B-143750, SEPTEMBER 14, 1960, 40 COMP. GEN. 164

B-143750: Sep 14, 1960

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OFFICERS WHO SUBSEQUENTLY ARE APPOINTED TO EXEMPTED POSITIONS. - WHICH IS EXEMPTED FROM THE 1951 ACT. - IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE. THE OFFICER WILL NOT LOSE OR FORFEIT THE ANNUAL LEAVE TO HIS CREDIT AND. OLSEN WAS SWORN IN AS A COMMISSIONER OF THE ATOMIC ENERGY COMMISSION UNDER PRESIDENTIAL APPOINTMENT. WHERE THERE WAS NO LEAVE SYSTEM. WAS ENTITLED TO LUMP -SUM PAYMENT FOR ANNUAL LEAVE. GEN. 622 WAS PREDICATED UPON THE LOSS OR FORFEITURE OF EARNED ANNUAL LEAVE BECAUSE SUCH LEAVE COULD NOT BE TRANSFERRED UNDER SECTION 205 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. GEN. 85 CONCERNING LUMP-SUM PAYMENTS ALSO WAS PREDICATED UPON THE LOSS OR FORFEITURE OF SUCH LEAVE.

B-143750, SEPTEMBER 14, 1960, 40 COMP. GEN. 164

CIVILIAN PERSONNEL - PRESIDENTIAL APPOINTMENTS - LUMP-SUM LEAVE PAYMENT THE PROVISION IN SECTION 2 (A) OF THE ACT OF JULY 2, 1953, WHICH AMENDED SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061A (A), CONCERNING THE LIQUIDATION OF ACCRUED LEAVE OF OFFICERS EXEMPTED FROM THE ACT COVERS NOT ONLY THOSE OFFICERS OCCUPYING POSITIONS EXEMPTED ON THE DATE OF THE AMENDATORY ACT ( JULY 2, 1953), BUT, ALSO, OFFICERS WHO SUBSEQUENTLY ARE APPOINTED TO EXEMPTED POSITIONS; THEREFORE, AN OFFICER OR EMPLOYEE SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 WHO, WITHOUT A BREAK IN SERVICE, ACCEPTS A PRESIDENTIAL APPOINTMENT--- WHICH IS EXEMPTED FROM THE 1951 ACT--- IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE; HOWEVER, THE OFFICER WILL NOT LOSE OR FORFEIT THE ANNUAL LEAVE TO HIS CREDIT AND, UPON SEPARATION FROM THE SERVICE, MAY BE PAID FOR SUCH LEAVE IN ACCORDANCE WITH THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944.

TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, SEPTEMBER 14, 1960:

ON AUGUST 10, 1960, THE DEPUTY GENERAL MANAGER PRESENTED FOR OUR DECISION THE QUESTION WHETHER MR. LOREN K. OLSON MAY RECEIVE A LUMP-SUM PAYMENT FOR ANNUAL LEAVE UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE LETTER POINTS OUT THAT MR. OLSEN IN HIS CAPACITY AS GENERAL COUNSEL OF THE COMMISSION ACCUMULATED ANNUAL LEAVE UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061 ET SEQ. ON JUNE 22, 1960, HE RESIGNED AS GENERAL COUNSEL. THE NEXT DAY, NAMELY, JUNE 23, MR. OLSEN WAS SWORN IN AS A COMMISSIONER OF THE ATOMIC ENERGY COMMISSION UNDER PRESIDENTIAL APPOINTMENT. THE DEPUTY GENERAL MANAGER FEELS THAT OUR DECISION, 33 COMP. GEN. 622, MAY APPLY TO THE SITUATION HERE. IN THAT DECISION WE HELD THAT AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, WHO RESIGNED AND TRANSFERRED WITHOUT A BREAK IN SERVICE TO THE OFFICE OF THE U.S. DISTRICT JUDGE, WHERE THERE WAS NO LEAVE SYSTEM, WAS ENTITLED TO LUMP -SUM PAYMENT FOR ANNUAL LEAVE. HE ALSO DIRECTS OUR ATTENTION TO THE ANSWER TO QUESTION 3 IN OUR DECISION 33 COMP. GEN. 85 AT PAGE 88.

OUR DECISION IN 33 COMP. GEN. 622 WAS PREDICATED UPON THE LOSS OR FORFEITURE OF EARNED ANNUAL LEAVE BECAUSE SUCH LEAVE COULD NOT BE TRANSFERRED UNDER SECTION 205 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 138, 5 U.S.C. 2064. OUR ANSWER TO QUESTION 3 IN 33 COMP. GEN. 85 CONCERNING LUMP-SUM PAYMENTS ALSO WAS PREDICATED UPON THE LOSS OR FORFEITURE OF SUCH LEAVE.

SECTION 1 OF THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 67 STAT. 136, 5 U.S.C. 2061 (C) (1), AMENDING SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061 (C) (1) (A), READS IN PERTINENT PART AS FOLLOWS:

(C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT * * *:

(A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH THE 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; * * *

SECTION 2 (A) AND (B), 5 U.S.C. 2061A (A) AND (B), READS IN PERTINENT PART AS FOLLOWS:

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) * * * EXCEPT THAT THE PAYMENT * * * (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 * * *.

IN THE EVENT ANY SUCH EXEMPTED OFFICER, WITHOUT ANY BREAK IN THE CONTINUITY OF HIS SERVICE, AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICKLEAVE 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. (ITALICS SUPPLIED.)

IN OUR DECISION 33 COMP. GEN. 177 COVERING A SITUATION COMPARABLE WITH THAT HERE INVOLVED, WE CONCLUDED BY VIRTUE OF THE LANGUAGE OF SECTION 2 (A) AND THE EXPLANATION CONTAINED IN THE STATEMENTS OF THE MANAGERS ON THE PART OF THE HOUSE, COMMITTEE ON CONFERENCE, H. REPORT NO. 629, 83D CONGRESS, WHICH ACCOMPANIED H.R. 4654, LATER ENACTED AS PUBLIC LAW 102, EXCERPTS FROM WHICH ARE QUOTED IN 33 COMP. GEN. 177, THAT SECTION WAS INTENDED TO COVER NOT ONLY THOSE OFFICERS OCCUPYING POSITIONS EXEMPTED BY SAID ACT ON THE DATE OF ITS APPROVAL BUT, ALSO, OFFICERS WHO SUBSEQUENTLY ARE APPOINTED TO SUCH POSITIONS AND THAT PAYMENT FOR ANNUAL LEAVE WOULD NOT BE PROPER. IN B-127589 DATED APRIL 27, 1956, TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, COPY HEREWITH, WE REACHED THE SAME CONCLUSION.

SINCE UNDER THE FOREGOING STATUTORY PROVISIONS MR. OLSEN WILL NOT LOSE OR FORFEIT THE ANNUAL LEAVE INVOLVED, WE CONCLUDE THAT OUR DECISIONS 33 COMP. GEN. 177 AND B-127589 DATED APRIL 27, 1956, ARE FOR APPLICATION TO HIS CASE RATHER THAN 33 COMP. GEN. 622.

WHILE NOT HERE MATERIAL, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF SECTION 1 OF THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, WHICH PROVIDES THAT IF AN OFFICER OR EMPLOYEE (AFTER RECEIVING A LUMP-SUM LEAVE PAYMENT) IS RE-EMPLOYED IN THE FEDERAL SERVICE (OTHER THAN IN CERTAIN POSITIONS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, BUT NOT INCLUDING THOSE POSITIONS EXEMPTED BY SECTION 202 (C) (1) THEREOF), PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF RE- EMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD. THE ACT GOES ON TO SAY THAT---

THE LEAVE REPRESENTED BY ANY SUCH REFUND---

(3) IN THE CASE OF AN OFFICER OR EMPLOYEE RE-EMPLOYED IN AN OFFICE OR POSITION EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, UNDER SECTION 202 (E) (1) OF SUCH ACT, SHALL BE DEEMED, UPON SEPARATION FROM SERVICE, DEATH, OR TRANSFER TO ANOTHER OFFICE OR POSITION IN THE GOVERNMENT SERVICE, TO HAVE REMAINED TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE.