ELIGIBILITY OF HIGHWAY PATROL OFFICER ON MILITARY LEAVE TO COMPETE IN PROMOTIONAL EXAMINATION -- POLICY OF DEPARTMENT WITH REGARD TO SUCH PERSONNEL FINISHING HIGH IN SUCH EXAMINATION

ELIGIBILITY OF HIGHWAY PATROL OFFICER ON MILITARY LEAVE TO COMPETE IN PROMOTIONAL EXAMINATION --POLICY OF DEPARTMENT WITH REGARD TO SUCH PERSONNEL FINISHING HIGH IN SUCH EXAMINATION.

An officer of the State Patrol on military leave is eligible to take a promotional examination and if entitled to promotion and assignment, may receive the same notwithstanding his absence and the position should be filled temporarily in the same manner as it would be had he been promoted and qualified prior to the beginning of his leave of absence.

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                                                                 January 10, 1952

Honorable James A. Pryde,Chief
Washington State Patrol
Olympia, Washington                                                                                              Cite as:  AGO 51-53 No. 209

Dear Sir:

            Receipt is acknowledged of your letter of January 2, 1952, in which you request our opinion on the following:

            "Is an officer of this Department, who is on military leave, eligible to compete in a promotional exam during such leave?

            "Also, assuming that in case the above officer is eligible to compete in such promotional exam, and finishes high on the list, what policy should this Department follow when it is necessary to make an assignment from the eligibility list and the officer on military leave is not available for such assignment?"

             [[Orig. Op. Page 2]]

            It is our conclusion that an officer of the department on military leave is eligible to compete in a promotional examination and that if he becomes entitled thereby to promotion and assignment while he is not available to assume the duties, the position must be filled temporarily in the same manner as it would be had he been promoted and qualified prior to the beginning of his leave of absence.

                                                                     ANALYSIS

            Chapter 192, Laws of 1949 (§ 6362-61a et seq. Rem. Supp. 1949) prescribes the procedure for promotions.  The law calls for the holding of periodic examinations for the purpose of compiling eligible lists from which officers shall be selected for promotion.  Certain qualifications are prescribed for eligibility for promotion in section 4 of the act (§ 6362-61c Rem. Supp. 1949) based upon length of service in rank.  None of the qualifications prescribed, however, excludes a person on leave of absence.  There is thus nothing in the law that would prevent a person upon leave of absence from competing in a promotional examination during such leave.

            Section 3 of the act (§ 6362-61b Rem. Supp. 1949) prescribes:

            "* * * After an eligible list is made up all promotions shall be made from the three top names on the applicable list, and each officer shall be informed in writing as his name is included in the top three on an eligible list.  No officer whose name appears within the top three on any eligible list shall be passed over for promotion more than three times.  * * *"

            After an eligible list has been compiled initially there is some discretion on the part of the chief in determining which of the three top men shall receive the promotion.  However, this does not permit any name to be passed over more than three times.  No exception is made in the act with respect to any person who is not immediately available for duty when the time for promotion and assignment occurs.  The rule is no different with respect to persons absent on military leave from those absent on leave for any other purpose, and we believe that the same rules should apply.

             [[Orig. Op. Page 3]]

            Since the statute makes no exception of persons not immediately available for duty, it is our opinion that such a person is entitled to promotion and assignment and if he is not immediately available the position must be filled temporarily in the same manner as it would be had he been promoted and qualified prior to the beginning of his leave of absence.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General