B-13910, APRIL 22, 1941, 20 COMP. GEN. 661

B-13910, APRIL 22, 1941, 20 COMP. GEN. 661

LEAVES OF ABSENCE - ACT, MARCH 14, 1936 - TEMPORARY EMPLOYEES A SERIES OF TEMPORARY APPOINTMENTS OR EXTENSIONS, EVEN THOUGH EXTENDING BEYOND 6 MONTHS, MAY BE CONSIDERED AS ONE TEMPORARY APPOINTMENT--- NOT TWO OR MORE TEMPORARY APPOINTMENTS--- FOR THE PURPOSE OF TRANSFERRING ACCRUED LEAVE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER IN THE SAME DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT WITHOUT BREAK IN SERVICE. 20 COMP. GEN. 332, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, APRIL 22, 1941:

I HAVE YOUR LETTER OF APRIL 2, 1941, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF DECEMBER 21, 1940 (20 COMP. GEN. 332), WITH REFERENCE TO THE STATUS, FOR LEAVE PURPOSES, OF TEMPORARY EMPLOYEES WHOSE APPOINTMENTS ARE EXTENDED BEYOND SIX MONTHS.

YOUR DECISION HOLDS (QUOTING FROM THE SYLLABUS):

"EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHOSE APPOINTMENTS ARE EXTENDED AT THE END OF 6 MONTHS, OR WHO ARE GIVEN NEW TEMPORARY APPOINTMENTS AT SUCH TIME, ARE TO BE REGARDED AS TEMPORARY EMPLOYEES FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE, AND SUCH A SERIES OF APPOINTMENTS OR EXTENSIONS IS TO BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING ACCRUED LEAVE CREDIT FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER.'

SECTION 15 OF EXECUTIVE ORDER NO. 8384 STATES THAT TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE INDEFINITE, EMERGENCY, PROBATIONARY, OR PERMANENT APPOINTMENTS IN THE SAME DEPARTMENT OR AGENCY, WITHOUT BREAK IN SERVICE, ARE ALLOWED TO TRANSFER ANNUAL LEAVE EARNED UNDER THEIR TEMPORARY APPOINTMENTS. SECTION 18 OF EXECUTIVE ORDER NO. 8385 IS TO THE SAME EFFECT, AS TO SICK LEAVE, AND THE SECTION ADDS: "* * * BUT (LEAVE) SHALL NOT BE TRANSFERABLE ELSEWHERE UNDER ANY RCUMSTANCES.' IN 17 COMP. GEN. 830, IT WAS HELD THAT LEAVE EARNED UNDER A PERMANENT POSITION MAY NOT BE TRANSFERRED TO A TEMPORARY POSITION, FOR THE APPARENT REASON THAT UNDER NO CIRCUMSTANCES MAY LEAVE BE TRANSFERRED TO A TEMPORARY POSITION. SEE ALSO 18 COMP. GEN. 317. IN 18 COMP. GEN. 596, THERE WAS CONSIDERED AN APPEAL BY THE SECRETARY OF THE INTERIOR FROM PREAUDIT DIFFERENCE STATEMENT OF YOUR OFFICE, WHICH WAS STATED IN THE DECISION AS FOLLOWS:

"NO PROVISION HAS BEEN MADE IN THE LAW OR THE UNIFORM ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1938, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, AND AMENDMENT THERETO, EXECUTIVE ORDER NO. 7845, DATED MAY 9, 1938, FOR TRANSFERRING LEAVE CREDIT UPON TRANSFER OR REAPPOINTMENT OF AN EMPLOYEE IN A TEMPORARY STATUS. 17 COMP. GEN. 830; A-98177, OCTOBER 6, 1938.' THE PREAUDIT DIFFERENCE HAD BEEN TAKEN IN A CASE WHERE AN EMPLOYEE HAD BEEN APPOINTED FOR THREE MONTHS, UNDER SECTION 4 OF RULE VIII OF THE CIVIL SERVICE RULES, AND THE APPOINTMENT HAD BEEN EXTENDED FOR A PERIOD OF THREE MONTHS, WITH CIVIL SERVICE COMMISSION APPROVAL. IN OVERRULING THE PREAUDIT DIFFERENCE STATEMENT, THE DECISION HELD:

"THE CITED DECISIONS DO NOT SUPPORT THE PREAUDIT ACTION TAKEN. DECISION OF THIS OFFICE HAS SPECIFICALLY APPLIED THE CURRENT LEAVE LAW AND REGULATIONS TO A CASE SUCH AS HERE PRESENTED OF AN EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT OF 3 MONTHS WHICH HAS BEEN EXTENDED WITHOUT BREAK IN SERVICE FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 4 OF RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS * * *.

"* * * THAT IS TO SAY, FOR LEAVE PURPOSES TEMPORARY SERVICES FOR A PERIOD OF 6 MONTHS UNDER A 3 MONTHS' INITIAL APPOINTMENT WHICH IS EXTENDED FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 2 OF RULE VIII OF CIVIL SERVICE LAWS AND REGULATIONS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT- -- TEMPORARY EMPLOYEES BEING DEFINED IN THE LEAVE REGULATIONS AS "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.'

THIS DECISION SEEMS TO HOLD THAT, WHILE THE PREAUDIT DIFFERENCE AS STATED MAY HAVE BEEN GOOD LAW IN GENERAL, IT DID NOT APPLY TO TEMPORARY APPOINTMENTS AGGREGATING NO MORE THAN SIX MONTHS. NO EXCEPTION WAS TAKEN TO THE PRIOR DECISIONS INVOLVED, SUCH AS 17 COMP. GEN. 380 AND 18 COMP. GEN. 317; RATHER, THE DECISION WAS NARROWED TO AN EMPLOYMENT NOT EXCEEDING SIX MONTHS IN DURATION.

FOLLOWING THE DECISION IN 18 COMP. GEN. 596, AND AS APPLIED IN 18 COMP. GEN. 853, IT WAS THE RULE IN THIS DEPARTMENT THAT AN EMPLOYEE WHOSE ORIGINAL TEMPORARY APPOINTMENT WAS EXTENDED FOR AN ADDITIONAL DEFINITE PERIOD, THE AGGREGATE OF BOTH PERIODS NOT EXCEEDING SIX MONTHS, COULD BE DEEMED AS HOLDING ONE TEMPORARY POSITION, FOR LEAVE PURPOSES; BUT THAT A TEMPORARY EMPLOYEE COULD NOT CARRY FORWARD LEAVE TO ANY EXTENSION FOR AN ADDITIONAL DEFINITE PERIOD OF SIX MONTHS OR LESS WHICH CAUSED HIS AGGREGATE SERVICE TO EXCEED SIX MONTHS. THIS RESULT, IT IS BELIEVED, IS IN LINE WITH THE PROVISIONS OF SECTIONS 15 AND 18 OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY, IN THAT, TO PERMIT THE TRANSFER OF LEAVE FROM ONE PERIOD OF SIX MONTHS OR LESS TO A SECOND APPOINTMENT FOR SIX MONTHS OR LESS WOULD CONSTITUTE A TRANSFER OF LEAVE FROM ONE TEMPORARY POSITION TO ANOTHER, FOR WHICH THERE IS NO PROVISION IN THE LEAVE REGULATIONS. IN FACT, THE NECESSARY IMPLICATION IS THAT SUCH TRANSFERS OF LEAVE ARE NOT PERMITTED. IN 20 COMP. GEN. 223, IT IS HELD AS FOLLOWS:

"IN OTHER WORDS, WHILE A SERIES OF TEMPORARY APPOINTMENTS FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING THE LEAVE CREDIT OF A TEMPORARY EMPLOYEE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER, THE STATUS OF THE EMPLOYEE IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE AS A RESULT OF THE FACT THAT THE AGGREGATE PERIOD OF SERVICE UNDER THE SERIES OF SUCH TEMPORARY APPOINTMENTS EXCEEDED 6 MONTHS. NOTWITHSTANDING THE NUMBER OF SUCCESSIVE TEMPORARY APPOINTMENTS, THE FACT REMAINS THAT THE EMPLOYEE WAS APPOINTED FOR "DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS' WITHIN THE MEANING OF THE DEFINITION OF A TEMPORARY EMPLOYEE, AS PRESCRIBED IN THE REGULATIONS.' ( ITALICS SUPPLIED.)

IT IS APPARENT, FROM THIS DECISION, THAT A PERSON WHO HAS SERVED FOR SIX MONTHS UNDER DEFINITE LIMITATION HAS SERVED A TEMPORARY APPOINTMENT. HE RECEIVES A FURTHER APPOINTMENT, OR A SO-CALLED EXTENSION, FOR A PERIOD OF SIX MONTHS, HE IS, IN FACT, RECEIVING A NEW TEMPORARY APPOINTMENT, SINCE IT IS CLEAR THAT AN APPOINTMENT FOR A PERIOD OF TWELVE MONTHS CANNOT BE REGARDED AS A SINGLE TEMPORARY APPOINTMENT.

THE QUESTION ARISES AS TO WHETHER YOU INTENDED TO HOLD, IN 20 COMP. GEN. 332, THAT LEAVE MAY BE TRANSFERRED BY AN EMPLOYEE FROM ONE TEMPORARY APPOINTMENT TO ANOTHER, WHEN THE AGGREGATE SERVICE UNDER BOTH APPOINTMENTS EXCEEDS SIX MONTHS.

YOUR RECONSIDERATION OF THIS QUESTION WILL BE APPRECIATED.

IN THE DECISION OF DECEMBER 21, 1940, 20 COMP. GEN. 332, CITED BY YOU, WHICH GAVE CONSIDERATION TO, AND HARMONIZED, PRIOR DECISIONS RELATING TO THE SAME SUBJECT, THERE WERE STATED AND ANSWERED THREE QUESTIONS, AS FOLLOWS: QUESTIONS:

1. ARE EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS, WHOSE APPOINTMENTS ARE EXTENDED AT THE EXPIRATION OF 6 MONTHS, TO BE CONSIDERED AS TEMPORARY OR PERMANENT FOR LEAVE PURPOSES, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE?

2. ARE EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHO ARE REAPPOINTED OR GIVEN NEW TEMPORARY APPOINTMENTS AT THE EXPIRATION OF 6 MONTHS TO BE CONSIDERED AS TEMPORARY OR PERMANENT FOR LEAVE PURPOSES, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE?

3. IF SUCH EMPLOYEES ARE TEMPORARY FOR LEAVE PURPOSES, MAY THE SERIES OF APPOINTMENTS OR EXTENSIONS BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING CREDIT FOR ACCRUED LEAVE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE? ANSWERS:

EMPLOYEES OF THE CLASS COVERED BY YOUR QUESTIONS ONE AND TWO ARE TO BE REGARDED AS TEMPORARY FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE, PROVIDED, OF COURSE, THAT THE SERVICE IS CONTINUOUS.

QUESTION THREE IS ANSWERED IN THE AFFIRMATIVE.

WHILE THE PROVISIONS OF THE EXECUTIVE ORDER PROMULGATING THE ANNUAL AND SICK LEAVE REGULATIONS UNDER THE TERMS OF THE ANNUAL AND SICK LEAVE STATUTES CITED IN YOUR LETTER DO NOT EXPRESSLY COVER THE POINT RAISED, THEY DO NOT CONTAIN ANYTHING TO PRECLUDE THE ADOPTION OF THE RULES SET FORTH IN THE DECISION, SUPRA--- THERE BEING NO INTENT MANIFESTED BY SAID REGULATIONS TO REQUIRE THE FORFEITING OF ANY ACCRUED AND UNUSED LEAVE IN RESPECT OF ANY 6 MONTHS' PERIOD UNDER THE CIRCUMSTANCES STATED. THEREFORE, UNLESS AND UNTIL THE REGULATIONS SPECIFICALLY PROVIDE OTHERWISE THE RULES ABOVE QUOTED FROM THE DECISION OF DECEMBER 21, 1940, ARE FOR FOLLOWING IN COMPUTING THE LEAVE OF TEMPORARY EMPLOYEES.

REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER YOU ARE ADVISED THAT THE DECISION IN QUESTION HELD THAT A SERIES OF TEMPORARY APPOINTMENTS OR EXTENSIONS, EVEN THOUGH EXTENDING BEYOND 6 MONTHS, MAY BE CONSIDERED AS ONE TEMPORARY APPOINTMENT--- NOT TWO OR MORE TEMPORARY APPOINTMENTS, BY DIVIDING THE ENTIRE PERIOD INTO 6 MONTHS OR LESS, AS SUGGESTED IN YOUR LETTER--- FOR THE PURPOSE OF TRANSFERRING CREDIT FOR ACCRUED LEAVE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER IN THE SAME DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT WITHOUT BREAK IN SERVICE. THE PRACTICE OF THE DEPARTMENT OF AGRICULTURE SHOULD BE ADJUSTED ACCORDINGLY.