Opinion No. 78-279 (1978) Ag

• Court: Oklahoma Attorney General Reports
• Decided: December 11, 1978
• Status: Published

Opinion

STATE OFFICERS AND EMPLOYEES

Employment tenure within the unclassified or classified service may be transferred to the other respective service in the computation of leave accrual rates. The Attorney General is in receipt of your request for an opinion wherein you ask the following: Is employment tenure for leave accrual purposes transferable from the unclassified service to the classified service? Merit System Rule No. 1410 establishes leave accrual rates within the classified service and provides as follows: "1410 Annual Leave. A permanent employee with less than five (5) years of continuous service shall be entitled to annual leave with full pay computed at the rate of 1 1/4, working days (10 hours) for each calendar month of service; and a permanent employee with more than five (5) years of continuous service shall be entitled to annual leave with full pay computed at the rate of 1 1/2 working days (12 hours) for each calendar month of service. For purposes of this rule, continuous service shall mean total service in a permanent or probationary subsequently permanent status within the classified service (including continuous service immediately proceeding inclusion of position under the merit system), provided no more than thirty (30) calendar days have elapsed during a transfer or resignation/reinstatement proceeding. If more than thirty (30) days have passed, such period shall mark a break in service. Leave without pay in excess of thirty (30) days may not be considered as additional service for leave accrual purposes; however, it is not to be considered a break in service." I have been advised that in the past the State Personnel Board has interpreted the above leave regulation as being applicable to the classified and unclassified services separately; that is, continuous service in one status is not transferable to the other for purposes of determining an employee's leave accrual rate. It is the opinion of the office of the Attorney General that the above interpretation is in error and should be modified for the following reasons. In the past, leave regulations for employees of the unclassified service were determined by Title 74 O.S. 708 [74-708]. This statute was subsequently repealed in 1976 by Senate Bill 586 (Section 2). Section 1 of the above Senate Bill amended 74 O.S. 803 [74-803] (1971) to read as follows: "74 O.S. 803 [74-803] Unclassified Service Offices and positions in the unclassified service are in no way subject to any of the provisions of this Act or of the rules and regulations promulgated hereunder by the State Personnel Board except leave regulations promulgated under the provisions of 74 O.S. 805 [74-805] of this Act. No person chosen by election or appointment to fill an elective office shall be subject to any leave plan or regulation, nor shall such person be eligible for accrual of any leave benefits." Pursuant to the authority granted under Section 805 the Rules of the Merit System of Personnel Administration were promulgated including Merit System Rule 1410. The obvious intention of 74 O.S. 803 [74-803] and the repeal of 74 O.S. 708 [74-708] was to promote uniformity in leave regulations for both the unclassified and classified service. To interpret that Merit System Rule 1410 provides that continuous service in one status is not transferable to the other for purposes of determining leave would be contrary to the above legislative intent, would favor one status over the other, and seems to also be inconsistent with that portion of the rule which states "continuous service shall mean total service in a permanent or probationary subsequently permanent status within the classified service (including continuous service immediately proceeding inclusion of position under the merit system)." The obvious intent of both the rule and statute is to place unclassified and classified employees with continuous service in either status upon equal footing in the computation of leave rates of accrual. It is, therefore, the opinion of the office of the Attorney General that your question be answered as follows: Employment tenure within the unclassified or classified service may be transferred to the other respective service in the computation of leave accrual rates. (JOHNNY J. AKINS) (ksg)