ACCUMULATION OF SICK LEAVE AND RETIREMENT CREDIT WHILE ON LEAVE

DISTRICTS ‑- SCHOOLS ‑- EMPLOYEES ‑- LEAVE OF ABSENCE WITH PAY FOR CERTAIN SCHOOL EMPLOYEES ‑- ACCUMULATION OF SICK LEAVE AND RETIREMENT CREDIT WHILE ON LEAVE

(1) If a school district under RCW 28A.58.100 allows a certified employee to take a leave of absence with pay pursuant to a written policy adopted by its board of directors, the employee may use such leave to perform service as an elected officer of a state or local employee organization or union unless precluded from doing so by the board policy; however, a school district leave policy designed specifically to allow this to be done, whether by agreement with the employee organization or union involved or otherwise, would be of doubtful validity under Article VIII, § 7 of the state constitution.

(2) At the discretion of the employing school district, the rate of pay which an employee on nonmandatory leave of absence under RCW 28A.58.100 may receive during the period of such leave may be either the same, lower, or higher than that which the employee would have otherwise received for the performance of employment services if not on leave of absence.

(3) A certificated school district employee who serves as an elected officer of a state or local employee organization or union while on a discretionary leave of absence without pay under RCW 28A.58.100(2) will be entitled to such sick leave during the period of his leave of absence as the school board by which he is employed elects to allow under its written leave policy.

(4) A certificated school district employee who is on a leave of absence with pay while serving as an elected officer of a state or local employee organization or union and who is listed as employed by his school district is entitled to service credit for the period of such leave for purposes of the state teachers' retirement system.

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                                                                    April 6, 1976

Honorable Susan Gould
State Senator, 21st District
19225 92nd W.
Edmonds, Washington 98020

                                                                                                                 Cite as:  AGO 1976 No. 10

 [[Orig. Op. Page 2]]

Dear Senator Gould:

            By letter previously acknowledged you have requested the opinion of this office on four questions which we have paraphrased as follows:

            (1) If a school district allows a certificated employee to take a leave of absence with pay may the employee use such leave to perform service as an elected officer of a state or local employee organization or union?

            (2) May a school district pay a certificated employee on such leave at either a higher or lower rate during such period than the employee would have otherwise received for the performance of his or her regular duties?

            (3) Is such a certificated employee entitled to accumulate sick leave during such a leave period?

            (4) Is a certificated employee who serves as an elected officer of a state or local employee organization or union while on leave with pay entitled to service credit for purposes of participation in the Washington state teachers' retirement system during such period?

            We answer questions (1) and (4) in the qualified affirmative, question (2) in the affirmative and question (3) as explained in our analysis.

                                                                     ANALYSIS

            Question (1):

            The general powers of school districts to grant leaves of absence, with or without compensation, to their employees are set forth in RCW 28A.58.100, as follows:

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

            ". . .

            "(2) Adopt written policies 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  [[Orig. Op. Page 3]] leaves for attendance at official or private institutes and conferences and sabbatical leaves for employees in positions requiring certification qualification, and leaves for illness, injury, bereavement and, emergencies for both certificated and noncertificated 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, injury and emergencies 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;

            "(c) Compensation for leave for illness or injury actually taken shall be the same as the compensation such person would have received had such person not taken the leave provided in this proviso;

            ". . ."  (Emphasis supplied.)

            This statuteauthorizes a school board, in its discretion, to grant leaves of absence to its employees, above and beyond the minimum leaves for "illness, injury and emergencies" required by its proviso, with such compensation as the board shall establish.  Moreover, the discretionary authority thus granted is not limited to the types of leave thereafter enumerated because of the legislature's use of the phrase "including but not limited to."  Accord, our opinion of June 29, 1967, to then State Representative Gerald L. Saling (copy enclosed) in which we said of RCW 28A.58.100, as then recently amended by § 1, chapter 12, Laws of 1967:

            "Under this amended statute, it appears  [[Orig. Op. Page 4]] that henceforth boards of directors of school districts will be authorized to allow leaves of absence for various purposes, including but not limited to those specified in the statute, '. . . with such compensation as the board of directors prescribe: . . .'"

            It is true that in the case of another statute containing the words "but not limited to" ‑ namely, RCW 28A.72.030 involving school employees' "professional negotiations" ‑ the state supreme court has recently held such negotiations to be limited as to subject matter.  See,Spokane Educ. Ass'n v. Barnes, 83 Wn.2d 366, 517 P.2d 1362 (1974), in which the court said, at p. 374:

            ". . .  While the subjects of negotiation are not limited to those included in the list, any additional subjects must be related to those which are listed and, applying the principle of ejusdem generis, they must be of the same kind."

            Notably, however, the language "but not limited to" was there prefaced by the phrase "relating to," and thus indicated a legislative intent to restrict the scope of the provision to the types of subjects enumerated.  No similar wording or restrictive intent is apparent upon the face of RCW 28A.58.100(2),supra.  Therefore it is our view of this statute that under its provisions neither the question of why a leave with pay is granted by a particular school district nor that of how an employee, certificated or otherwise, spends his time while on such a leave have been circumscribed by the legislature.  Instead, both of those questions are to be resolved in each instance on the basis of whatever terms and conditions have been laid down by the particular district in its written policies governing discretionary employee leaves (i.e., leaves granted at the discretion of the district).  If not in conflict with such policies an employee may use such leave for any lawful purpose ‑ including that of performing service as an elected officer of a state or local employee organization or union at the discretion of the employee.

            In so concluding, however, we should add certain cautionary observations lest our opinion be misunderstood.  Simply stated, we are assuming a bona fide leave granted pursuant to a properly established school district policy as  [[Orig. Op. Page 5]] distinguished from some other kind of arrangement ‑ such as a multiparty agreement, in advance, involving the lending of school district employees to other, private, entities.  The latter, depending upon the terms of the agreement, could very well run afoul of Article VIII, § 7 of our state constitution1/ and thus should generally be avoided.  Likewise, even without an express agreement between a school district an an employee organization or union, a unilateral school board policy to grant compensated leave for the specific purpose of permitting those of its employees who are association or union officers to take time off in order to engage in union work would also be of doubtful validity under that constitutional provision.  See,State ex rel. O'Connell v. PUD, 79 Wn.2d 237, 484 P.2d 393 (1971), and note also that under the reasoning of that case the question of whether an unconstitutional lending of credit takes place is not dependent upon whether or not some form of compensation or reimbursement is paid, in return, by the benefited private entity to the lending public body.

            Question (2):

            Your second question involves the rate at which an employee on a discretionary leave of absence granted pursuant to RCW 28A.58.100(2) may be compensated.

            As above quoted, that statute provides that with the exception of mandatory sick leave granted under the proviso, leave shall be ". . . with such compensation as the board of directors prescribe . . ."  It thus appears that the legislature intended to authorize each school board to determine the extent to which an employee is to be compensated while on discretionary leave granted by the board.  This seems particularly clear when the quoted language is  [[Orig. Op. Page 6]] contrasted with RCW 28A.58.100(2)(c),supra, which restricts an employee's compensation during mandatory leave under the proviso to the same ". . . compensation such person would have received had such person not taken the leave provided in this proviso."

            Accordingly, in answer to your second question, it is our opinion that RCW 28A.58.100(2) not only authorizes a school district to grant leave to its employees (including certificated employees) to be used by those employees for any lawful purpose but that it also permits the compensation to be paid during such discretionary leave to be fixed at either a higher or lower rate than the employee would have received had he or she not taken the leave.2/

             Question (3):

            Your third question involves the accumulation of sick leave by a certificated employee while on a leave of absence pursuant to RCW 28A.58.100(2), supra.

            As we have above discerned, RCW 28A.58.100(2) is mandatory with regard to certain minimum leave for "illness, injury and emergencies," and permissive as to such additional leave as the applicable school board may choose to grant.  Addressing ourselves, first, to the minimum leave required by RCW 28A.58.100(2)(a) and (b), supra, it is our opinion that an employee on leave thereunder is not statutorily entitled to accrue additional "sick leave" during the period of his absence.

            In AGO 1967 No. 24 [[to Harold R. Koch, Prosecuting Attorney, Thurston County on June 27, 1967]], copy enclosed, we considered essentially this same question and likewise responded in the negative ‑ reasoning that the minimum "sick leave" entitlement granted by the statute accrued only as an incident to the performance of services to a school district.  We thus said in that opinion:

             [[Orig. Op. Page 7]]

            "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, . . .'

            "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, 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.

            "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."

            We then went on, however, to point out that a school board is nevertheless possessed of the authority to provide for the accrual of sick leave during discretionary leaves of absence granted by the board.  In that respect we said:

             [[Orig. Op. Page 8]]

            ". . .  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 accumulate during such periods of absence."

            Therefore, in answer to your third question, it is our opinion that a certificated employee who serves as an elected officer of a state or local employee organization or union while on a discretionary leave of absence with pay under RCW 28A.58.100(2) will be entitled to accrue such sick leave during the period of his absence as the school board by which he is employed elects to allow.3/

             [[Orig. Op. Page 9]]

            Question (4):

            Your final question involves a certificated employee's entitlement to service credit under, and thus participation in, the Washington state teachers' retirement system when serving as an elected officer of a state or local employee organization or union while on a leave of absence granted by a board of directors pursuant to RCW 28A.58.100(2), supra.

            In order to participate in the teachers' retirement system and receive service credit for such participation, a teacher must be in "service" as that term is defined in RCW 41.32.010(28); i.e.,

            ". . .  'Service' means the time during which a member has been employed by an employer for compensation."

            Unlike the statutory provisions discussed in connection with question (3) regarding minimum "sick" leave entitlements, RCW 41.32.010(28), supra, is not necessarily limited by its terms and context to periods of active employment whereby services are being provided to the employer.  In apparent recognition of this and the resulting need for clarification, the board of trustees of the teachers' retirement system has adopted WAC 462-20-030 which provides as follows:

            "If a member is otherwise eligible, service credit shall be allowed for any time subsequent to July 1, 1960 during which a member is on official leave from his position, provided he is still listed as employed by his employer and is receiving compensation for the time of his leave."