May 16, 2001
Honorable R. Thomas Wagner, Jr.
Auditor of Accounts
Office of Auditor of Accounts
Thomas Collins Building
Dover, DE 19901 D370A
RE: Use of Compensatory Time to Offset Time Spent in Dual Employment
Dear Mr. Wagner:
You have asked whether a State of Delaware employee can use previously earned compensatory time ("comp" time) to make up for hours missed while serving in another position as an elected or appointed state official. For the following reasons, we believe that comp time cannot be used in this manner.
Subchapter III of Title 29, Delaware Code Annotated, establishes a general prohibition for State employees against receiving pay from more than one tax-funded source for work performed during coincident hours of the work day. Subsection (a) of 29 Del. C. § 5822 requires that any State employee--who also serves in a separate elected or paid appointed position--must have his or her pay reduced for hours or days missed while performing duties in the elected or paid appointed position during the employee's normal working hours. There is a further prohibition in subsection (d) against such employee making up those missed work hours outside of the normal working hours. The one exception to these prohibitions is in subsection (e), which allows the employee to use accrued vacation or personal days to offset the time that would otherwise have been deducted due to the employee's work at the elected or appointed position. In essence, you have asked whether this provision can be interpreted to include comp time.
When applicable to government employees, comp time is a unique benefit. Comp time is not merely a form of paid leave: it is earned on an hour for hour basis when an employee performs work-related duties under particular circumstances. Johnson v. Department of Youth Services, Ohio App., 2000 WL 1877572 (2000). For Fair Labor Standards Act ("FLSA") covered state employees, it can be used in lieu of overtime pay. 29 U.S.C. § 207(o)(1). Paid leave in the form of annual leave or sick leave, on the other hand, is generally a statutory entitlement that accrues based upon the number of months worked by an employee. 29 Del. C. §§ 5905 and 5933. Personal days as well are statutory entitlements reserved primarily for employees of the State's public school districts. 14 Del. C. § 1318(f).
There is no express statutory designation of comp time for State of Delaware employees in the Delaware Code. Pursuant to 29 Del. C. §§ 5914 and 5933(a), however, the Director of State Personnel is authorized to create the so-called "merit rules" for individuals in the State's classified service, including, rules for "annual, sick and special leaves of absence...". (Emphasis added). Under the broad category of "special" leave, the merit rules contain provisions for comp time. Under Merit Rule 5.1320, an employee covered by the Fair Labor Standards Act ("FLSA") must be given either overtime pay or time off at one and one-half hours for every hour worked over the standard work week of either 37.5 or 40 hours. Merit Rule 5.1321 allows comp time for FLSA exempt employees in the classified service. This is provided on an hour per hour basis for work "required and authorized" beyond the standard work week hours. The Judicial Branch Personnel Rules 5.1220 and 5.1221 mirror the Merit Rules 5.1320 and 5.1321.
State employees who are in so-called "exempt" positions also have no specific statutory provision permitting them to accrue comp time. Unlike State employees in the classified service, however, exempt employees cannot avail themselves of the merit rule provisions pertaining to comp time. In accordance with 29 Del. C. § 5905, exempt employees are limited to accruing sick leave and annual leave. There is nothing noted in this section regarding the accrual of either overtime or comp time. This would be a logical omission, as the concept of accruing and banking comp time is at odds with the concept of the overtime-exempt, salaried employee. If an employee is paid a salary to do the work, no matter what the time required in any given day, there should be no reason to keep track of overtime or comp time. Accord Johnson v. Department of Youth Services, 2000 WL 1877572. Generally, therefore, comp time cannot be accrued as a matter of right if there is no statutory or regulatory authorization for it. See State v. Bogenrife, Alaska Supr., 513 P.2d 13, 16 (1973); See also Baley v. State of Illinois, Ill. Ct. Cl., 35 Ill.Ct.Cl. 663 (l982); Contrast Kersh v. Montgomery Developmental Center, Ohio App., 519 N.E.2d 665 (l987).
There are precedents, however, that establish a right to comp time through means of collective bargaining, individual contracts, and written government policy. Accord King v. State, Neb. Supr., 614 N.W.2d 341 (2000); Dias v. State, Department of Institutions, Colo. App., 740 P.2d 545 (1987). There have even been situations where the regular practice of a state agency has been sufficient to require the provision of comp time. See also Wilson v. City of Charlotte, 964 F.2d 1391 (4th Cir., 1992). The unofficial practice of providing comp time to overtime-exempt, salaried employees exists in some agencies of the State of Delaware. See, e.g., State of Delaware v. Glascock, Del. Super., No. 97A-01-001, Graves, J. (July 14, 1997)(Memorandum Opinion)(receipt of comp time by Internal Affairs Investigator at the Department of Correction--an exempt position--was factor in determining whether investigator's death was work related). Whether there is a legally enforceable right to utilize that comp time is not entirely clear.
For employees in the classified service who can accrue it validly(1), comp time may be used within a reasonable period after making a request if the use does not unduly disrupt the operations of the public agency. 29 U.S.C. § 207(o)(5). Comp time also must be used within a reasonable period of time of its accrual. Under Director of State Personnel's Rule #1, with certain exceptions, any comp time not used within 180 days of accrual is forfeited.
As to whether valid comp time can be used to offset time spent in a dual employment situation, one must first refer to the statute addressing dual employment. As previously noted, 29 Del. C. §§ 5821 and 5822 contain the general prohibitions against drawing two publicly funded salaries for work performed during coincident hours of the work day. The only exception to the pay reduction provision is for vacation and personal leave which are statutory entitlements.
In theory, comp time could be used in the same manner as vacation and personal leave to offset the time spent at the elected or paid appointed position for which a deduction would otherwise be made. The present statute, however, makes no exception for the use of comp time in the same manner as vacation and personal leave. Under the guidelines for statutory construction an exception for comp time cannot be inferred. As a general rule of statutory construction, where there is an enumerated exception in a statute, this indicates a legislative intent that the statute will be applied to all cases not specifically excepted. See State Board of Medical Examiners v. Warren Hospital, N.J. Super., 246 A.2d 78, 83 (1968); Horner v. Andrzjewski, 811 F.2d 571, 575 (9th Cir., l987); See also Quinn v. Keinicke, Del. Super., 700 A.2d 147, 160 (l996). Absent some history of a legislative intent to the contrary, no additional exceptions can be inferred. Id.; Quinn v. Keinicke, 700 A.2d at 156. This is the case here.
The Delaware General Assembly incorporated within the statute itself findings regarding dual employment. See 29 Del. C. § 5821. In subsection (c), the General Assembly states that "[t]he State should have in place clear policies and procedures to ensure that the taxpayers of the State ... are not paying employees or officials from more than 1 tax-funded source...." (Emphasis added). It must be presumed from the clear statutory provisions thereafter enacted that the legislature intended the specific exceptions for vacation and personal leave--and only those exceptions. Moreover, by stating in Subsection 5822(d) that time spent in the elected or paid appointed position cannot be made up during time other than the employee's normal working hours, the General Assembly has expressed an intent to exclude comp time as an exception. Comp time by its very nature can only be earned outside the employee's normal working hours. Consequently, until such time as the General Assembly amends the provisions of Section 5822 to include additional exceptions, no others may be inferred.
Should you have any further questions, please do not hesitate to contact
me at my office.
Very truly yours,
Kevin R. Slattery
Deputy Attorney General
APPROVED:
Malcolm S. Cobin
State Solicitor
Xc. The Honorable M. Jane Brady
Attorney General
Mr. Philip G. Johnson
Opinion Coordinator
1. Under the Merit Rules, in order for comp time
to be valid, it must normally be authorized in advance by the employee's
supervisors. See Merit Rule 5.1310.
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