B-127589, APR. 27, 1956

B-127589: Apr 27, 1956

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BEAN WAS EMPLOYED BY YOUR BOARD FROM JANUARY 3. SUBSEQUENTLY HIS NOMINATION WAS CONFIRMED BY THE SENATE FOR A FOUR YEAR TERM ENDING AUGUST 27. 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.'. YOU SAY YOU ARE COGNIZANT OF THAT DECISION. THAT DECISION IS NOT BASED UPON ANY INTENTION BY THE EMPLOYEE TO RETURN TO THE GOVERNMENT SERVICE. RATHER IT IS BASED UPON THE FACT THAT THE PRESIDENTIAL APPOINTMENT DID NOT CONSTITUTE A SEPARATION FROM THE GOVERNMENT SERVICE WITHIN THE PURVIEW OF THE ACT OF DECEMBER 21. THE LUMP-SUM PAYMENT UNDER THAT ACT FOR ACCUMULATED LEAVE IS AUTHORIZED ONLY WHEN THE EMPLOYEE "IS SEPARATED FROM THE SERVICE.'.

B-127589, APR. 27, 1956

TO THE HONORABLE BOYD LEEDOM, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD:

YOUR LETTER OF APRIL 11, 1956, REQUESTS OUR DECISION WHETHER THE PROVISIONS OF SECTION 2 (A) (B) OF PUBLIC LAW 102 OF THE ACT APPROVED JULY 2,31953, 67 STAT. 136, PROHIBIT THE BOARD FROM MAKING A LUMP-SUM PAYMENT TO ONE OF ITS MEMBERS, MR. STEPHEN BEAN, FOR ANNUAL LEAVE ACCUMULATED PRIOR TO HIS APPOINTMENT AS SUCH MEMBER.

YOU SAY THAT MR. BEAN WAS EMPLOYED BY YOUR BOARD FROM JANUARY 3, 1950, TO NOVEMBER 30, 1955, AS A HEARING EXAMINER, AND THAT ON DECEMBER 1, 1955, HE ENTERED UPON DUTY AS A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD UNDER A RECESS APPOINTMENT BY THE PRESIDENT. SUBSEQUENTLY HIS NOMINATION WAS CONFIRMED BY THE SENATE FOR A FOUR YEAR TERM ENDING AUGUST 27, 1960. THE TIME OF THE TERMINATION OF HIS SERVICE AS HEARING EXAMINER HE HAD 236 HOURS ANNUAL LEAVE TO HIS CREDIT.

IN 33 COMP. GEN. 177, WE HELD, QUOTING FROM THE SYLLABUS:

"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.'

YOU SAY YOU ARE COGNIZANT OF THAT DECISION, BUT MR. BEAN ADVANCES THE ARGUMENT THAT SINCE HE HAS NO INTENTION OF RE-ENTERING THE GOVERNMENT SERVICE UPON THE CONCLUSION OF HIS TERM OF OFFICE AS A MEMBER OF THE BOARD THAT DECISION SHOULD NOT BE APPLIED TO HIM. THAT DECISION IS NOT BASED UPON ANY INTENTION BY THE EMPLOYEE TO RETURN TO THE GOVERNMENT SERVICE; RATHER IT IS BASED UPON THE FACT THAT THE PRESIDENTIAL APPOINTMENT DID NOT CONSTITUTE A SEPARATION FROM THE GOVERNMENT SERVICE WITHIN THE PURVIEW OF THE ACT OF DECEMBER 21, 1944, AS AMENDED. THE LUMP-SUM PAYMENT UNDER THAT ACT FOR ACCUMULATED LEAVE IS AUTHORIZED ONLY WHEN THE EMPLOYEE "IS SEPARATED FROM THE SERVICE.' IN MR. BEAN'S CASE THERE WAS NO SEPARATION FROM THE SERVICE WHEN HE BECAME A MEMBER OF THE BOARD.

IF MR. BEAN DOES NOT RE-ENTER THE GOVERNMENT SERVICE UPON COMPLETION OF HIS TERM AS MEMBER OF THE NATIONAL LABOR RELATIONS BOARD HE WOULD NOT BE ENTITLED TO A LUMP-SUM LEAVE PAYMENT UNTIL THAT TIME.