A-93657, APRIL 9, 1938, 17 COMP. GEN. 830

A-93657: Apr 9, 1938

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IS DETERMINED BY THE STATUS OF THE EMPLOYEE APPOINTED TO OCCUPY THE SAME. WHERE A PERMANENT EMPLOYEE OF ONE GOVERNMENT AGENCY WAS GIVEN AN APPOINTMENT IN ANOTHER AGENCY FOR A DEFINITE PERIOD WHICH WAS NOT IN EXCESS OF 6 MONTHS SHE BECAME A TEMPORARY EMPLOYEE WITHIN THE DEFINITION OF SECTION 1 OF THE UNIFORM ANNUAL LEAVE REGULATIONS. NOTWITHSTANDING THE TEMPORARY APPOINTMENT WAS MADE PENDING APPROVAL OF HER SUBSEQUENT PROBATIONARY APPOINTMENT. IS AS FOLLOWS: MADELINE T. NELIS HAD BEEN CERTIFIED TO THE SOCIAL SECURITY BOARD FOR PROBATIONARY APPOINTMENT IN THE FIELD AT THE TIME SHE WAS GIVEN A "TEMPORARY EMERGENCY APPOINTMENT. WHICH WAS TERMINATED BY HER PROBATIONARY APPOINTMENT ON JANUARY 22.

A-93657, APRIL 9, 1938, 17 COMP. GEN. 830

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TRANSFERS - "PERMANENT POSITION" DETERMINATIONS THE PERMANENT OR TEMPORARY CHARACTER OF A POSITION UNDER SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, RELATIVE TO THE TRANSFER OF ANNUAL LEAVE, IS DETERMINED BY THE STATUS OF THE EMPLOYEE APPOINTED TO OCCUPY THE SAME, AND THE TERM OF THE APPOINTMENT DETERMINES THE EMPLOYEE'S STATUS UNDER THE DEFINITIONS OF TEMPORARY AND PERMANENT EMPLOYEES IN THE REGULATIONS. WHERE A PERMANENT EMPLOYEE OF ONE GOVERNMENT AGENCY WAS GIVEN AN APPOINTMENT IN ANOTHER AGENCY FOR A DEFINITE PERIOD WHICH WAS NOT IN EXCESS OF 6 MONTHS SHE BECAME A TEMPORARY EMPLOYEE WITHIN THE DEFINITION OF SECTION 1 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, AND THE ANNUAL LEAVE TO HER CREDIT UNDER THE PERMANENT APPOINTMENT MAY NOT BE TRANSFERRED, NOTWITHSTANDING THE TEMPORARY APPOINTMENT WAS MADE PENDING APPROVAL OF HER SUBSEQUENT PROBATIONARY APPOINTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, APRIL 9, 1938:

YOUR LETTER OF MARCH 21, 1938, IS AS FOLLOWS:

MADELINE T. NELIS HAD BEEN CERTIFIED TO THE SOCIAL SECURITY BOARD FOR PROBATIONARY APPOINTMENT IN THE FIELD AT THE TIME SHE WAS GIVEN A "TEMPORARY EMERGENCY APPOINTMENT, NOT TO EXCEED 30 DAYS," AS A JUNIOR STENOGRAPHER, CAF-2, $1,440, OFFICIAL STATION, YORK, PENNSYLVANIA. SHE ENTERED ON DUTY JANUARY 3, 1938, UNDER THIS EMERGENCY APPOINTMENT, WHICH WAS TERMINATED BY HER PROBATIONARY APPOINTMENT ON JANUARY 22,1938. THE EMERGENCY APPOINTMENT WAS RESORTED TO SIMPLY TO GET HER ON DUTY QUICKLY, THE BOARD HAVING AUTHORIZED REGIONAL DIRECTORS IN THE FIELD TO MAKE SUCH APPOINTMENTS FOR PERIODS NOT TO EXCEED 30 DAYS. POWER TO MAKE PROBATIONAL APPOINTMENTS HAS NOT BEEN DELEGATED TO ANY SUBORDINATE AUTHORITY. AT THE TIME OF MISS NELIS'S RESIGNATION FROM THE HOME OWNERS' LOAN CORPORATION, PITTSBURGH, PENNSYLVANIA, AT THE CLOSE OF BUSINESS JANUARY 2, 1938, SHE HAD ACCUMULATED 11 DAYS OF ANNUAL LEAVE IN A PERMANENT LEAVE STATUS, WHICH SHE BELIEVED WOULD BE TRANSFERRED TO HER CREDIT AS A PROBATIONARY EMPLOYEE.

THE OFFICIAL WORDING OF MISS NELIS'S APPOINTMENT WOULD INDICATE HER "TERM OF APPOINTMENT" AS 30 DAYS. HOWEVER, THIS EMPLOYEE, HAVING BEEN DULY CERTIFIED BY THE MANAGER OF THE THIRD CIVIL SERVICE DISTRICT, ACTUALLY ENTERED ON DUTY IN A PERMANENT POSITION, UNDER EMERGENCY CONDITIONS, PENDING BOARD APPROVAL OF HER PROBATIONARY APPOINTMENT, SINCE IT WAS ADMINISTRATIVELY DETERMINED IN ADVANCE THAT SHE WOULD BE PROBATIONALLY APPOINTED AND THAT SHE WOULD BE EMPLOYED INDEFINITELY. COMPLIANCE WITH THE TECHNICALITY OF THE 30-DAY LIMITATION ON EMERGENCY APPOINTMENTS WAS SIMPLY A MATTER OF FORM.

YOUR DECISION IS REQUESTED AS TO WHETHER, IN A CASE OF THIS KIND, CREDIT FOR ACCUMULATED LEAVE MAY PROPERLY BE TRANSFERRED.

SECTION 1 OF THE NEW UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, CONTAINS THE FOLLOWING DEFINITIONS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.

SECTION 6 OF THE SAME REGULATIONS PROVIDES, AS FOLLOWS:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.

WHILE THIS SECTION OF THE REGULATIONS, UNLIKE OTHER SECTIONS, USES THE WORD "PERMANENT" AS DESCRIPTIVE OF "POSITION," FROM AND TO WHICH AN EMPLOYEE IS TRANSFERRED OR REAPPOINTED, RATHER THAN AS DESCRIPTIVE OF THE "EMPLOYEE," NEVERTHELESS THE PERMANENT OR TEMPORARY CHARACTER OF A POSITION FOR LEAVE PURPOSES IS DETERMINED BY THE TERM OF THE APPOINTMENT OF THE EMPLOYEE TO OCCUPY THE SAME, AND THE TERM OF THE APPOINTMENT DETERMINES THE STATUS OF THE EMPLOYEE UNDER THE DEFINITION APPEARING IN THE REGULATIONS ABOVE QUOTED. SEE, GENERALLY,16 COMP. GEN. 264; 16 ID. 403.

REGARDLESS OF THE REASON FOR SO LIMITING THE APPOINTMENT, THE FACT IS THAT THE APPOINTMENT FIRST GIVEN MISS NELIS BY THE SOCIAL SECURITY BOARD WAS AN APPOINTMENT "NOT TO EXCEED 30 DAYS; " HENCE, THE POSITION WITH THE BOARD TO WHICH SHE WAS "TRANSFERRED OR REAPPOINTED" WAS A TEMPORARY, NOT A PERMANENT, POSITION. CONSEQUENTLY, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT THE LEAVE TO HER CREDIT AT THE TIME OF HER RESIGNATION FROM THE HOME OWNERS' LOAN CORPORATION MAY NOT BE TRANSFERRED TO HER CREDIT UNDER SERVICE WITH THE SOCIAL SECURITY BOARD.