B-236124, Jan 2, 1990

B-236124, Jan 2, 1990

CIVILIAN PERSONNEL - Leaves Of Absence - Administrative leave - Eligibility - Settlement terms - Adverse personnel actions DIGEST: There is no legal authority for a government agency to award an employee 1 year of prospective compensation and benefits in the form of administrative leave as part of a settlement of the employee's appeal of his removal to the Merit Systems Protection Board.

Mr. Llewellyn M. Fischer

General Counsel

U.S. Merit Systems Protection

Board

Mr. Fischer:

This is in response to your letter of July 7, 1989, requesting our advice as to whether a government agency has the authority to award an employee 1 year of prospective compensation and benefits in the form of administrative leave as part of a settlement of the employee's appeal of his removal to the Merit Systems Protection Board (MSPB). For the reasons stated below, we believe that an award of 1 year of administrative leave is unauthorized under these circumstances.

BACKGROUND

In settlement of an action pending before the MSPB, the Department of Defense, Defense Investigative Service (DIS) entered into a settlement agreement with Mr. Merle E. Miller, a former employee of the DIS Denver office and the appellant in that action. This settlement agreement was incorporated into the administrative judge's initial decision which dismissed the appeal. One of the thirteen provisions of the settlement agreement provided for an award of paid administrative leave with full salary and benefits, including insurance, for a 1-year period, to be made to Mr. Miller.

Subsequent to the settlement, the agency petitioned the MSPB to set aside the agreement because, in retrospect, the agency believed that the portion of the agreement dealing with Mr. Miller's administrative leave was illegal. Mr. Miller contends that the provision is legal and that the agency is bound by it.

DISCUSSION

There is no general statutory authority for what is referred to as administrative leave, that is, an excused absence from duty without loss of pay and without charge to other paid leave. Nevertheless, it has been recognized that, in the absence of specific statutory authority, the head of an agency may, in certain situations, excuse an employee for brief periods of time in accordance with general guidelines established by decisions of this Office and instructions of the Office of Personnel Management (OPM). See generally 67 Comp.Gen. 126 (1987); Frederick W. Merkle, Jr., B-200015, Nov. 17, 1980. Some of the more common situations in which agencies generally excuse absence without a charge to leave are discussed in the Federal Personnel Manual (FPM) Supplement 990-2, Book 630, Subchapter S11. See also 5 C.F.R. Sec. 610.304 and 610.305 (1988), which provide certain standards for excused absences by administrative order for government employees paid at a daily, hourly or piece work rate. However, none of the examples in either the FPM Supplement or the regulations is applicable here.

While each agency has the responsibility for determining situations in which administrative leave will be granted, our decisions and OPM's guidelines limit an agency's discretion to grant administrative leave to situations involving brief absences. Elmer DeRitter, Jr., 61 Comp.Gen. 652 (1982). In the absence of statutory authority, we would not normally approve a proposal under which absences would be granted for extended periods of time. For example, in 53 Comp.Gen. 1054 (1974), we held that there was no authority to implement an arbitration award that granted 30 days administrative leave to an injured employee who was not offered a limited duty assignment. In Frederick W. Merkle, Jr., B-200015, supra, we held that there was no authority to substitute 42 days of administrative leave for a like number of days an employee was on leave without pay pending a decision as to his eligibility for discontinued service retirement. See also 66 Comp.Gen. 639 (1987); B-156287, June 6, 1974.

Where absences are for a lengthy period of time, a grant of administrative leave is not appropriate unless the absence is in connection with furthering a function of the agency. 63 Comp.Gen. 542, 544 (1984); Elmer DeRitter, Jr., 61 Comp.Gen. at 653. The award of administrative leave proposed here would not further any purpose or function of the Department of Defense. ency would be expending appropriated funds without receiving any benefit in kind since Mr. Miller would be paid to stay at home. See 66 Comp.Gen. at 641. Further, the fact that the administrative leave was granted in settlement of a personnel claim does not alter the result. While we recognize that agencies have broad authority to settle personnel claims, such settlements cannot include benefits which the agency does not have authority to provide. See generally Albert D. Parker, 64 Comp.Gen. 349, 354 (1985). Therefore, granting administrative leave for the duration proposed in this case, which is otherwise impermissible, cannot be part of a remedy in settlement of Mr. Miller's claim.

Accordingly, we conclude that the proposed award of 1 year of administrative leave is unauthorized. We believe the parties should seek other forms of compensation in settlement of this action.