Opinion
No. 40554
Decided December 20, 1967.
State employees — Severance compensation — Compensation for unused vacation leave — Employee not entitled to, when.
A state employee may not compel severance compensation for unused vacation leave acquired during the period from January 16, 1935, until November 4, 1959, under Section 154-20, General Code (now Section 121.161, Revised Code), since the right to vacation leave, which is the basis of the claim for compensation, did not survive the year in which the employee became entitled to it.
APPEAL from the Court of Appeals for Franklin County.
From January 16, 1935, until November 30, 1965, the appellant, Walter W. Sweeney, was employed by the Ohio Department of Taxation. During his 30 years of service he used little of the vacation leave to which he became entitled each year under Section 121.161, Revised Code, and its antecedents. At the termination of his employment in 1965, the appellant sought extra pay for the 2,324 hours of unused vacation leave he claimed to have accumulated during his career with the state. The Department of Taxation took the position that it could not legally make payment for anything more than the maximum amount of unused vacation leave compensable under the 1965 amendment of Section 121.161, Revised Code, which, in pertinent part, provides:
"Upon separation from state service, except for cause, an employee shall be entitled to compensation, at his current rate of pay, for the prorated portion of any earned but unused vacation leave for the current year to his credit at time of separation, and in addition shall be compensated for any unused vacation leave to his credit, with permission of the appointing authority, for the two years immediately preceding the last anniversary date of employment."
In accordance with its position, the department paid the appellant for only 460 of his claimed hours.
To compel payment for his other 1,864 hours of unused vacation the appellant then brought an action in mandamus against the Tax Commissioner in the Court of Appeals for Franklin County. The court ordered payment for all unused vacation leave acquired after the amendment of Section 121.161, Revised Code, effective on November 4, 1959, but it denied appellant recovery for any vacation leave acquired before this amendment, holding that such leave was waived to the extent it was not used during the year acquired.
The appellant now appeals to this court, the appeal being a matter of right because the case originated in the Court of Appeals. The sole question is whether compensation should have been made for unused vacation leave acquired before November 4, 1959. There is no cross-appeal.
Messrs. Lucas, Prendergast, Albright Warren and Mr. Rankin M. Gibson, for appellant.
Mr. William B. Saxbe, attorney general, and Mr. Charles S. Lopeman, for appellee.
The propriety of the holding of the Court of Appeals with respect to the period after November 4, 1959, is not before us, and, therefore, our only concern in this appeal is the period of time from January 16, 1935, until November 4, 1959. When the appellant began working for the state in 1935 the relevant part of the vacation-leave statute, Section 154-20, General Code, read as follows:
"Each employe [ sic] in the several departments shall be entitled during each calendar year to fourteen days leave of absence with full pay."
This statute was amended four times before November 4, 1959, but the language quoted above remained substantially the same. The arguments and reasoning that follow are equally applicable to the quotation above and to these subsequent amendments.
1938, 117 Ohio Laws 906, 907.
1945, 121 Ohio Laws 393.
1953, 125 Ohio Laws 677.
1955, 126 Ohio Laws 424, 425.
The appellant contends that the use of the words, "shall be entitled," and the absence of language providing for waiver of vacation leave not used during the year acquired mean that the employee acquired an absolute right to vacation leave with full pay. To convert this unused right to vacation leave with pay into severance pay, which is the subject of this action, the appellant relies upon the 1965 amendment of Section 121.161, Revised Code.
Central to the argument of appellant is the assumption that the right to vacation leave permanently survived the year in which it arose, but the statutory language belies this assumption. The words, "shall be entitled," are limited by the subsequent words, "during each calendar year." Under this language the right to vacation leave with pay is not absolute, but rather it exists only during the year in which it arises. This interpretation is supported by the fact that there is no language in the statute suggesting that an employee may accumulate vacation leave from year to year.
Any changes made by the amendment of November 4, 1959, are irrelevant to this appeal, because even if we assume that this amendment did make vacation leave a deferable right convertible into money there is still no indication from the amendment or assertion from the appellant that its policy was to be retroactive. While a statute which impairs only the rights of the state may constitutionally be given retroactive effect, State, ex rel. Dept. of Mental Hygiene Correction, v. Eichenberg, 2 Ohio App.2d 274, such effect will not be given in the absence of a clear expression of legislative intention for retroactivity, Kelley v. Kelso Loomis, 5 Ohio St. 198.
We find that in none of the versions of the vacation-leave statute having effect over the period from January 16, 1935, until November 4, 1959, does the right to vacation leave with pay survive the year in which it arises. The entire claim for compensation of the appellant is founded upon this right to vacation leave with pay, and if the right itself no longer exists then no valid claim may be founded upon it.
The judgment of the Court of Appeals with respect to the period in question on this appeal is hereby affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.