B-116314, AUGUST 20, 1953, 33 COMP. GEN. 85

B-116314: Aug 20, 1953

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AS AMENDED THE RIGHT OF AN EMPLOYEE SEPARATED FROM THE SERVICE TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE VESTS IN THE EMPLOYEE ON THE DATE OF SEPARATION AND IS NOT AFFECTED BY ADMINISTRATIVE DELAY IN PAYMENT. WHICHEVER IS GREATER. IS ENTITLED TO PAYMENT FOR ALL THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION REGARDLESS OF THE DATE PAYMENT IS MADE. THEREFORE IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT AN EMPLOYEE. THE MATTER IS NOT SUBJECT TO REGULATION BY THE CIVIL SERVICE COMMISSION. - ANY CURRENT ACCRUED ANNUAL LEAVE WHICH IS UNUSED AT DATE OF SEPARATION. THEREFORE EMPLOYEES WHO CANNOT BE PAID A LUMP SUM FOR THE CURRENT YEAR'S LEAVE AND WHO ARE SEPARATED WITHOUT HAVING USED IT.

B-116314, AUGUST 20, 1953, 33 COMP. GEN. 85

LUMP-SUM LEAVE PAYMENT LIMITATION - TRANSFER, RECREDIT OF ANNUAL AND SICK LEAVE UNDER ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED THE RIGHT OF AN EMPLOYEE SEPARATED FROM THE SERVICE TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE VESTS IN THE EMPLOYEE ON THE DATE OF SEPARATION AND IS NOT AFFECTED BY ADMINISTRATIVE DELAY IN PAYMENT, AND THEREFORE WHILE SECTION 4 (A) OF THE ACT OF JULY 2, 1953 LIMITS LUMP SUM LEAVE PAYMENTS AFTER AUGUST 31, 1953 TO THIRTY DAYS OR THE ACCUMULATION BROUGHT FORWARD AT THE BEGINNING OF THE YEAR, WHICHEVER IS GREATER, AN EMPLOYEE WHO SEPARATES OR RETIRES NOT LATER THAN THE CLOSE OF BUSINESS AUGUST 31, 1953, IS ENTITLED TO PAYMENT FOR ALL THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION REGARDLESS OF THE DATE PAYMENT IS MADE. WHILE SECTION 4 (A) OF THE ACT OF JULY 2, 1953, ESTABLISHES A LIMITATION UPON THE NUMBER OF DAYS OF ANNUAL LEAVE FOR WHICH A LUMP-SUM PAYMENT MAY BE MADE FOR SEPARATIONS AFTER AUGUST 31, 1953, NOTHING IN THE ACT PROHIBITS THE USE, IN KIND, OF ANNUAL LEAVE THAT COULD NOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT UNDER THE TERMS OF SAID SECTION 4 (A) IMMEDIATELY PRIOR TO SUCH SEPARATION, WHETHER BY REDUCTION IN FORCE OR OTHERWISE. SECTION 203 (H) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 VESTS DISCRETION IN THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO PRESCRIBE THE GRANTING OF ANNUAL LEAVE, AND THEREFORE IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT AN EMPLOYEE, IMMEDIATELY PRIOR TO HIS SEPARATION, THE USE IN KIND OF THE ANNUAL LEAVE THAT CANNOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT BECAUSE OF THE LUMP-SUM PAYMENT LIMITATION IN THE ACT OF JULY 2, 1953, AND THE MATTER IS NOT SUBJECT TO REGULATION BY THE CIVIL SERVICE COMMISSION. THE ACT OF JULY 2, 1953, WHICH LIMITS THE NUMBER OF DAYS OF ANNUAL LEAVE FOR WHICH A LUMP-SUM PAYMENT MAY BE MADE, CONTAINS NOTHING WHICH WOULD AUTHORIZE THE KEEPING ALIVE--- FOR RECREDITING AT SOME FUTURE DATE--- ANY CURRENT ACCRUED ANNUAL LEAVE WHICH IS UNUSED AT DATE OF SEPARATION, AND THEREFORE EMPLOYEES WHO CANNOT BE PAID A LUMP SUM FOR THE CURRENT YEAR'S LEAVE AND WHO ARE SEPARATED WITHOUT HAVING USED IT, FORFEIT SUCH UNUSED LEAVE AND THE CIVIL SERVICE COMMISSION MAY NOT PROVIDE BY REGULATION FOR ITS RECREDIT UPON THE EMPLOYEES' REEMPLOYMENT. INASMUCH AS SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1953, WHICH REQUIRES EMPLOYEES TO USE LEAVE EARNED IN ONE CALENDAR YEAR BY JUNE 30 OF THE FOLLOWING CALENDAR YEAR WAS REPEALED BEFORE ITS EFFECTIVE DATE, AN EMPLOYEE WHO BROUGHT FORWARD AN ACCUMULATION OF MORE THAN 30 DAYS LEAVE AT THE END OF THE 1952 LEAVE YEAR, WHICH INCLUDED LEAVE EARNED IN 1952, MAY CONTINUE, UNDER THE LEAVE LIMITATION PROVISION OF THE ACT OF JULY 2, 1953, TO CARRY IT FORWARD AS AN ACCUMULATION UNTIL IT IS USED. INASMUCH AS AN EMPLOYEE WHO TRANSFERS FROM A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, OR FROM A POSITION IN ANOTHER LEAVE SYSTEM, TO A POSITION EXEMPT FROM ANY LEAVE SYSTEM UNDER SECTION 202 (B) (1) (B), (C), OR (H) OF THE 1951 ACT, IS UNABLE TO HAVE LEAVE EARNED IN THE PRIOR POSITION CREDITED TO HIM IN THE NEW POSITION, THE TRANSFER SUCH EMPLOYEE CONSTITUTES A SEPARATION WITHIN THE MEANING OF THE LUMP-SUM LEAVE ACT OF 1944, AND THEREFORE SUCH EMPLOYEE WHOULD BE ENTITLED TO A LUMP-SUM LEAVE PAYMENT, WHETHER OR NOT THE TRANSFER INVOLVED A BREAK IN SERVICE. UNDER THE LEAVE TRANSFER PROVISIONS OF SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SECTION 4 (B) OF THE ACT OF JULY 2, 1953, THE SICK LEAVE TO THE CREDIT OF AN EMPLOYEE WHO TRANSFERS WITHOUT A BREAK IN SERVICE TO A POSITION WHICH IS UNDER AN ANNUAL LEAVE SYSTEM ONLY, MAY NOT BE TRANSFERRED, HOWEVER THE CIVIL SERVICE COMMISSION MAY PROVIDE BY REGULATION FOR THE EMPLOYEE TO BE GIVEN PROPER CREDIT FOR HIS SICK LEAVE IN THE EVENT HE SHOULD TRANSFER AGAIN TO A POSITION WHICH IS UNDER A SICK- LEAVE SYSTEM. UNDER THE LEAVE TRANSFER PROVISIONS OF SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SECTION 4 (B) OF THE ACT OF JULY 2, 1953, THE AMOUNT OF LEAVE PERMITTED TO BE TRANSFERRED IN THE CASE OF AN EMPLOYEE WHO TRANSFERS TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM SHOULD NOT EXCEED THE AGGREGATE AMOUNT OF LEAVE WHICH THE EMPLOYEES IN THE AGENCY TO WHICH TRANSFERRED ARE PERMITTED TO ACCUMULATE. PRESIDENTIAL APPOINTEES WHO WERE COVERED BY THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951 UNTIL THE ENACTMENT OF SECTION 1 OF THE ACT OF JULY 2, 1953, AND WHO HAD NOT, ON THE EFFECTIVE DATE OF THE FIRST SECTION OF THE 1953 ACT, COMPLETED THE 90-DAY QUALIFYING PERIOD REQUIRED BY THE 1951 ACT TO BE ENTITLED TO A CREDIT OF ANNUAL LEAVE, ARE NOT TO BE CONSIDERED AS HAVING EARNED SUCH LEAVE. WHILE SECTIONS 203 (C), 203 (D), AND 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, WHICH GOVERN THE POINT AT WHICH ACCUMULATION OF ANNUAL LEAVE OCCURS AND EXCESS ANNUAL LEAVE IS FORFEITED, WERE AMENDED BY THE ACT OF JULY 2, 1953, TO ESTABLISH THAT POINT AS THE BEGINNING OF THE FIRST COMPLETE PAY PERIOD IN ANY YEAR INSTEAD OF THE END OF THE LAST COMPLETE PAY PERIOD IN ANY YEAR, SECTION 203 (A) (2) OF THE 1951 ACT WHICH PRESCRIBES AN ADDITIONAL LEAVE ACCRUAL TO CERTAIN EMPLOYEES FOR THE LAST FULL PAY PERIOD IN THE YEAR HAS NOT BEEN AMENDED, AND THEREFORE SUCH EMPLOYEES MAY CONTINUE TO BE GIVEN THIS ADDITIONAL LEAVE ACCRUAL FOR THE LAST FULL PAY PERIOD IN THE CALENDAR YEAR.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 20, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1953, REQUESTING DECISION UPON A NUMBER OF QUESTIONS, HEREINAFTER SET FORTH, ARISING UNDER PUBLIC LAW 102, APPROVED JULY 2, 1953, 67 STAT. 136. THE QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1

1. SECTION 4 (A) OF THE ACT LIMITS LUMP-SUM PAYMENTS AFTER AUGUST 31, 1953, TO THIRTY DAYS OR THE ACCUMULATION BROUGHT FORWARD AT THE BEGINNING OF THE YEAR, WHICHEVER IS GREATER.

(A) ARE WE CORRECT IN BELIEVING THAT THIS LIMIT APPLIES ONLY TO SEPARATIONS WHICH OCCUR AFTER AUGUST 31, 1953, AND THAT AN EMPLOYEE WHO SEPARATES OR RETIRES NOT LATER THAN THE CLOSE OF BUSINESS AUGUST 31, 1953, IS ENTITLED TO PAYMENT FOR ALL THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION? WE BELIEVE THAT THE PRINCIPLE GOVERNING THIS IS REFLECTED IN 30 COMP. GEN. 513, WHICH POINTED OUT THAT THE RIGHT TO PAYMENT FOR LEAVE VESTS IN THE INDIVIDUAL ON THE DATE OF SEPARATION, AND IS NOT AFFECTED BY ADMINISTRATIVE DELAY IN PAYMENT.

YOUR ABOVE-STATED INTERPRETATION OF SECTION 4 (A), 67 STAT. 137, IN RESPECT OF THE LIMITATION REFERRED TO IS CORRECT; ACCORDINGLY, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

(B) IN THOSE CASES WHERE THE CURRENT YEAR'S ANNUAL LEAVE CANNOT BE PAID IN LUMP SUM BECAUSE OF SECTION 4 (A), DOES THE NEW LAW CREATE ANY PROHIBITION AGAINST EXHAUSTING THE CURRENT YEAR'S ANNUAL LEAVE IMMEDIATELY BEFORE SEPARATION, IN REDUCTION-IN-FORCE CASES OR IN ANY OTHER CASES? THE CONGRESSIONAL RECORD FOR JUNE 27, 1953, AT PAGE 7726, CONTAINS A STATEMENT BY REPRESENTATIVE REES, IN EXPLAINING THE LEGISLATION ON THE FLOOR, THAT AN EMPLOYEE WITH 30 DAYS' ACCUMULATION AND 20 DAYS' CURRENT LEAVE WHO IS TO BE LAID OFF SHOULD RECEIVE PAY FOR 20 DAYS AS LEAVE TAKEN BEFORE HIS NAME IS REMOVED FROM THE PAYROLL AND 30 DAYS IN LUMP SUM.

WHILE SECTION 4 (A) OF THE ACT OF JULY 2, 1953, ESTABLISHES A LIMITATION UPON THE NUMBER OF DAYS' ANNUAL LEAVE FOR WHICH LUMP-SUM PAYMENT MAY BE MADE FOR SEPARATIONS AFTER AUGUST 31, 1953, NOTHING APPEARS IN THE LANGUAGE OF THE ACT PROHIBITING THE USE, IN KIND, OF SUCH CURRENT YEAR'S ANNUAL LEAVE IMMEDIATELY PRIOR TO SUCH SEPARATIONS- - WHETHER BY REDUCTION IN FORCE OR OTHERWISE--- THAT COULD NOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT UNDER THE TERMS OF SAID SECTION 4 (A). THAT VIEW FINDS SUPPORT IN THE EXPLANATION COVERING SAID LEGISLATION, AS MADE ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, REFERRED TO BY YOU--- IT BEING SHOWN THEREBY THAT IT WAS CONTEMPLATED THAT EMPLOYEES ACTUALLY BE PERMITTED TO TAKE SUCH OF THEIR CURRENT YEAR'S LEAVE THAT COULD NOT BE PAID FOR UNDER SECTION 4 (A).

QUESTION 1 (B) IS ANSWERED ACCORDINGLY IN THE NEGATIVE.

(C) IF THE ANSWER TO (B) IS IN THE NEGATIVE, IS IT OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH TERMINAL LEAVE? IF SO, IS THIS SUBJECT TO REGULATION BY THE COMMISSION, AS BY A REGULATION SIMILAR TO THAT IN EFFECT BEFORE THE LUMP-SUM ACT WHICH PROVIDED THAT A SEPARATION COULD NOT BE EFFECTED UNTIL UNUSED ANNUAL LEAVE HAD BEEN GRANTED UNLESS THE EMPLOYEE SIGNED A WAIVER?

SECTION 203 (H) OF THE ACT OF OCTOBER 30, 1951, 65 STAT. 681, READS AS FOLLOWS:

THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, INCLUDING SUCH LEAVE AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING SUCH YEAR AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE.

UNDER THE ABOVE-QUOTED PROVISION OF LAW, IT IS CLEAR THAT DISCRETION IS VESTED IN THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO PRESCRIBE WHEN ANNUAL LEAVE IS TO BE GRANTED. WHILE IT IS EXPECTED THAT, IN KEEPING WITH THE CONGRESSIONAL EXPLANATION REFERRED TO ABOVE, ADMINISTRATIVE OFFICIALS WILL AFFORD EMPLOYEES AN OPPORTUNITY TO TAKE THEIR CURRENT YEAR'S LEAVE IMMEDIATELY PRIOR TO SEPARATION WHEREVER POSSIBLE, IT IS FELT THAT, UNDER SECTION 203 (H) IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH TERMINAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE. ACCORDINGLY, THE FIRST PORTION OF QUESTION 1 (C) IS ANSWERED IN THE AFFIRMATIVE.

LIKEWISE, IN VIEW OF THE AUTHORITY OF EMPLOYING AGENCIES UNDER THE LAW, THE MATTER IS NOT SUBJECT TO A REGULATION BY THE COMMISSION, WHICH, IN EFFECT, WOULD LIMIT THE EXERCISE OF SUCH AUTHORITY AND INTERFERE WITH THE DATE AN EMPLOYEE OTHERWISE IS TO BE SEPARATED. THEREFORE, THE SECOND PART OF QUESTION 1 (C) IS ANSWERED IN THE NEGATIVE.

(D) IF UNDER ANY CIRCUMSTANCES THERE ARE CASES IN WHICH EMPLOYEES WHO CANNOT BE PAID IN LUMP SUM FOR THE CURRENT YEAR'S LEAVE ARE SEPARATED WITHOUT HAVING USED IT AS LEAVE, IS SUCH LEAVE NECESSARILY FORFEITED UNDER THE LAW, OR MAY THE COMMISSIONS BY REGULATION PROVIDE FOR ITS RECREDIT IF THE INDIVIDUAL IS REEMPLOYED WITHIN SOME SPECIFIC PERIOD?

I FIND NOTHING IN THE LAW WHICH WOULD AUTHORIZE THE KEEPING ALIVE--- FOR RECREDITING AT SOME FUTURE DATE--- OF ANY CURRENT ACCRUED ANNUAL LEAVE WHICH IS UNUSED AT THE DATE OF SEPARATION. THEREFORE, IT IS CONCLUDED THAT SUCH UNUSED LEAVE IS FORFEITED UNDER THE LAW AND HENCE THE COMMISSION MAY NOT PROVIDE BY REGULATION FOR ITS RECREDIT UPON REEMPLOYMENT.

QUESTION 2

2. AN IMPRESSION APPEARS TO HAVE ARISEN IN SOME QUARTERS THAT SECTION 401 OF PUBLIC LAW 455, 82D CONGRESS (THE SO-CALLED LEAVE RIDER), WHICH WAS REPEALED BEFORE IT WOULD HAVE TAKEN EFFECT ON JULY 1, 1953, HAD SOME EFFECT ON THE AMOUNT OF ACCUMULATION BROUGHT FORWARD INTO 1953 WHICH CAN CONTINUE TO BE CARRIED FORWARD. SPECIFICALLY, THE QUESTION IS ASKED WHETHER AN EMPLOYEE WHO BROUGHT FORWARD AT THE END OF THE 1952 LEAVE YEAR AN ACCUMULATION OF MORE THAN 30 DAYS WHICH INCLUDED LEAVE EARNED IN 1952, MAY CONTINUE TO CARRY FORWARD AS AN ACCUMULATION UNTIL IT IS USED THE AMOUNT IN EXCESS OF 30 DAYS WHICH WAS EARNED IN 1952. OUR VIEW IS THAT THERE IS NO AUTHORITY FOR APPLYING THE 30-DAY LIMIT ON ACCUMULATIONS RETROACTIVELY TO THE END OF 1952, THAT THE ONLY LIMIT ON ACCUMULATION AT THAT TIME WAS THE 60-DAY LIMIT, AND THAT THE "LEAVE RIDER" HAD NO EFFECT ON THE AMOUNT OF ACCUMULATION CARRIED FORWARD AT THE END OF 1952, BUT WOULD HAVE HAD ITS EFFECT ONLY ON JULY 1, 1953, AS OF WHICH DATE IT HAD BEEN COMPLETELY REPEALED.

I CONCUR IN YOUR STATED VIEW OF THE MATTER. ACCORDINGLY, YOUR SPECIFIC QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3

3. THE QUESTION IS BEING ASKED HOW ANNUAL LEAVE IS TO BE DISPOSED OF WHEN AN EMPLOYEE TRANSFERS FROM A POSITION IN WHICH HE HAS ANNUAL LEAVE TO HIS CREDIT (UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 OR ANOTHER SYSTEM) TO A POSITION WHICH IS EXEMPTED FROM THE 1951 ACT UNDER SECTION 202 (B) (1) (B), (C), OR (H). IF THERE IS A BREAK IN SERVICE (THAT IS, SEPARATION FROM THE SERVICE EXTENDING OVER AT LEAST ONE WORK DAY) THE INDIVIDUAL EVIDENTLY WOULD BE ENTITLED TO LUMP-SUM PAYMENT UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, AND WOULD NOT BE REQUIRED TO REFUND EVEN IF REEMPLOYED WITHIN THE PERIOD COVERED BY THE PAYMENT. IF THERE IS NO BREAK IN SERVICE, HOWEVER, SHOULD LUMP SUM PAYMENT BE MADE AT THE TIME OF THE CHANGE IN POSITIONS? IF NOT, SHOULD IT BE MADE WHEN THE INDIVIDUAL FINALLY SEPARATES FROM GOVERNMENT SERVICE, IN THE SAME MANNER AS PAYMENTS TO PRESIDENTIAL APPOINTEES UNDER SECTION 2 (A) OF PUBLIC LAW 102? IF THE LEAVE IS NOT TO BE PAID IN LUMP SUM AT THE TIME OF TRANSFER, IS A REGULATION BY THE COMMISSION NECESSARY TO ENTITLE THE EMPLOYEE TO RECREDIT IF HE RETURNS TO A POSITION UNDER THE 1951 LEAVE ACT?

UNDER THE PROVISIONS OF SECTION 4 (A) OF PUBLIC LAW 102, EMPLOYEES WHO RECEIVE A LUMP-SUM PAYMENT UPON SEPARATION FROM A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, ARE NOT REQUIRED TO MAKE REFUND ON ACCOUNT OF UNEXPIRED LEAVE INCLUDED IN SUCH PAYMENT IF REEMPLOYED IN A POSITION WHICH IS EXEMPTED UNDER THE 1951 ACT BY VIRTUE OF SECTION 202 (B) (1) (B), (C) OR (H) OF SUCH ACT, 65 STAT. 679. ALSO, SUCH EMPLOYEES ARE SPECIFICALLY EXEMPT FROM THE PROVISIONS OF SECTION 4 (B) OF PUBLIC LAW 102 WHICH ADDS A NEW SECTION TO THE 1951 ACT PROVIDING FOR THE TRANSFER, ON AN ADJUSTED BASIS, OF LEAVE IN THE EVENT OF A TRANSFER OF AN OFFICER OR EMPLOYEE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS. THUS IT IS CLEAR THAT, WHEN AN EMPLOYEE LEAVES EITHER A POSITION COVERED BY THE 1951 LEAVE ACT, OR A POSITION IN ANOTHER LEAVE SYSTEM, TO ONE EXEMPT UNDER SECTION 202 (B) (1) (B), (C) OR (H) OF THE 1951 ACT, HE IS UNABLE TO HAVE ANY LEAVE EARNED IN THE PRIOR POSITION CREDITED TO HIM IN THE NEW POSITION. IN VIEW THEREOF, IT REASONABLY MAY BE CONCLUDED THAT CONGRESS INTENDED THAT THE TRANSFER OF AN EMPLOYEE UNDER SUCH CIRCUMSTANCES WAS TO CONSTITUTE A "SEPARATION" WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AND THAT SUCH EMPLOYEE WOULD BE ENTITLED TO A LUMP-SUM PAYMENT UNDER SUCH ACT WHETHER OR NOT THE TRANSFER INVOLVED A BREAK IN SERVICE. OTHERWISE, IT IS POSSIBLE THAT AN EMPLOYEE WHO SO TRANSFERRED--- ESPECIALLY WITHOUT A BREAK IN SERVICE--- MIGHT BE HELD TO HAVE FORFEITED HIS LEAVE SINCE HE WILL BE UNABLE TO TRANSFER THE LEAVE TO THE NEW POSITION AND, UPON A SEPARATION FROM THE SERVICE AT A LATER DATE FROM SUCH NEW POSITION, THERE WOULD BE NO BASIS ON WHICH THE AGENCY THEN EMPLOYING HIM COULD MAKE PAYMENT FOR THE LEAVE ACCRUED IN THE AGENCY IN WHICH PREVIOUSLY EMPLOYED. ALSO, SINCE THE EMPLOYEE WAS NOT BEING SEPARATED FROM THE AGENCY IN WHICH THE LEAVE WAS LAST CREDITED TO HIM, IT IS DOUBTFUL WHETHER SUCH AGENCY COULD UNDERTAKE TO MAKE PAYMENT. ACCORDINGLY, YOU ARE ADVISED THAT, UPON TRANSFERS UNDER THE CIRCUMSTANCES COVERED IN QUESTION 3, LUMP-SUM PAYMENT SHOULD BE MADE TO THE EMPLOYEE WHETHER OR NOT THERE IS A BREAK IN SERVICE. SUCH BEING THE CASE, THERE WOULD APPEAR TO BE NO NECESSITY FOR THE COMMISSION TO ISSUE ANY REGULATION CONCERNING THE RECREDITING OF LEAVE UPON A RETURN TO A POSITION UNDER THE 1951 LEAVE ACT.

QUESTION 4

4. (A) SECTION 4 (B) OF PUBLIC LAW 102, ADDING A SUBSECTION (E) TO SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, REQUIRES THE COMMISSION TO ISSUE REGULATIONS FOR THE TRANSFER "ON AN ADJUSTED BASIS" OF ANNUAL AND SICK LEAVE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS (OTHER THAN TRANSFERS INVOLVING POSITIONS EXEMPTED UNDER SECTION 202 (B) (1) (B), (C), OR (H). IN AT LEAST ONE INSTANCE, THAT OF THE LEAVE SYSTEMS FOR EMPLOYEES OF THE PANAMA CANAL COMPANY ON THE ISTHMUS, THERE IS AN ANNUAL LEAVE SYSTEM BUT NO SICK LEAVE SYSTEM, THE ANNUAL LEAVE BEING EXPECTED TO BE USED FOR BOTH VACATIONS AND ILLNESS. DOES THE AMENDED SECTION 205 (E) OF THE LEAVE ACT CONTEMPLATE THAT SICK LEAVE WILL NEVERTHELESS BE TRANSFERRED TO SUCH A POSITION? IF SO, WILL IT BE AVAILABLE FOR USE IN SUCH A POSITION, OR WILL IT BE MERELY A PAPER CREDIT TO BE KEPT FOR EVENTUAL TRANSFER IF THE EMPLOYEE AGAIN TRANSFERS TO A POSITION WHICH IS UNDER A SICK LEAVE YSTEM?

SECTION 4 (B) OF PUBLIC LAW 102 AMENDS SECTION 205 OF THE 1951 LEAVE ACT BY ADDING THE OLLOWING:

IN THE CASE OF TRANSFER OF AN OFFICER OR EMPLOYEE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS (OTHER THAN TRANSFERS INVOLVING POSITIONS EXEMPTED UNDER SECTION 202 (B) (1) (B), (C), OR (H) WITHOUT A BREAK IN SERVICE, THE ANNUAL AND SICK LEAVE TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE SHALL BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE CIVIL SERVICE COMMISSION. ( ITALICS SUPPLIED.)

THE LAW CONTEMPLATES AN ADJUSTED TRANSFER OF ANNUAL AND SICK LEAVE WHERE THE SYSTEM TO WHICH THE EMPLOYEE TRANSFERS HAS BOTH ANNUAL AND SICK LEAVE. THEREFORE, SINCE IN THE CASE OF THE LEAVE SYSTEM OF THE PANAMA CANAL COMPANY ON THE ISTHMUS THERE IS AN ANNUAL LEAVE SYSTEM ONLY, IT FOLLOWS THAT SUCH TYPE OF LEAVE ONLY MAY BE TRANSFERRED ON AN ADJUSTED BASIS AND THERE CAN BE NO TRANSFER OF SICK LEAVE. HOWEVER, IT WOULD APPEAR APPROPRIATE FOR THE COMMISSION TO PROVIDE BY REGULATION THAT THE EMPLOYEE MAY BE GIVEN APPROPRIATE CREDIT FOR HIS SICK LEAVE IN THE EVENT HE SHOULD TRANSFER AGAIN TO A POSITION WHICH IS UNDER A SICK LEAVE SYSTEM. QUESTION 4 (A) IS ANSWERED ACCORDINGLY.

(B) DOES THE AMENDED SECTION 205 (E) INTEND THAT ALL LEAVE BE TRANSFERRED, EVEN IF IT IS AN AMOUNT IN EXCESS OF THE AMOUNT THAT COULD HAVE BEEN ACCUMULATED UNDER THE SYSTEM TO WHICH THE TRANSFER IS MADE?

WITH RESPECT TO QUESTION 4 (B), YOU MAY BE INFORMED THAT THE AMOUNT OF LEAVE PERMITTED TO BE TRANSFERRED SHOULD, IN NO EVENT, EXCEED THE AGGREGATE AMOUNT OF LEAVE WHICH THE EMPLOYEES IN THE AGENCY TO WHICH TRANSFERRED ARE PERMITTED TO ACCUMULATE.

QUESTION 5

5. THE FIRST SECTION OF PUBLIC LAW 102 EXEMPTS CERTAIN PRESIDENTIAL APPOINTEES FROM THE COVERAGE OF THE LEAVE ACT, AND SECTION 2 PROVIDES FOR THE ULTIMATE DISPOSITION OF ANY ANNUAL OR SICK LEAVE TO WHICH SUCH OFFICERS WERE ENTITLED IMMEDIATELY PRIOR TO BECOMING EXEMPT. SOME OF THE PRESIDENTIAL OFFICERS WHO WERE COVERED BY THE LEAVE ACT UNTIL EXEMPTED BY THE ENACTMENT OF PUBLIC LAW 102 HAD NOT, ON THE EFFECTIVE DATE OF THE FIRST SECTION, COMPLETED THE 90-DAY QUALIFYING PERIOD TO BE ENTITLED TO A CREDIT OF ANNUAL LEAVE. ARE THEY TO BE CONSIDERED AS HAVING EARNED NO ANNUAL LEAVE, OR ARE THEY ENTITLED TO A PRO RATA CREDIT OF ANNUAL LEAVE? UNLESS AN APPOINTEE COVERED BY THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, HAS BECOME EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE AS REQUIRED BY SECTION 203 (I) OF SAID ACT, NO BASIS EXISTS FOR CONSIDERING THAT SAID APPOINTEE EARNED ANY ANNUAL LEAVE DURING SAID PERIOD. 31 COMP. GEN. 581. QUESTION 5 IS ANSWERED ACCORDINGLY.

QUESTION 6

6. WHILE SECTION 203 (C), 203 (D), AND 208 (A), GOVERNING THE POINT AT WHICH ACCUMULATION OCCURS AND EXCESS ANNUAL LEAVE IS FORFEITED, WERE AMENDED BY PUBLIC LAW 102 TO ESTABLISH THAT POINT AS THE BEGINNING OF THE FIRST COMPLETE PAY PERIOD IN ANY YEAR, INSTEAD OF THE END OF THE LAST COMPLETE PAY PERIOD IN ANY YEAR AS FORMERLY, SECTION 203 (A) (2), PRESCRIBING AN ADDITIONAL LEAVE ACCRUAL TO CERTAIN EMPLOYEES FOR THE LAST FULL PAY PERIOD IN THE YEAR, HAS NOT BEEN AMENDED. IS IT CORRECT TO CONTINUE TO GIVE THIS ADDITIONAL ACCRUAL FOR THE LAST FULL PAY PERIOD IN THE CALENDAR YEAR?