A-75809, JULY 15, 1936, 16 COMP. GEN. 28

A-75809: Jul 15, 1936

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LEAVES OF ABSENCE - ANNUAL - UNUSED - PAYMENT FOR AFTER SEPARATION FROM SERVICE THERE IS NO AUTHORITY FOR PAYING EMPLOYEES AFTER SEPARATION FROM SERVICE FOR UNUSED LEAVE ACCRUED UNDER THE ACT OF MARCH 14. AS FOLLOWS: IT IS REQUESTED THAT YOU ADVISE THIS ADMINISTRATION REGARDING THE AUTHORITY TO REIMBURSE AN EMPLOYEE FOR ACCRUED ANNUAL LEAVE GRANTED BY THE ACT OF MARCH 14. IF REIMBURSEMENT FOR SUCH LEAVE IS PROPER. WHO WAS APPOINTED ON JULY 1. CLOUTIER WAS TERMINATED ON JANUARY 31. CLOUTIER IS ENTITLED TO TWO DAYS. - "ANNUAL LEAVE OF ABSENCE UNDER EXISTING LAWS IS A PRIVILEGE ONLY. THERE IS NO AUTHORITY TO PAY EMPLOYEES AT THE TIME OF SEPARATION OR THEREAFTER FOR LEAVE NOT GRANTED AND ACTUALLY TAKEN PRIOR TO SEPARATION.'.

A-75809, JULY 15, 1936, 16 COMP. GEN. 28

LEAVES OF ABSENCE - ANNUAL - UNUSED - PAYMENT FOR AFTER SEPARATION FROM SERVICE THERE IS NO AUTHORITY FOR PAYING EMPLOYEES AFTER SEPARATION FROM SERVICE FOR UNUSED LEAVE ACCRUED UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, JULY 15, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 23, 1936, AS FOLLOWS:

IT IS REQUESTED THAT YOU ADVISE THIS ADMINISTRATION REGARDING THE AUTHORITY TO REIMBURSE AN EMPLOYEE FOR ACCRUED ANNUAL LEAVE GRANTED BY THE ACT OF MARCH 14, 1936 (PUBLIC, NO. 471, 74TH CONGRESS) IN THE EVENT THAT SUCH LEAVE HAS NOT BEEN RECEIVED PRIOR TO SEPARATION FROM THE SERVICE, THROUGH NO FAULT ON HIS PART. IF REIMBURSEMENT FOR SUCH LEAVE IS PROPER, IN WHAT MANNER SHOULD IT BE MADE?

IN CONNECTION WITH THIS PROBLEM, THE FOLLOWING SITUATION HAS ARISEN IN THE CASE OF W. E. CLOUTIER, AN EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION ATTACHED TO THE REGIONAL OFFICE AT NEW HAVEN, CONNECTICUT, WHO WAS APPOINTED ON JULY 1, 1935. DUE TO REDUCTION OF PERSONNEL, THE APPOINTMENT OF MR. CLOUTIER WAS TERMINATED ON JANUARY 31, 1936, AT WHICH TIME HE HELD AN EMERGENCY APPOINTMENT. NOT BEING INFORMED AS TO HIS RIGHTS WITH RESPECT TO ANNUAL LEAVE, HE HAD OUTSTANDING AT THE TIME OF HIS TERMINATION FROM THE SERVICE, ACCRUED LEAVE TO THE EXTENT OF ONE DAY, SIX HOURS, AND FIFTY MINUTES, EARNED UNDER THE FORMER LEAVE BILL FOR THE PERIOD OF SERVICE UP TO JANUARY 1, 1936. BY VIRTUE OF THE RETROACTIVE PROVISION OF THE ACT OF MARCH 14, 1936, MR. CLOUTIER IS ENTITLED TO TWO DAYS, ONE HOUR, AND TEN MINUTES' ANNUAL LEAVE FOR HIS PERIOD OF SERVICE IN JANUARY, 1936.

IN YOUR OPINION OF APRIL 16, 1935 (14 C. G. 738) YOU STATED WITH RESPECT TO THE FORMER LEAVE BILL THAT---

"ANNUAL LEAVE OF ABSENCE UNDER EXISTING LAWS IS A PRIVILEGE ONLY, ALLOWABLE WITHIN ADMINISTRATIVE DISCRETION, SUBJECT, OF COURSE, TO STATUTORY LIMITATIONS. IT HAS BEEN HELD CONSISTENTLY THAT, IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING, THERE IS NO AUTHORITY TO PAY EMPLOYEES AT THE TIME OF SEPARATION OR THEREAFTER FOR LEAVE NOT GRANTED AND ACTUALLY TAKEN PRIOR TO SEPARATION.'

ON THE BASIS OF THIS OPINION, THIS ADMINISTRATION HAS HELD THAT IT WOULD BE IMPROPER TO REIMBURSE MR. CLOUTIER FOR THE LEAVE WHICH ACCURED PRIOR TO JANUARY 1, 1936.

LEAVE GRANTED BY THE ACT OF MARCH 14, 1936, WOULD APPEAR TO BE AN ABSOLUTE GRANT AS DISTINGUISHED FROM A MERE PRIVILEGE. THE ACT PROVIDES THAT IT BECOMES EFFECTIVE JANUARY 1, 1936. IN VIEW OF THE FACT THAT MR. CLOUTIER HAD SEPARATED FROM THE SERVICE BEFORE THE ACT WAS PASSED, IT WOULD NOT BE POSSIBLE TO CARRY OUT THE PROVISION OF THE ACT IN HIS CASE EXCEPT BY REIMBURSING HIM FOR LEAVE GRANTED TO HIM THEREBY. YOUR OPINIONIS THEREFORE REQUESTED AS TO THE LEGALITY OF MAKING REIMBURSEMENT TO MR. CLOUTIER FOR LEAVE FOR HIS PERIOD OF SERVICE IN JANUARY 1936.

THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE, FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. 5 COMP. GEN. 752; 7 ID. 83; 8 ID. 471; 12 ID. 602; 13 ID. 79; AND 14 ID. 443. THE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, MAY GRANT LEAVE OF ABSENCE AS A RIGHT BUT IT DOES NOT PROVIDE FOR PAYING EMPLOYEES FOR ACCRUED UNUSED LEAVE AFTER SEPARATION FROM THE SERVICE. ON THE BASIS OF THE FACTS STATED IN YOUR LETTER, THE FORMER EMPLOYEE IS NOT ENTITLED TO PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THE SERVICE.