B-108632, DECEMBER 30, 1957, 37 COMP. GEN. 439
Highlights
LEAVES OF ABSENCE - SICK - ADVANCE - LIQUIDATION BY ANNUAL LEAVE CHARGE TO PERMIT THE LIQUIDATION OF AN EMPLOYEE'S ADVANCE SICK LEAVE DEBT BY A CHARGE AGAINST AN EQUIVALENT AMOUNT OF ANNUAL LEAVE AT THE REQUEST OF THE EMPLOYEE IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951. PROVIDED THAT THE ANNUAL LEAVE CHARGE IS MADE PRIOR TO THE TIME IT WOULD BE FORFEITED BY OPERATION OF THE LIMITATION IN THE LEAVE LAW AND THAT THE ADMINISTRATIVE OFFICE WOULD OTHERWISE HAVE GRANTED THE ANNUAL LEAVE UPON THE REQUEST OF THE EMPLOYEE. AN ATTORNEY OF YOUR DEPARTMENT WAS ADVANCED SICK LEAVE IN EXCESS OF 200 HOURS DURING THE 1956 LEAVE YEAR AT WHICH TIME HE HAD 379 HOURS OF ANNUAL LEAVE TO HIS CREDIT CARRIED OVER AS HIS CEILING.
B-108632, DECEMBER 30, 1957, 37 COMP. GEN. 439
LEAVES OF ABSENCE - SICK - ADVANCE - LIQUIDATION BY ANNUAL LEAVE CHARGE TO PERMIT THE LIQUIDATION OF AN EMPLOYEE'S ADVANCE SICK LEAVE DEBT BY A CHARGE AGAINST AN EQUIVALENT AMOUNT OF ANNUAL LEAVE AT THE REQUEST OF THE EMPLOYEE IS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061 NOTE, PROVIDED THAT THE ANNUAL LEAVE CHARGE IS MADE PRIOR TO THE TIME IT WOULD BE FORFEITED BY OPERATION OF THE LIMITATION IN THE LEAVE LAW AND THAT THE ADMINISTRATIVE OFFICE WOULD OTHERWISE HAVE GRANTED THE ANNUAL LEAVE UPON THE REQUEST OF THE EMPLOYEE.
TO THE ATTORNEY GENERAL, DECEMBER 30, 1957:
ON DECEMBER 12, 1957, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, FILE A7, REQUESTED OUR DECISION CONCERNING THE POSSIBILITY OF LIQUIDATING ADVANCED SICK LEAVE BY SUBSTITUTING AN EQUIVALENT AMOUNT OF ANNUAL LEAVE UNDER THE FOLLOWING CIRCUMSTANCES AS STATED IN HIS LETTER.
AN ATTORNEY OF YOUR DEPARTMENT WAS ADVANCED SICK LEAVE IN EXCESS OF 200 HOURS DURING THE 1956 LEAVE YEAR AT WHICH TIME HE HAD 379 HOURS OF ANNUAL LEAVE TO HIS CREDIT CARRIED OVER AS HIS CEILING. ON DECEMBER 10, 1957, HE HAD REMAINING TO HIS CREDIT 147 HOURS OF CURRENT ACCRUED LEAVE WHICH WHEN ADDED TO AN ADDITIONAL 24 HOURS FOR LEAVE YET TO BE CREDITED FOR THAT LEAVE YEAR MAKES A LEAVE BALANCE OF 171 HOURS TO BE TAKEN DURING THE CURRENT LEAVE YEAR. ON DECEMBER 10 IT WAS AGREEABLE TO YOUR DEPARTMENT THAT THE EMPLOYEE BE GRANTED THE ANNUAL LEAVE IN THIS LEAVE YEAR. HOWEVER, SINCE THE EMPLOYEE WAS STILL CHARGED WITH 92 HOURS ADVANCE SICK LEAVE ON NOVEMBER 30, HE PROPOSED THAT HE LIQUIDATE HIS ADVANCE LEAVE IN WHOLE OR IN PART BY HAVING LIKE AMOUNT OF ANNUAL LEAVE DEDUCTED.
THE SPECIFIC QUESTIONS PRESENTED FOR DECISION ARE AS FOLLOWS: (1) WHETHER UNDER THE ABOVE CIRCUMSTANCES THE EMPLOYEE MAY HAVE THE ANNUAL LEAVE APPLIED IN WHOLE OR IN PART TO LIQUIDATE HIS INDEBTEDNESS FOR THE ADVANCED SICK LEAVE? (2) WOULD OUR ANSWER BE DIFFERENT IF THE ONLY PART OF THE ANNUAL LEAVE TO BE USED TO OFFSET THE INDEBTEDNESS WERE THE 24 HOURS YET TO BE CREDITED FOR THIS LEAVE YEAR? (3) ASSUMING THAT LITTLE OR NONE OF THE CURRENT YEAR'S ACCUMULATION MAY BE USED TO OFFSET THE ADVANCED SICK LEAVE, MAY THE EMPLOYEE OFFICIALLY REQUEST THAT ANNUAL LEAVE TO ACCRUE DURING THE 1958 LEAVE YEAR (IN ADDITION TO EARNED SICK LEAVE) BE APPLIED AS EARNED TOWARDS LIQUIDATION OF HIS ADVANCED SICK LEAVE?
WHEN PROPERLY APPROVED BY THE ADMINISTRATIVE OFFICE CONCERNED AN EMPLOYEE UNDER THE LAW MAY BE ADVANCED NOT TO EXCEED 30 DAYS OF SICK LEAVE. NORMALLY, ADVANCED SICK LEAVE IS LIQUIDATED BY SUBSEQUENT ACCRUALS OF SICK LEAVE OR, UPON SEPARATION, BY REFUND OF THE MONEY VALUE OF THE ADVANCED LEAVE. IT IS IN THE INTEREST OF THE GOVERNMENT TO LIQUIDATE ADVANCED SICK LEAVE AT THE EARLIEST OPPORTUNITY. THEREFORE, IN THE ABSENCE OF A PROVISION OTHERWISE IN THE ANNUAL AND SICK LEAVE REGULATIONS, IT APPEARS THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061 NOTE, AS AMENDED, IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED TO PERMIT ADVANCED SICK LEAVE TO BE LIQUIDATED BY A CHARGE AGAINST ANNUAL LEAVE UNDER THE CIRCUMSTANCES PRESENTED. THE LIQUIDATION OF ADVANCED SICK LEAVE IS TO BE DISTINGUISHED FROM THE CASE OF SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE TO AVOID FORFEITURE. IN OUR DECISION 31 COMP. GEN. 524 WE HELD THAT THERE IS NO AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, OR REGULATIONS ISSUED PURSUANT THERETO, TO SUBSTITUTE ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT FOR SICK LEAVE PREVIOUSLY GRANTED FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR.
THEREFORE, OUR VIEW IS THAT, IN THE EXERCISE OF ADMINISTRATIVE DISCRETION ADVANCED SICK LEAVE MAY BE LIQUIDATED AT THE EMPLOYEE'S REQUEST BY A CHARGE AGAINST AN EQUIVALENT AMOUNT OF ANNUAL LEAVE UNDER THE CONDITIONS PRESENTED IN THE LETTER, PROVIDED THE ANNUAL LEAVE IS CHARGED PRIOR TO THE TIME IT WOULD BE FORFEITED BY OPERATION OF THE LIMITATION IN THE LEAVE LAW, AND PROVIDED FURTHER THAT THE ADMINISTRATIVE OFFICE OTHERWISE WOULD HAVE GRANTED THE ANNUAL LEAVE UPON THE REQUEST OF THE EMPLOYEE. OUR DECISIONS INDICATING A CONTRARY VIEW ARE NO LONGER FOR APPLICATION.