VETERANS ‑- EMPLOYEES ‑- VETERANS' PREFERENCE ‑- CIVIL SERVICE ‑- PUBLIC EMPLOYMENT
A discussion of the relationship between RCW 73.16.010, RCW 41.04.010 and 41.06.150 with respect to the preference rights of veterans in public employment with the state and its political subdivisions.
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April 29, 1976
Honorable Ray Van Hollebeke
State Senator, First District
18735 53rd N.E.
Seattle, Washington 98155 Cite as: AGLO 1976 No. 31
Dear Senator Van Hollebeke:
By recent letter you have requested an explanation from this office regarding the relationship between certain statutes dealing with veterans' preferences in public employment in our state.
The first statute to which you have referred is RCW 73.16.010 which reads, in pertinent part, as follows:
"In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded, and their widows or widowers, shall be preferred for appointment and employment. . . ."
Secondly, you have cited RCW 41.04.010 which provides that:
"In all competitive examinations, unless otherwise provided herein, to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its political subdivisions and all municipal corporations, shall give a preference status to all veterans as defined in RCW 41.04.005, by adding to the passing mark, grade or rating only, based upon a possible rating of one hundred points as perfect a percentage in accordance with the following:
"(1) Ten percent to a veteran who is not receiving any veterans retirement payments and said percentage shall be utilized in [[Orig. Op. Page 2]] said veteran's competitive examination and not in any promotional examination until one of such examinations results in said veteran's first appointment: Provided, That said percentage shall not be utilized in any promotional examination;
"(2) Five percent to a veteran who is receiving any veterans retirement payments and said percentage shall be utilized in said veteran's competitive examination only and not in any promotional examination until one of such examinations results in said veteran's first appointment: Provided, That said percentage shall not be utilized in any promotional examination;
"(3) Five percent to a veteran who, after having previously received employment with the state or any of its political subdivisions or municipal corporations, shall be called, or recalled, to active military service for a period of one year, or more, during any period of war, for his first promotional examination only, upon compliance with RCW 73.16.035 as it now exists or may hereafter be amended;
"(4) There shall be no examination preferences other than those which have been specifically provided for above and all preferences above specified in (1), (2) and (3) must be claimed by a veteran within eight years of the date of his release from active service."
And finally, you have made reference to chapter 41.06 RCW which pertains to the state civil service system and includes, in RCW 41.06.150, the following directive to the state personnel board:
"The board shall adopt and promulgate rules and regulations, consistent with the purposes and provision of this chapter and with the best standards of personnel administration, . . . providing for veteran's preference as required by existing statutes, with recognition of preference in regard to layoffs and subsequent reemployment for veterans and their widows by giving such eligible veterans and their widows additional credit in computing their seniority by adding to their unbroken state service, as defined by the board, the veteran's service in the military not to exceed five years. . . ."
[[Orig. Op. Page 3]]
We are not quite certain from reading your letter precisely what the problem is that has caused you to write us. However, we would certainly agree with you that the scope of each of these three statutes is somewhat different. RCW 73.16.010 covers employment only with a state or county agency or upon the public works of those governmental bodies and simply states, abstractly, that designated veterans shall be "preferred" for such employment. If, however, a competitive examination is required in connection with the particular job in question, as is the case under both our state civil service system and those which govern certain local governmental employees as well,1/ RCW 41.04.010, supra, comes into play and specifies the precise degree of preference which a qualified veteran2/ will have over a nonveteran in the scoring of any such examination. In other words, if the position which a particular "qualified veteran" is seeking is one governed by a competitive examination process, the veteran will not have an absolute preference over any nonveteran seeking the same job but, instead, he will only be entitled to certain "bonus points," if you will, in the scoring of this examination.
As far as RCW 41.06.150, supra, is concerned, that statute simply directs the state personnel board to promulgate rules and regulations giving effect to all applicable veterans' preference statutes insofar as initial employment or promotion is concerned. Then that statute goes on to require the state personnel board to provide, by rule, for a recognition of the special status of a veteran in connection with any layoff or dismissal situations.
In order to attempt to put the foregoing in proper focus let us assume, for purposes of discussion, a hypothetical situation in which two individuals are seeking the same job with the state or a county (i.e., an employer to which both RCW 73.16.010 and RCW 41.04.010 apply)3/ One of those individuals is a qualified veteran for the purposes of both statutes and the other is not. In all other respects, however, the two applicants are basically equal with respect to their other qualifications for the position in question.
[[Orig. Op. Page 4]]
If the job which these two persons are seeking is not covered by a merit system of employment under which some form of competitive examination is utilized the veteran, relying upon RCW 73.16.010, should get the job. But if the position is one with regard to which a competitive examination is applicable the veteran, instead, will merely be entitled to a certain number of bonus points in the scoring of his examination in accordance with the percentage formula set forth in RCW 41.04.010.
Later, if in fact both individuals initially succeed in obtaining employment but the positions in question are covered by the state civil service law, chapter 41.06 RCW, the veteran nevertheless will have a preferred status insofar as any layoffs or dismissals are concerned. To the extent that seniority is a factor in determining which of two otherwise basically equal employees is to be laid off first, the nonveteran will be the first to go if, by reasons of the veteran's military service as applied against the personnel board rules required by RCW 41.06.150, the latter thereby has more seniority than the nonveteran employee.
We recogize, of course, that the foregoing explanation of the relationship between these several statutes is somewhat general. If, however, you have any particular case in mind and would care to provide us with the pertinent facts thereof we would be happy to advise you further as to the proper application (in our opinion) of the above‑stated legal principles which we have derived from the statutes.
It is hoped that the foregoing will be of some assistance to you at this time.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/See, e.g., chapters 41.08, 41.12 and 41.14 RCW.
2/See, RCW 41.04.005 which contains a somewhat different definition of the term "veteran" than is set forth in RCW 73.16.010, supra.
3/But see AGO 59-60 No. 30 [[to Herbert H. Davis, Prosecuting Attorney, Benton County on April 27, 1959]], copy enclosed, indicating the inapplicability of RCW 73.16.010 to classified positions in a county sheriff's office.