OAG 1994-009.

• Case Date: March 18, 1994
• Court: Ohio

Ohio Attorney General Opinions 1994. OAG 1994-009. March 18, 1994OPINION NO. 1994-009The Honorable R. Alan Corbin Brown County Prosecuting Attorney200 East Cherry StreetGeorgetown, Ohio 45121Dear Prosecutor Corbin:You have requested an opinion concerning the proper disposition of vacation leave and sick leave benefits earned by a person while employed in the office of the clerk of courts. Information provided by the clerk of courts indicates that the employee about whom you ask had been employed full time in the office of the clerk of courts for a number of years prior to Friday, February 26, 1993, when she terminated her employment in order to retire under the Public Employees Retirement System (PERS). On the following Monday, March 1, 1993, the individual became reemployed in the same position in the clerk's office, again on a full-time basis. Further, the clerk has indicated that this person's employment has not been governed by any collective bargaining agreement. Based upon these facts, you ask the following questions:1.

Pursuant to ORC 124.39(B), does the employee have the option to NOT receive the cash value of the unused sick leave? (maximum 1/4 of 120 days) or may the employee carry the unused sick leave forward and use after reemployment[?]

2.

Is the employee required to take cash payment for [accrued] but unused vacation leave...at time of retirement, or is the employee permitted to carry time forward and use as a county employee?

3.

What is the proper "years of service figure" to use when calculating vacation leave? Does the employee start as a new employee or do the total years of service count?

I. Employees of Clerk of Courts

R.C. 325.17 authorizes various county officers, including the clerk of the court of common pleas, to hire employees for their offices and to fix their compensation. The compensation of the clerk's employees is paid from moneys appropriated to the clerk's office by the board of county commissioners and "shall be paid biweekly from the county treasury, upon the warrant of the auditor." R.C. 325.17. Thus, for purposes of compensation, employees of the clerk of the court of common pleas are county employees.

II. County Employees' Sick Leave Benefits

A. Accrual

Sick leave benefits are provided for county employees generally by R.C. 124.38, which provides that each employee "shall be entitled for each completed eighty hours of service to sick leave of four and six-tenths hours with pay."(fn1) R.C. 124.38 sets forth permissible uses of sick leave and the manner in which such leave shall be deducted from each employee's credit. With certain exceptions, R.C. 124.38 provides that "[u]nused sick leave shall be cumulative without limit."

B. Payment for Unused Sick Leave

Payment for accumulated, unused sick leave earned under R.C. 124.38 is governed by R.C. 124.39, which states in pertinent part:

As used in this section, "retirement" means disability or service retirement under any state or municipal retirement system in this state.

....

(B) Except as provided in division (C) of this section, an employee of a political subdivision covered by [R.C. 124.38 or R.C. 3319.141] 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 his 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.

(C) A political subdivision may adopt a policy allowing an employee to receive payment for more than one-fourth the value of his unused sick leave or for more than the aggregate of thirty days of his 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.

Notwithstanding [R.C. 325.17] or any other section of the Revised Code authorizing any appointing authority of a county office, department, commission, or board to set compensation, any modification of the right provided by division (B) of this section, and any policy adopted under division

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