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AGO 1989 No. 20 - October 27, 1989
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES ‑- FIREFIGHTERS ‑- POLICE ‑- CIVIL SERVICE

Because of RCW 41.08.040 and RCW 41.12.040, the secretary/chief examiner of a civil service commission created under chapter 41.08 or chapter 41.12 RCW must be either an existing employee of the city or a city resident; these provisions were left undisturbed when the current versions of RCW 41.08.075 and 41.12.075 were enacted.

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                                                                October 27, 1989 

Honorable George W. Walk
State Representative
Twenty-Fifth District
435 House Office Building
Olympia, Washington 98504

Cite as:  AGO 1989 No. 20                                                                                                                

 Dear Representative Walk:

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

             Do the provisions of RCW 41.08.040 and 41.12.040, which require the person filling the position of secretary/chief examiner of the civil service commission to be either an existing employee of the city or a city resident, still control in light of [RCW] 41.08.075 and 41.12.075, which purport to eliminate the residency requirements for those holding any office, place, position, or employment under the provisions of the chapter?

             We answer your question in the affirmative.

                                                  STATEMENT OF THE QUESTION

             RCW 41.08.040 is a section of chapter 41.08 RCW, which establishes a civil service system for firefighters.1/

             RCW 41.08.040 provides in part:

              [[Orig. Op. Page 2]]

                         They [the civil service commission] shall appoint a secretary and chief examiner, who shall keep the records of the commission, preserve all reports made to it, superintend and keep a record of all examinations held under its direction, and perform such other duties as the commission may prescribe.

             The secretary and chief examiner shall be appointed as a result of competitive examinationwhich examination may be either original and open to all properly qualified citizens of the city, town or municipality, or promotional and limited to persons already in the service of the fire department or of the fire department and other departments of said city, town or municipality, as the commission may decide.  The secretary and chief examiner may be subject to suspension, reduction or discharge in the same manner and subject to the same limitations as are provided in the case of members of the fire department. . . .

 (Emphasis added.)  Another section of chapter 41.08 RCW, RCW 41.08.075, provides:

                         No city, town or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter or under any local charter or other regulations described in RCW 41.08.010 to reside within the limits of such municipal corporation as a condition of employment, or to discriminate in any manner against any such person because of his residence outside of the limits of such city, town, or municipality.

             RCW 41.12.040 is a section of chapter 41.12 RCW, which establishes a civil service system for police officers.2/

             Like RCW 41.08.040, RCW 41.12.040 provides in part:

                         They [the civil service commission] shall appoint a secretary and chief examiner, who shall keep the records for the commission, preserve all reports made to it, superintend and keep a record of all examinations held under its direction, and perform such other duties as the commission may prescribe.

                         The secretary and chief examiner shall be appointed as a result of competitive examinationwhich examination may be either original and open to all  [[Orig. Op. Page 3]]properly qualified citizens of the city, town or municipality, or promotional and limited to persons already in the service of the police department or of the police department and other departments of said city, town or municipality, as the commission may decide.  The secretary and chief examiner may be subject to suspension, reduction or discharge in the same manner and subject to the same limitations as are provided in the case of members of the police department. . . .

 (Emphasis added.)  And like RCW 41.08.075, RCW 41.12.075 provides:

                         No city, town, or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter or under any local charter or other regulations described in RCW 41.12.010 to reside within the limits of such municipal corporation as a condition of employment or to discriminate in any manner against any such person because of his residence outside of the limits of such city, town, or municipality.

             Your question is whether the provisions of RCW 41.08.075 and RCW 41.12.075, which prohibit any residency requirements for "any person applying for or holding an office, place, position, or employment under the provisions of" their respective chapters, override the provisions of RCW 41.08.040 and RCW 41.12.040, respectively, which limit non-promotional examinations for the secretary/chief examiner position to "all properly qualified citizens of the city, town or municipality".

                                                                      ANALYSIS

             In answering your question, we think it helpful to review the sequence of legislative enactments relating to residency requirements in chapters 41.08 and 41.12 RCW, some of which have been construed in judicial opinions and prior Attorney General Opinions.

             The firefighters' civil service law, chapter 41.08 RCW, was originally enacted in 1935.  Laws of 1935, ch. 31.  The 1935 act referred to residency requirements in three sections.  Section 3 provided that each member of the civil service commission must have been "a resident of [the] city for at least three (3) years immediately preceding such appointment".  This provision remains unchanged in the current statute.  RCW 41.08.030.  Section 5 of the 1935 act contained the language in RCW 41.08.040 quoted above,i.e., that the secretary/chief examiner  [[Orig. Op. Page 4]] shall be appointed as a result of competitive examination which examination may be either original and open to all properly qualified citizens3/

              of the city, town or municipality, or promotional and limited to persons already in the service of the fire department or of the fire department and other departments of said city, town or municipality, as the commission may decide.

 Section 7 of the 1935 act provided in part:

                         An applicant for a position of any kind under civil service, must be a citizen of the United States of America and an elector of the county in which he resides, who can read and write the English language, and must have been a resident of said city for at least one (1) year.

 This section, which evolved into the present version of RCW 41.08.070, has undergone considerable change during the course of its history.

             The police officers' civil service law, chapter 41.12 RCW, was originally enacted in 1937.  Laws of 1937, ch. 13.  As originally enacted, it contained sections imposing residency requirements identical to those in the firefighters' statute.  Laws of 1937, ch. 13, §§ 3, 5, 7, pp. 23, 25, 29.

             As these statutes were originally enacted, the secretary/chief examiner position was open to either "properly qualified citizens of the city", or "persons already in the service of the [fire or police] department" (who had to have been city residents for a year at the time of their application for initial employment), or "persons already in the service . . . of the [fire or police] department and other departments of said city".

             [[Orig. Op. Page 5]]

             We next turn to another statute, RCW 35.21.200, which deals with residency requirements for city or town officials or employees in general.

             RCW 35.21.200 was originally enacted in 1941 and read:

                         Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or employees, and in event such legislative authority does not fix any residential qualifications for any of such officials or employees, there shall be none:  Provided, This act shall not authorize a city or town to change any residential qualifications prescribed in any city charter for any appointive official or employee.

 Laws of 1941, ch. 25, § 1, p. 59.  Section 2 of the same 1941 act provided:  "All acts and parts of acts in conflict herewith are hereby repealed."  In 1951, RCW 35.21.200 was amended to read as follows:

                         Any city or town may by ordinance of its legislative authority determine whether there shall be any residential qualifications for any or all of its appointive officials or for preference in employment of its employees, but residence of an employee outside the limits of such city or town shall not be grounds for discharge of any regularly appointed civil service employee otherwise qualified:  Provided, That this section shall not authorize a city or town to change any residential qualifications prescribed in any city charter for any appointive official or employee:  Provided, further, That all employees appointed prior to the enactment of any ordinance establishing such residence qualifications as provided herein or who shall have been appointed or employed by such cities or towns having waived such residential requirements shall not be discharged by reason of such appointive officials or employees having established their residence outside the limits of such city or town:  Provided, further, That this act shall not authorize a city or town to change the residential requirements with respect to employees of private public utilities acquired by public utility districts or by the city or town.

 Laws of 1951, ch. 162, § 1, p. 446.

             InMosebar v. Moore, 41 Wn.2d 216, 248 P.2d 385 (1952), the Washington Supreme Court considered the relationship between RCW 41.08.070 and RCW 35.21.200.  The question presented was whether  [[Orig. Op. Page 6]] a city firefighter could be discharged for having moved his residence outside the city limits.  The court held that RCW 35.21.200, as amended in 1951, precluded the city from discharging a civil service employee on the sole grounds that he had moved outside the city limits.4/

            TheMosebar case, however, did not specifically deal with the secretary/chief examiner position.

             In 1960 this office construed RCW 41.08.070, 41.12.070, and 35.21.200 in AGO 1959-60 No. 140.  The question asked was whether a person was eligible for appointment to a civil service position if he had not been a resident of the city for a year prior to taking the civil service test but had been a resident for a year by the time a vacancy occurred.  We concluded that such a person was not eligible for appointment, reasoning that the 1-year residency requirement was a prerequisite to applying for employment,i.e., sitting for the examination.  We also concluded that RCW 41.08.070 and 41.12.070 spoke only to residency requirements of applicants and did not require city residency at the time of the applicant's appointment to a vacancy.  Unless the city had adopted an ordinance requiring employees to be residents at the time of their appointments, RCW 35.21.200 operated to allow a person to be appointed who was no longer a city resident.5/

              The next development occurred in 1963, when the Legislature amended RCW 41.08.070 and 41.12.070 to read in part as follows:

                         An applicant for a position of any kind under civil service, must be a citizen of the United States of America who can read and write the English language.   [[Orig. Op. Page 7]]  The commission may prescribe residence requirements for anyone appointed under this act.

 Laws of 1963, ch. 95, §§ 1, 2, pp. 521, 522.

             These amendments thus eliminated the 1-year residency requirement for civil service applicants contained in the original versions of RCW 41.08.070 and 41.12.070.  The 1963 act did not amend RCW 41.08.040 or 41.12.040, dealing with the secretary/chief examiner position.6/

              In AGO 1963-64 No. 36, this office again construed RCW 41.08.070, 41.12.070, and 35.21.200 in light of the 1963 amendments to RCW 41.08.070 and 41.12.070.  The question presented was whether these 1963 amendments, authorizing the civil service commission to prescribe residency requirements for civil service appointees, repealed by implication the provision in RCW 35.21.200 prohibiting dismissal of an employee on the ground that the employee did not reside inside the city limits.  We concluded that the 1963 amendments had not impliedly repealed RCW 35.21.200, reasoning that the statutes could be harmonized by interpreting the 1963 amendments as authorizing the commission to establish residency requirements in general for civil service appointees but not to establish a specific requirement of continued residency within the city.

             Finally, we come to the 1972 amendment to chapters 41.08 and 41.12 RCW.  Laws of 1972, 1st Ex. Sess., ch. 37.  That 1972 act had three basic parts.  First, in section 1, the Legislature stated the purpose of the act, which was to increase the available pool of qualified applicants for firefighter and police officer positions in municipal government.

             Next, in sections 2 and 3, the Legislature amended RCW 41.08.070 and 41.12.070 to eliminate the provision allowing the civil service commission to prescribe residency requirements for persons appointed under those chapters.  With this change, RCW 41.08.070 and 41.12.070, which originally imposed a 1-year residency requirement on applicants for civil service positions, now contain no reference to residency.

              [[Orig. Op. Page 8]]

             Finally, in sections 4 and 5, the Legislature added new sections to chapters 41.08 and 41.12 RCW to read as follows:

                        No city, town, or municipality shall require any person applying for or holding an office, place, position, or employment under the provisions of this chapter or under any local charter or other regulations described in [RCW 41.08.010 or RCW 41.12.010] to reside within the limits of such municipal corporation as a condition of employment, or to discriminate in any manner against any such person because of his residence outside of the limits of such city, town, or municipality.

 These sections are now codified as RCW 41.08.075 and 41.12.075, which gave rise to your inquiry.

             Thus, chapters 41.08 and 41.12 RCW evolved from statutes that generally imposed residency requirements to statutes that generally prohibited residency requirements.  However, none of the amendments since the original enactments in 1935 and 1937, including the 1972 amendments, expressly dealt with the residency requirement for the secretary/chief examiner position.  With this background, then, we return to your question, i.e., whether the "citizen" references in RCW 41.08.040 and 41.12.040 have been impliedly repealed by RCW 41.08.075 and 41.12.075.

             In AGO 1963-64 No. 36 we set forth the legal principles involving repeals by implication.  We there stated the governing rule of statutory construction as follows:

             Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier one unless the later act covers the entire subject matter of the earlier act, is complete in itself, and is evidently intended to supersede the prior act, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled, and both be given effect.

 Id. at 4 (quoting Lindsey v. Superior Court, 33 Wn.2d 94, 99, 204 P.2d 482 (1949)).  Applying these alternative tests, we conclude that RCW 41.08.075 and 41.12.075 have not repealed by implication the residency requirement in RCW 41.08.040 and 41.12.040.

             Was the 1972 act amending chapters 41.08 and 41.12 RCW an act which "covers the entire subject matter of the earlier act, is complete in itself, and is evidently intended to supersede the prior act"?  We conclude it was not.  First, in the 1972 act the Legislature expressly amended RCW 41.08.070 and 41.12.070, containing general provisions about residency requirements, by  [[Orig. Op. Page 9]] eliminating the language:  "The commission may prescribe residence requirements for anyone appointed under this chapter."  The Legislature did not amend the more specific sections dealing with residency requirements for the secretary/chief examiner, see RCW 41.08.040, 41.12.040, or for the civil service commissioners themselves,see RCW 41.08.030, 41.12.030, which have always existed alongside the more general residency provisions in RCW 41.08.070 and 41.12.070.  This indicates that the Legislature knew which residency provisions it wanted to amend and which it wanted to leave alone.

             Second, the new sections added in 1972, which became RCW 41.08.075 and 41.12.075, dealt with restricting the power of the city to impose residency requirements.  As such, they are more closely related to RCW 41.08.070 and 41.12.070 than to RCW 41.08.030 and 41.12.030 or to RCW 41.08.040 and 41.12.040.  In other words, RCW 41.08.075 and 41.12.075 appear directed toward the general residency provisions, rather than to the more specific provisions relating to the secretary/chief examiner or commissioners.

             Third, the 1972 act itself set forth its purpose.  Section 1 stated:

                        It is the purpose of this 1972 amendatory act to increase the availability of qualified applicants for employment in positions of public safety in municipal government; namely, firemen and policemen; and to eliminate present inequities that result from the application of residency requirements under existing statutes pertaining to such employment.

 This statement of purpose appears directed to the firefighter and police officer positions in general, rather than to the specific secretary/chief examiner position.7/

              For these reasons, we conclude that RCW 41.08.075 and 41.12.075, enacted as part of the 1972 amendments to chapters 41.08 and 41.12 RCW, were not intended to cover the entire subject matter or to supersede the long-existing residency requirement for non-promotional applicants for the secretary/chief examiner position.

             [[Orig. Op. Page 10]]

             Moreover, to conclude that RCW 41.08.075 and 41.12.075 were intended to repeal the residency requirement for the secretary/chief examiner position would lead to two anomalies.  First, by logical extension, the residency requirement for civil service commissioners themselves would be deemed repealed by implication, which we do not believe the Legislature intended.  Second, the chapter dealing with civil service for the sheriff's office, chapter 41.14 RCW, contains language similar to RCW 41.08.040 and 41.12.040.  See RCW 41.14.050.  The sheriff's office statute does not contain any provision like RCW 41.08.075 and 41.12.075.  See RCW 41.14.100.  It would be incongruous for the Legislature to require that a non-promotional applicant for secretary/chief examiner of the sheriff's office civil service commission be a resident of the county, while eliminating a similar requirement for the secretary/chief examiner of the firefighters or police officers civil service commission.

             We now turn to the alternative test for repeal by implication.  Are the residency requirements in RCW 41.08.040 and 41.12.040 and the provisions of RCW 41.08.075 and 41.12.075 "so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both be given effect"?  RCW 41.08.075 and 41.12.075 act to prohibit a "city, town, or municipality" from imposing a residency requirement.  In RCW 41.08.040 and 41.12.040, however, the Legislature itself, not the city, town, or municipality, is imposing the residency requirement.  There is no inconsistency between the two statutes.  Thus, we conclude that the requirements for repeal by implication are not met here, and that RCW 41.08.075 and 41.12.075 do not act to repeal the provisions of RCW 41.08.040 and 41.12.040 restricting non-promotional applicants for the secretary/chief examiner position to "all properly qualified citizens [residents] of the city, town or municipality".

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

SPENCER W. DANIELS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/The statute uses the term "firemen".  We will use the term "firefighters".

 2/Again, the statute uses the term "policemen", and we will use the term "police officers".

 3/Both RCW 41.08.040 and 41.12.040 use the term "citizens", rather than "residents".  However, we will refer to this as a residency requirement throughout this opinion.  We conclude that "citizens of the city" means residents of the city in this context.  See Imperial Car Rental Corp. v. Lussier, 97 R.I. 168, 196 A.2d 728, 730,appeal dismissed sub nom. Dunne Leases Cars & Trucks, Inc. v. Lussier, 378 U.S. 125 (1964).  In many other contexts, however, the terms "citizens" and "residents" are not synonymous.  See, e.g.,United States v. Washington, 774 F.2d 1470, 1480-81 (9th Cir. 1985).

 4/The court also upheld RCW 35.21.200 against a variety of constitutional challenges.  Statutes either imposing or prohibiting residency requirements for public employment have generally been upheld as against a wide range of constitutional challenges.  See Annot.,Validity, Construction, and Application of Enactments Relating to Requirement of Residency Within or Near Specified Governmental Unit as Condition of Continued Employment for Policemen or Firemen, 4 A.L.R.4th 380 (1981).

 5/While AGO 1959-60 No. 140 dealt only with RCW 41.08.070 and 41.12.070, its reasoning would apply equally to the secretary/chief examiner position in RCW 41.08.040 and 41.12.040, which refer only to being a "citizen of the city" at the time of the examination for the position.

 6/The 1963 amendment also eliminated the 1-year state residency requirement in RCW 41.14.100, dealing with civil service for the sheriff's office.  Compare Laws of 1959, ch. 1, § 10, p. 14 with Laws of 1963, ch. 95, § 3, p. 522.  You have not asked our opinion on the section of the sheriff's office civil service law dealing with the secretary/chief examiner position for that system, see RCW 41.14.050, and we have not examined this issue.

 7/We read the description of the "present inequities that result from the application of residency requirements under existing statutes" to refer to the former language in RCW 41.08.070 and 41.12.070, which allowed each civil service commission to prescribe residency requirements, and to the inconsistencies that presumably resulted from this.

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