Office of the General Counsel

Matter of: [xxx]
File Number: S001036
Date: June 7, 1999

OPM Contact: Jo-Ann Chabot

This is a claim for 240 hours of retroactive compensatory time or excused absence (administrative leave). The claimant also submitted a request for a waiver of a debt for the same amount of leave owed to the government as well as a request to recredit 220 hours of annual leave and 13.75 credit hours that the claimant alleges were improperly deducted from his account in payment of the debt. We cannot grant the claim or the requests for the reasons stated below.

The claimant, a federal employee, was employed in an agency of the Department of Defense (DOD). He reports that, after he passed the certification examination for his profession, his immediate supervisor agreed to reimburse him for time spent in class and studying to prepare for the examination by crediting him with 240 hours of "unofficial" compensatory time. The claimant also reports that his class and study time occurred in the evenings or on the weekends, and that his supervisor advised that the compensatory time would be "unofficial" because it was awarded retroactively. He notes that his supervisor required him to keep detailed records (off the official time sheet) while taking the unofficial compensatory time, and to advise the supervisor of his progress in using the time. The claimant states that he and his supervisor agreed that he would use all of the unofficial compensatory time by April 1997.

Based on an agency memorandum of August 26, 1994, forbidding the use of unofficial compensatory time, the agency determined that the claimant was indebted to the government for the 240 hours of unofficial compensatory time off that he took and refused to waive collection of the debt.⁽¹⁾ Thus, the agency acted to recoup the debt by offsetting it against the claimant's existing balances of 22 hours of annual leave and 13.75 credit hours. In ruling on the claimant's grievance, the agency refused to waive collection of the debt, found that it should not have offset the claimant's annual leave without his consent, advised that claimant that the 233.75 hours would be recredited to his account, and gave the claimant the option of an offset against his annual leave account or the establishment of a debt. The agency further advised that, if the claimant did not make a selection, he would be placed in a leave without pay status to establish the debt. The claimant reports that the agency has not recredited the leave to his account and also has garnished his salary.

As a result of legislative and executive action, the authority to waive overpayments of pay and allowances now resides with the heads of agencies, regardless of the amount. See the General Accounting Office Act of 1996, Pub. L. No. 104-316, 110 Stat. 3826, approved October 19, 1996, and the Office of Management and Budget's Determination Order dated December 17, 1996. Neither Pub. L. No. 104-316 nor OMB's Determination Order of December 17, 1996, authorizes the Office of Personnel Management (OPM) to make or to review waiver determinations involving erroneous payments of pay or allowances. Accordingly, the Claims Adjudication Unit does not have jurisdiction to consider, or issue a decision on, the claimant's request for a waiver.

Regarding the claim for excused absence and official compensatory time, an excused absence (commonly called administrative leave) is an administratively authorized absence from duty that occurs without loss of pay and without charge to leave. Matter of Satwant Singh Bajwa, B-185128 (December 3, 1975); Matter of Excused Absence for Bar Examination Preparation, B-156287 (February 5, 1975). The claimant stated that his class and study time occurred in the evening and on the weekend. Accordingly, the claimant cannot be granted an excused absence because the time he spent studying and attending classes occurred outside of his established duty hours. His claim for excused absence is denied.

The claimant is not entitled to compensatory time for class time or associated study time. An employee may be compensated for time spent in training only if the employee was selected for, and assigned to, the training. See Matter of Excused Absence for Bar Examination Preparation, B-156287 (February 5, 1975); 5 U.S.C. 4109(a)(1). The file does not include any evidence showing that the claimant was selected for, and assigned to attend, the class by an agency official with the authority to take such action. Moreover, the claimant would not be entitled to compensatory time even if he had been selected and assigned to take the class. Section 5542 of title 5, United States Code, provides for overtime compensation. Section 5543 provides for granting compensatory time off from an employee's scheduled tour of duty instead of payment for an equal amount of time spent in irregular or occasional overtime work. Because it is granted in lieu of overtime pay, compensatory time is subject to the restrictions on overtime pay specified in 5 U.S.C. 4109(a)(1) and 5 CFR 410.402(a). Matter of Pamala J. Powell, B-249835 (January 29, 1993); Matter of the Administrator, Federal Aviation Agency, 39 Comp. Gen. 453 (B-141321, December 18, 1959). These provisions prohibit payment of overtime pay for time spent in training. Matter of Pamala J. Powell, supra; Matter of Raymond J. McManus, B-189006 (July 11, 1977); Matter of the Administrator, Federal Aviation Agency, supra. Although 5 CFR 410.402(b) provides for exceptions to the prohibition, the record does not include any evidence that an exception applies here.⁽²⁾ The claimant's study time is closely associated with the class that he took and, therefore, also is time spent in training. It would be subject to the same overtime restrictions as the time he spent in class. Accordingly, the claim for compensatory time is denied.

This settlement is final. No further administrative review is available within the OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

1. In this connection, the agency stated that, except for specific exceptions that did not apply to the claimant's case, compensatory time could not be granted to an employee for time spent in training. It also stated that it could not grant him excused absence for time spent in classes that occurred on the weekend.

2. The exceptions involve training given: (1) during a period of duty for which the employee already is receiving premium pay; (2) at night because situations that the employee must learn to handle occur only at night; (3) on overtime, a holiday, or a Sunday because the costs of the training, including premium pay, are less than the costs of the same training given during regular work hours; (4) to a criminal investigator who is eligible for availability pay; and (5) when OPM has granted the employing agency an exemption from the prohibition against payment of overtime.