B-146610, SEP. 13, 1961

B-146610: Sep 13, 1961

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WE HAVE REVIEWED THE PROPOSED REVISION AND HAVE THE FOLLOWING OBJECTIONS TO CERTAIN ASPECTS OF IT. WE DO NOT CONSIDER THAT THERE IS ANY PRESENT STATUTORY AUTHORITY FOR CREDITING AN EMPLOYEE WHO TRANSFERS TO A DIFFERENT LEAVE SYSTEM WITH A GREATER LEAVE ACCUMULATION BALANCE THAN IS PROVIDED FOR IN THE LEAVE ACCUMULATION PROVISIONS OF THE LEAVE SYSTEM TO WHICH HE TRANSFERS. THAT LEAVE WAS FORFEITED UPON SEPARATION. WE ADVISED THAT YOUR COMMISSION WAS WITHOUT AUTHORITY TO ISSUE A REGULATION PERMITTING THE RECREDITING. WE ARE UNABLE TO CONCUR IN THE PROPOSED SECTION 30.703 SO FAR AS IT COVERS EMPLOYEES SEPARATED AND REEMPLOYED PRIOR TO PROMULGATION OF THE AMENDED REGULATIONS. WHEN AN EMPLOYEE IS REEMPLOYED HIS RIGHT TO SICK LEAVE RECREDIT IS DETERMINED UNDER THE APPLICABLE LAWS AND REGULATIONS IN EFFECT AT THAT TIME.

B-146610, SEP. 13, 1961

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF AUGUST 7, 1961, REQUESTS OUR COMMENTS CONCERNING YOUR PROPOSED DRAFT OF REGULATIONS WHICH WOULD AMEND CERTAIN PROVISIONS OF THE EXISTING ANNUAL AND SICK LEAVE REGULATIONS.

WE HAVE REVIEWED THE PROPOSED REVISION AND HAVE THE FOLLOWING OBJECTIONS TO CERTAIN ASPECTS OF IT. FIRST, WE DO NOT CONSIDER THAT THERE IS ANY PRESENT STATUTORY AUTHORITY FOR CREDITING AN EMPLOYEE WHO TRANSFERS TO A DIFFERENT LEAVE SYSTEM WITH A GREATER LEAVE ACCUMULATION BALANCE THAN IS PROVIDED FOR IN THE LEAVE ACCUMULATION PROVISIONS OF THE LEAVE SYSTEM TO WHICH HE TRANSFERS. WE SO HELD IN THE DECISIONS TO WHICH YOU REFER IN YOUR LETTER CONCERNING THIS MATTER (33 COMP. GEN. 85; ID. 209). YOU INDICATE CERTAIN INEQUITIES EXIST IN THAT AREA UNDER THE PRESENT PROVISIONS OF LAW AS CONSTRUED BY OUR OFFICE. THOSE INEQUITIES, WHILE PERHAPS CONSTITUTING A PROPER BASIS FOR THE SUBMISSION OF A REQUEST FOR REMEDIAL LEGISLATION TO CONGRESS, DO NOT AFFORD A SUFFICIENT BASIS FOR REVERSING OUR PREVIOUS DECISIONS UPON THIS QUESTION.

SECONDLY, WE KNOW OF NO AUTHORITY WHICH WOULD PERMIT YOU TO AUTHORIZE THE RECREDITING OF ACCRUED ANNUAL LEAVE UPON REEMPLOYMENT WHICH HAD NOT BEEN TAKEN BY AN EMPLOYEE PRIOR TO HIS SEPARATION IN THE SAME LEAVE YEAR. THAT LEAVE WAS FORFEITED UPON SEPARATION, AND IN OUR DECISION IN 33 COMP. GEN. 85 (SEE QUESTION AND ANSWER 1 (D) (, WE ADVISED THAT YOUR COMMISSION WAS WITHOUT AUTHORITY TO ISSUE A REGULATION PERMITTING THE RECREDITING, UPON REEMPLOYMENT, OF ACCRUED ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION. FIND NO BASIS FOR REVERSING THAT CONCLUSION.

FINALLY, WE ARE UNABLE TO CONCUR IN THE PROPOSED SECTION 30.703 SO FAR AS IT COVERS EMPLOYEES SEPARATED AND REEMPLOYED PRIOR TO PROMULGATION OF THE AMENDED REGULATIONS. WHEN AN EMPLOYEE IS REEMPLOYED HIS RIGHT TO SICK LEAVE RECREDIT IS DETERMINED UNDER THE APPLICABLE LAWS AND REGULATIONS IN EFFECT AT THAT TIME. THE PROPOSED SECTION 30.703 WOULD RETROACTIVELY GRANT RIGHTS TO CERTAIN EMPLOYEES THAT THEY DID NOT HAVE AT THE TIME THEY WERE REEMPLOYED. FOR INSTANCE, AT THE TIME OF REEMPLOYMENT MORE THAN 52 CALENDAR WEEKS MAY HAVE ELAPSED SO THAT NO SICK LEAVE WAS CREDITABLE TO THE EMPLOYEE UNDER THE REGULATIONS IN EFFECT. HOWEVER, UNDER THE PROPOSED REVISION, SICK LEAVE COULD BE CREDITED IF THE EMPLOYEE WAS REEMPLOYED NOT EARLIER THAN 3 YEARS PRIOR TO THE EFFECTIVE DATE OF THE PROPOSED REVISION. THE LEAVE RECREDIT RIGHTS OF THE EMPLOYEE AND THE CORRESPONDING OBLIGATION OF THE GOVERNMENT BECOME FIXED ON THE DATE OF THE EMPLOYEE'S REEMPLOYMENT.