SCHOOLS - SCHOOL DISTRICTS - BOARDS OF DIRECTORS - AUTHORITY TO DETERMINE SUCH LEAVE POLICY UNDER CHAPTER 195, LAWS OF 1959

SCHOOLS - SCHOOL DISTRICTS - BOARDS OF DIRECTORS - AUTHORITY TO DETERMINE SUCH LEAVE POLICY UNDER CHAPTER 195, LAWS OF 1959.

1. Under chapter 195, Laws of 1959, a school district may grant sick leave which accumulated prior to June 11, 1959, during the 1959-60 and successive school years.  2.  A school district may not hereafter authorize by rule and regulation the payment of all or a part of a day's salary to a teacher where the absence is caused by other than the teacher's own illness.

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                                                                 August 24, 1959

Honorable Lloyd J. Andrews
State Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington                                                                                Cite as:  AGO 59-60 No. 62

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on the following questions:

            (1) Under the provisions of chapter 195, Laws of 1959, may a school district grant sick leave which accumulated prior to the effective date of this act (June 11, 1959) during the 1959-60 and successive school years?

            (2) In view of the enactment of chapter 195, Laws of 1959, may a school district hereafter authorize, by rules and regulations, the expenditure of public funds to pay a teacher all or part of a day's salary where the teacher's absence is caused by other than her own sickness?

            We answer question (1) in the affirmative; question (2) in the negative.

                                                                     ANALYSIS

            Question (1):

            During the 1959 session of our legislature, chapter 195, an act relating  [[Orig. Op. Page 2]] to teachers' cumulative sick leave, was passed.  This act reads as follows:

            "Every person under contract for a full school year with a school district in a 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 beverified by written statement from a physician."  (Emphasis supplied.)

            You have advised us that it was the policy of the board of directors of some school districts, prior to the enactment of the above statute, to permit teachers to accumulate thirty days sick leave in four years.

            In essence, your inquiry simply raises the question: Does chapter 195, Laws of 1959, have any effect upon sick leave which a school teacher accumulated prior to the effective date of the act?

            The general rule is that a statute is presumed to operate prospectively and will not be applied retrospectively in the absence of language clearly indicating such legislative intent.  Hammack v. Monroe St. Lumber, 54 Wash. Dec. 217 [[54 Wn.2d 224]], 226 (1959) and cases cited therein.  Retroactive statutes are generally regarded with disfavor.  Layton v. Home Indemnity Co., 9 Wn. (2d) 25, 113 P. (2d) 538; City of Seattle v. King County, 3 Wn. (2d) 26, 99 P. (2d) 621.

             [[Orig. Op. Page 3]]

            From a reading of chapter 195, Laws of 1959, 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 applicable would be avoided if possible.  Hammack v. Monroe St. Lumber, supra.  The act here merely guarantees to a teacher, after June 11, 1959, ten days sick leave each year, accumulative to one hundred eighty days.

            Furthermore, our court inGillis V. King County, 42 Wn. (2d) 373, 376, 255 P. (2d) 546 (1953), said:

            "A statute may not be given retroactive effect, regardless of the intention of the legislature, where the effect would be to interfere with vested rights.  Thus, a statute may not operate retroactively where the result would be to impair the obligation of a contract(In re Heilbron's Estate, 14 Wash. 536, 45 Pac. 153), or deprive one of his property without due process of law(Graves v. Dunlap, 87 Wash. 648, 152 Pac. 532).  See, also, Bruenn v. North Yakima School District, 101 Wash. 374, 172 Pac. 569;State v. Natsuhara, 136 Wash. 437, 240 Pac. 557;Tonkoff v. Roche Fruit & Produce Co., 137 Wash. 148, 242 Pac. 3."  (Emphasis supplied.)

            The court then went on to say at page 377:

            "In Adams v. Ernst, 1 Wn. (2d) 254, 95 P. (2d) 799, we expressed the following opinion regarding the term 'vested rights':

            "'The term "vested right" is not easily defined and has been used by the courts to express various shades of meaning.  However, the term has been commonly held to connote "an immediate fixed right of present or future enjoyment" and"an immediate right of present enjoyment, or a present fixed right of future enjoyment."'

            "In 2 Cooley, Constitutional Limitations (8th ed.), 749, the following definition of the term appears:

            "'First, it would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the  [[Orig. Op. Page 4]] present general laws: it must have become a title, legal or equitable, to the present or future enjoyment of property, orto the present or future enforcement of a demand, or a legal exemption from a demand made by another.'"  (Emphasis supplied.)

            In the recent case ofHammack v. Monroe St. Lumber, supra, the court was required to pass upon the argument that the statute there in question should be given a retroactive effect.  In holding that the statute could only operate prospectively, the court said at page 224:

            "'The distinction between rights and remedies is fundamental.  A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. . . .'"

            Unquestionably we are here concerned with "rights" and not "remedies" as the distinction is recognized in the foregoing case.

            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.

            Question (2):

            A school district is a municipal corporation and, as such, has only those powers expressly granted by the legislature, those necessarily or fairly implied or incident to the powers granted, and those essential to the declared objects and purposes of the municipal corporation.  Seattle High School Ch. No. 200 v. Sharples, 159 Wash. 424, 293 Pac. 994 (1930);Juntila v. Everett School Dist. No. 24, 178 Wash. 637, 35 P. (2d) 78 (1934).  See alsoState ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P. (2d) 94 (1934); RCW 28.58.010; AGO 59-60 No. 25 [[to Prosecuting Attorney, Spokane County on March 25, 1959]]and AGO 59-60 No. 13 [[to Department of Labor and Industries on February 18, 1959]].  The  [[Orig. Op. Page 5]] governing body of a school district is, by law, the board of directors.  RCW 28.58.080;State ex rel. Griffiths v. Superior Court, supra; AGO 59-60 No. 25.

            Our supreme court, in the case of McGilvra v. Seattle School Dist. No. 1, 113 Wash. 619, 194 Pac. 817 (1921), after setting out the general powers of all municipal corporations, said:

            "'. . . Any fair or reasonable doubt concerning the existence of power isresolved by the courts against the corporations, and the power is denied.'

            "This view of the law is of added weight when applied to school districts, because they are municipal corporations with powers of a much more limited character than are cities or towns, or even than counties.  Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917D 792; 24 R.C.L. 564."  (Emphasis supplied.)

            We have examined in general Title 28 of the Revised Code of Washington which deals with "schools" and in particular RCW 28.58.100, the general powers and duties of school directors; RCW 28.62.180, the additional powers granted to the board of directors of first class districts; and RCW 28.67.070 which prescribes the conditions and contracts of employment of teachers, but have failed to find any express power or power which, by implication, would authorize the board of directors of a school district to expend public funds for the purpose of paying a teacher all or part of a day's salary where the teacher has not rendered the services and her absence is not the result of her own illness or injury.  See chapter 195, Laws of 1959,supra.

            We realize that certain emergencies may arise that will result in a teacher's absence from school, other than her own sickness, and for which the board of directors may feel that she is entitled to compensation although no services were rendered.  In an opinion written to the Honorable Leslie M. Carroll, Acting Prosecuting Attorney, Spokane County, dated July 23, 1945 [[1945-46 OAG 270]], this office concluded:

            "The impulse to be generous to an efficient and faithful public servitor is most commendable, but that impulse cannot be furthered by the expenditure of public fundsexcept to the extent and in the manner prescribed by legislative authority."  (Emphasis supplied.)

             [[Orig. Op. Page 6]]

            Since we cannot find any legislative authority for the power here sought to be sustained, we must inform you that, in our opinion the boards of directors of school districts are not authorized by rule or regulation, or otherwise, to provide for the payment of a teacher's salary for days on which services are not rendered except in the case of sickness as provided by chapter 195, Laws of 1959,supra, or as otherwise specifically provided by law.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General