B-141660, JAN. 14, 1960

B-141660, JAN. 14, 1960

TO THE ATTORNEY GENERAL:

ON JANUARY 7, 1960, YOUR ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL FORWARDED FOR OUR CONSIDERATION THE LEGALITY OF A VOUCHER IN FAVOR OF THE WIDOW OF A FORMER EMPLOYEE OF THE FEDERAL PRISON SERVICE. THE AMOUNT STATED ON THE VOUCHER REPRESENTS COMPENSATION FOR A PERIOD OF SICK LEAVE EXTENDING FROM JUNE 14 THROUGH AUGUST 7, 1959, AND A SUPPLEMENTAL LUMP-SUM PAYMENT FOR 18 HOURS OF ANNUAL LEAVE. THE SOLE LEGAL QUESTION INVOLVED IS ONE CONCERNING THE PROPRIETY OF CANCELLING THE RESIGNATION EFFECTING THE SEPARATION OF THE FORMER EMPLOYEE--- NOW DECEASED--- AND PLACING HIM ON SICK LEAVE FROM THE DATE OF HIS SEPARATION, JUNE 13, 1959, TO THE DATE OF HIS DEATH, AUGUST 7, 1959. FROM THE INFORMATION TRANSMITTED HERE IT IS CLEAR THAT THE FORMER EMPLOYEE HAD MORE THAN ENOUGH SICK LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION TO HAVE CARRIED HIM THROUGH AUGUST 7, 1959, HAD HE NOT BEEN SO SEPARATED.

THE PRESENT CASE WAS THE SUBJECT OF A CONFERENCE BETWEEN REPRESENTATIVES OF THE FEDERAL PRISON SERVICE AND OUR OFFICE AT WHICH WE WERE INFORMED THAT THE ENTITLEMENT OF THE WIDOW OF THE FORMER EMPLOYEE TO BOTH CIVIL SERVICE RETIREMENT BENEFITS AND GOVERNMENT LIFE INSURANCE BENEFITS IS DEPENDENT UPON THE VALIDITY OF RESTORING THE EMPLOYEE TO THE ROLLS AND REGARDING HIS DEATH AS HAVING OCCURRED WHILE HE WAS IN AN EMPLOYED STATUS. IT WAS POINTED OUT AT THE CONFERENCE, AS WELL AS IN YOUR ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER, THAT WHEN A REPRESENTATIVE OF YOUR DEPARTMENT DISCUSSED THE MATTER OF CANCELLING THE RESIGNATION WITH THE CIVIL SERVICE COMMISSION, HE WAS ADVISED THAT SUCH ACTION WOULD APPEAR TO BE AUTHORIZED UNDER OUR DECISION OF AUGUST 13, 1959, B-140197. THAT DECISION HELD IN EFFECT THAT WHEN AN EMPLOYEE'S MENTAL CONDITION IS SUCH THAT HE IS INCAPABLE OF MAKING RATIONAL DECISIONS OR WEIGHING THE CONSEQUENCES OF HIS ACTIONS THERE IS A DUTY ON THE PART OF THE EMPLOYING AGENCY TO PROCESS PERSONNEL ACTIONS IN A WAY THAT WILL PRESERVE AND PROTECT ANY BENEFITS TO WHICH SUCH EMPLOYEE IS ENTITLED.

HOWEVER, OUR AUDIT EXAMINERS CONDUCTING A MANAGEMENT SURVEY AT THE MCNEIL ISLAND INSTITUTION, AFTER DISCUSSING THE CASE WITH THE INSTITUTION REPRESENTATIVES, APPARENTLY WERE NOT SATISFIED THAT THE CASE FALLS WITHIN THE PRINCIPLE OF OUR DECISION OF AUGUST 13, 1959. MOREOVER, YOUR DEPARTMENT'S LETTER SAYS THAT THEY INDICATED AN EXCEPTION WOULD BE TAKEN TO THE PROCESSING AND PAYMENT OF A VOUCHER IN FAVOR OF THE WIDOW OF THE DECEASED EMPLOYEE UNLESS FORMAL APPROVAL FIRST WAS OBTAINED FROM OUR OFFICE.

THE PRESENT CASE IS NOT IDENTICAL WITH THE CASE CONSIDERED IN OUR DECISION OF AUGUST 13, 1959. THAT CASE CLEARLY WAS ONE OF MENTAL DISABILITY AMPLY SUPPORTED BY THE FORMER EMPLOYEE'S MEDICAL HISTORY. THE PRESENT CASE THERE IS NO MEDICAL HISTORY OF ANY MENTAL DISTURBANCE, AS SUCH. HOWEVER, THE STATEMENT OF THE ATTENDING PHYSICIANS OF THE FORMER EMPLOYEE ARE TO THE EFFECT THAT THE TUMOR RESULTING IN HIS DEATH WAS PRESENT A LONG TIME BEFORE HIS RESIGNATION FROM THE FEDERAL PRISON SERVICE. IT ALSO APPEARS THAT THE FORMER EMPLOYEE HAD COMPLAINED TO AT LEAST ONE OF THE PHYSICIANS OF SEVERE PAIN AND IN ADDITION HAD INDICATED HE WAS RESIGNING FROM HIS POSITION WITH THE FEDERAL PRISON SERVICE BECAUSE THE TENSION WAS TOO MUCH FOR HIM. MOREOVER THERE IS EVIDENCE IN THE FILE TRANSMITTED HERE--- LETTER WRITTEN BY A FELLOW EMPLOYEE--- OF UNUSUAL OR PECULIAR BEHAVIOR ON THE PART OF THE DECEDENT NEAR THE TIME OF HIS RESIGNATION. YOUR DEPARTMENT APPARENTLY FEELS THAT ONE REASON THE DECEDENT DID NOT USE HIS SICK LEAVE IS THAT "HE SEEMED TO FEAR THAT ANY COMPLAINT OF HIS PHYSICAL CONDITION OR THE USE OF SICK LEAVE WOULD REFLECT UNFAVORABLE ON HIS JOB PERFORMANCE.'

THE CONCLUSION OF YOUR DEPARTMENT IS STATED IN THE LETTER OF YOUR ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL AS FOLLOWS:

"AFTER CONSIDERATION OF ALL THE FACTS, IT WAS ADMINISTRATIVELY DECIDED THAT MR. KUSSKE, BECAUSE OF HIS ILLNESS AT TIME OF RESIGNATION, WAS NOT POSSESSED OF HIS NORMAL FACULTIES AND JUDGMENT, WAS NOT CAPABLE OF MAKING A RATIONAL DECISION PERTAINING TO HIS EMPLOYMENT, AND THAT THE EMPLOYING AGENCY HAD NOT FULFILLED ITS RESPONSIBILITIES.'

YOUR DEPARTMENT THEREFORE CONSIDERS THAT THE ACTION CANCELLING THE RESIGNATION AND RESTORING THE EMPLOYEE TO THE ROLLS IS WARRANTED.

ALTHOUGH THE PRESENT CASE IS NOT NEARLY AS CLEAR CUT AS THAT CONSIDERED IN OUR DECISION OF AUGUST 13, 1959, THE CONCLUSION OF YOUR DEPARTMENT THAT THE PHYSICAL CONDITION OF THE FORMER EMPLOYEE AT THE TIME OF HIS RESIGNATION, IN FACT, RESULTED IN AN IMPAIRMENT OF HIS MENTAL FACULTIES THUS PREVENTING HIS MAKING A RATIONAL DECISION IS NOT SO UNREASONABLE UNDER THE CIRCUMSTANCES, AS TO WARRANT OUR OBJECTING TO IT. VIEWING THE CASE IN THAT LIGHT IT WOULD APPEAR TO FALL WITHIN THE GENERAL CONCEPT OF OUR DECISION OF AUGUST 13, 1959, AND, THEREFORE, WE WILL OFFER NO FURTHER OBJECTION TO THE ACTION YOU NOW PROPOSE.