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AGO 1955 No. 23 - February 16, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

VETERANS' REEMPLOYMENT RIGHTS UNDER FEDERAL AND STATE LAW.

The Federal law providing for reemployment of veterans is inapplicable to state or political subdivision employee and the State law will control.  A description is herein set forth enumerating elements which must be considered in determining reemployment rights.  The city civil service commission must make the determination with respect to the facts.

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                                                                 February 16, 1955

 Honorable E. B. Riley
Director
Veterans' Rehabilitation Council
P.O. Box 777
Olympia, Washington                                                                                                                Cite as:  AGO 55-57 No. 23

 Dear Sir:

             You have requested our opinion on several questions concerning veterans' reemployment.

             Your letter and the additional facts which have been submitted with respect to this matter raise the following questions:

            (1) Does the state reemployment law prevail, or will the Federal law on this subject control and thereby mandatorily limit the length of service to four years?

             (2) What factors are to be considered in deciding whether or not "* * * circumstances have so changed as to make it impossible, unreasonable, or against the public interest * * *" to reemploy a particular veteran?

             (3) Upon whom does the decision rest in a matter of this type?

             It is our opinion that the federal law is inapplicable, and the state statute prevails.  The factors to be considered in determining this matter are set forth  Orig. Op. Page 2 later in this opinion.  The Civil Service Commission is the determining body.

                                                                      ANALYSIS

             The state legislation relative to reemployment of veterans is found in chapter 73.16 RCW.

             RCW 73.16.033 (1953 Supp) provides in relevant part 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.  * * *"

            The federal legislation appears in Title 50, Appendix, U.S. Code, Section 459, and differs from the state law in that the federal law requires reemployment only if the veteran's period of service is four years or less (with certain exceptions not applicable here).

             In Crowell v. Jackson Parish School Board, 28 So. (2d) 81, (La. App.) a school bus driver sought reemployment under the provisions of the federal law (Selective Training and Service Act of 1940 § 8, 50 U.S.C.A. Appendix § 308, now § 459).  The court in denying relief stated as follows:

             " * * * The trial judge ruled that this law has no application to employees of the State or of  Orig. Op. Page 3 any political and subdivision thereof, even though actual induction into the military service had occurred.  This ruling is obviously correct.  Such employees are, in effect, excluded from the provisions of this act."

             The federal law sets forth no mandate relative to reemployment of employees of the state or political subdivisions thereof, but merely a recommendation that such employees be rehired.  The state law is therefore controlling.

             Under RCW 73.16.033 (1953 Supp.),supra, reemployment may be refused if circumstances have so changed as to make it impossible, unreasonable, or against public interest.  The previous law restricted the term "circumstances" to "circumstancessurrounding the governmental office" (Emphasis ours).  The removal of this qualification indicates that the legislature intended that the determining official or commission should more broadly consider those factors which would affect reemployment.  The phrase "impossible, unreasonable, or against public interest" has not been judicially defined by an appellate court.  Numerous federal cases have held, under the language "impossible or unreasonable" that a mere loss in efficiency by the employer which might be caused by the rehiring of a returning serviceman, will not be considered as sufficient reason for refusal of reemployment.  Further, the courts have held that the reorganization of the employer's business and the changing of job responsibilities would not warrant refusal.  The courts have held, however, that the law is not intended to make it necessary for the employer to create a useless position in order to rehire the veteran.

             A general statement on the federal law is found inBoston and Main Railroad v. Bentubo, 160 F. (2d) 326, 328 (1 Cir. 1947).

             "* * * Congress did not make the right to reemployment absolute.  It gave that right only when the employer's circumstances had not so changed as to make it not only not impossible but also not 'unreasonable' for the employer to reemploy the veteran.  It must therefore have envisaged the probability that in the future an infinite variety of factual situations would arise, and recognizing the futility of any attempt to  Orig. Op. Page 4 prescribe a remedy for every situation, it contented itself with a statement of public policy and left the application of its policy to particular situations to the sound discretion of the district courts.  * * *"

             It is to be noted that the statute under consideration in the above case referred to "the employer's circumstances."  (Emphasis ours)

             It would seem proper, in determining whether the veteran should be reemployed, to consider, along with other circumstances, the effects of temporary replacement employees upon the general fire protection afforded the municipality, the possibility of holding the position vacant for the absent veteran, the anticipated length of absence of the veteran, the factors which cause his continued service with the armed forces, and the expressed policy of the federal Congress as set forth in the federal law.  These matters are to be considered in relation to the public interest.

             "'"We understand 'public interest' to mean more than a mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected.  * * *"State v. Crockett, 206 Pac. 816, 86 Okl. 124.

             The final question is as to which person, commission or body must weigh the circumstances and make the factual decision required in this specific case.  We think that must be done by the Civil Service Commission of the city as provided in chapter 41.08 RCW.  If the veteran finds himself aggrieved by the decision, his recourse would be through the courts.

             We trust that the foregoing will be of assistance to you in the determination of this matter.

 Very truly yours,
DON EASTVOLD
Attorney General 

H. E. WIELAND
Assistant Attorney General

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