dissenting.
If the County were required by law to have a compensatory time policy I might agree with the majority opinion. However, although the majority opinion does not so state, it is apparently conceded that the County is not required to adopt any policy providing for compensatory time. Thus it appears to me that the effect of the majority opinion is to hold that if the County is to adopt such a policy it must do so with the provisions that we believe should be contained in such a policy. I cannot agree that it is our function to rewrite policies of the boards of county commissioners so that they contain provisions we might favor. Nor is it our function to substitute our judgment for that of the county commissioners.
The majority opinion apparently relies on the case of Bruce v. City of St. Louis, 217 S.W.2d 744 (Mo.Ct.App.1949), which rather simplistically concluded that a policy which provides for compensatory time off for working overtime hours is not in fact compensatory unless it also provides for payment for such hours if compensatory time is not taken. The court in that case is subject to the same criticism I have of the majority opinion — i.e., that the court concluded the city must enact a policy to the liking of the court. That is not, of course, the standard by which we are to judge the case. An ideal policy would provide for compensatory time and, if that time could not be taken, the policy would provide for payment. However, we are not to assure that the County adopt an ideal policy. That is a legislative function left to the County.
Furthermore, the majority opinion raises many unanswered questions. Must the County pay the employee if he is not permitted to take the compensatory time at his first request and if he subsequently resigns or his employment is terminated? Or does the County have a reasonable time in which to allow the compensatory time after the employee makes a request for compensatory time? The majority opinion states that the court does not decide whether or not a deputy sheriff would be entitled, upon termination of his employment, to monetary compensation in lieu of unused compensatory time where the employee did not request and was not denied the use of earned compensatory time through any action or decision of his superiors acting on the County’s behalf. However, these are all matters which would most probably be included in a policy if the policy were intended to permit payment for unused compensatory time.
I believe the majority opinion usurps the legislative authority of the board of county commissioners in attempting to rewrite the policy according to the majority’s image of what a fair and equitable policy should be. But because the policy, as written, never authorized payment for compensatory time, Conway’s right to compensatory time was not breached. If the facts indicated that the County purposely refused to grant compensatory time in order to deprive Conway of his right to compensatory time, I would reach a different result. There is no allegation that the County did so and it is apparently conceded that it did not do so.
It would be ideal if the County would adopt a policy such as that urged by Conway. It did not, and I do not believe this court can supply the provisions Conway desires. There are many factors which must be considered in adopting such a policy. I do not know that the County would have adopted such a policy if it were required to pay for unused compensatory time. Because the County is not required to have any policy I cannot agree that if it adopts a policy it must also provide for payment of unused compensatory time upon termination of employment.