B-182027, DEC 23, 1974

B-182027: Dec 23, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ALTHOUGH GENERAL RULE IS THAT AUTHORIZED SEPARATION MAY NOT BE RESCINDED BY ADMINISTRATION ACTION AFTER IT WAS ACCOMPLISHED. WHERE FORMER EMPLOYEE WAS REMOVED FROM POSITION AND NOT PAID LUMP-SUM FOR 86 HOURS OF ANNUAL LEAVE IN EXCESS OF 240-HOUR MAXIMUM ALLOWABLE UNDER 5 U.S.C. THERE IS NO OBJECTION TO HER RESTORATION TO ROLLS AND CHANGE IN EFFECTIVE DATE OF HER SEPARATION FOR PURPOSE OF PAYING HER FOR SUCH LEAVE SINCE SEPARATION DATE WAS FIXED WITHOUT REGARD TO AGENCY POLICY OF COUNSELING EMPLOYEES AND PERMITTING THEM. HAVAS WAS NOTIFIED ON JUNE 1. SHE WAS ADVISED ON JULY 9. HAVAS WAS PAID A LUMP SUM FOR 240 HOURS. WHICH COULD INDICATE THAT SHE WAS AWARE OF THE FACT THAT SHE HAD THE LEAVE BUT THOUGHT THAT SHE COULD BE PAID FOR ALL OF IT.

B-182027, DEC 23, 1974

ALTHOUGH GENERAL RULE IS THAT AUTHORIZED SEPARATION MAY NOT BE RESCINDED BY ADMINISTRATION ACTION AFTER IT WAS ACCOMPLISHED, WHERE FORMER EMPLOYEE WAS REMOVED FROM POSITION AND NOT PAID LUMP-SUM FOR 86 HOURS OF ANNUAL LEAVE IN EXCESS OF 240-HOUR MAXIMUM ALLOWABLE UNDER 5 U.S.C. SEC. 5551 (1970), THERE IS NO OBJECTION TO HER RESTORATION TO ROLLS AND CHANGE IN EFFECTIVE DATE OF HER SEPARATION FOR PURPOSE OF PAYING HER FOR SUCH LEAVE SINCE SEPARATION DATE WAS FIXED WITHOUT REGARD TO AGENCY POLICY OF COUNSELING EMPLOYEES AND PERMITTING THEM, PRIOR TO SEPARATION, TO USE LEAVE THAT WOULD OTHERWISE BE FORFEITED.

ANN M. HAVAS - PAYMENT FOR ANNUAL LEAVE:

THIS ACTION CONCERNS THE CLAIM OF MS. ANN M. HAVAS, A FORMER EMPLOYEE OF THE SMALL BUSINESS ADMINISTRATION (SBA) FOR PAYMENT FOR 86 HOURS OF ANNUAL LEAVE.

IN A LETTER DATED MARCH 4, 1974, THE DIRECTOR, OFFICE OF PERSONNEL, SBA, STATED THAT MS. HAVAS WAS NOTIFIED ON JUNE 1, 1973, OF A PROPOSAL TO REMOVE HER FROM HER POSITION. AFTER CONSIDERATION OF HER ANSWER TO THE CHARGE, SHE WAS ADVISED ON JULY 9, 1973, OF THE DECISION TO REMOVE HER FROM THE POSITION, FOR CAUSE, EFFECTIVE JULY 20, 1973. MS HAVAS HAD AN ANNUAL LEAVE BALANCE OF 318 HOURS AS OF JULY 9, 1973, AND 326 HOURS AS OF JULY 20, 1973, THE DATE OF HER TERMINATION. MS. HAVAS WAS PAID A LUMP SUM FOR 240 HOURS, THE MAXIMUM PAYABLE UNDER 5 U.S.C. SEC. 5551, AND FORFEITED 86 HOURS OF ANNUAL LEAVE.

THE DIRECTOR ADVISED THAT MS. HAVAS TOOK 20 HOURS OF SICK LEAVE BUT NO ANNUAL LEAVE, DURING THE PERIOD JULY 9 THROUGH 20, 1973, WHICH COULD INDICATE THAT SHE WAS AWARE OF THE FACT THAT SHE HAD THE LEAVE BUT THOUGHT THAT SHE COULD BE PAID FOR ALL OF IT. MS. HAVAS MAY NOT HAVE BEEN COUNSELED BY HER SUPERVISOR THAT SHE COULD NOT BE PAID FOR ANY EXCESS OVER THE 240 HOURS, BUT IN ANY CASE, THERE WAS NOT SUFFICIENT TIME BETWEEN JULY 9 AND 20, 1973, FOR HER TO USE THE EXCESS OF 86 HOURS. UNDER THE FACTS STATED, THE DIRECTOR RECOMMENDS THAT MS. HAVAS BE REIMBURSED FOR THE 86 HOURS OF EXCESS LEAVE LOST.

DESPITE THE GENERAL RULE THAT AN AUTHORIZED SEPARATION MAY NOT BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION ONCE IT HAS BECOME AN ACCOMPLISHED FACT (32 COMP. GEN. 111 (1952)), OUR OFFICE HAS RECOGNIZED EXCEPTIONS WHEN THE SEPARATION WAS NOT ACCOMPLISHED IN ACCORDANCE WITH ESTABLISHED AGENCY PROCEDURE OR APPLICABLE REGULATION OR THE INTENT OF THE PARTIES. SEE B-172997, JUNE 23, 1971; B-174975, MARCH 31, 1972; AND B- 173458, AUGUST 17, 1971.

ALTHOUGH THE LETTER DATED MARCH 4, 1974, FROM THE DIRECTOR DID NOT SPECIFICALLY STATE SBA'S POLICY IN REGARD TO GRANTING EMPLOYEES THE USE OF ANNUAL LEAVE PRIOR TO SEPARATION IN EXCESS OF THAT WHICH MAY BE INCLUDED IN A LUMP-SUM PAYMENT, THE DIRECTOR DID STATE THAT MS. HAVAS APPARENTLY HAD NOT BEEN ADVISED THAT SHE WOULD FORFEIT ANY ANNUAL LEAVE IN EXCESS OF 240 HOURS AND HE RECOMMENDED THAT SHE BE REIMBURSED FOR THE 86 HOURS OF LEAVE LOST. THIS LETTER AND THE RECOMMENDATION CONTAINED THEREIN SUGGESTS THAT MS HAVAS' SEPARATION WAS EFFECTED IN A MANNER CONTRARY TO ESTABLISHED AGENCY PROCEDURE. FURTHERMORE, WE HAVE INFORMALLY BEEN ADVISED THAT PRIOR TO THE AMENDMENT OF 5 U.S.C. SEC. 5551 ON DECEMBER 14, 1973, BY PUBLIC LAW NO. 93-181, IT HAD BEEN THE CONSISTENT POLICY OF SBA TO INFORM EMPLOYEES OF THEIR LEAVE ENTITLEMENT AND PERMIT THEM TO USE ALL CURRENT ACCRUED ANNUAL LEAVE FOR WHICH THEY COULD NOT RECEIVE A LUMP-SUM PAYMENT UPON SEPARATION. ALTHOUGH MS. HAVAS WAS REMOVED INVOLUNTARILY FOR CAUSE, IT DOES NOT APPEAR THAT SBA HAS ANY ESTABLISHED POLICY CONTRARY TO THAT STATED ABOVE WITH RESPECT TO INVOLUNTARY SEPARATIONS. IN THIS REGARD OUR DECISION IN B-177057, JANUARY 23, 1973, INVOLVED AN INVOLUNTARY SEPARATION, SPECIFICALLY A REDUCTION IN FORCE. IN THAT CASE WE HELD THAT A FORMER EMPLOYEE, WHO FORFEITED ANNUAL LEAVE BECAUSE HE HAD NOT BEEN INFORMED OF THE LIMIT ON THE HOURS OF LEAVE FOR WHICH A LUMP-SUM COULD BE MADE, COULD RECEIVE PAYMENT FOR ANNUAL LEAVE THAT HAD BEEN FORFEITED.

SINCE MS. HAVAS' SEPARATION MAY HAVE BEEN EFFECTED IN A MANNER CONTRARY TO ESTABLISHED AGENCY POLICY, SUCH SEPARATION MAY BE REGARDED AS INEFFECTIVE. ACCORDINGLY, WE WOULD NOT OBJECT TO MS. HAVAS' RESTORATION TO THE ROLLS AND A CHANGE IN THE EFFECTIVE DATE OF HER SEPARATION FOR THE PURPOSE OF ALLOWING PAYMENT FOR THE 86 HOURS OF ACCRUED ANNUAL LEAVE THAT WOULD OTHERWISE BE FORFEITED WITH ADVICE TO THE CIVIL SERVICE COMMISSION FOR ADJUSTMENT OF HER RETIREMENT ACCOUNT.