B-115033, MAY 8, 1953

B-115033: May 8, 1953

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PRECIS-UNAVAILABLE FEDERAL POWER COMMISSION: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. WHEN YOUR SERVICES WITH THE FEDERAL POWER COMMISSION WILL HAVE BEEN TERMINATED BY RESIGNATION. IT IS STATED IN YOUR LETTER THAT FORMAL RECORDS OF YOUR LEAVE DECISION WHETHER. ACCOUNT HAVE NEVER BEEN MAINTAINED IN THE PAY. THAT YOU YOURSELF HAVE MAINTAINED A RECORD OF YOUR LEAVE AND ABSENCES. IN SUPPORT OF THAT RECORD YOU ENCLOSE A CERTIFICATE SHOWING THE DATES ON WHICH ABSENCES WERE CHARGED TO ANNUAL LEAVE TOGETHER WITH THE COMPILATION OF ANNUAL LEAVE TOGETHER WITH THE COMPILATION OF ANNUAL LEAVE ACCRUED. IT WILL BE THE GENERAL PRACTICE TO MAINTAIN FORMAL LEAVE RECORDS FOR PRESIDENTIAL APPOINTEES WHEREVER PRACTICABLE.

B-115033, MAY 8, 1953

PRECIS-UNAVAILABLE

FEDERAL POWER COMMISSION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1953, REQUESTING QUOTED BELOW, PAYMENT MAY BE MADE TO YOU FOR THE ANNUAL LEAVE TO YOUR CREDIT AT CLOSE OF BUSINESS ON MAY 15, 1953, WHEN YOUR SERVICES WITH THE FEDERAL POWER COMMISSION WILL HAVE BEEN TERMINATED BY RESIGNATION.

IT IS STATED IN YOUR LETTER THAT FORMAL RECORDS OF YOUR LEAVE DECISION WHETHER, UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AND IN CONSONANCE WITH THE PRESIDENT'S LETTER OF APRIL 22, 1953, ACCOUNT HAVE NEVER BEEN MAINTAINED IN THE PAY, LEAVE, AND RETIREMENT UNIT OF YOUR COMMISSION, BUT THAT YOU YOURSELF HAVE MAINTAINED A RECORD OF YOUR LEAVE AND ABSENCES. IN SUPPORT OF THAT RECORD YOU ENCLOSE A CERTIFICATE SHOWING THE DATES ON WHICH ABSENCES WERE CHARGED TO ANNUAL LEAVE TOGETHER WITH THE COMPILATION OF ANNUAL LEAVE TOGETHER WITH THE COMPILATION OF ANNUAL LEAVE ACCRUED, USED, FORFEITED, AND REMAINING TO YOUR CREDIT, AMOUNTING TO 388 HOURS AS OF CLOSE OF BUSINESS MAY 15, 1953.

THE PRESIDENTIAL ORDER OF APRIL 22, 1953, READS AS FOLLOWS: "TO THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES:

"PENDING CONSIDERATION BY THE CONGRESS OF LEGISLATION AMENDING THE COVERAGE OF EXISTING LEAVE LAWS, I REQUEST THAT NO PERSON APPOINTED BY THE PRESIDENT SHALL, UPON LEAVING THE GOVERNMENT, RECEIVE PAYMENT FOR UNUSED ANNUAL LEAVE EXCEPT UPON A CLEAR SHOWING OF ENTITLEMENT.

"TO THAT END, IT WILL BE THE GENERAL PRACTICE TO MAINTAIN FORMAL LEAVE RECORDS FOR PRESIDENTIAL APPOINTEES WHEREVER PRACTICABLE. WHERE THE NATURE OF THE POSITION IS SUCH THAT THE KEEPING OF FORMAL LEAVE RECORDS IS IMPRACTICABLE, THE INDIVIDUAL CONCERNED WILL BE EXPECTED TO MAINTAIN AN ACCURATE PERSONAL RECORD OF HIS LEAVE STATUS.

"IN ANY CASE WHERE THERE IS THE SLIGHTEST DOUBT AS TO THE SUFFICIENCY OF A LEAVE RECORD TO SUPPORT A LUMP-SUM PAYMENT FOR ACCRUED LEAVE UPON SEPARATION FROM THE GOVERNMENT SERVICE, THE HEAD OF THE AGENCY WILL EITHER REQUEST AN ADVANCE DECISION FROM THE COMPTROLLER GENERAL OF THE UNITED STATES AS TO THE PROPRIETY OF THE PAYMENT, OR SUBMIT THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AS A CLAIM.

"UNTIL FURTHER NOTICE, THE BUREAU OF THE BUDGET IS TO BE INFORMED OF ALL TERMINAL LEAVE PAYMENTS TO PRESIDENTIAL APPOINTEES."

WITH RESPECT TO THE QUESTION OF WHETHER PRESIDENTIAL APPOINTEES CAME WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF 1936, 49 STAT. 1161, AND THE LUMP-SUM LEAVE ACT OF 1944, IT WAS HELD IN 24 COMP. GEN. 804, AT PAGE 805, AS FOLLOWS:

"THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IS APPLICABLE TO 'ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES' WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. ALSO, THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, IS APPLICABLE TO 'ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES' WHO IS ENTITLED TO RECEIVE LEAVE OF ABSENCE WITH PAY. THEREFORE, A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION, WHO IS A CIVILIAN OFFICER OF THE UNITED STATES, CLEARLY COMES WITHIN THE PURVIEW OF BOTH STATUTES. HENCE, BOTH PARTS OF QUESTION 2 ARE ANSWERED IN THE AFFIRMATIVE."

THE ANNUAL AND SICK LEAVE ACT OF 1951 65 STAT. 679, LIKEWISE PROVIDES BENEFITS TO "ALL CIVILIAN OFFICERS *** OF THE UNITED STATES" - WITH EXCEPTIONS NOT HERE MATERIAL - AND THE HOLDING IN THE ABOVE MENTIONED DECISION APPLIES WITH LIKE FORCE UNDER THE SAID 1951 LEAVE ACT.

IN VIEW OF THE HOLDING IN THE DECISION, SUPRA, AND, ALSO, OF YOUR PERSONAL RECORD AND CERTIFICATE WITH RESPECT TO THE ANNUAL LEAVE USED AND REMAINING TO YOUR CREDIT, IT APPEARS THAT YOU HAVE ESTABLISHED, IN LINE WITH THE ABOVE-QUOTED PRESIDENT'S DIRECTIVE, YOUR ENTITLEMENT TO A LUMP- SUM LEAVE PAYMENT AT THE CLOSE OF BUSINESS ON MAY 15, 1953. SEE 25 COMP. GEN. 212 (QUESTION 11 AND ANSWER THERETO AT PAGE 220).

WITH RESPECT TO THE FISCAL YEAR APPROPRIATION TO BE CHARGED WITH THE LUMP -SUM LEAVE PAYMENT, IT MAY BE STATED THAT SINCE THERE WAS A BREAK IN SERVICE BETWEEN THE EXPIRATION ON JUNE 22, 1952, OF YOUR ORIGINAL APPOINTMENT, AND YOUR INTERIM APPOINTMENT ON JULY 9, 1952, A LUMP-SUM PAYMENT SHOULD HAVE BEEN MADE AS OF JUNE 22, 1952; HENCE, IN VIEW OF THE OBLIGATION WHICH SHOULD HAVE BEEN LIQUIDATED AT THAT TIME, THAT PORTION OF YOUR LUMP-SUM PAYMENT DUE AT CLOSE OF BUSINESS ON MAY 15, 1953, WHICH REPRESENTS THE AMOUNT WHICH SHOULD HAVE BEEN PAID JUNE 22, 1952, PROPERLY IS FOR CHARGING TO THE APPROPRIATION FOR SALARIES AND EXPENSES, FEDERAL POWER COMMISSION, 1952, AND THE BALANCE OF THE PAYMENT PROPERLY IS FOR CHARGING TO THE 1953 APPROPRIATION.