Oregon Advisory Opinions January 01, 1946: OP 1

Advisory Opinion Text

The Civil Service Commission is not authorized to give veterans' preference to applicants for positions who are cur­rently serving in the armed forces, but only to those who are on the established list as "war veterans" separated from the service under honorable conditions.

January 2, 1946

State Civil Service Commission

Gentlemen: Your question as to whether or not you "may give credit for veteran's preference as provided in Section 13, Paragraph 4, of the Civil Service Act, to applicants" for the posi­tion of director of civil service who have not been discharged but "are currently serving in the armed forces", is answered in the negative, for reasons hereinbelow stated.

Subsection 4 of Sec. 13 of the act (ch. 400, Oregon Laws 1945), provides that:

"4. Veterans of any of the wars of the United States who have success­fully completed all phases of an en­trance test shall be allowed preference on the list established as a result of an entrance test.

"Preference is hereby defined to mean that whenever a war veteran, as defined by Oregon law, competes in any entrance test conducted by the civil service board, he or she shall be accorded five points, and if such vet­eran has a service connected disability of not less than 10 per cent, recognized and certified as such by the United States veterans' administration, he or she shall be accorded another five points in addition to his or her pass­ing grade earned in such test. Ratings shall be based on a scale of 100 points."

The most recent legislative definition of "war veteran" is found in chapter 80, Oregon Laws 1943, reading thus:

"When not specifically qualified, the term 'war veteran,' wherever it is or shall hereafter be used in the laws of this state hereby is defined as follows: "Every citizen of the United States who has been a member of the armed forces of the United States of America and engaged in active service in any war in which this country has been, is now, or may hereafter become en­gaged, and who has subsequently been discharged therefrom under honorable conditions, including persons so dis­charged from such forces, not at their own application, between September 15, 1940, and December 8, 1941, both inclusive, is and shall hereafter be deemed to be a war veteran."

Applicants for state positions who are currently serving in the armed forces of the United States are not within the above definition of "war veteran". Un­til actually separated from the service "under honorable conditions", they can not be given veterans' preference. Stat­utory provisions affecting civil service appointments "call for strict compliance with the terms of the act": McCartney v. Johnston, (Pa.) 191 A. 121, 123; Detoro v. City of Pittston, (Pa.) 40 A. (2d) 486, 488. See also, Commonwealth ex rel. Graham v. Schmid, (Pa.) 3 A. (2d) 701, 120 A.L.R. 777.

"* * * The tests used to determine when a soldier has been discharged honorably are the same as are gen­erally applied in the law relating to military affairs": Field's Civil Service Law, p. 122.

The appointment of a director of civil service must be made on the basis of eligibility for the position at the time the list is established, as provided by subdivision 7 of Sec. 14, of the act. You are not permitted to add to present qualifications of any applicant a prefer­ence to which he may be entitled in the future, bearing in mind that his honor­able separation from the service is not yet an accomplished fact. The civil service law does not authorize the com­mission to make a certification condi­tioned upon future investigation: Wolff v. Hodson, (N. Y.) 33 N. E. (2d) 90, 93; Mclnerney v. Valentine, 43 N. Y. S. (2d) 327, 329.

The points added to examination rat­ings are given only to those who appear as veterans upon the list established as a result of an entrance test. You are authorized to grant the statutory prefer­ence to any applicant who has passed the examination and is actually a war veteran at the time the list is established as a result of such examination, and to no others. A war veteran on terminal leave, who has received a separation notice, which is evidence of "the fact that he is separated from the service under honorable conditions," is to be regarded as "honorably separated or discharged from" service in the armed forces. See the opinion of the Attorney General, rendered to the Department of Veterans Affairs on October 23, 1945.

GEORGE NEUNER, Attorney General, By Catharine Carson Barsch, Assistant.

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