Snide v. Columbus Board of Education

Francis E. Sweeney, Sr., J.

The sole issue is whether R.C. 5923.05 provides that an employee is entitled to thirty-one days of compensation for each of the multi-calendar years that he or she is on active military duty. For the following reasons, we answer this question in the negative and, accordingly, affirm the judgment of the court of appeals.

R.C. 5923.05,¹ now 5923.05(A)(1), provides, in pertinent part:

“All officers and employees of the state * * * who are members of the Ohio national guard * * * are entitled to leave of absence from their respective duties without loss of pay for such time as they are in the military service on field training or active duty for periods not to exceed thirty-one days in any one calendar year.”

While courts in Ohio have not previously addressed this issue, the language of this statute was interpreted by former Ohio Attorney General Mark McElroy, as follows:

“ * * * The statute, therefore, requires, as a condition to receipt of the benefits provided therein, that an employee change his status from an employee to an employee on leave of absence for military service and such change of status must occur prior to granting of up to 31 days pay within a calendar year.” 1962 Ohio Atty.Gen.Ops. No. 2936, at 266.

Based upon our reading of the statute, and guided by the above Ohio Attorney General opinion, we believe that the legislature intended R.C.

5923.05 to provide some additional compensation to an employee in the calendar year in which his status changes from “employee” to “employee on military leave of absence” and not as a “perk” that an individual can receive each multi-calendar year that he or she remains on active duty. Therefore, we conclude that R.C. 5923.05 provides that an employee is entitled to receive thirty-one days of compensation for the calendar year in which he or she takes a military leave of absence to go on active duty, but not for subsequent calendar years of a multi-year leave of absence.

Accordingly, the court of appeals judgment finding that the appellant was entitled to receive only thirty-one days of compensation for the calendar year 1986 is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick and Pfeifer, JJ., concur. A.W. Sweeney and Wright, JJ., dissent.

1 . R.C. 5923.05 was amended twice in 1991. However, the language of current R.C. 5923.-05(A)(1) is the same as that in former R.C. 5923.05.