Opinion No. 1992-186

Jay Bradford

Attorney General of Arkansas — Opinion
Opinion Delivered August 14, 1992

WINSTON BRYANT, Attorney General

The Honorable Jay Bradford State Senator P.O. Box 8367 Pine Bluff, AR 71611

Dear Senator Bradford:

This is in response to your request for an opinion regarding Act 673 of 1991, which is codified at A.C.A. §§ 6-17-306 (Cum. Supp. 1991), 21-4-102 (Cum. Supp. 1991) and 21-4-212 (Cum. Supp. 1991). Your specific questions in this regard are as follows:

1. Due to the shift work of a fireman who works 24-hour shifts then off 48 hours, or a total of 10 shifts per month, what constitutes a day for military leave purposes?
2. When a fireman reports to duty for 24 hours, the first hours will be on one day, and the remainder shall ride over to the next working day. Our duty shifts begin at 8 a.m. and run through 8 a.m. the next day. Can a person who is off for 4 hours be charged for one day against his leave day?
3. Can the days given (15) be broken down into hours absent from duty, eight hours constituting a work day?

With regard to your first question, although there are no Arkansas cases addressing this precise issue, the analysis employed in at least one Arkansas Supreme Court decision compels me to conclude that a day for military leave purposes under A.C.A. § 21-4-102 would be construed to mean an eight-hour work day.[1] The court in City of Fort Smith v. Brewer,255 Ark. 813, 502 S.W.2d 643 (1973) determined that the amount of holiday pay to which firemen are entitled should not be based upon a “tour of duty,” or a 24-hour work shift in that instance. Further discussion of this case appears in Attorney General Opinion 91-233, a copy of which is enclosed. It was concluded in Opinion 91-233 that for purposes of A.C.A. § 14-53-107 (1987), which grants firemen an annual vacation of “fifteen (15) days,” the term “days” should be construed to refer to 8-hour rather than 24-hour shifts.

It is my opinion, based upon the similarity of language in §21-4-102, that this same conclusion applies and that a day for military leave purposes would be construed to mean an eight hour work day.

With regard to your remaining two questions, the statute offers no guidance in this regard. The Uniform Attendance and Leave Policy Act for state employees indicates, with regard to vacation and sick leave, that the leave may be calculated on an hourly basis. See A.C.A. §§ 21-4-204 (1987) and 21-4-207 (Cum. Supp. 1991) (the minimum charge for absence on account of annual leave and sickness, respectively, “shall be one (1) hour”). The military leave provision in question, which applies to employees of both the state and its political subdivisions, does not contain this language. Thus, it might be contended, in response to your third question, that the person who is off for four hours could be charged for one day against his leave.

The absence of clear authority in the statute to charge for less than a full day is not, however, in my opinion necessarily conclusive. The details in application are perhaps best left to the employing entity, with an eye toward the manner in which vacation and sick leave are currently administered. Seegenerally Brewer, supra. If vacation and sick leave are broken down into hours absent from duty, this may be a reasonable approach in the case of military leave, which is granted in similar increments. This matter should probably be referred to local counsel who would be most familiar with these procedures.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.


WINSTON BRYANT Attorney General



[1] This is the relevant Code section under your question. Subsection (a) of § 21-4-102 (Cum. Supp. 1991) states in pertinent part that “[a]ll employees of the state . . . or any of its political subdivisions who desire to take a leave of absence for the purpose of participating in the military training programs made available by the National Guard or any of the reserve branches of the armed forces . . . shall be entitled to such leave of absence for a period of fifteen (15) days plus necessary travel time for annual training requirements or other duties performed in an official duty status in any one (1) calendar year.”