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AGLO 1980 No. 17 - April 18, 1980
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- SICK LEAVE ‑- CASHING OUT ACCUMULATED SICK LEAVE UNDER CHAPTER 150, LAWS OF 1979, 1ST EX. SESS.

(1) An otherwise eligible community college employee who had, at the beginning of a particular calendar year, accumulated the statutory maximum number of sick leave days (180) allowed by RCW 28B.50.551 prior to its amendment by § 3, chapter 182, Laws of 1980 and who, during that calendar year, used none of those accumulated sick leave days may receive no remuneration for unused sick leave earned and accumulated during that year pursuant to RCW 41.04.340.

(2) It is, however, legally permissible for such an employee to obtain an administrative reduction in his total accumulation of sick leave at the beginning of, or during, a given calendar year and thereby qualify under RCW 41.04.340 for remuneration for sick leave thereafter earned.

                                                                  - - - - - - - - - - - - -

                                                                   April 18, 1980

Honorable Nels W. Hanson, President
Community College District 12
P.O. Box 639
Centralia, Washington 98531                                                                                                               Cite as:  AGLO 1980 No. 17

Dear Dr. Hanson:

            By letter previously acknowledged, you requested the opinion of this office on certain questions pertaining to participation by community college employees in the attendance incentive program provided for by chapter 150, Laws of 1979, 1st Ex. Sess.  We paraphrase your questions as follows:

             [[Orig. Op. Page 2]]

            (1) May an otherwise eligible community college employee who had, at the beginning of a particular calendar year (e.g., 1979) accumulated the statutory maximum number of sick leave days (180) allowed by RCW 28B.50.551 and who, during that calendar year, used none of those accumulated sick leave days receive remuneration for unused sick leave earned and accumulated during the year pursuant to chapter 150, Laws of 1979, 1st Ex. Sess.  (RCW 41.04.340)?

            (2) If the answer to question (1) is negative, is it legally permissible for such an employee to obtain an administrative reduction of his total accumulation of sick leave at the beginning of, or during, a given calendar year and thereby qualify for participation in the attendance incentive program for that year or the remainder thereof?

            (3) Assuming that question (2) is also answered in the negative, may an eligible employee who has attained the statutory maximum number of sick leave days participate in the attendance incentive program by using a method which would replace (substitute) days accumulated in his first years of employment with a number of days equal to those days which would have been earned in the past year had he not reached the maximum 180 days?

            We answer question (1) in the negative and question (2) in the affirmative, thereby rendering consideration of question (3) unnecessary.

                                                                     ANALYSIS

            RCW 41.04.340, codifying § 1, chapter 150, Laws of 1979, 1st Ex. Sess., provides (in material part) as follows:

            "As used in this section the term 'eligible employee' means any employee of the state, other than teaching and research faculty at institutions of higher education, entitled to accumulate sick leave and for whom accurate sick leave records have been maintained:  [[Orig. Op. Page 3]]

            PROVIDED, That no employee may receive compensation under this section for any portion of sick leave accumulated at a rate in excess of one day per month.

            "An attendance incentive program is established for all eligible employees.  In January of the year following any year in which a minimum of sixty days of sick leave is accrued, and each January thereafter, any eligible employee may receive remuneration for unused sick leave accumulated in the previous year at a rate equal to one day's monetary compensation of the employee for each four full days of accrued sick leave in excess of sixty days.  Sick leave for which compensation has been received shall be deducted from accrued sick leave at the rate of four days for every one day's monetary compensation.

            ". . ."

            Noting that this law did not take effect until September 1, 1979, we nevertheless concluded, in AGLO 1979 No. 31, that:

            "(1) Chapter 150, Laws of 1979, 1st Ex. Sess., permits an employee during January of 1980 to cash out unused sick leave earned during all of 1979 even though eight of the twelve days were earned prior to the effective date of the Act."

            The basis for this conclusion, simply stated, was that such compensation as is payable to eligible employees under the law, although constitutionally required to be paid only for services rendered after its effective date,1/ may be measured, in part, by other periods of service rendered earlier.  Accord,Aldrich v. State Employees' Retirement System, 49 Wn.2d 831, 307 P.2d 270 (1957).

             [[Orig. Op. Page 4]]

            It is here important to note, however, that the only accumulated sick leave for which compensation may be paid at the end of a given calendar year is that which was actually earned and accumulated during that year.  Thus, for example, let us assume the case of a hypothetical state employee who had seventy days of sick leave standing to his credit on January 1, 1979, and who, under his employer's sick leave policy, earned one additional day per month for each of twelve months of service rendered during 1979.  Assuming, in addition, that this employee used no sick leave during the year2/ the obvious result would be that, if he so chose during January, 1980, he would receive remuneration for those twelve days at the rate of one day's monetary compensation for each four full days of sick leave;i.e, in this hypothetical case, three days' monetary compensation.

            We turn, next, to the statute which has given rise to your inquiry.  RCW 28B.50.551, relating to those state employees who serve the various community college districts, now reads, in material part, as follows:

            "The board of trustees of each community college district shall adopt for each community college under its jurisdiction written policies on granting leaves to employees of the district and those colleges, including . . . leaves for illness, injury, bereavement and emergencies, . . . except that the board shall grant to all such persons leave with full compensation for illness, injury, bereavement and emergencies as follows:

            "(1) For persons under contract to be employed, or otherwise employed, for at least three quarters, at least fifteen days, commencing with the first day on which work is to be performed;

            "(2) Such leave entitlement may be accumulated after the first three‑quarter period of employment at a minimum rate of five days  [[Orig. Op. Page 5]] per quarter for full time employees up to a maximum of one hundred eighty days, and may be taken at any time;

            ". . ."3/

             Question (1):

            The critical point to be noted, insofar as your first question is concerned, is that unlike any other statute or administrative regulation relating to sick leave for various categories of state employees, RCW 28B.50.551,supra, limits the total number of days of sick leave which may be accumulated to a maximum of 180 days.4/   With that in mind we repeat your first question (as above paraphrased) for ease of reference as follows:

            May an otherwise eligible community college employee who had, at the beginning of a particular calendar year (e.g., 1979) accumulated the statutory maximum number of sick leave days (180) allowed by RCW 28B.50.551 and who, during that calendar year, used none of those accumulated sick leave days receive remuneration for unused sick leave earned and accumulated during the year pursuant to chapter 150, Laws of 1979, 1st Ex. Sess.  (RCW 41.04.340)?

             [[Orig. Op. Page 6]]

            The problem, as we see it, in the case of those employees covered by this question, is as follows:  Under RCW 28B.50.551,supra, those employees, having already accumulated the statutory maximum number of sick leave days (180) then allowed by RCW 28B.50.551 as of the commencement of the given calendar year (e.g., 1979), could not earn and accumulate any further days of sick leave without first taking and using some of those days already earned.  But since RCW 41.04.340,supra, only allows remuneration at the end of a year for sick leave accumulated during that particular year, it therefore necessarily follows that those personnel are barred from participating in the incentive programfor that year‑-not because of any general statutory ineligibility but, instead, simply because of their statutory inability to have earned and accumulated any further, compensable, sick leave days without having first used or otherwise lost some of those days previously accumulated.

            We therefore must answer your first question, as above paraphrased, in the negative.

            Question (2):

            Of course, by actually utilizing some of those sick leave days previously earned and accumulated, a community college employee such as is here involved could cause the total number of accumulated sick leave days standing to his credit to drop below the statutory 180-day maximum set by RCW 28B.50.551,supra.  And, in turn, that employee would then again begin to earn and accumulate additional days of sick leave whichwould be compensable under RCW 41.04.340,supra.  Your second question, however, calls upon us to consider the feasibility of a somewhat different approach.

            In essence, as we understand it, what you have in mind is an administrative reduction in the number of days of accrued sick leave standing to the credit of a particular employee.  An otherwise eligible community college employee with 180 days of sick leave standing to his credit would agree in writing, with the concurrence of his employer, to have (for example) twelve of those sick leave days stricken‑-leaving the employee with only 168 days of sick leave‑-in return for which he would then qualify thereafter to earn additional days of sick leave to which RCW 41.04.340,supra, would apply.

             [[Orig. Op. Page 7]]

            Most certainly there would be sufficient legal consideration for such an agreement by the employee to support the existence of a binding contract.  There would be both a detriment to the employee as a result of the administrative reduction in his accumulated sick leave and a correlative benefit to that same employee through his newly-obtained ability to participate in the statutory attendance incentive program.  A troublesome question nevertheless remains, however.  Would such a contract, even though supported by sufficient consideration, be void as contrary to public policy?

            In a long and consistent line of cases, the Washington Supreme Court, like the courts of many other jurisdictions,5/ has held that it is contrary to public policy for a public officer or employee to agree to waive all or any portion of his salary, wages or compensation.  See,Malcolm v. Yakima County Consolidated School District No. 90, et al., 23 Wn.2d 80, 159 P.2d 394 (1945); Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939);State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938);State ex rel. Ross v. King County, 191 Wash. 340, 71 P.2d 370 (1937);Rudnick v. Pierce County, 185 Wash. 289, 54 P.2d 409 (1936);State ex rel. Pike v. Bellingham, 183 Wash. 439, 48 P.2d 602 (1935);State ex rel. Knez v. Seattle, 176 Wash. 283, 28 P.2d 1020 (1934);Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); andRhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647 (1917).  See also, AGLO 1979 No. 40, copy enclosed, in which, quoting from Allen v. Lawrence, 61 N.E.2d 133 (1945), we explained the apparent reasons for this rule as follows:

            ". . .  The reasons for the rule are obvious, where the compensation for an office has been fixed by law, it would be detrimental to the public service if the office could be let out to the lowest bidder.  Laws designed to attract competent persons to the public office  [[Orig. Op. Page 8]] by providing them with adequate compensation could be set at naught at the caprice of those charged with their administration.  The effects on the efficiency and morale of the public service, if this were permitted, are not difficult to imagine. . . ."

            Clearly, sick leave benefits constitute a form of compensation.  Accord,Washington Ass'n of County Officials, et al. v. Washington Public Employees Retirement Board, et al., 89 Wn.2d 729, 575 P.2d 330 (1978).  And, if one were to attempt to waive the right to earn and be credited with sick leave in the future, the concept involved would be virtually indistinguishable from an agreement (perhaps as a condition of employment) to work, in the future, for less than the full salary payable for the particular position.  But here, what would be waived or relinquished is not a right to future sick leave accrual or credit; rather, it would be sick leave credit which has already been earned in return for service previously rendered.

            In an opinion dated June 29, 1961, to then State Representative Ella Wintler, copy enclosed, this office (after first citing the general rule against waiver of a public employee's compensation) upheld a waiver or relinquishment of a portion of the pension payable under chapter 41.32 RCW to a retired school teacher.  The purpose for the waiver, in that instance, was to retain eligibility for certain other retirement benefits payable by reason of service in the U.S. Navy‑-but only to those whose total income from other sources (including, in that case, state teachers' retirement) was below a certain level.  In upholding the waiver, notwithstanding the general rule of public policy, we said:

            "It is the considered opinion of this office that a person entitled to receive an increase in his public pension (deferred compensation) mayvoluntarily elect to expressly waive, in writing, the prescribed increase if the same will result in a detriment rather than a benefit to him because of his peculiar situation.  Reason dictates this result.  Furthermore, since pension rights are contractual in nature and can only be changed by mutual consent (Bakenhus v. Seattle, supra) it would appear that although an increased pension ordinarily would be considered beneficial, and the  [[Orig. Op. Page 9]] consent therefor be presumed, a person would nevertheless have the right to expressly reject the changes in the legislation not, in fact, beneficial to him."  (Emphasis supplied)

            It is our opinion that this rationale is also applicable with regard to qualification for participation in the instant attendance incentive program.  Therefore, having answered your first question, supra, in the negative insofar as those community college employees who do not either take or contractually relinquish some portion of their accumulated sick leave, we answer your second question in the affirmative.  It is legally permissible for such a community college employee as is here involved contractually to obtain an administrative reduction in his total accumulation of sick leave at the beginning of, or during, a given calendar year and thereby qualify for participation in the attendance incentive program for that year or the remainder thereof.6/

             We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

THOMAS L. ANDERSON
Assistant Attorney General

JERALD R. ANDERSON
Assitant Attorney General

                                                         ***  FOOTNOTES   ***

1/See, Wash. Const., Art. II, § 25 (Amendment 35).

2/See, WAC 356-18-050.

3/It is also notable that subsection (4) of RCW 28B.50.551 reads as follows:

            "(4) Except as otherwise provided in this section or other law, accumulated leave under this section not taken at the time such person retires or ceases to be employed by community college districts or community collegesshall not be compensable."  (Emphasis supplied)

            Clearly, however, RCW 41.04.340, supra, constitutes an exception to this general characterization of sick leave for community college employees as non-compensable.

4/Notably, however, this limitation will be removed when, on June 12, 1980, the amendment to RCW 28B.50.551, which is contained in § 3, chapter 182, Laws of 1980 takes effect.   Accordingly, this opinion speaks only to the situation, under the law, as it now exists.

5/See, 63 Am.Jur.2d Public Officers and Employees, § 393 and cases cited therein; also, 160 A.L.R. 490, 118 A.L.R. 1458 and 70 A.L.R. 792.

6/This answer to question (2), in turn, renders consideration of question (3) unnecessary.   And note also, consistent with what we said in footnote 4, above, that once the amendment in § 3, chapter 182, Laws of 1980, supra, takes effect on June 12, 1980 (i.e., in less than two months) the practical reason for any such agreement will obviously cease to exist.

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