A-83440, FEBRUARY 19, 1937, 16 COMP. GEN. 776

A-83440: Feb 19, 1937

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1936 - PAYMENT FOR ACCRUED LEAVE AFTER ACCEPTANCE OF STATE EMPLOYMENT A FEDERAL EMPLOYEE WHOSE RESIGNATION FROM A FEDERAL POSITION WAS TENDERED ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER A STATE GOVERNMENT MAY BE PAID FOR ACCRUED ANNUAL LEAVE FOR A PERIOD BEYOND THE ACCEPTANCE OF SUCH EMPLOYMENT WHERE HIS RESIGNATION WAS ACCEPTED AS TENDERED EFFECTIVE AT THE TERMINATION OF THE PERIOD OF EARNED LEAVE. IS AS FOLLOWS: WILL YOU KINDLY RENDER AN OPINION ON THE RIGHT OF A FEDERAL EMPLOYEE TO PAYMENT FOR ACCRUED ANNUAL LEAVE AFTER HE HAS ACCEPTED STATE EMPLOYMENT? THE PARTICULAR FACTS IN THE CASE BEFORE US ARE THE FOLLOWING: MR. IS HE ENTITLED TO PAYMENT FOR ACCRUED AND UNPAID ANNUAL LEAVE DURING THE PERIOD OVERLAPPING HIS STATE EMPLOYMENT?

A-83440, FEBRUARY 19, 1937, 16 COMP. GEN. 776

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - PAYMENT FOR ACCRUED LEAVE AFTER ACCEPTANCE OF STATE EMPLOYMENT A FEDERAL EMPLOYEE WHOSE RESIGNATION FROM A FEDERAL POSITION WAS TENDERED ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER A STATE GOVERNMENT MAY BE PAID FOR ACCRUED ANNUAL LEAVE FOR A PERIOD BEYOND THE ACCEPTANCE OF SUCH EMPLOYMENT WHERE HIS RESIGNATION WAS ACCEPTED AS TENDERED EFFECTIVE AT THE TERMINATION OF THE PERIOD OF EARNED LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, FEBRUARY 19, 1937:

YOUR LETTER OF JANUARY 30, 1937, IS AS FOLLOWS:

WILL YOU KINDLY RENDER AN OPINION ON THE RIGHT OF A FEDERAL EMPLOYEE TO PAYMENT FOR ACCRUED ANNUAL LEAVE AFTER HE HAS ACCEPTED STATE EMPLOYMENT? THE PARTICULAR FACTS IN THE CASE BEFORE US ARE THE FOLLOWING:

MR. J. H. MCGINNIS RESIGNED FROM THE POSITION OF STATE DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE IN WEST VIRGINIA ON JANUARY 2D TO BE EFFECTIVE AT THE END OF HIS ACCRUED ANNUAL LEAVE. ON THE SAME DAY HE ACCEPTED EMPLOYMENT AS THE ACTING DIRECTOR OF UNEMPLOYMENT COMPENSATION IN WEST VIRGINIA. IS HE ENTITLED TO PAYMENT FOR ACCRUED AND UNPAID ANNUAL LEAVE DURING THE PERIOD OVERLAPPING HIS STATE EMPLOYMENT?

AN EXECUTIVE ORDER OF JANUARY 17, 1873 (SEE 11 COMP. GEN. 23), PROVIDES AS FOLLOWS:

* * * THAT FROM AND AFTER THE 4TH DAY OF MARCH A.D. 1873 (EXCEPT AS HEREIN SPECIFIED) PERSONS HOLDING ANY FEDERAL CIVIL OFFICE BY APPOINTMENT UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, WILL BE EXPECTED, WHILE HOLDING SUCH OFFICE, NOT TO ACCEPT OR HOLD ANY OFFICE UNDER ANY STATE OR TERRITORIAL GOVERNMENT, OR UNDER THE CHARTER OR ORDINANCES OF ANY MUNICIPAL CORPORATION; AND FURTHER, THAT THE ACCEPTANCE OR CONTINUED HOLDING OF ANY SUCH STATE, TERRITORIAL, OR MUNICIPAL OFFICE, WHETHER ELECTIVE OR BY APPOINTMENT, BY ANY PERSON HOLDING CIVIL OFFICE AS AFORESAID UNDER THE GOVERNMENT OF THE UNITED STATES, OTHER THAN JUDICIAL OFFICES UNDER THE CONSTITUTION OF THE UNITED STATES, WILL BE DEEMED A VACATION OF THE FEDERAL OFFICE HELD BY SUCH PERSON, AND WILL BE TAKEN TO BE, AND WILL BE TREATED AS, A RESIGNATION BY SUCH FEDERAL OFFICER OF HIS COMMISSION OR APPOINTMENT IN THE SERVICE OF THE UNITED STATES.

* * * HEADS OF DEPARTMENTS AND OTHER OFFICERS OF THE GOVERNMENT WHO HAD THE APPOINTMENT OF SUBORDINATE OFFICERS ARE REQUIRED TO TAKE NOTICE OF THIS ORDER AND TO SEE TO THE ENFORCEMENT OF ITS PROVISIONS AND TERMS WITHIN THE SPHERE OF THEIR RESPECTIVE DEPARTMENTS OR OFFICES AND AS RELATES TO THE SEVERAL PERSONS HOLDING APPOINTMENTS UNDER THEM RESPECTIVELY.

THERE IS NO FEDERAL STATUTE PRECLUDING PAYMENT OF SALARY OR COMPENSATION OTHERWISE DUE AN OFFICER OR EMPLOYEE OF THE UNITED STATES FOR A PERIOD DURING WHICH HE MAY BE HOLDING AN OFFICE OR POSITION UNDER A STATE GOVERNMENT, ALSO; AND IT WILL BE NOTED THAT THE EXECUTIVE ORDER, SUPRA, DOES NOT PURPORT TO PROHIBIT SUCH PAYMENT BUT REQUIRES A RESIGNATION FROM THE FEDERAL OFFICE IF THE HOLDER THEREOF ELECTS TO ACCEPT OR CONTINUE TO HOLD THE STATE OFFICE. IN THE CASE HERE PRESENTED THE EMPLOYEE DID TENDER HIS RESIGNATION FROM THE FEDERAL POSITION ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER THE STATE GOVERNMENT.

SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7409, DATED JULY 9, 1936, PROVIDES:

AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE DURING ANY CALENDAR YEAR SHALL BE ENTITLED TO ALL ACCUMULATED LEAVE PLUS CURRENT ACCRUED LEAVE UP TO THE DATE OF SEPARATION.

IN VIEW OF THIS PROVISION AND THE TERMS OF THE EXECUTIVE ORDER OF 1873 I HAVE TO ADVISE THAT ON THE BASIS OF THE FACTS AS STATED IN YOUR LETTER, AND ASSUMING THAT THE RESIGNATION WAS ACCEPTED AS TENDERED EFFECTIVE AT THE TERMINATION OF THE PERIOD OF EARNED LEAVE, THERE WOULD APPEAR TO BE NO NO LEGAL OBJECTION TO THE RETENTION OF HIS NAME ON THE FEDERAL PAYROLL DURING THE PERIOD OF HIS AUTHORIZED LEAVE OF ABSENCE UNDER THE REGULATIONS, SUPRA, WITH PAYMENT ACCORDINGLY.