A-94176, MAY 16, 1938, 17 COMP. GEN. 956

A-94176: May 16, 1938

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AN EMPLOYEE WAS IN NEITHER A DUTY NOR LEAVE STATUS ON THE MONDAY. THERE IS NO AUTHORITY TO RESTORE HIM TO THE PAY ROLLS OF THE AGENCY FROM WHICH SEPARATED FOR THAT DAY FOR THE SOLE PURPOSE OF GRANTING HIM LEAVE OF ABSENCE WITH PAY. IS AS FOLLOWS: THERE ARE TRANSMITTED HEREWITH LETTER OF SEPTEMBER 9. THE SAID LETTERS ARE SELF-EXPLANATORY. GAGNON WAS APPOINTED IN THE GOVERNMENT PRINTING OFFICE ON AUGUST 10. AS THE PRIOR DECISIONS OF THE COMPTROLLER GENERAL HOLDING THAT ONCE A RESIGNATION DATE IS FIXED IT CANNOT BE CHANGED FOR ANY PURPOSE. IN VIEW OF THE FURTHER FACT THAT THE LEGALITY OF THE SUPPLEMENTAL PAY ROLL WHICH THE WORKS PROGRESS ADMINISTRATION PROPOSES TO ISSUE IS FOR FINAL DETERMINATION BY YOUR OFFICE.

A-94176, MAY 16, 1938, 17 COMP. GEN. 956

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - TRANSFERS - BREAKS IN SERVICE WHERE, PRIOR TO JANUARY 1, 1938, EFFECTIVE DATE OF NEW LEAVE REGULATIONS, AN EMPLOYEE WAS IN NEITHER A DUTY NOR LEAVE STATUS ON THE MONDAY--- A WORK DAY--- INTERVENING BETWEEN THE TERMINATION OF HIS EMPLOYMENT IN ONE GOVERNMENT AGENCY AND HIS APPOINTMENT IN ANOTHER, THERE IS NO AUTHORITY TO RESTORE HIM TO THE PAY ROLLS OF THE AGENCY FROM WHICH SEPARATED FOR THAT DAY FOR THE SOLE PURPOSE OF GRANTING HIM LEAVE OF ABSENCE WITH PAY, OR, FOR TRANSFER OF THE LEAVE CREDIT EARNED IN THE AGENCY FROM WHICH SEPARATED TO HIS CREDIT AS AN EMPLOYEE IN THE OTHER AGENCY, THERE NOT HAVING BEEN A TRANSFER OR REAPPOINTMENT "WITHOUT BREAK IN SERVICE" WITHIN THE MEANING OF THE PRIOR PUBLISHED DECISIONS OF THE GENERAL ACCOUNTING OFFICE, IN EFFECT, DEFINING A "BREAK IN SERVICE" AS A SEPARATION FOR A PERIOD OF 1 OR MORE WORK DAYS- - WHICH DEFINITION HAS BEEN INCLUDED AS A CONDITION PRECEDENT TO THE TRANSFER OF EITHER ANNUAL OR SICK LEAVE IN THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PUBLIC PRINTER, MAY 16, 1938:

YOUR LETTER OF APRIL 8, 1938, IS AS FOLLOWS:

THERE ARE TRANSMITTED HEREWITH LETTER OF SEPTEMBER 9, 1937, OCTOBER 23, 1937, AND APRIL 4, 1938, FROM THE WORKS PROGRESS ADMINISTRATION, BOSTON, MASSACHUSETTS, AND COPIES OF OUR LETTERS OF AUGUST 20 AND SEPTEMBER 8, 1937, TO THAT ADMINISTRATION, CONCERNING DONATIEN W. GAGNON. THE SAID LETTERS ARE SELF-EXPLANATORY.

MR. GAGNON WAS APPOINTED IN THE GOVERNMENT PRINTING OFFICE ON AUGUST 10, 1937, AND RESIGNED EFFECTIVE MARCH 15, 1938, TO ACCEPT TRANSFER TO THE DEPARTMENT OF JUSTICE.

AS THE PRIOR DECISIONS OF THE COMPTROLLER GENERAL HOLDING THAT ONCE A RESIGNATION DATE IS FIXED IT CANNOT BE CHANGED FOR ANY PURPOSE, MAY BE AFFECTED BY SECTION 7 OF THE CURRENT LEAVE LAW REGULATIONS (EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938), AND IN VIEW OF THE FURTHER FACT THAT THE LEGALITY OF THE SUPPLEMENTAL PAY ROLL WHICH THE WORKS PROGRESS ADMINISTRATION PROPOSES TO ISSUE IS FOR FINAL DETERMINATION BY YOUR OFFICE, IT IS RESPECTFULLY REQUESTED THAT REPLY TO LETTER OF APRIL 4, 1938, BE MADE BY THE COMPTROLLER GENERAL DIRECT TO THE WORKS PROGRESS ADMINISTRATION.

THE GOVERNMENT PRINTING OFFICE WILL TAKE UP THE ACCUMULATED LEAVE WHICH MR. GAGNON EARNED AT THE WORKS PROGRESS ADMINISTRATION AND TRANSFER THE SAME TO THE DEPARTMENT OF JUSTICE IF PERMISSIBLE UNDER EXISTING REGULATIONS.

A COPY OF YOUR REPLY TO THE WORKS PROGRESS ADMINISTRATION WILL, THEREFORE, BE APPRECIATED AS UPON ITS RECEIPT, THIS OFFICE WILL BE IN A POSITION TO ADVISE THE DEPARTMENT OF JUSTICE CORRECTLY AS TO THE UNUSED LEAVE TO THE CREDIT OF MR. GAGNON AT THE TIME OF HIS TRANSFER TO THAT DEPARTMENT.

THE LETTER DATED APRIL 4, 1938, FROM THE WORKS PROGRESS ADMINISTRATION FOR MASSACHUSETTS TO THE GOVERNMENT PRINTING OFFICE, IS AS FOLLOWS:

MR. DONATIEN GAGNON HAS WRITTEN ME THAT THE SICK AND ANNUAL LEAVE WHICH WAS DUE HIM WHEN HIS SERVICES WITH US WERE TERMINATED, CANNOT BE ALLOWED BECAUSE OF THE FACT THAT HE WAS NOT PAID ON OUR PAY ROLL AUGUST 7 AND CONSEQUENTLY, THERE WAS A BREAK IN SERVICE.

IT WAS OUR INTENTION TO RETAIN MR. GAGNON ON OUR PAY ROLL UNTIL HE STARTED IN THE NEW DEPARTMENT AND IT WAS OUR UNDERSTANDING THAT HE WAS TO BEGIN THERE AT 9 A.M. AUGUST 7. THE FACT THAT HE WAS NOT PAID ON OUR PAY ROLL FOR THAT DAY IS PURELY DUE TO A MISUNDERSTANDING AS TO THE DATE.

WHERE THIS SITUATION IS DUE TO A MISUNDERSTANDING ON OUR PART, WE WILL BE WILLING TO PUT THROUGH A SUPPLEMENTARY PAY ROLL, PAYING MR. GAGNON THROUGH AUGUST 9, IF THIS WILL ENABLE YOUR DEPARTMENT TO TRANSFER HIS LEAVE. YOUR ADVICE ON THIS MATTER WILL BE APPRECIATED.

OTHER CORRESPONDENCE FORWARDED WITH YOUR LETTER SHOWS THAT MR. GAGNON WAS EMPLOYED AS A JUNIOR CLERK BY THE WORKS PROGRESS ADMINISTRATION AND THAT HIS APPOINTMENT IN THE GOVERNMENT PRINTING OFFICE EFFECTIVE AUGUST 10, 1937, WAS AS PROBATIONAL JUNIOR OFFICE HELPER. REGARDLESS OF THE ALLEGED MISUNDERSTANDING, THE FACT IS THAT MR. GAGNON WAS NOT IN THE SERVICE OF THE GOVERNMENT ON MONDAY, AUGUST 9, 1937, AND THERE IS NO AUTHORITY AT THIS TIME TO RESTORE HIM TO THE PAY ROLLS OF THE WORKS PROGRESS ADMINISTRATION FOR THAT DAY FOR THE SOLE PURPOSE OF GRANTING HIM LEAVE OF ABSENCE WITH PAY. SEE DECISION OF MARCH 30, 1937, 16 COMP. GEN. 899, THE SYLLABUS OF WHICH IS AS FOLLOWS:

THE RULE THAT THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE FOR ANNUAL LEAVE ACCRUED BUT NOT TAKEN PRIOR THERETO AS ANNOUNCED IN DECISION IN 16 COMP. GEN. 28, AND PRIOR PUBLISHED DECISIONS, IS FOR GENERAL APPLICATION IRRESPECTIVE OF WHETHER THE SEPARATION WAS SUBSEQUENT OR PRIOR TO JANUARY 1, 1936, THE EFFECTIVE DATE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THERE MAY BE NO RESTORATION TO THE STATUS OF EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE IN SUCH CASES, NOTWITHSTANDING THE FAILURE TO GRANT SUCH LEAVE PRIOR TO SEPARATION WAS BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR NEGLIGENCE.

SEE, ALSO, 16 COMP. GEN. 28, AND DECISIONS THEREIN CITED.

SECTION 5 OF THE ANNUAL-LEAVE REGULATIONS AND SECTION 8 OF THE SICK LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, PROVIDED, RESPECTIVELY, AS FOLLOWS:

SEC. 5. 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 AT THE TIME OF THE TRANSFER BE CREDITED WITH ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.

"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.

THE EFFECT OF THE DECISIONS OF THIS OFFICE DEFINING THE PHRASE "BREAK IN SERVICE" WAS TO CONSIDER SEPARATION FROM THE SERVICE FOR A PERIOD OF 1 OR MORE WORK DAYS AS A BREAK IN SERVICE, AND THIS DEFINITION HAS BEEN INCORPORATED IN SECTIONS 6 AND 9 OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY, EFFECTIVE JANUARY 1, 1938. 16 COMP. GEN. 212; 17 ID. 271; ID 414.

THEREFORE, AS MONDAY, AUGUST 9, 1937, WAS A WORK DAY, THAT IS, WAS NOT A SUNDAY OR HOLIDAY, IT MUST BE HELD THAT THE APPOINTMENT EFFECTIVE AUGUST 10, 1937, WAS NOT A TRANSFER OR REAPPOINTMENT ,WITHOUT BREAK IN SERVICE.' CONSEQUENTLY, THERE IS NO AUTHORITY UNDER THE LAW OR REGULATIONS TO TRANSFER HIS ANNUAL AND SICK LEAVE CREDIT EARNED IN THE WORKS PROGRESS ADMINISTRATION TO HIS CREDIT AS AN EMPLOYEE IN THE GOVERNMENT PRINTING OFFICE.

A COPY OF THIS DECISION IS BEING TRANSMITTED TO THE WORKS PROGRESS ADMINISTRATION.