A-50911, SEPTEMBER 20, 1933, 13 COMP. GEN. 84

A-50911: Sep 20, 1933

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THOSE WHO ARE GIVEN PERMANENT APPOINTMENTS FOLLOWING SUCH TEMPORARY APPOINTMENTS. THE BUREAUS OF IMMIGRATION AND NATURALIZATION WERE CONSOLIDATED AS AN IMMIGRATION AND NATURALIZATION SERVICE. PENDING THE SELECTION OF THOSE WHO ARE TO BE REAPPOINTED PERMANENTLY. IN MY OPINION THESE EMPLOYEES ARE IN A SITUATION SOMEWHAT DIFFERENT FROM EMPLOYEES WHO NEVER HAVE HAD A PERMANENT CIVIL-SERVICE STATUS AND ARE APPOINTED TEMPORARILY FOR SOME PARTICULAR JOB OF SHORT DURATION. WHO HAVE BEEN TEMPORARILY APPOINTED IN THE CONSOLIDATED IMMIGRATION AND NATURALIZATION SERVICE. IF THIS QUESTION IS ANSWERED IN THE NEGATIVE. IF THIS QUESTION IS ANSWERED IN THE NEGATIVE. IN CONNECTION WITH THE FOREGOING IT MAY BE STATED THAT THE DEPARTMENT WILL BE IN A POSITION TO DETERMINE WITHIN THE NEXT FOUR WEEKS THOSE WHO ARE TO BE GIVEN PERMANENT APPOINTMENTS AND DOES NOT CONTEMPLATE GRANTING LEAVE TO ANY TEMPORARY EMPLOYEES WHO ARE NOT TO BE RETAINED PERMANENTLY.

A-50911, SEPTEMBER 20, 1933, 13 COMP. GEN. 84

LEAVES OF ABSENCE - EMPLOYEES AFFECTED BY REORGANIZATION PURSUANT TO THE GENERAL RULE THAT LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS, THOSE EMPLOYEES OF THE BUREAUS OF IMMIGRATION AND NATURALIZATION GIVEN TEMPORARY APPOINTMENTS OF 4 MONTHS AFTER HAVING BEEN SEPARATED EFFECTIVE AUGUST 10, 1933, FROM THEIR PERMANENT POSITIONS BY FORCE OF SECTIONS 14 AND 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, MAY NOT BE GIVEN LEAVE OF ABSENCE WITH PAY WHILE SERVING UNDER SUCH TEMPORARY APPOINTMENTS, BUT THOSE WHO ARE GIVEN PERMANENT APPOINTMENTS FOLLOWING SUCH TEMPORARY APPOINTMENTS, MAY BE CREDITED WITH ANNUAL AND SICK LEAVE EARNED BOTH PRIOR AND SUBSEQUENT TO AUGUST 10, 1933, WHILE SERVING UNDER BOTH PERMANENT AND TEMPORARY APPOINTMENTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, SEPTEMBER 20, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 5, 1933, AS FOLLOWS:

ON AUGUST 10, 1933, THE BUREAUS OF IMMIGRATION AND NATURALIZATION WERE CONSOLIDATED AS AN IMMIGRATION AND NATURALIZATION SERVICE, IN ACCORDANCE WITH THE PROVISIONS OF AN EXECUTIVE ORDER APPROVED JUNE 10, 1933. ORDER TO AVOID ANY INTERRUPTION OR DELAY IN THE WORK OF THE COMBINED SERVICES IT BECAME NECESSARY TO REAPPOINT ALL EMPLOYEES ON A TEMPORARY BASIS NOT TO EXCEED FOUR MONTHS, PENDING THE SELECTION OF THOSE WHO ARE TO BE REAPPOINTED PERMANENTLY. THIS HAS DEPRIVED EMPLOYEES OF EARNED LEAVE OF ABSENCE AND HAS CAUSED CONSIDERABLE HARDSHIP IN MANY CASES.

IN MY OPINION THESE EMPLOYEES ARE IN A SITUATION SOMEWHAT DIFFERENT FROM EMPLOYEES WHO NEVER HAVE HAD A PERMANENT CIVIL-SERVICE STATUS AND ARE APPOINTED TEMPORARILY FOR SOME PARTICULAR JOB OF SHORT DURATION. THEREFORE REQUEST YOUR DECISION ON THE FOLLOWING QUESTIONS:NATURALIZATION, WHO HAVE BEEN TEMPORARILY APPOINTED IN THE CONSOLIDATED IMMIGRATION AND NATURALIZATION SERVICE, BE NOW GRANTED ANNUAL AND SICK LEAVE EARNED BUT NOT TAKEN PRIOR TO AUGUST 10? IF THIS QUESTION IS ANSWERED IN THE NEGATIVE, MAY SUCH EMPLOYEES AFTER BEING PERMANENTLY APPOINTED BE CREDITED WITH AND GRANTED ANNUAL AND SICK LEAVE EARNED PRIOR TO AUGUST 10, 1933?

(B) MAY SUCH EMPLOYEES BE GRANTED ANNUAL AND SICK LEAVE EARNED BEGINNING AUGUST 10, 1933, WHILE IN A TEMPORARY STATUS? IF THIS QUESTION IS ANSWERED IN THE NEGATIVE, MAY SUCH EMPLOYEES AFTER BEING PERMANENTLY APPOINTED BE CREDITED WITH AND GRANTED ACCRUED ANNUAL AND SICK LEAVE FROM AUGUST 10, 1933?

IN CONNECTION WITH THE FOREGOING IT MAY BE STATED THAT THE DEPARTMENT WILL BE IN A POSITION TO DETERMINE WITHIN THE NEXT FOUR WEEKS THOSE WHO ARE TO BE GIVEN PERMANENT APPOINTMENTS AND DOES NOT CONTEMPLATE GRANTING LEAVE TO ANY TEMPORARY EMPLOYEES WHO ARE NOT TO BE RETAINED PERMANENTLY.

THE GENERAL RULE IS THAT LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS, THAT IS, EMPLOYEES SERVING UNDER APPOINTMENTS OF A DEFINITE DURATION. (3 COMP. GEN. 382; 4 ID. 650; 5 ID. 903; 6 ID. 175, 266, 275.)

THE EMPLOYEES HERE IN QUESTION WERE AUTOMATICALLY SEPARATED FROM THEIR PERMANENT POSITIONS AT THE CLOSE OF BUSINESS AUGUST 9, 1933, BY FORCE OF SECTIONS 14 AND 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933. (SEE 13 COMP. GEN. 4, AND DECISION OF AUGUST 2, 1933, A-50257.) WITH THE LOSS OF THEIR PERMANENT STATUS, THE EMPLOYEES LOST THE RIGHT TO RECEIVE LEAVE OF ABSENCE WITH PAY WHILE SERVING UNDER THEIR TEMPORARY APPOINTMENTS FOR A DEFINITE PERIOD WHICH YOU STATE IS NOT TO EXCEED FOUR MONTHS. HOWEVER, IN DECISION OF DECEMBER 31, 1924, 4 COMP. GEN. 575, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE AN EMPLOYEE OF A NAVY YARD OR NAVAL STATION SERVES CONTINUOUSLY UNDER SUCCESSIVE PERMANENT, TEMPORARY, AND PERMANENT APPOINTMENTS DURING TWO CONSECUTIVE YEARS, THE ENTIRE PERIOD OF SERVICE MAY BE COUNTED FOR LEAVE PURPOSES, UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, BUT THAT LEAVE ACCRUED FOR THE FIRST SERVICE YEAR MAY NOT BE GRANTED DURING THE SECOND SERVICE YEAR UNTIL SUFFICIENT SERVICE HAS BEEN RENDERED UNDER THE PERMANENT APPOINTMENT IN THE SECOND SERVICE YEAR.

ACCORDINGLY, THE FIRST PARTS OF BOTH QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE AND THE LAST PARTS OF BOTH QUESTION (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE.