B-144189, OCT. 24, 1960

B-144189, OCT. 24, 1960

TO MR. R. K. MAYO, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE:

YOUR LETTER OF OCTOBER 3, 1960, REQUESTS OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE TRANSMITTED VOUCHER, COVERING PAYMENT OF COMPENSATION DUE MRS. MARGARET A. ACKERMAN, A FORMER EMPLOYEE OF THE SOIL CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE.

YOU SAY MRS. ACKERMAN, BECAUSE OF ILLNESS, HAD CREATED A MINUS BALANCE OF 98 HOURS OF SICK LEAVE, INCLUDING ADVANCE LEAVE OF 15 DAYS, AS OF THE EFFECTIVE DATE OF HER RESIGNATION. MRS. ACKERMAN, WHO HAD BEEN HOSPITALIZED, WAS CERTIFIED BY HER PHYSICIAN AS BEING UNABLE TO PERFORM HER OFFICIAL DUTIES FOR A PERIOD OF ABOUT SIX MONTHS BECAUSE OF HER PHYSICAL CONDITION. HER APPLICATION FOR LEAVE WITHOUT PAY WAS ADMINISTRATIVELY DENIED AND IN VIEW OF HER STATED INABILITY TO RETURN TO DUTY WITHIN SIX MONTHS HER RESIGNATION WAS SUBMITTED UPON THE REQUEST OF THE ADMINISTRATIVE OFFICE, EFFECTIVE AUGUST 26, 1960. BECAUSE OF MRS. ACKERMAN'S INDEBTEDNESS TO THE GOVERNMENT FOR UNLIQUIDATED ADVANCED SICK LEAVE, THE VOUCHER FOR PAYMENT OF COMPENSATION HAS BEEN WITHHELD PENDING DETERMINATION WHETHER IT SHOULD BE APPLIED AGAINST THE ADVANCE OF UNEARNED LEAVE.

IN THAT REGARD YOU REFER TO OUR DECISION B-117215, OCTOBER 6, 1953, 33 COMP. GEN. 145, AND ASK THE FOLLOWING QUESTIONS:

"HOW LONG A PERIOD OF DISABILITY IS INFERRED BY B-117215 OF OCT. 6, 1953? IF IT IS INTENDED TO RELATE TO AN INDEFINITE PERIOD OF TIME WOULD THE SUBJECT CASE INVOLVING "ABOUT 6 MONTHS" QUALIFY THE EMPLOYEE AND PERMIT OUR WAIVING COLLECTION FOR ANY ADVANCE LEAVE INDEBTEDNESS AT TIME OF RESIGNATION? WHAT WOULD CONSTITUTE "AN ACCEPTABLE MEDICAL CERTIFICATE? " "

YOUR LETTER THEN INFERS THAT YOU WILL BE GUIDED BY OUR DETERMINATION IN THE MATTER.

SECTION 30.206 OF THE CURRENT LEAVE REGULATIONS PROVIDES AS FOLLOWS:

"IN CASE OF THE SEPARATION OF AN EMPLOYEES WHO IS INDEBTED FOR UNEARNED LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR DISABILITY OR IN CASE AN EMPLOYEE IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE.'

NEITHER THE REGULATION NOR OUR DECISION PURPORTS TO ESTABLISH ANY PARTICULAR PERIOD OF TIME WHICH WOULD WARRANT ADMINISTRATIVE SEPARATION OF AN EMPLOYEE ON GROUNDS OF DISABILITY. THE DISABILITY MAY BE OF INDEFINITE DURATION OR FOR SUCH A SPECIFIC PERIOD OF TIME AS WOULD JUSTIFY AN ADMINISTRATIVE CONCLUSION THAT THE EMPLOYEE MUST BE REPLACED TO MEET OFFICIAL NEEDS. THE REQUIREMENT FOR A MEDICAL CERTIFICATE IS TO ESTABLISH THE FACT OF DISABILITY. THE ACCEPTABILITY OF THE CERTIFICATE IS A MATTER FOR ADMINISTRATIVE CONSIDERATION AND DETERMINATION WITH RESPECT TO AN EMPLOYEE'S INABILITY TO PERFORM HIS REQUIRED OFFICIAL DUTIES AND THERE IS NO BASIS UPON WHICH OUR OFFICE MAY SUBSTITUTE ITS JUDGMENT FOR THAT OF ADMINISTRATIVE OFFICIALS HAVING KNOWLEDGE OF THE FACTS.

THEREFORE, IF IT IS ADMINISTRATIVELY DETERMINED THAT MRS. ACKERMAN WAS PHYSICALLY CAPABLE OF PERFORMING HER OFFICIAL DUTIES AT THE TIME OF HER SEPARATION FROM THE SERVICE THE MEDICAL CERTIFICATE MUST BE VIEWED AS NOT ACCEPTABLE TO ESTABLISH A CONTRARY CONCLUSION. IN THAT EVENT IT WOULD BE NECESSARY TO REQUIRE A REFUND OF THE AMOUNT PAID THE EMPLOYEE FOR THE PERIOD OF EXCESS SICK LEAVE AND TO WITHHOLD COMPENSATION DUE HER UPON SEPARATION IN AN AMOUNT NECESSARY TO LIQUIDATE HER INDEBTEDNESS BECAUSE OF THE ADVANCED UNEARNED LEAVE. HOWEVER, ON THE FACTS SUBMITTED WE WOULD OFFER NO OBJECTION TO A WAVIER OF REFUND FOR THE LEAVE ADVANCED TO THE FORMER EMPLOYEE SHOULD IT BE DETERMINED THAT THE SUPPORTING MEDICAL CERTIFICATE IS ADMINISTRATIVELY ACCEPTABLE TO ESTABLISH THE FACT OF HER DISABILITY.

THE VOUCHER, TOGETHER WITH RELATED PAPERS, IS RETURNED HEREWITH FOR DISPOSITION IN ACCORDANCE WITH THE FOREGOING.