Mississippi Advisory Opinions June 27, 1994: AGO 94-0289 (June 27, 1994)

Advisory Opinion Text

Richard G. Noble, Esquire

Attorney for Indianola School District

Post Office Box 29

Indianola, Mississippi 38751

Dear Mr. Noble:

Attorney General Mike Moore received your request for an official opinion and assigned it to me for research and response. In your letter, a copy of which is attached, you state, in part, that:

We are enclosing a copy of our sick leave Policy No. GRIB which has been adopted by the Board of Trustees. We have been questioned regarding whether this leave policy complies with section 25-11-109, Miss. Code Ann . 1972 regarding accumulation from year to year of sick leave other than in the case of personal illness or physical disability of the teacher.

Therefore, we request your opinion on whether the district's policy is in compliance with the applicable state law, then please advise us accordingly . . .

From our telephone conversation, it is my understanding that the concern expressed in your letter relates to sick leave that is available for illnesses of persons other than the employee, i.e. illnesses of family members, and the use of such leave to obtain additional creditable service at retirement. The granting of such leave is contingent upon an employee exhausting the sick leave which is regularly credited for an employee's use.

This office has opined that, for retirement purposes, leave policies of non-State participants in the Public Employees' Retirement System may not be more favorable than the statutory leave provisions which apply to State employees. (See attached Opinion to Joseph F. Mooney, Jr. dated January 29, 1989). The statutory provisions governing leave for State employees are found at section 25-3-91 et seq. These sections do not provide for the crediting of additional leave to an employee contingent upon the exhaustion of leave which is regularly credited to all employees and, consequently, no such leave is available for State employees to use for purposes of obtaining additional creditable service in the Public Employee's Retirement System. Therefore, a policy granting additional leave to district employees, who have exhausted all regularly credited leave, would be more favorable than the statutory leave provisions which apply to State employees and such leave may not be used for the purpose of obtaining creditable service for retirement purposes. This opinion is limited to matters relating to the use of leave for retirement purposes and should not be construed as approving or disapproving the leave policies adopted by the district.

Very truly yours,

Mike Moore, Attorney General.

Charles T. Rubisoff, Special Assistant Attorney General.

Attachment

April 25, 1994

Hon. Mike Moore

Attorney General

State of Mississippi

Post Office Box 220

Jackson, MS 39205-0220

RE: Request for Opinion

Dear General Moore:

As the attorneys for Indianola School District, we have been requested to inquire of your office on a matter involving the sick leave for district personnel.

We are enclosing a copy of our sick leave Policy No. GBRIB which has been adopted by the Board of Trustees. We have been questioned regarding whether this leave policy complies with § 25-11-109, Miss. Code Ann . 1972 regarding accumulation from year to year of sick leave other than in the case of personal illness or physical disability of the teacher.

Therefore, we request your opinion on whether the district's policy is in compliance with the applicable state law, then please advise us accordingly. Thank you for your assistance and cooperation in this matter.

Sincerely yours, Richard G. Noble

GBRIB

PROFESSIONAL PERSONNEL

PERSONAL LEAVES AND ABSENCES

A. Sick Leave Seven (7) days each year will be allowed for absences caused by illness. Sick leave shall apply to absences caused by personal illness and absences required to attend to the illness of a person with whom there is a close family relationship.

Any unused portion of the seven (7) days' sick leave shall be carried over from one school year to the next school year infinitely.

In the event any public school certified employee transfers from one (1) public school district in Mississippi to another, any unused portion of the total sick leave allowance credited to such certified employee shall be credited to such certified employee in the computation of unused leave for retirement purposes under Section 25-11-109, Mississippi Code 1972 .

No deduction from the pay of the certified employee may be made because of illness or physical disability until after all sick leave allowance credited to such employee has been used.

Those days accumulated from year to year may be used in case personal illness or physical disability of the teacher until after all sick leave allowance credited to such teacher has been-used

In the event of absences in excess of seven (7) days as specified above, and in excess of the sick leave allowance credited to such teacher, the school district will allow an additional seven (7) days. The certificated personnel will be charged an amount per day as specified annually by the Board of Trustees for absences involving these additional thirteen (13) days. These days do not accumulate from year to year.

In cases of pregnancy, notification in writing shall be sent to the Superintendent of Schools as soon as the condition is known. Certificated employees, during the course of the pregnancy and for a reasonable time thereafter, shall be responsible for providing the Superintendent of Schools with the following information:

1. A written statement from the attending physician verifying the expected delivery date of the child;

2. A written statement from the attending physician specifying as to when, in his or her judgement, the teacher should take leave from the position of duty because of the illness;

3. A written statement from the attending physician as to when, in his or her judgement, the teacher would be able to return to the position of assigned duty.

B. Sick leave Non Certified Personnel Five (5) days each year will be allowed for absences of full time employees caused by illness. The cost of the substitute will be paid by the employee. Two of the five (5) days allowed for illness may be used for personal business there shall be no accumulation of sick days for noncertified employees. After noncertified employees have used their five (5) sick days, each additional absence will result in a charge of a full day's pay.

C. Death Absences of three (3) days each school year will be allowed to attend a funeral or funerals of a person or persons with whom the certificated employee had a close family relationship.

In addition thereto, absences of three (3) days each school year will be allowed for other funerals. The certificated employees will pay an amount per day as specified annually by the Board of Trustees.

D. Personal Business Certificated employees may be absent two (2) days, with pay, for absences on account of personal business during the school year. Such personal leave shall not be taken on the first day of the school term, the last day of the school term, on a day previous to a holiday or a day after a holiday. Personal leave may be used for professional purposes, including absences caused by attendance of such teacher at a seminar, class, training program, professional association or other functions, designed for educators. No deduction from the pay of such teacher may be made because of absence of such teacher caused by personal reasons until after all personal leave allowance credited to such teacher has been used. S37-7-307

One (1) additional day, per year, may be used for personal business. The certificated employee will pay an amount per day as specified by the Board of Trustees.

E. Jury Duty and Elections Certificated employees may be absent when summoned to court or jury duty and for duty at the polls during the election of city, county, district, state, and national officials.

F. Other Emergencies Certificated employees may be absent for causes which are adjudged by the Board of Trustees to be allowable.

For absences from duty not described in A through E of this policy statement, full per diem deduction shall be made from the salary for each day absent, unless otherwise provided in personnel policies. In all cases, the Superintendent of Schools shall be the judge of such claims and may require such evidence as may be needed to make a determination.

In addition thereto, the following regulations will apply:

A. When any materially false statement is made as to the cause of an absence, a full per diem deduction will be made for each day involved.

B. Accumulated and future sick leave will be forfeited if the absence is caused by optional dental or medical treatment which could, without medical risk, have been provided, furnished, or performed at a time school is not in session.

Legal Ref.: Mississippi Code, as cited above