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AGO 1953 No. 110 - August 07, 1953
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Don Eastvold | 1953-1956 | Attorney General of Washington

MERIT SYSTEM OF MAY 1, 1952, DEPARTMENT OF PUBLIC INSTITUTIONS ‑- EMPLOYEE STATUS ‑- QUALIFYING EXAMINATION

Employees of the Department of Public Institutions under Merit System of May 1, 1952, appointed prior to effective date of system, automatically receive permanent status after completion of specified terms of employment and passing qualifying examination.

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                                                                  August 7, 1953

Honorable Paul Luvera
State Senator
Fortieth District
2102 Nine Street
Anacortes, Washington                                                                                                              Cite as:  AGO 53-55 No. 110

Dear Senator Luvera:

            Your letter of July 3, 1953, requested an opinion of this office regarding the status of certain employees in the Department of Public Institutions under the merit system of May 1, 1952, who are currently employed at the Northern State Hospital and who have been employed at that institution for over one year up to the present time, but are still carried on the employment rolls as probationary employees.

            It is assumed for the purposes of this discussion that your question is confined to those employees who were on duty in the Department of Public Institutions at the time the merit system became effective, and the specific question to be considered is the status of such employees as defined by the Manual of Policies and Procedures issued by the Director of the Department of Public Institutions, dated May 1, 1952.

            Our conclusions may be briefly summarized as follows:

            1. Employees who held positions at public institutions in the department for more than one of the ten years immediately preceding the effective date of the  [[Orig. Op. Page 2]] merit system and who have passed a qualifying examination within six months subsequent to the effective date of the merit system automatically achieved permanent status as a result thereby.

            2. Employees who held positions at such institutions in the department for less than one year immediately preceding the effective date of the merit system and who subsequently passed a qualifying examination, automatically received permanent status at the completion of one year's employment with the department.

                                                                     ANALYSIS

            Article XVII of the Manual defines the status of the several categories of employees as follows:

            "a. All employees shall have permanent status if they have held positions in the Department for more than one of the ten years immediately preceding the effective date of this order and pass a qualifying examination within six months of the effective date of this order.

            "b. All employees shall have probationary status if they have held positions in the Department for less than one year immediately preceding effective date of this order and pass a qualifying examination.  Such employees shall receive permanent status at the completion of one year's employment with the Department.

            "* * * "

            The policies set forth in the Manual do not prescribe a formal period of probation for employees falling into categories "a" and "b" of Article XVII.  The emphasis as to such employees is rather upon their "status" which is dependent upon two factors; namely, length of service preceding May 1, 1952, and the requirement that they "pass a qualifying examination."  Employees in category "a" are to be given permanent status upon passing such an examination.  Employees in category "b" having been on duty less than a year preceding May 1, 1952, were to be given probationary status upon passing such an examination.  And, in the language of Article XVII, "* * * Such employees shall receive permanent status at the completion of one year's employment with the Department."

             [[Orig. Op. Page 3]]

            It is our conclusion, therefore, that employees who held positions at such institutions in the department for more than one of the ten years immediately preceding the effective date of the merit system and who have passed a qualifying examination within six months subsequent to the effective date of the merit system automatically achieve permanent status as a result thereby, and that employees who held positions at such institutions in the department for less than one year immediately preceding the effective date of the merit system and who passed a qualifying examination automatically achieved permanent status at the completion of one year's employment with the department.

            Employees in category "a" who were not given a qualifying examination within six months after May 1, 1952, and employees in category "b" who were not so examined prior to the completion of one year's service with the department were, in our opinion, entitled to such an examination as a matter of right, and failure to give such examinations would constitute a grievance within the meaning of Article VI of the Manual.  While that article states that "* * * Only employees having permanent status under the Merit System shall have right of appeal to the Board [defined in Article IV as the Labor Relations Committee of the State of Washington]," there is nothing in the established policies and procedures which would prevent an appeal by the employee to the director of the department.

            Employees in the above categories who were given qualifying examinations but failed to pass the same must be considered to have failed to achieve permanent status.  The Manual is silent as to the situation where such individuals are retained in the employ of the department.  It can be concluded, however, from consideration of the departmental policies as a whole that it was not the intention of the director to leave such individuals in an uncertain status for an extended period of time.  Failure of the appropriate authority to re‑examine [[reexamine]]the individuals or to recommend permanent retention within a reasonable period of time would, in our opinion, constitute a grievance upon which the employee could base an appeal to the director as described above.

Very truly yours,

DON EASTVOLD
Attorney General

ROBERT E. STOEVE
Assistant Attorney General

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