B-21874, DECEMBER 3, 1941, 21 COMP. GEN. 514

B-21874: Dec 3, 1941

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ARE NOT TEMPORARY EMPLOYEES FOR MILITARY LEAVE PURPOSES AND. 1941: I HAVE YOUR LETTER OF NOVEMBER 14. AS FOLLOWS: ON NUMEROUS OCCASIONS IT HAS BEEN HELD BY YOUR OFFICE THAT TEMPORARY EMPLOYEES OF THE FEDERAL GOVERNMENT ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY WHEN THEY ARE CALLED TO MILITARY OR NAVAL DUTY FOR TRAINING OR FOR INSTRUCTION. THE FOLLOWING STATEMENT IS CONTAINED IN A DECISION DATED JUNE 30. TO THE SECRETARY OF COMMERCE: "THE DIRECTOR OF THE CENSUS IS AUTHORIZED BY SECTION 3 OF THE ACT OF JUNE 18. SUCH PERIOD IS DEFINED BY SECTION 2 OF THE SAME ACT AS "THE PERIOD OF THREE YEARS BEGINNING THE ST DAY OF JANUARY 1930. IT IS FURTHER PROVIDED THAT REGULARLY APPOINTED CENSUS EMPLOYEES MAY BE TRANSFERRED TO SUCH TEMPORARY FORCES WITHOUT LOSS OF PERMANENT CIVIL SERVICE STATUS.

B-21874, DECEMBER 3, 1941, 21 COMP. GEN. 514

LEAVES OF ABSENCE - MILITARY - CENSUS BUREAU EMPLOYEES APPOINTED FOR DURATION OF DECENNIAL CENSUS PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS TRANSFERRED TO TEMPORARY DECENNIAL CENSUS POSITIONS UNDER SECTION 3 OF THE ACT OF JUNE 18, 1929, FOR A PERIOD NOT TO EXCEED THREE YEARS, AND EMPLOYEES ORIGINALLY APPOINTED UNDER THE SAME AUTHORITY FOR LIKE PERIODS, ARE NOT TEMPORARY EMPLOYEES FOR MILITARY LEAVE PURPOSES AND, THEREFORE, WHEN ORDERED TO MILITARY OR NAVAL DUTY FOR TRAINING, MAY BE GRANTED MILITARY LEAVE OF ABSENCE WITH PAY SUBJECT TO THE TERMS AND CONDITIONS OF THE SEVERAL STATUTES AUTHORIZING SUCH LEAVE. 20 COMP. GEN. 163, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, DECEMBER 3, 1941:

I HAVE YOUR LETTER OF NOVEMBER 14, 1941, AS FOLLOWS:

ON NUMEROUS OCCASIONS IT HAS BEEN HELD BY YOUR OFFICE THAT TEMPORARY EMPLOYEES OF THE FEDERAL GOVERNMENT ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY WHEN THEY ARE CALLED TO MILITARY OR NAVAL DUTY FOR TRAINING OR FOR INSTRUCTION.

PARAGRAPH 2 OF SECTION 3 OF THE ACT OF JUNE 18, 1929 (46 STAT. 21), PROVIDING FOR THE FIFTEENTH AND SUBSEQUENT DECENNIAL CENSUSES READS AS FOLLOWS:

"IN ADDITION TO THE FORCE HEREINBEFORE PROVIDED FOR, THERE MAY BE APPOINTED BY THE DIRECTOR OF THE CENSUS, WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT, FOR ANY PERIOD NOT EXTENDING BEYOND THE DECENNIAL CENSUS PERIOD, AT RATES OF COMPENSATION TO BE FIXED BY HIM, AS MANY TEMPORARY EMPLOYEES IN THE DISTRICT OF COLUMBIA AS MAY BE NECESSARY TO MEET THE REQUIREMENTS OF THE WORK: PROVIDED, THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER * * *.'

THE FOLLOWING STATEMENT IS CONTAINED IN A DECISION DATED JUNE 30, 1930 ( MS COMP. GEN. A-32370), TO THE SECRETARY OF COMMERCE:

"THE DIRECTOR OF THE CENSUS IS AUTHORIZED BY SECTION 3 OF THE ACT OF JUNE 18, 1929, 46 STAT. 21, CITED, TO ESTABLISH A TEMPORARY FORCE, FOR A PERIOD NOT EXTENDING BEYOND THE DECENNIAL CENSUS PERIOD. SUCH PERIOD IS DEFINED BY SECTION 2 OF THE SAME ACT AS "THE PERIOD OF THREE YEARS BEGINNING THE ST DAY OF JANUARY 1930, AND EVERY TENTH YEAR THEREAFTER.' IT IS FURTHER PROVIDED THAT REGULARLY APPOINTED CENSUS EMPLOYEES MAY BE TRANSFERRED TO SUCH TEMPORARY FORCES WITHOUT LOSS OF PERMANENT CIVIL SERVICE STATUS. THIS IS A FORCE ORGANIZED TO PERFORM A SPECIAL DUTY INDEFINITE OF DURATION IN SO FAR AS A PARTICULAR EMPLOYEE IS CONCERNED, BUT RELATIVELY PERMANENT IN CHARACTER BY REASON OF THE FACT THAT IT MAY EXTEND OVER THE MAXIMUM PERIOD OF THREE YEARS. THE SALARIES OF THESE EMPLOYEES ARE PROVIDED FOR IN THE ANNUAL APPROPRIATION ACT FOR THE BUREAU OF THE CENSUS, 46 STAT. 198, WHEREIN IT IS PROVIDED THAT "SUCH TEMPORARY EMPLOYEES IN THE DISTRICT OF COLUMBIA MAY BE ALLOWED LEAVE OF ABSENCE WITH PAY AT THE RATE OF TWO AND ONE-HALF DAYS PER NTH.' THIS PROVISION CONTEMPLATES EMPLOYMENT FOR A PERIOD OF TIME DURING WHICH ORDINARY LEAVE MIGHT ACCRUE AND BE AVAILED OF. UNDER THESE CIRCUMSTANCES, IF UNDER THE AGREEMENT OR CONDITIONS OF EMPLOYMENT IN A PARTICULAR CASE, THE EMPLOYMENT IS RELATIVELY PERMANENT IN CHARACTER, AS CONTEMPLATED BY THE LEAVE PROVISIONS OF THE CITED ACT, AS DISTINGUISHED FROM EMPLOYMENT FROM DAY TO DAY OR A DEFINITELY FIXED TIME, PURELY TEMPORARY IN CHARACTER, IT WOULD SEEM THAT MILITARY LEAVE WITH PAY MIGHT BE GRANTED, * * *"

THE APPOINTMENT CERTIFICATES OF PERMANENT EMPLOYEES TRANSFERRED TO TEMPORARY POSITIONS PURSUANT TO SECTION 3 OF THE ACT OF JUNE 18, 1929, SUPRA, CONTAIN THE FOLLOWING STATEMENT:

"THIS APPOINTMENT IS MADE WITH THE UNDERSTANDING THAT IT IS TEMPORARY, AND THAT AT THE EXPIRATION OF THE SIXTEENTH DECENNIAL CENSUS PERIOD, DECEMBER 31, 1942, OR PRIOR THERETO IF CONDITIONS MAKE THAT ACTION NECESSARY, YOU WILL REVERT TO THE STATUS OCCUPIED BY YOU ON THE PERMANENT ROLL AT THE TIME OF SAID TRANSFER, SUBJECT TO SUCH CHANGES IN SAID PERMANENT ROLL AS MAY HAVE MEANWHILE OCCURRED OR MAY THEN BE LAWFUL OR PRACTICABLE.'

EMPLOYEES APPOINTED SOLELY FOR THE PERFORMANCE OF SIXTEENTH DECENNIAL CENSUS WORK RECEIVE AN APPOINTMENT CERTIFICATE WHICH READS AS FOLLOWS:

"YOU ARE HEREBY APPOINTED SUBJECT TO TAKING THE OATH OF OFFICE, .......... IN THE BUREAU OF THE CENSUS, AT A COMPENSATION OF ........... PER DIEM, EVERY DAY, TO TAKE EFFECT ....................

"YOUR APPOINTMENT CANNOT EXTEND BEYOND DECEMBER 31, 1942, AND MAY BE TERMINATED AT ANY TIME PRIOR THERETO BY REASON OF UNSATISFACTORY SERVICE, MISCONDUCT, OR A NECESSARY REDUCTION OF THE FORCE.'

PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS TRANSFERRED TO TEMPORARY POSITIONS AND EMPLOYEES ORIGINALLY APPOINTED FOR THE PERFORMANCE OF SIXTEENTH CENSUS WORK ARE RATED ON EFFICIENCY ANNUALLY AND SEMIANNUALLY, RESPECTIVELY. ALL SUCH EMPLOYEES ARE, OF COURSE, ENTITLED TO LEAVE UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161-1162), BUT NEITHER GROUP IS REGARDED AS "TEMPORARY" UNDER THE REGULATIONS ISSUED BY THE PRESIDENT PURSUANT TO THOSE ACTS.

IN VIEW OF YOUR DECISION OF SEPTEMBER 18, 1940 (20 COMP. GEN. 163), TO THE SECRETARY OF THE NAVY, IN WHICH IT IS HELD, INTER ALIA, THAT "MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO ANY EMPLOYEE SERVING UNDER AN APPOINTMENT DESIGNATED AS "TEMPORARY" REGARDLESS OF THE LENGTH THEREOF," YOUR DECISION IS REQUESTED AS TO WHETHER (A) PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS TRANSFERRED TO TEMPORARY DECENNIAL CENSUS POSITIONS UNDER THE TERMS OF SECTION 3 OF THE ACT OF JUNE 18, 1929, SUPRA, FOR A PERIOD NOT TO EXCEED DECEMBER 31, 1942, AND (B) EMPLOYEES ORIGINALLY APPOINTED UNDER THE SAME AUTHORITY AND FOR LIKE PERIODS, MAY BE GRANTED MILITARY LEAVE WITH PAY.

IN DECISION OF SEPTEMBER 18, 1940, 20 COMP. GEN. 163, 166, CITED IN YOUR LETTER, IT WAS STATED:

IN THE DECISION OF SEPTEMBER 4, 1940, B-11963, 20 COMP. GEN. 123, THERE WAS RESTATED AND AFFIRMED THE GENERAL RULE STATED IN A NUMBER OF DECISIONS RENDERED PRIOR TO JANUARY 1, 1936 (THE EFFECTIVE DATE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, GRANTING ANNUAL LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES), THAT MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO TEMPORARY EMPLOYEES. OF COURSE, THESE PRIOR DECISIONS DID NOT DEFINE "TEMPORARY" EMPLOYEES, AS THAT TERM HAS BEEN DEFINED IN SECTION 1 (C) OF THE ANNUAL LEAVE REGULATIONS--- ,THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.' SEE PARTICULARLY 6 COMP. GEN. 178; ID. 275; 9 ID. 119. THERE IS NOTHING IN THE ANNUAL LEAVE ACT OF MARCH 14, 1936, SUPRA, OR IN THE ANNUAL LEAVE REGULATIONS, APPLICABLE TO MILITARY LEAVE OF ABSENCE WITH PAY. REFERRING TO THE FIFTH PARAGRAPH OF YOUR LETTER IT IS CONCLUDED, THEREFORE, THAT MILITARY LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO ANY EMPLOYEE SERVING UNDER AN APPOINTMENT DESIGNATED AS MPORARY," REGARDLESS OF THE LENGTH THEREOF.

THAT DECISION WAS BUT THE REITERATION OF A LONG LINE OF DECISIONS HOLDING THAT THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH THE TEMPORARY EMPLOYMENT OF PERSONNEL.

THE ACT OF JUNE 18, 1929, 46 STAT. 21, QUOTED IN YOUR LETTER, IS A SPECIAL STATUTE AUTHORIZING APPOINTMENT OF A SPECIAL CLASS OF SO-CALLED TEMPORARY EMPLOYEES WHOSE TENURE IS LONGER THAN THAT FIXED UNDER THE USUAL TEMPORARY APPOINTMENT BUT IS LIMITED TO THE PERIOD NECESSARY TO TAKE THE DECENNIAL CENSUS. THE EMPLOYEES OCCUPYING THESE TEMPORARY POSITIONS HAVE BEEN CONSIDERED BOTH AS ,PERMANENT" AND "TEMPORARY" FOR DIFFERENT PURPOSES. THEY ARE "PERMANENT" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND ACCORDINGLY, ARE ENTITLED TO LEAVE AT THE RATE AUTHORIZED FOR PERMANENT EMPLOYEES. WHILE OCCUPYING SUCH TEMPORARY POSITIONS THEY ARE "TEMPORARY" FOR THE PURPOSE OF FIXING INITIAL SALARY RATES UPON TRANSFER OR RETRANSFER TO THE REGULAR PERMANENT CENSUS ROLL. DECISION OF OCTOBER 28, 1941, B-21205, 21 COMP. GEN. 386. COMPARE DECISION OF NOVEMBER 8, 1941, B-21320, 21 COMP. GEN. 436, INVOLVING A TEACHER IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA. IN THE LETTER OF JUNE 30, 1930, A-32370, QUOTED IN YOUR LETTER, IT WAS SUGGESTED THAT SINCE THESE EMPLOYEES WERE RELATIVELY PERMANENT IN CHARACTER IN THAT THEIR SERVICES MIGHT EXTEND OVER THE MAXIMUM PERIOD OF 3 YEARS, THEY COULD BE CLASSED OTHER THAN AS "TEMPORARY" FOR THE PURPOSE OF GRANTING THEM MILITARY LEAVE OF ABSENCE WITH PAY.

IN VIEW OF THE TERMS OF THE ACT OF JUNE 18, 1929, SUPRA, INCLUDING THE PROVISION THAT THESE EMPLOYEES WHO ARE TRANSFERRED FROM THE PERMANENT ROLL TO OCCUPY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL SERVICE STATUS, AND AS THE TENURE OF SUCH TEMPORARY APPOINTMENTS IS GREATLY IN EXCESS OF THAT FIXED UNDER THE USUAL TYPE OF TEMPORARY APPOINTMENT PRESCRIBED BY LAW OR CIVIL SERVICE REGULATIONS, THERE DOES NOT EXIST, AS TO THESE "TEMPORARY" CENSUS POSITIONS, THE BASIC REASON FOR DENYING MILITARY LEAVE TO TEMPORARY EMPLOYEES, GENERALLY. THAT IS, IT WOULD NOT APPEAR INCONSISTENT WITH THE TENURE OF THEIR EMPLOYMENT TO GRANT THEM MILITARY LEAVE OF ABSENCE WITH PAY WHEN THEY ARE REQUIRED UNDER PROPER ORDERS TO UNDERGO MILITARY TRAINING AS A MEMBER OF THE NATIONAL GUARD, OFFICERS' RESERVE CORPS OF THE ARMY, OR NAVAL RESERVE, SUBJECT TO THE TERMS AND CONDITIONS OF THE SEVERAL STATUTES GRANTING SUCH LEAVE.

YOU ARE ADVISED, THEREFORE, THAT THE HOLDING IN THE DECISION OF SEPTEMBER 18, 1940, SUPRA, AND OTHER RELATED DECISIONS DENYING MILITARY LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES IS NOT APPLICABLE TO CENSUS EMPLOYEES WHO ARE APPOINTED FOR THE DURATION OF THE DECENNIAL CENSUS UNDER AUTHORITY OF THE ACT OF JUNE 18, 1929, SUPRA, AND THAT MILITARY LEAVE OF ABSENCE WITH PAY MAY BE GRANTED TO THE TWO CLASSES OF EMPLOYEES DESCRIBED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IF THEY OTHERWISE QUALIFY UNDER THE TERMS OF THE CONTROLLING STATUTES.