OFFICES AND OFFICERS - STATE - STATE PATROL - PROMOTIONAL EXAMINATIONS FOR STATE PATROL

OFFICES AND OFFICERS - STATE - STATE PATROL - PROMOTIONAL EXAMINATIONS FOR STATE PATROL.

The chief of the Washington state patrol may establish separate promotional examinations based on reasonable job classifications under the provisions of RCW 43.43.330 requiring appropriate examinations for promotion of commissioned officers of the state patrol, subject to the limitation that there be only one eligible list.

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                                                                   April 29, 1959

Honorable Roy A. Betlach
Chief of the Washington State Patrol
General Administration Building
Olympia, Washington                                                                                                      Cite as:  AGO 59-60 No. 33

Attention:  Captain Clifford Aden

Dear Sir:

            You have requested the opinion of this office regarding the authority of the chief of the Washington state patrol to establish separate promotional examinations based on separate job classifications.  Specifically your question is:

            "Can the chief of the Washington State Patrol establish promotion examinations and eligible lists for weight control officers?"

            We answer your question in the affirmative as qualified in the analysis.

                                                                     ANALYSIS

            The statutory provisions governing the establishment, administration, and operation of the Washington state patrol are found in chapter 43.43 RCW.  RCW 43.43.330 through 43.43.360 codify a portion of chapter 192, Laws of 1949, and are controlling on the question under consideration.

            RCW 43.43.330 provides, in part, as follows:

             [[Orig. Op. Page 2]]

            "Appropriate examinations shall be conducted for the promotion of commissioned patrol officers.  The examinations shall be prepared and conducted under the supervision of the chief of the Washington state patrol, . . ."  (Emphasis supplied.)

            RCW 43.43.340 provides, in part, as follows:

            "The names of all officers who have passed examinations satisfactorily shall be placed on an eligible list in the order of the grade attained in the examinations.  . . ."

            The pertinent facts as we understand them are that all commissioned officers presently are given one promotion examination for each of the three supervisory ranks, i.e., sergeant, lieutenant, and captain.  Both traffic patrol and weight control officers are commissioned patrol officers and entitled to take such examinations.  Weight control officers generally work in the limited field of enforcing the traffic code relating to truck weight limits.  About ten percent of the commissioned patrol officers are assigned weight control duties.  Because the majority of the supervisory positions involve work in general traffic enforcement, as distinguished from the limited scope of the work in weight control enforcement, the examinations necessarily have been weighted towards measuring experience and knowledge of the wider scope of traffic enforcement generally.  Weight control officers work primarily in their specialty, generally doing general traffic control work only on week ends and holidays.  Because of the way the tests are weighted, weight control officers generally do not place as high in the examinations and this has resulted in a shortage of supervisors with weight control background.

            Your attention is directed to the fact that both of the pertinent code sections, set out above, use the term "examinations," plural, as distinguished from "examination," singular.

            InGraffell v. Honeysuckle, 30 Wn. (2d) 390, 399, 191 P. (2d) 858 (1948), our supreme court, citing authorities, prescribes the following general rule for construing statutes:

            "The fundamental object or purpose of all judicial construction or interpretation is to ascertain, if possible, and to give effect to, the intention of the lawmakers in enacting the particular statute. . . ."

             [[Orig. Op. Page 3]]

            State v. Houck, 32 Wn. (2d) 681, 684, 203 P. (2d) 693 (1949), enunciates another helpful rule of statutory construction.  It is there said on page 684, citing prior authority:

            "Where the language of a statute is plain, free from ambiguity, and devoid of uncertainty, there is no room for construction because the meaning will be discovered from the wording of the statute itself.  . . ."

            Application of the foregoing rules to the question under consideration forces the conclusion that RCW 43.43.330 is in fact somewhat ambiguous.  The use of the plural "examinations" could be interpreted either as authorizing separate examinations based on classification of jobs, or as merely authorizing separate examinations for promotions to the different ranks, or perhaps merely that they must be repeated from time to time.

            The determination that the statute is ambiguous in this respect compels resort to other rules of statutory construction.  State ex rel. State Ret. Bd. v. Yelle, 31 Wn. (2d) 87, 111, 195 P. (2d) 646; 201 P. (2d) 172 (1948) sets out the following rule:

            "The legislative intent is of course to be determined from reading the act itself, construing the terms and provisions therein according to their ordinary meaning, and giving consideration to the purposes and objects sought to be accomplished by the legislative enactment."

            InSpokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162, 169, 97 P. (2d) 628 (1940), the court said:

            ". . . the prime object is to ascertain the legislative intent as disclosed by all the terms and provisions of the act in relation to the subject of legislation, and by a consideration of the nature of the act, the general object to be accomplished, and the consequences that would result from construing the particular statute in one way or another. . . ."

            It would appear that the underlying purpose or object sought to be accomplished by the legislation herein is a promotion system based on merit, i.e., one that limits personality and political considerations in favor of ability and  [[Orig. Op. Page 4]] experience.  Reduced to its simplest form a merit system is designed to place the best qualified applicant in a particular job.  Any examination which does not measure the applicant's ability to fulfill the responsibilities of the particular type of position available is violative of the fundamental objectives of a merit promotion system, since it is not calculated to place the better qualified person in the available position.

            It would appear therefore, that where particular supervisory positions indicate the need for specific skills and experience the chief of the Washington state patrol would be empowered, if not required, under the statute, to provide "appropriate examinations." which would include the contemplated separate examinations under consideration.

            A quite different situation is presented, however, by the subordinate question of whether separate eligibility lists may be maintained for each separate examination.  A literal interpretation of RCW 43.43.340, set out above, indicates that only one eligible list is provided by law.  The statute being plain, free from ambiguity, and devoid of uncertainty is to be given its ordinary meaning.  Therefore, only one eligibility list may be maintained.  Any other conclusion would be difficult to support since the maintenance of separate lists would allow the chief to select from six persons rather than three as prescribed in the statute.  We have considered arguments in favor of a different solution but found them wanting in view of the plain wording of the statute and the apparent intention of the lawmakers that promotions be made from the top three persons on "an eligible list."  RCW 43.43.340.

            An additional precautionary word is perhaps indicated.  Our opinion that separate examinations are authorized is based on the avowed purpose of placing persons with weight control experience in weight control supervisory positions.  Should this device be used to promote weight control officers and subsequently transfer them to supervisory positions in general traffic enforcement, then the procedure would be used to thwart rather than facilitate the underlying objects of the merit system, and to that extent would be outside the authority of the chief.

            We have considered the possible application of RCW 43.43.370 to our analysis herein.  This section governs the appointment and promotion of staff and technical officers.  Such appointments are made and held at the will of the chief of the patrol.  A rather persuasive argument can be made that weight control duties are technical in nature and that promotions should be made under authority of this section which promotions would be without tenure.

             [[Orig. Op. Page 5]]

            Primarily because weight control officers are engaged in traffic enforcement, even if limited in scope to a small part of the traffic code, and because traditionally they have been considered line officers, we conclude that they are in fact properly classified.  We mention this consideration because of the possibility of construing their duties as technical in nature and thereby bringing them within the scope of the aforesaid statute rather than those statutes controlling promotion of line officers.  It can readily be seen that such a determination would render the foregoing conclusions of no effect.

            With the limitations last set out we therefore conclude that classification of promotional examinations with regard to differences in requisite skills is calculated to further the objective of the statute in question and therefore within the authority of the chief of the Washington state patrol.

            We trust the foregoing will be of assistance.

            Very truly yours,

            JOHN J. O'CONNELL
            Attorney General

            CHARLES R. JOHNSON
            Assistant Attorney General