B-189721, SEP 29, 1977, 56 COMP GEN 1014

B-189721, SEP 29, 1977, 56 COMP GEN 1014

LEAVES OF ABSENCE - ANNUAL - SUBSTITUTION FOR RESTORED LEAVE EMPLOYEE WITH RESTORED ANNUAL LEAVE REQUESTED THAT ABSENCE BE CHARGED TO RESTORED LEAVE ACCOUNT. ABSENCE WAS INSTEAD CHARGED TO ANNUAL LEAVE AND EMPLOYEE FORFEITED RESTORED LEAVE AT END OF 2 YEARS. AGENCY ERRED IN FAILING TO CHARGE RESTORED LEAVE ACCOUNT AND SHOULD CORRECT ITS RECORDS BY SUBSTITUTING RESTORED LEAVE FOR ANNUAL LEAVE.

IN THE MATTER OF ROBERT D. MCFARREN - FAILURE TO CHARGE RESTORED LEAVE ACCOUNT, SEPTEMBER 29, 1977:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM MATILDA T. MORTON, CHIEF, PAYROLL OPERATIONS, FEDERAL ENERGY ADMINISTRATION (FEA), REGARDING THE RESTORATION OF FORFEITED LEAVE TO ROBERT D. MCFARREN, AN FEA EMPLOYEE.

THE RECORD INDICATES THAT DUE TO THE EXIGENCIES OF PUBLIC BUSINESS, MR. MCFARREN HAD FORFEITED ANNUAL LEAVE WHICH WAS RESTORED UNDER THE PROVISIONS OF 5 U.S.C. 6304(D) (SUPP. V, 1975). THIS LEAVE WAS PLACED IN A RESTORED LEAVE ACCOUNT AND WAS TO BE USED BY THE END OF LEAVE YEAR 1976. SEE 5 C.F.R. 630.306 (1977). THE RECORD INDICATES FURTHER THAT PRIOR TO TAKING AN EXTENDED VACATION IN JULY AND AUGUST OF 1976, MR. MCFARREN ASKED HIS TIMEKEEPER TO CHARGE HIS RESTORED LEAVE ACCOUNT (146 HOURS) DURING HIS ABSENCE WITH THE REMAINDER OF HIS VACATION (30 HOURS) TO BE CHARGED TO ANNUAL LEAVE. MR. MCFARREN SIGNED THE SF-71 APPLICATION FOR LEAVE FORMS UNDER THE ASSUMPTION THAT HIS RESTORED LEAVE BALANCE WOULD BE CHARGED. WHEN IT APPEARED LATER THAT THE ENTIRE 176 HOURS HAD BEEN CHARGED TO ANNUAL LEAVE, MR. MCFARREN REQUESTED A CLARIFICATION AND LATER AN AUDIT OF HIS LEAVE ACCOUNT. THE AUDIT WAS NOT COMPLETED UNTIL FEBRUARY 1977, AT WHICH TIME FEA DETERMINED THAT HIS RESTORED LEAVE ACCOUNT HAD NOT BEEN CHARGED AND MR. MCFARREN HAD FORFEITED 146 HOURS OF RESTORED LEAVE. MR. MCFARREN'S REQUEST FOR RESTORATION WAS DENIED ADMINISTRATIVELY.

WITH THE ENACTMENT OF PUBLIC LAW 93-181, 87 STAT. 706 (1973), 5 U.S.C. 5551, ANNUAL LEAVE WHICH IS FORFEITED UNDER CERTAIN CONDITIONS MAY BE RESTORED TO THE EMPLOYEE AND PLACED IN A SEPARATE LEAVE ACCOUNT. THE CIVIL SERVICE COMMISSION GUIDELINES FOR THE IMPLEMENTATION OF PUBLIC LAW 93-181 ARE CONTAINED IN FEDERAL PERSONNEL MANUAL LETTER NO. 630-22, JANUARY 11, 1974, AND THOSE GUIDELINES PROVIDE THAT EACH AGENCY SHALL ESTABLISH RECORD KEEPING AND ADMINISTRATIVE PROCEDURES FOR RESTORED LEAVE ACCOUNTS. THE RECORD BEFORE US INDICATES THAT, ALTHOUGH FEA HAD ESTABLISHED PROCEDURES FOR RECORDING CHARGES AGAINST RESTORED LEAVE ACCTOUNTS, MR. MCFARREN'S TIMEKEEPER WAS UNAWARE OF THE PROCEDURES AND ASSUMED THAT THE PROPER CHARGES WOULD BE MADE DURING MR. MCFARREN'S ABSENCE IN JULY AND AUGUST OF 1976. WE HAVE FOUND NOTHING WHICH WOULD INDICATE THAT MR. MCFARREN KNEW OR SHOULD HAVE KNOWN OF THE ERROR SINCE THERE IS NO SPECIFIC CATEGORY ON FEA'S TIME AND ATTENDANCE REPORTS OR LEAVE AND EARNINGS STATEMENTS FOR RESTORED LEAVE. ACCORDINGLY, WE CONCLUDE THAT THE AGENCY ERRED IN FAILING TO PROPERLY CHARGE MR. MCFARREN'S RESTORED LEAVE ACCOUNT AND THAT THE AGENCY SHOULD CORRECT ITS RECORDS BY SUBSTITUTING RESTORED LEAVE FOR ANNUAL LEAVE FOR THE ABSENCE IN QUESTION. THIS CORRECTIVE ACTION WOULD CAUSE MR. MCFARREN TO FORFEIT EXCESS ANNUAL LEAVE IN LEAVE YEAR 1976, BUT WE NOTE THAT HE REQUESTED 114 HOURS OF ANNUAL LEAVE IN NOVEMBER AND DECEMBER, 1976, AND WAS DENIED SUCH LEAVE DUE TO THE EXIGENCIES OF PUBLIC BUSINESS. ANNUAL LEAVE WHICH WOULD NOW BE CONSIDERED FORFEITED IN LIGHT OF THIS DECISION WOULD APPEAR TO BE SUBJECT TO RESTORATION UNDER 5 U.S.C. 6304(D)(1) (B) (SUPP. V, 1975).