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AGO 1972 No. 12 - June 13, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- SHERIFF ‑- CIVIL SERVICE ‑- LIQUOR ‑- AGE REQUIREMENT FOR CERTAIN CIVIL SERVICE EMPLOYEES

A county civil service commission for sheriff's office employees, organized and operating under the provisions of chapter 41.14 RCW, may not promulgate a blanket regulation excluding persons otherwise qualified under RCW 41.14.100 from making application for any civil service position in a sheriff's department, regardless of its duties, on the basis of their being less than twenty-one years of age and thus not legally able to enter a tavern for law enforcement purposes; however, in those selected classes of positions which require the employee to enter taverns for these purposes, a requirement that the applicant be at least twenty-one years of age, and thus legally able to enter a tavern, would be valid.

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

                                                                   June 13, 1972

Honorable Charles D. Kilbury
State Representative, District 16B
P.O. Box 2482
Pasco, Washington 99302

                                                                                                                 Cite as:  AGO 1972 No. 12

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            May a county civil service commission for sheriff's office employees, organized and operating under the provisions of chapter 41.14 RCW, promulgate a regulation excluding persons otherwise qualified under RCW 41.14.100 from making application for a civil service position in the sheriff's department on the basis of their being less than twenty-one years of age and thus not legally able to enter a tavern for law enforcement purposes?

            We answer your question in the manner set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            To understand the purpose of the civil service for sheriff's office statutes contained in chapter 41.14 RCW,1/ it is necessary to look first at RCW 41.14.010, which states:

            "The general purpose of this chapter is to establish a merit system of employment for county deputy sheriffs and other employees of the office of county sheriff, thereby raising the standards and efficiency of such offices and law enforcement in general."

            All counties, regardless of size, are encompassed in this scheme by virtue of the definition contained in RCW 41.14.020 (4), as follows:

            "'County' means any county of the state, or any counties combined pursuant to RCW 41.14.040 for the purpose of carrying out the provisions of this chapter;"

            Furthermore, it is to be noted that the act, by definition in RCW 41.14.020 (5), applies to more than just the deputy sheriffs for it is stated therein that:

            "'Deputy sheriff or other members of the office of county sheriff' means all persons regularly employed in the office of county sheriff either on a part time or full time basis."

            See, also, RCW 41.14.070, which designates the positions in a sheriff's office which are to be occupied by civil service appointees as follows:

            "The classified civil service and provisions of this chapter shall include all deputy sheriffs and other employees of the office of sheriff in each county except the following positions which are hereby designated the unclassified service:

             [[Orig. Op. Page 3]] "(1) The county sheriff in every county;

            "(2) In each class A and class AA county; the positions of undersheriff, inspector, chief criminal deputy, chief civil deputy, jail superintendent, and one private secretary;

            "(3) In each county of the first class, second class, and third class; three principal positions comparable to undersheriff, a chief criminal deputy, and a chief civil deputy;

            "(4) In each of all other counties; one position to be appointed by the sheriff."

            Recognizing that there will be a number of distinctly different job classes in each such office, the act in RCW 41.14.060 (6) directs each county civil service commission

            "To provide for, formulate, and hold competitive tests to determine the relative qualifications of persons who seek employment in any class or position and as a result thereof establish eligible lists for the various classes of positions, . . ."

            Fundamental to any civil service program such as this is the position classification plan which is based upon an analysis of the duties and responsibilities of each position.  A completed classification plan would normally include, but not be limited to, the following items for each class:  A specification, including appropriate title; a description of duties and responsibilities; and a listing of minimum requirements and/or desirable training, experience, or other qualifications.

            When Initiative No. 23 (chapter 41.14 RCW) was first enacted by the voters in 1958, it set forth in § 10 (RCW 41.14.100), the following four qualifications for employment:

            "An applicant for a position of any kind under civil service, must be a citizen of the United States and an elector of the  [[Orig. Op. Page 4]] county in which he resides, who can read and write the English language, and must have been a resident of the state for at least one year."

            This provision was later modified by § 3, chapter 95, Laws of 1963, which deleted the residency requirement and the need that the applicant be an elector of the county, so that RCW 41.14.100 presently reads as follows:

            "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."

            Because this statute contains no age qualification to be met by any applicant for a civil service position in a county sheriff's office, it follows, in our opinion, that nogeneral requirement can be imposed to the effect thatall applicants, regardless of the positions for which they are applying, must be of a particular age.  However, this does not mean that appropriate age qualifications may not be established by local regulations for particular positions.  The general rule with regard to this subject is summarized in Civil Service Law, by Oliver Peter Field, (1962), at page 80, as follows:

            "Age limitations, both minimum and maximum, can be imposed by administrative regulation, providing they are reasonable and have a close connection with the qualities that are deemed essential to effective performance of the duties of the positions involved.  For example, an age range from twenty-five to thirty-five years is valid for traffic patrol officers because of the nature of the work to be performed and the relation that age bears to the performance of the work. . . ."  Shubert v. Dept. of Motor Vehicles, 16 Cal. App.2d 353, 60 P.2d 538 (1939).

            "The commission must be careful not to provide for any preferences or requirement, other than the age requirement, that may reveal a belief on the part of the commission  [[Orig. Op. Page 5]] that the age fixed is not really related to the duties of the position for which the examination is being conducted. . . ."2/

             Compare, RCW 41.08.070 and RCW 41.12.070, pertaining to civil service for city firemen and police officers, respectively, which expressly state that

            "An applicant for a position of any kind under civil service must be of an age suitable for the position applied for, . . ."

            Moreover, we are not persuaded that the absence of this particular language from the text of RCW 41.14.100, supra, compels a conclusion that the general rule above stated is inapplicable with respect to the civil service system for county sheriffs' employees; in fact, it seems to us that the same policy considerations exist with regard to age qualifications in the case of each of these systems ‑ and particularly, as between the system for city police officers and the deputy sheriffs' system here under consideration.

            Also of some pertinence, in view of the fact that certain county sheriffs' departments may be receiving federal emergency employment funds, are theGuidelines for Reevaluation of Civil Service Requirements and Practices to Eliminate Artificial Barriers to Employment and Advancement which have been prepared by the United States Civil Service Commission pursuant to Public Law 92-54, Emergency Employment Act of 1971.  On page 9 of this publication there is a general discussion of qualification requirements which includes the following statement:

            "One of the most critical areas for analysis and reevaluation is that of qualification requirements.  Related to job descriptions and structure as the opposite side of a coin, qualification requirements should accurately reflect the knowledge, skill and other  [[Orig. Op. Page 6]] requirements to do the job.  Knowledge and skill requirements are most commonly translated into education or experience requirements, with (or without) trade‑offs of experience for education, and occasionally with limitations as to recency.  Other requirements may relate to age, sex, conduct and reputation, or physical requirements for the job.

            "All requirements need to be reexamined to see whether they are realistically related to the actual duties of the job, and the actual knowledges and skills required to perform those duties.  Are minimums really the minimum? . . ."

            Although expressed in this quotation only in the context of those personnel who may be funded by federal emergency employment monies, we think this basic precept is equally applicable to all civil service employees;  i.e., that any age qualifications for employees covered by a merit system of employment must be justifiable from the standpoint of the requirements of the particular position to be filled.  Accord, Field,Civil Service Law, supra.  With this in mind, we next turn to the provisions of RCW 66.44.310 which (notwithstanding the 1971 legislature's reduction of the age of majority from twenty-one to eighteen for most purposes)3/ continue to declare it to be a misdemeanor

            ". . .

            "(b) For any person under the age of twenty-one years to enter or remain on the premises of anytavern;"4/   (Emphasis supplied.)

            Although it is certainly permissible for the legislature to provide for exceptions to this prohibition based (for example) upon the scope of an individual's employment, the only such exception presently in effect is one pertaining to professional  [[Orig. Op. Page 7]] musicians.  See, RCW 66.44.315.  Thus, while it is possible as a practical matter that the provisions of RCW 66.44.310,supra, might not be strictly enforced in such a case, it is at present at least technically a crime for a law enforcement officer who is under twenty-one years of age to enter a tavern ‑ even in the performance of duty.  So long as this remains true it would appear to us to be permissible, consistent with the above described principles governing age qualifications for civil service employees, to require all applicants for those positions requiring the holder to enter taverns from time to time for law enforcement purposes to be at least twenty-one years of age in order that they may legally be able to perform this function.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


KENNETH W. ELFBRANDT
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Enacted through the initiative process in 1958, as Initiative No. 23 to the legislature.

2/See, also, Law of Civil Service by H. Eliot Kaplan (1958), pp. 49, 128; and Griggs v. Duke Power Co., 401 U.S. 424, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971).

3/See, chapter 292, Laws of 1971, Ex. Sess.

4/Accord, AGO 1971 No. 38 [[to James A. McDermott, State Representative on November 30, 1971]], copy enclosed.

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