B-13859, DECEMBER 17, 1940, 20 COMP. GEN. 321

B-13859: Dec 17, 1940

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APPARENTLY RELINQUISHES HIS POSITION MAY NOT BE PAID FOR ANY ACCRUED LEAVE NOT THERETOFORE TAKEN EVEN THOUGH HIS RESIGNATION WAS NOT FORMALLY ACCEPTED UNTIL SEVERAL DAYS THEREAFTER. 1940: I HAVE YOUR LETTER OF DECEMBER 6. ALEXANDER MCLELLAN WAS EMPLOYED AS SENIOR FOREMAN (ENGINEER) AT $2. ANNUAL LEAVE WAS NOT REQUESTED BEYOND THAT DATE AND NO REFERENCE TO LEAVE WAS MADE IN HIS RESIGNATION. WHICH WAS ACCEPTED EFFECTIVE JUNE 15. WHICH WOULD HAVE CONTINUED HIM IN A PAY STATUS UNTIL 10:15 A.M. HE HAS REQUESTED PAYMENT TO THAT DATE AND YOUR DECISION IS REQUESTED AS TO WHETHER HE MAY BE GRANTED THE ENTIRE AMOUNT OF LEAVE TO HIS CREDIT OR WHETHER HE MAY BE GRANTED ONLY SO MUCH THEREOF AS WOULD CONTINUE HIM IN A PAY STATUS THROUGH JUNE 20.

B-13859, DECEMBER 17, 1940, 20 COMP. GEN. 321

COMPENSATION - RESIGNATION - DELAYED ACCEPTANCE AN EMPLOYEE WHO DESIGNATES IN HIS RESIGNATION AN EFFECTIVE DATE, PERFORMS NO SERVICE AFTER SUCH DATE, AND APPARENTLY RELINQUISHES HIS POSITION MAY NOT BE PAID FOR ANY ACCRUED LEAVE NOT THERETOFORE TAKEN EVEN THOUGH HIS RESIGNATION WAS NOT FORMALLY ACCEPTED UNTIL SEVERAL DAYS THEREAFTER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, DECEMBER 17, 1940:

I HAVE YOUR LETTER OF DECEMBER 6, 1940, AS FOLLOWS:

MR. ALEXANDER MCLELLAN WAS EMPLOYED AS SENIOR FOREMAN (ENGINEER) AT $2,000 PER ANNUM IN THE CIVILIAN CONSERVATION CORPS, UNDER THE NATIONAL PARK SERVICE OF THIS DEPARTMENT AT HOT SPRINGS NATIONAL PARK. SUBMITTED HIS RESIGNATION TO BE EFFECTIVE AT THE CLOSE OF JUNE 15, 1940, IN ORDER TO ENGAGE IN POLITICAL ACTIVITIES. ANNUAL LEAVE WAS NOT REQUESTED BEYOND THAT DATE AND NO REFERENCE TO LEAVE WAS MADE IN HIS RESIGNATION, WHICH WAS ACCEPTED EFFECTIVE JUNE 15, 1940, ON ORDER NO. 40- 145 CCC, DATED JUNE 20, 1940.

MR. MCLELLAN HAD 14 DAYS, 1 HOUR AND 35 MINUTES ANNUAL LEAVE TO HIS CREDIT AT THE CLOSE OF JUNE 15, 1940, WHICH WOULD HAVE CONTINUED HIM IN A PAY STATUS UNTIL 10:15 A.M. JULY 8, 1940. HE HAS REQUESTED PAYMENT TO THAT DATE AND YOUR DECISION IS REQUESTED AS TO WHETHER HE MAY BE GRANTED THE ENTIRE AMOUNT OF LEAVE TO HIS CREDIT OR WHETHER HE MAY BE GRANTED ONLY SO MUCH THEREOF AS WOULD CONTINUE HIM IN A PAY STATUS THROUGH JUNE 20, THE DATE OF ACCEPTANCE OF HIS RESIGNATION.

IT IS UNDERSTOOD (1) THAT THE EMPLOYEE SELECTED JUNE 15, 1940, AS THE EFFECTIVE DATE OF HIS RESIGNATION, (2) THAT HE PERFORMED NO SERVICES THEREAFTER IN THE CIVILIAN CONSERVATION CORPS, AND (3) THAT HIS RESIGNATION WAS ACCEPTED ON JUNE 20, 1940. WHILE A RESIGNATION IN SOME CASES MAY NOT BECOME EFFECTIVE UNTIL ACCEPTED BY THE APPOINTING POWER, THERE ARE AUTHORITIES SUPPORTING THE VIEW THAT WHERE AN EMPLOYEE FIXES THE EFFECTIVE DATE OF HIS RESIGNATION FROM THE OFFICE OR POSITION HELD BY HIM AND ON SUCH DATE HE RENOUNCES OR RELINQUISHES THE RIGHT TO SUCH POSITION OR OFFICE, THE RESIGNATION IS EFFECTIVE WITHOUT THE FORMALITY OF AN ACCEPTANCE. AS TO CASES OF NECESSITY OR NONNECESSITY OF AN ACCEPTANCE OF A RESIGNATION SEE NOTE TO REITER V. STATE, 23 L.R.A. 681; SUPPLEMENTED BY CASE NOTE TO STATE EX REL. ROYSE V. SUPERIOR COURT, 12 L.R.A. ( NS) 1010. BASED UPON THESE AUTHORITIES, MR. MCLELLAN'S RESIGNATION, THOUGH NOT ACCEPTED BY THE APPOINTING OFFICER UNTIL JUNE 20, 1940, BECAME EFFECTIVE JUNE 15, 1940, THE DATE ON WHICH HE APPEARS TO HAVE RELINQUISHED THE OFFICE OR POSITION HELD BY HIM, AND THUS THE DATE ON WHICH HIS PAY STATUS TERMINATED.

THE DECISIONS OF THIS OFFICE ARE TO THE EFFECT THAT PAYMENT OF COMPENSATION MAY NOT BE MADE FOR ANY PORTION OF LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. 16 COMP. GEN. 28; ID. 899; 17 ID. 48, 369, 481. ALSO, WITH RELATION TO THE OPERATION OF THE HATCH ACT--- PARTICULARLY WITH REFERENCE TO SECTION 9 (B), 53 STAT. 1148--- THE ATTORNEY GENERAL, IN HIS OPINION OF OCTOBER 12, 1940, HELD, QUOTING FROM THE SYLLABUS:

POSTPONEMENT OF THE DATE OF REMOVAL OF AN EMPLOYEE MERELY FOR THE PURPOSE OF ALLOWING LEAVE WOULD NOT CONFORM WITH THE MANDATE OF THE HATCH ACT THAN AN EMPLOYEE VIOLATING ITS PROVISIONS SHALL BE IMMEDIATELY REMOVED.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT PAYMENT OF COMPENSATION MAY NOT NOW BE MADE TO MR. MCLELLAN FOR AN PORTION OF LEAVE ACCRUED BUT NOT TAKEN PRIOR TO JUNE 15, 1940. COMPARE 19 COMP. GEN. 884.