Davenport v. Montgomery County

109 Ohio St. 3d 135
CourtOhio Supreme Court
DecidedMay 10, 2006
DocketNo. 2005-0074
StatusPublished

This text of 109 Ohio St. 3d 135 (Davenport v. Montgomery County) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davenport v. Montgomery County, 109 Ohio St. 3d 135 (Ohio 2006).

Opinions

Lundberg Stratton, J.

I. Introduction

{¶ 1} R.C. 124.39(B) permits a public employee with ten years of service credit to convert accrued, unused sick leave into cash upon his or her “retirement from active service.” A similar Montgomery County Court policy provides a right to convert sick leave into cash for an employee who “is retiring” at age 55 or over, with at least ten years of service credit, or who has at least 30 years of service credit. Within this context, we must determine the meaning of the phrases “retirement from active service” and “is retiring” in relationship to the right to convert sick leave to cash. We hold that unless the employer’s policy provides otherwise, “retirement from active service” means that the right to convert sick leave into cash does not arise unless the employee separates from employment at a time when he or she is eligible to retire.

II. Facts

{¶ 2} The facts in this case are not disputed. Appellants, Montgomery County and Montgomery County Courts (“the county”) employed appellee, Joyce L. Davenport, as a court reporter for the Montgomery County Court of Common Pleas beginning March 16, 1981. Because the county is a public employer, Davenport was required to contribute funds to the Public Employees Retirement System (“PERS”), a pension fund for public employees. See R.C. 145.01 et seq.

{¶ 3} On October 11, 2001, Davenport tendered her letter of resignation to the court, stating that her last day would be May 31, 2002. When she separated from service on that date, Davenport was 48 years old and had 25 years of public-service credit. While Davenport had satisfied the service-credit requirements under PERS with her 25 years of service, she had yet to satisfy the age requirement of 55.1

{¶ 4} Davenport accumulated 964.66 hours of unused sick leave during her employment with the court. Upon her separation from service, Davenport [137]*137requested that the county convert the 964.66 hours of sick leave into cash. The county refused.

{¶ 5} Davenport filed a declaratory action in the court of common pleas, requesting the court to find that, under the county policy that permits conversion of unused sick leave to cash upon retirement, she was eligible to convert her accrued unused sick leave into cash. The trial court held that the county policy permitted conversion of sick leave upon retirement only, and because Davenport did not “retire” on the date that she separated from employment, she was not eligible to convert her sick leave into cash. The court also held that the policy did not permit an employee to convert his or her sick leave upon separation of service other than retirement. Thus, the trial court entered judgment for the county.

{¶ 6} Davenport appealed. Relying primarily on two Montgomery County policies that addressed conversion of sick leave upon retirement, the court of appeals agreed that at the time Davenport separated from employment, she was not eligible to convert her accrued sick leave into cash, because she was not eligible to retire on that date. Thus, the court of appeals affirmed the trial court’s judgment in that respect. However, the appellate court also held that when Davenport turns 55 in 2009, she will be eligible to convert her unused sick leave into cash pursuant to both policies. Thus, the appellate court reversed the trial court’s judgment in part and affirmed it in part.

{¶ 7} This cause is now before this court pursuant to the acceptance of the county’s discretionary appeal.

III. Analysis

{¶ 8} Davenport argues that retirement under R.C. 124.39 does not require an employee’s separation from employment to coincide with the employee’s eligibility for retirement in order for the employee to convert unused sick leave into cash. In other words, Davenport argues that retirement for purposes of converting unused sick leave to cash under R.C. 124.39 occurs upon the date that the employee becomes eligible to retire, despite the fact that the employee separated from service years prior to being eligible to retire. Conversely, the county argues that retirement means that an employee’s separation from service must coincide with the date of the employee’s retirement. We agree with the county’s position.

A. R.C. 124.39

{¶ 9} The General Assembly has addressed conversion of sick leave for public employees in R.C. 124.39, which provides:

[138]*138{¶ 10} “As used in this section, ‘retirement’ means disability or service retirement under any state or municipal retirement system in this state.

{¶ 11} “* * *

{¶ 12} “(B) Except as provided in division (C) of this section, an employee of a political subdivision covered by section 124.38 or 3319.141 of the Revised Code may elect, at the time of retirement from active service with the political subdivision, and with ten or more years of service with the state, any political subdivisions, or any combination thereof, to be paid in cash for one-fourth the value of the employee’s accrued but unused sick leave credit. The payment shall be based on the employee’s rate of pay at the time of retirement and eliminates all sick leave credit accrued but unused by the employee at the time payment is made. An employee may receive one or more payments under this division, but the aggregate value of accrued but unused sick leave credit that is paid shall not exceed, for all payments, the value of thirty days of accrued but unused sick leave.

{¶ 13} “(C) A political subdivision may adopt a policy allowing an employee to receive payment for more than one-fourth the value of the employee’s unused sick leave or for more than the aggregate value of thirty days of the employee’s unused sick leave, or allowing the number of years of service to be less than ten. The political subdivision may also adopt a policy permitting an employee to receive payment upon a termination of employment other than retirement or permitting more than one payment to any employee.” (Emphasis added.)

{¶ 14} This provision permits employees to convert accrued, unused sick leave into cash upon retirement from active service. It also permits a political subdivision to adopt its own policy to modify certain criteria required for an employee to convert sick leave upon retirement. Finally, it permits a political subdivision to adopt a policy that permits its employees to convert unused sick leave to cash “upon a termination of employment other than retirement.”

{¶ 15} Initially, we note that neither policy in this case permits an employee to convert sick leave upon termination of employment other than upon retirement. Consequently, there is no policy herein that would have permitted Davenport to convert her sick leave to cash on May 31, 2002, the date that she separated from service, because she was not eligible to retire at that time. Therefore, we' affirm the appellate court’s judgment to that extent.

{¶ 16} However, the critical issue before this court is whether Davenport may convert accrued, unused sick leave into cash when she becomes eligible to retire. R.C. 124.39(B) provides that an employee “may elect, at the time of retirement from active service” to convert unused sick leave into cash. (Emphasis added.) The requirement to retire from “active service” means that a public employee must be employed by a public employer at the time he or she retires.

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109 Ohio St. 3d 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davenport-v-montgomery-county-ohio-2006.