B-167852, B-167854, SEP 15, 1969

B-167852,B-167854: Sep 15, 1969

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WERE NOT COUNSELED TO SET AN EFFECTIVE DATE OF RESIGNATION TO OCCUR AFTER EXPIRATION OF CURRENT ANNUAL LEAVE IN EXCESS OF THAT PAYABLE IN LUMP SUM AND WHO CONSEQUENTLY FORFEITED EXCESS ANNUAL LEAVE MAY NOT BE RESTORED TO THE ROLLS FOR PURPOSE OF GRANTING SUCH LEAVE UNLESS THERE IS A GENERAL AGENCY POLICY OR REGULATION TO ALLOW OR GRANT CURRENT ACCRUED ANNUAL LEAVE. THE MAXIMUM AMOUNT THAT COULD BE PAID FOR IN EITHER CASE WAS 240 HOURS. YOU STATE THAT IN EACH CASE YOU ARE WITHHOLDING THE RETIREMENT RECORD (S.F. 2806) AND APPLICATION FOR REFUND PENDING OUR DECISION. THE LEGAL ISSUE IS WHETHER EACH FORMER EMPLOYEE MAY BE CONSTRUCTIVELY RESTORED TO THE ROLLS WITH THE ATTACHING INCIDENTS OF EMPLOYMENT INCLUDING COMPENSATION AND TO RESCHEDULE THE EFFECTIVE DATE OF OF HIS RESIGNATION TO OCCUR AFTER THE EXPIRATION OF THE CURRENT ACCRUED ANNUAL LEAVE IN EXCESS OF THAT PAYABLE IN LUMP SUM.

B-167852, B-167854, SEP 15, 1969

CIVIL PAY - EXCESS ANNUAL LEAVE AT TIME OF RESIGNATION - RESTORATION TO ROLLS DECISION TO CERTIFYING OFFICER OF NATIONAL LABOR RELATIONS BOARD CONCERNING PAYMENT FOR ANNUAL LEAVE AT TIME OF RESIGNATION. EMPLOYEES WHO, DUE TO ADMINISTRATIVE OVERSIGHT, WERE NOT COUNSELED TO SET AN EFFECTIVE DATE OF RESIGNATION TO OCCUR AFTER EXPIRATION OF CURRENT ANNUAL LEAVE IN EXCESS OF THAT PAYABLE IN LUMP SUM AND WHO CONSEQUENTLY FORFEITED EXCESS ANNUAL LEAVE MAY NOT BE RESTORED TO THE ROLLS FOR PURPOSE OF GRANTING SUCH LEAVE UNLESS THERE IS A GENERAL AGENCY POLICY OR REGULATION TO ALLOW OR GRANT CURRENT ACCRUED ANNUAL LEAVE.

ETHELREDA C. FESMIRE:

WE REFER TO THE TWO LETTERS FROM YOU EACH DATED SEPTEMBER 4, 1969, ASKING WHETHER IN THE TWO CASES DISCUSSED BELOW YOU MAY CERTIFY VOUCHERS FOR THE PAYMENT OF ANNUAL LEAVE STANDING TO THE CREDIT OF TWO FORMER EMPLOYEES ON THE DATE OF THEIR RESIGNATIONS FROM THE SERVICE.

ONE CASE INVOLVES A PROPOSED PAYMENT TO MR. RICHARD F. RICE FOR 76 HOURS OF ANNUAL LEAVE AND THE OTHER CASE INVOLVES A PROPOSED PAYMENT TO MR. NORMAN R. PRUSA FOR 39 HOURS OF ANNUAL LEAVE.

YOU STATE THAT CONTRARY TO HIS USUAL PRACTICE THE OFFICE MANAGER THROUGH ADMINISTRATIVE OVERSIGHT FAILED TO COUNSEL EITHER MR. RICE OR MR. PRUSA TO SET THE EFFECTIVE DATE OF HIS RESIGNATION TO ALLOW FOR THE USE OF THAT ANNUAL LEAVE WHICH CANNOT BE PAID FOR IN A LUMP SUM. CONSEQUENTLY, MR. RICE RESIGNED JULY 25, 1969, HIS LAST DAY OF DUTY WITH 316 HOURS OF ANNUAL LEAVE TO HIS CREDIT AND MR. PRUSA RESIGNED JULY 18, 1969, HIS LAST DAY OF DUTY WITH 279 HOURS OF ANNUAL LEAVE TO HIS CREDIT. THE MAXIMUM AMOUNT THAT COULD BE PAID FOR IN EITHER CASE WAS 240 HOURS.

THE RECORD DOES NOT DISCLOSE THE REASONS FOR THE RESIGNATION OF EITHER MR. RICE OR MR. PRUSA; HOWEVER, YOU STATE THAT IN EACH CASE YOU ARE WITHHOLDING THE RETIREMENT RECORD (S.F. 2806) AND APPLICATION FOR REFUND PENDING OUR DECISION.

YOUR PROPOSED SUPPLEMENTAL PAYROLLS IN EFFECT WOULD INCREASE THE LUMP SUM PAYMENT IN EACH CASE BEYOND THE LEGALLY AUTHORIZED AMOUNT OF 240 HOURS, I.E., ADDITIONAL PAY FOR 76 HOURS FOR MR. RICE AND ADDITIONAL PAY FOR 39 HOURS FOR MR. PRUSA AND WITHHOLDING FOR FEDERAL TAX PURPOSE WITH NO OTHER DEDUCTIONS.

ON MAY 28, 1968, WE RULED ON A CASE SIMILAR TO THE CASES HERE. SEE B 164232, COPY ENCLOSED.

AS DISCUSSED IN B-164232, THE LEGAL ISSUE IS WHETHER EACH FORMER EMPLOYEE MAY BE CONSTRUCTIVELY RESTORED TO THE ROLLS WITH THE ATTACHING INCIDENTS OF EMPLOYMENT INCLUDING COMPENSATION AND TO RESCHEDULE THE EFFECTIVE DATE OF OF HIS RESIGNATION TO OCCUR AFTER THE EXPIRATION OF THE CURRENT ACCRUED ANNUAL LEAVE IN EXCESS OF THAT PAYABLE IN LUMP SUM. ADDITIONALLY, WE STATED IN B-164232:

"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 ON 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.

"WE ARE AWARE OF NO STATUTE OF 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."

ACCORDINGLY, IN THE CASES OF MR. RICE AND MR. PRUSA, THERE IS NO AUTHORITY TO RESTORE THEM TO THE ROLLS FOR THE PURPOSE OF GRANTING LEAVE UNLESS THERE IS A GENERAL AGENCY POLICY OR REGULATION IN EFFECT TO ALLOW OR GRANT CURRENT ACCRUED ANNUAL LEAVE. IF SUCH A POLICY OR REGULATION DOES EXIST, ADMINISTRATIVE ACTION MAY BE TAKEN TO CORRECT THE RESIGNATION DATE IN EACH CASE SO AS TO PERMIT PAYMENT OF ANNUAL LEAVE.

THE VOUCHERS ARE RETURNED.