B-9172, APRIL 16, 1940, 19 COMP. GEN. 869

B-9172, APRIL 16, 1940, 19 COMP. GEN. 869

COMPENSATION REFUNDS FOR OVERDRAWN ANNUAL LEAVE REFUND OF 1 DAY'S SALARY IS REQUIRED UNDER THE TERMS OF THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE MARCH 2, 1940, FOR THE 31ST DAY OF A MONTH, OR THE LAST DAY OF FEBRUARY, WHEN EITHER FALLS ON A DAY OTHER THAN A SUNDAY, HOLIDAY, OR NONWORK DAY WITHIN A PERIOD OF UNLIQUIDATED ADVANCED ANNUAL LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 16, 1940:

I HAVE YOUR LETTER OF MARCH 19, 1940 (CSR-401918), AS FOLLOWS:

THE COMMISSION IS DESIROUS OF SECURING A DEFINITE UNIFORM RULE INREGARD TO CLAIMS FOR OVERDRAWN ANNUAL LEAVE CONCERNING WHICH DIVERGENT OPINIONS APPARENTLY PREVAIL IN THE VARIOUS GOVERNMENT DEPARTMENTS AND OFFICES.

THE CURRENT LEAVE REGULATIONS REQUIRE THAT RECOVERY FOR SUCH OVERDRAWN LEAVE BE MADE ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE EXCLUSIVE OF SUNDAYS AND HOLIDAYS. THIS SUBMISSION INVOLVES THE CASE OF AN EMPLOYEE CHARGED FOR LEAVE WHICH EXTENDED OVER THE LAST TWO DAYS OF A 31-DAY MONTH.

THE DECISION BY THE ACTING COMPTROLLER GENERAL DATED JULY 6, 1938 (18 COMP. GEN. 10), LAID DOWN THE FOLLOWING RULE:

"HOWEVER, IT IS NOT TO BE PRESUMED THAT THE PROVISIONS OF SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS WERE INTENDED TO REQUIRE THAT THERE BE REFUNDED BY THE EMPLOYEE ANY MORE THAN HAD BEEN ACTUALLY PAID TO HIM FOR THE PERIOD COVERED BY THE UNEARNED OR EXCESS LEAVE. HENCE, THE "1 DAY'S PAY" TO BE CHARGED "FOR EACH DAY OF ABSENCE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS" WILL BE REGARDED, FOR THE PURPOSE OF MAKING CHARGES OR REFUNDS FOR THE EXCESS ANNUAL LEAVE, AS THE AMOUNT, IF ANY, PAID FOR SUCH DAY.'

THE FOLLOWING IS QUOTED FROM DECISION OF THE SAME DATE TO THE ARCHIVIST (ID. 13):

"REFERRING TO THE FIRST QUESTION RELATIVE TO AN EMPLOYEE WHO HAS BEEN"ADVANCED ANNUAL LEAVE FOR 15 DAYS AND RESIGNS BEFORE RETURNING TO DUTY OR BEFORE THE ADVANCED LEAVE ACCUMULATES," WHOM YOU ASSUME "WOULD BE ENTITLED TO NO PAY," YOU ARE ADVISED THAT THE EMPLOYEE WOULD BE ENTITLED, THAT IS, SHOULD BE CREDITED, WITH PAY UP TO AND INCLUDING THE EFFECTIVE DATE OF HIS RESIGNATION, BUT HE SHOULD BE CHARGED THE EQUIVALENT OF 1 DAY'S PAY FOR EACH DAY CHARGED AGAINST THE UNACCRUED ANNUAL LEAVE ADVANCED TO HIM FOR WHICH HE WAS AUTHORIZED TO BE PAID COMPENSATION, EXCLUDING THE INTERVENING SUNDAYS AND HOLIDAYS WHICH WERE NOT CHARGED AGAINST HIS ANNUAL LEAVE CREDIT.'

IN THE DECISIONS CITED IT WOULD APPEAR THAT RECOVERY IS TO BE MADE COVERING ONLY SUCH DAYS OF ANNUAL LEAVE FOR WHICH PAYMENT OF COMPENSATION IS AUTHORIZED. THE 31ST DAY OF A MONTH DOES NOT ENTER INTO THE COMPUTATION OF SALARY EXCEPT WHERE THERE IS ONE DAY'S ABSENCE IN A NONPAY STATUS ON THAT DAY, AND ONLY ONE DAY'S PAY IS WITHHELD IN CASE OF LEAVE WITHOUT PAY ON THE 30TH AND 31ST ( DEPT. CIRC. NO. 35 ISSUED BY THE COMPTROLLER OF THE TREASURY AUGUST 18, 1914). HOWEVER, TWO DAYS IS CHARGED AGAINST AN EMPLOYEE'S ANNUAL LEAVE FOR ABSENCE ON THESE TWO DAYS.

YOUR DECISION IS, THEREFORE, REQUESTED AS TO WHETHER AN EMPLOYEE TO BE CHARGED WITH OVERDRAWN ANNUAL LEAVE INCLUDING THE 30TH AND 31ST OF A MONTH SHALL BE REQUIRED TO REFUND PAY FOR ONE OR TWO DAYS COVERING SUCH DATES.

IT IS UNDERSTOOD YOUR SUBMISSION RELATES ONLY TO EMPLOYEES PAID ON AN ANNUAL OR MONTHLY BASIS AND NOT TO EMPLOYEES PAID ON PER DIEM, PER HOUR, OR PIECE-WORK BASIS.

THE ACT OF MARCH 2, 1940, PUBLIC, NO. 419, PROVIDES AS FOLLOWS:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940, EFFECTIVE MARCH 2, 1940), PROVIDES AS FOLLOWS:

IN CASES OF SEPARATION WHERE AN EMPLOYEE IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE, SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH SUCH EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SUBSECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE 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.

IN NEITHER OF THE TWO DECISIONS MENTIONED IN YOUR LETTER WAS THERE EXPRESSLY CONSIDERED THE QUESTION OF WHAT EFFECT SHOULD BE GIVEN TO THE FACT THAT THERE MAY HAVE BEEN INCLUDED IN THE OVERDRAWN ANNUAL LEAVE THE 30TH AND 31ST DAYS OF A MONTH--- BOTH THE REGULATION THEN IN EFFECT AND THE CURRENT REGULATION ABOVE QUOTED BEING SILENT UPON THE MATTER.

THE STATUTE EXCLUDES FROM ANNUAL LEAVE SUNDAYS, HOLIDAYS, AND NONWORK DAYS. THE REGULATION REGARDING DEDUCTIONS FOR OVERDRAWN LEAVE IS CLEAR AND UNAMBIGUOUS AND ADMITS OF NO CONSTRUCTION. IT SIMPLY REQUIRES REFUND FOR OVERDRAWN ANNUAL LEAVE ON THE BASIS OF 1 DAY'S SALARY AT THE RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE FOR EVERY DAY OF ABSENCE THAT IS REQUIRED BY THE STATUTE TO BE CHARGED AS ANNUAL LEAVE. THE 30TH AND 31ST DAYS OF A MONTH ARE REQUIRED TO BE CONSIDERED SEPARATELY FOR LEAVE PURPOSES AS DISTINGUISHED FROM SALARY PURPOSES. THE PROVISIONS OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, RELATING TO THE 30TH AND 31ST DAYS OF A MONTH, HAVE REFERENCE TO THE COMPUTATION OF SALARY, AND AS SUCH ARE NOT FOR APPLICATION IN COMPUTING DEDUCTIONS FOR OVERDRAWN LEAVE UNDER THE TERMS OF THE LEAVE REGULATION.

ACCORDINGLY, IF THE 31ST DAY OF A MONTH FALLING WITHIN A PERIOD OF ADVANCED ANNUAL LEAVE IS NOT A SUNDAY, HOLIDAY, OR NONWORK DAY, BUT WOULD BE REQUIRED TO BE CHARGED AS ANNUAL LEAVE, REFUND OF 1 DAY'S SALARY IS REQUIRED FOR THAT DAY THE SAME AS FOR ANY OTHER DAY WHICH IS REQUIRED BY THE STATUTE TO BE CHARGED TO ANNUAL LEAVE. ON THE SAME BASIS THE COMPANION RULE WOULD BE THAT IF THE LAST DAY OF FEBRUARY FALLING WITHIN A PERIOD OF ADVANCED ANNUAL LEAVE IS NOT A SUNDAY, HOLIDAY, OR NONWORK DAY, BUT IS REQUIRED BY THE STATUTE TO BE CHARGED TO ANNUAL LEAVE, ONLY 1 DAY'S SALARY IS REQUIRED TO BE REFUNDED FOR THAT DAY.