B-119016, DECEMBER 14, 1954, 34 COMP. GEN. 287

B-119016: Dec 14, 1954

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LEAVES OF ABSENCE - TRANSFER FROM COMMISSIONED CORPS OF PUBLIC HEALTH SERVICE TO ANOTHER CIVILIAN POSITION COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE ARE CONSIDERED CIVILIAN OFFICERS AND EMPLOYEES WITHIN THE PURVIEW OF THE ANNUAL AND SICK LEAVE ACT OF 1951 SO THAT MEMBERS TRANSFERRING TO AND FROM THE COMMISSIONED CORPS TO OTHER CIVILIAN POSITIONS ARE NOT ENTITLED TO A LUMP- SUM LEAVE PAYMENT BUT MAY HAVE THEIR ANNUAL AND SICK LEAVE TRANSFERRED ON AN ADJUSTED BASIS. 1954: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19. ARE APPLICABLE "TO MOVEMENTS OF PERSONS TO AND FROM THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE.'. THE VIEW IS EXPRESSED IN YOUR LETTER THAT BY REASON OF THE SIMILARITY BETWEEN THE PERSONNEL SYSTEM OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE RESPECTING PAY.

B-119016, DECEMBER 14, 1954, 34 COMP. GEN. 287

LEAVES OF ABSENCE - TRANSFER FROM COMMISSIONED CORPS OF PUBLIC HEALTH SERVICE TO ANOTHER CIVILIAN POSITION COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE ARE CONSIDERED CIVILIAN OFFICERS AND EMPLOYEES WITHIN THE PURVIEW OF THE ANNUAL AND SICK LEAVE ACT OF 1951 SO THAT MEMBERS TRANSFERRING TO AND FROM THE COMMISSIONED CORPS TO OTHER CIVILIAN POSITIONS ARE NOT ENTITLED TO A LUMP- SUM LEAVE PAYMENT BUT MAY HAVE THEIR ANNUAL AND SICK LEAVE TRANSFERRED ON AN ADJUSTED BASIS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, DECEMBER 14, 1954:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1954, REQUESTING A DECISION WHETHER THE PROVISIONS OF SECTION 205 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 67 STAT. 138, ARE APPLICABLE "TO MOVEMENTS OF PERSONS TO AND FROM THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE.'

SECTION 205 (E), 67 STAT. 138, PROVIDES AS FOLLOWS:

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.

THE VIEW IS EXPRESSED IN YOUR LETTER THAT BY REASON OF THE SIMILARITY BETWEEN THE PERSONNEL SYSTEM OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE RESPECTING PAY, ALLOWANCES, LEAVE, RETIREMENT, ETC., AND THAT OF THE MILITARY AND NAVAL SERVICES, ANY MOVEMENT OF PERSONNEL BETWEEN THE CORPS AND OTHER CIVILIAN POSITIONS SHOULD NOT BE CONSIDERED A "TRANSFER" WITHIN THE MEANING OF THAT WORD AS USED IN SECTION 205 (E). RATHER, IT IS URGED THAT SUCH MOVEMENT SHOULD BE CONSIDERED IN THE SAME CATEGORY AS ONE BETWEEN THE ARMED FORCES AND A CIVILIAN POSITION, IN WHICH EVENT NO ADJUSTMENT OF LEAVE WOULD BE REQUIRED UNDER SECTION 205 (E).

SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, SPECIFICALLY PROVIDES THAT ,1EXCEPT AS PROVIDED IN SUBSECTION (B), THIS TITLE SHALL APPLY TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES * * *.' SUBSECTION (B) LISTS VARIOUS CATEGORIES OF OFFICERS AND EMPLOYEES, INCLUDING UNDER SUBSECTION (B) (1) (E),"COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE.' IN EXPLANATION OF SECTION 202, THE CONFERENCE REPORT TO ACCOMPANY S. 1046, WHICH SUBSEQUENTLY WAS ENACTED INTO LAW, CONTAINED THE FOLLOWING STATEMENT:

SECTION 202 EXTENDS THE COVERAGE OF THE LAW TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WITH THE EXCEPTION OF CERTAIN SPECIFIED CATEGORIES OF OFFICERS AND EMPLOYEES WHO ARE EXEMPTED BY REASON OF THE SPECIAL CIRCUMSTANCES OF THEIR EMPLOYMENT.

FROM THE FOREGOING STATEMENT IT IS APPARENT THAT THE OFFICERS AND EMPLOYEES WITHIN THE EXEMPT CATEGORIES ARE CONSIDERED CIVILIAN OFFICERS AND EMPLOYEES WHO OTHERWISE WOULD HAVE COME WITHIN THE PURVIEW OF THE ANNUAL AND SICK LEAVE ACT OF 1951 HAD THEY NOT BEEN SPECIFICALLY EXEMPTED. THAT CONCLUSION APPEARS TO BE FURTHER SUBSTANTIATED BY THE FACT THAT NO EXEMPTION FOR MILITARY AND NAVAL PERSONNEL WAS CONTAINED IN SUBSECTION (B) SINCE THEY AUTOMATICALLY WERE EXCLUDED FROM THE LEAVE ACT WHICH APPLIES TO "CIVILIAN OFFICERS AND EMPLOYEES" ONLY. ACCORDINGLY, AND SINCE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE WERE NOT INCLUDED IN THE SPECIFIED EXEMPTIONS TO THE LEAVE ADJUSTMENT PROVISIONS OF SECTION 205 (E), IT APPEARS THAT MOVEMENTS OF PERSONNEL TO AND FROM THE COMMISSIONED CORPS ARE SUBJECT TO SUCH PROVISIONS, UNLESS, AS CONTENDED IN YOUR LETTER, SUCH A MOVEMENT IS NOT A "TRANSFER" WITHIN THE MEANING OF THAT WORD AS USED IN SECTION 205 (E).

IN VIEW OF THE AUTHORITY VESTED IN THE CIVIL SERVICE COMMISSION BY SECTION 205 (E) TO PRESCRIBE REGULATIONS COVERING THE TRANSFER, ON AN ADJUSTED BASIS, OF LEAVE BETWEEN DIFFERENT LEAVE SYSTEMS THE COMMENTS OF THE COMMISSION WERE REQUESTED BY THE MATTER. BY LETTER DATED AUGUST 31, 1954, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION, THE COMMISSION REPLIED, IN PERTINENT PART, AS FOLLOWS:

IN DETERMINING WHETHER THIS PROVISION ( SECTION 205 (E) ( OF THE ACT RELATES TO THE TRANSFER OF THE PUBLIC HEALTH SERVICE OFFICERS TO AND FROM THE COMMISSIONED CORPS, THERE ARE INVOLVED THESE ACTS--- THE ACT OF AUGUST 9, 1950, 64 STAT. 426, AND THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, AS AMENDED BY SECTION 4 (B) OF THE ACT OF JULY 2, 1953, 67 STAT. 138. DURING EMERGENCY WAR PERIODS, THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE MAY BE DECLARED TO BE A MILITARY SERVICE BY EXECUTIVE ORDER. GENERALLY SPEAKING, THEREFOR, IN PEACETIME, SUCH COMMISSIONED OFFICERS WOULD AT BEST BE A "QUASI MILITARY" ORGANIZATION. THIS VIEW FINDS SUPPORT IN THE FACT THAT THE CONGRESS ESTABLISHED UNDER THE ACT OF AUGUST 9, 1950, A "NEW LEAVE SYSTEM" FOR THOSE PUBLIC HEALTH OFFICERS WHEN THEY ARE NOT IN THE "MILITARY SERVICE" PROVIDING LEAVE BENEFITS FOR SUCH OFFICERS SIMILAR TO THOSE GRANTED TO MILITARY PERSONNEL. THE SECOND PROVISO OF THIS ACT PROVIDES IN PERTINENT PART, AS FOLLOWS:

"* * * THAT NO LUMP-SUM PAYMENT SHALL BE MADE FOR SUCH UNUSED LEAVE TO AN OFFICER WHOSE COMMISSION EXPIRES OR IS TERMINATED BUT WHO, WITHOUT A BREAK IN SERVICE * * * IS TRANSFERRED TO ANOTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT UNDER CIRCUMSTANCES WHERE, BY OTHER PROVISION OF LAW, SUCH LEAVE IS TRANSFERABLE.'

THE ABOVE PROVISION CERTAINLY IMPLIES THAT A PUBLIC HEALTH OFFICER IS NOT SUBJECT TO LEAVE ACTS GOVERNING THE UNIFORMED SERVICES WHEN TRANSFERRED TO ANOTHER GOVERNMENT AGENCY. IF THIS VIEW IS CORRECT, THEN WHEN HE MOVES FROM A POSITION SUBJECT TO THE LEAVE PROVISIONS OF THE ACT OF AUGUST 9, 1950, TO A POSITION IN A DIFFERENT AGENCY, IT MUST FOLLOW (1) THAT AT THIS POINT HE IS SERVING IN A "CIVILIAN" CAPACITY AT THE TIME HE TRANSFERS, AND (2) THAT SUCH TRANSFER INVOLVES DIFFERENT LEAVE SYSTEMS WITHIN THE MEANING OF SECTION 205 (E), SUPRA. THERE WOULD APPEAR TO BE NO REASON FOR DISTINGUISHING A TRANSFER WITHIN THE AGENCY FOR SUCH PURPOSES.

PRIOR TO ENACTMENT OF THE ACT OF JULY 2, 1953, 67 STAT. 138, AGENCIES WERE AUTHORIZED TO MAKE LUMP-SUM PAYMENTS WHENEVER EMPLOYEES TRANSFERRED BETWEEN DIFFERENT LEAVE SYSTEMS. IN DEVELOPING THE HISTORY OF THIS ACT, IT IS NOTED THAT ON PAGE 12 OF HOUSE REPORT NO. 629, DATED JUNE 22, 1953, THE REPORT STATES THAT THE REASON FOR ENACTING SECTION 205 (E), SUPRA, WAS TO PROHIBIT AGENCIES FROM PAYING LUMP SUMS WHERE SUCH TRANSFERS OCCURRED BECAUSE THERE HAD BEEN WIDESPREAD CRITICISM OF THAT PRACTICE. TO HOLD NOW THAT THE MOVEMENT OF COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE TO AND FROM DIFFERENT LEAVE SYSTEMS CALLS FOR PAYMENT OF A LUMP SUM WOULD, IN EFFECT, PLACE THIS GROUP IN A SITUATION SIMILAR TO THAT PREVIOUSLY UNDER CRITICISM.

FOR THE REASONS STATED, IT IS OUR VIEW THAT THE TRANSFER OF A PUBLIC HEALTH COMMISSIONED OFFICER FROM HIS POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT AGENCY CONSTITUTES A TRANSFER BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS. IF THIS INTERPRETATION IS PROPER, A LUMP-SUM PAYMENT SHOULD NOT BE MADE AND THE ANNUAL AND SICK LEAVE TO THE CREDIT OF THE COMMISSIONED OFFICER WOULD BE FOR TRANSFER TO HIS NEW POSITION ON AN ADJUSTED BASIS AS PROVIDED BY THE LEAVE REGULATIONS.

SINCE, AS STATED ABOVE, THE CONGRESS IN ENACTING THE ANNUAL AND SICK LEAVE ACT OF 1951 CONSIDERED COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE AS CIVILIAN OFFICERS AND EMPLOYEES, THERE IS PERCEIVED NO BASIS UPON WHICH TRANSFERS TO OR FROM THE CORPS PROPERLY MAY BE CONSIDERED IN ANY DIFFERENT LIGHT THAN TRANSFERS BETWEEN OTHER CIVILIAN POSITIONS NOT SPECIFICALLY EXEMPT FROM THE OPERATION OF SECTION 205 (E). CONSEQUENTLY, I AM IN AGREEMENT WITH THE VIEW EXPRESSED BY THE CIVIL SERVICE COMMISSION THAT, IN SUCH CASES, THE LEAVE SHOULD BE TRANSFERRED ON AN ADJUSTED BASIS PURSUANT TO SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE COMMISSION. YOUR QUESTION IS ANSWERED ACCORDINGLY.