B-154223, AUG. 31, 1964

B-154223: Aug 31, 1964

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WHEREIN IT IS STATED THAT ARRANGEMENTS HAVE BEEN MADE FOR AN EMPLOYEE OF THE CIVIL SERVICE COMMISSION TO SERVE FOR TWO YEARS WITH THE GOVERNMENT OF LIBYA AS A CIVIL SERVICE EXPERT. IT IS PROPOSED THAT THE EMPLOYEE BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS ON THE ROLLS OF THE COMMISSION DURING THIS PERIOD SO THAT THERE CAN BE NO DIFFICULTY ABOUT HIS IMMEDIATE RETURN TO DUTY UPON COMPLETION OF THE CONTRACT PERIOD. THAT EACH REQUEST FOR LEAVE WITHOUT PAY SHOULD BE EXAMINED CLOSELY TO ASSURE THAT THE VALUE TO THE GOVERNMENT IS SUFFICIENT TO OFFSET THE COSTS AND ADMINISTRATIVE INCONVENIENCES TO THE GOVERNMENT WHICH RESULT FROM THE RETENTION OF AN EMPLOYEE IN SUCH A STATUS.

B-154223, AUG. 31, 1964

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN, CIVIL SERVICE COMMISSION:

THIS REFERS TO YOUR LETTER OF AUGUST 25, 1964, WHEREIN IT IS STATED THAT ARRANGEMENTS HAVE BEEN MADE FOR AN EMPLOYEE OF THE CIVIL SERVICE COMMISSION TO SERVE FOR TWO YEARS WITH THE GOVERNMENT OF LIBYA AS A CIVIL SERVICE EXPERT, UNDER A CONTRACT OF EMPLOYMENT WITH THAT GOVERNMENT. THE ARRANGEMENT FOR HIS SERVICES RESULTED FROM AN URGENT REQUEST FROM THE AGENCY FOR INTERNATIONAL DEVELOPMENT FOR ASSISTANCE FROM THE COMMISSION IN RECRUITING A WELL-QUALIFIED INDIVIDUAL. IT IS PROPOSED THAT THE EMPLOYEE BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS ON THE ROLLS OF THE COMMISSION DURING THIS PERIOD SO THAT THERE CAN BE NO DIFFICULTY ABOUT HIS IMMEDIATE RETURN TO DUTY UPON COMPLETION OF THE CONTRACT PERIOD.

YOU EXPRESS THE VIEW THAT UNLESS ARTICLE I, SECTION 9, CLAUSE 8 OF THE CONSTITUTION OF THE UNITED STATES, PRECLUDES SUCH ACTION YOU KNOW OF NO REASON WHY THE RETENTION OF THE EMPLOYEE ON THE ROLLS OF THE CIVIL SERVICE COMMISSION WOULD BE IMPROPER.

YOU SAY THAT THE COMMISSION HAS AUTHORITY TO DELEGATE AND HAS DELEGATED POWER OF APPOINTMENT TO THE POSITION WHICH THE EMPLOYEE NOW OCCUPIES. YOU CONCLUDE THAT IN THE CIRCUMSTANCES THE EMPLOYEE IN QUESTION DOES NOT HOLD AN OFFICE IN THE CONSTITUTIONAL SENSE, AS DEFINED IN OUR DECISIONS. COMP. GEN. 138 AND THE COURT CASES CITED THEREIN; 40 ID. 500.

WE AGREE WITH YOUR OPINION THAT THE EMPLOYEE DOES NOT HOLD AN OFFICE IN THE CONSTITUTIONAL SENSE AND THAT, THEREFORE, THE CONSTITUTIONAL PROVISION CITED ABOVE DOES NOT APPLY.

CONCERNING THE PROPOSAL TO CARRY THE EMPLOYEE IN A LEAVE-WITHOUT-PAY STATUS, WE AGREE WITH THE VIEWS OF THE COMMISSION, AS SET OUT IN THE FEDERAL PERSONNEL MANUAL, THAT EACH REQUEST FOR LEAVE WITHOUT PAY SHOULD BE EXAMINED CLOSELY TO ASSURE THAT THE VALUE TO THE GOVERNMENT IS SUFFICIENT TO OFFSET THE COSTS AND ADMINISTRATIVE INCONVENIENCES TO THE GOVERNMENT WHICH RESULT FROM THE RETENTION OF AN EMPLOYEE IN SUCH A STATUS. IT APPEARS THAT THE COMMISSION DESIRES, IN THE INTEREST OF THE GOVERNMENT, TO ASSURE THE IMMEDIATE RETURN OF THE EMPLOYEE CONCERNED TO AN ACTIVE DUTY STATUS WITH THE COMMISSION UPON THE EXPIRATION OF HIS CONTRACT WITH THE LIBYAN GOVERNMENT. ALSO, IT APPEARS TO BE THE PRESENT POLICY OF THE UNITED STATES TO AFFORD AID AND ASSISTANCE TO LESS DEVELOPED COUNTRIES. THEREFORE, SHOULD YOU DETERMINE THAT THE BENEFITS ACCRUING TO THE GOVERNMENT WARRANT THE GRANTING OF LEAVE WITHOUT PAY IN THIS INSTANCE WE WOULD NOT QUESTION SUCH ACTION.