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AGO 1959 No. 28 - April 06, 1959
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - COUNTY - SHERIFF - CIVIL SERVICE COMMISSION - DISMISSAL OF PROBATIONER BY APPOINTING AUTHORITY

(1) The sheriff as appointing authority under Initiative No. 23 who dismisses a probationer is not required to notify the civil service commission of the basis for the dismissal.

(2) A probationer who has been dismissed does not have the right to have his dismissal reviewed by the civil service commission.

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

                                                                    April 6, 1959

Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington                                                                                                   Cite as:  AGO 59-60 No. 28

Dear Sir:

            By letter previously acknowledged, you have requested an opinion on two questions regarding Initiative No. 23.  We paraphrase your questions as follows:

            (1) Is an appointing authority who dismisses a probationer required to notify the civil service commission of the reason for the dismissal?

            (2) Does a probationer who is dismissed have a right to have his dismissal reviewed by the civil service commission?

            We answer both questions in the negative.

                                                                     ANALYSIS

            Sections 11, 12 and 13 of the initiative are pertinent.

            Section 11 provides:

             [[Orig. Op. Page 2]]

            "The tenure of every person holding an office, place, position, or employment under the provisions of this act shall be only during good behavior, and any such person may be removed or discharged, suspended without pay, demoted, or reduced in rank, or deprived of vacation privileges or other special privilegesfor any of the following reasons:

            "(1) Incompetency, inefficiency, or inattention to, or dereliction of duty;

            "(2) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other wilful failure on the part of the employee to properly conduct himself; or any wilful violation of the provisions of this act or the rules and regulations to be adopted hereunder;

            "(3) Mental or physical unfitness for the position which the employee holds;

            "(4) Dishonest, disgraceful, or prejudicial conduct;

            "(5) Drunkenness or use of intoxicating liquors, narcotics, or any other habit forming drug, liquid, or preparation to such extent that the use thereof interferes with the efficiency or mental or physical fitness of the employee, or which precludes the employee from properly performing the function and duties of any position under civil service;

            "(6) Conviction of a felony, or a misdemeanor involving moral turpitude;

            "(7) Any other act or failure to act which in the judgment of the civil service commission is sufficient to show the offender to be an unsuitable andunfit person to be employed in the public service."  (Emphasis supplied.)

            Section 12 provides, in part:

             [[Orig. Op. Page 3]]

            "No person in the classified civil service who has been permanently appointed or inducted into civil service under provisions of this act, shall be removed, suspended, or demotedexcept 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, or demoted may within ten days from the time of his removal, suspension or demotion, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation. . . ." (Emphasis supplied.)

            Section 13 provides, in part:

            "To enable the appointing power to exercise a choice in the filling of positions,no appointment, employment, or promotion in any position in the classified serviceshall be deemed complete until after the expiration of a period of one year's probationary service, as may be provided in the rules of the civil service commission,during which the appointing power may terminate the employment of the person certified to him, if during the performance test thus afforded, uponobservation or consideration of the performance of duty,the appointing power deems him unfit or unsatisfactory for service in the office of county sheriff.  Thereupon the appointing power shall designate the person certified as standing next highest on any such list and such person shall likewise enter upon said duties for the probationary period, until some person is found who is deemed fit for appointment, employment, or promotion whereupon the appointment, employment, or promotion shall be deemed complete."  (Emphasis supplied.)

            The fundamental object of all statutory construction is to ascertain and to give effect to the intention of the lawmakers.  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858 (1948).  Legislative intent must be gleaned from the whole act by giving effect to the entire statute and to each and every part therein, by construing terms and provisions therein according to their ordinary meaning and by giving consideration to the purposes and  [[Orig. Op. Page 4]] object sought to be accomplished by the enactment.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949); State ex rel. State Employees' Retirement Board. v. Yelle, 31 Wn. (2d) 87, 201 P. (2d) 172 (1948).  A statute must be construed, where possible, so as to harmonize the entire statute and make it sensible and effective.  Klippert v. Industrial Insurance Dept., 114 Wash. 525, 196 Pac. 17 (1921).  Where the language of a statute is plain, free from ambiguity and devoid of uncertainty, there is no room for construction for the meaning will be determined from the wording itself; if the statute has a doubtful or ambiguous meaning, it must be given a construction that is reasonably liberal in furtherance of the obvious or manifest intent of the lawmakers.  State v. Houck, supra.

            With these principles in mind, we proceed to consider the statutory provisions set forth above.

            Only § 12 of the initiative imposes a duty on the appointing authority to notify the commission of his "reason" for dismissing an appointee and provides to a dismissed appointee an appeal to the civil service commission.  However, it is readily apparent from the underscored language, "No person . . . who has beenpermanently appointed," that § 12 applies exclusively topermanent appointees.

            It is also apparent, from the underscored language, that § 13 applies exclusively toprobationary appointees.  Unlike § 12, § 13 merely provides that during the probationary period "the appointing authority may terminate the employment of the person certified" if he "deems him unfit or unsatisfactory."

            We think the foregoing and the language of § 13 which reads "to enable the appointing power to exercise a choice in the filling of positions" clearly evidence an intent to treat probationary and permanent appointees differently.

            We concede that the underscored provisions of § 11, providing that "the tenure of every person" under the act "shall be only during good behavior" and enumerating the "reasons" for dismissal of "any such person" obviously includes probationary as well as permanent appointees.  SeeNeuwald v. Brock, 12 Cal. (2d) 662, 86 P. (2d) 1047 (1939).  However, we find no conflict between the provisions of § 11 enumerating the specific reasons for dismissal and § 13 providing that the appointing authority, the sheriff, may dismiss probationers he deems "unfit or unsatisfactory."  It is a fundamental rule that when similar words are used in different parts of a statute, the meaning is presumed to be the same throughout.  DeGrief v. Seattle, 50 Wn. (2d) 1, 297 P. (2d) 940 (1956).  In our opinion each of the "reasons" enumerated in § 11 is synonymous with the terms "unfit or  [[Orig. Op. Page 5]] unsatisfactory" used in § 13; indeed the terms "fitness," "unfit" and "unfitness" are expressly used in enumerating the "reasons" for dismissal set forth in § 11.  The effect then of §§ 11 and 13 together is that a probationer dismissed as "unfit or unsatisfactory" is actually dismissed for "reason."  Thereby we conclude that § 11 cannot be construed as modifying § 13.

            The significant word in § 13 appears to be "deem."  It is a primary rule of construction that, in the absence of a statutory definition or a well-established technical meaning, ordinary words and phrases used in a statute must be accorded their usual meaning, unless controlled by context.  State v. Vosgien, 82 Wash. 685, 144 Pac. 947 (1914).  Generally, the word "deem" means to have an opinion; to think; to judge.  In re Schmidt's Estate, 134 Wash. 525, 236 Pac. 274 (1925).  "Deem" is synonymous with "consider," "regard," and "calculate."  See Funk and Wagnall's Standard Handbook of Synonyms, Antonyms and Prepositions (1947) p. 105, 184, 410.

            There are then only two conditions imposed on the appointing authority's power to dismiss, summarily, a probationer: That he "deems," considers, judges, or is of the opinion that the probationer is "unfit or unsatisfactory," and that he dismisses the probationer during the probationary period.  Thereby we conclude that your questions should be answered as follows:

            (1) The appointing authority is not required to notify the commission of his "reason" for dismissing a probationer.  SeeVoll v. Helbing, 256 App. Div. 44, 9 N.Y.S. (2d) 376 (1939); 131 A.L.R. 409; see alsoWells v. Commission of Public Works, 253 Mass. 416, 149 N.E. 144 (1925);Nisbet v. Frincke, 66 Colo. 1, 179 Pac. 867 (1919); cf.Neuwald v. Brock, supra.

            (2) A probationer who is dismissed has no right to have his dismissal reviewed by the civil service commission.  SeeNeuwald v. Brock, supra; State v. Williams, 6 S.D. 119, 6 N.W. 410 (1894);Sfair v. City of San Antonio, Tex. Civ. App., 274 S.W. (2d) 581 (1955); 131 A.L.R. 411.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General

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