PROMOTION OF QUALIFIED MINORITY AND FEMALE COMMISSIONED OFFICERS

OFFICES AND OFFICERS ‑- STATE ‑- WASHINGTON STATE PATROL ‑- AFFIRMATIVE ACTION ‑- PROMOTION OF QUALIFIED MINORITY AND FEMALE COMMISSIONED OFFICERS

(1) Under the law as it now exists, the Chief of the Washington State Patrol may not promote otherwise qualified minority and female commissioned officers to the line ranks of sergeant and lieutenant referred to in RCW 43.43.330 who do not occupy one of the top three positions on the promotion list noted in RCW 43.43.340.

(2) While the Chief may so promote qualified minority and female commissioned officers to the staff ranks of sergeant and lieutenant, he may not then assign them, with those ranks, to line or field command positions.

(3) The Chief may not establish the rank of staff corporal, make promotions thereto of either minority or non-minority commissioned officers who are not among the top three names on the sergeant's eligibility list, and then assign them, with that rank, to line or field position.

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                                                               December 21, 1981

Honorable Neil W. Moloney, Chief
Washington State Patrol
General Administration Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1981 No. 29

Dear Sir:

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

            (1) May the Chief of the Washington State Patrol promote otherwise qualified minority and female commissioned officers to the line ranks of sergeant and lieutenant referred to in RCW 43.43.330 who do not occupy one of the top three positions on the promotion list noted in RCW 43.43.340?

            (2) If question (1) is answered in the negative, may the Chief so promote qualified minority and female  [[Orig. Op. Page 2]] commissioned officers to the staff ranks of sergeant and lieutenant and then assign them to line or field command position?

            (3) May the Chief establish the rank of staff corporal, make promotions thereto of either minority or non-minority commissioned officers who are not among the top three names on the sergeant's eligibility list, and then assign them with that rank to line or field position?

            We answer your first question in the negative, your second question in the negative as qualified in our analysis, and your third question in the manner set forth therein.

                                                                     ANALYSIS

            Question (1):

            In responding to your second and third questions, below, we will note and explain the apparent legislative recognition, manifested by the applicable statutes, of a distinction between line and staff ranks or positions within the Washington State Patrol.  Your first question, however, deals specifically with the line ranks of sergeant and lieutenant which are referred to in RCW 43.43.330.  You have asked:

            May the Chief of the Washington State Patrol promote otherwise qualified minority and female commissioned officers to the line ranks of sergeant and lieutenant referred to in RCW 43.43.330 who do not occupy one of the top three positions on the promotion list noted in RCW 43.43.340?

            Several separate sections of chapter 43.43 RCW, relating to the Washington State Patrol, are involved in this inquiry.  They read, respectively, in pertinent part as follows:

            RCW 43.43.020:

            ". . .

            "The chief shall appoint a sufficient number of competent persons to act as Washington state patrol officers, may  [[Orig. Op. Page 3]] remove them for cause, as provided in this chapter, and shall make promotional appointments, determine their compensation, and define their ranks and duties, as hereinafter provided.

            ". . ."

            RCW 43.43.330:

            "Appropriate examinations shall be conducted for the promotion of commissioned patrol officers to the rank of sergeant and lieutenant. . . .  Examinations shall be given once every three years, or whenever the eligible list becomes exhausted as the case may be.  After the giving of each such examination a new eligible list shall be compiled replacing any existing eligible list for such rank.   . ."

            RCW 43.43.340:

            "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. . . .

            "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.

            ". . ."

            RCW 43.43.350:

            "Eligibility for examination or promotion shall be determined as follows:

            "Patrol officers with one year of probationary experience, in addition to three years experience as a regular patrolman, shall be eligible for examination for the rank of sergeant; patrol officers with one year of probationary experience in the rank of sergeant, in addition to two years as a regular sergeant, shall be eligible for examination for the rank of lieutenant."

             [[Orig. Op. Page 4]]

            RCW 43.43.360:

            "All newly appointed or promoted officers shall serve a probationary period of one year after appointment or promotion, whereupon their probationary status shall terminate, and they shall acquire regular status in the particular grade, unless given notice in writing to the contrary by the chief prior to the expiration of the probationary period.

            "During his one year probationary period any newly appointed officer may be removed, or any officer promoted through examinations may be demoted to his previous rank by the chief without charges being preferred and without benefit of a hearing, as might otherwise be required under this chapter."

            As above quoted, RCW 43.43.340 expressly requires that all promotions to the two line ranks referred to in RCW 43.43.330 be made on the basis of an eligibility list established after the specified promotional examinations have been administered.  It further requires that all candidates for promotion be ranked on the list in accordance with their examination grade and, most significantly, that all promotions be made from the top three names on the list.  Therefore, unless a minority or female commissioned officer's name is among the top three names at the time a particular promotion to line sergeant or line lieutenant is to be made, there is no basis in the statute for selecting such an officer for the promotion.

            In so concluding we are, of course, fully conscious of the concept of "affirmative action" as it has been recently enunciated by both the Washington Supreme Court and the United States Supreme Court.  The basic aim of this concept is the alleviation, by affirmative action, of the effects of past racial or other unconstitutional discrimination.  See,DeFunis v. Odegaard, 82 Wn.2d 11, 29, 507 P.2d 1169 (1973).  However, in no case has either our own court or the U.S. Supreme Court held that affirmative action is constitutionally required;  rather, as of today, it remains only a constitutionally permissible concept.  Regents of the University of California v. Bakke, 438 U.S. 265, 57 L.Ed.2d 750, 98 S.Ct. 2733 (1978);DeFunis v. Odegaard, supra;  and see also,Offermann v. Nitkowski, 378 F.2d 22 (2nd Cir., 1967).

             [[Orig. Op. Page 5]]

            From the standpoint of statutory (rather than constitutional) law, two related points are also worth noting.  First, although it is fundamental that state agencies have only those powers which have been granted to them by the legislature,1/ it is not necessary that there be specific, express statutory authority in order for an agency to establish and engage in an affirmative action program.  See, again,DeFunsi v. Odegaard,supra.  But secondly, notwithstanding that proposition, it has also been established by court rulings that in the absence of aconstitutional or federal statutory requirement to pursue a particular course of affirmative action, such a program may not be established by a state agency if to do so would conflict with a state statutory prohibition or regulation.  See,State Employees v. Personnel Board, 87 Wn.2d 823, 557 P.2d 336 (1976); and compare, Lindsay v. Seattle, 86 Wn.2d 698, 706, 548 P.2d 320 (1976).

            This brings us, then, to the critical point insofar as your first question is concerned.  By their express terms, RCW 43.43.330 and 43.43.340, supra, represent, in effect, just such a statutory prohibition.  And, accordingly, question (1) must be answered in the negative.

            Questions (2) and (3):

            Your second question, in turn, anticipates (or assumes) the foregoing negative answer to question (1) and asks whether, nevertheless, the Chief may,

            ". . . promote female and minority commissioned officers to the staff ranks of sergeant and lieutenant and then assign them to line or field command positions . . ."

            And your third question, which also runs along the same lines, asks:

            May the Chief establish the rank of staff corporal, made promotions thereto of either minority or non-minority commissioned officers who are not among the top three names on the sergeant's eligibility list, and then assign them with that rank to line or field position?

             [[Orig. Op. Page 6]]

            These two questions particularly involve another section of chapter 43.43 RCW;  namely, RCW 43.43.370 which reads, in material part, as follows:

            "The chief of the Washington state patrol may appoint such staff or technical officers as he deems necessary for the efficient operation of the patrol, and he may assign whatever rank he deems necessary to such staff or technical officers for the duration of their service as such.

            "Staff or technical officers may be returned to their line rank or position whenever the chief so desires.  Staff or technical officers without line command assignment and whose duties are of a special or technical nature shall hold their staff or technical rank on a continuing probationary basis;  however, such staff or technical officers, if otherwise eligible, shall not be prevented from taking the line promotion examinations, and qualifying for promotion whenever the examinations may be held.

            ". . ."

            In addition, see RCW 43.43.380 which provides that:

            "The minimum monthly salary paid to state patrol officers shall be as follows:  Officers, three hundred dollars;  staff or technical sergeants, three hundred twenty-five dollars;  line sergeants, three hundred fifty dollars;  lieutenants, three hundred seventy-five dollars;  captains, four hundred twenty-five dollars."

            It is by these statutes, read in context with RCW 43.43.330-43.43.360,supra, that the legislature appears to have manifested an intent to distinguish between line and staff or technical positions within the Washington State Patrol.  Unlike those line positions referred to in RCW 43.43.330-43.43.360, appointments to staff positions may be made by the Chief whenever he deems such appointments to be ". . . necessary for the efficient operation of the patrol . . ."  And, in turn, the Chief ". . . may assign whatever ranks he deems necessary to such staff or technical officers for the duration of their service as such."

            From the standpoint of your second questions, therefore, two separate issues are required to be resolved.  First, may the ranks  [[Orig. Op. Page 7]] of sergeant or lieutenant be assigned to such staff or technical positions as are established pursuant to RCW 43.43.370 so as to permit persons to be appointed, or promoted, thereto without going through RCW 43.43.330-43.43.360, supra?  And second, may persons so appointed to those staff or technical ranks then be assigned‑-with those ranks‑-to line or field command positions.

            We believe that while the first of these inquiries is answerable in the affirmative, the second must be answered in the negative.

            (a)Assignment of the Ranks of Sergeant or Lieutenant to Staff or Technical Positions:

            It is interesting to note that the entire set of statutes with which we are here concerned, RCW 43.43.020 and RCW 43.43.330-43.43.380, supra, all originated as parts of the same 1949 act, chapter 192, Laws of 1949.  As we have explained, RCW 43.43.330-43.43.360 provide for merit promotions to the line ranks of sergeant and lieutenant.  Once those ranks are achieved and the prescribed probationary periods served, the officer cannot be demoted without a hearing.

            In turn, RCW 43.43.370 contemporaneously provided for appointments to staff or technical positions and ranks based upon the function of the position held rather than through an examination process.  That statute places no limitation on the rank or ranks which may be assigned to a staff or technical officer.  Moreover, such an officer may be returned to his or her "line rank or position" at the Chief's discretion.  Or, such an officer may pursue a merit promotion to a higher "line" rank while serving in a "staff" rank if he or she is otherwise eligible.

            Also, it is notable that RCW 43.43.380, supra, in providing minimum salaries for State Patrol officers, specifically distinguishes between the pay of "staff or technical sergeants" and that of "line sergeants."  While there is no similar reference in that statute to "staff" lieutenants, as opposed to "line" lieutenants, we think the same distinction may be established as to that rank as well.

            It therefore follows, in our opinion, that under the scheme established by the 1949 legislature, as manifested by RCW 43.43.020 and 43.43.330-43.43.380,supra, it is permissible to use the ranks of sergeant and lieutenant in connection with staff and technical positions as well as line positions.

             [[Orig. Op. Page 8]]

            (b)Assignment of Staff Sergeants or Staff Lieutenants to Line Positions:

            Applying the same analysis, however, it is likewise clear to us that the legislature intended a distinction between "staff" and "line" ranks, insofar as the assigned functions of persons holding those ranks is concerned.  RCW 43.43.370, for example, allows the Chief to return a staff officer to a line position whenever he so desires.  Further, that statute requires that an officer returning to "line operations" also return to the rank he or she holds "in the line command."

            Thus, in summary, "line" service is covered by a distinct promotional system based on examination criteria and attended by distinct functions characterized as "line functions."  An officer always holds a line rank, and may be assigned in either a line or a staff position.  In turn, his or her staff rank may differ from his or her line rank.  But the officer cannot carry the staff rank to a line position unless, of course, his or her line rank is the same as the staff rank assigned.

            Therefore, in direct answer to your second question, it is our opinion that the Chief may promote a competent female or minority commissioned officer to the staff rank of sergeant or lieutenant and then later assign that officer to a line command position.  However, such officer cannot retain that staff rank upon being so reassigned unless he or she has been promoted to the particular rank pursuant to RCW 43.43.330-43.43.360.2/

             The foregoing response to your second question also largely answers your third question.  We believe that the language of RCW 43.43.370, supra, does permit the Chief to establish the rank of staff corporal and to promote persons to that rank, regardless of either their gender or race or their position on an established promotion list.  However, the functions to which such staff corporals could be assigned would be limited to those which are truly "staff or technical" positions as we have earlier identified  [[Orig. Op. Page 9]] them, and would exclude those which are purely "line command assignments."

            A related question which might be asked, in turn, is whether the Chief may simply establish the rank of "line corporal" and make promotions to that rank without reference to the eligibility and examination process.  Accord, RCW 43.43.020,supra, which (once again) provides in pertinent part:

            ". . .

            "The chief shall appoint a sufficient number of competent persons to act as Washington state patrol officers, may remove them for cause, as provided in this chapter, and shall make promotional appointments, determine their compensation, and define their ranks and duties, as hereinafter provided.

            ". . ."

            It is our understanding, however, that there does not now exist, nor has there ever existed, a "line" corporal rank or position.  Moreover, RCW 43.43.330,supra, simply does not provide for that rank.  But, at the same time, the apparent thrust of RCW 43.43.330-43.43.360,supra, is to require that promotion toall line ranks above that of trooper be based upon prescribed eligibility and examinational criteria.  Since the rank of line corporal was not provided for in that context, we conclude that the legislature did not intend for it to exist.

            In sum, it is commendable that you are seeking every means available to you to correct any lingering effects of past discrimination.  Such good intentions, however, cannot always be the parent of action where there are statutes limiting discretion.  Such is the case hereuntil changed bythelegislature.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General