B-130551, MAR. 20, 1957

B-130551: Mar 20, 1957

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THE ASSISTANT SECRETARY OF COMMERCE (ADMINISTRATION) REQUESTED OUR DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN INCIDENT TO THE PROPOSED DISENROLLMENT OF ADMINISTRATIVE ENROLLEES OF THE UNITED STATES MARITIME SERVICE. THE LETTER IS. IN POSITIONS WHICH ARE COMPENSATED UNDER THE CLASSIFICATION ACT OR OTHER APPROPRIATE AUTHORITY E.G. WHICH ARE SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951. THE LETTER STATES THAT THE ENROLLEES IN QUESTION HAVE SUBSTANTIAL BALANCES OF LEAVE (ANNUAL ACCUMULATED UNDER THE SYSTEM OF LEAVE PRESCRIBED BY REGULATIONS OF THE MARITIME ADMINISTRATION. IT IS REPORTED THAT THE NECESSITY OF MAKING LUMP-SUM PAYMENTS TO PERSONS DISENROLLED AND IMMEDIATELY EMPLOYED IN A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 UNDER THE CONTEMPLATED PLAN WOULD MAKE IMPOSSIBLE THE ACCOMPLISHMENT OF THE MARITIME TRAINING PROGRAM WHICH THE CONGRESS HAS PROVIDED A LIMITED AMOUNT OF FUNDS IN THE ACT OF JUNE 20.

B-130551, MAR. 20, 1957

TO THE SECRETARY OF COMMERCE:

ON JANUARY 31, 1957, THE ASSISTANT SECRETARY OF COMMERCE (ADMINISTRATION) REQUESTED OUR DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN INCIDENT TO THE PROPOSED DISENROLLMENT OF ADMINISTRATIVE ENROLLEES OF THE UNITED STATES MARITIME SERVICE.

THE LETTER IS, IN PART, AS FOLLOWS:

"AS YOU KNOW, THE LEGAL STATUS OF THESE ENROLLEES HAS BEEN UNDER CONSIDERATION FOR SOME TIME BY YOUR OFFICE, THE DEPARTMENT OF JUSTICE, THE CIVIL SERVICE COMMISSION, AND THIS DEPARTMENT. IN ORDER TO REGULARIZE AND CLARIFY THE EMPLOYMENT STATUS OF THESE PERSONS THE DEPARTMENT NOW INTENDS TO SEEK APPROPRIATE LEGISLATION TO THE EXTENT NECESSARY TO EFFECT AN EQUITABLE ADJUSTMENT. TO THIS END THE DEPARTMENT HAS BEEN EXPLORING WITH THE CIVIL SERVICE COMMISSION THE PRACTICABILITY OF ACCOMPLISHING SOME OF THE DESIRED CHANGES BY ADMINISTRATIVE ACTION RATHER THAN BY LEGISLATION.

"IN OUR DISCUSSIONS WITH THE CIVIL SERVICE COMMISSION THE DEPARTMENT HAS TENTATIVELY AGREED, SUBJECT TO CERTAIN OTHER ADMINISTRATIVE AND LEGISLATIVE ACTION, AND SUBJECT TO YOUR ADVICE ON THE QUESTIONS PRESENTED IN THIS LETTER, TO DISENROLL CERTAIN ADMINISTRATIVE ENROLLEES AND IMMEDIATELY THEREAFTER TO EMPLOY THEM UNDER REGULAR CIVIL SERVICE PROCEDURES, WITHOUT A BREAK IN SERVICE, IN POSITIONS WHICH ARE COMPENSATED UNDER THE CLASSIFICATION ACT OR OTHER APPROPRIATE AUTHORITY E.G., IN WAGE- BOARD POSITIONS), AND WHICH ARE SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.'

THE LETTER STATES THAT THE ENROLLEES IN QUESTION HAVE SUBSTANTIAL BALANCES OF LEAVE (ANNUAL ACCUMULATED UNDER THE SYSTEM OF LEAVE PRESCRIBED BY REGULATIONS OF THE MARITIME ADMINISTRATION, WHICH AT THE PRESENT TIME PROVIDE FOR A LUMP-SUM PAYMENT FOR ACCUMULATED LEAVE UPON DISENROLLMENT. IT IS REPORTED THAT THE NECESSITY OF MAKING LUMP-SUM PAYMENTS TO PERSONS DISENROLLED AND IMMEDIATELY EMPLOYED IN A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 UNDER THE CONTEMPLATED PLAN WOULD MAKE IMPOSSIBLE THE ACCOMPLISHMENT OF THE MARITIME TRAINING PROGRAM WHICH THE CONGRESS HAS PROVIDED A LIMITED AMOUNT OF FUNDS IN THE ACT OF JUNE 20, 1956, 70 STAT. 318. ALSO, IT IS REPORTED THAT THE PERSONS TO BE DISENROLLED AND THEN EMPLOYED WITHOUT A BREAK IN SERVICE, FOR THE MOST PART, HAVE A CONSIDERABLE NUMBER OF YEARS OF SERVICE AS ADMINISTRATIVE ENROLLEES BUT WOULD HAVE LITTLE OR NO LEAVE AVAILABLE UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 UNLESS THEIR PREVIOUS LEAVE CAN BE MADE AVAILABLE TO THEM. WE ARE FURTHER ADVISED THAT UPON DISENROLLMENT SOME ENROLLEES WOULD BE IMMEDIATELY APPOINTED TO POSITIONS WITH SUBSTANTIALLY THE SAME DUTIES, COMPENSATED "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES," RATHER THAN UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THAT A PROBLEM PERTAINING TO SALARY-SAVING HAS ARISEN IN CONNECTION WITH THE CHANGE OF POSITIONS.

THE LETTER POINTS OUT THAT IN THE SITUATION DESCRIBED ABOVE THE STATUS OF ADMINISTRATIVE ENROLLEES AS SUCH WOULD BE TERMINATED PRIOR TO THE PROPOSED APPOINTMENT ACTION. IT IS FURTHER POINTED OUT THAT IN EVERY CASE OF DISENROLLMENT AND SUBSEQUENT EMPLOYMENT WITHOUT A BREAK IN SERVICE, THE PERSON CONCERNED WOULD HAVE NO SUBSTANTIAL CHANGE IN DUTIES.

IN CONNECTION WITH THE FOREGOING, THE FOLLOWING QUESTIONS ARE PRESENTED FOR OUR CONSIDERATION:

"1. WOULD YOUR OFFICE BE REQUIRED TO OBJECT TO THE DEPARTMENT'S REVISING, BY ADMINISTRATIVE ACTION, THE LEAVE REGULATIONS APPLICABLE TO ADMINISTRATIVE ENROLLEES OF THE U.S. MARITIME SERVICE TO PROVIDE (A) THAT UPON DISENROLLMENT AND IMMEDIATE EMPLOYMENT WITHOUT A BREAK IN SERVICE IN A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT THE LEAVE BALANCE OF THE FORMER ADMINISTRATIVE ENROLLEE WOULD BE TRANSFERRED ON AN ADJUSTED BASIS UNDER SECTION 205 (E) OF THE ANNUAL AND SICK LEAVE ACT AND CIVIL SERVICE COMMISSION REGULATIONS TO THE EXTENT PERMITTED BY SUCH ACT AND REGULATIONS, AND (B) THAT ANY EXCESS ANNUAL LEAVE WHICH COULD NOT BE TRANSFERRED WOULD BE HELD IN ABEYANCE UNTIL THE FORMER ENROLLEE IS SEPARATED FROM THE EMPLOYMENT OF THE MARITIME DMINISTRATION?

"2. IN THE EVENT YOU ARE REQUIRED TO OBJECT TO 1 (A), WOULD THERE BE ANY OBJECTION TO AMENDMENT OF THE LEAVE REGULATIONS APPLICABLE TO U.S. MARITIME SERVICE ADMINISTRATIVE ENROLLEES TO PROVIDE THAT UPON DISENROLLMENT AND IMMEDIATE EMPLOYMENT, WITHOUT A BREAK IN SERVICE, IN A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT, THAT ALL ANNUAL LEAVE WILL BE HELD IN ABEYANCE TO BE PAID IN A LUMP-SUM WHEN THE FORMER ADMINISTRATIVE ENROLLEE IS SEPARATED FROM THE MARITIME ADMINISTRATION, UNLESS LEGISLATION IS ENACTED AT A FUTURE DATE WHICH WOULD MAKE POSSIBLE THE TRANSFER OR PAYMENT FOR ANNUAL LEAVE AT AN EARLIER DATE?

"3. WOULD YOUR OFFICE OBJECT TO THIS DEPARTMENT'S PROVIDING BY ADMINISTRATIVE REGULATION THAT THE TOTAL AMOUNT OF PAY AND THE VALUE OF SUBSISTENCE AND QUARTERS ALLOWANCES RECEIVED BY ADMINISTRATIVE ENROLLEES AT THE TIME OF DISENROLLMENT IMMEDIATELY PRECEDING APPOINTMENT TO A WAGE SCHEDULE POSITION SHALL BE USED AS A BASIS FOR FIXING THE EMPLOYEE'S SALARY IN THE WAGE SCHEDULE POSITION, THEREBY SAVING FOR THE FORMER ADMINISTRATIVE ENROLLEE THE VALUE OF SUCH PAY AND ALLOWANCES UPON INITIAL APPOINTMENT TO A WAGE SCHEDULE POSITION?

SECTION 205 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, 67 STAT. 136 PROVIDES:

"/E) 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.'

IN OUR DECISION OF JULY 18, 1955, B-124158, IN DETERMINING WHETHER UPON CONVERSION OF POSITIONS OF ADMINISTRATIVE ENROLLEES TO POSITIONS SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, SUCH ENROLLEES COULD BE PAID IN A LUMP SUM FOR ANNUAL LEAVE ACCUMULATED AS ENROLLEES, WE STATED:

"IT IS EVIDENT THAT IF THE ENROLLEES IN QUESTION (ADMINISTRATIVE ENROLLEES) DO COME WITHIN THE PURVIEW OF SECTION 205 (E) OF THE 1951 LEAVE ACT AND THERE IS NO BREAK IN SERVICE INCIDENT TO THE CHANGE IN THEIR EMPLOYMENT STATUS, THEY MAY NOT BE PAID A LUMP SUM FOR THEIR ACCUMULATED AND ACCRUED ANNUAL LEAVE. INSTEAD, THE LEAVE TO THEIR CREDIT AS ADMINISTRATIVE ENROLLEES WOULD BE FOR TRANSFER TO THEIR NEW POSITIONS ON AN ADJUSTED BASIS.'

WE HELD IN THAT DECISION, HOWEVER, THAT ADMINISTRATIVE ENROLLEES OF THE UNITED STATES MARITIME SERVICE MAY BE PAID A LUMP SUM PAYMENT UPON THEIR BECOMING SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. THUS, IN EFFECT WE HELD THAT SECTION 205 (E) WOULD NOT BE FOR APPLICATION TO ADMINISTRATIVE ENROLLEES INCIDENT TO THEIR DISENROLLMENT AND IMMEDIATE EMPLOYMENT IN POSITIONS SUBJECT TO THE 1951 LEAVE ACT. IT FOLLOWS, THEREFORE, THAT UPON THE DISENROLLMENT OF AN ADMINISTRATIVE ENROLLEE AND HIS IMMEDIATE EMPLOYMENT WITHOUT A BREAK IN SERVICE IN A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, THERE WOULD BE NO AUTHORITY UNDER SECTION 205 (E) OF THAT ACT, AND THE REGULATIONS ISSUED PURSUANT THERETO, TO TRANSFER, ON AN ADJUSTED BASIS, THE ANNUAL LEAVE ACCUMULATED BY AN ENROLLEE IN THAT POSITION (ENROLLEE POSITION) TO HIS CREDIT IN A POSITION UNDER THE 1951 LEAVE ACT. QUESTION 1 (A) IS ANSWERED ACCORDINGLY.

INASMUCH AS THE POSITION OF ADMINISTRATIVE ENROLLEE IS BEING ABOLISHED, THE NUMBER OF DAYS ANNUAL LEAVE FOR WHICH AN ADMINISTRATIVE ENROLLEE WOULD BE ENTITLED TO A LUMP-SUM PAYMENT AS WELL AS THE RATE AT WHICH PAYABLE WOULD BE DEFINITELY FIXED AS OF THE DATE SUCH ENROLLEE IS DISENROLLED. ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, IT APPEARS THAT ANY AMOUNT DUE SUCH ENROLLEE FOR A LUMP-SUM LEAVE PAYMENT WOULD BE AN OBLIGATION OF THE FISCAL YEAR IN WHICH THE ENROLLEE WAS DISENROLLED AND PAYABLE ONLY FROM SUCH FISCAL YEAR APPROPRIATION. MOREOVER, EVEN IF IT BE HELD THAT THE LUMP-SUM LEAVE PAYMENTS IN QUESTION ARE PAYABLE FROM A PROPER FUTURE FISCAL YEAR APPROPRIATION, THERE IS NO ASSURANCE THAT SUCH AN APPROPRIATION WOULD EXIST AT THE TIME THE FORMER ENROLLEE IS SEPARATED FROM THE MARITIME ADMINISTRATION. WHILE THE MARITIME REGULATIONS COULD BE AMENDED SO AS NOT TO REQUIRE A LUMP-SUM LEAVE PAYMENT UPON DISENROLLMENT THE RESULT MIGHT WELL BE TO REQUIRE A FORFEITURE OF THE LEAVE. SEE GENERALLY 33 COMP. GEN. 85, 88; B-82980, MARCH 15, 1950. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE MATTER OF HOLDING THE LEAVE IN ABEYANCE AS SET FORTH IN QUESTIONS 1 (B) AND 2 OF YOUR DEPARTMENT'S LETTER SHOULD BE PRESENTED TO THE CONGRESS. UNTIL THE MATTER IS RESOLVED BY LEGISLATION, WE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED AMENDMENT TO THE MARITIME REGULATIONS.

CONCERNING YOUR THIRD QUESTION, SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082, IS, IN PART, AS FOLLOWS:

"* * * PROVIDED, THAT THE COMPENSATION OF SUCH EMPLOYEES (PREVAILING RATE EMPLOYEES) SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES: *

THE QUOTED PROVISO DOES NOT REQUIRE THAT THE COMPENSATION OF EMPLOYEES WITHIN ITS PURVIEW BE FIXED IN EVERY CASE TO CONFORM EXACTLY WITH PREVAILING LOCALITY WAGE RATES. THE PROVISO REQUIRES THAT THE WAGES BE FIXED AND ADJUSTED "AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES.' IN OUR VIEW THE QUESTION WHETHER IN ANY PARTICULAR CASE THE WAGE PAID A PREVAILING RATE EMPLOYEE IS "CONSISTENT WITH THE PUBLIC INTEREST" IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND WHEN SUCH DETERMINATION IS MADE IT ORDINARILY WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF SOME COMPELLING REASON. FURTHER, WHETHER THIS DETERMINATION IS IN AN INDIVIDUAL CASE OR BY A GENERAL REGULATION IS IMMATERIAL. CF. 34 COMP. GEN. 563. WE FEEL, HOWEVER, ON THE BASIS OF THE FACTS NOW IN OUR POSSESSION, THAT THE INCLUSION IN SUCH RATES OF THE VALUE OF SUBSISTENCE AND QUARTERS ALLOWANCES RECEIVED BY THE ENROLLEES MAY CAUSE THE RATES FIXED TO BE SO MUCH IN EXCESS OF THE PREVAILING RATES AS TO RAISE A SERIOUS DOUBT AS TO WHETHER FIXING THE RATES UPON THE BASIS INDICATED MAY BE SAID TO BE IN THE PUBLIC INTEREST. ACCORDINGLY, WE SUGGEST THAT THIS MATTER ALSO BE RESOLVED BY LEGISLATION. YOUR THIRD QUESTION IS ANSWERED ACCORDINGLY.