PUBLIC EMPLOYMENT ‑- STATE AND MUNICIPAL EMPLOYEES ‑- MILITARY LEAVE ‑- RESERVE MEETINGS

PUBLIC EMPLOYMENT ‑- STATE AND MUNICIPAL EMPLOYEES ‑- MILITARY LEAVE ‑- RESERVE MEETINGS.

Employees of the state an of its political subdivisions are not entitled as a matter of right to a leave of absence to attend week end or week night military reserve meetings held during the employees' working hours.

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                                                                December 6, 1961

Honorable William N. Weaver
Director, Veterans' Rehabilitation Council
205 Insurance Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 81

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Is an employee of the state or a political subdivision thereof entitled as a matter of right, upon application duly made to his employer, to a grant of leave to attend week end or week night reserve meetings of a reserve unit of the United States armed services when such meetings are held during the employee's working hours?

            We answer your question in the negative.

                                                                     ANALYSIS

            We acknowledge that employees covered by the federal universal military training and service act, 50 U.S.C. App. Supp. 459 (Public Law 51 as amended by Public Law 86-632) are entitled to leaves of absence for the purpose of attending reserve training drills.  This right was created by the 1960 amendment to the federal act which provides that:

            "Any employee not covered by paragraph (3) of this subsection [relating to active duty training] who holds a position described in paragraph (A) [relating to federal employees] or (B) [relating to employees in private industry] of subsection (b) of this section shall upon request be granted a leave of  [[Orig. Op. Page 2]] absence by his employer for the period required to report for the purpose of being inducted into, entering, determining his physical fitness to enter, or performing active duty for training or inactive duty training in the armed forces of the United States. . . ."

            This act does not apply to the several states or the municipal subdivisions thereof.  See,Crowell v. Jackson Parish School Board, (La. App.) 28 So. (2d) 81 (1946);Hanebuth v. Patton, 115 Colo. 166, 170 P. (2d) 526 (1946); and AGO 55-57 No. 23 [[to Veterans' Rehabilitation Council on February 16, 1955]], a copy of which is enclosed.

            If an employee of the state or a political subdivision thereof is entitled as a matter of right to such leaves of absence, that right must have been created by an act of our legislature.  Our research has disclosed that military leaves of absence for state and municipal employees are required by RCW 38.40.060, which reads as follows:

            "Every officer and employee of the state or of any county, city, or other political 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 States shall 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.)

            We find no other statute purporting to deal with this subject.

            As you will note however from the emphasis supplied above, the leavemust be granted only when the reservist is ordered to active training duty.  We are aware of the fact that while penalties may be imposed  [[Orig. Op. Page 3]] for failure to attend a certain number of reserve meetings each year, military orders are not issued ordering the reservist to active training duty for such meetings.  In this respect it should be noted that the federal act quoted above expressly includes inactive training duty.  This distinction is also recognized by military reserve units.  See, for example, National Guard Regulation (NGR) 45, § 1-4a.  We must therefore conclude that RCW 38.40.060, supra, does not entitle employees of the state or municipal subdivisions thereof to leaves of absence enabling them to attend reserve meetings or drills which may fall during their working hours.

            This holding should not however be considered as preventing a state or municipal subdivision from granting an employee leave without pay to attend reserve meetings.  See, for example, Article XXI, § 7 (a) of the state merit system rules which expressly permits an agency subject to those rules to grant such leaves.

            We realize that this conclusion creates a distinction between the rights of reservists who may be employed by the state or its political subdivisions and those who are employed by the federal government or private employers.  If this be a hardship to the trainee or a detriment to the reserve program, legislation should be submitted to the next legislature.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

R. TED BOTTIGER
Assistant Attorney General