B-37154, OCTOBER 5, 1943, 23 COMP. GEN. 260

B-37154, OCTOBER 5, 1943, 23 COMP. GEN. 260

LEAVES OF ABSENCE - CONSULTANTS EMPLOYED ON "WHEN ACTUALLY EMPLOYED" BASIS A CONSULTANT ORIGINALLY APPOINTED TO AN EXCEPTED POSITION ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS FOR A PERIOD NOT TO EXCEED 90 DAYS WHOSE APPOINTMENT WAS EXTENDED FOR ANOTHER 90 DAY PERIOD SHOULD BE REGARDED AS A "TEMPORARY" EMPLOYEE--- RATHER THAN AN "INDEFINITE" EMPLOYEE--- WITHIN THE MEANING OF THE ANNUAL LEAVE REGULATIONS, AND, AS SUCH, IS ENTITLED TO ACCRUAL OF ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH. UNDER SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, PRESCRIBING CONDITIONS FOR THE TRANSFER OF ACCUMULATED AND ACCRUED LEAVE OF EMPLOYEES WHO TRANSFER FROM ONE POSITION TO ANOTHER IN THE FEDERAL SERVICE, AN EMPLOYEE WHO TRANSFERRED FROM A PERMANENT POSITION IN ONE FEDERAL SERVICE, AN EMPLOYEE WHO TRANSFERRED FROM A PERMANENT POSITION IN ONE FEDERAL AGENCY TO A TEMPORARY POSITION IN ANOTHER SUCH AGENCY IS NOT ENTITLED TO HAVE RECREDITED TO HIM THE LEAVE WHICH HE HAD TO HIS CREDIT WHEN HE TRANSFERRED TO THE TEMPORARY POSITION.

COMPTROLLER GENERAL WARREN TO HAROLD H. SIEWERDSEN, WAR DEPARTMENT, OCTOBER 5, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 22, 1943, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION A PAYROLL IN THE AMOUNT OF $246.00, COVERING PAYMENT FOR 12 DAYS, SEPTEMBER 1-15, 1943, INCLUSIVE (EXCLUDING SUNDAYS AND LABOR DAY), OF WHICH 10 DAYS SEPTEMBER 2-14, 1943, WAS PAYMENT FOR ANNUAL LEAVE. IN THE LIGHT OF THE FACTS HEREIN STATED, PLEASE ADVISE ME IF I MAY PROPERLY CERTIFY THE ROLL FOR PAYMENT.

MR. MILTON MACKAYE WAS GIVEN AN EXCEPTED APPOINTMENT AS EXPERT CONSULTANT TO THE UNDER SECRETARY OF WAR, AT $25.00 PER DIEM, EFFECTIVE MAY 11, 1943, UNDER SECTION 8 OF THE MILITARY APPROPRIATION ACT OF 1943 FOR A PERIOD NOT TO EXCEED 90 DAYS. HE TOOK OATH AND ENTERED ON DUTY MAY 11, 1943, COMING TO THE WAR DEPARTMENT WITHOUT BREAK IN SERVICE FROM OFFICE OF WAR INFORMATION, WHERE HE HAD HELD A CLASSIFIED POSITION AS INFORMATION ANALYST, CAF-15, AT $8,000 PER ANNUM. HE HAD HELD THAT POSITION FROM DECEMBER 1941 THROUGH MAY 10, 1943. HOWEVER, BECAUSE OF THE TERMINOLOGY OF THE APPOINTMENT ACTION IN THE WAR DEPARTMENT,"FOR A PERIOD NOT TO EXCEED 90 DAYS," NO REQUEST WAS MADE TO OFFICE OF WAR INFORMATION FOR A TRANSCRIPT OF HIS LEAVE, SINCE IT WAS FELT THAT HE WAS A "TEMPORARY EMPLOYEE" AS DEFINED UNDER GOVERNMENT LEAVE REGULATIONS.

BEGINNING MAY 11, 1943, MR. MACKAYE WORKED 90 CONSECUTIVE DAYS THROUGH AUGUST 10, 1943, EXCEPTING SUNDAYS. ON AUGUST 11, 1943, AN ACTION WAS PROCESSED EXTENDING HIS EXCEPTED APPOINTMENT, SAME POSITION AND PER DIEM, UNDER SECTION 9 OF THE MILITARY APPROPRIATION ACT OF 1944, FOR AN ADDITIONAL PERIOD OF 90 DAYS. FROM AUGUST 11, 1943, THROUGH SEPTEMBER 1, 1943, THIS EMPLOYEE AGAIN WORKED EVERY DAY EXCEPTING SUNDAYS.

ON SEPTEMBER 2, 1943, HE ENTERED ON ANNUAL LEAVE FOR THE PERIOD SEPTEMBER 2-14, 1943, A TOTAL OF 13 DAYS, EXCEPTING SUNDAYS SEPTEMBER 5 AND 12, AND LABOR DAY, SEPTEMBER 6, MAKING A TOTAL OF 10 DAYS FOR WHICH HE IS REQUESTING PAY.

THE QUESTION ARISES (1) WHETHER OR NOT MR. MACKAYE IS ACTUALLY A "TEMPORARY APPOINTEE" UNDER THE DEFINITION GIVEN IN GOVERNMENT ANNUAL AND SICK LEAVE LAWS AND REGULATIONS, WHICH STATES " TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS, OR WHETHER (2) HE IS AN "INDEFINITE EMPLOYEE" WHICH DEFINITION IS " INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

IF WE MAY JUDGE FROM THE WORDING OF THE APPOINTING ACTION, TAKEN IN CONJUNCTION WITH THE ACTUAL SERVICE RENDERED, THEN THIS EMPLOYEE IS "TEMPORARY" AS DEFINED IN THE LEAVE REGULATIONS, AND WOULD BE ENTITLED TO EARN LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH FOR EACH FULL MONTH OF SERVICE. THEREFORE, FROM MAY 11 THROUGH AUGUST 10, 1943, HE WOULD HAVE A CREDIT OF 7 1/2 DAYS OF LEAVE AVAILABLE FOR USE WHEN HE STARTED HIS VACATION ON SEPTEMBER 2, 1943. ALSO, ANY LEAVE ACCRUED AND ACCUMULATED WITH THE OFFICE OF WAR INFORMATION WOULD NOT BE TRANSFERABLE.

ON THE OTHER HAND, IF THE WORDING OF THE ACTION "FOR A PERIOD NOT TO EXCEED 90 DAYS" WERE TAKEN ALONE IT MIGHT BE CONSTRUED TO MEAN ANY 90 DAYS NOT LIMITED TO A SPECIFIC PERIOD OF TIME, OR ,INDEFINITE" IN NATURE, AND THE FACT THAT HE WORKED 90 CONSECUTIVE DAYS WOULD NOT AFFECT THE QUESTION IN ANY WAY. IN THIS SECOND ANALYSIS THE EMPLOYEE WOULD BE ENTITLED TO A TRANSFER OF LEAVE FROM OFFICE OF WAR INFORMATION AND BE ENTITLED TO ACCRUE LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH FOR EACH FULL MONTH OF SERVICE.

THE PAYROLL WAS SUBMITTED TO ME ON THE ASSUMPTION OF (2) ABOVE THAT MR. MACKAYE IS PROPERLY TO BE CONSIDERED AS AN "INDEFINITE EMPLOYEE" PAID ONLY WHEN ACTUALLY EMPLOYED, AND THEREFORE ENTITLED TO HAVE HIS LEAVE TRANSFERRED AND BE PAID FOR FOR THE ENTIRE PERIOD OF ABSENCE, OR 10 DAYS.

HOWEVER, I DO NOT FEEL THAT I MAY PROPERLY CERTIFY THE PAYROLL INASMUCH AS THE APPOINTMENT ACTION AND EXTENSION FOR AN ADDITIONAL 90 DAYS, PLUS CONTINUOUS SERVICE, INDICATES A "TEMPORARY" TYPE OF APPOINTMENT.

YOUR EARLY DECISION IN THIS MATTER WILL BE GREATLY APPRECIATED.

IN DECISION OF NOVEMBER 17, 1938, 18 COMP. GEN. 457, THE FOLLOWING QUESTION AND ANSWER WERE STATED:

QUESTION

(4) WHERE AN EMPLOYEE IS GIVEN AN APPOINTMENT FOR ANY DEFINITE PERIOD OF LESS THAN SIX MONTHS TO BE PAID AT SO MUCH PER DIEM ONLY "WHEN ACTUALLY EMPLOYED," IS HE (A) AN INDEFINITE EMPLOYEE AND ENTITLED TO LEAVE, OR (B) A TEMPORARY EMPLOYEE AND LIKEWISE ENTITLED TO LEAVE, OR (C) AN EMPLOYEE NOT ENTITLED TO ANY LEAVE PRIVILEGES UNDER THE NEW ANNUAL- AND SICK-LEAVE REGULATIONS FOR THE REASON THAT HE CANNOT BE CLASSIFIED EITHER AS INDEFINITE BECAUSE APPOINTED FOR A DEFINITE PERIOD OF TIME, EVEN THOUGH PAID "WHEN ACTUALLY EMPLOYED," OR AS TEMPORARY BECAUSE PAID ONLY "WHEN ACTUALLY EMPLOYED.'

ANSWER

THE EMPLOYEE IN QUESTION (4) WOULD BE CONSIDERED A TEMPORARY EMPLOYEE AND AS SUCH ENTITLED TO LEAVE WHEN HE SHOULD HAVE RENDERED A SUFFICIENT PERIOD OF CONTINUOUS SERVICE.

IN DECISION OF JANUARY 7, 1939, 18 COMP. GEN. 596, IT WAS HELD:

TEMPORARY SERVICE FOR A PERIOD OF 6 MONTHS UNDER A 3 MONTHS' INITIAL APPOINTMENT WHICH IS EXTENDED WITHOUT BREAK IN SERVICE FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 2 OF RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR LEAVE PURPOSES UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AND THE UNUSED LEAVE ACCRUED PRIOR TO THE EXTENSION MAY BE SUBSTITUTED FOR A PERIOD OF LEAVE WITHOUT PAY AFTER THE DATE OF THE EXTENSION. SEE, ALSO, 20 COMP. GEN. 332, 661.

UNDER THE PLAIN TERMS OF THE DEFINITION OF "TEMPORARY" EMPLOYEES, APPEARING IN THE LEAVE REGULATIONS, AND UNDER THE RULES STATED IN THE CITED DECISIONS, MR. MACKAYE IS A "TEMPORARY" EMPLOYEE FOR LEAVE PURPOSES AND ENTITLED TO ACCRUAL OF ANNUAL LEAVE AS SUCH AT THE RATE OF 2 1/2 DAYS PER MONTH. THERE IS SEEN NO MERIT IN THE ALTERNATIVE SUGGESTION CONTAINED IN YOUR LETTER THAT HE MIGHT BE REGARDED AS AN "INDEFINITE" EMPLOYEE FOR LEAVE PURPOSES. OF COURSE, UNDER PARAGRAPH 6 OF LEAVE REGULATIONS, THE LEAVE EARNED BY HIM IN THE OFFICE OF WAR INFORMATION COULD NOT HAVE BEEN TRANSFERRED TO HIM IN HIS PRESENT TEMPORARY POSITION. SEE 22 COMP. GEN. 429.

HOWEVER, IN DECISION OF AUGUST 5, 1941, 21 COMP. GEN. 101, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AFTER THE FIRST MONTH OF SERVICE ANNUAL LEAVE MAY BE CREDITED TO TEMPORARY EMPLOYEES AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES BUT IT IS TO BE NOTED THAT SUCH EMPLOYEES ARE NOT ENTITLED TO SUCH LEAVE FOR A FRACTIONAL MONTH'S SERVICE.

HENCE, AS MR. MACKAYE IS UNDERSTOOD FROM YOUR LETTER TO HAVE WORKED CONTINUOUSLY ON ALL WORK DAYS, HE HAD TO HIS CREDIT ON AUGUST 11, THE AMOUNT OF 10 DAYS ANNUAL LEAVE, REPRESENTING 2 1/2 DAYS FOR THE SERVICE MONTH FROM MAY 11 THROUGH JUNE 10, 2 1/2 DAYS FOR THE SERVICE MONTH FROM JUNE 11 THROUGH JULY 10, 2 1/2 DAYS FOR THE SERVICE MONTH FROM JULY 11 THROUGH AUGUST 10, AND 2 1/2 DAYS FOR THE SERVICE MONTH FROM AUGUST 11 THROUGH SEPTEMBER 10, 1943. ACCORDINGLY, IT WAS NOT IMPROPER TO HAVE APPROVED HIS APPLICATION FOR 10 DAYS ANNUAL LEAVE; BEGINNING SEPTEMBER 2, 1943. HE MAY BE PAID THE PROPER AMOUNT OF COMPENSATION DUE HIM FOR THE PERIOD SEPTEMBER 1 TO 15 COVERED BY THE PAY ROLL VOUCHER FORWARDED WITH YOUR LETTER--- A TOTAL OF 12 DAYS COMPENSATION-- INCLUDING 10 DAYS LEAVE AND FOR SEPTEMBER 1 AND 15, ON WHICH DAYS IT IS UNDERSTOOD HE WORKED. THERE IS CALLED TO YOUR ATTENTION THE FACT THAT THE VOUCHER APPEARS TO COVER BASIC COMPENSATION ONLY, THAT IS, $25 PER DIEM FOR 12 DAYS, A TOTAL OF $300, AND THAT MR. MACKAYE MAY BE ENTITLED, ALSO, TO ADDITIONAL COMPENSATION UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75. SEE 23 COMP. GEN. 17.