AGO 1961 No. 55 - Aug 14 1961
VETERANS ‑- RE‑EMPLOYMENT [[REEMPLOYMENT]]RIGHTS ‑- SALARY STEP TO WHICH RETURNING VETERAN IS ENTITLED.
A veteran qualified for re‑employment [[reemployment]]rights under RCW 73.16.033 and RCW 73.16.035 is entitled to salary step increases determined as though his service had not been interrupted if he worked for any department where increases were automatic. If the veteran had worked in a department where such salary increases were not based solely on length of service his in-step service requirement began running by December 8, 1960, and he would be entitled to a salary step increase on or before January 1, 1962.
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August 14, 1961
Honorable Tom McNulty
Department of Personnel
212 General Administration Building
Cite as: AGO 61-62 No. 55
By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
At what step within the salary range currently assigned to a position in state government formerly held by a returning veteran should such veteran be reinstated?
We answer your question in the analysis.
Your letter requesting the opinion asked us to presume that the veteran involved was entitled to be re‑employed [[reemployed]]under the provisions of RCW 73.16.033 and RCW 73.16.035. Those two statutes read as follows:
"Any person who is a resident of this state and who voluntarily or upon demand, vacates a position of employment to determine his physical fitness to enter, or, who actually does enter upon [[Orig. Op. Page 2]] active duty or training in the Washington National Guard, the armed forces of the United States, or the United States public health service, shall, provided he meets the requirements of RCW 73.16.035, be reemployed forthwith: Provided, That the employer need not reemploy such person if circumstances have so changed as to make it impossible, unreasonable, or against the public interest for him to do so: Provided further, That this section shall not apply to a temporary position.
"If such person is still qualified to perform the duties of his former position,he shall be restored to that position or to a position of like seniority, status and pay. If he is not so qualified as a result of disability sustained during his service, or during the determination of his fitness for service, but is nevertheless qualified to perform the duties of another position, under the control of the same employer, he shall be reemployed in such other position: Provided, That such position shall provide him with like seniority, status, and pay, or the nearest approximation thereto consistent with the circumstances of the case." (Emphasis supplied.)
"In order to be eligible for the benefits of RCW 73.16.031 through RCW 73.16.061, an applicant must comply with the following requirements:
"(1) He must furnish a receipt of an honorable discharge, report of separation, certificate of satisfactory service, or other proof of having satisfactorily completed his service. Rejectees must furnish proof of orders for examination and rejection.
"(2) He must make written application to the employer or his representative within ninety days of the date of his separation or release from training and service. Rejectees must apply within thirty days from date of rejection.
"(3) If, due to the necessity of hospitalization, while on active duty, he is released or placed on inactive duty and remains hospitalized, he is eligible for the benefits of RCW 73.16.031 through 73.16.061: Provided, That such hospitalization does [[Orig. Op. Page 3]] not continue for more than one year from date of such release or inactive status:Provided further, That he applies for his former position within ninety days after discharge from such hospitalization."
Your question then is directed to the meaning of the language we have emphasized above.
In AGO 55-57 No. 23 [[to Veterans' Rehabilitation Council on February 16, 1955]], a copy of which we have enclosed, we held that the state, rather than the federal law, would control in questions involving employees of the state or its political subdivisions. See, also, AGO 59-60 No. 17 [[to Veterans' Rehabilitation Council on February 26, 1959]], copy enclosed. In 55-57 No. 3 [[to Standards Committee on January 6, 1955]], a copy of which is enclosed, we held that an employee of the state is entitled only to the salary step he formerly held when increases in salary steps are based upon any considerations other than length of service. We have re‑examined those opinions and believe they correctly state the law.
As we stated in the latter opinion above cited "insofar as tenure enters into the formula for advancement, no veteran should be discriminated against by reason of the time he spent in the military service." The courts, however, refuse to presume that the veteran would have received any salary increases based upon merit. SeeNevens v. Curtis-Wright Corporation, 172 F. (2d) 535 (1949).
Prior to December 8, 1960, the rules governing salary step increases were not uniform. Employees of the agencies covered by the former state personnel board, standards committee, and the several offices of the elected officials received salary increases based upon length of service and merit. See Article V, § 3-2 of the Merit Rule and § 16 (c) of the Standards Committee Rule governing personnel practices. Employees of the highway department, however, received automatic salary step increases. See § 710 of the Highway Personnel Manual Merit System.
Section 15 of Initiative 207 (chapter 1, Laws of 1960, which became effective December 8, 1960), reads in part as follows:
"The Board shall adopt . . . rules and regulations, . . . regarding the basis for, and procedures to be followed for, . . .regular increment increases within the series of steps for each pay grade,based on length of service for all employees whose standards of performance are such as to permit them to retain job status in the classified service; . . ." (Emphasis supplied.)
In our opinion this language is clear and unambiguous and an employee is entitled to anautomatic salary increase if he retains his employment.
[[Orig. Op. Page 4]]
With these factors in mind we answer your question as follows:
A veteran qualified for reinstatement under the provisions of RCW 73.16.033 and 73.16.035 is entitled to salary step increases determined as follows:
(a) As though his service had not been interrupted if he worked for the highway department or any other department where increases were automatic.
(b) If he formerly worked under rules where such increases were not based solely on length of service, his in-step service requirement began running at least by December 8, 1960, and he would be entitled to a salary step increase on or before January 1, 1962.
See Article XX, § 12 (a) (2) of the Merit System Rules.
We trust that this information will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General