B-149874, SEP. 26, 1962

B-149874: Sep 26, 1962

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YOU ALSO SAY THAT HIS RESIGNATION WAS ACCEPTED EFFECTIVE SEPTEMBER 1. ADAMS WILL BE PAID A LUMP SUM FOR 240 HOURS OF ACCUMULATED ANNUAL LEAVE WHICH WAS HIS CARRYOVER FROM THE PREVIOUS YEAR. AS FOLLOWS: "WHENEVER ANY CIVILIAN OFFICER * * * OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER * * * WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE. WHICHEVER IS THE GREATER. * * *" IN OUR DECISION 33 COMP.

B-149874, SEP. 26, 1962

TO MR. DOUGLAS G. WRIGHT, AUTHORIZED CERTIFYING OFFICER, SOUTHWESTERN POWER ADMINISTRATION:

YOUR LETTER OF SEPTEMBER 5, 1962, ENCLOSING A VOUCHER IN THE AMOUNT OF $905.84, ASKS WHETHER YOU CAN CERTIFY THE VOUCHER FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

YOU SAY THAT MR. NEIL L. ADAMS, AN EMPLOYEE OF THE SOUTHWESTERN POWER ADMINISTRATION, GAVE NOTICE AUGUST 1, 1962, OF TERMINATION OF HIS EMPLOYMENT THEREWITH TO ACCEPT EMPLOYMENT WITH THE NEWLY ORGANIZED ASSOCIATED ELECTRIC COOPERATIVE, INC., A PRIVATE COOPERATIVE, AS THEIR GENERAL MANAGER. YOU ALSO SAY THAT HIS RESIGNATION WAS ACCEPTED EFFECTIVE SEPTEMBER 1, 1962, AND THAT HE REPORTED FOR DUTY WITH THE COOPERATIVE SEPTEMBER 4, 1962. FURTHER, YOU POINT OUT THAT MR. ADAMS WILL BE PAID A LUMP SUM FOR 240 HOURS OF ACCUMULATED ANNUAL LEAVE WHICH WAS HIS CARRYOVER FROM THE PREVIOUS YEAR. THE VOUCHER COVERS PAYMENT FOR 134 HOURS OF CURRENT LEAVE THAT COULD NOT BE INCLUDED IN THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE AND WHICH LEAVE THE ADMINISTRATIVE OFFICE DID NOT PERMIT HIM TO USE BECAUSE CERTAIN WORK HAD TO BE COMPLETED BY HIM BEFORE TERMINATION OF HIS EMPLOYMENT.

5 U.S.C. 61B, THE APPLICABLE PROVISION, READS, IN PERTINENT PART, AS FOLLOWS:

"WHENEVER ANY CIVILIAN OFFICER * * * OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER * * * WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *"

IN OUR DECISION 33 COMP. GEN. 85 WE SAID THAT UNDER SECTION 230 (H) OF THE ACT OF OCTOBER 30, 1951, 65 STAT. 681, 5 U.S.C. 2062 (H), IT IS CLEAR THAT DISCRETION IS VESTED IN THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO PRESCRIBE WHEN ANNUAL LEAVE IS TO BE GRANTED. WE ALSO POINTED OUT THEREIN THAT WHILE IT IS EXPECTED THAT, IN KEEPING WITH CONGRESSIONAL EXPLANATION CONCERNING THE ACT, ADMINISTRATIVE OFFICIALS WILL AFFORD EMPLOYEES AN OPPORTUNITY TO TAKE THEIR CURRENT YEAR'S LEAVE IMMEDIATELY PRIOR TO SEPARATION WHEREVER POSSIBLE, IT IS FELT THAT UNDER SECTION 203 (H) IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH TERMINAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE. WE NOTE THAT THE ADMINISTRATION DID NOT PERMIT MR. ADAMS TO TAKE SUCH LEAVE IN KIND, IT HAVING BEEN DETERMINED ADMINISTRATIVELY NOT TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO CARRY MR. ADAMS ON THE PAYROLL IN A LEAVE STATUS WHILE WORKING FOR A PRIVATE COOPERATIVE DOING BUSINESS WITH THE GOVERNMENT.

SINCE MR. ADAMS HAS SEPARATED FROM THE SERVICE AND WILL BE PAID UNDER THE FOREGOING PROVISIONS FOR THE AMOUNT OF ANNUAL LEAVE AUTHORIZED THEREUNDER- -- 240 HOURS--- THE 134 HOURS OF CURRENT LEAVE THAT CANNOT BE INCLUDED IN SUCH PAYMENT HAS BEEN FORFEITED INASMUCH AS HE WAS NOT PERMITTED ADMINISTRATIVELY TO USE IT IN KIND. THE RECORD SHOWS THAT THE SEPARATION DATE WAS FIXED INTENTIONALLY; THUS THIS CASE DOES NOT INVOLVE AN ADMINISTRATIVE ERROR IN SETTING THE DATE OF SEPARATION. NO BASIS EXISTS UNDER 5 U.S.C. 61B, QUOTED ABOVE, AND OUR DECISION 33 COMP. GEN. 85 FOR PAYMENT THEREOF. ACCORDINGLY, THE VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.