LEGALITY OF SICK LEAVE BANK PLAN

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- SICK LEAVE ‑- LEGALITY OF SICK LEAVE BANK PLAN

In adopting sick leave policies for its professional staff employees under RCW 28B.50.551, a community college district may not provide for the establishment of a "sick leave bank" into which voluntarily participating employees would be allowed to contribute a designated amount of their accumulated sick leave which could thereafter be withdrawn and used by any participants in the plan who have exhausted all of their own accumulated sick leave benefits.

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                                                                   May 10, 1974

Honorable John C. Mundt
Director, State Board for
Community College Education
319 Seventh Avenue
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 54
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
 
            May the board of trustees of a community college district, in adopting sick leave policies for its professional staff employees under RCW 28B.50.551, provide for the establishment of a "sick leave bank" into which voluntarily participating employees would be allowed to contribute a designated amount of their accumulated sick leave which could thereafter be withdrawn and used by any participants in the plan who have exhausted all of their own accumulated sick leave benefits?
 
            We believe that the foregoing question must be answered in the negative.
 
                                                                     ANALYSIS
 
            RCW 28B.50.551 contains the basic statutory authority for all community college districts to grant sick leave benefits to their employees.  Set forth in full for ease of analysis, this statute provides 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 but not limited to leaves for attendance at official or private institutions and conferences, sabbatical leaves for academic personnel, leaves for illness, injury, bereavement and emergencies, with such compensation as the board of trustees may prescribe, except that the board shall grant to all such persons leave with full compensation for illness, injury, bereavement and emergencies as follows:
 
             [[Orig. Op. Page 2]]
            "(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 per quarter for full time employees up to a maximum of one hundred eighty days, and may be taken at any time;
 
            "(3) Leave for illness, injury, bereavement and emergencies heretofore accumulated pursuant to law, rule, regulation or policy by persons presently employed by community college districts and community colleges shall be added to such leave accumulated under this section;
 
            "(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 colleges shall not be compensable;
 
            "(5) Accumulated leave for illness, injury, bereavement and emergencies under this section shall be transferred from one community college district or community college to another, to the state board for community college education, to the state superintendent of public instruction, to any intermediate school district, to any school district, or to any other institutions of higher learning of the state; and
 
            "(6) Leave accumulated by a person in a community college district or community college prior to leaving that district or college may, under the policy of the board of trustees, be granted to such person when he returns to the employment of that district or college."
 
            Initially, it must be borne in mind that as a state agency, a community college board of trustees has only those powers expressly granted to it by the legislature, and those  [[Orig. Op. Page 3]] necessarily or fairly implied in or incident to the powers granted.  State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952).  See, also, State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 98 P.2d 985 (1940); State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 146 Pac. 630 (1915).
 
            Under the proposal described in your request all full-time academic employees of a given community college district, in accordance with policies formulated by its board of trustees, would be entitled on a voluntary basis to assign a designated amount of their previously earned, accumulated and unused sick leave to a common pool known as a "sick leave bank" at the beginning of each school year.  Thereafter, sick leave thus "deposited" could be withdrawn from this bank as needed, by participants in the plan who become unable to work because of illness or injury but who have previously exhausted all of their own accumulated and unused sick leave.  Employees withdrawing sick leave from the bank would not be required to replace it, but all employees participating in the plan would be called upon to make further deposits of their own accumulated, unused sick leave during the school year if the bank becomes depleted.
 
            The question to be resolved is whether the establishment of such a sick leave bank is included within the powers expressly granted by RCW 28B.50.551 or, if not (as is clearly the case), whether it can be said that it is necessarily or fairly implied in or incident to the authority expressly granted by that statute.
 
            In reviewing the statute, we note that the first paragraph requires each community college board of trustees to adopt written policies on granting leaves for various purposes to the employees of its district ‑ with such compensation as the board may prescribe.  Thus, this paragraph of the statute is enabling legislation which clearly grants broad authority to such boards to provide various types of leaves with such compensation as they may prescribe.
 
            In accordance with this initial grant of authority, a community college board of trustees has absolute discretion to grant various leaves for conferences, sabbaticals, illness, injury, bereavement, emergencies and other types of leave with full or partial compensation being paid the individual by the community college district.  Had the legislature gone no further, we believe this broad grant of authority could well encompass the establishment of a "sick leave bank" as above described.  However, the legislature did go on in the statute  [[Orig. Op. Page 4]] to refine with particularity the following:
 
            (1) That a board of trustees is to grant at least fifteen days' leave with full compensation for three quarters of academic employment; (2) that the leave is to be accumulated after the first three‑quarter period of employment at a minimum rate of five days per quarter for full-time employees up to a maximum of 180 days; (3) that leave previously accumulated pursuant to law, rule, regulation or policy by persons presently employed by community colleges is to be added to the leave accumulated under this particular statute; (4) that accumulated leave not taken at the time an employee retires or ceases to be employed is not to be compensable; (5) that accumulated leave under the statute is to be transferable from one community college district to another, to the state board for community college education, to the state superintendent of public instruction, to any intermediate school district, to any school district, to any other institution of higher learning in the state; and, lastly (6) that leave accumulated by an employee in a community college district prior to leaving that district may, under the policies of the board, be restored to such employee when he returns to employment of that district or college.
 
            Of these several qualifications upon the otherwise unfettered discretionary authority of a community college board of trustees, the one that we feel is particularly an obstacle to the establishment of a sick leave bank is item (2) ‑ the 180-day maximum.  This provision of the statute appears to us to have been designed by the legislature to place an ultimate ceiling on the potential liability of a community college for the payment of compensation to its employees on sick leave.  The effect of a sick leave bank, however, would be to frustrate this objective since, through its use, an employee could (a) take more than 180 days of sick leave through the use of days from the bank; and (b) greatly increase the total number of days which he could accrue by donating to the bank and thus staying within the 180-day maximum.
 
            The applicable rule of construction in such a situation as this is well stated in State ex rel. Spokane Etc. R. v. Dept. Pub. S., 191 Wash. 595, 71 P.2d 661 (1937), as follows:
 
            "In determining the legislative intent, the purpose for which a law was enacted is a matter of prime importance in arriving at a correct interpretation of its parts, . . ."
 
             [[Orig. Op. Page 5]]
            Accord, State ex rel. Thorp v. Devin, 26 Wn.2d 333, 173 P.2d 994 (1946), and cases cited therein.  Or, as it was explained by a learned text writer whose words were quoted with approval in Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968):
 
            "The presumption is that the lawmaker has a definite purpose in every enactment and has adapted and formulated the subsidiary provisions in harmony with that purpose; that these are needful to accomplish it; and that, if that is the intended effect, they will, at least, conduce to effectuate it.  That purpose is an implied limitation on the sense of general terms, and a touchstone for the expansion of narrower terms.  This intention affords the key to the sense and scope of minor provisions.  From this assumption proceeds the general rule that the cardinal purpose or intent of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious.  'A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction.'  2 Sutherland, Statutory Construction § 4704 (3rd ed. Horack)."

            In accordance with these principles we believe that the establishment of a sick leave bank such as we have above described cannot be said to be authorized by the terms of the governing statute, RCW 28B.50.551, supra.  Were it not for the foregoing 180-day maximum, however, our answer could well be different.  See, Syracuse Tchrs. Assn. v. Board of Ed., Syracuse, 42 A.D.2d 73, 345 N.Y.S.2d 239 (1973), in which a similar plan was upheld under a statute1/ that contained no such limitation upon the total number of days of sick leave which could be accumulated by an individual teacher.  If our legislature desires to sanction the concept of a sick leave bank for community college teachers in this state, it thus can easily do so ‑ but until it does, we conclude that your question, as above paraphrased, must be answered in the negative.

             [[Orig. Op. Page 6]]
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
RICHARD M. MONTECUCCO
Assistant Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/N. Y. Education Code, § 3005-b.