A-82990, FEBRUARY 10, 1937, 16 COMP. GEN. 755

A-82990: Feb 10, 1937

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1936 - DISBURSING OFFICERS' LIABILITY FOR UNLIQUIDATED ADVANCES A DISBURSING OFFICER IS NOT LIABLE FOR THE INDEBTEDNESS OF AN EMPLOYEE BROUGHT ABOUT BY SICK LEAVE ADVANCES UNLIQUIDATED PRIOR TO SEPARATION FROM SERVICE. IS AS FOLLOWS: THE FOLLOWING QUESTION HAS BEEN SUBMITTED TO THE NAVY DEPARTMENT BY THE COMMANDANT OF THE NAVY YARD. A DECISION IS REQUESTED AS TO WHETHER OR NOT THIS REGULATION PLACES UPON THE ACCOUNTING AND DISBURSING OFFICERS THE DUTY OF EFFECTING A REIMBURSEMENT OF THE ENTIRE AMOUNT OF SALARY REPRESENTED BY THE VALUE OF UNLIQUIDATED SICK LEAVE ADVANCES. IF THE ACCOUNTS OF THE DISBURSING OFFICER ARE SUBJECT TO SUSPENSION IN CASES WHERE RECOVERY IS NOT MADE DUE TO INSUFFICIENT FUNDS TO THE EMPLOYEE'S CREDIT.

A-82990, FEBRUARY 10, 1937, 16 COMP. GEN. 755

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - DISBURSING OFFICERS' LIABILITY FOR UNLIQUIDATED ADVANCES A DISBURSING OFFICER IS NOT LIABLE FOR THE INDEBTEDNESS OF AN EMPLOYEE BROUGHT ABOUT BY SICK LEAVE ADVANCES UNLIQUIDATED PRIOR TO SEPARATION FROM SERVICE, AND WHERE SUCH EMPLOYEE HAS INSUFFICIENT UNPAID COMPENSATION AND RETIREMENT DEDUCTIONS TO HIS CREDIT, HE SHOULD BE CALLED UPON TO REFUND THE BALANCE DUE, FAILURE TO MAKE REFUND TO BE REPORTED TO THE GENERAL ACCOUNTING OFFICE FOR COLLECTION PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 10, 1937:

YOUR LETTER OF JANUARY 12, 1937, IS AS FOLLOWS:

THE FOLLOWING QUESTION HAS BEEN SUBMITTED TO THE NAVY DEPARTMENT BY THE COMMANDANT OF THE NAVY YARD, WASHINGTON, D.C., CONCERNING THE LIABILITY OF A DISBURSING OFFICER FOR PAYMENTS TO EMPLOYEES DULY MADE ON ACCOUNT OF LEGALLY AUTHORIZED ADVANCES OF SICK LEAVE.

SECTIONS 3 TO 6 OF EXECUTIVE ORDER NO. 7410 OF 9 JULY, 1936, PROVIDE FOR THE GRANTING OF ADVANCES OF SICK LEAVE NOT TO EXCEED AT ANY TIME THIRTY DAYS BEYOND THE ACCUMULATED SICK LEAVE. UNDER SECTION 10 OF SAID EXECUTIVE ORDER, IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE EXCESS, OR DEDUCTION SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT.

A DECISION IS REQUESTED AS TO WHETHER OR NOT THIS REGULATION PLACES UPON THE ACCOUNTING AND DISBURSING OFFICERS THE DUTY OF EFFECTING A REIMBURSEMENT OF THE ENTIRE AMOUNT OF SALARY REPRESENTED BY THE VALUE OF UNLIQUIDATED SICK LEAVE ADVANCES, AND IF THE ACCOUNTS OF THE DISBURSING OFFICER ARE SUBJECT TO SUSPENSION IN CASES WHERE RECOVERY IS NOT MADE DUE TO INSUFFICIENT FUNDS TO THE EMPLOYEE'S CREDIT.

PENDING RECEIPT OF THE DECISION REQUESTED, NO ADVANCES OF SICK LEAVE WILL BE APPROVED UNLESS THERE IS TO THE CREDIT OF THE EMPLOYEE SUFFICIENT FUNDS IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND TO OFFSET THE VALUE OF THE ADVANCE.

THE NAVY DEPARTMENT IS OF THE OPINION THAT A PAYMENT ONCE MADE FOR ADVANCED SICK LEAVE LEGALLY GRANTED IS FINAL AND THAT WHERE THE EMPLOYEE IS SUBSEQUENTLY VOLUNTARILY SEPARATED FROM THE SERVICE OR REMOVED FOR CAUSE, WITH INSUFFICIENT FUNDS TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND AND/OR ON THE CURRENT PAY ROLL TO LIQUIDATE THE EXCESS LEAVE LEGALLY GRANTED, THE DEFICIENCY CONSTITUTES AN INDEBTEDNESS OF THE EMPLOYEE TO THE UNITED STATES FOR WHICH THE DISBURSING OFFICER CONCERNED IS NOT LIABLE, UNLESS SUBSEQUENTLY CREDITS TO THE EMPLOYEE SHOULD ACCRUE IN THE ACCOUNTS OF THE DISBURSING OFFICER. ARRIVING AT THIS CONCLUSION, THE NAVY DEPARTMENT IS OF THE FURTHER OPINION THAT ANY OTHER RULING WOULD PROHIBIT THE GRANTING OF AN ADVANCE OF SICK LEAVE WITH PAY WHEN PAYMENT FOR SUCH LEAVE WOULD EXCEED THE AMOUNT TO THE EMPLOYEE'S CREDIT IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND, AND, CONSEQUENTLY, THOUSANDS OF EMPLOYEES NOT SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT WOULD BE ESTOPPED FROM OBTAINING ANY ADVANCES OF SICK LEAVE.

THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, CONTAINS A PROVISION AS FOLLOWS:

SEC. 3. ADMINISTRATIVE OFFICERS MAY ADVANCE THIRTY DAYS SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.

SECTION 10 OF THE UNIFORM SICK-LEAVE REGULATIONS PROVIDES AS FOLLOWS:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. THIS PROVISION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

THE PROCEDURE FOR COLLECTING A SUFFICIENT AMOUNT FROM THE RETIREMENT FUND CREDIT OF AN EMPLOYEE TO EQUAL THE COMPENSATION PAID DURING A PERIOD OF EXCESS SICK LEAVE ADVANCED PRIOR TO SEPARATION FROM THE SERVICE IS SET FORTH IN DECISIONS OF NOVEMBER 13, 1936 (16 COMP. GEN. 487), AND JANUARY 14, 1937, A-81875 (16 COMP. GEN. 649). THESE DECISIONS PROVIDE FOR AN ADMINISTRATIVE REPORT TO THE CIVIL SERVICE COMMISSION AS CONSTITUTING THE BASIS FOR COLLECTION OF THE INDEBTEDNESS FROM THE ACCOUNT OF THE EMPLOYEE IN THE RETIREMENT FUND AND DO NOT CONTEMPLATE THAT A DISBURSING OFFICER WHO MADE THE PAYMENT OF COMPENSATION SHOULD BE HELD LIABLE FOR THE INDEBTEDNESS.

THE ACT OF AUGUST 23, 1912, 37 STAT. 375, PROVIDES AS FOLLOWS:

HEREAFTER THE ADMINISTRATIVE EXAMINATION OF ALL PUBLIC ACCOUNTS, PRELIMINARY TO THEIR AUDIT BY THE ACCOUNTING OFFICERS OF THE TREASURY, SHALL BE MADE AS CONTEMPLATED BY THE SO-CALLED DOCKERY ACT, APPROVED JULY THIRTY-FIRST, EIGHTEEN HUNDRED AND NINETY-FOUR, AND ALL VOUCHERS AND PAYROLLS SHALL BE PREPARED AND EXAMINED BY AND THROUGH THE ADMINISTRATIVE HEADS OF DIVISIONS AND BUREAUS IN THE EXECUTIVE DEPARTMENTS AND NOT BY THE DISBURSING CLERKS OF SAID DEPARTMENTS, EXCEPT THOSE VOUCHERS HERETOFORE PREPARED OUTSIDE OF WASHINGTON MAY CONTINUE TO BE SO PREPARED AND THE DISBURSING OFFICER SHALL MAKE ONLY SUCH EXAMINATION OF VOUCHERS AS MAY BE NECESSARY TO ASCERTAIN WHETHER THEY REPRESENT LEGAL CLAIMS AGAINST THE UNITED STATES.

IN DECISION OF MAY 25, 1925, 4 COMP. GEN. 991, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER THE ACT OF AUGUST 23, 1912, 37 STAT. 375, DISBURSING OFFICERS ARE REQUIRED TO MAKE ONLY SUCH EXAMINATION OF VOUCHERS AS MAY BE NECESSARY TO ASCERTAIN WHETHER THEY REPRESENT LEGAL CLAIMS AGAINST THE UNITED STATES. CREDIT WILL ACCORDINGLY BE ALLOWED IN THE ACCOUNTS OF DISBURSING OFFICERS FOR ILLEGAL PAYMENTS MADE ON VOUCHERS PROPERLY CERTIFIED AND APPROVED BY ADMINISTRATIVE OFFICERS AND CONTAINING NOTHING ON THE FACE THEREOF THAT WOULD PUT THE DISBURSING OFFICER ON NOTICE THAT PAYMENTS THEREON WOULD BE ILLEGAL.

PERIODS OF SICK LEAVE WITH PAY ADMINISTRATIVELY GRANTED ARE NOT NECESSARILY SHOWN ON THE PAY ROLL NOR OTHERWISE CALLED TO THE ATTENTION OF THE DISBURSING OFFICER. BUT EVEN WHEN HE IS ADVISED THAT THE EMPLOYEE HAS BEEN ADVANCED SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE, THERE IS NO DUTY OR RESPONSIBILITY DEVOLVING UPON A DISBURSING OFFICER MAKING THE PAYMENT OF COMPENSATION FOR SUCH PERIOD TO GUARD AGAINST THE CONTINGENCY OF THE EMPLOYEE BECOMING SEPARATED FROM THE SERVICE BEFORE EARNING SICK LEAVE SO ADVANCED. THE DISCRETION TO ADVANCE THE SICK LEAVE WITH PAY IS VESTED BY THE LEAVE ACT IN THE "ADMINISTRATIVE OFFICERS" AND REGULATIONS REQUIRE THE REFUND WHEN NECESSARY TO BE MADE BY THE EMPLOYEE.

ACCORDINGLY, THE DISBURSING OFFICER IS NOT LIABLE FOR THE INDEBTEDNESS OF AN EMPLOYEE THUS INCURRED.

IN ANY CASE WHERE AN EMPLOYEE HAS INSUFFICIENT UNPAID COMPENSATION AND RETIREMENT DEDUCTIONS TO HIS CREDIT TO EQUAL THE AMOUNT OF COMPENSATION PAID HIM DURING THE PERIOD OF EXCESS SICK LEAVE WITH PAY ADVANCED, FOR WHICH HE IS REQUIRED TO MAKE REFUND UNDER THE TERMS OF THE REGULATIONS, SUPRA, THE EMPLOYEE SHOULD BE CALLED UPON TO REFUND THE AMOUNT DUE, AND UPON HIS FAILURE OR REFUSAL TO DO SO THE INDEBTEDNESS SHOULD BE REPORTED TO THIS OFFICE FOR COLLECTION IN THE USUAL MANNER.