B-130769, MAR. 15, 1957

B-130769: Mar 15, 1957

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PATRICK WAS SEPARATED FROM THE WAR ASSETS ADMINISTRATION. AN AMENDED NOTICE WAS ISSUED MARCH 25. SHE WAS REEMPLOYED BY THE BUREAU OF AGRICULTURAL ECONOMICS. WHEN SHE WAS RETIRED BECAUSE OF DISABILITY. YOU SAY THAT THE TRANSFER THEREOF TO HER CREDIT INCIDENT TO REEMPLOYMENT BY THE DEPARTMENT OF AGRICULTURE HAS BEEN SUSPENDED PENDING DETERMINATION BY OUR OFFICE WHETHER SUCH TRANSFER IS BARRED BY THE CIVIL SERVICE REGULATIONS IN FORCE AT THAT TIME. THOSE REGULATIONS PERMITTED A TRANSFER OF SUCH LEAVE ONLY IF THERE WAS A BREAK IN SERVICE AFTER SEPARATION BY REDUCTION IN FORCE OF NOT MORE THAN ONE YEAR FROM THE NOTICE OF THE REDUCTION IN FORCE. SHE WAS IN A LEAVE WITHOUT PAY STATUS FOR 118 HOURS UNTIL HER RETURN TO DUTY.

B-130769, MAR. 15, 1957

TO MISS FRANCES W. BREWER, AUTHORIZED CERTIFYING OFFICER, AGRICULTURAL MARKETING SERVICE:

YOUR LETTER OF JANUARY 29, 1957, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED IN THE GROSS AMOUNT OF $228.92 TO MRS. SADELIA M. PATRICK A FORMER EMPLOYEE OF THE AGRICULTURAL MARKETING SERVICE.

MRS. PATRICK WAS SEPARATED FROM THE WAR ASSETS ADMINISTRATION, NASHVILLE, TENNESSEE, UNDER A REDUCTION IN FORCE NOTICE DATED MARCH 5, 1948, TERMINATION TO BE EFFECTIVE APRIL 16, 1948. AN AMENDED NOTICE WAS ISSUED MARCH 25, 1948, EXTENDING THE TERMINATION DATE TO THE CLOSE OF BUSINESS APRIL 30, 1948. SHE WAS REEMPLOYED BY THE BUREAU OF AGRICULTURAL ECONOMICS, DEPARTMENT OF AGRICULTURE, EFFECTIVE MARCH 7, 1949, WITHOUT ANY INTERVENING FEDERAL SERVICE, AND CONTINUED TO SERVE IN THAT DEPARTMENT UNTIL JUNE 11, 1956, WHEN SHE WAS RETIRED BECAUSE OF DISABILITY.

AT THE TIME OF HER SEPARATION FROM THE WAR ASSETS ADMINISTRATION THIS EMPLOYEE HAD 112 HOURS SICK LEAVE TO HER CREDIT. YOU SAY THAT THE TRANSFER THEREOF TO HER CREDIT INCIDENT TO REEMPLOYMENT BY THE DEPARTMENT OF AGRICULTURE HAS BEEN SUSPENDED PENDING DETERMINATION BY OUR OFFICE WHETHER SUCH TRANSFER IS BARRED BY THE CIVIL SERVICE REGULATIONS IN FORCE AT THAT TIME. THOSE REGULATIONS PERMITTED A TRANSFER OF SUCH LEAVE ONLY IF THERE WAS A BREAK IN SERVICE AFTER SEPARATION BY REDUCTION IN FORCE OF NOT MORE THAN ONE YEAR FROM THE NOTICE OF THE REDUCTION IN FORCE.

YOU POINT OUT THAT AS OF AUGUST 3, 1955, MRS. PATRICK HAD EXHAUSTED ALL LEAVE TO HER CREDIT PLUS 240 HOURS SICK LEAVE ADVANCED TO HER. SHE WAS IN A LEAVE WITHOUT PAY STATUS FOR 118 HOURS UNTIL HER RETURN TO DUTY, SEPTEMBER 10, 1955. AT THE TIME OF SEPARATION ON DISABILITY RETIREMENT, JUNE 11, 1956, MRS. PATRICK HAD AGAIN EXHAUSTED ALL LEAVE TO HER CREDIT AND WAS INDEBTED TO THE GOVERNMENT FOR 240 HOURS ADVANCE SICK LEAVE. THUS, YOU RAISE THE FURTHER QUESTION OF WHETHER, IN ANY EVENT, THE 112 HOURS CAN BE RECREDITED AND SUBSTITUTED FOR A PORTION OF THE LEAVE WITHOUT PAY, WHEN AT THE TIME OF TERMINATION SHE WAS INDEBTED FOR 240 HOURS ADVANCE SICK LEAVE.

SECTION 30.408 OF THE CIVIL SERVICE REGULATIONS IN FORCE AT THE TIME OF THIS EMPLOYEE'S SEPARATION AND REEMPLOYMENT PROVIDED:

"SEC. 30.408 DISPOSITION OF SICK LEAVE ACCOUNT ON TRANSFER. WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION WITH NO BREAK IN SERVICE, OR A BREAK OF LESS THAN 90 DAYS, OR WITHIN ONE YEAR AFTER NOTICE OF PROPOSED SEPARATION BY REDUCTION IN FORCE OR DISPLACEMENT ORDER OF THE CIVIL SERVICE COMMISSION, HIS SICK LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS:

"/A) IF THE POSITION IS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO THE EMPLOYEE. * * *"

THE ISSUE HERE RAISED IS WHETHER THE ONE YEAR IN THE ABOVE-QUOTED REGULATIONS WOULD RUN IN THIS CASE FROM THE ORIGINAL NOTICE OF MARCH 5, 1948, OR THE LATER AMENDED NOTICE OF MARCH 25, 1948. THE RECORD SHOWS THAT AN INTERPRETATION IN FAVOR OF THE LATER DATE WAS MADE BY THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, IN LETTER OF JULY 19, 1956, ADDRESSED TO HONORABLE J. PERCY PRIEST, HOUSE OF REPRESENTATIVES. OUR OFFICE CONCURS IN THAT DETERMINATION. ACCORDINGLY, WE OFFER NO OBJECTION TO THE TRANSFER OF THE 112 HOURS OF SICK LEAVE TO MRS. PATRICK'S CREDIT WITH THE AGRICULTURAL AGENCY.

CONCERNING THE SECOND QUESTION, SECTION 204 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, AUTHORIZES THE ADVANCE OF NOT TO EXCEED 30 DAYS OF SICK LEAVE. SECTION 30.206, L-1-26, OF THE FEDERAL PERSONNEL MANUAL PROVIDES THAT NO REFUND SHALL BE REQUIRED OF UNEARNED SICK LEAVE AND THAT REDUCTION THEREFOR SHALL NOT BE MADE FROM ANY SALARY DUE HIM AT SEPARATION DATE WHEN THE EMPLOYEE IS SEPARATED BY RETIREMENT FOR DISABILITY.

AS THE TRANSFERRED SICK LEAVE IN THIS CASE IS LESS THAN THE AMOUNT OF LEAVE WITHOUT PAY TAKEN BY THIS EMPLOYEE BEFORE RETIREMENT, THE RECREDITING OF SUCH SICK LEAVE WOULD NOT APPEAR TO LESSEN THE NECESSITY FOR THE ADVANCE OF 240 HOURS OF SICK LEAVE, BUT WOULD HAVE REDUCED THE AMOUNT OF LEAVE WITHOUT PAY. ACCORDINGLY, THE VOUCHER PROPOSING PAYMENT FOR THE TRANSFERRED SICK LEAVE OF 112 HOURS AND THE 8 HOURS SICK LEAVE PLUS 12 HOURS ANNUAL LEAVE ACCRUED DURING THE PERIOD OF SUCH LEAVE, IN LIEU OF AN EQUAL NUMBER OF HOURS OF LEAVE WITHOUT PAY, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.