B-129296, OCT. 10, 1956

B-129296, OCT. 10, 1956

TO THE ATTORNEY GENERAL:

IN LETTER OF SEPTEMBER 20, 1956, YOUR REFERENCE A3, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTS REVIEW OF THE AUDIT INFORMAL INQUIRY NO. 7Q0014 REGARDING THE LUMP-SUM LEAVE PAYMENT MADE TO MR. ROBERT W. MINOR UPON HIS RESIGNATION FROM THE DEPARTMENT OF JUSTICE, FEBRUARY 14, 1956, TO ACCEPT A PRESIDENTIAL APPOINTMENT EFFECTIVE FEBRUARY 15, 1956, AS A COMMISSIONER IN THE INTERSTATE COMMERCE COMMISSION.

THE REFERRED-TO AUDIT INQUIRY IS BASED ON 33 COMP. GEN. 177, IN WHICH 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.'

THE PERTINENT PROVISIONS OF THE ACT OF JULY 2, 1953, 67 STAT. 136, ARE AS FOLLOWS:

"* * * THAT SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS AMENDED BY ADDING A SUBSECTION (C) AS FOLLOWS:

"/C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND OFFICERS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, INCLUDING OFFICERS OF CORPORATIONS WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES:

"/A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH 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:

"SEC. 2 (A) 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.

"/B) 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.'

IN HIS LETTER OF SEPTEMBER 20, 1956, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL URGES THAT THE FIRST THREE LINES OF SECTION 2 (A) AND (B) CAN APPLY ONLY TO INCUMBENTS OF THE POSITIONS ON THE EFFECTIVE DATE OF THE ACT. IN THAT CONNECTION, HOWEVER, IT IS TO BE NOTED THAT SECTION 202 (C) (1) (A) EXEMPTS FROM THAT TITLE ALL PERSONS APPOINTED BY THE PRESIDENT WHOSE RATES OF COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND CONTAINS NO LIMITATION CONCERNING THE DATES OF THEIR APPOINTMENTS. THE FIRST LINES OF SECTION 2 (A) AND (B) REFER TO SUCH EXEMPTED OFFICERS AND LIMIT THEIR RIGHT TO LUMP-SUM PAYMENTS FOR LEAVE TO WHICH ENTITLED IMMEDIATELY "PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM"--- NOT TO WHICH ENTITLED IMMEDIATELY PRIOR TO THE DATE OF THE ACT--- AS APPEARS TO BE CONTENDED IN YOUR DEPARTMENT'S LETTER.

IN MR. MINOR'S CASE HERE INVOLVED, HE WAS EXEMPTED FROM THE PROVISIONS OF THE LEAVE ACT WHEN HE ACCEPTED HIS PRESIDENTIAL APPOINTMENT, EFFECTIVE FEBRUARY 15, 1956, AND THE ACT RESERVES TO HIM THE RIGHT TO RECEIVE PAYMENT UNTIL HIS FINAL SEPARATION FROM THE GOVERNMENT SERVICE. TO HOLD OTHERWISE, AS CONTENDED FOR IN YOUR DEPARTMENT'S LETTER WOULD GIVE NO EFFECT TO SECTION 2 (B). FURTHERMORE, SECTION 2 (A) REQUIRES THAT SUCH LEAVE "SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 * * *.' UNDER THE 1944 ACT A LUMP-SUM LEAVE PAYMENT MAY BE MADE ONLY WHEN THE EMPLOYEE "IS SEPARATED FROM THE SERVICE.' THERE WAS NO SEPARATION FROM THE SERVICE IN THIS CASE; HENCE, THERE WAS NO LEGAL BASIS FOR ANY LUMP-SUM LEAVE PAYMENT.

THE CASE OF THE EMPLOYEE WHO LEFT THE DEPARTMENT OF JUSTICE TO BECOME A JUDGE'S SECRETARY COVERED IN 33 COMP. GEN. 622--- THE CASE WHICH THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL BELIEVES SHOULD APPLY HERE--- IS DISTINGUISHABLE FROM THOSE EMPLOYEES RECEIVING PRESIDENTIAL APPOINTMENTS, BECAUSE JUDGE'S SECRETARIES ARE NOT SPECIFICALLY EXEMPTED FROM THE PROVISIONS OF THE LEAVE ACT BUT IN SOME INSTANCES ARE NOT ENTITLED TO ITS PROVISIONS BY REASON OF THE FACT THAT ADMINISTRATIVELY SOME JUDGE'S SECRETARIES DO NOT MAINTAIN ANY LEAVE RECORDS; THAT IS TO SAY, THEY TRANSFER FROM ONE LEAVE SYSTEM TO A POSITION UNDER WHICH NO LEAVE SYSTEM IS APPLICABLE, WHICH TRANSFER IS CONSIDERED, UNDER SUCH CIRCUMSTANCES, AS A SEPARATION WITHIN THE MEANING OF THE LUMP SUM LEAVE ACT.

ACCORDINGLY, WE ARE REQUIRED BY THE TERMS OF THE LEAVE ACT TO HOLD THAT THE LUMP-SUM LEAVE PAYMENT TO MR. MINOR AT THE TIME OF HIS RESIGNATION WAS NOT AUTHORIZED AND THAT THE AUDIT INFORMAL INQUIRY WAS CORRECT AND PROPER.