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AGO 1952 No. 434 - December 10, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington


City Civil Service Commission may investigate charges of incompetency and inefficiency of an employee and, subject to review on appeal, may punish or remove such employee if charges are sustained.

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                                                               December 10, 1952 

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
Bremerton, Washington                                                                                                              Cite as:  AGO 51-53 No. 434

 Dear Sir:

             In your letter of December 3, 1952, you state that thirty members of the fire department of the city of Bremerton made written accusation against an assistant chief and a lieutenant who hold their positions in that department under civil service.  The mayor and the chief of the fire department declined to take any action under RCW 41.08.090 whereupon the complaining firemen filed a verified petition under RCW 41.08.040 for an investigation by the civil service commission of the alleged acts of incompetency and inefficiency of the assistant chief and lieutenant.

             You request an opinion as to the extent to which, under subsection (4) of RCW 41.08.040, the civil service commission may investigate matters affecting incompetency and inefficiency of employees under civil service.  You also ask what is the extent of the jurisdiction which may be exercised by the civil service commission if the investigation discloses that a particular employee is incompetent or inefficient.


             It is the opinion of this office that the civil service commission may, on its own motion or on proper petition of a citizen or taxpayer, make an investigation to ascertain whether employees under civil service are incompetent or inefficient; and may, subject to right of review on appeal of such employee, remove, discharge or otherwise punish the employee if the charge is sustained.

              [[Orig. Op. Page 2]]

            RCW 41.08.030 provides for the creation of the civil service commission and the appointment of the members thereof by the appointive power having authority to select, appoint or employ the chief of the fire department in such city.

            Following organization of the civil service commission under RCW 41.08.040 the commission is required to make rules and regulations not inconsistent with the statute and to provide thereby the manner in which examinations may be held and appointments, promotions, transfers, reinstatements, demotions, suspensions and discharges shall be made.  Subsection (4) of RCW 41.08.040 reads as follows:

             "The commission shall make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this chapter, and the rules and regulations prescribed hereunder; inspect all institutions, departments, offices, places, positions, and employments affected by this chapter, and ascertain whether this chapter and all such rules and regulations are being obeyed.  Such investigations may be made by the commission or by any commissioner designated by the commission for that purpose.  Not only must these investigations be made by the commission as a foresaid, but the commission must make like investigation on petition of a citizen, duly verified, stating that irregularities or abuses exist, or setting forth in concise language, in writing, the necessity for such investigation.  In the course of such investigation the commission or designated commissioner, or chief examiner, may administer oaths, subpoena and require the attendance of witnesses and the production by them of books, papers, documents, and accounts appertaining to the investigation, and also cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior court; and the oaths administered and the subpoenas issued hereunder shall have the same force and effect as oaths administered and subpoenas issued by a superior court judge in his judicial capacity; and the failure of any persons so subpoenaed to comply with the provisions of this section shall be deemed a violation of this chapter, and punishable as such."

              [[Orig. Op. Page 3]]

            The tenure under RCW 41.08.080 of employment of city firemen shall be only during good behaviours and any such person may be removed or discharged, suspended without pay, demoted or reduced in rank or deprived of vacation privileges or special privileges for incompetency, inefficiency or inattention to, or dereliction of duty or for any other reasons specified by the statute.

             RCW 41.08.090 prescribes the procedure for removal from office of persons in the classified civil service.  Such persons may not be removed, suspended or demoted except for cause, and only upon the written accusation of the appointive power or any citizen or taxpayer, a written statement of which accusation, in general terms, shall be served upon the accused and a duplicate filed with the commission.  The statute further provides that any person so removed, suspended or demoted may, upon written demand therefor within a specified time, obtain an investigation by the commission of the question whether the removal, suspension or demotion was made in good faith for cause.  This section of the statute doubtless contemplates investigation by the commission of the question whether the employee was punished in good faith for cause by his superior or appointing officer, as is clear from the remainder of the statute which has to do with investigation by the commission on written demand of the employee for such investigation.  It fairly appears from the language of subsection (4) of RCW 41.08.040 that the commission may initiate an investigation, on petition of any citizen or taxpayer or on the commission's own motion, of the conduct of the civil service employees alleged to disclose such employee's incompetency, inefficiency, inattention to, or dereliction of duty.

             The statute clearly prescribes the duty and defines the power and/or authority of the civil service commission to conduct an investigation into the matters stated above.

Very truly yours,
Attorney General

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