B-230344, Apr 5, 1988

B-230344, Apr 5, 1988

CIVILIAN PERSONNEL - Leaves of Absence - Annual leave - Unused leave balances - Leave transfer CIVILIAN PERSONNEL - Leaves of Absence - Sick leave - Unused leave balances - Leave transfer DIGEST: Former federal employees of Saint Elizabeths Hospital who transferred to the District of Columbia government on October 1, 1987, pursuant to Pub. L. No. 98-621, are not entitled to transfer of their annual and sick leave balances should they return to federal service. An amendment to 5 U.S.C. Sec. 6301 enacted after Pub. L. No. 98-621 limited annual and sick leave transferability for former District of Columbia employees who join the federal government to those individuals who were first employed by the District government before October 1, 1987.

The Honorable Steny Hoyer, House of Representatives:

This responds to your letter of January 12, 1988, concerning the leave portability of employees of Saint Elizabeths Hospital who separated from the federal government to take positions with the District of Columbia government on October 1, 1987, pursuant to the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act (hereafter the Saint Elizabeths Act). /1/ Specifically, you ask whether such employees can transfer their annual and sick leave balances back to the federal government if they return to federal service. For the reasons that follow, we conclude that the employees are not entitled to leave transfer. /2/

The Saint Elizabeths Act provided for the transfer of the functions, programs and resources of Saint Elizabeths Hospital from the federal government to the District of Columbia. Section 2(b)(4) of the Act /3/ stated the intent of Congress that:

"the transition to a comprehensive District mental health system provided for by this Act be carried out with maximum consideration for the interests of employees of the Hospital and provide a rightof-first refusal to such employees for employment at comparable levels in positions created under the system implementation plan. ..."

Consistent with this intent, section 6 of the Act /4/ provided for the employment of Hospital employees by the District of Columbia government. Section 7 specified a number of conditions of employment for such employees, among which were the following:

"(a) Each individual accepting employment without a break in service with the District government pursuant to section 6 shall--

"(3) notwithstanding chapter 63 of title 5, United States Code, transfer accrued annual and sick leave balances pursuant to title XII of the District of Columbia Comprehensive Merit Personnel Act of 1978;

"(6) be entitled to the same health and life insurance benefits as are available to District employees in the applicable service;

"(7) if employed by the Federal Government before January 1, 1984, continue to be covered by the United States Civil Service Retirement System, under chapter 83 of title 5, United States Code, to the same extent that such retirement system covers District Government employees; and

"(8) if employed by the Federal Government on or after January 1, 1984, be subject to the retirement system applicable to District government employees pursuant to title XXVI, Retirement, of the District of Columbia Government Comprehensive Merit Personnel Act of 1978." /5/

Federal annual and sick leave entitlements are governed by chapter 63 of title 5 of the United States Code, 5 U.S.C. Secs. 6301 et seq. With respect to leave transferability, 5 U.S.C. Sec. 6308 (1982) provides in part:

"The annual and sick leave to the credit of an employee who transfers between positions under different leave systems without a break in service shall be transferred to his credit in the employing agency on an adjusted basis under regulations prescribed by the Office of Personnel Management.

At the time the Saint Elizabeths Act was enacted in 1984, the definition of "employee" for purposes of chapter 63 of title 5 specifically included "an individual employed by the government of the District of Columbia." U.S.C. Sec. 6301(2)(B) (1982). By virtue of this definition, any former District of Columbia employee who accepted an appointment with the federal government was entitled to transfer his or her annual and sick leave balances. /6/ Therefore, while the Saint Elizabeths Act did not address leave transferability for Hospital employees who accepted employment with the District government and later returned to federal service, such employees would have had the same leave transfer rights granted to other District employees by the chapter 63 provisions in effect at the time of enactment of the Saint Elizabeths Act.

The leave transferability rights of District employees changed, however, with the enactment of the Federal Employees' Retirement System Act of 1986 (FERSA) on June 6, 1986. /7/ Section 207(c) of FERSA, 100 Stat. 595, amended 5 U.S.C. Sec. 6301(2)(B), which had included District of Columbia employees generally within the definition of "employee" for purposes of federal annual and sick leave coverage, to read:

"an individual first employed by the government of the District of Columbia before October 1, 1987."

The clear effect of section 2O7(c) of FERSA was to preclude leave transferability under chapter 63 of title 5 for individuals who were first employed by the District government on or after October 1, 1987. Since the Saint Elizabeths Hospital employees here involved were first employed by the District government on October 1, 1987, they do not satisfy the definition of "employee" for leave transferability purposes under 5 U.S.C. Sec. 6301(2)(B) as amended by section 207(c) of FERSA. We find no legal basis to overcome a literal application of the plain terms of 5 U.S.C. Sec. 6301(2)(B) as amended by section 207 of FERSA to the Saint Elizabeths employees. In fact, this result is reenforced by another recently enacted statutory provision, discussed below, that ameliorated the situation of the Saint Elizabeths employees with respect to benefits other than leave transferability.

In addition to restricting leave transferability, section 207 of FERSA had limited participation by District government employees in federal retirement, life insurance and health insurance programs to those individuals first employed by the District before October 1, 1987. Section 109 of Pub. L. No. 100-238 (January 8, 1988), 101 Stat. 1748, amended section 207 of FERSA to include the following new subsection:

"(o) An employee of Saint Elizabeths Hospital who is appointed to a position in the government of the District of Columbia on October 1, 1987, pursuant to the Saint Elizabeths Hospital and District of Columbia Mental Health Services Act (Public Law 98-621; 98 Stat. 3369 and following) shall, for purposes of chapters 83, 87, and 89 of title 5, United States Code, be treated in the same way as an individual first employed by the government of the District of Columbia before October 1, 1987."

The House Post Office and Civil Service Committee report on the legislation enacted as Pub. L. No. 100-238 explained this provision as follows:

"The Saint Elizabeths Hospital and District of Columbia Mental Health Services Act (Public Law 98-621) transferred control of Saint Elizabeths Hospital from the Federal Government to the government of the District of Columbia effective October 1, 1987. Employees of Saint Elizabeths who prior to the transfer were Federal employees, were offered positions with the D.C. Government. As Federal employees these individuals were covered by the Federal Government's retirement, life insurance, and health insurance programs. Many accepted appointments and were appointed as D.C. employees on October 1, 1987. Congress intended that this coverage continue.

"FERSA prospectively terminated retirement, life insurance, and health insurance coverage for D.C. employees first employed by the D.C. government on or after October 1, 1987 (FERSA, section 207(f), (k), and (1)). D.C. employees first employed before that date continue retirement, life insurance, and health insurance coverage. FERSA was not intended to result in a loss of coverage by any employee.

"By coincidence, the Saint Elizabeths employees who were appointed to D.C. positions on October 1 are ineligible for coverage since they were first employed by the D.C. government on October 1. Thus, they have lost Federal retirement, health insurance, and life insurance coverage, a result never intended by Congress.

"Section 109 of the committee amendment corrects this unintended situation. ..." /8/

Pub. L. No. 100-238, however, does not exempt the Saint Elizabeths employees from the effect of section 207 of FERSA as it applies to leave transferability.

Finally, officials of the District government have informally suggested to us that the action of Congress in making the Saint Elizabeths employees subject to federal retirement under chapter 83 of title 5 may provide a basis for leave transferability. They point to the language in 5 U.S.C. Sec. 6303(a) (1982) that:

"... In determining years of service, an employee is entitled to credit for all service creditable under section 8332 of this title for the purpose of an annuity under subchapter III of chapter 83 of this title.

However, this language is relevant only to determining the proper annual leave accrual category (4, 6 or 8 hours per pay period) for an employee who is covered by chapter 63. We do not believe that it has a bearing on whether an individual is subject to chapter 63 in the first instance.

In summary, it is our opinion that Saint Elizabeths Hospital employees who were first employed by the District government on or after October 1, 1987, are not eligible for leave transfer under chapter 63 of title 5.

/1/ Pub. L. No. 98-621, approved November 8, 1984, 98 Stat. 3369, 24 U.S.C. Secs. 225 et seq. (Supp. III, 1985).

/2/ The Office of Personnel Management (OPM) also has concluded that these Saint Elizabeths employees have no leave transfer entitlements. See the OPM Director's letter to us dated March 2, 1988 (copy enclosed). The Director's letter notes that the employees may be entitled to a recredit of sick leave in some circumstances, in accordance with 5 C.F.R. Sec. 630.502(b) (1987).

/3/ 98 Stat. 3370, 24 U.S.C. Sec. 225(b)(4).

/4/ 98 Stat. 3374, 24 U.S.C. Sec. 225d.

/5/ 98 Stat 3375-76, 24 U.S.C. Sec. 225e(a)(3), (6)-(8).

/6/ An issue had arisen over whether the transferability of leave for District government employees under chapter 63 of title 5 was eliminated when the District adopted its Comprehensive Merit Personnel Act of 1978, D.C. Law 2-139 (March 3, 1979). Our decision Michael W. Langello, B-214541, Sept. 30, 1986, held that it was not. The Office of Legal Counsel, Department of Justice, concurred in this result and it was accepted by OPM.

/7/ Pub. L. No. 99-335, 100 Stat. 514.

/8/ H.R. Rep. No. 100-374, 100th Cong., 1st Sess. 24-25 (1987), 1988 U.S.Code, Cong. & Admin. News 3217, 3223-24.