City of Seattle v. Auto Sheet Metal Workers Local 387

Dore, J.

(dissenting)—I dissent for I believe that the Seattle City Charter amendment No. 5 is irreconcilably conflicting with governing state law and therefore is unconstitutional and void pursuant to Const, art. 11, § 10 (amendment 40). I would also hold that the City of Seattle Personnel Ordinance, adopted pursuant to city charter amendment No. 5, is in direct conflict with state law and is also unconstitutional.

In State ex rel. Guthrie v. Richland, 80 Wn.2d 382, 494 P.2d 990 (1972), our Supreme Court stated at page 384:

It is settled that any charter provision which has the effect of limiting or restricting a legislative grant of power to the legislative authority or other officer of a city is invalid. Neils v. Seattle, 185 Wash. 269, 53 P.2d 848 (1936).
As we said in Dahl v. Braman, 71 Wn.2d 720, 430 P.2d 951 (1967), the principles established by that case and the cases cited therein are that, where there is a conflict between a general law enacted by the legislature and a freehold charter provision, the general law is superior to and supersedes the charter provision; and where the general law grants authority to the legislative authority of a city, that authority may not be exercised by the city as a corporate entity, nor is the exercise of that authority by the legislative authority subject to repeal, amendment or modification by the people through the intiative [sic] or *695referendum procedure. Accord, State ex rel. Haas v. Pomeroy, supra.
The constitution of this state, article 11, section 10, amendment 40, dictates this result. It provides that all charters of municipal corporations shall be subject to, and controlled by, general laws.

The Public Employees' Collective Bargaining Act (RCW 41.56) requires the City, as the employer and exclusive bargaining representative representing employees, to bargain on all personnel matters and recognize that each bargaining unit may have requirements and interests peculiar to that unit only.

The analysis of the conflict of the city charter amendment and state law (RCW 41.56) begins with the proposition that where there is such a conflict, general state law governs. Const, art. 11, § 10 (amendment 40). RCW 41.56 is such a law and in the event of conflict with any city charter provision, the provisions of RCW 41.56 must control. The conflict exists between city charter amendment No. 5 and RCW 41.56 in that each of those laws requires the City to pursue a course of action that is in conflict with the other law. RCW 41.56 requires the City to bargain collectively on personnel matters including wages, hours and working conditions. Collective bargaining is defined in RCW 41.56-.030(4) and includes the duty to meet, confer and negotiate in good faith and to execute a written agreement concerning collective negotiations on personnel matters including wages, hours and working conditions which may be peculiar to an appropriate bargaining unit. State law provides that neither party shall be compelled to agree to a proposal or be required to make a concession unless so provided in RCW 41.56. In this manner the Public Employees' Collective Bargaining Act sets the basic requirement that the City, as employer and exclusive bargaining representative representing employees, bargain on all personnel matters recognizing that each bargaining unit may have peculiar requirements and giving to each bargaining unit the right *696to reach its own agreement with the City on personnel matters.

In direct conflict with this principle of collective bargaining, city charter amendment No. 5 requires that a personnel ordinance establish uniform procedures on such working conditions.

City charter and state law are in direct and irreconcilable conflict on this issue. Under the provisions of our constitution, as set forth in State ex rel. Guthrie v. Richland, supra, state law (RCW 41.56) must be declared to be controlling and city charter amendment No. 5 consequently must be held to be invalid.

In determining whether this court should declare the entire city charter amendment invalid, rather than declaring a portion such as sections 1 and 9 invalid, we must determine whether the charter amendment would have been enacted without the invalid provisions, or whether the elimination of the invalid part renders the remainder of the act incapable of accomplishing the legislative purpose. Homes Unlimited, Inc. v. Seattle, 17 Wn. App. 47, 561 P.2d 1089 (1977), modified, 90 Wn.2d 154, 579 P.2d 1331 (1978). The first test focuses upon legislative intent; the second test deals with the purpose to be served by the legislation.

The first test applies whether or not a severability clause is contained in the legislation. Homes Unlimited, Inc. v. Seattle, supra.

The city charter amendment was presented to the city council and the people of Seattle as providing for uniformity, one system which would be applicable to all city employees. Clearly this was not accomplished because the City must still negotiate with each bargaining unit and reach agreement as provided in state law. Without accomplishing this purpose, the city charter amendment and personnel ordinance do not have features of economy and simplicity that were believed to be their primary characteristics. It is also noted that the city charter amendment does not contain within it a severability clause. Without the *697uniform, personnel procedures provided in section 1 of the charter amendment, the entire purpose of the charter amendment is defeated. Since the uniform procedures provision is directly in conflict with state law, it cannot stand. Therefore I would have held that the entire charter amendment is unconstitutional and void under Const, art. 11, § 10 (amendment 40).

The Seattle City Personnel Ordinance adopted pursuant to city charter amendment No. 5 is also in direct conflict with state law and is unconstitutional.

Section 25(B) of the personnel ordinance provides for provisional employees becoming probationary employees of the City without open competition. This is violative of the purpose and intent of RCW 41.56 which requires open competition for all public employment.

The civil service commission established under the personnel ordinance is not and cannot be similar in scope, structure and authority to the State Personnel Board. Thus the City retains all of the responsibility under state law to engage in collective bargaining on all personnel matters and cannot avoid that responsibility by delegating such matters to the city civil service commission. Section 4 of the personnel ordinance provides that the director of personnel, an appointee of the employer, is to adopt substantive rules concerning many personnel matters, including grievance procedures, layoffs, hiring, performance evaluation, promotion opportunities and classification changes. All of these matters are within the mandatory bargaining requirements of RCW 41.56. The personnel ordinance itself is in direct conflict with the requirements of state law in the same manner as charter amendment No. 5 conflicts with state law. The ordinance, adopted pursuant to charter amendment No. 5, must be consistent with charter amendment No. 5. To be consistent with charter amendment No. 5 necessarily provides that it is not consistent with general state law and therefore is also invalid.

*698I conclude that Seattle City Charter amendment No. 5 and the 1979 City of Seattle Personnel Ordinance are invalid. I would have reversed the declaratory judgment of the King County Superior Court and remanded the case with instructions to enter an order declaring City of Seattle Charter amendment No. 5 and its implementing ordinance null and void.

Reconsideration denied December 30, 1980.

Review denied by Supreme Court March 13, 1981.