CITIES AND TOWNS ‑- CIVIL SERVICE ‑- POLICE OFFICERS

CITIES AND TOWNS ‑- CIVIL SERVICE ‑- POLICE OFFICERS

Officers of the city of Auburn police force who were appointed on July 8, 1937, were "blanketed" into civil service as permanent employees in the positions they presently enjoy.

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                                                                     July 6, 1956

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 293

Attention:  !ttMr. F. A. Walterskirchen

            Chief Criminal Deputy

Dear Sir:

            On behalf of the mayor of the city of Auburn, you have requested an opinion from this office pertaining to the civil service status of certain police officers on the Auburn police force.

            The facts and circumstances of legal relevance surrounding the appointment of the officers in question will be developed in the analysis below.  With regard to these facts and circumstances, your question may be paraphrased as follows:

            Were officers of the city of Auburn police force, who were appointed on July 8, 1937, "blanketed" into civil service as permanent appointees pursuant to § 6, chapter 13, Laws of 1937, in the positions they presently enjoy?

            In view of the facts set forth in our analysis below, the question is answered in the affirmative.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]                                                                          

            Chapter 13, Laws of 1937 (chapter 41.12 RCW), established a civil service system applicable to the police department of any city or town meeting certain specifications provided by the statute.  This statute became effective on June 9, 1937.                                                                            

            On that date the police department of the city of Auburn consisted of two police officers: Mr. Ed Norris, chief, and Mr. C. L. Ludwig, patrolman.  Mr. Ludwig had occupied his position as patrolman since July 27, 1934.  He had previously served as chief of police from June, 1927, to April 10, 1933.

            On July 8, 1937, thirty days after the date chapter 13, Laws of 1937, became effective, Mr. Ludwig was appointed chief of police to replace Mr. Norris who had just resigned.  Mr. Ludwig has served as Auburn's chief of police since that date to the present time without interruption.  Also on July 8, 1937, Mr. W. E. Morrison was appointed as a patrolman to replace Mr. Ludwig in that position.

            On January 4, 1938, a third individual, Mr. Floyd Abro, was appointed as patrolman to augment the police force which at that time consisted of the two officers heretofore mentioned: Mr. Ludwig, chief, and Mr. Morrison, patrolman.  Apparently at this time, Mr. Morrison was promoted to assistant chief of police, and he has served in that position to the present time without interruption.

            On May 16, 1939, the city of Auburn adopted Ordinance No. 882 which created a civil service commission for the police department and which by reference adopted chapter 13, Laws of 1937.  Inasmuch as the city had not established a civil service system at the time Chief Ludwig and Assistant Chief Morrison were appointed to their positions, it should be pointed out that these officers were appointed without being required to take civil service examinations.  Moreover, since the time Ordinance No. 882 was enacted, they have not been required by the civil service commission to take such examinations.

            It was not until September 15, 1947, that the civil service commission promulgated and published general rules and regulations relative to the administration of civil service in the police department of Auburn.  Rule III, Sec. 2, of General Rules and Regulations, Civil Service Commission, City of Auburn, provided in part:

            "* * * all persons holding a position in the Police Department, including the Chief thereof, on May 16, 1939 at 12 o'clock midnight, and who served in such  [[Orig. Op. Page 3]] position for a period of at least six months prior to said last named date continuously are permanently appointed under Civil Service to the offices, places, positions or employments which they then held respectively, without examination or other act on their part and not on probation, and every such person by said acts respectively is automatically adopted and inducted permanently into Civil Service into such office, place, position or employment which such person then held, as completely and effectually to all intents and purposes as if such person had been permanently appointed thereto under Civil Service after examination and investigation."

            In view of the foregoing facts, the question is now presented whether, within the meaning of § 6, chapter 13, Laws of 1937, Chief Ludwig and Assistant Chief Morrison were "blanketed" into the Auburn civil service system in the positions they presently enjoy.

            Section 6, chapter 13, Laws of 1937, provides:

            "For the benefit of the public service and to prevent delay, injury, or interruption therein by reason of the enactment of this act, all persons holding a position in the police department of any such city, including the chief thereof, when this act takes effect, who shall have served in such position for a period of at least six (6) months last past continuously, are hereby declared eligible for permanent appointment under civil service to the offices, places, positions or employments which they shall then hold, respectively, without examination or other act on their part, and not on probation; and every such person is hereby automatically adopted and inducted permanently into civil service, into such office, place, position or employment which such person then holds as completely and effectually to all intents and purposes as if such person had been permanently appointed thereto under civil service after examination and investigation."

            This section is codified as RCW 41.12.060, which omits the work "such" in the phrase "police department of any such city" and substitutes "on June 9, 1937," the correct effective date of the act, for the phrase  [[Orig. Op. Page 4]] "when this act takes effect."  Since the language of the session law is controlling, the meaning of the term "such" in connection with the phrase "police department of any such city" becomes important.

            Section 1, chapter 13, Laws of 1937 (RCW 41.12.010), provides:

            "The provisions of this act shall have no application to cities and towns which at the present time have provided for civil service in the police department or which shall subsequently provide for civil service in the police department by local charter or other regulations which said local charter or regulations substantially accomplish the purpose of this act, nor to cities having a police force of not more than two persons including the chief of police."

            In addition, § 4 of the act further provides in part:

            "The classified civil service and provisions of this act shall include all full paid employees of the police department of each city, town or municipalitycoming within its purview, including the chief of that department * * *" (Emphasis supplied)

            In view of § 1 and § 4 thereof, chapter 13, Laws of 1937, on its effective date, June 9, 1937, had no application to the city of Auburn's police department by reason of the fact that (1) the police department was composed of only two persons, i.e., Chief Norris and Patrolman Ludwig, and (2) Auburn had not provided for a civil service system substantially the same as that created by the act.  Hence, on June 9, 1937, it was not possible for any Auburn police officer to be "blanketed" into a civil service system.  Auburn simply did not come within the purview of the act.  It was not, within the meaning of § 6 of the act, "any such city," i.e., a city to which the act was made applicable.

            It is therefore necessary to determine the effect of § 6, chapter 13, Laws of 1937, as to cities which were excepted from the purview of the act by § 1 and § 4 thereof when the act became effective on June 9, 1937, but which at a later time came within the purview of the act by reason of an increase in police personnel.  Auburn is such a city.

            It may be possible to construe § 6 of the act to mean that, with regard to a city failing to come within the purview of the act at its effective date,  [[Orig. Op. Page 5]] persons employed in the police department could not possibly be "blanketed" into a civil service system created at any later time when the act might become applicable to such a city.  This would mean that June 9, 1937, would be theonly operative date by reference to which a police officer could be permanently appointed without examination.  Thus, supposing a city had but two policemen for the past fifteen years, under this construction they could not be "blanketed" into civil service if a third man were hired at the present date thereby bringing the city within the purview of the civil service act; because those policemen would not have been employed on June 9, 1937, even though the civil service act would not have been applicable to them at that time.

            We reject this construction of § 6 on the ground that it is not consistent with the intent of the legislature in enacting this provision.

            The legislative purpose of providing that certain employees might be "blanketed" into the civil service system is revealed by the very language of § 6 to be "for the benefit of the public service and to prevent delay, injury, or interruption therein by reason of the enactment of this act."  It cannot be said the need "to prevent delay, injury, or interruption" in the public service is any less urgent with respect to cities coming within the purview of the act after its effective date, June 9, 1937, than it was for cities coming within its purview on that date.

            We must therefore conclude that, as a matter of statutory construction, § 6 must mean that, with regard to cities coming within the purview of chapter 13, Laws of 1937, after the effective date thereof, "all persons holding a position in the police department of any such city" at the time the act became effective as to that city, "and who shall have served in such position for a period of at least six (6) months last past continuously," would be adopted into civil service without examination.  We believe that such a construction accords with reason as well as the express intent of the legislature in enacting § 6.

            We might add that the conclusion we have reached in this regard is in accord with the construction of § 6, chapter 13, Laws of 1937, that we adopted in a prior opinion requested by your office relative to the civil service status of certain police officers employed by the police department of the city of Enumclaw.  AGO No. 53-55-24 [[to C. O. Carroll, Prosecuting Attorney, King County on April 30, 1953]].

             [[Orig. Op. Page 6]]

            With respect to the city of Auburn, chapter 13, Laws of 1937 became applicable to the police department of that city on January 4, 1938, when Mr. Abro was appointed patrolman.  His appointment raised the membership of the police department to three persons so that, under § 1 of the act, civil service became applicable to the department.  Thus, the applicability of § 6, as construed in this opinion, to Mr. Ludwig and Mr. Morrison must be determined with reference to the date January 4, 1938.  At that time, Mr. Ludwig had served as chief of police for a period of six months less four days, inasmuch as he had been appointed chief on July 8, 1937.  Mr. Morrison had served an identical period as patrolman, having apparently been appointed assistant chief on January 4, the very date which the civil service act became applicable to Auburn's police department.

            Having concluded that the civil service act became applicable to the Auburn police department on January 4, 1938, when the third policeman was hired, we now find it necessary to consider the effect of § 18 and § 20 of the act, which concern the implementation of the civil service scheme in cities to which the act applies.

            Section 18, chapter 13, Laws of 1937 (RCW 41.12.170), provides:

            "The various cities affected by the provisions of this act, shall immediately upon the taking effect thereof, enact appropriate legislation for carrying this act into effect, and the failure upon the part of the duly constituted authorities of any such city so to do shall be considered a violation of this act and be punishable as such."

            Section 20, chapter 13, Laws of 1937, further provides:

            "In ninety (90) days after the taking effect of this act, it shall be the duty of the duly constituted authorities in each such city, subject to the provisions of this act, to appoint and create a civil service commission as provided for in section 1 hereof, and the failure upon the part of said duly constituted authorities, or any of them, so to do, shall be deemed a violation of this act, and shall be punishable as such."

             [[Orig. Op. Page 7]]

            It should be noted for the sake of clarity that § 20 has not been codified, and, in addition, the reference in that section to § 1 of the act seems incorrect.  It is § 3 of the act (RCW 41.12.030) which creates a civil service commission in the cities affected.

            Reading § 18 and § 20 together, we conclude that the statute requires that local implementing legislation be enacted within ninety days after the taking effect of the act.  Applying this construction to the instant problem, Auburn was required by the act to pass an ordinance establishing civil service within ninety days of January 4, 1938, i.e., by April 4, 1948.  However, it was not until May 16, 1939, more than a year later, that the city enacted Ordinance No. 882, establishing civil service.  In the meantime, Mr. Ludwig had served as chief of police for almost two years and Mr. Morrison as assistant chief almost a year and a half.  During that period, these officers were given no opportunity to comply with civil service requirements owing to the city's failure to implement the program in accordance with § 18 and § 20 of the act.

            By so doing, we are convinced that the city waived any right it might have had to insist that Mr. Ludwig and Mr. Morrison take civil service examinations as chief and assistant chief upon the inauguration of civil service in Auburn on May 16, 1939.  That the commission itself seems to have taken this view appears clear inasmuch as neither officer was ever requested to take an examination after May 16, 1939, and, furthermore, the May 16, 1939, date was adopted by the commission as the operative date of reference by which the six month prior service requirement was to be calculated for "blanketing in" purposes.  Rule III, § 2, General Rules and Regulations, Civil Service Commission, City of Auburn.  It is noteworthy too, that these rules and regulations were not promulgated and published until September 15, 1947, almost ten years after the passage of Ordinance No. 882, which as a practical matter established civil service in Auburn.  The commission cannot now require these officers after they have served in their respective positions for more than eighteen years without interruption to comply with a statutory provision which, by failure of the city to implement it for a period in excess of a year after it became effective, was made impossible of compliance on the part of the officers involved.

             [[Orig. Op. Page 8]]

            We therefore conclude that Mr. Ludwig and Mr. Morrison presently hold permanent appointments under civil service in the police department of Auburn in the positions they presently enjoy.

            We hope the foregoing analysis will prove helpful to you.

Very truly yours,

DON EASTVOLD
Attorney General

J. CALVIN SIMPSON
Assistant Attorney General