B-121358, OCTOBER 18, 1954, 34 COMP. GEN. 190

B-121358, OCTOBER 18, 1954, 34 COMP. GEN. 190

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION THE FURLOUGHING OF AN EMPLOYEE WITHOUT PAY PENDING ACTION ON APPEAL FROM AN UNSATISFACTORY PERFORMANCE RATING IS "A SUSPENSION FROM THE SERVICE" FOR CAUSE WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF AUGUST 24, 1912, AS AMENDED, SO AS TO ENTITLE THE EMPLOYEE, UPON CHANGE OF RATING TO "SATISFACTORY" AND RESTORATION TO DUTY, TO BACK PAY BENEFITS OF ACT OF JUNE 10, 1948, FOR THE PERIOD HE WAS CARRIED IN A FURLOUGH STATUS.

ACTING COMPTROLLER GENERAL FISHER TO L. W. DARBY, DEPARTMENT OF AGRICULTURE, OCTOBER 18, 1954:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1954, TRANSMITTING A VOUCHER COVERING BACK PAY TO AN EMPLOYEE FOR THE PERIOD APRIL 11, 1954, TO JULY 31, 1954, WHEN HE WAS ADMINISTRATIVELY CARRIED IN A FURLOUGH WITHOUT- PAY STATUS PENDING OUTCOME OF A PERFORMANCE RATING APPEAL, AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.

YOUR LETTER STATES THAT THE EMPLOYEE RECEIVED A PERFORMANCE RATING OF "UNSATISFACTORY" ON JANUARY 12, 1954, FROM WHICH HE APPEALED UNDER THE DEPARTMENT OF AGRICULTURE ADMINISTRATIVE APPEALS PROCEDURE; THAT THE INITIAL RATING WAS SUSTAINED BY THE ADMINISTRATIVE APPELLATE BODY BUT THE EMPLOYEE FURTHER APPEALED TO THE APPROPRIATE STATUTORY BOARD OF REVIEW; THAT FOLLOWING THE DECISION OF THE ADMINISTRATIVE BODY AND THE EMPLOYEE'S APPEAL TO THE STATUTORY BOARD OF REVIEW, IT WAS ADMINISTRATIVELY DETERMINED TO PLACE HIM IN A FURLOUGH WITHOUT PAY STATUS BEGINNING APRIL 9, 1954, PENDING THE OUTCOME OF SUCH FURTHER APPEAL; THAT THE FURLOUGH ACTION WAS TAKEN IN ORDER TO FILL THE EMPLOYEE'S POSITION WITH ANOTHER EMPLOYEE WHO COULD COPE WITH THE ANTICIPATED PEAK/LOAD SEASON REQUIRING NUMEROUS REPORTS OF WHICH TYPE OF SERVICE IT APPARENTLY WAS FELT THE INCUMBENT EMPLOYEE WAS INCAPABLE OF PREPARING AND, ALSO, BECAUSE OF THE FEELING THAT THE APPEAL TO THE STATUTORY BOARD OF REVIEW WOULD BE PENDING FOR SEVERAL MONTHS.

THE DECISION OF THE BOARD OF REVIEW WAS RECEIVED BY THE ADMINISTRATIVE OFFICE ON JULY 26, 1954, WHEREIN THE EMPLOYEE'S RATING WAS CHANGED FROM "UNSATISFACTORY" TO "SATISFACTORY," AND IN CONSEQUENCE THEREOF THE EMPLOYEE WAS RESTORED TO DUTY ON AUGUST 2, 1954.

YOU EXPRESS DOUBT WHETHER THE "FURLOUGH" IN THIS CASE SHOULD BE REGARDED AS A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, AND IF IT BE SO REGARDED, WHETHER THE RECALL OF THE EMPLOYEE TO DUTY CONSTITUTED A RESTORATION UPON THE GROUNDS THAT THE EMPLOYEE'S SUSPENSION WAS "UNJUSTIFIED OR UNWARRANTED" AS CONTEMPLATED BY THAT ACT.

THIS OFFICE HAS RECOGNIZED THAT "LEAVE WITHOUT PAY" MAY IN CERTAIN SITUATIONS CONSTITUTE A ,SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE REFERRED-TO ACT. 32 COMP. GEN. 390. ALSO, AS STATED IN OFFICE DECISION OF FEBRUARY 6, 1951, 30 COMP. GEN. 342, THE TERM "SUSPENSION FROM THE SERVICE" AS USED IN THE ACT OF AUGUST 24, 1912, AS AMENDED, PRIMARILY IS CONCERNED WITH CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT.

IN THIS CASE THE EMPLOYEE WAS NOT "FURLOUGHED" BECAUSE OF LACK OF WORK, WHICH IS THE CONNOTATION ORDINARILY ATTACHED TO THAT WORD IN PERSONNEL ACTIONS, BUT RATHER, WAS PLACED ON LEAVE WITHOUT PAY FOR CAUSE, NAMELY, BECAUSE OF THE BELIEF THAT THE EMPLOYEE WAS NOT QUALIFIED TO PERFORM THE DUTIES OF HIS POSITION. VIEWED IN THAT LIGHT IT WOULD FOLLOW THAT THE ACTION IN PLACING THE EMPLOYEE ON ,FURLOUGH" OR LEAVE WITHOUT PAY WAS IN FACT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE 1948 ACT. MOREOVER, IT REASONABLY MAY BE CONCLUDED HERE THAT SINCE THE EMPLOYEE'S PERFORMANCE RATING WAS CHANGED TO "SATISFACTORY" BY THE BOARD OF REVIEW--- CONSTITUTING IN EFFECT A DETERMINATION THAT HE WAS QUALIFIED FOR HIS POSITION--- HIS RESTORATION TO DUTY ACTUALLY WAS UPON THE GROUND THAT HIS SUSPENSION WAS "UNJUSTIFIED OR UNWARRANTED" AS THOSE WORDS ARE USED IN THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948. SEE 28 COMP. GEN. 200, ANSWER TO QUESTION 5.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.