LAW ENFORCEMENT OFFICERS ‑- CIVIL SERVICE ‑- REGULATIONS ‑- CRIMINAL JUSTICE TRAINING COMMISSION

LAW ENFORCEMENT OFFICERS ‑- CIVIL SERVICE ‑- REGULATIONS ‑- CRIMINAL JUSTICE TRAINING COMMISSION 

WAC 139-05-200 is unenforceable insofar as it purports to require commissioned law enforcement personnel employed before January 1, 1978, to complete a 440-hour basic law enforcement academy if they experience an interruption of employment in excess of 90 days.

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                                                                 February 3, 1989

Mr. James C. Scott
Executive Director
Washington State Criminal
 Justice Training Commission
Mail Stop: PW-11
Olympia, Washington 98504

Cite as:  AGO 1989 No. 2                                                                                                                  

 Dear Mr. Scott:

             By letter previously acknowledged, you requested our opinion on two questions which we paraphrase as follows:

            1.         Is WAC 139-05-200(2)(c)(ii) valid in requiring commissioned law enforcement personnel employed before January 1, 1978, who experience a break or interruption of employment in excess of 90 days, to complete a 440-hour basic law enforcement academy?

             2.         If question (1) is answered affirmatively, are periods of disability leave and disability retirement properly treated as breaks or interruptions of employment under the rule?

             For the reasons set forth in the following analysis, we answer your first question in the negative.  Our negative response to your first question makes an answer to your second question unnecessary.

              [[Orig. Op. Page 2]]

                                                                      ANALYSIS

             WAC 139-05-200(2)(c)(ii) is a rule of the Washington State Criminal Justice Training Commission promulgated under the authority of chapter 43.101 RCW.  That chapter creates the Commission and charges it with establishing training standards and providing training programs for criminal justice personnel.  The Commission's rulemaking authority is set forth in RCW 43.101.080, as follows:

                         The commission shall have all of the following powers:

                        . . .

                         (2) To adopt any rules and regulations as it may deem necessary;

                        . . .

                         (8) To establish, by rule and regulation, standards for the training of criminal justice personnel where such standards are not prescribed by statute;

                        . . .

                         (10) To establish, by rule and regulation, minimum curriculum standards for all training programs conducted for employed criminal justice personnel;

                        . . .

                         (18) To establish rules and regulations recommended by the training standards and education boards prescribing minimum standards relating to physical, mental and moral fitness which shall govern the recruitment of criminal justice personnel where such standards are not prescribed by statute or constitutional provision.

                        . . . .

             Although the rulemaking authority of the Commission under RCW 43.101.080 is quite broad, it is not unlimited.  Rules of administrative agencies must be reasonably consistent with the statutes they implement.  Administrative agencies may not amend or change enactments of the Legislature by rules.  Coast Pac. Trading, Inc. v. Department of Rev., 105 Wn.2d 912, 917, 719 P.2d 541 (1986);Kitsap-Mason Dairymen's Ass'n v. Washington State Tax Comm'n, 77 Wn.2d 812, 815, 467 P.2d 312 (1970).

              [[Orig. Op. Page 3]]

             These limitations on the rulemaking authority of administrative agencies dictate that the validity of WAC 139-05-200(2)(c)(ii) be considered in light of chapter 43.101 RCW, the legislation implemented by the rule.  In this respect, RCW 43.101.200(1) is particularly important.  It provides:

             All law enforcement personnel, except volunteers, and reserve officers whether paid or unpaid,initially employed on or after January 1, 1978, shall engage in basic law enforcement training which complies with standards adopted by the commission pursuant to RCW 43.101.080 and 43.101.160.  Such training shall be successfully completed during the first fifteen months of employment of such personnel unless otherwise extended or waived by the commission and shall be requisite to the continuation of such employment. (Emphasis supplied.)

             It seems evident that the Legislature imposed the basic law enforcement training referenced in RCW 43.101.200(1) as a condition of continued employment only with respect to law enforcement personnel "initially employed" on or after January 1, 1978.  It imposed no such requirement with respect to law enforcement personnel employed before that date.  Indeed, by establishing the requirement with respect to the former group and not the latter, the Legislature effectively exempted law enforcement personnel employed before January 1, 1978 from having to engage in the basic law enforcement training as a condition of continued employment.  SeeGeneral Tel. Co. v. Utilities & Transp. Comm'n, 104 Wn.2d 460, 470, 706 P.2d 625 (1985);Dominick v. Christensen, 87 Wn.2d 25, 26, 548 P.2d 541 (1976) (recognizing that the express inclusion of requirements in a statute mandates exclusion of additional requirements not expressed).

             The Commission's rule regarding the basic law enforcement training referred to in RCW 43.101.200(1) is WAC 139-05-200, the regulation about which you have inquired.  The rule provides in part:

                         (1) All full-time commissioned law enforcement employees of a city, county, or political subdivision of the state of Washington, except officers of the Washington state patrol, unless otherwise exempted by the Washington state criminal justice training commission, shall as a condition of continued employment successfully complete a 440-hour basic law enforcement academy sponsored or conducted by the commission, or obtain a certificate of equivalent basic training from the commission.  This requirement of basic law enforcement training shall be met within the  [[Orig. Op. Page 4]] initial fifteen-month period of law enforcement employment, unless otherwise extended by the commission.

                         (2) Law enforcement personnel exempted from the requirement of subsection (1) of this section shall include:

                        . . .

                         (c) Commissioned personnel

                        . . .

                       (ii) Whose initial date of continuing, full-time, regular and commissioned law enforcement employment within the state of Washington precedes January 1, 1978, and such employment is without break or interruption in excess of ninety days; . . .

                        . . . .

             In this rule, the Commission generally recognizes the exemption from mandatory basic law enforcement training established by RCW 43.101.200(1) for law enforcement personnel employed before January 1, 1978.  The rule, however, places conditions on that exemption, including relatively continuous or unbroken employment after January 1, 1978.1/

             Under the rule, a break or interruption of employment in excess of 90 days causes loss of the exemption.

             The question to be resolved, then, is whether this particular condition‑-the absence of a break or interruption of employment in excess of 90 days‑-is reasonably consistent with RCW 43.101.200(1).  In our view, the continuous employment condition of WAC 139-05-200(2)(c)(ii) conflicts with RCW 43.101.200(1) and therefore is invalid.

            As we explained above, RCW 43.101.200(1) effectively exempts from the basic law enforcement training established in WAC 139-05-200(1) law enforcement personnel employed before January 1, 1978.  It does so by requiring such training only for law enforcement personnel "initially employed on or after January 1, 1978".  We do not believe a law enforcement officer employed as such before January 1, 1978, who experiences a break in service  [[Orig. Op. Page 5]] and is later reemployed can be said to be "initially employed"‑-i.e., first employed2/

             ‑-after January 1, 1978.  Yet that is the thrust of WAC 139-05-200(2)(c)(ii).  In this respect, the rule is contrary to RCW 43.101.200(1) and is invalid.

             We believe this result is compelled simply by reference to the language of RCW 43.101.200(1).  However, even if the language of the statute were less clear, the legislative history of the measure also supports our conclusion.  Consideration of successive drafts of legislative enactments, while not conclusive, is a useful tool in determining legislative intent where that intent is doubtful.  Hamma Hamma Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 450, 536 P.2d 157 (1975);Ayers v. Tacoma, 6 Wn.2d 545, 557-58, 108 P.2d 348 (1940).

             RCW 43.101.200(1) was enacted in 1977 with passage of Reengrossed Senate Bill 2418.  Laws of 1977, 1st Ex. Sess., ch. 212, § 2, p. 788.  When this measure initially was considered in the 1977 Extraordinary Session, it contained the following section:

             On and after the effective date of this 1977 amendatory act, compliance with training standards for law enforcement personnel, except volunteers, adopted by the commission pursuant to RCW 43.101.080 and 43.101.160 shall be requisite to the lawful exercise of arrest authority specially or generally conferred by law:  PROVIDED, That this section shall not be applicable to law enforcement personnel whose beginning date ofcontinuous law enforcement employment is prior to January 1, 1978.

 Reengrossed Senate Bill 2418, § 2, 45th Legislature (1977) (emphasis added).

             By amendment in the House of Representatives, this section of the bill was stricken and ultimately was replaced with the current language of RCW 43.101.200(1).  House Journal, 45th Legislature (1977), at 918, 928, 1118-1119, 1542.3/

             In so amending the  [[Orig. Op. Page 6]] original measure, the Legislature deleted from it a specific requirement of continuous employment as a condition of exemption from basic law enforcement training for law enforcement personnel hired before January 1, 1978.  It is essentially this same requirement that the Commission has attempted to revive in the rule.

             In summary, insofar as WAC 139-05-200(2)(c)(ii) imposes a condition of continuous employment on the exemption from basic law enforcement training under RCW 43.101.200(1) for law enforcement personnel hired before January 1, 1978, it is inconsistent with RCW 43.101.200(1) and is invalid.

             We trust that this opinion will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

MAUREEN HART
Sr. Assistant Attorney General