AGO 1974 No. 24 - Dec 23 1974
DISTRICTS ‑- FIRE PROTECTION ‑- CIVIL SERVICE ‑- ABOLITION OF CIVIL SERVICE SYSTEM
A fire protection district which has, by resolution, established a civil service program for its full-time paid firemen under RCW 52.36.060 may not later rescind that resolution and abolish such program in the absence of specific statutory authorization.
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December 23, 1974
Honorable James P. Kuehnle
State Representative, 4th District
S. 1122 Skyline Pl.
Spokane, Washington 99206
Cite as: AGO 1974 No. 24
This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
May a fire protection district which has by resolution established a civil service program for its full-time, paid firemen under RCW 52.36.060 later rescind that resolution an abolish such program?
We believe that this question is answerable in the negative in the absence of specific statutory authority to the contrary.
By its enactment of chapter 31, Laws of 1935, now codified as chapter 41.08 RCW, the legislature established a civil service system for full-time, paid municipal firemen. However, that act did not by its original terms include firemen employed by a fire protection district ‑ as distinguished from full-time, paid members of the fire department of a city or town. Accordingly, by § 1, chapter 72, Laws of 1949 (RCW 52.36.060), the legislature made the following provision:
[[Orig. Op. Page 2]]
"Any fire protection district organized and existing under chapter 34, Laws of 1939, and subsequent amendments thereof, having a full paid fire department,shall have authority by resolution of its Board of Fire Commissioners to provide for civil service in its fire department in the same manner with the same powers and with the same force and effect as to such district as that provided by chapter 31, Laws of 1935 (sec. 9558-1, etseq., Rem. Rev. Stat. Supp.), for cities, towns and municipalities."1/ (Emphasis supplied.)
Your question assumes the case of a fire protection district which has, by resolution of its board of commissioners, previously exercised this authority. You ask whether, through further action of the commissioners, the district may abolish the civil service program thereby earlier established. We believe that it may not, in the absence of specific statutory authority not presently existing.
We begin with the rule that fire protection districts, as municipal corporations, exercise only delegated powers; i.e., those powers which are granted to them expressly or by necessary implication. Pac. Etc. Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).
In the case of cities or towns having full-time, paid firemen, the civil service system provided for in chapter 41.08 RCW is mandatory ‑ unless the particular city or town has, by local charter or other regulation, established a separate civil service system which is in substantial conformity with that provided for in that chapter. See, RCW 41.08.010 ‑ 41.08.030. In the case of fire protection districts, on the other hand, the governing statute, RCW 52.36.060,supra, is merely permissive. It authorizes, [[Orig. Op. Page 3]] but does not require, the board of directors of a fire protection district having a full paid fire department,
". . . to provide for civil service in its fire department in the same manner with the same powers and with the same force and effect as to such district as that provided by chapter 41.08, for cities, towns, and municipalities, . . ."
However, notwithstanding this permissive aspect of the statute, RCW 52.36.060 does not simply allow a fire protection district to adopt whatever system of civil service happens to suit the fancy of its governing body. Instead, on close examination, the statute describes a very narrow limitation on the power which it first grants; i.e., to provide for civil service in its fire department ". . . in the same manner with the same powers and with the same force and effect as to such district as that provided by chapter 41.08 . . ." The effect of this language, in our opinion, is to grant to such districts only the power to adopt the civil service system provided or contemplated by chapter 41.08 RCW. As we similarly said in AGO 1968 No. 16 [[to Ronald L. Hendry, Prosecuting Attorney, Pierce County on April 29, 1968]], copy enclosed:
". . . we believe that RCW 52.36.060, supra, provides the only means by which fire protection districts desiring to establish civil service coverage for their full time, paid firemen can do so. The existence of this express provision negates any implied power to establish civil service by some other means. Compare, State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1915), andState ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956). Therefore, if a fire protection district determines to provide civil service for its full time, paid firemen, it follows that it must do so as provided in RCW 52.36.060 ‑ with the result that it will then be governed by all of the provisions of chapter 41.08 RCW to the same extent as a city or town."
[[Orig. Op. Page 4]]
The question, therefore, in our opinion, should be restated as follows:
Does a fire protection district, once having elected to adopt the statutory system of civil service for its employees contemplated by chapter 41.08 RCW, have the power thereafter to rescind its determination and abolish the system?
In concluding that it does not, in the absence of specific authority, we are by no means to be taken as saying that legislation granting this authority would be violative of any constitutional right on the part of currently employed firemen in a fire protection district to continued coverage under a civil service system established by a board of fire commissioners under RCW 52.36.060,supra. As is noted in our opinion of April 2, 1971, to State Senator R. Frank Atwood, copy enclosed, at page 6,
". . . a civil service system or a tenure system does not give rise to such a contractual relationship as is beyond the authority of the legislature to rescind or modify . . . unlike the matter of public employees' pensions (at least in this state ‑ see, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956)), the courts have left the lawmaking authority free to modify or even terminate an employee's civil service or tenure status."
However, viewed strictly from the standpoint of statutory authority under existing law, a negative answer appears to us to be required on the basis of a well-established principle that when a municipal corporation elects to adopt such a statutory plan its power in the matter is exhausted. See, e.g., AGO 1913-14 No. 411, copy enclosed, in which the question was whether a board of county commissioners, having established under an enabling statute a district wherein livestock would not be allowed to run wild, could subsequently abolish that district. Likewise answering that question in the negative, we said:
"The weight of authority appears to be that in such cases the local organization, although it has the power to adopt or refuse to adopt the legislative enactment, having once exercised its option [[Orig. Op. Page 5]] does not thereafter have the power to rescind such adoption. In the case ofNorthern Trust Company v. Snyder, 113 Wis. 516, 90 A.S.R. 867, 89 N.W. 460, a statute was considered which authorized the county board to change the mode of compensating the sheriff from the fee system to a salary system. The court held that after such a change had been made the county board could not thereafter revert to the fee system. The court says:
"'The power to adopt is a special, limited power, which, when once executed, is exhausted. We venture to say that no authority can be produced to support the contention that power to give effect to an option law carries with it, by implication, power to abolish it.'
"Board of Law Library Trustess v. Orange County, 34 Pac. 244 (Cal.);Ryan v. County Commissioners, 19 N.W. 653 (Minn.);State ex rel. Devise v. Peter, 120 N.W. 896 (Minn.); Simpson v. Eisler, 99 N.E. 980 (Ind.); State ex rel. Williams v. Board of Supervisors, 123 N.W. 248 (Wis.).
"The case ofWelch v. Bowen, 2 N.E. 722 (Ind.), and the case of Farley v. Commissioners, 126 Ind. 468, which follows it, are distinguishable, the Indiana statute being interpreted as giving to the county board complete jurisdiction in the matter of the regulation of animals running at large. Moreover, the subsequent Indiana cases ofFurness v. Brummitt, 99 N.E. 1114, andPlew v. Jones, 74 N.E. 618, seem in accord with the authorities above cited."
The adoption of a civil service system under enabling legislation falls squarely within this same rule. As a noted text authority on the subject has said:
"The adoption of the civil service system is often left optional with the municipality, but when once adopted the local corporation cannot usually relieve itself of the restriction unless some serious emergency is considered to justify it." 3 McQuillin, Municipal Corporations, § 12.55, p. 241 (3rd Rev. Vol.).
[[Orig. Op. Page 6]]
Accord,Warren v. New Brunswick, 79 N.J.L. 191, 80 Atl. 482 (1909), in which the question was precisely that of whether the city of New Brunswick, New Jersey, having by ordinance adopted a statutory system of civil service, could later repeal its ordinance and abandon the system. The court held that it could not, saying:
". . . Nor can we distinguish between such act by popular vote and such act by the vote of common council to effect the purpose of nullifying the act of adoption. The municipalities were left to their choice to adopt or not to adopt the act, but having once adopted it, no opportunity has been given them by law to regain their formerstatus."
An apparent reason for the application of this reasoning in such cases is the very nature of civil service which carries with it the idea of permanence as a means of insuring tenure. As McQuillin has also said:
". . . civil service laws have been widely adopted . . . for the purpose, among other things, of securing appointments on the ground of fitness, competency and merit so as to benefit the public, and for the purpose of protecting appointees from arbitrary and unjust treatment. . . ." 3 McQuillin, Municipal Corporations, supra, § 12.76, p. 329.
Such laws are liberally construed to accomplish their purpose. 3 McQuillin,supra, § 12.55, p. 241; see, also, Marshall v. Williams, 85 Cal.App. 507, 259 Pac. 970 (1927); andStohl v. Horstmann, 64 Cal.App. 2d 316, 148 P.2d 697 (1944). Accordingly, in another New Jersey case, the court struck down an attempt by the city of Elizabeth, New Jersey, to establish a fixed term for a certain position and thus to render the civil service law inapplicable to that position. In so ruling the court said:
"This construction is vital to the principle of civil service in municipal government; i.e., tenure during good behavior; for, if the statutes be read [[Orig. Op. Page 7]] as vesting in the governing body authority to prescribe a fixed term for the individual position, the operation of the Civil Service law will be optional with the governing body, and thus deprived of the attribute of a permanent policy, notwithstanding its acceptance by the electorate. This legislative purpose is not to be implied; it must be expressed in clear and unequivocal language." Davaillon v. City of Elizabeth, 121 N.J.L. 380, 387, 2 A.2d 369 (1938).
This same general policy appears to be embodied in our own state civil service laws for municipal fire fighters. RCW 41.08.010 allows each city or town to adopt its own civil service provisions by local charter or other regulations which ". . . substantially accomplish the purpose of this chapter." RCW 41.08.020 goes on to provide, however, that if any such city or town
". . . shall at any time repeal the charter provisions or other local acts of said cities or towns providing for civil service for firemen as referred to in RCW 41.08.010, . . . this chapter shall apply to all of such cities and towns which have at any time abolished civil service for members of the fire department."
By enacting RCW 52.36.060, supra, the legislature has given to fire protection districts exactly the same power; i.e., the power to adopt their own local provisions on the subject. The only difference is that cities and towns have no choice in the first instance as to whether or not to make the system operative in their respective departments, while fire protection districts are given such an initial choice. But the system, when once adopted by a fire protection district, automatically possesses a certain basic statutory element, to-wit, ". . . the same force and effect as to such district as that provided by chapter 31, Laws of 1935 [chapter 41.08 RCW] . . . for cities, towns and municipalities." To meet that requirement, in our opinion, the adoption of a civil service system by a fire protection district under RCW 52.36.060, supra, must [[Orig. Op. Page 8]] be deemed to subject such district to all provisions of chapter 41.08 RCW in substance, including the idea of permanence expressly embodied in RCW 41.08.020,supra. Otherwise, such a system would not have "the same force and effect" as that provided for cities and towns under that chapter for those municipalities have no power, once covered, to escape the provisions of chapter 41.08 RCW, supra.
However, even if RCW 41.08.020, supra, were not applied literally, it seems to us that a necessary aspect of the "force and effect" of chapter 41.08 RCW,supra, would be the idea of permanence, in view of the basic purpose of civil service provisions to provide tenure during good behavior. C.f.,Davaillon v. City of Elizabeth, supra. To allow a fire protection district to adopt such a system one year and abandon it the next would permit the type of arbitrary action which such systems were designed to prevent.
Thus, in our view, an affirmative answer to your question would do violence to the concept of civil service. To say that a board of commissioners of a fire protection district, having adopted a system of civil service, may rescind its determination at will, would be to make civil service provisions a series of one‑sided promises to be broken at will by such local governing body. The idea of "tenure" under such a system would be a mere illusion, at best, and we cannot by implication attribute to our legislature any intention to allow such a result. In fact, as previously noted, we believe that such a system would be contrary to the language as well as the spirit of RCW 52.36.060. Statutes, if possible, should be construed in such a manner as to accomplish their purposes. Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).
In summary, therefore, it is our opinion that a board of commissioners of a fire protection district, having once established a civil service system under RCW 52.36.060,supra, cannot thereafter abolish such a system without [[Orig. Op. Page 9]] further express statutory authority not presently existing.
We trust the foregoing will be of some assistance to you.
Very truly yours,
ROBERT F. HAUTH
Assistant Attorney General
*** FOOTNOTES ***
1/Subsequently, by § 2, chapter 256, Laws of 1971, 1st Ex. Sess., this statute was amended to provide for restrictions against the discharge of an employee covered by such a civil service program ". . . because of his residence outside the limits of the city, town, municipality, or fire protection district."