B-176550, SEP 5, 1972

B-176550, SEP 5, 1972

CIVILIAN EMPLOYEE - VOLUNTARY SEPARATION - ANNUAL LEAVE - RESTORATION TO ROLLS DECISION ALLOWING THE CLAIM OF NELLIE E. MINNEMAN FOR 34 HOURS OF ANNUAL LEAVE, IN EXCESS OF THE 240 HOUR CEILING, WHICH WAS FORFEITED AT THE TIME OF HER VOLUNTARY RESIGNATION AND SEPARATION FROM HER POSITION AS A CLINICAL NURSE FOR THE PUBLIC HEALTH SERVICE, HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION. SINCE IT IS CLEAR THAT MRS. MINNEMAN'S RESIGNATION WAS EFFECTED WITHOUT THE REQUISITE COUNSELING WHICH SHOULD HAVE BEEN AFFORDED HER AND WAS OTHERWISE CONTRARY TO SPECIFIC AGENCY REGULATIONS, THE SEPARATION WAS INEFFECTIVE. THEREFORE, CLAIMANT SHOULD BE RESTORED TO THE ROLLS FOR THE PURPOSE OF PERMITTING PAYMENT OF THE 34 HOURS OF ANNUAL LEAVE. HER RETIREMENT ACCOUNT SHOULD BE ADJUSTED ACCORDINGLY.

TO MR. SOL ORDEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1972, AND ENCLOSURES, IN REGARD TO THE CLAIM OF MRS. NELLIE E. MINNEMAN FOR 34 HOURS OF ANNUAL LEAVE, IN EXCESS OF THE 240-HOUR CEILING, WHICH WAS FORFEITED ON OCTOBER 30, 1971, THE EFFECTIVE DATE OF HER VOLUNTARY RESIGNATION AND SEPARATION FROM HER POSITION AS A CLINICAL NURSE FOR THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), PUBLIC HEALTH SERVICE, HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION, TAHLEQUAH, OKLAHOMA.

THE RECORD DISCLOSES THAT PRIOR TO HER RESIGNATION, DUE TO THE PRESSURE OF WORK, MRS. MINNEMAN WAS NOT PERMITTED TO USE LEAVE WHICH SHE HAD REQUESTED AND THAT, AT THE TIME OF HER SEPARATION, SHE WAS NOT COUNSELED AS TO THE FORFEITURE OF UNUSED ANNUAL LEAVE IN EXCESS OF THE 240-HOUR MAXIMUM WHICH WOULD RESULT FROM THE ACCEPTANCE OF HER RESIGNATION AS TENDERED.

LEAVE REGULATIONS OF HEW GIVE THE EMPLOYEE'S SUPERVISOR THE DISCRETIONARY AUTHORITY TO GRANT LEAVE BASED UPON THE NEEDS OF THE SERVICE. HOWEVER, THE STATED PERSONNEL POLICY OF HEW PROVIDES FOR THE GRANTING OF ANNUAL LEAVE TO AN EMPLOYEE WHO HAS LEAVE TO HIS CREDIT AT THE TIME OF SEPARATION WHICH CANNOT BE INCLUDED IN HIS LUMP-SUM PAYMENT FOR ACCRUED LEAVE. EXCEPTIONS TO THAT POLICY ARE PERMITTED ONLY WITH THE APPROVAL OF THE PERSONNEL OFFICE. HOWEVER, THE OFFICER INVOLVED HAS INDICATED THAT AT THE TIME OF MRS. MINNEMAN'S SEPARATION HE WAS NOT AWARE OF THE RULE REGARDING THE FORFEITURE OF ANNUAL LEAVE IN EXCESS OF AN EMPLOYEE'S CEILING AT THE TIME OF SEPARATION. OFFICIALS OF YOUR AGENCY HAVE STATED THAT, IF POSSIBLE, REIMBURSEMENT SHOULD BE MADE TO CLAIMANT FOR THE 34 HOURS OF ANNUAL LEAVE WHICH WERE FORFEITED.

OUR OFFICE HAS LONG FOLLOWED THE RULE THAT WHEN AN AUTHORIZED SEPARATION BECOMES AN ACCOMPLISHED FACT IT MAY NOT BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. 32 COMP. GEN. 111 (1952). WE HAVE RECOGNIZED EXCEPTIONS TO THAT RULE WHEN THE SEPARATION WAS NOT IN CONFORMANCE WITH ESTABLISHED AGENCY PRACTICE OR APPLICABLE REGULATIONS OR THE INTENT OF THE PARTIES. SEE B-172997, JUNE 23, 1971; B-163077, JANUARY 29, 1968; AND B- 135877, JUNE 12, 1958, COPIES HEREWITH.

BASED UPON THE FOREGOING, IT IS CLEAR THAT MRS. MINNEMAN'S VOLUNTARY RESIGNATION WAS EFFECTED WITHOUT THE REQUISITE COUNSELING WHICH SHOULD HAVE BEEN AFFORDED HER AND WAS OTHERWISE CONTRARY TO SPECIFIC REGULATIONS AND PRACTICES OF HEW. THEREFORE, IT IS OUR VIEW THAT HER SEPARATION WAS INEFFECTIVE.

ACCORDINGLY, WE WOULD NOT OBJECT TO THE RESTORATION OF MRS. MINNEMAN TO THE ROLLS AND A CHANGE IN THE EFFECTIVE DATE OF HER SEPARATION FOR THE PURPOSE OF PERMITTING PAYMENT OF THE 34 HOURS OF ANNUAL LEAVE DUE HER, WITH ADVICE OF SUCH ACTION TO THE CIVIL SERVICE COMMISSION FOR THE PURPOSE OF MAKING ADJUSTMENTS IN HER RETIREMENT ACCOUNT. MRS. MINNEMAN HAS BEEN FURNISHED A COPY OF THIS LETTER.