                             TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                  OFFICE OF THE ATTORNEY GENERAL

                                            State of California


                                              DANIEL E. LUNGREN

                                                Attorney General


                                ______________________________________

                     OPINION            :
                                        :          No. 94-516
                   of                   :
                                        :          September 7, 1994
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
          CLAYTON P. ROCHE              :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________


           MAJOR GENERAL TANDY K. BOZEMAN, THE ADJUTANT GENERAL,
CALIFORNIA MILITARY DEPARTMENT, has requested an opinion on the following question:

                 For purposes of determining a public employee's right to a paid military leave of
absence, is all prior military service to be counted as public agency service when calculating whether
the employee has been employed with the public agency for a minimum of one year at the time of
taking the military leave?

                                                    CONCLUSION

                 For purposes of determining a public employee's right to a paid military leave of
absence, all prior military service is to be counted as public agency service when calculating whether
the employee has been employed with the public agency for a minimum of one year at the time of
taking the military leave.

                                                      ANALYSIS

              A number of provisions of the Military and Veterans Code set forth various rights of
public employees with respect to their service in the military and naval forces. (Mil. & Vet. Code, ''
389-399.5.)1 Sections 395 and 395.01 are the focus of this request for our opinion and set forth certain
   1
    All section references are to the Military and Veterans Code unless otherwise indicated.


                                                            1.                                  94-516

benefits with respect to employment and compensation for a temporary military leave of absence.
Section 395 provides:

            "Any public employee who is a member of the reserve corps of the armed forces of
       the United States or of the National Guard or the Naval Militia shall be entitled to a
       temporary military leave of absence as provided by federal law while engaged in
       military duty ordered for purposes of active military training, encampment, naval
       cruises, special exercises or like activity as such member, providing that the period of
       ordered duty does not exceed 180 calendar days, including time involved in going to
       and returning from such duty, and provided that paid military leave of absence is not
       required for periods of inactive military duty.

            "He shall have an absolute right to be restored to his former office or position and
       status formerly had by him in the same locality and in the same office, board,
       commission, agency or institution of the public agency upon the termination of such
       temporary military duty. If the office or position has been abolished or otherwise has
       ceased to exist during his absence, he shall be reinstated to a position of like seniority,
       status, and pay if such position exists, or if no such position exists he shall have the
       same rights and privileges that he would have had if he occupied the position when it
       ceased to exist and had not taken temporary military leave of absence.

            "Any public employee who has been in the service of the public agency from which
       the leave is taken for a period of not less than one year immediately prior to the date
       upon which his temporary military leave of absence begins, shall receive the same
       vacation, sick leave, and holiday privileges and the same rights and privileges to
       promotion, continuance in office, employment, reappointment to office, or
       reemployment that he would have enjoyed had he not been absent therefrom; excepting
       that an uncompleted probationary period if any in the public agency must be completed
       upon reinstatement as provided by law or rule of the agency. For the purposes of this
       section, in determining the one year of service in a public agency all service of said
       public employee in recognized military service shall be counted as public agency
       service . . . ." (Emphasis added.)

Section 395.01 provides:

            "(a) Any public employee who is on temporary military leave of absence for
       military duty ordered for purposes of active military training, encampment, naval
       cruises, special exercises, or like activity as such member, provided that the period of
       ordered duty does not exceed 180 calendar days including time involved in going to
       and returning from the duty, but not for inactive duty such as scheduled reserve drill
       periods, and who has been in the service of the public agency from which the leave is
       taken for a period of not less than one year immediately prior to the day on which the
       absence begins shall be entitled to receive his salary or compensation as such public
       employee for the first 30 calendar days of any such absence. Pay for such purposes
       shall not exceed 30 days in any one fiscal year. For the purposes of this section, in

                                                   2.                                                94-516

         determining the one year of public agency service, all service of said public employee
         in the recognized military service shall be counted as public agency service. . . ."
         (Emphasis added.)2

                 The issue presented herein concerns the paid leave benefits contained in sections 395
and 395.01 for public employees who have served at least one year with a public agency. May a public
employee use prior miliary service as "public agency service" to meet the requirement of having been
"in the service of the public agency from which the leave is taken for a period of not less than one year
immediately prior to the day on which the military absence begins?" Or do these statutory provisions
presuppose that an employee is a "public employee," and that the qualifying one-year military service
must thereafter accrue for the special paid leave benefits to be granted? We conclude that any prior
miliary service counts as "public agency service" in determining whether an employee has met the
one-year requirement of sections 395 and 395.01 for a paid military leave of absence.

                 "In construing a statute, a court's objective is to ascertain and effectuate the underlying
legislative intent." (Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1012.) "In
determining intent, we look first to the language of the statute, giving effect to its `plain meaning.'"
(Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209.) Also "`we must examine the legislative history
and statutory context of the act under scrutiny.' [Citation.]" (Long Beach Police Officers Association
v. City of Long Beach (1988) 46 Cal.3d 736, 743.) "[T]he wider historical circumstances of its
enactment are legitimate and valuable aids in divining the statutory purpose." (California Mfrs. Assn.
v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.)

                Initially, we note that the code provisions state that "all service" in a "recognized
military service" is to be considered as "public agency service." Thus, the wording of the two statutes
appears straightforward; we may give the language its "plain meaning" to effectuate the intent of the
Legislature. Moreover, we believe that the legislative histories of these statutes remove any claim of a
latent ambiguity.

                 The basic terms of sections 395 and 395.01 have been contained in California law since
1929 (Stats. 1929, ch. 120; former ' 195), that is, the right of a public employee to attend military or
naval duty without prejudice to employment benefits and to receive 30-days compensation therefor. In
13 Ops.Cal.Atty.Gen. 6 (1949), 14 Ops.Cal.Atty. Gen. 228 (1949), and 14 Ops.Cal.Atty.Gen. 229
(1949), we examined the language of section 395 when it applied to "[e]very officer and employee of
the State, or of any county, municipal corporation, school district, irrigation district, water district, or
other district." The statute then also stated that "in determining said one year of state [qualifying]
service all service of said officer or employee in the Army of the United States, Marine Corps, Coast
Guard or other federal military service during World War II may be counted as state service for the
purposes of this section." In our three 1949 opinions we concluded that World War II service could be
"tacked on" or combined with the public agency service to meet the one-year qualification even where
the two were separated by an intervening time period. Accordingly, as we construed the statute in

    2
     Section 395.02 is a similar provision as to receipt of 30-days compensation for other than a temporary military leave of
absence.


                                                             3.                                                     94-516

1949, it could not be urged that the employee had to be a "public employee" prior to the time the one
year of qualifying military service commenced.

                In 1951 section 395 was amended, and section 395.01 and other related statutes were
enacted. (Stats. 1951, ch. 1561.) The 1951 legislation made the paid military leave and other benefits
applicable to "public employees" in general, required the one-year qualifying service to immediately
precede the beginning of the temporary military service, and provided that for purposes of the one-year
requirement "all service of said public in the recognized miliary service shall be counted as public
agency service."

                The 1951 legislation was enacted as an urgency measure. The statement by the
Legislature declaring the urgency of the enactment was as follows:

            "Due to the Korean crisis and the unsettled world conditions many thousands of
       public employees, including more than 1,000 state employees, are now on military
       leaves of absence and serving with the armed forces. The rights of such persons under
       existing provisions of the Military and Veterans Code are uncertain due to ambiguities
       in the existing law. This uncertainty has and will continue to result in delayed actions
       on the claims of such employees and has further resulted in hardship to the employees
       involved and to their families. These conditions may well affect the morale of those
       employees who are now in the armed forces and render them less able to perform their
       military duties. It is therefore necessary that this act take effect immediately." (Stats.
       1951, ch. 1561, ' 10.)

The 1951 legislation added section 389, which provides:

            "(a) As used in this chapter . . . .

            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

            "(d) `Armed forces' or `armed forces of the United States' means the `armed
       forces' as defined in Section 18540 of the Government Code.

            "(e) `Recognized military service' means service as defined in Section 18540.3 of
       the Government Code."

Section 18540 of the Government Code in turn states:

            "`Armed forces' means the United States Air Force, Army, Navy, Marine Corps,
       Coast Guard, Revenue Marine Service, and the Army and Navy Nurse Corps. Active
       service as a nurse in the American Red Cross during World War I shall be considered
       service in the `armed forces'."

Section 18540.3 of the Government Code also provides:


                                                                         4.                                    94-516

             "`Recognized military service' means full-time service by a person in the armed
        forces during the national emergency or a state military emergency."

And to complete the sequence, Government Code section 18540.1 defines "national emergency" as
"any period in which the United States is at war prior to the declaration by the Governor of a state
military emergency," while Government Code section 18540.2 defines "state military emergency" as
"an emergency declared and terminable by the Governor by proclamation during, but not limited to,
such times as the United States is conscripting personnel for service in the armed forces."

                It is thus seen that in 1951, the Legislature expanded a public employee's rights as
expressed in prior section 395 with respect to World War II service. By replacing "service during
World War II" with "recognized military service," military and naval service was broadened to include
all such service during a war, national emergency, or state military emergency. The pre-1951 "World
War II" service was, in effect, subsumed in the term "recognized military service."

                 The conclusions of our 1949 opinions -- that all prior (World War II) service is to be
counted as public agency service even when a period of time intervened between the two -- were
unaffected by the 1951 legislation. If the Legislature had disagreed with our interpretation, it easily
could have so modified the statutes in the 1951 legislation. (See Henderson v. Board of Education
(1978) 78 Cal.App.3d 875, 883 [rationale of Attorney General opinions deemed "persuasive since the
Legislature is presumed to be cognizant of that construction of the statute"].) Accordingly, the
conclusions of our 1949 opinions require expansion to include not only World War II service as "public
service," but all wartime and national emergency service, even though a period of time exists between
such military or naval service and the public agency service.

                 Given the plain wording of sections 395 and 395.01, as well as their legislative
histories, we conclude that the rationales of our 1949 opinions are to be applied to the statutes as they
read today. For purposes of determining a public employee's rights to a paid military leave of absence,
all prior military service is to be counted as public agency service when calculating whether the
employee has been employed with the public agency for a minimum of one year at the time of taking
the military leave.

                                                *****




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