Probes Find Improper Use of Religious Comp Time
Rule Violations by Federal Agencies or Individual Employees Can Mean Big Payouts for Workers

By John Solomon
Washington Post Staff Writer
Friday, October 12, 2007

When Mark Elengold retired as a top government drug regulator in 2005, he received $18,733 in his final paycheck, on top of his normal salary. The money was not a bonus, overtime pay or compensation for unused vacation hours. Rather, it was for time he had reserved to go to synagogue but had not actually used for that purpose during his three-decade career.

In bureaucratic parlance, Elengold's payment was for "religious compensation time," a little-known benefit created by a 1978 law that allows civilian federal employees to work small amounts of overtime, bank those hours and use them to take time off for religious observances without spending their vacation leave.

While the goals of the law were broadly supported at the time and have been promoted by the Bush administration, government and congressional investigators have found evidence in recent years that the religious benefit has sometimes been used improperly to pad vacation time and retirement cash-outs.

Early in the Bush administration, the Navy determined that three civilian managers in Rhode Island had accrued hundreds of hours of religious leave and used the time to play golf, gamble, run marathons and travel to Europe. They banked their regular vacation leave so that they would be eligible for large cash payouts upon retirement.

Asked whether he considered a golf tournament to be a religious observance, one of the workers told Navy investigators: "They could be for some people."

This fall, congressional investigators found that many workers in the Food and Drug Administration had been allowed to accrue or carry over religious leave in higher amounts than agency rules allowed. More than two dozen workers who changed jobs or retired were paid for unused portions of that leave, records obtained by The Washington Post show.

Religious comp time "is not intended to be used as a cash cow for retiring FDA bureaucrats," said Rep. Bart Stupak (D-Mich.), chairman of the House Energy and Commerce investigative subcommittee, which discovered the FDA problems. "To abuse this privilege as a moneymaking scam is an insult to men and women of faith." Rep. Joe L. Barton (Tex.), the Energy and Commerce Committee's senior Republican, has expressed similar concerns.

The agency's rules state that employees may accrue religious comp hours during a narrow window of time -- no more than four pay periods or eight workweeks. They must identify in writing the specific religious observances they plan to use the time for, and they must expend all the banked hours at such observances before accruing new religious leave.

The 1978 law that created religious comp time makes no mention of taking money for unused time and expressly states that federal employees can attend religious events "in lieu of overtime pay." Regulations that the government created later, however, state that workers can receive money for unused portions of religious comp time when they change jobs or retire.

FDA officials said they are investigating how some workers accrued large balances of such time. "We've determined some employees did earn the leave inappropriately. And if the leave was not used in the last year, those balances may be taken away from them," said Kimberly Holden, the FDA's assistant commissioner for management.

In 2001, one month after President Bush took office, his administration established a Web site that touted religious comp time and explicitly informed federal workers that they could receive pay for unused religious comp time when they left their jobs.

It also promoted the leave in other ways, including sending out reminders that workers could use the time for religious observances such as those surrounding the death of Pope John Paul II in 2005. The Justice Department also extended the benefit to its part-time workers that year.

The Office of Personnel Management says it does not track the use of religious leave, does not monitor for abuse and cannot estimate how many such hours the federal workforce accrues annually. "There are no government-wide requirements for tracking or reporting" the retention or use of religious comp time, spokesman Peter Graves said.

The lack of oversight troubles investigators on Stupak's subcommittee, who found that the FDA was not following its own rules about when and how often workers could bank religious comp time. Agency documents reviewed by The Post show that workers often used the leave without identifying a religious observance, as required.

Holden said FDA managers are updating the rules and are taking a refresher course. "I think there are some people who misinterpreted this compensatory time," she said. "We need to be a little more clear about what is going to be required."

FDA payroll records show that about 120 employees had more than 16 hours of religious leave banked. At the beginning of this year, at least 11 workers had unused balances in excess of 50 hours. And many were allowed to keep accumulating hours despite having large balances.

Joseph A. Biviano, now an associate director of management at the FDA's Center for Biologics Evaluation and Research (CBER), started 2006 with 243 hours of unused religious leave and was permitted to bank an additional 98.75 hours last year without expending any of the previous time. In January, the balance was converted to cash when Biviano was promoted, resulting in a $20,658 payout.

Biviano said he questioned the payment as soon as it showed up in his check in January. He repaid more than $13,000 of the money -- the net amount after taxes -- in April, about a month after congressional investigators first raised questions with the FDA about religious comp time being converted to money. Officials said the delay was caused by the FDA's payroll system.

Biviano declined to be interviewed about why he accrued so much religious leave and did not use it. But in a statement e-mailed to The Post through an agency spokeswoman, he said the payment in January was a "payroll error."

"I have never used any of the religious comp time. I want to make sure that is clear that I did not intentionally do anything to implement the payment of religious comp time to me," his statement said.

Elengold, who retired in 2005 as deputy director of CBER, said that he had banked hundreds of hours of religious comp time while working on a single project in the 1980s that required long overtime, and that he expended only about 40 hours each year for the major Jewish holidays. When he retired, he still had 192 hours in unused religious leave and was paid for it.

"When I got my last check, it was just there," he said in an interview. Though he was a manager for most of his FDA career, Elengold said that he was never told the rules governing religious comp time and that no one ever objected to his large leave balance.

"During the 20 years I was carrying that balance, if someone said to me that I should never have been credited, it wouldn't be an issue now. I sat through a lot of 'time and attendance' training classes, and it was never flagged. And they converted a couple of times, while I was there, to new time and leave systems, and it was never flagged then either."

At least 31 FDA employees have received payouts for unused religious comp time since 2002, the FDA told Congress. Biviano's and Elengold's were the largest; most of the other checks were less than $2,000.

Congressional investigators said they may demand repayments if employees were allowed to accrue too much religious leave. Stupak has asked the Department of Health and Human Services' inspector general to determine whether laws were broken.

While the FDA is auditing past problems and tightening its practices, it has no plans to review whether its 10,000 employees use the leave for religious observances. "We don't have the resources in agencies to determine whether an employee took religious comp time and then went golfing," Holden said.

That is exactly what happened at the Naval Undersea Warfare Center in Newport, R.I., according to a 2002 naval inspector general's report. It found that three senior managers had been allowed to accrue hundreds of hours of religious leave and use it in lieu of vacation time for almost a decade. By the time they were caught using the time for recreational purposes, the workers had each banked enough leave to be eligible for payouts of $195,000 to $250,000 when they retired, investigators found. They were stripped of the excess leave as part of the inquiry.

"The facts of this case suggested a pre-meditated, conspiratorial effort to defraud the government," the inspector general concluded.

When one of the workers was confronted with evidence that he had taken a lengthy European vacation using religious comp time, he sought to justify it by saying he "had a bonding experience with a half brother that lives in Germany" and "we spent some time visiting Zurich and the various churches," according to transcripts of the investigators' interviews obtained by The Post.

Another worker, a Catholic, used religious comp time at least nine times for medical appointments or to take a day off after a federal holiday, the report said.

The Navy ultimately decided not to prosecute the workers, who retired. Meanwhile, the colleague who blew the whistle on their conduct said he was moved from his job and placed temporarily on leave without pay. Eventually he retired and reached a settlement with the Navy over alleged retaliation.

"The Navy held this all so close and didn't open it up and allow for scrutiny," said Peter Duffy, the whistle-blower. "So Congress and the media and other agencies are at a loss about what went on. . . . It is very possible under the right set of circumstances that these kinds of abuses could happen again."