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AGLO 1973 No. 84 - July 25, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
OFFICES AND OFFICERS ‑- STATE ‑- PERSONNEL BOARD ‑- CIVIL SERVICE ‑- EMPLOYEES ‑- PROBATIONARY PERIOD
 
The state personnel board may by regulation require permanent employees in the classified service (i.e., employees who have successfully completed an initial six-months probationary period) to serve another six-month probationary period in any higher class of covered employment to which they are later promoted in order to obtain permanent status in that class as distinguished from their previously acquired permanent status in the civil service system per se.
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                                                                    July 25, 1973
Honorable Jack D. Mullin
Chairman, Washington State
Personnel Board
600 South Franklin
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 84
 
 
Dear Sir:
 
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
 
            May the state personnel board by regulation require permanent employees in the classified service (i.e., employees who have successfully completed an initial six-months probationary period) to serve another six-month probationary period in any higher class of covered employment to which they are later promoted in order to obtain permanent status in that class as distinquished from their previously acquired permanent status in the civil service system per se.
 
            We answer this question in the affirmative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            By way of background for this question you have advised us as follows:
 
            "To place our question in context, I will give you a brief synopsis of its background.  First, our current rules provide that when a new employee is initially appointed to a class covered by the State Merit System he must serve a six-month 'probationary period'.  The employee may be rejected during this probationary period without appeal.  However, if he successfully completes his probationary period, he becomes a 'permanent' employee.
 
             [[Orig. Op. Page 2]]
            "For some time now, the Board has also had a body of rules providing for a six-month 'trial service period' after an employee is promoted.  In substance, the trial service rules provide that if such employee is promoted and then judged to be unsatisfactory in his new higher class during his trial service period, the agency may 'revert' him.  If the employee is reverted after promotion within the agency, the agency is required to return him to a position in the class in which he previously held permanent status before promotion.  If the reversion takes place after inter-agency promotion, the employee's name is placed on a register for the first vacancy in his former class that opens in his former agency or in the agency that reverted him.  He also goes on a lower priority register for openings in other agencies.  In the case of reversion after inter-agency promotion, the employee may be off of the state payroll for some time if no vacancies occur.  Our current rules provide that an employee may not appeal any reversion to the Personnel Board."
 
            You have then explained that the personnel board is currently considering certain proposed revisions in the above‑described existing rules, primarily related to the matter of nonappealability of a reversion prior to an employee's successful completion of his "trial service period" in his new, higher classification.  This, in turn, has raised the question of whether the concept of such an additional period of probationary service as these existing rules are based upon is, itself, consistent with the civil service system involved.
 
            The state civil service law here in question was adopted by the people as Initiative No. 207 in 1960, and is now codified as chapter 41.06 RCW.  Its general purpose is set forth in RCW 41.06.010 as follows:
 
            "The general purpose of this chapter is to establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plan, removal, discipline and welfare of its civil employees, and other incidents of state employment.  All appointments and promotions to positions, and retention therein, in the state service, shall be made on the basis of policies hereinafter specified."  (Emphasis supplied)
 
             [[Orig. Op. Page 3]]
            The act then goes on in §§ 3 and 11 (RCW 41.06.030 and 41.06.110) to establish both the state personnel department and personnel board.  RCW 41.06.150, codifying § 15 of the act (together with subsequent amendments thereto which are not relevant to your question), then spells out the rule‑making powers of the personnel board in material part as follows:
 
            "The board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, the dismissal, suspension, or demotion of an employee, and appeals therefrom; certification of names for vacancies, including departmental promotions, with the number of names equal to two more names than there are vacancies to be filled, such names representing applicants rated highest on eligibility lists; . . . appointments; probationary periods of six months and rejections therein; . . ."  (Emphasis supplied)
 
            Your question, in essence, is whether the underscored phrase "probationary periods of six months and rejections therein" last above quoted has reference only to an initial probationary period at the outset of an individual's term of employment in a classified position covered by this civil service system,1/ or whether it imports, as well, an authorization for the personnel board to provide for additional probationary periods to be served by classified employees upon their receipt of promotional appointments to covered classes of positions.
 
            In considering this question we observe, first, that the language used in RCW 41.06.150 clearly indicates the possibility of more than one probationary period ‑ in that the statute speaks in the plural of "probationary periods of six months and rejections therein; . . ."  (Emphasis supplied)  We further note that the concept of probationary periods following both initial and promotional appointments is common in public employees' civil service systems throughout the country.  As stated in Kaplan, law of Civil Service, p. 187,
 
            "A probationary period of service is often required where an employee has been promoted to a higher position.  . . .  There appears to be no sound reason for not requiring a period of probation where an employee has been required to  [[Orig. Op. Page 4]] assume the duties and responsibilities of an entirely different or higher position."
 
            Accord, our present statutes governing civil service for city firemen (chapter 41.08 RCW, enacted in 1935); city police officers (chapter 41.12 RCW, enacted in 1937); and employees of a county sheriff's office (chapter 41.14 RCW, enacted in 1959), whereunder such dual probationary periods are specifically provided for.  However, while it is true that these statutes are more explicit on this point than is chapter 41.06 RCW, supra, we do not think that this fact would be taken by a court to militate against the establishment of similar dual probationary periods by a personnel board regulation adopted under the authority granted to it by RCW 41.06.150, supra.  In addition to its clear reference to probationary periods in the plural, this statute states, by way of a general guideline to the personnel board, that its regulations are to be consistent with ". . . the best standards of personnel administration, . . ." ‑ and Professor Kaplan's observations above quoted unquestionably indicate that a regulation calling for probationary service in the event of an employee's promotional appointment as well as upon his initial employment in a classified position would conform to this standard.
 
            Moreover, although not labeled a probationary period as such this concept is manifestly already a part of the state civil service system under the existing personnel board regulations described in your letter as above quoted.  While WAC 356-30-260 only provides for a single probationary period of six months following initial entry into the classified service, WAC 356-30-320 makes reference to periods of "trial service" following an employee's promotion.  This latter regulation provides that any employee who fails successfully to complete such a trial service period following his receipt of a promotional appointment is to be reverted to his prior status (in the event of an intra-agency promotion) or placed upon a reversion register (in the case of an inter-agency promotion).
 
            We are further informed that both of these current regulations, although only adopted in their present forms within the past year or two, are quite similar in substance to regulations which were first adopted by the personnel board shortly after its initial activation in 196l.  See, Article XII, §§ 1-3 of the board's original "Merit System Rules" as adopted on April 20, 1961.  In particular, we note that § 3, pertaining to "trial service" in the event of a promotion within the classified service, provided that:
 
            "All appointments of employees made after the person has once achieved permanent  [[Orig. Op. Page 5]] status in another position, except through reinstatement, including promotions, demotions and transfers made from officially promulgated registers and with the approval of the Director shall include a trial service period for the first six months.  A period which will offer the appointing authority with the opportunity to observe the new employee's work, to train and aid the employee in adjustment to the position, and to automatically revert any employee whose work performance fails to meet the work standard to their former classification.  Such a trial service period shall have no effect on the permanent status of the employee in an agency."
 
            It seems clear to us that no matter what label is used, such a "trial service period" is a "probationary period" and, likewise, any "reversion" constitutes a rejection; this, in turn, leads us to the well-established principle of statutory interpretation that the construction placed upon a statute by the agency charged with the responsibility for its administration, while not binding on the courts, is entitled to considerable weight in determining legislative intention.  White v. State, 49 Wn.2d 716, 306 P.2d 230 (1957).  Moreover, the persuasive force of such an administrative interpretation is strengthened when the legislature, by amending the subject statute in some other particular without repudiating the administrative construction, silently acquiesces therein. State ex rel. Pirak v. Schoettler, 45 Wn.2d 367, 274 P.2d 852 (1954).  In this case, the legislature has amended RCW 41.06.150, supra, on two separate occasions since its original enactment in 1960, and, likewise, since the foregoing initial regulations were adopted in 1961.  See, § 13, chapter 108, Laws of 1967, Ex. Sess., and § 2, chapter 19, Laws of 1971, Ex. Sess.  By neither of these amendments has the legislature, however, modified the critical language of the statute as above underscored.
 
            Finally, let us take note of RCW 41.06.170 (2) which states that:
 
            "(2) Any employee who is reduced, dismissed, suspended or demoted, after completing his probationary period of service as provided by the rules and regulations of the board, shall have the right to appeal to the board not later than thirty days after the effective date of such action.  The employee shall be furnished with specified charges in writing when the action is taken.  Such appeal shall be in writing and shall be heard by the board within thirty days after its receipt.  The board shall furnish the agency concerned with a copy of  [[Orig. Op. Page 6]] the appeal in advance of the hearing."  (Emphasis supplied)
 
            It is because of the singular use of the term "probationary period" in this statute that it has been suggested by opponents of your present "trial service" regulations that, notwithstanding the plural reference in RCW 41.06.150, supra, the personnel board in reality can only establish a single probationary period to cover an initial period of employment service.  We think, however, that this line of reasoning wholly misses the mark.
 
            All that RCW 41.06.170 (2) says, in our judgment, is that when an employee is reduced, or dismissed, suspended or demoted after completing his probationary period of service as provided for by the regulation of the personnel board, he shall have a right to appeal to the board protesting this action.  It does not say that there can only be one probationary period of service.
 
            In fact, read as a whole, the language of RCW 41.06.170 (2) seems to us clearly to contemplate the possibility of probationary periods related to promotional appointments as well as to initial appointments in the classified service.  This statute, it will be noted, speaks not only of an employee who is dismissed or suspended after completing his probationary period of service but of one who is reduced or demoted, as well.
 
            What RCW 41.06.170 (2) says, then, is twofold.  First it says that if a classified employee is reduced, dismissed, suspended or demoted after completing his initial probationary period of service, he may appeal this action to the personnel board.  Secondly, it further says that if an employee who is later promoted to a higher class of covered employment is thereafter reduced or demoted (or, of course, dismissed, or suspended) after completing such further period of probationary service as may have been provided for by regulation of the personnel board for such promotional appointments, he, likewise, will have a right of appeal to the board.  Conversely, however, if his rejection takes place before the expiration of this period of probationary service covering promotional appointments, the employee in question will not have such a right of appeal because, having not acquired permanent status in that higher class of covered employment, his reversion will not constitute such a demotion as is made appealable by the statute.
 
            In summary, then, for all of the foregoing reasons, it is our opinion hat the state personnel board does have the authority under chapter 41.06 RCW by regulation to require permanent employees (i.e., employees who have  [[Orig. Op. Page 7]] successfully completed an initial six months probationary period of service) to serve another such probationary period in any higher class to which they are thereafter promoted in order to acquire permanent status in that class ‑ as distinguished from their previously acquired permanent status in the civil service system per se.  We thus answer your question, as paraphrased, in the affirmative.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Deputy Attorney General
 
 
K. W. ELFBRANDT
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/RCW 41.06.040 ‑ 41.06.070.
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