Opinion No. (1979)

REQUESTED BY: John Russell, Chief Labor Relations, State Department of Personnel. If an employee who retired from state service returns within one year does the employee accrue sick leave at the rate earned upon retirement or at the new employee rate?

Does the above described employee assume the sick leave balance that accumulated prior to retirement minus the one-fourth amount paid upon retirement or does the employee begin with a zero balance as would a new employee?

Do the same answers apply to uniformed employees who retire under the State Patrol Retirement System?

The employee accrues sick leave at the new employee rate.

The employee begins with a zero balance.

Yes.

As noted in your request for an opinion, section81-1322, R.R.S. 1943, provides:

"For the purpose of sections 81-1320 to 81-1327, any state employee whose employment has been terminated, for other than disciplinary reasons, and who returns to state employment within one year from the date of such termination shall have his service for sick leave entitlement computed by combining prior continuous service with current continuous service disregarding such period of absence and shall have reinstated to his sick leave account all earned sick leave not used at the time of his departure, except that any employee who has retired or voluntarily terminated in lieu of retirement shall, if he returns to state employment, be considered a new employee for the purpose of sick leave entitlement." (Emphasis ours.)

The questions you have posed focus on the above emphasized exception in section 81-1322. The employees within that exception, i.e. those employees who return to state employment after retirement or voluntary termination in lieu of retirement, are to be treated as new employees for the purpose of ``sick leave entitlement.' The amount of sick leave to which an employee is entitled necessarily includes both present earned sick leave based on length of service and all accrued sick leave.

In our opinion, the language and sentence structure of section 81-1322, clearly indicate that an employee who returns to state service after retirement or voluntary termination in lieu of retirement, is entitled to sick leave calculated as a new employee, without regard to either the length of prior service or any unused accrued sick leave earned during prior service.

The different treatment afforded employees returning from retirement or voluntary termination in lieu thereof in regards to sick leave entitlement under section 81-1322, appears to be consistent with section 81-1325, R.R.S. 1943. Under the latter section said employees are entitled to payment of one-fourth of their accrued sick leave upon retirement or voluntary termination in lieu of retirement.

Although the language of section 81-1322 is unambiguous, we have reviewed the legislative history of LB 1003, 1974, which amended said section to include the language at issue. The legislative statement of purpose is consistent with our opinion.

Section 81-1321, R.R.S. 1943, defines state employees, for the purpose of sections 81-1320 to 81-1327, as, ``. . . any person or officer employed by the state including the head of any department or agency, except when such head is a board or commission, and who works a full-time or part-time schedule on any on-going basis.' This definition includes uniformed employees of the Nebraska State Patrol. We are unaware of any other statutory provision which would exempt said employees from the operation of sections 81-1320 to81-1327, R.R.S. 1943.

Further section 81-1325, which provides for payment of one-fourth of accumulated unused sick leave upon retirement or voluntary resignation in lieu of retirement, specifically includes, ``. . . each employee who is eligible for retirement under any existing state or federal retirement system. . .' (Emphasis ours.)

Thus we conclude that uniformed employees who retire under the State Patrol Retirement System are within the operation of sections 81-1320 to 81-1327 and for the purpose of those sections they are treated the same as other employees.