CITIES AND TOWNS - CIVIL SERVICE APPOINTMENT - POLICE OR FIRE DEPARTMENTS - RESIDENCY REQUIREMENT

CITIES AND TOWNS - CIVIL SERVICE APPOINTMENT - POLICE OR FIRE DEPARTMENTS - RESIDENCY REQUIREMENT.

A person is not eligible for appointment to a civil service position in the police or fire department under RCW 41.08.070 or 41.12.070 unless he has been a resident of the city for one year prior to taking the civil service examination, even though he may have been a resident for one year at the time a vacancy occurs in the classified service.  A person is eligible for appointment to a civil service position in the police or fire department even though he is not a resident of the city at the time a vacancy occurs in the classified service unless the city has by ordinance established residential qualifications.

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                                                               September 2, 1960

Honorable W. J. Beierlein
State Representative, 30th District
112 East Main
Auburn, Washington                                                                                             Cite as:  AGO 59-60 No. 140

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on two questions which we paraphrase as follows:

            1.  Is a person eligible for appointment to a civil service position in the police or fire department of a city covered by chapters 41.08 and 41.12 RCW, if he has not been a resident of the city for one year prior to taking the civil service examination but has met the one year residency requirement by the time a vacancy occurs in the classified service?

            2.  Is a person eligible for appointment to a civil service position in the police or fire department of such city if he has been a resident of the city for one year prior to taking the civil service examination but is not a resident of the city at the time a vacancy occurs in the classified service?

            We answer your first question in the negative and your second in the affirmative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We shall discuss the questions in the order outlined.

            As your letter points out, the applicable statutes are RCW 41.08.070 and 41.12.070.  The former pertains to applicants for the fire department and the latter, to applicants for the police department.  Both statutes are identical in language and read as follows:

            "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 year.

            "An applicant for a position of any kind under civil service must be of an age suitable for the position applied for, in ordinary good health, of good moral character and of temperate and industrious habits; these facts to be ascertained in such manner as the commission may deem advisable."  (Emphasis supplied.)

            The statute fails to specify as of what time an applicant "must have been a resident of said city for at least one year."  Since an applicant continues to be such until the time he is appointed to a position under civil service, it could well be argued that the statutory mandate of one year residency could be satisfied by the applicant at any time prior to his becoming an employee.  In other words, the argument would be that the one year residency is a prerequisite to becoming an employee rather than to becoming an applicant.  Though cogent, the argument is not supported by the law relating to civil service employees as we shall demonstrate below.

            In 1935, the legislature passed the firemen's civil service act (see Laws of 1935, chapter 31, p. 76), and in 1937, the policemen's civil service act (see Laws of 1937, chapter 13, p. 23).  This legislation contained no provision expressly establishing residency qualifications for either employment or continued employment in civil service.  Presumably to fill this void, the legislature enacted § 1, chapter 25, Laws of 1941, p. 59, Rem.Supp. 1941, § 9213-3, which reads:

            "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  [[Orig. Op. Page 3]]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."  (Emphasis supplied.)

            Chapter 162, p. 446, Laws of 1951 (cf. RCW 35.21.200) amended the 1941 act by substituting for the language underlined above, the following:

            ". . . 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: . . ."

            The proviso remained the same and two new provisos were added, neither of which is material to our consideration herein.

            Thus, the legislature has expressly authorized cities and towns to determine for themselves what the residential qualifications shall be for their civil service employees.  In view of this fact, it naturally follows that the one year residency requirement must have been intended as a prerequisite to application for employment and not to employment itself or to continued employment.  The distinction between applicants and employees and the residency requirements pertaining to each was expressly recognized by our court during the course of its opinion in Mosebar v. Moore, 41 Wn. (2d) 216, 248 P. (2d) 385 (1952).

            In a letter dated February 26, 1942, to the Division of Municipal Corporations, we advised the chief examiner thereof that the statutory requirement of one year residency for applicants was mandatory and could not be waived.  By letter dated September 19, 1942, this office advised the governor that where two fire substations in a city were not manned because of the impossibility of obtaining men due to the limitations of Rem.Rev.Stat. § 9558-7 (RCW 41.08.070), such city could employ nonresident personnel because an emergency existed.  However, we expressly pointed out that such employment would not constitute civil service eligibility until the statutory requirements had been complied with.

            Accordingly, since a person who takes a civil service examination is, without question, applying for a position under civil service, the statutory mandate applies and such person must have been a resident of the city for one year prior to taking the examination.

            In your letter your state: "If the above mentioned statutes are to be interpreted that an applicant must be a resident of the City for one year  [[Orig. Op. Page 4]] prior to their taking the Civil Service examinations, such construction will seriously impair the ability of a Third Class City such as Auburn to obtain the best qualified personnel.  This is due to the fact that there are not a sufficient number of qualified persons who can meet this requirement, because they will have found other permanent employment during the one year waiting period."

            We recognize the fact that, in practical operation, the statute may have some undesirable consequences.  However, as stated in Mosebar v. Moore, (p. 220) supra:

            "'. . . Courts, however, may not concern themselves with the wisdom of a legislative enactment when the terms of that enactment are clear and unequivocal.  In such a case the will of the legislature as expressed in the statute must be given effect.  If the situation . . . here under consideration, is one fraught with danger to the welfare of the city and its inhabitants, relief therefrom must be sought from the legislature and not from the courts.'"

            We have answered your second question in the affirmative.  As previously stated, RCW 41.08.070 and 41.12.070 pertain only to applicants.  They do not say that the applicant must be a resident of the city at the time of his appointment.

            RCW 35.21.200, supra, makes it clear that the residential qualifications pertaining to initial employment and the incumbency of employment, are to be left to the determination of the city.

            Thus, assuming the city has not adopted an ordinance covering the matter, we find nothing in the law, case or statute, which would preclude the employment in civil service of one who has been a resident of the city for one year prior to taking the examination, but is a nonresident at the time a vacancy occurs.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DUANE STOOKEY
Assistant Attorney General