B-137531, NOVEMBER 7, 1958, 38 COMP. GEN. 354

B-137531: Nov 7, 1958

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IS NOT AUTHORIZED IN THE ABSENCE OF A LAW OR A REGULATION HAVING THE FORCE AND EFFECT OF A LAW WHICH WOULD PERMIT A CHANGE IN A STATUTORY RIGHT. - FOR SICK LEAVE NOT BEEN APPROVED THE ADMINISTRATIVE POLICY OF GRANTING EXCESS ANNUAL LEAVE TO PREVENT A FORFEITURE WOULD HAVE BEEN EMPLOYED. SINCE THE EMPLOYEE'S SERVICES WERE URGENTLY NEEDED BECAUSE THERE WAS NO ONE QUALIFIED AT THE TIME TO DO THE WORK. SINCE THE RETROACTIVE SUBSTITUTION WAS NOT FOR THE PURPOSE OF AVOIDING A FORFEITURE OF THAT AMOUNT OF ANNUAL LEAVE. ADMINISTRATIVE APPROVAL FOR THE SUBSTITUTION IN REALITY WAS ALLOWED AS AN INDUCEMENT TO THE EMPLOYEE TO STAY ON THE JOB. THE ACTION WAS QUESTIONED BY OUR AUDITORS AND BECAUSE OF THAT FACT THE ADMINISTRATIVE ACTION WAS RESCINDED.

B-137531, NOVEMBER 7, 1958, 38 COMP. GEN. 354

CIVILIAN EMPLOYEES - LEAVES OF ABSENCE - SICK - ANNUAL LEAVE SUBSTITUTION THE RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE FOR REGULAR SICK LEAVE AS AN INDUCEMENT TO AN EMPLOYEE TO STAY ON THE JOB, AS DISTINGUISHED FROM A LIQUIDATION OF AN ADVANCED SICK LEAVE INDEBTEDNESS NOT REQUIRING ANY CHANGE IN LEAVE RECORDS, IS NOT AUTHORIZED IN THE ABSENCE OF A LAW OR A REGULATION HAVING THE FORCE AND EFFECT OF A LAW WHICH WOULD PERMIT A CHANGE IN A STATUTORY RIGHT, SUCH AS SICK LEAVE, ONCE IT HAS BECOME VESTED.

TO THE SECRETARY OF THE AIR FORCE, NOVEMBER 7, 1958:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS DIRECTED OUR ATTENTION TO A SITUATION AT SEYMOUR JOHNSON AIR FORCE BASE, NORTH CAROLINA, HEREINAFTER SET FORTH, WHICH, WE FEEL, WARRANTS YOUR CONSIDERATION.

THE RECORD SHOWS THAT ON DECEMBER 16, 1957, THE CIVILIAN PERSONNEL OFFICER APPROVED THE RETROACTIVE SUBSTITUTION OF 96 HOURS OF ANNUAL LEAVE FOR REGULAR SICK LEAVE REQUESTED BY THE EMPLOYEE, MR. BERNICE TEMPLE, AND ADMINISTRATIVELY GRANTED TO HIM DURING THE PERIOD SEPTEMBER 16 TO NOVEMBER 16, 1957. THE PERIOD OF SICK LEAVE RESULTED FROM AN INJURY SUFFERED ON THE JOB. THE RECORD DOES NOT SHOW WHO INITIATED THE REQUEST FOR THE SUBSTITUTION OF LEAVE. THE RECORD SHOWS THAT HAD THE REQUEST FOR RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE--- 96 HOURS--- FOR SICK LEAVE NOT BEEN APPROVED THE ADMINISTRATIVE POLICY OF GRANTING EXCESS ANNUAL LEAVE TO PREVENT A FORFEITURE WOULD HAVE BEEN EMPLOYED. ON THE OTHER HAND THE RECORD DISCLOSES THAT AS AN ADMINISTRATIVE EXPEDIENCY, AND SINCE THE EMPLOYEE'S SERVICES WERE URGENTLY NEEDED BECAUSE THERE WAS NO ONE QUALIFIED AT THE TIME TO DO THE WORK, AND SINCE THE RETROACTIVE SUBSTITUTION WAS NOT FOR THE PURPOSE OF AVOIDING A FORFEITURE OF THAT AMOUNT OF ANNUAL LEAVE, ADMINISTRATIVE APPROVAL FOR THE SUBSTITUTION IN REALITY WAS ALLOWED AS AN INDUCEMENT TO THE EMPLOYEE TO STAY ON THE JOB. THE ACTION WAS QUESTIONED BY OUR AUDITORS AND BECAUSE OF THAT FACT THE ADMINISTRATIVE ACTION WAS RESCINDED. THE ORIGINAL ADMINISTRATIVE ACTION NOW IS BEING JUSTIFIED ADMINISTRATIVELY, UNDER THE PRINCIPLE ENUNCIATED IN OUR DECISION B-108632, DATED DECEMBER 30, 1957, 37 COMP. GEN. 439, IN PERTINENT PART AS FOLLOWS:

THEREFORE, OUR VIEW IS THAT, IN THE EXERCISE OF ADMINISTRATIVE DISCRETION, AN EMPLOYEE MAY LIQUIDATE ADVANCED SICK LEAVE BY REQUESTING A CHARGE AGAINST AN EQUIVALENT AMOUNT OF ANNUAL LEAVE * * * PROVIDED THE ANNUAL LEAVE IS CHARGED PRIOR TO THE TIME IT WOULD BE FORFEITED BY OPERATION OF THE LIMITATION IN THE LEAVE LAW AND PROVIDED FURTHER THAT THE ADMINISTRATIVE OFFICE OTHERWISE WOULD HAVE GRANTED THE ANNUAL LEAVE UPON THE REQUEST OF THE EMPLOYEE. OUR DECISIONS INDICATING A CONTRARY VIEW ARE NO LONGER FOR APPLICATION. ( ITALICS SUPPLIED.)

IN THE CASE HERE INVOLVED THERE EVIDENTLY ARE PRESENT THE CONDITIONS THAT AT THE TIME OF APPROVAL THE EMPLOYEE WOULD HAVE HAD SUFFICIENT TIME TO HAVE TAKEN THE 12 DAYS--- 96 HOURS--- ANNUAL LEAVE UPON THE ADMINISTRATIVE GRANTING OF SUCH ANNUAL LEAVE HAD THE SUBSTITUTION NOT BEEN APPROVED. ONE CONDITION OF THE REFERRED-TO DECISION MISSING IS THAT HERE NO INDEBTEDNESS TO THE UNITED STATES EXISTED SINCE THE SICK LEAVE WAS NOT ADVANCED SICK LEAVE. OUR DECISION 37 COMP. GEN. 439, APPLIES ONLY IN THE CASE INVOLVING ADVANCE SICK LEAVE WHERE THE TIME REMAINING WOULD PERMIT THE USE OF SUCH LEAVE BEFORE THE LIMITATION THEREON WOULD OPERATE TO CAUSE FORFEITURE PLUS THE FACT THAT ADMINISTRATIVE APPROVAL OF SUCH LEAVE IS GRANTED. IN THAT DECISION NO SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE WAS INVOLVED; RATHER, IT INVOLVED A LIQUIDATION OF A SICK LEAVE INDEBTEDNESS NOT REQUIRING ANY CHANGE OF RECORDS. TO HOLD OTHERWISE WOULD NOT ONLY ENCOURAGE NUMEROUS REVISIONS OF BASIC LEAVE RECORDS BUT ALSO WOULD PERMIT EMPLOYEES WHO HAD VOLUNTARILY EXERCISED A VALUABLE STATUTORY RIGHT--- SICK LEAVE--- AND RECEIVED COMPENSATION THEREFOR, TO SUBSEQUENTLY HAVE THE TYPE OF LEAVE CHANGED. IN THE ABSENCE OF A LAW, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, SUCH STATUTORY RIGHT, HAVING BECOME VESTED, IS NOT SUBJECT TO CHANGE. FURTHER, IT WOULD NOT BE IN KEEPING WITH THE PRIMARY INTENT OF THE LAW TO PROVIDE ANNUAL LEAVE FOR VACATION PURPOSES.

THEREFORE, WE HOLD THAT THE ADMINISTRATIVE ACTION OF RETROACTIVELY SUBSTITUTING ANNUAL LEAVE FOR REGULAR SICK LEAVE REQUESTED AND GRANTED AS CONTRASTED WITH LIQUIDATION OF ADVANCE SICK LEAVE BY APPLICATION OF ANNUAL LEAVE--- THE SITUATION INVOLVED IN 37 COMP. GEN. 439--- IS NOT AUTHORIZED.

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS BEEN ADVISED ACCORDINGLY.