B-156287, FEB 5, 1975

B-156287, FEB 5, 1975

EXCUSED ABSENCES OF 14, 28 AND 31 DAYS, WITHOUT CHARGES TO LEAVE, GRANTED TO EMPLOYEES FOR BAR EXAMINATION PREPARATION ARE NOT AUTHORIZED BY STATUTE AND ARE NOT APPROPRIATE UNDER FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 630, SEC. S11, SINCE FPM GUIDELINES PERTAIN TO EXCUSING EMPLOYEES FOR PERIODS OF BRIEF DURATION. ALSO, PAID ABSENCE FOR VOLUNTARY TRAINING IS INAPPROPRIATE UNDER 5 U.S.C. SEC. 4109(A)(1) SINCE PAYMENT IS ONLY ALLOWED FOR TRAINING WHEN EMPLOYEE IS SELECTED AND ASSIGNED. HOWEVER, COLLECTION OF OVERPAYMENTS OF PAY RESULTING FROM IMPROPER GRANTS OF EXCUSED ABSENCES IS WAIVED SINCE OVERPAYMENTS WERE MADE THROUGH ADMINISTRATIVE ERROR WITHOUT FAULT ON PART OF THE EMPLOYEES.

EXCUSED ABSENCE FOR BAR EXAMINATION PREPARATION:

THIS IS A DECISION REQUESTED BY MR. REYNALDO P. MADURO, EXECUTIVE DIRECTOR OF THE CABINET COMMITTEE ON OPPORTUNITIES FOR SPANISH SPEAKING PEOPLE, REGARDING THE PROPRIETY OF EXCUSED ABSENCES GRANTED TO THREE EMPLOYEES FOR THE PURPOSE OF PREPARING FOR BAR EXAMINATIONS. ONE EMPLOYEE WAS GRANTED 14 DAYS OF EXCUSED ABSENCE DURING WHICH HE WAS PAID $790; THE SECOND EMPLOYEE WAS GRANTED 28 DAYS OF EXCUSED ABSENCE DURING WHICH HE WAS PAID $1,653; AND THE THIRD EMPLOYEE WAS GRANTED 31 DAYS OF EXCUSED ABSENCE DURING WHICH HE WAS PAID $1,774. THE COMMITTEE CEASED EXISTENCE ON DECEMBER 30, 1974, AND THE QUESTION AROSE DURING AN AUDIT BY THE GENERAL SERVICES ADMINISTRATION, WHICH PERFORMED PAYROLL SERVICES FOR THE COMMITTEE AND WHICH IS WINDING UP ITS AFFAIRS.

THERE IS NO GENERAL STATUTORY AUTHORITY FOR EXCUSING FEDERAL EMPLOYEES WITHOUT LOSS OF PAY OR CHARGE TO LEAVE DURING PERIODS WHERE NO OFFICIAL DUTIES ARE PERFORMED. CF. 5 U.S.C. SECS. 6321 AND 6322 (1970), WHEREIN EMPLOYEES ARE EXCUSED FOR SPECIFIC ACTIVITIES. HOWEVER, GUIDELINES HAVE BEEN DEVELOPED BY THE CIVIL SERVICE COMMISSION, IN ACCORDANCE WITH DECISIONS OF OUR OFFICE, WHICH ALLOW HEADS OF AGENCIES TO EXCUSE EMPLOYEES FOR BRIEF PERIODS OF TIME IN THE ABSENCE OF SUCH A STATUTE. FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 630, SEC. S11 (MAY 28, 1968). UNDER SEC. S11-5 OF THESE GUIDELINES, ADMINISTRATIVE DISCRETION MAY BE EXERCISED IN SITUATIONS, NOT SPECIFICALLY COVERED ELSEWHERE, TO EXCUSE EMPLOYEES FOR ABSENCES WITHOUT CHARGE TO LEAVE OR LOSS OF PAY. SECTION S11-5 WAS CITED AS AUTHORITY FOR GRANTING ADMINISTRATIVE LEAVE IN THIS INSTANCE.

WHILE SEC. S11-5 PROVIDES THE AGENCY WITH ADMINISTRATIVE DISCRETION IN CERTAIN SITUATIONS TO EXCUSE EMPLOYEES DURING BRIEF PERIODS OF ABSENCE, SUCH DISCRETION WOULD NOT APPEAR TO APPLY TO EXTENDED ABSENCES FOR BAR EXAMINATION STUDY. THE CITED REGULATION SETS FORTH A NUMBER OF SPECIFIC INSTANCES WHEN ABSENCES ARE EXCUSABLE: REGISTRATION AND VOTING (SEC. S11- 2); CIVIL DEFENSE ACTIVITIES (SEC. S11-3); AND PARTICIPATION IN MILITARY FUNERALS (SEC. S11-4). THE AUTHORITY FOR GRANTING SUCH EXCUSED ABSENCES IS DERIVED FROM AUTHORIZATIONS FROM THE PRESIDENT OR STATUTE. SIMILARLY, SEC. S11-5 PROVIDES EXAMPLES OF SITUATIONS WHERE AGENCIES MAY EXCUSE EMPLOYEES: BLOOD DONATIONS; TARDINESS AND BRIEF ABSENCE; TAKING EXAMINATIONS; ATTENDING CONFERENCES OR CONVENTIONS; AND REPRESENTING EMPLOYEE ORGANIZATIONS. ALL OF THE ABOVE ACTIVITIES HAVE GENERAL APPLICABILITY TO EMPLOYEES, AND ARE EITHER WORK RELATED OR CIVIC IN NATURE. IN ADDITION, ALL THESE ACTIVITIES REQUIRE BRIEF ABSENCES OR ARE SO LIMITED BY THE GUIDELINES THEMSELVES: THE MAXIMUM EXCUSED ABSENCE IS FOR CIVIL DEFENSE ACTIVITIES, 40 HOURS, AUTHORIZED BY EXECUTIVE ORDER 10529 OF APRIL 22, 1954. SIMILARLY, ADMINISTRATIVE LEAVE FOR DAILY, HOURLY AND PIECEWORK EMPLOYEES IS GENERALLY NOT ALLOWED TO EXCEED 3 DAYS. 3 C.F.R. SEC. 610.302 (1974). UNLIKE THE ABOVE ACTIVITIES, THE ABSENCES FOR THE BAR REVIEW STUDY INVOLVED HEREIN, ALTHOUGH THEY MIGHT BE CONSIDERED WORK RELATED, WERE FOR PERIODS OF EXTENDED DURATION BEYOND THOSE CONTEMPLATED BY THE GUIDELINES SET FORTH IN THE FPM SUPPLEMENT. THUS, THE FACT THAT THE COMMITTEE CHAIRMAN DECIDED THAT THE ACTIVITY WOULD EXPAND ITS EMPLOYEES' ABILITIES IS NOT SUFFICIENT OF ITSELF TO WARRANT A FINDING THAT ADMINISTRATIVE LEAVE IS APPROPRIATE. THIS IS PARTICULARLY SO SINCE, EMPLOYEE TRAINING BEING INVOLVED, THE PROVISIONS OF 5 U.S.C. SEC. 4101 ET SEQ. (1970) ARE NECESSARILY INVOLVED.

THE SUBMISSION LETTER REFERS TO PARTICIPATION IN THE BAR REVIEW COURSE BY THE COMMITTEE'S EMPLOYEES AS "U.S. CLASSROOM TRAINING *** DIRECTLY RELATED TO THEIR JOBS ***." HOWEVER, PAYMENT OF SALARY DURING AN EMPLOYEE'S PERIOD OF TRAINING MAY BE AUTHORIZED BY THE HEAD OF AN AGENCY ONLY IF SUCH EMPLOYEE WAS SELECTED AND ASSIGNED FOR TRAINING. 5 U.S.C. SEC. 4109(A)(1). WE ARE UNAWARE OF ANY STATUTORY AUTHORITY FOR PAYMENT OF AN EMPLOYEE'S SALARY DURING A PERIOD OF VOLUNTARY TRAINING, SUCH AS ATTENDANCE AT A BAR REVIEW COURSE, AS VOLUNTARY TRAINING IS NOT PART OF AN EMPLOYEE'S OFFICIAL DUTIES.

IN THE INSTANT CASE WE NOTE THAT UNDER ITS STATUTORY AUTHORITY THE COMMITTEE'S 5-YEAR EXISTENCE WAS TO TERMINATE ON DECEMBER 30, 1974, 42 U.S.C. SEC. 4312 (1970), AND IN FACT DID TERMINATE ON THAT DATE. THUS, FOLLOWING COMPLETION OF THE BAR REVIEW COURSE IN AUGUST 1974, ONLY 5 MONTHS REMAINED FOR UTILIZATION OF THE THREE EMPLOYEES' TRAINING BY THE COMMITTEE. IN THE INSTANT CASE THE EMPLOYEES ATTENDED THE BAR REVIEW COURSE AT THEIR OWN EXPENSE ON ANNUAL LEAVE UNTIL THAT WAS EXHAUSTED. UNDER SUCH CIRCUMSTANCES OUR OPINION IS THAT THE APPROVAL OF EXCUSED ABSENCES FOR SUCH GENERALIZED TRAINING AS A REFRESHER COURSE IN LAW WAS INAPPROPRIATE, THE EMPLOYEES SHOULD HAVE BEEN PLACED ON LEAVE WITHOUT PAY, AND THAT THEY RECEIVED OVERPAYMENTS FOR THE PERIODS DURING WHICH THEY WERE NOT PLACED ON SUCH LEAVE.

THE EXECUTIVE DIRECTOR HAS RECOMMENDED THAT THIS OFFICE WAIVE ANY CLAIMS OF OVERPAYMENT OF PAY WHICH WE DETERMINE EXIST. OVERPAYMENTS OF PAY ARISING OUT OF ADMINISTRATIVE ERRORS MAY BE WAIVED BY THIS OFFICE IF COLLECTION "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES." 5 U.S.C. SEC. 5584(A). OUR REGULATIONS IMPLEMENTING THIS PROVISION STATE IN PART (4 C.F.R. SEC. 91.5(C) (1974)):

"*** GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OR ALLOWANCES OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. ***"

TWO OF THE EMPLOYEES INITIALLY RESEARCHED THE SUBJECT OF EXCUSED ABSENCE PRIOR TO REQUESTING ADMINISTRATIVE LEAVE. ALSO, ONE EMPLOYEE HAS STATED THAT HIS REQUEST WAS TO PREPARE FOR TAKING THE BAR EXAMINATION, NOT MERELY INCIDENTAL TO IT. HOWEVER, THE EXECUTIVE DIRECTOR HAS REPORTED THAT THE GRANTS OF LEAVE WERE MADE UPON A RECOMMENDATION TO THE CHAIRMAN OF THE COMMITTEE, AFTER A RESEARCH OF THE PERTINENT REGULATIONS WAS MADE AT HIS DIRECTION AND HE WAS CONVINCED THAT THE ATTENDANCE OF THE EMPLOYEES WOULD BENEFIT THE AGENCY. HE STATED THAT MEMBERSHIP IN THE BAR WAS NOT REQUIRED OF THE EMPLOYEES BUT WOULD AID THEM IN WORK WHICH WAS CONCERNED WITH IMMIGRATION LAW, ETC. MOREOVER, HE STATED THERE WAS NEVER THE SLIGHTEST INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF ANYONE CONNECTED WITH THE SITUATION.

ACCORDINGLY, THE INDEBTEDNESS OF THE EMPLOYEES MAY BE WAIVED BY THE GENERAL SERVICES ADMINISTRATION WHICH, AS NOTED ABOVE, IS WINDING UP THE AFFAIRS OF THE COMMITTEE.