CITIES AND TOWNS - JAILS -Authority of cities and towns to contract with

nongovernmental entity to construct, lease, or operate a jail.

1. A code city may contract with a nongovernmental entity for the

construction of a jail for the city.

2. A code city lacks authority to enter into an operating lease agreement

for a city jail with a nongovernmental entity.

3. A code city lacks authority to contract with a nongovernmental entity to

provide overall management or law enforcement services in a city jail;

however, the city may contract with a private entity for other jail-related

services.

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November 15, 2000

The Honorable Sid Snyder

Senator, 19th District

P. O. Box 531

Long Beach, WA 98631 Cite As:

AGO 2000 No. 8

Dear Senator Snyder:

By letter previously acknowledged, you requested the opinion of this office

on the following questions:

Does a code city have the authority to contract with a non-governmental

entity for the construction of a jail?

Does a code city have the authority to lease a jail from a non-governmental

entity?

Assuming that the city employs the chief administrative officer of the jail

and retains direct accountability, does a code city have the authority to

contract with a non-governmental entity for services associated with the

jail? These services could include (but would not be limited by this list)

food services, janitorial services, guarding inmates, community supervision,

medical services, laundry, education, building maintenance and security.

Your questions are expressly premised on the assumption that "all applicable

Washington State standards for jail facilities and Washington State

standards and training requirements for these services would be applied as

if the service providers were city employees".

BRIEF ANSWER

A code city is authorized to contract with a non-governmental entity for the

construction of a jail. A code city is not authorized to lease a jail from a

private party. A code city is not authorized to contract with a

non-governmental entity for such entity to provide jail services where such

services involve the overall management of an institution or the performance

of other correctional or law enforcement functions. A code city is

authorized to contract with a non-governmental entity for such entity to

provide jail-related services that do not involve the overall management of

an institution or the performance of other correctional or law enforcement

functions.

ANALYSIS

Your first question, repeated for ease of reference, inquired as follows:

1. May a code city contract with a non-governmental entity for the

construction of a jail?

Cities operating under the optional municipal code, RCW Title 35A, possess

extremely broad powers. Such cities have legislative power similar to that

of the state except for actions that contravene the constitution or

statutes. RCW 35A.11.020. This authority includes the power to contract with

private parties. See, e.g., Shaw Disposal, Inc. v. City of Auburn, 15 Wn.

App. 65, 546 P.2d 1236 (1976) (code city may contract for garbage disposal

without restriction unless prevented by the constitution, general law, or

ordinance) (citation omitted).

We are not aware of anything in the state constitution or in the general law

of the state that would prohibit a code city from contracting with a

non-governmental entity for the construction of a jail. Indeed, as a

practical matter, we would expect most major municipal capital projects to

be constructed at least in part through contracts with non-governmental

entities.

Thus, in answer to your first question, in our opinion a code city is

authorized to contract with a non-governmental entity for the construction

of a city jail.

Your second question, repeated below, is as follows:

2. May a code city lease a jail from a non-governmental entity?

In general, code cities possess broad authority to acquire property for

municipal purposes. See RCW 35A.11.010 (providing in part that code cities

may "purchase, lease, receive, or otherwise acquire real and personal

property of every kind"); RCW 35A.11.020 (providing in part that code cities

may exercise power in regard to "the acquisition, sale, ownership,

improvement, maintenance, protection, restoration, regulation, use, leasing,

disposition, vacation, abandonment or beautification of public ways, real

property of all kinds, waterways, structures, or any other improvement or

use of real or personal property"). See also 10 Eugene McQuillan, The Law of

Municipal Corporations § 28.10 (3d ed. 1999) ("When necessary to promote its

public purposes, the municipal corporation usually is empowered to become

the lessee of property. Also, the power to acquire property implies the

power to lease, or to lease with an option to purchase".).

However, the Legislature has significantly limited the power of cities and

counties with respect to jails. In 1977, apparently after years of study,

the Legislature enacted Laws of 1977, 1st Ex. Sess., ch. 316, the "City and

County Jails Act" (hereinafter the "Act"), codified in RCW 70.48. The

Legislature articulated the state’s policy and purpose in this legislation

as follows:

It is the policy of this state that all city and county jails provide a

humane and safe environment. It is the purpose of this chapter (1) to

require classification of county and city jails on the basis of their

purpose and their function in order to provide for (a) the setting of

state-wide mandatory custodial care standards that are essential for the

health, welfare, and security of persons confined in jails, (b) advisory

custodial care minimum standards, and (c) physical plant minimum standards,

(2) to aid the Washington state criminal justice training commission in

developing and implementing personnel training and qualification standards,

and (3) to provide for a determination of the role of the state and local

units of government with regard to the custody of persons who are arrested

for and/or convicted of violating statutes or ordinances which define

crimes. The legislature also finds that in order to accomplish the purpose

of this chapter it is necessary for the state to provide adequate funds to

enable units of local government to fully comply with the physical plant

minimum standards for detention and correctional facilities.

Laws of 1977, 1st Ex. Sess., ch. 316, § 1.

An overarching principle of the Act was the requirement that "All jails

shall be constructed, operated, and maintained in compliance with the

provisions and intent of this chapter and the rules, regulations, and

standards adopted thereunder". Laws of 1977, 1st Ex. Sess., ch. 316, § 7.

The Act defined "jail" to mean "any holding, detention, or correctional

facility as defined in this section." Laws of 1977, 1st Ex. Sess., ch. 316,

§ 2(4). "Holding facility," "Detention facility," and "Correctional

facility" were in turn defined as follows:

"Holding facility" means a facility operated by a governing unit primarily

designed, staffed, and used for the temporary housing of adult persons

charged with a criminal offense prior to trial or sentencing and for the

temporary housing of such persons during or after trial and/or sentencing,

but in no instance shall the housing exceed thirty days.

"Detention facility" means a facility operated by a governing unit primarily

designed, staffed, and used for the temporary housing of adult persons

charged with a criminal offense prior to trial or sentencing and for the

housing of adult persons for purposes of punishment and correction after

sentencing or persons serving terms not to exceed ninety days.

"Correctional facility" means a facility operated by a governing unit

primarily designed, staffed, and used for the housing of adult persons

serving terms not exceeding one year for the purposes of punishment,

correction, and rehabilitation following conviction of a criminal offense.

Laws of 1977, 1st Ex. Sess., ch. 316, §§ 2 (1) ("Holding facility"), (2)

("Detention facility"), (3) ("Correctional facility") (emphasis added). The

Act defined "governing unit" to mean "the city and/or county or any

combinations of cities and/or counties responsible for the operation,

supervision, and maintenance of a jail". Laws of 1977, 1st Ex. Sess., ch.

316, § 2 (10) (emphasis added).

Significantly, the Act appears to have narrowed cities’ preexisting

authority with respect to jails. The Act in effect conformed such authority

to the strictures and requirements of the Act. RCW 35.21.330, a grant of

authority applicable to all cities and towns, was amended in the following

fashion:

Cities and towns may acquire, build, operate and maintain ((jails,

workhouses, workshops, stockades and other places of detention and

confinement)) holding, detention and correctional facilities as defined in

section 2 of this 1977 amendatory act at any place within the territorial

limits of the county in which the city or town is situated, as may be

selected by the legislative authority of the municipality: PROVIDED, That

such facilities comply with the provisions of sections 1 through 16 of this

1977 amendatory act and rules adopted thereto.

Laws of 1977, 1st Ex. Sess., ch. 316, § 19.

Thus, the Act produced the following results, among others: (1) The

imposition of mandatory physical plant and custodial care standards, (2) the

establishment as an express limitation upon a city’s authority with respect

to jails the requirement that jails comply with all requirements of the Act,

(3) the express defining of jails as certain facilities "operated by" a

governing unit, and (4) the express imposition upon cities and counties as

governing units the responsibility for the "operation, supervision and

maintenance" of jails.

In 1979 the Legislature amended the Act. Laws of 1979, 1st Ex. Sess., ch.

232 (hereinafter the "1979 Act"). Insofar as relevant to the question under

consideration, in the 1979 Act, the Legislature expressly authorized

contracts between counties and cities for jail services. The relevant

language is as follows:

Contracts for jail services may be made between a county and city located

within the boundaries of a county, and among counties. The contracts shall:

Be in writing, give one governing unit the responsibility for the operation

of the jails, specify the responsibilities of each governing unit involved,

and include the applicable charges for custody of the prisoners as well as

the basis for adjustments in the charges. The contracts may be terminated

only by ninety days written notice to the governing units involved and to

the [state jail] commission. The notice shall state the grounds for

termination and the specific plans for accommodating the affected jail

population.

Laws of 1979, 1st Ex. Sess., ch. 232, § 15(1) (emphasis added). In addition,

the 1979 Act provided that "[a] person convicted of an offense punishable by

imprisonment in a city or county jail may be confined in the jail of any

city or county contracting with the prosecuting city or county for jail

services". Laws of 1979, 1st Ex. Sess., ch. 232, § 19 (emphasis added).

In 1983, as part of a bill relating to drunk driving and related sentencing

reforms, the Legislature again amended the Act. In Laws of 1983, ch. 165

(hereinafter the "1993 Act"), the Legislature authorized cities and counties

to establish special detention facilities for certain sentenced persons

considered not to pose significant security risks. Notably, the 1983 Act

authorized these special detention facilities to "be operated by a

noncorrectional agency or by noncorrectional personnel by contract with the

governing unit". Laws of 1983, ch. 165, § 39(4).

Considering the 1977, 1979, and 1983 Acts together, as well as the 1987

amendments to the Act, we conclude that the Legislature has authorized

cities to contract only with the county within which a given city is located

for general jail services, and with "noncorrectional agenc[ies]" or

"noncorrectional personnel" for the operation of special detention

facilities. In other words, we do not believe that the Legislature has

authorized cities to lease jails from non-governmental entities.

We recognize that one may attempt to read the requirement that jails be

"operated" by cities or counties as referring only to the management, as

opposed to ownership, of facilities. We would find such an attempt

unpersuasive. As noted above, "Governing unit" is defined with reference to

"cities and/or counties responsible for the operation, supervision, and

maintenance of a jail". RCW 70.48.020(7) (emphasis added). We view the

comprehensive and cumulative nature of a city or county’s responsibilities

to operate, supervise, and maintain jails to be inconsistent with an

interpretation that jails may be owned by a non-governmental entity.

Moreover, RCW 70.48.220 provides that "[a] person convicted of an offense

punishable by imprisonment in a city or county jail may be confined in the

jail of any city or county contracting with the prosecuting city or county

for jail services". (emphasis added). We believe that this provision clearly

contemplates city or county ownership of jails.

More generally, the integrated nature of jails within the context of the

state’s overall correctional system makes us believe that the Legislature

would have spoken in unmistakably clear terms if it had intended to

authorize private ownership of facilities that may confine not only those

persons held, detained, or housed in connection with municipal infractions,

but also those held or detained for violations of state criminal laws and

destined for state correctional facilities. However, our review of the

legislative history of the Act, and of the 1979, 1983 and 1987 Acts, did not

disclose any suggestion or consideration of the potential or authority for

private ownership of holding, detention, or correctional facilities. Compare

MICH. COMP. LAWS § 117.4e (2000) (providing in part that Michigan home rule

cities may provide in their charters "[f]or the acquisition by purchase,

gift, condemnation, lease, construction or otherwise . . . the following

improvements including the necessary lands therefor, viz: . . . police

stations . . . city prisons and workhouses, penal farms, institutions . . .

(emphasis added); TEX. LOC. GOV’T CODE § 361.061 (in part authorizing Texas

municipalities to contract with private prison contractors for the leasing

of jails and related facilities). We also note that the Legislature’s most

recent enactment with respect to city and county jails appears not to

contemplate the concept of private ownership of such facilities. See Laws of

2000, ch. 3 (providing in part for the implementation of an electronic

state-wide "city and county jail booking and reporting system" capable of

communicating with "every Washington state city and county jail" and the

provision by certain "city and county jails" of certain information to the

Washington Association of Sheriffs and Police Chiefs).

As a practical matter, it seems unlikely to us that a non-governmental

entity would seek to lease a jail to a city without also seeking a contract

to provide jail-related services to the city. Be that as it may, while the

practical and policy issues relating to a stand-alone lease may be less

complex than a situation involving the private ownership and private

management of a jail, for the reasons discussed above, we nevertheless do

not believe that the Legislature has authorized code cities to lease jails

from non-governmental entities.

Thus, in answer to your second question, in our opinion a code city may not

lease a jail from a non-governmental entity.

Your third question, repeated here for ease of reference, is as follows:

3. Assuming that the city employs the chief administrative officer of the

jail and retains direct accountability, does a code city have the authority

to contract with a non-governmental entity for services associated with the

jail? These services could include (but would not be limited by this list)

food services, janitorial services, guarding inmates, community supervision,

medical services, laundry, education, building maintenance and security.

RCW 70.48 requires a city that is primarily responsible for the operation of

a jail to discharge that responsibility either through its own corrections

department, if there be one, or through the city’s chief law enforcement

officer. In this regard, RCW 70.48.090(3) provides as follows:

A city or county primarily responsible for the operation of a jail or jails

may create a department of corrections to be in charge of such jail and of

all persons confined therein by law, subject to the authority of the

governing unit. If such department is created, it shall have charge of jails

and persons confined therein. If no such department of corrections is

created, the chief law enforcement officer of the city or county primarily

responsible for the operation of said jail shall have charge of the jail and

of all persons confined therein.

(emphasis added).

Where a statute confers specific functions to particular municipal officers

or boards, such functions may not be delegated to others unless the statute

expressly authorizes such delegation to some other officer or body. Noe v.

Edmonds School District, 83 Wn.2d 97, 103, 515 P.2d 977 (1973). See also

Roehl v. PUD 1, 43 Wn.2d 214, 240, 261 P.2d 92 (1953) ("Where the enabling

legislation under which a municipal or quasi-municipal corporation derives

its power confides legislative or discretionary functions in particular

officials or boards, such functions may not be delegated to others.")

However, "those in whom such functions repose may delegate to others the

performance of duties of a purely ministerial or administrative nature."

Roehl v. PUD 1, 43 Wn.2d at 240.

The Act does not expressly authorize the corrections departments or chief

law enforcement officers of governing units to delegate to others the duty

to "have charge of such jail and of all persons confined therein by law". In

this connection, we note again that the Act specifically authorizes a city

to contract for jail services only with the county in which it is located.

The Act does not define "jail services". However, given the purpose and

structure of the Act, we think "jail services" logically refers to the

provision of space for the holding, detention, or housing of persons, as

well as to the overall management of a jail and to the performance of other

jail-related correctional and law enforcement functions. Any reading of

"jail services" as excluding the overall management of a jail or the

performance of other jail-related correctional and law enforcement functions

would, we believe, render meaningless the Legislature’s specific delegation

to corrections departments or chief law enforcement officers of the

responsibility to "have charge of jails and all persons confined therein".

We find it useful at this point to return to the definition of "jail": a

holding, detention, special detention or correctional facility "operated by

a governing unit". RCW 70.48.020 (emphasis added). The performance by a

non-governmental entity of correctional or law enforcement functions with

respect to a given facility would seem to render that facility something

other than a "jail". As noted above, a city’s authority with respect to

jail-type facilities is limited to "jails". RCW 70.48.180.

Thus, we must conclude that a code city is not authorized to contract with a

non-governmental entity for the provision of jail-related services involving

the overall management of a jail or the performance of other correctional or

law enforcement functions. By way of reference to the list of examples

contained in your third question, we believe such services would include

community supervision, the guarding of inmates, and general jail security.

Conversely, we do not view either the language or purpose of the Act as

precluding a city from contracting for jail-related services with a

non-governmental entity where such entity will not be responsible for the

overall management of a jail and will not perform other correctional or law

enforcement functions. Stated another way, to the extent that these other

services may be viewed as within the corrections department’s or chief law

enforcement officer’s responsibility to have "charge of [the] jail and of

all persons confined therein", such services can reasonably be viewed as

administrative functions and thus susceptible of performance by others

through proper contracting procedures.

We emphasize that our conclusions are not the result of the rote application

of legal principles relating to municipal officers. As discussed in

connection with your second question, city and county jails form an

important part of an integrated, statewide system of holding, detention, and

correctional facilities. Persons incarcerated in city jails often are or

become committed to the custody of the Department of Corrections. Moreover,

the Legislature has specifically declared that it is the policy of this

state that city and county jails meet certain standards. Thus, we do not

find it surprising that, within the framework of a statute designed to

establish and maintain certain standards applicable to all jails, the

Legislature specifically placed the responsibility for the charge of jails

and inmates with those persons arguably in the best position to exercise the

most direct control over such matters, i.e. city and county corrections

departments or law enforcement agencies.

Finally, and not incidentally, we note that, unlike the Act, statutes from

some other states provide express authority for cities to contract with

non-governmental entities for the operation of correctional facilities. See,

e.g., TEX. LOC. GOV’T CODE § 361.061 (authorizing the governing body of any

Texas municipality to "contract with a private vendor or a county to provide

for the financing, design, construction, leasing, operation, purchase,

maintenance, or management of a jail, detention center, work camp, or

related facility."); ARK. CODE ANN. § 12-50-106 (a) (authorizing the

Arkansas corrections department, regional corrections commissions, and

political subdivisions "to enter into contracts with each other and with

prison contractors for the financing, acquiring, constructing and operating

of facilities".)

CONCLUSION

A code city is authorized to contract with a non-governmental entity for the

construction of a jail. A code city is not authorized to lease a jail from a

non-governmental entity. A code city is not authorized to contract with a

non-governmental entity for such entity to provide jail-related services

involving the overall management of a jail or the performance of other

correctional or law enforcement functions. A code city is authorized to

contract with a non-governmental entity for such entity to provide

jail-related services that do not involve the overall management of a jail

or the performance of other correctional or law enforcement functions.

We trust the above will be of assistance.

Very truly yours,

ROBERT J. FALLIS

Assistant Attorney General

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