Koppin v. Strode

BROOK, Chief Judge,

dissenting

One of the canons of statutory interpretation is that "it is just as important to recognize what a statute does not say as it is to recognize what it does say." Rush v. Elkhart County Plan Comm'n, 698 N.E.2d 1211, 1215 (Ind.Ct.App.1998), trans. denied. Indiana Code Section 10-2-4-8 does not say that a state or local governmental entity may adopt its own interpretation of the word "day," and I agree with the majority on this point. I also agree with the majority that the legislature intended to treat all public employees equally with regard to military service. I must respectfully dissent, however, because section 10-2-4-8 does not say that this equality must be based on hours of military leave.

As noted by the majority, one of the many definitions of "day" is "the time established by usage or law for work, school, or business." WeBsrer's Coun-crate Dictionary at 294.10 While the customary workday for many government employees is indeed eight hours, the customary workday for firefighters like Strode and Richardson is twenty-four hours. Whether a government employee works an eight-hour shift or a twenty-four-hour shift, that employee must take a one-day leave of absence from his or her "respective duties" for each day of military training. To interpret "day" in this instance as anything other than the duration of an employee's customary workday would frustrate the legislature's objective of encouraging military service.11

I acknowledge that under this interpretation of section 10-2-4-8, an employee who works a twenty-four-hour shift would be entitled to and might in fact receive compensation for more hours of paid military leave than an employee who works an eight-hour shift.12 Township claims that *465employees working a 24/48 schedule would thus receive "more pay" than "regular 'day' workers"; as Strode and Richardson correctly observe, however, firefighters and others working twenty-four-hour shifts would not receive a "windfall" for their military service but would only receive up to fifteen workdays of paid military leave, the same as "regular 'day' workers." 13 Under the majority's interpretation of section 10-2-4-8, however, a firefighter working a 24/48 schedule will receive a maximum of only five workdays of paid military leave.14 Absent any indication to the contrary,15 I cannot conclude that the General Assembly intended such an unfair result.

The majority cites to Kalb, 128 IIl.App.3d 481, 83 Ill.Dec. 848, 470 N.E.2d 1268, in pointing out the supposed inequity *466in Strode and Richardson's position, but I remain unpersuaded by the Kalb court's emphasis on the fact that a firefighter working a 24/48 schedule "performs 24 hours of work in a three day period, as does anyone working on a conventional eight-hour per day schedule." Id. at 1270. While the Kalb court's rationale may initially seem appealing on fairness grounds, this tidy equivalence breaks down in less than one week and becomes even less tidy over the course of one month. On average, a firefighter on a 24/48 schedule works approximately 224 hours during a four-week period (9% days x 24 hours/day = 224 hours), whereas an employee on a "conventional" weekday schedule works only 160 hours (20 days x 8 hours/day = 160 hours) during that same period. I am similarly unpersuaded by the majority's citation to Airdo, 95 Ill.App.3d 568, 51 Ill.Dec. 58, 420 N.E.2d 472, in which the court focused on the inequities of punishment based on varying work schedules; under the majority's interpretation of seetion 10-2-4-8, Strode and Richardson and other similarly situated government employees will be unfairly penalized for their military service based on their work schedules. Finally, as for the majority's discussion of Benson, 379 N.W.2d 711, I would simply observe that I respectfully disagree as to where the legislature intended to draw the line of equity and fairness in granting government employees fifteen days of paid military leave.

Unlike the majority, I find the Minnesota Court of Appeals' decision in Howe, 515 N.W.2d 77, both instructive and persuasive. I agree with the Howe court that the "basic principle" underlying military leave statutes is "that a person who serves in the armed forces should not be penalized for that service in civilian life." Id. at 79.16 More importantly, I believe that the General Assembly's intent not to penalize government employees for their military service is expressed in even more definitive terms than was the Minnesota legislature's in Howe.17

*467Under section 10-2-4-8, a government-employed member of the aforementioned 6 military organizations is entitled to "a leave of absence from the member's respective duties, in addition to regular vacation period, without loss of time or pay" while the member is "on training duties" or "a member of any reserve component ... for consecutive or nonconsecutive periods not to exeeed a total of fifteen (15) days in any calendar year." (Emphasis added.) In Strode and Richardson's case, taking a leave of absence from their respective duties for military training entails missing a twenty-four-hour workday, and thus they should be paid for every twenty-four-hour workday they miss while on military leave, up to a total of fifteen days per calendar year. I would therefore affirm the trial court's grant of summary judgment.

. I agree with the majority that the word "day" as used in section 10-2-4-3 is ambiguous and therefore subject to judicial interpretation.

. In interpreting "day" as the duration of a government employee's customary workday, I am mindful of the variety and complexity of employee shifts and schedules that have arisen in the modern workplace. While I recognize that interpreting a "day" as an eight hour period might simplify matters significantly and is superficially appealing on fairness and fiscal grounds, I cannot conclude that such an interpretation is consistent with legislative intent.

. In his amicus brief, Chief of the Indianapolis Fire Department Louis A. Dezelan ("Dezel-an'") contends that the trial court's "misinterpret[ation] of the term 'day' as used in Indiana Section 10-2-4-3[] could adversely impact the City of Indianapolis and other similarly situated fire departments." Both the record and Dezelan's brief are conspicuously silent, however, as to the number of *465firefighters who fall under the statute and the projected impact that such a "misinterpret[ation]" might have on budgetary and staffing considerations.

. Should an employee working a 24/48 schedule exhaust his fifteen-day quota under my interpretation of section 10-2-4-3, he would be compensated for 360 hours of military leave per calendar year (15 days x 24 hours/day = 360 hours), whereas an employee working a five-day, forty-hour week would be compensated for 120 hours (15 days x 8 hours/day = 120 hours). Assuming, arguen-do, that both employees earn a yearly salary of $30,000, the 24/48 employee would not earn a penny more than the forty-hour employee, but would instead be compensated for an additional 240 hours of military leave, e., 240 hours spent performing military duties rather than employment duties. I acknowledge that a forty-hour employee would be less likely to exhaust his fifteen-day quota during the course of a typical calendar year than a 24/48 employee, who must occasionally work weekends, and thus the discrepancy would typically be greater than 240 hours. The fact remains, however, that neither employee would earn more than $30,000 per year. I recognize that state and local governments might be required to hire additional employees or pay overtime to current employees to cover the shifts of 24/48 employees while they are on military leave, but the legislative intent expressed in section 10-2-4-3 is clear: government employees should not be penalized for their military service. The majority assumes that the General Assembly "settled on fifteen [eight-hour] days as an appropriate medium" in balancing the financial burdens of government employees and their respective employers with respect to military service; in my view, this assumption reads too much into the language of the statute and the legislative decisionmaking process. One could just as reasonably assume that the General Assembly carefully considered the potential economic impact of granting fifteen days of paid military leave to government employees regardless of their work schedules and consciously decided not to define "day" as an eight-hour period in order to encourage all government employees to serve in the military.

. The majority states that under its interpretation of section 10-2-4-3, Strode and Richardson "will have sufficient military leave to perform their active duty commitment." While this may be true with respect to the annual two-week training commitment, their occasional weekend shifts will inevitably and repeatedly conflict with their monthly military training. On a 24/48 schedule, a firefighter must work an average of at least three weekend days per month (assuming, arguendo, a midnight-to-midnight shift), thereby ensuring that the firefighter will exceed the majority's quota of fifteen eight-hour "days" of paid military leave per calendar year.

. In Donaldson, 327 Ark. 93, 936 S.W.2d 551, cited approvingly by the majority, the governing statute addressed accumulated sick leave in terms of "working days," which the court had previously construed "to mean an eight-hour day rather than a twenty-four hour shift" in calculating firemen's holidays. Id. at 552. Moreover, the Donaldson court observed that the "City of Pine Bluff has the authority to operate and manage its fire department, including its fire fighter's [sic] hours of duty, holiday compensation, annual vacation, and sick leave." Id. at 553. Given that section 10-2-4-3 does not contain the term "working days," and given the statewide defense interests and employment rights implicated therein, I do not find Donaldson persuasive.

. See also 38 U.S.C. § 4301(a) (first sub-chapter of 1994 United States Employment and Reemployment Rights of Members of the Uniformed Services Act ("USERRA"); stating that purposes of USERRA are "(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services."); see also id. § 4311(a) ("A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.").

. The majority correctly observes that there was "no evidence that the city [of St. Cloud] had defined 'day' for the Howes as anything other than a 24-hour period," Howe, 515 N.W.2d at 80, but the Howe court simply mentioned this fact in responding to the city's argument that it had "the inherent managerial authority to define 'day' as less than 24 hours for the firefighters." Id. The Howe court did not base its interpretation of the applicable statute on the city's historical definition of the term "day"; in fact, the court invalidated the military leave term in the city's collective bargaining agreement with the firefighters because it directly conflicted with the court's interpretation of the statute. See id.; see also Boelter v. City of Coon Rapids, 67 F.Supp.2d 1040, 1043-46 (D.Minn.1999) (addressing firefighters' action to enjoin enforcement of city's military leave policy requiring them to "proceed directly from their military post to the fire department to be entitled to pay for their military leave"; ac*467knowledging that city, like City of St. Cloud in Howe, had defined "day" as 24-hour day, but relying on "plain reading" of Mmm.Stat. § 192.26 in concluding that "firefighters serving in the military may take their entire 24-hour work shift as military leave without loss of pay for a period of up to 15 days").