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AGO 1986 No. 13 - November 03, 1986
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES AND TOWNS--CIVIL SERVICE--POLICE--CITY CHARTER--APPEAL RIGHT OF CITY POLICE EMPLOYEE FOR SUSPENSION OF LESS THAN FIVE DAYS

A city civil service system for city police provided by charter does not substantially accomplish the purpose of chapter 41.12 RCW if it does not provide for any appeal in the case of an employee suspended for less than five days. 

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                                                                November 3, 1986 

HonorableDennis A. Dellwo
State Representative, Third District
West 3214 Cora                           
Spokane, Washington  99205       

Cite as:  AGO 1986 No. 13                                                                                               

 Dear Sir:

             By letter previously acknowledged, you have asked for our opinion on a question we paraphrase as follows:

             Does a city civil service system for city police by charter substantially accomplish the purpose of chapter 41.12 RCW if it does not provide for any appeal in the case of an employee suspended for less than five days?

             We answer your question in the negative for the reasons outlined in the analysis below.

                                                                      ANALYSIS

             Chapter 41.12 RCW requires nearly all cities and towns in the state to establish civil service systems for their city police.  Chapter 41.12 goes on to describe specific procedural and substantive provisions for city police civil service systems.

             However, the same chapter contains a provision that allows cities to have civil service systems varying to some degree from the type envisioned in chapter 41.12 RCW.  The provision in question is RCW 41.12.010, which reads as follows:

             The provisions of this chapter shall have no application to cities and towns which at the present time have provided for civil service in the police department or which shall subsequently provide for civil service in the police department by local charter or other regulations which said local charter or regulations substantially accomplish the purpose of this chapter, nor to cities having a police force of not more than two persons including the chief of police.

             In your letter you have brought to our attention the fact that article 6, section 55(a) of the Spokane City Charter permits a city employee to be suspended for not more than five days for disciplinary purposes, with loss of salary and without right of appeal.  Chapter 41.12 RCW, on the other hand, would appear to give any disciplined employee covered by the statute a right to appeal.  See RCW 41.12.090.  Your question then is whether the charter provision is different enough from the civil service rights established in chapter 41.12 RCW that the Spokane City Charter may be said not to have "substantially accomplished" the purpose of chapter 41.12 RCW.

             Chapter 41.12.010 has been construed several times by the appellate courts, as have the identical provisions in chapter 41.08.010 (civil service for city firefighters).  Because the two statutes are identical in language and were enacted in the same period, there is every reason to believe that the legislature intended that the two statutes have identical legal effect, and we accordingly rely equally upon cases construing either chapter.  See,International Ass'n of Fire Fighters, Local 404 v. Walla Walla, 90 Wn.2d 828, 831, 586 P.2d 479 (1978).

             The earliest case construing RCW 41.12.010 dealt with the Spokane City Charter itself.  InState ex rel. Isham v. Spokane, 2 Wn.2d 392, 98 P.2d 306 (1940), the State Supreme Court affirmed a superior court order dismissing an action to enforce a Spokane Civil Service Commission order, on the theory that the order was contrary to a state statute establishing the qualifications for the position of police matron.  A side issue in the case was a contention that the police matron statute had been repealed by chapter 13, Laws of 1937, which is now codified as chapter 41.12 RCW.  The Supreme Court rejected the contention and noted that the City of Spokane had "long before 'substantially accomplished' the purpose of the act."  Isham, 2 Wn.2d at 398.  Since the question of substantial compliance of the Spokane City Charter with chapter 41.12 RCW was not the central issue before the Isham court, we cannot conclude that the question you have asked was answered in the 1940 opinion.  In any case, although the Spokane City Charter itself was adopted in 1910, and included a civil service system for city police, the particular provisions you have questioned were adopted in a 1960 amendment.

             A later case reached the conclusion that a city civil service system in place before the 1937 enactment of chapter 41.12 RCW need not provide the identical protection that chapter 41.12 RCW provides.  InYantsin v. Aberdeen, 54 Wn.2d 787, 345 P.2d 178 (1959), the Supreme Court held that the Aberdeen civil service system was enforceable because it had been established by city ordinance before chapter 41.12 RCW was enacted, even though the city's ordinance allowed an officer to be suspended for not less than thirty days without a hearing.  TheYantsin court did not specifically reach the question whether the city ordinance "substantially accomplished" the purpose of chapter 41.12 RCW, because the court did not feel it needed to do so:

             Obviously Aberdeen had provided for civil service in its police department at least five years before the statute was enacted.  It is, therefore, not necessary to determine, as in the case of cities which subsequently provided "for civil service in the police department by local charter or other regulations" whether "said local charter or regulation substantially accomplished the purpose of this chapter."

 Yantsin, 54 Wn.2d at 791.

            The implication of bothIsham and Yantsin, then, is that cities which have adopted local civil service systems by charter are divided into two classes; those which provided for civil service before the enactment of the state statute (1937 in the case of chapter 41.12 RCW) and those which have adopted their civil service systemssince the enactment the statute.  The latter are only conditionally exempt--to the extent that their local provisions are in "substantial compliance."  This reading is apparently based on the assumption that the legislature meant the phrase ". . . which said local charter or regulations substantially accomplish the purpose of this chapter . . ." to modify only the immediately preceding phrase "or which shall subsequently provide for civil service in the police department by local charter or other regulations . . ."  As a matter of grammar it is equally possible to read the "substantially accomplish" phrase as modifying as well as the earlier language ". . . cities and towns which, at the present time, have provided for civil service in the police department . . ."

            We recognize that there is a general rule of statutory construction that modifying phrases are read to modify only the last preceding word or phrase.  Caughey v. Employment Security Dept., 81 Wn.2d 597, 503 P.2d 460 (1972).  However, this rule applies only where no contrary legislative intention appears in the statute.  The more recent opinions conclude that the legislature intended the 1937 statute to provide at least a minimum level of protection reasonably uniform throughout the cities of the state.

             Even if we were to follow the maxims of grammatical construction strictly, and thus to hold that Spokane's Civil Service System, in general, is exempt from chapter 41.12 RCW, the exemption could not be extended to changes in the Spokane system adopted after 1937.  A contrary reading would lead to the conclusion that, so long as a civil service system was in place before 1937, a city could subsequently modify the system without losing its exempt status--even to the point of removing important features of previous civil service protection.[1]  This notion is too inconsistent with the statutory purpose to be acceptable.

             The last opinion of the State Supreme Court interpreting chapter 41.12 RCW isReynolds v. Kirkland Police Commission, 62 Wn.2d 720, 384 P.2d 819 (1963).  TheReynolds court made the following conclusions:

             After a complete reading of RCW chapter 41.12 (Laws of 1937, chapter 13, p. 23), we are of the opinion that its purpose is to establish a civil service system to (1) provide for promotion on the basis of merit, (2) give police officers tenure, and (3) provide for a civil service commission to administer the system and to 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.

             Using these standards to interpret the Kirkland ordinance before it, the State Supreme Court inReynolds concluded that the City of Kirkland did not provide adequate procedures for suspension and review, and, therefore, struck down in part the civil service system established by the City of Kirkland.  The ordinance at issue inReynolds was enacted in 1953.

             InBellingham Firefighters Local 106 v. Bellingham, 15 Wn. App. 662, 551 P.2d 142 (1976), Division I of the Court of Appeals considered portions of the Bellingham Civil Service System which were inconsistent with chapter 41.08 RCW.[2]  Because the Bellingham civil service system dated to 1904, well before the enactment of chapter 41.08 RCW, the city urged the court to treat the Bellingham provisions of a 1973 city charter as exempt from chapter 41.08 RCW on the same basis as theYantsin court had found Aberdeen's civil service provisions exempt.  The Court of Appeals rejected this approach.

             This interpretation would give a city exemption from the state law solely because it had some form of civil service in effect prior to the state statute, even though that civil service might defeat the purpose of the state law and regardless of what provisions might be enacted in the future. . . . We decline to apply that interpretation from Yantsin v. Aberdeen, supra, to the facts of the case now before us.

 Bellingham, 15 Wn. App. at 665.

             Using theReynolds standards of "substantial compliance" to the Bellingham system, the Court of Appeals found that Bellingham's provisions did "substantially accomplish" the purposes of chapter 41.08 RCW and, therefore, upheld them.  Bellingham Firefighters Local 106 was cited with approval inInternational Ass'n of Fire Fighters Local 404 v. Walla Walla, 90 Wn.2d 828, 832, 586 P.2d 479 (1978).  In theWalla Walla case, the State Supreme Court held that a city ordinance substantially accomplished the same purposes as the state act and, therefore, upheld it although it differed in some particulars from chapter 41.08 RCW.  The opinion in theWalla Walla case does not discuss whether the Walla Walla ordinance was enacted before or after the enactment of chapter 41.08 RCW.[3]

             In the most recent opinion on the subject, Division III of the Court of Appeals struck down certain provisions of the Yakima Civil Service System insofar as they purported to limit review by the civil service commission of reprimands.  Yakima v. Yakima Police & Fire Civil Service Comm'n, 29 Wn. App. 756, 631 P.2d 400 (1981) review denied, 96 Wn.2d 1013 (1981).  The Court of Appeals found that "denying the commission discretion to review disciplinary actions taken against civil service employees would effectively emasculate the principles of the act."  Yakima, 29 Wn. App. at 762.  Apparently, the Yakima ordinance was enacted subsequent to the enactment of chapter 41.08 RCW and theYakima court, therefore, had no reason to reconsider the 1959Yantsin opinion.  Yakima, 29 Wn. App. at 767.

            Taking theBellingham case and the Yakima case together, we conclude that (1) a court would almost certainly apply the "substantial accomplishment" test to provisions such as those in the Spokane City Charter which derive from amendments post-dating the enactment of the state statute; and (2) the courts would, in all likelihood, find that a provision allowing for a suspension of a tenured officer without review by the civil service commission would render a city civil service system "not in substantial compliance with the state act" and would, therefore, be invalid.  We further acknowledge that today courts might well require any city civil service provision to meet the "substantial accomplishment" test of RCW 41.12.010, whether the city provision was enacted before or after the state statute.

             We note that theReynolds court, like the Bellingham and Yakima courts subsequently, found that tenure for civil service officers, together with the right to have any disciplinary action reviewed by an appropriate tribunal, was central to the legislative scheme inherent in chapter 41.08 RCW and chapter 41.12 RCW.  If the Yakima court was willing to strike down a provision which excluded reprimands from civil service review, we cannot see how a provision exempting suspensions could possibly withstand judicial review.

             Finally, we note that a number of constitutional issues (particularly the right to due process as recognized in both the state and federal constitutions) come into play in dealing with civil service provisions such as those which are the subject of your question.  Because your question was limited to the relationship between the Spokane City Charter provision and the state statute, we do not address any of those constitutional issues.

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

                                                                         Very truly yours,
                                                                        KENNETH O. EIKENBERRY
                                                                        Attorney General

                                                                        JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General

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    [1]We note that RCW 41.12.020 provides that if a city repeals the charter provisions providing for civil service for policemen, chapter 41.12 RCW would thereafter apply.

    [2]Chapter 41.08 RCW, as we earlier noted, is identical to chapter 41.12 RCW but relates to fire fighters rather than police officers.

    [3]The Walla Walla ordinance was adopted in 1975.

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