A-93663, APRIL 2, 1938, 17 COMP. GEN. 806

A-93663: Apr 2, 1938

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1936 - VOLUNTARY AND INVOLUNTARY SEPARATIONS FROM SERVICE WHERE AN EMPLOYEE WAS SUSPENDED FROM DUTY AND PAY PENDING INVESTIGATION OF CHARGES AND IT IS DECIDED TO ACCEPT HIS RESIGNATION WITHOUT PREJUDICE. HIS SEPARATION IS VOLUNTARY AND SECTION 7 OF THE UNIFORM ANNUAL LEAVE REGULATIONS. IS AS FOLLOWS: I AM SUBMITTING TO YOU FOR DECISION THE QUESTION OF WHETHER ACCRUED ANNUAL LEAVE MAY BE ALLOWED TO JOHN C. IT IS RECOMMENDED THAT HE BE SUSPENDED FROM DUTY AND PAY. EFFECTIVE UPON RECEIPT OF NOTICE UNTIL THE CASE IS ADJUDICATED TO DETERMINE HIS FUTURE STATUS.'. WHICH LETTER WAS DELIVERED TO MR. FALES WAS GIVEN AN OPPORTUNITY TO ANSWER IN WRITING. IT WAS DETERMINED THAT THE CHARGES IN COUNTS TWO TO FOUR.

A-93663, APRIL 2, 1938, 17 COMP. GEN. 806

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - VOLUNTARY AND INVOLUNTARY SEPARATIONS FROM SERVICE WHERE AN EMPLOYEE WAS SUSPENDED FROM DUTY AND PAY PENDING INVESTIGATION OF CHARGES AND IT IS DECIDED TO ACCEPT HIS RESIGNATION WITHOUT PREJUDICE, HIS SEPARATION IS VOLUNTARY AND SECTION 7 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, BEING APPLICABLE, HIS RESIGNATION MAY BE ACCEPTED EFFECTIVE AT THE EXPIRATION OF HIS ACCRUED ANNUAL LEAVE DATING FROM THE TIME OF HIS SUSPENSION. IN VIEW OF THE PROVISIONS OF SECTION 8 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, AN EMPLOYEE WHO HAS BEEN SUSPENDED FROM DUTY AND PAY MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED, BE RESTORED TO A PAY STATUS PRIOR TO HIS DISCHARGE FOR CAUSE DUE TO HIS OWN MISCONDUCT, FOR THE SOLE PURPOSE OF GRANTING ALL OR ANY PART OF HIS ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE, AND THE RULE ANNOUNCED IN 16 COMP. GEN. 212, NEED NO LONGER BE FOLLOWED IN SUCH CASES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, APRIL 2, 1938:

YOUR LETTER OF MARCH 22, 1938, IS AS FOLLOWS:

I AM SUBMITTING TO YOU FOR DECISION THE QUESTION OF WHETHER ACCRUED ANNUAL LEAVE MAY BE ALLOWED TO JOHN C. FALES, WHOSE RESIGNATION AS AN ASSISTANT ENGINEER, DIVISION OF GRAZING, RENO, NEVADA, I AM ACCEPTING WITHOUT PREJUDICE, AFTER HIS SUSPENSION FROM DUTY AND PAY AND THE PREFERRING OF CHARGES.

ON JANUARY 28, 1938, I ISSUED AN ORDER SUSPENDING MR. FALES FROM DUTY AND PAY, EFFECTIVE UPON RECEIPT OF NOTICE, PENDING HIS REPLY TO CHARGES. DID THIS UPON THE RECOMMENDATION OF THE DIRECTOR OF THE DIVISION OF GRAZING, READING AS FOLLOWS:

"IN VIEW OF THE EVIDENCE, UNCOVERED BY A RECENT INVESTIGATION BY THE DEPARTMENT, SHOWING INEFFICIENCY IN MR. FALES' DUTIES AND PERSONAL CONDUCT PREJUDICIAL TO THE BEST INTERESTS OF THE GOVERNMENT, AND BECAUSE HIS CONTINUANCE IN A RESPONSIBLE SUPERVISORY CAPACITY CAN SUBSTANTIALLY AFFECT THE QUALITY AND CHARACTER OF OUR WORK PROJECTS AND RESULT IN A LOSS THEREBY TO THE GOVERNMENT, IT IS RECOMMENDED THAT HE BE SUSPENDED FROM DUTY AND PAY, EFFECTIVE UPON RECEIPT OF NOTICE UNTIL THE CASE IS ADJUDICATED TO DETERMINE HIS FUTURE STATUS.'

ON JANUARY 31 THE DIRECTOR OF THE DIVISION OF GRAZING PREFERRED THE CHARGES AGAINST HIM INVOLVING FOUR COUNTS, WHICH LETTER WAS DELIVERED TO MR. FALES AT 1 P.M., FEBRUARY 3, 1938. THE SUSPENSION BECAME EFFECTIVE SIMULTANEOUSLY. I ATTACH A COPY OF THE LETTER OF CHARGES.

MR. FALES WAS GIVEN AN OPPORTUNITY TO ANSWER IN WRITING, WHICH HE DID, AT THE SAME TIME SUBMITTING HIS RESIGNATION. DURING THE CONSIDERATION OF HIS CASE HE ALSO CAME TO WASHINGTON, HAD CONFERENCES WITH SEVERAL MEMBERS OF THE STAFF, AND MADE A SUPPLEMENTAL WRITTEN STATEMENT. AFTER A REVIEW OF ALL THE PAPERS, INCLUDING HIS REPLY, IT WAS DETERMINED THAT THE CHARGES IN COUNTS TWO TO FOUR, INCLUSIVE, WERE NOT SUFFICIENTLY SUBSTANTIATED TO WARRANT ANY ADVERSE ACTION, AND THAT THE CASE AGAINST MR. FALES WAS REDUCED SUBSTANTIALLY TO THE FIRST CHARGE, INVOLVING INDISCRETE PERSONAL CONDUCT.

MR. FALES HAS SERVED WITH THE DIVISION OF GRAZING FOR ALMOST THREE YEARS IN AN ENGINEERING CAPACITY. HIS RECORD OTHERWISE HAS BEEN GOODAND HE HAS PERFORMED HIS DUTIES SATISFACTORILY. IN VIEW OF THIS, I AM ACCEPTING HIS RESIGNATION WITHOUT PREJUDICE. I FURTHER DESIRE TO ALLOW HIM THE ANNUAL LEAVE WHICH HAS ACCRUED TO HIS CREDIT DURING HIS PERIOD OF SERVICE AND WHICH IS UNUSED. THIS AMOUNTS TO APPROXIMATELY 50 DAYS. BUT IF FIND AN OBSTACLE IN YOUR DECISIONS OF SEPTEMBER 2, 1936 (16 COMP. GEN. 212) AND AUGUST 30, 1937 (17 COMP. GEN. 199). IN A DECISION OF AUGUST 1, 1936 (16 COMP. GEN. 105), IT WAS STATED THAT THERE IS NOTHING IN THE PRESENT LEAVE ACT EXPRESSLY OR IMPLIEDLY DENYING ACCRUED LEAVE TO EMPLOYEES DISCHARGED FOR CAUSE DUE TO MISCONDUCT, AND THAT IT WOULD APPEAR TO BE OPTIONAL WITH THE HEAD OF THE ESTABLISHMENT WHETHER IN SUCH CASES THE DISCHARGE BE MADE EFFECTIVE IMMEDIATELY OR AT THE EXPIRATION OF ACCRUED LEAVE. THE LATER DECISIONS CITED ABOVE, WHICH HOLD, IN EFFECT, THAT WHILE AN EMPLOYEE SEPARATED FOR CAUSE MAY BE GRANTED ACCRUED LEAVE WITH PAY IT MUST BE GRANTED BEFORE THE DATE OF SUSPENSION, QUALIFY THIS RULING, HOWEVER.

I WILL SAY HERE THAT MY ADMINISTRATIVE POLICY IS AGAINST ALLOWING ANY ACCRUED LEAVE TO EMPLOYEES WHO ARE DISMISSED FOR CAUSE INVOLVING GRAVE MISCONDUCT OR IRREGULARITIES, BUT THERE ARE BORDER-LINE CASES WHERE NO GREAT HARM HAS BEEN DONE THE GOVERNMENT BUT WHERE THE PARTICULAR CIRCUMSTANCES ARE SUCH THAT THE RETENTION OF THE EMPLOYEE MAY BE INADVISABLE. SUSPENSION FROM DUTY AND PAY IS USUALLY RESORTED TO OUT OF AN ABUNDANCE OF CAUTION, TO PROTECT THE GOVERNMENT UNTIL THE TRUTH OR FALSITY OF THE CHARGES MAY BE DETERMINED; AND I CANNOT HELP BUT FEEL THAT IF BY THE EXERCISE OF THIS PRECAUTION THE HEAD OF THE DEPARTMENT LOSES THE RIGHT TO EXERCISE HIS DISCRETION IN THE GRANTING OF ACCRUED LEAVE, THE RULING IS UNSOUND. IT WILL PROBABLY BE A DETERRENT IN MAKING SUSPENSIONS. IT IS TRUE THAT THE COMPTROLLER GENERAL'S DECISIONS PERMIT THE ACCRUED LEAVE TO BE GRANTED BEFORE SUSPENSION, BUT THIS IS UNWORKABLE IN THAT AN EMPLOYEE CANNOT BE PLACED ON ANNUAL LEAVE INVOLUNTARILY, NOR WOULD THE PURPOSE OF THE SUSPENSION FROM DUTY AND PAY BE ACCOMPLISHED BY SO DOING.

REVERTING TO THE SPECIFIC CASE OF MR. FALES, YOU WILL NOTE THAT THE SUSPENSION WAS MADE TO PROTECT THE GOVERNMENT AGAINST ANY ACTION THAT MIGHT SUBSTANTIALLY AFFECT THE QUALITY AND CHARACTER OF THE WORK PROJECTS AND THEREBY RESULT IN A LOSS TO THE GOVERNMENT. THE CHARGE SUSTAINED AGAINST HIM INVOLVED ONLY HIS PERSONAL CONDUCT. ORDINARILY, WHERE INDISCRETE PERSONAL CONDUCT IS INVOLVED AND IT DOES NOT AFFECT DIRECTLY THE CURRENT PERFORMANCE OF DUTY, SUSPENSION WOULD NOT BE RESORTED TO AND THE EMPLOYEE WOULD REMAIN ON DUTY UNTIL HIS REPLY TO THE CHARGES HAD BEEN CONSIDERED. IN MR. FALES' CASE, I FEEL THAT THE DENIAL OF HIS ACCRUED LEAVE WOULD BE AN INJUSTICE TO HIM IN VIEW OF HIS WORK RECORD.

I WILL APPRECIATE A RULING AS TO WHETHER, IN THE CIRCUMSTANCES OUTLINED, I MAY ACCEPT MR. FALES' RESIGNATION TO BE EFFECTIVE AT THE EXPIRATION OF HIS ACCRUED ANNUAL LEAVE, DATING FROM THE TIME OF HIS SUSPENSION. I WILL APPRECIATE ALSO YOUR COMMENT ON THE GENERAL APPLICATION OF THE DECISIONS TO WHICH I HAVE MADE REFERENCE.

THE LAST SENTENCE OF SECTION 8 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, PROVIDES AS FOLLOWS:

* * * THE DATE OF DISCHARGE OF AN EMPLOYEE SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED, BE FIXED SO AS TO PERMIT THE ALLOWANCE OF ALL OR ANY PART OF ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.

THIS RULE IS IN ACCORD WITH A STATEMENT IN THE DECISION OF THIS OFFICE OF AUGUST 1, 1936, 16 COMP. GEN. 105, CITED BY YOU.

IN DECISION OF SEPTEMBER 2, 1936, 16 COMP. GEN. 212, 214, ALSO CITED BY YOU, IT WAS HELD:

AN EMPLOYEE MAY BE GRANTED ACCRUED LEAVE WITH PAY TO BE TAKEN PRIOR TO THE EFFECTIVE DATE OF A DISMISSAL FOR CAUSE BUT, SINCE A SUSPENSION WITHOUT PAY IS EQUIVALENT TO A TEMPORARY SEPARATION FROM THE SERVICE, A PERMANENT SEPARATION FOLLOWING SUCH A TEMPORARY SEPARATION MAY NOT BE MADE EFFECTIVE AT THE EXPIRATION OF A LEAVE OF ABSENCE GRANTED WHILE THE EMPLOYEE IS IN A STATUS OF SUSPENSION WITHOUT PAY. IF LEAVE IS TO BE GRANTED IN SUCH A CASE, IT MUST BE GRANTED BEFORE THE SUSPENSION RATHER THAN AFTER. * * *

IN THE CASE OF MR. FALES PRESENTED IN YOUR LETTER THIS RULE WOULD NOT BE FOR APPLICATION FOR THE REASON THAT IT IS NOT PROPOSED TO SEPARATE HIM FROM THE SERVICE FOR CAUSE BUT TO ACCEPT HIS RESIGNATION WITHOUT PREJUDICE, NOTWITHSTANDING THE SUSPENSION WITHOUT PAY. HENCE HIS SEPARATION IS TO BE VOLUNTARY RATHER THAN INVOLUNTARY AND THERE WOULD BE FOR APPLICATION THE RULE STATED IN SECTION 7 OF THE NEW ANNUAL LEAVE REGULATIONS PROVIDING AS FOLLOWS:

AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE DURING ANY CALENDAR YEAR SHALL BE ENTITLED TO ALL OF HIS ACCUMULATED LEAVE PLUS HIS CURRENT ACCRUED LEAVE TO AND INCLUDING THE DATE OF SEPARATION.

REFERRING TO YOUR LAST PARAGRAPH, MR. FALES' RESIGNATION MAY BE ACCEPTED EFFECTIVE AT THE EXPIRATION OF HIS ACCRUED ANNUAL LEAVE DATING FROM THE TIME OF HIS SUSPENSION.

AS THE NEW ANNUAL LEAVE REGULATIONS SPECIFICALLY PROVIDE THAT THE DISCHARGE OF AN EMPLOYEE SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED, BE FIXED SO AS TO PERMIT THE ALLOWANCE OF ALL OR ANY PART OF ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE, THE RULE HEREINBEFORE QUOTED FROM 16 COMP. GEN. 212 WILL NOT HEREAFTER BE REGARDED AS CONTROLLING. THAT IS TO SAY, IN SUCH CASES THE EMPLOYEE MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED, BE RESTORED TO A PAY STATUS AFTER A PERIOD OF SUSPENSION WITHOUT PAY BUT PRIOR TO FINAL SEPARATION, FOR THE SOLE PURPOSE OF GRANTING ALL OR ANY PART OF ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE, THE DATE OF FINAL DISCHARGE TO BE FIXED ACCORDINGLY.