B-103, JANUARY 7, 1939, 18 COMP. GEN. 599

B-103, JANUARY 7, 1939, 18 COMP. GEN. 599

LEAVES OF ABSENCE - ANNUAL - ACT MARCH 14, 1936 - TRANSFERS - TEMPORARY TO EMERGENCY POSITIONS THERE IS NO AUTHORITY UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, OR THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AS AMENDED, FOR THE TRANSFER OF LEAVE CREDIT FROM A TEMPORARY TO AN EMERGENCY POSITION WHETHER IN THE SAME OR DIFFERENT GOVERNMENTAL AGENCY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, NATIONAL DEFENSE POWER COMMITTEE, JANUARY 7, 1939:

YOUR LETTER OF DECEMBER 16, 1938, IS AS FOLLOWS:

AT THE REQUEST OF THE WAR DEPARTMENT AND PURSUANT TO THE AUTHORIZATION OF THE PRESIDENT ON MARCH 18, 1938, THE FEDERAL POWER COMMISSION UNDERTOOK, DURING THE CLOSING MONTHS OF THE LAST FISCAL YEAR, A REVISION OF THE NATIONAL POWER SURVEY OF 1935, ORIGINALLY AUTHORIZED BY EXECUTIVE ORDER NO. 6251, DATED AUGUST 19, 1933. THIS INVESTIGATION INVOLVED A DETERMINATION OF THE PAST, PRESENT, AND FUTURE PEACE-TIME DEMANDS FOR ELECTRIC ENERGY, AND THE LOAD WHICH WOULD BE SUPERIMPOSED THEREON IN THE EVENT OF WAR; THE FACILITIES AVAILABLE AND TO BE ADDED IN THE IMMEDIATE FUTURE AND THOSE WHICH WOULD BE REQUIRED TO SUPPLY PEACE-TIME AND WAR-TIME LOADS; THE UNDEVELOPED WATER POWER RESOURCES AND THEIR RELATION TO EXISTING AND POTENTIAL MARKETS AND THEIR IMPORTANCE TO NATIONAL DEFENSE; THE NEED FOR LARGE-SCALE STEAM-ELECTRIC PLANTS AND THE SELECTION OF SUITABLE SITES THEREFOR; THE BUILDING UP OF A WAR-TIME POWER RESERVE, AND THE DEVELOPMENT OF A POWER PROGRAM FOR NATIONAL DEFENSE.

AT THE DIRECTION OF THE ADMINISTRATOR OF THE PUBLIC WORKS ADMINISTRATION THERE WAS MADE AVAILABLE TO THE FEDERAL POWER COMMISSION ON JULY 12, 1938, AN ALLOTMENT OF $50,000 FOR CARRYING OUT THE WORK ABOVE ENUMERATED.

ON SEPTEMBER 3, 1938, THE PRESIDENT APPOINTED A NATIONAL DEFENSE POWER COMMITTEE AND SUBSEQUENTLY AN ALLOTMENT OF $200,000 WAS MADE TO THE WAR DEPARTMENT BY THE PUBLIC WORKS ADMINISTRATION FOR CARRYING ON CERTAIN OF THE WORK ORIGINALLY UNDERTAKEN BY THE FEDERAL POWER COMMISSION. THE FEDERAL POWER COMMISSION, IN THE PERFORMANCE OF ITS DUTIES, HAD APPOINTED APPROXIMATELY 40 EMPLOYEES IN JULY AND AUGUST OF 1938 UNDER APPOINTMENTS WHICH PROVIDED THAT SUCH EMPLOYMENT SHOULD NOT EXTEND BEYOND, IN MOST INSTANCES, NOVEMBER 30, 1938, AND IN NONE OF THE CASES DID THE APPOINTMENT NOTICES PROVIDE FOR EMPLOYMENT BEYOND DECEMBER 31, 1938. IN OTHER WORDS, THE TERMINOLOGY OF THE APPOINTMENTS WAS SUCH AS TO INDICATE CLEARLY THAT THEY WERE TEMPORARY EMPLOYEES UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 7845, APPROVED MARCH 21, 1938, PRESCRIBING REGULATIONS RELATING TO ANNUAL LEAVE OF GOVERNMENT EMPLOYEES.

ON NOVEMBER 1, 1938, THE WAR DEPARTMENT TOOK OVER MOST OF THE DUTIES BEING PERFORMED BY THE FEDERAL POWER COMMISSION IN CONNECTION WITH THIS SURVEY, AND PRACTICALLY ALL THE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS WITH THE FEDERAL POWER COMMISSION WERE GIVEN EMERGENCY APPOINTMENTS UNDER THE WAR DEPARTMENT. DUE TO THE EXIGENCY OF THE WORK AS OF THE CLOSE OF OCTOBER 1938, IT WAS IMPOSSIBLE FOR THE FEDERAL POWER COMMISSION TO GRANT ACCUMULATED LEAVE TO THESE EMPLOYEES WHO WERE SERVING UNDER TEMPORARY APPOINTMENTS, AND IT IS THE DESIRE OF THE NATIONAL DEFENSE POWER COMMITTEE TO GRANT TO THESE EMPLOYEES LEAVE WHICH THEY ACCUMULATED WHILE SERVING UNDER THE FEDERAL POWER COMMISSION, IF LEGALLY PERMISSIBLE. IN THIS CONNECTION, THERE HAVE NOT BEEN OVERLOOKED THE PROVISIONS OF SECTION 15 OF THE LEAVE REGULATIONS PRESCRIBED BY EXECUTIVE ORDER, WHICH PROVIDES THAT "TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT OR PROBATIONAL APPOINTMENTS IN THE SAME DEPARTMENT WITHOUT BREAK IN SERVICE SHALL BE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE FOR EACH FULL MONTH OF SERVICE TO THE DATE OF PERMANENT APPOINTMENT AND THEREAFTER AT THE RATE OF 2 1/6 DAYS PER MONTH.'

HOWEVER, WHILE THESE EMPLOYEES ARE NOW SERVING UNDER A DIFFERENT BRANCH OF THE GOVERNMENT, THEY ARE NEVERTHELESS CONTINUING THE SAME WORK FOR WHICH THEY WERE ORIGINALLY EMPLOYED. IN OTHER WORDS, IN THE INSTANT CASE THERE WAS REALLY A TRANSFER OF FUNCTIONS FROM ONE BRANCH OF THE GOVERNMENT TO ANOTHER. IT WOULD BE APPRECIATED IF YOU WOULD ADVISE IF, UNDER THE CIRCUMSTANCES STATED IN THE PRECEDING PARAGRAPH, THE REGULATIONS WOULD PERMIT OF AN INTERPRETATION SO THAT LEAVE ACCUMULATED BY THESE EMPLOYEES UNDER TEMPORARY APPOINTMENTS IN THE FEDERAL POWER COMMISSION MAY NOW BE GRANTED TO THEM BY THE WAR DEPARTMENT.

IT IS UNDERSTOOD FROM YOUR LETTER THAT ALL OF THE EMPLOYEES HERE INVOLVED WERE APPOINTED FOR DEFINITE PERIODS OF TIME NOT TO EXCEED 6 MONTHS, TERMINATING NOT LATER THAN DECEMBER 31, 1938, AND HAVE BEEN OR WILL BE REAPPOINTED WITHOUT BREAK IN SERVICE TO EMERGENCY POSITIONS.

THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, PROVIDE, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

SEC. 1. AS USED IN THESE REGULATIONS:

(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.

(D) "EMERGENCY EMPLOYEES" ARE THOSE WHOSE COMPENSATION IS PAID FROM EMERGENCY FUNDS AND WHOSE TENURE OF APPOINTMENT IS LIMITED TO THE PERIOD FOR WHICH THE EMERGENCY FUNDS ARE AVAILABLE.

SEC. 6. (AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938.) 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.

SEC. 15. TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT OR PROBATIONAL APPOINTMENTS IN THE SAME DEPARTMENT WITHOUT BREAK IN SERVICE SHALL BE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE FOR EACH FULL MONTH OF SERVICE TO THE DATE OF PERMANENT APPOINTMENT AND THEREAFTER AT THE RATE OF 2 1/6 DAYS PER MONTH.

THERE IS NO PROVISION IN THE REGULATIONS AUTHORIZING THE TRANSFER OF LEAVE CREDIT FROM A TEMPORARY TO AN EMERGENCY POSITION WHETHER IN THE SAME OR DIFFERENT GOVERNMENTAL AGENCY. CONSEQUENTLY, THE QUESTION PRESENTED IN THE CONCLUDING SENTENCE OF THE ABOVE-QUOTED LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE.