Fremont Police Ass'n v. City of Fremont

[803]Opinion

CHRISTIAN, J. The Fremont Police Association appeals from a judgment determining the validity of a personnel rule of the City of Fremont. The personnel rule complained of grants a vacation of 12 working days to any policeman with less than 5 years of employment; the issue is whether Government Code section 386341 requires the city to grant an annual leave of 15 working days to members of its police force.

The same question was considered by the Attorney General in an opinion which concluded that the term “days” in section 38634 refers to calendar rather than working days. (31 Ops.Cal.Atty.Gen. 132.) Opinions of the Attorney General are not binding on the courts, but they are entitled to great weight. (Smith v. Anderson (1967) 67 Cal.2d 635, 641, fn. 5 [63 Cal.Rptr. 391, 433 P.2d 183].) The opinion points out that the Legislature has in certain other enactments expressly provided that the term “days” refers to working days. No such specification appears in section 38634. When section 38634 was enacted in 1949, Government Code sections 18050 and 24005 had both referred to “working days” in the computation of vacation time for state and county employees respectively. The omission of that term from section 38634 suggests that the Legislature had not meant to refer to working days in providing a minimum standard for police vacations.

The statutes had previously provided that cities may grant each policeman “a leave of absence from active duty for a period of... 15 days.” (See Stats. 1891, ch. 49, § 1, p. 47; Stats. 1907, ch. 44, § 1, p. 62.) Appellant argues that the deletion of the word “period,” when the enactment was codified as section 38634, was significant. But the changed phraseology appears to be no more than a deletion of superfluous language; there is no significant difference between the expressions “period of 15 days” and “15 days.” A change in phraseology does not impart a change in the meaning of a statute unless there is some material alteration thereof. (45 Cal.Jur.2d, Statutes, § 125, p. 634.)

A similar statute, Government Code section 53250,2 has been construed to mandate only 15 calendar days (not working days) of vacation [804]