B-177790, JUN 6, 1973

B-177790, JUN 6, 1973

NO BASIS EXISTS FOR REGARDING RESIGNATION OF CLAIMANT AS INVOLUNTARY FOR PURPOSES OF SEVERANCE PAY FROM BUREAU OF INDIAN AFFAIRS INTERIOR DEPARTMENT.

TO MR. MARLOWE E. HALBUR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1973, IN RESPONSE TO OUR DECISION B-177790, DATED MARCH 15, 1973, WHICH DENIED YOUR CLAIM FOR SEVERANCE PAY INCIDENT TO YOUR RESIGNATION FROM EMPLOYMENT WITH THE BUREAU OF INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR.

YOU QUESTION THE ACCURACY OF CERTAIN STATEMENTS IN OUR DECISION. IN THAT CONNECTION WE BELIEVE IT APPROPRIATE TO QUOTE THE SUBSTANCE OF AN OFFICIAL REPORT DATED AUGUST 31, 1972, WHICH WE RECEIVED FROM THE BUREAU OF INDIAN AFFAIRS:

MR. HALBUR SUBMITTED HIS RESIGNATION ON MAY 4, 1971 MARKING THE SF-52 WITH A NOTATION THAT HIS RESIGNATION WAS "INVOLUNTARY." HE WAS NOT ASKED TO RESIGN. IT WAS HIS OWN DECISION IN SPITE OF PERSONAL DISCUSSIONS WITH HIM THAT HE COULD CONTINUE IN HIS JOB, AND THAT HE WOULD BE GRANTED SICK LEAVE IF HE MADE APPLICATION WITH PROPER MEDICAL CERTIFICATION. THE POSSIBILITY OF APPLYING FOR DISABILITY RETIREMENT WAS THOROUGHLY DISCUSSED WITH HIM THOUGH HE DID NOT FILE FOR DISABILITY RETIREMENT THROUGH THE BUREAU.

THE REASONS FOR MR. HALBUR'S RESIGNATION ARE NOT CLEAR, BUT APPARENTLY HE BECAME UNHAPPY WHEN HE WAS RATED INELIGIBLE FOR THE POSITION OF ELEMENTARY PRINCIPAL AT CHEYENNE EAGLE BUTT SCHOOL WITHIN OUR ABERDEEN AREA. THIS RATING WAS THE RESULT OF A CHECK WITH THE OFFICE OF CERTIFICATION, SOUTH DAKOTA STATE DEPARTMENT OF PUBLIC INSTRUCTION. THEIR RECORDS SHOWED THAT AT THAT TIME MR. HALBUR WAS TEACHING WITH A SECONDARY CERTIFICATE. IT IS THE RESPONSIBILITY OF EACH TEACHER TO MAINTAIN CURRENT RECORDS WITH THE CERTIFICATION SECTION. THIS DEFICIENCY WAS POINTED OUT TO MR. HALBUR.

ON MAY 4, 1971, MR. HALBUR MET WITH DR. LEROY STERN WHO WAS THEN THE DEPUTY ASSISTANT AREA DIRECTOR FOR EDUCATION AT OUR ABERDEEN OFFICE. WHEN MR. HALBUR OFFERED DR. STERN HIS RESIGNATION, HE ASKED WHEN HE WOULD RECEIVE HIS SEVERANCE PAY. DR. STERN EXPLAINED TO HIM THAT NO ONE HAD ASKED HIM TO RESIGN; THAT IT WAS A VOLUNTARY RESIGNATION, THUS HE WOULD NOT BE ENTITLED TO SEVERANCE PAY. MR. HALBUR THEN INFORMED DR. STERN THAT IT WAS INVOLUNTARY AND WROTE "THIS IS INVOLUNTARY" ON THE BACK OF HIS SF- 52. WE BELIEVE THAT HIS RESIGNATION WAS ENTIRELY VOLUNTARY.

IN ADDITION TO THE ABOVE THE FOLLOWING IS QUOTED FROM A LETTER DATED MAY 7, 1971, FROM MR. CECIL TODD, EDUCATION PROGRAM ADMINISTRATOR:

BASIS FOR MR. HALBUR'S RESIGNATION SEEM TO BE RATHER HAZY, BUT HE BECAME UNHAPPY WHEN HE WAS DECLARED INELIGIBLE FOR THE POSITION OF ELEMENTARY PRINCIPAL, CHEYENNE-EAGLE BUTTE SCHOOL.

BEFORE THE CERTIFICATE WAS MAILED FROM THE AREA OFFICE, HIS QUALIFICATIONS WERE CHECKED AT THE OFFICE OF CERTIFICATION, SOUTH DAKOTA STATE DEPARTMENT OF PUBLIC INSTRUCTION. IT WAS DISCOVERED AT THAT TIME THAT MR. HALBUR WAS TEACHING WITH A SECONDARY CERTIFICATE. THE FILE WHICH IS KEPT IN CERTIFICATION IS THE SOLE RESPONSIBILITY OF THE INDIVIDUAL FOR UPKEEP. THIS WAS POINTED OUT TO MR. HALBUR AND HE PROCEEDED TO GET HIS FILE IN ORDER. AFTER SOME WORK ON HIS PART IN BRINGING HIS FILE UP TO DATE, HE WAS CERTIFIED FOR ELEMENTARY AS A TEACHER, BUT NOT AS A PRINCIPAL. HOWEVER, THE CERTIFICATE (COVERING ANNOUNCED VACANCY) WAS SENT BACK TO THE AREA OFFICE BECAUSE OF A LACK OF QUALIFIED APPLICANTS AND WAS READVERTISED. THIS WOULD HAVE GIVEN HIM ANOTHER CHANCE TO APPLY AS IT CLOSED 5/7/71, WHICH WAS AFTER HIS RESIGNATION. THE ABOVE FACTS WERE EXPLAINED TO MR. MARLOWE HALBUR, FRIDAY AFTERNOON, APRIL 30.

IN VIEW OF THE ABOVE AND REGARDLESS OF THE CONTROVERSY CONCERNING YOUR TEACHING CERTIFICATE, WE DO NOT BELIEVE ANY BASIS EXISTS FOR REGARDING YOUR RESIGNATION AS INVOLUNTARY FOR THE PURPOSE OF SEVERANCE PAY. ACCORDINGLY, OUR DECISION DATED MARCH 15, 1973, MUST BE AFFIRMED.