PUBLIC EMPLOYMENT ‑- CIVIL SERVICE ‑- CITY POLICE ‑- RESOLUTION OF CITY COUNCIL REQUIRING POLICE OFFICERS TO TAKE EXAMINATIONS.

PUBLIC EMPLOYMENT ‑- CIVIL SERVICE ‑- CITY POLICE ‑- RESOLUTION OF CITY COUNCIL REQUIRING POLICE OFFICERS TO TAKE EXAMINATIONS. 

The chief of police and members of the department may be required to take an examination for their respective positions.  The City of Enumclaw may not employ more than two full-time paid police officers without having form of civil service for its police department.  The City of Enumclaw may not require the members of its police to take competitive examinations without establishing a civil service commission, pursuant to chapter 13 of the Laws of 1937, when it employs more than two full-time paid officers.

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                                                                   April 30, 1953

Honorable Charles O. Carroll
Prosecuting Attorney of King County
County City Building
Seattle, Washington                                                                                                                Cite as:  AGO 53-55 No. 24

 Attention:  !ttMr. F. A. Walterskirchen,Deputy Prosecuting Attorney

 Dear Sir:

            We acknowledge receipt of your letter of April 17, in which you request an opinion from this office regarding the effect of section 6, chapter 13, Laws of 1937, upon a resolution of the City Council of Enumclaw requiring its police officers to take examinations.

             More specifically, your questions are as follows:

             1.         "May the Enumclaw Chief of Police be required to take an examination for the position which he has held by appointment for the period starting in November, 1949?"

             2.         "May the police officer who has been a member of the department for the period since January, 1951, be required to take an examination for such position?"

             3.         "May the City of Enumclaw employ more than two full-time paid police officers without having any form of civil service for its police department?

              [[Orig. Op. Page 2]]

            4.         "May the City of Enumclaw require the members of its police department to take competitive examinations without establishing a civil service commission pursuant to Chapter 13 of the Laws of 1937 when it employs more than two full-time paid officers?"

             Our conclusions may be summarized as follows:

             Section 6, chapter 13, Laws of 1937, has no effect upon this resolution of the city council of Enumclaw, which requires its police officers to take examinations.

             We conclude that the first two questions in your request are answered in the affirmative, and the last two questions in the negative.

                                                                      ANALYSIS

            In your letter you relate the following situation with reference to the City of Enumclaw:

             "The City of Enumclaw, prior to April, 1947, employed two police officers, one known as the chief of police and the other as a patrolman.  In April of 1947 two additional full-time officers were added, making a total police force of four officers.  However, until February, 1953, no steps were taken by the City of Enumclaw to establish any civil service for the police department or to provide any means of examination and appointment.  In February of 1953 the city council adopted a resolution in effect requiring city police officers of the City of Enumclaw to take examinations and be given a physical examination, and further providing that present members of the Enumclaw Police Department could not be 'blanketed in.'  The present police force consists of four officers, the chief of police having been a member since April, 1947, and having been chief of police since November, 1949.  A second officer has been a member since January, 1951.  The other two officers have been members of the department about three months.  All members are full-time fully-paid officers."

             The legislature has provided that there is created in every city, except those cities already providing for civil service in the police department by local charter or regulations which substantially accomplished the purpose of the act, or those cities having a police force of not more than two persons, including the chief of police, a civil service commission which shall consist of three men.  (RCW 41.12.030, 41.12.010).

              [[Orig. Op. Page 3]]

            To effectuate the mandatory application of the provisions of this chapter upon all qualifying cities, the legislature has directed the cities affected by this chapter to enact appropriate legislation for carrying it into effect, and the failure upon the part of the duly constituted authorities of any city so to do, shall be considered a violation of the chapter and be punishable as such.  (RCW 41.12.170).  Violation of this chapter constitutes a misdemeanor.  (RCW 41.12.210).

           To prevent delay, injury, or interruption by reason of this enactment, which has been passed for the benefit of public service, the legislature further provided that all persons holding a position in the police department of any city on June 9, 1937, who had served in such positions continuously for a period of at least six months prior thereto, and were not on probation, were eligible for permanent appointment under civil service to the offices, places, positions, or employment which they then held, without examination or other act on their part.  Every such person was automatically adopted and inducted permanently into civil service, into the office, place, position, or employment which he then held as completely and effectually to all intents and purposes as if such person had been permanently appointed thereto under civil service after examination and investigation.  (RCW 41.12.060, § 6, chapter 13, Laws of 1937).

             This particular section, however, is inapplicable to the situation before the City of Enumclaw.  Prior to April 1947, the City of Enumclaw's police force consisted of the chief and one patrolman, bringing it within the exception of RCW 41.12.010, which excepted cities having a police force of not more than two persons.  In April of 1947, when two full-time policemen were added to the force by the city, it is our opinion that the provisions of the act immediately became effective, and that within ninety days after the appointment of the additional full-time policeman, it was the mandatory duty of the mayor to appoint three persons to serve as civil service commissioners, and pursuant to RCW 41.12.040 (1) and (2), conduct the required examinations.

           The present chief of police, who received his appointment as such in November, 1949, but who was added to the police force originally in April, 1947, was not adopted into the system upon the application of chapter 13 to the City of Enumclaw.  Your letter indicates that because of his appointment, the police force then constituted more than two full-time policemen.

             It is, therefore, the opinion of this office that both the chief of police and the police officer who has been a member since January, 1951, cannot qualify for permanent appointment without undergoing a civil service examination.  We do, however, refer to an opinion issued from this office June 25, 1946, directed to the Prosecuting Attorney of King County in which an analogous situation was answered in part as follows:

              [[Orig. Op. Page 4]]

            "However, it should be noted that section 4 of the statute above quoted permits appointments to be made on the basis of merit, efficiency and fitness which shall be ascertained by open, competitive examinations andimpartial investigation.  It is our view that theimpartial investigation which is specified by the statute to be one of the means of determining the merit, efficiency, and fitness of the individual may include an investigation into his experience and demonstrated efficiency as shown by his actual performance of duty during the time he was actually on the job, and that the board is fully justified in taking these matters into consideration along with the results of the examination in determining eligibility."

             It is further the opinion of this office, after an analysis of the statute, that the City of Enumclaw may not employ more than two full-time police officers without having any form of civil service for its police department, and that it is the mandatory duty of the city authorities to establish a civil service commission pursuant to chapter 13, Laws of 1937, before it can require the members of its police department to take the competitive examination.

 Very truly yours,
DON EASTVOLD
Attorney General 

PHYLLIS DOLVIN
Assistant Attorney General