A-79149, AUGUST 5, 1936, 16 COMP. GEN. 119

A-79149: Aug 5, 1936

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1936 THERE IS NO AUTHORITY IN THE LEAVE ACTS OF MARCH 14. 1936: REFERENCE IS MADE TO YOUR LETTER OF JULY 27. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY.'. THIS PROVISION WAS PREDICATED UPON THE ABSENCE OF ANY LEGISLATIVE AUTHORITY GRANTING LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES. "AN OFFICER IS ONE WHO IS INVESTED WITH AN OFFICE" AND "AN EMPLOYEE IS ONE WHO IS EMPLOYED UNDER A CONTRACT TO PERFORM PERSONAL SERVICE.'. YOUR PROMPT CONSIDERATION OF THIS MATTER WILL BE APPRECIATED. THE FOLLOWING QUESTION AND ANSWER WERE STATED: "/4) AS A RESULT OF THE PASSAGE OF THE ACT OF MARCH 14. DOES IT FOLLOW THAT TEMPORARY EMPLOYEES ARE ENTITLED TO MILITARY LEAVE? HOLDING THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE.

A-79149, AUGUST 5, 1936, 16 COMP. GEN. 119

LEAVES OF ABSENCE - MILITARY - TEMPORARY EMPLOYEES - ACTS, MARCH 14, 1936 THERE IS NO AUTHORITY IN THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND THE PRESIDENT'S UNIFORM REGULATIONS THEREUNDER, FOR ANY MODIFICATION OF DEPARTMENTAL REGULATIONS FOR THE PURPOSE OF GRANTING TEMPORARY EMPLOYEES MILITARY LEAVE WITH PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, AUGUST 5, 1936:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1936, AS FOLLOWS:

"PARAGRAPH 2551 OF THE REGULATIONS OF THIS DEPARTMENT, RELATIVE TO MILITARY LEAVE, READS AS FOLLOWS:

"MILITARY LEAVE MAY BE GRANTED ONLY TO PERMANENT EMPLOYEES AND SHALL BE WITHOUT LOSS OF TIME, PAY, OR EFFICIENCY RATING. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY.'

THIS PROVISION WAS PREDICATED UPON THE ABSENCE OF ANY LEGISLATIVE AUTHORITY GRANTING LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES.

THE ACTS OF JUNE 3, 1916, 39 STAT. 203; MAY 12, 1917, 40 STAT. 72; MARCH 1, 1889, SEC. 49, 25 STAT. 779, AS AMENDED; AND FEBRUARY 28, 1925, SEC. 36, 43 STAT. 1089; ALL REFER TO "OFFICERS AND EMPLOYEES" OF THE UNITED STATES. ACCORDING TO THE COMPTROLLER OF THE TREASURY (C.D. 4:696),"AN OFFICER IS ONE WHO IS INVESTED WITH AN OFFICE" AND "AN EMPLOYEE IS ONE WHO IS EMPLOYED UNDER A CONTRACT TO PERFORM PERSONAL SERVICE.' ALTHOUGH THE GRANTING OF MILITARY LEAVE OF ABSENCE HAS HERETOFORE BEEN RESTRICTED TO PERMANENT OFFICERS AND EMPLOYEES (C.G. 3:113; C.G. 6:179), THERE WOULD APPEAR TO BE SERIOUS DOUBT WHETHER, IN VIEW OF THE PROVISIONS OF PUBLIC NO. 471, APPROVED MARCH 14, 1936, THIS DEPARTMENT WOULD BE JUSTIFIED IN REFUSING TO GRANT MILITARY LEAVE OF ABSENCE WITH PAY TO OFFICERS AND EMPLOYEES TEMPORARILY EMPLOYED.

AS THIS DEPARTMENT CONTEMPLATES AMENDING ITS REGULATIONS TO CONFORM TO THE UNIFORM LEAVE REGULATIONS AS ISSUED BY THE PRESIDENT JULY 9, 1936, YOUR PROMPT CONSIDERATION OF THIS MATTER WILL BE APPRECIATED.

IN DECISION OF AUGUST 1, 1936, A-72714, 16 COMP. GEN. 105, TO THE PUBLIC PRINTER, THE FOLLOWING QUESTION AND ANSWER WERE STATED:

"/4) AS A RESULT OF THE PASSAGE OF THE ACT OF MARCH 14, 1936, ALLOWING ANNUAL LEAVE TO TEMPORARY EMPLOYEES, DOES IT FOLLOW THAT TEMPORARY EMPLOYEES ARE ENTITLED TO MILITARY LEAVE? THIS QUESTION ARISES FROM THE FACT THAT THE COMPTROLLER GENERAL'S DECISION (6 COMP. GEN.-178), HOLDING THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE, IS BASED UPON THE PRINCIPLE THAT A LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH TEMPORARY EMPLOYMENT.'

QUESTION (4) IS ANSWERED IN THE NEGATIVE, THE LEAVE ACTS OF MARCH 14,1936, AND THE UNIFORM LEAVE REGULATIONS NOT BEING DETERMINATIVE OF ANY QUESTION INVOLVING THE GRANTING OF MILITARY LEAVE.

ACCORDINGLY, YOU ARE ADVISED THAT THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND THE REGULATIONS ISSUED THEREUNDER CONSTITUTE NO BASIS FOR MODIFYING THE REGULATIONS OF YOUR DEPARTMENT FOR THE PURPOSE OF GRANTING TEMPORARY EMPLOYEES MILITARY LEAVE WITH PAY.