A-80571, SEPTEMBER 17, 1936, 16 COMP. GEN. 264

A-80571: Sep 17, 1936

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HAVING DEFINED "TEMPORARY" EMPLOYEES AS THOSE "WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME. " ALL EMPLOYEES ENTITLED TO LEAVE WHOSE TENURE OF EMPLOYMENT IS OTHERWISE PRESCRIBED ARE TO BE REGARDED AS "PERMANENT" FOR LEAVE PURPOSES. IS ENTITLED TO CREDIT FOR LEAVE ACCUMULATED PRIOR TO JANUARY 1. AN EMPLOYEE OF THE NATIONAL RECOVERY ADMINISTRATION WAS TRANSFERRED TO THE OFFICE OF THE CONSUMERS' COUNSEL. THE APPOINTMENT IN THE CONSUMERS' COUNSEL WAS UNDER SECTION 2 OF CIVIL SERVICE RULE VIII. AFTER WHICH DATE IT IS DESIRED TO ALLOW HIM SUCH ANNUAL LEAVE AS MAY BE DUE HIM. - TEMPORARY EMPLOYEES FOR LEAVE PURPOSES SHALL BE CONSIDERED THOSE WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.

A-80571, SEPTEMBER 17, 1936, 16 COMP. GEN. 264

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - "TEMPORARY" EMPLOYEES DEFINED - ACCUMULATED LEAVE CREDITS ON SEPARATION FROM AND REENTRY INTO SERVICE THE UNIFORM LEAVE REGULATIONS ISSUED BY THE PRESIDENT, EFFECTIVE ON AND AFTER JULY 1, 1936, HAVING DEFINED "TEMPORARY" EMPLOYEES AS THOSE "WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME, NOT EXCEEDING 6 MONTHS," ALL EMPLOYEES ENTITLED TO LEAVE WHOSE TENURE OF EMPLOYMENT IS OTHERWISE PRESCRIBED ARE TO BE REGARDED AS "PERMANENT" FOR LEAVE PURPOSES, INCLUDING THOSE APPOINTED FOR AN INDEFINITE TENURE UNDER SECTION 2 OF CIVIL SERVICE RULE VIII, PENDING THE FILLING OF THE POSITION PERMANENTLY. THE TEMPORARY LEAVE REGULATIONS OF THE INTERIOR DEPARTMENT IN FORCE PRIOR TO JULY 1, 1936, HAVING AUTHORIZED TRANSFER OF LEAVE CREDITS OF EMPLOYEES OF OTHER DEPARTMENTS UPON APPOINTMENT TO POSITIONS IN THE INTERIOR DEPARTMENT, AN EMPLOYEE SEPARATED FROM THE NATIONAL RECOVERY ADMINISTRATION APPOINTED, WITHOUT A BREAK IN SERVICE, TO A POSITION IN THE INTERIOR DEPARTMENT PRIOR TO JULY 1, 1936, IS ENTITLED TO CREDIT FOR LEAVE ACCUMULATED PRIOR TO JANUARY 1, 1936.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 17, 1936:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 12, 1936, AS FOLLOWS:

ON FEBRUARY 18, 1936, AN EMPLOYEE OF THE NATIONAL RECOVERY ADMINISTRATION WAS TRANSFERRED TO THE OFFICE OF THE CONSUMERS' COUNSEL,NATIONAL BITUMINOUS COAL COMMISSION, WITHOUT BREAK IN SERVICE. UP TO JANUARY 1, 1936, THE EMPLOYEE HAD AN ACCUMULATION OF ABOUT 30 DAYS OF UNUSED ANNUAL LEAVE. THE APPOINTMENT IN THE CONSUMERS' COUNSEL WAS UNDER SECTION 2 OF CIVIL SERVICE RULE VIII, PENDING THE FILLING OF THE POSITION PERMANENTLY WITH A CIVIL SERVICE ELIGIBLE. ON ACCOUNT OF A NECESSARY REDUCTION IN FORCE THE ACTIVE SERVICE OF THE EMPLOYEE TERMINATED AT THE CLOSE OF AUGUST 15, AFTER WHICH DATE IT IS DESIRED TO ALLOW HIM SUCH ANNUAL LEAVE AS MAY BE DUE HIM.

THE TEMPORARY LEAVE REGULATIONS OF THIS DEPARTMENT IN EFFECT PRIOR TO THOSE PRESCRIBED IN EXECUTIVE ORDER OF JULY 9 CONTAIN THE FOLLOWING PARAGRAPHS:

"TEMPORARY EMPLOYEES DEFINED.--- TEMPORARY EMPLOYEES FOR LEAVE PURPOSES SHALL BE CONSIDERED THOSE WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.

"TRANSFERRED EMPLOYEES.--- PERSONS TRANSFERRED FROM OTHER DEPARTMENTS, OR FROM BUREAUS OR OFFICES TO OTHER BUREAUS OR OFFICES WITHIN THIS DEPARTMENT, SHALL BE CHARGED WITH THE LEAVE TAKEN PRIOR TO SUCH TRANSFER AND SHALL BE CREDITED WITH ANY ACCUMULATED LEAVE UNUSED. A CERTIFICATE FROM SUCH OTHER DEPARTMENT WILL BE REQUIRED.

"TEMPORARY EMPLOYEES.--- TEMPORARY EMPLOYEES EXCEPT THOSE ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO 2 1/2 DAYS OF ANNUAL LEAVE FOR EACH MONTH OF SERVICE, LEAVE ACCRUING DURING ANY MONTH SHALL BE AVAILABLE TO THE EMPLOYEE AT ANY TIME AFTER THE BEGINNING OF THE MONTH OF SERVICE. LEAVE MUST BE TAKEN BEFORE EXPIRATION OF THE TEMPORARY APPOINTMENT.'

SECTIONS 5, 14 AND 15 OF THE LEAVE REGULATIONS OF JULY 9 READ AS FOLLOWS:

"EMPLOYEES TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITH THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.

"TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS LEAVE FOR EACH MONTH OF SERVICE BEGINNING JANUARY 1, 1936. FOR LEAVE PURPOSES, PERSONS WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS SHALL BE CONSIDERED TEMPORARY EMPLOYEES.

TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT OR PROBATIONAL APPOINTMENTS IN THE SAME DEPARTMENT WITHOUT BREAK IN SERVICE SHALL BE ENTITLED TO ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH TO THE DATE OF PERMANENT APPOINTMENT AND THEREAFTER AT THE RATE OF 2 1/6 DAYS PER MONTH. OF TEMPORARY EMPLOYEES, ONLY THOSE WHO SUBSEQUENTLY ACCEPT PERMANENT APPOINTMENTS WITHOUT BREAK IN SERVICE MAY BE CREDITED WITH ACCUMULATED LEAVE EARNED PRIOR TO JANUARY 1, 1936.'

WHILE THE EMPLOYEE WAS SERVING IN A TEMPORARY STATUS HE WAS OCCUPYING A PERMANENT POSITION. THE QUESTION ON WHICH YOUR RULING IS REQUESTED IS WHETHER IT IS MANDATORY THAT THE EMPLOYEE BE ALLOWED THE LEAVE ACCUMULATED TO HIS CREDIT AT THE TIME OF HIS APPOINTMENT IN THE OFFICE OF THE CONSUMERS' COUNSEL, TO BE TAKEN IMMEDIATELY FOLLOWING AUGUST 15.

IT IS UNDERSTOOD FROM THE LAST SENTENCE OF THE FIRST PARAGRAPH OF YOUR LETTER THAT THIS EMPLOYEE WAS SEPARATED FROM THE SERVICE AUGUST 15 BECAUSE OF REDUCTION IN FORCE. IF THAT BE THE CASE, THERE IS NO AUTHORITY FOR NOW PAYING HIM FOR LEAVE ACCRUED BUT NOT ACTUALLY GRANTED AND TAKEN PRIOR TO SUCH SEPARATION FROM THE SERVICE. SEE 16 COMP. GEN. 28 AND DECISIONS THEREIN CITED.

IF, HOWEVER, THE EMPLOYEE WAS NOT IN FACT SEPARATED FROM THE SERVICE ON AUGUST 15 BUT WAS GRANTED LEAVE OF ABSENCE EFFECTIVE FROM SAID DATE FOR SUCH PERIOD AS HE MIGHT BE ENTITLED TO AND ADVISED THAT HIS SERVICES WOULD TERMINATE AT THE EXPIRATION OF SUCH PERIOD, AND THE ONLY QUESTION INVOLVED IS AS TO THE PERIOD OF LEAVE WHICH MAY BE GRANTED AND TAKEN PRIOR TO THE EFFECTIVE DATE OF THE SEPARATION FROM THE SERVICE, YOU MAY BE ADVISED AS FOLLOWS:

UNDER THE PROVISIONS OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, GOVERNMENT EMPLOYEES, WITH CERTAIN EXPRESS EXCEPTIONS NOT HERE INVOLVED, ARE ENTITLED TO ANNUAL LEAVE OF ABSENCE, EITHER AS TEMPORARY OR AS PERMANENT EMPLOYEES. AS THE STATUTE DOES NOT DEFINE THE TERM "TEMPORARY" AND ,PERMANENT" EMPLOYEES FOR LEAVE PURPOSES, THE DEFINITION OF THOSE TERMS FOR LEAVE PURPOSES PROPERLY HAS BEEN PRESCRIBED BY REGULATION.

AS BOTH THE TEMPORARY REGULATIONS OF THE DEPARTMENT OF THE INTERIOR IN FORCE PRIOR TO JULY 1, 1936, AND THE UNIFORM LEAVE REGULATIONS ISSUED BY THE PRESIDENT, EFFECTIVE ON AND AFTER THAT DATE, DEFINE,"TEMPORARY" EMPLOYEES AS THOSE "WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME, NOT EXCEEDING 6 MONTHS," ALL EMPLOYEES ENTITLED TO LEAVE WHOSE TENURE OF EMPLOYMENT IS OTHERWISE PRESCRIBED ARE TO BE REGARDED AS "PERMANENT" FOR LEAVE PURPOSES, INCLUDING THOSE APPOINTED FOR AN INDEFINITE TENURE UNDER SECTION 2 OF CIVIL SERVICE RULE VIII, PENDING THE FILLING OF THE POSITION PERMANENTLY WITH A CIVIL SERVICE ELIGIBLE, ALTHOUGH PRIOR TO JANUARY 1, 1936, EMPLOYEES OF THIS CLASS WERE REGARDED AS TEMPORARY AND DENIED LEAVE WITH PAY. 12 COMP. GEN. 431; 13 ID. 347. ACCORDINGLY, THE POSITION TO WHICH THE EMPLOYEE IN QUESTION WAS TRANSFERRED AND APPOINTED FEBRUARY 18, 1936, IS TO BE REGARDED AS HAVING BEEN PERMANENT FOR LEAVE PURPOSES. THE TEMPORARY REGULATIONS OF THE DEPARTMENT OF THE INTERIOR IN FORCE PRIOR TO JULY 1, 1936, AUTHORIZED TRANSFER OF LEAVE CREDIT OF EMPLOYEES TRANSFERRED FROM OTHER DEPARTMENTS TO THE DEPARTMENT OF THE INTERIOR, AND EVEN THOUGH SUCH REGULATIONS WERE INTENDED TO APPLY ONLY TO EMPLOYEES TRANSFERRED TO PERMANENT POSITIONS UNDER THE DEPARTMENT OF THE INTERIOR, AS IS PROVIDED BY THE UNIFORM LEAVE REGULATIONS, THE EMPLOYEE IN QUESTION WOULD BE ENTITLED TO ANY UNUSED LEAVE ACCRUED PRIOR TO FEBRUARY 18, 1936, WHILE EMPLOYED UNDER THE NATIONAL RECOVERY ADMINISTRATION, IF STILL IN THE SERVICE. DECISION OF AUGUST 1, 1936, A-72714, 16 COMP. GEN. 105. AND, IN SUCH CASES, THE GRANTING OF THE LEAVE BEFORE SEPARATION FROM THE SERVICE IS MANDATORY. 16 COMP. GEN. 74.