B-197957, JUL 24, 1980

B-197957: Jul 24, 1980

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TWO IRS EMPLOYEES WERE SUSPENDED AT END OF LEAVE YEAR AND FORFEITED PREVIOUSLY SCHEDULED ANNUAL LEAVE. AFTER ONE WAS ACQUITTED AND INDICTMENT AGAINST THE OTHER WAS DROPPED EMPLOYEES WERE RETURNED TO DUTY. THE FORFEITED LEAVE CANNOT BE RESTORED BECAUSE IT WAS NOT FORFEITED DUE TO AN EXIGENCY OF THE PUBLIC BUSINESS. FORFEITURE OF ANNUAL LEAVE BECAUSE OF SUSPENSION: THIS DECISION IS IN RESPONSE TO A REQUEST BY PHILIP R. THE FACTS OF THE CASE ARE NOT IN DISPUTE. FOUR REVENUE OFFICERS WERE INDEFINITELY SUSPENDED FROM THEIR POSITIONS IN IRS ON THE GROUNDS THAT THEY HAD BEEN INDICTED ON BRIBERY CHARGES. TWO OF THE EMPLOYEES HAD ACCRUED MORE ANNUAL LEAVE THAN THEIR CEILING AMOUNT AND PRIOR TO THE DATE THEY WERE SUSPENDED SUCH EXCESS LEAVE HAD BEEN SCHEDULED FOR USE.

B-197957, JUL 24, 1980

DIGEST: INDICTED ON BRIBERY CHARGES, TWO IRS EMPLOYEES WERE SUSPENDED AT END OF LEAVE YEAR AND FORFEITED PREVIOUSLY SCHEDULED ANNUAL LEAVE. AFTER ONE WAS ACQUITTED AND INDICTMENT AGAINST THE OTHER WAS DROPPED EMPLOYEES WERE RETURNED TO DUTY, BUT IRS ORALLY ADMONISHED ONE AND INITIATED REMOVAL ACTION AGAINST THE OTHER. THE FORFEITED LEAVE CANNOT BE RESTORED BECAUSE IT WAS NOT FORFEITED DUE TO AN EXIGENCY OF THE PUBLIC BUSINESS.

FORFEITURE OF ANNUAL LEAVE BECAUSE OF SUSPENSION:

THIS DECISION IS IN RESPONSE TO A REQUEST BY PHILIP R. RUSSO ACTING DIRECTOR, PERSONNEL DIVISION, INTERNAL REVENUE SERVICE (IRS) FOR A DECISION IN A LABOR-MANAGEMENT RELATION MATTER CONCERNING THE RESTORATION OF FORFEITED ANNUAL LEAVE.

THE FACTS OF THE CASE ARE NOT IN DISPUTE. ON DECEMBER 12, 1978, FOUR REVENUE OFFICERS WERE INDEFINITELY SUSPENDED FROM THEIR POSITIONS IN IRS ON THE GROUNDS THAT THEY HAD BEEN INDICTED ON BRIBERY CHARGES. AT THE TIME OF THEIR SUSPENSIONS, TWO OF THE EMPLOYEES HAD ACCRUED MORE ANNUAL LEAVE THAN THEIR CEILING AMOUNT AND PRIOR TO THE DATE THEY WERE SUSPENDED SUCH EXCESS LEAVE HAD BEEN SCHEDULED FOR USE. AFTER ONE WAS ACQUITTED AND THE INDICTMENT AGAINST THE OTHER WAS DROPPED THE EMPLOYEES WERE RETURNED TO DUTY AFTER THE END OF THE LEAVE YEAR. HOWEVER, IRS ORALLY ADMONISHED ONE AND INITIATED REMOVAL ACTION AGAINST THE OTHER.

THE NATIONAL TREASURY EMPLOYEES UNION (NTEU) INQUIRED ABOUT THE EMPLOYEES' LEAVE AND THE DISTRICT DIRECTOR FOR IRS INFORMED THEM THAT THE LEAVE COULD NOT BE USED DURING SUSPENSION BECAUSE THE EMPLOYEES WERE ON A NON-DUTY, NON PAY STATUS AND THAT THE LEAVE COULD NOT BE RESTORED OR SET ASIDE IN A SEPARATE LEAVE ACCOUNT. THEREFORE, THE EMPLOYEES FORFEITED THE EXCESS LEAVE AT THE END OF THE LEAVE YEAR.

THE NTEU DISAGREED WITH THE DISTRICT DIRECTOR'S DECISION AND FILED A GRIEVANCE ON BEHALF OF THE TWO EMPLOYEES, CLAIMING VIOLATION OF ARTICLE 3, SECTION 1; ARTICLE 16, SECTION 1(A) AND (B) AND ARTICLE 37 OF THE MUTLI- DISTRICT AGREEMENT BETWEEN THE IRS AND THE NTEU. THE NTEU REQUESTED THAT THE EXCESS ANNUAL LEAVE BE RESTORED TO THE EMPLOYEES. THE GRIEVANCE WAS DENIED AND ARBITRATION WAS INVOKED. HOWEVER, BEFORE AN ARBITRATION DECISION WAS MADE, BOTH THE NTEU AND IRS DECIDED TO SUBMIT THE CASE TO THE COMPTROLLER GENERAL FOR DECISION.

UNDER 5 U.S.C. SEC. 6304(A) OR (B) AN EMPLOYEE IS LIMITED TO A MAXIMUM ACCUMULATION OF 30 OR 45 DAYS OF ANNUAL LEAVE AND ANY EXCESS LEAVE AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD OCCURRING IN A YEAR WILL BE FORFEITED. PRIOR TO THE ENACTMENT OF PUBLIC LAW 93-181, DECEMBER 14, 1973, 87 STAT. 705, LEAVE WHICH WAS FORFEITED BY OPERATION OF 5 U.S.C. SECS. 6304(A) OR (B) COULD NOT BE RESTORED TO THE EMPLOYEE EVEN IF SUCH FORFEITURE WAS THE RESULT OF ADMINISTRATIVE ERROR OR WAS BEYOND THE EMPLOYEE'S CONTROL. HOWEVER, THIS LAW ADDED A NEW PROVISION (5 U.S.C. SEC. 6304(D)(1)) WHICH PERMITS SUCH FORFEITED LEAVE TO BE RESTORED IF THE FORFEITURE RESULTED FROM (A) AN ADMINISTRATIVE ERROR, (B) THE EXIGENCIES OF PUBLIC BUSINESS WHEN THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE, OR (C) SICKNESS OF THE EMPLOYEE WHEN THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE.

IN THIS CASE THE NTEU ARGUES THAT THE TERM EXIGENCY OF THE PUBLIC BUSINESS SHOULD BE GIVEN A BROAD INTERPRETATION TO INCLUDE THE SITUATION INVOLVED IN THIS CASE. WE DISAGREE WITH THIS ARGUMENT.

PRIOR COMPTROLLER GENERAL'S DECISIONS INVOLVING EXIGENCY OF THE PUBLIC BUSINESS HAVE ALLOWED THE RESTORATION OF ANNUAL LEAVE ONLY IN SITUATIONS WHERE AN EMPLOYEE COULD NOT USE HIS LEAVE BECAUSE THERE WAS A PRESSING NEED FOR HIS SERVICES BY HIS EMPLOYING AGENCY. SEE E.G. NORBERT A. SHEPANEK, 58 COMP.GEN. 684 (1979); WILLIAM D. NORSWORTHY, 57 COMP.GEN. 325 (1978). IN THIS CASE, THE EMPLOYEES DID NOT FORFEIT THEIR LEAVE BECAUSE THEY WERE PERFORMING WORK FOR THE GOVERNMENT.

FURTHERMORE, IMPLEMENTING REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT STATE THAT BEFORE ANNUAL LEAVE CAN BE RESTORED, UNDER 5 U.S.C. 6304(D)(1)(B) THE HEAD OF THE AGENCY OR SOMEONE DESIGNATED BY HIM MUST MAKE A DETERMINATION THAT THE EXIGENCY IS OF MAJOR IMPORTANCE AND THAT THEREFORE ANNUAL LEAVE MAY NOT BE USED. 5 C.F.R. SEC. 630.305 (1979). SUCH DETERMINATION WAS MADE IN THIS CASE NOR WOULD ONE HAVE BEEN APPROPRIATE. MOREOVER, IN EXAMINING THE LEGISLATIVE HISTORY OF 5 U.S.C. SEC. 6304(D) AND THE IMPLEMENTING GUIDELINES CONTAINED IN FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 630-22, JANUARY 11, 1974 WE FIND EXIGENCY OF THE PUBLIC BUSINESS EXPLAINED IN TERMS OF WORK REQUIREMENTS AND SITUATIONS WHERE EMPLOYEES CANNOT BE SPARED. THERE IS NO SUGGESTION THAT IT INCLUDES A SITUATION IN WHICH AN EMPLOYEE WAS SUSPENDED FOR ALLEGED WRONGDOING.

THEREFORE, THE EMPLOYEES MAY NOT HAVE THEIR ANNUAL LEAVE RESTORED.