Judges: MIKE BEEBE, Attorney General
Filed Date: 12/7/2005
Status: Precedential
Modified Date: 7/5/2016
The Honorable Horace Hardwick State Representative 4 Saddeleworth Place Bentonville, AR 72712
Dear Representative Hardwick:
I am writing in response to your request for an opinion on the following:
Does Act 971 of the 2005 legislative session apply to all college employees or only to classified, non-faculty employees?
RESPONSE
In my opinion, Act 971 of 2005 was repealed by implication upon the enactment of Act 1288 of 2005. In the wake of both acts, I believe only classified employees of state-supported institutions of higher learning, including two-year institutions, are entitled to the compensation for unused sick leave set forth in Arkansas Code title 21, chapter 4, subchapter 5. I do not believe any state-supported, two-year institution has any discretion to deny this compensation to classified employees, nor do I believe that the applicable subchapter authorizes an institution to offer this compensation to non-classified employees.
Act 971 of 2005 provides in its entirety:
SECTION 1. Arkansas Code Title 21, Chapter 4, Subchapter 5 is amended to add an additional section to read as follows:
(a) Two-year colleges may, at the discretion of the two-year college, provide compensation for unused sick leave as allowed under this subchapter to employees of the two-year college.1
(b) Compensation for accumulated unused sick leave under this section shall not be used by the Arkansas Teacher Retirement System in the calculation of final average salary under §
24-7-202 (14).
This act was passed by the General Assembly in the regular session of 2005 and signed by the Governor on March 18, 2005.
Roughly a week later, the General Assembly passed a related provision in the same subchapter pursuant to Act 1288 of 2005, amending A.C.A. §
(a) The provisions of this subchapter apply to employees of the Arkansas State Game and Fish Commission, the Arkansas State Highway and Transportation Department, classified employees of state-supported institutions of higher learning, and all agencies of this state whether in the executive, legislative, or judicial branch of government
exceptthat this subchapter does not apply to state supported institutions ofhigher learning.
* * *
(c) Compensation for accumulated unused sick leave under the provisions of this subchapter shall not be used by the Arkansas Teacher Retirement System in the calculation of final average salary pursuant to § 14-7-202(14).
Act 1288 of 2005, § 1. This act was signed by the Governor on March 29, 2005.
On its face, Act 1288 makes the mandatory provisions of the subchapter codified at A.C.A. §§
In addressing the tension between these two acts, I am guided by various principles of statutory construction. First, the cardinal rule is to give full effect to the will of the legislature. Flowers v. Norris,
In addition, legislative enactments that are alleged to be in conflict must be reconciled, read together in a harmonious manner, and each given effect, if possible. Gritts v. State,
Moreover, a general statute normally does not apply where there is a specific statute governing a particular subject matter. Donoho, supra.
Ordinarily, the provisions of an act adopted later in time repeal the conflicting provisions of an earlier act. Daniels v. City of Fort Smith,
When more than one (1) act concerning the same subject matter is enacted by the General Assembly during the same session, whether or not specifically amending the same sections of the Arkansas Code or an uncodified act, all of the enactments shall be given effect except to the extent of irreconcilable conflicts in which case the conflicting provision of the last enactment shall prevail. The last enactment is the one which the Governor signed last.
The presumption, then, is that two acts passed during the same session that address the same subject were actuated by the same policy and that both were intended to be given effect. See Sutherland on StatutoryConstruction, § 23.17 (5th Ed., 1993); Adams v. Arthur,
As previously noted, I believe the pertinent statutes essentially conflict in that the former purports to accord two-year colleges a discretion that the latter, when read in conjunction with A.C.A. §
A person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.
Black's Law Dictionary (8th ed. 1999). This definition would clearly apply to all employees of two-year colleges, regardless of whether they were classified or non-classified. By contrast, A.C.A. §
Under the circumstances, I must apply the principles set forth above in order to determine which statute should take precedence. In my opinion, Act 971 represented an ad hoc effort to address the issue of compensation for unused sick leave in two-year colleges. The act expanded the scope of the subchapter without itself amending A.C.A. §
Given that Act 1288 was approved after Act 971, I believe a reviewing court would conclude that the provisions of Act 1288 supersede any contrary provisions in Act 971. I recognize the countervailing argument that Act 971, because it specifically addresses two-year institutions of higher learning, should take precedence over Act 1288, which more generally addresses all publicly supported institutions of higher learning. However, I do not find this reasoning persuasive. Nothing even remotely suggests that the legislature, in enacting Act 1288, intendedsub silentio to leave unaffected a statute that directly contradicts the newly amended statute's categorical statement regarding who will be statutorily entitled to compensation for unused sick leave in publicly supported institutions of higher learning. The statute clearly states that all classified employees in qualifying institutions will be subject to the compensation detailed in A.C.A. §
Although a repeal by implication is not lightly to be imputed to the General Assembly with respect to acts passed in the same legislative session, I nevertheless believe such a repeal has occurred in this case. Specifically in response to your question, then, I believe Act 971 of 2005 applies to no employees of two-year colleges, since the legislation was superseded by Act 1288 of 2005, which provides that the compensation set forth at A.C.A. §
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB/JHD:cyh