A-52355, DECEMBER 26, 1933, 13 COMP. GEN. 179

A-52355: Dec 26, 1933

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YOU ADVISED AS FOLLOWS: "* * * WHILE IT IS UNDERSTOOD TO HAVE BEEN THE ADMINISTRATIVE PRACTICE TO PAY EMPLOYEES UPON SEPARATION FROM THE SERVICE FOR UNUSED EARNED OR ACCRUED LEAVE. THAT IS. EMPLOYEES WERE PAID THE LEAVE THEN DUE THEM ON SEPARATION FROM THE SERVICE AND NOT CONTINUED ON THE ROLLS PENDING THE EXPIRATION OF LEAVE PREVIOUSLY EARNED. AN EMPLOYEE WHO RESIGNED AFTER HAVING SERVED A FRACTIONAL PART OF A YEAR IS ENTITLED TO PAY FOR THE PRO RATA LEAVE ACCRUED BUT NOT TAKEN BY HIM AT THE TIME OF HIS RESIGNATION. THE LONG-ESTABLISHED PRACTICE OF THIS OFFICE IN PAYING EMPLOYEES FOR THEIR UNUSED LEAVE ON SEPARATION FROM THE SERVICE IS ALSO SUPPORTED BY THE LAW (U.S.C. SUCH ACCOUNTS ARE CERTIFIED TO YOUR OFFICE FOR PAYMENT.

A-52355, DECEMBER 26, 1933, 13 COMP. GEN. 179

COMPENSATION - LEAVES OF ABSENCE - GOVERNMENT PRINTING OFFICE EMPLOYEES THE PAST ADMINISTRATIVE PRACTICE OF REIMBURSING EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE UPON SEPARATION FROM THE SERVICE FOR UNUSED EARNED OR ACCRUED LEAVE, EXCEPT IN CASE OF DEATH IN THE ACTIVE SERVICE, MAY NOT BE CONTINUED OR REVIVED. 12 COMP. GEN. 602, AFFIRMED.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, DECEMBER 26, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 25, 1933, AS FOLLOWS:

IN YOUR DECISION (A-42806) AND (A-48311), APRIL 21, 1933, TO THE PUBLIC PRINTER, YOU ADVISED AS FOLLOWS:

"* * * WHILE IT IS UNDERSTOOD TO HAVE BEEN THE ADMINISTRATIVE PRACTICE TO PAY EMPLOYEES UPON SEPARATION FROM THE SERVICE FOR UNUSED EARNED OR ACCRUED LEAVE, THERE APPEARS NOTHING IN THE ACT OF 1806 OR OTHERWISE TO AUTHORIZE SUCH PRACTICE. THEREFORE, THE PRACTICE SHOULD BE DISCONTINUED. IT WOULD NOT BE IMPROPER TO MAKE THE EMPLOYEE'S SEPARATION FROM THE SERVICE EFFECTIVE AT THE EXPIRATION OF THE ACCRUED LEAVE, THAT IS, TO CARRY THE EMPLOYEE ON THE ROLLS AS IN A LEAVE-WITH PAY STATUS UNTIL THE EXPIRATION OF HIS ACCRUED LEAVE. * * *"

PRIOR TO FOREGOING DECISION AND IN ACCORD WITH THE PRACTICE OF THE OFFICE FOR THIRTY-SEVEN YEARS, EMPLOYEES WERE PAID THE LEAVE THEN DUE THEM ON SEPARATION FROM THE SERVICE AND NOT CONTINUED ON THE ROLLS PENDING THE EXPIRATION OF LEAVE PREVIOUSLY EARNED.

IN THIS CONNECTION, I INVITE YOUR ATTENTION TO THE FOLLOWING RULINGS ON THE SUBJECT, TO BE FOUND IN DIGEST OF DECISIONS OF THE COMPTROLLER OF THE TREASURY, PAGE 873:

"/1896, JULY 22.) UNDER THE ACTS OF JUNE 19, 1894, 28 STAT., 94; MARCH 2, 1895, 28 STAT. 868; AND JUNE 11, 1896, 29 STAT. 453, THE PUBLIC PRINTER MAY PAY PRO RATA LEAVE OF ABSENCE FOR THE CURRENT FISCAL YEAR TO ANY EMPLOYEE SEVERING HIS CONNECTION WITH THE OFFICE WITHOUT REQUIRING THAT THE EMPLOYEE TAKE AN ACTUAL LEAVE OF ABSENCE.--- 3:27.'

"/1903, DEC. 10.) UNDER THE ACT OF JUNE 11, 1896, 29 STAT., 453, WHICH PROVIDES FOR LEAVES OF ABSENCE TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, AN EMPLOYEE WHO RESIGNED AFTER HAVING SERVED A FRACTIONAL PART OF A YEAR IS ENTITLED TO PAY FOR THE PRO RATA LEAVE ACCRUED BUT NOT TAKEN BY HIM AT THE TIME OF HIS RESIGNATION.--- 10:472.'

THE LONG-ESTABLISHED PRACTICE OF THIS OFFICE IN PAYING EMPLOYEES FOR THEIR UNUSED LEAVE ON SEPARATION FROM THE SERVICE IS ALSO SUPPORTED BY THE LAW (U.S.C., TITLE 44, SEC. 45) WHICH AUTHORIZES THE PUBLIC PRINTER TO PAY TO THE LEGAL REPRESENTATIVES OF ANY EMPLOYEES WHO MAY DIE ANY ACCUMULATED LEAVE OF ABSENCE DUE, AND SUCH ACCOUNTS ARE CERTIFIED TO YOUR OFFICE FOR PAYMENT.

TO CONTINUE ON THE ROLLS EMPLOYEES, ESPECIALLY THOSE WHO HAVE HELD ESSENTIAL SUPERVISORY POSITIONS, PENDING EXPIRATION OF LEAVE WILL PREVENT THE APPOINTMENT OR PROMOTION OF OTHER EMPLOYEES TO DO THEIR WORK AND MAY SERIOUSLY HANDICAP THE OPERATION OF THIS OFFICE AT TIMES WHEN THE SERVICES OF SUCH EMPLOYEES ARE URGENTLY NEEDED.

YOUR RECENT DECISION REQUIRING EMPLOYEES TO BE RETAINED ON THE ROLLS UNTIL THEIR ACCRUED LEAVE HAS EXPIRED ALSO RAISES THE QUESTION AS TO WHETHER EMPLOYEES WHO ARE NOMINALLY RETAINED ON THE ROLLS IN LEAVE WITH- PAY STATUS AFTER NOTICE OF SEPARATION MAY EARN ADDITIONAL LEAVE AND BE GRANTED HOLIDAYS AND HALF-HOLIDAYS WITH PAY DURING SUCH PERIOD.

IN VIEW OF THESE FACTS, I RESPECTFULLY REQUEST THAT THIS MATTER BE GIVEN FURTHER CONSIDERATION BY YOUR OFFICE. IT IS DESIRED, FOR REASONS OF ECONOMY AND EFFICIENCY TO REESTABLISH THE FORMER PRACTICE OF PAYING TO AN EMPLOYEE AT THE TIME OF SEPARATION FROM THE SERVICE ANY UNUSED LEAVE WHICH HAD BEEN EARNED AND FOUND DUE HIM, WITHOUT REQUIRING THAT HE TAKE AN ACTUAL LEAVE OF ABSENCE. THIS WOULD, IN MY OPINION, COMPLY WITH LAW AND THE DECISIONS NOTED HEREIN. FURTHER, IT WOULD BE A DEFINITE SAVING TO THE GOVERNMENT.

YOUR EARLY ADVICE IS REQUESTED AS TO WHETHER ABOVE FORMER PRACTICE MAY PROPERLY BE RESUMED IN THIS OFFICE.

THE CONTROLLING STATUTE AND ADMINISTRATIVE PROCEDURE WERE CITED AND CONSIDERED IN THE DECISION OF APRIL 21, 1933, 12 COMP. GEN. 602.

UNLESS SPECIFICALLY SO PROVIDED BY STATUTE, WHICH IS NOT THE CASE AS TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, LEAVE OF ABSENCE OF FEDERAL PERSONNEL IS NOT A RIGHT FOR WHICH REIMBURSEMENT MAY BE MADE IF NOT GRANTED BUT A PRIVILEGE OR BENEFIT TO BE ENJOYED BY THE EMPLOYEES WITHIN ADMINISTRATIVE DISCRETION WHILE THE EMPLOYEES ARE IN ACTIVE SERVICE. SUCH LEAVE PRIVILEGE OR BENEFIT IS NOT AVAILED OF DURING ACTIVE SERVICE, OR IT BECOMES IMPRACTICABLE ADMINISTRATIVELY TO ALLOW THE LEAVE DURING ACTIVE SERVICE, THERE IS NO AUTHORITY EITHER IN THE ACT OF JUNE 11, 1896, 29 STAT. 453, OR OTHERWISE, TO MAKE REIMBURSEMENT AFTER SEPARATION FROM THE SERVICE, EXCEPT IN CASE OF DEATH, FOR THE LEAVE NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE. WITH THE EXCEPTION OF EMPLOYEES WHO DIE WHILE IN ACTIVE SERVICE, THE LEAVE LAWS GOVERNING THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE ARE NOT DIFFERENT IN THIS RESPECT FROM THE LEAVE LAWS GOVERNING PERSONNEL OF THE FEDERAL DEPARTMENTS GENERALLY, AND THERE APPEARS NO SOUND REASON WHY THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SHOULD BE TREATED DIFFERENTLY IN THIS RESPECT FROM OTHER FEDERAL PERSONNEL, PARTICULARLY NOW THAT THE LEAVE OF ALL IS CUMULATIVE INDEFINITELY.

I CANNOT AGREE WITH THE DECISIONS OF THE COMPTROLLER OF THE TREASURY CITED BY YOU, NOR WITH YOUR CONCLUSION AS TO THE INFERENCE TO BE DRAWN FROM THE EXPRESS STATUTORY AUTHORITY FOR REIMBURSING THE PERSONAL REPRESENTATIVES OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHO DIE WHILE IN ACTIVE SERVICE FOR UNUSED LEAVE. PURSUANT TO THE ORDINARY RULES OF STATUTORY CONSTRUCTION AND THE LEGAL MAXIM, EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, THE INFERENCE TO BE DRAWN, IF ANY, IS THAT THE EXPRESS STATUTORY AUTHORITY TO MAKE REIMBURSEMENT FOR UNUSED LEAVE IN CASE OF DEATH WOULD PRECLUDE REIMBURSEMENT WHEN SEPARATION FROM THE SERVICE IS FOR ANY CAUSE OTHER THAN DEATH.

REFERRING TO THE THIRD FROM THE LAST PARAGRAPH OF YOUR LETTER, THE DECISION OF APRIL 21, 1933, SUPRA, DID NOT REQUIRE "EMPLOYEES TO BE RETAINED ON ROLLS AFTER THEIR ACCRUED LEAVE HAS EXPIRED.' THE MATTER IS ONE ENTIRELY WITHIN ADMINISTRATIVE DISCRETION. SEE DECISION OF MAY 9, 1933, A-48206, A-48311.

YOU ARE ADVISED, THEREFORE, THAT THE PAST PRACTICE OF REIMBURSING EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE UPON SEPARATION FROM THE SERVICE FOR UNUSED EARNED OR ACCRUED LEAVE, EXCEPT IN CASE OF DEATH IN THE ACTIVE SERVICE, MAY NOT BE CONTINUED OR REVIVED.