The Honorable Harmon R. Seawel State Representative 5761 Highway 328 West Pocahontas, Arkansas 72455-8661
Dear Representative Seawel:
I am writing in response to your request for an opinion on the legality of a proposed policy of the Pocahontas School District. Specifically, the proposed policy reads as follows:
In the event of the death of an employee with at least three years of service in the Pocahontas School District, any unused sick leave up to ninety days would be paid to the employees' beneficiary as listed with the Arkansas Teacher Retirement System. The rate of pay will be based on the Certified Substitute Pay Scale.
RESPONSE
I am uncertain, as an initial matter, whether this proposed policy would apply to both certified and non-certified employees. Different provisions of state law govern sick leave for each group. In any event, litigation is pending before the Arkansas Supreme Court School that may impact the question you have raised. I have a staunch policy against issuing formal opinions where the subject matter of the request is pending before the judicial branch. Additionally, I cannot, as a practical matter, opine as to the legality of the policy above until the rendition of the Supreme Court's opinion.
Sick leave of school employees is governed by A.C.A. §§ 6-17-1201 to -1209 "The Teachers' Minimum Sick Leave Law" (for certified employees) and A.C.A. §§ 6-17-1301 to -1308 "The School Employees' Minimum Sick Leave Law" (for non-certified employees). Each subchapter sets a minimum amount of sick leave that must be afforded certified and non-certified employees, respectively. Each subchapter grants employees a minimum of one day of sick leave per month or portion thereof that the employee is contracted or employed, at full pay. See A.C.A. § 6-17-1204(a) and §6-17-1304(a), respectively. Each subchapter authorizes the accumulation of sick leave up to ninety days. See A.C.A. § 6-17-1205(b) and (d) and A.C.A. § 6-17-1305(b) and (d). Each subchapter contains a provision that states:
The number of days of sick leave provided by this subchapter are minimums only, and nothing in the subchapter shall prohibit any school district from providing more days of sick leave or from having a more liberal policy for the administration of sick leave, including, but not limited to, the establishment of sick leave pools or banks and allowing district employees who are husband and wife to each utilize the other's accumulated sick leave.
A.C.A. §§ 6-17-1208 and 6-17-1306.
There is at least one distinction between the two subchapters, however. The "Teachers' Minimum Sick Leave Law" provides, at A.C.A. § 6-17-1207, that: "Payment for unused sick leave shall be made from the salary fund of the district, and these moneys shall be included in meeting the annual requirements for payment of teachers' salaries." Prior law prohibited any payment for unused sick leave for teachers. See Acts 1971, No. 137 § 5 (stating that: "[n]o payment for unused sick leave shall be made to teachers. Funds that are budgeted for sick leave in a given school year and not used in that year shall be kept in the sick leave account to help pay for accumulated sick leave in succeeding years.") This former law was repealed, however, by Acts 1979, No. 1016, which inserted the present language of A.C.A. § 6-17-1207, above.
The interpretation of this last-mentioned statute is at issue in the pending litigation to which I referred above. See Turnbough v. MammothSprings School District No. 2, (Arkansas Supreme Court 01-696). I therefore cannot issue an opinion on your request at this time.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh