Request By:
Mr. Ronald L. Payne, CPA
Internal Auditor
City of Ownensboro
City Hall
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of May 17 in which you request an opinion concerning the following:
"The City of Owensboro has a policy of granting employees one day sick leave for each month of employment. These days are not forfeited if unused at the end of the year but are accumulated to the credit of the employee.
"In 1972 by Ordinance 146-72, the City established the policy of paying employees for their sick days accumulated in excess of 100 which were not taken during the year. The payment for these sick days is at the daily rate of pay for the employee. While the Ordinance defines this payment as compensation (see attached), these amounts are not included in the Annual Salary Ordinance nor are they listed as compensation in the annual budget.
"Therefore, I am requesting your opinion as to whether this action is legal and City funds can be used for this purpose."
The city legislative body has, we believe, under its general power the right to authorize by ordinance sick leave with pay for its officers and employes. McQuillin, Mun. Corps., § 12.201(a). On the other hand, the right to authorize payment of additional compensation in lieu of accumulated sick leave is questionable where the rate of compensation fixed for the employes as required by KRS 64.580 is exceeded and in the absence of specific statutory authority. Extra compensation is compensation over and above that fixed by law when the services were rendered and is generally not authorized. In other words, where the employe performs imposed by ordinance or statute, he is entitled to the compensation therefor as fixed by ordinance and no additional amount. See McQuillin, Mun. Corps., § 12.193. Referring to the case of
Rawlings v. City of Newport, 275 Ky. 183, 121 S.W.2d 10 (1938), we find a similar question pertaining to extra compensation for unused vacation time where the Court had this to say:
". . . The city solicitor contended that no vacation provision appeared in the salary schedule ordinance for administrative employees, while appellant sought to show that it was customary for these employees to take two weeks' vacation each year with pay. Be this as it may, there was no justification for an attempt to pay an employee for a vacation period not taken. This constituted double payment for a particular period of time." (Emphasis added).
It is possible that the city's compensation ordinance under KRS 64.580 could be changed and so worded as to provide for the payment of additional compensation for accumulated sick leave as referred to in Section 2-8.3 of Ordinance 146-72 cited in your letter, even in absence of specific statutory authority though we believe ultimately this question must be litigated.
We have found a New Jersey case styled
Camden v. Dicks, 135 N.J. Super 559, 343 A2d 808, wherein the Court declared that where upon the retirement of a city employee, the city paid to the employee 50 percent of her accumulated sick time, the action of the city was not ultra vires as claimed by the city, where the city's statutory authority was broad enough to include the payment for unused sick leave in the form of additional compensation upon retirement.
Under the facts presented and as indicated above, we seriously doubt the validity of paying city employes for unused sick leave.