A-90012, NOVEMBER 20, 1937, 17 COMP. GEN. 414

A-90012: Nov 20, 1937

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1936 - TRANSFERS - APPOINTMENT PENDING REINSTATEMENT IN PERMANENT CLASSIFIED STATUS AN EMPLOYEE WHO WAS SEPARATED FROM A PERMANENT POSITION IN ONE AGENCY AND GIVEN AN APPOINTMENT IN ANOTHER AGENCY. IS ENTITLED AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES TO A TRANSFER OF THE SICK LEAVE CREDIT EARNED IN THE POSITION FROM WHICH SEPARATED. PROVIDED THE TERMINATION DATE OF THE APPOINTMENT IS NOT FIXED THEREIN. IF THE TERMINATION DATE OF THE APPOINTMENT WAS FIXED THEREIN AT A DATE NOT TO EXCEED 6 MONTHS AFTER THE DATE THEREOF. IS AS FOLLOWS: MR. AHRENS WAS EMPLOYED AS ASSISTANT ENGINEER APPRAISER BY THE FEDERAL LAND BANK OF LOUISVILLE FROM DECEMBER 1. WHEN HIS EMPLOYMENT WAS TERMINATED WITHOUT PREJUDICE BECAUSE OF REDUCTION IN FORCE.

A-90012, NOVEMBER 20, 1937, 17 COMP. GEN. 414

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - TRANSFERS - APPOINTMENT PENDING REINSTATEMENT IN PERMANENT CLASSIFIED STATUS AN EMPLOYEE WHO WAS SEPARATED FROM A PERMANENT POSITION IN ONE AGENCY AND GIVEN AN APPOINTMENT IN ANOTHER AGENCY, EFFECTIVE AFTER 2 NONWORK DAYS HAD INTERVENED, PENDING, HIS REINSTATEMENT OR APPOINTMENT IN A PERMANENT CLASSIFIED STATUS, IS ENTITLED AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES TO A TRANSFER OF THE SICK LEAVE CREDIT EARNED IN THE POSITION FROM WHICH SEPARATED, PROVIDED THE TERMINATION DATE OF THE APPOINTMENT IS NOT FIXED THEREIN, THERE HAVING BEEN NO BREAK IN SERVICE WITHIN THE MEANING OF THE UNIFORM LEAVE REGULATIONS BECAUSE OF THE 2 INTERVENING NONWORK DAYS, BUT IF THE TERMINATION DATE OF THE APPOINTMENT WAS FIXED THEREIN AT A DATE NOT TO EXCEED 6 MONTHS AFTER THE DATE THEREOF, THE EMPLOYEE WOULD BE TEMPORARY FOR LEAVE PURPOSES AND THE TRANSFER OF THE SICK LEAVE CREDIT NOT AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, NOVEMBER 20, 1937:

YOUR LETTER OF OCTOBER 27, 1937, IS AS FOLLOWS:

MR. HERBERT E. AHRENS WAS EMPLOYED AS ASSISTANT ENGINEER APPRAISER BY THE FEDERAL LAND BANK OF LOUISVILLE FROM DECEMBER 1, 1933, TO FEBRUARY 20, 1937, WHEN HIS EMPLOYMENT WAS TERMINATED WITHOUT PREJUDICE BECAUSE OF REDUCTION IN FORCE. ADVANCE NOTICE OF IMPENDING SEPARATION WAS GIVEN HIM BY LETTER DATED FEBRUARY 13, 1937, AND HE APPLIED TO THE DISTRICT ENGINEER, LOUISVILLE, KENTUCKY, FOR EMPLOYMENT IN THE LOUISVILLE DISTRICT OF THE ENGINEER DEPARTMENT.

THE DISTRICT ENGINEER, LOUISVILLE, SELECTED HIM FOR A POSITION OF ASSISTANT ENGINEER (CIVIL), P-2, AT $2,600 PER ANNUM, BUT BECAUSE OF THE SHORT TIME REMAINING BEFORE THE DATE OF PROPOSED SEPARATION FROM THE FEDERAL LAND BANK, THE EMPLOYMENT WAS NOT ARRANGED BY OBTAINING ADVANCE AUTHORITY FOR TRANSFER. INSTEAD, HIS DISCHARGE FROM THE FEDERAL LAND BANK WAS ALLOWED TO TAKE EFFECT, AND FOLLOWING THE DISCHARGE ON FEBRUARY 20, 1937, HE WAS GIVEN EMPLOYMENT IN TEMPORARY STATUS IN THE LOUISVILLE DISTRICT OF THE ENGINEER DEPARTMENT, EFFECTIVE FEBRUARY 23, 1937, PENDING REINSTATEMENT. RECOMMENDATION FOR REINSTATEMENT WAS SUBMITTED AND REINSTATEMENT IN CLASSIFIED STATUS ACTUALLY WAS EFFECTED ON MAY 3, 1937, THE DATE ON WHICH HE SUBSCRIBED TO OATH OF OFFICE UNDER INSTRUMENT OF REINSTATEMENT.

FEBRUARY 21 AND 22, 1937, WERE NON-WORK DAYS. THERE WAS, THEREFORE, NO ACTUAL BREAK IN THE EMPLOYMENT OF MR. AHRENS.

MR. AHRENS HAD RECEIVED ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE THROUGH FEBRUARY 20, 1937, THE DATE OF HIS SEPARATION FROM THE FEDERAL LAND BANK, BUT AT THAT TIME THERE REMAINED TO HIS CREDIT 8 3/4 DAYS SICK LEAVE.

YOUR DECISION (A-80859) DATED OCTOBER 21, 1936, INDICATES THAT WHERE AN EMPLOYEE IS TRANSFERRED OR REAPPOINTED TO A TEMPORARY POSITION, CREDIT FOR ANY LEAVE STANDING TO HIS CREDIT AT THE TIME OF TRANSFER OR REINSTATEMENT MAY NOT BE TRANSFERRED WITH HIM. HOWEVER, IT IS NOT CLEAR TO THIS OFFICE AS TO WHETHER AN EMPLOYEE WHO IS CARRIED IN TEMPORARY STATUS IN THE TECHNICAL SENSE UNDER CIVIL SERVICE RULES, PENDING ACTION ON RECOMMENDATION FOR HIS REINSTATEMENT IN PERMANENT CLASSIFIED STATUS TO A POSITION IN WHICH EMPLOYMENT WILL BE OF INDEFINITE DURATION, IS TO BE REGARDED AS EMPLOYMENT IN A TEMPORARY POSITION WITHIN THE MEANING OF THE DECISION ABOVE MENTIONED. A RULING, THEREFORE, IS REQUESTED AS TO WHETHER, IN THE CASE HEREIN DESCRIBED, CREDIT FOR THE SICK LEAVE MAY PROPERLY BE TRANSFERRED.

SECTIONS 8 AND 17 OF UNIFORM SICK LEAVE REGULATIONS PROVIDE AS FOLLOWS:

SEC. 8. EMPLOYEES TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL BE CREDITED WITH ACCUMULATED SICK LEAVE AND CHARGED WITH SICK LEAVE PREVIOUSLY ADVANCED IN EXCESS OF THAT ACCUMULATED AT THE TIME OF TRANSFER.

SEC. 17. TEMPORARY EMPLOYEES SHALL BE ENTITLED TO 1 1/4 DAYS OF SICK LEAVE FOR EACH MONTH OF SERVICE, BUT SHALL NOT BE ENTITLED TO AN ADVANCE OF SICK LEAVE. SICK LEAVE ACCUMULATED DURING TEMPORARY APPOINTMENT SHALL BE CREDITED TO AN EMPLOYEE WHO RECEIVES A PERMANENT APPOINTMENT IN THE SAME GOVERNMENTAL AGENCY WITHOUT BREAK IN SERVICE BUT SHALL NOT BE TRANSFERABLE ELSEWHERE UNDER ANY CIRCUMSTANCES. FOR SICK LEAVE PURPOSES, THOSE WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS WILL BE CONSIDERED TEMPORARY EMPLOYEES.

THE SAME DEFINITION OF A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES APPEARS IN THE UNIFORM ANNUAL LEAVE REGULATIONS AND HAS BEEN GIVEN CONSIDERATION IN A NUMBER OF DECISIONS OF THIS OFFICE. SEE 16 COMP. GEN. 264; ID.678; ID. 934. IN THE LAST CITED DECISION IT WAS HELD (QUOTING FROM THE SYLLABUS):

FOR ANNUAL AND SICK LEAVE OF ABSENCE PURPOSES UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND REGULATIONS ISSUED THEREUNDER, EMPLOYEES ARE EITHER PERMANENT OR TEMPORARY, DEPENDING UPON THE TERMS OF THEIR APPOINTMENT. IF THE TERMINATION OF THEIR EMPLOYMENT IS NOT FIXED IN ADVANCE, AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE PERMANENT FOR LEAVE PURPOSES WHETHER THEIR ACTUAL SERVICE IS MORE OR LESS THAN SIX MONTHS AND THEY ARE ENTITLED TO 2 1/6 DAYS' ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE, BUT IF THE TERMINATION OF THE EMPLOYMENT IS FIXED IN ADVANCE AT A DATE NOT EXCEEDING SIX MONTHS FROM EFFECTIVE DATE OF APPOINTMENT, AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE TEMPORARY FOR LEAVE PURPOSES AND ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE, INCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE.

WHERE, NOTWITHSTANDING IT IS KNOWN IN ADVANCE THAT SHORT-TERM EMPLOYEES WILL NOT SERVE SIX MONTHS, THE TERMINATION DATE OF EMPLOYMENT IS UNCERTAIN AND IS NOT FIXED AND STATED IN THE APPOINTMENT, SUCH EMPLOYEES MUST BE REGARDED AS PERMANENT FOR LEAVE PURPOSES, BUT IF THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT FIX A PERIOD OF EMPLOYMENT "NOT TO EXCEED 6 MONTHS," EVEN THOUGH THE EXACT DATE OF TERMINATION IS NOT STATED, SUCH EMPLOYEES MUST BE REGARDED AS TEMPORARY FOR LEAVE PURPOSES.

YOUR LETTER DOES NOT STATE THE TERMS OF THE APPOINTMENT OR EMPLOYMENT OF FEBRUARY 23, 1937, IN THE LOUISVILLE DISTRICT OF THE ENGINEER DEPARTMENT, PENDING THE REINSTATEMENT OR PERMANENT APPOINTMENT. IF THE TERMINATION DATE THEREOF WAS NOT FIXED AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEE SHOULD BE REGARDED AS A PERMANENT EMPLOYEE DURING THAT PERIOD FOR LEAVE PURPOSES AND THE SICK LEAVE CREDIT EARNED AS A PERMANENT EMPLOYEE WITH THE FEDERAL LAND BANK MAY BE TRANSFERRED, THERE HAVING BEEN NO BREAK IN SERVICE BY REASON OF THE TWO INTERVENING NONWORK DAYS, FEBRUARY 21 AND 22, 1937. 16 COMP. GEN. 212.

HOWEVER, IF THE TERMINATION DATE WAS FIXED AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT OF FEBRUARY 23, 1937, AT A DATE NOT TO EXCEED 6 MONTHS THEREAFTER, THE EMPLOYEE SHOULD BE REGARDED AS HAVING BEEN TEMPORARY AND THE TRANSFER OF SICK LEAVE CREDIT IS NOT AUTHORIZED.