B-119989, JUNE 18, 1954, 33 COMP. GEN. 597

B-119989, JUNE 18, 1954, 33 COMP. GEN. 597

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - FAILURE TO KEEP LEAVE RECORD A FORMER ASSISTANT UNITED STATES ATTORNEY WHO MAINTAINED NEITHER AN ACCEPTABLE OFFICIAL RECORD NOR ANY PERSONAL DIARY OF ABSENCES FROM DUTY, WHICH NORMALLY WOULD HAVE BEEN CHARGED AGAINST EARNED ANNUAL LEAVE, IS NOT ENTITLED UPON SEPARATION TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE ESTIMATED TO BE DUE ON THE BASIS OF HIS RECOLLECTION EXTENDING OVER A PERIOD OF MORE THAN TEN YEARS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE ATTORNEY GENERAL, JUNE 18, 1954:

REFERENCE IS MADE TO THE ASSISTANT ATTORNEY GENERAL'S LETTER OF MAY 5, 1954, REQUESTING A DECISION AS TO WHETHER, UNDER CIRCUMSTANCES RELATED BELOW, MR. EDWARD J. LONERGAN, A FORMER ASSISTANT UNITED STATES ATTORNEY, WHO SERVED FROM JULY 1943 THROUGH JANUARY 29, 1954, IS ENTITLED TO PAYMENT FOR 484 HOURS OF ANNUAL LEAVE CLAIMED TO HAVE ACCUMULATED TO HIS CREDIT, OR FOR ANY PART THEREOF.

THE FACTS IN THE CASE AS REPORTED BY THE ASSISTANT ATTORNEY GENERAL ARE AS FOLLOWS:

IT HAD BEEN ESTABLISHED THAT MR. LONERGAN DEVOTED APPROXIMATELY 40 HOURS PER WEEK TO HIS OFFICIAL DUTIES COUNTING OVERTIME, DUTIES PERFORMED OUTSIDE THE OFFICE, ETC. AT THE TIME OF THE REPORT DEVELOPING THE FOREGOING THE EXAMINER HAD ONLY A SHORT OPPORTUNITY TO OBSERVE HIS ATTENDANCE AT THE OFFICE. ON SEVERAL MORNINGS HE ARRIVED LATE AND DEPARTED EARLIER THAN THE CLOSING HOURS OF THE OFFICE. ANOTHER REPORT INDICATED THAT THIS ASSISTANT, ALONG WITH OTHERS, OCCASIONALLY ABSENTED THEMSELVES FROM THE OFFICE DURING REGULAR WORKING HOURS. THE REASONS THEREFOR WERE NOT KNOWN. IT FURTHER APPEARED THAT NOTATIONS WERE NOT MADE ON LEAVE RECORDS UNLESS THE LEAVE CLERK WAS SO INSTRUCTED.

UNDER THE ABOVE QUOTED FACTUAL CIRCUMSTANCES, IT WAS ADMINISTRATIVELY DETERMINED THAT MR. LONERGAN SHOULD BE REQUIRED TO SUBMIT AN AFFIDAVIT CONCERNING HIS ATTENTION TO OFFICIAL DUTIES. THE AFFIDAVIT FURNISHED BY HIM WAS NOT UNQUALIFIED AND IS STATED TO HAVE BEEN EXPLAINED BY MR. LONERGAN AS FOLLOWS:

ENCLOSED HEREWITH PLEASE FIND EXECUTED " AFFIDAVIT CONCERNING ATTENTION TO OFFICIAL DUTIES" IN WHICH I HAVE INSERTED THE WORD "SUBSTANTIALLY" BEFORE "FULL TIME.' AS YOU ARE AWARE, WHEN MY APPOINTMENT WAS MADE TO THIS OFFICE, IT WAS ON A PART TIME BASIS, AND THE SERVICES WERE PAID FOR ON SUCH BASIS. EXCEPT WHEN ON LEAVE, I HAVE ALWAYS BEEN AVAILABLE TO ANY DEPARTMENT OR AGENCY OF THE GOVERNMENT EVERY DAY IN THE WEEK. I HAVE OFTEN RECEIVED CALLS FROM THE F.B.I. AGENTS AND THE INTERNAL REVENUE EMPLOYEES CONCERNING CASES AT ALL HOURS BETWEEN 7 A.M. AND 11 P.M. MANY TIMES I HAVE ATTENDED TO THE OFFICIAL DUTIES OF THE OFFICE ON SATURDAYS, SUNDAYS AND EVENINGS. DURING MANY WEEKS THE TIME PUT IN EXCEEDED FORTY HOURS, AND IN OTHER WEEKS IT HAS BEEN LESS. NO ACTUAL ACCOUNT OF THE HOURS HAS EVER BEEN KEPT BY ME, BUT I FEEL THAT THE AFFIDAVIT AS EXECUTED REPRESENTS A FAIR STATEMENT OF THE SITUATION. HOWEVER, I AM PERFECTLY WILLING TO ALLOW THE ADJUSTMENT OF THE ACCRUED ANNUAL LEAVE TO YOUR DISCRETION.

IT IS EVIDENT FROM THE FOREGOING THAT THE QUANTITY OF ANNUAL LEAVE TO MR. LONERGAN'S CREDIT AT THE TIME OF HIS SEPARATION FROM THE SERVICE MUST HAVE BEEN ESTIMATED BY HIM UPON THE BASIS OF HIS RECOLLECTION EXTENDING OVER A PERIOD OF MORE THAN TEN YEARS, THERE APPARENTLY HAVING BEEN MAINTAINED NEITHER AN ACCEPTABLE OFFICIAL RECORD NOR ANY PERSONAL DIARY BY THE EMPLOYEE OF ANY ABSENCES FROM DUTY WHICH NORMALLY WOULD HAVE BEEN CHARGEABLE AGAINST EARNED ANNUAL LEAVE.

A SOMEWHAT SIMILAR SITUATION EXISTED IN THE JUDICIARY WITH RESPECT TO LAW CLERKS AND SECRETARIES TO JUDGES BUT IN 1949 REMEDIAL STEPS WERE TAKEN. EXCERPTS FROM BULLETIN NO. 382, DECEMBER 29, 1949, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, SHOW THAT RECOMMENDATIONS RELATIVE TO ANNUAL LEAVE RECORDS WERE ADOPTED BY THE JUDICIAL CONFERENCE OF SEPTEMBER 22 TO 24, 1949, AS FOLLOWS:

LAW CLERKS AND SECRETARIES--- ANNUAL AND SICK LEAVE--- THE CONFERENCE WAS ADVISED THAT UNDER THE RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES IT IS NECESSARY, IN ORDER FOR THESE EMPLOYEES TO BE ELIGIBLE TO RECEIVE LUMP-SUM PAYMENTS FOR THEIR ACCUMULATED ANNUAL LEAVE, THAT PROPER RECORDS SHOWING THE NUMBER OF HOURS WORKED, THE AMOUNT OF LEAVE EARNED, THE AMOUNT OF LEAVE TAKEN, ETC., BE MAINTAINED ON A CURRENT BASIS. IT WAS THE VIEW OF THE COMMITTEE THAT BECAUSE OF THE VARIANT AND PECULIAR CIRCUMSTANCES INCIDENT TO EMPLOYMENT OF THIS TYPE, IT WAS NOT DESIRABLE TO INAUGURATE A SYSTEM WHEREBY RIGID HOURS MUST BE ADHERED TO, BUT, IF THESE EMPLOYEES ARE TO RECEIVE SUCH BENEFITS, COMPLIANCE WITH THE RULINGS OF THE COMPTROLLER GENERAL IS A PRIME REQUISITE, AND, THEREFORE, PROPER LEAVE RECORDS, KEPT ON A CURRENT BASIS, MUST BE MAINTAINED.

PURSUANT TO THE RECOMMENDATIONS OF THE COMMITTEE, WHICH WERE ADOPTED BY THE CONFERENCE, THE DIRECTOR WAS INSTRUCTED NOT TO APPROVE CLAIMS FOR ACCUMULATED LEAVE BENEFITS UNLESS THE CLAIMS ARE SUPPORTED BY PROPER RECORDS, KEPT IN THE REGULAR COURSE OF BUSINESS, AND SUCH RECORDS ARE PRODUCED FROM TIME TO TIME FOR INSPECTION BY THE EXAMINERS OF THE OFFICES OF THE COURTS.

THE CONFERENCE FURTHER DIRECTED THAT THE DIRECTOR INFORM THE VARIOUS JUDGES CONCERNED THAT CLAIMS FOR LUMP-SUM PAYMENTS FOR FUTURE ACCUMULATIONS OF LEAVE WILL NOT BE APPROVED BY HIM WHERE THE REQUIRED RECORDS ARE NOT MAINTAINED.

THE LANGUAGE QUOTED ABOVE AMPLY EXPRESSES WHAT HAS BEEN THE CONSISTENT VIEW OF THIS OFFICE WITH RESPECT TO THE REQUIREMENT FOR THE MAINTENANCE OF LEAVE RECORDS, AND WHILE THIS OFFICE DOES NOT QUESTION THE GOOD FAITH OF MR. LONERGAN IN THE MATTER, IT CAN REACH NO OTHER CONCLUSION THAN THAT HIS ESTIMATE OF THE ANNUAL LEAVE TO HIS CREDIT IS TOO SPECULATIVE ON THE EXISTING RECORD TO WARRANT THE AUTHORIZATION OF A LUMP-SUM PAYMENT FOR ANY PART THEREOF. ACCORDINGLY, THE QUESTIONS PRESENTED BY THE ASSISTANT ATTORNEY GENERAL ARE ANSWERED IN THE NEGATIVE.