B-167103, JUL. 9, 1969

B-167103: Jul 9, 1969

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FROM YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION WHEREIN A DECISION IS REQUESTED CONCERNING THE ENTITLEMENT OF THE FORMER ASSOCIATE SOLICITOR. WE UNDERSTAND THAT AT THE TIME OF HIS SEPARATION THE EMPLOYEE WAS SERVING UNDER AN EXCEPTED APPOINTMENT (SCHEDULE C) AND THAT HE WAS SEPARATED BECAUSE A PROPER POLICY-MAKING RELATIONSHIP DID NOT EXIST BETWEEN SUCH EMPLOYEE AND THE NEWLY APPOINTED SOLICITOR. THE CIVIL SERVICE COMMISSION AMENDED THE STATUTORY REGULATIONS (550.701) GOVERNING ENTITLEMENT TO SEVERANCE PAY TO EXCLUDE THE FOLLOWING EMPLOYEES (SEE FPM LETTER NO. 550-46): "/8) THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO IS SERVING UNDER AN APPOINTMENT TO A POSITION FILLED BY NONCAREER EXECUTIVE ASSIGNMENT UNDER PART 305 OF THIS CHAPTER.

B-167103, JUL. 9, 1969

TO MR. SECRETARY:

WE REFER TO LETTER OF MAY 28, 1969, FROM YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION WHEREIN A DECISION IS REQUESTED CONCERNING THE ENTITLEMENT OF THE FORMER ASSOCIATE SOLICITOR, OFFICE OF THE SOLICITOR, TO SEVERANCE PAY INCIDENT TO HIS SEPARATION FROM SUCH POSITION EFFECTIVE MAY 8, 1969.

WE UNDERSTAND THAT AT THE TIME OF HIS SEPARATION THE EMPLOYEE WAS SERVING UNDER AN EXCEPTED APPOINTMENT (SCHEDULE C) AND THAT HE WAS SEPARATED BECAUSE A PROPER POLICY-MAKING RELATIONSHIP DID NOT EXIST BETWEEN SUCH EMPLOYEE AND THE NEWLY APPOINTED SOLICITOR.

EFFECTIVE NOVEMBER 30, 1968, THE CIVIL SERVICE COMMISSION AMENDED THE STATUTORY REGULATIONS (550.701) GOVERNING ENTITLEMENT TO SEVERANCE PAY TO EXCLUDE THE FOLLOWING EMPLOYEES (SEE FPM LETTER NO. 550-46):

"/8) THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO IS SERVING UNDER AN APPOINTMENT TO A POSITION FILLED BY NONCAREER EXECUTIVE ASSIGNMENT UNDER PART 305 OF THIS CHAPTER, OR UNDER AN APPOINTMENT TO A SCHEDULE C POSITION IN PART 213 OF THIS CHAPTER.'

IT IS AMPLY CLEAR THAT THE QUOTED REGULATION OF THE COMMISSION WOULD EXCLUDE FROM SEVERANCE PAY ENTITLEMENT THE INCUMBENT OF A POSITION SUCH AS THAT HELD BY THE EMPLOYEE IN QUESTION. THE EMPLOYEE CONTENDS, HOWEVER, THAT SUCH REGULATION HAS NO APPLICATION TO HIM SINCE IT WAS NOT INCLUDED IN THE REGULATIONS INITIALLY ISSUED BY THE COMMISSION. HE CONTENDS FURTHER THAT UNDER THE LAW AND REGULATIONS INITIALLY ISSUED HE HAD ACQUIRED A VESTED RIGHT TO SEVERANCE PAY WHICH THE COMMISSION COULD NOT TAKE AWAY BY A SUBSEQUENT AMENDMENT TO THE REGULATIONS.

WE DO NOT SUBSCRIBE TO THAT VIEW. AN EMPLOYEE'S ENTITLEMENT TO SEVERANCE PAY MUST BE DETERMINED UNDER THE LAW (INCLUDING STATUTORY REGULATIONS) IN EFFECT AT THE TIME OF HIS SEPARATION. WE VIEW THE CHANGE IN THE REGULATIONS PRIOR TO HIS SEPARATION AS HAVING THE SAME EFFECT AS AN AMENDMENT TO THE STATUTE PRIOR TO HIS SEPARATION. WHATEVER INCHOATE ENTITLEMENT HE ONCE MAY HAVE HAD UNDER THE THEN EXISTING SEVERANCE PAY LAW REGULATIONS WAS CONTINGENT UPON AND SUBJECT TO CHANGE OR EXTINGUISHMENT IN THE EVENT THE STATUTE OR REGULATIONS WERE MODIFIED PRIOR TO THE DATE OF HIS SEPARATION.

ACCORDINGLY, OUR OPINION IS THAT THE EMPLOYEE IN QUESTION IS NOT ENTITLED TO SEVERANCE PAY BASED ON THE MAY 8, 1969, SEPARATION.