B-173251, AUG 19, 1971

B-173251: Aug 19, 1971

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SHOULD HAVE BEEN RECREDITED TO MR. BROWN'S EMPLOYMENT IS RELATED IN YOUR LETTER AS FOLLOWS: "MR. BROWN WAS SERVING AS A REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD. THE AGENCY WAS NOT AUTHORIZED TO MAKE A LUMP-SUM PAYMENT. BROWN WAS REAPPOINTED BY THE PRESIDENT TO A FULL FIVE YEAR TERM EFFECTIVE AUGUST 28. BROWN WAS APPOINTED AS A SPECIAL ASSISTANT TO THE BOARD. BROWN WAS REAPPOINTED. 1966 FOR A TERM WHICH WILL EXPIRE ON AUGUST 27. IS ENTITLED IMMEDIATELY BEFORE THE DATE HE IS EXCEPTED UNDER THAT SECTION SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH SUBSECTION (A) OF THIS SECTION OR SUBCHAPTER VIII OF THIS CHAPTER. EXCEPT THAT THE PAYMENT IS - "(1) BASED ON THE RATE OF PAY WHICH HE WAS RECEIVING IMMEDIATELY BEFORE THE DATE ON WHICH SECTION 6301(2)(X) - (XII) OF THIS TITLE BECAME APPLICABLE TO HIM.

B-173251, AUG 19, 1971

CIVILIAN EMPLOYEE - LUMP SUM PAYMENT FOR LEAVE - EXCEPTED POSITION DECISION AS TO THE PROPER RATE OF PAY TO BE USED IN DETERMINING THE LUMP- SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE DUE UPON SEPARATION OF MR. GERALD A. BROWN, MEMBER OF THE NATIONAL LABOR RELATIONS BOARD. THE HOURS OF ANNUAL LEAVE, BASED ON PRIOR SERVICE, SHOULD HAVE BEEN RECREDITED TO MR. BROWN IN ACCORDANCE WITH 5 U.S.C. 6302(E) WHEN HE ACCEPTED THE NON-EXEMPT POSITION AS A SPECIAL ASSISTANT TO THE BOARD. SECTION 5551 (B), TITLE 5 U.S.C., PROVIDES THAT LUMP SUM PAYMENTS FOR ACCUMULATED ANNUAL LEAVE SHALL BE BASED ON THE RATE OF PAY BEING RECEIVED IMMEDIATELY PRECEEDING THE EFFECTIVE DATE OF THE EXCEPTION. IN THIS CASE, THE APPLICABLE RATE OF PAY WOULD BE THAT WHICH MR. BROWN RECEIVED WHILE A SPECIAL ASSISTANT TO THE BOARD.

TO MR. MILLER:

THIS REFERS TO YOUR LETTER OF JUNE 9, 1971, REQUESTING OUR DECISION AS TO THE PROPER RATE OF PAY TO BE USED IN DETERMINING THE LUMP-SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE DUE UPON SEPARATION OF MR. GERALD A. BROWN, MEMBER OF THE NATIONAL LABOR RELATIONS BOARD.

THE HISTORY OF MR. BROWN'S EMPLOYMENT IS RELATED IN YOUR LETTER AS FOLLOWS:

"MR. BROWN SERVED WITH THIS AGENCY UNDER COMPETITIVE APPOINTMENT FROM FEBRUARY 16, 1942 UNTIL APRIL 13, 1961, AT WHICH DATE HE RESIGNED TO ACCEPT A PRESIDENTIAL APPOINTMENT AS A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD EFFECTIVE APRIL 14, 1961 FOR A TERM THAT EXPIRED AUGUST 27, 1961.

"AT THE TIME OF HIS RESIGNATION TO ACCEPT APPOINTMENT, MR. BROWN WAS SERVING AS A REGIONAL DIRECTOR OF THE NATIONAL LABOR RELATIONS BOARD, GS- 15, $15,290 PER ANNUM AND HAD 528 HOURS OF ANNUAL LEAVE ACCUMULATED. UNDER THE PROVISIONS OF THE LEAVE ACT, THE AGENCY WAS NOT AUTHORIZED TO MAKE A LUMP-SUM PAYMENT.

"MR. BROWN WAS REAPPOINTED BY THE PRESIDENT TO A FULL FIVE YEAR TERM EFFECTIVE AUGUST 28, 1961. THIS TERM EXPIRED ON AUGUST 27, 1966. AT THE EXPIRATION OF THIS TERM, MR. BROWN HAD BEEN NOMINATED BY THE PRESIDENT FOR REAPPOINTMENT, HOWEVER, THE APPOINTMENT HAD NOT BEEN CONFIRMED BY THE SENATE. IN ORDER TO RETAIN HIS SERVICES AND TO AVOID A BREAK IN SERVICE FOR A FORMER CAREER OFFICIAL OF LONG STANDING, MR. BROWN WAS APPOINTED AS A SPECIAL ASSISTANT TO THE BOARD, GS-15, $23,013, PER ANNUM FOR A TERM NTE 30 DAYS, EFFECTIVE AUGUST 28, 1966. HE, IN FACT, WORKED IN THIS CAPACITY FOR THREE DAYS.

"SUBSEQUENTLY, MR. BROWN WAS REAPPOINTED, EFFECTIVE SEPTEMBER 1, 1966 FOR A TERM WHICH WILL EXPIRE ON AUGUST 27, 1971. AT THE COMPLETION OF THIS TERM MR. BROWN EXPECTS TO RETIRE FROM THE FEDERAL SERVICE."

SECTION 5551(B) OF TITLE 5 OF THE U.S.C. PROVIDES WITH RESPECT TO THE LUMP SUM PAYABLE FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE TO AN EMPLOYEE, WHO LIKE MR. BROWN FALLS WITHIN THE EXEMPTION OF 5 U.S.C. 6301(2)(XI), AS FOLLOWS:

"(B) THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH AN OFFICER EXCEPTED FROM SUBCHAPTER I OF CHAPTER 63 OF THIS TITLE BY SECTION 6301(2)(X) - (XII) OF THIS TITLE, IS ENTITLED IMMEDIATELY BEFORE THE DATE HE IS EXCEPTED UNDER THAT SECTION SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH SUBSECTION (A) OF THIS SECTION OR SUBCHAPTER VIII OF THIS CHAPTER, EXCEPT THAT THE PAYMENT IS -

"(1) BASED ON THE RATE OF PAY WHICH HE WAS RECEIVING IMMEDIATELY BEFORE THE DATE ON WHICH SECTION 6301(2)(X) - (XII) OF THIS TITLE BECAME APPLICABLE TO HIM; AND

"(2) MADE WITHOUT REGARD TO THE LIMITATION IN SUBSECTION (A) OF THIS SECTION ON THE AMOUNT OF LEAVE COMPENSABLE."

YOUR QUESTION AS TO THE RATE AT WHICH MR. BROWN'S PAYMENT, IN ACCORDANCE WITH THE ABOVE SECTION, IS PROPERLY TO BE COMPUTED ARISES INASMUCH AS HIS INTERIM TEMPORARY APPOINTMENT WHICH COMMENCED AUGUST 28, 1966, RESULTED IN MR. BROWN'S TWICE BECOMING SUBJECT TO THE EXEMPTION OF SECTION 6301(2)(XI), EACH TIME AT A DIFFERENT RATE OF PAY.

AT THE TIME OF MR. BROWN'S TEMPORARY APPOINTMENT AS A SPECIAL ASSISTANT HE AGAIN BECAME SUBJECT TO SUBCHAPTER I OF CHAPTER 63 OF TITLE 5 OF THE UNITED STATES CODE. THUS THE 528 HOURS OF ANNUAL LEAVE TO HIS CREDIT BASED ON PRIOR SERVICE SUBJECT TO THE SAME LEAVE PROVISIONS SHOULD HAVE BEEN RECREDITED TO HIM IN ACCORDANCE WITH 5 U.S.C. 6302(E) WHICH 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."

IN CONNECTION WITH THE ABOVE PROVISIONS WE NOTE THE FOLLOWING STATEMENTS APPEARING IN CONFERENCE REPORT NO. 629, HOUSE OF REPRESENTATIVES, 83D CONGRESS, 1ST SESSION, ON SECTION 2 OF H. R. 4654, ENACTED AS PUBLIC LAW 102, 83D CONGRESS, AMENDING THE ANNUAL AND SICK LEAVE ACT OF 1951, AND ON WHICH 5 U.S.C. 6302(E) WAS PREDICATED:

"SUBSECTION (A) OF SECTION 2 PROHIBITS THE LIQUIDATION OF SUCH ANNUAL LEAVE BY LUMP-SUM PAYMENT DURING THE PERIOD OF SERVICE OF ANY PERSON AS AN EXEMPTED OFFICER OR EMPLOYEE BY PROVIDING THAT LUMP-SUM PAYMENT FOR SUCH ANNUAL LEAVE SHALL BE MADE ONLY IF, WHILE HE IS WITHIN THE CLASS OF SUCH EXEMPTED OFFICERS AND EMPLOYEES, HE IS SEPARATED FROM THE SERVICE, DIES, OR IS TRANSFERRED OUT OF HIS EXEMPTED POSITION TO A POSITION UNDER A LEAVE SYSTEM OTHER THAN THE LEAVE SYSTEM PROVIDED BY THE ANNUAL AND SICK LEAVE ACT OF 1951. SUBSECTION (A) ALSO PROVIDES THAT SUCH LUMP-SUM PAYMENT SHALL BE AT THE RATE OF COMPENSATION WHICH THE EXEMPTED OFFICER OR EMPLOYEE WAS RECEIVING IMMEDIATELY PRIOR TO HIS EXEMPTION FROM THE ANNUAL AND SICK LEAVE ACT OF 1951.

"SUBSECTION (B) OF SECTION 2 PROVIDES THAT ANY SUCH EXEMPTED OFFICER OR EMPLOYEE WHO, AFTER THE EXPIRATION OF HIS PERIOD OF EXEMPTED SERVICE AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 WITHOUT ANY BREAK IN THE CONTINUITY OF HIS SERVICE, SHALL AGAIN BE ENTITLED TO AND BE CREDITED WITH THE SAME AMOUNT OF ACCUMULATED AND CURRENT ACCRUED ANNUAL AND SICK LEAVE TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO THE BEGINNING OF HIS PERIOD OF EXEMPTED SERVICE, AS IF HE HAD BEEN CONTINUOUSLY SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951. THEREAFTER, ANY LIQUIDATION OF SUCH ANNUAL LEAVE BY LUMP-SUM PAYMENT WOULD BE AT THE LAST RATE OF COMPENSATION WHICH HE RECEIVED IMMEDIATELY PRIOR TO SUCH LUMP-SUM PAYMENT."

IT FOLLOWS THAT UPON MR. BROWN'S REAPPOINTMENT TO AN EXCEPTED POSITION FOLLOWING THE INTERIM TEMPORARY APPOINTMENT, THE RATE OF COMPENSATION WHICH ATTENDED HIS TEMPORARY APPOINTMENT BECAME THE BASIS FOR THE LUMP-SUM PAYMENT WHICH WILL BECOME DUE HIM UPON HIS RETIREMENT. ACTION MAY BE TAKEN ACCORDINGLY.