B-193820, JAN 9, 1980

B-193820: Jan 9, 1980

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IS REQUIRED TO BE CHARGED ANNUAL LEAVE WHEN HE DEPARTS FROM HIS RESIDENCE FOR TEMPORARY DUTY TRAVEL SEVERAL HOURS LATER THAN HE WOULD HAVE REPORTED FOR DUTY ON A NORMAL WORKDAY. HIS NORMAL WORKING HOURS ON THIS DATE WERE FROM 7:15 A.M. ON THIS DATE HIS REGULAR DUTY HOURS WERE 8:00 A.M. JONES FOR THE PERIODS BETWEEN HIS NORMAL REPORTING TIME AND HIS ACTUAL DEPARTURE TIME FROM HIS RESIDENCE ON THE BASIS THAT HE SHOULD HAVE REPORTED TO HIS OFFICE RATHER THAN WORK AT HOME. HE SAYS IT WAS IMPRACTICAL TO REVIEW THE CASE FILES AT A PLACE OTHER THAN HIS RESIDENCE. JONES REQUESTED THAT ADMINISTRATIVE LEAVE BE GRANTED TO COVER THE PERIODS PRIOR TO DEPARTURE ON THOSE DAYS IN WHICH HE WAS REQUIRED TO TRAVEL TO HOLD HEARINGS ASSIGNED TO HIM.

B-193820, JAN 9, 1980

DIGEST: 1. ANNUAL LEAVE NEED NOT BE CHARGED WHERE ON MORNINGS OF TEMPORARY DUTY TRAVEL TO CONDUCT HEARINGS, ADMINISTRATIVE LAW JUDGE, WITH PERMISSION OF SUPERVISOR, DID NOT REPORT TO OFFICE PRIOR TO DEPARTURE BUT WORKED ON CASE FILES AT HOME IN PREPARATION FOR HEARINGS. 2. EXCUSING EMPLOYEES FROM REPORTING TO REGULAR WORK SITE IN SUCH CASES SHOULD BE ONLY FOR BRIEF PERIODS.

MARVIN E. JONES - HOURS OF DEPARTURE ON TEMPORARY DUTY ASSIGNMENT:

JOHN H. ADAMS, A CERTIFYING OFFICER OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA), REGION VII, KANSAS CITY, MISSOURI, REQUESTS AN ADVANCE DECISION AS TO WHETHER MARVIN JONES, AN ADMINISTRATIVE LAW JUDGE ASSIGNED TO THE KANSAS CITY REGIONAL OFFICE, IS REQUIRED TO BE CHARGED ANNUAL LEAVE WHEN HE DEPARTS FROM HIS RESIDENCE FOR TEMPORARY DUTY TRAVEL SEVERAL HOURS LATER THAN HE WOULD HAVE REPORTED FOR DUTY ON A NORMAL WORKDAY.

TWO EXAMPLES ILLUSTRATE THE PROBLEM INVOLVED. ON AUGUST 10, 1977, MR. JONES DEPARTED HIS RESIDENCE AT 10:45 A.M. TO TRAVEL BY LIMOUSINE TO THE LOCAL AIRPORT TO TAKE A FLIGHT DEPARTING AT 12:40 P.M. HIS NORMAL WORKING HOURS ON THIS DATE WERE FROM 7:15 A.M. TO 4:00 P.M. ON NOVEMBER 15, 1978, MR. JONES DEPARTED HIS RESIDENCE AT 10:15 A.M. FOR A FLIGHT DEPARTING AT 1:00 P.M. ON THIS DATE HIS REGULAR DUTY HOURS WERE 8:00 A.M. TO 4:30 P.M. THE FINANCIAL MANAGEMENT BRANCH OF EPA PROPOSES TO CHARGE ANNUAL LEAVE TO MR. JONES FOR THE PERIODS BETWEEN HIS NORMAL REPORTING TIME AND HIS ACTUAL DEPARTURE TIME FROM HIS RESIDENCE ON THE BASIS THAT HE SHOULD HAVE REPORTED TO HIS OFFICE RATHER THAN WORK AT HOME.

MR. JONES HAS EXPLAINED HIS ACTIONS AS FOLLOWS. IN EACH INSTANCE, THE DAY BEFORE HIS DEPARTURE HE TOOK HOME THE CASE FILES NECESSARY TO CONDUCT A HEARING AT HIS TEMPORARY DUTY STATION. HE USED HIS TIME DURING THE MORNING OF DEPARTURE TO PREPARE FOR THE CASES TO BE HEARD, BY USING THE FILES IN HIS POSSESSION AT HIS RESIDENCE. BECAUSE OF THE BULK OF MATERIALS NECESSARY TO BE CARRIED, HE SAYS IT WAS IMPRACTICAL TO REVIEW THE CASE FILES AT A PLACE OTHER THAN HIS RESIDENCE. IN RESPONSE TO THE PROPOSAL TO CHARGE HIM ANNUAL LEAVE FOR THESE PERIODS, MR. JONES REQUESTED THAT ADMINISTRATIVE LEAVE BE GRANTED TO COVER THE PERIODS PRIOR TO DEPARTURE ON THOSE DAYS IN WHICH HE WAS REQUIRED TO TRAVEL TO HOLD HEARINGS ASSIGNED TO HIM. HE ALSO REQUESTED ADMINISTRATIVE LEAVE OF UP TO THREE HOURS FOR FUTURE TRAVEL DAYS.

MR. JONES ALSO CONSULTED WITH HERBERT L. PERLMAN, CHIEF ADMINISTRATIVE LAW JUDGE, EPA HEADQUARTERS IN WASHINGTON, D. C. AS AN ADMINISTRATIVE LAW JUDGE, MR. JONES WAS APPOINTED FROM A REGISTER MAINTAINED BY THE OFFICE OF ADMINISTRATIVE LAW JUDGES, CIVIL SERVICE COMMISSION. HE WAS ASSIGNED TO THE KANSAS CITY REGIONAL OFFICE OF EPA FOR ADMINISTRATIVE PURPOSES, BUT HE WORKS UNDER THE DIRECT SUPERVISION OF THE CHIEF ADMINISTRATIVE LAW JUDGE, EPA, AND IS NOT SUBJECT TO SUPERVISION BY REGIONAL OFFICIALS OF THE AGENCY. THE REGIONAL OFFICE DOES HAVE RECORD KEEPING AND PAYROLL RESPONSIBILITIES WITH REGARD TO MR. JONES.

MR. PERLMAN ADVISED THE REGIONAL ADMINISTRATOR, REGION VII, BY MEMORANDUM OF JANUARY 4, 1978, THAT, BECAUSE OF THE UNIQUE REQUIREMENTS OF CONDUCTING HEARINGS AND PREHEARING CONFERENCES, HE INTENDED MR. JONES TO HAVE THE MOST FLEXIBLE SCHEDULE POSSIBLE. MR. PERLMAN, THEREFORE, ASSIGNED MR. JONES TO THE HEADQUARTERS FLEXITIME PLAN, WITH REGULAR DUTY HOURS OF 8:00 TO 4:30, BUT WITH AUTHORIZED VARIATIONS TO PERMIT HIM TO WORK AS EARLY OR LATE A SCHEDULE AS NEEDED TO MEET HIS MISSION REQUIREMENTS. MR. PERLMAN ALSO OBJECTED TO CHARGING LEAVE TO MR. JONES IN CONNECTION WITH HIS OFFICIAL TRIPS AND STATED HIS VIEW THAT MR. JONES' SCHEDULE WAS IN THE BEST INTEREST OF THE AGENCY.

THE EPA FINANCIAL MANAGEMENT BRANCH'S PROPOSED CHARGE TO ANNUAL LEAVE IS BASED ON THE EPA TRAVEL MANUAL PROVISIONS REQUIRING SUCH ACTION TO BE TAKEN WHENEVER A TRAVELER INCURS EXCESS TRAVEL TIME BECAUSE OF INDIRECT ROUTING OR USE OF A PRIVATELY OWNED AUTOMOBILE FOR PERSONAL REASONS.

WHERE, AS HERE, AN EMPLOYEE COMMENCES TRAVEL DIRECT FROM HIS HOME DURING REGULAR DUTY HOURS, A DETERMINATION IS TO BE MADE BY AN APPROPRIATE AGENCY OFFICIAL WHETHER TO EXCUSE THE INDIVIDUAL FROM REPORTING TO WORK PRIOR TO TRAVEL WITHOUT CHARGE TO LEAVE. ABSENT SUCH DETERMINATION A CHARGE TO ANNUAL LEAVE IS REQUIRED. EXCUSED ABSENCES FOR THAT PURPOSE SHOULD BE FOR ADEQUATE REASONS AND FOR BRIEF PERIODS OF TIME. HOWEVER, THE DETERMINATION WHETHER TO SO EXCUSE THE EMPLOYEE IS ONE PRIMARILY WITHIN ADMINISTRATIVE DISCRETION AND THE PERIOD OF EXCUSING WILL OF NECESSITY VARY. SEE, GENERALLY, 53 COMP.GEN. 582.

ON THE BASIS OF THE INFORMATION PROVIDED IT APPEARS THAT MR. PERLMAN HAS AUTHORITY TO EXCUSE MR. JONES FROM REPORTING TO WORK IMMEDIATELY PRIOR TO COMMENCING THE TRAVEL IN QUESTION. HIS APPROVAL OF MR. JONES' DIRECT DEPARTURE FROM HOME MAY BE CONSIDERED AS AN EXERCISE OF SUCH AUTHORITY. ACCORDINGLY, NO CHARGE TO ANNUAL LEAVE IS REQUIRED.