B-4493, JULY 10, 1939, 19 COMP. GEN. 30

B-4493, JULY 10, 1939, 19 COMP. GEN. 30

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - TRANSFERS TEMPORARY EMPLOYEES A TEMPORARY EMPLOYEE PAID FROM EMERGENCY FUNDS WHO WAS GIVEN A PROBATIONAL "EMERGENCY" APPOINTMENT WITH COMPENSATION PAYMENTS CONTINUED FROM EMERGENCY FUNDS IS NOT ENTITLED, UNDER THE PROVISIONS OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, TO TRANSFER OF UNUSED LEAVE CREDIT EARNED DURING SERVICE UNDER THE TEMPORARY APPOINTMENT. WHERE THE TRANSFER OF AN EMPLOYEE IS FROM A TEMPORARY POSITION TO AN INDEFINITE OR PERMANENT POSITION, THE SALARY OF WHICH IS PAID FROM A REGULAR APPROPRIATION--- AND NOT FROM A TEMPORARY TO AN EMERGENCY POSITION --- ANNUAL AND SICK LEAVE CREDIT IN THE TEMPORARY POSITION MAY BE TRANSFERRED, UNDER THE PROVISIONS OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, TO THE PERMANENT POSITION IN THE SAME DEPARTMENT WHERE THERE IS NO BREAK IN SERVICE, BUT NOT FROM THE TEMPORARY TO THE INDEFINITE POSITION.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, JULY 10, 1939:

I HAVE YOUR LETTER OF JUNE 19, 1939, AS FOLLOWS:

IN ADDITION TO ITS ADMINISTRATIVE FUNCTIONS, THE BONNEVILLE PROJECT IS UNDERTAKING THE CONSTRUCTION OF SEVERAL HUNDRED MILES OF TRANSMISSION LINES UNDER AN ALLOTMENT OF $10,750,000 MADE FROM PUBLIC WORKS ADMINISTRATION FUNDS. APPOINTMENTS MADE UNDER THESE FUNDS, BOTH CIVIL SERVICE AND NON-CIVIL SERVICE, HAVE BEEN WRITTEN AS EITHER "TEMPORARY" (FOR A LIMITED PERIOD) OR ,EMERGENCY," THE LATTER BEARING THE STATEMENT " EMERGENCY, NOT TO EXTEND BEYOND JUNE 30, 1940.'

ON NOVEMBER 3, 1938, A TEMPORARY APPOINTMENT WAS MADE OF A JUNIOR TYPIST, $1,260 PER ANNUM, UPON APPROVAL OF THE CIVIL SERVICE COMMISSION FOR JOB EMPLOYMENT, A LIMITATION OF THREE MONTHS HAVING BEEN PLACED THEREON. THIS POSITION WAS PAID FROM THE EMERGENCY FUNDS ALLOTTED TO THE PROJECT. JANUARY 18, 1939, THIS EMPLOYEE CAME WITHIN REACH FOR PROBATIONAL APPOINTMENT, AND WAS SO APPOINTED FROM A CERTIFICATE ISSUED BY THE CIVIL SERVICE COMMISSION. HOWEVER, INASMUCH AS THE COMPENSATION OF THIS POSITION WAS STILL PAID FROM EMERGENCY FUNDS, THE "EMERGENCY" CLAUSE WAS WRITTEN INTO THE APPOINTMENT.

IN A NEW ORGANIZATION SUCH AS THE BONNEVILLE PROJECT IT IS NOT POSSIBLE TO FORESEE THE NEEDS FOR EMPLOYEES AND AS THE WORK PROGRESSES ADDITIONAL PERMANENT OR INDEFINITE EMPLOYEES ARE REQUIRED. IT IS IN THE INTEREST OF THE SERVICE TO RETAIN IN THE REQUIREMENTS FOR ELIGIBILITY AND EFFICIENCY.

UNDER THE PROVISIONS OF SECTION 15 OF THE UNIFORM LEAVE REGULATIONS, THE EMPLOYEE REFERRED TO WOULD APPEAR TO BE ENTITLED TO TRANSFER OF CREDIT FOR LEAVE EARNED BUT NOT TAKEN DURING THE PERIOD OF TEMPORARY APPOINTMENT PRECEDING THE EFFECTIVE DATE OF THE PROBATIONAL APPOINTMENT. HOWEVER, YOUR OPINION IS DESIRED AS TO WHETHER THE RULING GIVEN IN 18 C.G. 599 TO THE CHAIRMAN, NATIONAL DEFENSE POWER COMMITTEE, WOULD APPLY.

QUESTIONS HAVING ARISEN AS TO THE PROVISIONS OF SECTION 15 OF THE ANNUAL LEAVE REGULATIONS AND SECTIONS 18 OF THE SICK LEAVE REGULATIONS, A RULING ALSO IS REQUESTED WHETHER THE LEAVE REGULATIONS PERMIT THE TRANSFER OF LEAVE CREDIT FROM A TEMPORARY TO AN INDEFINITE OR PERMANENT POSITION WITHIN THE SAME DEPARTMENT WHEN SUCH TRANSFER HAS BEEN MADE WITHOUT A BREAK IN SERVICE.

SECTION 7 OF BOTH THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, PROVIDES:

THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

IN DECISION OF JANUARY 7, 1939, 18 COMP. GEN. 599, 600, TO WHICH YOU REFER, IT WAS STATED:

THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, PROVIDE, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

"SEC. 1. AS USED IN THESE REGULATIONS:

"/B) "PERMANENT EMPLOYEES' ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

"/C) "TEMPORARY EMPLOYEES' ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.

"/D) "EMERGENCY EMPLOYEES' ARE THOSE WHOSE COMPENSATION IS PAID FROM EMERGENCY FUNDS AND WHOSE TENURE OF APPOINTMENT IS LIMITED TO THE PERIOD FOR WHICH THE EMERGENCY FUNDS ARE AVAILABLE.

"SEC. 6. ( AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938.) AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.

"SEC. 15. TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT OR PROBATIONAL APPOINTMENTS IN THE SAME DEPARTMENTAL WITHIN BREAK IN SERVICE SHALL BE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE FOR EACH FULL MONTH OF SERVICE TO THE DATE OF PERMANENT APPOINTMENT AND THEREAFTER AT THE RATE OF 2 1/6 DAYS PER MONTH.'

THERE IS NO PROVISION IN THE REGULATIONS AUTHORIZING THE TRANSFER OF LEAVE CREDIT FROM A TEMPORARY TO AN EMERGENCY POSITION WHETHER IN THE SAME OR DIFFERENT GOVERNMENTAL AGENCY. CONSEQUENTLY, THE QUESTION PRESENTED IN THE CONCLUDING SENTENCE OF THE ABOVE-QUOTED LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE.

THE UNIFORM SICK LEAVE REGULATIONS CONTAIN THE SAME DEFINITIONS (SEE SECTION 1) AND THE SAME AUTHORIZATION FOR TRANSFER OF LEAVE CREDIT FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER (SEE SECTION 9, AS AMENDED BY EXECUTIVE ORDER NO. 7880, DATED MAY 9, 1938).

SECTION 18 OF THE SICK LEAVE REGULATIONS PROVIDES:

SICK LEAVE ACCUMULATED DURING TEMPORARY APPOINTMENT SHALL BE CREDITED TO AN EMPLOYEE WHO RECEIVES A PERMANENT APPOINTMENT IN THE SAME GOVERNMENTAL AGENCY WITHOUT BREAK IN SERVICE BUT SHALL NOT BE TRANSFERABLE ELSEWHERE UNDER ANY CIRCUMSTANCES.

THE QUOTED DECISION IS SQUARELY IN POINT WITH RESPECT TO YOUR FIRST QUESTION. (SEE, ALSO, 18 COMP. GEN. 317.) WHILE IT MAY BE, AS YOU STATE, IN THE BEST INTERESTS OF THE SERVICE "TO RETAIN IN PERMANENT POSITIONS THOSE WHO HAVE BEEN TEMPORARILY EMPLOYED WHEN THEY MEET THE REQUIREMENTS FOR ELIGIBILITY AND EFFICIENCY," IT IS UNDERSTOOD FROM YOUR LETTER THAT THE EMPLOYEE IN QUESTION WAS RETAINED IN AN EMERGENCY POSITION, THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, NOT IN A PERMANENT POSITION, THE SALARY OF WHICH IS PAID FROM A REGULAR APPROPRIATION. LEAVE OF ABSENCE IS AUTHORIZED TO BE GRANTED SUCH RETAINED EMPLOYEES ONLY IN ACCORDANCE WITH THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT TO THE QUOTED PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS.

THE ORIGINAL TEMPORARY (EMERGENCY) APPOINTMENT OF THE EMPLOYEE IN QUESTION HAVING BEEN ONLY FOR 3 MONTHS, HE IS NOT ENTITLED TO TRANSFER OF CREDIT OF THE LEAVE EARNED DURING SERVICE UNDER SUCH APPOINTMENT TO SERVICE UNDER THE SECOND EMERGENCY APPOINTMENT.

IT IS UNDERSTOOD THE QUESTION STATED IN THE LAST PARAGRAPH OF YOUR LETTER REFERS TO TRANSFERS FROM A TEMPORARY POSITION TO AN INDEFINITE OR PERMANENT POSITION, THE SALARY OF WHICH IS PAID FROM A REGULAR APPROPRIATION, THAT IS, THAT THE TRANSFER IS NOT FROM A TEMPORARY TO AN EMERGENCY POSITION. IF SO, IT IS BELIEVED TO BE THE PURPOSE AND INTENT OF SECTION 15 OF THE ANNUAL LEAVE REGULATIONS, ALTHOUGH NOT EXPRESSLY SO STATED, TO AUTHORIZE THE TRANSFER OF ANNUAL LEAVE CREDIT FROM A TEMPORARY TO A PERMANENT POSITION IN THE SAME DEPARTMENT WHERE THERE IS NO BREAK IN SERVICE BUT NOT FROM A TEMPORARY TO AN INDEFINITE POSITION. (SEE DEFINITIONS HEREINBEFORE QUOTED.) SECTION 18 OF THE SICK LEAVE REGULATIONS SPECIFICALLY AUTHORIZES THE TRANSFER OF SICK LEAVE CREDIT FROM A TEMPORARY TO A PERMANENT POSITION IN THE SAME DEPARTMENT WHERE THERE IS NO BREAK IN SERVICE, BUT NOT FROM A TEMPORARY TO AN INDEFINITE POSITION.