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AGO 1986 No. 9 - June 25, 1986
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES AND TOWNS ‑- POLICE ‑- CIVIL SERVICE COMMISSION ‑- AUTHORITY TO INVESTIGATE PERFORMANCE OF INDIVIDUAL OFFICER

A police civil service commission does not have statutory authority under chapter 41.12 RCW to investigate allegations of misconduct in the performance of police duties made by a citizen against an individual police officer.

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

                                                                   June 25, 1986 

Honorable Robert K. Leick
Prosecuting Attorney
County of Skamania
Courthouse Building
Stevenson, Washington 98648

Cite as:  AGO 1986 No. 9                                                                                                                  

 Dear Sir:

             By letter previously acknowledged you asked our opinion on the following question:

             May a police civil service commission investigate allegations of misconduct in the performance of police duties made by a citizen against an individual police officer?

             We answer your question in the negative for the reasons stated in our analysis.

                                                                      ANALYSIS

             RCW 41.12.030 creates a civil service commission for the police of every city, town or municipality.  The provisions of chapter 41.12 RCW are not self-executing and do not apply if a city or town adopts a local charter which substantially accomplishes the purpose of chapter 41.12 RCW.  Reynolds v. Kirkland Police Commission, 62 Wn.2d 720, 384 P.2d 819 (1963); RCW 41.12.010.

             This opinion, then, is confined to the question asked in the context of the specific provisions of chapter 41.12 RCW.  No opinion is expressed as to the authority of a civil service commission created by local ordinance or charter.

  [[Orig. Op. Page 2]]

            Our Supreme Court has held that the purpose of chapter 41.12 RCW is to provide for promotion based on merit, to provide tenure for police officers, and to

             provide for a civil service commission to administer the system andto investigate, by public hearing, removals, suspensions, demotions, and discharges by the appointing power to determine whether such action was or was not made for political or religious reasons and whether it was or was not made in good faith for cause.

 Reynolds, 62 Wn.2d at 725.  (emphasis supplied)

             Insofar as directly applicable to the instant inquiry, the authority of the police civil service commission is contained in RCW 41.12.040 and RCW 41.12.090.  RCW 41.12.040(4) provides in part:  "The commission shall make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this chapter . . . ."  RCW 41.12.090 establishes the procedures for discipline of classified civil service personnel.  This section provides in part:

             No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter, shall be removed, suspended, demoted or discharged except for cause, and only upon written accusation of the appointing power, or any citizen or taxpayer; a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the commission.  Any person so removed, suspended, demoted or discharged may within ten days from the time of his removal, suspension, demotion or discharge, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation.  The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons and was or was not made in good faith [f]or cause.  After such investigation the commission may affirm the removal, or if it shall find that the removal, suspension, or demotion was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement of [or] reemployment of such  [[Orig. Op. Page 3]] person in the office, place, position or employment from which such person was removed, suspended, demoted or discharged . . . .

 (Emphasis supplied)

             This section is not a model of clarity in all respects.  It is silent as to who has the authority to take the initial disciplinary action, although it clearly contemplates that the action be taken initially by someone other than the commission.  It isafter removal, suspension, etc., that the affected employee may file with the commission a written demand for investigation.  By its express terms, the statute limits the commission's investigatory powers to a review of action already taken and does not vest it with any other investigatory authority.

             Our court has construed RCW 41.14.120, the verbatim counterpart to RCW 41.12.090 for the sheriff's civil service commission.  In re Smith, 30 Wn.App. 943, 639 P.2d 779 (1982).  InSmith, the court held that RCW 41.14.120 should be read in light of RCW 41.14.060(3), the counterpart of RCW 41.12.040(4).  TheSmith court concluded with the rationale and conclusion ofEasson v. Seattle, 32 Wash. 405, 73 P. 496 (1903), that the role of the civil service commission is to investigate the reasons given by the appointing power for dismissal.  The role of the commission is not to decide if an employee should be dismissed but rather it is to determine whether the appointing authority's reasons for dismissal are valid.

             Identical provisions of similar statutes having been so construed, we conclude that the police civil service commission's investigatory power does not authorize it to conduct an initial investigation respecting the conduct of classified personnel.1/

 The commission's right to investigate does not arise until a written  [[Orig. Op. Page 4]] demand for an investigation has been filed, following removal, suspension, demotion or discharge, as provided in RCW 41.12.090.

             This conclusion is in harmony with the well-established principle that the accuser should not sit as judge of the controversy.  Reynolds v. Kirkland Police Commission, 62 Wn.2d 720, 384 P.2d 819 (1963);State ex rel. Caffrey v. Superior Court, 72 Wash. 444, 130 P. 747 (1913).  As the Supreme Court observed inState ex rel. Beam v. Fulwiler, 76 Wn.2d 313, 315-316, 456 P.2d 322 (1969):

             Inescapably the commission members became the investigators, the accusers, the prosecutors, mayhaps the witnesses, and if allowed to sit as an appellate tribunal, the judges upon the merits of the charges.  Despite the integrity of the respective members of the commission, and their undoubted desire to be objective in their appellate disposition of the matter, it is highly unlikely, under the unusual circumstances prevailing, that the respondent or anyone in a like situation could approach or leave a hearing presided over by a tribunal so composed with any feeling that fairness and impartiality inhered in the procedure.

             The conclusion we have reached herein, in addition to being, in our judgment, compelled by the judicial construction given to the statutes in question, has the added benefit of minimizing the likelihood that the circumstances criticized by the Supreme Court in the Fulwiler case will recur.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

THOMAS R. CHAPMAN
Assistant Attorney General

                                                       ***   FOOTNOTES   ***

 1/The commission does have the authority to investigate whether the department is complying with the provisions of the civil service law, e.g., personnel practices.  We have not been unmindful of AGO 51-53 No. 434 which concluded that a city fireman's civil service commission was empowered to investigate alleged acts of incompetency and inefficiency of an assistant chief and lieutenant.  We do not consider the opinion controlling inasmuch as it was issued without the benefit of the more recent decisions of the Supreme Court and the Court of Appeals cited herein.

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