MILITARY LEAVES OF ABSENCE ‑- MUNICIPAL EMPLOYEES

MILITARY LEAVES OF ABSENCE ‑- MUNICIPAL EMPLOYEES

The provisions of RCW 38.40.060 relating to military leaves are applicable to all municipal employees, whether they are "permanent" or otherwise.

While on military leave such employees are entitled to the same amount and rate of compensation as they would have received had they not taken a leave of absence.

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                                                                   May 28, 1957

Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
266 J. Allen Smith Hall
University of Washington
Seattle 5, Washington                                                                                                                Cite as:  AGO 57-58 No. 73

Dear Sir:

            This is in answer to your request of April 26, 1957, for an opinion on the following questions:

            (1) Does RCW 38.40.060, as amended by chapter 236, Laws of 1957, embrace"temporary municipal employees" so as to entitle them to a military leave of absence for a period not exceeding fifteen days during each calendar year?

            (2) If the above statute, as amended, does embrace   "temporary municipal employees," what is a"temporary" municipal employee?

            (3) If the above question number (1) is answered in the affirmative, what compensation (at full-time or part-time rate) should be paid to such an employee while on such military leave, bearing in mind that some temporary employees may be full-time and some may be part-time employees?

            It is our conclusion that in the application of the provisions of RCW 38.40.060,  [[Orig. Op. Page 2]] as amended by chapter 236, Laws of 1957, there is no distinction between "temporary" and other municipal employees; that a more definitive clarification of the term "temporary" municipal employee is therefore unnecessary; and that, subject to the qualification set forth below, each municipal employee on military leave should be paid the same rate and amount of compensation as he would have received had he not been on leave of absence.

                                                                     ANALYSIS

            RCW 38.40.060, as amended by chapter 236, Laws of 1957, reads as follows:

            "Every officer andemployee of the state or of any county, city, or otherpolitical subdivision thereof who is a member of the Washington national guard or of the army, navy, air force, coast guard, or marine corps reserve of the United States, or of any organized reserve or armed forces of the United Statesshall be entitled to and shall be granted military leave of absence from such employment for a period not exceeding fifteen days during each calendar year.  Such leave shall be granted in order that the person may take part in active training duty in such manner and at such time as he may be ordered to active training duty.  Such military leave of absence shall be in addition to any vacation or sick leave to which the officer or employee might otherwise be entitled, and shall not involve any loss of efficiency rating, privileges, or pay.  During the period of military leave, the officer or employee shall receive from the state, or the county, city, or other political subdivision, his normal pay."  (Emphasis supplied.)

            The legislature has used the all-inclusive term "Every. . . employee" without making any exception thereto.  Had it been the legislative intent to exclude so-called "temporary" or "casual" employees or those employed on a part-time basis as distinguished from "permanent," "regular" or "full-time" employees, a provision making such distinction would have been included in the act.  This is emphasized by the fact that in chapter 73.16 RCW, relating to the employment and re‑employment of veterans, the term "temporary position" has been defined (RCW 73.16.031) and such positions have been expressly excluded from  [[Orig. Op. Page 3]] the application of that chapter (RCW 73.16.033).

            It must therefore be presumed that it was intended that the provisions of RCW 38.40.060, as amended, should apply in all cases where an employer-employee relationship exists.  In view of the foregoing conclusion a definition of the term "temporary" employee is not required.  However, our supreme court has interpreted the word "temporary" as meaning:

            "'Lasting for a time only; existing or continuing for a limited time; not permanent,'"Hiatt v. Dept. Labor & Ind., 48 Wn. (2d) 843, 846.

            In RCW 73.16.031 above referred to, the legislature has defined a "temporary position" as meaning "a position of short duration which, after being vacated, ceases to exist and wherein the employee has been advised as to its temporary nature prior to his engagement."

            The right granted to every employee under RCW 38.40.060 is a military"leave of absence" from his "employment."  During such leave he is entitled to"his normal pay," whether it be on a full-time basis or on a part-time basis.  In each instance a determination must be made as to the amount of compensation the employee ordinarily would have received had he not taken a leave of absence from his employment.

            In this connection it is our opinion that it was not the legislative intent that the granting of a military leave of absence should in any case effect an extension of the period of employment.  Where the employee is engaged for a specific project or for work which is to be completed within a specific calendar period, the employment terminates with the completion of the particular project or at the end of the specific calendar period.  The leave of absence from the employment continues only so long as the original position of employment exists.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRED L. HARLOCKER
Assistant Attorney General