B-18229, JULY 15, 1941, 21 COMP. GEN. 27

B-18229: Jul 15, 1941

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ARE REQUIRED TO BE STRICTLY CONSTRUED. THE EXCEPTIONS TO THE GENERAL RULE IN THE ANNUAL AND SICK LEAVE REGULATIONS THAT AN EMPLOYEE MUST BE CHARGED FOR OVERDRAWN ANNUAL AND/OR SICK LEAVE ARE REQUIRED TO BE STRICTLY CONSTRUCTED. 1941: I HAVE YOUR LETTER OF JUNE 23. HER RESIGNATION WAS ACCOMPANIED BY A CERTIFICATE FROM HER PHYSICIAN THAT SHE HAS BEEN UNDER HIS PROFESSIONAL CARE SINCE JULY 31. HARDIE WAS GRANTED LEAVE-WITHOUT-PAY EFFECTIVE AUGUST 1. HARDIE IS SUBJECT TO THE PROVISIONS OF THE ACT ESTABLISHING THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND. STATE THAT THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS ARE FOR APPLICATION ONLY UPON THE FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE WHEN THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED TO THE EMPLOYEE.

B-18229, JULY 15, 1941, 21 COMP. GEN. 27

ANNUAL AND SICK LEAVE ADVANCES - COMPENSATION ADJUSTMENT UPON SEPARATION FROM SERVICE EXCEPTIONS TO A GENERAL RULE PRESCRIBED BY LAW, OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, ARE REQUIRED TO BE STRICTLY CONSTRUED. THE EXCEPTIONS TO THE GENERAL RULE IN THE ANNUAL AND SICK LEAVE REGULATIONS THAT AN EMPLOYEE MUST BE CHARGED FOR OVERDRAWN ANNUAL AND/OR SICK LEAVE ARE REQUIRED TO BE STRICTLY CONSTRUCTED. AN EMPLOYEE WHO, ALTHOUGH ELIGIBLE FOR RETIREMENT FOR DISABILITY, VOLUNTARILY RESIGNS FROM THE SERVICE ON ACCOUNT OF DISABILITY WITHOUT MAKING APPLICATION FOR RETIREMENT MUST REFUND THE COMPENSATION RECEIVED PRIOR TO SEPARATION FROM THE SERVICE FOR ADVANCED ANNUAL AND SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, JULY 15, 1941:

I HAVE YOUR LETTER OF JUNE 23, 1941, AS FOLLOWS:

MRS. MARY H. HARDIE, ASSISTANT CLERK, FARM CREDIT ADMINISTRATION, IN ORDER TO REGAIN HER HEALTH, SUBMITTED HER RESIGNATION TO TAKE EFFECT AS OF THE CLOSE OF BUSINESS MARCH 31, 1941. HER RESIGNATION WAS ACCOMPANIED BY A CERTIFICATE FROM HER PHYSICIAN THAT SHE HAS BEEN UNDER HIS PROFESSIONAL CARE SINCE JULY 31, 1940, AND HE HAS ADVISED HER TO REFRAIN FROM WORK UNTIL SHE FULLY REGAINS HER HEALTH.

BECAUSE OF ILL HEALTH, MRS. HARDIE WAS GRANTED LEAVE-WITHOUT-PAY EFFECTIVE AUGUST 1, 1940. PRIOR TO THAT DATE SHE HAD BEEN GRANTED AND USED ADVANCED SICK AND ANNUAL LEAVE IN EXCESS OF THAT EARNED TO AUGUST 1, 1940.

MRS. HARDIE IS SUBJECT TO THE PROVISIONS OF THE ACT ESTABLISHING THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND; HAS HAD MORE THAN 5 YEARS OF ALLOWABLE SERVICE; AND ACCORDINGLY WOULD BE ELIGIBLE FOR DISABILITY RETIREMENT IF HER PHYSICAL CONDITION SHOULD BE SUCH THAT DISABILITY RETIREMENT COULD PROPERLY BE GRANTED UNDER THE CIVIL SERVICE RETIREMENT AND DISABILITY ACT AND PERTINENT REGULATIONS. SHE DID NOT MAKE APPLICATION FOR SUCH DISABILITY RETIREMENT, APPARENTLY IN THE BELIEF THAT HER PHYSICAL CONDITION WOULD NOT BE FOUND TO BE SUCH AS TO ENTITLE HER TO DISABILITY RETIREMENT UNDER THAT ACT.

THE FOREGOING FACTS PRESENT THE QUESTION WHETHER ANY RECOVERY MUST BE MADE FROM MRS. HARDIE ON ACCOUNT OF THIS ADVANCED SICK OR ANNUAL LEAVE.

DECISION OF FEBRUARY 5, 1940 (19 COMP. GEN. 705), AND DECISIONS CITED THEREIN, STATE THAT THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS ARE FOR APPLICATION ONLY UPON THE FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE WHEN THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED TO THE EMPLOYEE, WHETHER ADVANCED IN ONE OR MORE PERIODS.

SECTION 11 OF THE SICK LEAVE REGULATIONS PROVIDES THAT REFUND ON ACCOUNT OF UNEARNED SICK LEAVE SHALL NOT BE DUE FROM AN EMPLOYEE WHOSE SERVICES ARE TERMINATED BY DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE, WHO IS NOT ELIGIBLE FOR RETIREMENT, IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED, PRACTICING PHYSICIAN OR OTHER PRACTITIONER. IT APPEARS THAT NO REFUND FOR THE AMOUNT OF EXCESS SICK LEAVE IS REQUIRED IN THIS CASE IF THE FOREGOING SECTION IS INTERPRETED TO MEAN THAT AN EMPLOYEE MEMBER OF THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND, WHO IS ELIGIBLE FOR DISABILITY RETIREMENT EXCEPT FOR THE FACT THAT THE DISABILITY IS NOT SUCH AS TO QUALIFY THE EMPLOYEE FOR DISABILITY RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT AND DISABILITY ACT AND PERTINENT REGULATIONS, MAY, ON THE BASIS OF A LESSER DISABILITY EVIDENCED BY A PHYSICIAN'S CERTIFICATE AS REQUIRED, BE RELIEVED OF ANY OBLIGATION TO REFUND THE AMOUNT OF EXCESS SICK LEAVE.

IF MRS. HARDIE'S RESIGNATION IS ACCEPTED AS TENDERED, SHE WILL BE CARRIED AS AN EMPLOYEE OF THE FARM CREDIT ADMINISTRATION THROUGH MARCH 31, 1941, ALTHOUGH HER LAST DAY IN A PAY STATUS WAS JULY 31, 1940. IF YOU FIND THAT UNDER THE CIRCUMSTANCES, MRS. HARDIE IS RELIEVED OF ANY OBLIGATION TO REFUND FOR OVERDRAWN SICK LEAVE, IT APPEARS THAT IN ACCORDANCE WITH THE DECISION OF FEBRUARY 5, 1940, SUPRA, THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS, SIMILAR TO THOSE CONTAINED IN SECTION 11 OF THE SICK LEAVE REGULATIONS, WOULD RELIEVE HER OF ANY OBLIGATION TO REFUND FOR THE EXCESS ANNUAL LEAVE GRANTED DURING THE CALENDAR YEAR 1940, EVEN THOUGH THE ACCEPTANCE OF HER RESIGNATION, EFFECTIVE AS OF THE CLOSE OF BUSINESS MARCH 31, 1941, WOULD ACCOMPLISH THE TERMINATION OF HER SERVICES IN THE CALENDAR YEAR 1941.

YOUR ANSWERS TO THE QUESTIONS PRESENTED HEREIN, FOR OUR GUIDANCE IN THIS AND OTHER SIMILAR CASES, WILL BE APPRECIATED.

SECTION 11 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, EFFECTIVE MARCH 2, 1940) PROVIDES AS FOLLOWS:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY AMOUNT IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE ORBY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, EFFECTIVE MARCH 2, 1940) CONTAINS SIMILAR EXCEPTIONS TO THE RULE REQUIRING A CHARGE AGAINST EMPLOYEES FOR OVERDRAWING ANNUAL LEAVE.

THE GENERAL RULE STATED IN THESE REGULATIONS--- WHICH REGULATIONS HAVE THE FORCE AND EFFECT OF LAW--- IS THAT AN EMPLOYEE MUST BE CHARGED FOR OVERDRAWN SICK AND/OR ANNUAL LEAVE. EXPRESS EXCEPTIONS TO THIS GENERAL RULE ARE MADE IN CASES OF (1) DEATH, (2) RETIREMENT FOR AGE OR DISABILITY, (3) REDUCTION OF FORCE, OR (4) IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY. EXCEPTIONS TO A GENERAL RULE PRESCRIBED BY LAW, OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, ARE REQUIRED TO BE STRICTLY CONSTRUED. 19 COMP. GEN. 397; ID. 791. EXCEPTION (4) IS EXPRESSLY MADE APPLICABLE ONLY TO THOSE WHO ARE NOT ELIGIBLE FOR RETIREMENT, AND MAY NOT BE BROADENED BY CONSTRUCTION TO INCLUDE EMPLOYEES WHO ARE ELIGIBLE FOR RETIREMENT. COMPARE 18 COMP. GEN. 13, 15, SECOND QUESTION AND ANSWER.

ACCORDINGLY, AS MRS. HARDIE WAS SEPARATED FROM THE SERVICE BY RESIGNATION, CLASSED AS A VOLUNTARY SEPARATION, A CHARGE SHOULD BE RAISED AGAINST HER FOR THE OVERDRAWN SICK AND ANNUAL LEAVE IN AN AMOUNT COMPUTED IN ACCORDANCE WITH THE REGULATIONS.