Scannell v. City of Seattle

Decision Date29 July 1982
Docket NumberNo. 47960-7,47960-7
Citation648 P.2d 435,97 Wn.2d 701
PartiesJohn SCANNELL, Marie Masunaga, Lucille Rosetti, Joseph Hormitch, Martha Murphy, Rosa Thomas, Thomas Barnett, Allan Vulliet, Steven Seim, Mervin Slade, Theartis Caldwell, Donald Monson, Samuel Santor, Charles Douglas, Vaituki Latu, Kevin Schafer and Thomas Bannister, Petitioners, v. CITY OF SEATTLE, Respondent.
CourtWashington Supreme Court

Bendich, Stobaugh & Strong, David F. Stobaugh, Stephen K. Strong, Seattle, for petitioners.

Douglas N. Jewett, Seattle City Atty., P. Stephen DiJulio, Debra F. Hankins, Asst. City Attys., Seattle, for respondent.

DORE, Justice.

Seventeen intermittent employees of the City of Seattle appeal the trial court's summary judgment order dismissing their case, holding that they were not entitled to vacation pay. We reverse, 29 Wash.App. 175, 627 P.2d 1000, holding the City is liable to intermittent employees for vacation compensation, pursuant to the Seattle City Charter.

The City of Seattle classifies employees as permanent full time, permanent part time, intermittent and temporary. Although all these positions are within the City's classified service, intermittent employees are not protected by civil service rules and procedures and do not receive fringe benefits. An "intermittent position" is defined by the City as one comprising duties that "occur, terminate and recur according to the needs of the City".

Intermittent positions are funded as line items in each department's miscellaneous expenses budget. A position is designated as intermittent exclusively upon the source of its funding as a line item expense, and this designation is unrelated to the regularity of the employee's work schedule, total hours worked, type of work or the number of years continuously employed in the same position. Intermittent employees are hired in the same manner as full-time employees, and may work the same hours and perform the same duties. Even when not working, intermittent employees remain City employees until resignation, layoff or firing. Nevertheless, these intermittent employees receive no paid vacation benefits.

The Seattle City Charter provides for employees' paid vacations as follows:

ANNUAL VACATIONS: Officers and employees on a five-day-week basis shall receive annual vacations with pay at the rate of at least twelve working days per year, and others shall receive proportionate annual vacations as prescribed by ordinance. Provided, that longer vacation periods may be prescribed by ordinance on a uniform basis.

Seattle City Charter, art. 17, § 2.

Permanent part-time City employees receive annual paid vacations proportionate to that provided for permanent full-time employees. The City vacation ordinance does not specifically exclude intermittent employees from paid vacation benefits, and the only direct reference to intermittent employees is found in section 4.32.020(D) of the Seattle Municipal Code, which states:

Temporary or intermittent employees who leave the employment of the city and later are reemployed, shall for the purposes of this chapter, commence their active service with the date of reemployment.

Before bringing suit, intermittent employee Scannell pressed his claim for vacation pay through the City's grievance procedure. His grievance was denied on the ground that various Seattle ordinances and the City's long-standing practice precluded employees in intermittent positions from receiving various benefits, including vacation pay. The City's Civil Service Commission declined to hear the issue on the basis that it lacked jurisdiction.

After the City denied Scannell's claim for compensation, he and 16 other intermittent employees brought a class action suit against the City. The trial judge deferred the employees' motion for class certification until a decision on the City's liability for vacation pay could be made. The trial court granted the City's motion for summary judgment, dismissed the employees' case and denied the employees' motion for partial summary judgment on the question of the City's liability. The Court of Appeals affirmed. We reverse.

I

We are not persuaded by the City's argument that mandamus is the appellants' exclusive remedy in compelling the City to compensate the appellants for vacation time. Mandamus exists to provide a remedy where there is no plain, speedy and adequate remedy at law. RCW 7.16.170.

The appellants in the present case have a civil action for a declaratory judgment, an injunction prohibiting the City from denying the plaintiffs vacation pay and a money judgment for their back vacation pay owed under the charter. Public employees have regularly obtained money judgments in civil actions for back compensation owed under contracts or by law. See, e.g., Vallet v. Seattle, 77 Wash.2d 12, 459 P.2d 407 (1969); Malcolm v. Yakima County Consol. School Dist. 90, 23 Wash.2d 80, 159 P.2d 394 (1945); Watkins v. Seattle, 2 Wash.2d 695, 99 P.2d 427 (1940). We hold that the petitioners are not required to pursue a writ of mandamus against the City of Seattle to secure delinquent vacation pay.

II

We next consider the question of whether article 17, section 2 of the Seattle City Charter mandates the grant of vacation benefits to its intermittent employees. In applying this charter provision, we must look first to the charter language itself to determine the Seattle City Council's intent. State v. Sponburgh, 84 Wash.2d 203, 525 P.2d 238 (1974); In re Estate of Kurtzman, 65 Wash.2d 260, 396 P.2d 786 (1964). Legislative intent is to be ascertained from the statutory text as a whole, interpreted in terms of the general object and purpose of the legislation. State v. Sponburgh, supra; Amburn v. Daly, 81 Wash.2d 241, 501 P.2d 178 (1972).

We interpret the charter provision to contain three separate clauses: (1) employees working on a 5-day-week basis shall receive annual paid vacations of at least 12 working days; (2) other employees not working on a 5-day-week basis shall receive proportionate annual paid vacations as prescribed by ordinance; and (3) vacations longer than 12 working days per year may be prescribed by ordinance on a uniform basis. Thus, the charter provision provides for vacation benefits for both...

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  • Wilmot v. Kaiser Aluminum and Chemical Corp.
    • United States
    • Washington Supreme Court
    • December 12, 1991
    ...the Legislature intended to distinguish between the terms, with "may" being permissive and "shall" being mandatory. Scannell v. Seattle, 97 Wash.2d 701, 704, 648 P.2d 435, 656 P.2d 1083 (1982). Subsection (2) of the statute also contains the term "shall" ("the director shall bring an Defend......
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    ...and “may,” it is presumed that the lawmaker intended to distinguish between them.’ ”) (Quoting Scannell v. City of Seattle, 97 Wash.2d 701, 704, 648 P.2d 435 (1982) ); see also State v. Roberts, 117 Wash.2d 576, 585–86, 817 P.2d 855 (1991) (comparing the current and prior version of the sam......
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    ...that the provision is permissive and not binding, while the use of "shall" indicates a mandatory provision. Scannell v. City of Seattle , 97 Wash.2d 701, 704, 648 P.2d 435 (1982). ¶ 17 Improper ex parte communication under the CJC may provide grounds for a new trial under CR 59(a)(1). Buckl......
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1 books & journal articles
  • Class Actions-washington Style: a Look at Washington Superior Court Rule 23
    • United States
    • Seattle University School of Law Seattle University Law Review No. 8-03, March 1985
    • Invalid date
    ...the position generally taken by the federal courts. See, e.g., Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974). 94. 97 Wash. 2d 701, 648 P.2d 435 95. Id. at 703, 648 P.2d at 437. 96. Id. at 706, 648 P.2d at 438. It is unclear from the supreme court's opinion whether the plaintiffs rais......

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