B-139623, SEPTEMBER 3, 1959, 39 COMP. GEN. 154

B-139623: Sep 3, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DURING A PERIOD WHEN THE AGENCY ACTION FOR INVOLUNTARY DISABILITY RETIREMENT WAS BEING CONSIDERED AND REJECTED FOR FAILURE TO ESTABLISH THAT THE EMPLOYEE WAS NOT PHYSICALLY AND MENTALLY CAPABLE OF PERFORMING HIS DUTIES. DURING A SUBSEQUENT PERIOD WHEN THE AGENCY DISABILITY SEPARATION ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 WAS BEING CONSIDERED AND REJECTED ON THE BASIS THAT THE MEDICAL EVIDENCE DID NOT SUPPORT THE SEPARATION. GIVES THE EMPLOYEE WHO WAS WILLING AND ABLE TO PERFORM HIS DUTIES THE RIGHT. TO HAVE BOTH PERIODS OF SICK LEAVE REGARDED AS AN ERRONEOUS SUSPENSION AND THE SALARY RECEIVED DURING THE SICK LEAVE PERIOD REGARDED AS BACK PAY ALLOWABLE UNDER THE ACT OF AUGUST 24.

B-139623, SEPTEMBER 3, 1959, 39 COMP. GEN. 154

CIVILIAN PERSONNEL - INVOLUNTARY SICK LEAVE - UNJUSTIFIED SUSPENSIONS - BACK PAY THE PLACING OF AN EMPLOYEE ON SICK LEAVE, WITHOUT HIS CONSENT, DURING A PERIOD WHEN THE AGENCY ACTION FOR INVOLUNTARY DISABILITY RETIREMENT WAS BEING CONSIDERED AND REJECTED FOR FAILURE TO ESTABLISH THAT THE EMPLOYEE WAS NOT PHYSICALLY AND MENTALLY CAPABLE OF PERFORMING HIS DUTIES, AND DURING A SUBSEQUENT PERIOD WHEN THE AGENCY DISABILITY SEPARATION ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 WAS BEING CONSIDERED AND REJECTED ON THE BASIS THAT THE MEDICAL EVIDENCE DID NOT SUPPORT THE SEPARATION, GIVES THE EMPLOYEE WHO WAS WILLING AND ABLE TO PERFORM HIS DUTIES THE RIGHT, UPON RESTORATION TO DUTY, TO HAVE BOTH PERIODS OF SICK LEAVE REGARDED AS AN ERRONEOUS SUSPENSION AND THE SALARY RECEIVED DURING THE SICK LEAVE PERIOD REGARDED AS BACK PAY ALLOWABLE UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652; THEREFORE, RECREDIT OF THE SICK LEAVE IS PROPER. WHEN A PERIOD OF SICK LEAVE WITHOUT THE CONSENT OF THE EMPLOYEE PENDING INVOLUNTARY DISABILITY RETIREMENT OR DISABILITY SEPARATION IS DETERMINED TO BE A PERIOD OF UNJUSTIFIED AND UNWARRANTED SUSPENSION, THE EMPLOYEE WHO WAS IN RECEIPT OF PREMIUM COMPENSATION ON AN ANNUAL BASIS UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 926 (2), AT THE BEGINNING OF THE SICK LEAVE PERIOD IS ENTITLED TO HAVE INCLUDED IN THE BACK PAY THE PREMIUM PAY HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION.

TO THE SECRETARY OF THE TREASURY, SEPTEMBER 3, 1959:

ON JULY 30, 1959, THE ACTING SECRETARY OF THE TREASURY, REQUESTED OUR DECISION WHETHER IN THE CIRCUMSTANCES SET FORTH BELOW YOUR AGENCY CAN RECREDIT AN EMPLOYEE'S LEAVE ACCOUNT WITH SICK LEAVE CHARGED HIM FOR THE PERIOD JULY 21, 1958, TO APRIL 13, 1959, AND WHETHER HE MAY BE PAID 15 PER CENTUM PREMIUM PAY FROM OCTOBER 1, 1958, THROUGH APRIL 22, 1959, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926.

THE ACTING SECRETARY OF THE TREASURY SAYS THAT THE CONDUCT OF AN EMPLOYEE IN THE PERFORMANCE OF HIS DUTIES ON MAY 21, 1958, RESULTED IN A DECISION BY THE INTERNAL REVENUE SERVICE TO HAVE HIM SUBJECTED TO A MEDICAL EXAMINATION TO DETERMINE HIS FITNESS FOR CONTINUED ASSIGNMENT AS CRIMINAL INVESTIGATOR, GS-11, THE DUTIES OF WHICH INVOLVED THE INVESTIGATION, APPREHENSION, AND DETENTION OF VIOLATORS OF FEDERAL LIQUOR LAWS. AFTER DUE CONSIDERATION OF THE MEDICAL REPORT AND AVAILABLE INFORMATION THE REVENUE SERVICE DETERMINED THAT THE EMPLOYEE WAS NOT PHYSICALLY AND MENTALLY FIT TO PERFORM THE DUTIES OF A CRIMINAL INVESTIGATOR. BEFORE INITIATING ANY ACTION THE AGENCY DISCUSSED THE MATTER WITH THE EMPLOYEE AND HE INDICATED HE DID NOT WANT TO APPLY FOR OPTIONAL OR DISABILITY RETIREMENT. THE AGENCY INITIATED ACTION FOR INVOLUNTARY DISABILITY RETIREMENT SINCE THERE WAS NO AVAILABLE POSITION TO WHICH THE EMPLOYEE COULD BE REASSIGNED. ACTING IN GOOD FAITH ON THE BASIS OF THE MEDICAL ADVICE AVAILABLE THE EMPLOYEE WAS ADMINISTRATIVELY PLACED ON SICK LEAVE WITHOUT HIS CONSENT ON JULY 21, 1958.

THE MEDICAL DIRECTOR OF THE CIVIL SERVICE COMMISSION INFORMED THE EMPLOYEE ON AUGUST 6, 1958, THAT BASED ON THE EVIDENCE SUBMITTED BY THE REVENUE SERVICE, THE COMMISSION MEDICAL OFFICERS FELT THAT HE WAS TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE AS A CRIMINAL INVESTIGATOR AND AFFORDED HIM AN OPPORTUNITY TO SUBMIT ADDITIONAL MEDICAL EVIDENCE IF HE WAS NOT IN AGREEMENT WITH THEIR DECISION. THE EMPLOYEE REPLIED BY SUBMITTING FURTHER MEDICAL EVIDENCE. THE COMMISSION THEN ORDERED A MEDICAL EXAMINATION OF THE EMPLOYEE AT THE U.S. NAVAL HOSPITAL, BEAUFORT, SOUTH CAROLINA. ON OCTOBER 22, 1958, THE RETIREMENT DIVISION OF THE COMMISSION INFORMED THE REVENUE SERVICE THAT THE AGENCY INITIATED APPLICATION FOR DISABILITY RETIREMENT HAD BEEN REJECTED BECAUSE IT HAD BEEN DETERMINED THAT THE EMPLOYEE WAS "NOT TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT LAW.' THE REVENUE SERVICE THEN APPEALED THAT DECISION. ON FEBRUARY 12, 1959, THE CHAIRMAN OF THE BOARD OF APPEALS AND REVIEW, CIVIL SERVICE COMMISSION, DENIED THE APPEAL AND INFORMED THE REVENUE SERVICE THAT THE EMPLOYEE'S FILE CONTAINS REPORTS OF TWO INDEPENDENT PSYCHIATRIC EXAMINATIONS WHICH DO NOT DISCLOSE ANY DISABILITIES OF SUFFICIENT SEVERITY UPON WHICH TO BASE A CONCLUSION THAT THE EMPLOYEE WAS TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE AS A CRIMINAL INVESTIGATOR "WITHIN THE MEANING OF THE RETIREMENT ACT.'

ALTHOUGH THE EMPLOYEE WAS NOT CONSIDERED TO BE TOTALLY DISABLED WITHIN THE MEANING OF THE RETIREMENT LAW, OFFICIALS OF THE REVENUE SERVICE WERE OF THE OPINION THAT HIS DISABILITIES WERE SUCH THAT HE COULD NOT SATISFACTORILY PERFORM ALL THE DUTIES OF THE POSITION OF CRIMINAL INVESTIGATOR. ON FEBRUARY 25, 1959, THE REVENUE SERVICE ISSUED THE EMPLOYEE A NOTICE OF PROPOSED SEPARATION UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 863, AND AFFORDED THE EMPLOYEE AN OPPORTUNITY TO REPLY PERSONALLY AND IN WRITING. AFTER CONSIDERING THE EMPLOYEE'S WRITTEN REPLIES AND HIS ORAL REPLY AND THE REPORTS OF THE MEDICAL EXAMINATION CONDUCTED AT THE U.S. NAVAL HOSPITAL, BEAUFORT, SOUTH CAROLINA, WHICH HAD NOT PREVIOUSLY BEEN AVAILABLE TO THE REVENUE SERVICE, OFFICIALS DECIDED THAT THE MEDICAL EVIDENCE DID NOT SUPPORT THE PROPOSED SEPARATION-DISABILITY ACTION. THE EMPLOYEE WAS RESTORED TO DUTY ON APRIL 13, 1959, AND REMAINED IN A LIMITED DUTY STATUS THROUGH APRIL 22, 1959. EXCEPT FOR BRIEF PERIODS OF COURT ATTENDANCE IN CONNECTION WITH THE TRIAL OF CASES HE HAD INVESTIGATED AND PERIODS OF ANNUAL LEAVE REQUESTED AND GRANTED TO PREVENT FORFEITURE THEREOF, THE EMPLOYEE WAS CARRIED IN A SICK LEAVE STATUS WITHOUT HIS CONSENT FROM JULY 21, 1958, TO APRIL 13, 1959.

THE FOLLOWING QUESTIONS ARE SUBMITTED PERTAINING TO THE LEAVE ASPECTS OF THE PROBLEM:

1. SHOULD THE EMPLOYEE BE RECREDITED WITH SICK LEAVE FOR THE PERIOD JULY 21, 1958, THROUGH FEBRUARY 24, 1959?

2. THE INTERNAL REVENUE SERVICE PLANS TO RECREDIT SICK LEAVE FOR THE PERIOD FEBRUARY 25, 1959, THE DATE THE EMPLOYEE WAS ISSUED A NOTICE OF PROPOSED SEPARATION, TO APRIL 13, 1959, THE DATE THE EMPLOYEE WAS RESTORED TO DUTY, * * *. IS THIS ACTION PROPER?

THERE IS NOTHING IN THE FILE TO SHOW THAT ANY OF THE DOCTORS WHO EXAMINED THE EMPLOYEE FOUND THAT HE WAS TOTALLY DISABLED TO PERFORM THE DUTIES ASSIGNED HIM. IN FACT, THE EMPLOYEE WAS AT VARIOUS TIMES DURING HIS SICK LEAVE CALLED ON TO PERFORM PART OF HIS DUTIES BY APPEARING IN COURT AS A GOVERNMENT WITNESS AND DID PERFORM SUCH DUTIES WHICH WOULD INDICATE THAT THE EMPLOYEE WAS READY, WILLING, AND ABLE TO WORK. THE WHOLE PROCEEDING IN THIS CASE FROM JULY 21, 1958, WAS BASED UPON AN ADMINISTRATIVE DETERMINATION TO SEPARATE THE EMPLOYEE FOR DISABILITY AND THE DECISION OF THE CIVIL SERVICE COMMISSION ON THE DISABILITY RETIREMENT APPLICATION FOUND THAT THE REVENUE SERVICE HAD NOT ESTABLISHED THAT THE EMPLOYEE WAS NOT PHYSICALLY AND MENTALLY CAPABLE OF PERFORMING THE DUTIES OF HIS POSITION AND THE DECISION OF THE REVENUE SERVICE ON THE PROPOSED SEPARATION-DISABILITY UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED, FOUND THAT THE MEDICAL EVIDENCE DID NOT SUPPORT THE PROPOSED SEPARATION. IN THE CIRCUMSTANCES, THE WHOLE PERIOD OF HIS CLAIM, THAT IS, FROM JULY 21, 1958, THROUGH APRIL 13, 1959, IS TO BE REGARDED AS A PERIOD OF SUSPENSION WHICH IS COMPENSABLE UNDER SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. IN OTHER WORDS, THE PLACING OF THE EMPLOYEE ON SICK LEAVE WITHOUT HIS CONSENT WHEN HE WAS WILLING AND ABLE TO PERFORM THE DUTIES OF HIS POSITION WAS ERRONEOUS, AND THE SALARY HE RECEIVED FOR SUCH SICK LEAVE WILL BE REGARDED AS COMPENSATION ALLOWABLE UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED. THEREFORE, THE FIRST TWO QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.

THE ACTING SECRETARY ALSO REQUESTS ADVICE WHETHER THE REVENUE SERVICE MAY PROPERLY AUTHORIZE PAYMENT TO THE EMPLOYEE OF PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR THE PERIOD OCTOBER 1, 1958, THROUGH APRIL 22, 1959. IT IS STATED THAT THE REVIEW OF 15 PERCENTUM PREMIUM PAY DETERMINATION REQUIRED BY SECTION 25.271 (6) OF THE FEDERAL EMPLOYEES PAY REGULATIONS ARE MADE AT FISCAL QUARTER INTERVALS PURSUANT TO TREASURY DEPARTMENT AND INTERNAL REVENUE SERVICE REGULATIONS. THE EMPLOYEE WAS AUTHORIZED 15 PERCENTUM PREMIUM PAY FOR EACH OF THE QUARTERS FROM JULY 1955, WHEN THE REVENUE SERVICE BEGAN PAYING THE 15 PERCENTUM PREMIUM PAY, THROUGH THE QUARTER ENDING SEPTEMBER 30, 1958. THE AUTHORIZATION OF 15 PERCENTUM PREMIUM PAY FOR THE EMPLOYEE FOR THE QUARTER BEGINNING JULY 1, 1958, WAS MADE IN THE NORMAL MANNER ON THE BASIS OF HIS PERFORMANCE OF CREDITABLE OVERTIME IN THE PRECEDING 12 MONTHS.

FOR THE PERIOD BEGINNING OCTOBER 1, 1958, 15 PERCENTUM PREMIUM PAY WAS NOT AUTHORIZED FOR THE EMPLOYEE. THE DISCONTINUANCE OF 15 PERCENTUM PAY BEGINNING OCTOBER 1, 1958, AND THE DECISION NOT TO AUTHORIZE IT IN ADVANCE OF THE QUARTERS BEGINNING JANUARY 1, 1959, AND APRIL 1, 1959, RESULTED FROM THE BELIEF THAT THE EMPLOYEE DID NOT MEET THE MENTAL AND PHYSICAL REQUIREMENTS FOR HIS POSITION, AND THUS WOULD NOT RETURN TO PERFORMANCE OF DUTY REQUIRING CREDITABLE OVERTIME. AT THE TIME THE EMPLOYEE WAS RETURNED TO DUTY ON APRIL 23, 1959, HE WAS AUTHORIZED 15 PERCENTUM PAY, SINCE IT WAS ANTICIPATED HIS DUTIES WOULD REQUIRE THE QUALIFYING AMOUNT AND FREQUENCY OF IRREGULAR, UNSCHEDULED OVERTIME WORK AS HE HAD PERFORMED PRIOR TO BEING PLACED ON SICK LEAVE.

SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, GRANTS COMPENSATION AT THE RATE RECEIVED ON THE DATE OF THE REMOVAL OR SUSPENSION WHEN AN EMPLOYEE "IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED.' SINCE THE SUSPENSION IS VIEWED TO BE UNWARRANTED OR UNJUSTIFIED, THE EMPLOYEE'S COMPENSATION SHOULD BE COMPUTED AT THE RATE HE WAS RECEIVING ON THE DATE HE WAS SUSPENDED INCLUDING THE PREMIUM PAY HE NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION. SEE 34 COMP. GEN. 382.