October 6, 2003

Sonja Phillips
890 Gabe Road
Clendenin, WV 25045

Dear Ms. Phillips:

Senator Robert C. Byrd has contacted my office regarding your request for an interpretation of West Virginia Code ?15-1F-1 as it relates to your husband, a teacher for Kanawha County Schools.

West Virginia Code ?15-1F-1 is applicable to teachers because county boards of education are political subdivisions of the state. It states, in pertinent part:

(a) All officers and employees of the state, or subdivisions or municipalities thereof, who shall be members of the national guard or armed forces reserves, shall be entitled to military leave of absence from their respective offices or employments without loss of pay, status or efficiency rating, on the days during which they are ordered, by properly designated authority, to be engaged in drills, parades or other duty, during business hours, field training or active service of the state, for a maximum period of thirty working days in any one calendar year.

(b) Effective the eleventh day of September, two thousand one, all officers and employees of the state, or subdivisions or municipalities thereof, who are ordered or called to active duty by the properly designated federal authority shall be entitled to military leave of absence from their respective offices or employments without loss of pay, status or efficiency rating for a maximum period of thirty working days for a single call to active duty:
Provided, That an officer or employee of the state, or subdivisions or municipalities called to active duty who has not used all or some portion of the thirty working days of military leave of absence granted by subsection (a) shall be entitled to add the number of unused days from that calendar year to the thirty working days granted by this subsection, up to a maximum of sixty days for a single call to active duty: Provided, however, That none of the unused days of military leave of absence granted by subsection (a) may be carried over and used in the next calendar year.

This statute creates two categories of benefits for military reservists. The first category gives non-active reservists thirty working days of paid leave for drills, parades, or other non-active duty during a calendar year. However, if the employee is called to active duty by the properly designated federal authority, the activated federal reservist is entitled to additional leave without pay. See Op. Att?y Gen., July 16, 1991.

Subsection (b) of the statute plainly states that if a reservist called to active duty by the properly designated federal authority has not used all of the thirty days of paid leave authorized by subsection (a) in a calendar year, he or she shall be entitled to add those unused days to the thirty days of paid leave granted under subsection (b). This allows a reservist called to active duty by the properly designated federal authority to use up to sixty paid days of military leave for a single call to active duty.

It is important to note that Code ?15-1F-1 does not authorize payment for more than sixty days for a single call to active duty by the properly designated federal authority. The sixty days authorized under the statute include those days used for drills, parades, and other non-active duties as well as those days used while on active duty. Thus, if your husband had used fifteen days of paid leave under subsection (a) for non-active duties and was then called to active duty by the properly designated federal authority, he would be entitled to an additional forty-five days of paid military leave for that single call to active duty. However, if your husband had used fifteen days of paid leave under subsection (a) for non-active duties and was then called to active duty by the governor, he would only be entitled to an additional fifteen days of paid military leave. In no case does the statute allow for unused days of military pay granted under subsection (a) to be carried from one year to the next.

Hoping that I have been of service, I am

Sincerely,

/s/