Sick bank for state workers: by law or rules

When is a law a law? Strictly speaking, legislation agreed upon by both houses of the General Assembly becomes a law, a statute, when the governor signs it. But the way things work within the bureaucracy of Illinois state government, a statute may not become effective until the rules are written. Therein lies the story of the Sick Leave Bank Act, a simple piece of legislation in concept and language as laws go, that was assigned Public Act Number 87-822 almost a year ago, December 16, 1991. As of November 4, 1992, the Sick Leave Bank Act had no rules written with which to implement it, but that hasn't gotten in the way of starting up sick banks under "unofficial guidelines," which at times contradict the statute.

Sponsored by Sen. Ralph Dunn (R-58, DuQuoin), the Sick Leave Bank Act gives state employees a means of sharing accumulated sick days with coworkers suffering from serious illness or injury. According to Sen. Dunn, employees at the DuQuoin State Fair came to him looking for a way to help share their sick days with a friend and co-worker coping with cancer. After negotiations with both the American Federation of State, County and Municipal Employees (AFSCME) and the governor, the General Assembly unanimously passed the Sick Leave Bank Act.

Fall veto session, special session first week: November 17-19 second week: December 1-3 A special legislative session was called to begin at 3 p.m. November 17 on the subject of land-based casino gambling in Chicago. The special session is set to run concurrently with the veto session. Technically, the 87th General Assembly could continue to meet up until the seating of the 88th General Assembly, which is set for noon on January 13.

In the expected scheme of things, writing rules for a public act comes before implementation. Each statute has a specific route it is to follow from bill signing to executing its intent. A new law moves (with the reader's permission to bypass the many ramps and lanes along the potholed road of "hands-on" bureaucracy) from the governor's desk to the agency charged with fulfilling the language of the law. The agency then writes rules, which isn't always easy given the sometimes vague language of legislation which can re-open debate on exactly what the law is supposed to do.

Nevertheless, once the agency has formulated a set of rules, it sends those proposed rules to the secretary of state, who publishes them in the Illinois Register. After 45 days of public examination and discussion, the agency forwards the rules to the Joint Committee on Administrative Rules (JCAR), a bipartisan panel of 12 legislators who judge whether or not the agency wrote the rules in accordance with the letter and the intent of the law. JCAR has 45 days to complete its review. If the rules meet the requirements of the statute, JCAR returns them to the designated agency. As a final requirement, the agency files the rules with the secretary of state to publish again in the Illinois Register as adopted rules ready for implementation.

(JCAR has options if it does not agree with rules as written: The committee can hold up filing for 180 days for further negotiations, or it can bring a rule before the entire General Assembly seeking a joint resolution to clarify or "kill." The former happens rarely; the latter hasn't happened in JCAR's history.)

In the case of the Sick Leave Bank Act, Central Management Services (CMS) was the agency directed by the statute to "promulgate rules governing the operation of such plan." In fulfilling its charge, CMS maneuvered around the hoops of bureaucracy rather than directly through them. People in several executive agencies began donating and withdrawing sick days from their banks beginning last July.

Not that CMS did anything really wrong. According to Steve Seiple, chief counsel for CMS, the program was implemented under a collective bargaining agreement with AFSCME. Henry Baker, deputy director of AFSCME Council 31, says the union sat down with people at CMS and worked out a 14-point set of "guidelines" for individual executive agencies to follow in setting up their in-house sick leave banks.

"We expanded on what the law says. . . we were successful in negotiating a plan that included illnesses of members of the immediate family."

Indeed, the plan being used in several state agencies expands or contradicts the statute. For example, "operating rules" of the sick banks allow a minimum of five accumulated sick days before an employee may enroll, whereas the statute requires 10 days be accumulated before eligibility. Also the working rules put a cap of 25 days per calendar year on each employee's use of the bank and set a 30- to 60-day waiting period after initiation of the program before employees can use the bank. Neither of these "rules" is mentioned in the statute.

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Claire Eberle, deputy director for JCAR, says she is "very concerned" about a program being implemented before official rules have been written, rules that follow the letter and the intent of the statute. She says questions such as who is covered by the act and what specifics should, and should not, be drawn from the language need to be addressed.

The rule-writing process between CMS and JCAR will be completed "soon," according to Seiple, and the Sick Leave Bank Act will have traveled its course. At that point it will become a law in effect as well as in the books.

Whether or not the act has been implemented by a direct or a circuitous route, the end result is a law that gives state employees, and the state, a vehicle

for investment. Days banked cannot be withdrawn for any reason, so the state saves paying some sick days — quite a few if all 60,000 employees donate even one day (upon retirement or quitting their jobs, employees receive payment for half the sick days they've accumulated). Employees can bank as little as one sick day and be eligible for 25 days (under the "unofficial" rules) in case of very serious illness or injury to themselves or members of their families.

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