02/04/2025
This is from Dan Schember, our legal counsel.
All:
I recommend that employees not accept the "Fork in the Road" offer of "deferred resignation," to be effective September 30. The OPM FAQs say that, until September 30, those who accept the offer will be on "administrative leave." This "administrative leave" status, however, may be unlawful. If this status is found to be unlawful, employees in this status could be ordered to repay the pay they receive in that status.
The "administrative leave" statute, 5 U.S.C. § 6329a, states that administrative leave is limited to ten days per calendar year. Regulations issued December 17, 2024, purport to apply this limit only to administrative leave for investigative purposes, 5 CFR § 630.1404(a); but the plain language of the statute applies the limit to all "administrative leave." There is a substantial risk that the regulatory restriction of the ten-day limit to leave for investigative purposes could be held unlawful. Statutes are higher law than regulations. Thus, there is a substantial risk that paying an employee for more than ten days of Fork in the Road "administrative leave" is unlawful. February 6 to September 30 is far longer than ten days.
The "administrative leave" statute also states that this leave is for "acceptable agency uses" based on "guidance" that OPM "shall . . . prescribe" in "regulations." The clear implication of the statute is that only some, not all, agency uses of administrative leave are "acceptable." The "sense of Congress" accompanying the enactment of the statute said that "administrative leave should be used sparingly." 130 Stat. 2460. Before the statute was enacted, the established meaning of "administrative leave" was leave for a specific purpose that serves the interests of the government--such as blood donation, fire and rescue service, or presentation at a conference of a paper concerning an employee's government work. The OPM FAQs, however, state that an employee may use Fork in the Road "administrative leave" for any purpose the employee desires, including relaxing at home or traveling to a vacation destination. Historically, administrative leave has not been allowed for such purposes. In my opinion, Congress, in enacting the "administrative leave" statute, did not contemplate that such uses are "acceptable." In my opinion, "administrative leave" that allows an employee to do whatever the employee desires is unlawful, because it is not a reasonable interpretation of the statute.
The new regulations, moreover, do not say that an employee may be granted administrative leave to do whatever the employee desires. To the contrary, 5 CFR § 630.1403(a)(1) states:
Administrative leave may be granted (subject to the requirements of this section) only when—
(i) The absence is directly related to the agency's mission;
(ii) The absence is officially sponsored or sanctioned by the agency;
(iii) The absence will clearly enhance the professional development or skills of the employee in the employee's current position; or
(iv) The absence is in the interest of the agency or of the Government as a whole.
Section 630.1403(a)(2) and (3) state that "[a]dministrative leave . . . should be used sparingly . . . for brief or short periods of time--usually for not more than 1 workday"; and that longer periods must be "determined to be appropriate by an agency." Section 630.1403(a)(4) states, "Generally administrative leave should be granted on an ad hoc, event-specific, or time-limited basis." Section 630.1403(a)(4) states that in deciding whether to grant administrative leave, an agency must consider "[t]he effect on productivity and the agency's ability to meet mission needs," "policies that identify Governmentwide interests," and "[t]he strength of the justification" for the leave. In my opinion, there is a substantial risk that grant of "administrative leave" allowing an employee to do whatever the employee desires--particularly a multi-month grant of such leave--would be held to be incompatible with these regulatory provisions, as well as the statute.
In my opinion, expenditure of government funds for unlawful "administrative leave" violates the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1) and the Purpose Statute, 31 U.S.C. § 1301(a), because under these laws government funds may be spent only for purposes authorized by Congress.
When an employee receives an unlawful payment from the government, the employee can be ordered to pay it back. Although the government may grant an employee's request to waive the requirement to pay back the money, there is no legal guarantee that a waiver request will be granted. In my opinion, the Fork in the Road circumstances would warrant grant of a waiver, at least for employees who would face hardship if they had to pay the money back. But what degree of hardship would be deemed to be sufficient to justify a waiver is uncertain.
In sum, accepting Fork in the Road "deferred resignation" with interim "administrative leave" is legally risky. I recommend that employees not take this risk.
Dan
www.actnat.com
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