B-107385, JANUARY 22, 1952, 31 COMP. GEN. 321

B-107385, JANUARY 22, 1952, 31 COMP. GEN. 321

LUMP-SUM LEAVE PAYMENTS - REFUNDS UPON REEMPLOYMENT - ANNUAL AND SICK LEAVE ACT OF 1951 INASMUCH AS THE ANNUAL AND SICK LEAVE ACT OF 1951 WHICH COORDINATED AND MADE UNIFORM THE VARIOUS LEAVE SYSTEMS DID NOT CREATE ANY NEW OBLIGATIONS OR AFFECT ANY ACTIONS WHICH MIGHT HAVE BEEN TAKEN PRIOR THERETO, AN EMPLOYEE WHOSE LUMP-SUM PAYMENT FOR LEAVE UPON CHANGE OF POSITIONS INVOLVING DIFFERENT LEAVE SYSTEMS COVERED LEAVE WHICH EXTENDED BEYOND THE EFFECTIVE DATE OF THE ACT IS NOT REQUIRED TO REFUND ANY PORTION OF THE LUMP-SUM PAYMENT.

COMPTROLLER GENERAL WARREN TO JOHN N. LEEBRICK, DEPARTMENT OF COMMERCE, JANUARY 22, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1952, TRANSMITTING A PAY ROLL VOUCHER IN FAVOR OF MISS DARLENE MAUPIN COVERING A LUMP-SUM LEAVE PAYMENT AND REQUESTING A DECISION WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES.

IT IS REPORTED THAT THE EMPLOYEE INVOLVED WAS SERVING UNDER AN INDEFINITE APPOINTMENT ON DECEMBER 22, 1951, THE DATE ON WHICH SUCH APPOINTMENT WAS TERMINATED, AND EFFECTIVE THE FOLLOWING DAY, NAMELY, DECEMBER 23, 1951, THE EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT LIMITED TO JUNE 30, 1952. UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AND OFFICE DECISION OF OCTOBER 14, 1946, 26 COMP. GEN. 259, THE EMPLOYEE IS ENTITLED TO A LUMP-SUM LEAVE PAYMENT FOR HER ACCUMULATED AND ACCRUED ANNUAL LEAVE BECAUSE OF HER BEING TRANSFERRED OR APPOINTED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM. HOWEVER, SINCE THE AMOUNT OF LEAVE TO BE COVERED BY ANY SUCH LUMP-SUM LEAVE PAYMENT WOULD EXTEND THROUGH THE CLOSE OF 4 HOURS ON JANUARY 10, 1952, A DATE BEYOND THE DATE THE ANNUAL AND SICK LEAVE ACT OF 1951, CONTAINED IN PUBLIC LAW 233, 82D CONGRESS, 65 STAT. 672, BECAME EFFECTIVE, NAMELY, JANUARY 6, 1952, ESTABLISHING A COMMON LEAVE SYSTEM, YOUR DOUBTS IN THE MATTER CONSIST OF WHETHER (1) PAYMENT SHOULD BE MADE FOR 64 HOURS OF LEAVE WHICH WOULD CARRY THE EMPLOYEE THROUGH JANUARY 5, 1952, AND THE BALANCE OF LEAVE TRANSFERRED, (2) A LUMP SUM PAYMENT SHOULD BE MADE FOR THE ENTIRE AMOUNT OF LEAVE, OR (3) WHETHER, IT FULL PAYMENT BE MADE, A REFUND SHOULD BE REQUIRED COVERING "THE PERIOD JANUARY 7/6) THROUGH CLOSE OF 4 HOURS JANUARY 10, 1952.'

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, REQUIRES THAT WHEN AN EMPLOYEE IS SEPARATED FROM THE SERVICE HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. HOWEVER, IF HE IS EMPLOYED UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE MUST, UNDER SAID ACT, REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, IN WHICH CASE THE EMPLOYEE IS ENTITLED TO A RECREDIT OF THE LEAVE REPRESENTED THEREBY. ALSO, IN SECTION 3 OF SAID ACT, IT IS PROVIDED THAT A LUMP-SUM PAYMENT FOR ANNUAL LEAVE BE MADE TO AN EMPLOYEE WHEN HE TRANSFERS TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. WHILE SAID SECTION 3, 58 STAT. 846, CONTAINS NO SPECIFIC PROVISION REQUIRING REFUND OF A LUMP -SUM LEAVE PAYMENT IN THE EVENT AN EMPLOYEE IS AGAIN TRANSFERRED UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT, NEVERTHELESS, THE DECISIONS OF THIS OFFICE HAVE REGARDED THE REFUND REQUIREMENT EQUALLY APPLICABLE EVEN THOUGH THE LUMP- SUM LEAVE PAYMENT WERE PREDICATED UPON A TRANSFER TO A DIFFERENT LEAVE SYSTEM RATHER THAN AN OUTRIGHT SEPARATION FROM THE SERVICE. SEE 27 COMP. GEN. 472; 29 ID. 305.

ONE OF THE PURPOSES OF THE ANNUAL AND SICK LEAVE ACT OF 1951 WAS TO COORDINATE AND MAKE UNIFORM THE VARIOUS SYSTEMS OF LEAVE PREVAILING IN THE GOVERNMENT SERVICE. THERE IS NO INDICATION THAT THE FRAMERS OF THAT ACT INTENDED TO CREATE ANY NEW OBLIGATIONS OR AFFECT ANY ACTIONS WHICH MIGHT HAVE BEEN TAKEN PRIOR TO THE EFFECTIVE DATE OF THE ACT. AS A MATTER OF FACT, THE SAVINGS PROVISIONS OF SECTION 208 OF SAID ACT TEND TO INDICATE THAT IT WAS DESIRED THAT THE CHANGE-OVER OCCUR WITH AS LITTLE DISTURBANCE AS POSSIBLE.

ACCORDINGLY, IT SEEMS REASONABLE TO CONCLUDE THAT THE REFUND REQUIREMENTS OF THE LUMP-SUM LEAVE ACT WOULD BE APPLICABLE ONLY IF THE REEMPLOYMENT WERE SUCH AS TO HAVE REQUIRED A REFUND UNDER THE LEAVE STATUTES AS THEY EXISTED PRIOR TO THEIR REPEAL ON JANUARY 6, 1952, BY THE ANNUAL AND SICK LEAVE ACT OF 1951. SINCE THE CIRCUMSTANCES OF THE REEMPLOYMENT IN THE INSTANT CASE WOULD NOT HAVE REQUIRED A REFUND OF ANY PORTION OF THE LUMP- SUM LEAVE PAYMENT AT THE TIME THE EMPLOYEE BECAME ENTITLED THERETO ON DECEMBER 22, 1951, AND, ASSUMING THAT NO OTHER CHANGE IN HER STATUS OCCURRED DURING THE PERIOD COVERED BY THE PAYMENT, WHICH WOULD REQUIRE SUCH A REFUND, YOU ARE ADVISED THAT THE LEAVE PAYMENT MAY BE PROCESSED IN THE ENTIRE AMOUNT, AND WITHOUT REQUIRING A REFUND OF ANY PORTION THEREOF. COMPARE 29 COMP. GEN. 305.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.