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AGLO 1982 No. 22 - August 27, 1982
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- CRIMINAL JUSTICE TRAINING COMMISSION ‑- POLICE ‑- MINIMUM STANDARDS OF FITNESS FOR LAW ENFORCEMENT PERSONNEL

Consideration of questions regarding the legal authority of the Washington Criminal Justice Training Commission to adopt certain proposed regulations establishing minimum standards of mental, physical and moral fitness for appointment to various state and local law enforcement positions.

                                                                   - - - - - - - - - - - - -

                                                                 August 27, 1982

Honorable James C. Scott
Executive Director
Criminal Justice Training Commission
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1982 No. 22

Dear Sir:

            By letter previously acknowledged you asked us to review certain proposed administrative regulations currently being considered by the Washington Criminal Justice Training Commission and then requested our opinion on three questions which we paraphrase as follows:

            (1) Do the provisions of proposed WAC 139-26-010 and proposed WAC 139-46-010, as hereinafter described, constitute a valid exercise of the rule‑making authority of the Washington State Criminal Justice Training Commission under RCW 43.101.080?

            (2) Regardless of the answer to question (1), may the Criminal Justice Training Commission effect the intended result of these or similar regulations regarding the recruitment, selection and training of law enforcement personnel by adoption of the substance of such regulations as a precondition to admission to the basic law enforcement academy program provided for by RCW 43.101.200?

             [[Orig. Op. Page 2]]

            (3) If question (1) is answered in the affirmative and the proposed regulations are adopted, does RCW 43.135.060, or any other provision of law, require that the state reimburse affected local taxing districts for such costs as they may incur in complying with the regulations?

            We answer your first two questions in the manner set forth in our analysis and your third question in the negative for the reasons indicated therein.

                                                                     ANALYSIS

            The proposed regulations which you have asked us to review would impose three types of requirements on all state and local law enforcement agencies except the Washington State Patrol.1/   First, WAC 139-26-010(1) would require that each new applicant for appointment as a full-time commissioned law enforcement officer meet the following minimum qualifications:

            ". . . (1) Every officer applicant, by the time of employment, shall:

            "(a) be a citizen of the United States;

             [[Orig. Op. Page 3]]

            "(b) be at least 21 years of age;

            "(c) possess a current and valid driver's license;

            "(d) possess at least a high school diploma or GED equivalency; and

            "(e) not have been convicted of a felony offense."

            Next, WAC 139-26-010(2) would further require that certain described applicant screening procedures be utilized by each state or local appointing or hiring authority covered by the regulations.  Those procedures would include such things as the conduct of in-depth background investigations, the administration of polygraph examinations and the fingerprinting of all applicants.  In addition, they would involve a search of local, state and national fingerprint files to disclose any criminal records as well as the conduct of examinations to insure that the applicants' reading and writing skills ". . . are commensurate with general law enforcement duties and responsibilities . . ."; the performance of oral interviews ". . . to determine the applicant's suitability, including personal appearance, personality, maturity, attitude, and ability to communicate . . ."; and other, similar matters.

            And finally, WAC 139-46-010 would impose training requirements on "first-level supervisory" personnel‑-as defined in that proposed regulation‑-as a condition to the promotion or appointment of persons to command or supervisory positions within their respective law enforcement agencies‑-again with the exception of the State Patrol pursuant to WAC 139-46-010(4).

            Question (1):

            Your first question involves the authority of the Washington Criminal Justice Training Commission to adopt those particular, proposed administrative regulations.  For, as a state agency, the Commission has only those powers which have been granted to it by the legislature, either expressly or by necessary implication.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956);State ex rel Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  With this principle in mind we turn, first, to proposed WAC 139-26-010.

             [[Orig. Op. Page 4]]

            WAC 139-26-010:

            The apparent statutory basis for this proposed regulation is so much of RCW 43.101.080 (as amended by chapter 82, Laws of 1975, 1st Ex. Sess.) as reads:

            "The commission shall have all of the following powers:

            ". . .

            "(18) To establish rules and regulations recommended by the training standards and education boards prescribing minimum standards relating to physical, mental and moral fitness which shall govern the recruitment of criminal justice personnel where such standards are not prescribed by statute or constitutional provision.

            ". . ."2/

             Two separate issues concerning the validity of proposed WAC 139-26-010 surface out of this statutory language:

            (a) Does the proposed regulation come within the basic authorization to prescribe minimum standards relating to physical, mental or moral fitness?

            (b) Does the proposed regulation cover areas already occupied by statutorily or constitutionally prescribed standards?

             [[Orig. Op. Page 5]]

            Taking the clearest aspect of this matter first, we conclude that the Commission hasno authority, under RCW 43.101.080(18), supra, to adopt proposed WAC 139-26-010(2).  That portion of the proposed regulation does not itself purport to set minimum standards relating to physical, mental or moral fitness.  Rather, it seeks to impose upon the appointing authorities a number ofprocedural steps which they must take in determining the fitness of prospective appointees.  We therefore believe that this portion of the regulation is beyond the scope of the subject statute.

            Next, in order to facilitate a critique of subsection (1) of proposed WAC 139-26-010, let us set forth the text of that portion of the proposed regulation in full as follows:

            "The following minimum standards shall govern the process of recruitment and selection of applicants for the position of full-time commissioned law enforcement officer in and for the State of Washington:

            "(1) Every officer applicant, by the time of employment, shall:

            "(a) be a citizen of the United States;

            "(b) be at least 21 years of age;

            "(c) possess a current and valid driver's license;

            "(d) possess at least a high school diploma or GED equivalency; and

            "(e) not have been convicted of a felony offense."

            Before analyzing each of these five proposed "standards" to determine whether they represent the kinds of standards authorized under RCW 43.101.080(18), we must first attempt to determine the meaning of the undefined statutory phrase "physical, moral or mental fitness."

            Webster's New International Dictionary, Third Ed., Unabridged, defines "fitness" as:

            ". . . the condition of being qualified or suitable:  ELIGIBILITY, SOUNDNESS, CAPACITY . . ."

             [[Orig. Op. Page 6]]

            "Physical" is defined as:

            ". . . of or pertaining to the body (as contrasted with the mind) . . ."

            "Mental" means:

            ". . . designating all processes, powers, attributes of the mind, . . . contrasted especially with bodily; . . ."

            And finally, "moral" is defined as:

            ". . . pertaining to character, conduct, intentions, social relations, etc., viewed ethically . . . within the sphere of what can be viewed as right or wrong; . . . conforming to a standard of what is good and right . . ."

            In reviewing the proposed standards in light of these definitions, two guides to analysis should be noted.  On the one hand, although not precisely stated, the intent of the legislature apparently was that the terms physical, mental and moral would be broadly read to encompass, in tendem, all of the "fitness" factors generally relevant to police work.  Thus, for instance, while the term "mental fitness" is ambiguous in regards to its inclusion or exclusion of "emotional fitness," an encompassing reading of the three terms together would appear to bring "emotional fitness" within the ambit of the term "mental fitness."  On the other hand, a proposed standard should have more than just a marginal relationship to one or more of the three fitness factors.  Thus, hypothetically, if the proposed standards were here to specify acceptable systolic/diastolic blood pressure, resting pulse rate, audiometric and vision acuity readings, and the like, it would be easy for us to conclude that such standards relate in more than a marginal way to physical fitness.  Conversely, however, the standards you have asked us here to review are not sodirectly related to "physical, mental or moral fitness"; and accordingly, it is more difficult for us to say, unequivocally, whether they fall within the intent of the statute.

            In our opinion, however, taking the five proposed standards seriatim, we believe (a) that United States citizenship, per se, is not such a standard of physical, mental or moral fitness as is encompassed by the statute; (b) that chronological age, in the abstract, is a standard related to physical and/or mental  [[Orig. Op. Page 7]] fitness; (c) that possession of a current and valid driver's license is only marginally related to physical, mental or moral fitness and thus may not be made such a standard by commission regulation; (d) that, while it is a closer question, possession of a high school diploma or GED equivalency is more than marginally related to mental fitness; and (e) that absence of a felony conviction is evidence related to moral fitness.

            This does not complete our consideration of proposed WAC 139-26-010(1), however.  For, as earlier noted, we must next turn to the above‑quoted qualifying language in RCW 43.101.080(18),supra; i.e.,

            ". . . which shall govern the recruitment of criminal justicepersonnel where such standards are not prescribed by statute or constitutional provision."  (Emphasis supplied)

            To what extent, we thus must ask, does this limiting language of the statute bear upon the validity of the proposed regulation?

            To prescribe is to require‑-or, in the words, of Webster's New International Dictionary, Third Ed., Unabridged, page 1792:

            ". . . to lay down authoritatively as a guide, direction, or rule of action:  impose as a peremptory order . . ."

            Another, similar, dictionary definition of the word "prescribe," as stated inBallantine's Law Dictionary, Third Ed., 1969, page 981, is:

            "To lay down beforehand as a rule of action; to ordain, appoint, define authoritatively. . . ."

            See also, 33Words and Phrases, page 617 (1971).

            As above explained, proposed WAC 139-26-010(1) intended to cover all full-time commissioned law enforcement personnel employed either by local entities or by the state‑-except by the Washington State Patrol.  Accordingly, we must now review the relevant statutes governing the appointment of all such personnel to determine the extent of any statutory prescriptions which may thus limit the Commission's rule‑making authority.

             [[Orig. Op. Page 8]]

            (a)City Police Officers and Deputy Sheriffs:

            In this state, as you know, the appointment of city police officers and county deputy sheriffs is governed (except for a limited number of exempt positions) by comprehensive civil service laws.  Specifically, city police officers are covered by chapter 41.12 RCW and deputy sheriffs by the quite similar provisions of chapter 41.14 RCW.  In the case of the former, RCW 41.12.070 provides as follows:

            "An applicant for a position of any kind under civil service, must be a citizen of the United States of America who can read and write the English language.

            "An applicant for a position of any kind under civil service must be of an age suitable for the position applied for, in ordinary good health, of good moral character and of temperate and industrious habits; these facts to be ascertained in such manner as the commission may deem advisable."

            Likewise, in the case of deputy sheriffs, RCW 41.14.100 provides that:

            "An applicant for a position of any kind under civil service, must be a citizen of the United States who can read and write the English language."

            These civil service statutes thus clearly "prescribe" the following things‑-in the ordinary sense of that word as above defined:

            (1) That local police officers and deputy sheriffs be (a) citizens of the United States and (b) able to read and write the English language;

            (2) In addition, that local police officers3/ be of suitable age, in ordinary good health, and of good moral character and temperate and industrious habits.

             [[Orig. Op. Page 9]]

            Of the several standards contained in proposed WAC 139-26-010,supra, it will first be seen that, aside from the fact that it is not truly a standard,per se, of physical, mental or moral fitness, "United States citizenship" is in any event a requirement already prescribed by statute for both of these two categories of classified local law enforcement officers.  Accordingly, for that reason as well (i.e., because this subject is already covered by a statutorily prescribed standard) this portion of the proposed regulation is not appropriate.

            Next, we note that the provision in the proposed regulation requiring all applicants for appointment as city police officers or county deputy sheriffs to ". . . be at least 21 years of age . . .," is not preempted in the case of deputy sheriffs but it is with respect to city police officers under chapter 41.12 RCW.  For, in the later case, this standard encompasses a subject‑-age‑-which is also prescribed by statute (RCW 41.12.070) for those local police personnel;i.e., that they be ". . . of an age suitable for the position applied for, . . ."  And, conceivably, that may be an age other than twenty-one‑-either less or more‑-in a given city police department.  In turn, to that extent, this portion of the proposed regulation, as applied to local police officers appointed pursuant to chapter 41.12 RCW, would be in conflict with the statute.

            Next, having already rejected ". . . possession of a current and valid driver's license . . ." as a standard of physical, mental or moral fitness, we need not further consider that issue here‑-except to note that, in this instance, the subject is not one also covered by a statute or constitutional provision.  Nor, by the same token, do we find anything in either RCW 41.12.070 or RCW 41.14.100,supra, which purports to prescribe a minimum level of formal education or to address an applicant's past criminal record.  While both statutes allude to one specific mental ability‑-literacy in the English language‑-the existence of that particular statutory requirement does not, in our judgment, preclude the Commission from establishing other, non-conflicting, standards of mental fitness as well.  And likewise, an abstract statutory requirement of moral fitness‑-such as is also contained in RCW 41.12.070, supra‑-does not so occupy that field as to bar the Commission from imposing the more specific requirement, as a standard of moral fitness, that an applicant for appointment as a local law enforcement officer have no prior felony convictions.

             [[Orig. Op. Page 10]]

            (b)Port District Police:

            Another local governmental entity in Washington which is statutorily authorized to employ full-time commissioned law enforcement personnel, and thus would be covered by the proposed regulations, is a port district.  See, chapter 14.08 RCW and RCW 53.08.280.  Nothing in those laws, however, appears to constitute a prescription so as to limit the Commission's rulemaking authority under RCW 43.101.080(18).  Therefore, to the extent that Commission is here otherwise deemed to be authorized to adopt the subject, proposed, regulations, nothing in chapters 53.08 and 14.08 RCW would prevent their full application to port district police personnel.

            (c)State College or University Police:

            Finally, the provisions of RCW 28B.10.550, et seq., similarly authorized the state universities, regional universities and The Evergreen State College to maintain police forces with full-time commissioned law enforcement personnel.  But, again, nothing therein prescribes any conflicting recruitment standard.

            Summary:

            For the foregoing reasons, our overall answer to your question regarding proposed WAC 139-26-010,supra, is thus as follows:

            (1) Subsection (2) of the proposed regulation would not be within the scope of the Commission's authority to adopt because that portion of the regulation does not purport to set forth minimum standards relating to physical, mental or moral fitness, as such.  Rather, as above noted, it seeks to impose upon the appointing authorities a number of procedural steps which they would be required to take in determining the qualifications of prospective appointees.

            (2) With respect to subsection (1), the "United States citizenship" and "possession of a valid driver's license" requirements of that subsection would also be invalid; a minimum age standard such as is here proposed would be invalid as applied to local police officers covered by chapter 41.12 RCW but not (at least in the abstract) as applied to deputy sheriffs under chapter 41.14 RCW, commissioned port district police under chapter 53.08 RCW, or commissioned state university and college police under  [[Orig. Op. Page 11]] chapter 28B.10 RCW;4/ and, finally, the "high school diploma or GED equivalency" and "no prior felony conviction" standards would both be valid as to all categories of full-time commissioned law enforcement personnel.

            WAC 139-46-010:

            We next turn to proposed WAC 139-46-010.  Once again, that regulation would impose training requirements for all covered "first-level supervisory" personnel‑-as a condition to the promotion or appointment of persons to command or supervisory positions within their respective law enforcement agencies.

            The apparent statutory basis for this proposed regulation is a different subsection of RCW 43.101.080,supra; namely, subsection (8) which reads as follows:

            "The commission shall have all of the following powers:

            ". . .

            "(8) To establish, by rule and regulation, standards for the training of criminal justice personnel where such standards are not prescribed by statute;

            ". . ."

            The proposed regulation specifies two "training" requirements for supervisory personnel, as follows:

            "(a) possession of the basic law enforcement certificate, or basic equivalency certificate, of the Washington State Criminal Justice Training Commission; and

            "(b) successful completion of the Training Commission's 40-hour 'First-Level Supervision' course or other supervisory training deemed the equivalent thereof by the Board on Law Enforcement Training Standards and Education."

                         [[Orig. Op. Page 12]]

            Subsection (a) thus provides that in order to obtain supervisory certification, law enforcement personnel must (1) successfully complete the 440-hour basic law enforcement training course of the Commission (see WAC 139-16-010) or (2) successfully complete an equivalent training course and otherwise qualify for a "Certificate of Equivalent Basic Training" (see, WAC 139-14-010(1)).  Subsection (5) requires further that a candidate for supervisory certification (1) successfully complete the 40-hour supervisory training course yet to be established by the Commission or (2) successfully complete an equivalent course.

            Both of these proposed requirements would appear to establish "standards" for training in the ordinary sense of that term.  A standard, in the words ofWebster's New International Dictionary, Second Ed., Unabridged, page 2455 is:

            ". . . That which is established by authority, custom, or general consent, as a model or example; criterion; test; in general a definite level, degree, material, character, quality, or the like, viewed as that which is proper and adequate for a given purpose . . ."

            Presently, WAC 139-16-010 contains the topical subject areas which must be covered in the basic law enforcement academy.  Twelve major topics and forty subtopics are set forth therein.  In order for a Washington state basic training academy program to meet this standard, all listed topical areas must be substantially covered in the curriculum.  In order for a candidate trained out-of-state to qualify for a basic equivalency certificate, he must show that he has successfully completed a similarly comprehensive basic training program.  Subsection (a) of proposed WAC 139-46-010 thus would establish, in the ordinary sense of the term, a "training standard" for supervisory personnel‑-successful completion of a basic training program covering those subject areas specified in WAC 139-16-010.

            Subsection (b) of proposed WAC 139-46-010 would appear to similarly establish a second "training standard" for supervisory personnel‑-successful completion of a specially tailored supervisory training program (still in its developmental stages) or of an equivalent program.  This program would cover program specific subject areas yet to be specified by the Commission.  You have indicated, however, that the program will include as topical areas some or all of the following:  Role of the supervisor, advanced oral communication, team building, goal setting, work planning/time management, scheduling and delegating, on-the‑job  [[Orig. Op. Page 13]] training, performance monitoring, employee selection, employee performance appraisal, handling incompetent staff and preventing grievances, handling criticism from staff, preventing and handling staff burnout, and leading meetings.  We are thus of the opinion that subsection (b) of the proposed regulation establishes a "training standard" in the ordinary sense of the term under the same line of analysis we followed in reviewing subsection (a).  And, accordingly, we conclude that both parts of proposed WAC 139-46-010 are authorized under RCW 43.101.080(8), supra.

            Question (2):

            We now turn to your second question which asks:

            Regardless of the answer to question (1), may the Criminal Justice Training Commission effect the intended result of these or similar regulations regarding the recruitment, selection and training of law enforcement personnel by adoption of the substance of such regulations as a precondition to admission to the basic law enforcement academy program provided for by RCW 43.101.200?

            We have carefully reviewed the provisions of chapter 43.101 RCW and it is our opinion that it grants no general authority to the Commission to restrict program access to particular state or local police agencies solely because they fail to meet the Commission's recruitment, selection and training standards.

            Assuming, however, that such standards have been lawfully adopted, we believe that the Commission may exclude, from its training programs, anyindividuals who have been appointed or employed in violation of the underlying regulation;e.g., a person lacking either a high school diploma or a GED equivalent who has, nevertheless, been employed by a local police agency in violation of proposed WAC 139-26-010(1)(e), supra‑-assuming that particular regulation should be adopted by the Commission.  The basis for such an exclusion would stem from the definition of "law enforcement personnel" in RCW 43.101.010(4) which reads,

            "The term 'law enforcement personnel' means any public employee or volunteer having as a primary function the enforcement of criminal laws in general or any employee or volunteer of, or any individual commissioned by, any municipal, county, state, or combination thereof, agency having as its primary function the enforcement of  [[Orig. Op. Page 14]] criminal laws in general as distinguished from an agency possessing peace officer powers, the primary function of which is the implementation of specialized subject matter areas.  For the purposes of this subsection 'primary function' means that function to which the greater allocation of resources is made."

            Implicit in this definition is a requirement that such personnel have beenlawfully employed.  And, since RCW 43.101.200 mandates only that the Commission provide training to "law enforcement personnel," the Commission would thus not be required to provide such training to one who, because of his or her lack of either a statutory or a rule‑related qualification‑-was not so lawfully employed.  The Commission could, therefore, exclude on that basis‑-although not on the basis referred to in your question.

            Question (3):

            Finally, you have asked:

            If question (1) is answered in the affirmative and the proposed regulations are adopted, does RCW 43.135.060, or any other provision of law, require that the state reimburse the affected local taxing districts for such costs as they may incur in complying with the regulations?

            RCW 43.135.060 codifies the provisions of Subsection 6, chapter 2, Laws of 1980 (Initiative Measure No. 62).  It reads, in material part, as follows:

            ". . . The legislature shall not impose responsibility for new programs or increased levels of service under existing programs on any taxing district unless the districts are reimbursed for the costs thereof by the state."

            Since the approval of this provision by the voters as a part of Initiative 62 in 1979, we have issued two opinions in which we particularly analyzed it in the context of its possible application to other, somewhat similar, factual situations.  See AGO 1981 No. 5 and AGO 1980 No. 24, copies enclosed.  In each of those opinions we construed the statute as requiring reimbursement,

                         [[Orig. Op. Page 15 ]]

". . . only where, and to the extent that, mandatory state legislation results in either new services to the general public or in an actual increase in local governmental services offered to the public in some measurable, quantifiable sense."  (Emphasis supplied)

            In the first of those opinions, AGO 1980 No. 24, we therefore concluded that the law would not require reimbursement to affected local taxing districts if the legislature were to require that persons seeking employment as municipal firefighters or law enforcement officers meet minimum medical and health standards in order to become eligible for such employment.

            We believe that the reasoning of AGO 1980 No. 24 is sound, and we adhere to it at this time.  Accordingly, on that basis, we answer your third question in the negative insofar as RCW 43.135.060,supra, is concerned.

            In addition, you have asked us to consider the possibility of some other statutory requirement for reimbursement to the affected local taxing districts for costs incurred by them as a consequence of the proposed regulations.  Our research has disclosed no such potentially applicable other statutes, however.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

JOHN R. WASBERG
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Subsection (3) of proposed WAC 139-26-010 and subsection (4) of proposed WAC 139-46-010 both expressly exclude the State Patrol from the requirements and/or standards set forth therein.   Otherwise, however, those regulations (if adopted) would cover all applicants for appointment or promotion as county deputy sheriffs, city police officers, public university or college police officers and, finally, police personnel employed by a public port district‑-to the extent that they seek appointment or promotion to full-time, commissioned positions.  Accord, the statutory definition of "criminal justice personnel" which, under RCW 43.101.010, includes,

            ". . . any person who serves in a county, city, state or port commission agency engaged in crime prevention, crime reduction, or enforcement of the criminal law."

2/See also, RCW 43.101.150(12) which, correspondingly, authorizes the Training Standards and Education Board:

            "(12) To recommend to the commission minimum standards relating to physical, mental and moral fitness which shall govern the recruitment of criminal justice personnel within their specific purview where such standards are not prescribed by statute or constitutional provision."

For the purpose of this opinion we will assume that the proposed regulations have been "recommended by the [Law Enforcement] Training Standards and Education Board" and our focus will thus be on RCW 43.101.080(18), supra.

3/We do not mean to suggest that the absence of this same language from chapter 41.14 RCW manifests an intent that deputy sheriffs not possess those same minimum qualifications; rather, we only note that this same express language does not appear in the civil service law for deputy sheriffs.

4/The question of whether age twenty-one is truly the proper age to fix as a minimum standard of physical and/or mental fitness‑-as distinguished from some other specified age‑-is not, however, one which we can here unequivocally answer and we do not attempt to do so.

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