B-37387, OCTOBER 16, 1943, 23 COMP. GEN. 277

B-37387: Oct 16, 1943

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LEAVES OF ABSENCE - ANNUAL - COOPERATIVE EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE COOPERATIVE EMPLOYEES EMPLOYED UNDER THE SUPERVISION AND CONTROL OF THE DEPARTMENT OF AGRICULTURE FOR HALF OF THE YEAR (DURING WHICH PERIOD THEY ARE REGARDED AS FEDERAL EMPLOYEES) AND UNDER THE SUPERVISION AND CONTROL OF A STATE OR OTHER COOPERATING AGENCY FOR THE REMAINDER OF THE YEAR (DURING WHICH PERIOD THEY ARE NOT REGARDED AS FEDERAL EMPLOYEES) WHO RESIGN WHILE SERVING WITH THE COOPERATING AGENCY TO ACCEPT NON GOVERNMENT WORK. OR WHO ARE INDUCTED INTO THE ACTIVE MILITARY OR NAVAL FORCES. COOPERATIVE EMPLOYEES EMPLOYED UNDER THE SUPERVISION AND CONTROL OF THE DEPARTMENT OF AGRICULTURE DURING SIX MONTHS OF THE YEAR AND UNDER THE SUPERVISION AND CONTROL OF A STATE OR OTHER COOPERATING AGENCY DURING THE OTHER SIX MONTHS ARE REGARDED AS FEDERAL EMPLOYEES ONLY DURING THE PERIOD THEY ARE SERVING UNDER FEDERAL SUPERVISION.

B-37387, OCTOBER 16, 1943, 23 COMP. GEN. 277

LEAVES OF ABSENCE - ANNUAL - COOPERATIVE EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE COOPERATIVE EMPLOYEES EMPLOYED UNDER THE SUPERVISION AND CONTROL OF THE DEPARTMENT OF AGRICULTURE FOR HALF OF THE YEAR (DURING WHICH PERIOD THEY ARE REGARDED AS FEDERAL EMPLOYEES) AND UNDER THE SUPERVISION AND CONTROL OF A STATE OR OTHER COOPERATING AGENCY FOR THE REMAINDER OF THE YEAR (DURING WHICH PERIOD THEY ARE NOT REGARDED AS FEDERAL EMPLOYEES) WHO RESIGN WHILE SERVING WITH THE COOPERATING AGENCY TO ACCEPT NON GOVERNMENT WORK, OR WHO ARE INDUCTED INTO THE ACTIVE MILITARY OR NAVAL FORCES, MAY NOT BE RESTORED TO FEDERAL POSITIONS SOLELY FOR THE PURPOSE OF GRANTING ACCUMULATED ANNUAL LEAVE EARNED BY THEM UNDER THEIR PREVIOUS FEDERAL EMPLOYMENT. COOPERATIVE EMPLOYEES EMPLOYED UNDER THE SUPERVISION AND CONTROL OF THE DEPARTMENT OF AGRICULTURE DURING SIX MONTHS OF THE YEAR AND UNDER THE SUPERVISION AND CONTROL OF A STATE OR OTHER COOPERATING AGENCY DURING THE OTHER SIX MONTHS ARE REGARDED AS FEDERAL EMPLOYEES ONLY DURING THE PERIOD THEY ARE SERVING UNDER FEDERAL SUPERVISION, AND, THEREFORE, A COOPERATIVE EMPLOYEE WHO ENTERS THE ACTIVE MILITARY OR NAVAL FORCES DIRECTLY FROM SERVICE WITH A COOPERATING AGENCY MAY NOT BE REGARDED AS AN "EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AS AMENDED, SO AS TO ENTITLE HIM TO PAYMENT, CONCURRENTLY WITH MILITARY SERVICE, FOR ACCRUED ANNUAL LEAVE EARNED DURING HIS PREVIOUS FEDERAL SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 16, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1943, AS FOLLOWS:

IN CARRYING OUT THE WORK OF THIS DEPARTMENT, A NUMBER OF PERSONS ARE EMPLOYED UNDER COOPERATIVE AGREEMENTS BETWEEN THE DEPARTMENT AND VARIOUS INDIVIDUALS, AGENCIES AND STATES. A COMPREHENSIVE DESCRIPTION OF THE COOPERATIVE ACTIVITIES OF THE DEPARTMENT UNDER WHICH SUCH EMPLOYMENT OCCURS WAS INCLUDED IN THE SUBMISSION QUOTED IN 17 COMP. GEN. 362. THAT DECISION IT WAS HELD THAT PERSONS COOPERATIVELY EMPLOYED, WHOSE DUTIES AND TIME OF WORK ARE SUPERVISED AND CONTROLLED BY FEDERAL OFFICERS, ARE EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, ACCRUES ONLY DURING THE PERIOD THE EMPLOYEES ARE UNDER FEDERAL CONTROL, BUT THAT SUCH EMPLOYEES MAY BE REGARDED AS IN A CONTINUOUS DUTY STATUS, AND THEIR FEDERAL LEAVE CARRIED OVER FROM ONE PERIOD OF FEDERAL CONTROL OF ONE MONTH OR MORE TO ANOTHER.

CERTAIN QUESTIONS HAVE ARISEN IN REGARD TO THE LEAVE RIGHTS OF EMPLOYEES WHO, AT THE TIME OF INDUCTION INTO THE ARMED FORCES, ARE COOPERATIVELY EMPLOYED UNDER THE CONTROL OF THE COOPERATOR BUT WHO, IN ACCORDANCE WITH THE DECISION IN 17 COMP. GEN. 362, ARE CREDITED WITH LEAVE WHICH ACCRUED DURING A PERIOD OF EMPLOYMENT UNDER FEDERAL CONTROL. INASMUCH AS THE EMPLOYEES MAY BE REGARDED AS IN A CONTINUOUS DUTY STATUS AND FEDERAL LEAVE MAY BE CARRIED OVER FROM ONE CONTINUOUS PERIOD OF FEDERAL CONTROL OF ONE MONTH OR MORE TO ANOTHER, IT WOULD APPEAR THAT THERE WOULD BE NO OBJECTION TO THE RESTORATION OF SUCH AN EMPLOYEE TO HIS FEDERAL POSITION UPON ENTRANCE INTO THE ARMY IN ORDER THAT THE EMPLOYEE MAY BE COMPENSATED FOR HIS ANNUAL LEAVE PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AS AMENDED (5 U.S.C. 1940 ED., SUPP. II, 61A).

SPECIFICALLY, THEREFORE, WE SHOULD APPRECIATE ADVICE ON WHETHER AN EMPLOYEE WHO ENTERS UPON ACTIVE DUTY IN THE ARMED FORCES WHILE COOPERATIVELY EMPLOYED UNDER STATE CONTROL MAY BE RESTORED TO A FEDERAL POSITION AND PAID FOR ANNUAL LEAVE CREDITED TO HIM UNDER HIS FEDERAL POSITION. ASSUMING THAT YOUR ANSWER IS IN THE AFFIRMATIVE, MAY SUCH AN EMPLOYEE BE RESTORED TO THE FEDERAL POSITION FOR THE PURPOSE OF TAKING ANNUAL LEAVE, IF, INSTEAD OF ENTRANCE INTO THE MILITARY SERVICE, HE RESIGNS HIS COOPERATIVE EMPLOYMENT AND ACCEPTS NON-GOVERNMENTAL WORK?

THE DECISION OF OCTOBER 26, 1937, 17 COMP. GEN. 362, TO WHICH YOU REFER, CONSIDERED THE LEAVE STATUS OF A NUMBER OF DIFFERENT CLASSES OF COOPERATIVE EMPLOYEES, BUT IT IS UNDERSTOOD THAT YOUR PRESENT LETTER RELATES ONLY TO COOPERATIVE EMPLOYEES OF THE CLASS COVERED BY QUESTION (3) IN THE LETTER OF OCTOBER 13, 1937, QUOTED IN SAID DECISION AND WHICH QUESTION WAS WORDED, AS FOLLOWS:

3. THE BUREAU OF AGRICULTURAL ECONOMICS HAS ENTERED INTO COOPERATIVE AGREEMENTS WITH SEVERAL STATES UNDER THE TERMS OF WHICH CERTAIN EMPLOYEES ARE PAID ENTIRELY FROM FEDERAL FUNDS FOR ONE-HALF OF THE FISCAL YEAR, AND FROM STATE FUNDS FOR THE OTHER HALF OF THE FISCAL YEAR. THE WORK OF THESE EMPLOYEES IS STRICTLY UNDER FEDERAL CONTROL DURING THE PORTION OF THE YEAR THEIR SALARIES ARE PAID FROM FEDERAL FUNDS AND UNDER STATE CONTROL DURING THE PORTION OF THE YEAR THEIR SALARIES ARE PAID FROM STATE FUNDS. DURING THE LATTER PERIOD THE COOPERATIVE WORKER IS CARRIED ON THE FEDERAL EMPLOYMENT REGISTER AS A COLLABORATOR WITHOUT FEDERAL COMPENSATION. THESE COOPERATIVE AGENTS ACCRUE LEAVE IN ACCORDANCE WITH FEDERAL LEAVE REGULATIONS DURING THE TIME THEY ARE UNDER APPOINTMENT WITH COMPENSATION FROM THE FEDERAL GOVERNMENT, AND ALSO DURING THE TIME THAT THEY ARE UNDER APPOINTMENT WITHOUT COMPENSATION AND PAID WHOLLY BY THE COOPERATING AGENCY, AND UNDER ITS CONTROL? IF NO LEAVE ACCRUES DURING THE PERIOD OF EMPLOYMENT AS COLLABORATOR WITHOUT FEDERAL COMPENSATION, CAN THE LEAVE ACCRUED AS A COOPERATIVE AGENT WITH FEDERAL COMPENSATION BE CARRIED OVER TO THE APPOINTMENT AS COLLABORATOR AND BE GRANTED DURING A SUBSEQUENT APPOINTMENT STATUS AS COOPERATIVE AGENT WITH FEDERAL COMPENSATION?

THE REFERRED-TO DECISION HELD, IN MATERIAL PART, AS FOLLOWS:

THE FEDERAL LEAVE STATUTES (ACTS MARCH 14, 1936, 49 STAT. 1161 AND 1162) ARE APPLICABLE TO ,CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED * * * REGARDLESS OF THEIR TENURE" WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED. THOSE WHO ARE APPOINTED BY THE FEDERAL GOVERNMENT AND WHOSE DUTIES AND TIME OF WORK ARE SUPERVISED AND CONTROLLED BY FEDERAL OFFICERS ARE "EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF THE LEAVE LAWS REGARDLESS OF THE SOURCE FROM WHICH THEIR SALARIES ARE PAID. 15 COMP. GEN. 852; ID. 1129; 16 ID. 51. THE LEAVE STATUTES REGULATE THE GRANTING OF THE RIGHT TO BE ABSENT FROM DUTY WITH PAY AND UNLESS THE PERIOD OF DUTY THE EMPLOYEES ARE REQUIRED TO WORK IS CONTROLLED AND REGULATED BY FEDERAL OFFICERS, THE FEDERAL LEAVE LAWS CANNOT APPLY.

IT IS UNDERSTOOD THAT THE DUTIES AND THE TIME OF PERFORMANCE OF THE EMPLOYEES MENTIONED IN QUESTION 3 ARE UNDER THE SUPERVISION AND CONTROL OF THE FEDERAL GOVERNMENT DURING 6 MONTHS OF THE YEAR AND UNDER SUPERVISION AND CONTROL OF A STATE DURING THE OTHER 6 MONTHS OF THE YEAR. LEAVE UNDER THE FEDERAL STATUTES ACCRUES ONLY DURING THE 6 MONTHS THE EMPLOYEES ARE UNDER FEDERAL CONTROL, THAT IS, DURING THE PERIOD THE EMPLOYEES ARE IN THE STATUS OF "CIVILIAN * * * EMPLOYEES OF THE UNITED STATES.' HOWEVER, SUCH EMPLOYEES MAY BE REGARDED AS IN A CONTINUOUS-DUTY STATUS AND FEDERAL LEAVE MAY BE CARRIED OVER FROM ONE CONTINUOUS PERIOD OF FEDERAL CONTROL OF 1 MONTH OR MORE TO ANOTHER. 16 COMP. GEN. 865. LEAVE WHICH ACCRUES DURING FEDERAL SERVICE NECESSARILY MAY BE GRANTED ONLY FOR TAKING DURING FEDERAL SERVICE. LEAVE WHICH ACCRUES DURING SERVICE UNDER THE COOPERATIVE AGENCY MAY NOT BE TAKEN DURING FEDERAL SERVICE.

THE BENEFITS PROVIDED FOR IN THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, RELATE TO "EMPLOYEES OF THE UNITED STATES GOVERNMENT.' ON THE BASIS OF THE DECISION, SUPRA, THERE APPEARS TO HAVE BEEN ACCEPTED THE VIEW THAT COOPERATIVE EMPLOYEES OF THE CLASS HERE UNDER CONSIDERATION ARE NOT FEDERAL EMPLOYEES DURING THE PERIOD OF THE YEAR WHEN THEY ARE SERVING UNDER THE SUPERVISION AND CONTROL OF A COOPERATING AGENCY (AS DISTINGUISHED FROM THE SUPERVISION AND CONTROL OF THE FEDERAL GOVERNMENT). HENCE, IT WOULD FOLLOW THAT IF A COOPERATIVE EMPLOYEE OF THAT CLASS ENTERS THE ACTIVE MILITARY OR NAVAL SERVICE DIRECTLY FROM SERVICE WITH A COOPERATING AGENCY, HE PROPERLY MAY NOT BE CLASSED AS AN "EMPLOYEE OF THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF AUGUST 1, 1941, AS AMENDED. COMPARE DECISION OF OCTOBER 8, 1941, 21 COMP. GEN. 305, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

ACCOUNTING AND CUSTODIAL EMPLOYEES SERVING IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR A STATE WHO ARE EMPLOYED BY THE STATE MILITARY AUTHORITIES, ALTHOUGH A PART OF THEIR COMPENSATION IS PAID FROM FEDERAL FUNDS, ARE NOT "EMPLOYEES OF THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THEY MAY NOT BE PAID UNDER SAID ACT, CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, FOR ANNUAL LEAVE ACCRUED IN THEIR CIVILIAN POSITIONS.

ALSO, IT HAS BEEN HELD TO THE EFFECT THAT PAYMENT UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO A FEDERAL EMPLOYEE WHO ENTERS THE ACTIVE MILITARY OR NAVAL SERVICE IS TO BE MADE ONLY FOR ANNUAL LEAVE APPLIED FOR, GRANTED, AND COMPUTED UPON THE SAME BASIS AS IN ANY OTHER CASE OF ANNUAL LEAVE (EXCEPT THAT SUCH LEAVE NEED NOT BE APPLIED FOR IN ADVANCE). 21 COMP. GEN. 258. FURTHERMORE, THE SAME GENERAL RULES FOR PAYING COMPENSATION DURING ANNUAL LEAVE HAVE BEEN APPLIED UNDER SAID STATUTE AS ARE APPLICABLE IN OTHER CASES INVOLVING ANNUAL LEAVE--- SEE 21 COMP. GEN. 210, 742; 22 ID. 47, 229--- AND ONE OF THOSE RULES CONTROLLING PAYMENT FOR ANNUAL LEAVE IS THAT AN EMPLOYEE MAY NOT BE RESTORED TO A FEDERAL POSITION SOLELY FOR THE PURPOSE OF GRANTING ANNUAL LEAVE. 16 COMP. GEN. 899.

IN THE LIGHT OF THE FOREGOING, I AM UNABLE TO AGREE WITH THE VIEW SUGGESTED IN THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER. THE CONTRARY, THERE APPEARS REQUIRED A NEGATIVE ANSWER TO BOTH QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.