Opinion No. ( 2009 )

The Honorable Andrea Lea State Representative Post Office Box 1342 Russellville, Arkansas 72811-1342

Dear Representative Lea:

I am writing in response to your request for my opinion on the following question:

Is an employee of a city of the first class who is also a member of the armed forces entitled to fifteen (15) days of military training leave under A.C.A. 21-4-102(a) in a calendar year when he has already been called to active duty, will be on active duty for the entire calendar year, has not used any military training leave for the calendar [year] and has already been compensated for thirty (30) days under A.C.A. 21-4-102(c) because of an emergency situation?

RESPONSE

In my opinion, the answer to this question is "no."

Section 21-4-102 of the Arkansas Code (Repl. 2004) provides in pertinent part:

(a)(1) All employees of the state, as defined in § 21-4-203, or of any of its political subdivisions, who desire to take a leave of absence for the purpose of participating in the military training programs made available by the National Guard or any of the reserve branches of the armed forces and all state employees who are members of the Inactive Reserve Corps of the United States Public Health Service who desire to take a leave of absence for the purpose of participating in the civil defense and public health training programs made available by the United States Public Health Service shall be entitled to such a leave of absence for a period of fifteen (15) days plus necessary travel time for annual training requirements or other duties performed in an official duty status in any one (1) calendar year.

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(b)(1) Whenever any employee is granted a leave of absence under the provisions of this section, he or she shall be entitled to his or her regular salary during the time he or she is away from his or her duties during such leave of absence.

(2) The leave of absence shall be in addition to the regular vacation time allowed to the employee.

(c)(1) Employees called to duty in emergency situations by the Governor or by the President shall be granted leave with pay not to exceed thirty (30) working days, after which leave without pay will be granted. This leave shall be granted in addition to all other leave the employee shall be entitled to.

This statute clearly directs that a civilian employee of a political subdivision will be entitled to salary compensation for a period of fifteen days for purposes of National Guardtraining. In my opinion, the statute does not contemplate salary compensation for an individual who has been called for active duty, which is an enterprise categorically different from temporary training of the sort contemplated in this section of the Code. Moreover, under the facts you have recited, there is no issue of the employee's entitlement to emergency leave with pay for thirty working days; you report that this entitlement has been met, which moots any issue on this score.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL Attorney General