|Legal Opinion: |
Text of Document: August 7, 2007
Re: Firefighters’ pay under military leave statute
Dear City Manager,
Your MTAS Management Consultant has advised me of your question regarding how much pay firefighters are entitled to under state statute T.C.A. §8-33-109. This law provides that public employees who are serving as military reservists are required to be paid for 20 days of work during the time of their military leave, per year. In my opinion, and in the opinion of Senior Legal Consultant Sid Hemsley, the Tennessee Legislature intended that public employees be paid for 8 hour days under the statute, rather than the 24 hour shifts firefighters often work.
There is no case or Attorney General Opinion interpreting this specific question under the Tennessee statute, but there is a Court of Appeals opinion interpreting a similar statute adopted by Indiana. In the case Koppin v. Strode, 791 N.E.2d 455 (Ind. App. 2002), the Court of Appeals determined that an Indiana statute providing for 15 days paid military leave for public employees must be interpreted as 15 days of 8 hour shifts. The Court reasoned that the legislature did not distinguish between different classes or types of employees:
...the purpose of Ind. Code § 10-2-4-3 was to provide state public employees with military leave rights comparable to those of federal public employees and to further state and federal policy encouraging participation in military duty. Within that framework, we see no indication of legislative intent to treat differently some public employees. Rather, because the statute makes no distinctions between classes or types of public employees, we believe that the legislature intended to treat all public employees equally with regard to military service....If we were to accept Employees’ position, effectively each employee would be treated differently based on the type of shift he or she works. In this case, Employees would receive up to 360 hours of paid military leave, while a similarly situated firefighter working a more traditional forty hour, Monday through Friday work week would be paid for only 120. This cannot be the result that the legislature intended: to treat public employees differently based upon their unique work schedules.
Koppin, at 462 (emphasis added). The Indiana statute uses very similar language to the Tennessee statute, so this case is instructive in our analysis of the statutory language and intent.
There is no language in this Tennessee law which differentiates between different classes or types of employees, and no indication that public safety employees are to be treated differently than other public employees. “Public employee” is defined in the act as “any person holding a position in public employment who has successfully completed the probationary period required by the agency in which such person is employed.” T.C.A. § 8-33-101(1)(B)(3).
The cardinal rule of statutory construction is the intent of the legislature. Another rule of statutory construction is that statutes are given a plain and simple reading and without straining their language. The rules of statutory construction are an aid to the courts to find legislative intent. Where a statute is unambiguous, the courts will look no further than the face of the statute to find its intent, and give it a plain reading. [Roddy Manufacturing Co. v. Olsen, 661 S.W.2d 868 (Tenn. 1983); Neff v. Cherokee Insurance Co., 704 S.W.2d 1 (Tenn. 1986); McClain v. Henry I. Siegel Co., 834 S.W.2d 295 (Tenn. 1992); State ex. rel. Metro. Gov’t v. Spicewood Creek Watershed Dist., 848 S.W.2d 70 (Tenn. 1993); Van Pelt v. State, 246 S.W.2d 87 (1952).]
The Tennessee Attorney General has opined that this law is not ambiguous in opinions issued in 2000 and 2001. In Attorney General Opinion No. 00-093, the AG opined that the Act applies to part time employees, as that class of employees was not excluded by the statutory language. Likewise, in Attorney General Opinion No. 01-169, the AG opines that the Act applies to members of the Tennessee Army and Air National Guard, although these branches of the armed forces are not specified in the language of the statute. The Attorney General states that the statute is unambiguous, and the intent of the legislature may be ascertained from the natural and ordinary language used. The intent, according to the AG, is to apply the statute equally to all public employees.
In my opinion, the Tennessee Employees in Military Service Act is unambiguous, particularly with regard to the definition of public employee and application to all public employees in the same manner. For that reason, the legislative intent to treat public employees the same, without differentiating between classes and types of employees, is clear, and public employees are all entitled to the same benefits under the law.
Accordingly, the 20 days of paid leave required under the Act must be interpreted as meaning the typical 8 hour shifts worked by the vast majority of public employees. Firefighters who work 24 hour shifts are not entitled to receive pay for 20 days of 24 hour shifts under this law. The City should rather determine what 8 hours of pay amounts to for those firefighters, and pay them for 20 days, at 8 hours per day for military reservist leave.
If the 24 hour shift worked by firefighters includes 8 hours for sleep time, it is appropriate to exclude that 8 hours when calculating their hourly rate of pay. In that situation, the shift is actually a 16 hour work shift, and may be divided in half to determine what the firefighter is paid for 8 hours of work. To include the sleep time in the calculations will bring that number down, and the firefighters may argue they are being unfairly penalized if sleep time is included when making the calculation.
I hope this information is helpful. Please let me know if you need further information or assistance in this matter.
Melissa A. Ashburn