Letter Opinion 1971 No. 070

- - - - - - - - - - - - -
 
 
                                                                    May 7, 1971
 
 
 
Honorable Gordon L. Walgren
State Senator, 23rd District
Legislative Building
Olympia, Washington 98501                                                  Cite as:  AGLO 1971 No. 70 (not official)
 
 
Dear Sir:
 
            This is written in response to your recent request for an opinion of this office regarding the applicability of civil service standards to the appointment of the police chief for the city of Bremerton, a first class, charter city.
 
                                                                     ANALYSIS
 
            RCW 41.12.050, relating to the classified civil service for city police officers, provides as follows:
 
            "The classified civil service and provisions of this chapter shall include all full paid employees of the police department of each city, town or municipality coming within its purview, including the chief of that department.  All appointments to and promotions in said department shall be made solely on merit, efficiency and fitness, which shall be ascertained by open competitive examination and impartial investigation.  No person shall be reinstated in or transferred, suspended or discharged from any such place, position or employment contrary to the provisions of this chapter."  (Emphasis supplied)
 
            It is, of course, true that this statute is not, itself, applicable to those cities and towns which (in the words of RCW 41.12.010):
 
            ". . . 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 chapter, nor to cities having a police force of not more than two persons including the chief of police."  (Emphasis supplied)
 
             [[Orig. Op. Page 2]]
            Likewise, in the particular case of first class cities, it is the general rule that such cities (including the city of Bremerton) possess legislative authority as broad as the legislature itself, to the extent that this authority is exercised in a manner consistent with the state constitution, statutes, and (if the legislative act is an ordinance) with the city's own charter.  Winkenwerder v. Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958), and cases cited therein.
 
            Thus, in a given city ‑ particularly a first class, charter city such as Bremerton ‑ the legal possibility exists that a locally established police department civil service system might be held to ". . . substantially accomplish the purpose of this chapter [i.e., chapter 41.12 RCW] . . ." even though its police chief was not covered.  However, we are not faced with this question here, for it seems apparent to us from our review of the existing charter of the city of Bremerton which you have transmitted to us in connection with your request that the appointment of the police chief is governed by civil service rules in that city.
 
            We first note that § 19 of the charter authorizes the appointment of the chief of police by the commissioner of public health and safety ‑ and that this section, by and of itself, makes no reference to any civil service criteria.  However, this power of appointment is by no means inconsistent with the status of the police chief as a classified employee under the civil service system.  See, AGO 51-53 No. 519 [[AGO 51-53-35 to Prosecuting Attorney, Grays Harbor County on May 7, 1951]], and AGO 53-55 No. 245 [[to Gordon Sandison, State Representative on April 21, 1954]], copies of both of which are enclosed.
 
            Turning next to §§ 34-39 of the charter, dealing specifically with the subject of civil service, we find therein the following pertinent provisions:
 
            "Section 35. COMMISSION, RULES AND POWERS:
 
            ". . .
 
            "(b) The Commission shall provide for the classification of all employees excepting unskilled day laborers temporarily employed, the elective officers mentioned in the previous sections of this Charter and the appointive officers previously mentioned in this Charter except as hereinafter otherwise provided.
 
             [[Orig. Op. Page 3]]
            "(c) All full paid employees of the Fire Department and Police Department of the city shall be included under the provisions of this article, and all existing provisions of State law pertaining to such employees are hereby adopted and made a part hereof insofar as may be required to accomplish the the [sic] purpose of this article in conformity with said laws.
 
            ". . ."
 
            Section 39 of the charter is also pertinent, and provides as follows:
 
            "1. There shall be excepted from the operation of this article the following: Mayor, Commissioner of Finance and Accounting, Commissioner of Public Works and Utilities, City Clerk and Purchasing agent, City Attorney, Municipal Judge, Health Officer, and all nonsalaried members of appointive boards and commissions.
 
            "2. There shall be included within the scope of this act, excepting as may be otherwise prohibited by State Law.  All other appointive officers, including the following:  City Treasurer, City Engineer, Superintendent of Streets, Building Inspector, Superintendent of Garbage, Superintendent of Water, and all other directors or heads of departments or heads of supervisions.  All appointive officers set forth in '2' of this section, shall be subject to removal as such at any time by the appointing officers or authority and maybe without cause returned to the place, position, or employment held by them, if any, in the classified civil service immediately prior to their appointment, but shall not be discharged from their employment under the classified civil service except for cause as herein provided."
 
            It seems to us that these charter provisions establish, in clear and unambiguous language, the applicability of the civil service system to the chief of the Bremerton police department.  Simply stated, this appointive official (as provided for in § 19, supra) is not one of those officials who are excluded from the classified service by the first paragraph of § 39 of the charter, supra, and, accordingly, it follows that he is thus covered by the civil service system under the express language of the second paragraph of this section.
 
             [[Orig. Op. Page 4]]
            Thus, the ultimate conclusion which we reach in this opinion is that the provisions of the Bremerton city charter regarding the appointment of its police chief, and the applicability of its civil service system to this official, are consistent with the standards laid down in RCW 41.12.050, supra.
 
            It is hoped that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Robert F. Hauth
Assistant Attorney General