B-109025, MAR. 11, 1966

B-109025: Mar 11, 1966

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TO SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO LETTER OF FEBRUARY 18. THE MONEY WAS RECEIVED FROM A MILK MARKET AND REPRESENTS THE VALUE OF ANNUAL LEAVE TO THE CREDIT OF A MILK MARKET EMPLOYEE AT THE TIME HE TRANSFERRED TO THE ECONOMIC RESEARCH SERVICE. IF THE FUNDS WERE NOT NEEDED FOR SUCH PURPOSES DURING THE FISCAL YEAR INVOLVED. THE FUNDS THEN WERE REQUIRED TO BE COVERED IN THE TREASURY AS MISCELLANEOUS RECEIPTS. THE GENERAL RULE IS THAT WHEN AN EMPLOYEE IS TRANSFERRED FROM ONE GOVERNMENT AGENCY TO ANOTHER. THE EMPLOYEE'S LEAVE CREDITS ARE TRANSFERABLE TO. THE DISPOSITION OF THE FUNDS THERE INVOLVED WAS EXCEPTED FROM SUCH GENERAL RULE BECAUSE OF THE DESIRABILITY OF MAINTAINING INTACT THE TRUST FUNDS FROM WHICH EMPLOYEES OF MILK MARKETS ARE PAID AND WHICH ARE ESTABLISHED BY ASSESSMENTS UPON THE MILK HANDLERS.

B-109025, MAR. 11, 1966

TO SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER OF FEBRUARY 18, 1966, FROM MR. JOSEPH ROBERTSON, ASSISTANT SECRETARY FOR ADMINISTRATION, CONCERNING THE DISPOSITION OF $1,262.25. THE MONEY WAS RECEIVED FROM A MILK MARKET AND REPRESENTS THE VALUE OF ANNUAL LEAVE TO THE CREDIT OF A MILK MARKET EMPLOYEE AT THE TIME HE TRANSFERRED TO THE ECONOMIC RESEARCH SERVICE, AN AGENCY OF THE DEPARTMENT OF AGRICULTURE.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION OF JUNE 23, 1952, B 109025, IN WHICH WE STATED THAT FUNDS REPRESENTING THE VALUE OF ANNUAL LEAVE ACCRUED TO AN EMPLOYEE WHO TRANSFERRED FROM A MILK MARKET TO ANOTHER GOVERNMENT AGENCY, SHOULD BE ESTABLISHED IN A TRUST FUND FOR USE IF NEEDED TO PAY THE COST OF THE EMPLOYEE'S LEAVE WHEN TAKEN OR WHEN PAID FOR UPON SEPARATION. IF THE FUNDS WERE NOT NEEDED FOR SUCH PURPOSES DURING THE FISCAL YEAR INVOLVED, THE FUNDS THEN WERE REQUIRED TO BE COVERED IN THE TREASURY AS MISCELLANEOUS RECEIPTS.

AS STATED IN THAT DECISION, THE GENERAL RULE IS THAT WHEN AN EMPLOYEE IS TRANSFERRED FROM ONE GOVERNMENT AGENCY TO ANOTHER, THE EMPLOYEE'S LEAVE CREDITS ARE TRANSFERABLE TO, AND BECOME A CHARGE AGAINST THE APPROPRIATIONS OF THE NEW AGENCY WITHOUT ANY ADJUSTMENT BETWEEN THE APPROPRIATIONS OF THE FORMER AND NEW EMPLOYING AGENCY. HOWEVER, THE DISPOSITION OF THE FUNDS THERE INVOLVED WAS EXCEPTED FROM SUCH GENERAL RULE BECAUSE OF THE DESIRABILITY OF MAINTAINING INTACT THE TRUST FUNDS FROM WHICH EMPLOYEES OF MILK MARKETS ARE PAID AND WHICH ARE ESTABLISHED BY ASSESSMENTS UPON THE MILK HANDLERS.

THE ASSISTANT SECRETARY NOTES THAT AT THE TIME THAT DECISION WAS RENDERED, SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61B, PROVIDED IN PART THAT--- "IN THE CASE OF REEMPLOYMENT IN THE FEDERAL SERVICE THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.' HE THEN POINTS OUT THAT SUCH SECTION SUBSEQUENTLY WAS AMENDED BY SECTION 4/A) OF THE ACT OF JULY 2, 1953, 67 STAT. 137, SO THAT IT NOW PROVIDES, IN PERTINENT PART, THAT-- "ANY AMOUNTS SO REFUNDED SHALL BE DEPOSITED IN THE TREASURY TO THE CREDIT OF THE EMPLOYING NCY.'

IN VIEW OF SUCH CHANGE IN THE LAW, THE ASSISTANT SECRETARY ASKS WHETHER LUMP SUM LEAVE PAYMENTS NOW RECEIVED FROM MILK MARKETS MAY BE CREDITED TO THE APPROPRIATION OF THE EMPLOYING AGENCY AND, IF NOT NEEDED TO PAY LEAVE COSTS BY THE END OF THE FISCAL YEAR, USED FOR OTHER PURPOSES.

THE ABOVE PROVISIONS OF LAW, BOTH AS ORIGINALLY ENACTED AND AS AMENDED, APPLY TO REFUNDS OF LUMP SUM PAYMENTS OR PORTIONS THEREOF REQUIRED OF EMPLOYEES WHO ACCEPT EMPLOYMENT OR REEMPLOYMENT IN THE SAME OR DIFFERENT AGENCIES UNDER THE SAME LEAVE SYSTEMS PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LUMP SUM PAYMENT. THOSE PROVISIONS HAVE NOTHING TO DO WITH A EMPLOYEE WHO IS NOT SEPARATED FROM SERVICE BUT MERELY TRANSFERS FROM ONE AGENCY TO ANOTHER WITHOUT RECEIVING A LUMP SUM PAYMENT FOR ACCRUED LEAVE. OUR DECISION OF JUNE 23, 1952, WAS NOT PREDICATED ON THE LANGUAGE TO WHICH THE ASSISTANT SECRETARY REFERS.

THE REVISED PROVISIONS OF 5 U.S.C. 61B DO NOT, THEREFORE, CONSTITUTE ANY BASIS FOR NOW CHANGING THE POSITION TAKEN IN OUR DECISION OF JUNE 23, 1952. ACCORDINGLY, THE QUESTIONS PRESENTED BY THE ..END :