B-164232, MAY 28, 1968

B-164232: May 28, 1968

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THE LEGAL ISSUE PRESENTED BY YOUR LETTER IS WHETHER MISS GOLLEHON NOW MAY BE CONSTRUCTIVELY RESTORED TO ROLLS OF THE AGENCY WITH THE ATTACHING INCIDENTS OF EMPLOYMENT INCLUDING AMONG OTHER THINGS PAYMENT OF COMPENSATION. AS DOUBTLESS YOU ARE AWARE. THE EARLY RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES OF THIS NATURE WAS THAT THERE COULD BE NO RESTORATION TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE. THAT RULE WAS MODIFIED. 23 COMP. WE EXPRESSED THE VIEW THAT IT IS OPTIONAL WITH AN EMPLOYING AGENCY TO REFUSE TO GRANT TERMINAL CURRENT ACCRUED ANNUAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE. A VIEW IS EXPRESSED THAT BECAUSE OF CIRCUMSTANCES EXISTING IN THE PHOENIX OFFICE AT THE TIME.

B-164232, MAY 28, 1968

TO MR. F. D. STANTON:

WE REFER TO YOUR LETTER OF MAY 3, 1968, WITH ENCLOSURES, REQUESTING OUR DECISION CONCERNING A PROPOSED PAYMENT TO LETA G. GOLLEHON FOR 68 HOURS OF CURRENT ACCRUED ANNUAL LEAVE WHICH STOOD TO HER CREDIT ON JULY 23, 1965, THE EFFECTIVE DATE OF HER VOLUNTARY RESIGNATION FOR PERSONAL REASONS FROM THE SERVICE OF THE SMALL BUSINESS ADMINISTRATION.

THE LEGAL ISSUE PRESENTED BY YOUR LETTER IS WHETHER MISS GOLLEHON NOW MAY BE CONSTRUCTIVELY RESTORED TO ROLLS OF THE AGENCY WITH THE ATTACHING INCIDENTS OF EMPLOYMENT INCLUDING AMONG OTHER THINGS PAYMENT OF COMPENSATION, SO AS TO MAKE HER RESIGNATION EFFECTIVE AUGUST 5, 1965, AFTER THE EXPIRATION OF 68 HOURS CURRENT ACCRUED LEAVE.

AS DOUBTLESS YOU ARE AWARE, THE EARLY RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES OF THIS NATURE WAS THAT THERE COULD BE NO RESTORATION TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE, NOTWITHSTANDING THE FAILURE TO GRANT SUCH LEAVE PRIOR TO SEPARATION STEMMED FROM ADMINISTRATIVE MISUNDERSTANDING OR NEGLIGENCE. COMP. GEN. 899. CF. 21 COMP. GEN. 517, REFERRED TO IN YOUR LETTER.

THEREAFTER, BY EXPRESS PROVISION OF THE ANNUAL LEAVE REGULATIONS (SECTION 2.4 OF EXECUTIVE ORDER NO. 9414, DATED JANUARY 14, 1944, EFFECTIVE JANUARY 1, 1944), THAT RULE WAS MODIFIED. 23 COMP. GEN. 638, 644 (QUESTION 6).

SUBSEQUENTLY WITH THE ENACTMENT OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, SECTION 203 (H) THEREOF VESTED DISCRETION AS TO THE GRANTING OF ANNUAL LEAVE IN AGENCY HEADS. IN OUR DECISION, 33 COMP. GEN. 85, 87 (ANSWER TO QUESTION 1 (C) (, WE EXPRESSED THE VIEW THAT IT IS OPTIONAL WITH AN EMPLOYING AGENCY TO REFUSE TO GRANT TERMINAL CURRENT ACCRUED ANNUAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE.

WHEN ADMINISTRATIVE REGULATIONS OR EXPLICIT STATEMENTS OF AGENCY POLICY EXPRESSLY DIVEST LOCAL ADMINISTRATORS OF DISCRETION TO DENY IN CASES OF VOLUNTARY RESIGNATIONS THE GRANT OF TERMINAL CURRENT ACCRUED ANNUAL LEAVE PRIOR TO SEPARATION, THE ACTION OF A LOCAL ADMINISTRATOR CONTRARY TO THE REGULATORY OR POLICY REQUIREMENT WOULD BE WITHOUT EFFECT TO ACCOMPLISH A PREMATURE SEPARATION. THUS, IN SUCH CIRCUMSTANCES A FORMER EMPLOYEE COULD BE RESTORED FOR THE PURPOSE OF GRANTING THE ANNUAL LEAVE IN KIND. SEE B- 146678, SEPTEMBER 18, 1961.

IN LETTER OF FEBRUARY 28, 1968, FROM THE REGIONAL DIRECTOR, PHOENIX, ARIZONA, ENCLOSED WITH YOUR LETTER, A VIEW IS EXPRESSED THAT BECAUSE OF CIRCUMSTANCES EXISTING IN THE PHOENIX OFFICE AT THE TIME, MISS GOLLEHON DID NOT RECEIVE PROPER COUNSELING AS TO BENEFITS DUE UPON HER RESIGNATION.

WE ARE AWARE OF NO STATUTE OR REGULATION OF GENERAL APPLICATION WHICH REQUIRES THAT VOLUNTARILY RESIGNING EMPLOYEES BE COUNSELED AS TO THEIR LEAVE RIGHTS. FURTHER, WHEN DISCRETION IS VESTED IN AND EXERCISED BY A LOCAL ADMINISTRATOR TO DENY LEAVE, THERE MAY BE OVERLOOKED OR FORGOTTEN THROUGH LAPSE OF TIME EXIGENCIES OF THE PUBLIC SERVICE WHICH AT THE TIME LED TO HIS DECISION.

THUS, ABSENT A GENERAL AGENCY POLICY OR REGULATION IN EFFECT IN 1965 TO ALLOW THE GRANT OF TERMINAL CURRENT ACCRUED LEAVE, THERE IS NO AUTHORITY TO RESTORE MISS GOLLEHON TO THE ROLLS NOW FOR THE PURPOSE OF GRANTING THE LEAVE. IF SUCH POLICY OR REGULATION DID EXIST, HOWEVER, ADMINISTRATIVE ACTION COULD BE TAKEN IN THIS CASE TO CORRECT THE RESIGNATION DATE SO AS TO PERMIT PAYMENT OF THE ANNUAL LEAVE. ACTION MAY BE TAKEN ACCORDINGLY.