A-51931, MAY 13, 1939, 18 COMP. GEN. 853

A-51931: May 13, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHOSE EXTENSIONS OF APPOINTMENT WERE SIMILARLY SO LIMITED. IS A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES EVEN THOUGH PAID FROM EMERGENCY FUNDS AND. IS NOT ENTITLED TO ADVANCE ANNUAL OR SICK LEAVE PRIOR TO JANUARY 1. PAID DURING THE PERIOD OF UNAUTHORIZED LEAVE ADVANCES AFTER WHICH THERE WAS NO RETURN TO DUTY BECAUSE OF THE CONDITION OF HER HEALTH. IS AS FOLLOWS: THE COMMISSION HAS RECEIVED FROM THE DEPARTMENT OF AGRICULTURE A REQUEST TO WITHHOLD FROM THE REFUND OF RETIREMENT DEDUCTIONS OTHERWISE DUE MRS. STUART WAS TRANSFERRED FROM THE WAR DEPARTMENT TO THE DEPARTMENT OF AGRICULTURE EFFECTIVE OCTOBER 16. NONE WAS SPECIFIED IN THE TRANSFER CERTIFICATE ISSUED BY THIS COMMISSION. AS THE WORK IN THE BUREAU OF PUBLIC ROADS WAS FINANCED BY EMERGENCY FUNDS.

A-51931, MAY 13, 1939, 18 COMP. GEN. 853

LEAVES OF ABSENCE ADVANCES - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - NONRETURN TO DUTY - TEMPORARY AND EMERGENCY EMPLOYEES AN EMPLOYEE ORIGINALLY APPOINTED UNDER EMERGENCY FUNDS FOR A DEFINITE PERIOD NOT TO EXCEED SIX MONTHS, WHOSE EXTENSIONS OF APPOINTMENT WERE SIMILARLY SO LIMITED, IS A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES EVEN THOUGH PAID FROM EMERGENCY FUNDS AND, AS SUCH, IS NOT ENTITLED TO ADVANCE ANNUAL OR SICK LEAVE PRIOR TO JANUARY 1, 1938, UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND REGULATIONS ISSUED PURSUANT THERETO, AND EVEN THOUGH SEPARATED FROM THE SERVICE AFTER JANUARY 1, 1938, RECOVERY OF THE EXCESS COMPENSATION, PAID DURING THE PERIOD OF UNAUTHORIZED LEAVE ADVANCES AFTER WHICH THERE WAS NO RETURN TO DUTY BECAUSE OF THE CONDITION OF HER HEALTH, MAY NOT BE WAIVED UNDER SECTIONS 4 (B) AND 11 OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938. 18 COMP. GEN. 383, DISTINGUISHED, AND EMERGENCY EMPLOYEES RIGHTS AND LIABILITIES DISCUSSED UNDER SIMILAR CIRCUMSTANCES.

COMPTROLLER GENERAL BROWN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 13, 939:

YOUR LETTER OF APRIL 21, 1939 (FILE CSR-421850), IS AS FOLLOWS:

THE COMMISSION HAS RECEIVED FROM THE DEPARTMENT OF AGRICULTURE A REQUEST TO WITHHOLD FROM THE REFUND OF RETIREMENT DEDUCTIONS OTHERWISE DUE MRS. IRMA STUART THE SUM OF $88.42 TO COVER EXCESS ANNUAL AND SICK LEAVE AGGREGATING 22 DAYS AND 45 MINUTES TAKEN IN THE CALENDAR YEAR 1937.

MRS. STUART WAS TRANSFERRED FROM THE WAR DEPARTMENT TO THE DEPARTMENT OF AGRICULTURE EFFECTIVE OCTOBER 16, 1933. THE REQUEST FILED BY THE AGRICULTURE DEPARTMENT FOR SUCH TRANSFER MENTIONED NO TIME LIMIT AS TO THE PERIOD OF EMPLOYMENT, AND NONE WAS SPECIFIED IN THE TRANSFER CERTIFICATE ISSUED BY THIS COMMISSION. HOWEVER, AS THE WORK IN THE BUREAU OF PUBLIC ROADS WAS FINANCED BY EMERGENCY FUNDS, HER APPOINTMENT WAS LIMITED TO A PARTICULAR PERIOD BY THE DEPARTMENT, AND SHE WAS SUBSEQUENTLY GIVEN ADDITIONAL EXTENSIONS. THE EXTENSION OF APPOINTMENT COVERING THE PERIOD WHEN THE EXCESS LEAVE WAS TAKEN EXPIRED ON DECEMBER 31, 1937, AND HER APPOINTMENT WAS ON DECEMBER 15, 1937, CONTINUED BY THE DEPARTMENT UP TO MARCH 31, 1938. SHE, HOWEVER, RESIGNED EFFECTIVE JANUARY 31, 1938.

IN SUPPORT OF ITS CLAIM FOR REIMBURSEMENT COVERING THE EXCESS LEAVE, THE DEPARTMENT HOLDS THAT AS MRS. STUART'S APPOINTMENT WAS LIMITED TO DECEMBER 31, 1937, THE ADVANCE OF ANNUAL AND SICK LEAVE WAS ILLEGAL UNDER REGULATIONS IN EFFECT AT THAT TIME. MRS. STUART HAS PROTESTED THIS ACTION, AND THE QUESTION AT ISSUE IS WHETHER THE DEPARTMENT'S CONTENTION IS CORRECT, OR IF LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AS INTERPRETED BY YOUR DECISION OF OCTOBER 27, 1938 (18 COMP. GEN. 383), SHOULD OPERATE TO WAIVE THE CHARGE FOR REIMBURSEMENT, SHE HAVING SUBMITTED TO THE DEPARTMENT A MEDICAL CERTIFICATE SHOWING THAT SHE WAS UNABLE TO RETURN TO DUTY BECAUSE OF HER CONDITION OF HEALTH.

YOUR DECISION IN THIS MATTER IS RESPECTFULLY REQUESTED.

THE FACTS PRESENTED DO NOT SHOW CLEARLY WHETHER THE EMPLOYMENT OF MRS. STUART WAS "TEMPORARY" OR "EMERGENCY.' IF THE DEPARTMENT OF AGRICULTURE LIMITED HER ORIGINAL APPOINTMENT UNDER EMERGENCY FUNDS TO A DEFINITE PERIOD NOT TO EXCEED 6 MONTHS AND EACH EXTENSION OF HER APPOINTMENT THEREAFTER WAS SIMILARLY DEFINITELY LIMITED, THEN, EVEN THOUGH THE COMPENSATION PAID HER WAS FROM EMERGENCY FUNDS, SHE MUST BE REGARDED AS HAVING BEEN A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES AND, AS SUCH, NOT ENTITLED TO ADVANCE OF EITHER ANNUAL OR SICK LEAVE OF ABSENCE PRIOR TO JANUARY 1, 1938, UNDER THE TERMS OF THE ANNUAL- AND SICK-LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND THE REGULATIONS ISSUED PURSUANT THERETO. COMPARE 18 COMP. GEN. 596. IN OTHER WORDS, A SERIES OF ADMINISTRATIVE APPOINTMENTS EACH FOR A DEFINITE PERIOD NOT EXCEEDING 6 MONTHS (BUT THE SERIES OF APPOINTMENTS AGGREGATING MORE THAN 6 MONTHS) DOES NOT CHANGE THE STATUS OF THE EMPLOYEE FROM TEMPORARY TO PERMANENT OR EMERGENCY FOR LEAVE PURPOSES, AND ANNUAL AND SICK LEAVE IN SUCH A SITUATION MAY NOT BE ADVANCED. IF THESE BE THE FACTS, EVEN THOUGH THE EMPLOYEE WAS SEPARATED FROM THE SERVICE AFTER JANUARY 1, 1938, THE RULE STATED IN 18 COMP. GEN. 383, CITED BY YOU, WOULD NOT BE APPLICABLE FOR THE REASON THAT THE PROVISIONS OF SECTION 4 (B) OF THE ANNUAL-LEAVE REGULATIONS AND SECTION 11 OF THE SICK-LEAVE REGULATIONS EFFECTIVE ON AND AFTER JANUARY 1, 1938, WAIVING RECOVERY OF EXCESS COMPENSATION PAID DURING OVERDRAWN LEAVE UNDER CERTAIN CONDITIONS, ARE APPLICABLE ONLY IN CASES IN WHICH ANNUAL AND SICK LEAVE WERE, OR MAY BE LAWFULLY ADVANCED, AND THE POSITION OF THE DEPARTMENT OF AGRICULTURE WOULD BE CORRECT.

IF, HOWEVER, THE TENURE OF THE EMERGENCY APPOINTMENT UNDER WHICH THIS EMPLOYEE WAS SERVING WHEN THE EXCESS LEAVE WAS ADVANCED PRIOR TO JANUARY 1, 1938, WAS NOT SPECIFICALLY LIMITED BY THE DEPARTMENT OF AGRICULTURE TO A PERIOD OF NOT EXCEEDING 6 MONTHS, THE EMPLOYEE WOULD PROPERLY BE FOR CLASSING AS EMERGENCY, NOT TEMPORARY, IN WHICH EVENT SICK LEAVE WAS AUTHORIZED TO BE ADVANCED TO THE EMERGENCY EMPLOYEE UNDER THE TERMS OF SECTION 5 OF THE SICK-LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, IN AN AMOUNT THAT WOULD NOT EXCEED THE TOTAL THAT WOULD HAVE ACCUMULATED DURING "THE PERIOD FROM THE DATE OF THE ADVANCE TO THE TERMINATION OF A LIMITED APPOINTMENT (NOT TEMPORARY IN CHARACTER) OR ONE EXPIRING ON A SPECIFIED DATE.' HOWEVER, ANNUAL LEAVE WAS NOT AUTHORIZED TO BE ADVANCED TO EMERGENCY EMPLOYEES UNDER SECTION 4 OF THE ANNUAL-LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938. THEREFORE, IN THIS EVENT (THAT IS, IF THE EMPLOYEE WAS IN FACT NOT A TEMPORARY EMPLOYEE, BUT AN EMERGENCY EMPLOYEE), UNDER THE RULE STATED IN 18 COMP. GEN. 383, CITED BY YOU, RECOVERY WOULD BE WAIVED ONLY OF THE AMOUNT OF COMPENSATION PAID FOR THE PERIOD OF EXCESS SICK LEAVE PROPERLY ADVANCED PRIOR TO JANUARY 1, 1938--- SECTION 11 OF THE SICK-LEAVE REGULATIONS AUTHORIZING SUCH WAIVER OF RECOVERY HAVING BEEN IN FORCE ON JANUARY 31, 1938, WHEN THE EMPLOYEE RESIGNED BY REASON OF ILL HEALTH AND FURNISHEDA MEDICAL CERTIFICATE THAT SHE WAS UNABLE TO RETURN TO DUTY.