B-129503, DECEMBER 3, 1956, 36 COMP. GEN. 447

B-129503, DECEMBER 3, 1956, 36 COMP. GEN. 447

FOREIGN SERVICE - UNITED STATES AND LOCAL HOLIDAYS - LOCALLY HIRED EMPLOYEES - LUMP-SUM LEAVE PAYMENTS IN VIEW OF THE FACT THAT THE EXCUSING OF LOCAL EMPLOYEES IN THE FOREIGN SERVICE ON UNITED STATES NATIONAL HOLIDAYS AND ON LOCAL HOLIDAYS IS DISCRETIONARY RATHER THAN MANDATORY, SUCH HOLIDAYS MAY NOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENTS DUE LOCAL EMPLOYEES ON SEPARATION FROM THE SERVICE.

TO THE SECRETARY OF STATE, DECEMBER 3, 1956:

IN OUR AUDIT OF VOUCHER NO. 6482, APRIL 1955, ACCOUNTS OF W. G. DOUGHERTY, DEPARTMENT OF STATE, TOKYO, JAPAN, WE STATED AN EXCEPTION AGAINST JESSE E. RAY, AUTHORIZED CERTIFYING OFFICER, ON ACCOUNT OF A LUMP- SUM PAYMENT FOR ANNUAL LEAVE TO A LOCAL EMPLOYEE IN THE FOREIGN SERVICE, THE COMPUTATION OF WHICH PAYMENT INCLUDED OTHER THAN STATUTORY HOLIDAYS. THE ADMINISTRATIVE REPLIES TO THE EXCEPTION DISCLOSE PRACTICES IN THE COMPUTATION OF SUCH PAYMENTS WHICH APPEAR QUESTIONABLE.

THE LUMP-SUM PAYMENT IN QUESTION COVERS CERTAIN JAPANESE LEGAL HOLIDAYS, NAMELY, THE EMPEROR'S BIRTHDAY, CONSTITUTION DAY, AND CHILDREN'S DAY, WHICH OCCURRED ON APRIL 29, AND MAY 3, AND 5, 1955, RESPECTIVELY. THE VOUCHER IN QUESTION, TOGETHER WITH VOUCHER NO. 73, JULY 1955 ACCOUNTS OF BOYCE E. POWELL, DEPARTMENT OF STATE, ATHENS, GREECE, IS REPRESENTATIVE OF OTHER VOUCHERS WHICH COVER LUMP-SUM PAYMENTS TO LOCAL EMPLOYEES IN FOREIGN AREAS INCLUDING PAYMENTS FOR UNITED STATES NATIONAL HOLIDAYS AND LOCAL HOLIDAYS.

TWO REPLIES HAVE BEEN RECEIVED TO THE AUDIT EXCEPTION, ONE DATED FEBRUARY 13, 1956, SIGNED BY W. G. DOUGHERTY, D.O., THE OTHER DATED AUGUST 21, 1956, FROM THE CHIEF, SUSPENSION AND CLAIMS STAFF, OFFICE OF FINANCE. THE RESPECTIVE REPLIES ARE QUOTED BELOW FOR YOUR INFORMATION. THE FIRST IS AS FOLLOWS:

THIS EXCEPTION TO PAYING A LOCAL EMPLOYEE FOR LOCAL HOLIDAYS OCCURRING WITHIN THE PERIOD COVERED BY A LUMP-SUM LEAVE PAYMENT APPEARS INCONSISTENT WITH THE FOREIGN SERVICE MANUAL, PART IV, SECTION 914.45, WHICH STATES: " WHENEVER A LOCAL EMPLOYEE IS SEPARATED FROM THE SERVICE . . . HE SHALL BE PAID COMPENSATION IN A LUMP-SUM FOR ALL ACCRUED AND ACCUMULATED ANNUAL LEAVE TO WHICH HE IS ENTITLED. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF SUCH ANNUAL LEAVE.' (ITALICS SUPPLIED). IF THE EMPLOYEE IN QUESTION HAD REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS ANNUAL LEAVE, HE WOULD HAVE ENJOYED THE LOCAL HOLIDAY IN ACCORDANCE WITH I FSM IV 914.15 WHICH STATES THAT," LOCAL EMPLOYEES MAY BE EXCUSED FROM WORK, WITHOUT LOSS OF PAY OR LEAVE, WHEN SUCH HOLIDAYS FALL WITHIN THEIR BASIC WORK WEEKS.'

IF, ACCORDING TO THIS EXCEPTION, PAYMENT TO LOCAL EMPLOYEES FOR LOCAL HOLIDAYS OCCURRING WITHIN THE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT IS NOT AUTHORIZED, IT WOULD APPEAR THAT THE LUMP-SUM PAYMENT CANNOT EQUAL THE COMPENSATION THAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS ANNUAL LEAVE AND THE EXCEPTION IS THEREFORE INEQUITABLE.

IT IS REQUESTED THAT THIS SUSPENSION BE REMOVED FROM AGAINST THE CITED ACCOUNT. IF HOWEVER, THIS SUSPENSION MUST STAND, IT IS SUGGESTED THAT GOA AND THE DEPARTMENT MAY WISH TO CLARIFY THE REGULATIONS CONCERNED. THE SECOND IS AS FOLLOWS:

SECTION 203 (G) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 PROVIDES THAT " ALIEN EMPLOYEES WHO OCCUPY POSITIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA MAY, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED, BE GRANTED LEAVE OF ABSENCE WITH PAY NOT IN EXCESS OF THE AMOUNT OF ANNUAL AND SICK LEAVE ALLOWABLE UNDER THIS TITLE IN THE CASE OF CITIZEN EMPLOYEES.'

I FSM IV 914.21 PROMULGATED UNDER THE AUTHORITY CONTAINED IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AUTHORIZES FOREIGN SERVICE POSTS TO PRESCRIBE RULES AND REGULATIONS FOR GRANTING LEAVE BENEFITS TO LOCAL EMPLOYEES IN ACCORDANCE WITH ANNUAL LEAVE PRACTICES PREVAILING AMONG LOCAL EMPLOYEES IN THE AREA, PROVIDED, THAT BENEFITS MAY IN NO CASE EXCEED THOSE APPLICABLE TO UNITED STATES CITIZEN EMPLOYEES. IT PROVIDES THAT EACH POST SHALL GRANT LEAVE IN ACCORDANCE WITH THE REGULATIONS IT PRESCRIBES.

THE LUMP-SUM PAYMENT ACT PROVIDES THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP- SUM FOR ALL ACCUMULATED AND ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE * * *

IT IS SUBMITTED THAT THE CITED ACTS AND THE DEPARTMENT'S REGULATIONS CONSTITUTE AUTHORITY FOR PAYING FOR LOCAL HOLIDAYS OCCURRING WITHIN THE PERIOD COVERED BY THE LUMP-SUM PAYMENT.

FROM THE FOREGOING REPLIES IT IS APPARENT THAT THE PAYMENT WAS EFFECTED UPON THE BASIS OF THE REGULATIONS IN PART IV--- PERSONNEL--- FOREIGN SERVICE MANUAL, SECTIONS 914.13 THROUGH 914.16, 914.21 AND 914.45, HEREINAFTER REFERRED TO. NO INFORMATION HAS BEEN FOUND OR FURNISHED SHOWING THAT THE FOREIGN SERVICE POST HERE INVOLVED PRESCRIBED RULES AND REGULATIONS OTHER THAN THOSE CONTAINED IN PART IV.

SECTION 914.21 OF THE REFERRED-TO REGULATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EACH FOREIGN SERVICE POST SHALL PRESCRIBE RULES AND REGULATIONS FOR GRANTING CURRENT AND CUMULATIVE ANNUAL LEAVE BENEFITS TO LOCAL EMPLOYEES IN ACCORDANCE WITH THE ANNUAL LEAVE PRACTICES PREVAILING AMONG LOCAL EMPLOYERS (INCLUDING OTHER UNITED STATES GOVERNMENT AGENCIES) IN THE AREA, PROVIDED, HOWEVER, THAT BENEFITS MAY IN NO CASE EXCEED THOSE APPLICABLE TO UNITED STATES CITIZEN EMPLOYEES * * *. ( ITALICS SUPPLIED.) SECTION 914.45 PROVIDES, IN PERTINENT PART, THAT:

WHENEVER A LOCAL EMPLOYEE IS SEPARATED FROM THE SERVICE, OR TRANSFERRED TO A POSITION IN ANOTHER AGENCY NOT COVERED BY THE ANNUAL AND SICK LEAVE ACT OF 1951, HE SHALL BE PAID COMPENSATION IN A LUMP-SUM FOR ALL ACCRUED AND ACCUMULATED ANNUAL LEAVE TO WHICH HE IS ENTITLED. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF SUCH ANNUAL LEAVE. (ITALICS SUPPLIED.)

SECTION 914.13 PROVIDES THAT LOCAL EMPLOYEES MAY BE EXCUSED FROM WORK ON UNITED STATES NATIONAL HOLIDAYS AND IDENTIFIES THOSE HOLIDAYS AND FURTHER PRESCRIBES THAT WHEN SUCH EMPLOYEES ARE REQUIRED TO PERFORM SUCH WORK DURING THEIR REGULAR TOUR OF DUTY NO HOLIDAY PAY SHALL BE PAYABLE.

ALSO, SECTION 914.15 PROVIDES THAT EACH FOREIGN SERVICE POST SHALL DETERMINE WHICH HOLIDAYS IN THE COUNTRY OF ASSIGNMENT ARE OF SUFFICIENT NATIONAL IMPORTANCE TO WARRANT THEIR OBSERVANCE BY THE POST AND FURTHER PRESCRIBES THAT LOCAL EMPLOYEES MAY BE EXCUSED FROM WORK, WITHOUT LOSS OF PAY OR LEAVE, WHEN SUCH HOLIDAYS FALL WITHIN THEIR BASIC WORKWEEK. UNDER SECTION 914.16 LOCAL EMPLOYEES MAY BE ORDERED TO WORK ON THE LOCAL HOLIDAYS OBSERVED BY THE POST.

THE FOREGOING REGULATIONS SHOW THAT THE GRANTING OF LEAVE TO LOCAL EMPLOYEES ON THE PRESCRIBED UNITED STATES NATIONAL HOLIDAYS IS PERMISSIVE AND NOT MANDATORY. NOR DO THOSE REGULATIONS SPECIFY THE LOCAL HOLIDAYS THAT SPECIFICALLY ARE TO BE OBSERVED. IN OTHER WORDS, BASED UPON THE REGULATIONS NO ADVANCE DETERMINATION CAN BE MADE AS TO WHICH LOCAL EMPLOYEES WILL BE EXCUSED FOR SUCH HOLIDAYS. FROM THE REGULATIONS, SECTIONS 914.14 AND 914.15, IT APPEARS THAT THE ONLY LOCAL EMPLOYEES EXCUSED ARE THOSE ON THE ROLLS IMMEDIATELY BEFORE THE OCCURRENCE OF A UNITED STATES NATIONAL OR LOCAL HOLIDAY BASED UPON THE CURRENT REQUIREMENTS.

UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10358, DATED JUNE 9, 1952, CERTAIN HOLIDAYS ARE OBSERVED BY UNITED STATES CITIZEN EMPLOYEES -- FOREIGN SERVICE MANUAL--- OR ANY OTHER CALENDAR DAY DESIGNATED AS A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER.

IN OUR DECISION, 27 COMP. GEN. 407, WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

AN EMPLOYEE SEPARATED FROM THE SERVICE PRIOR TO DECEMBER 24, 1947, A HALF HOLIDAY FOR FEDERAL EMPLOYEES AS DECLARED BY EXECUTIVE ORDER NO. 9907, BUT AFTER SAID ORDER WAS FILED ON DECEMBER 3, 1947, WITH THE DIVISION OF THE FEDERAL REGISTER, WHICH FILING, UNDER 44 U.S.C. 307, CONSTITUTED NOTICE OF THE EXECUTIVE ORDER TO ALL CONCERNED, IS ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED AND ACCUMULATED ANNUAL LEAVE EXTENDING BEYOND THE HALF-HOLIDAY WHICH INCLUDES PAYMENT FOR SUCH ONE-HALF DAY WITHOUT A CHARGE AGAINST ACCRUED ANNUAL LEAVE THEREFOR.

CF. 25 COMP. GEN. 338, ANSWER TO QUESTION 3.

FURTHER, WE HELD IN OUR DECISION, 29 COMP. GEN. 322, AS FOLLOWS, QUOTING THE SYLLABUS:

IN VIEW OF THE ACT OF MARCH 2, 1940, PROVIDING THAT THE DAYS OF ANNUAL LEAVE WITH PAY AUTHORIZED FOR EMPLOYEES BY THE ACT OF MARCH 14, 1936, SHALL BE EXCLUSIVE OF ALL NON-WORKDAYS, IN COMPUTING THE LUMP SUM PAYMENT FOR ACCRUED ANNUAL LEAVE PAYABLE UNDER THE ACT OF DECEMBER 21, 1944, TO THE SECRETARY OF THE INTERIOR UPON HIS RESIGNATION, NO LEAVE CHARGE SHOULD BE MADE FOR SATURDAYS FALLING WITHIN THE ACCRUED LEAVE PERIOD IF THE SECRETARY'S OFFICE WAS NOT REGULARLY OPEN FOR BUSINESS ON SATURDAYS AT THE TIME OF HIS RESIGNATION.

FROM THE FOREGOING IT IS APPARENT THAT UNITED STATES CITIZEN EMPLOYEES ARE AUTHORIZED TO HAVE A HOLIDAY OR NONWORKDAY CONSIDERED IN THE COMPUTATION OF THEIR LUMP-SUM PAYMENTS FOR ANNUAL OR VACATION LEAVE ONLY WHEN SUCH HOLIDAY OR NONWORKDAY IS FIXED, SET, OR KNOWN BEFORE SEPARATION. SINCE UNITED STATES CITIZEN EMPLOYEES ARE ENTITLED TO CONSIDERATION IN LUMP-SUM PAYMENTS FOR ANNUAL OR VACATION LEAVE ONLY FOR HOLIDAYS FIXED BY STATUTE AND TO NONWORKDAYS PRESCRIBED BY EXECUTIVE ORDER, THE PAYMENTS TO LOCAL EMPLOYEES FOR UNITED STATES NATIONAL AND LOCAL HOLIDAYS, AS REFLECTED IN THE VOUCHER HERE INVOLVED, RESULT IN A BENEFIT EXCEEDING THE BENEFIT APPLICABLE TO UNITED STATES CITIZEN EMPLOYEES AND THUS APPEARS IN VIOLATION OF THE LANGUAGE OF SECTION 914.21 OF YOUR REGULATIONS.

IN VIEW OF THE PERMISSIVE LANGUAGE OF SECTIONS 914.13 AND 914.15, AND THE REQUIREMENTS OF SECTIONS 914.14 AND 914.16 OF THE FOREIGN SERVICE MANUAL, MAKING IT UNCERTAIN WHICH LOCAL EMPLOYEES ARE TO BE EXCUSED FROM WORK ON UNITED STATES NATIONAL HOLIDAYS AND MAKING UNCERTAIN THE LOCAL HOLIDAYS TO BE OBSERVED AS WELL AS WHICH EMPLOYEES WILL BE EXCUSED, WE ARE CONSTRAINED TO CONCLUDE THAT THERE IS NO CERTAINTY OR FIXITY--- SUCH AS EXISTS WITH RESPECT TO UNITED STATES CITIZEN EMPLOYEES--- OF HOLIDAYS OR NONWORKDAYS TO PERMIT THEIR INCLUSION IN COMPUTING LUMP-SUM PAYMENTS TO LOCAL EMPLOYEES UPON SEPARATION. OUR AUDIT ACTION WILL BE ACCORDINGLY.

IN CONNECTION WITH THE FOREGOING, WE SHOULD LIKE TO POINT OUT THAT IN A SIMILAR SITUATION COVERED IN D.O. VOUCHER NO. 192, OCTOBER 1953, ACCOUNT OF AAGOT B. SAMUELSON, DEPARTMENT OF STATE, SAN JOSE, COSTA RICA, AN EXCEPTION WAS TAKEN AGAINST THAT VOUCHER TO LUMP-SUM LEAVE PAYMENT FOR LOCAL HOLIDAYS TO A UNITED STATES CITIZEN EMPLOYEE FOR WHICH REFUND WAS MADE AS EVIDENCED BY THE ADMINISTRATIVE REPLY OF AUGUST 13, 1954.