FOR PUBLICATION
ATTORNEYS FOR TOWNSHIP: ATTORNEY FOR EMPLOYEES:
THOMAS R. SCHULTZ BRENDA FRANKLIN RODEHEFFER
DONALD B. KITE, SR. Monday Rodeheffer Jones & Albright
Schultz & Pogue, LLP Indianapolis, Indiana
Carmel, Indiana
ATTORNEYS FOR AMICUS CURIAE
LOUIS A. DEZELAN, CHIEF OF THE
INDIANAPOLIS FIRE DEPARTMENT:
ANTHONY W. OVERHOLT
PEGGY D. DALLMANN
Office of Corporation Counsel for the
City of Indianapolis
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES KOPPIN in his individual official capacity )
as LAWRENCE TOWNSHIP TRUSTEE, and the )
LAWRENCE TOWNSHIP FIRE DEPARTMENT, )
)
Appellants-Defendants, )
)
vs. ) No. 49A02-0103-CV-148
)
JAMES STRODE and ANDREW RICHARDSON, )
)
Appellees-Plaintiffs. )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard H. Huston, Judge
Cause No. 49D12-9911-CT-1680
January 15, 2002
OPINION - FOR PUBLICATION
KIRSCH, Judge
Appellants-defendants James Koppin (“Koppin”), in his official capacity as Lawrence Township Trustee, and
the Lawrence Township Fire Department (“the LTFD”) (collectively, “Township”) appeal the trial court’s
grant of summary judgment in favor of Appellees-plaintiffs James Strode (“Strode”) and Andrew
Richardson (“Richardson”) (collectively, “Employees”).
We reverse.
ISSUE
Ind. Code § 10-2-4-3 provides that employees of the State of Indiana and
of any county, township, municipality, or school corporation in Indiana who are members
of the Indiana National Guard or a reserve component, or are retired personnel
of the naval, air, or ground forces of the United States are entitled
to a leave of absence without loss of pay or vacation benefits for
military service not to exceed fifteen days in any calendar year. Does
a township policy providing military leave time of fifteen work days per year
and which defines work day as an eight hour period of regularly scheduled
duty contravene this section when applied to firefighters whose duty is scheduled in
twenty-four hour shifts?
FACTS AND PROCEDURAL HISTORY
See footnote
Employees are firefighters employed by the LTFD in Marion County, Indiana. Strode
is an active member of the United States Air Force Reserves, and Richardson
is an active member of the Kentucky National Guard; both are Marion County
residents. As members of their respective units, Employees are required to spend
one weekend per month and an additional two weeks per year in training
with the Indiana Reserve. They can be called into active duty at
any time in case of emergency or military need. As of December
1998, Employees worked a schedule of twenty-four hours on duty, followed by forty-eight
hours off duty.
See footnote
As of December 1998, Ind. Code § 10-2-4-3 read as follows:
(a) This section applies to all officers and employees
[
See footnote
]
of the state
of Indiana or any county, township, municipality, or school corporation in Indiana who
are listed in subsection (b).
(b) As used in this section, “member” refers to the following:
(1) A member of the Indiana National Guard.
(2) A member of a reserve component.
(3) A member of the retired personnel of the naval, air, or
ground forces of the United States.
(c) A member is entitled to receive from the member’s employer a
leave of absence from the member’s respective duties, in addition to regular vacation
period, without loss of pay for such time as the member is:
(1) on training duties of the state of Indiana under the order
of the governor as commander in chief; or
(2) a member of any reserve component under the order of the
reserve component authority;
for consecutive or nonconsecutive periods not to exceed a total of fifteen (15)
days in any calendar year.
(d) A member is entitled to receive from the member’s employer a
leave of absence from the member’s respective duties, in addition to the member’s
regular vacation period, for the total number of days that the member is
on state active duty under section 4 of this chapter.
[
See footnote
]
This leave
of absence may be with or without loss of time or pay at
the discretion of the member’s employer.
[
See footnote
]
As the trustee for Lawrence Township, Koppin oversees the LTFD. The Township’s
military leave policy reads in relevant part as follows:
See footnote
A. DEFINITION
1. Military leave is time off duty, with pay and without stand-in, for department
employees who are also members of any of the Armed Forces Guard or
Reserves for certain required trainings.
B.
RATIONALE
1. Indiana Code Chapter 4, Section 10-2-4-1, 2 and 3 specifies that employers shall
allow leave for the purpose of military assembly. The same code specifies
the amount of time allotted.
C.
ALLOTMENT
1. Each employee who is also a member of the National Guard or Reserves
shall be allotted 15 work days per calendar year, without loss of pay
or vacation leave, for the specific purposes of military duty and training set
forth in IC 10-2-4-3. For purposes of this section a “work day”
is defined as an eight (8) hour period of regularly scheduled duty.
Accordingly, Operations Personnel are entitled up to five (5) duty days of military
leave per calendar year without loss of pay or vacation leave.
D.
REGULATIONS
1. Military leave may be used only for the purposes of military duty and
training.
2. Military leave is not cumulative, any leave not used in a calendar year
does not carry over to the next year.
3. Leave not used up during the two-week training assembly may be used in
the same calendar year for weekend drills, up to the yearly total of
15 working days. Additional time off required for weekend drills shall be
obtained through personal day leave or vacation leave or through obtaining stand-ins.
Thus, under the Township’s policy, Employees were granted five twenty-four-hour “duty days” of
paid military leave per year.
On December 22, 1998, Employees filed suit against Township in the United States
District Court of the Southern District of Indiana under 42 U.S.C. § 1983,
claiming that the Township’s military leave policy violated their equal protection rights under
the Fourteenth Amendment to the United States Constitution; they further claimed,
inter alia,
that the Township’s policy violated the fifteen-day paid leave provision Ind. code §
10-2-4-3.
See footnote
On November 1, 1999, the district court granted Township’s motion for
summary judgment on Employees’ equal protection claim but declined to exercise supplemental jurisdiction
over their remaining state law claims.
See footnote
Employees filed suit against Township in Marion Superior Court on November 30, 1999.
On May 12, 2000, the parties filed a pre-summary judgment statement of
stipulated facts. The parties subsequently filed cross-motions for summary judgment seeking interpretation
of Ind. Code § 10-2-4-3 as a matter of law. On December
27, 2000, the trial court granted Employees’ motion on the issue of liability.
The trial court’s order reads in relevant part as follows:
FINDINGS OF FACT
….
17. The purpose of the Indiana Military Code [Ind. Code § 10-2-4-3] is to
benefit our country’s military preparedness by encouraging the enrollment of persons into the
Guard and Reserve.
18. The Code was designed to enable employees of Indiana governmental units to serve
in the Reserve and Guard without penalty, loss of income, or loss of
benefits.
19. There is no authority given to local governmental units to define “day” as
anything other than the plain meaning of day; that is, a twenty-four hour
period.
20. Lawrence Township Fire Department requires the Plaintiffs to lose paid time and/or have
to make special arrangements for coverage when they are on guard or reserve
duty for fifteen days or less.
21. Both the plain meaning and the intent of Indiana Code Sec. 10-2-4-3 are
not met by the Lawrence Township Fire Department. That is, the guard
and reserve members of the Lawrence Township Fire Department who work a 24
hour on/48 hour off schedule are not allowed to serve in the guard
and reserve for up to fifteen calendar days a year without penalty.
CONCLUSIONS OF LAW
1. Rules of statutory construction require that the plain meaning of “day” be used
in Indiana Code Sec. 10-2-4-3, which is a twenty-four hour period.
2. Lawrence Township does not have authority to use or define “day” in any
manner that contravenes Indiana Code Sec. 10-2-4-3.
3. The statute is clear and unambiguous, Lawrence Township must permit their employees to
fulfill their military duties without loss of either
time or
pay. The
net effect of the Township’s definition of the “work day” is to defeat
the public policy of this state set forth in the statute. Regardless
of Lawrence Township Fire Department’s internal distinction between “work day” and day, the
Defendants must allow each of its Reserve and Guard members up to fifteen
calendar days off each year to meet their respective military commitments.
4. The Court finds that the Lawrence Township Fire Deparment and the Trustee violated
Indiana Code 10-2-4-3, insofar as they have determined that the Plaintiffs are to
be assessed three (3) works [
sic] days during a twenty-four (24) hour work
period for the purpose of computing the time due Plaintiffs under the statute.
The result is Defendants[’] untimely payment of wages due to the Plaintiffs.
Appellants’ Appendix at 85-87. The trial court denied Township’s motion to reconsider,
and this interlocutory appeal ensued.
DISCUSSION AND DECISION
Summary judgment is appropriate only where the designated evidentiary material shows that there
are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.
Spears v. Brennan, 745 N.E.2d
862, 869 (Ind. Ct. App. 2001); Ind. Trial Rule 56(C). “When reviewing
an entry of summary judgment, we stand in the shoes of the trial
court.”
Id. “The fact that the parties make cross-motions for summary
judgment does not alter our standard of review. Instead, we must consider
each motion separately to determine whether the moving party is entitled to judgment
as a matter of law.”
Lake States Ins. Co. v. Tech Tools, Inc.,
743 N.E.2d 314, 318 (Ind. Ct. App. 2001).
Here, the trial court entered specific findings of fact and conclusions thereon, which
are neither required nor prohibited in the summary judgment context.
See id.
“Although specific findings aid appellate review, they are not binding on this
court.”
Id. “Because the construction of a statute is at issue
and the relevant facts are not in dispute, the interpretation of the statute
presents a pure question of law for which disposition by summary judgment is
particularly appropriate.”
ISTA v. Bd. of School Comm’rs of Indianapolis, 693 N.E.2d
972, 974 (Ind. Ct. App. 1998). We review questions of law de
novo and owe no deference to a trial court’s legal conclusions.
See
Spears, 745 N.E.2d at 869.
Where, as here, a statute has not been previously construed, “the express language
of the statute and the rules of statutory construction apply.”
ISTA, 693
N.E.2d at 974. “If the language of a statute is clear and
unambiguous, it is not subject to judicial interpretation. However, when the language
is susceptible to more than one construction, we must construe the statute to
determine the legislature’s intent.”
Spears, 745 N.E.2d at 869 (citation omitted).
“A statute is ambiguous when it is susceptible to more than one interpretation.”
Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001).
Township contends that “[a]n analysis of [Ind. Code § 10-2-4-3] and consideration of
the policy ramifications that are inherent in construing ‘day’ as a twenty-four (24)
hour day, as did the trial court, compels the conclusion that while the
word ‘day’ is ambiguous, the most reasonable construction of the word ‘day,’ given
its statutory context, is an eight (8) hour work day.”
Appellants’ Appendix
at 12-13. By contrast, Employees claim that “[w]ithout even consulting a dictionary,
both the learned and unlearned will define and use the word ‘day’ as
a twenty-four hour segment … as used in every calendar in our culture.
Even small children know the plain meaning of the word ‘day’.”
Appellees’ Brief at 9-10.
“When construing a statute, the legislature’s definition of a word binds us.
When the legislature has not defined a word, we give the word
its common and ordinary meaning. In order to determine the plain and
ordinary meaning of words, courts may properly consult English language dictionaries.”
Indiana
Office of Envtl. Adjudication v. Kunz, 714 N.E.2d 1190, 1193 (Ind. Ct. App.
1999) (citation omitted). “Day” may be defined as either “the mean solar
day of 24 hours beginning at mean midnight” or “the time established by
usage or law for work, school, or business.” Merriam Webster’s Collegiate Dictionary
294 (10th ed. 1994). Given these differing and equally plausible meanings, we
must disagree with Employees’ contention and the trial court’s conclusion that the word
“day” as used in Ind. Code § 10-2-4-3 is “clear and unambiguous.”
We must therefore “seek to ascertain and give effect to the legislature’s intent.”
Kunz, 714 N.E.2d at 1193. We examine and interpret the statute
as a whole and refrain “from overemphasizing a strict literal or selective reading
of individual words.”
Spears, 745 N.E.2d at 869. Further, we are
“compelled to ascertain and execute legislative intent in such a manner as to
prevent absurdity and difficulty and prefer public convenience. In so doing, we
are required to keep in mind the objects and purposes of the law
as well as the effect and repercussions of such a construction.”
Id.
at 869-70 (citation omitted);
see also Kunz, 714 N.E.2d at 1193 (“[W]e presume
that our legislature intended its language to be applied in a logical manner
consistent with the statute’s underlying policy and goals.”). Once we determine the
legislature’s intent, we may then ascertain whether the Township’s military leave policy comports
with the statute.
See footnote
We noted in
Downing v. City of Columbus, 505 N.E.2d at 844 that
the purpose of Ind. Code § 10-2-4-3 was to provide state public employees
with military leave rights comparable to those of federal public employees and to
further state and federal policy encouraging participation in military duty.
Id.
Within that framework, we see no indication of legislative intent to treat differently
some public employees. Rather, because the statute makes no distinctions between classes
or types of public employees, we believe that the legislature intended to treat
all public employees equally with regard to military service. Township’s policy of
paying for fifteen eight-hour days treats all public employees the same, in that
it results in paying all public employees, regardless of the length of their
shift, 120
hours of military leave. If we were to accept Employees’ position, effectively
each employee would be treated differently based on the type of shift he
or she works. In this case, Employees would receive up to 360
hours of paid military leave, while a similarly situated firefighter working a more
traditional forty hour, Monday through Friday work week would be paid for only
120. This cannot be the result that the legislature intended: to treat
public employees differently based upon their unique work schedules. Furthermore, in adopting
Ind. Code § 10-2-4-3, our General Assembly attempted to balance the desire to
reduce the financial burden on those public employees who are members of the
armed forces with the cost of doing so to the various governmental entities.
Hence, it settled on fifteen days as an appropriate medium between these
two important interests.
We note that in interpreting fifteen days as fifteen eight-hour days, Employees will
have sufficient military leave to perform their two-week active duty commitment. Judge
McKinney, in
Miller v. City of Indianapolis, 2001 WL 406346 *6 (S.D. Ind.
Apr. 13, 2001), graphically demonstrated that in all cases of a 24/48 schedule,
120 hours of military leave is sufficient to provide for the two-week commitment.
Admittedly, Employees also have weekend service commitments, some of which may overlap
with on-duty hours with LTFD. However, this possibility is speculative and insufficient
to upset the balance struck in the statute.
Courts in other jurisdictions have noted the inequity in Employees’ position. For
example, in
Kalb v. Village of Oak Lawn, 470 N.E.2d 1268, 1269 (Ill.
App. Ct. 1984), the court interpreted a sick-leave ordinance authorizing payment of “accumulated
unused sick leave of up to ‘120 days’.” As here, the firefighter
employees in
Kalb customarily worked a 24/48 schedule and therefore argued that the
word “day” in the ordinance referred to a twenty-four hour period, thus entitling
them to be paid for up to 360 hours of unused sick leave.
The court rejected such an argument, explaining:
[Th]e word “days” in the ordinance should be given its common meaning with
regard to an employee day, eight hours. Plaintiff in the instant case
[a firefighter working a “24/48” schedule] performs 24 hours of work in a
three day period, as does anyone working on a conventional eight-hour per day
schedule. It would be contrary to the rules of statutory construction, and
common sense, to compensate plaintiff for more than eight hours for each of
his 120 accumulated unused sick days.
Id. at 1270. We find this reasoning persuasive, based on parity, common
sense, and statutory construction.
Similarly, in
Airdo v. Village of Westchester, 420 N.E.2d 472 (Ill. App. Ct.
1981), the court interpreted a disciplinary decision calling for a firefighter’s suspension for
twenty-five “days.” The firefighter worked a 24/48 schedule. The board of
commissioners argued that the word day meant twenty-five duty days, or effectively seventy-five
calendar days. The court held that the board’s interpretation “fails to comply
with principles of reasonableness and fairness.” Id. at 473. The court
noted that the board’s interpretation would produce an inequitable result where the punishment
given to two otherwise similarly situated employees would vary in relation to the
work schedule of each, even though the suspensions were of equal length.
Noting that the legislature could not have intended such an unjust, absurd, or
unreasonable consequence, the court rejected the board’s argument. Id. at 474.
Finally, in
Benson v. City of Little Falls, 379 N.W.2d 711 (Minn. Ct.
App. 1986), another court noted the inequity of such a contention. In
that case, a firefighter working a 24/48 schedule was entitled to severance pay
of 100 working days, which he interpreted as 100 twenty-four hour days.
The court commented that equity compelled finding the employee entitled to severance pay
equal to 100 eight-hour days because “[a]cceptance of his interpretation would entitle him
to triple the severance pay available to other city employees. Such as result
would be unfair to those who receive severance pay based only on an
eight-hour work day.” Id. at 713. See also Donaldson v. Taylor,
936 S.W.2d 551 (Ark. 1997) (holding that the City acted within its authority
in redefining a sick day as an eight-hour day, so that a firefighter
working a twenty-four-hour shift would be charged three sick days for missing an
entire shift); Hammock v. City of Auburn, 676 So. 2d 362 (Ala. Civ.
App. 1996) (city’s interpretation of leave accrual policy equating one day to one
eight-hour day was reasonable. “In fact, any other interpretation may well be
unreasonable from a managerial standpoint.”).
Nonetheless, Employees direct us to
Howe v. City of St. Cloud, 515 N.W.2d
77 (Minn. Ct. App. 1994), where the court interpreted Minnesota’s military leave statute,
which is substantially similar to Ind. Code § 10-2-4-3. Id. at 79.
The Howe court observed that “[b]ehind military leave statutes is the basic
principle that a person who serves in the armed forces should not be
penalized for that service in civilian life” and concluded,
St. Cloud schedules its firefighters to work 24-hour days. When the Howes
miss a “day” due to military leave, they miss 24 hours of work.
If the Howes are paid for less than 24 hours for each
“day” missed due to military leave, they are penalized for their military service.
To ensure that the Howes can take military leave without loss of
pay as required by
Minn. Stat. § 192.26, in this case they must
be paid for 24 hours for every 24-hour day missed, up to 15
days per year.
Id. at 79-80.
Although the
Howe court’s reasoning is attractive, there was no evidence in that
case that the city had ever defined day for its employees as anything
other than a twenty-four hour period. Moreover, under this interpretation of Ind.
Code § 10-2-4-3, an employee who works a twenty-four-hour shift would be entitled
to receive compensation for more hours of paid military leave than an employee
who works an eight-hour shift. Additionally, state and local governments may be
required to hire additional employees or pay overtime to current employees to cover
the shifts of 24/48 employees while they are on military leave. Adopting
this interpretation of a statute which applies equally to all on its face
to ensure that Employees’ military commitments are fully covered by military leave under
every conceivable set of circumstances would elevate this interest over the interests of
parity among all public employees and the interests of governmental entities in containing
costs.
In summary, we conclude that the trial court erred in granting Employees’ motion
for summary judgment and that Township’s military leave policy does not conflict with
Ind. Code § 10-2-4-3 in defining “day.”
Reversed.
BAILEY, J., concurs.
BROOK, C.J., dissents with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
JAMES KOPPIN in his individual official capacity )
as LAWRENCE TOWNSHIP TRUSTEE, and the )
LAWRENCE TOWNSHIP FIRE DEPARTMENT, )
)
Appellants-Defendants, )
)
vs. ) No. 49A02-0103-CV-148
)
JAMES STRODE and ANDREW RICHARDSON, )
)
Appellees-Plaintiffs. )
BROOK, Chief Judge, dissenting
One of the canons of statutory interpretation is that “it is just as
important to recognize what a statute does not say as it is to
recognize what it does say.”
Rush v. Elkhart County Plan Comm’n, 698
N.E.2d 1211, 1215 (Ind. Ct. App. 1998), trans. denied. Indiana Code Section
10-2-4-3 does not say that a state or local governmental entity may adopt
its own interpretation of the word “day,” and I agree with the majority
on this point. I also agree with the majority that the legislature
intended to treat all public employees equally with regard to military service.
I must respectfully dissent, however, because section 10-2-4-3 does not say that this
equality must be based on hours of military leave.
As noted by the majority, one of the many definitions of “day” is
“the time established by usage or law for work, school, or business.”
Merriam Webster’s Collegiate Dictionary at 294.
See footnote
While the customary workday for many
government employees is indeed eight hours, the customary workday for firefighters like Strode
and Richardson is twenty-four hours. Whether a government employee works an eight-hour
shift or a twenty-four-hour shift, that employee must take a one-day leave of
absence from his or her “respective duties” for each day of military training.
To interpret “day” in this instance as anything other than the duration
of an employee’s customary workday would frustrate the legislature’s objective of encouraging military
service.
See footnote
I acknowledge that under this interpretation of section 10-2-4-3, an employee who works
a twenty-four-hour shift would be entitled to and might in fact receive compensation
for more hours of paid military leave than an employee who works an
eight-hour shift.
See footnote
Township claims that employees working a 24/48 schedule would thus
receive “more pay” than “regular ‘day’ workers”; as Strode and Richardson correctly observe,
however, firefighters and others working twenty-four-hour shifts would not receive a “windfall” for
their military service but would only receive up to fifteen workdays of paid
military leave, the same as “regular ‘day’ workers.”
See footnote
Under the majority’s interpretation
of section 10-2-4-3, however, a firefighter working a 24/48 schedule will receive a
maximum of only five workdays of paid military leave.
See footnote
Absent any indication
to the contrary,
See footnote
I cannot conclude that the General Assembly intended such an
unfair result.
The majority cites to
Kalb, 470 N.E.2d 1268, in pointing out the supposed
inequity in Strode and Richardson’s position, but I remain unpersuaded by the
Kalb
court’s emphasis on the fact that a firefighter working a 24/48 schedule “performs
24 hours of work in a three day period, as does anyone working
on a conventional eight-hour per day schedule.”
Id. at 1270. While
the
Kalb court’s rationale may initially seem appealing on fairness grounds, this tidy
equivalence breaks down in less than one week and becomes even less tidy
over the course of one month. On average, a firefighter on a
24/48 schedule works approximately 224 hours during a four-week period (9S! days (
24 hours/day = 224 hours), whereas an employee on a conventional
weekday schedule works only 160 hours (20 days ( 8 hours/day = 160
hours) during that same period. I am similarly unpersuaded by the majority’s
citation to
Airdo, 420 N.E.2d 472, in which the court focused on the
inequities of punishment based on varying work schedules; under the majority’s interpretation of
section 10-2-4-3, Strode and Richardson and other similarly situated government employees will be
unfairly penalized for their military service based on their work schedules. Finally,
as for the majority’s discussion of
Benson, 379 N.W.2d 711, I would simply
observe that I respectfully disagree as to where the legislature intended to draw
the line of equity and fairness in granting government employees fifteen days of
paid military leave.
Unlike the majority, I find the Minnesota Court of Appeals’ decision in
Howe,
515 N.W.2d 77, both instructive and persuasive. I agree with the
Howe
court that the “basic principle” underlying military leave statutes is “that a person
who serves in the armed forces should not be penalized for that service
in civilian life.”
Id. at 79.
See footnote
More importantly, I believe that
the General Assembly’s intent not to penalize government employees for their military service
is expressed in even more definitive terms than was the Minnesota legislature’s in
Howe.
See footnote
Under section 10-2-4-3, a government-employed member of the aforementioned military organizations is entitled
to “a leave of absence
from the member’s respective duties, in addition to
regular vacation period, without loss of time or pay” while the member is
“on training duties” or “a member of any reserve component … for consecutive
or nonconsecutive periods not to exceed a total of fifteen (15) days in
any calendar year.” (Emphasis added.) In Strode and Richardson’s case, taking
a leave of absence from their respective duties for military training entails
Footnote: missing a
twenty-four-hour workday, and thus they should be paid for every twenty-four-hour workday they
miss while on military leave, up to a
Footnote:
total of fifteen days per calendar
year. I would therefore affirm the trial court’s grant of summary judgment.
We heard oral argument in this case on October 22, 2001,
in Indianapolis. We
Footnote: commend counsel for the quality of their appellate advocacy.
According to Emp
Footnote: oyees, Richardson has continuously worked a “24/48” schedule, but
Strode has “periodically … been on a regular forty-hour day time [
sic] work
week.” Appellants’ Brief at 8.
We refer to both officers and employees as “employees” for simplicity’s
sake.
Ind. Code § 10-2-4-4 “authorize[s] and require[s]” the governor “in case
of war, invasion, insurrection, public disaste
Footnote: , or breach of the peace or imminent
danger thereof or any forcible obstructing of the execution of the laws or
reasonable apprehension thereof, and at all other times he may deem necessary, to
order on state duty the national guard or any part thereof.”
This version of Ind. Code § 10-2-4-3 was approved and declared
effective by the General Assembly on March 8, 1994. 1994 Ind. Acts
68. Subsection (c) of the statute was amended during the 2000 legislative
session to provide that “[t]he entitlement to a leave of absence without loss
of time or pay provided in this subsection is not at the discretion
of the member’s employer.” 33 Ind. Acts 2000. The second sentence
of subsection (d) was also amended to read as follows: “A leave
of absence provided under this subsection may be with or without loss of
time or pay at the discretion of the member’s employer.”
Id.
Throughout the record and in their appellate briefs, both parties cite to the
1992 version of the statute, which reads as follows:
All officers and employees of the state or any county, township, municipality, or
school corporation of the state who are members of the Indiana national guard,
reserve components or the retired personnel of the naval, air, or ground forces
are entitled to leave of absence from their respective duties, in addition to
regular vacation period, without loss of time or pay for such time as
they are:
(1) on state active duty under section 4 of this chapter;
(2) on training duties of the state of Indiana
Footnote: under the order of
the governor as commander in chief; or
(3) members of any reserve component under the order of the reserve
component authority;
for consecutive or nonconsecutive periods not to exceed a total of fifteen (15)
days in any calendar year.
The parties stipulated that the purposes of the Township’s policy are
t
Footnote: “1) comply with Indiana state law; 2) protect and economize the [LTFD’s]
use of its budgetary funds; and 3) protect the public safety by ensuring
an adequate trained work force is present and available for duty at all
times.”
Appellants’ Appendix at 28.
E
Footnote: ployees also claimed that Township “violated Ind. Code § 22-2-5-2 by
failing to make timely payments of their wages” and “violated the Equal Privileges
and Immunities Clause of the Indiana Constitution, Article I, Section 23.”
Appellants’
Appendix at 64.
In its order, the district court noted that Strode and Richardson’s
state claims raised “novel issues of Indiana law,” including “the proper meaning of
the word ‘day’ in Indiana’s Military Leave statute [Ind. Code § 10-2-4-3].”
Appellants’ Appendix at 69. The district court fur
Footnote: her noted that while it
“intimate[d] no opinion on the validity of [Townships’] interpretation of [Ind. Code §
10-2-4-3], there is no basis for finding the policy unreasonable, against established law,
or otherwise afflicted.” Appellants’ Appendix at 67.
We do not agree with Township’s assertion that “some deference is
due to the interpretations of employers such as the [Township] that adopt reasonable
interpretations of the term [“day”], because this interpretational latitude appears consistent with legislative
intent.”
Appellants’ Brief at 17. “It is hornbook law [that] municipal
ordinances and regulations are inferior in status and subordinate to the laws and
statutes of the state. When a state statute totally preempts the field,
a city may not further legislate therein. If a city attempts to
impose regulations in conflict with rights granted or reserved by the Legislature, such
ordinances or regulations are invalid.” City of Indianapolis v. Fields, 506 N.E.2d
1128, 1131 (Ind. Ct. App. 1987). Given that Ind. Code § 10-2-4-3
relates to the training of state militia and reserve units and grants certain
rights to government employees who are members of such units, we may accord
no deference to the Township’s interpretation of the statute. See Downing v.
City of Columbus, 505 N.E.2d 841, 844 (Ind. Ct. App. 1987), trans. denied
(“‘Clearly, more than municipal interests are involved in the establishment of a state
militia, and the state statutes would control over municipal provisions. Likewise, the
maintenance of a strong national defense involves more than purely local or municipal
interest.’”) (quoti
Footnote: g Reed v. City of Tulsa, 569 P.2d 451, 454 (Okla. 1977));
see also Ind. Const. art. XII, § 1 (“A militia shall be provided
…. [and] may be
Footnote: ivided into active and inactive classes and consist
of such military organizations as may be provided by law.”).
I agree with the majority that the word “day” as used
in section 10-2-4-3 is ambiguous and therefore subject to judicial interpretation.
In interpreting “day” as the duration of a government employee’s customary
workday, I am mindful of the variety and complexity of employee shifts and
schedules that have arisen in the modern workplace
Footnote: While I recognize that
interpreting a “day” as an eight-hour period might simplify matters significantly and is
superficially appealing on fairness and fiscal grounds, I cannot conclude that such an
interpretation is consistent with legislative intent.
In his amicus brief, Chief of the Indianapolis Fire Department Louis
A. Dezelan (“Dezelan”) contends that the trial court’s “misinterpret[ation] of the term ‘day’
as used in Indiana Section 10-2-4-3[] could adversely impact the City of Indianapolis
and other similarly situated fire de
Footnote: artments.” Both the record and Dezelan’s brief
are conspicuously silent, however, as to the number of firefighters who fall under
the statute and the projected impact that such a “misinterpret[ation]” might have on
budgetary and staffing considerations.
Should an employee working a 24/48 schedule exhaust his fifteen-day quota
under my interpretation of section 10-2-4-3, he would be compensated for 360 hours
of military leave per calendar year (15 days
( 24 hours/day = 360
hours), whereas an employee working a five-day, forty-hour week would be compensated for
120 hours (15 days ( 8 hours/day = 120 hours). Assuming, arguendo,
that both employees earn a yearly salary of $30,000, the 24/48 employee would
not earn a penny more than the forty-hour employee, but would instead be
compensated for an additional 240 hours of military leave, i.e., 240 hours spent
performing military duties rather than employment duties. I acknowledge that a forty-hour
employee would be less likely to exhaust his fifteen-day quota during the course
of a typical calendar year than a 24/48 employee, who must occasionally work
weekends, and thus the discrepancy would typically be greater than 240 hours.
The fact remains, however, that neither employee would earn more than $30,000 per
year. I recognize that state and local governments might be required to
hire additional employees or pay overtime to current employees to cover the shifts
of 24/48 employees while they are on military leave, but the legislative intent
expressed in section 10-2-4-3 is clear: government employees should not be penalized
for their military service. The majority assumes that the General Assembly “settled
on fifteen [eight-hour] days as an appropriate medium” in balancing the financial burdens
of government employees and their respective employers with respect to military service; in
my view, this assumption reads too much into the language of the statute
and the legislative decisionmaking process. One could just as reasonably assume that
the General Assembly carefully considered the potential economic
Footnote: impact of granting fifteen days of
paid military leave to government employees regardless of their work schedules and consciously
decided not to define “day” as an eight-hour period in order to encourage
all government employees to serve in the military.
The majority states that under its interpretation of section 10-2-4-3, Strode
and Richardson “will have sufficient military leave to perform their active duty commitment.”
While this may be true with respect to the annual two-week training
commitment, their occasional weekend shifts will inevitably and repeatedly conflict with their monthly
military training. On a 24/48 schedule, a firefighter
Footnote: must work an average of
at least three weekend days per month (assuming,
arguendo, a midnight-to-midnight shift), thereby
ensuring that the firefighter will exceed the majority’s quota of fifteen eight-hour “days”
of paid military leave per calendar year.
In
Donaldson, 936 S.W.2d 551, cited approvingly by the majority, the
governing statute addressed accumulated sick leave in terms of “working days,” which the
court had previously construed “to mean an eight-hour day rather than a twenty-four
hour shift” in calculating firemen’s holidays. Id. at 552. Moreover, the
Donaldson court observed that the “City of Pine Bluff has the authority to
operate and manage its fire department, including its fire fighter’s [sic] hours of
duty, ho
Footnote: iday compensation, annual vacation, and sick leave.” Id. at 553. Given
that section 10-2-4-3 does not contain the term “working days,” and given the
statewide defense interests and employment rights implicated therein, I do not find Donaldson
persuasive.
See also 38 U.S.C. § 4301(a) (first subchapter of 1994 United
States Employment and Reemployment Rights of Members of the Uniformed Services Act (“USERRA”);
stating that purposes of USERRA are “(1) to encourage noncareer service in the
uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment
which can result from such service; (2) to minimize the disruption to the
lives of persons performing service in the uniformed services as well as to
their employers, their fellow employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such service; and (3) to
prohibit discrimination against persons because of their service in the uniformed services.”); see
also id. § 4311(a) (“A person who is a member of, applies to
be a member of, performs, has performed, applies to perform, or has an
obligation to perform service in a uniformed service shall
Footnote: ot be denied initial
employment, reemployment, retention in employment, promotion, or any benefit of employment by an
employer on the basis of that membership, application for membership, performance of service,
application for service, or obligation.”).
The majority correctly observes that there was “no evidence that the
city [of St. Cloud] had defined ‘day’ for the Howes as anything other
than a 24-hour period,”
Howe, 515 N.W.2d at 80, but the Howe court
simply mentioned this fact in responding to the city’s argument that it had
“the inherent managerial authority to define ‘day’ as less than 24 hours for
the firefighters.” Id. The Howe court did not base its interpretation
of the applicable statute on the city’s historical definition of the term “day”;
in fact, the court invalidated the military leave term in the city’s collective
bargaining agreement with the firefighters because it directly conflicted with the court’s interpretation
of the statute. See id.; see also Boelter v. City of Coon
Rapids, 67 F.Supp.2d 1040, 1043-46 (D. Minn. 1999) (addressing firefighters’ action to enjoin
enforcement of city’s military leave policy requiring them to “proceed directly from their
military post to the fire department to be entitled to pay for their
military leave”; acknowledging that city, like City of St. Cloud in Howe, h
day, but rel