B-111340, JAN 14, 1953

B-111340, JAN 14, 1953

PRECIS-UNAVAILABLE

W. AVERELL HARRIMAN:

REFERENCE IS MADE TO LETTER OF NOVEMBER 6, 1952, FROM THE ASSOCIATE DEPUTY DIRECTOR, REQUESTING DECISION UPON SEVERAL QUESTIONS WITH RESPECT TO THE STATUS FOR LEAVE PURPOSES OF EMPLOYEES OF THE MUTUAL SECURITY AGENCY, PLACED ON ONE YEAR FURLOUGH BUT WHO DURING THE FURLOUGH PERIOD OBTAIN TEMPORARY APPOINTMENTS, THE QUESTIONS BEING SPECIFICALLY STATED AS FOLLOWS:

"(1) WOULD THE ACCRUED ANNUAL AND SICK LEAVE OF AN MSA EMPLOYEE PLACED IN FURLOUGH STATUS UNDER SECTION 7(F) BE AVAILABLE TO HIM IF GIVEN A TEMPORARY APPOINTMENT IN THIS AGENCY?

"(2) WOULD THE ACCRUED ANNUAL AND SICK LEAVE OF SUCH AN EMPLOYEE BE TRANSFERRED TO ANOTHER AGENCY AND AVAILABLE TO HIM THERE IF HE RECEIVED A TEMPORARY APPOINTMENT IN THAT AGENCY?

"(3) WOULD SUCH AN EMPLOYEE HAVE TO SERVE THE 90-DAY QUALIFYING PERIOD IN THE TEMPORARY APPOINTMENT BEFORE BEING ENTITLED TO ANY ANNUAL LEAVE IN THE TEMPORARY POSITION?

"(4) AT THE TERMINATION OF THE TEMPORARY APPOINTMENT, WOULD THE ANNUAL LEAVE EARNED BY THE EMPLOYEE DURING THE TEMPORARY APPOINTMENT BE PAID TO HIM BY THE EMPLOYING AGENCY, OR WOULD THIS ANNUAL LEAVE AND THE SICK LEAVE EARNED DURING THE TEMPORARY EMPLOYMENT BE TRANSFERRED TO THE BALANCE OF ACCRUED LEAVE TO THE EMPLOYEE'S CREDIT AT THE START OF THE FURLOUGH PERIOD?

"(5) WOULD THE RESTRICTIONS ON ACCUMULATIONS OF LEAVE IN THE ANNUAL AND SICK LEAVE ACT OF 1951 AND OF SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1953 (P.L. 455, 82ND CONGRESS) APPLY TO THE TOTAL OF ACCRUED LEAVE UNDER THE EARLIER APPOINTMENT AND THE LEAVE EARNED UNDER THE TEMPORARY APPOINTMENT?

"(6) WOULD THE ANSWERS TO THE ABOVE QUESTIONS APPLY TO SUCH FURLOUGHED EMPLOYEES IF GIVEN FULL-TIME OR PART-TIME APPOINTMENTS AS CONSULTANTS OR EXPERTS UNDER PUBLIC LAW 600, 79TH CONGRESS?

IN DECISION OF SEPTEMBER 29, 1952, B-111340, TO YOU, IT WAS STATED THAT THIS OFFICE WOULD NOT OBJECT TO THE PLACING OF EMPLOYEES IN YOUR AGENCY IN A FURLOUGH STATUS IN LIEU OF ACTUAL SEPARATION WITH THE UNDERSTANDING THAT PAYMENT FOR ACCRUED LEAVE WOULD NOT BE MADE UNTIL THE TERMINATION OF THE FURLOUGH PERIOD UNLESS THE EMPLOYEE SHOULD ELECT TO BE FINALLY SEPARATED FROM THE SERVICE AT ANY TIME DURING THE FURLOUGH PERIOD. AS INDICATED IN THE PRESENT SUBMISSION IT REPEATEDLY HAS BEEN HELD BY THIS OFFICE THAT EMPLOYEES ON INVOLUNTARY FURLOUGH MAY BE GIVEN TEMPORARY EMPLOYMENT WITHOUT AUTOMATICALLY TERMINATING THEIR FURLOUGH STATUS.

QUESTIONS SIMILAR TO THOSE PRESENTED BY YOU WERE CONSIDERED AND ANSWERED IN DECISION OF JANUARY 5, 1953, B-112674, TO THE CIVIL SERVICE COMMISSION, IN WHICH IT WAS STATED, IN MATERIAL PART:

"*** IT IS NOT BELIEVED THAT *** THE ANNUAL AND SICK LEAVE ACT OF 1951, CONTEMPLATES A TRANSFER OF LEAVE BETWEEN TEMPORARY AND PERMANENT POSITIONS WHEN AN EMPLOYEE RECEIVES A TEMPORARY APPOINTMENT WHILE IN AN INVOLUNTARY FURLOUGH STATUS FROM A PERMANENT POSITION. ACCORDINGLY, YOU ARE ADVISED THAT THE DECISIONS IN THAT RESPECT ARE, GENERALLY, STILL CONTROLLING. OTHER WORDS, A TEMPORARY APPOINTMENT OF AN EMPLOYEE DURING THE PERIOD OF HIS INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION IS NOT TO BE REGARDED AS TERMINATING SUCH FURLOUGH BUT MERELY CONSTITUTES AN INTERRUPTION OF THE FURLOUGH PERIOD WHICH INTERRUPTION WOULD NEITHER REQUIRE A LUMP-SUM LEAVE PAYMENT AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR A TRANSFER OF SICK AND ANNUAL LEAVE - SUCH LEAVE BEING FOR RETENTION TO THE EMPLOYEE'S CREDIT IN HIS PERMANENT POSITION FOR USE IN THE EVENT OF RECALL TO DUTY OR TRANSFER TO ANOTHER PERMANENT POSITION, OR IN THE CASE OF ANNUAL LEAVE, PAID FOR UPON FINAL SEPARATION FROM THE PERMANENT POSITION FROM WHICH HE IS ON FURLOUGH. SINCE THE EMPLOYMENT IN THE TEMPORARY POSITION DOES NOT INVOLVE A BREAK IN SERVICE THE EMPLOYEE WOULD NOT BE REQUIRED TO SERVE A NEW 90-DAY QUALIFYING PERIOD TO EARN ANNUAL LEAVE AS PROVIDED BY SECTION 203(I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. HOWEVER, THE TERMINATION OF THE EMPLOYEE'S TEMPORARY APPOINTMENT OR SEPARATION THEREFROM, AT WHICH TIME HE REVERTS TO A FURLOUGH STATUS FROM THE PERMANENT POSITION, IS TO BE REGARDED AS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 12, 1944, SO AS TO REQUIRE A LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE EARNED IN THE TEMPORARY POSITION. CONSISTENT WITH THE FOREGOING SICK LEAVE WOULD NOT BE TRANSFERABLE TO OR FROM SUCH TEMPORARY POSITION.

APPLYING THE FOREGOING DECISION TO THE QUESTIONS IN YOUR SUBMISSION, QUESTIONS 1, 2, AND 3, AND THE SECOND OR ALTERNATE PART OF QUESTION 4 ARE ANSWERED IN THE NEGATIVE; AND THE FIRST PART OF QUESTION 4, AND QUESTION 6 ARE ANSWERED IN THE AFFIRMATIVE. COMPARE 28 COMP. GEN. 670.

THE FOREGOING ANSWERS ARE BASED UPON THE TREATMENT OF THE LEAVE ACCRUING IN THE PERMANENT POSITION AND THE LEAVE IN THE TEMPORARY POSITION AS SEPARATE ENTITIES. WITH RESPECT TO QUESTION 5 HOWEVER, THE MAXIMUM ACCUMULATION OF 60 DAYS ANNUAL LEAVE AT THE END OF THE LAST PAY PERIOD IN THE LEAVE YEAR IMPOSED BY SECTION 203C OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, AND THE PROHIBITION IN SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1953, 66 STAT. 418, AGAINST PAYMENT FOR ANNUAL LEAVE ACCUMULATED IN ANY CALENDAR YEAR AFTER JUNE 30, OF THE FOLLOWING CALENDAR YEAR, BOTH APPLY TO THE ACCUMULATION OF LEAVE BY THE INDIVIDUAL OFFICER OR EMPLOYEE RATHER THAN THE ACCUMULATION IN SEPARATE EMPLOYMENTS. FOR EXAMPLE, A PERSON WHO HAD ACCUMULATED THE MAXIMUM OF 60 DAYS IN HIS PERMANENT POSITION FROM WHICH FURLOUGHED AND WHO WAS GIVEN A TEMPORARY APPOINTMENT EXTENDING BEYOND THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THAT YEAR, WOULD ON THE LAST DAY OF THE LAST COMPLETE BIWEEKLY PAY PERIOD FORFEIT ALL LEAVE ACCUMULATED IN BOTH POSITIONS WHICH EXCEEDED THE PERMISSIBLE 60 DAYS MAXIMUM ACCUMULATION. LIKEWISE, ANY ANNUAL LEAVE ACCUMULATED DURING THAT PARTICULAR CALENDAR YEAR IN EITHER THE PERMANENT OR TEMPORARY POSITION WOULD BE FORFEITED IF NOT USED BY JUNE 30 OF THE SUCCEEDING CALENDAR YEAR. THEREFORE, QUESTION 5 MUST BE ANSWERED IN THE AFFIRMATIVE.