B-135906, SEPTEMBER 11, 1958, 38 COMP. GEN. 203

B-135906, SEPTEMBER 11, 1958, 38 COMP. GEN. 203

CIVILIAN PERSONNEL - STATUS PRELIMINARY TO SUSPENSION OR REMOVAL - RELIEF FROM DUTY THE ACT OF AUGUST 24, 1912--- LLOYD-LA FOLLETTE ACT--- 5 U.S.C. 652 (A), DOES NOT REQUIRE OR AUTHORIZE RELIEVING AN EMPLOYEE FROM DUTY WITHOUT A CHARGE TO LEAVE WHEN THE EMPLOYEE'S CONDUCT OR PHYSICAL OR MENTAL CONDITION CREATES AN EMERGENCY SITUATION CONSTITUTING AN IMMEDIATE THREAT TO GOVERNMENT PROPERTY OR TO THE WELL-BEING OF THE EMPLOYEE, FELLOW WORKERS, AND THE PUBLIC PRIOR TO DETERMINATION TO SUSPEND OR REMOVE THE EMPLOYEE; HOWEVER, IF, PRIOR TO THE DETERMINATION, THE EMPLOYEE PRESENTS HIMSELF FOR DUTY AND IS DETERMINED TO BE READY AND ABLE TO PERFORM DUTIES, CONTINUATION OF THE ENFORCED LEAVE WOULD BE UNAUTHORIZED. DURING INVESTIGATIONS OF EMPLOYEES FOR WRONGDOING WHEN IT IS IN THE INTEREST OF THE GOVERNMENT TO HAVE THE EMPLOYEE OFF THE JOB PRELIMINARY TO A DETERMINATION TO SUSPEND OR REMOVE THE EMPLOYEE, IT IS NOT PROPER TO PLACE THE EMPLOYEE IN AN ENFORCED LEAVE STATUS, INSTEAD THE EMPLOYEE MAY BE RELIEVED FROM DUTY AND CONTINUED IN A PAY STATUS WITHOUT A CHARGE TO LEAVE FOR SUCH TIME AS IS NECESSARY TO EFFECT SUSPENSION UNDER THE ACT OF AUGUST 24, 1912--- LLOYD-LA FOLLETTE ACT--- 5 U.S.C. 652/A).

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 11, 1958:

THE ACTING CHAIRMAN'S LETTER OF APRIL 17, 1958, REFERS TO THE LLOYD LA FOLLETTE ACT OF AUGUST 24, 1912, AS AMENDED, 5 U.S.C. 652 (A), TOGETHER WITH SECTION 9.102 OF THE CIVIL SERVICE REGULATIONS, 5 C.F.R. 9.102, IMPLEMENTING THE STATUTORY PROVISIONS, AND REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF REVISING THE REGULATIONS TO INCLUDE A PROVISION AUTHORIZING THE GRANTING OF "ADMINISTRATIVE" OR "OFFICIAL" LEAVE WITH PAY IN EMERGENCY CASES REQUIRING THE IMMEDIATE TERMINATION OF THE EMPLOYEE'S ACTIVE DUTY STATUS.

THE LLOYD-LAFOLLETTE ACT PROVIDES THAT NO PERSON IN THE CLASSIFIED CIVIL SERVICE SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE AND FOR REASONS GIVEN IN WRITING. IT FURTHER PROVIDES THAT ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL BE FURNISHED WITH A COPY OF SUCH CHARGES; BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER. SECTION 9.102 OF THE REGULATIONS, SUPRA, PROVIDES THAT IN EMERGENCY CASES REQUIRING PROMPT SUSPENSION OF AN EMPLOYEE, THE EMPLOYING AGENCY MAY REQUIRE THE EMPLOYEE TO ANSWER CHARGES AND SUBMIT AFFIDAVITS WITHIN SUCH A TIME AS UNDER THE CIRCUMSTANCES WOULD BE REASONABLE, BUT NOT LESS THAN 24 HOURS.

THE ACTING CHAIRMAN CITES THE CASES OF TAYLOR V. UNITED STATES, 131 C.1CLS. 387, KENNY V. UNITED STATES, 134 C.1CLS. 442, AND ARMAND V. UNITED STATES, 136 C.1CLS. 339, AND SAYS THAT THOSE CASES CAST DOUBT ON THE PRACTICE OF USING ENFORCED ANNUAL LEAVE IN DISCIPLINARY PROCEEDINGS. IN THE CITED CASES, THE COURT OF CLAIMS HELD IT TO HAVE BEEN ERROR TO PLACE THE SUBJECT PREFERENCE EMPLOYEES ON ENFORCED ANNUAL LEAVE DURING THE 30-DAY ADVANCE NOTICE PERIOD OF THEIR REMOVAL UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863; AND IT AWARDED JUDGMENT FOR COMPENSATION FOR THE LEAVE CHARGED DURING THE NOTICE PERIOD, ALTHOUGH UNHOLDING THE PROCEDURAL CORRECTNESS OF THE REMOVALS. SEE ALSO EDWARD HOLTZMAN V. UNITED STATES, C.1CLS. NO. 427-57, DECIDED JULY 16, 1958. WE HAVE FOLLOWED THE PRINCIPLES OF THOSE CASES IN MATTERS COMING BEFORE US. SEE, FOR EXAMPLE, 36 COMP. GEN. 779; 37 ID. 55; ID. 160.

IN EXPLAINING THE PURPOSE AND PROPOSED USE OF "ADMINISTRATIVE" OR "OFFICIAL" LEAVE, THE ACTING CHAIRMAN'S LETTER STATES:

IT HAS BEEN SUGGESTED THAT THE COMMISSION'S REGULATIONS BE REVISED TO INCLUDE A PROVISION THAT SPECIFICALLY AUTHORIZES AGENCIES TO PLACE AN EMPLOYEE ON ADMINISTRATIVE OR OFFICIAL LEAVE WITH PAY IN EMERGENCY SITUATIONS IN CONTEMPLATION OF A DISCIPLINARY ACTION WHEN IT IS ADMINISTRATIVELY DETERMINED THAT HE SHOULD NOT BE RETAINED IN AN ACTIVE- DUTY STATUS. UNDER THIS SUGGESTION, AGENCIES WOULD BE AUTHORIZED TO PLACE AN EMPLOYEE ON PAID, ADMINISTRATIVE LEAVE IF IT IS DETERMINED THAT AN EMERGENCY EXISTS, THAT A DISCIPLINARY ACTION MAY BE NECESSARY, AND THAT THE RETENTION OF THE EMPLOYEE IN AN ACTIVE-DUTY STATUS MAY RESULT IN DAMAGE TO GOVERNMENT PROPERTY; BE DETRIMENTAL TO THE INTEREST OF THE GOVERNMENT; OR BE INJURIOUS TO THE EMPLOYEE, HIS FELLOW WORKERS, OR THE GENERAL PUBLIC. IT SHOULD BE NOTED THAT THESE CONDITIONS WHICH WOULD JUSTIFY THE USE OF ADMINISTRATIVE LEAVE ARE IDENTICAL TO THOSE NOW SET FORTH IN SECTION 9.102 OF THE COMMISSION'S REGULATIONS RELATIVE TO EMERGENCY SUSPENSIONS. LIKE THE PRESENT EMERGENCY SUSPENSION, EMERGENCY ADMINISTRATIVE LEAVE WOULD BE USED ONLY IN INSTANCES WHEN THE EMPLOYEE CANNOT BE RETAINED IN AN ACTIVE DUTY STATUS AND REASSIGNED, OR PROPERLY PLACED ON ANNUAL OR SICK LEAVE OR LEAVE WITHOUT PAY.

THE USUAL INSTANCE WHEN EMERGENCY ADMINISTRATIVE LEAVE WOULD BE USED IS ILLUSTRATED BY THE FOLLOWING EXAMPLE. AN EMPLOYEE REPORTS FOR DUTY AND WHILE ON THE JOB HE BEHAVES IN SUCH A MANNER THAT HIS CONDUCT CONSTITUTES A THREAT TO HIS FELLOW WORKERS AND TO THE GOVERNMENT'S PROPERTY. UNDER THE PRESENT LAW AND REGULATIONS RELATING TO EMERGENCY SUSPENSIONS, SUMMARY ACTION CANNOT BE USED AGAINST HIM. IF EMERGENCY ADMINISTRATIVE LEAVE WAS AVAILABLE, THE SUPERVISOR COULD PLACE THE EMPLOYEE ON THAT LEAVE AND ORDER HIM AWAY FROM THE EMPLOYING AGENCY. AGENCY OFFICIALS COULD THEN PREPARE REMOVAL CHARGES AGAINST THE EMPLOYEE. IN THE LETTER OF CHARGES, HE WOULD BE INFORMED THAT HIS RETENTION IN AN ACTIVE DUTY STATUS DURING THE REMOVAL NOTICE PERIOD WOULD BE DETRIMENTAL TO THE INTEREST OF THE GOVERNMENT AND, THEREFORE, IT WAS PROPOSED TO SUSPEND HIM FROM DUTY. HE WOULD BE ALLOWED A REASONABLE PERIOD OF NOT LESS THAN 24 HOURS TO REPLY TO THE PROPOSAL TO SUSPEND. DURING THIS PERIOD AND WHILE HIS REPLY WAS BEING CONSIDERED IN THE AGENCY THE EMPLOYEE WOULD REMAIN ON ADMINISTRATIVE LEAVE WITH PAY. IT WAS DECIDED THAT HIS SUSPENSION WAS JUSTIFIED, HE WOULD BE SENT A DECISION NOTICE AND HIS ADMINISTRATIVE LEAVE WOULD BE TERMINATED AND HIS SUSPENSION COMMENCED. HE WOULD REMAIN SUSPENDED UNTIL HE ANSWERED THE NOTICE OF PROPOSED REMOVAL, HIS ANSWER WAS CONSIDERED, AND A DECISION WAS MADE RELATIVE TO THAT PROPOSED ACTION.

THE BENEFIT IN THE FOREGOING PROCEDURE IS THAT IT ENABLES AGENCY MANAGEMENT TO SUMMARILY REMOVE AN EMPLOYEE FROM THE AGENCY'S PREMISES WHENEVER HIS PRESENCE CONSTITUTES A THREAT TO PERSONS, PROPERTY, OR DISCIPLINE. THIS SUMMARY ACTION IS ACCOMPLISHED WITHOUT SEPARATING THE EMPLOYEE ,FROM THE PAYROLL" IN VIOLATION OF THE PRINCIPLE SET FORTH IN THE TAYLOR, KENNY, AND ARMAND DECISIONS.

THE PROPOSAL TO DEAL WITH SITUATIONS SUCH AS THE ONE OUTLINED IN THE SECOND PARAGRAPH QUOTED ABOVE BY RETAINING THE EMPLOYEE IN A PAY STATUS WITHOUT CHARGING HIM WITH LEAVE APPEARS TO BE BASED UPON THE VIEW THAT ANY "ENFORCED" LEAVE WOULD BE VIEWED BY THE COURT OF CLAIMS AS, IN EFFECT, A SUSPENSION WITHOUT PAY. WE DO NOT CONSIDER THAT SUCH IS THE NECESSARY CONCLUSION TO BE DRAWN FROM THE TAYLOR, KENNY AND ARMAND CASES.

AS PREVIOUSLY NOTED, ALL THREE OF THE CASES MENTIONED INVOLVED SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED (REQUIRING 30 DAYS' ADVANCE NOTICE OF PROPOSED ADVERSE ACTION), AND SITUATIONS IN WHICH THE EMPLOYEE, AFTER HAVING BEEN GIVEN CHARGES, WAS GIVEN A 30-DAY NOTICE OF DISCHARGE. THE COURT HELD THAT THE EMPLOYEES COULD NOT BE PLACED ON ENFORCED ANNUAL LEAVE (FOR WHICH THEY OTHERWISE WERE ENTITLED TO BE PAID IN A LUMP SUM UPON SEPARATION), OR ON LEAVE WITHOUT PAY (ARMAND CASE), DURING THE NOTICE PERIOD. THE CASES DID NOT INVOLVE ANY OF THE STAGES PRELIMINARY TO FILING CHARGES BUT ONLY THE PERIOD AFTER A DETERMINATION HAD BEEN MADE TO DISCHARGE THE EMPLOYEE; AND THEY DO NOT NECESSARILY MEAN THAT WHEN AN ADMINISTRATIVE OFFICER IS SUDDENLY CONFRONTED WITH A SITUATION IN WHICH THE EMPLOYEE, BECAUSE OF VICIOUS OR INTEMPERATE CONDUCT OR ILLNESS (MENTAL OR OTHERWISE), REASONABLY MAY NOT BE REGARDED AS READY, WILLING AND ABLE TO PERFORM HIS DUTIES FOR THE TIME BEING, HE (THE ADMINISTRATIVE OFFICER) MAY NOT PLACE THE EMPLOYEE ON SICK OR ANNUAL LEAVE, OR LEAVE WITHOUT PAY, AS THE STATE OF THE EMPLOYEE'S LEAVE ACCOUNT, OR THE CIRCUMSTANCES, MAY REQUIRE. IN THE ARMAND CASE, THE COURT OF CLAIMS RECOGNIZED THAT THE EMPLOYEE MUST BE READY AND ABLE TO PERFORM THE DUTIES OF HIS POSITION BEFORE BEING ENTITLED TO PAY SOLELY BY REASON OF THE NOTICE PROVISIONS OF SECTION 14 OF THE VETERANS PREFERENCE ACT; AND NO REASON IS APPARENT WHY THE COURT WOULD NOT TAKE A SIMILAR VIEW OF THE LLOYD-LA FOLLETTE ACT. SUPPORT FOR THAT VIEW IS FOUND IN THE RECENT CASE OF MIRAGLIA V. UNITED STATES, C.1CLS. NO. 7/57, DECIDED MARCH 5, 1958. IN THAT CASE THE COURT DENIED A CLAIM FOR, AMONG OTHER THINGS, PAYMENT FOR (OR RESTORATION OF) ENFORCED ANNUAL LEAVE UPON WHICH AN EMPLOYEE WAS ADMINISTRATIVELY PLACED WHEN AN EMERGENCY SITUATION DEVELOPED AT THE PLACE OF EMPLOYMENT. THE COURT NOTED PLAINTIFF'S ADMISSION OF HER INCAPACITY TO PERFORM HER DUTIES AND OBSERVED THAT IT WAS NOT AN UNAUTHORIZED ADMINISTRATIVE ACT TO PLACE HER ON LEAVE UNDER THE CIRCUMSTANCES. ALSO, THE COURT EXPRESSED THE VIEW THAT THE GRANTING OF LEAVE UNDER THE CIRCUMSTANCES WAS WITHIN THE UNDERLYING POLICY OF ANNUAL AND SICK LEAVE, NAMELY, TO PROVIDE A STOPGAP DURING THE EMPLOYEE'S ABSENCE FROM WORK.

IN VIEW OF THE FOREGOING, OUR OPINION IS THAT THE LLOYD-LA FOLLETTE ACT DOES NOT REQUIRE OR AUTHORIZE RELIEVING AN EMPLOYEE FROM DUTY WITHOUT A CHARGE TO LEAVE WHEN THE EMPLOYEE'S CONDUCT OR HIS PHYSICAL OR MENTAL CONDITION CREATES AN EMERGENCY SITUATION IN WHICH HIS PRESENCE AT THE PLACE OF EMPLOYMENT CONSTITUTES AN IMMEDIATE THREAT TO GOVERNMENT PROPERTY OR TO THE WELL-BEING OF THE EMPLOYEE HIMSELF, HIS FELLOW WORKERS AND THE GENERAL PUBLIC. WE ARE OF THE FURTHER OPINION THAT WHEN THE IMMEDIATE EMERGENCY SHALL HAVE BEEN RELIEVED AND THERE HAS BEEN AN OPPORTUNITY TO EVALUATE THE CIRCUMSTANCES OF THE INCIDENT WITH THE RESULT THAT DISCIPLINARY MEASURES (SUSPENSION WITHOUT PAY OR REMOVAL) ARE DECIDED UPON, THE PROCEDURAL STEPS REQUIRED BY THE LLOYD LA FOLLETTE ACT MAY FOLLOW IN DUE COURSE. IF, IN THE MEANTIME, THE EMPLOYEE PRESENTS HIMSELF FOR DUTY AND HE IS DETERMINED TO BE READY AND ABLE TO PERFORM HIS DUTIES, CONTINUATION OF THE ENFORCED LEAVE WOULD BE UNAUTHORIZED. UNDER THOSE CIRCUMSTANCES, THE EMPLOYEE MAY BE CONTINUED IN A PAY STATUS WITHOUT A CHARGE TO LEAVE, IF IT BE DETERMINED TO BE NOT IN THE PUBLIC INTEREST TO RESTORE HIM TO ACTIVE DUTY, FOR THE SHORT TIME (24 HOURS OR SO) NECESSARY TO EFFECT HIS SUSPENSION IN ACCORDANCE WITH THE STATUTORY PROCEDURES PENDING FINAL DECISION ON ULTIMATE DISCIPLINARY MEASURES.

IT SHOULD BE KEPT IN MIND THAT THE BACK PAY PROVISIONS OF THE LLOYD LA FOLLETTE ACT, AS AMENDED, 5 U.S.C. 652 (B) (1), AFFORD COMPENSATION PROTECTION TO THOSE EMPLOYEES WHO ARE REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT THE REMOVAL OR SUSPENSION WITHOUT PAY WAS UNJUSTIFIED OR UNWARRANTED.

ANOTHER GENERAL SITUATION, SAID TO BE INFREQUENT, IN WHICH "ADMINISTRATIVE" OR "OFFICIAL" LEAVE IS PROPOSED IS SET FORTH IN THE ACTING COMMISSIONER'S LETTER AS FOLLOWS:

THE SECOND USE OF EMERGENCY ADMINISTRATIVE LEAVE WOULD NOT OCCUR FREQUENTLY BUT ITS AVAILABILITY WOULD BE IMPORTANT TO MANAGEMENT. OCCASIONALLY AN AGENCY HAS REASONABLE CAUSE TO SUSPECT AN EMPLOYEE OF WRONGDOING, BUT INSUFFICIENT EVIDENCE TO JUSTIFY CHARGES AGAINST HIM. SUCH AN INSTANCE AN INVESTIGATION IS USUALLY NECESSARY TO RESOLVE THE MATTER. DURING THE INVESTIGATION IT IS USUALLY IN THE INTEREST OF THE GOVERNMENT TO HAVE THE EMPLOYEE OFF THE JOB. FOR EXAMPLE, A POST OFFICE INSPECTOR FINDS THAT A CLERK'S CASH ACCOUNT IS $500 SHORT. THIS COULD BE THE RESULT OF DISHONESTY ON THE PART OF THE CLERK, THEFT BY SOMEONE ELSE, OR ERRONEOUS ACCOUNTING. WHATEVER THE REASON, AN INVESTIGATION IS NECESSARY. IF EMERGENCY ADMINISTRATIVE LEAVE WAS AVAILABLE, THE POSTMASTER COULD PLACE THE CLERK ON THAT LEAVE AND THEN PREPARE A NOTICE OF PROPOSED SUSPENSION. THE EMPLOYEE WOULD REMAIN ON THE ADMINISTRATIVE LEAVE DURING THE PERIOD REQUIRED TO PROCESS THE SUSPENSION. WHILE ON THE ADMINISTRATIVE LEAVE AND DURING THE SUSPENSION, THE INSPECTOR COULD INVESTIGATE. ONCE THE INVESTIGATION RESOLVED THE ISSUED, THE CLERK WOULD BE EITHER RETURNED TO ACTIVE DUTY OR REMOVAL CHARGES FILED DEPENDING UPON THE RESULTS OF THE INVESTIGATION.

CASES IN THE CATEGORY JUST OUTLINED STAND ON A DIFFERENT FOOTING FROM THOSE PREVIOUSLY CONSIDERED. IN SUCH A CASE THERE IS NO QUESTION AS TO THE EMPLOYEE'S BEING READY, WILLING, AND ABLE TO PERFORM HIS DUTIES, JUSTIFYING ENFORCED LEAVE AS IN THE FIRST CLASS OF CASES. UNDER THOSE CIRCUMSTANCES, PLACING THE EMPLOYEE ON ANNUAL LEAVE WITHOUT HIS CONSENT PRIOR TO COMPLIANCE WITH LLOYD-LA FOLLETTE SUSPENSION PROCEDURES WOULD NOT BE PROPER. WE CONCLUDE, THEREFORE, THAT IN THE CLASS OF CASES JUST DESCRIBED, THE EMPLOYEE MAY BE RELIEVED FROM HIS REGULAR DUTIES AND CONTINUED IN A PAY STATUS WITHOUT A CHARGE TO LEAVE FOR SUCH TIME AS NECESSARY TO EFFECT HIS SUSPENSION UNDER THE LLOYD LAFOLLETTE ACT. THE PERIOD OF CONTINUANCE OF PAY AS A RESULT OF THE SUBJECT STATUTORY REQUIREMENTS IS NOT "LEAVE" IN THE USUAL SENSE, AND, IN OUR OPINION, SHOULD NOT BE DESIGNATED AS SUCH. WE ASSUME, OF COURSE, THAT IMMEDIATE STEPS WILL BE TAKEN TO SUSPEND THE EMPLOYEE WHILE AN INVESTIGATION IS BEING CONDUCTED SO AS TO REDUCE TO A MINIMUM THE PERIOD DURING WHICH PAY IS TO BE CONTINUED UNDER THIS AUTHORITY. SHOULD THE ENSUING INVESTIGATION RESULT IN CLEARING THE EMPLOYEE AND RESTORING HIM TO DUTY, HIS RIGHT TO COMPENSATION FOR THE PERIOD OF SUSPENSION IS, AS PREVIOUSLY NOTED, FIXED BY SECTION 6 (B) (1) OF THE STATUTE. SEE 37 COMP. GEN. 160.