B-117084, OCTOBER 21, 1953, 33 COMP. GEN. 177

B-117084: Oct 21, 1953

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IS NOT ENTITLED TO A LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21. - EVEN THOUGH THE EMPLOYEE WAS NOT AN INCUMBENT OF THE EXEMPT POSITION AT THE TIME OF ENACTMENT OF THE 1953 ACT. 1953: REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 16. THE ACTING SECRETARY STATES THAT IT HAS BEEN URGED THAT IT IS NOT CLEAR THE LANGUAGE OF SECTION 2 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. CONTEMPLATES A SITUATION WHERE AN EMPLOYEE IS NOT AN INCUMBENT OF THE EXEMPT POSITION AT THE TIME OF THE ENACTMENT OF SAID LAW. A LUMP-SUM LEAVE PAYMENT WILL BE PROPER. * * * SECTION 2 (A) AND (B) OF SAID ACT READS: THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21.

B-117084, OCTOBER 21, 1953, 33 COMP. GEN. 177

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - APPOINTMENT TO POSITION EXEMPT FROM ANNUAL AND SICK LEAVE ACT OF 1951--- PRESIDENTIAL APPOINTEES AN EMPLOYEE SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 WHO, WITHOUT A BREAK IN SERVICE, ACCEPTS A POSITION ( PRESIDENTIAL APPOINTMENT) EXEMPTED FROM SUCH ACT BY SECTION 1 OF THE ACT OF JULY 2, 1953, IS NOT ENTITLED TO A LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, AS AMENDED--- WHICH PROVIDES FOR SUCH PAYMENTS UPON SEPARATION FROM THE SERVICE--- EVEN THOUGH THE EMPLOYEE WAS NOT AN INCUMBENT OF THE EXEMPT POSITION AT THE TIME OF ENACTMENT OF THE 1953 ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 21, 1953:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 16, 1953, FROM THE ACTING SECRETARY OF AGRICULTURE, REQUESTING DECISION WHETHER LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO THE CREDIT OF MR. WALTER F. SCHREIBER, FORMER EMPLOYEE OF THE FOREIGN AGRICULTURAL SERVICE OF YOUR DEPARTMENT, COULD BE MADE TO HIM UPON HIS BEING SWORN IN ON AUGUST 5, 1953, AS A COMMISSIONER, UNITED STATES TARIFF COMMISSION, A PRESIDENTIAL APPOINTMENT.

THE ACTING SECRETARY STATES THAT IT HAS BEEN URGED THAT IT IS NOT CLEAR THE LANGUAGE OF SECTION 2 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PUBLIC LAW 102, CONTEMPLATES A SITUATION WHERE AN EMPLOYEE IS NOT AN INCUMBENT OF THE EXEMPT POSITION AT THE TIME OF THE ENACTMENT OF SAID LAW, BUT ACCEPTS SUCH AN APPOINTMENT AT A LATER TIME, HAVING TO HIS CREDIT ANNUAL LEAVE IN HIS IMMEDIATELY PRECEDING FEDERAL EMPLOYMENT AND, THEREFORE, THAT, UNDER SUCH CIRCUMSTANCES, A LUMP-SUM LEAVE PAYMENT WILL BE PROPER.

SECTION 1 FOR THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 67 STAT. 136, AMENDS SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, BY ADDING THE FOLLOWING PERTINENT PROVISIONS:

(C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT * * *:

(A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, WHOSE RATES OF BASIC COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED; * * *

SECTION 2 (A) AND (B) OF SAID ACT READS:

THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 61B-61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON WHICH THIS ACT BECAME APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4 AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACTS.

IN THE EVENT ANY SUCH EXEMPTED OFFICER, WITHOUT ANY BREAK IN THE CONTINUITY OF HIS SERVICE, AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 UPON THE COMPLETION OF HIS SERVICE AS AN EXEMPTED OFFICER, THE UNUSED ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME HE WAS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 SHALL BE DEEMED TO HAVE REMAINED TO HIS CREDIT. ( ITALICS SUPPLIED.)

SO FAR AS HERE PERTINENT THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, REFERRED TO IN SECTION 2 (A), SUPRA, PROVIDES THAT " WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * , HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. * * *

THE FOLLOWING PERTINENT EXCEPTS ARE QUOTED FROM THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE, REPORT NO. 629, 83D CONGRESS, WHICH ACCOMPANIED H.R. 4654, LATER ENACTED AS PUBLIC LAW 102, SUPRA:

SUBSECTION (A) OF SECTION 2 OF THE CONFERENCE SUBSTITUTE PROVIDES FOR THE LIQUIDATION BY LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944, OR THE ACT OF AUGUST 3, 1950, OF THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 UNDER THE FIRST SECTION OF THE CONFERENCE SUBSTITUTE IS ENTITLED IMMEDIATELY PRIOR TO THE DATE SUCH SECTION BECOMES APPLICABLE TO HIM. THE ACT OF DECEMBER 21, 1944, PROVIDES FOR LUMP-SUM PAYMENTS TO GOVERNMENT OFFICERS AND EMPLOYEES FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE DUE UPON THEIR SEPARATION FROM THE SERVICE OR TRANSFER TO AGENCIES IN DIFFERENT LEAVE SYSTEMS. THE ACT OF AUGUST 3, 1950, PROVIDES FOR PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO SURVIVORS OF DECEASED OFFICERS AND EMPLOYEES. SINCE THE ACT OF DECEMBER 21, 1944, AND THE ACT OF AUGUST 3, 1950, ARE AMENDED BY SECTIONS 4 AND 5 OF THE CONFERENCE SUBSTITUTE WITH RESPECT TO OFFICERS AND EMPLOYEES GENERALLY, THE OPERATION OF SUCH ACTS WITH RESPECT TO EXEMPTED OFFICERS IS DISCUSSED IN CONNECTION WITH SECTIONS 4 AND 5 OF THE CONFERENCE SUBSTITUTE. PAYMENT OF SUCH EXEMPTED OFFICERS, HOWEVER, IS TO BE AT THE SAME RATE OF COMPENSATION PROVIDED IN THE HOUSE BILL AND THE SENATE AMENDMENT, AND IS TO BE MADE WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SUCH SECTIONS WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACTS. PAYMENTS TO EXEMPTED OFFICERS FOR LEAVE ACCRUED PRIOR TO THE DATE THE CONFERENCE SUBSTITUTE BECOMES APPLICABLE TO THEM CAN ONLY BE MADE WHEN ONE OF THE CONDITIONS OF THE ACT OF DECEMBER 21, 1944, OR THE ACT OF AUGUST 3, 1950, IS MET.

SINCE UNDER THE CONFERENCE SUBSTITUTE THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE OF AN EXEMPTED OFFICER REMAINS IN A SUSPENDED STATUS AND THE TIME OF PAYMENT IS CONTINGENT UPON THE HAPPENING OF A FUTURE EVENT, IT IS CONTEMPLATED THAT PAYMENTS FOR SUCH LEAVE WILL BE MADE BY THE AGENCY IN WHICH SUCH OFFICER IS EMPLOYED AT THE TIME OF ENTITLEMENT TO PAYMENT AND WILL BE MADE FROM CURRENT APPROPRIATIONS FOR SUCH AGENCY.

SECTION 4 (A) OF THE CONFERENCE SUBSTITUTE AMENDS THE FIRST SECTION OF THE ACT OF DECEMBER 21, 1944, IN THE FOLLOWING RESPECTS:

FIRST, THE LUMP-SUM PAYMENT FOR UNUSED ACCUMULATED ANNUAL LEAVE WHICH IS TO BE PAID AN OFFICER OR EMPLOYEE UPON HIS SEPARATION FROM THE SERVICE OR, IF HE SO ELECTS, UPON HIS ENTRANCE INTO THE ARMED FORCES OF THE UNITED STATES OR THE MERCHANT MARINE OF THE UNITED STATES, SHALL NOT, AFTER AUGUST 31, 1953, EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER.

SECTION 4 (B) OF THE CONFERENCE SUBSTITUTE IS MADE NECESSARY BY THE REPEAL OF SECTION 3 OF THE ACT OF DECEMBER 21, 1944, BY SECTION 7 (B) OF THE CONFERENCE SUBSTITUTE. SUCH SECTION 3 PROVIDED THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN CASE AN OFFICER OR EMPLOYEE TRANSFERS TO AN AGENCY UNDER A DIFFERENT LEAVE SYSTEM. THIS PRACTICE HAS BEEN WIDELY CRITICIZED AND, THEREFORE, THE PROVISION IS REPEALED BY THE CONFERENCE SUBSTITUTE. SECTION 4 (B) ADDS A SUBSECTION (E) TO SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 TO PROVIDE THAT THE ANNUAL AND SICK LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE WHO TRANSFERS WITHOUT A BREAK IN SERVICE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS (NONE OF WHICH LEAVE MAY HEREAFTER BE PAID FOR) SHALL BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS PURSUANT TO REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

IT IS CONCLUDED THAT, BOTH BY VIRTUE OF THE LANGUAGE OF THE ACT AND OF THE EXPLANATION CONTAINED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE, SECTION 2 (A) WAS INTENDED TO COVER NOT ONLY THOSE OFFICERS OCCUPYING POSITIONS EXEMPTED BY SAID ACT ON THE DATE OF ITS APPROVAL BUT, ALSO, OFFICERS WHO SUBSEQUENTLY ARE APPOINTED TO SUCH POSITIONS. THEREFORE, PAYMENT FOR THE ANNUAL LEAVE IN THE PRESENT CASE WOULD NOT BE PROPER.