B-219232, SEP 26, 1986

B-219232, SEP 26, 1986

LEAVES OF ABSENCE - ADMINISTRATIVE LEAVE - CLIMATIC CONDITIONS - TARDINESS DIGEST: 1. WHERE, BECAUSE OF EXIGENT CIRCUMSTANCES IT BECOMES NECESSARY TO PROVIDE FOR THE TARDY ARRIVAL OF A SIGNIFICANT NUMBER OF EMPLOYEES AT A GIVEN FEDERAL INSTALLATION, ADMINISTRATIVE LEAVE AS TO THOSE EMPLOYEES REPORTING LATE MAY BE AUTHORIZED. UNLESS THE INSTALLATION IS PROPERLY CLOSED, THOSE EMPLOYEES WHO HAD PREVIOUSLY SCHEDULED EITHER ANNUAL OR SICK LEAVE AND THOSE EMPLOYEES WHO CHOSE NOT TO REPORT FOR DUTY AS A RESULT OF THE EXIGENT CIRCUMSTANCE, MAY NOT BE AUTHORIZED ADMINISTRATION LEAVE. LEAVES OF ABSENCE - ADMINISTRATIVE LEAVE - CLIMATIC CONDITIONS - TARDINESS 2. FORT EUSTIS, VIRGINIA, AND FORT MONROE, VIRGINIA, EXPERIENCED HEAVY SNOWFALL RESULTING IN A LARGE NUMBER OF EMPLOYEES REPORTING LATE FOR DUTY ON JANUARY 21, 1985. THE COMMANDERS AT BOTH INSTALLATIONS ORIGINALLY AUTHORIZED UP TO 2 HOURS OF ADMINISTRATIVE LEAVE FOR EMPLOYEES REPORTING LATE. SEVERAL DAYS THEREAFTER, THE COMMANDER OF FORT MONROE RETROACTIVELY DECLARED FORT MONROE TO HAVE BEEN CLOSED FOR 2 HOURS ON THE DATE IN QUESTION, RESULTING IN A 6 HOUR WORKDAY. THE DECISION WHETHER TO CLOSE A FEDERAL INSTALLATION IS COMMITTED TO AGENCY DISCRETION, BUT IN THIS CASE THE DECISION OF THE FORT MONROE COMMANDER TO RETROACTIVELY CLOSE THE FORT FOR 2 HOURS ON THE DAY IN QUESTION WAS AN ABUSE OF AGENCY DISCRETION. THEREFORE, HIS DECISION WAS NOT EFFECTIVE TO ALTER THE LEAVE STATUS OF EMPLOYEES WHO DID NOT REPORT TO THE INSTALLATION ON JANUARY 21.

FORT MONROE - ADMINISTRATIVE LEAVE - SNOW EMERGENCY:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM THE FINANCE AND ACCOUNTING OFFICER, U.S. ARMY TRANSPORTATION CENTER, FORT EUSTIS, VIRGINIA, DATED JUNE 20, 1985. THE REQUEST RAISES THE QUESTION OF THE PROPER CHARGE TO LEAVE FOR CIVILIAN EMPLOYEES AT FORT MONROE FOR JANUARY 21, 1985, WHEN THE AREA WAS STRUCK BY A SEVERE SNOW STORM. FOR THE REASONS SET FORTH BELOW, WE HOLD THAT THE ACTION OF THE BASE COMMANDER IN RETROACTIVELY CLOSING THE BASE WAS AN ABUSE OF DISCRETION, AND THE ORIGINAL ORDER ALLOWING ONLY UP TO 2 HOURS OF ADMINISTRATIVE LEAVE FOR LATE ARRIVALS WAS CORRECT.

DURING THE EARLY MORNING HOURS OF JANUARY 21, 1985, THE FORT EUSTIS/FORT MONROE AREA OF VIRGINIA EXPERIENCED HEAVY SNOWFALL. BECAUSE OF THE ADVERSE WEATHER, THE COMMANDER OF FORT EUSTIS AUTHORIZED UP TO 2 HOURS OF ADMINISTRATIVE LEAVE FOR ALL CIVILIAN EMPLOYEES WHO REPORTED FOR WORK LATE ON JANUARY 21, 1985. FOR EMPLOYEES WHO HAD PREVIOUSLY PLANNED FULL SHIFT ABSENCES AND DID NOT REPORT TO WORK, AND EMPLOYEES WHO BECAUSE OF THE WEATHER CHOSE NOT TO WORK AT ALL ON JANUARY 21, 1985, THE ENTIRE 8-HOUR SHIFT WAS CHARGED AS SICK OR ANNUAL LEAVE OR COMPENSATORY TIME, WHICHEVER CATEGORY WAS APPROPRIATE IN EACH CASE.

THE COMMANDER OF FORT MONROE, IN A MEMORANDUM DATED JANUARY 24, 1985, STATED THAT BECAUSE OF THE ADVERSE WEATHER CONDITIONS OF JANUARY 21, 1985, FT. MONROE CIVILIAN EMPLOYEES WERE AUTHORIZED TO REPORT TO WORK AS LATE AS 10 A.M. ON THAT DAY. THIS MEMORANDUM, IN EFFECT, AUTHORIZED UP TO 2 HOURS OF ADMINISTRATIVE LEAVE FOR ALL CIVILIAN EMPLOYEES WHO HAD REPORTED TO WORK LATE ON JANUARY 21, 1985. HOWEVER, IN A MEMORANDUM DATED FEBRUARY 1, 1985, THE COMMANDER OF FORT MONROE STATED THAT FORT MONROE HAD BEEN CLOSED UNTIL 10 A.M. ON JANUARY 21, 1985, DUE TO THE ADVERSE WEATHER. IN THE FINAL MEMORANDUM ON THIS MATTER, DATED FEBRUARY 5, 1985, THE COMMANDER OF FORT MONROE STATED THAT FORT MONROE HAD BEEN CLOSED ON JANUARY 21, 1985, UNTIL 10 A.M. TO ALL EMPLOYEES EXCEPT MISSION ESSENTIAL PERSONNEL. THE COMMANDER OF FORT MONROE SUBMITS THAT THE FEBRUARY 1, 1985, AND FEBRUARY 5, 1985, DISPOSITIONS, WHICH RETROACTIVELY CLOSED FORT MONROE ON JANUARY 21, 1985, FROM 8 A.M. TO 10 A.M., RESULTED IN A 6-HOUR WORKDAY AND AUTHORIZED THE GRANTING OF 2 HOURS OF ADMINISTRATIVE LEAVE TO ALL FORT MONROE CIVILIAN EMPLOYEES, REGARDLESS OF THEIR LEAVE STATUS ON THAT DAY. THE FORT MONROE COMMANDER FEELS THAT BECAUSE THE FORT WAS CLOSED FROM 8 A.M. TO 10 A.M. ON JANUARY 21, 1985, THE 2 HOURS IN QUESTION WERE ACTUALLY NONWORK HOURS FOR LEAVE PURPOSES.

THE FORT MONROE TIME AND ATTENDANCE SHEETS FOR JANUARY 21, 1985, INDICATE THAT 1,112 EMPLOYEES WORKED A FULL 8-HOUR DAY, 245 EMPLOYEES WERE GIVEN 2 HOURS OF ADMINISTRATIVE LEAVE AND WERE CHARGED EITHER 6 HOURS OF ANNUAL/SICK LEAVE OR COMPENSATORY TIME, AND 225 EMPLOYEES WERE CHARGED 8 HOURS OF EITHER ANNUAL LEAVE, SICK LEAVE, OR COMPENSATORY TIME. THE FINANCE AND ACCOUNTING OFFICER HAS REQUESTED OUR DECISION SO THAT HE MAY RESOLVE THE ISSUES RAISED BY THESE TIME SHEETS AND THE ACTIONS OF THE BASE COMMANDER.

THE DETERMINATION OF WHETHER TO EXCUSE EMPLOYEES FROM DUTY WITHOUT CHARGE TO LEAVE DURING SNOW EMERGENCIES IS WITHIN THE DISCRETION OF THE AGENCY INVOLVED. FEDERAL PERSONNEL MANUAL, SUPP. 990-2, BOOK 610, APPENDIX A (SEPTEMBER 30, 1980). ADDITIONALLY, THE DECISION WHETHER TO CLOSE A FEDERAL ACTIVITY IS WITHIN THE DISCRETION OF THE AGENCY INVOLVED. FEDERAL PERSONNEL MANUAL SUPP. NO. 990-2, BOOK 610, S3-1 (INST. 20, SEPTEMBER 23, 1966 (REVISED JULY 1969)). THIS OFFICE WILL NOT OVERTURN AN AGENCY ACTION COMMITTED TO AGENCY DISCRETION UNLESS WE FIND THAT THE AGENCY ACTION WAS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE NOT IN ACCORDANCE WITH LAW. KEENAN AND GOODMAN, B-209285, MARCH 22, 1983; 54 COMP.GEN. 310 (1974).

AS APPLIED TO THIS CASE, WE FIND NOTHING IMPROPER IN THE DECISION MADE BY THE COMMANDER OF FORT EUSTIS TO AUTHORIZE CIVILIAN EMPLOYEES WHO REPORTED TO WORK LATE ON JANUARY 21, 1985, BECAUSE OF THE ADVERSE WEATHER UP TO 2 HOURS OF ADMINISTRATIVE LEAVE. HOWEVER, WE FIND THE FEBRUARY 5, 1985, DECISION MADE BY THE COMMANDER OF FORT MONROE TO RETROACTIVELY CLOSE FORT MONROE FROM 8 A.M. TO 10 A.M. ON JANUARY 21, 1985, RESULTING IN THE AUTHORIZATION OF 2 HOURS OF ADMINISTRATIVE LEAVE FOR ALL CIVILIAN EMPLOYEES REGARDLESS OF THEIR LEAVE OR WORK STATUS, TO BE AN ABUSE OF DISCRETION AND NOT IN ACCORDANCE WITH LAW. THERE IS NOTHING IN THE RECORD TO EXPLAIN WHY THE ORIGINAL DECISION WAS CHANGED OR TO EXPLAIN WHAT FACTORS JUSTIFIED A DIFFERENT POLICY FOR EMPLOYEES OF FORT MONROE THAN FOR THE EMPLOYEES OF FORT EUSTIS WHEN THE INITIAL POLICY STATEMENTS OF BOTH COMMANDS WERE THE SAME.

THE FACT THAT THE JANUARY 21, 1985, TIME AND ATTENDANCE RECORDS SHOW THAT 1,112 EMPLOYEES OF FORT MONROE WORKED A FULL 8-HOUR SHIFT ON THAT DAY BRINGS INTO QUESTION THE BASE COMMANDER'S ASSERTION THAT FORT MONROE WAS CLOSED, AND A 6-HOUR WORKDAY RESULTED. ADDITIONALLY, THE CLOSING OF FORT MONROE WAS NOT INITIALLY ATTEMPTED BY THE BASE COMMANDER UNTIL 11 DAYS AFTER THE STORM, AND 8 DAYS AFTER THE BASE COMMANDER'S ORIGINAL JANUARY 24, 1985, DECISION AUTHORIZING CIVILIAN EMPLOYEES TO REPORT TO WORK AS LATE AS 10 A.M. DUE TO THE ADVERSE WEATHER CONDITIONS.

THEREFORE, WE DO NOT ACCEPT THE COMMANDER'S ASSERTION THAT FORT MONROE WAS PROPERLY CLOSED JANUARY 21, 1985, FROM 8 A.M. TO 10 A.M.

ACCORDINGLY, WITH RESPECT TO EMPLOYEES AT BOTH FORT EUSTIS AND FORT MONROE, LEAVE SHOULD BE CHARGED AS FOLLOWS. THOSE EMPLOYEES WHO REPORTED TO WORK LATE ON THE DATE IN QUESTION MAY BE AUTHORIZED UP TO 2 HOURS OF ADMINISTRATIVE LEAVE, IN ACCORDANCE WITH THE PROPER EXERCISE OF AGENCY DISCRETION. THOSE EMPLOYEES WHO WERE PREVIOUSLY SCHEDULED EITHER FOR ANNUAL OR SICK LEAVE OR COMPENSATORY TIME AND THOSE EMPLOYEES WHO CHOSE NOT TO REPORT FOR DUTY SHOULD BE CHARGED WITH 8 HOURS OF SICK OR ANNUAL LEAVE OR COMPENSATORY TIME.