Did Washington public works procedures apply to port district construction projects in 1978?

Plain-English summary

A Washington senator asked whether the public works rules in chapter 39.04 RCW applied to port districts. The AG concluded in 1978 that port districts were municipalities covered by that chapter. The chapter’s definition excluded several kinds of reclamation and drainage districts, but the AG found that port districts had much broader transportation and commercial purposes and did not fit that exception.

The answer had a precise scope. Chapter 39.04 RCW addressed procedures such as plans, specifications and cost records whether a public agency hired a contractor or used its own workers. The AG said other statutes determined when a port had to call for bids or use a particular construction method, and it did not resolve that question.

“the provisions of chapter 39.04 RCW are, indeed, applicable to the construction of public works by public port districts organized pursuant to Title 53 RCW.” (Official opinion)

Currency note

This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Were port districts exempt because they could develop land?
A: The AG said no. The listed exclusions concerned districts principally formed to reclaim or develop waste or undeveloped land. Port districts had broader statutory purposes; incidental land development did not put them in that exception.

Q: Did this opinion require a port to seek bids for every construction contract?
A: No. The AG expressly left bidding requirements to other statutes, including port district laws, and addressed only whether chapter 39.04 RCW applied.

Q: Did the public works chapter cover projects done by port employees?
A: The AG described its procedural rules as applying regardless of whether a covered agency contracted with an outside firm or used its own labor force.

Background and statutory framework

RCW 39.04.010 defined “municipality” broadly, with express exclusions for specified drainage, diking, irrigation and similar districts. Applying the rule that a general term after specific exclusions covers similar things, the AG read the residual exclusion as limited to comparable reclamation districts. Port districts’ authorized functions extended well beyond that purpose. The AG also construed exceptions to the chapter strictly.

Citations and references

The opinion applied chapter 39.04 RCW and its definition in RCW 39.04.010. It identified RCW 53.08.120-53.08.130 as among the other laws relevant to construction method and bidding questions.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/districts-port-public-works-projects-contracts-applicability-chapter-3904-rcw-public

Original opinion text

Attorney General Slade Gorton

DISTRICTS ‑- PORT ‑- PUBLIC WORKS PROJECTS ‑- CONTRACTS ‑- APPLICABILITY OF CHAPTER 39.04 RCW TO PUBLIC PORT DISTRICTS

The provisions of chapter 39.04 RCW, relating to public works projects by the state and certain municipalities, are applicable to public port districts organized pursuant to Title 53 RCW.

May 3, 1978

Honorable Alan Bluechel
State Senator, 45th Dist.
9901 N.E. 124th, #505
Kirkland, Washington 98033

Cite as: AGO 1978 No. 14

Dear Sir:

By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

Are the provisions of chapter 39.04 RCW, relating to public works projects by the state and certain municipalities, applicable to public port districts organized pursuant to Title 53 RCW?

We respond to your inquiry in the affirmative for the reasons set forth in our analysis below.

ANALYSIS

Chapter 39.04 RCW relates, primarily, to the public works projects of state agencies and municipalities. Generally speaking, such projects may be engaged in by those agencies either through contracts with outside firms or, in limited cases, by means of the agency's own employed labor force. It is important to note and understand, however, that chapter 39.04 RCW doesnot purport to say when, in the case of a given public agency, one or the other of those two procedures must be utilized. Instead, that question is [[Orig. Op. Page 2]] governed by other laws such as, in the case of port districts, RCW 53.08.120-53.08.130. It is those laws, and not the one here under consideration, which are determinative, for example, of whether in a given case, a particular public agency is required to call for public bids before entering into a public works contract. Accordingly, this opinion, in dealing only with chapter 39.04 RCW pursuant to your request, will not reach that question.

Basically, what chapter 39.04 RCW does cover is the procedures which must be followed by the state or a municipality, regardless of whether it enters into a contract for a public works project or utilizes its own labor force, insofar as such things as the preparation and publication of plans and specifications and the maintenance of accounts and records of costs is concerned. In other words this law is, in essence, designed to insure public accountability in connection with public works projects regardless of which method is utilized for their accomplishment.

Bearing that in mind we may now turn, directly, to your question. For the purposes of chapter 39.04 RCW, the term "public work" is defined by RCW 39.04.010 as follows:

". . .

"The term public work shall include all work, construction, alteration, repair or improvement other than ordinary maintenance, executed at the cost of the state or of any municipality, or which is by law a lien or charge on any property therein, but nothing herein shall apply to the construction, alteration, repair or improvement of any municipal street railway system.

". . ."

Likewise, the term "municipality" is expressly defined in RCW 39.04.010 as follows:

". . .

"The term municipality shall include every city, county, town, district or other public agency thereof which is authorized by law to require the execution of public work, except [[Orig. Op. Page 3]] drainage districts, diking districts, diking and drainage improvement districts, drainage improvement districts, diking improvement districts, consolidated diking and drainage improvement districts, consolidated drainage improvement districts, consolidated diking improvement districts, irrigation districts or any such other districts as shall from time to time be authorized by law for the reclamation or development of waste or undeveloped lands.

". . ."

In our opinion this latter term does encompass public port districts as provided for in Title 53 RCW. Clearly, such districts are not among those which are expressly excluded from the definition;i.e., drainage districts, diking districts, diking and drainage improvement districts, drainage improvement districts, diking improvement districts, consolidated diking and drainage improvement districts, consolidated drainage improvement districts, consolidated diking improvement districts, and irrigation districts. Nor, in our judgment, do port districts fall within the further "catch all" language of the statute which also excludes from the definition ". . . any other such districts as shall from time to time be authorized by law for the reclamation or development of waste or undeveloped lands."

The rule or principle of statutory construction which is here applicable is that which is known as the "ejusdem generis rule." In essence, this principle of statutory interpretation requires that general terms appearing in a statute in conjunction with precise, specific terms shall be accorded meaning and effect only to the extent that the general terms suggest items or things similar to those designated by the precise or specific terms. State v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951). Thus, in the case of the definition of "municipality" which is set forth in RCW 39.04.010,supra, the general language last above quoted, following the specific enumeration of certain expressly identified categories of special purpose districts which are excluded from the definition (and, hence, from the application of chapter 39.04 RCW), must be taken to encompass only such other districts as are like those enumerated and have been established, principally, for the same purpose, i.e., the reclamation or development of waste or undeveloped lands. As set forth in RCW 53.04.010 and related statutes, however, [[Orig. Op. Page 4]] the stated and authorized purposes of public port districts, while incidentally including reclamation and related land development, quite obviously go far beyond those purposes alone. Thus, to begin with, RCW 53.04.010 itself provides that:

"Port districts are hereby authorized to be established in the various counties of the state for the purposes of acquisition, construction, maintenance, operation, development and regulation within the district of harbor improvements, rail or motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, or any combination of such transfer and terminal facilities, and other commercial transportation, transfer, handling, storage and terminal facilities, and industrial improvements."

In addition, by other statutes, port districts are authorized to perform such functions as the operation of foreign trade zones (RCW 53.08.030), the acquisition and operation of trade centers (RCW 53.29.020), the operation of various enumerated toll facilities such as bridges, tunnels and the like (RCW 53.34.010) and even the maintenance and operation of municipal airports. From this it will readily be seen that although given port district activities may, conceivably, involve the ". . . reclamation or development of wate or undeveloped lands . . .," such districts are not principally authorized by law to be formed for those purposes, as such. And, simply stated, we do not think that the legislature, in enacting RCW 39.04.010,supra, intended to exclude or exempt certain municipalities from this law merely on the basis of their possession of incidental land development or reclamation functions.

In addition, it is important to note that the critical language of RCW 39.04.010,supra, is contained in what constitutes a statutory exception to the general rule of the statute. Under another principle of statutory construction, however, such exceptions are to be strictly construed. See,e.g.,Hall v. Corp. Catholic Archbishop, 80 Wn.2d 797, 498 P.2d 844 (1972) and cases cited therein. Under that rule one who claims the benefit of an exception to a legislative enactment has the burden of bringing himself clearly within [[Orig. Op. Page 5]] it and must prove every fact essential to invocation of the exception. In short, any doubts regarding the applicability of a statutory exception to a given person or legal entity are properly to be resolved against the exception and in favor of the applicability of the general rule enunciated in the statute.

In conclusion, therefore, our direct answer to your question is in the affirmative‑-meaning, in our opinion, that the provisions of chapter 39.04 RCW are, indeed, applicable to the construction of public works by public port districts organized pursuant to Title 53 RCW.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General