B-12165, SEPTEMBER 16, 1940, 20 COMP. GEN. 154

B-12165: Sep 16, 1940

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ARE CONTROLLING IN DETERMINING WHETHER AN EMPLOYEE SEPARATED FROM THE SERVICE AFTER THAT DATE IS CHARGEABLE FOR OVERDRAWN SICK LEAVE TAKEN BEFORE THAT DATE. THE AMOUNT TO BE REFUNDED FOR THE EXCESS LEAVE MUST BE COMPUTED UNDER THE REGULATIONS IN EFFECT WHEN THE LEAVE WAS TAKEN AND. IS REQUIRED TO INCLUDE COMPENSATION FOR SUNDAYS. 1940: I HAVE YOUR LETTER OF AUGUST 31. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH SUPPLEMENTAL PAY-ROLL VOUCHER NO. 603. THERE IS ENCLOSED ALSO ORIGINAL PREAUDIT DIFFERENCE STATEMENT ISSUED BY YOUR AUDIT DIVISION ON JULY 31. GLOVER'S SERVICES AS JUNIOR FILE CLERK WERE TERMINATED AS AT THE CLOSE OF BUSINESS ON JUNE 19. SINCE THE TERMINATION DATE WAS SUBSEQUENT TO MARCH 2.

B-12165, SEPTEMBER 16, 1940, 20 COMP. GEN. 154

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - ADVANCES - ADJUSTMENT UPON SEPARATION FROM SERVICE THE TERMS OF THE UNIFORM SICK LEAVE REGULATIONS EFFECTIVE MARCH 2, 1940, ARE CONTROLLING IN DETERMINING WHETHER AN EMPLOYEE SEPARATED FROM THE SERVICE AFTER THAT DATE IS CHARGEABLE FOR OVERDRAWN SICK LEAVE TAKEN BEFORE THAT DATE, BUT THE AMOUNT TO BE REFUNDED FOR THE EXCESS LEAVE MUST BE COMPUTED UNDER THE REGULATIONS IN EFFECT WHEN THE LEAVE WAS TAKEN AND, HENCE, IS REQUIRED TO INCLUDE COMPENSATION FOR SUNDAYS, HOLIDAYS, AND NONWORK DAYS. 18 COMP. GEN. 383, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 16, 1940:

I HAVE YOUR LETTER OF AUGUST 31, 1940, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH SUPPLEMENTAL PAY-ROLL VOUCHER NO. 603, FARM CREDIT ADMINISTRATION, IN FAVOR OF MRS. MARY T. GLOVER, COVERING SALARY DUE HER AS JUNIOR FILE CLERK AT $1,620 A YEAR, FROM JUNE 1 TO 19, 1940, INCLUSIVE, APPROVED ADMINISTRATIVELY IN THE NET AMOUNT OF $82.50, SUBJECT TO REDUCTION ON ACCOUNT OF ADVANCED ANNUAL AND SICK LEAVE IN THE AMOUNT OF $79.87. THERE IS ENCLOSED ALSO ORIGINAL PREAUDIT DIFFERENCE STATEMENT ISSUED BY YOUR AUDIT DIVISION ON JULY 31, 1940.

MRS. GLOVER'S SERVICES AS JUNIOR FILE CLERK WERE TERMINATED AS AT THE CLOSE OF BUSINESS ON JUNE 19, BY VOLUNTARY RESIGNATION. SINCE THE TERMINATION DATE WAS SUBSEQUENT TO MARCH 2, 1940, THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE REGULATIONS APPROVED BY THE PRESIDENT ON MARCH 29, 1940 ( EXECUTIVE ORDERS NOS. 8384 AND 8385), THE AMOUNT RECOVERABLE FROM HER ON ACCOUNT OF ADVANCED ANNUAL AND SICK LEAVE HAS BEEN DETERMINED IN ACCORDANCE WITH SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS. ALTHOUGH THE LEAVE WAS ACTUALLY TAKEN PRIOR TO MARCH 2, 1940, SHE HAS BEEN CHARGED, FOR THE PURPOSE OF REFUND, ONLY WITH SALARY PAID FOR EACH DAY ON WHICH SHE WOULD OTHERWISE HAVE WORKED AND RECEIVED PAY. ACCORDINGLY, NO CHARGE HAS BEEN MADE FOR SUNDAYS, SINCE HER REGULAR TOUR OF DUTY DID NOT REQUIRE THAT SHE WORK ON SUNDAYS, AND COMPENSATION FOR FOUR HOURS, RATHER THAN FOR A FULL DAY, HAS BEEN CHARGED FOR SATURDAYS. THIS METHOD OF CALCULATION HAS BEEN FOLLOWED ON THE BASIS THAT THE REGULATIONS IN FORCE AT THE DATE OF THE SEPARATION FROM THE SERVICE GOVERN RATHER THAN THE REGULATIONS IN FORCE AT THE TIME THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN.

THE PREAUDIT DIFFERENCE STATEMENT OF JULY 31, 1940, DIRECTS THAT SINCE THE EXCESS LEAVE WAS ACTUALLY TAKEN PRIOR TO MARCH 2, 1940, THE EFFECTIVE DATE OF THE AMENDED LEAVE REGULATIONS, RECOVERY MUST BE MADE FOR SUNDAYS, HOLIDAYS AND NONWORK DAYS OCCURRING WITHIN THE PERIOD OF OVERDRAWN LEAVE. HOWEVER, THE PERTINENT SECTIONS OF THE LEAVE REGULATIONS EMBODIED IN THE AMENDMENT WHICH BECAME EFFECTIVE ON MARCH 2, 1940, ARE SUBSTANTIALLY DIFFERENT FROM THE SAME SECTIONS WHICH WERE GIVEN CONSIDERATION IN YOUR DECISION OF OCTOBER 27, 1938, IN THAT THE RULE FOR CHARGING AN EMPLOYEE IN A CASE OF THIS KIND FOR EXCESS ANNUAL AND SICK LEAVE IS SET FORTH IN COMPLETE DETAIL, AND THE REGULATIONS MAKE NO QUALIFICATION THAT THESE DETAILED RULES BE APPLIED ONLY WHERE THE EXCESS LEAVE WAS TAKEN ON AND AFTER MARCH 2, 1940.

IN VIEW OF THE SUBSTANTIAL CHANGE IN THE REGULATIONS SINCE YOUR DECISION OF OCTOBER 27, 1938, IT IS DEEMED ADVISABLE TO REQUEST YOUR FORMAL DECISION IN THE MATTER, FOR USE IN OTHER SIMILAR CASES AND TO MEET THE EXPRESSED WISH OF MRS. GLOVER THAT YOUR RULING BE OBTAINED BEFORE THE AMOUNT RECOVERABLE FROM HER IS FINALLY FIXED.

THE SUPPLEMENTAL PAY ROLL IN QUESTION, PRESENTED IN YOUR LETTER CONTAINS THE FOLLOWING OTATIONS:

RES. (VOL.) C.O.B. 6/19/40. DEDUCTION OF 18 DAYS 2 3/4 HRS. SALARY COVERING REFUND OF UNACCRUED SICK AND ANNUAL LEAVE GRANTED AS FOLLOWS:

SICK LEAVE--- 22 DAYS 6 3/4 HRS.: 1:00 P.M. OCT. 4-4:15 P.M.

OCT. 24, 1939; 8:30 A.M. DEC. 16-12:00 M. DEC. 18,

1939.

ANNUAL LEAVE--- DAY 1 HR: 3:15-4:15 P.M. FEB. 14, 1940;

8:30-4:15 P.M. FEB. 23, 1940. PAID ON D.O. VO. NOS. 568968, 673656, 1008853, 1277722 AND 1355212. SEE ALSO D.O. VO. NOS 2040111 AND 2152845 (6/1-15 AND 6/16-30, 1940) IN THE PREAUDIT OF SAID PAY ROLL VOUCHER AN EXCEPTION WAS TAKEN AS REFLECTED IN THE REFERRED-TO PREAUDIT DIFFERENCE STATEMENT OF JULY 31, 1940, AS FOLLOWS:

VOUCHER RETURNED WITHOUT CERTIFICATION.

WHERE IT IS DETERMINED THAT THE CHARACTER OF THE SEPARATION FROM THE SERVICE, WHETHER BEFORE OR AFTER MARCH 2, 1940, REQUIRES A REFUND COVERING OVERDRAWN SICK LEAVE, THE COMPENSATION IS REQUIRED TO BE COMPUTED IN ACCORDANCE WITH THE REGULATIONS IN FORCE WHEN THE SICK LEAVE WAS TAKEN. THAT IS, IF SUCH LEAVE WERE TAKEN PRIOR TO MARCH 2, 1940, SUNDAYS, HOLIDAYS, AND NONWORK DAYS OCCURRING WITHIN A PERIOD OF OVERDRAWN SICK LEAVE MUST BE CHARGED. 18 COMP. GEN. 383.

INASMUCH AS LEAVE IS OVERDRAWN IN THE AMOUNT OF 24 DAYS AND 45 MINUTES WHEREAS, SALARY IS DUE FOR ONLY 19 DAYS, THERE REMAINS A NET OVERPAYMENT OF $22.03 (5 DAYS, 45 MIN. AT $1,620 PER ANNUM).

IT IS REQUESTED THAT PROPER STEPS BE TAKEN TO COLLECT THE INDEBTEDNESS AND THAT THIS OFFICE BE ADVISED WHEN AND IN WHAT MANNER THE INDEBTEDNESS HAS BEEN COLLECTED.

AS THE OVERDRAWN ANNUAL LEAVE WAS TAKEN ON REGULAR WORK DAYS, WEDNESDAY FEBRUARY 14, 1940, AND FRIDAY, FEBRUARY 23, 1940, NO QUESTION WAS RAISED IN RESPECT OF THE AMOUNT TO BE REFUNDED UNDER THE APPLICABLE ANNUAL LEAVE REGULATIONS. HENCE, THE ACTION TAKEN BY THIS OFFICE IN THE PREAUDIT OF THE VOUCHER RELATED SOLELY TO THE BASIS ON WHICH THE AMOUNT TO BE REFUNDED FOR OVERDRAWN SICK LEAVE HAD BEEN ADMINISTRATIVELY COMPUTED, THE PERIODS INVOLVED INCLUDING SATURDAYS AND SUNDAYS.

SECTIONS 11 AND 12 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, EXCLUDING SUNDAYS, HOLIDAYS, AND NONWORK DAYS FROM SICK LEAVE, WERE MADE EFFECTIVE ON AND AFTER MARCH 2, 1940, THE DATE OF THE ACT EXCLUDING SUCH DAYS FROM SICK LEAVE. 54 STAT. 38. (SEE SECTION 25 OF THE REGULATIONS). PRIOR TO MARCH 2, 1940, THE PROVISIONS OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND OF SECTIONS 11 AND 12 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938, EFFECTIVE JANUARY 1, 1938, REQUIRED THAT SUNDAYS, HOLIDAYS, AND NONWORK DAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE BE CHARGED AS SICK LEAVE AND REFUND FOR OVERDRAWN SICK LEAVE WAS REQUIRED TO BE COMPUTED ACCORDINGLY.

THE DECISION OF OCTOBER 27, 1938, 18 COMP. GEN. 383, HELD AS FOLLOWS:

THE AMOUNT TO BE CHARGED EMPLOYEES, SEPARATED FROM THE SERVICE UNDER CONDITIONS WHICH REQUIRE CHARGING THEM WITH EXCESS OR OVERDRAWN LEAVE, SHOULD BE COMPUTED IN ACCORDANCE WITH THE LEAVE REGULATIONS IN FORCE WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN, BUT, IN DETERMINING WHETHER EMPLOYEES ARE SEPARATED UNDER CONDITIONS WHICH DO OR DO NOT REQUIRE CHARGING THEM FOR SUCH LEAVE, THE REGULATIONS IN FORCE AT THE DATE OF SEPARATION FROM SERVICE MUST GOVERN, REGARDLESS OF THE TIME WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN, AND WHERE THE SEPARATIONS ARE ON OR AFTER JANUARY 1, 1938, AND OF SUCH TYPE AS TO RELIEVE THE EMPLOYEES FROM MAKING REFUND FOR OVERDRAWN OR EXCESS ANNUAL LEAVE UNDER THE PROVISIONS OF THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE ON THAT DATE, IT IS IMMATERIAL WHETHER SUCH LEAVE WAS TAKEN PRIOR OR SUBSEQUENT TO JANUARY 1, 1938.

IN OTHER WORDS, THE DATE OF SEPARATION IS MATERIAL ONLY IN CONNECTION WITH DETERMINING WHETHER THE REASON FOR THE SEPARATION DOES OR DOES NOT REQUIRE A REFUND UNDER THE TERMS OF THE REGULATIONS IN FORCE AT THE TIME OF SEPARATION AND IS NOT CONTROLLING AS TO THE BASIS ON WHICH THE REFUND SHALL BE COMPUTED, WHICH IS CONTROLLED BY THE REGULATIONS IN FORCE WHEN THE OVERDRAWN LEAVE WAS TAKEN.

THE QUOTED DECISION IS APPLICABLE IN RESPECT OF THE CHANGES MADE IN THE REGULATIONS EFFECTIVE MARCH 2, 1940, REQUIRED BY THE ACT OF THAT DAY. THEREFORE, IN ANY CASE WHERE IT IS DETERMINED THAT THE CHARACTER OF THE SEPARATION FROM THE SERVICE, WHETHER BEFORE OR AFTER MARCH 2, 1940, REQUIRES A REFUND COVERING OVERDRAWN SICK LEAVE, THE COMPENSATION IS REQUIRED TO BE COMPUTED IN ACCORDANCE WITH THE REGULATIONS IN FORCE WHEN THE EXCESS LEAVE WAS TAKEN. THAT IS IF SUCH LEAVE WERE TAKEN PRIOR TO MARCH 2, 1940, SUNDAYS, HOLIDAYS, AND NONWORK DAYS OCCURRING WITHIN A PERIOD OF OVERDRAWN SICK LEAVE MUST BE CHARGED, BUT IF SUCH LEAVE WERE TAKEN ON AND AFTER MARCH 2, 1940, SUNDAYS, HOLIDAYS, AND NONWORK DAYS ARE NOT REQUIRED TO BE CHARGED AS SICK LEAVE.

AS THE OVERDRAWN SICK LEAVE IN THE CASE PRESENTED WAS TAKEN PRIOR TO MARCH 2, 1940--- IN OCTOBER AND DECEMBER 1939--- THE AMOUNT TO BE REFUNDED IS REQUIRED TO INCLUDE COMPENSATION FOR SUNDAYS, HOLIDAYS, AND NONWORK DAYS, IN ACCORDANCE WITH THE APPLICABLE REGULATIONS IN FORCE WHEN THE LEAVE WAS TAKEN.

THE PREAUDIT ACTION WAS CORRECT AND IS HEREBY AFFIRMED. THE UNPAID VOUCHER IS RETURNED HEREWITH.