A-98177, OCTOBER 6, 1938, 18 COMP. GEN. 317

A-98177: Oct 6, 1938

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1936 - TRANSFERS - INTERMEDIATE "TEMPORARY" APPOINTMENTS WHERE EMPLOYEES PREVIOUSLY OCCUPYING EMERGENCY POSITIONS WERE GIVEN APPOINTMENTS WITHOUT BREAK IN SERVICE. THE POSITIONS TO WHICH TEMPORARILY APPOINTED ARE TO BE CLASSED AS "PERMANENT" FOR LEAVE PURPOSES WITHIN THE MEANING OF THE UNIFORM ANNUAL LEAVE REGULATIONS. THE UNUSED LEAVE ACCRUED PRIOR TO THE "TEMPORARY" APPOINTMENT IS AVAILABLE FOR USE THEREAFTER UNLESS THE "TEMPORARY" APPOINTMENTS WERE FOR DEFINITE PERIODS NOT EXCEEDING SIX MONTHS. 17 COMP. IS AS FOLLOWS: REFERENCE IS MADE TO DECISION 17 COMP. IN THAT CASE APPARENTLY IT WAS PROPOSED THAT LEAVE BE TRANSFERRED BETWEEN POSITIONS IN DIFFERENT GOVERNMENTAL AGENCIES. FOR SEVERAL YEARS LANDS HAVE BEEN PURCHASED FOR NATIONAL FORESTS UNDER FUNDS MADE AVAILABLE PURSUANT TO THE EMERGENCY CONSERVATION ACT OF MARCH 31.

A-98177, OCTOBER 6, 1938, 18 COMP. GEN. 317

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TRANSFERS - INTERMEDIATE "TEMPORARY" APPOINTMENTS WHERE EMPLOYEES PREVIOUSLY OCCUPYING EMERGENCY POSITIONS WERE GIVEN APPOINTMENTS WITHOUT BREAK IN SERVICE, CLASSED AS TEMPORARY BY THE CIVIL SERVICE COMMISSION, TO BE FOLLOWED BY PERMANENT APPOINTMENTS UPON DETERMINATION AS TO THEIR QUALIFICATIONS FOR TRANSFER TO THE CLASSIFIED CIVIL SERVICE, THE POSITIONS TO WHICH TEMPORARILY APPOINTED ARE TO BE CLASSED AS "PERMANENT" FOR LEAVE PURPOSES WITHIN THE MEANING OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE UNUSED LEAVE ACCRUED PRIOR TO THE "TEMPORARY" APPOINTMENT IS AVAILABLE FOR USE THEREAFTER UNLESS THE "TEMPORARY" APPOINTMENTS WERE FOR DEFINITE PERIODS NOT EXCEEDING SIX MONTHS. 17 COMP. GEN. 830, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, OCTOBER 6, 1938:

YOUR LETTER OF SEPTEMBER 26, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO DECISION 17 COMP. GEN. 830 TO THE EFFECT THAT LEAVE MAY NOT BE TRANSFERRED FROM A PERMANENT POSITION TO ANOTHER PERMANENT POSITION WHEN THERE HAS BEEN AN INTERVENING TEMPORARY EMPLOYMENT PENDING PROBATIONAL APPOINTMENT IN THE NEW PERMANENT POSITION. IN THAT CASE APPARENTLY IT WAS PROPOSED THAT LEAVE BE TRANSFERRED BETWEEN POSITIONS IN DIFFERENT GOVERNMENTAL AGENCIES.

IN THIS DEPARTMENT A SITUATION HAS DEVELOPED IN WHICH TEMPORARY APPOINTMENTS WITHOUT CHANGE IN POSITION BECAME NECESSARY BETWEEN INDEFINITE EMPLOYMENT AND PERMANENT EMPLOYMENT. FOR SEVERAL YEARS LANDS HAVE BEEN PURCHASED FOR NATIONAL FORESTS UNDER FUNDS MADE AVAILABLE PURSUANT TO THE EMERGENCY CONSERVATION ACT OF MARCH 31, 1933 (48 STAT. 22) AND THE EMERGENCY RELIEF ACT OF APRIL 8, 1935 (49 STAT. 115). TO HANDLE THIS GREATLY ENLARGED PROGRAM IT WAS NECESSARY TO ORGANIZE AN ABSTRACTING FORCE; EMPLOYMENT OF THE REQUIRED PERSONNEL WAS WITHOUT REGARD TO CIVIL SERVICE RULES AND REGULATIONS, AS PERMITTED UNDER THOSE ACTS. SUBSEQUENT TO JUNE 30, 1938, THE ONLY FUNDS AVAILABLE FOR PURCHASE OF NATIONAL FOREST LANDS ARE THOSE CONTAINED IN THE APPROPRIATION FOR THE FOREST SERVICE, POSITIONS UNDER WHICH ARE SUBJECT TO CIVIL SERVICE. IN VIEW OF THE TIME REQUIRED TO DEVELOP AN EXPERIENCED ABSTRACTING FORCE, IT WAS IN THE INTERESTS OF THE GOVERNMENT THAT AS MANY AS WERE NEEDED BE RETAINED FOR CONTINUED SERVICE, WHICH COULD BE DONE ONLY THROUGH TRANSFER TO THE CLASSIFIED CIVIL SERVICE. IT WAS EXPECTED THAT SUCH TRANSFER WOULD BE ACCOMPLISHED AS OF JULY 1, BUT DUE TO UNAVOIDABLE DELAY IN DETERMINATION OF QUALIFICATIONS THIS WAS NOT POSSIBLE, AND THE CIVIL SERVICE COMMISSION AUTHORIZED TEMPORARY APPOINTMENTS AS OF JULY 1 TO BE FOLLOWED BY PERMANENT APPOINTMENTS AS SOON AS IT COULD BE DETERMINED THAT THE QUALIFICATIONS IN EACH CASE WERE ACCEPTABLE. SOME OF THESE TEMPORARY APPOINTMENTS HAVE BEEN SUPERSEDED BY PERMANENT APPOINTMENTS, THIS ACTION BEING TAKEN IN EACH INSTANCE AS THE COMMISSION APPROVES THE PERMANENT TRANSFER, WHILE OTHERS ARE STILL PENDING.

BRIEFLY, THE STATUS OF THESE APPOINTEES IS THAT THEY HAVE OCCUPIED THE SAME POSITIONS FOR SEVERAL YEARS IN AN INDEFINITE STATUS TO JUNE 30, 1938, AND UNDER TEMPORARY APPOINTMENT PENDING FINAL DECISION BY THE CIVIL SERVICE COMMISSION FROM JULY 1, 1938, TO THE DATE OF PERMANENT APPOINTMENT FOLLOWING APPROVAL BY THE CIVIL SERVICE COMMISSION. THERE IS NOT THE ELEMENT OF CHANGING FROM ONE POSITION TO ANOTHER BUT RATHER OCCUPANCY OF THE SAME POSITION WITH THE SAME DUTIES THROUGHOUT THE ENTIRE PERIOD OF EMPLOYMENT, WITH A TECHNICAL TEMPORARY STATUS PENDING CONFIRMATION OF PERMANENT TRANSFER TO THE CLASSIFIED CIVIL SERVICE.

BECAUSE OF THE STATUS OF THE WORK, MANY OF THESE EMPLOYEES REFRAINED FROM TAKING LEAVE IN THE LATTER PART OF THE FISCAL YEAR 1938 WITH THE UNDERSTANDING THAT LEAVE COULD BE GRANTED AFTER THE CLOSE OF THE FISCAL YEAR, AT WHICH TIME THEIR ABSENCE WOULD RESULT IN LESS INTERFERENCE WITH THE WORK. SUBSEQUENT TO JUNE 30, ANNUAL LEAVE WAS GRANTED IN SOME INSTANCES BASED ON UNUSED LEAVE ACCRUING PRIOR TO THAT DATE. IT WOULD BE EXTREMELY UNFAIR TO DENY THE LEAVE AT THIS TIME, CONSIDERING THE FACT THAT IN ORDER TO FURTHER THE WORK ON WHICH ENGAGED THESE EMPLOYEES REMAINED ON THE JOB DURING A PERIOD WHEN LEAVE MIGHT HAVE BEEN DEMANDED IF REQUIRED THAT LEAVE BE TAKEN WITHIN THE PERIOD OF THE INDEFINITE EMPLOYMENT, WHICH CONDITION COULD NOT BE FORESEEN BECAUSE OF THE CONTEMPLATED TRANSFER TO CLASSIFIED SERVICE AS OF JULY 1.

SINCE THERE IS NOT INVOLVED THE TRANSFER FROM ONE POSITION TO ANOTHER BUT RATHER A CONTINUATION OF THE EMPLOYMENT THAT HAS EXISTED FOR FROM TWO TO FIVE YEARS IN MOST CASES, IT IS BELIEVED IN THE INTEREST OF FAIRNESS TO CONSIDER THE WHOLE EMPLOYMENT AS INDEFINITE UP TO THE TIME OF RECEIVING PERMANENT APPOINTMENT. YOUR EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938, PROVIDES AS FOLLOWS:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER OR REAPPOINTMENT 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.

IN THE DECISION OF APRIL 9, 1938, 17 COMP. GEN. 830, CITED BY YOU, IT WAS STATED:

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.

THE DEFINITIONS OF THE TERMS "PERMANENT" AND "TEMPORARY" EMPLOYEES STATED IN SECTION 1 OF THE ANNUAL LEAVE REGULATIONS ARE AS FOLLOWS:

(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.

IT IS UNDERSTOOD FROM YOUR LETTER THAT THE APPOINTMENTS MADE EFFECTIVE JULY 1, 1938--- CLASSED AS TEMPORARY BY THE CIVIL SERVICE COMMISSION--- WERE MADE UNDER SECTION 2, RULE VIII, OF THE CIVIL SERVICE RULES PENDING THE FILLING OF THE POSITIONS PERMANENTLY, AND THAT THE TENURE OF THE APPOINTMENTS WAS INDEFINITE, THAT IS, THAT THEY WERE NOT MADE FOR "DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.'

IF THESE ARE THE FACTS, THE POSITIONS TO WHICH THESE EMPLOYEES WERE APPOINTED EFFECTIVE JULY 1, 1938, ARE TO BE CLASSED AS "PERMANENT" FOR LEAVE PURPOSES (16 COMP. GEN. 264, 266), AND THE UNUSED LEAVE ACCRUED TO THEM PRIOR TO JULY 1, 1938, IS AVAILABLE FOR USE THEREAFTER, THE TRANSFERS BEING FROM EMERGENCY POSITIONS TO PERMANENT POSITIONS WITHOUT BREAK IN SERVICE.

IF THE APPOINTMENTS EFFECTIVE JULY 1, 1938, WERE FOR DEFINITE PERIODS NOT EXCEEDING SIX MONTHS, NO UNUSED LEAVE THAT HAD ACCRUED TO JUNE 30, 1938, WAS AVAILABLE FOR TAKING AFTER SAID DATE. 17 COMP. GEN. 830.