B-39998, FEBRUARY 18, 1944, 23 COMP. GEN. 603

B-39998, FEBRUARY 18, 1944, 23 COMP. GEN. 603

LEAVES OF ABSENCE - U.S. SUPERVISING CONCILIATION COMMISSIONERS; LEAVE PAYMENTS WHILE ON MILITARY, ETC., DUTY UNITED STATES SUPERVISING CONCILIATION COMMISSIONERS WHO ARE APPOINTED BY A UNITED STATES COURT AND PAID, AS COMPENSATION FOR THEIR SERVICES, A PER DIEM ALLOWANCE AS PRESCRIBED BY THE PROVISIONS OF 11 U.S.C. 203, MAY BE REGARDED AS "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF THE ANNUAL LEAVE ACT OF 1936, SO AS TO ENTITLE THEM TO THE LEAVE BENEFITS PRESCRIBED THEREUNDER. A UNITED STATES SUPERVISING CONCILIATION COMMISSIONER WHO IS EMPLOYED EACH DAY OF THE MONTH AND PAID, AS COMPENSATION FOR HIS SERVICES, A PER DIEM ALLOWANCE AS PRESCRIBED BY THE PROVISIONS OF 11 U.S.C. 203, MAY BE REGARDED AS AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF SECTION 1 (E) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384), EFFECTIVE PRIOR TO JANUARY 1, 1944, AND SECTION 1.1 (D) OF THE PRESIDENT'S LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 9414), EFFECTIVE ON AND AFTER JANUARY 1, 1944, AND, AS SUCH, IS ENTITLED TO THE LEAVE BENEFITS APPLICABLE TO SUCH EMPLOYEES. A UNITED STATES SUPERVISING CONCILIATION COMMISSIONER WHO IS PAID AS COMPENSATION FOR HIS SERVICES A PER DIEM ALLOWANCE AS PRESCRIBED BY 11 U.S.C. 203, UPON SEPARATION BY RESIGNATION TO ENTER THE ACTIVE MILITARY SERVICE, IS ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID FOR HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH MILITARY SERVICE, PROVIDED THERE IS NO BREAK BETWEEN HIS CIVILIAN SERVICE AND ENTRY INTO ACTIVE MILITARY SERVICE. UNDER SECTION 2.1 (C) OF THE CURRENT ANNUAL LEAVE REGULATIONS, RESPECTING THE CREDITING OF ANNUAL LEAVE TO "INDEFINITE EMPLOYEES" ON OR AFTER JANUARY 1, 1944, THE CREDIT OF LEAVE ACCRUES AS THE LEAVE IS EARNED. THE PROVISION OF SECTION 4.2 (B) OF THE CURRENT ANNUAL LEAVE REGULATIONS, PROVIDING THAT " ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH OR RESIGNATION," IS APPLICABLE TO OFFICERS AND EMPLOYEES ENTERING THE ACTIVE MILITARY SERVICE.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, FEBRUARY 18, 1944:

I HAVE YOUR LETTER OF FEBRUARY 5, 1944, AS FOLLOWS:

I HAVE BEEN REQUESTED BY SUPERVISING CONCILIATION COMMISSIONER EDWARD G. GARVEY OF OMAHA, NEBRASKA, TO INFORM HIM IF THE BENEFITS PROVIDED BY THE ANNUAL AND SICK LEAVE LAWS AND REGULATIONS MAY BE EXTENDED TO HIM.

SUPERVISING CONCILIATION COMMISSIONERS ARE APPOINTED BY THE RESPECTIVE UNITED STATES DISTRICT COURTS AND HAVE SUCH SUPERVISORY FUNCTIONS AS THE COURT MAY BY ORDER SPECIFY; THEIR COMPENSATION CONSISTS OF A PER DIEM ALLOWANCE FIXED BY THE COURT IN AN AMOUNT NOT IN EXCESS OF $5.00 PER DAY, PAYABLE OUT OF THE TREASURY, (11 U.S.C., 203). THEIR COMPENSATION IS SUBJECT TO RETIREMENT DEDUCTIONS, AND THE WAR OVERTIME INCREASE OF 15 PERCENT IS APPLICABLE.

THE ANNUAL AND SICK LEAVE LAWS FOR GOVERNMENT EMPLOYEES (5 U.S.C., 30) ARE GIVEN APPLICATION TO THE FIELD SERVICE OF THE JUDICIARY; AND BY USAGE THE REGULATIONS PROMULGATED BY EXECUTIVE ORDER ARE RECOGNIZED AS GOVERNING. IN EXECUTIVE ORDER NO. 9414 OF JANUARY 13, 1944, PERSONS 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, ARE DEFINED AS "INDEFINITE EMPLOYEES" AND AS SUCH ARE ENTITLED TO ANNUAL LEAVE WITH PAY OF TWO DAYS FOR EACH MONTH OF SERVICE, PLUS AN ADDITIONAL ONE-HALF DAY WHEN THE SERVICE AGGREGATES THREE MONTHS.

IF SUPERVISING CONCILIATION COMMISSIONERS, OF WHOM THERE ARE AT THE PRESENT TIME 25 IN AN APPOINTMENT STATUS, MAY BE CONSIDERED "INDEFINITE EMPLOYEES" SO AS TO ENTITLE THEM TO RECEIVE THE BENEFITS PROVIDED, MR. GARVEY'S CASE MAY, IT WOULD SEEM, BE CONSIDERED ON THE MERITS OF HIS PECULIAR CIRCUMSTANCES WHICH AS STATED IN HIS LETTER AND SHOWN BY OUR RECORDS ARE AS FOLLOWS:

HE WAS APPOINTED TO THE OFFICE JANUARY 6, 1942, AND ADVISES THAT HE ANTICIPATES RESIGNING SOMETIME DURING THE MONTH OF FEBRUARY 1944, TO ENTER THE ARMED FORCES. VOUCHERS ( AO FORM NO. 42), CLAIMING SERVICE EACH DAY OF EACH MONTH AT THE PER DIEM RATE OF $5.00 FIXED BY THE COURT HAVE BEEN RENDERED EACH SUCCESSIVE MONTH COMMENCING MARCH 1, 1942, TO THE CLOSE OF DECEMBER, 1943. WE, THEREFORE, HAVE A VERY CLEAR RECORD THAT THERE WAS NO BREAK IN THE SERVICE RENDERED DURING THIS ENTIRE PERIOD.

I SHALL AWAIT YOUR DECISION IN THE MATTER BEFORE COMMUNICATING FURTHER WITH MR. GARVEY, AND THANKING YOU, I AM---

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IS APPLICABLE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE," WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE.

SECTION 203, TITLE 11, U.S. CODE, CONTAINS THE FOLLOWING PERTINENT PROVISIONS APPLICABLE TO SUPERVISING CONCILIATION COMMISSIONERS:

(A) * * * IN EACH JUDICIAL DISTRICT THE COURT MAY, IF IT FINDS IT NECESSARY OR DESIRABLE, APPOINT A SUITABLE PERSON AS A SUPERVISING CONCILIATION COMMISSIONER. THE SUPERVISING CONCILIATION COMMISSIONER SHALL RECEIVE, AS COMPENSATION FOR HIS SERVICES, A PER DIEM ALLOWANCE TO BE FIXED BY THE COURT IN AN AMOUNT NOT IN EXCESS OF $5 PER DAY, TOGETHER WITH SUBSISTENCE AND TRAVEL EXPENSES IN ACCORDANCE WITH THE LAW APPLICABLE TO OFFICERS OF THE DEPARTMENT OF JUSTICE. SUCH COMPENSATION AND EXPENSES SHALL BE PAID OUT OF THE TREASURY. * * *

AS SUPERVISING CONCILIATION COMMISSIONERS ARE APPOINTED BY A UNITED STATES COURT, THEY PROPERLY MAY BE REGARDED AS "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF THE ANNUAL LEAVE ACT OF 1936, SUPRA. SEE, 22 COMP. GEN. 54, 720; 23 ID. 290.

THE EMPLOYMENT STATUS OF MR. GARVEY, SET FORTH IN YOUR LETTER, WOULD APPEAR TO BRING HIM WITHIN THE PURVIEW OF THE DEFINITION OF THE TERM "INDEFINITE EMPLOYEES" APPEARING IN THE ANNUAL LEAVE REGULATIONS OF THE PRESIDENT EFFECTIVE PRIOR TO JANUARY 1, 1944 (SECTION 1 (E) OF EXECUTIVE ORDER NO. 9414, DATED JANUARY 13, 1944). PRIOR TO JANUARY 1, 1944, HE SHOULD BE CREDITED WITH ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS FOR EACH MONTH OF SERVICE. SEE SECTION 5 OF THE ANNUAL LEAVE REGULATIONS THEN IN FORCE; ALSO, 20 COMP. GEN. 827; 21 ID. 101. REGARDING THE ADJUSTMENT OF LEAVE CREDITS AS OF DECEMBER 31, 1943, SEE SECTION 4.1 (C) OF THE NEW LEAVE REGULATIONS. SECTION 2.1 (C) OF THE NEW LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, WHICH, APPARENTLY, ARE THE REGULATIONS REFERRED TO IN THE THIRD PARAGRAPH OF YOUR LETTER, RELATES TO THE CREDITING OF ANNUAL LEAVE TO INDEFINITE EMPLOYEES ON OR AFTER JANUARY 1, 1944. IT WOULD APPEAR FROM THE PENULTIMATE PARAGRAPH OF YOUR LETTER THAT MR. GARVEY IS NOT CLAIMING THAT ANY LEAVE HAS ACCRUED SINCE JANUARY 1, 1944, UNDER THE NEW ANNUAL LEAVE REGULATIONS. HOWEVER, IF HE HAS EARNED ANY LEAVE SINCE JANUARY 1, 1944--- THAT IS, IF HE HAS WORKED EVERY DAY SINCE THAT TIME, LEAVE EARNED SINCE THAT DATE SHOULD BE CREDITED AS PROPOSED IN THE THIRD PARAGRAPH OF YOUR LETTER. IN OTHER WORDS, THE CREDIT OF LEAVE ACCRUES AS THE LEAVE IS EARNED; AND THE LEAVE REGULATIONS IN FORCE WHEN THE LEAVE IS EARNED ARE CONTROLLING IN THE MATTER OF CREDITING THE LEAVE.

UPON THE BASIS OF THE FACTS STATED IN YOUR LETTER, MR. GARVEY MAY BE PAID FOR LEAVE EARNED, AT LEAST THROUGH DECEMBER 31, 1943, UPON HIS SEPARATION BY RESIGNATION TO ENTER THE ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, PROVIDED THERE IS NO BREAK BETWEEN HIS SERVICE AS A SUPERVISING CONCILIATION COMMISSIONER AND HIS ENTRY INTO THE ACTIVE MILITARY SERVICE. SEE 22 COMP. GEN. 54. ALSO, SEE, SECTION 1.1 (G) OF THE NEW LEAVE REGULATIONS DEFINING "BREAK IN SERVICE.'

ALSO, IN CONNECTION WITH THE ADJUSTMENT OF THIS MATTER IT IS DEEMED ADVISABLE TO INVITE YOUR ATTENTION TO SECTION 4.2 (B) OF THE NEW LEAVE REGULATIONS WHICH SECTION IS APPLICABLE TO OFFICERS AND EMPLOYEES ENTERING THE ACTIVE MILITARY SERVICE.