B-127564, APR. 27, 1956

B-127564: Apr 27, 1956

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HOUSING AND HOME FINANCE AGENCY: WE HAVE FOR CONSIDERATION THE REPLY OF NOVEMBER 30. THIS PAYMENT WAS EFFECTED ON BUREAU VOUCHER NO. 55-121 CERTIFIED BY MRS. WAS CARRIED ON. TO WHICH INFORMAL EXCEPTION WAS TAKEN BECAUSE TERMINAL LEAVE UNDER SUCH CIRCUMSTANCES WAS NOT AUTHORIZED. WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED. IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION. AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. THE AGENCY COULD HAVE DENIED THE ANNUAL LEAVE THEREBY FORCING MR. "IT IS RECOGNIZED THAT ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL LEAVE IS LIMITED AND SHOULD NOT BE USED FOR THE SOLE PURPOSE OF ALLOWING THE ACCUMULATION OF LEAVE WHILE ON LEAVE.

B-127564, APR. 27, 1956

TO THE HONORABLE ALBERT M. COLE, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

WE HAVE FOR CONSIDERATION THE REPLY OF NOVEMBER 30, 1955, FROM ARTHUR C. MEADE, COMPTROLLER, PUBLIC HOUSING ADMINISTRATION, TO AN INFORMAL AUDIT INQUIRY OF SEPTEMBER 1, 1955, BY OUR OFFICE CONCERNING A PAYMENT MADE TO EUGENE M. RYCKOFF FOR LEAVE ON LEAVE ACCRUING DURING A PERIOD OF TERMINAL LEAVE PRECEDING HIS RETIREMENT. THIS PAYMENT WAS EFFECTED ON BUREAU VOUCHER NO. 55-121 CERTIFIED BY MRS. LILLIAN KELLS.

IN A LETTER DATED JUNE 26, 1954, THE EMPLOYEE INDICATED HE WOULD RETIRE SEPTEMBER 30, 1954, UPON COMPLETION OF 13 YEARS OF SERVICE. HE APPARENTLY REQUESTED, AND WAS CARRIED ON, ANNUAL LEAVE WITHOUT A RETURN TO DUTY FROM JULY 1, 1954, THROUGH TWO HOURS ON SEPTEMBER 22, 1954. THE PAYMENT OF COMPENSATION FOR THIS PERIOD INCLUDED 20 HOURS' ANNUAL LEAVE ACCRUED AS LEAVE ON LEAVE DURING THE PERIOD JULY 1 TO SEPTEMBER 11, 1954, TO WHICH INFORMAL EXCEPTION WAS TAKEN BECAUSE TERMINAL LEAVE UNDER SUCH CIRCUMSTANCES WAS NOT AUTHORIZED, CITING 34 COMP. GEN. 61 AS THE BASIS FOR THE AUDIT ACTION. THAT DECISION HELD, QUOTED FROM THE SYLLABUS---

"ADMINISTRATIVE AUTHORITY TO GRANT AN EMPLOYEE TERMINAL, ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION; HOWEVER, AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. GEN. 511, TO THE EFFECT THAT AN EMPLOYEE MUST BE SEPARATED AND PAID A LUMP SUM FOR THE ANNUAL LEAVE TO HIS CREDIT AS OF THE LAST DATE OF ACTIVE SERVICE. 31 COMP. GEN. 581, AMPLIFIED.'

IN MR. MEADE'S REPLY TO OUR AUDIT EXCEPTION HE STATED, AMONG OTHER THINGS

"* * * IT APPEARS THAT MR. RYCKOFF EXPRESSED A DESIRE TO RETIRE AT THE CLOSE OF SEPTEMBER 30, 1954 AFTER THE COMPLETION OF 13 YEARS OF SERVICE AND ALSO REQUESTED THAT HE BE GRANTED ANNUAL LEAVE FOR THE PERIOD BEGINNING JULY 1, 1954. AT THIS POINT, THE AGENCY COULD HAVE DENIED THE ANNUAL LEAVE THEREBY FORCING MR. RYCKOFF TO REMAIN ON ACTIVE DUTY OR FORCING HIM TO RETIRE AS OF JUNE 30, 1954, AGAINST HIS WISHES AND PRIOR TO THE COMPLETION OF 13 YEARS OF SERVICE. EITHER ACTION WOULD APPEAR TO BE ARBITRARY.

"IT IS RECOGNIZED THAT ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL LEAVE IS LIMITED AND SHOULD NOT BE USED FOR THE SOLE PURPOSE OF ALLOWING THE ACCUMULATION OF LEAVE WHILE ON LEAVE. ON THE OTHER HAND IT SHOULD NOT BE SO LIMITED AS TO PRECLUDE THE GRANTING OF ANNUAL LEAVE FOR THE PURPOSE OF ROUNDING OUT AN EMPLOYEE'S SERVICE PRIOR TO RETIREMENT, WHEN SUCH ACTION IS NOT ADVERSE TO THE NEEDS OF THE SERVICE. SUCH A LIMITATION WILL INEVITABLY FORCE THE EMPLOYEE TO RESORT TO SUBTERFUGE AND CHICANERY IN ORDER TO GAIN WHAT WOULD SEEM TO HIM A JUSTIFIABLE END.'

THE POSSIBILITY OF AN EMPLOYEE'S RESORTING TO SUBTERFUGE OR CHICANERY TO AVOID LEGAL RESTRICTIONS IS NOT NEW TO OUR OFFICE AND THAT HAS NEVER BEEN HELD TO JUSTIFY OUR OFFICE IN FAILING TO ENFORCE APPLICABLE STATUTES AND REGULATIONS. THE REPLY ALSO APPEARS TO STRESS THE FACT THAT SINCE THIS EMPLOYEE WAS IN A PAY STATUS FOR TWO HOURS ON SEPTEMBER 22, 1954, HE WAS ENTITLED TO ACCRUE LEAVE ON LEAVE APPARENTLY BECAUSE OF THE CIVIL SERVICE REGULATION WHICH AUTHORIZES THE ACCRUAL OF LEAVE ON LEAVE WHILE AN EMPLOYEE IS IN A PAY STATUS. HOWEVER, THAT REGULATION IS FOR APPLICATION ONLY WHEN THE GRANTING OF THE BASIC LEAVE IS PROPERLY AUTHORIZED.

WE HAVE GIVEN CAREFUL CONSIDERATION TO MR. MEAD'S REPLY TO THE INFORMAL EXCEPTION BUT FIND NO LAWFUL JUSTIFICATION FOR THE PAYMENT IN QUESTION. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE AUDIT ACTION; HENCE, APPROPRIATE STEPS SHOULD BE TAKEN TO RECOVER THE ERRONEOUS PAYMENT.