Do non-state-agency Arkansas entities like the General Assembly and the courts have to provide a catastrophic leave program for their employees?
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This page answers the general question as of 2018. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Representative Greg Leding asked the Attorney General to interpret Ark. Code Ann. section 21-4-214 as amended by Act 182 of 2017. The statute is part of the Uniform Attendance and Leave Policy Act and creates a "catastrophic leave bank," administered by the Office of Personnel Management, that lets state employees donate annual or sick leave to coworkers facing catastrophic illnesses or injuries.
Section 21-4-214(a)(2)(A) says "[e]ach state agency shall participate" in the bank. Section 21-4-214(a)(2)(B) then lists ten "governmental entities" (the General Assembly, Bureau of Legislative Research, Arkansas Legislative Audit, Arkansas Department of Transportation, Game and Fish Commission, Supreme Court, Court of Appeals, Administrative Office of the Courts, constitutional offices, and institutions of higher education) and says those entities "may voluntarily participate in the catastrophic leave bank program or establish a catastrophic leave bank for [their] employees." Leding asked whether the listed entities had to either join the state bank or set up their own.
Attorney General Leslie Rutledge concluded the answer was no. Most of those entities are expressly excluded from the UALPA's definition of "state agency" in section 21-4-203(11), so they are not swept up by the "shall participate" mandate in subsection (a)(2)(A). Subsection (a)(2)(B) gives them two options ("voluntarily participate . . . or establish") connected by the disjunctive "or" and prefaced by the permissive verb "may." The AG read those signals together: "may" is normally permissive unless context demands otherwise; the disjunctive "or" provides alternatives within whatever choice is being made; and the legislature did not include any words requiring participation. So the listed entities had three options: join the state bank, run their own, or do neither.
The AG flagged a wrinkle for higher education. Section 21-4-203(11) defines "state agencies" to include state-supported institutions of higher education except for "[a]ll administrative, academic, or other nonclassified employees." That carve-out means classified higher-education employees were inside the "state agency" definition and so were inside the section 21-4-214(a)(2)(A) mandate, while administrative, academic, and other nonclassified employees fell within section 21-4-214(a)(2)(B). For those nonclassified positions, the institution had the same discretion as the other listed entities.
Currency note
This opinion was issued in 2018. 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.
Background and statutory framework
The Uniform Attendance and Leave Policy Act, codified at section 21-4-201 et seq., governs leave policies for state employees. Within that framework, the catastrophic leave bank lets one employee donate accrued leave to another whose own leave is exhausted because of catastrophic personal or family medical issues.
Act 182 of 2017 amended section 21-4-214 to make participation in a centrally administered bank, run by the Office of Personnel Management with the Department of Finance and Administration's oversight, mandatory for "state agencies" while leaving other governmental entities free to choose. The two key subsections are next to each other: (a)(2)(A) is mandatory ("[e]ach state agency shall participate"); (a)(2)(B) is optional ("may voluntarily participate . . . or establish").
The definitional anchor is section 21-4-203(11). It defines "state agency" expansively but with a list of exclusions. Most of the entities in section 21-4-214(a)(2)(B) are on the exclusion list. So they are not "state agencies" for UALPA purposes, and the (a)(2)(A) mandate cannot reach them.
The cardinal rules of statutory interpretation the AG applied came from MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp. (read words by their ordinary meaning), Green v. Mills (read each part in the context of the whole), and Chism v. Phelps and Berry v. Sale (read each section in light of every other). On the meaning of "or" as a disjunctive, the AG cited State, Dept. of Career Educ., Div. of Rehab. Servs. v. Means. On "may" as permissive, the AG cited Ark. Elec. Coop. Corp. and Ark. State Racing Comm.
Why the listed entities were not required to provide a catastrophic-leave program
The AG's reading turned on three textual signals working in the same direction.
First, the structure of the two subsections. Subsection (a)(2)(A) says "shall participate"; subsection (a)(2)(B) says "may voluntarily participate . . . or establish." When the legislature uses "shall" for one group of entities and "may" for another in adjacent provisions, the change is normally meaningful.
Second, the word "or" between the two listed actions in (a)(2)(B). "Or" marks an alternative. The legislature plainly intended for these entities to have a choice between joining the state bank and running their own, but choice between two options does not by itself imply that one of the options must be chosen.
Third, "may" with "voluntarily" reinforced rather than restricted the permissive reading. "Voluntarily" means "of one's own free will." The entire phrase pointed away from any mandate that the listed entities provide a catastrophic-leave program at all.
The AG noted that if the legislature had intended to require these entities to either join the state bank or run their own, it could easily have said so. The chosen language was permissive on its face.
The higher-education wrinkle
Higher-education institutions are listed in section 21-4-214(a)(2)(B), but the UALPA definition of "state agency" in section 21-4-203(11) treats them differently from the other listed entities. The definition includes "state-supported institutions of higher education," but it then excludes "[a]ll administrative, academic, or other nonclassified employees" from coverage. The AG read those provisions together: institutions of higher education are state agencies for purposes of their classified employees, who must be participated in the catastrophic leave bank; for their administrative, academic, and other nonclassified employees, the institutions fall under section 21-4-214(a)(2)(B), and the same permissive analysis applies.
In short, a state-supported university would have to run its classified workforce through the state catastrophic leave bank, but had discretion whether to extend any catastrophic leave coverage to faculty, deans, and other nonclassified positions.
Common questions
Did this opinion say state employees in those listed entities had no catastrophic leave at all?
No. The opinion said the listed entities were not required to participate in any catastrophic leave program. Many of them in fact ran their own leave-donation programs, joined the state bank voluntarily, or had separate human-resources policies. The opinion only spoke to the legal mandate question.
Why are the General Assembly and the courts treated differently from executive-branch agencies?
Separation of powers and the "state agency" definition in the UALPA. The General Assembly, Bureau of Legislative Research, Arkansas Legislative Audit, Supreme Court, Court of Appeals, and Administrative Office of the Courts are legislative or judicial branch entities; they are excluded from the executive-branch-style "state agency" coverage in section 21-4-203(11). The Arkansas Department of Transportation and Game and Fish Commission have their own constitutional and statutory grants of independence and were similarly carved out.
What about a university dean or professor: did this cover them?
Yes. Administrative, academic, and other nonclassified employees of state-supported institutions of higher education fell within section 21-4-214(a)(2)(B). The institution had discretion whether to provide them with a catastrophic leave program.
Could a listed entity choose to "establish a catastrophic leave bank" without joining the state one?
Yes. Section 21-4-214(a)(2)(B) gave each listed entity an explicit alternative: voluntarily participate in the state bank, or establish its own bank. An entity that wanted catastrophic-leave coverage tailored to its own workforce could opt for the second path.
What was Act 182 of 2017 meant to accomplish for the executive-branch state agencies?
Act 182 added the centralized state-administered catastrophic leave bank and made participation mandatory for executive-branch state agencies (the (a)(2)(A) "shall participate" clause). The (a)(2)(B) list was the legislature's way of acknowledging that not all "governmental entities" sit in the executive branch, and not all should be forced into the centrally administered bank.
Citations
Ark. Code Ann. sections 21-4-201 et seq., 21-4-203(11), 21-4-214, 21-4-214(a)(1), 21-4-214(a)(2)(A), 21-4-214(a)(2)(B), 21-4-214(a)(2)(B)(i)-(x); Act 182 of 2017; MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005); Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999); Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958); Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931); State, Dept. of Career Educ., Div. of Rehab. Servs. v. Means, 2013 Ark. 173, 426 S.W.3d 922; Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 307 Ark. 171, 818 S.W.2d 935 (1991); Ark. State Racing Comm. v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956).
Source
Original opinion text
Opinion No. 2018-018
August 29, 2018
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Greg Leding
State Representative
P. O. Box 1445
Fayetteville, AR 72702-1445
Dear Representative Leding:
This is in response to your request for my opinion on the following question, which I have paraphrased slightly, concerning Act 182 of 2017:
Does Act 182 require the entities listed in Section 4(a)(2)(B) of the Act (the General Assembly, Bureau of Legislative Research, Arkansas Legislative Audit, Arkansas State Highway and Transportation Department, Arkansas Game and Fish Commission, Supreme Court, Court of Appeals, Administrative Office of the Courts, constitutional offices, and institutions of higher education) to provide a catastrophic leave program for their employees, either by joining the state-administered catastrophic leave bank or establishing their own catastrophic leave bank?
RESPONSE
In my opinion, the answer to this question is "no." Based on standard rules of statutory interpretation, I believe the entities listed in your question are not required to provide a catastrophic leave program for their employees.
DISCUSSION
Act 182 of 2017 amended several statutes that are part of a subchapter entitled "Uniform Attendance and Leave Policy Act" ("UALPA"). The statute relevant to your question is Ark. Code Ann. § 21-4-214, regarding catastrophic leave. As amended by Act 182, this statute requires "each state agency" to participate in a state-administered "catastrophic leave bank." And it provides that "[certain] governmental entities may voluntarily participate in the catastrophic leave bank program or establish a catastrophic leave bank for [their] employees."
Your question relates to this latter provision, section 21-4-214(a)(2)(B). You have asked whether the entities listed in this provision are required to provide a catastrophic leave program for their employees by either joining the state program or establishing their own leave bank.
Your question is essentially one of statutory interpretation. The cardinal rule is to construe the statute just as it reads, giving its words their ordinary and usually accepted meaning in common language. When construing statutes, our courts "look to the language under discussion in the context of the statute as a whole." Each section of a statute is to be read in light of every other section.
Applying these precepts, most of the "governmental entities" listed in section 21-4-214(a)(2)(B) are expressly excluded from the UALPA's definition of "state agencies." Based on this definition, therefore, the term "state agency" under section 21-4-214(a)(2)(B) plainly does not include these excluded entities. Consequently, they are not required to participate in the state-administered catastrophic leave bank. But pursuant to section 21-4-214(a)(2)(B), they "may voluntarily participate or establish a catastrophic leave bank for [their] employees."
The disjunctive "or" here clearly introduces an alternative. The legislature plainly intended for these entities to have the option to 1) "voluntarily," i.e., of their own free will, participate in the state leave bank program, or 2) establish their own catastrophic leave banks. But the use of the permissive term "may" indicates that these two options are not mandatory. I cannot conclude that the word "may" in the context of this statute must be construed as a mandatory "shall." Accordingly, I believe these entities have the option not to provide a catastrophic leave program for their employees. Had the legislature intended to require that they either join the state-administered catastrophic leave bank or establish their own banks, that intent could easily have been expressed.
It is therefore my opinion that the answer to your question is "no." Based on standard rules of statutory interpretation, I believe the entities listed in your question are not required to provide a catastrophic leave program for their employees.
LESLIE RUTLEDGE
Attorney General
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