VETERANS ‑- PREFERENCE IN PUBLIC EMPLOYMENT ‑- PERSONS ENTITLED TO PREFERENCE AND CONDITION UNDER WHICH IT APPLIES ‑- CIVIL SERVICE ‑- PROBATIONARY EMPLOYEE

VETERANS ‑- PREFERENCE IN PUBLIC EMPLOYMENT ‑- PERSONS ENTITLED TO PREFERENCE AND CONDITION UNDER WHICH IT APPLIES ‑- CIVIL SERVICE ‑- PROBATIONARY EMPLOYEE.

(1) Veterans' preference in competitive examinations for and in the appointment and selection of public employment is limited to wartime veterans.  Preference in re‑employment [[reemployment]]is not limited to wartime veterans.

(2) An employee who is in a probationary status under civil service at the time of his enlistment or induction into military service returns to state employment in a probationary status.

(3) A probationary employee who has enlisted or has been inducted into the military service may not be discharged while he is in the military service.

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                                                               November 29, 1962

Honorable Daniel F. Donohoe
Director, Highway Personnel Department
Highway-License Building
Olympia, Washington

                                                                                                              Cite as:  AGO 61-62 No. 180

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on several questions which we paraphrase as follows:

            (1) In order to receive "veterans' preference" in public employment, is it necessary to be a veteran of a war in which the United States was engaged?

            (2) Does an employee who is in a probationary status under the civil service law at the time of his enlistment or induction into the military service return to state employment with probationary status, or does he return with permanent status, assuming that his initial employment plus his military service totals at least six months?

            (3) May a probationary employee who has enlisted or been inducted into military service be dismissed even though he may be in the military service at the time?

            We answer questions (1) and (2) in the analysis and question (3) in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            During the years since statehood our legislature, at several sessions, has seen fit to enact statutes providing for what is commonly referred to as "veterans' preference."  Such preference is provided (1) in appointment and employment for positions in public service (chapter 84, Laws of 1895, as last amended by § 1, chapter 29, Laws of 1951, RCW 73.16.010); (2) in the restoration to their former positions following military service (RCW 73.16.031, et seq); (3) in competitive examinations for public employment (RCW 41.04.010).  For your convenience we are enclosing a copy of these statutes in their entirety.

            Our court has often said that all legislation relating to the same subject matter must be read together and effect given as far as practicable to all acts of the legislature.  See, for example,Olympia State Bank & Trust Co. v. Craft, 56 Wn. (2d) 546, 354 P. (2d) 386 (1960).

            In AGO 59-60 No. 152 [[to Prosecuting Attorney, King County on October 14, 1960]], a copy of which is enclosed, we discussed the phrases "honorably discharged veteran," "veteran of a war in which the United States was engaged" and "military campaigns for which a campaign badge was issued."  These phrases are present in the subject statutes but because it would unduly lengthen this opinion to again discuss their meaning in detail, we refer you to that opinion.

            By applying the above rules of statutory construction and previously defined phrases, we answer your questions as follows:

            Question (1):

            In order to receive "veterans' preference" in public employment, is it necessary to be a veteran of a war in which the United States was engaged?

            The answer to this question is dependent upon the nature of the veteran's preference being claimed.

            (a) The benefits of preference in appointment and employment are found in RCW 73.16.010, which reads as follows:

            "In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded, and their widows, shall  [[Orig. Op. Page 3]] be preferred for appointment and employment.  Age, loss of limb, or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them, provided they possess the capacity necessary to discharge the duties of the position involved."

            From the face of the statute it is apparent that its application is limited to honorably discharged soldiers, sailors and marines (and we presume airmen) who are veterans of any war of the United States or of any military campaign for which a campaign badge was issued.  The widows of such veterans are also entitled to the benefits of this statute.

            The word "widow" is universally defined as a woman who has lost her husband by death and has not remarried.  See,Whittlesey v. Seattle, 94 Wash. 645, 163 Pac. 193 (1917), and Webster's New International Dictionary, 2nd ed.  We believe this definition is applicable to that phrase as it is used in the above‑quoted statute.

            (b) In respect to re‑employment [[reemployment]]of veterans, RCW 73.16.033 provides in part as follows:

            "If such person is still qualified to perform the duties of his former position, he shall be restored to that position or to a position of like seniority, status and pay.  If he is not so qualified as a result of disability sustained during his service, or during the determination of his fitness for service, but is nevertheless qualified to perform the duties of another position, under the control of the same employer, he shall be reemployed in such other position:  Provided, That such position shall provide him with like seniority, status, and pay, or the nearest approximation thereto consistent with the circumstances of the case."

            This statute is not limited to wartime veterans but is equally applicable to those persons who serve our country in military service in time of peace.  The eligibility requirements are prescribed in RCW 73.16.035.

            (c) RCW 41.04.010 provides for preference in competitive examinations for public employment and for promotional examinations in such employment.  This statute reads as follows:

            "In all competitive examinations, unless  [[Orig. Op. Page 4]] otherwise provided herein to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its political subdivisions and all municipal corporations, shall give a preference status to all veterans, as herein defined, of all wars in which the United States of America has been, now is or may hereafter be engaged, by adding to the mark, grade or rating, based upon a possible rating of one hundred points as perfect, ten percent to his final earned test rating:  Provided, That he has received a minimum passing grade in such examination.

            "The term 'veteran' as herein used, includes every person who has served, now is serving, or may hereafter serve in any branch of the armed forces of the United States during any such war, including the Korean conflict, and, upon termination of the service, has received an honorable discharge, or a physical discharge with an honorable record, or has been relieved of active services under honorable circumstances.

            "The provisions of this section shall not be applicable to promotional examinations to determine the qualifications of officers or employees for promotion from a lower grade position to a higher grade position:  Provided, That when such a veteran was employed in public service at the time of his entry into military service and returns to the same employment, he shall be entitled to the preference herein provided for on his first promotional examination."

            The foregoing statute is expressly limited to honorably discharged veterans of a war in which the United States was engaged or is hereafter engaged, including the Korean conflict.  The proviso applicable to promotional examinations is also so limited.  A proviso in a statute, unless the context clearly indicates otherwise, limits or restricts that which proceeds it rather than serving to broaden the scope of the statute.  See,State v. Collins, 94 Wash. 310, 162 Pac. 556 (1917).  Furthermore, the phrase "such a veteran" would serve to indicate legislative intent to limit the application of the proviso to veterans as previously defined.

             [[Orig. Op. Page 5]]

            We would thus answer your first question as follows: Veterans' preference in competitive examinations for and in the appointment and retention of public employment is limited to wartime veterans as defined above.  Preference in re‑employment [[reemployment]]is not limited to wartime veterans.

            Question (2):

            Does an employee who is in a probationary status under the civil service law at the time of his enlistment or induction into the military service return to state employment with probationary status, or does he return with permanent status, assuming that his initial employment plus his military service totals at least six months?

            RCW 73.16.033 provides as follows:

            "Any person who is a resident of this state and who voluntarily or upon demand, vacates a position of employment to determine his physical fitness to enter, or, who actually does enter upon active duty or training in the Washington National Guard, the armed forces of the United States, or the United States public health service, shall, provided he meets the requirements of RCW 73.16.035, be reemployed forthwith:  Provided, That the employer need not reemploy such person if circumstances have so changed as to make it impossible, unreasonable, or against the public interest for him to do so:  Provided further, That this section shall not apply to a temporary position.

            "If such person is still qualified to perform the duties of his former position, he shall be restored to that position or to a position of like seniority, status and pay.  If he is not so qualified as a result of disability sustained during his service, or during the determination of his fitness for service, but is nevertheless qualified to perform the duties of another position, under the control of the same employer, he shall be reemployed in such other position:  Provided, That such position shall provide him with like seniority, status, and pay, or the nearest approximation thereto consistent with the circumstances of the case."

             [[Orig. Op. Page 6]]

            As you will note, this statute requires only that the returning veteran be returned to a position of like status.  Inasmuch as the determination of probationary or permanent employment is obviously a question of employment status, we would be of the opinion that the veteran would return to the same status he held prior to his vacating his position.

            We must point out however that RCW 73.16.051 provides that the returning employee may not be discharged without cause for one year after restoration.  We would therefore recommend that for purposes of disciplinary actions the subject employee be considered as being in a permanent status under the merit system rules.

            Question (3):

            May a probationary employee who has enlisted or been inducted into military service be dismissed even though he may be in the military service at the time?

            We answer this question in the negative.  To permit an employer to discharge a probationary employee entitled to the benefits of RCW 73.16.031 through 73.16.051 during his term of service would circumvent the obvious legislative intent.  Such action would in our opinion be void and in excess of the power of the appointing authority.

            We also note a corresponding judicial construction of RCW 73.16.010 that preference in employment means "a preference not only in the selection at the inception of the employment but also in the continuance or retention of such employment."  State ex rel. Ford v. King Co., 47 Wn. (2d) 911, 915, 290 P. (2d) 465 (1955).

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General