A-7346, FEBRUARY 3, 1925, 4 COMP. GEN. 650

A-7346: Feb 3, 1925

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UNLESS THEY ARE EMPLOYED UNDER AUTHORIZATION OF THE CIVIL SERVICE COMMISSION. THE CHARACTER OF THE WORK FOR WHICH ENGAGED IS OF A PERMANENT NATURE AS DISTINGUISHED FROM EMPLOYMENT FOR A PARTICULAR JOB OR PIECE OF WORK. 1925: I HAVE YOUR LETTER OF JANUARY 8. WHO ARE TERMED "TEMPORARY EMPLOYEES" FOR THE REASON THAT THEY ARE EMPLOYED WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS. THERE ARE A NUMBER OF EMPLOYEES AT THE NAVAL STATION WHO HAVE BEEN EMPLOYED LOCALLY BY THE COMMANDANT IN THE RATINGS OF CLERK. AS THE POPULATION IS COMPOSED. FOR MANY YEARS THESE EMPLOYEES HAVE BEEN TERMED "TEMPORARY EMPLOYEES. THESE EMPLOYEES ARE CONSIDERED PERMANENT EMPLOYEES AND ENTITLED TO THE BENEFITS OF THE LEAVE LAW FOR THE FIELD SERVICE. * * * THIS OFFICE HAS HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. 3 COMP.

A-7346, FEBRUARY 3, 1925, 4 COMP. GEN. 650

LEAVE OF ABSENCE - EMPLOYEES OF NAVAL STATIONS IN THE PHILIPPINE ISLANDS LEAVE OF ABSENCE WITH PAY, UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, MAY NOT BE GRANTED TO EMPLOYEES OF THE NAVAL STATIONS AT CAVITE AND OLONGAPO, PHILIPPINE ISLANDS, UNLESS THEY ARE EMPLOYED UNDER AUTHORIZATION OF THE CIVIL SERVICE COMMISSION, AND THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT DO NOT DESIGNATE THE PERIOD OF EMPLOYMENT, AND THE CHARACTER OF THE WORK FOR WHICH ENGAGED IS OF A PERMANENT NATURE AS DISTINGUISHED FROM EMPLOYMENT FOR A PARTICULAR JOB OR PIECE OF WORK.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 3, 1925:

I HAVE YOUR LETTER OF JANUARY 8, 1925, REQUESTING DECISION WHETHER LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, MAY BE GRANTED TO EMPLOYEES OF THE NAVAL STATIONS AT CAVITE AND OLONAGAPO, P.I., WHO ARE TERMED "TEMPORARY EMPLOYEES" FOR THE REASON THAT THEY ARE EMPLOYED WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS.

YOU STATE IN PART AS FOLLOWS:

AT CAVITE AND OLONGAPO, P.I., THERE ARE A NUMBER OF EMPLOYEES AT THE NAVAL STATION WHO HAVE BEEN EMPLOYED LOCALLY BY THE COMMANDANT IN THE RATINGS OF CLERK, DRAFTSMAN, STOCKMAN, ETC. WITHOUT EXAMINATION BY THE UNITED STATES CIVIL SERVICE COMMISSION OWING TO THE NONEXISTENCE OF ANY REPRESENTATIVE OF THAT COMMISSION IN THE PHILIPPINE ISLANDS, AND, GENERALLY SPEAKING, THE LACK OF ELIGIBLE LISTS MAINTAINED BY THE PHILIPPINE ISLANDS CIVIL SERVICE BUREAU FOR THE UNITED STATES CIVIL SERVICE COMMISSION FOR SUCH VACANCIES AS EXISTED AT THE NAVAL STATION IN THE FOREGOING RATINGS.

IT HAS BEEN FOUND IMPRACTICABLE TO ENFORCE CIVIL SERVICE RULES AT THESE STATIONS THROUGH THE CIVIL SERVICE COMMISSION OWING TO BEING APPROXIMATELY TWELVE THOUSAND MILES DISTANT, AND AS THE POPULATION IS COMPOSED, WITH A FEW EXCEPTIONS, OF FILIPINOS, ASIATICS, AND A FLOATING WHITE POPULATION VARIOUS NATIONALITIES.

FOR MANY YEARS THESE EMPLOYEES HAVE BEEN TERMED "TEMPORARY EMPLOYEES," IN VIEW OF NOT HAVING PERMANENT APPOINTMENTS FROM THE CIVIL SERVICE COMMISSION, BUT AS HIS TEMPORARY EMPLOYMENT DOES NOT COME WITHIN THE DEFINITION OF SUCH EMPLOYMENT AS QUOTED FROM THE COMPTROLLER'S LETTER ON THE SUBJECT IN A PRECEDING PARAGRAPH, THE DEPARTMENT REQUESTS A CONFIRMATION OF THE PRESENT PRACTICE WHEREIN, FOR LEAVE PURPOSES, THESE EMPLOYEES ARE CONSIDERED PERMANENT EMPLOYEES AND ENTITLED TO THE BENEFITS OF THE LEAVE LAW FOR THE FIELD SERVICE. * * *

THIS OFFICE HAS HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. 3 COMP. GEN. 382; 4 ID. 17; DECISION OF DECEMBER 3, 1924, 4 COMP. GEN. 511; DECISION OF DECEMBER 20, 1924, 4 COMP. GEN. 552; AND DECISION OF DECEMBER 31, 1924, 4 COMP. GEN. 575.

IN DECISION YOU CITE, 4 COMP. GEN. 17, 19, IT WAS STATED:

THE FIRST FOUR QUESTIONS SUBMITTED RELATE TO LEAVE OF ABSENCE OF TEMPORARY EMPLOYEES. AS STATED IN THE DECISION CITED, 3 COMP. GEN. 382, A PROLONGED LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH TEMPORARY EMPLOYMENT. THE GRANTING OF LEAVE AFTER 12 MONTHS' SERVICE STIPULATED BY THE STATUTE SHOWS IT HAD RELATION TO EMPLOYEES HAVING SOME PERMANENCY OF TENURE. A TEMPORARY EMPLOYMENT IMPLIES A CERTAINTY OF ENDING THE EMPLOYMENT, AND IT IS ASSUMED THAT IN THE TEMPORARY EMPLOYMENTS REFERRED TO THE APPOINTMENTS DESIGNATE THE PERIOD OF EMPLOYMENT AND ARE RENEWED FROM TIME TO TIME, SO THAT THE EMPLOYMENT HAS A FIXED TIME FOR ENDING, ALTHOUGH IT MAY BE RENEWED. THIS THEN MUST BE THE CONDITION OF EMPLOYMENT WHEN A QUESTION OF LEAVE ARISES--- THAT UNDER THE CURRENT APPOINTMENT THE EMPLOYMENT WILL END AT A CERTAIN DATE UNLESS RENEWED. THERE APPEARS UNDER SUCH CONDITIONS NO RIGHT TO GRANT LEAVE OF ABSENCE WITH PAY. IT IS UNDERSTOOD THAT THE TEMPORARY EMPLOYMENT IS EITHER BECAUSE THE EMPLOYEE CAN NOT QUALIFY AS A REGULAR EMPLOYEE OR THE WORK CONDITIONS ARE SUCH THAT EMPLOYMENT AS A REGULAR EMPLOYEE WOULD NOT BE AUTHORIZED.

IN DECISION OF DECEMBER 20, 1924, ADDRESSED TO THE PRESIDENT BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, IT WAS HELD:

WHETHER AN EMPLOYEE IS A PERMANENT OR TEMPORARY EMPLOYEE IS NOT FOR DETERMINATION SOLELY ON THE LENGTH OF TIME THE EMPLOYEE MAY HAPPEN TO SERVE, BUT OTHER CONDITIONS ARE FOR CONSIDERATION, SUCH AS THE CHARACTER OF THE APPOINTMENT, PURPOSES FOR WHICH EMPLOYED, AND PARTICULARLY THE EXPRESS TERMS OF THE APPROPRIATION UNDER WHICH THE EMPLOYEES ARE PAID.

THAT DECISION DEALT PARTICULARLY WITH EMPLOYEES PAID FROM APPROPRIATIONS EXPRESSLY AND EXCLUSIVELY AVAILABLE FOR TEMPORARY PERSONAL SERVICES. THERE IS INVOLVED IN THE PRESENT CASE NO QUESTION OF APPROPRIATION

TEMPORARY APPOINTMENTS OR EMPLOYMENTS UNDER THE CIVIL SERVICE RULES AND REGULATIONS ARE ALWAYS FOR A DEFINITE PERIOD OF TIME. SEE RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS. PERSONS SERVING UNDER SUCH APPOINTMENTS OR EMPLOYMENTS CLEARLY ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. YOU INDICATE, HOWEVER, THAT THE EMPLOYEES IN THE PRESENT CASE AT CAVITE AND OLONGAPO, P.I., ARE EMPLOYED WITHOUT REGARD TO THE CIVIL SERVICE RULES AND REGULATIONS. IF THE NAVY DEPARTMENT HAS BEEN AUTHORIZED BY THE UNITED STATES CIVIL SERVICE COMMISSION TO EMPLOY PERMANENT EMPLOYEES AT THOSE NAVAL STATIONS WITHOUT QUALIFICATION UNDER THE CIVIL SERVICE RULES AND REGULATIONS, THE NECESSITY FOR DESIGNATING THEM "TEMPORARY EMPLOYEES" IS NOT APPARENT. IF, AS A MATTER OF FACT, SUCH AUTHORITY BY THE CIVIL SERVICE COMMISSION HAS BEEN GRANTED, AND THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT DO NOT DESIGNATE THE PERIOD OF EMPLOYMENT, AND THE CHARACTER OF WORK FOR WHICH ENGAGED IS OF A PERMANENT NATURE AS DISTINGUISHED FROM EMPLOYMENT FOR A PARTICULAR JOB OR PIECE OF WORK, THE COMPLETION OF WHICH WILL TERMINATE THE EMPLOYMENT, APPLYING THE RULES LAID DOWN IN THE PREVIOUS DECISIONS OF THIS OFFICE, YOU ARE ADVISED THAT THE EMPLOYEES MAY BE CLASSED AS PERMANENT AND ENTITLED LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617. ON THE OTHER HAND, IN THE ABSENCE OF SUCH AUTHORIZATION BY THE CIVIL SERVICE COMMISSION AND CONDITIONS SHOWING PERMANENCY OF THE TENURE OF EMPLOYMENT, THE EMPLOYEES WOULD NOT BE ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE CONTROLLING STATUTE.