B-107223, JANUARY 9, 1952, 31 COMP. GEN. 262

B-107223: Jan 9, 1952

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LUMP-SUM LEAVE PAYMENTS ALTHOUGH A PERSON WHO IS CONTINUED ON THE ROLLS OF AN AGENCY WITHOUT PRESIDENTIAL EXTENSION AFTER REACHING COMPULSORY RETIREMENT AGE OCCUPIES THE STATUS OF A DE FACTO EMPLOYEE AND MAY RETAIN COMPENSATION ACTUALLY PAID. SUCH PERSON IS NOT ENTITLED TO A REFUND OF DEDUCTIONS FOR SAVINGS BONDS. 1952: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. RECENTLY HAS ADMITTED THAT SHE WAS BORN IN 1880 WHICH CAUSED HER TO REACH COMPULSORY RETIREMENT AT THE END OF JULY. THIS WAS NOT DISCOVERED UNTIL NOVEMBER 13. WAS LAST PAID FOR THE PERIOD OCTOBER 14 TO 27. IT HAS BEEN HELD BY THIS OFFICE THAT A PERSON WHO IS CONTINUED ON THE ROLLS WITHOUT PRESIDENTIAL EXTENSION AFTER REACHING COMPULSORY RETIREMENT AGE OCCUPIES THE STATUS OF A DE FACTO EMPLOYEE ONLY AND AS SUCH MAY RETAIN COMPENSATION PREVIOUSLY PAID.

B-107223, JANUARY 9, 1952, 31 COMP. GEN. 262

OFFICERS AND EMPLOYEES - DE FACTO - COMPENSATION; LUMP-SUM LEAVE PAYMENTS ALTHOUGH A PERSON WHO IS CONTINUED ON THE ROLLS OF AN AGENCY WITHOUT PRESIDENTIAL EXTENSION AFTER REACHING COMPULSORY RETIREMENT AGE OCCUPIES THE STATUS OF A DE FACTO EMPLOYEE AND MAY RETAIN COMPENSATION ACTUALLY PAID, SUCH PERSON IS NOT ENTITLED TO A REFUND OF DEDUCTIONS FOR SAVINGS BONDS, WHICH REPRESENTS UNPAID COMPENSATION FOR THE DE FACTO PERIOD; NEITHER DOES SAID PERSON ACCRUE ANNUAL LEAVE DURING THE DE FACTOR PERIOD SO AS TO BE ENTITLED TO A LUMP-SUM PAYMENT.

COMPTROLLER GENERAL WARREN TO GUY W. CARMACK, DEPARTMENT OF AGRICULTURE, JANUARY 9, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1951, REQUESTING DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT TWO VOUCHERS THEREWITH TRANSMITTED, ONE PROPOSING LUMP-SUM PAYMENT TO ELIZABETH E. LAWRENCE FOR ACCRUED ANNUAL LEAVE TO HER CREDIT OCTOBER 27, 1951, AND THE OTHER PROPOSING PAYMENT TO HER OF $10.27 AS REFUND OF SALARY DEDUCTIONS FOR THE PURCHASE OF A SAVINGS BOND. IT APPEARS THAT MISS LAWRENCE HAD FALSIFIED HER AGE IN HER APPLICATION FOR EMPLOYMENT STATING THE DATE OF HER BIRTH VARIOUSLY AS JULY 3, 1895, JULY 3, 1894, AND JULY 3, 1892, BUT RECENTLY HAS ADMITTED THAT SHE WAS BORN IN 1880 WHICH CAUSED HER TO REACH COMPULSORY RETIREMENT AT THE END OF JULY, 1950. THIS WAS NOT DISCOVERED UNTIL NOVEMBER 13, 1951, AND SHE CONTINUED WORKING THROUGH NOVEMBER 23, BUT WAS LAST PAID FOR THE PERIOD OCTOBER 14 TO 27, 1951.

IT HAS BEEN HELD BY THIS OFFICE THAT A PERSON WHO IS CONTINUED ON THE ROLLS WITHOUT PRESIDENTIAL EXTENSION AFTER REACHING COMPULSORY RETIREMENT AGE OCCUPIES THE STATUS OF A DE FACTO EMPLOYEE ONLY AND AS SUCH MAY RETAIN COMPENSATION PREVIOUSLY PAID, BUT HAS NO LEGAL BASIS FOR A CLAIM FOR UNPAID COMPENSATION. 5 COMP. GEN. 70; 6 ID. 263; 22 ID. 300. IT FOLLOWS, TOO, THAT THE PERIOD COVERED BY THE DE FACTO STATUS DOES NOT ENTITLE THE EMPLOYEE TO ACCRUE ANY ANNUAL LEAVE IN RESPECT OF SAID PERIOD. HOWEVER, THERE WOULD BE NO OBJECTION TO PAYING THE INVOLVED EMPLOYEE FOR THAT PART OF ANNUAL LEAVE IF ANY, TO HER CREDIT JULY 31, 1950 (WHEN SHE REACHED COMPULSORY RETIREMENT) WHICH WAS NOT SUBSEQUENTLY USED BY HER WHILE IN A LEAVE WITH PAY STATUS DURING THE DE FACTO PERIOD.

AS THE VOUCHER PROPOSING LUMP-SUM PAYMENT FOR ANNUAL LEAVE APPARENTLY INCLUDES SOME ANNUAL LEAVE WHICH ACCRUED WHILE IN A DE FACTO STATUS, IT MAY NOT BE CERTIFIED FOR PAYMENT AS PRESENTLY EXECUTED. NEITHER MAY THE VOUCHER COVERING PROPOSED REFUND OF BOND DEDUCTIONS BE CERTIFIED FOR PAYMENT AS THE AMOUNT THEREOF REPRESENTS, IN FACT, UNPAID COMPENSATION IN RESPECT OF THE DE FACTO PERIOD.