Opinion Number ( 1997 )

Dear District Attorney Wagner:

This office is in receipt of your request for an opinion of the Attorney General in regard to sick leave for clerical personnel. You indicate your present policy provides for them as follows:

1. Sick leave earned at 1.5 days per month;

2. Vacation time earned at 1.25 days per month; and

3. Comp time is equal time off for actual hours worked over 40 hours per week.

This office has recognized while the constitution prohibits the gratuitous donation of public funds, it does not prohibit the lawfully authorized benefits of annual leave, sick leave, and severance pay. These are not considered donations but are fulfillments of implied or express conditions of the employment contract. However, it was observed there must be some uniformity with the same type of benefits accorded other employees, and the leave policy must be consistently followed. The consistency creates a legal entitlement to the benefits. Atty. Gen. Op. Nos. 94-336, 90-572.

Establishing a consistent policy of leave with pay for a specified time as your policy indicates would thereby require any additional leave be without pay. Any intended limit of time off without pay must be established and applied equally. Also, if the unused leave time can be accumulated and carried over after a specified time it must be a part of a set policy, and, as an established policy, would be valid.

Therefore, we must conclude your present policy of leave would be a valid procedure as long as applied equally and consistently to your clerical personnel, and in accord with the Federal Fair Labor Standards Act which requires time and one half for the overtime hours worked for nonexempt personnel.

We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General BBR