B-214541.3, Feb 1, 1990

B-214541.3, Feb 1, 1990

PRECIS-UNAVAILABLE

Ms. Barbara L. Fish Assistant Director for Pay and Performance Management Personnel Systems and Oversight Group Office of Personnel Management:

This letter is in response to your notice of proposed rulemaking, appearing in 54 Fed. Reg. 35854, August 29, 1989, to amend part 630, title 5, Code of Federal Regulations. The proposed rule would limit the restriction on the applicability of the federal leave law to employees of the District of Columbia (D.C.) to the provisions contained in 5 U.S.C. Sec. 6301(2)(B) (Supp. IV 1986) which defines "an employee," for leave purposes, as "an individual first employed by the government of the District of Columbia before October 1, 1987." We also wish to briefly comment on the contents of Federal Personnel Manual (FPC) Letter 630-32 dated September 7, 1989, concerning pay and leave entitlements in the movement of employees between the D.C. government and federal agencies.

Our primary objection to the proposed amendment of part 630 is that while you state that the proposed regulations are intended to clarify the coverage of the federal annual and sick leave program with respect to former D.C. government employees, they contain no specific regulatory language to clearly state how the amendments clarify such coverage. While such clarification appears in guidelines contained in FPC Letter 630-32, dated September 7, 1989, addressed to Heads of Departments and Independent Establishments, and will be incorporated in FPC chapter 630, we feel that the amendments under consideration are of such significance and importance to employees transferring between the federal and D.C. government so as to warrant their specific inclusion as stated regulations in title 5, part 630, of the Code of Federal Regulations.

We also suggest that the regulations be amended to specifically clarify the coverage of federal employees who transfer to the D.C. government without a break in service. On this point, we agree with the conclusion reached in the opinion letter dated February 10, 1989, copy enclosed, rendered by the Office of Legal Counsel (OLC), Department of Justice, that a federal government employee who transfers to the D.C. government without a break in service is not entitled to a lump-sum payment of unused annual leave since, under the provisions of 5 U.S.C. Sec. 5551(a) (1982), the employee's transfer is not construed as a "separation from service," inasmuch as a loss or forfeiture of annual leave is not involved. See 49 Comp.Gen. 545 (1970); 40 Comp.Gen. 164 (1960), copies enclosed. Compare 33 Comp.Gen. 622 (1954); Id. at 209 (1953); Id. at 85 (1953); B-116694, Jan. 28, 1976, copies enclosed. Further, 5 U.S.C. Sec. 6308 expressly provides, in pertinent part, that the annual leave of a federal employee who transfers to a position under a different leave system without a break in service shall be transferred to his credit in the employing agency. See also 5 C.F.R. Sec. 630.501(a) (1988). Inasmuch as the D.C. government leave system is considered to be a "different leave system," /1/ and the D.C. government has provided full leave transferability to federal employees who transfer to the D.C. government, /2/ there is no forfeiture of annual leave and, hence, no "separation from the service" within the meaning of 5 U.S.C. Sec. 5551(a).

We also point out with respect to the proposed rule changes, under "Supplementary Information," 3rd full paragraph, last sentence, it is stated: "Under 5 U.S.C. 6306, lump-sum monies will have to be repaid if a separated D.C. government employee enters federal service before the expiration of the time represented by the lump-sum payment." This statement appears to apply only to pre-October 1, 1987, employees of the D.C. government, since, as stated in the attachment to FPC Letter 630-32, the annual leave of individuals first employed by the D.C. government on or after October 1, 1987, is not transferable upon movement to a federal agency.

With respect to the provisions of FPC Letter 630-32, paragraph 3, we concur that federal agencies may not accept the transfer of annual or sick leave earned by a D.C. government employee who was first employed by the D.C. government on or after October 1, 1987. See our opinion letter to the Honorable Stent Hoyel, House of Representatives, B-230344, dated April 5, 1988, copy enclosed. In that opinion, which concerned the leave portability of employees of Saint Elizabeth Hospital who separated from the federal government to take positions with the D.C. government on October 1, 1987, we concluded that the clear effect of section 207(c) of the Federal Employees' Retirement System Act of 1986 (FREEST) /3/ was to preclude leave transferability under chapter 63 of title 5, United States Code, for individuals who were first employed by the D.C. government on or after October 1, 1987. This conclusion is also in accord with the Director of OPM's letter to this Office dated March 2, 1988, copy enclosed.

We would also point out that OPM's proposed change to the "highest previous rate" regulations to provide that a rate received by an individual first employed by the D.C. government on or after October 1, 1987, may not be used as the employee's "highest previous rate," is contrary to the provisions of 5 U.S.C. Sec. 5102 (1988) and 5 C.F.R. Sec. 531.202 (1989). In FPC Bulletin 531-137, April 13, 1989, which expires on April 20, 1990, Attachment 1, which is a copy of the proposed rules that appeared in the 54 Fed. Reg. 13196, March 31, 1989, OPM points out that the current regulations continue to permit the use of a rate paid to an individual while employed by the D.C. government. OPM then states that the proposed regulations would prohibit only the use of a rate received by an individual first employed by the District government on or after October 1, 1987. This attempted prohibition is without legal basis in as much as the "highest previous rate" regulation, 5 C.F.R. Sec. 531.202, defines "employee" as an employee of an agency to which that subpart applies. "Agency" is defined as having the meaning given that word by 5 U.S.C. Sec. 5102. Section 5102(a)(1)(G) currently includes the D.C. government within the definition of "agency." See 5 U.S.C. Sec. 5102 (1988). Therefore, individuals employed by the D.C. government, prior to, on, or after October 1, 1987, are still covered by 5 U.S.C. Sec. 5334, the statutory provisions governing the application of the highest previous rate rule. In this regard, 5 U.S.C. Sec. 5331 defines "employee" and "agency" as having the meanings given them by 5 U.S.C. Sec. 5102. Finally, Public Law 99-335, cited earlier, only amended section 6301(2)(B) of title 5, United States Code, governing federal annual and sick leave coverage, with respect to changing the definition of "employee" to only include individuals employed by the D.C. government before October 1, 1987. Based upon the foregoing legal analysis, OPM may not change its "highest previous rate" regulations to exclude the rate of pay earned by individuals employed by the D.C. government on or after October 1, 1987, from consideration by federal agencies in determining their rates of pay.

We appreciate the opportunity to comment on the proposed rules under consideration. Should you have any questions regarding our position in this matter, you may contact Mr. Barney R. Putnal, Jr. of my staff at 202- 275-6410.

In response to OPM notice of proposed rulemaking to limit the restriction on the applicability of the federal leave law to employees first employed by the D.C. government on or after October 1, 1987, in accordance with 5 U.S.C. Sec. 6301(2)(B) (Supp. IV 1986), this Office advises that the amendments to the regulations be specifically included in title 5, part 630, Code of Federal Regulations and that the regulations be amended to specifically clarify the leave coverage of federal employees who transfer to the D.C. government without a break in service.

With respect to the provisions of OPM Letter 630-32, September 7, 1989, this Office concurs that federal agencies may not accept the transfer of annual or sick leave earned by a D.C. government employee who was first employed by the D.C. government on or after October 1, 1987. Further, that OPM's proposed change to its "highest previous rate" regulations to exclude the rate of pay earned by individuals employed by the D.C. government on or after October 1, 1987, from consideration by federal agencies in determining their rates of pay, is contrary to the provisions of 5 U.S.C. Sec. 5102 (1988) and 5 C.F.R. Sec. 531.202 (1989).

/1/ Michael W. Langelly, B-214541, Sept. 30, 1986.

/2/ 1 D. C. Code 1-613.3 (k).

/3/ Pub. L. No. 99-335, June 6, 1986, 100 Stat. 595.