Opinion No. 75-182 (1975) Ag ( 1975 )

DEDUCTIONS FOR SUBSTITUTE TEACHERS A school district may not deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who has exhausted his sick leave and is absent due to illness. A school district may not deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who must be absent for the reason of personal business. A school district may not deduct anything from the teacher's salary when he is absent for either illness or personal business and no substitute is provided. A school district may not deduct a day of sick leave from a teacher's accumulated sick leave for a day school is not actually taught and no substitute is provided. A school district may provide not more than five (5) days emergency leave, but there is no mandatory requirement that any emergency leave days be allotted. Such emergency leave days are to be accrued at the rate of one day per calendar month based upon a ten month school year, unless a faster rate of accrual is provided by the school district. A school district may not restrict emergency leave to only certain days of the year or days of the week. The Attorney General has considered your request for an opinion wherein you ask the following questions: "1. Considering the last sentence of Paragraph B of 70 Ohio St. 6-105 [70-6-105] may a School District, through board policy or other method, deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who has exhausted his sick leave and is absent due to illness? "2. Considering the last several sentences of Paragraph A of 70 Ohio St. 6-105 [70-6-105], may a School District, through board policy or other method, deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who must be absent for the reason of personal business? "3. Considering the previous two questions, may a School District through board policy or other method, deduct anything from the teacher's salary when he is absent for either illness or personal business and no substitute is provided? "4. May a School District deduct a day of sick leave from a teacher's accumulated sick leave for a day school is not actually taught and no substitute is provided? (Such as Christmas Thanksgiving, and New Years.) "5. Considering Emergency Leave, how many days of emergency leave must a School District now provide? Since Emergency Leave is non-cumulative, is a teacher entitled to all the Emergency Leave days at the beginning of the school year? May a School District restrict Emergency Leave to only certain days of the year or days of the week?" Title 70 Ohio St. 6-105 [70-6-105] (1971), provides in pertinent part that: "No school district shall deduct from a teacher's salary more than the actual amount of money necessary to pay the substitute teacher due to illness of the teacher." A plain reading of the statute appears to be dispositive of your first question, inasmuch as it is clearly provided that a school district shall not deduct more than the actual amount necessary to pay the substitute teacher. As stated in McVicker v. Board of County Commissioners of Caddo County, 442 P.2d 297 (1968) "If the wording of a provision of a statute or the constitution is plain, clear and unambiguous, its evident meaning must be accepted and there is no reason or justification for use of interpretative devices to fabricate a different meaning." In regard to your second question of whether a school district may deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who is absent on personal business, 70 Ohio St. 6-105 [70-6-105](a) (1971) provides that: "A teacher absent for reason of personal business shall have deducted from his salary by the school district only the amount necessary to pay the substitute." Again, a clear reading of the statute would appear to dispose of this question. Concerning your third question of whether a school district may deduct anything from the teacher's salary when he is absent for either illness or personal business and no substitute is provided, it would appear that according to 70 Ohio St. 6-105 [70-6-105] (1971), the school district could not deduct any amount from the teacher's salary if such amount was not required to be paid to the substitute. With regard to your fourth question of whether a school district may deduct a day of sick leave from a teacher's accumulated sick leave for a day on which school is not actually taught and no substitute is provided, it would appear that the answer to your third question is dispositive of this issue. If school is not in session, then of course no substitute is provided, and no amount is required to pay said substitute. Accordingly, no day may be deducted from the accumulated days of sick leave nor may any amount be deducted from his salary during the period when no amount would be paid to the substitute. Regarding emergency leave, 70 Ohio St. 6-104 [70-6-104] (1975) provides that: "Each school district may provide not more than five (5) days each year for emergency leave." The statute merely provides a maximum number of days which may be provided, but does not prescribe a minimum number of days which must be allotted as emergency leave days. Since 70 Ohio St. 6-104 [70-6-104] (1975) simply specifies: "Leave shall accrue at the rate of one day or more per calendar month based upon a ten month school year", it would seem to indicate that emergency leave accrues in the manner provided by statute with discretion left to the school district to provide for a faster rate of accrual. Absent a school district policy for accruing emergency days at a rate of more than one day per calendar month based upon a ten month school year, emergency leave days would be accrued at the rate of one day per month, just as with sick leave. Title 70 Ohio St. 6-104 [70-6-104] (1975), further provides that "each school district will determine the purposes for which emergency leave can be used", but makes no provisions restricting those emergency leave days to certain days of the year or days of the week. It appears that the school district may restrict the purpose for which the emergency leave is used, but that the time to be utilized is at the teacher's discretion. Therefore, it is the opinion of the Attorney General that your questions be answered as follows: 1. A school district may not deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who has exhausted his sick leave and is absent due to illness. 2. A school district may not deduct more than the actual amount necessary to pay the substitute teacher provided for a teacher who must be absent for the reason of personal business. 3. A school district may not deduct anything from the teacher's salary when he is absent for either illness or personal business and no substitute is provided. 4. A school district may not deduct a day of sick leave from a teacher's accumulated sick leave for a day school is not actually taught and no substitute is provided. 5. A school district may provide not more than five (5) days emergency leave, but there is no mandatory requirement that any emergency leave days be allotted. Such emergency leave days are to be accrued at the rate of one day per calendar month based upon a ten month school year, unless a faster rate of accrual is provided by the school district. A school district may not restrict emergency leave to only certain days of the year or days of the week. (Joe C. Lockhart)