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Opinion 98015

DATE: February 23, 1998

SUBJECT: Neb. Rev. Stat. § 55-160 (1993); Use of Vacation Leave During Emergency Military Duty by State Employees Who are also Members of the Nebraska National Guard




REQUESTED BY: Karen Kilgarin, Director, Nebraska Department of Administrative Services




WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General






In October, 1997, the State of Nebraska was hit by a severe

winter snowstorm which left heavy accumulations of snow and damaged

trees and power lines in several parts of the state. In the

aftermath of that storm, portions of the cities of Lincoln and

Omaha were left without electrical power for several days. To aid

in disaster relief and the provision of necessary services, the

Governor declared a state of emergency and called various units of

the Nebraska National Guard (the "Guard") to active duty.




The Guard units on active duty in connection with storm relief

efforts included state employees who left their normal jobs with

state agencies to serve in the Guard during the emergency. Under

the pertinent portions of the Nebraska Statutes, those state

employees on active duty with the Guard during the emergency were

eligible for an emergency military leave of absence. With such a

leave of absence, state employees are entitled to be paid their

military salaries plus sufficient additional sums from their state

agency salaries so that they suffer no loss from their total state

pay during the period of active duty. In essence, the state

agencies involved pay the Guard members the difference between

their military pay and their state agency pay for the days on

emergency military leave.




A number of the Guard employees involved in the October, 1997,

snow emergency have now apparently inquired as to whether they may

take vacation or earned compensatory time from their state agency

for the days when they were on military active duty after the storm

instead of taking emergency military leave. In that fashion, those

individuals could potentially earn both their military salary and

their full state agency salary. The individuals in question were

initially told that they could not take vacation time for the days

on active military duty. Nevertheless, to assist in resolving the

issue, you have posed the following question to us:




Can an employee called to state active duty under

emergency conditions be granted vacation leave or earned

compensatory time for the same hours so that their normal

state pay check is not reduced by the amount of military

pay they earn while on state active emergency duty?


For the reasons discussed below, we believe that the answer to your

question is "yes." In our view, the Guard employees in question

can choose to expend their accrued vacation time or earned

compensatory time for the days when they were on emergency military

leave so that their state agency pay check is not reduced by their

military pay, provided that the agency head of the state agency

involved approves such a use of vacation.




Our review of Nebraska cases and the Nebraska Statutes in this

instance disclosed no Nebraska cases or statutes which deal

directly with the question which you presented. However, several

statutes and agency regulations do have relevance to your inquiry.

First of all, Neb. Rev. Stat. § 55-157 (1993) provides, as is

pertinent:




When an active or retired or enlisted person of the

National Guard is ordered to active service of the state

by the Governor or Adjutant General, he or she shall

receive compensation as provided in this section. For

service during a disaster or emergency an officer or

enlisted person shall be entitled to the same pay,

subsistence, and quarters allowance as officers and

enlisted personnel of corresponding grades of the Army

and Air Force of the United States.




As a result, Guard members who are state employees must receive

military pay from the Guard for the days during which they are on

active duty during an emergency. Also, Neb. Rev. Stat. § 55-160

(1993) creates the military leave at issue:


All employees, including elected officials of the State

of Nebraska, . . . who shall be members of the National

Guard, Army Reserve, Naval Reserve, Marine Corps Reserve,

Air Force Reserve, and Coast Guard Reserve, shall be

entitled to leave of absence from their respective

duties, without loss of pay, on all days during which

they are employed with or without pay under the orders or

authorization of competent authority in the active

service of the state or of the United States, for not to

exceed fifteen workdays in any one calendar year. Such

leave of absence shall be in addition to the regular

annual leave of the persons named therein. When the

Governor of this state shall declare that a state of

emergency exists, and any of the persons named in this

section are ordered to active service of the state, an

additional leave of absence will be granted until such

member is released from active service by competent

authority. During the additional leave of absence

because of the call of the Governor, any official or

employee subject to the provisions of this section shall

receive such portion of his salary or compensation as

will equal the loss he may suffer while in active service

of the state. . . .




(Emphasis added). In addition to those statutes, Neb. Rev. Stat.

§ 81-117 (1996) provides that compensatory time off may be granted

when certain state employees are required to work more than forty

hours in any one week, and Neb. Rev. Stat. § 81-1328 (1994)

establishes the amount of vacation leave with full pay which

various state employees earn each year.




Apart from the statutes noted above, several portions of the

State Classified System Personnel Rules (the "Personnel Rules") are

also relevant to your question. Section 001 of Chapter 9 of those

Rules, 273 NAC 9-001, states that the forms of leave authorized for

state employees include holiday, vacation, sick, injury, military,

civil leave, funeral leave, and leave of absence. Section 004 of

Chapter 9 deals generally with vacation leave for state employees,

and Section 004.01 states:




Scheduling Vacation Leave. Vacation leave should be

applied for in advance by the employee and may be used

only when approved by the agency head. Vacation leave

may not be unreasonably denied or deferred so that the

employee is deprived of vacation rights.




Finally, Section 009 of Chapter 9 of the Personnel Rules deals with

"Military Leave." In that regard, Section 009.02 of Chapter 9

provides:




Emergency Duty. Employees who are members of the

Nebraska National Guard or any other reserve component

and are ordered to duty under emergency conditions shall

receive state compensation equal to the amount necessary

to bring them to the level of their regular state pay,

beginning with their military pay as the base amount.

Pay vouchers shall be retained at the agency level in the

employee's personnel file.




When Section 009.02 of the Personnel Rules is considered by

itself, it would appear that Guard members on emergency active duty

may only be paid by their state agency employers for the difference

in their military pay and their agency pay. However, when all of

the regulations and statutes noted above are considered in their

entirety, it seems to us that the better answer to your question is

that Guard employees may use their accrued vacation leave when they

are on active emergency duty, if that use of vacation is approved

by the agency head.




For one thing, it is clear under the Personnel Rules that a

number of different types of leave are available to state employees

who are absent from work, and there is no provision in the statutes

or the Personnel Rules which restricts how vacation time in that

system may be used, except that it "should" be applied for in

advance and must be approved by the agency head. Consequently,

there does not appear to be anything which would prevent a state

employee and Guard member from opting to excuse his or her absence

from state agency work during active service in the Guard by the

use of his or her accrued vacation or earned compensatory time

rather than the use of emergency military leave. That conclusion

is supported by the fact that § 55-160 states that an additional

leave of absence for emergency military duty "will be granted"

until the end of the active duty event. That latter language seems

to suggest that the Guard member/state employee must apply for or

chose to claim the military leave under that statute.




In addition, the Legislative history of § 55-160 also supports

the notion that guard members should be able to use accrued

vacation time instead of emergency military leave under the

circumstances at issue. The second portion of that statute

creating emergency military leave was added as a result of LB 186

passed in 1969, 1969 Neb. Laws LB 186. The introducer's stated

purpose for that bill was to "keep up the morale of the guardsman

now serving with the state," and to "[reduce] the sacrifice of the

enlisted man while ordered to state duty by providing a minimum

rate of pay and assurance of reemployment upon termination of the

emergency." Committee Records on LB 186, 80th Neb. Leg.,

Introducer's Statement of Purpose (January 22, 1969); Accord King

v. School District of Omaha, 197 Neb. 303, 248 N.W.2d 752 (1976).

A construction of § 55-160 in the present case which would deny the

use of accrued vacation time and mandate the use of military leave

would hardly "keep up morale" or "reduce the sacrifice" of the

Guard employees involved. As a result, we believe that the use of

vacation time under these circumstances may be allowed.




In sum, we believe that state employees who are called to

emergency active duty in the Guard may choose to expend their

accrued vacation time rather than use emergency military leave so

as to receive their normal agency pay plus their earnings from the

Guard, provided that the agency heads for the state agencies in

question approve that use of vacation time in the manner and under

the same procedures as they do in other instances. We would also

point out that such a result may have some advantages for the state

agencies involved. For example, if a given state employee with a

week of accrued vacation time who is a member of the guard chose to

use that week of vacation in July, 1998, and emergency military

leave in October, 1997, that employee would be absent from the

state agency twice, once in October, and once in July. However, if

that same employee chose to expend his week of accrued vacation

time in October, 1997, instead of military leave, then he would

only be out of the agency once, in October, 1997. The latter

situation would also actually cost the state agency employer less,

since the agency employer would only pay the employee for his week

of vacation. Had the employee chosen to use military leave and

vacation, the agency would have to pay for both vacation leave and

military leave.




Sincerely yours,




DON STENBERG

Attorney General






Dale A. Comer

Assistant Attorney General