(dissenting) — Having reviewed the State Higher Education Personnel Law, RCW 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 the court, undesirable in any event, is particularly flagrant in this instance. The rule announced goes far beyond the expressed purpose of the personnel statute and simply eliminates the authority to contract conferred by another statute, RCW 43.19.190(2).
The purpose of RCW 28B.16 is clearly stated in its opening paragraph:
The interests of state institutions of higher education and the employees of those institutions will be furthered by the enactment of a system of personnel administration designed specifically to meet particular needs in connection with employer-employee relations in the state institutions of higher education. The general purpose of this chapter is to establish a system of personnel administration for the institutions of higher education in the state which is based on merit principles and scientific methods, and which governs the appointment, promotion, transfer, layoff, recruitment, retention, classification *706and pay plans, removal, discipline, and welfare of employees covered under this chapter.
(Italics mine.) RCW 28B.16.010. It is clear that the coverage of the act is limited to matters of "personnel administration" and "employer-employee" relations. The act does not purport to dictate when the state must create a position of employment. It merely regulates the manner in which existing positions of employment are filled and governs the promotion, transfer, and dismissal of employees once they have been hired.
That the act protects employees, rather than particular services or types of work, is also abundantly clear from subsequent provisions of the act. The words "employees" or "personnel" appear in nearly every section, reiterating the purpose of protecting those persons. Not one single provision even so much as suggests the broader purpose of specifying particular services which must be performed by state employees.
Even RCW 28B. 16.040, upon which the majority relies, merely provides that no maintenance "employee" may be exempted from the act. This plainly means only that the state must provide the protections of RCW 28B.16 to all maintenance workers with whom it has established an employer-employee relationship. It does not mean that every time the state constructs a new building and thereby has a need for maintenance services, it must establish such a relationship by creating a new position of employment. The state has the option, or did until the majority decreed otherwise, to perform new services with its own employees or to contract out for those services.
No case construing RCW 28B.16 finds in the act any general direction as to what services might be contracted out by the state. Like the act, the cases applying it are confined to the protection of employee relationships which have been previously established by the state.
In Cunningham v. Community College Dist. 3, 79 Wn.2d 793, 489 P.2d 891 (1971), we held only that a college which for several years had operated a food service facility with *707its own employees, could not effectuate a termination of those employees by contracting out the services they performed. The termination was found not in accord with specific administrative regulations and the state was ordered to reinstate the protected employees to their positions. Nothing in that case suggests that the contracting out of food services would be unlawful where no current employees were affected.
In a related context, the Court of Appeals has recently held that where a reduction in force is necessary, a person employed in an unauthorized consultant status must be let go before a civil service employee protected by the act. Osterlof v. University of Washington, 17 Wn. App. 621, 564 P.2d 814 (1977). That case concerned two persons, one of whom though acting as an employee of the University, was classified not as an employee but as a "consultant", a non-civil service status. As to that person, it was clear that the University had attempted to circumvent RCW 28B.16 by establishing what essentially was an employer-employee relationship in a manner inconsistent with the requirements of the act. The other person involved was employed within the terms of RCW 28B.16 as a protected civil service employee. The only question in the case was which of these persons had job priority when a reduction in the work force became necessary. The court ruled in favor of the protected employee and ordered her reinstatement over the "unauthorized consultant".
Again, nothing in the case deals generally with the authority of a college to contract out services nor does it in any way suggest that RCW 28B.16 applies in situations where a position of employment has not been created by the state.
Purportedly relying on Osterlof and its own statement of the act's purpose, the majority concludes:
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 *708such 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.
By this pronouncement, the majority provides what the legislature did not. No basis in the statute for the specifics of this rule is identified; nor does the majority refer to any express provision in the statute which is violated by the contract or which evinces a legislative intent to govern matters not affecting established positions and employees. The reason for this omission of statutory authority is quite simple — there is none. The rule announced is neither mandated nor supported by the act; it is the product of judicial fiat.
Even if there were some basis of support for the majority's decision, RCW 43.19.190(2) compels a contrary result. That provision, last comprehensively amended by Laws of 1975-76, 2d Ex. Sess., ch. 21, § 2, p. 49, 50, delegates to the state purchasing director for the Department of General Administration the power to " [p] urdíase all material, supplies, services and equipment needed for the support, maintenance, and use of all . . . community colleges ..." (Some italics mine.)
The record contains a series of letters and memoranda from the Department of General Administration specifically authorizing Spokane Community College to purchase particular services, including "janitorial services". Thus, even if the provisions of RCW 28B.16 could be construed as implying that the contract was outside the authority of the college, the specific delegation evidenced by RCW 43.19.190 and these documents in the record direct a contrary result.
Judicial legislation as exemplified by the majority opinion is, in my view, impossible to justify when, as here, it deliberately reaches beyond the clearly stated purpose of an act. This incursion of the legislative function is particularly deplorable when it is accomplished in the face of an express statute to the contrary (RCW 43.19.190).
*709I dissent.
Stafford and Brachtenbach, JJ., concur with Hicks, J.
Reconsideration denied December 14, 1978.