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Harryman v. Roseburg Fire Dist

Oregon Supreme Court
Nov 10, 1966
244 Or. 631 (Or. 1966)

Summary

holding that an employer could not revoke a contract term that had allowed payout of unused accumulated sick leave upon termination of employment with respect to already earned leave

Summary of this case from Meister v. Pub. Emps. Ret. Bd.

Opinion

Argued October 6, 1966

Affirmed November 10, 1966

Appeal from Circuit Court, Douglas County.

DON H. SANDERS, Judge.

Edward M. Murphy, Roseburg, argued the cause for appellant. On the brief were Stults, Jayne Murphy, Roseburg.

No appearance for respondent.

Before McALLISTER, Chief Justice, and PERRY, O'CONNELL, DENECKE and REDDING, Justices.


AFFIRMED.


This is an action to recover the value of unused sick leave accumulated by plaintiff while employed by defendant. Defendant appeals from a judgment in favor of plaintiff.

Plaintiff was employed as a fireman by defendant. His employment was terminated on June 1, 1965, at which time he had accumulated 47 days of sick leave. Defendant refused to pay for the accumulated time on the ground that its sick leave provision allowed compensation only where there was an excused absence from work due to illness, and on the ground that the provision had been revoked prior to plaintiff's termination of employment. The provision, adopted by the board of directors of defendant at a special meeting on June 29, 1960, was as follows:

"Sick Leave:

"One (1) day per month, up to 90 days, Cash On termination."

This language would seem to have no meaning other than to express the purpose of making provision for unused sick leave accumulated by an employee prior to the termination of his employment. The officers of defendant understood this to be the defendant's policy. In a written declaration of policy issued in 1964 and signed by the chairman and secretary of the board of directors, the following statement was made:

"If and or when an employe leaves the employment of the district, the employe will remain on the pay roll and receive wages the same as if the employe were on sick leave, and continue until such time all the employe's accumulated sick leave is used. Such pay will be mailed to the employe each pay period by the pay master and will be classified as Sick Leave Pay.

"However the employe shall retain the right to receive all accumulated sick pay in one lump payment."

Defendant argues that even if the sick leave provision is to be construed as plaintiff contends, the provision was not lawfully adopted because it was voted upon at a special meeting on June 29, 1960, notice of which did not specify the consideration of sick leave as a proposed item of business. We find it unnecessary to pass upon the sufficiency or the necessity of notice in the circumstances of this case because these questions were not properly presented to the trial court. Defendant objected to introduction of the minutes of the special meeting on the ground noted above. The trial court held that the minutes were admissible and that the validity of the action taken by the board of directors at the meeting was a question separate from the admissibility of the minutes. Defendant did not raise the question of the validity of the meeting in any other way. Consequently, the trial judge was never given the opportunity to rule directly upon the validity of the meeting.

Moreover, if the question had been raised directly, it is quite possible, indeed probable, that plaintiff could have shown that the action taken at the June 29th meeting was subsequently ratified by the board. In fact, the trial judge was of the opinion that there was evidence sufficient to support a finding of ratification by the board.

The evidence established that other employees had been paid for accumulated sick leave under board policy — payment which could be made only after positive action by the board.

Defendant argues that ORS 294.100 (1) and 294.326 (1) prohibit it from expending money unless budgeted in compliance with the local budget law and that the sum which plaintiff seeks to recover was not budgeted. Defendant budgeted a certain amount for personal services. Plaintiff seeks compensation for personal services. The claim, therefore, falls within an item of the budget. It is possible that plaintiff's claim, along with other claims for sick leave compensation, will result in expenditures in excess of the budgeted item. But an expenditure in excess of the amount designated for a budgeted item does not violate the statute requiring an item to be budgeted.

Finally, defendant contends that allowance for sick leave was a gratuity and, therefore, when the board revoked the sick leave provision, whatever rights plaintiff had were terminated. Defendant relies upon Halek v. City of St. Paul, 227 Minn. 477, 35 N.W.2d 705 (1949), which holds that sick leave granted to city employees is a mere gratuity creating in the employee a mere expectancy which can be abolished by the city without compensation. We take a different view. When plaintiff entered upon his employment with defendant he was advised that he would receive an allowance for accumulated sick leave upon termination of employment. He accepted employment upon the assumption that the allowance for sick leave was a part of his compensation for services. Since it was a part of the inducement to accept employment, it can be regarded as a contractual term of plaintiff's employment. Defendant could not, therefore, deprive plaintiff of the allowance after he had earned it.

See Adams v. City of Modesto, 53 Cal.2d 833, 3 Cal Rptr 561, 350 P.2d 529 (1960); Ramey v. Public Service Comm., 296 Mich. 449, 296 N.W. 323 (1941).

Judgment affirmed.


Summaries of

Harryman v. Roseburg Fire Dist

Oregon Supreme Court
Nov 10, 1966
244 Or. 631 (Or. 1966)

holding that an employer could not revoke a contract term that had allowed payout of unused accumulated sick leave upon termination of employment with respect to already earned leave

Summary of this case from Meister v. Pub. Emps. Ret. Bd.

In Harryman v. Roseburg Fire Dist., 244 Or 631, 420 P2d 51 (1966), for example, the defendant employer adopted a sick leave policy that provided for cash in lieu of accumulated sick leave upon termination from employment.

Summary of this case from Moro v. State

In Harryman v. Roseburg Fire Dist., 244 Or 631, 420 P2d 51 (1966), a public employer represented that it would allow employees to accumulate unused sick leave and pay them for it when they terminated employment.

Summary of this case from Strunk v. Public Employees Retirement Board

In Harryman, a fireman commenced work under a retirement rule that said that he was entitled to receive pay for unused sick leave on retirement if authorized by the employer, and that the system would accept unused sick leave pay as the basis for calculating the retirement benefit.

Summary of this case from Oregon State Police Officer's Assn. v. State of Oregon

invalidating retrospective application of a decision by a fire district that terminated an accrued sick leave rule

Summary of this case from Oregon State Police Officer's Assn. v. State of Oregon

In Harryman v. Roseburg Fire Dist., 244 Or. 631, 420 P.2d 51 (1966), we held that an employee was entitled to be paid for unused sick leave at the termination of his employment when such payment was authorized at the time he was employed, even though such authorization was subsequently, during his employment, discontinued.

Summary of this case from Taylor v. Mult. Dep. Sher. Ret. Bd.

In Harryman v. Roseburg Fire Dist., 244 Or. 631, 420 P.2d 51 (1966), for example, the defendant employer adopted a sick leave policy that provided for cash in lieu of accumulated sick leave upon termination from employment.

Summary of this case from Horton v. Prepared Media Laboratory, Inc.

In Harryman v. Roseburg Fire Dist., 244 Or. 631, 420 P.2d 51 (1966), the Supreme Court held that a public employer may not unilaterally revoke a provision allowing payment for unused accumulated sick leave at the time of termination.

Summary of this case from Brett v. City of Eugene

In Harryman v. Roseburg Fire Dist., 244 Or. 631, 420 P.2d 51 (1966), the court considered whether a fireman was entitled to sick pay on termination.

Summary of this case from Adams v. Schrunk
Case details for

Harryman v. Roseburg Fire Dist

Case Details

Full title:HARRYMAN v. ROSEBURG RURAL FIRE PROTECTION DISTRICT

Court:Oregon Supreme Court

Date published: Nov 10, 1966

Citations

244 Or. 631 (Or. 1966)
420 P.2d 51

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