   OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

   JOHN    CORNYN




                                                October 22,200l



Ms. Pallie J. Wallace                                      Opinion No. JC-0427
Kleberg County Auditor
700 East Kleberg Street                                    Re: Whether a monetary value transfers with
Kingsville, Texas 78363                                    sick-leave time as an employee contributes it to a
                                                           sick-leave pool under chapter 157, subchapter E
                                                           of the Local Government Code and then as
                                                           another employee withdraws the time, and related
                                                           questions (RQ-0394-JC)


Dear Ms. Wallace:

          A county may establish a county sick-leave pool to which employees may transfer sick-leave
time and from which an eligible employee, facing catastrophic injury or illness, may draw when the
employee has exhausted all the accrued paid leave and compensatory time to which the employee
is entitled. See TEX. LOC. GOV’T CODE ANN. $5 157.072(a), 157.075(a) (Vernon 1999), amended
by Act of May 15,2001,77th       Leg., R.S., ch. 493, $ 1, sec. 157.075(a), 2001 Tex. Sess. Law Serv.
890. You ask four questions about a county’s sick-leave-pool program:

                    [ 1.1 Whether or not it is permissible for a county to set up a sick
                leave pool with contributed hours, but no money attached to the hours
                to support the pool.

                     [2.] Whether or not accrued sick leave contributed to the county
                 sick leave pool, as discussed in Local Government Code [slection
                 157.074, includes unvested sick leave.

                           Whether or not an employee may contribute unvested sick
                 leave to the county sick leave pool mentioned in Local Government
                 Code [slection 157.074.

                     [4.] Whether or not it is proper for a county to deduct the value
                 of donated sick leave from the department of the person requesting
                 the sick leave. Or, should the value of the donated sick leave come
                 from the department of the employee donating the sick leave hours.’



        ‘Letter from Ms. Pallie J. Wallace,   Kleberg   County Auditor,   to Honorable   John Cornyn,   Texas Attorney
                                                                                                          (continued...)
    Ms. Pallie J. Wallace     - Page 2                     (JC-0427)




             To a certain extent, your questions involve the application of various accounting principles
    to the transfer of sick leave to and from a sick-leave pool. Resolving these application issues
    requires the determination of fact issues, which this office is not qualified to undertake. See Tex.
    Att’y Gen. Op. No. JM-477 (1986) at 3 (declining to determine whether generally accepted
    accounting principles would require hospital to keep financial record of certain transactions because
    issue is question of fact).

             We understand your first and last questions to involve the same issue: whether a monetary
    value accompanies sick-leave time as it is contributed from one employee to the pool and then from
    the pool to the employee who withdraws time. Accordingly, we answer them together. We conclude
    that, when sick-leave time is contributed from an employee to the sick-leave pool, and then
    withdrawn from the sick-leave pool by another employee, the statute contemplates that a value
    transfers with the time itself. See TEX. LOC. GOV’T CODE ANN. 55 157.074(b), .075(b) (Vernon
    1999).

            Your second and third questions appear to involve different sides of the same issue, and so
    we answer them together. We conclude that a county sick-leave pool may include “unvested sick
    leave” and, consequently, an employee may contribute unvested sick leave to the sick-leave pool.

             You explain that Kleberg County has instituted a sick-leave-pool program under chapter 157,
    subchapter E of the Local Government Code, see Request Letter, supra note 1, at 2, and we
    accordingly examine that statute to determine the extent of the county’s authority. A commissioners
    court may exercise only those powers that the constitution and statutes confer upon it, but it has
    broad implied powers to accomplish its lawful directives. See Guynes v. Galveston County, 861
    S.W.2d 861,863 (Tex. 1993); see also TEX. CONST. art. V, 4 18; Canales v. Laughlin, 214 S.W.2d
    45 1, 453 (Tex. 1948) (stating that county may exercise broad discretion in conducting county
    business, but legal basis for any action must be in constitution or statutes); Tex. Att’y Gen. Op. No.
    JC-0171 (2000) at 1 (stating that county commissioners court has limited jurisdiction and may
    exercise only those powers that are explicitly or implicitly conferred upon it).

             A county’s authority to establish a sick-leave-pool program is created and limited by chapter
    157, subchapter E of the Local Government Code. See TEX. LOC. GOV’TCODE ANN. ch. 157, subch.
    E title (Vernon 1999). C$ generally TEX. GOV’T CODE ANN. ch. 661, subch. A (Vernon 1994 &
    Supp. 2001) (“State Employee Sick Leave Pool”), amended by Act of May 15,2001,77th Leg., R.S.,
.   ch. 387, 8 1, sec. 661.003, 2001 Tex. Sess. Law Serv. 672. Section 157.072(a) of the Local
    Government Code authorizes a county commissioners court to establish a program “to allow an
    employee to voluntarily transfer sick leave time earned by the employee to a county sick leave
    pool.” TEX.LOC. GOV’TCODEANN. 5 157.072(a) (Vernon 1999); seealso id. 5 157.071(2) (defining
    “employee”). Section 157.072(b) permits a county “with a population of one million or more” to
    allow an employee to voluntarily transfer vacation leave time to a county sick-leave pool. Id.




            ‘(...continued)
    General (June 14, 200 1) (on file with Opinion Committee) [hereinafterRequest Letter].
Ms. Pallie J. Wallace   - Page 3                  (JC-0427)




8 157.072(b). Section 157.073 authorizes the county commissioners       court to develop the parameters
of the sick-leave-pool program and to designate an administrator:

                   (a) The commissioners   court may adopt rules and prescribe
               procedures and forms relating to the operation of the county sick
               leave pool program. The commissioners court by rule may require an
               employee to:

                        (1)       enroll in the county sick leave pool as a condition for
               eligibility . . . ; and

                        (2)   transfer at least one day of accrued sick leave time or
               if allowed under Section 157.072(b), accrued vacation leave time
               earned by the employee as a condition of enrollment.

                  (b) The commissioners      court shall designate        a person     to
               administer the county sick leave pool program.

                   (c) The commissioners    court shall determine which injuries
               and illnesses are classified as catastrophic for purposes of this
               subchapter. . . .

TEX. LOC. GOV’TCODEANN. 5 157.073 (Vernon 1999), amended by Act ofMay 15,2001,77th Leg.,
R.S., ch. 493, 5 1, sec. 157.073(a), 2001 Tex. Sess. Law Serv. 890; see also id. 8 157.071(l)
(defining “administrator”).

        An employee who wishes to contribute time to the county sick-leave pool may do so by
applying to the administrator, using the form that the commissioners court prescribed under section
157.073(a). See id. 5 157.074(a). If the administrator approves the transfer, “in a fiscal year the
employee may transfer” one to five days of the employee’s accrued sick-leave time, “or accrued
vacation leave time in a county operating under [slection 157.072(b).” Id. 5 157.074(b). An
employee who is terminated or who resigns or retires may transfer up to ten days of accrued sick-
leave time, “or, if allowed under [slection 157.072(b), accrued vacation leave time,” to take effect
immediately before the termination, resignation, or retirement becomes effective. Id. 9 157.074(c),
adopted by Act of May 15,2001,77th Leg., R.S., ch. 493,s 2, sec. 157.074(c), 2001 Tex. Sess. Law
Serv. 890. Upon receiving the transferred accrued leave time, the administrator must “credit the pool
with the amount of time” the employee has contributed and must “deduct the same amount of time
from the amount to which the employee is entitled, as if the employee had used the time for personal
purposes.” Id. 5 157.074(b) (Vernon 1999).

        An employee “is eligible” to apply to withdraw time contributed to the county sick-leave
pool “if, because of a catastrophic injury or illness, the employee has exhausted all the accrued paid
leave and compensatory time to which the employee is otherwise entitled[.]” Id. 5 157.075(a),
amended by Act of May 15, 2001, 77th Leg., R.S., ch. 493, 9 3, sec. 157.075(a), 2001 Tex. Sess.
Ms. Pallie J. Wallace    - Page 4                   (JC-0427)




Law Serv. 890. But see Tex. Att’y Gen. Op. No. DM-129 (1992) at 3 (concluding that municipal
sick-leave pool may not provide additional benefits to employee for work already performed). If the
administrator approves the withdrawal, he or she credits “the time to the employee, and the employee
may use the time in the same manner as sick leave earned by the employee in the course of
employment .” TEX. LOC. GOV’T CODE ANN. 6 157.075(b) (Vernon 1999). An eligible employee
may not withdraw more time than “the lesser of one-third of the total amount of time in the pool or
180 days.” Id. 5 157.075(c), amended by Act of May 15,2001, 77th Leg., R.S., ch. 554, 5 1, sec.
157.075(c), 2001 Tex. Sess. Law Serv. 1009.

         We understand that your first and fourth questions derive from a situation affecting your
office.2 We understand that an employee of your office requested and received a number of hours
from the county’s sick-leave pool. Id. Because, as you state, “[n]o money is attached to the hours
at the time of donation, and a policy on whose budget is responsible for the money associated with
the donated sick leave has not been formalized,” Request Letter, supra note 1, at 2, the county
treasurer billed your office for the cost of the sick leave. Telephone conversation, note 2. You
question whether this deduction from your office’s budget comports with the statute. Id.

         Paid sick leave, to which we assume you refer, has a monetary value. It is a form of
compensation for some purposes. See Tex. Att’y Gen. Op. No. DM-129 (1992) at 2 (indicating that
sick leave is compensation for purpose of article III, section 52 of Texas Constitution). It represents
time that an employee may be absent from work for medical reasons, yet receive normal salary or
wages for that time. See id. at 4 (stating that employee who contributes sick leave to pool
relinquishes right to use “paid sick leave”). Furthermore, although a county does not pay an
employee extra when he or she uses sick-leave time, the county has a cost, to which it can assign
some value. The county may adopt rules defining the value of the sick leave or directing how
differences in the value of employees’ sick-leave time will be accommodated. See TEX.LOC. GOV’T
CODE ANN. 5 157.073 (Vernon 1999) amended by Act of May 15,2001,77th               Leg., R.S., ch. 493,
5 1, sec. 157.073(a), 2001 Tex. Sess. Law Serv. 890 (providing county with rule-making authority).

         In our opinion, the statute contemplates that a value transfers with the time itself, even
though it refers primarily to the transfer of time. Under section 157.074(b), when an employee
contributes time to the sick-leave pool, the administrator credits the pool with the amount of time
the employee contributed and deducts “the same amount of time from the amount to which the
employee is entitled, as if the employee had used the time for personal purposes.” TEX.LOC. GOV’T
CODE ANN. 5 157.074(b) (Vernon 1999). When another employee withdraws time from the sick-
leave pool, the time is transferred from the pool to the withdrawing employee, and the administrator
credits the time to the withdrawing employee.         See id. 5 157.075(b). Thus, the withdrawing
employee receives additional sick-leave time coincident with the transfer from the pool before the
sick-leave time is deducted from the employee’s available sick leave. But the program makes sense
only if a value transfers with the sick-leave time.




        2See Telephone conversation with Pallie Wallace, Kleberg County Auditor (Aug. 21, 2001) [hereinafter
Telephone conversation].
Ms. Pallie J. Wallace   - Page 5                  (JC-0427)




        The statute does not specify how the contribution or withdrawal should affect the
departments of the employees involved in the transaction. In accordance with its authority to “adopt
rules and prescribe procedures . . . relating to the operation of the county sick leave pool program,”
see TEX. Lot. GOV'T CODE ANN. 5 157.073(a) (Vernon 1999) amended by Act of May 15,2001,
77th Leg., R.S. ch. 493, 9 1, sec. 1,157.073(a), 2001 Tex. Law Serv. 890, the commissioners court
is authorized to formulate county policy specifying how the transfer of sick-leave time and its
accompanying value affects departmental budgets.

         Your second and third questions do not stem from the fact situation you described, but are
 more general. You explain that “[slick leave for Kleberg County employees is not a vested benefit
 as the county has no obligation to make payment on accrued sick leave hours when the employee
 terminates, whereas vacation time is a vested benefit for these employees.” Request Letter, supra
 note 1, at 2 (footnote omitted). You wish to know whether a county sick-leave pool may accept
 unvested sick leave and, stated another way, whether an employee may contribute unvested sick
 leave to the county sick leave pool. Id. at l-2. In your view, “based on generally accepted
 accounting principles and Financial Accounting Standard No. 43,” employees should not be able
 to donate unvested sick-leave hours but only vested vacation hours.           Id. at 2. You state
 that “[g]overnmental     generally accepted accounting principles . . . and Financial Accounting
 Standard . . . No. 43 indicate that sick leave is not a vested benefit for employees when the
 governmental     entity” is not obligated to pay the employee for accrued sick leave when the
 employment is terminated. Id. at 2 n. 1. By the term “unvested” sick-leave time, we understand you
to refer to sick-leave time for which an employee will not be paid if the employee leaves his or her
job with the county.

         We conclude that, under the statute, sick-leave time that is contributed to the county’s pool
need not be vested. Chapter 157, subchapter E does not distinguish between vested and unvested
sick leave. Rather, it allows a county to establish a sick-leave pool so that an employee may transfer
any sick leave he or she has earned to the pool. See TEX. LOC. GOV'T CODE ANN. 8 157.072(a)
(Vernon 1999). Section 157.074 permits an employee to transfer “accrued sick leave time,” without
specifying that the leave be vested.

        Additionally, in a county of your county’s size, an employee may donate to the pool only sick
leave. Section 157.072(b), which permits a county “with a population of one million or more” to
allow an employee to voluntarily transfer vacation leave time to a county sick-leave pool, does not
apply to your county because of the population requirement. See 1 BUREAU OF THE CENSUS,U.S.
DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics: Texas 3
(1992) (population: 30,274). Thus, in your county, vacation time may not be donated.


                                                                                        .
Ms. Pallie J. Wallace   - Page 6                (X-0427)




                                      SUMMARY

                        With respect to a county sick-leave pool established under
               chapter 157, subchapter E of the Local Government Code, amonetary
               value transfers with the sick-leave time from a contributing employee
               to the pool and then to the withdrawing employee. See TEX. LOC.
               GOV’T CODE ANN. $5 157.074(b), .075(b) (Vernon 1999). A county
               commissioners court is authorized to adopt rules governing how the
               transfer affects departmental budgets. A sick-leave pool may receive
               contributions of, and an employee may contribute to a sick-leave
               pool, unvested sick leave.

                                             Yo   sverytrul   ,



                                            4 i
                                             JOl!fN
                                                   CL-

                                                      CORNYN
                                             Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
