AGO 1974 No. 22 - Oct 30 1974
VETERANS ‑- PUBLIC EMPLOYMENT ‑- CIVIL SERVICE ‑- VETERANS' PREFERENCE IN COMPETITIVE EXAMINATIONS
The provisions of RCW 41.04.010, as amended by § 1, chapter 170, Laws of 1974, 1st Ex. Sess., do not permit the use of the "veterans' preference" on a competitive entrance examination for covered public employment by a veteran who has claimed a similar preference and has thereby been previously appointed to a position which is subject to that statute, even though the employment thus obtained was with a different state agency, municipal corporation or political subdivision.
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October 30, 1974
Honorable Donald C. Brockett
West 1100 Mallon Avenue
Spokane, Washington 99201
Cite as: AGO 1974 No. 22
Attention: !ttMr. James P. Emacio
Deputy Prosecuting Attorney
By letter previously acknowledge you have request our opinion on a question which we paraphrase as follows:
Do the provisions of RCW 41.04.010, as amended by § 1, chapter 170, Laws of 1974, 1st Ex. Sess., permit the use of the "veterans' preference" on a competitive entrance examination for covered public employment by a veteran who has claimed a similar preference and has thereby been previously appointed to a position which is subject to that statute, where the employment thus obtained was with a different state agency, municipal corporation or political subdivision?
For the reasons set forth in our analysis we answer this question in the negative.
Presented in bill form for ease of comparison, § 1, chapter 170, Laws of 1974, 1st Ex. Sess., amended RCW 41.04.010 to read as follows:
"In all competitive examinations, unless otherwise provided herein, to determine the qualifications of applicants for public offices, positions or employment, the state, and all of its political subdivisions and all municipal corporations, shall give a preference status to all veterans as defined in RCW 41.04.005, by adding to the passing mark, grade or rating only, based upon a possible rating of one hundred points as perfect a percentage in accordance with the following:
"(1) Ten per cent to a veteran who is not receiving any veterans retirement payments and said percentage shall be utilized in said veteran's ((
first)) competitive examination (( only)) and not in any promotional examination untiloneofsuchexaminationsresultsinsaid veteran'sfirstappointment: PROVIDED,That saidpercentageshallnotbeutilizedinany promotionalexamination;"
One apparent purpose of this amendment was the clarification of a veteran's right to use the preference on succeeding competitive entrance examinations after his initial claim of preference but prior to his first appointment to public employment as a result thereof. The statute now clearly provides that the preference can continue to be utilized until the veteran receives his "first" appointment. What is less clear, however, as your question points outs, is whether the term "first appointment" refers to any appointment to covered public employment irrespective of the identity of the governmental agency involved; or whether, instead, the term limits the use of the preference only with respect to subsequent appointments by the initial employer, thereby permitting a previously employed veteran again to claim the preference in his application for later employment by a different governmental entity.
By striking the word "first" as it previously modified the phrase "competitive examination," the 1974 legislature, with the addition of other language, expressly provided Orig. Op. Page 3 that the preference could be claimed on competitive examinations until the results of one such examination secured (or resulted in an offer of) a "first appointment." The amendment, however, then reinserted the word "first" to modify "appointment." Clearly, had the legislature not done so there would have been room for argument that it intended to permit the further use of the preference in securing a subsequent appointment to a position with an agency of the state, a municipality or political subdivision other than that providing the initial appointment.
There is no modifying or other descriptive language qualifying the term "first appointment" from which to infer that it is a first appointment to a position in a particular governmental entity which is involved ‑ as opposed to an appointment to any public employment. The process of statutory construction ordinarily requires that words in a statute be given their ordinary meaning. Bixler v. Hille, 80 Wn.2d 668, 497 P.2d 594 (1972). Legislative intent should, if possible, be derived from the language of the statute itself. Schneider v. Forcier, 67 Wn.2d 161, 406 P.2d 935 (1965). Under a literal reading of the 1974 amendment to RCW 41.04.010, the "first appointment" by any covered employer terminates the use of the veterans' preference on competitive entrance examinations.
It is, nevertheless, true that literal meaning need not be given to a statute if such interpretation would be repugnant to legislative intent as a whole. Cory v. Nethery, 19 Wn.2d 326, 142 P.2d 488 (1943), citing Howlett v. Cheetham, 17 Wash. 626, 50 Pac. 522 (1897). Legislative intent may also be sought by examining the entire statute. In re Estate of Lyons, 83 Wn.2d 105, 15 P.2d 1293 (1973). However, an examination of the remaining provisions of RCW 41.04.010 yields no evidence that the legislature intended to limit the meaning of the term "first appointment" to a position granted by a single public agency ‑ as opposed to a position in covered public employment generally. Instead, the language tends to support the contrary conclusion we reach in this opinion.
Thus, we note that the more limited veterans' preference for those receiving retirement payments which is set forth in subsection (2) of RCW 41.04.010 generally parallels the preference granted under subsection (1). The provision, as also amended by § 1, chapter 170,supra, reads as follows:
"(2) Five percent to a veteran who is receiving any veterans retirement payments and said percentage shall be utilized in said veteran's ((
first)) competitive examination only and not in any promotional examinationuntiloneofsuchexaminationsresultsin saidveteran'sfirstappointment: PROVIDED,Thatsaidpercentageshallnotbeutilizedin anypromotionalexamination;"1/
Turning to the next subsection in RCW 41.04.010, we see that unlike the preferences set forth in subsections (1) and (2), which are limited to competitive entrance examinations, subsection (3) permits the use of a limited preference on competitive promotional examinations by a veteran who has been called or recalled to active military service after having previously received public employment with the state or any of its political subdivisions or municipal corporations.2/ Although the Orig. Op. Page 5 promotional rather than the initial entrance examination is the subject of this subsection, the provision is evidence of legislative intent to limit benefits to a single occasion.
The final part of RCW 41.04.010, subsection (4), by express language limits the examination preferences provided by the statute to those which have been described in the preceding subsections and, in addition, directs that such preferences must be claimed by the veteran within eight years after his release from active service.3/ While not conclusive of the question with which we are concerned, this time limitation reflects other restrictions which the legislature believed to be appropriate for the utilization of the preference available on entrance examinations.
Even though we believe that RCW 41.04.010, considered as a whole, is not ambiguous, we nevertheless find further support for the conclusion we have reached in various of those sources to which the courts customarily resort where the statutory language is found to be ambiguous; i.e., the legislative history of the statute, its historical context, and the purposes of the legislation itself. Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965); U. S. v. Anderson, 109 F.Supp. 755 (E.D. Orig. Op. Page 6 Wash. 1953). While there is nothing in the legislative history surrounding the 1974 amendment to RCW 41.04.010 to indicate what changes the legislature believed it was making in the law, the history of this statute is instructive.
As originally enacted in 1945,4/ the statute accorded a preference to veterans "in all competitive examinations" ‑ without differentiating between entrance and promotional examinations and without any indication that the preference increment was to be utilized only if a veteran would have passed the examination without its use. Then, in 1947, the statute was amended to limit the use of the preference to entrance examinations except in certain situations, and to provide expressly that the preference increment could be applied only after the veteran had first achieved a passing grade on a competitive examination.5/ A further amendment in 1949 generally restricted the definition of veterans entitled to exercise the preference.6/ The next occasion for amendment of the statute arose at the conclusion of the Korean conflict, in 1953, when the benefits of RCW 41.04.010 were extended to the veterans of that conflict.7/ Then, in 1969, the legislature imposed major limitations by language which limited the use of the preference to the "first" competitive examination without distinction Orig. Op. Page 7 between situations in which the veteran was successful or unsuccessful in obtaining employment. For the first time, the 1969 amendment provided a time limitation (five years following release from active duty) for the preferences.8/
Thus, with the exception of the 1974 amendments, the legislative trend, since the original enactment of the statute in 1945, has been to limit the scope of the preference. Fairly construed, the 1974 amendments represent limited adjustments in the severity of the limitations imposed on the use of the preferences in 1969. Specifically, the statute, as most recently amended, does not deprive a veteran of the use of the preferenceif he has not thereby obtained a "first appointment." In addition, the veteran now is given eight years instead of five in which to exercise the preference.
The history of the statute, like the language itself, thus does not support an inference that the legislature further intended to liberalize the statute by providing for a second use of the preference in an entrance examination for a position offered by a public agency other than the initial employer, orafortiori, for a different position with the same employer.
In the broader context of veterans' legislation generally, statutes like RCW 41.04.010 are regarded as having been enacted:
". . . for the purpose of discharging, in a measure, the debt of gratitude the public owes to veterans who have served in the armed services in time of war, by granting them a preference in original employment and retention thereof in public service. . . ." Valentine v. Redford Twp. Supervisor, 371 Mich. 138 at 145, 123 N.W.2d 227 at 230 (1963). (Emphasis supplied.)
The courts, however, are divided on whether such preference statutes should be liberally or strictly construed. Compare, e.g.,Eggleston v. City of Philadelphia, 380 Pa. 158, 110 A.2d 183 (1955) withChester v. Depart. of Civil Service, 90 N.J.Super. 176, 216 A.2d 611 (1966). But in those limited situations in which the courts have considered claims for extended use for the preference on competitive examinations, a restrictive attitude consistent with the position expressed in this opinion has been taken. Matter of Gorman v. Schechter, 10 Misc.2d 173, 172 N.Y.S.2d 750 (1958); cf.Mtr. of Kierman v. Wilson, 40 Misc.2d 667, 243 N.Y.S.2d 470 (1963).
Accordingly, we conclude that RCW 41.04.010, as amended, does not permit the use of the veterans' preference in connection with an application by a veteran for covered public employment once the veteran has received the offer of a first appointment because of prior use of the preference. We believe this to be true regardless of whether such subsequent application for employment is for a position with the same state agency, municipal corporation or political subdivision as before, or one different from the public employer which offered the first appointment.
We trust that this opinion will be of assistance to you.
Very truly yours,
LELAND T. JOHNSON
Assistant Attorney General
*** FOOTNOTES ***
1/A comparison of subsections (1) and (2), as amended, shows that in subsection (2) the legislature did not eliminate the word "only" after "competitive examination." While a statute should be interpreted to give effect to every word, the retention of "only" in subsection (2), read in context, tends to emphasize that the preference is to be used on initial as opposed to promotional examinations. Thus, we do not find that this minor distinction in the language of the two subsections is relevant to the question considered in this opinion.
2/This subsection of RCW 41.04.010, which was not amended by the 1974 legislature, reads as follows:
"(3) Five percent to a veteran who, after having previously received employment with the state or any of its political subdivisions or municipal corporations, shall be called, or recalled, to active military service for a period of one year, or more, during any period of war, for his first promotional examination only, upon compliance with RCW 73.16.035 as it now exists or may hereafter be amended;"
3/This subsection, as amended, reads as follows:
"(4) There shall be no examination preferences other than those which have been specifically provided for above and all preference above specified in (1), (2) and (3) must be claimed by a veteran within ((
five)) eight years of the date of his release from active service."
4/Section 1, chapter 189, Laws of 1945.
5/Section 1, chapter 119, Laws of 1947.
6/Section 1, chapter 134, Laws of 1949.
7/Section 1, chapter 9, Laws of 1953, Ex. Sess.
8/Section 2, chapter 269, Laws of 1969, Ex. Sess.