Legal Opinion: GMP-0023

Index: 6.600, 6.635

Subject: Leave\--Request for Assistance

November 15, 1991

MEMORANDUM FOR: Barbara Malebranche, Chief Employee Relations

Branch, APR

FROM: Carole W. Wilson, Associate General Counsel for Equal

Opportunity and Administrative Law, GM

SUBJECT: Request for Assistance

This is in response to your recent inquiry regarding the use

of Government resources to solicit donations of leave under the

voluntary leave transfer program. Specifically, you asked

whether a HUD employee may, consistent with the Department\'s

Standards of Conduct regulation, use the Department\'s electronic

mail to solicit approximately fifty (50) Department employees.

Based on the information provided, it is my opinion that this

method of solicitation is not consistent with the Standards of

Conduct.

Public Law 100-566 (5 U.S.C. 6331) established a five year

voluntary leave transfer program to permit Federal employees to

donate annual leave to other employees experiencing medical or

family medical emergencies. The statute did not specifically

address the solicitation of leave. Rather, it simply authorized

one employee to transfer leave to the account of another employee

experiencing a medical emergency. The statute did, however,

authorize the Office of Personnel Management (OPM) to issue

regulations to administer the program.

On January 31, 1989, OPM issued regulations under this

authority. The regulation did not address the solicitation of

leave but specifically delegated to each Federal agency authority

to issue regulations to further define the program.

Consequently, on June 29, 1991, the Department issued Handbook

600.3. Paragraph 7a of the Handbook provides that:

a pproved leave recipients may solicit donations of

leave from eligible Federal employees or receive help

in making such solicitations.

The analysis of your question does not end here. This part

of the Handbook can not be read in isolation; rather, other

Departmental regulations must be reviewed consistent with the

Handbook. Specifically, your inquiry raises two concerns under

the Department\'s Standards of Conduct regulations.

First, under 0.735-205 employees are prohibited from using

Government resources for other than officially approved business.

While one might argue that approval as a leave recipient under

the procedures outlined in that Handbook makes the use of the

Department\'s electronic mail official, the argument neglects the

fact that the Handbook does not specifically authorize the use of

the electronic mail to solicit leave. Consequently, it is our

opinion that leave recipients are prohibited from using this

resource to solicit leave. We have been informed that the

Department issues a staff bulletin quarterly which lists approved

leave recipients.

Moreover, 0.735-202(c) prohibits employees from soliciting

gifts from other employees who receive less pay than themselves.

The rule excepts solicitations of donations of \"modest value\"

made because of special circumstances such as illness. However,

this rule was only intended to allow for the purchase of items of

limited value, such as flowers or cards. The value of a day of

leave would exceed this limitation. It appears that the message

in question may have been directed to individuals receiving less

pay than the individual who originated the message, and

consequently would not comport with 0.735.202 of the Standards

of conduct.

Because this a close question, I recommend that the indi-

vidual originating the message in question not be adversely

affected by this opinion. Future leave recipients, however,

should be counseled on the limitations on solicitation of leave.

Please contact me or Aaron Santa Anna if you have further

questions regarding this matter.