B-175428, OCT 16, 1972

B-175428, OCT 16, 1972

EMPLOYEES OF THE DISTRICT OF COLUMBIA COURTS - RIGHTS AND PRIVILEGES DECISION CONCERNING THE RIGHTS OF 30 EMPLOYEES WHO WERE TRANSFERRED FROM THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNDER SECTION 192(A)(2)(A) OF THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970, PUB. L. 91-358. IT IS THE VIEW OF THE COMP. GEN. THAT THE INTENT OF CONGRESS WAS TO INSURE THAT THE TRANSFERRED EMPLOYEES WOULD RETAIN SUCH RIGHTS, PRIVILEGES AND BENEFITS TO WHICH THEY PREVIOUSLY HAD BEEN ENTITLED BY LAW OR REGULATION ISSUED PURSUANT TO LAW. FURTHER, IT IS NOT BELIEVED THAT SUCH TEMPORARY AUTHORIZATION OF THESE POSITIONS IN THE LEGISLATIVE HISTORY OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1973, PENDING FURTHER ANALYSIS OF THE PERSONNEL NEEDS OF THE COURT, DEFEATS THE SPECIFIC PROVISIONS IN THE 1970 ACT GUARANTEEING TO THE INDIVIDUALS TRANSFERRED THE RETENTION OF THEIR RIGHTS, PRIVILEGES AND BENEFITS AND THEIR STATUS AS CONTINUOUS EMPLOYEES OF THE SUPERIOR COURT.

TO MR. ARNOLD M. MALECH:

WE REFER TO YOUR LETTER OF JULY 13, 1972, CONCERNING THE RIGHTS OF 30 EMPLOYEES WHO WERE TRANSFERRED FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA ON AUGUST 1, 1972, UNDER SECTION 192(A)(2)(A) OF THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1970, PUBLIC LAW 91-358, JULY 29, 1970, 84 STAT. 473, 593.

YOU STATE THAT EFFECTIVE AUGUST 1, 1972, CERTAIN OF THE JURISDICTION THAT WAS FORMERLY VESTED IN THE UNITED STATES DISTRICT COURT BECAME VESTED IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA PURSUANT TO THE ABOVE-CITED LAW. ON JUNE 7, 1972, PURSUANT TO SECTION 192(A)(2)(A) OF THE ACT, THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET MADE A DETERMINATION, AND LISTED 30 PERSONNEL WHO, AS A SUBSTANTIAL PART OF THEIR DUTIES, PERFORM FUNCTIONS INCIDENT TO THE JURISDICTION TRANSFERRED UNDER TITLE I OF THE CITED ACT FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA.

SUBSECTION 192(A)(2)(A) OF THE ACT PROVIDES:

"(2)(A) ***PERSONNEL OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WHO THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET DETERMINES ARE, AS A SUBSTANTIAL PART OF THEIR DUTIES, PERFORMING FUNCTIONS INCIDENT TO JURISDICTION TRANSFERRED UNDER THIS TITLE TO THE SUPERIOR COURT SHALL BE ENTITLED TO TRANSFER TO THE SUPERIOR COURT, AND UPON SUCH TRANSFER SHALL RETAIN ALL OF THEIR RIGHTS, PRIVILEGES, AND BENEFITS, AND SHALL BE CONSIDERED AS CONTINUOUS EMPLOYEES OF THE SUPERIOR COURT WITHOUT BREAK IN SERVICE."

YOUR CONCERN IN THE MATTER RELATES IN PART TO THE STATED CIRCUMSTANCE THAT THE 30 POSITIONS WERE ESTABLISHED AS "TEMPORARY" BY "CONGRESS IN APPROVING THE DISTRICT OF COLUMBIA APPROPRIATIONS FOR FISCAL YEAR 1973." IN THAT RESPECT WE NOTE FROM AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1973, PUBLIC LAW 92-344, APPROVED JULY 10, 1972, THAT THE 30 POSITIONS WERE INCLUDED IN THE REQUEST FOR NEW PERMANENT POSITIONS FOR THE SUPERIOR COURT, ALTHOUGH THEY IN FACT REPRESENTED TRANSFERS FROM THE U. S. DISTRICT COURT. SEE PAGE 786, PART 1 OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON THE DISTRICT OF COLUMBIA APPROPRIATIONS FOR 1973. ALSO, WE NOTE THAT THESE REQUESTED "NEW" POSITIONS EVIDENTLY WERE ESTABLISHED AS TEMPORARY POSITIONS FOR PURPOSES OF THE APPROPRIATION. SEE PAGE 21, SENATE REPORT NO. 92-844.

IN VIEW OF THE FOREGOING YOU REQUEST GUIDANCE ON THE FOLLOWING MATTERS:

"1. WHAT RIGHTS, PRIVILEGES, AND BENEFITS DO THE TRANSFERRED EMPLOYEES HAVE NOW AS EMPLOYEES OF THE UNITED STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA WHICH WILL BE RETAINED WHEN THEY TRANSFER TO THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA?

"2. WHAT IS THE EFFECT UPON THE PERSONNEL SO TRANSFERRED PURSUANT TO THE DETERMINATION MADE BY THE DIRECTOR OF THE UNITED STATES OFFICE OF MANAGEMENT AND BUDGET FROM PERMANENT POSITIONS IN THE UNITED STATES DISTRICT COURT TO TEMPORARY POSITIONS IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA?"

APPARENTLY CERTAIN PROVISIONS OF THE LAWS APPLICABLE TO SUCH INDIVIDUALS AS EMPLOYEES OF THE UNITED STATES WOULD CONTINUE TO BE APPLICABLE TO THE TRANSFERRED EMPLOYEES. WE ASSUME THIS INCLUDES VETERANS PREFERENCE, RETIREMENT, HEALTH INSURANCE AND LIFE INSURANCE. IN ADDITION WE NOTE THAT COMPETITIVE CIVIL SERVICE STATUS MAY BE SAVED FOR SOME EMPLOYEES UNDER SECTION 192(B). DETERMINATIONS AS TO WHICH OF THOSE LAWS WOULD BE APPLICABLE, HOWEVER, IS PRIMARILY THE RESPONSIBILITY OF THE CIVIL SERVICE COMMISSION. AS TO THE ANNUAL AND SICK LEAVE PROVISIONS OF 5 U.S.C. 6301 ET SEQ., WE SEE NO REASON WHY SUCH PROVISIONS WOULD NOT GENERALLY BE APPLICABLE REGARDLESS OF SECTION 192(A)(2)(A), ABOVE, SINCE EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE SPECIFICALLY INCLUDED UNDER 5 U.S.C. 6301, WITH CERTAIN EXCEPTIONS.

REGARDING OTHER RIGHTS, PRIVILEGES AND BENEFITS WHICH THE TRANSFERRED EMPLOYEES MAY BE ENTITLED TO RETAIN, WE NOTE THAT SENATE REPORT NO. 91 405, COMMENTING ON SIMILAR LANGUAGE IN SECTION 103 OF THE BILL WHICH WAS UNDER CONSIDERATION, CONTAINS THE FOLLOWING STATEMENT AT PAGE 34:

"*** THIS SECTION ALSO ALLOWS THE TRANSFER OF PERSONNEL FROM THE U. S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO THE NEW SUPERIOR COURT WITH ALL THEIR RIGHTS, PRIVILEGES, AND BENEFITS OF OFFICE."

IT IS OUR VIEW THAT THE INTENT OF CONGRESS WAS TO INSURE THAT THE TRANSFERRED EMPLOYEES WOULD RETAIN SUCH RIGHTS, PRIVILEGES AND BENEFITS TO WHICH THEY PREVIOUSLY HAD BEEN ENTITLED BY LAW OR REGULATION ISSUED PURSUANT TO LAW. WE DO NOT FIND ANYTHING IN THE LEGISLATIVE HISTORY OF THE ACT IN QUESTION WHICH INDICATES THAT ALL INCIDENTAL PRIVILEGES AND BENEFITS WHICH THESE EMPLOYEES MAY HAVE ENJOYED AT THE DISCRETION OF THEIR FORMER EMPLOYER MUST BE ACCORDED TO THEM BY THE SUPERIOR COURT.

REGARDING THE FACT THAT THE POSITIONS TRANSFERRED WERE ESTABLISHED AS TEMPORARY POSITIONS IN THE SUPERIOR COURT UNDER THE DISTRICT OF COLUMBIA APPROPRIATIONS PROCESS, WE DO NOT BELIEVE THAT SUCH TEMPORARY AUTHORIZATION OF THESE POSITIONS IN THE LEGISLATIVE HISTORY OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1973, PENDING FURTHER ANALYSIS OF THE PERSONNEL NEEDS OF THE COURT DEFEATS THE SPECIFIC PROVISIONS IN THE 1970 ACT GUARANTEEING TO THE INDIVIDUALS TRANSFERRED THE RETENTION OF THEIR RIGHTS, PRIVILEGES AND BENEFITS AND THEIR STATUS AS CONTINUOUS EMPLOYEES OF THE SUPERIOR COURT.

BECAUSE OF THE GENERAL NATURE OF THE QUESTION PRESENTED WE ARE UNABLE TO PROVIDE A MORE SPECIFIC ANSWER. HOWEVER, IF YOU HAVE DOUBT AS TO THE APPLICATION OF A PARTICULAR LAW WITHIN OUR JURISDICTION, WE SUGGEST YOU SEEK OUR ADVICE WITH RESPECT THERETO.