BOARD OF EDUCATION CANNOT PAY FOR UNUSED SICK LEAVE —
BONUS PAYMENT FOR NUMBER OF DAYS ACTUALLY WORKED The Board of Education cannot provide, within its sick leave policy, payment for unused sick leave during the present fiscal year at termination or retirement, but, it may provide a bonus payment for the number of days actually at work by a contract with the teacher, which bonus would not affect accumulated sick leave. We have considered your request for an official opinion dated February 9, 1971, in which you asked the following questions: "1. May a school district pay for unused sick leave at the end of a fiscal year for sick leave accumulated in that year only? The employee, under this plan would retain his accumulated sick leave credit." "2. May a school district pay an employee for accumulated sick leave at the time of retirement, or would this be paying for services rendered in different fiscal years, and, thus, be illegal? "3. May a school district pay an employee for accumulated sick leave at the time of termination of employment?" We find no provisions in the School Code which provide that a school district may pay for unused sick leave at the end of a fiscal year. Section 83 of the 1970 School Laws found at 70 O.S. 6-3 [70-6-3] (1970) provides: That the Board of Education of each school district in the State shall provide for sick leave for all teachers employed in the district and shall pay such teachers the full amount of their contract salaries during any absence from their regular school duties for a period of time and under such conditions as the Board may determine, but not less than the minimum benefits hereafter specified." Provided a local Board of Education has not adopted a sick leave policy pursuant to the statutory authority contained in Section 83, it is obvious that the local Board of Education could not pay for unused sick leave, since the provisions of Subsections B and C cannot be construed to provide for such payments. Subsection A clearly provides that the local Board of Education may adopt its own appropriate sick leave plan provided the minimum standards set forth in Subsection B and C are complied with. However, in our opinion the provisions of Subsection A cannot be construed to give the local Board of Education authority to provide payment for unused sick leave within the sick leave plan. To the contrary Section 85 of the School Code found at 70 O.S. 6-5 [70-6-5] (1970) provides, in part, as follows: "Boards of Education are hereby authorized to contract with and pay all teachers in their respective districts twelve (12) monthly payments, to be made on the basis of legal contracts between said board and teachers. Procedures for paying teachers shall be in accordance with either of two plans: "1st. The aggregate amount of such salary payments in any fiscal year shall be as agreed upon by the board and the teacher." In our opinion, Section 85 provides broad and discretionary power to the local Board of Education to set the annual salaries of teachers. By implication Section 85 would give the local Board of Education authority to provide, by contract with the teacher, a variable salary based upon the number of days taught during the fiscal year. There is no reason why the contract could not provide, for example, that a teacher would receive at the end of the year a payment in the nature of bonus for each day which the teacher was actually at work and not on sick leave in excess of 180 days. Although such provisions in the contract would in effect be giving the teacher a bonus based upon the number of days of sick leave which were unused during the fiscal year, it is our opinion that such provisions must be made in the contract and that the sick leave plan of the local Board of Education cannot include payments for unused sick leave per se. It would follow that the answer to the second portion of your first question would be in the affirmative in that the payment would have affect accumulated sick leave. It would also follow that the answers to your second and third questions would be in the negative in that the local Board of Education is not authorized to pay an employee for accumulated sick leave even in the present fiscal year. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: The Board of Education cannot provide, within its sick leave policy, payment for unused sick leave during the present fiscal year at termination or retirement, but, it may provide a bonus payment for the number of days actually at work by contract with the teacher, which bonus would not affect accumulated sick leave. (Gary M. Bush) ** SEE: OPINION NO. 77-239 (1977) **