B-145957, OCT. 25, 1961

B-145957: Oct 25, 1961

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THE MATTERS DISCUSSED IN YOUR LETTERS HAVE RECEIVED CAREFUL CONSIDERATION. WE ARE UNABLE TO CONCUR IN THE CONCLUSION EXPRESSED IN YOUR LETTER OF JULY 25. WAS ENTIRELY CORRECT AND JUSTIFIED. CAUSE THE FORFEITURE OF THE UNUSED PORTION OF HIS SICK LEAVE WHICH LEAVE OFFICIALLY WAS GRANTED HIM ON NOVEMBER 21. IT IS OPTIONAL WITH AN AGENCY IN DISABILITY RETIREMENT CASES AS TO WHETHER TO SEPARATE THE EMPLOYEE PRIOR TO THE DATE HIS SICK LEAVE EXPIRES. THAT A BROADER DISCRETION IS VESTED IN THE AGENCY AS TO THE SEPARATION DATE. WE ARE UNABLE TO CONCUR IN YOUR VIEW THAT AS OF MAY 26. CONTAINS NO INDICATION THAT THE OPERATING OFFICIALS OF YOUR AGENCY WERE VESTED WITH AUTHORITY TO REFUSE AN INDIVIDUAL HIS SICK LEAVE PRIOR TO DISABILITY SEPARATION.

B-145957, OCT. 25, 1961

TO THE POSTMASTER GENERAL:

WE APPRECIATE YOUR FURNISHING US THE POST OFFICE DEPARTMENT'S VIEWS, CONTAINED IN YOUR LETTERS OF JULY 3, 1961, FILE 607, AND JULY 25, 1961, FILE 600, CONCERNING THE SICK LEAVE OF MR. SAMUEL G. SCHWARTZ, PORTLAND,OREGON. THE MATTERS DISCUSSED IN YOUR LETTERS HAVE RECEIVED CAREFUL CONSIDERATION. FOR THE REASONS SET FORTH BELOW, HOWEVER, WE ARE UNABLE TO CONCUR IN THE CONCLUSION EXPRESSED IN YOUR LETTER OF JULY 25, THAT THE DEPARTMENT'S ACTION IN SEPARATING MR. SCHWARTZ FROM THE ROLLS EFFECTIVE MAY 26, 1961, WAS ENTIRELY CORRECT AND JUSTIFIED. THE SEPARATION ON MAY 26 WOULD, IF VALID, OPERATE TO REMOVE MR. SCHWARTZ FROM THE ROLLS, AND CAUSE THE FORFEITURE OF THE UNUSED PORTION OF HIS SICK LEAVE WHICH LEAVE OFFICIALLY WAS GRANTED HIM ON NOVEMBER 21, 1960.

YOU EXPRESS THE VIEW THAT UNDER THE "IN ITS DISCRETION," LANGUAGE OF THE FEDERAL PERSONNEL MANUAL (R-5-42, SUBTITLE "DATE OF SEPARATION"), IT IS OPTIONAL WITH AN AGENCY IN DISABILITY RETIREMENT CASES AS TO WHETHER TO SEPARATE THE EMPLOYEE PRIOR TO THE DATE HIS SICK LEAVE EXPIRES. WHILE THE LANGUAGE OF THE FEDERAL PERSONNEL MANUAL MAY BE OPEN TO THAT CONSTRUCTION, WE FEEL THE DISCRETION THEREUNDER ALSO MAY BE VIEWED AS RELATING ONLY TO A CHOICE OF THE APPLICABLE ALTERNATIVE (1 TO 3). EVEN IF IT BE ASSUMED, HOWEVER, THAT A BROADER DISCRETION IS VESTED IN THE AGENCY AS TO THE SEPARATION DATE, WE ARE UNABLE TO CONCUR IN YOUR VIEW THAT AS OF MAY 26, 1961, YOUR AGENCY LEGALLY SEPARATED MR. SCHWARTZ. PARAGRAPH 723.246 OF THE POSTAL MANUAL IN EFFECT ON MAY 26, 1961, CONTAINS NO INDICATION THAT THE OPERATING OFFICIALS OF YOUR AGENCY WERE VESTED WITH AUTHORITY TO REFUSE AN INDIVIDUAL HIS SICK LEAVE PRIOR TO DISABILITY SEPARATION. THE CONTRARY ALL REFERENCES TO SICK LEAVE ARE STATED IN ABSOLUTE TERMS AND HERE TOO A CHOICE ONLY OF THE APPLICABLE ALTERNATIVE IS INDICATED. MOREOVER, WE BELIEVE ANY DOUBT IN THAT REGARD IS COMPLETELY REMOVED BY THE CLEAR AND UNEQUIVOCAL LANGUAGE THEN APPEARING IN PARAGRAPH 721.435. CROSS REFERENCE TO 723.246 (B) DID NOT SERVE TO QUALIFY THE MANDATORY EFFECT OF PARAGRAPH 721.435. THEREFORE, OUR VIEW IS THAT THE PURPORTED WITHDRAWAL OF THE GRANT OF SICK LEAVE TO MR. SCHWARTZ UNDER THE POSTAL REGULATIONS IN EFFECT ON MAY 26, 1961, CANNOT BE JUSTIFIED LEGALLY UNDER THOSE REGULATIONS. SEE, IN THAT REGARD, WATSON V. UNITED STATES, 142 CT.CL. 749; SERVICE V. DULLES, 354 U.S. 363.

WITH REFERENCE TO THE ADMINISTRATIVE PROBLEM PRESENTED BY THE NEED TO FILL MR. SCHWARTZ'S POSITION YOUR ATTENTION IS INVITED TO THE ANSWER TO QUESTION (2) OF OUR DECISION IN 24 COMP. GEN. 134, 136. OUR VIEW IS THAT THE RATIONALE OF THAT DECISION APPLIES WITH EQUAL FORCE TO THE SITUATION BEFORE THE DEPARTMENT. IN SO RULING WE HAVE NOT OVERLOOKED THE PROVISIONS OF 39 U.S.C. 3301 (5).

THEREFORE, SINCE THE SICK LEAVE FOR MR. SCHWARTZ WAS VALIDLY APPLIED FOR AND GRANTED, YOU ARE AUTHORIZED TO MAKE PAYMENT TO MR. SCHWARTZ OF SALARY REPRESENTING THE SICK LEAVE WITH PAY ACCRUED TO DATE AND HEREAFTER TO PAY HIM ON A BIWEEKLY BASIS UNTIL THE EXPIRATION OF LEAVE OR UNTIL HIS RIGHT TO SICK LEAVE IS OTHERWISE DIVESTED WHICHEVER DATE IS EARLIER.

ALSO, SINCE UNDER OUR INTERPRETATION ABOVE THE CONCURRENT HOLDING OF A POSITION BY TWO INDIVIDUALS IN THIS AND SIMILAR CASES IS NOT PROHIBITED, IT WOULD SEEM THAT THE NECESSITY FOR THE EXCEPTION LANGUAGE IN PARAGRAPH 721.435 OF THE CURRENTLY EFFECTIVE POSTAL REGULATIONS NO LONGER IS PRESENT.