B-165516, NOV. 22, 1968

B-165516: Nov 22, 1968

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A LUMP SUM FOR THE 187 HOURS OF ANNUAL LEAVE TO HER CREDIT AT THE TIME SHE WAS SEPARATED FROM SUCH EMPLOYMENT TO ACCEPT A PRESIDENTIAL APPOINTMENT AS A COMMISSIONER WITH THE INDIAN CLAIMS COMMISSION. PIERCE WAS APPOINTED APPEARS TO BE A POSITION IN THE EXECUTIVE BRANCH EXCEPTED FROM COVERAGE UNDER THE LEAVE LAW (5 U.S.C. 6301 (2) (X/-/XII) ). AS INDICATED IN YOUR LETTER WE HAVE HELD THAT UNDER THE FORMER PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951. GENERALLY WHEN AN EMPLOYEE IS APPOINTED TO A POSITION WHICH IS EXEMPTED FROM COVERAGE BY THE LEAVE LAW HE OR SHE IS NOT ENTITLED TO PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE AT THAT TIME. THE LEAVE IS CONSIDERED TO REMAIN TO HIS OR HER CREDIT TO SERVE AS THE BASIS FOR A LUMP-SUM PAYMENT WHEN HE OR SHE IS SEPARATED FROM THE EXCEPTED POSITION OR AS THE BASIS FOR A RECREDIT IF HE IS LATER EMPLOYED IN A POSITION COVERED BY THE LEAVE LAW. 40 COMP.

B-165516, NOV. 22, 1968

TO MR. FRANK T. PEARTREE:

WE REFER TO YOUR LETTER OF OCTOBER 24, 1968, BY WHICH YOU REQUEST OUR DECISION WHETHER YOU MAY PROPERLY CERTIFY A PAYROLL VOUCHER TO PAY MRS. MARGARET H. PIERCE, A FORMER EMPLOYEE OF THE COURT OF CLAIMS, A LUMP SUM FOR THE 187 HOURS OF ANNUAL LEAVE TO HER CREDIT AT THE TIME SHE WAS SEPARATED FROM SUCH EMPLOYMENT TO ACCEPT A PRESIDENTIAL APPOINTMENT AS A COMMISSIONER WITH THE INDIAN CLAIMS COMMISSION.

THE POSITION TO WHICH MRS. PIERCE WAS APPOINTED APPEARS TO BE A POSITION IN THE EXECUTIVE BRANCH EXCEPTED FROM COVERAGE UNDER THE LEAVE LAW (5 U.S.C. 6301 (2) (X/-/XII) ). AS INDICATED IN YOUR LETTER WE HAVE HELD THAT UNDER THE FORMER PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, NOW CODIFIED IN TITLE 5, U.S.C. GENERALLY WHEN AN EMPLOYEE IS APPOINTED TO A POSITION WHICH IS EXEMPTED FROM COVERAGE BY THE LEAVE LAW HE OR SHE IS NOT ENTITLED TO PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE AT THAT TIME. UNDER SUCH CIRCUMSTANCES, THE LEAVE IS CONSIDERED TO REMAIN TO HIS OR HER CREDIT TO SERVE AS THE BASIS FOR A LUMP-SUM PAYMENT WHEN HE OR SHE IS SEPARATED FROM THE EXCEPTED POSITION OR AS THE BASIS FOR A RECREDIT IF HE IS LATER EMPLOYED IN A POSITION COVERED BY THE LEAVE LAW. 40 COMP. GEN. 164; 33 ID. 177. HOWEVER, IN CERTAIN CASES WHICH INVOLVED THE TRANSFER OF EMPLOYEES FROM COVERED POSITIONS UNDER THE LEAVE LAW TO POSITIONS IN THE JUDICIAL BRANCH IN WHICH LEAVE WAS NOT CREDITED OR CHARGED ALTHOUGH THE POSITIONS WERE OTHERWISE COVERED BY THE LEAVE LAW, WE HAVE PERMITTED A LUMP-SUM PAYMENT TO BE MADE AT THE TIME OF TRANSFER IN ORDER TO PREVENT A FORFEITURE OF EARNED LEAVE. 33 COMP. GEN. 622. YOU PROPOSE TO PAY MRS. PIERCE A LUMP SUM INCIDENT TO HER SEPARATION FROM THE COURT OF CLAIMS POSITION IN ORDER TO PREVENT THE FORFEITURE OF THE ANNUAL LEAVE TO HER CREDIT AT THAT TIME.

5 U.S.C. 6302 (E) PROVIDES:

"/E) IF AN OFFICER EXCEPTED FROM THIS SUBCHAPTER BY SECTION 6301 (2) (X/- /XII) OF THIS TITLE, WITHOUT A BREAK IN SERVICE, AGAIN BECOMES SUBJECT TO THIS SUBCHAPTER ON COMPLETION OF HIS SERVICE AS AN EXCEPTED OFFICER, THE UNUSED ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT WHEN HE WAS EXCEPTED FROM THIS SUBCHAPTER IS DEEMED TO HAVE REMAINED TO HIS CREDIT.' UNDER THAT SECTION IF, AFTER SERVING IN THE EXCEPTED POSITION, MRS. PIERCE IS REEMPLOYED WITHOUT BREAK IN SERVICE IN A POSITION COVERED BY CHAPTER 63 OF TITLE 5, U.S.C. THE LEAVE TO HER CREDIT WHEN APPOINTED TO THE EXCEPTED POSITION WILL BE RECREDITED TO HER. THAT IS SO BECAUSE THE POSITION SHE NOW OCCUPIES IS EXCEPTED FROM THE LEAVE PROVISIONS BY VIRTUE OF SECTION 6301 (2) (X/-/XII). FURTHER, IF MRS. PIERCE IS SEPARATED FROM THE EXCEPTED POSITION SHE WILL BE ENTITLED TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE WHICH SHE HAD TO HER CREDIT WHEN SEPARATED FROM THE COURT OF CLAIMS POSITION. 5 U.S.C. 5551 (B).

SINCE MRS. PIERCE WILL SUFFER NO FORFEITURE OF THE ANNUAL LEAVE EARNED AND CREDITED TO HER ACCOUNT AS AN EMPLOYEE OF THE COURT OF CLAIMS, SHE IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR HER ANNUAL LEAVE AT THIS TIME.