B-23432, FEBRUARY 12, 1942, 21 COMP. GEN. 766

B-23432, FEBRUARY 12, 1942, 21 COMP. GEN. 766

SICK LEAVE - ADVANCES - PROBATIONARY EMPLOYEES A PROBATIONARY EMPLOYEE IS NOT ENTITLED, UNDER THE ACT OF MARCH 14, 1936, AND THE REGULATIONS ISSUED PURSUANT THERETO, TO ADVANCED SICK LEAVE IN EXCESS OF THE AMOUNT THAT WOULD ACCUMULATE FROM THE DATE OF THE ADVANCE TO THE END OF THE PROBATIONARY PERIOD. A CERTIFYING OFFICER WHO CERTIFIED A PAY ROLL INCLUDING A SALARY PAYMENT TO A PROBATIONARY EMPLOYEE FOR ADVANCED SICK LEAVE IN EXCESS OF THAT WHICH WOULD ACCUMULATE FROM THE DATE OF THE ADVANCE TO THE END OF THE PROBATIONARY PERIOD IS RESPONSIBLE FOR THE RESULTING OVERPAYMENT OF SALARY WHICH REMAINED UNCOLLECTED WHEN THE EMPLOYEE DIED WITHOUT HAVING RETURNED TO DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 12, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 15, 1941, AS FOLLOWS:

REFERENCE IS MADE TO THE LETTER FROM THE ASSISTANT CHIEF, CLAIMS DIVISION, DATED SEPTEMBER 24, FILE MISC.--- 10931412-FGM, AND TO THE SETTLEMENT OF CLAIM (CERTIFICATE NO. U.S.-8599-1), ADVISING THAT A CHARGE OF $38.03 WAS RAISED AGAINST W. C. MENDENHALL, DIRECTOR, UNITED STATES GEOLOGICAL SURVEY, AS CERTIFYING OFFICER OF VOUCHER NO. 1132455, JANUARY 1, 1938, ACCOUNT OF G. F. ALLEN, SYMBOL 1-100. THE CHARGE WAS EVIDENTLY MADE AGAINST THE CERTIFYING OFFICER BECAUSE OF A REPORT TO THE CIVIL SERVICE COMMISSION ON MAY 24, 1940, THAT SEVERIN S. SABAS, DECEASED, HAD RECEIVED A SALARY OVERPAYMENT. A REVIEW OF THE FACTS INDICATES THAT THE REPORT TO THE CIVIL SERVICE COMMISSION WAS ERRONEOUS IN THAT THE CASE WAS ONE OF OVERDRAWN LEAVE FOR WHICH NO REFUND WAS REQUIRED, RATHER THAN OVERPAYMENT TO THE EMPLOYEE.

THE LATE SEVERIN S. SABAS WAS EMPLOYED AS A JUNIOR TOPOGRAPHIC ENGINEER IN THE GEOLOGICAL SURVEY FROM NOVEMBER 1, 1933, THROUGH JUNE 30, 1937, UNDER A PUBLIC WORKS ADMINISTRATION ALLOTMENT WHICH DID NOT REQUIRE CIVIL SERVICE STATUS. IN AUGUST 1937, HE WAS AGAIN EMPLOYED ON SIMILAR WORK UNDER A PERMANENT CIVIL SERVICE APPOINTMENT WHICH REQUIRED A PROBATIONARY PERIOD OF ONE YEAR.

DURING HIS ENTIRE EMPLOYMENT MR. SABAS RENDERED EXCELLENT SERVICE AND HIS CONTINUATION BEYOND THE PERIOD OF PROBATION WAS FULLY EXPECTED. ANTICIPATING HIS RETURN TO DUTY UPON HIS RECOVERY FROM AN ILLNESS, WHICH HOWEVER RESULTED IN HIS DEATH ON JUNE 20, 1938, MR. SABAS WAS CONTINUED ON THE PAY ROLL THROUGH JANUARY 31, 1938, VOUCHER NO. 1132455, AND THAT PAY ROLL WAS CERTIFIED BY THE DIRECTOR, GEOLOGICAL SURVEY, ON THE BASIS OF HIS HAVING BEEN CARRIED IN A SICK LEAVE STATUS TO THE CLOSE OF THAT PERIOD. SUBSEQUENTLY, A DULY EXECUTED SICK LEAVE APPLICATION TO COVER THE PERIOD, AND INVOLVING AN ADVANCE OF APPROXIMATELY 20 DAYS SICK LEAVE, WAS SUBMITTED. THE LEAVE OFFICER OF THE GEOLOGICAL SURVEY, IN VIEW OF DECISION A-72714 (16 COMP. GEN. 105, 108, 110), DOUBTED THE PERMISSIBILITY OF GRANTING ADVANCE SICK LEAVE IN EXCESS OF THAT WHICH WOULD ACCUMULATE TO THE END OF THE PROBATIONARY PERIOD AND, ACCORDINGLY, REPORTED TO THIS DEPARTMENT THAT MR. SABAS WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS FOR THE PERIOD JANUARY 20-31, 1938, INCLUSIVE. ALL SUBSEQUENT DIFFICULTIES HAVE ARISEN FROM THAT ACT. THIS ACTION, TAKEN BY SUBORDINATE OFFICERS OF THE GEOLOGICAL SURVEY, SHOULD NOT HAVE INVALIDATED THE PRIOR CERTIFICATION OF THE PAYROLL BY THE HEAD OF THAT BUREAU BY VIRTUE OF WHICH ACTION MR. SABAS WAS GRANTED AN ADVANCE OF SICK LEAVE THROUGH JANUARY 31, 1938. IN SPITE OF THE PRIOR ACTION BY THE HEAD OF THAT BUREAU AS TO LEAVE AND PAYMENT TO MR. SABAS, ALL SUBSEQUENT REPORTS HAVE BEEN PREDICATED UPON THE LATER ACTION OF SUBORDINATE OFFICERS OF THE GEOLOGICAL SURVEY.

IF THE GRANTING OF ADVANCE SICK LEAVE THROUGH JANUARY 31, 1938, WAS, IN FACT, LEGALLY PERMISSIBLE, AS HIS SUPERIOR OFFICERS BELIEVED IT TO BE AT THE TIME IT WAS GRANTED AND UPON WHICH BASIS THE PAY ROLL WAS MADE UP AND CERTIFIED, THE PAYMENT OF SALARY THROUGH JANUARY 31, 1938, WAS PROPER AND THE SUBSEQUENT ACTION BY SUBORDINATE OFFICERS IN REPORTING THE PERIOD JANUARY 20-31, 1938, AS LEAVE-WITHOUT-PAY SHOULD NOT SERVE TO INVALIDATE THE SALARY PAYMENT FOR THAT PERIOD. IF THE SUBSEQUENT ACTION BY SUBORDINATE OFFICERS OF THE GEOLOGICAL SURVEY DID NOT INVALIDATE THAT PAYMENT, THEN THERE WAS, IN FACT, NO OVERPAYMENT. IF THERE WAS NO OVERPAYMENT, THEN THE ENTRY ON THE PAY ROLL WAS, IN FACT, A GRANT OF AN ADVANCE OF SICK LEAVE WITH PAY BEYOND THAT WHICH WOULD HAVE ACCRUED TO THE CLOSE OF THE PROBATIONARY PERIOD (BUT WITHIN THE LIMITS OF ADVANCE SICK LEAVE GRANTABLE UNDER SECTION 3 OF EXECUTIVE ORDER NO. 7410), AND, ACCORDINGLY, A REFUND OF THE SALARY FOR SUCH EXCESS LEAVE IS NOT REQUIRED BECAUSE MR. SABAS DIED WHILE IN THE SERVICE. SECTION 10 OF EXECUTIVE ORDER NO. 7410, QUOTED BELOW, PROVIDES THAT NO REFUND FOR ADVANCE SICK LEAVE GRANTED IS DUE IN CASE OF DEATH.

"IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. THIS PROVISION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.' ( ITALICS SUPPLIED.)

THE ACTION TAKEN BY THE CLAIMS DIVISION IN RAISING A CHARGE AGAINST THE CERTIFYING OFFICER WAS APPARENTLY PREDICATED UPON THE REPORT MADE TO THE CIVIL SERVICE COMMISSION BY THIS OFFICE UNDER DATE OF MAY 24, 1940, IN WHICH THE CASE WAS PRESENTED AS ONE OF OVERPAYMENT. THE PURPOSE OF THIS LETTER IS TO REQUEST A RECONSIDERATION OF THE CASE ON THE BASIS OF THE ADDITIONAL FACTS SET FORTH HEREIN, TO REMOVE THE CHARGE AGAINST THE CERTIFYING OFFICER, W. C. MENDENHALL, DIRECTOR, GEOLOGICAL SURVEY.

THE RECORD DISCLOSES THAT ON AUGUST 20, 1937, SEVERIN S. SABAS WAS PROBATIONALLY APPOINTED TO A POSITION IN THE GEOLOGICAL SURVEY. DECEMBER 20, 1937, HE WAS TAKEN ILL AND WAS UNABLE TO REPORT FOR DUTY. HOWEVER, IT WAS ADMINISTRATIVELY REPORTED THAT HE HAD SUFFICIENT ACCRUED ANNUAL AND SICK LEAVE AND ADVANCE SICK LEAVE TO CARRY HIM IN A PAY STATUS THROUGH JANUARY 19, 1938. HE WAS CARRIED ON THE PAY ROLL UNTIL JANUARY 31, 1938, WHICH RESULTED IN AN OVERPAYMENT OF SALARY FOR THE PERIOD JANUARY 20 TO 31, 1938, IN THE AMOUNT OF $76.67. MR. SABAS DIED JUNE 20, 1938, WITHOUT HAVING RETURNED TO DUTY. EFFORTS TO COLLECT THE AMOUNT OF THE OVERPAYMENT FROM THE ADMINISTRATOR OF THE DECEDENT'S ESTATE WERE UNSUCCESSFUL. HOWEVER, THE AMOUNT OF $38.64 STANDING TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND WAS APPLIED IN PARTIAL LIQUIDATION THEREOF. A CHARGE WAS RAISED AGAINST W. C. MENDENHALL, THE CERTIFYING OFFICER, BY CERTIFICATE OF SETTLEMENT NO. US-8599-I, DATED OCTOBER 17, 1941, IN THE AMOUNT OF $38.03, REPRESENTING THE BALANCE OF THE INDEBTEDNESS.

THE ACTION OF THE LEAVE OFFICER OF THE GEOLOGICAL SURVEY MENTIONED IN THE THIRD PARAGRAPH OF YOUR LETTER, LIMITING THE ADVANCE SICK LEAVE TO THE AMOUNT THAT WOULD HAVE ACCRUED TO THE END OF THE PROBATIONARY APPOINTMENT OF MR. SABAS, WAS TAKEN PURSUANT TO THE RULE STATED IN THE DECISION OF AUGUST 1, 1936, A-72716, 16 COMP. GEN. 105, WHEREIN THE FOLLOWING QUESTION AND ANSWER WERE STATED AT PAGES 108 AND 110, RESPECTIVELY:

(6) MAY SICK LEAVE BE ADVANCED TO PROBATIONARY EMPLOYEES? IN THIS CONNECTION THE DIFFERENCE IN THE WORDING OF SECTION 2 OF THE ANNUAL LEAVE REGULATIONS WHICH MENTIONS "PERMANENT EMPLOYEES" AND SECTION 1 OF THE SICK LEAVE REGULATIONS WHICH USES THE TERM "EMPLOYEES" UNMODIFIED, AND THE FACT THAT SECTION 17--- PROHIBITING ADVANCES TO TEMPORARY EMPLOYEES--- FAILS TO MENTION PROBATIONARY EMPLOYEES, WOULD SEEM TO INDICATE THAT ADVANCES TO PROBATIONARY EMPLOYEES COULD BE MADE, NOTWITHSTANDING THE FACT THAT THE GOVERNMENT IS NOT PROTECTED BY RETIREMENT DEDUCTIONS.

REFERRING TO QUESTION 6, IT IS UNDERSTOOD THE TERM "PROBATIONARY" REFERS TO THE PERIOD OF 6 MONTHS OR MORE THAT A CIVIL-SERVICE EMPLOYEE MUST SERVE PRIOR TO ACQUIRING A SO-CALLED PERMANENT STATUS. PROBATIONARY EMPLOYEES ARE ENTITLED TO SICK LEAVE UNDER THE ACT OF MARCH 14, 1936. BUT AS A PROBATIONARY APPOINTMENT MAY TERMINATE AUTOMATICALLY AT THE EXPIRATION OF THE PROBATIONARY PERIOD, SICK LEAVE SHOULD NOT BE ADVANCED TO PROBATIONARY EMPLOYEES IN EXCESS OF THE AMOUNT THAT WOULD ACCRUE DURING THE PROBATIONARY PERIOD.

ALSO, ATTENTION IS INVITED TO SECTION 6 OF UNIFORM SICK LEAVE REGULATIONS IN FORCE ON AND AFTER JANUARY 1, 1938, AND DURING THE TIME HERE INVOLVED, EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938, RETROACTIVELY EFFECTIVE JANUARY 1, 1938, PROVIDING AS FOLLOWS:

SICK LEAVE SHALL NOT BE ADVANCED IN AN AMOUNT THAT WOULD EXCEED THE TOTAL THAT WOULD ACCUMULATE DURING THE PERIOD FROM THE DATE OF THE ADVANCE TO THE TERMINATION OF A LIMITED APPOINTMENT (NOT TEMPORARY IN CHARACTER) OR ONE EXPIRING ON A SPECIFIED DATE.

SEE, ALSO, SECTION 5 OF THE SICK LEAVE REGULATIONS PREVIOUSLY IN FORCE, EXECUTIVE ORDER NO. 7410, ISSUED JULY 9, 1936, RETROACTIVELY EFFECTIVE JANUARY 1, 1936, EFFECTIVE DATE OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, AND SECTION 6 OF THE CURRENT SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, ISSUED MARCH 29, 1940, RETROACTIVELY EFFECTIVE MARCH 2, 1940. A PROBATIONARY APPOINTMENT IS A LIMITED APPOINTMENT WITHIN THE MEANING OF THE SICK LEAVE REGULATION WHICH REGULATION HAS BEEN IN FORCE AT ALL TIMES SINCE THE EFFECTIVE DATE OF THE SICK LEAVE ACT OF MARCH 14, 1936, SUPRA. ACCORDINGLY, THE ACTION OF THE OFFICER OF THE GEOLOGICAL SURVEY LIMITING THE ADVANCE OF SICK LEAVE TO THE AMOUNT THAT WOULD HAVE BEEN EARNED BY MR. SABAS UP TO AND INCLUDING THE TERMINATION OF HIS PROBATIONARY APPOINTMENT WAS CORRECT, AND THE CERTIFICATION OF THE PAY ROLL BY THE DIRECTOR OF THE GEOLOGICAL SURVEY INCLUDING A SALARY PAYMENT TO MR. SABAS FOR ADVANCED SICK LEAVE IN EXCESS OF THAT AMOUNT WAS ERRONEOUS.

THE CERTIFYING OFFICER WAS CHARGEABLE WITH KNOWLEDGE OF THE RULE APPLICABLE IN THIS CASE. SEE DECISION OF OCTOBER 2, 1940, 20 COMP. GEN. 182, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER EXISTING LAW AND EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933, THE CERTIFYING OFFICER IS RESPONSIBLE FOR ANY LOSSES RESULTING FROM THE ERRONEOUS CERTIFICATION OF FACTS ON A GOVERNMENT VOUCHER AND HE MUST ASSUME RESPONSIBILITY FOR THE CORRECTNESS OF THE STATEMENTS AND COMPUTATIONS OF HIS SUBORDINATES UNLESS IT CAN BE SHOWN THAT NEITHER HE, NOR HIS SUBORDINATES, IN THE REASONABLE EXERCISE OF CARE AND DILIGENCE, COULD HAVE KNOWN THE TRUE FACTS.

IN THIS CASE THE SUBORDINATE OFFICER TOOK THE CORRECT ACTION BUT, APPARENTLY, THE CERTIFYING OFFICER ASSUMED RESPONSIBILITY OF ADVANCING MR. SABAS MORE SICK LEAVE THAN THAT TO WHICH HE WAS ENTITLED UNDER THE CONTROLLING LAW AND REGULATIONS. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF THIS OFFICE, US-8599-1, DATED OCTOBER 17, 1941, RAISING A CHARGE AGAINST W. C. MENDENHALL, THE CERTIFYING OFFICER, MUST BE, AND IS, SUSTAINED.