Letter Opinion 1972 No. 038

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                                                                   May 15, 1972

Honorable Robert C. Ridder
State Senator, 35th District
5809 South Roxbury
Seattle, Washington 98118                                                                                            Cite as:  AGLO 1972 No. 38 (not official)

Dear Sir:
 
            This is written in response to your recent letter, previously acknowledged, requesting our opinion on two questions pertaining to the appointment of police officers under the civil service system which is provided for in chapter 41.12 RCW.  We paraphrase these questions as follows:
 
            (1) Where the mayor or other person empowered by law to appoint police officers in a city governed by chapter 41.12 RCW has submitted a requisition to the civil service commission for a person eligible to be appointed to fill a vacancy, and the commission has responded by certifying the name of the person highest on the eligible list for the class to which the vacant position has been allocated who is willing to accept the appointment, does the appointing authority retain any discretion, at this point in time, to refuse to follow through with the appointment?
 
            (2) If question (1) is answered in the negative, what legal remedy is available to the person who has thus been certified to the appointing authority to compel the appointment to be made?
 
            We answer question (1) in the negative and question (2) as set forth in our analysis.
 
                                                                     ANALYSIS
 
            By its enactment of chapter 13, Laws of 1937, now codified as chapter 41.12 RCW, the legislature established a uniform civil service system for the police officers of all cities which have not established systems of their own pursuant to a local ordinance or charter provision.1/   The procedures to be followed in appointing  [[Orig. Op. Page 2]] persons to fill vacancies in positions covered by this act are set forth in § 11, now codified as RCW 41.12.100, as follows:
 
            "Whenever a position in the classified service becomes vacant, the appointing power, if it desires to fill the vacancy, shall make requisition upon the commission for the name and address of a person eligible for appointment thereto.  The commission shall certify the name of the person highest on the eligible list for the class to which the vacant position has been allocated, who is willing to accept employment.  If there is no appropriate eligible list for the class, the commission shall certify the name of the person standing highest on said list held appropriate for such class.  If more than one vacancy is to be filled an additional name shall be certified for each additional vacancy.  The appointing power shall forthwith appoint such person to such vacant position.
 
            "Whenever requisition is to be made, or whenever a position is held by a temporary appointee and an eligible list for the class of such position exists, the commission shall forthwith certify the name of the person eligible for appointment to the appointing power, and said appointing power shall forthwith appoint the person so certified to said position.  No person so certified shall be laid off, suspended, or given leave of absence from duty, transferred or reduced in pay or grade, except for reasons which will promote the good of the service, specified in writing, and after an opportunity to be heard by the commission and then only with its consent and approval.
 
            "To enable the appointing power to exercise a choice in the filling of positions, no appointment, employment or promotion in any position in the classified service shall be deemed complete until after the expiration of a period of three to six months' probationary service, as may be provided in the  [[Orig. Op. Page 3]] rules of the civil service commission during which the appointing power may terminate the employment of the person certified to him, or it, if during the performance test thus afforded, upon observation or consideration of the performance of duty, the appointing power deems him unfit or unsatisfactory for service in the department, whereupon the appointing power shall designate the person certified as standing next highest on any such list and such person shall likewise enter upon said duties until some person is found who is deemed fit for appointment, employment or promotion for the probationary period provided therefor, whereupon the appointment, employment or promotion shall be deemed to be complete."
 
            Question (1):
 
            Because you have indicated a necessity to have our opinion within a very short period of time it has not been possible for us to complete an exhaustive research into all of the potentially analogous cases from other jurisdictions which might bear upon the issue raised by your primary question.  We have, however, satisfied ourselves that this question should be answered in the negative on the basis of what appears to us to be the plain, clear and unambiguous language of RCW 41.12.100, supra, on its face.  In our opinion, this statute leaves the appointing authority with no discretion as to whether to follow through and fill a vacancy once the civil service commission has certified the appropriate individual to him in response to his earlier requisition.  At this point in the proceedings, the statute says unequivocally that ". . .  The appointing power shall forthwith appoint such person to such vacant position."2/
 
             [[Orig. Op. Page 4]]
            Without a doubt, it is entirely up to the appointing authority whether to requisition a name to fill a civil service vacancy in his police department in the first place.  At this earlier point in time, the statute simply requires the procedures provided for therein to be followed ". . . if it [the appointing authority] desires to fill the vacancy, . . ."  But to read the final sentence of the first paragraph of RCW 41.12.100 as manifesting a legislative intent to have this same discretion retained at the time the certified name is received by the appointing authority would be to read words into the statute which nowhere appear within its four corners, and this, of course, we cannot do.  See, State ex rel. Hagan v. Chinook Hotel, 65 Wn.2d 573, 399 P.2d 8 (1965), and cases cited therein.  Instead, in examining the critical language of this statute we must be governed by the basic rule that where the wording of a law is plain and unambiguous, it must be taken to mean precisely what it says; in such a case there is simply nothing for the court (or this office) to interpret.  In re Baker's Estate, 49 Wn.2d 609, 610, 304 P.2d 1051 (1956).
 
            Moreover, even if RCW 41.12.100 were to be regarded as ambiguous on the point at issue, our answer would be the same.  While it is true that in certain limited contexts the ordinarily mandatory word "shall" has been read by the courts to mean "may" (see, State ex rel. McDonald v. Stevenson, 176 Wash. 355, 29 P.2d 400 (1934)), this hardly strikes us as a tenable approach where, as in the statute now before us, this word of command is immediately followed with the word "forthwith."
 
            In addition, our reading of the last sentence of paragraph one of the statute as being mandatory would appear to be in harmony with, and thus supported by, the final paragraph of the statute.  This paragraph (in effect) provides the legislature's answer to the practical question ‑ how is the appointing authority to be allowed to make some choice between individuals in filling the vacancy in question if he is required to appoint the single individual certified to him by the civil service commission in response to his initial requisition?  The legislature's answer, repeated for ease of reference, is as follows:
 
            "To enable the appointing power to exercise  [[Orig. Op. Page 5]] a choice in the filling of positions, no appointment, employment or promotion in any position in the classified service shall be deemed complete until after the expiration of a period of three to six months' probationary service, as may be provided in the rules of the civil service commission during which the appointing power may terminate the employment of the person certified to him, or it, if during the performance test thus afforded, upon observation or consideration of the performance of duty, the appointing power deems him unfit or unsatisfactory for service in the department, whereupon the appointing power shall designate the person certified as standing next highest on any such list and such person shall likewise enter upon said duties until some person is found who is deemed fit for appointment, employment or promotion for the probationary period provided therefor, whereupon the appointment, employment or promotion shall be deemed to be complete."
 
            Question (2):
 
            Our answer to your first question, therefore, is in the negative ‑ and we turn to your second question which asks:  How may the requirement of RCW 41.12.100 be enforced by the individual whose name has been certified to the appointing authority but who has not been appointed to the vacancy for which the requisition was made?
 
            As you must understand, the mere fact that we answer question (1) as we do in this advisory opinion to you will not necessarily, by and of itself, have the effect of inducing the mayor or other appointing officer of a particular city to make a prompt appointment to a vacancy within his police department for which he has previously submitted a requisition to the civil service commission.  Perhaps, acting on advice received from his own city attorney or from some other competent source, he will feel that in the absence of a prior Washington case squarely in point he should decline to act and cause the matter to be litigated.
 
             [[Orig. Op. Page 6]]
            If this should occur, the ultimate legal remedy (or appeal) of the aggrieved individual whose name was certified by the commission to fill the vacancy would be that of mandamus under RCW 7.16.150, et seq.  This is a form of legal action which may be commenced in the superior court of the county in which the cause of action arose3/
 
            ". . . to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, . . ."  (RCW 7.16.160.)
 
            Under RCW 7.16.170, this type of action may be brought in any case where there is not a plain, speedy and adequate remedy in the ordinary course of law.  Thus, before proceeding down this path the individual in question should be advised (presumably with the assistance of his own legal counsel) to explore the possibilities of some form of initial review at the administrative level under such local civil service regulations as may exist in his city.  We are satisfied, however, that if the review of a failure to appoint is not covered by any such local rules, mandamus will then lie ‑ for we have found no other provision for either appeal to the courts or for administrative review of an appointing authority's refusal to proceed with an appointment once an eligible person has been certified to him under RCW 41.12.100, supra.4/
 
             We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL

Philip H. Austin
Deputy Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/See, RCW 41.12.010, codifying § 1 of the act.
 
2/Notably, this language is identical both to § 11, chapter 31, Laws of 1935 (RCW 41.08.100) which pertains to civil service for municipal firemen, and to § 13, chapter 1, (Initiative 23) Laws of 1959 (RCW 41.14.130) dealing with county sheriffs' employees.  We have found no prior court decisions or opinions of this office interpreting any of these statutes from the standpoint of the issue which you have raised, however of course, this may merely constitute a testimonial to the clarity of these statutes in this regard.
 
3/See, RCW 4.12.020 (2).
 
4/The only reference either to administrative or judicial appeals in chapter 41.12 RCW is to those pertaining to a removal, suspension, demotion or discharge, as provided for in RCW 41.12.090.