When a police officer works 12-hour shifts, does Arkansas count a 'working day' of sick leave as 8 hours or 12?

Plain-English summary

Many Arkansas police officers work 10- or 12-hour shifts, so a question that recurs throughout the state is what "working day" means for sick-leave accrual under Ark. Code Ann. § 14-52-107. The statute says officers accumulate sick leave at "twenty (20) working days per year" up to a cap of 60 days (or up to 90 days by city ordinance). It does not define "working day."

Representative Mark Lowery asked AG Leslie Rutledge three questions about how that term should be construed. Op. Att'y Gen. 2012-078 had previously held that "working day" means 8 hours for purposes of the parallel vacation-leave statute, Ark. Code Ann. § 14-52-106. Did the same definition apply to sick leave? If so, what happened to officers who had been accruing sick leave under municipal ordinances that defined "working day" as 10 or 12 hours? And what about the retirement/death payout cap in subsection (c)?

The AG's answers drew on the Arkansas Supreme Court's parallel firefighter cases and the absence of a comparable amendment to the police sick-leave statute.

Question 1: Does "working day" mean 8 hours under § 14-52-107? Yes. The Arkansas Supreme Court held in Donaldson v. Taylor, 327 Ark. 93, 936 S.W.2d 551 (1997), that "working day" meant an 8-hour day, not a tour of duty or a 24-hour shift, for the parallel firefighter sick-leave statute (Ark. Code Ann. § 14-53-108). The language of § 14-52-107 is "almost identical" to § 14-53-108. After Donaldson, the legislature amended the firefighter statute (Act 1828 of 2005) to define "working day" as the actual on-duty period within a 24-hour cycle. But the legislature did not similarly amend the law-enforcement sick-leave statute (§ 14-52-107). A 2011 bill (Senate Bill 776 of the 88th General Assembly) would have done so, but it did not pass. The AG reasoned that a court would likely apply Donaldson's eight-hour reading to police sick leave.

The AG believed the answer to the follow-up question (can a city use 10- or 12-hour working days?) was no. Hours, vacations, holidays, and other fringe benefits of municipal employees are "state affairs and subject to the general laws of the State of Arkansas" under Ark. Code Ann. § 14-43-601(a)(1)(G), and a municipality cannot legislate "contrary to the general laws of the state" under Ark. Const. art. 12, § 4 and Ark. Code Ann. § 14-43-601(a)(2)(B). She predicted that a court would read "working day" as eight hours and find a conflicting 10- or 12-hour ordinance contrary to state law.

Question 2: Can officers retain previously credited sick-leave hours above the statutory maximum? The AG answered conditionally. If a court reads 'working day' as eight hours, an ordinance defining it otherwise would conflict with state law, and an officer would be unlikely to retain hours accrued above the statutory maximum. How that affects any particular officer's balance is a factual question the AG did not decide. Footnote 13 cites Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000), and Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999), about payments under unlawful ordinances; the opinion does not order repayment of sick-leave benefits.

Question 3: Can a city pay out 60-90 working days of sick leave at retirement or death even if that exceeds 90 calendar days of pay? Probably not, but the AG was uncertain. Section 14-52-107(c) says the payout "shall not exceed sixty (60) days' salary unless the city, by ordinance, authorizes a greater amount, but in no event to exceed ninety (90) days' salary." The AG read "days' salary" as a calendar-day pay measure, not a working-day measure. So if 90 working days of sick leave at 12 hours each would yield more pay than the officer would normally receive in 90 calendar days, the payout cap would block the excess. But the statute is not entirely clear, and the AG recommended legislative clarification.

The opinion stitches together statutory interpretation with a practical roadmap for cities trying to align their ordinances with state law.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the legislature treat firefighters and police differently here?
After Donaldson, the legislature amended the firefighter statute (§ 14-53-108) to redefine 'working day' as the actual on-duty period. It did not similarly amend the police statute (§ 14-52-107). Footnote 7 notes that a 2011 bill proposing a comparable police definition did not pass.

What about police officers who have accumulated 90+ days at 12-hour shifts under their city ordinance?
The AG said that, if a court adopts the eight-hour reading and the city's ordinance conflicts with it, an officer would be unlikely to retain sick leave above the statutory maximum. She did not determine how that rule affects any particular officer's balance.

Why is the legislature said to be unclear about the retirement payout cap?
Section 14-52-107(c) speaks in "days' salary" but the accrual provision in (a) speaks in "working days." The AG read "days' salary" as a calendar-day pay measure, but the text does not explicitly say so. A reasonable reading would cap the payout at the value of 90 calendar days' worth of salary at the officer's regular rate, regardless of how many working-day units the officer has accrued. The AG signaled this is a place where the General Assembly should clean up the statute.

Does this affect vacation leave the same way?
Vacation leave is governed by Ark. Code Ann. § 14-52-106 and was already addressed by Op. Att'y Gen. 2012-078. The same 8-hour rule applies there. The current opinion extended that reasoning to sick leave under § 14-52-107.

What about non-officer municipal employees?
The opinion is about law enforcement specifically. Other municipal employees may be governed by different statutes or by city ordinances that don't conflict with state law. Each category needs its own analysis.

Should cities revise their police compensation ordinances?
The AG believed a court would likely read 'working day' in § 14-52-107 as eight hours and would find a conflicting 10- or 12-hour ordinance contrary to state law. A city considering changes should review its ordinance and affected balances with local counsel; this opinion did not decide individual balances or order clawback.

Background and statutory framework

Arkansas's municipal law-enforcement sick-leave statute, Ark. Code Ann. § 14-52-107, sits alongside parallel statutes for vacation (§ 14-52-106) and for firefighter sick leave (§ 14-53-108). Each speaks in "working days," and each was once subject to the same interpretive uncertainty about whether a "working day" was 8 hours or the actual length of a shift.

Donaldson v. Taylor, 327 Ark. 93, 936 S.W.2d 551 (1997), construed § 14-53-108 (firefighter sick leave) to mean 8 hours. City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973), had earlier construed § 14-53-107 (firefighter vacation) the same way for purposes of holiday-pay calculations.

After Donaldson, the legislature passed Act 1828 of 2005, which amended § 14-53-108(a)(1)(B) to redefine "working day" for firefighters as the on-duty period within a 24-hour cycle (with a 12-to-24-hour range when on duty for 12 or more hours). That nullified Donaldson for firefighters. But the legislature did not amend § 14-52-107 (police sick leave) to the same effect, and Senate Bill 776 of the 88th General Assembly (2011) was a failed attempt to do so. The AG considered the unamended police statute in predicting how a court would read it.

Op. Att'y Gen. 2012-078 had previously concluded that "working day" means 8 hours for purposes of § 14-52-106 (police vacation). The current opinion extended that reasoning to § 14-52-107 (police sick leave).

The municipal-power-versus-state-law analysis runs through Ark. Code Ann. § 14-43-601, Ark. Const. art. 12, § 4, and the City of Ft. Smith v. O.K. Foods line of cases. Footnote 13 cites Burke v. Elmore and Massongill v. County of Scott as examples involving health insurance payments under unlawful ordinances; the AG did not decide that any officer here must repay benefits.

Citations

Statutes and constitutional provisions:

• Ark. Code Ann. § 14-52-106 (police vacation leave)
• Ark. Code Ann. § 14-52-107 (Supp. 2019) (police sick leave)
• Ark. Code Ann. § 14-52-107(a)(1), (2) (accrual rate and cap)
• Ark. Code Ann. § 14-52-107(c) (retirement/death payout)
• Ark. Code Ann. § 14-53-107 (firefighter vacation)
• Ark. Code Ann. § 14-53-108 (firefighter sick leave; "working day" redefined post-Donaldson)
• Ark. Code Ann. § 14-43-601(a)(1)(G) (Repl. 2013) (municipal employee benefits as state affairs)
• Ark. Code Ann. § 14-43-601(a)(2)(B) (no ordinance contrary to state law)
• Ark. Const. art. 12, § 4 (no municipal corporation may pass law contrary to general laws of state)

Cases:

• Donaldson v. Taylor, 327 Ark. 93, 936 S.W.2d 551 (1997) ("working day" = 8 hours for firefighter sick leave)
• City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973) ("working day" = 8 hours for firefighter vacation)
• City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987) (ordinances conflicting with state law are invalid)
• Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000) (health insurance benefit repayment under an unlawful ordinance, cited in footnote 13)
• Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (reimbursement of health insurance payments under an unlawful ordinance, cited in footnote 13)

Prior opinions referenced:

• Op. Att'y Gen. 2012-078 ("working day" = 8 hours for § 14-52-106)
• Op. Att'y Gen. 2019-029 (AG declines factual determinations)
• Act 1828 of 2005 (firefighter sick-leave amendment)
• Senate Bill 776 of the 88th General Assembly (2011) (failed police "working day" amendment)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2020-015
July 21, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Mark Lowery
State Representative
229 Summit Valley Circle
Maumelle, AR 72113-5934

Dear Representative Lowery:

This is in response to your request for an opinion regarding several provisions in Ark. Code Ann. § 14-52-107. You have asked the following questions:

1) While many law enforcement officers work ten or twelve hour shifts, Ark. Op. Atty. Gen. No. 2012-078 indicates that the term "working days" is equivalent to an 8-hour period in terms of the provision of vacation leave required by Ark. Code Ann. § 14-52-106. Would the same definition apply to Ark. Code Ann. § 14-52-107(a)(1) and (2)? Are municipalities permitted to use a ten or twelve hour day to calculate the maximum annual accrual of 20 working days and the maximum permitted total accrual of 90 days?
2) May police officers be permitted to retain the accrued hours of sick leave previously credited in excess of the statutorily permitted maximum in Ark. Code Ann. § 14-52-107 after the municipal code has been changed to comply with the statute?
3) Pursuant to Ark. Code Ann. § 14-52-107(c), which governs the minimum and maximum amount of sick leave that may be paid out to a municipal law enforcement officer upon retirement or death, would a municipality be permitted to pay out 60-90 "working days" (either eight or twelve hour shifts) of sick leave pay at death or retirement if that exceeds the amount of pay the employee would normally be paid for a 90-calendar-day period (assuming that the municipality had adopted a period of more than sixty (60) days of salary by ordinance)?

RESPONSE

The answer to your first question is "yes." A court would likely construe the term "working day" to mean an eight-hour period for purposes of Ark. Code Ann. § 14-52-107(a)(1) and (2) and a municipality would not be permitted to use a different period to calculate the accrual. In response to your second question, if an officer accrues sick leave under an ordinance that is determined to conflict with state law, and the accrued hours are determined to exceed the statutorily permitted maximum, an officer could not retain those excess hours. The answer to your third question is less clear. I believe a reviewing court would probably find that a municipality may not pay out sick leave at death or retirement in an amount that exceeds the pay the employee would normally receive during a 90-calendar-day period. However, the statute is not entirely clear in this regard, and legislative clarification is warranted.

DISCUSSION

Question 1: While many law enforcement officers work ten or twelve hour shifts, Ark. Op. Atty. Gen. 2012-078 indicates that the term "working days" is equivalent to an 8-hour period in terms of the provision of vacation leave required by Ark. Code Ann. § 14-52-106. Would the same definition apply to Ark. Code Ann. § 14-52-107(a)(1) and (2)? Are municipalities permitted to use a ten or twelve hour day to calculate the maximum annual accrual of 20 working days and the maximum permitted total accrual of 90 days?

Ark. Code Ann. § 14-52-107 addresses uniform sick leave for law enforcement officers. Subdivisions (a)(1) and (2) of that statute provide as follows:

> (a)(1) From and after April 11, 1969, all law enforcement officers, regardless of their titles, such as city marshal, employed by cities of the first and second class or incorporated towns shall accumulate sick leave at the rate of twenty (20) working days per year beginning one (1) year after the date of employment.
>
> (2) If unused, sick leave shall accumulate to a maximum of sixty (60) days unless the city or town, by ordinance, authorizes the accumulation of a greater amount, in no event to exceed a maximum accumulation of ninety (90) days, except for the purpose of computing years of service for retirement purposes.

This statute does not define "working day," nor have courts interpreted that phrase for purposes of this statute. However, in Donaldson v. Taylor, the Arkansas Supreme Court examined what constitutes a "working day" for purposes of Ark. Code Ann. § 14-53-108, which addresses firefighter sick leave. It construed the term to mean an eight-hour day, rather than a "tour of duty" or a twenty-four hour work shift.

I believe a court would reach a similar conclusion if asked to construe a "working day" for purposes of law enforcement sick leave under section 14-52-107. The language of the statute at issue in Donaldson (section 14-53-108) is almost identical to the language of section 14-52-107. Furthermore, in response to Donaldson, the Arkansas General Assembly amended the law granting sick leave to municipal firefighters. One of the changes redefined "working day" to mean "that period of time a firefighter is on duty within a twenty-four hour period," clarifying that "[i]f the firefighter is on duty for twelve (12) hours or more in a twenty-four (24) hour period, a working day shall be not less than twelve (12) hours or more than twenty-four (24) hours." Although these amendments nullified Donaldson for purposes of computing firefighter sick leave, the legislature did not similarly amend section 14-52-107, the corresponding statute governing law enforcement sick leave. Had the legislature intended for law enforcement officers working longer shifts to be able to accrue and use sick leave days that consisted of more than eight hours, it easily could have done so. But because the legislature has not amended section 14-52-107, a court would likely apply Donaldson and construe a "working day" to mean eight hours for purposes of computing law enforcement sick leave.

In response to your follow-up question whether municipalities can choose to calculate the accrual of "working days" under section 14-52-107 based on 10- or 12-hour periods, I believe the answer is "no." The "[h]ours and vacations, holidays, and other fringe benefits of [municipal] employees" are "state affairs and subject to the general laws of the State of Arkansas …." A municipality may only legislate upon such state affairs if the municipal ordinance does not conflict with state law. The legislature has provided that law enforcement officers "shall accumulate sick leave at the rate of twenty (20) working days per year" and that such "sick leave shall accumulate to a maximum of sixty (60) days unless the city or town, by ordinance, authorizes the accumulation of a greater amount, in no event to exceed a maximum accumulation of ninety (90) days …." Because the Arkansas Supreme Court has interpreted the term "working days" in similar statutes to refer to an eight-hour period, it is likely that a court would construe section 14-52-107's use of the term to refer to an eight-hour period as well. Thus, a municipal ordinance that defined a "working day" as a 10- or 12-hour period for purposes of section 14-52-107 would be contrary to state law.

Question 2: May police officers be permitted to retain the accrued hours of sick leave previously credited in excess of the statutorily permitted maximum in Ark. Code Ann. § 14-52-107 after the municipal code has been changed to comply with the statute?

As noted above, cities may not pass ordinances that conflict with state law. Such ordinances are invalid.

If a court were to determine that section 14-52-107's use of the term "working day" refers to an eight-hour period, an ordinance defining the term differently would be contrary to state law. Therefore, it is unlikely that an officer would be able to retain sick leave accrued under that ordinance in excess of the statutorily permitted maximum. But how this interpretation of the statute would affect any particular officer's accrued hours under any particular ordinance is ultimately a question of fact that is outside the scope of this opinion.

Question 3: Pursuant to Ark. Code Ann. § 14-52-107(c), which governs the minimum and maximum amount of sick leave that may be paid out to a municipal law enforcement officer upon retirement or death, would a municipality be permitted to pay out 60-90 "working days" (either eight or twelve hour shifts) of sick leave pay at death or retirement if that exceeds the amount of pay the employee would normally be paid for a 90-calendar-day period (assuming that the municipality had adopted a period of more than sixty (60) days of salary by ordinance)?

The subsection in question states in pertinent part:

> (c) If, at the end of his or her term of service, upon retirement or death, whichever occurs first, any police officer has unused accumulated sick leave, he or she shall be paid for this sick leave at the regular rate of pay in effect at the time of retirement or death. Payment for unused sick leave in the case of a policeman or officer, upon retirement or death, shall not exceed sixty (60) days' salary unless the city, by ordinance, authorizes a greater amount, but in no event to exceed ninety (90) days' salary.

The first rule in considering the meaning and effect of a statute is to construe its text just as it reads, giving the words their ordinary and accepted meaning in common language. The courts will construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. When the language of the statute is plain and unambiguous, there is no need to resort to the rules of statutory interpretation.

When these principles are applied, it first bears noting that subsection 14-52-107(c) does not use either the phrase "working days" or "calendar days." However, its use of the word "salary" arguably suggests that the proper interpretation is "calendar days." Although not statutorily defined here, the Arkansas Supreme Court has defined salary as "payment at regular intervals or fixed compensation regularly paid, as by the year, quarter, month or week." And the dictionary definition of "salary" is "[f]ixed compensation for services, paid to a person on a regular basis." Thus, the plain meaning of "ninety days' salary" would seem to be the fixed amount of pay that an officer would regularly receive over the course of 90 calendar days, or roughly three months.

An examination of the companion statute for firefighter sick leave, Ark. Code Ann. § 14-53-108, appears to support this interpretation of "90-days' salary." Prior to 2005, that statute read as follows:

> If unused, sick leave shall accumulate to a maximum of sixty (60) days unless the city, by ordinance, authorizes the accumulation of a greater amount, in no event to exceed a maximum accumulation of ninety (90) days, except for the purpose of computing years of service for retirement purposes.
>
> * * *
>
> Payment for unused sick leave in the case of a fire fighter, upon retirement or death, shall not exceed three months' salary unless the city, by ordinance, authorizes a greater amount, but in no event to exceed four and one-half (4 ½) months' salary.

These subdivisions of the statute make clear that the General Assembly intended "three months' salary" and "four and one-half months' salary" to be interpreted as the fixed pay that a firefighter regularly earns over the course of approximately 90 calendar days and 135 calendar days, respectively. It would not make sense to interpret them to mean the pay that a firefighter earns over approximately 90 working days and 135 working days, respectively, as subdivision 14-53-108(a)(2) limits sick leave accumulation to 60 working days, or up to 90 working days, if authorized by ordinance. In other words, a firefighter would never be able to accumulate more than 90 working days of sick leave, so there would be no reason to limit the payout for sick leave to 135 working days of pay. Those limitations only make sense if using calendar days.

There is an argument to be made that sections 14-52-107 and 14-53-108 require calculating their sick leave payout caps differently, due to one statute's use of days and the other's use of months. But the statutes' legislative history indicates that this was probably not the General Assembly's intent. Nevertheless, the statute is sufficiently ambiguous that it is difficult to reach a definitive conclusion. While I believe a reviewing court would probably find that a municipality may not pay out sick leave at death or retirement in an amount that exceeds the pay the employee would normally receive during a 90-calendar-day period, the statute is not entirely clear. Legislative clarification is warranted.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Footnotes from the official opinion PDF (the public search index's text omits them):

1. Ark. Code Ann. § 14-52-107(a)(1)-(2) (Supp. 2019).
2. 327 Ark. 93, 936 S.W.2d 551 (1997).
3. Id. at 95.
4. In determining that a "working day" refers to an eight-hour period for purposes of Ark. Code Ann. § 14-52-106, which deals with annual law enforcement leave, Op. Att'y Gen. 2012-078 (the previous opinion you reference in your question) relied on City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973). In Brewer, the Court held that the amount of holiday pay to which firefighters are entitled should be based upon an eight-hour day, rather than a twenty-four hour shift, and it construed the fifteen days of annual vacation provided to firefighters in Ark. Code Ann. § 14-53-107 to mean fifteen eight-hour days. For purposes of your question, Donaldson is most relevant, but it is appropriate to undertake a similar analysis here.
5. See Act 1828 of 2005.
6. Id. (amending Ark. Code Ann. § 14-53-108(a)(1)(B)).
7. In 2011, a bill was introduced that would have provided a similar definition of "working day" for law enforcement officers, but it did not pass. See Senate Bill 776 of the 88th General Assembly.
8. Ark. Code Ann. § 14-43-601(a)(1)(G) (Repl. 2013).
9. Id. at § 14-43-601(a)(2)(B). See also Ark. Const. art. 12, § 4 ("No municipal corporation shall be authorized to pass any law contrary to the general laws of the state ....").
10. Ark. Code Ann. § 14-52-107(a)(1).
11. Id. at § 14-52-107(a)(2).
12. See City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987).
13. Cf. Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000) (holding that health insurance benefit payments made pursuant to an unlawful ordinance were illegal and had to be repaid, despite the recipient's good faith); Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (finding that a local ordinance authorizing health insurance benefits for quorum court member in contravention of state law was illegal and requiring reimbursement of those payments).
14. See Op. Att'y Gen. 2019-029 (noting that this office has a long-standing policy of declining to make factual determinations in the context of rendering official opinions).
15. See, e.g., MacSteel Div. of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005).
16. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493 (citing Rylwell, L.L.C. v. Arkansas Dev. Fin. Auth., 372 Ark. 32, 269 S.W.3d 797 (2007)).
17. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179.
18. Hestand v. Erke, 227 Ark. 309, 311, 298 S.W.2d 44, 46 (1957) (internal citation omitted).
19. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1546 (2011).
20. Act 1828 of 2005 amended Ark. Code Ann. § 14-53-108(a)(2) to replace days of sick leave with hours, such that "sixty (60) days" was replaced with "one thousand four hundred forty (1440) hours" and "ninety (90) days" was replaced with "two thousand one hundred sixty (2160) hours." Although 1,440 hours equates to 60 24-hour working days, and 2,160 hours equates to 90 24-hour working days, this current version of the statute is not as helpful in ascertaining the meaning of 60-days' salary or 90-days' salary, due to the revised definition of "working day" ("working day" now means "that period of time a firefighter is on duty within a twenty-four hour period"). Act 1828 of 2005 at § 1 (amending Ark. Code Ann. § 14-53-108(a)(1)(B)). See supra nn.5-6.
21. Ark. Code Ann. § 14-53-108(a)(2), (c)(2) (Repl. 1998).
22. One could argue, for example, that in using the phrase "three months' salary," the legislature meant a period of time equal to roughly 90 calendar days, rather than 90 working days, because rarely if ever does anyone refer to a month's worth of working days. On the other hand, "90 days' salary" could reasonably be interpreted to mean 90 working days. Thus, two seemingly equivalent phrases could have entirely different meanings.
23. Payout for law enforcement sick leave was originally capped at an amount equivalent to two months' salary, unless the city, by ordinance, authorized a greater amount, but in no event to exceed three months' salary. See Act 842 of 1983, § 3 (amending Ark. Stat. Ann. 19-1720). That statute was later amended to place the payout cap at an amount equivalent to 60 days' salary, unless the city, by ordinance, authorized a greater amount, but in no event to exceed 90 days' salary. See Act 181 of 1985, § 3. Following the reasoning set forth in n.22, this would amount to a substantive change, such that the two months' salary payout cap would have been increased to an amount closer to three months' salary, and the three months' salary payout cap would have been increased to an amount closer to four and one-half months' salary. I think it much more likely that Act 181 simply meant to convert months to days.