dissenting.
In State v. Morgan, 116 Or App 338, 346, 842 P2d 406 (1992), we criticized both a litigant and the legislature for their attempts in the sentencing guidelines to “require us to move beyond our role of interpreting legislation to enacting it.” We explained that “[i]t is not for the judiciary to decide which policies should prevail. That is for the legislature. ’ ’ The author of those astute words is also the author of the majority opinion in this case. Unfortunately, he appears not to recognize that the proper allocation of powers and responsibilities between the legislative and judicial branches is every bit the same in the context of the parental leave statute as it is in the sentencing guidelines context. The result is that the majority amends ORS 659.360(3) to say what it thinks it ought to say instead of what the legislature did say.
The majority states, correctly, that our task in construing legislation begins with the language of the statute. It *364also acknowledges, correctly, that that is where the inquiry should end when the language is clear. However, the majority does not appreciate what seems to me to be implicit in those principles: Our job is to read the clear language to say what it clearly does say. Instead, the majority makes a wilful beeline to the opposite reading.
The majority dwells on the word “accrued,” which modifies vacation, sick and other compensatory leave in the statute. It concludes that “[t]he only limit on that right to use sick leave during a parental leave is that the leave have accrued.” 116 Or App at 359. That conclusion is correct, but it leads nowhere. The majority goes on to extrapolate from that conclusion a holding that the accrued sick leave may be used as paid parental leave. The statute simply does not say that. It says that the accrued sick leave may be used during the parental leave. Nothing in the language of the statute even remotely suggests that accrued sick leave may be applied to a kind of leave other than the one for which it has accrued simply by reason of a happenstance that the employee is enjoying a different kind of leave while some of the accrued sick time remains.
There are plausible policy reasons why the legislature may have written the statute to say what it unambiguously does, e.g., the intertie with the collective bargaining process orto assure that employees who become ill while on parental leave be credited with the paid sick leave that they have earned. It is also possible that the legislature meant to say what BOLI and the majority interpret it to say. If so, it failed. That provides no justification for us to rewrite the statute and the parties’ collective bargaining agreement. With regard to the latter rewriting, one would think that the legislature could not do that constitutionally. The majority holds that BOLI can. That is politically (and legally) a very dangerous idea.
I dissent and join in the dissent of Edmonds, J.
Richardson, J., and Warren, J., join in this dissent.