SECOND CLASS CITIES ‑- RIGHT OF MAYOR TO REMOVE, DEMOTE OR APPOINT THE CHIEF OF POLICE WHERE SUCH CITY HAS ADOPTED FIREMEN OR POLICE CIVIL SERVICE

SECOND CLASS CITIES ‑-  RIGHT OF MAYOR TO REMOVE, DEMOTE OR APPOINT THE CHIEF OF POLICE WHERE SUCH CITY HAS ADOPTED FIREMEN OR POLICE CIVIL SERVICE.

The mayor of a second class city which has adopted either or both the firemen's and/or police civil service laws has no power to remove or demote the chief of the fire department and/or chief of police, and his right to appoint is limited to the eligibility lists as provided in such laws.

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                                                                    May 7, 1951

Honorable Don G. Abel
Prosecuting Attorney
Grays Harbor County
Aberdeen, Washington                                                                                            Cite as:  AGO 51-53 No. 35

Dear Sir:

            On April 18, 1951, you requested our opinion on the following:

            "Can the Mayor of a second class city, by virtue of his appointive powers under R.R.S. 9013 appoint, remove or demote heads of departments in the City administration who are classified under civil service."

                                                                     ANALYSIS

            The conclusions reached may be summarized as follows:

            The mayor has no power to remove or demote except as provided in the firemen's and police civil service laws, and his right to appoint is also limited to the eligibility lists as provided in such laws.

            Your specific question reads:

            "Can the Mayor of a second class city, by virtue of his appointive powers under R.R.S. 9013 appoint, remove or demote heads of departments in the City administration who are classified under civil service."

             [[Orig. Op. Page 2]]

            In the interest of clarity we first state that the effect of this opinion is limited to such second class cities only as have adopted either or both the firemen's and/or police civil service laws hereinafter referred to, and have not adopted anything in the way of special charters which might bear on the question involved, such as the council-manager plan as provided by chapter 271, Laws of 1943 (9198-10, et seq., Rem. Supp. 1943, 35.18, RCW [[chapter 35.18 RCW]]).

            Section 8, chapter 241, Laws of 1907 (9013, Rem. Rev. Stat.; 35.23.180, RCW [[RCW 35.23.180]]) provides, in substance for the appointment by the mayor of second class cities of the "police judge, city attorney, street commissioner, chief of police, library trustees, as well as other officers provided for in this act, whose election or appointment is not otherwise provided for, shall be appointed by the mayor, subject to confirmation by the city council.  * * *" Since you have not presented anything which would tend to show that the mayor is restricted in his powers under section 9013,supra, we must assume that the mayor still has the power to make all appointments except as to the chief of the fire department and the chief of police.

            The law relating to civil service in fire departments was originally passed as chapter 31, Laws of 1935 and codified as 9558-1, et seq., R.R.S. Supp.; also codified as 41.08, RCW [[chapter 41.08 RCW]].  An almost identical law was passed in 1937 pertaining to civil service in police departments, being chapter 13, Laws of 1937, codified as 9558a-1, et seq. R.R.S. Supp., and also as 41.12, RCW [[chapter 41.12 RCW]].  Section 8, chapter 31,supra, and section 8, chapter 13, supra, both provide that everyone holding an office under the established civil service may be removed or discharged, suspended without pay, demoted or reduced in rank or deprived of vacation privileges or other special privileges only for certain designated reasons therein stated.  Section 9, chapter 31 and section 9, chapter 13, supra, each and both provided as follows:

            "No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this act, shall be removed, suspended, demoted or discharged except 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."

            The section also contains various provisions relating to the hearing and appeal therefrom.

             [[Orig. Op. Page 3]]

            We must assume from your inquiry that there is now a chief of the fire department and a chief of police, each and both of whom have either "been permanently appointed or inducted into civil service" under the provisions of either chapter 13,supra, or 31, supra.  Your inquiry poses the question of the right of the mayor to appoint, remove or demote either or both the chief of the fire department and/or the chief of police.

            In an opinion to the prosecuting attorney of Jefferson county dated January 15, 1938, we said:

            "When civil service is adopted, the appointing power of the mayor immediately ceases, except from the list of eligibles certified to him by the civil service commission."

            Section 11, chapter 31,supra, and section 11, chapter 13, supra, each provide for the creation of an eligibility list in case a position under the civil service laws became vacant.  Such provision would certainly have the effect of restricting the power of appointment by the mayor in the case of a vacancy to those persons only whose names are on the eligibility list.

            For much the same reason we believe that the mayor is without power to demote either the chief of the fire department or the chief of police.

            The question of removal is perhaps more difficult.  Section 6, chapter 31,supra, and section 6, chapter 13, supra, each and both provide as follows:

            "For the benefit of the public service and to prevent delay, injury, or interruption therein by reason of the enactment of this act, all persons holding a position in the fire (police) department of any such city, including the chief thereof, * * * and every such person is hereby automatically adopted and inducted permanently into civil service, into such office, place, position or employment which such person then holds as completely and effectually to all intents and purposes as if such person had been permanently appointed thereto under civil service after examination and investigation."  (Emphasis supplied).

             [[Orig. Op. Page 4]]

            You do not state whether either the chief of the fire department or the chief of police was automatically placed under civil service as above outlined or whether they were placed therein through regular proceedings afterwards.  However, it would make no difference in this opinion as to which were true.  They are both now in office under and by virtue of the civil service laws above referred to.  The civil service laws were passed in 1935 and 1937 as above brought forth.  Section 013, Rem. Rev. Stat. was a portion of chapter 241, Laws of 1907.  Chapters 13,supra, 31,supra and 241, supra, would all appear to be general in scope.  The latter law should take precedence over all former laws.

            While the question is perhaps a close one, we believe that the mayor has no power to remove either the chief of the fire department or the chief of police under the facts as above outlined.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General