Opinion
No. 76-988
Decided May 4, 1977.
School employees — Retirement — Payment for accumulated, unused sick leave — Employee not covered, when — Former R.C. 143.291, construed.
APPEAL from the Court of Appeals for Muskingum County.
Plaintiff retired from defendant school system on August 1, 1973, at which time he had accumulated 132 days of unused sick leave.
On January 19, 1974, defendant school board adopted a policy authorizing payment to retiring employees for a portion of their accumulated, unused sick leave. Such payments were not authorized to anyone who retired before December 19, 1973.
Plaintiff then commenced the present action in the Court of Common Pleas seeking judgment for "the value of the 132 days which plaintiff had accumulated at his rate of pay at the time of his retirement."
The Court of Common Pleas held that R.C. 143.291 placed an obligation on the defendant school board "to pay all or part" of a retiree's unused sick leave, and, since the board "did not determine that persons in the plaintiff's situation were to receive a portion or part of their accumulated sick leave such persons are entitled to receive all of said accumulated sick leave." The court determined that "the words, `to the extent consistent' modify the words `all or part' and simply mean that such employee is entitled to all of his unsued sick leave unless the school board provides otherwise."
R.C. 143.291, effective on August 1, 1973 (135 Ohio Laws Pt. I 83, 124), provided, as pertinent here:
"All other employees covered by Section 143.29 of the Revised Code and those covered by Section 3319.141 of the Revised Code shall at the time of their retirement receive pay for all or part of their unused sick leave to the extent consistent with the policy in effect in the employing unit."
The Court of Appeals affirmed the trial court's judgment, except for a modification of the interest rate, and the allowance of the board of education's motion to certify the record brings the cause to this court for review.
Mr. Richard E. Bridwell, for appellee.
Mr. John C. Rosenberger, city solicitor, for appellant.
At the time plaintiff retired, August 1, 1973, the authority for a board of education to make a cash payment to a retiring employee for unused sick leave was R.C. 143.291, which provided that such persons "shall at the time of their retirement receive pay for all or part of their unused sick leave to the extent consistent with the policy in effect in the employing unit."
Under R.C. 143.291, a retiree is not entitled to payment for his unused sick leave simply because his employer board of education did not have, in effect at the time of his retirement, a policy forbidding such payment. Rather, it is manifest from a reading and the history of that statute that the General Assembly conditioned a retiree's right to payment for unused sick leave on the board's having in effect a policy concerning payment for unused sick leave, and that payment therefor be "to the extent consistent" with such policy.
See the legislative history set out in State, ex rel. Assn., v. Bd. of Edn. (1976), 48 Ohio St.2d 139.
In the recent case of State, ex rel. Assn., v. Bd. of Edn. (1976), 48 Ohio St.2d 139, 141, this court held that a public school employee who retired at a time when such employees were "not covered by the statutes which authorized cash payments for accrued sick leave credit," and whose employing unit did not have a policy for cash payment of accrued sick leave, was not entitled to a writ of mandamus compelling the employer board of education to pay him for his unused sick leave.
On August 1, 1973, at the time of plaintiff's retirement, defendant board of education did not have any policy in effect regarding payment to retirees for unused sick leave. Therefore, plaintiff is not entitled to the payment he seeks for his accumulated, unused sick leave. State, ex rel. Assn., v. Bd. of Edn., supra.
Accordingly, the judgment of the Court of Appeals is reversed and final judgment is entered for defendant board of education.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, SWEENEY and LOCHER, JJ., concur.
P. BROWN, J., not participating.