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 tracked the Arkansas Supreme Court's parallel firefighter cases and the legislature's deliberate non-action.

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 legislative inaction signals that Donaldson's 8-hour rule continues to apply to police.

The follow-up question (can a city pass an ordinance using 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). An ordinance defining "working day" as 10 or 12 hours conflicts with state law and is invalid under City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987).

Question 2: Can officers retain sick-leave hours accrued under invalid ordinances? No. The AG cited 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), for the proposition that benefits paid under unlawful ordinances are illegal even when paid in good faith and may have to be repaid. That principle suggests excess sick-leave hours cannot be retained either. But the AG flagged that how this rule applies to any specific officer's accumulated balance is a fact question outside the scope of an AG opinion.

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 went back and amended only the firefighter statute (§ 14-53-108) to redefine "working day" as the actual on-duty shift hours. It did not similarly amend the police statute (§ 14-52-107), and it specifically declined to do so when SB 776 of 2011 was introduced. The choice was deliberate.

What about police officers who have accumulated 90+ days at 12-hour shifts under their city ordinance?
Their accrual was illegal. Under the Burke v. Elmore line of cases, benefits paid under invalid ordinances are illegal payments, regardless of good faith. The practical consequence is that the excess hours cannot be retained. How the city handles the rebalancing (write-down, gradual phase-out, etc.) is a factual matter outside this opinion.

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?
Yes. Any city ordinance using 10- or 12-hour "working days" for sick-leave accrual under § 14-52-107 is invalid and creates exposure for clawback under Burke v. Elmore. Cities should align their ordinances with the 8-hour rule and address the legacy accrual question with local counsel.

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 read the unamended state of the police statute as intentional.

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. Burke v. Elmore and Massongill v. County of Scott confirm that benefits paid under invalid ordinances cannot be retained.

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) (benefits paid under unlawful ordinance must be repaid)
• Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (county ordinance conflicting with state law invalid; benefits illegal)

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)
• Act 130 of 1975, § 15 (origin of § 14-20-101)
• 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.

Sincerely,

LESLIE RUTLEDGE
Attorney General