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AGLO 1980 No. 34 - December 31, 1980
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- CITIES AND TOWNS ‑- PENSIONS ‑- RETIREMENT ‑- PROBATIONARY EMPLOYEES ‑- MEMBERSHIP IN LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM

It is not necessary for a city fire fighter or a county deputy sheriff to have satisfactorily completed the probationary periods of service provided for in RCW 41.08.100 or RCW 41.14.130 in order to obtain membership in the Law Enforcement Officers' and Fire Fighters' Retirement System; likewise, as a matter of state law, it is not necessary for a city police officer to have satisfactorily completed the probationary period specified in RCW 41.12.100 in order to obtain membership in the retirement system but, conceivably, such a qualification could be established in this instance by a local charter provision or ordinance.

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                                                               December 31, 1980

Honorable Larry L. Vognild
State Sen., 38th District
1710 ‑ 32nd
Everett, Washington 98201                                                                                                               Cite as:  AGLO 1980 No. 34

Dear Senator Vognild:

            By recent letter you have requested our opinion on the following question:

            "Does a person who is employed pursuant to appointment as a result of Civil Service examination and certification for the position of Police Officer or Fireman (under the provisions of RCW Chs. 41.08; 41.12 and 41.14) become a member of the LEOFF retirement system when he/she is first placed on the payroll or does he/she only become a member after completing recruit training or after the probationary period(s) specified in RCW 41.08.100; RCW 41.12.100 or RCW 41.14.130?"

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In order to answer this question, we must examine, separately, the statutes governing each of the three classes of employees involved.

            (1)City Firemen Under Chapter 41.08 RCW:

            RCW 41.08.100, which relates to the filling of vacancies in the classified service under the civil service system for city firemen, provides, in pertinent part, that:

            ". . .

            "To enable the appointing power to exercise a choice in the filling of positions, no appointment, employment or promotion in any position in the classified service shall be deemed complete until after the expiration of a period of three to six months' probationary service, as may be provided in the rules of the civil service commission . . ."

            In turn, for purposes of membership in the Law Enforcement Officers' and Fire Fighters' Retirement System, RCW 41.26.030(4) defines the term "fire fighter" to mean, among other things,

            ". . .

            "(a) any person who is serving on a full time, fully compensated basis as a member of a fire department of an employer and who is serving in a position which requires passing a civil service examination for fire fighter, or fireman if this title is used by the department, and who is actively employed as such;

            "(b) anyone who is actively employed as a full time fire fighter where the fire department does not have a civil service examination;

            ". . ."

             [[Orig. Op. Page 3]]

            Clearly, nothing in this definition requires that an individual have completed the probationary period specified in RCW 41.08.100, supra, before he is deemed to be a "fire fighter."  All that is necessary, in those instances where a civil service system is in effect under chapter 41.08 RCW, is that the individual in question be ". . . serving in a position which requires passing a civil service examination . . ."

            (2)City Police Officers Under Chapter 41.12 RCW:

            RCW 41.12.100, which relates to civil service for city police officers, contains, in its third paragraph, language identical to that in RCW 41.08.100 which is quoted above;i.e., again providing for a probationary period of from three to six months before an appointment, employment or promotion to any position in the classified service will be deemed complete.

            Insofar as such city police officers are concerned, however, their membership in the Law Enforcement Officers' and Fire Fighters' Retirement System is dependent on another definition in RCW 41.26.030, supra; namely, so much of RCW 41.26.030(3) as reads as follows:

            "(3) 'Law enforcement officer' means any person who is serving on a full time, fully compensated basis as a . . . city police officer . . . with the following qualifications:

            ". . .

            "(c) Only such full time commissioned law enforcement personnel as have been appointed to offices, positions, or ranks in the police department which have been specifically created or otherwise expressly provided for and designated by city charter provision or by ordinance enacted by the legislative body of the city shall be considered city police officers; . . ."

            Unlike the definition of "fire fighter," supra, it will be noted that this definition makes no reference whatsoever to civil service status.  Instead, what is here required is that the individual in question occupy a position within the police department which has been specifically created or otherwise expressly provided for and designated by city charter  [[Orig. Op. Page 4]] provision or ordinance.1/   And therefore, at least insofar as state law is concerned, completion of the probationary period provided for in RCW 41.12.100, supra, is clearly not a prerequisite for membership in LEOFF in the case of city police officers.

            In this instance, however, there remains a further possibility to explore.  In order to determine whether a particular individual is eligible for membership in the LEOFF system, one must also look to the terms of such local charter provisions or ordinances as relate to, or provide for the establishment of, specific positions within the police department.  And, conceivably, in a given case such a charter provision or ordinance might be so worded as to cause the probationary period issue we are here considering to be relevant.  But we would, of course, have to examine the terms of the particular charter provision or ordinance itself in order to answer that question.

            (3)Deputy Sheriffs Under Chapter 41.14 RCW:

            Once again, in the case of deputy sheriffs covered by the civil service system established pursuant to chapter 41.14 RCW, there is, in RCW 41.14.130, a provision relating to probationary service.  That provision, which is almost identical to those contained in RCW 41.08.100 and RCW 41.12.100,supra, reads as follows:

            ". . .

            "To enable the appointing power to exercise a greater degree of choice in the filling of positions, no appointment, employment, or promotion in any position in the classified service shall be deemed complete until after the expiration of a period of one year's probationary service, as may be provided in the rules of the civil service commission, during which the appointing power may terminate the employment of the person appointed, if during the performance test thus afforded, upon observation or consideration of the performance of duty, the appointing power deems such person unfit or unsatisfactory for service in the office of county sheriff. . . ."

             [[Orig. Op. Page 5]]

            For purposes of determining eligibility for membership in the LEOFF Retirement System, deputy sheriffs are also covered by the definition of "law enforcement officer" in RCW 41.26.030(3) but, in this case, a different qualifying subparagraph applies.  Instead of subparagraph (c), supra, which relates to city police officers, the pertinent subparagraph here is (b) which reads as follows:

            "(b) Only those deputy sheriffs, including those serving under a different title pursuant to county charter, who have successfully completed a civil service examination for deputy sheriff or the equivalent position, where a different title is used, and those persons serving in unclassified positions authorized by RCW 41.14.070 except a private secretary will be considered law enforcement officers;"

            Here, again, completion of the statutory probationary period is not specified as a condition or qualification for membership in the retirement system.  In fact, as evidenced by the reference to exempt positions under RCW 41.14.070, a person serving as a deputy sheriff need not be occupying a classified position in order to obtain membership in the retirement system.  And, in the case of those deputy sheriffs who do occupy classified positions, all that is required is that they have successfully completed a civil service examination.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In Beggs v. Pasco, 93 Wn.2d 682, 611 P.2d 1252 (1980), the Court held, notably, that a position is effectively created by city ordinance when it is created by a civil service commission that was established by ordinance and vested with all powers permissible under state law.

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