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AGO 1967 No. 24 - June 27, 1967
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS - SCHOOLS - EMPLOYEES - LEAVE OF ABSENCE.

(1) Under the provisions of RCW 28.58.100 (15), a school district employee does not accumulate sick leave while on a sabbatical leave or a leave of absence unless the particular school district has made provision to the contrary in its regulation governing sick leave.

(2a) When a school district employee is granted a sabbatical leave or a leave of absence, he retains such sick leave benefits as he had accumulated prior to his departure so long as he returns to the district at the end of the period of his authorized leave.

(2b) When a school district employee severs his employment relationship, as through retirement or separation, he has no right to be recredited with sick leave accumulated prior to his retirement or separation unless the school district has adopted a rule or regulation providing for such recrediting.

(3) When a school district employee, upon completion of an authorized period on sabbatical leave or leave of absence, transfers employment from the school district which granted him the leave to another school district within the state, he retains the same accumulated sick leave benefits that he had in his previous position to the extent provided for in RCW 28.67.076; however, where a school district employee has retired or otherwise separated from employment with one school district and at some later time enters the employment of another school district, under circumstances which cannot be characterized as a transfer of employment from one school district to another, he does not retain the sick leave benefits which he had accumulated in his previous position.

(4) Under the provisions of RCW 28.58.100 (15) (e) sick leave accumulated pursuant to RCW 28.58.430 and, in addition, sick leave accumulated prior to the effective date of § 1, chapter 195, Laws of 1959 (RCW 28.58.430) must be granted to teachers employed subsequent to the effective date of § 1, chapter 66, Laws of 1961 (June 8, 1961).

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

                                                                   June 27, 1967

Honorable Harold R. Koch
Prosecuting Attorney
Thurston County Court House
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1967 No. 24

 [[Orig. Op. Page 2]]

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions pertaining to sick leave for school district employees.  We paraphrase your questions as follows:

            (1) Under the provisions of RCW 28.58.100 (15), does a school district employee accumulate sick leave while on a sabbatical leave or a leave of absence?

            (2) When a school district employee returns from a sabbatical leave or leave of absence, or returns to employment after being retired, is he entitled to be recredited with such sick leave benefits as he had accumulated prior to leaving the school district?

            (3) Would the answer to question (2) be the same if the employee returned to a district other than the one in which he had accumulated sick leave prior to taking leave or retiring?

            (4) Is sick leave credit retroactive only to the effective date of § 1, chapter 195, Laws of 1959 (RCW 28.58.430)?

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The general powers of every school district board of directors are set forth in RCW 28.58.100.  The portion of this statute which is material to your first question, as last amended by § 1, chapter 12, Laws of 1967, reads as follows:

            "Every board of directors, unless otherwise specially provided by law, shall:

            ". . .

            "(15) Adopt written policies on granting leaves to persons under contracts of employment with the school district(s) in positions requiring either certification or noncertification qualifications, including but not limited to leaves for  [[Orig. Op. Page 3]] attendance at official or private institutions and conferences and sabbatical leaves for employees in positions requiring certification qualification, and leaves for illness, injury, bereavement and emergencies for both certified and noncertified employees, and with such compensation as the board of directors prescribe: PROVIDED, That the board of directors shall adopt written policies granting to such persons annual leave with compensation for illness and injury as follows:

            "(a) For such persons under contract with the school district for a full year, at least ten days;

            "(b) for such persons under contract with the school district as part time employees, at least that portion of ten days as the total number of days contracted for bears to one hundred eighty days;

            ". . ."

            As a starting point, we should note that in a previous opinion (AGO 65-66 No. 86, a copy enclosed) we concluded that:

            ". . . any school employee hired subsequent to the effective date of the 1963 amendment to RCW 28.58.100 (15) is entitled, as a matter of right, to the minimum benefits set forth . . ."

            therein.  Our present problem is to determine the nature of that right, in the case of a school district employee who has been granted a sabbatical leave or a leave of absence.

            It will be noted that the statutory right to accumulate sick leave, as provided for in parts (a) and (b) of subsection (15), only runs in favor of those persons who are "under contract with the school district," either (a) "for a full school year," or (b) "as part time employees."  It will further be noted that the whole of subsection (15) applies only to ". . . persons under contracts of employment with the school district(s) in positions requiring either certification or noncertification qualifications, . . ."

             [[Orig. Op. Page 4]]

            Accordingly, the first conclusion to be drawn is that subsections (a) and (b) of the proviso apply only to school district personnel, both certificated and noncertificated,1/ who are under contracts of employment with their school districts.  SeeBayha v. Public Utility District No. 1, 2 Wn.2d 85, 97 P.2d 614 (1939), and cases cited therein.  It is our opinion that this phraseology, read in context, limits the applicability of thesick leave accumulation provisions of the statute to those personnel who are performing services for the school district, pursuant to contract, as employees in actual service.2/

             In support of this conclusion, we would point out that the concept contemplated by subsections (a) and (b) of the proviso,supra, is one of accumulation of sick leave on the basis of a given number of days of sick leave for every school year, or fractional portion thereof, during which services, under contract, are rendered.  Clearly, when a teacher or other school district employee is on a sabbatical leave or a leave of absence, he is not performing services to the school district on any periodic basis whereby sick leave accruals could be computed.

            Accordingly, in answer to your first question, we advise that the minimum rights of school district personnel, under the provisions of RCW 28.58.100 (15),supra, do not include entitlement to the accrual of sick leave benefits while on a leave of absence or sabbatical leave.  In thus concluding, we should emphasize that we are speaking only of the minimum rights to which school district personnel, under the statute, are entitled.  If a particular school district, as a matter of policy, has made provision in its regulations governing sick leave for accrual of such benefits to its personnel during periods of sabbatical leave or leave of absence, then it would follow that, to the extent and subject to any conditions provided for in such rules or regulations, sick leave would  [[Orig. Op. Page 5]] accumulate during such periods of absence.

            Question (2):

            Next you have asked whether, when a school district employee returns from a sabbatical leave, a leave of absence, or returns to employment after being retired, he is entitled to be recredited with such accumulated sick leave benefits as he had prior to leaving the district.

            In answering this question, it is first necessary to distinguish the case of persons on sabbatical leave or leave of absence from the case of persons who have retired.  A person on sabbatical leave or leave of absence remains an employee of the school district, even though he is not in actual service so as to be entitled to an accumulation of sick leave benefits during the period of his absence from the district.  Therefore, assuming that the person returns to actual service at the end of his authorized period of sabbatical leave or leave of absence, he does not, in our opinion, lose any sick leave benefits which were accumulated prior to his departure and, consequently, the question of recrediting lost benefits does not arise.

            On the other hand, in the case of a teacher or other school district employee who has retired, the employment relationship is completely severed.  However, upon returning to active service in the same school district, he may be entitled to a recrediting of accumulated sick leave benefits if the school district has a rule or regulation to this effect.  The governing statutory provision is subsection (h) of RCW 28.58.100 (15), which provides:

            "(h) leave accumulated by a person in a district prior to leaving said districtmay, under rules and regulations of the board, be granted to such person when he returns to the employment of the district."  (Emphasis supplied.)

            The particular point to be noted here is that the legislature used the permissive word "may" rather than the mandatory word "shall" in expressing its intent as to the minimum rights of those school district personnel who sever employment with a school district and then, at a later date, return.

            In summary, then, our answer to your second question is as follows:

             [[Orig. Op. Page 6]]

            When a school district employee is granted a sabbatical leave or a leave of absence, he retains such sick leave benefits as he had accrued prior to his departure, so long as he returns to the district at the end of the authorized leave period; on the other hand, when a school district employee severs his employee relationship, as through retirement or separation, he has no right to be recredited with sick leave accumulated prior to his retirement or separation unless the board of directors of the school district has adopted a rule or regulation providing for such recrediting.

            Question (3):

            Next you have asked whether our answer to question (2) would differ if the person in question returned to a district other than the one in which he had accumulated sick leave benefits.  With regard to this situation, RCW 28.58.100 (15) (g) and RCW 28.67.076 are pertinent.

            RCW 28.58.100 (15) (g) provides that:

            "(g) accumulated leave under this proviso shall be transferred from one district to another, . . ."

            Likewise, RCW 28.67.076 states that:

            "When any . . . teacher, or other certificated employee or instructor leaves one public school, . . . or school district within the state and commences employment with another public school, . . . or school district within the state, he shall retain the same seniority,leave benefits and other benefits that he had in his previous position . . ."  (Emphasis supplied.)

            In AGO 65-66 No. 79 (copy enclosed) we concluded that RCW 28.58.100 (15) (g) and RCW 28.67.076 should be read together.  We said:

            ". . . By 'leave benefits' [referring to RCW 28.67.076] it is clear that the legislature was referring to benefits conferred by RCW 28.58.100,supra. . . ."

             [[Orig. Op. Page 7]]

            In answering your third question, as paraphrased, we may first note that the distinction drawn in your second question, between persons on leave and persons who have separated from employment with their school district by reason of retirement or otherwise, is also a distinction to be made in answering your third question, but for a different reason.  In answering your second question, the distinction was made for the purpose of delineating between a person who has severed his employee relationship with a school district (by retiring or otherwise separating) and a person who, by taking an authorized leave of absence or sabbatical leave, has left active service without severing the employee relationship.  In the case of your third question, there is, of course, a complete severance of the employee relationship in both the case of the person on sabbatical leave or leave of absence, and the case of the person who has retired or otherwise separated from employment.  This is because a person who is granted a sabbatical leave or a leave of absence for a specified period of time, and who fails to return to the school district from which he departed at the end of his authorized leave, must be regarded as having severed the employee relationship just as much as a person who retires or otherwise separates in the ordinary manner.

            However, the distinction is nevertheless one which must be made for the reason that both RCW 28.58.100 (15) (g), supra, and RCW 28.67.076, supra, speak of transfers from one district to another.  The scheme or pattern of the legislation indicates that the legislature, in the case of both statutes, contemplated a transfer from one school district to another school district without an intervening break in employment.

            Where a school district employee has been granted a sabbatical leave, or leave of absence, and at the end of the prescribed period commences employment with another school district, the case presented is simply one of the person ceasing to be an employee of one school district and, thereupon, becoming an employee of another district.  There is, in short, in this case, a transfer of employment within the meaning of the pertinent statutes.

            However, where the teacher or other employee has retired, and thus completely excluded himself from school district employment, his return to active service with another school district does not amount to a transfer of employment from one school district to another, within the meaning of the statutes in question.  Therefore, neither RCW 28.67.076 nor RCW 28.58.100 (15) (g), can have any application in the case of the  [[Orig. Op. Page 8]] retiree though the statutes do apply in the case of the person on sabbatical leave or leave of absence, as above described.

            It follows, therefore, that in the case of the latter class of persons, accumulated sick leave is transferred to the extent provided for in RCW 28.67.076,supra; cf., RCW 28.58.100 (15) (g), supra, whereas in the former case it is not.

            Question (4):

            Your final question is whether or not sick leave credit is retroactive only to the effective date of § 1, chapter 195, Laws of 1959 (cf. RCW 28.58.430).  The pertinent statute covering this inquiry is RCW 28.58.100 (15) (e), which provides:

            "(e) sick leave heretofore accumulated under section 1, chapter 195, Laws of 1959 (RCW 28.58.430) and sick leave accumulated under administrative practice of school districts prior to the effective date of section 1, chapter 195, Laws of 1959 (RCW 28.58.430) is hereby declared valid, and shall be added to leave for illness or injury accumulated under this proviso;"

            The legislative history of RCW 28.58.100 (15)3/ aids in determining the purpose of subsection (e).4/ RCW 28.58.100 (15) was first enacted as § 1, chapter 195, Laws of 1959, and was codified in RCW 28.58.430 as follows:

            "Every person under contract for a full school year with a school district in a  [[Orig. Op. Page 9]] position requiring certification qualification shall be entitled to ten days annual leave of absence for illness or injury.  Sick leave not taken shall be accumulated from year to year up to a maximum of one hundred eighty days.

            "A certified employee, under contract as a part-time employee, shall be entitled to that proportion of ten days leave of absence for illness or injury as the total number of days contracted bears to one hundred and eighty days.  Pay for any period of absence shall be the same as the pay the employee would have received by contract for such period of absence.

            "The contracted sick leave for any school year plus any sick leave previously accumulated may be taken at any time during the school year.

            "The board of directors of each school district shall adopt rules and regulations requiring and prescribing the manner of proof of illness or injury for the purposes of this section:  Provided, A grant of sick leave in excess of five consecutive days must be verified by written statement from a physician."

            Following this enactment, in answer to the question of whether or not the statute should operate retroactively so as to affect any prior sick leave which a teacher might have accumulated, our office advised in AGO 59-60 No. 62 (copy enclosed) as follows:

            "From a reading of chapter 195, Laws of 1959, [RCW 28.58.430]supra, it is apparent that there is no language therein which indicates a legislative intent that the act should, in any respect, operate retroactively so as to affect any sick leave which a teacher mayhave accumulated prior to its passage.  Even if the act contained such language a retroactive application would be avoided if possible. . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 10]]

            Furthermore, in the same opinion we concluded that sick leave which was accumulated under a contract prior to the enactment of RCW 28.58.430 could not be impaired by the enactment.  We stated:

            "Obviously, if a teacher has accumulated sick leave under a written contract providing for the same, chapter 195, Laws of 1959, supra, could not apply so as to impair this vested contractual right.  Likewise, it is our opinion that a teacher who has accumulated sick leave under a policy, rules or regulations of a school board, is protected by the same constitutional provisions.  The policy, rules and regulations of the board, we believe, must be considered as constituting part of the contract of employment.  This is especially true after services have been completely performed and the teacher, at this time, is entitled to the accumulative sick leave.

            "Accordingly, it is our opinion that a school district may grant sick leave which accumulated prior to the effective date of chapter 195, Laws of 1959,supra, during the 1959-60 and successive school years."

            In 1961, the legislature, apparently recognizing the conclusion in our opinion, repealed RCW 28.58.430 and amended RCW 28.58.100 by adding in part subsection (15) (e),supra.  This subsection in essence adopted the conclusion in AGO 59-60 No. 62,supra, by declaring sick leave accumulated prior to the effective date of RCW 28.58.430 to be valid, and requiring it to be added to the sick leave accumulated under the proviso of RCW 28.58.100 (15).  However, RCW 28.58.100 (15) (e) went further because it also provided that sick leave accumulated under RCW 28.58.430 is valid and is to be added to sick leave accumulated under the proviso therein.  From this we conclude that, under RCW 28.58.100 (15) (e), sick leave accumulated pursuant to RCW 28.58.430 and sick leave accumulated prior to the effective date of § 1, chapter 195, Laws of 1959 (RCW 28.58.430) must be granted to teachers employed5/  [[Orig. Op. Page 11]] or hired subsequent to the effective date of § 1, chapter 66, Laws of 1961 (cf. RCW 28.58.100, as amended).  Thus, sick leave credit is retroactive in the sense that it is cumulative.

            We call to attention, however, that there is a limitation on the extent to which sick leave can be accumulated.  RCW 28.58.100 (15) (d) provides that leave provided in this proviso not taken shall accumulate from year to year up to a maximum of one hundred eighty days.

            Accordingly, we conclude that sick leave obtained under the proviso of RCW 28.58.100 (15), but not taken, can be accumulated only up to one hundred eighty days.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT P. TJOSSEM
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, AGO 63-64 No. 98, copy enclosed.

2/In the case of teachers, the contract we have in mind is, of course, the formal written contract provided for by rCW 28.67.070; as for noncertificated employees, who are not necessarily employed under such a formal written document, we nevertheless have in mind those employees who are in the actual service of a school district.

3/For a good summary of the legislative history of this statute, see AGO 63-64 No. 98, copy enclosed.

4/The Washington supreme court has upon several occasions stated that it is proper to refer to the history of a statute to determine its purpose.  State ex rel. Evans v. Brotherhood Etc., 41 Wn.2d 133, 153, 247 P.2d 787 (1952);State ex rel. Bugge v. Martin, 38 Wn.2d 834, 840, 232 P.2d 833 (1951).

5/There has been some misunderstanding about our use of the word "hired" in AGO 65-66 No. 86.  Our use of the word "hired" above and in AGO 65-66 No. 86 should not be construed to limit the application of the mandatory provisions of RCW 28.58.100(15) only to people who wereinitially employed subsequent to July 6, 1963.  We conclude that the mandatory benefits of RCW 28.58.100(15) must also be granted to persons who were initially employed prior to July 6, 1963, and who continued to be employed after that date.

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