ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR REQUEST FOR AN ATTORNEY GENERAL OPINION WHICH ADDRESSES, IN EFFECT, THE FOLLOWING QUESTION:
MAY A SCHOOL DISTRICT, WHICH HAS PROVIDED A SICK BANK, ALLOW A TEACHER TO UTILIZE DAYS FROM THE SICK LEAVE BANK BEFORE RESORTING TO THE TWENTY DAYS DESCRIBED IN 70 Ohio St. 6-104.5?
BECAUSE YOUR REQUEST CAN BE ANSWERED BY REFERENCE TO OKLAHOMA STATUTES AND AN ATTORNEY GENERAL OPINION, THIS OFFICE HAS DETERMINED YOUR REQUEST SHOULD BE ANSWERED THROUGH THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOWS IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE FOLLOWING ANALYSIS AND CONCLUSIONS, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE RAISED.
IT APPEARS THAT YOUR QUESTION CANNOT BE ANSWERED DEFINITIVELY WITHOUT EXAMINING EACH SCHOOL DISTRICT'S SICK LEAVE PLAN. HOWEVER, GENERAL RULES OF STATUTORY CONSTRUCTION CAN BE USED TO ASCERTAIN WHETHER SCHOOL DISTRICTS ARE STATUTORILY PROHIBITED FROM ALLOWING TEACHERS TO USE THE SICK LEAVE BANK BEFORE RESORTING TO THE 20 DAYS PROVIDED FOR IN 70 Ohio St. 6-104.5.
SICK LEAVE BENEFITS FOR TEACHERS IN THE PUBLIC SCHOOL SYSTEM ARE ADDRESSED AT 70 Ohio St. 6-104 (1991). 70 Ohio St. 6-104 STATES THAT THE BOARD OF EDUCATION OF EACH SCHOOL DISTRICT MUST PROVIDE FOR SICK LEAVE. THE STATUTE DOES NOT ESTABLISH A MAXIMUM INSOFAR AS SICK LEAVE BENEFITS ARE CONCERNED. INSTEAD, ALL SICK LEAVE BENEFITS ARE DISCUSSED IN TERMS OF THE MINIMUM AMOUNT A BOARD OF EDUCATION MAY OFFER THE TEACHERS. SECTION 70 Ohio St. 6-104(B) PROVIDES THAT EACH SCHOOL DISTRICT'S SICK LEAVE PLAN MAY INCLUDE OTHER TERMS AND CONDITIONS BUT SHALL NOT PROVIDE LESS SICK LEAVE BENEFITS THAN THOSE PRESCRIBED IN THE STATUTE.
PURSUANT TO THESE STATUTORY PROVISIONS, EACH SCHOOL DISTRICT IS REQUIRED TO ADOPT A PLAN PROVIDING SICK LEAVE BENEFITS TO TEACHERS. THE TERMS OF THE LOCAL SCHOOL DISTRICT'S SICK LEAVE PLAN ARE ITEMS WHICH A LOCAL BOARD MAY NEGOTIATE WITH THE TEACHERS OF THE DISTRICT. SEE A.G. OPIN. NO. 83-033. TITLE 70 Ohio St. 509.6 (1991), MANDATES THAT NEGOTIATIONS MUST BE CONDUCTED IN GOOD FAITH. THIS PROVISION PROVIDES:
"THE BOARD OF EDUCATION AND THE REPRESENTATIVES OF THE ORGANIZATION MUST NEGOTIATE IN GOOD FAITH ON WAGES, HOURS, FRINGE BENEFITS AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT."
ATTORNEY GENERAL OPINION 83-033 DETERMINED THAT SICK LEAVE BANKS MAY BE A "TERM OR CONDITION OF EMPLOYMENT," THUS CONSTITUTING A NEGOTIABLE ITEM BETWEEN TEACHERS AND THE LOCAL SCHOOL BOARD. CONSEQUENTLY, THE SICK LEAVE PLAN COULD INCLUDE NEGOTIATED PROVISIONS FOR A SICK LEAVE BANK AS WELL AS THE RULES NEEDED TO IMPLEMENT SUCH A PROGRAM. THE RULES MAY INCLUDE INSTRUCTIONS ON WHEN THE SICK LEAVE BANK COULD BE UTILIZED.
THE FUNDAMENTAL RULE OF STATUTORY CONSTRUCTION IS TO ASCERTAIN AND, IF POSSIBLE, GIVE EFFECT TO THE INTENTION AND PURPOSE OF THE LEGISLATURE AS EXPRESSED IN THE STATUTE. JACKSON V. INDEPENDENT SCHOOL DIST. NO. 16 OF PAYNE COUNTY, 648 P.2D 26, 29 (OKLA.1982). SECTION 6-104 INDICATES A CLEAR INTENT ON THE PART OF THE LEGISLATURE FOR SCHOOL DISTRICTS TO PROVIDE SICK LEAVE TO THEIR TEACHERS. A MINIMUM AMOUNT IS MANDATED, BUT DISTRICTS ARE GIVEN DISCRETION TO PROVIDE MORE.
IN ADDITION, 70 Ohio St. 6-104.5 CLEARLY ADDRESSES SITUATIONS IN WHICH A TEACHER HAS EXHAUSTED ALL SICK LEAVE. BECAUSE SCHOOL DISTRICTS ARE AUTHORIZED TO FORMULATE SICK LEAVE PLANS, IT WOULD APPEAR THAT THE TERM "ALL SICK LEAVE" SHOULD INCLUDE ANY SICK LEAVE BENEFITS AVAILABLE TO A TEACHER IN A GIVEN DISTRICT, INCLUDING, A SICK LEAVE BANK. AVAILABILITY OF THE SICK LEAVE BENEFITS IS GOVERNED BY A DISTRICT'S SICK LEAVE PLAN. AFTER EXAMINING THE APPLICABLE STATUTES, I FOUND NOTHING THAT PROHIBITED USING SICK LEAVE BANKS BEFORE EXHAUSTING THE STATUTORY "TWENTY DAYS" DESCRIBED IN 70 Ohio St. 6-104.
IT IS THEREFORE THE OPINION OF THE UNDERSIGNED ATTORNEY THAT NOTHING IN THE APPLICABLE STATUTES PROHIBITS A SCHOOL DISTRICT WHICH HAS PROVIDED A SICK LEAVE BANK FROM ALLOWING A TEACHER TO UTILIZE DAYS FROM THE SICK LEAVE BANK BEFORE RESORTING TO THE TWENTY DAYS DESCRIBED IN 70 Ohio St. 6-104.5. HOWEVER, AS PREVIOUSLY NOTED, THE PROVISIONS OF A SICK LEAVE BANK ARE GOVERNED BY THE LOC L SCHOOL DISTRICT'S PARTICULAR PLAN. THEREFORE, THE ULTIMATE RESOLUTION OF THIS QUESTION, WOULD REQUIRE A REVIEW OF EACH DISTRICT'S PLAN WHICH WOULD NECESSARILY INVOLVE FACTUAL DETERMINATIONS THAT THIS OFFICE DOES NOT HAVE THE AUTHORITY TO MAKE. 74 Ohio St. 18B(5).
(L. MICHELLE STEPHENS)