B-129528, MAR. 28, 1960

B-129528, MAR. 28, 1960

TO THE SECRETARY OF THE INTERIOR:

ON MARCH 9, 1960, THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTED WHETHER OUR OFFICE WOULD INTERPOSE ANY OBJECTION TO MR. ABRAHAM A. OSIPOVICH'S BEING RESTORED RETROACTIVELY TO THE POSITION FROM WHICH HE WAS SUSPENDED ON OCTOBER 3, 1953, AND WHETHER HE WOULD BE ENTITLED TO COMPENSATION FOR THE PERIOD OF HIS SUSPENSION IF SUCH ACTION WERE TAKEN.

THE RECORD SHOWS THAT MR. OSIPOVICH WAS SUSPENDED FROM DUTY WITHOUT PAY AS OF THE CLOSE OF BUSINESS OCTOBER 2, 1953, PURSUANT TO THE AUTHORITY VESTED IN THE SECRETARY OF THE INTERIOR BY EXECUTIVE ORDER NO. 10450, DATED APRIL 27, 1953 (18 F.R. 2489) AND THE ACT OF AUGUST 26, 1950. THE EMPLOYEE WAS GRANTED ANNUAL LEAVE WITH THE UNDERSTANDING THAT THE LEAVE WOULD BE RECREDITED TO HIM IN ACCORDANCE WITH 32 COMP. GEN. 284, IF HE WERE REINSTATED. AFTER THE EXPIRATION OF HIS ANNUAL LEAVE THROUGH SEVEN HOURS OF MARCH 9, 1954, MR. OSIPOVICH WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS THROUGH MARCH 19, 1954. ON THE LATER DATE HE SUBMITTED HIS RESIGNATION FOR REASONS OF HEALTH AND REQUESTED INITIATION OF PROCEEDINGS FOR DISABILITY RETIREMENT WHICH WAS GRANTED EFFECTIVE APRIL 1, 1954. THE EMPLOYEE'S POSITION HAD NOT BEEN DESIGNATED OR CLASSIFIED AS SENSITIVE AT OR PRIOR TO THE TIME OF HIS SUSPENSION, NOR WAS IT SO CLASSIFIED DURING ANY OF THE PERIOD FOR WHICH COMPENSATION IS CLAIMED.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT MR. OSIPOVICH VOLUNTARILY RESIGNED ON APRIL 1, 1954, TO AVOID WHAT HE HAD REASON TO BELIEVE WOULD BE A SEPARATION UNDER THE ACT OF AUGUST 26, 1950 (64 STAT. 476). HAD HE NOT VOLUNTARILY RESIGNED, IT WOULD HAVE BEEN NECESSARY TO REINSTATE HIM AS OF THE DATE HE WAS SUSPENDED FROM DUTY AND PAY HIM BY REASON OF A RULING OF THE SUPREME COURT. IT IS STATED THAT THE EMPLOYEE IS BEING RESTORED TO THE POSITION HE HELD AT THE TIME OF THE SUSPENSION AND FOR THE PERIOD OF THE SUSPENSION. WE INFORMALLY HAVE ASCERTAINED THAT MR. OSIPOVICH'S RESIGNATION ACTUALLY WAS EFFECTIVE CLOSE OF BUSINESS ON MARCH 19, 1954, RATHER THAN APRIL 1, 1954, AS STATED ABOVE.

IN VIEW OF SUCH RESTORATION ACTION WE WOULD HAVE NO OBJECTION TO YOUR REGARDING THE EMPLOYEE AS ENTITLED TO COMPENSATION (LESS INTERIM EARNINGS, IF ANY) UNDER THE ACT OF AUGUST 26, 1950, 64 STAT. 476, FOR THE PERIOD OF HIS SUSPENSION, THAT IS, TO CLOSE OF BUSINESS ON MARCH 19, 1954, WHEN HE VOLUNTARILY RESIGNED FROM THE SERVICE. HOWEVER, BECAUSE OF MR. OSIPOVICH'S RETIREMENT FOR DISABILITY AND BEFORE THE ALLOWANCE OF ANY COMPENSATION A DETERMINATION SHOULD BE MADE AS TO WHETHER MR. OSIPOVICH WAS READY, WILLING, AND ABLE TO PERFORM THE SERVICES OF THE POSITION FROM WHICH SUSPENDED FOR WHICH COMPENSATION IS OTHERWISE ALLOWABLE. IF IT IS FOUND THAT HE IS NOT ENTITLED TO COMPENSATION FOR ANY OR ALL OF THE PERIOD OF SUSPENSION UNDER THE ACT OF AUGUST 26, 1950, BECAUSE OF HIS NOT BEING READY, WILLING, AND ABLE TO PERFORM THE DUTIES OF HIS POSITION, THEN CONSIDERATION SHOULD BE GIVEN TO SUBSTITUTION OF SICK LEAVE (IF AVAILABLE) FOR ANY SUCH PERIOD.

WE NOTE THAT SINCE MR. OSIPOVICH RECEIVED COMPENSATION FOR ANNUAL LEAVE THROUGH SEVEN HOURS OF MARCH 9, 1954, THERE DOES NOT APPEAR TO BE REQUIRED ANY ACTUAL PAYMENT OF COMPENSATION FOR THAT PERIOD IF THE EMPLOYEE IS DEEMED TO BE OTHERWISE ENTITLED THERETO. RATHER, A RECREDIT OF ANNUAL LEAVE SHOULD BE MADE NOT IN EXCESS OF THE STATUTORY LIMITATION ON ACCUMULATION OF ANNUAL LEAVE (36 COMP. GEN. 738) AND A LUMP-SUM PAYMENT PROCESSED FOR SUCH ANNUAL LEAVE AS OF CLOSE OF BUSINESS MARCH 19, 1954.