B-157434, NOV. 9, 1965, 45 COMP. GEN. 243

B-157434, NOV. 9, 1965, 45 COMP. GEN. 243

LEAVES OF ABSENCE - COMPENSATORY TIME - SET-OFF AGAINST ADVANCED LEAVE COMPENSATORY TIME GRANTED IN LIEU OF OVERTIME EARNED BY A CIVILIAN EMPLOYEE SUBSEQUENT TO THE ADVANCE OF ANNUAL AND SICK LEAVE MAY NOT BE SET OFF AGAINST THE ADVANCED LEAVE, THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2061, ET/SEQ.) AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PROVIDING FOR THE LIQUIDATION OF ADVANCE LEAVE BY A CHARGE AGAINST FUTURE EARNINGS OR A CASH REFUND FOR AN UNEARNED LEAVE BALANCE IN THE EVENT OF SEPARATION OR FAILURE TO MAKE UP AN ADVANCE WITHIN THE TIME PRESCRIBED; THEREFORE, THE COMPENSATORY TIME EARNED UNDER A SEPARATE STATUTORY AUTHORITY AS A RESULT OF OVERTIME WORKED MAY NOT BE CREDITED TOWARD THE BALANCE OF ADVANCED ANNUAL AND SICK LEAVE OWED BY THE EMPLOYEE.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, NOVEMBER 9, 1965:

REFERENCE IS MADE TO THE LETTER OF AUGUST 9, 1965, FROM THE ACTING SECRETARY, REQUESTING OUR DECISION WHETHER COMPENSATORY TIME MAY BE CREDITED, AT AN EMPLOYEE'S OPTION, TOWARD AN OWED BALANCE OF ADVANCED ANNUAL OR SICK LEAVE.

YOU INFORM US THAT THE PARTICULAR SITUATION WHICH HAS GIVEN RISE TO YOUR QUESTION IS THAT AN EMPLOYEE, WHO HAS BEEN ADVANCED BOTH ANNUAL AND SICK LEAVE, HAS REQUESTED THAT OVERTIME WHICH SHE HAS NOW PERFORMED BE COMPENSATED BY GRANTING COMPENSATORY TIME OFF IN LIEU OF ADDITIONAL COMPENSATION, BUT HAS FURTHER REQUESTED THAT THE EARNED AMOUNT OF COMPENSATORY TIME OFF BE ALLOWED AS A CREDIT TOWARD HER OWED BALANCE OF ADVANCE ANNUAL OR SICK LEAVE, RATHER THAN ALLOWED TO HER AS ADDITIONAL HOURS AWAY FROM DUTY.

THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061 ET SEQ., PROVIDES GENERALLY THAT ANNUAL AND SICK LEAVE IS EARNED ON A BIWEEKLY PAY PERIOD BASIS. HOWEVER, THE ACT DOES PERMIT THAT SUCH ANNUAL LEAVE, AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR MAY BE GRANTED AT ANY TIME DURING SUCH YEAR AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. ALSO, THE ACT PERMITS 30 DAYS' SICK LEAVE TO BE ADVANCED IN CASE OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SERVICE. IN THE CASE OF ANNUAL LEAVE THE ACT CONTEMPLATES THAT THE LEAVE SO ADVANCED WILL BE MADE UP BY EARNINGS OVER THE BALANCE OF THE LEAVE YEAR. BY REGULATION THIS HAS BEEN EXTENDED TO THE NEXT LEAVE YEAR. BY REGULATION THIS HAS BEEN EXTENDED TO THE NEXT LEAVE YEAR. 5 CFR 630.208; 32 COMP. GEN. 298. AS TO LIQUIDATION OF AN ADVANCE OF SICK LEAVE THERE IS NO TIME LIMIT AS TO OFFSETTING AGAINST SUCH AN ADVANCE FUTURE EARNINGS OF SICK OR OF ANNUAL LEAVE IF REQUESTED. IN THE EVENT OF SEPARATION OR FAILURE TO MAKE UP AN ADVANCE OF ANNUAL LEAVE WITHIN THE TIME PRESCRIBED THE REGULATIONS REQUIRE A CASH REFUND FOR THE BALANCE OF UNEARNED LEAVE.

FROM THE ABOVE, IT IS EVIDENT THAT A SYSTEM HAD BEEN PROVIDED BY THE ACT AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION FOR LIQUIDATION OF ADVANCED LEAVE BY CHARGING SUCH LEAVE AGAINST FURTHER EARNINGS OR BY REQUIRING CASH REFUNDS UNDER CERTAIN CIRCUMSTANCES.

COMPENSATORY TIME OFF, HOWEVER, ARISES UNDER A SEPARATE STATUTORY AUTHORITY AS A RESULT OF OVERTIME WORKED BY AN EMPLOYEE. WE ARE NOT AWARE OF ANY SPECIFIC BASIS OF LAW OR STATUTORY REGULATION WHICH WOULD SANCTION THE PROPOSED PRACTICE AND BELIEVE THAT ITS ADOPTION MIGHT WELL CREATE DETRIMENTAL RESULTS RATHER THAN ADVANTAGES TO THE PARTIES CONCERNED.

IN THE CIRCUMSTANCES, OUR OPINION IS THAT THE CREDITING OF COMPENSATORY TIME AS A SET-OFF AGAINST ADVANCED ANNUAL OR SICK LEAVE IS NOT AUTHORIZED.