State ex rel. Swartout v. Civil Service Commission of City of Spokane

• Decision Date: 15 January 1980
• Docket Number: No. 3399-III-6,3399-III-6
• Citation: 25 Wn.App. 174,605 P.2d 796
• Parties: STATE ex rel. Timothy V. SWARTOUT, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF SPOKANE, Respondent.
• Court: Washington Court of Appeals

Page 174

25 Wn.App. 174

605 P.2d 796

STATE ex rel. Timothy V. SWARTOUT, Appellant, v. CIVIL SERVICE COMMISSION OF the CITY OF SPOKANE, Respondent.

No. 3399-III-6.

Court of Appeals of Washington, Division 3, Panel Four.

Jan. 15, 1980.

Reconsideration Denied Feb. 5, 1980.

Bryan P. Harnetiaux, Powell & Harnetiaux, Spokane, for appellant.

James C. Sloane, Corp. Counsel, Christine Cary, Asst. Corp. Counsel, Spokane, for respondent.

McINTURFF, Judge.

This is an appeal from a decision of the superior court affirming the Civil Service Commission's refusal to entertain the appellant's, Timothy Swartout's, request for a hearing following his discharge from the Spokane police department.

Timothy Swartout was employed by the City of Spokane as a police officer for approximately 4 1/2 years when he voluntarily resigned in July 1976. At the time of his resignation, Mr. Swartout, having attained the status of a "permanent employee," requested that his name be placed on the Civil Service Commission's employment eligibility list. In accordance with his request, Mr. Swartout's name was placed at the bottom of the list, and as prior names were exhausted, Mr. Swartout's name advanced to the top of the list.

Mr. Swartout became eligible for reemployment as a police officer in October 1977. He accepted the position and submitted to the required physical and polygraph examinations. Before he returned to active service, Mr. Swartout learned of his civil service classification as a "probationary employee." His salary was based upon his status as an "original entrant." Thereafter, Mr. Swartout was assigned to duties and responsibilities commensurate with his experience.

Within a few months after he had returned to work, Mr. Swartout was charged with filing false activity reports. These allegations were reviewed by an informal intra-departmental body known as the Disciplinary Review Board. The Board recommended Mr. Swartout's suspension. The recommendation, however, was not binding on the Chief of Police, who discharged Mr. Swartout by letter dated January 27, 1978. Although the proceedings of the Disciplinary Review Board are governed by a policy of confidentiality, news of Mr. Swartout's discharge leaked to the press and was reported by the local media.

On February 3, 1978, Mr. Swartout appealed his discharge to the Civil Service Commission. The Commission declined to hear the appeal, finding it was without jurisdiction to review the discharge of a "probationary employee." Mr. Swartout then applied for a writ of review, which was granted by the superior court. Finding no error, the superior court affirmed the decision of the Civil Service Commission and this appeal followed.

First, we must decide whether Mr. Swartout was discharged in a manner consistent with the provisions of the Charter of the City of Spokane.

Mr. Swartout contends the City Charter provides a right of appeal for All employees of the City. This argument derives its authority from Article VI, Section 55, of the Charter:

An employee may be suspended, reduced in rank or discharged only by the city commissioner In whose (Italics ours.) We would agree with Mr. Swartout's argument if the language producing this grant of appellate authority was not preceded by Article VI, Section 53, entitled "Powers and Duties of Commission." Subsections (a) and (f) contain specific provisions relating to the classification and treatment of probationary employees. They provide, in part:

department the employee is employed, or the city manager, if the mayor-council-manager form of government is adopted, as follows: . . . (d) Any employee may be permanently discharged from city service for cause. The person making an order of suspension, reduction in rank or permanent discharge under Subdivisions (b), (c) or (d) hereof shall forthwith file with the commission a statement of such order which shall contain the reasons therefor, and serve a copy of the order on the employee. Within ten days after filing and service of said order, the employee may file a written appeal with the commission who shall hold a hearing thereon within ten days after filing the appeal.

The commission shall be required to advise the city council and its administrative officers on all matters relating to Civil Service in the city service and shall have the power and duty:

(a) To classify all positions of the city . . . Positions heretofore or hereafter classified shall constitute the classified service and no appointments or promotions shall be made to any such positions except in the manner provided by this Article and the rules of the commission.

(f) To provide for a period of probation not to exceed one year both on original and promotional appointments, before the appointment is made permanent, during which time, in the case of an original appointment, the probationer may be discharged, or, in the case of a promotion, returned to a position in his former classification By the head of the department, board or office in which employed.

(Italics ours.)

Mr. Swartout contends these respective Charter provisions are irreconcilable. We disagree. As noted by the court in Tacoma v. Civil Service Board of Tacoma, 6 Wash.App. 600, 601 Next, Mr. Swartout contends his discharge was without legal effect because of a conflict between the rules of the Civil Service Commission and the provisions of the City Charter.

                494 P.2d 1380 (1972), the general purpose of a probationary period within the concept of the Civil Service structure is to give the appointing official an opportunity to determine whether the probationer is efficient and competent.  In reconciling these charter provisions, a reasonable interpretation of Section 53(f) is that the Civil Service Commission is granted authority to hear appeals from any employee who has achieved permanent status, not one who is a probationary employee.  This interpretation preserves the general scheme of the Civil Service Commission program and gives meaningful significance to Section 53(f), which declares that in the case of probationary employees, whether original or promotional, the head of the department, in this case, the Chief of Police, may discharge the probationer before the appointment is made permanent.  1 See Tacoma v. Civil Service Board of Tacoma, supra at 605, 494 P.2d 1380.  To hold otherwise would negate the intent of the probationary period which is to simplify the discharge procedures for employees who are found to lack the qualifications necessary for permanent employment
                

As previously noted, the City Charter directs the Civil Service Commission to provide for a period of probation not to exceed one year for both original and promotional appointments.

Article VI, Section 53(f). The pertinent Civil Service rule provides:

X. A permanent employee who has resigned in good standing may, within one year, submit a written request to the Commission for reemployment in his last permanent classification and may, upon approval of the Commission, have his name placed at the bottom of an open eligible list for such classification for consideration during the remaining life of said list. Reemployment in this instance shall be considered as original entrance.

(Italics ours.)

By virtue of his previous 4 1/2 years of service with the police department, Mr. Swartout contends he has already successfully completed the required probationary period, and had attained the status of a classified, permanent employee prior to his voluntary resignation. Thus, he should not have been classified as a probationary employee when he rejoined the police department in October 1977. Because there is no specific provision under the Charter requiring a new probationary period upon reemployment, Mr. Swartout contends Civil Service Rule X constitutes an unlawful amendment to the City Charter, or is a requirement inconsistent with the City Charter. We disagree.

The Civil Service Commission cannot, by rule, modify or repeal a provision of the City Charter or enact rules not authorized by the power creating the commission.

State ex rel. Ausburn v. Seattle, 190 Wash. 222, 237, 67 P.2d 913, 919 (1937); Accord State ex rel. Olson v. Seattle, 7 Wash.2d 379, 384, 110 P.2d 159 (1941). Under Article VI, Section 53(1), the Civil Service Commission is directed to promulgate those rules necessary to carry out the purposes of the Civil Service provisions of the City Charter. ² As we have already noted, the purpose of a probationary period is to The Civil Service Commission could reasonably conclude that the time spent outside of active service may affect the officer's qualifications to once again be a permanent employee. Thus, even in the case of a police officer with prior experience, the appointing official should be given the opportunity to evaluate the officer in light of his present abilities before he is made a permanent employee. This conclusion is also consistent with the rights and interests of those police officers who have become permanent employees through continuous service with the police department. Rule X is not an amendment to the City Charter, nor is it inconsistent therewith.

allow the appointing official an opportunity to evaluate the competency of the probationer before his appointment is made permanent. This principle applies equally to novice police officers, promotional appointees and those experienced police officers who voluntarily resign from the force but subsequently apply for reemployment.

Next, Mr. Swartout contends the City is estopped from denying his status as a permanent "classified employee." The basis for this contention is that upon returning to the police department in October 1977, Mr. Swartout was not required to undergo police academy training and was given responsibilities normally associated with those of an experienced, permanent police officer.

For equitable estoppel to arise, there must be an admission, statement, or act inconsistent...