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AGLO 1971 No. 106 - September 09, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               September 9, 1971
 
 
 
Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
P.O. Box 510
Prosser, Washington 98350
                                                                                          Cite as:  AGLO 1971 No. 106 (not official)
 
 
Dear Sir:
 
            This letter is written in response to your recent request for our opinion on two questions pertaining to the payment of disability leave allowances to members of the law enforcement officers' and fire fighters' retirement system under the provisions of RCW 41.26.120.  We paraphrase your questions as follows:
 
            (1) Are a member's accumulated days of sick leave or vacation time to be counted in and as part of the six month's period of disability leave which is provided for under RCW 41.26.120?
 
            (2) If question (1) is answered in the negative, may an employee's period of disability leave be ordered by the disability board to commence only upon the expiration of all periods of sick leave and vacation time to which the employee may have been entitled at the time of incurrence of his disability?
 
                                                                     ANALYSIS
 
            We answer question (1) in the negative for the reasons explained below; and question (2) in the manner set forth below.
 
            The statutes to be considered in answering your questions are RCW 41.26.120 and RCW 41.26.030 (19).  The first of these two statutes, dealing with the processing of applications for disability retirement on the part of local governmental law enforcement officers or fire fighters who are members of the Washington law enforcement officers' and fire fighters' retirement system (chapter 41.26 RCW), provides as follows:
 
            "Any member, regardless of his age or years of service may be retired by the disability board, subject to approval by the retirement board as hereinafter provided, for any disability which has been continuous since his discontinuance of active service and which  [[Orig. Op. Page 2]] renders him unable to continue his service, whether incurred in the line of duty or not.  No disability retirement allowance shall be paid until the expiration of a period of six months after the disability is incurred during which period the member, if found to be physically or mentally unfit for duty by the disability board following receipt of his application for disability retirement, shall be granted a disability leave by the disability board and shall receive an allowance equal to his full monthly salary from his employer for such period.  . . ."
 
            RCW 41.26.030 (19) defines the term "disability leave," as used in the foregoing statute, as meaning ". . . the period of six months or any portion thereof during which a member is on leave at an allowance equal to his full salary prior to the commencement of disability retirement."
 
            The critical point to be noted with respect to the foregoing two statutes is that a "disability leave allowance" constitutes a benefit which is paid to a disabled law enforcement officer or fire fighter in lieu of salary; in other words, disability leave connotes a separation from an employer's payroll because of disability ‑ followed by payment to the separated member of a disability leave allowance equal to the full salary which was payable to the member at the time of incurrence of his disability.
 
            On the other hand, we would take the terms "sick leave" and "vacation time," as used in your questions, as denoting periods of time during which an employee is entitled to be off duty, either because of sickness or for the purpose of taking his vacation, while remaining on his employer's payroll.
 
            Question (1):
 
            In view of the foregoing, it will be seen that a member of the law enforcement officers' and fire fighters' retirement system may not be regarded as being on disability leave and as on either sick leave or vacation at the same time; he is either on one type of leave or the other.
 
            Of course, it is a well-settled rule in this state that a pension granted to a public employee is not a gratuity but is deferred compensation for services rendered.  Accord, Bakenhus v. Seattle, 48 Wn.2d 695, 296 P.2d 536 (1956), and cases cited therein.
 
             [[Orig. Op. Page 3]]
            It is also a well-established principle of law that it is contrary to public policy for a public officer or employee to agree to waive all or any portion of his compensation, and that an agreement to accept less than the salary fixed by the constitution, statutes or ordinances is not effective and the officer or employee may maintain an action to recover the difference thereafter.  See, Rhodes v. Tacoma, 97 Wash. 341, 166 Pac. 647 (1917); Bell v. Mabton, 165 Wash. 396, 5 P.2d 514 (1931); State ex rel, Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938); Chatfield v. Seattle, 198 Wash. 179, 88 P.2d 582 (1939); and Malcolm v. Yakima Etc. School District, 23 Wn.2d 80, 159 P.2d 394 (1945).
 
            Because each of the three types of leave which are referred to in your letter ‑ i.e., sick leave, disability leave and vacation time ‑ are mutually exclusive of each other, and because of the principle that a public officer or employee may not waive any compensation which may be payable to him, it follows that a disabled law enforcement officer's or fire fighter's right to a disability leave allowance under RCW 41.26.120, supra, may not be conditioned upon his voluntary waiver or relinquishment of either sick leave or vacation time.  Furthermore, since a disability leave allowance is not to be paid until the member has separated from his employer's payroll, it follows that the statutory six month's period of disability leave is to run forward from the date of separation and thus is not to include any previous periods of sick leave or vacation time which the member in question may have taken ‑ whether on account of the same disability or otherwise, prior to his date of separation.  For this reason, we answer your first question (as paraphrased) in the negative.
 
            Question (2):
 
            Your second question assumes the foregoing answer to question (1), and asks whether, in effect, a member of the retirement system may be required to use up all of his accumulated sick leave or vacation time before being granted a disability leave allowance.
 
            Because a member is still on the payroll during his periods of sick leave or vacation time, it will be seen that he must be regarded as still "in service" during such periods, at least in so far as the law enforcement officers' and fire fighters' retirement system act is concerned, for the term "service" is defined in RCW 41.26.030 (14) as meaning ". . . all periods of employment for an employer as a fire fighter or law enforcement officer, for which compensation is paid, . . ."  However, on the other hand, under RCW 41.26.120,  [[Orig. Op. Page 4]] disability leave is only payable following a "discontinuance of service" ‑ the chain of events visualized by this section being that a member, upon being separated from service for disability, is to apply for a disability retirement allowance which (if he is determined to be eligible) is not to be paid to him ". . . until the expiration of a period of six months after the disability is incurred, during which period the member, . . . shall be granted a disability leave allowance by the disability board and shall receive an allowance equal to his full monthly salary from his employer for such period.  . . ."
 
            Thus, again, the concepts of sick leave or vacation time, on the one hand, and disability leave, on the other, are mutually exclusive; an employee cannot be on sick leave or vacation time and on disability leave at the same time.  Thus, so long as the individual in question is either on sick leave or vacation time, any period of disability leave to which he may be entitled by reason of his illness or injury will not have commenced.
 
            The issue raised by your second question remains, however:  Does this mean that the employee in question may be required, either by his employer or by the disability board, to use up all of his accumulated sick leave and/or vacation time before beginning to receive a disability leave allowance?
 
            This question, in our judgment, is not readily answerable in the abstract.  Rather, we believe that the answer will depend, in a given case, upon the terms and conditions of the particular employer's ordinance or resolution, or contract, dealing with the matters of sick leave and vacation time.
 
            If the employee has an absolute right to utilize his sick leave or vacation time during the period of his absence from duty, even though, were he to separate he might be eligible for a disability leave allowance for the same period under RCW 41.26.120, then it would appear to us that if the employee so elects he may use any or all of his sick leave or vacation time before going on disability leave; or, in the alternative, he may separate from the payroll prior to using up his sick leave or vacation time, and thereby qualify himself to begin immediate receipt of a disability leave allowance if found by the disability board to be eligible therefor.
 
             [[Orig. Op. Page 5]]
            On the other hand, it could be that under the terms of the applicable ordinance, resolution or contract the employee's right to sick leave during a period of disability (although probably not vacation time) is conditioned upon his ineligibility for disability leave during this same period.  In this case, the employee would no doubt have to seek, and be denied a disability leave allowance before he could use his accumulated sick leave benefits to cover the period of his absence from duty by reason of his illness or injury.
 
            Notably, there are no state statutes requiring any of the various counties or other municipalities which are "employers" under the law enforcement officers' and fire fighters' retirement system act to provide either sick leave or vacation time for their employees.  Instead, each of these so-called "fringe benefits" rests in the sound discretion of the employer, pursuant to its general authority to hire and fix the compensation of its employees.  Prior to the establishment of the new law enforcement officers' and fire fighters' retirement system, with its disability leave and disability retirement programs, it may well have been that a broader program of sick leave was appropriate for a given employer's law enforcement officers and fire fighters than is now the case, with disability leave available.  Thus, it might well be wise for the various employers now to review their previous sick leave ordinances, resolutions or contracts with a mind toward making such alterations therein as seem reasonable in the light of the new "disability leave" benefits which are now available to these employees.  Perhaps, in this vein, it might be decided by a particular employer that its sick leave program should be designed only to cover relatively short periods of disability, primarily arising by reason of illness, leaving disability leave and disability retirement under chapter 41.26 RCW to cover the longer and more permanent instances of disability.
 
            This, of course, is only a suggestion, and any decisions in this area will have to be made by the various governing bodies of the counties, cities and towns, and other municipalities who are covered by the new retirement system.  However, we simply bring these possible approaches to your attention by way of providing as complete an answer to your second question as it is possible for us to do in view of the varying circumstances which may be involved with respect to "disability leave" versus "sick leave" in a particular county or other municipality.
 
             [[Orig. Op. Page 6]]
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General
 
 
WAYNE L. WILLIAMS
Assistant Attorney General
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