B-148556, MAY 15, 1962, 41 COMP. GEN. 761

B-148556: May 15, 1962

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IS RECEIVING A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21. IS NOT REQUIRED TO BE CHARGED AS AN ANNUAL LEAVE DAY IN VIEW OF THE HOLIDAY EXCLUSION PROVISION IN SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951. THE LUMP-SUM PAYMENT SHOULD INCLUDE THE AMOUNT OF COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED FOR A HOLIDAY DURING HIS NORMAL TOUR OF DUTY HAD HE NOT BEEN SEPARATED PRIOR TO THE HOLIDAY. WILL INCLUDE TWO HOLIDAYS FALLING IN THE NEW FISCAL YEAR. WHICH IS PAYABLE FROM APPROPRIATIONS AVAILABLE FOR SALARIES ON THE DATE OF SEPARATION. SUCH RIGHT IS NOT AFFECTED BY ADMINISTRATIVE DELAY OR LIQUIDATING PROCEDURES RESULTING FROM EXPIRATION OF THE AGENCY'S APPROPRIATIONS OR FUNCTIONS.

B-148556, MAY 15, 1962, 41 COMP. GEN. 761

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - HOLIDAYS - ENTITLEMENT--- LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - HOLIDAYS - FISCAL YEAR EFFECT--- LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - HOLIDAYS - UNDERPAYMENTS - ADMINISTRATIVE ADJUSTMENT A HOLIDAY WHICH FALLS ON A REGULAR WORKDAY WITHIN A PROJECTED LEAVE PERIOD FOR WHICH AN EMPLOYEE, SEPARATED FROM THE SERVICE, IS RECEIVING A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61B, WHICH SETS A LIMIT ON THE AMOUNT OF LEAVE FOR WHICH PAYMENT CAN BE MADE BUT DOES NOT PRECLUDE PAYMENT FOR HOLIDAYS IN SUCH LEAVE PERIODS, IS NOT REQUIRED TO BE CHARGED AS AN ANNUAL LEAVE DAY IN VIEW OF THE HOLIDAY EXCLUSION PROVISION IN SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2064 (A), AND THE LUMP-SUM PAYMENT SHOULD INCLUDE THE AMOUNT OF COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED FOR A HOLIDAY DURING HIS NORMAL TOUR OF DUTY HAD HE NOT BEEN SEPARATED PRIOR TO THE HOLIDAY. AN EMPLOYEE WHOSE PROJECTED LEAVE PERIOD, AS THE RESULT OF A SEPARATION IN JUNE FROM A TEMPORARY AGENCY IN LIQUIDATION, WILL INCLUDE TWO HOLIDAYS FALLING IN THE NEW FISCAL YEAR, ONE OF WHICH OCCURS AFTER THE TERMINATION DATE OF THE AGENCY, HAS A RIGHT ON THE DATE OF SEPARATION TO THE LUMP-SUM PAYMENT, WHICH IS PAYABLE FROM APPROPRIATIONS AVAILABLE FOR SALARIES ON THE DATE OF SEPARATION, AND TO REGULAR COMPENSATION FOR THE HOLIDAYS OCCURRING WITHIN THE PROJECTED LEAVE PERIOD, AND SUCH RIGHT IS NOT AFFECTED BY ADMINISTRATIVE DELAY OR LIQUIDATING PROCEDURES RESULTING FROM EXPIRATION OF THE AGENCY'S APPROPRIATIONS OR FUNCTIONS. EMPLOYEES OF THE UNITED STATES STUDY COMMISSION-TEXAS WHO WERE NOT PAID REGULAR PAY FOR THE HOLIDAYS WHICH OCCURRED WITHIN THE PROJECTED PERIODS COVERED BY THEIR LUMP-SUM ANNUAL LEAVE PAYMENTS UNDER THE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61B, IN THE MISTAKEN BELIEF THAT THE LEAVE CEILING PROVISIONS IN THE ACT FORECLOSE PAYMENT FOR HOLIDAYS OCCURRING WITHIN THE PROJECTED LEAVES PERIOD MAY BE PAID ADMINISTRATIVELY FOR SUCH HOLIDAYS AS THE RECORD SHOWS COMPENSATION IS DUE UPON RECEIPT OF A REQUEST IN THE NATURE OF A CLAIM FROM EACH SUCH EMPLOYEE, BUT CLAIMS WHICH ARE OF DOUBTFUL PROPRIETY SHOULD BE SUBMITTED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT.

TO THE CHAIRMAN, UNITED STATES STUDY COMMISSION, TEXAS, MAY 15, 1962:

ON MARCH 28, 1962, THE EXECUTIVE DIRECTOR OF YOUR COMMISSION ASKED US SEVERAL QUESTIONS CONCERNING THE INCLUSION OF PAY FOR HOLIDAYS WHICH FALL WITHIN A PERIOD COVERED BY LUMP-SUM PAYMENT FOR ANNUAL LEAVE UPON THE SEPARATION OF "INDIVIDUALS" FROM SERVICE INCIDENT TO THE COMPLETION OF YOUR COMMISSION'S WORK UNDER THE ACT OF AUGUST 28, 1958, PUBLIC LAW 85- 843, 72 STAT. 1058.

SECTION 203 (I) OF THE ACT, 72 STAT. 1060, PROVIDES THE COMMISSION SHALL CEASE TO EXIST WITHIN 3 MONTHS FROM THE DATE OF SUBMISSION OF ITS FINAL REPORT TO THE PRESIDENT. YOUR EXECUTIVE DIRECTOR INDICATES THE COMMISSION'S FINAL REPORT PROBABLY WILL HAVE BEEN SUBMITTED TO THE PRESIDENT DURING APRIL 1962, AND THUS, THAT THE COMMISSION WOULD CEASE TO EXIST BEFORE THE END OF JULY 1962 BUT THAT ON JUNE 30, 1962, THE COMMISSION'S CURRENT APPROPRIATIONS CEASE TO BE AVAILABLE FOR OBLIGATION AND NO NEW APPROPRIATIONS HAVE BEEN REQUESTED FOR THE FISCAL YEAR 1963 BEGINNING JULY 1, 1962.

YOUR EXECUTIVE DIRECTOR SAYS THAT THE PROCEDURE FOLLOWED BY YOUR AGENCY IN MAKING LUMP-SUM PAYMENTS OF ANNUAL LEAVE UPON SEPARATION FROM THE SERVICE HAS BEEN TO PAY THE INDIVIDUAL AT HIS CURRENT RATE FOR THE NUMBER OF HOURS OF ANNUAL LEAVE TO HIS CREDIT, PROVIDED IT DOES NOT EXCEED 240 HOURS OR THE NUMBER OF HOURS BROUGHT FORWARD TO HIS CREDIT AT THE BEGINNING OF THE CURRENT LEAVE YEAR, WHICHEVER IS GREATER. WE UNDERSTAND, HOWEVER, THAT NO ADDITIONAL SUM HAS BEEN ALLOWED WHEN A LEGAL HOLIDAY OCCURRED ON A REGULAR WORKDAY WITHIN THE PROJECTED LEAVE PERIOD. REQUESTS ADVICE (1) AS TO WHETHER IN COMPUTING LUMP-SUM ANNUAL LEAVE PAYMENTS DUE AT THE TERMINATION OF SERVICE, WHEN THE PROJECTED TIME OVER WHICH THE LEAVE WOULD BE EXTENDED INCLUDES A LEGAL HOLIDAY, REGULAR COMPENSATION IS PAYABLE FOR THE HOLIDAY WITHOUT A CHARGE AGAINST THE EMPLOYEE'S ANNUAL LEAVE ACCOUNT; AND (2) AS TO WHETHER IN SUCH CASES AN EMPLOYEE IS ENTITLED TO REGULAR PAY FOR A HOLIDAY WHEN THE INCLUSION OF SUCH PAY WOULD RESULT IN A LUMP-SUM PAYMENT IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR.

SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, 5 U.S.C. 2064 (A), PROVIDES THAT THE DAYS OF LEAVE PROVIDED IN THAT ACT SHALL MEAN DAYS UPON WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY AND SHALL BE EXCLUSIVE OF HOLIDAYS AND ALL NON-WORKDAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. UNDER THE UNDERSCORED PROVISION NO CHARGE IS MADE AGAINST AN EMPLOYEE'S LEAVE ACCOUNT FOR HOLIDAY ABSENCE. SEE 27 COMP. GEN. 407; 29 ID. 322; AND 34 ID. 254.

THE LUMP-SUM LEAVE PAYMENT ACT OF 1944, 58 STAT. 845, AS AMENDED, 5 U.S.C. 61B, SUBJECT TO THE LIMITATIONS THEREOF, PROVIDES THAT ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE DUE AN OFFICER OR EMPLOYEE IS PAYABLE IN ONE LUMP-SUM PAYMENT ON THE DATE OF HIS SEPARATION FROM SERVICE, AND SUCH PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, SUCH A LUMP-SUM PAYMENT SHALL NOT EXCEED COMPENSATION FOR ANY PERIOD OF SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS OF ACCUMULATED LEAVE CARRIED OVER TO THE OFFICER'S OR EMPLOYEE'S CREDIT FOR USE IN THE LEAVE YEAR IN WHICH ENTITLEMENT TO SUCH PAYMENT OCCURS, WHICHEVER PERIOD IS GREATER.

UNDER THOSE PROVISIONS OF LAW, WHEN A HOLIDAY FALLS WITHIN THE PROJECTED LEAVE PERIOD AND ON A DAY WHICH OTHERWISE WOULD HAVE BEEN A REGULAR WORKDAY BUT FOR THE OCCURRENCE OF THE HOLIDAY, THE LUMP-SUM LEAVE PAYMENT DUE AN EMPLOYEE SUBJECT TO THE 1951 LEAVE ACT MAY INCLUDE -- WITHOUT AN ANNUAL LEAVE CHARGE BEING MADE FOR THE HOLIDAY--- THE AMOUNT OF USUAL COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED FOR THAT HOLIDAY DURING HIS NORMAL TOUR OF DUTY HAD HE NOT BEEN SEPARATED PRIOR TO OCCURRENCE OF SUCH HOLIDAY. THE LEAVE CEILING PROVISIONS SET A LIMIT ON THE EMPLOYEE'S "LEAVE" AVAILABLE FOR USE IN THE LUMP-SUM PAYMENT. THEY DO NOT FORECLOSE PAYMENT FOR THE HOLIDAY OCCURRING WITHIN THE PROJECTED LEAVE PERIOD. SEE 27 COMP. GEN. 407; 36 ID. 478. THEREFORE, BOTH QUESTIONS ARE ANSWERED IN THE AFFIRMATIVE.

THE EXECUTIVE DIRECTOR SAYS THAT A STAFF EMPLOYEE WHO CARRIED FORWARD INTO THE CURRENT LEAVE YEAR 699 HOURS ANNUAL LEAVE ANTICIPATES TERMINATING HIS SERVICE DURING JUNE 1962. YOUR EXECUTIVE DIRECTOR RECOGNIZES THAT CURRENT APPROPRIATIONS LEGALLY ARE AVAILABLE TO PAY FOR THE EMPLOYEE'S ACCUMULATED LEAVE UPON TERMINATION OF HIS SERVICE, PROVIDED HE TERMINATES IN JUNE 1962. HOWEVER, UPON THE PREMISE THAT THE FIRST QUESTION, ABOVE, IS ANSWERED IN THE AFFIRMATIVE HE REQUESTS A REPLY TO THREE SUBSIDIARY QUESTIONS: (3) SINCE JULY 4 WILL OCCUR AFTER CURRENT APPROPRIATIONS FOR THE COMMISSION CEASE TO BE AVAILABLE FOR OBLIGATION, SHOULD PAYMENT BE MADE FOR JULY 4 UNDER THE CIRCUMSTANCES ABOVE RECITED? (4) SINCE THE COMMISSION WILL CEASE PRIOR TO JULY 31, 1962, SHOULD PAYMENT FOR LABOR DAY, SEPTEMBER 3, BE INCLUDED? (5) SHOULD THE COMMISSION INITIATE ACTION TO PAY ANY AMOUNT DUE TO FORMER EMPLOYEES AS REGULAR COMPENSATION FOR HOLIDAYS WHICH OCCURRED DURING THE PROJECTED TIME OF THE LUMP-SUM LEAVE PAYMENTS?

THE ENTIRE LUMP-SUM ANNUAL LEAVE PAYMENT IS CHARGEABLE AS AN OBLIGATION OF THE FISCAL YEAR APPROPRIATION WHICH IS AVAILABLE FOR PAYMENT OF THE SALARY OF THE OFFICER OR EMPLOYEE ON THE DATE SUCH PAYMENT BECOMES DUE, NAMELY, THE DATE OF HIS SEPARATION FROM SERVICE SUBJECT TO THE 1951 LEAVE ACT, REGARDLESS OF WHETHER THE LEAVE PERIOD, INCLUDING HOLIDAYS FALLING WITHIN THE LEAVE PERIOD, MAY EXTEND OVER INTO THE NEXT FISCAL YEAR. COMP. GEN. 578; 25 ID. 687; AND 26 ID. 102. THE RIGHT OF AN EMPLOYEE TO SUCH LEAVE PAYMENT AND TO REGULAR COMPENSATION FOR THE HOLIDAY OCCURRING WITHIN THE PERIOD OVER WHICH THE LUMP SUM IS COMPUTED UNDER PRESENT LAW VESTS ON THE DATE OF SEPARATION AND IS NOT AFFECTED BY ADMINISTRATIVE DELAY--- SEE 33 COMP. GEN. 85--- OR BY OTHER LIQUIDATING PROCEDURES WHICH MAY RESULT FROM EXPIRATION OF AN AGENCY'S APPROPRIATION OR FUNCTIONS.

THEREFORE, QUESTIONS (3) AND (4) ARE ANSWERED ALSO IN THE AFFIRMATIVE.

CONCERNING QUESTION (5), UPON RECEIPT OF A REQUEST IN THE NATURE OF A CLAIM FROM THE INDIVIDUALS, PAYMENTS MAY BE MADE ADMINISTRATIVELY TO THOSE EMPLOYEES WHEN THE RECORDS SHOW THEY ARE DUE COMPENSATION FOR THE DAY OR DAYS INVOLVED. CLAIMS AS TO WHICH THERE IS A DOUBT AS TO PROPRIETY OF PAYMENT SHOULD BE SUBMITTED TO THE CLAIMS DIVISION OF OUR OFFICE FOR DIRECT SETTLEMENT.