B-144191, NOVEMBER 23, 1960, 40 COMP. GEN. 312

B-144191: Nov 23, 1960

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WHICH ARE TANTAMOUNT TO ILLEGAL OR UNWARRANTED REMOVALS OR SUSPENSIONS FROM THE SERVICE WITHIN THE JOB PROTECTION PROCEDURES IN SECTION 6 OF THE ACT OF AUGUST 24. ARE ONLY THOSE INVOLVING PERSONAL. ENFORCED ANNUAL LEAVE SITUATIONS SUCH AS THE ADMINISTRATIVE CLOSING OF AN OFFICE FOR A PERIOD OF TIME DURING WHICH EMPLOYEES ARE REQUIRED TO TAKE ANNUAL LEAVE OR INSTANCES WHEN EMPLOYEES' REQUESTS FOR ANNUAL LEAVE ARE DENIED AND THE EMPLOYEES ARE INSTRUCTED TO TAKE ANNUAL LEAVE AT OTHER SPECIFIC TIMES COME WITHIN THE GENERAL RULE THAT ADMINISTRATIVE OFFICES MAY REQUIRE ANY INDIVIDUAL EMPLOYEE OR CLASS OR EMPLOYEES TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951.

B-144191, NOVEMBER 23, 1960, 40 COMP. GEN. 312

CIVILIAN PERSONNEL - ENFORCED ANNUAL LEAVE - ADMINISTRATIVE DISCRETION ENFORCED ANNUAL LEAVE (WITHOUT THE EMPLOYEE'S CONSENT) SITUATIONS, WHICH ARE TANTAMOUNT TO ILLEGAL OR UNWARRANTED REMOVALS OR SUSPENSIONS FROM THE SERVICE WITHIN THE JOB PROTECTION PROCEDURES IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652, ARE ONLY THOSE INVOLVING PERSONAL, DISCIPLINARY-TYPE ACTIONS (ADVERSE ACTIONS FOR CAUSE), BUT ENFORCED ANNUAL LEAVE SITUATIONS SUCH AS THE ADMINISTRATIVE CLOSING OF AN OFFICE FOR A PERIOD OF TIME DURING WHICH EMPLOYEES ARE REQUIRED TO TAKE ANNUAL LEAVE OR INSTANCES WHEN EMPLOYEES' REQUESTS FOR ANNUAL LEAVE ARE DENIED AND THE EMPLOYEES ARE INSTRUCTED TO TAKE ANNUAL LEAVE AT OTHER SPECIFIC TIMES COME WITHIN THE GENERAL RULE THAT ADMINISTRATIVE OFFICES MAY REQUIRE ANY INDIVIDUAL EMPLOYEE OR CLASS OR EMPLOYEES TO TAKE ANNUAL LEAVE AT ANY TIME AND FOR ANY PERIOD WITHIN THE LIMITATIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061 2066, AS THE NEEDS OF THE SERVICE REQUIRED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 23, 1960:

ON OCTOBER 6, 1960, THE ACTING CHAIRMAN REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE USE OF ENFORCED ANNUAL LEAVE IN SITUATIONS THAT ARE NOT RELATED TO PERSONAL, DISCIPLINARY-TYPE ACTIONS.

THE SUBMISSION AND THE COPY OF THE LETTER DATED AUGUST 16, 1960, FROM THE DIRECTOR OF CIVILIAN PERSONNEL, DEPARTMENT OF THE ARMY, TO YOU, POINT OUT VARIOUS DECISIONS OF THE COURT OF CLAIMS AND OF OUR OFFICE DEALING WITH PERSONAL, DISCIPLINARY-TYPE SITUATIONS IN WHICH THE USE OF ENFORCED ANNUAL LEAVE IS CONSIDERED TANTAMOUNT TO A SUSPENSION AND, AS SUCH, HAS BEEN VIEWED AS COMING WITHIN THE PURVIEW OF 5 U.S.C. 652. HOWEVER, THE MATTER YOU PRESENT FOR CONSIDERATION DEALS WITH THE CLOSING OF THE PICATINNY ARSENAL FOR TWO WEEKS DURING THE SUMMER OF 1961 AND WITH THOSE INSTANCES WHEN REQUESTS FOR ANNUAL LEAVE ARE DENIED AND THE EMPLOYEES ARE INSTRUCTED TO TAKE THE LEAVE AT ANOTHER SPECIFIC TIME. THE ELEMENT OF ADVERSE OR DISCIPLINARY ACTION IS NOT PRESENT IN THE SITUATIONS FOR CONSIDERATION HERE.

THE COMMISSION'S SPECIFIC CONCERN ARISES FROM THE STATEMENT MADE IN OUR DECISION 38 COMP. GEN. 203, IN DISPOSING OF QUESTION 2 AND THE STATEMENT IN THE JULIA E. HART V. UNITED STATES, CT. CL. NO. 330-58, DECIDED JANUARY 20, 1960, THAT IS WHETHER SUCH STATEMENTS COULD NOT BE INTERPRETED AS APPLYING TO SITUATIONS OTHER THAN THOSE RELATING TO PERSONAL, DISCIPLINARY -TYPE ACTIONS.

OUR STATEMENT IN 38 COMP. GEN. 203 INVOLVES AN INSTANCE IN WHICH AN AGENCY DESIRED TO HAVE AN EMPLOYEE OFF THE JOB WHILE AN INVESTIGATION OF HIS SUSPECTED WRONGDOING WAS IN PROGRESS AND WE HELD TO THE EFFECT THAT THERE WAS NO JUSTIFICATION FOR THE USE OF ENFORCED ANNUAL LEAVE IN THAT SITUATION, AS THERE WAS NO QUESTION OF THE EMPLOYEE'S BEING READY, WILLING AND ABLE TO PERFORM HIS DUTIES. SPECIFICALLY, WE SAID THAT " UNDER THOSE CIRCUMSTANCES, PLACING THE EMPLOYEE ON ANNUAL LEAVE WITHOUT HIS CONSENT PRIOR TO COMPLIANCE WITH LLOYD-LAFOLLETTE SUSPENSION PROCEDURES, 5 U.S.C. 652 (A), WOULD NOT BE PROPER.'

THE COURT OF CLAIMS IN DECIDING THE HART CASE REFERRED TO OUR DECISION 38 COMP. GEN. 203, AND STATED:

* * * HE (THE COMPTROLLER GENERAL) LATER ADVISED THAT AN EMPLOYEE MIGHT BE REMOVED PENDING ACTUAL SEPARATION ONLY IN SUCH CASES WHERE HIS PRESENCE ON THE JOB CONSTITUTED A THREAT TO GOVERNMENT PROPERTY, HIS COWORKERS, HIMSELF, OR THE PUBLIC. ABSENT SUCH UNUSUAL CIRCUMSTANCES, ENFORCED ANNUAL LEAVE CAN BE EFFECTED ONLY IN COMPLIANCE WITH THE LLOYD LAFOLLETTE ACT; THAT IS, AN IMMEDIATE RELIEF FROM DUTY WOULD BE PERMITTED ONLY IF THE EMPLOYEE WERE CONTINUED IN A FULL PAY STATUS DURING THE PERIOD NECESSARY TO EFFECT A SUSPENSION UNDER THE ACT. * * *

IN DISCUSSING FURTHER THE USE OF ENFORCED ANNUAL LEAVE THE COURT SAID THAT THE EMPLOYEE "* * * HAD EARNED THIS ANNUAL LEAVE TO BE APPLIED FOR HER BENEFIT WHEN AND WHERE NECESSARY. NO PART OF THIS LEAVE WAS DESIGNED TO ENABLE HER AGENCY SUPERIORS TO SUMMARILY SEPARATE HER FROM THE PAYROLL WITH IMPUNITY.' IT IS OBVIOUS THAT THE FOREGOING STATEMENTS CONCERN DISCIPLINARY-TYPE ACTIONS REQUIRING CONSIDERATION OF JOB PROTECTION PROCEDURES.

THE STATEMENT IN 38 COMP. GEN. 203, QUOTED ABOVE, WAS NOT INTENDED AND SHOULD NOT BE CONSTRUED AS APPLICABLE TO ANY SITUATIONS OTHER THAN THOSE SIMILAR TO THE ONE GIVING RISE TO SUCH STATEMENT, NAMELY, THE PERSONAL, DISCIPLINARY-TYPE SITUATIONS (ADVERSE ACTIONS FOR CAUSE). MOREOVER, WE BELIEVE THAT HART CASE SHOULD BE VIEWED IN THE SAME MANNER.

THEREFORE, IN THE SITUATIONS COVERED IN THE COMMISSION'S LETTER (NOT OF THE PERSONAL, DISCIPLINARY-TYPE), WE SEE NO REASON WHY THEY SHOULD NOT BE HANDLED AS HERETOFORE UNDER OUR DECISIONS IN 19 COMP. GEN. 955, AND 32 ID. 204. WHILE NOT SO STATED, IN OUR LATER DECISIONS CONCERNING ENFORCED ANNUAL AND SICK LEAVE AS A PART OF THE PERIOD OF SUSPENSION OR REMOVAL FROM THE SERVICE (37 COMP. GEN. 160, 38 ID. 203, AND 39 ID. 154), SUCH LATER DECISIONS DO CONSTITUTE EXCEPTIONS TO THE GENERAL RULE EXPRESSED IN 28 COMP. GEN. 526, AND DECISIONS CITED THEREIN. SEE ALSO 34 COMP. GEN. 61.

BY REASON OF THE FOREGOING COMMENTS, WE DO NOT BELIEVE NECESSARY TO ANSWER THE SPECIFIC QUESTIONS PRESENTED IN THE LATTER PART OF THE COMMISSION'S LETTER.