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AGO 1991 No. 18 - April 29, 1991
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

LAW ENFORCEMENT OFFICERS ‑- CRIMINAL JUSTICE TRAINING COMMISSION ‑- LEOFF PLAN II

RCW 41.26.470(2) provides that a disabled member who has recovered from an incapacitating disability, shall be restored to duty.  The Criminal Justice Training Commission may not require law enforcement officers to obtain basic training pursuant to WAC 139-05-200(2)(c)(iii), as a condition of reemployment, when these officers have had a break or interruption in service due solely to disability under RCW 41.26.470.

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

                                                                   April 29, 1991

Mr. James C. Scott
Executive Director
Washington State Criminal Justice
  Training Commission
Campus of St. Martin's College
Mail Stop: PW-11
Olympia, Washington 98504
                                                                                                                  Cite as:  AG0 1991 No. 18

Dear Mr. Scott:

            You have requested our opinion on the Criminal Justice Training Commission's authority to require certain law enforcement officers to undergo basic training.  We paraphrase your question:

            May the Criminal Justice Training Commission's basic training requirement for commissioned law enforcement officers contained in WAC 139-01-200(2)(c)(iii) be applied to personnel who have had a break or interruption in service in excess of 24 months' duration due to disability under RCW 41.26.470, the Law Enforcement Officers' and Fire Fighters' Retirement System, Plan II?

             [[Orig. Op. Page 2]]

                                                                BRIEF ANSWER

            The Criminal Justice Training Commission may not require law enforcement officers to obtain basic training pursuant to WAC 139-05-200(2)(c)(iii), as a condition of reemployment, when these officers have had a break or interruption in service due solely to disability under RCW 41.26.470.  (Because the Commission's training requirements only apply to personnel initially employed on or after January 1, 1978, officers taking disability leave or retirement pursuant to RCW 41.26.120, [41.26].125, and [41.26].140, Law Enforcement Officers' and Fire Fighters' Retirement System, Plan I, are unaffected by the Commission's rule, regardless of its interpretation.  See AGO 1989 No. 2.)

                                                                     ANALYSIS

            To analyze your question, we must examine chapter 43.101 RCW, chapter 139-05 WAC, and chapter 41.26 RCW.

            Chapter 43.101 RCW created the Washington State Criminal Justice Training Commission and authorized the Commission to establish training standards and provide training programs for criminal justice personnel initially employed on or after January 1, 1978.

            The Commission's rulemaking authority is set forth in RCW 43.101.080:

            The commission shall have all of the following powers:

                       . . .

                        (2) To adopt any rules and regulations as it may deem necessary;

                       . . .

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

                       . . .

                        (10) To establish, by rule and regulation, minimum curriculum standards for all training programs conducted for employed criminal justice personnel;

                       . . .

             [[Orig. Op. Page 3]]

                        (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.

            Pursuant to the above authority, the Commission adopted WAC 139-05-200 requiring basic law enforcement training.  That rule provides, in relevant part:

            (1) All full-time commissioned law enforcement employees of a city, county, or political subdivision of the state of Washington, except officers of the Washington state patrol, unless otherwise exempted by the Washington state criminal justice training commission, shall as a condition of continued employment successfully complete a 440-hour basic law enforcement academy sponsored or conducted by the commission, or obtain a certificate of equivalent basic training from the commission.  This requirement of basic law enforcement training shall be met within the initial fifteen-month period of law enforcement employment, unless otherwise extended by the commission.  Provided, that aforementioned personnel hired on or after January 1, 1990, shall commence basic training during the fist [first] six months of employment unless otherwise extended by the commission.

                        (2) Law enforcement personnel exempted from the requirement of subsection (1) of this section shall include:

                       . . .

                        (c) Commissioned personnel[;]

                       . . .

                        (iii) Who have been certified in accordance with the requirement of subsection (1) of this section,and thereafter have engaged in regular and commissioned law enforcement employment without break or interruption in excess of twenty-four month[s'] duration.

(Emphasis added).

            In effect, this rule requires commissioned personnel who have had a break or interruption in service of more than 24 months to obtain basic training recertification as a condition of  [[Orig. Op. Page 4]] reemployment.  You ask whether the Commission may impose this recertification requirement on commissioned personnel whose break or interruption in service was due to disability under RCW 41.26.470.  (Although disabled law enforcement personnel may be entitled to receive "service credit" for periods of disability, RCW 41.26.470(3), [41.26].475, we are assuming for purposes of this opinion that disability leave requiring the officer to be away from regular and commissioned employment constitutes a "break or interruption" in service.)

            RCW 41.26.470 provides:

            (1) A member of the retirement system who becomes totally incapacitated for continued employment by an employer as determined by the director shall be eligible to receive an allowance under the provisions of RCW 41.26.410 through 41.26.550.  Such member shall receive a monthly disability allowance computed as provided for in RCW 41.26.420 and shall have such allowance actuarially reduced to reflect the difference in the number of years between ages at disability and the attainment of age fifty-eight.

            (2) Any member who receives an allowance under the provisions of this section shall be subject to such comprehensive medical examinations as required by the department.  If such medical examinations reveal that such a member has recovered from the incapacitating disability and the member is no longer entitled to benefits under Title 51 RCW, the retirement allowance shall be canceled and the member shall be restored to duty in the same civil service rank, if any, held by the member at the time of retirement or, if unable to perform the duties of the rank, then, at the member's requires, in such other like or lesser rank as may be or become open and available, the duties of which the member is then able to perform.  In no event shall a member previously drawing a disability allowance be returned or be restored to duty at a salary or rate of pay less than the current salary attached to the rank or position held by the member at the date of the retirement for disability.

(Emphasis added).

            At issue, therefore, is the interplay between the requirement in WAC 139-05-200 that basic training is a "condition of continued employment" after a break in service, and the requirement in RCW 41.26.470(2) that a previously disabled member "shall be restored to duty" in the rank the member held prior to the disability.

             [[Orig. Op. Page 5]]

            At the outset, we recognize that the Commission is not the employer of the law enforcement personnel referred to in RCW 41.26.470 and, therefore, arguably not the entity to whom the legislative directive in that section is aimed.  However, if WAC 139-01-200-(2)(iii) applies, the employer of a previously disabled law enforcement officer would be prohibited from restoring the officer to duty, as required by RCW 41.26.470(2), unless the officer complied with the rule.

            Thus, even though the Commission does not employ the officer, the rule would prohibit the actual employer from complying the RCW 41.26.470(2) in some circumstances.  For this reason, we believe that RCW 41.26.470(2) applies to the Commission as well as the employer.  The Legislature empowered the Commission to establish training standards.  This authority must be exercised in a manner consistent with other laws relating to the employment of law enforcement personnel.

            The rulemaking authority of the Commission under RCW 43.101.080 is quite broad, but it is not unlimited.  Rules of administrative agencies must be reasonably consistent with statutes they implement.  Administrative agencies may not amend or change enactments of the Legislature by rules.  Coast Pac.  Trading, Inc. v. Department of Rev., 105 Wn.2d 912, 917, 719 P.2d 541 (1986);Kitsap-Mason Dairymen's Ass'n v. State Tax Comm'n, 77 Wn.2d 812, 815, 467 P.2d 312 (1970).

            RCW 43.101.080 gives the Commission authority to establish standards for training where such standards "are not prescribed by statute".  RCW 43.101.010(8), (18).  While RCW 41.26.470(2) does not specifically address training standards, it mandates that the previously disabled member "shall be restored to duty" in the same rank once the member is no longer disabled.  The use of the word "shall" creates an imperative obligation unless a different legislative intent can be discerned.  State v. Q.D., 102 Wn.2d 19, 29, 685 P.2d 557 (1984).

            In this case the legislative history of RCW 41.26.470(2) supports the conclusion that the statute does create an obligation to reemploy.  RCW 41.26.470(2) was originally enacted in 1977 and did not require reemployment.  Laws of 1977, 1st Ex. Sess., ch. 294, § 8, p. 1074.  Instead, it provided in part:  "If such medical examinations reveal that such a member has recovered from the incapacitating disability andthe member is offered reemployment by an employer at a comparable compensation, such member shall cease to be eligible for such allowance."  Id.  (Emphasis added).  Under this version of the statute the employer had the option not to offer reemployment if the officer did not comply with the Commission's rules on training.

             [[Orig. Op. Page 6]]

            In 1981, RCW 41.26.470(2) was amended.  The amendment, set forth in bill draft form, provided in part:

            If such medical examinations reveal that such a member has recovered from the incapacitating disability and the member is ((offered reemployment by an employer at a comparable compensation, such member shall cease to be eligible for such allowance.))no longer entitled to benefits under Title 51 RCW, the retirement allowance shall be canceled and the member shall be restored to duty in the same civil service rank, if any, held by the member at the time of retirement or, if unable to perform the duties of the rank, then, at the member's request, in such other like or lesser rank as may be or become open and available, the duties of which the member is then able to perform.

Laws of 1981, ch. 294, § 9, p. 1259.

            Thus, under the 1977 statute, disability payments ceased "if . . . the member is offered reemployment by an employer".  Under the 1981 amendment the "member shall be restored to duty".  The amendment eliminated the option of not offering reemployment by requiring that the officer shall be restored to duty.

            This reading of the statute is also supported by the Final Legislative Report on Laws of 1981, ch. 294, which was enacted as Substitute House Bill 138.  The summary of Substitute House Bill 138 provides in part:

            When a LEOFF II member is determined to have recovered from a disability or incapacity,the member is to be returned to duty in a position that the member will be able to perform at the same pay as when the member was determined disabled and or incapacitated.

Final Legislative Report, 47th Legislature (1981) at 28 (emphasis added).

            WAC 139-05-200, which makes the basic training requirement a "condition of continued employment," is incompatible with RCW 41.26.470(2) and cannot, therefore, be applied to law enforcement officers whose break or interruption in service is due solely to disability under RCW 41.26.470.1/

             [[Orig. Op. Page 7]]

            We acknowledge that the purpose of the recertification requirement in WAC 139-05-200(2)(c)(iii) is to ensure competency of an officer whose knowledge and skills may have deteriorated or become outdated during a break or interruption in commissioned employment.  We also acknowledge that such deterioration might occur regardless of the reason behind the break in employment.  The Legislature, however, has unambiguously expressed its intent that previously disabled officers be restored to duty when their disabilities cease.  An administrative rule may not amend the Legislature's enactment.

            We trust this assists you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

NANCY THYGESEN DAY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/It is important to note that RCW 41.26.470(2) only applies where the break in service occurs as a result of a disability from which the officer has recovered.  If the break in service occurs for some other reason, RCW 41.26.470(2) does not apply and the officer must comply with the Commission's training rules as a condition of continued employment after the break in service.

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