A-69819, APRIL 8, 1936, 15 COMP. GEN. 879

A-69819: Apr 8, 1936

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IS NOT APPLICABLE TO SUCH AN EMPLOYEE WHO DELAYS THE LEAVE TAKING UNTIL AFTER TRANSFER TO THE BUREAU OF PLANT INDUSTRY OF SAID DEPARTMENT. MCCLELLAND WAS EMPLOYED AS PRINCIPAL HORTICULTURIST IN THE OFFICE OF EXPERIMENT STATIONS OF THIS DEPARTMENT. HE WAS TRANSFERRED FROM THE OFFICE OF EXPERIMENT STATIONS TO THE BUREAU OF PLANT INDUSTRY. HIS TITLE WAS CHANGED TO SENIOR HORTICULTURIST. A LETTER OF AUTHORIZATION WAS ISSUED TO HIM DATED JULY 13. A COPY OF WHICH IS ENCLOSED. YOU WERE PAID AT THE SALARY RATE IN EFFECT AT THE TIME YOUR LEAVE WAS TAKEN AND YOUR CLAIM IS FOR AN ADJUSTMENT BASED ON THE SALARY RECEIVED AT THE TIME THE LEAVE ACCRUED. IN EXCEPTIONAL AND MERITORIOUS CASES WHERE AN EMPLOYEE IS ILL.

A-69819, APRIL 8, 1936, 15 COMP. GEN. 879

COMPENSATION - ACCUMULATED ANNUAL LEAVE TAKEN SUBSEQUENT TO EMPLOYEE'S TRANSFER - DEPARTMENT OF AGRICULTURE THE PROVISION OF THE ACT OF JULY 24, 1919, 41 STAT. 262, AUTHORIZING PAYMENT FOR ANNUAL LEAVE ACCUMULATED BY EMPLOYEES OF THE OFFICE OF EXPERIMENT STATIONS, DEPARTMENT OF AGRICULTURE, ASSIGNED TO CERTAIN STATIONS, AT THE RATE PREVAILING DURING THE YEAR SUCH LEAVE OF ABSENCE ACCUMULATED, IS NOT APPLICABLE TO SUCH AN EMPLOYEE WHO DELAYS THE LEAVE TAKING UNTIL AFTER TRANSFER TO THE BUREAU OF PLANT INDUSTRY OF SAID DEPARTMENT, AND HE MAY BE PAID ONLY AT THE RATE AT WHICH CARRIED ON THE ROLLS WHILE TAKING SUCH LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO T. B. MCCLELLAND, APRIL 8, 1936:

YOUR LETTER OF DECEMBER 23, 1935, HAS BEEN CONSIDERED AS A CLAIM FOR SALARY ADJUSTMENT WITH RESPECT TO LEAVE TAKEN UNDER CIRCUMSTANCES REPORTED BY THE CHIEF, BUREAU OF PLANT INDUSTRY, IN LETTER OF JANUARY 7, 1936, AS FOLLOWS:

MR. MCCLELLAND WAS EMPLOYED AS PRINCIPAL HORTICULTURIST IN THE OFFICE OF EXPERIMENT STATIONS OF THIS DEPARTMENT, HEADQUARTERED AT MAYAGUEZ, PUERTO RICO, AT A SALARY OF $5,600 PER ANNUM WITH A DEDUCTION OF $200 PER ANNUM FOR PERQUISITES, HIS NET SALARY BEING $5,400 PER ANNUM. EFFECTIVE JULY 1, 1934, HE WAS TRANSFERRED FROM THE OFFICE OF EXPERIMENT STATIONS TO THE BUREAU OF PLANT INDUSTRY, MOVING FROM MAYAGUEZ, PUERTO RICO, TO COCONUT GROVE, FLORIDA. EFFECTIVE JULY 1, 1934, HIS TITLE WAS CHANGED TO SENIOR HORTICULTURIST, AND HIS SALARY TO $4,600 PER ANNUM, WITH A DEDUCTION OF $220 PER ANNUM FOR PERQUISITES.

A LETTER OF AUTHORIZATION WAS ISSUED TO HIM DATED JULY 13, 1934, PROVIDING FOR HIS TRANSFER TO MIAMI, FLORIDA, A COPY OF WHICH IS ENCLOSED. HE LEFT MAYAGUEZ ON JULY 25, 1934, AND REPORTED FOR DUTY AT COCONUT GROVE, FLORIDA, ON SEPTEMBER 27, 1934. HE APPLIED FOR ANNUAL LEAVE COVERING THE PERIODS JULY 31 AND AUGUST 1, AND AUGUST 8, 1934, TO SEPTEMBER 26, 1934, INCLUSIVE, A TOTAL OF 41 DAYS. UPON HIS TRANSFER TO THIS BUREAU, HE BROUGHT AS A CREDIT A TOTAL OF 41 DAYS OF ACCRUED LEAVE.

YOU WERE PAID AT THE SALARY RATE IN EFFECT AT THE TIME YOUR LEAVE WAS TAKEN AND YOUR CLAIM IS FOR AN ADJUSTMENT BASED ON THE SALARY RECEIVED AT THE TIME THE LEAVE ACCRUED.

THE ACTS OF JUNE 30, 1914, 38 STAT. 441, AND JULY 24, 1919, 41 STAT. 262, PROVIDE AS FOLLOWS:

HEREAFTER EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO PERMANENT DUTY IN ALASKA, HAWAII, PORTO RICO, AND GUAM MAY, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, BE GRANTED LEAVE OF ABSENCE NOT TO EXCEED THIRTY DAYS IN ANY ONE YEAR, WHICH LEAVE MAY, IN EXCEPTIONAL AND MERITORIOUS CASES WHERE AN EMPLOYEE IS ILL, BE EXTENDED, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, NOT TO EXCEED THIRTY DAYS ADDITIONAL IN ANY ONE YEAR.

* * * PROVIDED FURTHER, THAT HEREAFTER EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO PERMANENT DUTY IN THE VIRGIN ISLANDS SHALL BE ENTITLED TO THE SAME PRIVILEGES AS TO LEAVE OF ABSENCE AS ARE CONFERRED UPON EMPLOYEES ASSIGNED TO ALASKA, HAWAII, PORTO RICO, AND GUAM BY THE ACT OF JUNE 30, 1914 (THIRTY-EIGHTH STATUTES AT LARGE, PAGE 441), AND IF ANY EMPLOYEE OF THE AGRICULTURAL EXPERIMENT STATIONS OF THE UNITED STATES IN ALASKA, HAWAII, PORTO RICO, GUAM, OR THE VIRGIN ISLANDS SHALL ELECT TO POSTPONE THE TAKING OF ANY OR ALL OF THE ANNUAL LEAVE TO WHICH HE MAY BE ENTITLED UNDER THE SAID ACT OF JUNE 30, 1914, HE MAY, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, SUBJECT TO THE INTERESTS OF THE PUBLIC SERVICE, BE ALLOWED TO TAKE AT ONE TIME UNUSED ANNUAL LEAVE WHICH MAY HAVE ACCUMULATED WITHIN NOT TO EXCEED FOUR YEARS, AND BE PAID AT THE RATE PREVAILING DURING THE YEAR SUCH LEAVE OF ABSENCE HAS ACCUMULATED.

SECTION 484 OF THE ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE (NOW INCLUDED IN THE FISCAL REGULATIONS) EFFECTIVE JULY 1, 1924, PROVIDES AS FOLLOWS:

* * * PROVIDED, THAT IF ANY EMPLOYEE OF THE AGRICULTURAL EXPERIMENT STATIONS OF THE UNITED STATES IN ALASKA, HAWAII, PORTO RICO, GUAM, OR THE VIRGIN ISLANDS SHALL ELECT TO POSTPONE THE TAKING OF ANY OR ALL OF THE ANNUAL LEAVE TO WHICH HE MAY BE ENTITLED DURING ANY CALENDAR YEAR, HE MAY, SUBJECT TO THE INTERESTS OF THE PUBLIC SERVICE, IN ADDITION TO ANY ANNUAL LEAVE WHICH MAY BE PROPERLY GRANTED HIM BY REASON OF HIS SERVICE DURING THE CURRENT CALENDAR YEAR, BE ALLOWED TO TAKE AT ONE TIME UNUSED ANNUAL LEAVE WHICH MAY HAVE ACCUMULATED WITHIN NOT TO EXCEED THREE CALENDAR YEARS IMMEDIATELY PRECEDING THE CURRENT CALENDAR YEAR AND BE PAID WHILE TAKING SUCH ACCUMULATED LEAVE AT THE AVERAGE RATE OR RATES OF HIS SALARY SEPARATELY COMPUTED BY YEARS FOR EACH OF THE SEVERAL ELAPSED CALENDAR YEARS.

SECTION 486 PROVIDES:

EMPLOYEES TRANSFERRED FROM OTHER DEPARTMENTS OR FROM ONE BUREAU OR OFFICE TO ANOTHER WITHIN THE DEPARTMENT, MAY BE ALLOWED THE UNUSED PORTION OF LEAVE WHICH ACCRUED IN THE OTHER DEPARTMENT OR BUREAU UPON CERTIFICATES OBTAINED FROM THE DEPARTMENT OR BUREAU FROM WHICH THE TRANSFER IS MADE SHOWING THE AMOUNT OF LEAVE UNUSED AT THE TIME OF TRANSFER.

UNDER THE ABOVE QUOTED STATUTES AND REGULATIONS THE LEAVE OF ABSENCE WAS A PRIVILEGE AND NOT A LEGAL RIGHT. SEE ALSO, PARAGRAPH 480 OF THE FISCAL REGULATIONS OF THE DEPARTMENT OF AGRICULTURE AND THE STATUTES THEREIN CITED. IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, THERE IS NO AUTHORITY TO PAY AN EMPLOYEE SALARY FOR ACCRUED UNUSED LEAVE OF ABSENCE SUBSEQUENT TO HIS SEPARATION FROM THE SERVICE. 14 COMP. GEN. 738 AND DECISIONS THEREIN CITED. IN THE CASE OF A TRANSFER, HOWEVER, IT HAS BEEN HELD THAT THERE IS NO LEGAL OBJECTION TO THE PRACTICE IN SOME OF THE EXECUTIVE DEPARTMENTS, UNDER REGULATIONS, TO ALLOW AN EMPLOYEE AFTER SUCH TRANSFER LEAVE OF ABSENCE ACCRUED WHILE SERVING IN THE OTHER BUREAU OR DEPARTMENT. 26 COMP. DEC. 379.

HAD YOUR ACCRUED LEAVE BEEN GRANTED AND TAKEN WHILE IN THE OFFICE OF EXPERIMENT STATIONS, YOU WOULD HAVE BEEN ENTITLED UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1919, AND SECTION 484 OF THE FISCAL REGULATIONS, SUPRA, TO PAYMENT, WHILE TAKING SUCH LEAVE, AT THE AVERAGE RATE OR RATES OF YOUR SALARY SEPARATELY COMPUTED BY YEARS FOR EACH OF THE SEVERAL ELAPSED CALENDAR YEARS. HOWEVER, THE PROVISIONS OF THIS STATUTE, AUTHORIZING SUCH PAYMENTS, ARE APPLICABLE ONLY TO EMPLOYEES OF THE AGRICULTURAL EXPERIMENT STATIONS LOCATED AT THE PLACES SPECIFIED IN THE ACT. THAT IS TO SAY, THE APPLICATION OF THE STATUTE IS LIMITED TO THE EMPLOYEES WHOSE SALARIES ARE PAYABLE FROM THE APPROPRIATIONS FOR SUCH STATIONS.

UPON YOUR TRANSFER FROM THE ROLLS OF THE OFFICE OF EXPERIMENT STATIONS TO THE ROLLS OF THE BUREAU OF PLANT INDUSTRY, THE APPROPRIATION FOR THE PAYMENT OF SALARIES TO EMPLOYEES OF THE AGRICULTURAL EXPERIMENT STATIONS WAS NO LONGER AVAILABLE FOR PAYMENT TO YOU OF SALARY AS AN EMPLOYEE OF THE BUREAU OF PLANT INDUSTRY, SUCH PAYMENT BEING PROHIBITED BY SECTION 3678, REVISED STATUTES, WHICH PROVIDES THAT ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS. SINCE THERE IS NO STATUTE AUTHORIZING THE PAYMENT TO EMPLOYEES OF THE BUREAU OF PLANT INDUSTRY, WHILE ON LEAVE, OF SALARY AT A RATE OTHER THAN THAT AT WHICH THEY ARE CARRIED ON THE ROLLS WHILE TAKING SUCH LEAVE, THERE IS NO AUTHORITY TO CHARGE THE APPROPRIATION, AVAILABLE FOR SALARIES OF ITS EMPLOYEES, FOR PAYMENT TO YOU OF THE DIFFERENCE BETWEEN THE AMOUNT RECEIVED AS SALARY DURING THE TIME YOUR LEAVE ACCUMULATED WHILE AN EMPLOYEE OF THE OFFICE OF EXPERIMENT STATIONS AND THE AMOUNT RECEIVED AS SALARY DURING THE TIME YOUR LEAVE WAS TAKEN WHILE AN EMPLOYEE OF THE BUREAU OF PLANT INDUSTRY.