B-94501, OCTOBER 4, 1950, 30 COMP. GEN. 139

B-94501, OCTOBER 4, 1950, 30 COMP. GEN. 139

COMPENSATION - REINSTATEMENTS - PERIOD FOLLOWING TENTATIVE FINDING OF DISQUALIFICATION WHERE ADMINISTRATIVE PERSONNEL ACTION IN REINSTATING AN EMPLOYEE WAS FOUND UPON POST AUDIT BY THE CIVIL SERVICE COMMISSION TO HAVE BEEN ERRONEOUS BUT NOT DUE TO BAD FAITH ON THE PART OF THE EMPLOYEE, AND NOTICE OF DISQUALIFICATION GIVEN THE EMPLOYING AGENCY PERMITTED THE RETENTION OF THE EMPLOYEE IN HIS EMPLOYMENT FOR A PERIOD OF 30 DAYS FROM THE DATE OF RECEIPT OF SUCH NOTICE, THE EMPLOYEE MAY BE PAID COMPENSATION FOR THE PERIOD OF RETENTION, INCLUDING THE WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE BECAME ENTITLED DURING THAT PERIOD AND A LUMP SUM FOR ACCRUED ANNUAL LEAVE.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 4, 1950:

REFERENCE IS MADE TO LETTER OF APRIL 12, 1950, FROM THE ACTING ADMINISTRATOR, REQUESTING A DECISION UPON CERTAIN QUESTIONS, HEREINAFTER STATED, INVOLVING THE COMPENSATION OF AN EMPLOYEE WHO WAS REINSTATED IN THE FEDERAL SECURITY AGENCY AND WHO AFTERWARDS WAS DETERMINED TO BE INELIGIBLE FOR REINSTATEMENT.

IT IS STATED THAT THE REINSTATEMENT OF THE EMPLOYEE OCCURRED ON FEBRUARY 21, 1949, BECAUSE OF A MISINTERPRETATION OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION BY THE APPOINTING OFFICER (WITHOUT ANY FAULT ON THE PART OF THE EMPLOYEE) IN THAT THE TIME ELIGIBILITY OF THE EMPLOYEE WAS COMPUTED FROM THE DATE OF SEPARATION FROM THE DISTRICT OF COLUMBIA GOVERNMENT RATHER THAN FROM THE DATE OF SEPARATION FROM THE FEDERAL GOVERNMENT. THE CIVIL SERVICE COMMISSION, IN POST AUDITING THE REINSTATEMENT ACTION, DISAPPROVED SAID ACTION UPON THE GROUND THAT THE EMPLOYEE DID NOT HAVE TIME ELIGIBILITY FOR REINSTATEMENT AND, UNDER DATE OF FEBRUARY 15, 1950, DIRECTED THAT THE EMPLOYEE BE SEPARATED WITHIN 30 DAYS FROM THAT DATE. IN COMPLIANCE WITH THE SAID DIRECTIVE THE EMPLOYEE WAS SEPARATED AT THE CLOSE OF BUSINESS ON MARCH 15, 1950, AND WAS PAID COMPENSATION THROUGH MARCH 4, 1950. HOWEVER, APPARENTLY BECAUSE OF A DOUBT AS TO WHETHER THE EMPLOYEE'S SALARY SHOULD INCLUDE A WITHIN-GRADE SALARY ADVANCEMENT WHICH NORMALLY WOULD HAVE BEEN EFFECTIVE ON MARCH 5, 1950, NO COMPENSATION HAS BEEN PAID FROM SAID DATE THROUGH MARCH 15, 1950.

IN THE LIGHT OF THE FOREGOING FACTS AND CIRCUMSTANCES, THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

1. IS THE EMPLOYEE ENTITLED TO COMPENSATION FOR THE PERIOD SUBSEQUENT TO FEBRUARY 17, 1950, THE DATE UPON WHICH THE CIVIL SERVICE NOTIFICATION WAS RECEIVED?

2. IF THE ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE, SHOULD THIS COMPENSATION INCLUDE THE BENEFITS OF THE STEP-INCREASE FOR THE PERIOD BEGINNING MARCH 5, 1950?

3. IS THE EMPLOYEE ENTITLED TO RECEIVE A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE?

AS PREVIOUSLY INDICATED, THE EMPLOYEE HERE INVOLVED WAS ENTIRELY INNOCENT IN THE MATTER, AND THE ADMINISTRATIVE OFFICER EFFECTING THE REINSTATEMENT OF THE EMPLOYEE APPARENTLY BELIEVED THAT SUCH ACTION WAS IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.

IT HAS BEEN ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT THE NOTICE OF DISQUALIFICATION GIVEN TO EMPLOYING AGENCIES BY THE COMMISSION UNDER SIMILAR CIRCUMSTANCES, AND WHICH DIRECTS THE SEPARATION OF AN EMPLOYEE WITHIN 30 DAYS, ACTUALLY IS A TENTATIVE FINDING AND DOES NOT BECOME FINAL UNLESS THE EMPLOYEE OR THE ADMINISTRATIVE OFFICE INVOLVED FAILS TO APPEAL THE FINDING WITHIN THE 30-DAY PERIOD. ALSO, IT HAS BEEN ASCERTAINED THAT DURING THE 30-DAY PERIOD THE AGENCY MAY RETAIN THE EMPLOYEE IN ITS DISCRETION AND IF AN APPEAL IS SUBMITTED THE RETENTION OF THE EMPLOYEE MAY CONTINUE UNTIL THE APPEAL IS DECIDED.

ACCORDINGLY, SINCE THE ACTION OF THE CIVIL SERVICE COMMISSION IN THE INSTANT CASE PERMITTED THE EMPLOYEE TO BE RETAINED IN HIS EMPLOYMENT FOR A PERIOD OF 30 DAYS AFTER A TENTATIVE FINDING OF DISQUALIFICATION, AND THERE BEING NO EVIDENCE OF ANY BAD FAITH ON THE PART OF THE EMPLOYEE, THIS OFFICE WILL OFFER NO OBJECTION TO THE PAYMENT OF UNPAID COMPENSATION TO THE EMPLOYEE INCLUDING A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE. SPECIFICALLY, THEREFORE, THE THREE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE, WHICH ANSWER RENDERS UNNECESSARY ANY REPLY TO THE ADDITIONAL MATTER PRESENTED IN YOUR LETTER.