B-168075, NOV. 4, 1969

B-168075: Nov 4, 1969

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IS SILENT RESPECTING EFFECT OF PART PAY ON BENEFITS OTHERWISE APPLYING TO FULL-TIME EMPLOYEE. IT IS BELIEVED HIS DUTY STATUS SHOULD BE REGARDED AS OFFICIAL AND TANTAMOUNT TO DUTY STATUS FOR PURPOSES OF VARIOUS FRINGE BENEFITS TO WHICH HE IS OTHERWISE ENTITLED. THAT IT WOULD NOT BE IN KEEPING WITH PURPOSES OF TRAINING STATUTE TO PENALIZE SUCH EMPLOYEE EITHER BY DIMINUTION OF FRINGE BENEFITS OTHERWISE APPLICABLE OR BY REQUIRING HIM TO PAY THEREFOR BECAUSE PART SALARY IS INSUFFICIENT TO COVER REQUIRED CONTRIBUTIONS. MATTER IS BELIEVED APPROPRIATE FOR RESOLUTION BY CIVIL SERVICE COMMISSION UNDER 5 U.S.C. 4118 AND OTHER REGULATORY AUTHORITY. CONCERNING THE APPLICATION OF 5 U.S.C. 4109 (A) (1) IN THE CASE OF A FULL-TIME EMPLOYEE WHO WHILE ASSIGNED TO TRAINING IS PAID LESS THAN HIS FULL BASIC SALARY IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE CITED SECTION. 5 U.S.C. 4109 (A) READS.

B-168075, NOV. 4, 1969

OFFICERS AND EMPLOYEES--TRAINING--COMPENSATION PAYABLE--FRINGE BENEFITS- DIMINUTION ALTHOUGH 5 U.S.C. 4109 (A), AUTHORIZING ALL OR PART PAY TO EMPLOYEES ASSIGNED TO TRAINING, IS SILENT RESPECTING EFFECT OF PART PAY ON BENEFITS OTHERWISE APPLYING TO FULL-TIME EMPLOYEE, IT IS BELIEVED HIS DUTY STATUS SHOULD BE REGARDED AS OFFICIAL AND TANTAMOUNT TO DUTY STATUS FOR PURPOSES OF VARIOUS FRINGE BENEFITS TO WHICH HE IS OTHERWISE ENTITLED, AND THAT IT WOULD NOT BE IN KEEPING WITH PURPOSES OF TRAINING STATUTE TO PENALIZE SUCH EMPLOYEE EITHER BY DIMINUTION OF FRINGE BENEFITS OTHERWISE APPLICABLE OR BY REQUIRING HIM TO PAY THEREFOR BECAUSE PART SALARY IS INSUFFICIENT TO COVER REQUIRED CONTRIBUTIONS, BUT MATTER IS BELIEVED APPROPRIATE FOR RESOLUTION BY CIVIL SERVICE COMMISSION UNDER 5 U.S.C. 4118 AND OTHER REGULATORY AUTHORITY.

TO MR. HAMPTON:

WE REFER TO YOUR LETTER OF OCTOBER 7, 1969, CONCERNING THE APPLICATION OF 5 U.S.C. 4109 (A) (1) IN THE CASE OF A FULL-TIME EMPLOYEE WHO WHILE ASSIGNED TO TRAINING IS PAID LESS THAN HIS FULL BASIC SALARY IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE CITED SECTION. 5 U.S.C. 4109 (A) READS, IN PART, AS FOLLOWS:

"/A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118 (A) (8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY---

"/1) PAY ALL OR A PART OF THE PAY (EXCEPT OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL PAY) OF AN EMPLOYEE OF THE AGENCY SELECTED AND ASSIGNED FOR TRAINING UNDER THIS CHAPTER, FOR THE PERIOD OF TRAINING * * *"

SPECIFICALLY YOU WISH TO KNOW HOW THE RECEIPT OF LESS THAN FULL SALARY DURING THE TRAINING PERIOD WILL AFFECT VARIOUS RIGHTS AND BENEFITS OTHERWISE APPLICABLE TO SUCH FULL-TIME EMPLOYEE, THAT IS, RETIREMENT, LIFE INSURANCE, CREDIT FOR WITHIN-GRADE ADVANCES, LEAVE EARNING, ETC. AS YOU POINT OUT IN YOUR LETTER AN AGENCY MAY PAY LESS THAN FULL BASIC SALARY DURING THE PERIOD OF TRAINING EITHER BY PAYING ONLY A PERCENTAGE OF THE SALARY FOR THE FULL TRAINING PERIOD OR PAYING FULL SALARY FOR A PART OF THE TRAINING PERIOD AND NO SALARY AT ALL FOR THE REMAINDER OF SUCH PERIOD.

THE STATUTE IS SILENT CONCERNING THE EXTENT AND MANNER IN WHICH THE PAYMENT OF LESS THAN FULL SALARY WILL AFFECT OTHER RIGHTS AND BENEFITS OTHERWISE APPLYING TO A FULL-TIME EMPLOYEE WHO PARTICIPATES IN A TRAINING PROGRAM. IT IS OUR VIEW, HOWEVER, THAT WHEN AN EMPLOYEE IS ENGAGED IN TRAINING WHICH HAS BEEN OFFICIALLY AUTHORIZED UNDER THE STATUTE AS BEING DIRECTLY RELATED TO PERFORMANCE BY THE EMPLOYEE OF OFFICIAL DUTIES FOR THE GOVERNMENT AS CONTEMPLATED BY 5 U.S.C. 4101, HIS STATUS DURING SUCH PERIOD OF TRAINING SHOULD BE REGARDED AS OFFICIAL AND TANTAMOUNT TO A DUTY STATUS FOR PURPOSES OF THE VARIOUS FRINGE BENEFITS TO WHICH HE WOULD OTHERWISE BE ENTITLED. WE DO NOT CONSIDER THAT IT WOULD BE IN KEEPING WITH THE PURPOSES AND OBJECTIVES OF THE TRAINING STATUTE TO PENALIZE AN EMPLOYEE BECAUSE OF HIS PARTICIPATION IN OFFICIALLY AUTHORIZED OR DIRECTED TRAINING EITHER BY DIMINUTION OF FRINGE BENEFITS TO WHICH HE OTHERWISE WOULD BE ENTITLED OR BY REQUIRING HIM TO MAKE PAYMENT THEREFOR BECAUSE HE IS NOT PAID SUFFICIENT SALARY DURING THE PERIOD OF TRAINING TO COVER REQUIRED CONTRIBUTIONS.

THE FOREGOING IS, IN OUR OPINION, A REASONABLE AND PRACTICABLE INTERPRETATION CONSISTENT WITH THE INTENT AND SPIRIT OF THE TRAINING STATUTE. HOWEVER, SINCE THERE IS NO EXPRESS LANGUAGE IN THE STATUTE GOVERNING THE MATTER AND WE HAVE NOT FOUND ANY CLEAR EXPRESSION OF CONGRESSIONAL INTENT IN THE LEGISLATIVE HISTORY THEREOF, WE ARE OF THE FURTHER OPINION THAT THE MATTER MOST APPROPRIATELY MAY BE RESOLVED THROUGH THE EXERCISE OF THE REGULATORY AUTHORITY OF THE CIVIL SERVICE COMMISSION UNDER SECTION 5 U.S.C. 4118 AND OTHER REGULATORY AUTHORITY.