B-119968, APR 4, 1955

B-119968: Apr 4, 1955

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HE SHOULD INSIST THAT THE LEAVE WAS ILLEGALLY DEDUCTED FROM HIS ACCOUNT. THE ADMINISTRATIVE PRACTICE IS SAID TO HAVE BEEN QUESTIONED BY OUR DIVISION OF AUDITS IN THAT IT MAY GIVE RISE TO POTENTIAL CLAIMS AGAINST THE GOVERNMENT. THE ADMINISTRATIVE PRACTICE IS SUMMARIZED IN THE DEPARTMENT'S LETTER. AS FOLLOWS: "*** EMPLOYEES ENTERING THE SERVICE OF THE BUREAU OF PRISONS ARE PRESENTED CERTAIN MATERIAL. THERE IS A PARAGRAPH ON REMOVALS AND ANOTHER REGARDING SUSPENSIONS. THERE IS A STATEMENT IN THE BUREAU OF PRISONS MANUAL TO THE EFFECT THAT IN EXCEPTIONAL CASES. THE PROCEDURE IS FOR ALL DISCIPLINARY ACTIONS TO BE HANDLED IN ACCORDANCE WITH THE ORDINARILY ACCEPTED RULES OF PREFERRAL OF CHARGES.

B-119968, APR 4, 1955

PRECIS-UNAVAILABLE

ATTORNEY GENERAL:

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER OF NOVEMBER 19, 1954, REFERENCE A3, RAISES THE HYPOTHETICAL QUESTION WHETHER OUR OFFICE WOULD BE REQUIRED TO PAY A CLAIM FROM A FORMER EMPLOYEE OF THE BUREAU OF PRISONS FOR ANNUAL LEAVE FORFEITED VOLUNTARILY IN LIEU OF A SUSPENSION PURSUANT TO YOUR ADMINISTRATIVE PRACTICE IF, UPON SEPARATION, HE SHOULD INSIST THAT THE LEAVE WAS ILLEGALLY DEDUCTED FROM HIS ACCOUNT. THE ADMINISTRATIVE PRACTICE IS SAID TO HAVE BEEN QUESTIONED BY OUR DIVISION OF AUDITS IN THAT IT MAY GIVE RISE TO POTENTIAL CLAIMS AGAINST THE GOVERNMENT.

THE ADMINISTRATIVE PRACTICE IS SUMMARIZED IN THE DEPARTMENT'S LETTER, AS FOLLOWS:

"*** EMPLOYEES ENTERING THE SERVICE OF THE BUREAU OF PRISONS ARE PRESENTED CERTAIN MATERIAL, WHICH FOR WANT OF A BETTER NAME, MAY BE DESCRIBED AS 'EMPLOYEES HANDBOOKS'. THIS MATERIAL EXPLAINS THE WORK OF THE BUREAU OF PRISONS, AND DISCUSSES ANNUAL AND SICK LEAVE. THERE IS A PARAGRAPH ON REMOVALS AND ANOTHER REGARDING SUSPENSIONS. THE HANDBOOK MATERIAL MAKES NO REFERENCE WHATEVER TO FORFEITURE OF LEAVE. HOWEVER, THERE IS A STATEMENT IN THE BUREAU OF PRISONS MANUAL TO THE EFFECT THAT IN EXCEPTIONAL CASES, THE FORFEITING OF ANNUAL LEAVE IN LIEU OF SUSPENSION MAY BE AUTHORIZED, IF THE EMPLOYEE MAKES SUCH A REQUEST. THE PROCEDURE IS FOR ALL DISCIPLINARY ACTIONS TO BE HANDLED IN ACCORDANCE WITH THE ORDINARILY ACCEPTED RULES OF PREFERRAL OF CHARGES, REPLY BY THE EMPLOYEE AND A NOTICE OF OFFICIAL DETERMINATION OF PENALTY. A STILL FURTHER REPLY BY THE EMPLOYEE IS PERMISSIBLE. IT IS ONLY AFTER ADMINISTRATIVE ACTION IMPOSING THE SUSPENSION THAT THE EMPLOYEE EVER APPLIES FOR FORFEITURE OF ANNUAL LEAVE IN LIEU OF THE FORFEITURE OF PAY GROWING OUT OF A SUSPENSION. SUCH APPLICATIONS ARE NOT GRANTED WHEN FOR ADMINISTRATIVE REASONS IT IS ESSENTIAL THAT SUCH ACTION BE NOT TAKEN, AS WHEN AN EXAMPLE OUGHT TO BE MADE OF THE OFFENDER. THE FORFEITURE IS PERMITTED ONLY IN WELL CONSIDERED CASES, SUCH AS HARDSHIP CASES, WHERE THE SERVICE WOULD NOT OTHERWISE SUFFER IN CONSEQUENCE OF THAT MEASURE OF LENIENCY.

"THE BUREAU OF PRISONS ADVISES THAT ITS MANUAL IS AVAILABLE FOR INSPECTION BY EMPLOYEES. THE IN-SERVICE TRAINING PROGRAM RESULTS IN MOST OF THE EMPLOYEES AT ONE TIME OR ANOTHER ACQUIRING KNOWLEDGE OF THE POSSIBILITY. IT SHOULD BE STRESSED, HOWEVER, THAT THIS PROCEDURE IS NOT IN ANY SENSE AN ALTERNATIVE PENALTY INVOKED BY THE BUREAU. IT IS ENTIRELY VOLUNTARY ON THE PART OF THE INDIVIDUAL AND CAN ONLY FOLLOW IMPOSITION OF THE ADMINISTRATIVE PENALTY OF SUSPENSION. IN CONSEQUENCE, THE EMPLOYEE IS NOT IN A POSITION TO COMPLAIN THAT HE HAS BEEN UNJUSTLY TREATED, OR DEPRIVED OF ANY RIGHT OR PRIVILEGE.

"THERE IS MUCH TO COMMEND THIS PROCEDURE. IN A SUSPENSION CASE, NOT ONLY THE EMPLOYEE IS PUNISHED, BUT HIS DEPENDENTS MAY SUFFER FROM THE LOSS OF INCOME, OR INTERRUPTION OF STEADY INCOME MAY RESULT IN CONSEQUENCES ENTIRELY OUT OF PROPORTION TO THE OFFENSE. THE GOVERNMENT SUFFERS A DISRUPTION OF ITS WORK. IN AN INSTITUTION, REPLACEMENTS MAY NOT BE READILY AVAILABLE, SINCE BUDGETARY RESTRICTIONS DO NOT PERMIT EXTENSIVE STANDBY EMPLOYEE TIME. ON THE OTHER HAND, FORFEITURE OF LEAVE WORKS NO CURRENT FINANCIAL HARDSHIP, DOES NOT DISRUPT OFFICIAL WORK SCHEDULES, ESTABLISHES A PERSONNEL RECORD AS EFFECTIVELY AS A SUSPENSION, AND, BEING AN ACT OF GRACE, GOES FARTHER TOWARDS SECURING FUTURE LOYAL SERVICE THAN THE HARSHER PENALTY. FURTHERMORE, A SUSPENSION IS FIXED AND FINAL, WHEREAS THE PSYCHOLOGICAL EFFECT OF AWAITING A DECISION ON THE LEAVE REQUEST HAS ITS OWN DESIRABLE EFFECTS ON THE EMPLOYEE."

THE ADMINISTRATIVE PRACTICE IS NOT FREE FROM DOUBT BUT SINCE IT HAS BEEN IN EFFECT FOR MANY YEARS AND SINCE, ALSO, IT DOES NOT CURRENTLY INVOLVE THE IMPROPER USE OF FEDERAL FUNDS FURTHER OBJECTION TO THAT PRACTICE WILL NOT BE TAKEN BY US AT THE PRESENT TIME. OUR DIVISION OF AUDITS HAS BEEN SO INFORMED.

SINCE THE QUESTION PRESENTED IN THE DEPARTMENT'S LETTER IS A HYPOTHETICAL ONE - IN THAT A CLAIM FOR PAYMENT OF THE FORFEITED LEAVE IN LIEU OF SUSPENSION MAY NEVER BE SUBMITTED - WE DEEM IT IMPROPER, UNDER OUR JURISDICTION, FOR US TO DECIDE THE QUESTION AT THIS TIME. SEE 18 COMP. GEN. 1006; 21 ID. 83; 24 ID. 226; 34 ID. 158. WHETHER THE ADMINISTRATIVE PRACTICE CONTRAVENS ANY REGULATION OF THE CIVIL SERVICE COMMISSION GOVERNING SUSPENSIONS, ETC., WOULD BE FOR TAKING UP WITH THAT AGENCY FOR FINAL DETERMINATION.