COUNTY ATTORNEY OFFICIAL OPINION #95-8

DATED: April 26, 1995

ISSUE PRESENTED:

May the Sheriff carry-over an employee’s unused vacation time that was beyond the employee’s ability to prevent the excess vacation accumulation, and the Sheriff was unable to prevent the occurrence of the excess accumulation, because of scheduling and man-power shortages?

BRIEF ANSWER:

Title 2 Chapter 18 Part 6, applies to the question presented. 2-18-16 defines an employee as any person employed by an agency except elected state county and city officials... Thus, a secretary employed by the county would come under the provisions of this title.

Under 2-18-617, it is the responsibility of the head of the employing agency, in this case, the Sheriff of the Sheriff’s Office, to provide a reasonable opportunity for the employee to use rather than forfeit accumulated vacation leave. Since the excess vacation time was not given a reasonable opportunity to be utilized by the employee through a request by the employee, the Sheriff must not forfeit the excess vacation leave, and must give the employee the opportunity to use the excess vacation leave before the end of the calendar year in which the leave would have been forfeited. In other words, if accumulated vacation leave would have been forfeited April 1, 1994, then the employee, under the above circumstances, would have until January 1, 1996, to utilize that leave, and the Sheriff must make reasonable accommodations to the employee to utilize that accumulated leave before the end of that time period.

DATED this day of April, 1995.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY