B-176932, NOV 24, 1972, 52 COMP GEN 291

B-176932: Nov 24, 1972

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COMPENSATION - SEVERANCE PAY - ELIGIBILITY - NATURE OF APPOINTMENT THE SUPERINTENDENT-PRINCIPAL OF AN AIR FORCE DEPENDENTS' SCHOOL WHOSE EMPLOYMENT UNDER 20 U.S.C. 241(A) FOR A PERIOD OF APPROXIMATELY 10 YEARS WAS TERMINATED ON THE BASIS OF MANAGEMENT'S PREROGATIVE NOT TO EMPLOY AS PROVIDED IN PARAGRAPH 8B. IS ENTITLED TO THE SEVERANCE PAY PRESCRIBED BY 5 U.S.C. 5595. EVEN THOUGH HE WAS GRANTED LIMITED ACCESS TO PROCEDURAL RIGHTS. WAS INVOLUNTARILY SEPARATED FROM THE SERVICE. WAS TERMINATED ON THE BASIS OF MANAGEMENT'S PREROGATIVE NOT TO REEMPLOY UNDER THE AUTHORITY OF PARAGRAPH 8B. CROLEY'S EMPLOYMENT WAS TERMINATED EFFECTIVE JUNE 30. HE WAS SUPERINTENDENT-PRINCIPAL OF THE TYNDALL ELEMENTARY SCHOOL.

B-176932, NOV 24, 1972, 52 COMP GEN 291

COMPENSATION - SEVERANCE PAY - ELIGIBILITY - NATURE OF APPOINTMENT THE SUPERINTENDENT-PRINCIPAL OF AN AIR FORCE DEPENDENTS' SCHOOL WHOSE EMPLOYMENT UNDER 20 U.S.C. 241(A) FOR A PERIOD OF APPROXIMATELY 10 YEARS WAS TERMINATED ON THE BASIS OF MANAGEMENT'S PREROGATIVE NOT TO EMPLOY AS PROVIDED IN PARAGRAPH 8B, SECTION 9833, AIR FORCE CIVILIAN PERSONNEL MANUAL, IS ENTITLED TO THE SEVERANCE PAY PRESCRIBED BY 5 U.S.C. 5595. THE EMPLOYEE HELD AN INDEFINITE TENURE APPOINTMENT, EVEN THOUGH HE WAS GRANTED LIMITED ACCESS TO PROCEDURAL RIGHTS, AND WAS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, REQUIREMENTS THAT ESTABLISH ELIGIBILITY TO RECEIVE THE SEVERANCE PAY PROVIDED BY 5 U.S.C. 5595.

TO CAPTAIN M. E. RILEY, DEPARTMENT OF THE AIR FORCE, NOVEMBER 24, 1972:

YOUR LETTER OF JULY 31, 1972, REFERENCE ACF, WITH ENCLOSURES, FORWARDED TO THIS OFFICE BY LETTER OF AUGUST 30, 1972, REFERENCE ACF (XSP), FROM THE DIRECTOR, PLANS AND SYSTEMS ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE (HQ USAF), DEPARTMENT OF THE AIR FORCE, REQUESTS OUR DECISION AS TO WHETHER YOU MAY PROCESS FOR PAYMENT THE ENCLOSED VOUCHER REPRESENTING SEVERANCE PAY FOR MR. RANDAL D. CROLEY, WHOSE EMPLOYMENT AT THE AIR FORCE SECTION 6 DEPENDENTS' SCHOOL, TYNDALL AIR FORCE BASE, FLORIDA, WAS TERMINATED ON THE BASIS OF MANAGEMENT'S PREROGATIVE NOT TO REEMPLOY UNDER THE AUTHORITY OF PARAGRAPH 8B, SECTION 9833, AIR FORCE CIVILIAN PERSONNEL MANUAL (AFM 40-1).

MR. CROLEY'S EMPLOYMENT WAS TERMINATED EFFECTIVE JUNE 30, 1972. FROM OCTOBER 15, 1961, THROUGH THIS DATE, HE WAS SUPERINTENDENT-PRINCIPAL OF THE TYNDALL ELEMENTARY SCHOOL. HE WAS EMPLOYED UNDER THE AUTHORITY OF 20 U.S.C. 241(A), WHICH PROVIDES IN PERTINENT PART:

IN THE CASE OF CHILDREN WHO RESIDE ON FEDERAL PROPERTY -

(1) IF NO TAX REVENUES OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF MAY BE EXPENDED FOR THE FREE PUBLIC EDUCATION OF SUCH CHILDREN; OR

(2) IF IT IS THE JUDGMENT OF THE COMMISSIONER, AFTER HE HAS CONSULTED WITH THE APPROPRIATE STATE EDUCATIONAL AGENCY, THAT NO LOCAL EDUCATIONAL AGENCY IS ABLE TO PROVIDE SUITABLE FREE PUBLIC EDUCATION FOR SUCH CHILDREN,

THE COMMISSIONER SHALL MAKE SUCH ARRANGEMENTS *** AS MAY BE NECESSARY TO PROVIDE FREE PUBLIC EDUCATION FOR SUCH CHILDREN.

*** FOR THE PURPOSE OF PROVIDING SUCH COMPARABLE EDUCATION, PERSONNEL MAY BE EMPLOYED AND THE COMPENSATION, TENURE, LEAVE, HOURS OF WORK, AND OTHER INCIDENTS OF THE EMPLOYMENT RELATIONSHIP MAY BE FIXED WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES AND THE FOLLOWING: (1) THE CLASSIFICATION ACT OF 1949, AS AMENDED; (2) THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED; (3) THE FEDERAL EMPLOYEES' PAY ACT OF 1945, AS AMENDED; (4) THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED; AND (5) THE PERFORMANCE RATING ACT OF 1950, AS AMENDED.***.

YOUR LETTER ALSO STATES THAT:

*** HE WAS AN EXCEPTED EMPLOYEE AS DEFINED BY PARA 1-1B, SUBCHAPTER 1, CHAPTER 213-3, FEDERAL PERSONNEL MANUAL, AND WAS EMPLOYED UNDER AN ANNUAL CONTRACT SUBJECT TO RENEWAL. THE MOST RECENT CONTRACT WAS EFFECTIVE 1 JULY 1971 THROUGH 30 JUNE 1972(ATCH 1). HE WAS AN EMPLOYEE WITH TENURE AS DEFINED IN PARA 4B(3), AF 3612, AFM 40-1.

THE BASIS FOR THE AUTHORITY TO PAY SEVERANCE PAY IS FOUND IN 5 U.S.C. 5595 WHICH PROVIDES IN PERTINENT PART:

(A) FOR THE PURPOSE OF THIS SECTION -

(2) "EMPLOYEE" MEANS -

(A) AN INDIVIDUAL EMPLOYED IN OR UNDER AN AGENCY *** BUT DOES NOT INCLUDE

(II) AN EMPLOYEE SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION, EXCEPT ONE SO APPOINTED FOR FULL-TIME EMPLOYMENT WITHOUT A BREAK IN SERVICE OF MORE THAN 3 DAYS FOLLOWING SERVICE UNDER AN APPOINTMENT WITHOUT TIME LIMITATION;

(B) UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, AN EMPLOYEE WHO -

(1) HAS BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF AT LEAST 12 MONTHS; AND

(2) IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY;

IS ENTITLED TO BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE AGENCY FROM WHICH SEPARATED.

ALTHOUGH IT IS STATED THAT MR. CROLEY IS "EMPLOYED UNDER AN ANNUAL CONTRACT SUBJECT TO RENEWAL," WE NOTE THAT THE "EMPLOYMENT CONDITIONS" (APPARENTLY REFERRED TO AS A CONTRACT) ISSUED BY THE BOARD OF EDUCATION, TYNDALL ELEMENTARY SCHOOL, AND IN EFFECT AT THE TIME HERE INVOLVED CONTAINED THE FOLLOWING PROVISION: "YOUR APPOINTMENT TO THE POSITION IS OF INDEFINITE TENURE. IN THE EVENT YOUR SERVICES ARE NOT DESIRED BY THE GOVERNMENT FOR THE SUCCEEDING SCHOOL YEAR YOU WILL BE ADVISED ON OR BEFORE JUNE 1, 1972." IT SEEMS TO US THAT THE "RENEWAL" PROCEDURE AS CONTAINED IN SUCH "EMPLOYMENT CONDITIONS" IS IN REALITY A RESERVATION TO THE AGENCY OF A RIGHT TO DISCONTINUE THE EMPLOYEE'S EMPLOYMENT WITHOUT HAVING TO RESORT TO ADVERSE ACTION OR GRIEVANCE PROCEDURES WHICH ARE OTHERWISE REQUIRED BY THE AGENCY'S REGULATIONS. SEE PARAGRAPH 8D(4), SECTION 9833, AFM 40-1. THE AGENCY COULD HAVE DRAFTED THE REGULATIONS SO AS TO OBVIATE THE REQUIREMENT OF ADVERSE ACTION AND GRIEVANCE PROCEDURES IN ALL CASES. THAT THE EMPLOYEE IS GRANTED LIMITED ACCESS TO THESE PROCEDURAL RIGHTS SHOULD NOT ALTER THE NATURE OF HIS APPOINTMENT SO AS TO DEPRIVE HIM OF HIS RIGHT TO SEVERANCE PAY WHEN THE INTENT OF THE REGULATIONS IS CLEARLY THAT THE EMPLOYEE IS BEING HIRED FOR A "CONTINUING POSITION" AND THAT HE BE GIVEN AN "INDEFINITE EXCEPTED APPOINTMENT." SEE PARAGRAPH 8C(1), SECTION 9833, AFM 40-1. APPARENTLY IN MOST CASES INCLUDING MR. CROLEY'S, EMPLOYEES SERVE FOR A NUMBER OF YEARS IN THESE POSITIONS. IT SHOULD ALSO BE NOTED THAT THE "RENEWAL" PROCEDURE IS NOT THE ONLY BASIS FOR A SEPARATION IN WHICH THE EMPLOYEE HAS NO RIGHT TO ADVERSE ACTION OR GRIEVANCE PROCEDURES. AN EMPLOYEE MAY ALSO BE SEPARATED, APPARENTLY AT ANY TIME DURING THE YEAR, WITHOUT APPEAL RIGHTS IF HIS POSITION IS ABOLISHED FOR SUCH REASONS AS CLOSING THE SCHOOL, REDUCED BUDGET REQUIREMENTS, OR LESS POSITIONS REQUIRED BECAUSE OF LOWER SCHOOL ENROLLMENT THAN ANTICIPATED. SEE PARAGRAPH 8D(1), SECTION 9833, AFM 40 1. ON THE BASIS OF THE FOREGOING, IT IS OUR VIEW THAT FOR THE PURPOSES OF THE SEVERANCE PAY REGULATIONS MR. CROLEY WAS NOT AN EMPLOYEE "SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION."

AS A FURTHER CONDITION OF ELIGIBILITY FOR SEVERANCE PAY, MR. CROLEY MUST HAVE BEEN "INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY." THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT THE REASON GIVEN FOR MR. CROLEY'S SEPARATION, THAT IS, "MANAGEMENT'S PREROGATIVE NOT TO REEMPLOY," SHOULD BE CHARACTERIZED AS OTHER THAN INVOLUNTARY. LIKEWISE, THERE APPEARS TO BE NOTHING IN THE RECORD FROM WHICH IT COULD BE CONCLUDED THAT MR. CROLEY WAS REMOVED FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. ON SUCH BASIS MR. CROLEY WOULD BE ELIGIBLE FOR SEVERANCE PAY UNDER THE PROVISIONS OF 5 U.S.C. 5595. SEE OUR DECISION OF JUNE 14, 1971, B-172682, COPY ENCLOSED.

ACCORDINGLY, THE VOUCHER RETURNED HEREWITH MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.

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