B-175788, JUN 1, 1972

B-175788: Jun 1, 1972

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STRATIGOS FOR THE PERIOD DURING WHICH HE WAS ON EXTENDED SICK LEAVE PENDING HIS DISABILITY RETIREMENT. HAS BEEN INTERPRETED TO MEAN THAT THERE MUST BE A "REASONABLE EXPECTANCY" THAT THE EMPLOYEE'S OVERTIME SERVICES WILL BE NEEDED IN THE FUTURE. 43 COMP. THERE WAS NO BASIS FOR CONTINUING THE PREMIUM PAY. STRATIGOS CONTINUED TO RECEIVE THE ANNUAL PREMIUM PAY UNTIL IT WAS CANCELLED ON FEBRUARY 20. STRATIGOS IS CLAIMING REIMBURSEMENT FOR NONPAYMENT OF ANNUAL PREMIUM PAY DURING THIS PERIOD PRIOR TO HIS RETIREMENT. NIGHT AND HOLIDAY WORK IS AUTHORIZED BY 5 U.S.C. 5534(C)(2) AND SECTION 550.151 OF THE CIVIL SERVICE REGULATIONS. THE AUTHORITY TO CONTINUE TO PAY ANNUAL PREMIUM PAY TO EMPLOYEES ON LEAVE WITH PAY IS FOUND IN PARAGRAPH (E) OF SECTION 550.162 OF THE CIVIL SERVICE REGULATIONS WHICH PROVIDES: "AN AGENCY SHALL CONTINUE TO PAY AN EMPLOYEE PREMIUM PAY ON AN ANNUAL BASIS UNDER SEC 550.151 WHILE HE IS ON LEAVE WITH PAY DURING A PERIOD IN WHICH PREMIUM PAY ON AN ANNUAL BASIS IS PAYABLE UNDER PARAGRAPHS (A).

B-175788, JUN 1, 1972

CIVILIAN EMPLOYEE - PREMIUM PAY - LEAVE STATUS DECISION THAT THE INTERNAL REVENUE SERVICE PROPERLY DISCONTINUED THE ANNUAL PREMIUM PAY OF MR. JAMES A. STRATIGOS FOR THE PERIOD DURING WHICH HE WAS ON EXTENDED SICK LEAVE PENDING HIS DISABILITY RETIREMENT. THE AUTHORITY TO CONTINUE THE ANNUAL PREMIUM PAY TO EMPLOYEES ON LEAVE WITH PAY, 5 U.S.C. 5534(C)(2), HAS BEEN INTERPRETED TO MEAN THAT THERE MUST BE A "REASONABLE EXPECTANCY" THAT THE EMPLOYEE'S OVERTIME SERVICES WILL BE NEEDED IN THE FUTURE. 43 COMP. GEN. 376 (1963). IN THE INSTANT CASE, THERE WAS NO BASIS FOR CONTINUING THE PREMIUM PAY.

TO MR. SECRETARY:

BY LETTER DATED APRIL 19, 1972, THE ASSISTANT SECRETARY OF THE TREASURY FOR ADMINISTRATION REQUESTED OUR DECISION AS TO WHETHER THE INTERNAL REVENUE SERVICE MAY DISCONTINUE THE ANNUAL PREMIUM PAY OF AN EMPLOYEE ON EXTENDED SICK LEAVE. THE QUESTION HAS ARISEN IN THE CLAIM OF MR. JAMES A. STRATIGOS, A FORMER ALCOHOL, TOBACCO AND FIREARMS INSPECTOR, FOR ANNUAL PREMIUM PAY FOR THE PERIOD FROM FEBRUARY 20, 1971, THROUGH OCTOBER 4, 1971.

MR. STRATIGOS WENT ON EXTENDED SICK LEAVE PENDING DISABILITY RETIREMENT, JANUARY 12, 1971, BECAUSE THE LONG-TERM EFFECTS OF A SERVICE-CONNECTED ACCIDENT HAD REACHED A POINT WHERE HE COULD NO LONGER PERFORM HIS DUTIES IN A CAPABLE MANNER. MR. STRATIGOS CONTINUED TO RECEIVE THE ANNUAL PREMIUM PAY UNTIL IT WAS CANCELLED ON FEBRUARY 20, 1971. HE DID NOT RECEIVE ANY SUCH PAY FROM THAT DAY UNTIL THE EFFECTIVE DATE OF HIS DISABILITY RETIREMENT, OCTOBER 4, 1971. MR. STRATIGOS IS CLAIMING REIMBURSEMENT FOR NONPAYMENT OF ANNUAL PREMIUM PAY DURING THIS PERIOD PRIOR TO HIS RETIREMENT.

ANNUAL PREMIUM PAY FOR IRREGULAR, UNSCHEDULED OVERTIME, NIGHT AND HOLIDAY WORK IS AUTHORIZED BY 5 U.S.C. 5534(C)(2) AND SECTION 550.151 OF THE CIVIL SERVICE REGULATIONS. THE AUTHORITY TO CONTINUE TO PAY ANNUAL PREMIUM PAY TO EMPLOYEES ON LEAVE WITH PAY IS FOUND IN PARAGRAPH (E) OF SECTION 550.162 OF THE CIVIL SERVICE REGULATIONS WHICH PROVIDES:

"AN AGENCY SHALL CONTINUE TO PAY AN EMPLOYEE PREMIUM PAY ON AN ANNUAL BASIS UNDER SEC 550.151 WHILE HE IS ON LEAVE WITH PAY DURING A PERIOD IN WHICH PREMIUM PAY ON AN ANNUAL BASIS IS PAYABLE UNDER PARAGRAPHS (A), (B), AND (C) OF THIS SECTION."

IN 43 COMP. GEN. 376 (1963), WE HELD THAT THIS SECTION OF THE REGULATIONS SHOULD NOT BE INTERPRETED -

" *** AS REQUIRING PAYMENT OF PREMIUM COMPENSATION TO AN EMPLOYEE ON LEAVE WITH PAY UNLESS THERE ARE PRESENT ALL ESSENTIAL REQUIREMENTS TO ENTITLEMENT, INCLUDING A REASONABLE EXPECTANCY THAT NEED FOR HIS OVERTIME SERVICE WILL CONTINUE IN THE FUTURE. *** "

WHEN THIS "REASONABLE EXPECTANCY" CEASES TO EXIST DUE TO THE EMPLOYEE'S TAKING EXTENDED LEAVE WITH PAY OR FOR OTHER REASONS, THE ANNUAL PREMIUM PAY ALSO CEASES.

IN LINE WITH THE FOREGOING, AND SINCE THE REMOVAL OF MR. STRATIGOS FROM ANNUAL PREMIUM PAY STATUS RESULTED FROM A VALID DETERMINATION THAT THERE WAS NO REASONABLE EXPECTATION THAT HE WOULD PERFORM OVERTIME SERVICE IN THE FUTURE, THERE IS NO BASIS FOR THE ALLOWANCE OF HIS CLAIM TO ANNUAL PREMIUM PAY FOR ANY PERIOD THEREAFTER.

WITH RESPECT TO YOUR QUESTIONS CONCERNING THE NEED FOR REASSIGNING MR. STRATIGOS BY USE OF A STANDARD FORM 50 OR FOR PREPARATION OF A FORMAL MEMORANDUM TO THE FILE SETTING FORTH THE FACTS PRIOR TO CANCELLATION OF ANNUAL PREMIUM PAY, OUR VIEW IS THAT NOTICE TO THE EMPLOYEE IS SUFFICIENT FOR THAT PURPOSE AS PROVIDED IN INTERNAL REVENUE MANUAL, 0550.15(9). THAT PROVISION IS TO THE EFFECT THAT WHEN AN EMPLOYEE BECOMES INELIGIBLE FOR PREMIUM PAY, HIS IMMEDIATE SUPERVISOR SHALL PROMPTLY NOTIFY THE EMPLOYEE IN WRITING.