B-126078, AUG. 14, 1956

B-126078, AUG. 14, 1956

TO HONORABLE ALBERT M. COLE, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

A SITE AUDIT OF THE CIVILIAN PAY RECORDS OF THE HOUSING AND HOME FINANCE AGENCY, PUBLIC HOUSING ADMINISTRATION, HAS BROUGHT TO ATTENTION CERTAIN QUESTIONABLE PAYMENTS TO FORMER EMPLOYEES OF YOUR AGENCY WHO HAD BEEN SUSPENDED FROM DUTY IN ACCORDANCE WITH THE ACT OF AUGUST 26, 1950, 64 STAT. 476, PUBLIC LAW 733, AND SUBSEQUENTLY SEPARATED WITHOUT HAVING BEEN RESTORED TO DUTY.

EACH OF THESE EMPLOYEES AFTER HIS INITIAL SUSPENSION WAS ALLOWED TO USE THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF SUSPENSION IN LIEU OF BEING CARRIED IN A LEAVE WITHOUT PAY STATUS AND EACH UPON SEPARATION FROM THE SERVICE, WAS ALLOWED CREDIT AND WAS PAID FOR LEAVE EARNED WHILE ON ANNUAL LEAVE DURING THE PERIOD OF SUSPENSION. MOREOVER,IN ONE CASE THE EMPLOYEE WAS GRANTED A WITHIN-GRADE SALARY ADVANCEMENT DURING THAT PORTION OF THE PERIOD OF SUSPENSION COVERED BY HIS ANNUAL LEAVE.

THE ATTEMPTS BY OUR AUDITORS TO CONVINCE ADMINISTRATIVE OFFICIALS THAT EMPLOYEES SUSPENDED UNDER PUBLIC LAW 733 WHO WERE NOT RESTORED TO DUTY ARE NOT ENTITLED TO ACCRUE LEAVE DURING THE PERIOD OF SUSPENSION OR BECOME ELIGIBLE FOR WITHIN-GRADE SALARY ADVANCEMENTS DURING SUCH SUSPENSION HAVE NOT BEEN ENTIRELY SATISFACTORY. A MEMORANDUM DATED JUNE 7, 1956, FROM MR. BURSTEIN, ASSISTANT GENERAL COUNSEL OF THE PUBLIC HOUSING ADMINISTRATION WAS BROUGHT TO OUR ATTENTION IN WHICH HE EXPRESSED THE VIEW THAT OUR DECISIONS DO NOT SPECIFICALLY PRECLUDE AN EMPLOYEE FROM ACCRUING LEAVE ON LEAVE GRANTED DURING A PERIOD OF SUSPENSION UNDER PUBLIC LAW 733, NOR DO THEY PRECLUDE THE RECEIPT OF WITHIN-GRADE SALARY ADVANCEMENTS DURING SUSPENSIONS UNDER THAT LAW.

ON AUGUST 11, 1955, WE RENDERED A DECISION TO THE SECRETARY OF THE ARMY, B-122843, INVOLVING NUMEROUS QUESTIONS ARISING UNDER PUBLIC LAW 733. THE UNDERLYING CONCEPT UPON WHICH THAT DECISION WAS PREDICATED IS THAT DURING A PERIOD OF SUSPENSION UNDER PUBLIC LAW 733 AN EMPLOYEE ACCRUES NO ADDITIONAL RIGHTS OR BENEFITS WHICH WERE NOT IN EXISTENCE ON THE DATE OF SUSPENSION UNLESS, OF COURSE, HE SUBSEQUENTLY IS RESTORED TO DUTY BY THE HEAD OF THE AGENCY. THE FACT THAT HE MAY BE GRANTED THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF SUSPENSION IN LIEU OF LEAVE WITHOUT PAY DOES NOT ALTER THIS CONCEPT. WE STATED IN THE DECISION OF AUGUST 11 THAT "WHEN AN EMPLOYEE HAS BEEN SUSPENDED FROM DUTY UNDER PUBLIC LAW 733 THE PERIOD DURING WHICH PAYMENT IS MADE TO THE EMPLOYEE WITH A RESULTING CHARGE AGAINST HIS ANNUAL LEAVE ACCOUNT MUST BE REGARDED AS A PART OF THE SUSPENSION PERIOD.' THE EFFECT OF THAT HOLDING IS THAT THE PAYMENT FOR ANNUAL LEAVE DURING A PERIOD OF SUSPENSION UNDER PUBLIC LAW 733 DOES NOT AUTOMATICALLY RESTORE THE EMPLOYEE TO HIS FORMER DUTY STATUS FOR THE DURATION OF HIS LEAVE OR ENABLE HIM TO ACQUIRE ANY GREATER RIGHTS OR BENEFITS THAN HE WOULD HAVE ACQUIRED HAD HE BEEN CARRIED IN A LEAVE WITHOUT PAY STATUS DURING THE PERIOD OF THE SUSPENSION. CONSEQUENTLY, ON AND AFTER THE DATE OF THAT DECISION, WE MUST INSIST UPON THE VIEW THAT NEITHER THE GRANTING OF WITHIN-GRADE SALARY ADVANCEMENTS NOR THE ACCRUAL OF LEAVE ON LEAVE DURING THE PERIOD OF SUSPENSION IS PROPER.

SINCE THE CASES HERE INVOLVED OCCURRED PRIOR TO THE DATE OF THE DECISION OF AUGUST 11, 1955, AND AS THE INTERPRETATION OF OUR PRIOR DECISIONS, GENERALLY APPLICABLE TO THIS SUBJECT MATTER, WAS ..END :