, 489 P.2d 891.

Our position is firmly supported in civil service law.

The general rule is that public services are to be performed wherever practicable by public employees. Neither a private individual nor a firm may be hired to perform the normal or routine duties of a public agency. The agency may, however, "farm out" work which is beyond the capacity of the agency to undertake. If the contract establishes no more than an employer-employee relation, the merit system of filling public...