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HomeMy WebLinkAboutAttorney email opinion - Servicemembers Leave of Absence, i ? , BROWN, GARGANESE, WEISS & UAGRESTA, P.A. Attorneys at Law Debra S. Babb-NutcheP Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° William E. Reischmann, Jr. J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer 'Board Certified City. County & local Government Law 'Board Certified Appellate Practice January 16, 2009 Via Cej#fied Mail Return Receipt Requested Honorable Bill McCollum Attorney General of Florida Department of Legal Affairs The Capitol PL-01 Tallahassee, FL 32399-1050 Re: City of Winter Springs Request for Legal Opinion Dear Attorney General McCollum: Gary M. Glassman Erin J. O'Leary' Amy J. Pitsch Catherine D. Reischmann° Of Counsel The undersigned is the City Attorney of the City of Winter Springs, Florida ("City'). I am writing in my capacity as City Attorney, pursuant to section 16.01(3), Florida Statutes, to respectfully request an official written legal opinion and legal advice on a question of law of statewide impact regarding the interpretation of section 115.09, Florida Statutes (2008). This section requires compensation for leave granted to public officials and employees for active military service. ISSUE Under section 115.09, Florida Statutes, are servicemembers taking a leave of absence from employment with the City due to active military service entitled to full pay for the first 30 calendar days or the first 30 working days of any such leave? FACTS The City is honored to employ several individuals who serve in the National Guard or United States Army Reserves in addition to their public service as City employees. In recent years, various employees have been ordered into active military service in Iraq and other regions of the world. Consistent with Florida law, City policy provides that the first 30 days of active duty service will be Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett Ft. Lauderdale & Tampa Vivian P. Cocotas Scott J. Domstein Robin Gibson Drage Christopher H. Hunt Katherine W. Latorrea Terri E. Oster Richard W. Withers 111 N. Orange Ave, Suite 2000 • P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: vnww.orlandolaw.net • Email: firm@orlandolaw.net Honorable Bill McCollum Page 2 with pay. See Winter Springs Resolution 2008-02, enclosed. The City's military leave policy further provides that active duty City personnel shall receive supplemental compensation authorized by statute' for a maximum of 24 months in addition to the full pay they receive for the first 30 days of leave. A question has recently arisen regarding the 30-day period for which servicemembers are entitled to full pay. Specifically, one employee recently claimed that the City should have provided him with full pay for the first 30 working days of active military service. Given the state-wide public policy implications of this issue, and in furtherance of the City's efforts to properly compensate its military employees for their dedicated service to our country, the City seeks an interpretation of section 115.09, Florida Statutes. MEMORANDUM OF LAW The Uniformed Service Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301-4331, generally prohibits employers from discriminating against employees who are members of a uniformed service. USERRA applies to employees who have been absent from work because of service in the unformed services and provides that such person shall be deemed to be on furlough or leave of absence while performing such service. 38 U.S.C. § 4316(b)(1)(A). The Act, however, does not address employees' compensation during any such military leave. In fact, military leave compensation varies from state to state based on individual state statutes. See generally Lee R. Russ, Annotation, Validity and Construction of State Statutes Requiring Employers to Compensate Employees for Absences Occasioned by Military Service, 8 A.L.R.4th 704 (1981). Chapter 115, Florida Statutes, regulates leaves of absence to officials and employees in Florida. Specifically, section 115.09 provides that officials of the state, including municipal officials, who are also servicemembers or reservists in the National Guard or United States Armed Forces "shall be granted leave of absence from their respective offices and duties to perform active military service, the first 30 days of any such leave of absence to be with full pay. § 115.09, Fla. Stat. (2008)(emphasis supplied). Section 115.14, Florida Statutes, extends the application of section 115.09 to employees. The City's military leave policy contained within its Personnel Manual is consistent with the requirements of section 115.09, providing that "the first 30 days of active duty service will be with pay Based on a plain reading of section 115.09 and the City's policy, the City has taken the position in the past that servicemembers granted leave for active military service should receive full pay for the first 30 calendar days of leave. I have been unable to find any applicable case law, previous opinion issued by your office or any other applicable legal authority specifically interpreting whether servicemembers should receive full pay for the first 30 calendar days or working days of leave. Your office has issued previous opinions interpreting the application of section 115.09 to public officials and employees; however, no opinion ever reaches the issue of whether leave is to be compensated using calendar versus working days. See, e.g., Fla. Op. Att'y Gen. 2004-02 (addressing whether leave warranted, length of unpaid leave and benefits due); Fla. Op. Att'y Gen. 2001-76 (addressing procedure 'Section 115.14, Florida Statutes, pro-zdes that the City may supplement the military pay of its employees called to active military service after the first 30 days in an amount necessary to bring their total salary, inclusive of their base military pay, to the level earned at the time they were called to active military duty. The City has opted to supplement military employees' pay pursuant to this section. Honorable Bill McCollum Page 3 to fill vacancy in office created by military leave); Fla. Op. Att'y Gen. 98-43 (providing that active duty leaves should be fully compensated for first 30 days); Fla. Op. Att'y Gen. 76-151 (addressing federal preemption); Fla. Op. Att'y Gen. 64-125 (analyzing applicability to employees of certain agency); Fla. Op. Att'y Gen. 59-84 (same). Section 250.48, Florida Statutes, is similar to section 115.09 in that it provides for leaves of absence for officers or employees of the state for all days the officer or employee is engaged in active state duty with the Florida National Guard. This section limits paid leave for active service in the Florida National Guard to "17 days at any one time." § 250.48, Fla. Stat. (2008). In Opinion 92-64, your office was asked whether public employees and officials are entitled to leaves of absence with pay for more than 17 days in an annual period when called to state duty. Your office opined that section 250.48 limits the "number of continuous days of leave" and is not confined to an annual period. Important to the issue presented, the opinion interpreted the phrase "17 days" to mean a number of continuous days, not working days. Similar to section 115.09, section 250.48 provides that leave shall be compensated for a certain number of days, not working days. It is an accepted maxim of statutory construction that a law should be construed together with and in harmony with any other statute relating to the same subject matter or having the same purpose, even though the statutes were not enacted at the same time. Mann v. Goodyear Tire & Rubber Co., 300 So. 2d 666, 668 (Fla. 1974). Both section 115.09 and section 230.48 address the paid military leave to which employees of the state are entitled. In this regard, the City contends that section 115.09 should be interpreted in the same manner that your office'interpreted section 250.48 to mean continuous (or calendar) days. Another similar statute to that of section 115.09 is also contained within Chapter 115. Section 115.07 addresses the leave entitled to certain public officers and employees engaged in military training. See § 115.07, Fla. Stat. (2008). Section 115.07(2) provides that paid leave during periods of training "shall not exceed 17 working days in any one annual period." § 115.07(2), Fla. Stat. (2008)(emphasis supplied). Interestingly, section 115.07 did not always specify that the compensated leave period was for 17 working days. When the law was first enacted in 1937, it simply provided that the rights provided by the section "shall not exceed seventeen (17) days in anyone annual period" See Ch.17975, Laws of Fla. (1937). The Legislature added the word `working"to the statute in 1985. See Ch. 85-279 s.2, Laws of Fla. (1985). In contrast, the legislative history of section 115.09 demonstrates that it has never been amended to restate or clarify the phrase "first 30 days." In fact, since its original enactment in 1941, section 115.09 has consistently provided servicemembers performing active military service full pay for "the first 30 days of any such leave." See Ch. 20718, Laws ofFla. (1941). Sections 115.09 and 115.07 were both enacted during the World War II era and both of these sections address leaves of absence for public employees serving in the military and how such leaves should be compensated. Through the years, each section has been amended from time to time; however, only section 115.07, providing for leaves during periods of military training, was amended to provide for a specified number of working days. When a statute is amended, it is presumed that the Legislature intended it to have a meaning different from that accorded to it before the amendment. See Smitli v. Fla. Dept of Corrections, 961 So. 2d 1050, 1052 (Fla. I st DCA 2007)(citing Sam's Club v. Bair, 678 So. 2d 902, 903 (Fla. I st DCA 1996)). If the Legislature had intended for both sections to provide paid leave for a specified number of working days, Honorable Bill McCollum Page 4 the Legislature could easily amend section 115.09. The Legislature had an opportunity to do so in 1985 when section 115.07 was amended but did not. The fact they did not demonstrates the Legislature intended for section 115.09 to have a different meaning and application than 115.07. Moreover, to determine legislative intent, courts will first look to the plain language of a statute. See Blanton v. City of Pinellas Park, 887 So. 2d 1224, 1230 (Fla. 2004). The phrase "of any such leave" in section 115.09 plainly demonstrates that the 30-day period is representative of the leave itself, not the employee's working days. Thus, it is the City's position that a plain reading of section 115.09, Florida Statutes, calls for servicemembers to receive full pay for the first 30 calendar days of active duty service beginning on their activation date, through and including the thirtieth day thereafter. That is, the City will compensate the servicemember in the same manner as if the servicemember were still present and working for the City for 30 calendar days. Paying servicemembers in excess of what they would have earned when not on leave is simply not supported by a plain reading of the statute and would effectuate a legislative increase in apublic employee's regular salary in any given 30-dayperiod. See Exhibit "A," attached hereto. An analysis of the Legislature's use and definition of the word "day" in other chapters of the Florida Statutes further supports the City's position that "30 days" should be interpreted to mean "30 calendar days." For example, sections 211.01(5), 475.01(8), 607.01401(6) and 681.102(5), Florida Statutes, each expressly define the word "day" to mean calendar day. Furthermore, an examination of the State of Florida's application of section 115.09 in its Human Resource Program Guidelines for Active Duty Military Leave, enclosed herein, also demonstrates consistency with the City's interpretation. The University of Florida, the largest public university in the state, similarly applies section 115.09 to compensate its employees for the first 30 calendar days of active military service, as evidenced in the University's Extended Leave of Absence Form and as relayed on the website for the University's Office of Human Resource Services, copies of which are both enclosed herewith for your review. Nothing in Chapter 115 evidences the Legislature's intent to compensate public officials and employees in an amount greater than their regular pay during periods of military service. In fact, the Legislature specifically implemented legislation to ensure that employees called to active duty receive their "full pay," that is, the same pay they would have received for the first 30 days had they not been ordered into military service. § 115.09, Fla. Stat. Furthermore, the Legislature enacted an additional provision of law to permit public employers to supplement an employee's military pay to bring their total salary "to the level earned at the time they were called to active military duty." § 115.14, Fla. Stat. Had the Legislature intended to compensate military personnel for more than their full pay or for 30 working days, it could have taken express legislative action to do so. The plain language of section 115.09, Florida Statutes, clearly intends to provide employees the same compensation they would have received from their public employment during those 30 calendar days had they not been on active military duty. CONCLUSION In light of the analysis and legal authority cited above, it has been the City's position that employees ordered into active military service are entitled to leave of absence with full pay for the first 30 calendar days of any such leave. The City desires to compensate each of its employees consistent Honorable Bill McCollum Page 5 with the requirements of the law and requests this opinion of your office in order to ensure that City employees also serving the United States through military service receive the appropriate compensation intended by the Legislature. In sum, the City respectfully requests a legal opinion interpreting section 115.09, Florida Statutes, specifically regarding whether servicemembers, when placed on leave due to active military duty, are entitled to full pay for the first 30 calendar days or working days. I have enclosed for your reference, the legal authority and the applicable portions of the legislative history discussed herein, as well as City Resolution 2008-02 setting forth the City's military leave policy. Please don't hesitate to contact my office if you have any questions or require additional information regarding the foregoing. S' r Anthony A. Garganese, City of Winter Springs City Attorney Enclosures Cc: Kevin Smith, Acting City Manager (w/o enclosures) Mayor and City Commission (w/o enclosures) EXHIBIT "A" For illustration purposes only: City employs a person who earns a $24,000 annual salary or $2,000 per calendar month. There are five working days in each of the 52 weeks of the year (260 working days). However, assuming that the 10 Federal holidays of 2009 are not "working" days, there are only 250 "working" days in the year 2009. The aforementioned employee is called to active military duty and is placed on leave. 1. Full pay for the first 30 calendar days = $2,000.00, which represents the monthly amount that the employee would normally receive had they not been called to active duty. 2. Full pay for the first 30 working days = $2,880.00, which represents payment for each working day based on an average daily compensation rate of pay as calculated below. ($24,000 salary/250 working days = $96.00 per day X 30 days) Thus, under this illustration, the employee would make an additional $880.00 if called to active military duty.