B-119398, APRIL 28, 1954, 33 COMP. GEN. 528

B-119398, APRIL 28, 1954, 33 COMP. GEN. 528

LEAVES OF ABSENCE - ANNUAL - TRANSFERS - BETWEEN PERMANENT AND TEMPORARY POSITIONS - PERMANENT EMPLOYEE CONCURRENTLY HOLDING TEMPORARY POSITION LUMP-SUM PAYMENT UNDER THE ANNUAL AND SICK LEAVE REGULATIONS AN EMPLOYEE WHO WAS VOLUNTARILY FURLOUGHED FROM PERMANENT POSITION FOR PURPOSE OF ACCEPTING TEMPORARY CONTRACT EMPLOYMENT FOR 2 MONTHS AS CONSULTANT WITH THE COMMISSION ON FOREIGN ECONOMIC POLICY, AND WHO RESUMED DUTIES IN PERMANENT POSITION WITHOUT BREAK IN SERVICE, MAY HAVE ANNUAL LEAVE ACCRUED IN TEMPORARY POSITION TRANSFERRED TO CREDIT IN PERMANENT POSITION, AND THEREFORE LUMP-SUM PAYMENT BY THE COMMISSION FOR SUCH ACCRUED LEAVE IS NOT AUTHORIZED. 32 COMP. GEN. 310, DISTINGUISHED.

ACTING COMPTROLLER GENERAL WEITZEL TO W. H. RICHARDSON, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, APRIL 28, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1954, REQUESTING DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED COVERING 32 HOURS OF ANNUAL LEAVE ACCRUED TO MR. HOWARD S. PIQUET, A CONTRACT EMPLOYEE OF THE COMMISSION ON FOREIGN ECONOMIC POLICY. YOU STATE THAT YOUR DEPARTMENT IS HANDLING THE "HOUSEKEEPING FUNCTIONS" OF THAT COMMISSION, WHICH EXPIRED APRIL 23, 1954 (SEE B 119004, MARCH 8, 1954, 33 COMP. GEN. 384), AND THAT MR. PIQUET, AN EMPLOYEE OF THE LIBRARY OF CONGRESS, WAS GRANTED LEAVE WITHOUT PAY FROM THAT AGENCY FOR THE PURPOSE OF ACCEPTING TEMPORARY EMPLOYMENT WITH THAT COMMISSION.

THE CONTRACT OF EMPLOYMENT SA-1540, ENTERED INTO BETWEEN THE EMPLOYEE AND THE COMMISSION, CONTAINS THE FOLLOWING PROVISIONS---

WE DESIRE TO OBTAIN YOUR SERVICES AS CONSULTANT ON MATTERS PERTAINING TO THE WORK OF THE COMMISSION ON FOREIGN ECONOMIC POLICY.

IT IS AGREE THAT YOU WILL RECEIVE $50 PER DAY BEGINNING ON NOVEMBER 16, 1953. IT IS ANTICIPATED THAT YOUR SERVICES WILL BE REQUIRED REGULARLY EACH DAY FOR APPROXIMATELY TWO MONTHS. YOUR HEADQUARTERS WILL BE WASHINGTON, D.C.

THIS CONTRACT MAY BE TERMINATED ON FIVE (5) DAYS WRITTEN NOTICE BY EITHER PARTY. YOUR TRAVEL EXPENSES INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WILL BE PAID IN ACCORDANCE WITH THE STANDARD GOVERNMENT TRAVEL REGULATIONS.

IT HAS BEEN INFORMALLY ASCERTAINED THAT UPON COMPLETION OF THE TEMPORARY EMPLOYMENT ON JANUARY 17, 1954, HE RESUMED DUTIES IN HIS PERMANENT POSITION WITH THE LIBRARY OF CONGRESS THE FOLLOWING DAY, NAMELY, JANUARY 18, 1954.

IN VIEW OF THE TEMPORARY CHARACTER OF THE COMMISSION ON FOREIGN ECONOMIC POLICY, THE TEMPORARY EMPLOYMENT OF MR. PIQUET WHILE ON LEAVE WITHOUT PAY FROM THE LIBRARY OF CONGRESS DOES NOT APPEAR TO BE OPEN TO OBJECTION UNDER EITHER THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, OR THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58. SEE 30 COMP. GEN. 386, COVERING A SIMILAR SITUATION, EXCEPT THAT THE EMPLOYEE'S LEAVE ACCOUNT WAS UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161.

IN 32 COMP. GEN. 310, CITED BY YOU, IT WAS HELD, QUOTING FROM THE SYLLABUS---

AN EMPLOYEE WHO IS APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH FROM ANOTHER AGENCY IS NOT REGARDED AS HAVING HAD A BREAK IN SERVICE SO AS TO REQUIRE THE EMPLOYEE TO SERVE THE 90-DAY QUALIFYING PERIOD REQUIRED BY SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IN ORDER TO EARN ANNUAL LEAVE IN THE TEMPORARY POSITION.

SEPARATION OF AN EMPLOYEE FROM A TEMPORARY POSITION TO WHICH HE WAS APPOINTED WHILE ON INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION IN ANOTHER AGENCY IS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, SO AS TO REQUIRE A LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE EARNED AND UNUSED IN THE TEMPORARY POSITION; SICK LEAVE IS NOT TRANSFERABLE TO OR FROM THE TEMPORARY POSITION.

THE CASE COVERED BY THAT DECISION IS TO BE DIFFERENTIATED FROM THE INSTANT ONE IN THAT UPON COMPLETION OF THE TEMPORARY EMPLOYMENT HERE THERE WAS A RETURN TO THE PERMANENT POSITION FROM WHICH HE HAD BEEN VOLUNTARILY FURLOUGHED. IN THAT DECISION THE FURLOUGH WAS INVOLUNTARY AND THERE WAS NO RESUMPTION OF DUTY IN THE POSITION FROM WHICH FURLOUGHED UPON COMPLETION OF THE TEMPORARY EMPLOYMENT. THAT DECISION, THEREFORE, IS NOT TO BE APPLIED BEYOND THE FACTS OF THAT CASE.

SECTION 30.701 (A) ANNUAL LEAVE REGULATIONS PAGE L1-21 OF THE FEDERAL PERSONNEL MANUAL PROVIDES---

WHEN AN EMPLOYEE IS SEPARATED FROM A POSITION UNDER THIS ACT AND REEMPLOYED IN ANOTHER POSITION UNDER THE ACT, WITHOUT A BREAK IN SERVICE, HIS ANNUAL LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE.

WHILE THE EMPLOYEE WAS NOT "SEPARATED" FROM HIS POSITION IN THE LIBRARY OF CONGRESS WHEN FURLOUGHED, HE WAS SEPARATED FROM THE TEMPORARY POSITION WITH THE COMMISSION JANUARY 17, 1954, AND WAS RESTORED TO A PAY STATUS IN THE LIBRARY OF CONGRESS JANUARY 18, 1954--- THUS BROADLY WAS ,REEMPLOYED IN ANOTHER POSITION UNDER THE ACT" WITHIN CONTEMPLATION OF THOSE WORDS AS USED IN THE REGULATION JUST QUOTED. SINCE THERE WAS NO BREAK IN SERVICE THE ANNUAL LEAVE WHICH ACCRUED IN THE TEMPORARY POSITION IS TRANSFERABLE TO HIS CREDIT IN THE LIBRARY OF CONGRESS UNDER THE ABOVE-QUOTED REGULATION. ACCORDINGLY, PAYMENT THEREFOR OUT OF FUNDS FOR THE COMMISSION ON FOREIGN ECONOMIC POLICY IS NOT AUTHORIZED.

THUS, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.