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B-226638 1 (1987-09-23)

handle is hein.gao/gaobadmvr0001 and id is 1 raw text is: LE The Comptroller General of the United States Washington, D.C. 20548 Decision Anthony J. Calio - Restoration of Annual and Matter of- Sick Leave File: B-226638 Date: September 23, 1987 DIGEST An agency failed to advise a career Senior Executive Service (SES) member prior to receiving a Presidential appointment to a Executive Level IV position that he could elect to continue receiving annual and sick leave or other SES benefits during his Presidential appointment, as provided in 5 U.S.C. § 3392(c) (1982). As a result of the agency's failure to properly counsel the employee, the employee placed his annual and sick leave balance in abeyance and did not elect to retain leave benefits for a period of 4 years. We conclude that the agency's failure to properly advise the employee constituted an unwarranted personnel action and that the annual and sick leave the employee would have earned during this period may be retroactively restored. .DECISION Mr. John M. Golden, Director for Personnel and Civil Rights, Department of Commerce, requests our opinion whether annual and sick leave may be credited to a career Senior Executive Service (SES) member during the period he served in a Presidential appointment. We hold that this annual and sick leave may be restored under the Back Pay Act because the agency's failure to properly advise the employee of his option to retain certain SES benefits, including leave, while serving under a Presidential appointment constituted an unwarranted personnel action. BACKGROUND According to the request submitted by the Department of Commerce, Mr. Anthony J. Calio was a career SES member at the National Aeronautical and Space Administration who, on December 20, 1981, received a Presidential appointment to the Executive Level IV position of Deputy Administrator of the National Oceanic and Atmospheric Administration (NOAA). The NOAA Personnel Office processed Mr. Calio's new

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