B-44978, OCTOBER 18, 1944, 24 COMP. GEN. 304

B-44978: Oct 18, 1944

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THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS IS NOT NOW AUTHORIZED BY LAW AND MAY NOT BE AUTHORIZED BY REGULATION. 1944: I HAVE YOUR LETTER OF OCTOBER 4. AS FOLLOWS: I SHALL APPRECIATE YOUR ADVICE AS TO WHETHER WHEN AN OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE IS TRANSFERRED TO A CIVIL SERVICE POSITION IN THE FEDERAL GOVERNMENT. OR WHEN AN EMPLOYEE IN THE CIVIL SERVICE OF THE FEDERAL GOVERNMENT IS TRANSFERRED TO THE FOREIGN SERVICE. LEAVE IN THE CASE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE IS BASED UPON SECTION 22 OF THE ACT OF FEBRUARY 23. WHICH REGULATIONS ARE EMBODIED IN SECTION IV-11 OF THE FOREIGN SERVICE REGULATIONS. (A COPY OF SECTION IV-11 OF THE FOREIGN SERVICE REGULATIONS IS ATTACHED HERETO.).

B-44978, OCTOBER 18, 1944, 24 COMP. GEN. 304

LEAVES OF ABSENCE - TRANSFERS BETWEEN POSITIONS COVERED BY DIFFERENT LEAVE LAWS - FOREIGN SERVICE EMPLOYEES THE AUTHORITY VESTED IN THE SECRETARY OF STATE BY EXECUTIVE ORDER NO. 8189, ISSUED PURSUANT TO THE PROVISIONS OF 22 U.S.C. 17A, TO PROMULGATE REGULATIONS CONTROLLING THE ACCUMULATION, CREDITING, AND CHARGING OF LEAVE OF FOREIGN SERVICE OFFICERS AND EMPLOYEES DOES NOT INCLUDE AUTHORITY TO PROMULGATE LEAVE REGULATIONS WHICH WOULD AFFECT SUCH PERSONNEL WHILE SERVING IN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS EITHER PRIOR OR SUBSEQUENT TO SERVICE IN THE FOREIGN SERVICE, AND, THEREFORE, THE TRANSFER OF LEAVE CREDITS OF OFFICERS AND EMPLOYEES TRANSFERRED FROM TO TO THE FOREIGN SERVICE TO OR FROM POSITIONS UNDER DIFFERENT LEAVE SYSTEMS MAY NOT BE AUTHORIZED BY REGULATIONS PROMULGATED BY THE SECRETARY OF STATE. THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS IS NOT NOW AUTHORIZED BY LAW AND MAY NOT BE AUTHORIZED BY REGULATION. THE LEAVE DIFFERENTIAL FOR FOREIGN SERVICE SAVED BY SECTION 5 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, RELATES ONLY TO FOREIGN SERVICE COMING WITHIN THE PURVIEW OF THOSE STATUTES, EXCLUSIVE OF SERVICE UNDER OTHER LEAVE LAWS SUCH AS THAT APPLICABLE TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE. THE SECRETARY OF STATE MAY ISSUE, PURSUANT TO THE AUTHORITY DELEGATED TO HIM BY EXECUTIVE ORDER NO. 8189 UNDER THE PROVISIONS OF 22 U.S.C. 17A, A LEAVE REGULATION APPLICABLE TO FOREIGN SERVICE OFFICERS AND EMPLOYEES SIMILAR TO SECTION 4.9 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 9414) WHICH SAVES TO EMPLOYEES THE LEAVE ACCUMULATED AND ACCRUED IN POSITIONS WITHIN THE PURVIEW OF THE LEAVE ACT OF MARCH 14, 1936, WHEN THEY TRANSFER WITHOUT A BREAK IN SERVICE TO POSITIONS OUTSIDE THE ACTS AND SUBSEQUENTLY RETRANSFER TO POSITIONS WITHIN THE PURVIEW THEREOF.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 18, 1944:

I HAVE YOUR LETTER OF OCTOBER 4, 1944, AS FOLLOWS:

I SHALL APPRECIATE YOUR ADVICE AS TO WHETHER WHEN AN OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE IS TRANSFERRED TO A CIVIL SERVICE POSITION IN THE FEDERAL GOVERNMENT, OR WHEN AN EMPLOYEE IN THE CIVIL SERVICE OF THE FEDERAL GOVERNMENT IS TRANSFERRED TO THE FOREIGN SERVICE, THE ACCUMULATED LEAVE OF ABSENCE AND SICK LEAVE STANDING TO HIS CREDIT MAY BE TRANSFERRED.

LEAVE IN THE CASE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE IS BASED UPON SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED (22 U.S.C. 17 AND 17A) ISSUED THEREUNDER BY THE SECRETARY OF STATE, WHICH REGULATIONS ARE EMBODIED IN SECTION IV-11 OF THE FOREIGN SERVICE REGULATIONS. (A COPY OF SECTION IV-11 OF THE FOREIGN SERVICE REGULATIONS IS ATTACHED HERETO.) IT WILL BE NOTED THAT THE GRANTING OF ANNUAL LEAVE IS DISCRETIONARY WITH THE SECRETARY OF STATE; THAT THE MAXIMUM AMOUNT OF LEAVE WHICH CAN BE GRANTED WITH PAY IS SIXTY DAYS PER ANNUM; AND THAT ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE ACCUMULATED NOT TO EXCEED120 DAYS IN THREE YEARS OF 180 DAYS IN FOUR YEARS. IT WILL ALSO BE NOTED THAT SICK LEAVE AT THE RATE OF 15 DAYS A YEAR MAY BE ACCUMULATED NOT TO EXCEED 120 DAYS.

LEAVE OF ABSENCE IN THE CASE OF OFFICERS AND EMPLOYEES HOLDING CIVIL SERVICE POSITIONS IN THE FEDERAL GOVERNMENT BASED (WITH A FEW EXCEPTIONS UNRELATED TO THE PROBLEM DISCUSSED HEREIN) UPON SECTION 7 OF THE ACT OF MARCH 14, 1936 AS AMENDED BY THE ACTS OF MARCH 2, 1940 AND DECEMBER 17, 1942 ( U.S.C., 49 STAT. 1161 AND 1162 54 STAT. 38 C. 737, 56 STAT. 1052) AND IS GOVERNED BY REGULATIONS ISSUED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 9414 OF JANUARY 13, 1944. IT MAY BE STATED IN BRIEF THAT ANNUAL LEAVE AND SICK LEAVE MAY EACH BE ACCUMULATED NOT TO EXCEED NINETY DAYS.

DURING RECENT YEARS, AND PARTICULARLY BECAUSE OF THE EXIGENCIES OF THE WAR, THE DEPARTMENT HAS BEEN COMPELLED IN THE PUBLIC INTEREST TO TRANSFER PERSONNEL FROM THE FOREIGN SERVICE TO CIVIL SERVICE POSITIONS IN THE DEPARTMENT OF STATE IN WASHINGTON AND VICE VERSA. THERE ARE OTHER CASES WHERE PERSONNEL HAVE BEEN TRANSFERRED FROM OTHER DEPARTMENTS AND AGENCIES TO THE FOREIGN SERVICE. THE EXISTING POLICY AND PRACTICE OF THE DEPARTMENT DOES NOT PROVIDE FOR THE TRANSFER OF LEAVE IN CASES OF THIS KIND, AND CONSEQUENTLY THE OFFICERS AND EMPLOYEES CONCERNED HAVE HAD TO FORFEIT CONSIDERABLE AMOUNTS OF ACCRUED LEAVE. THE ONLY MEANS AT PRESENT OF REMEDYING THIS INJUSTICE IS TO GRANT THE OFFICER OR EMPLOYEE HIS ACCUMULATED LEAVE AND TO EFFECT THE TRANSFER AT ITS TERMINATION. THE PRESSURE OF BUSINESS IN THE DEPARTMENT HAS MADE THIS QUITE IMPOSSIBLE AND THE PERSONNEL CONCERNED HAVE BEEN COMPELLED TO SACRIFICE THEIR LEAVE. FEEL SURE YOU WILL APPRECIATE THAT THE DEPARTMENT IS ANXIOUS TO RELIEVE THIS MOST UNFORTUNATE AND INEQUITABLE SITUATION. IT IS QUITE PLAINLY THE INTENT OF EXISTING STATUTES AND PERTINENT EXECUTIVE ORDERS AND FEDERAL REGULATIONS TO PROVIDE THAT WHEN AN OFFICER OR EMPLOYEE IN THE CIVIL SERVICE IS TRANSFERRED FROM ONE AGENCY TO ANOTHER IN THE GOVERNMENT HIS ACCUMULATED LEAVE MAY BE TRANSFERRED WITH HIM. FURTHERMORE, I REFER TO SECTION 5 OF THE ACT OF MARCH 14, 1936 (5 U.S.C. 30C), WHICH PROVIDES THAT " NOTHING IN SECTIONS 29A, 30B-30E, 30L AND 31 A OF THIS TITLE SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.' IT IS UNQUESTIONABLY THE INTENT OF THIS SECTION OF THE ACT OF MARCH 14, 1936, TO ENSURE THAT PERSONNEL SERVING THE GOVERNMENT IN FOREIGN COUNTRIES SHOULD NOT BE PENALIZED, IN THE CASE OF TRANSFER, WITH RESPECT TO THE LEAVE ACCUMULATED BY THEM.

I AM CONSIDERING THE FEASIBILITY OF CHANGING THE POLICY HERETOFORE IN EFFECT AND OF ESTABLISHING A PROCEDURE WHEREBY, WITHIN THE STATUTORY LIMITATIONS CITED ABOVE, THE LEAVE ACCUMULATED BY OFFICERS AND EMPLOYEES TRANSFERRED TO THE FOREIGN SERVICE FROM OTHER BRANCHES OF THE GOVERNMENT MAY BE TRANSFERRED WITH THEM AND WHEREBY, PER CONTRA, THE LEAVE ACCUMULATED BY OFFICERS AND EMPLOYEES WHILE IN THE FOREIGN SERVICE MAY BE TRANSFERRED WHEN THEY ARE TRANSFERRED TO OTHER BRANCHES OF THE GOVERNMENT. I SHOULD APPRECIATE YOUR ADVICE AS TO WHETHER THERE IS ANY LEGAL OBSTACLE STANDING IN THE WAY OF SUCH A CHANGE IN POLICY.

A NUMBER OF SEPARATE AND DISTINCT LEAVE SYSTEMS NOW ARE PROVIDED BY STATUTE AND REGULATION CONTROLLING THE ACCUMULATION, CREDITING, AND CHARGING OF LEAVE OF ABSENCE WITH PAY APPLICABLE TO VARIOUS GROUPS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT, INCLUDING (1) OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE UNDER THE AUTHORITIES CITED IN YOUR LETTER, (2) CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT (WITH CERTAIN EXCEPTIONS) UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND 1162, AND THE REGULATIONS OF THE PRESIDENT PROMULGATED PURSUANT TO SECTIONS 7 OF THOSE STATUTES (SEE THE CURRENT REGULATIONS CONTAINED IN EXECUTIVE ORDER 9414 DATED JANUARY 13, 1944), (3) POSTAL EMPLOYEES UNDER 39 U.S.C. 823 AND THE REGULATIONS OF THE POSTMASTER GENERAL CONTAINED IN THE POSTAL LAWS AND REGULATIONS, 1940, (4) EMPLOYEES OF THE PANAMA CANAL AND THE PANAMA RAILWAY COMPANY ON THE ISTHMUS UNDER REGULATIONS OF THE GOVERNOR OF THE PANAMA CANAL AUTHORIZED BY LAW, (5) LEGISLATIVE EMPLOYEES AT THE CAPITOL UNDER REGULATIONS OF THE SENATE AND HOUSE OF REPRESENTATIVES, (6) TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA UNDER LAWS AND REGULATIONS APPLICABLE TO THEM, AND (7) ALIEN AND NATIVE LABOR EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHICH IS CONTROLLED BY ADMINISTRATIVE REGULATIONS. THERE POSSIBLY MAY BE OTHER LEAVE SYSTEMS FOR LIMITED GROUPS.

THE TERMS AND CONDITIONS CONTROLLING THE ACCUMULATION (INCLUDING THE LIMITATIONS THEREON AND THE PERIOD THEREOF), CREDITING, AND CHARGING OF LEAVE OF ABSENCE WITH PAY UNDER THE MENTIONED LEAVE SYSTEMS ARE WIDELY DIFFERENT. AUTHORITY TO PROMULGATE REGULATIONS UNDER THE DIFFERENT SYSTEMS IS VESTED IN DIFFERENT OFFICERS OF THE GOVERNMENT.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, I FIND NO AUTHORITY VESTED IN YOU PURSUANT TO THE PRESIDENT'S DELEGATION BY SECTION IV-11 OF EXECUTIVE ORDER NO. 8189, DATED JULY 5, 1939, UNDER THE STATUTORY AUTHORITY VESTED IN HIM BY 22 U.S.C. 17A, TO PROMULGATE LEAVE REGULATIONS WHICH WOULD AFFECT THE ACCUMULATION, CREDITING, OR CHARGING OF LEAVE OF ABSENCE WITH PAY BASED UPON SERVICE OF PERSONNEL OTHER THAN AS OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, EXCLUSIVE OF SERVICE IN ANOTHER CAPACITY EITHER PRIOR OR SUBSEQUENT TO SERVICE AS AN OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE.

IT IS UNDERSTOOD YOUR QUESTION IS DIRECTED MORE PARTICULARLY TO THE TWO LEAVE SYSTEMS PROVIDED FOR OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE AND FOR DEPARTMENTAL OFFICERS AND EMPLOYEES, THE FIRST TWO LEAVE SYSTEMS ABOVE MENTIONED. WHILE YOU HAVE AUTHORITY TO PROMULGATE REGULATIONS CONTROLLING THE ACCUMULATION, CREDITING, AND CHARGING OF LEAVE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE WITHIN THE LIMITATIONS FIXED BY LAW, I FIND NO AUTHORITY VESTED IN YOU TO PROMULGATE REGULATIONS AFFECTING THE ACCUMULATION, CREDITING, OR CHARGING OF LEAVE OF ABSENCE OF DEPARTMENTAL OFFICERS AND EMPLOYEES, WHICH AUTHORITY IS VESTED BY LAW IN THE PRESIDENT AND, DURING THE PERIOD OF WAR, DELEGATED TO THE UNITED STATES CIVIL SERVICE COMMISSION. SEE SECTION 7.1 OF THE EXECUTIVE ORDER 9414 DATED JANUARY 13, 1944.

THE LEAVE DIFFERENTIAL FOR FOREIGN SERVICE SAVED BY SECTION 5 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, SUPRA, TO WHICH YOU REFER, RELATES ONLY TO FOREIGN SERVICE COMING WITHIN THE PURVIEW OF THOSE STATUTES EXCLUSIVE OF SERVICE UNDER OTHER LEAVE LAWS SUCH AS THAT APPLICABLE TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE.

BECAUSE OF THE ABOVE CONSIDERATIONS, THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS NEVER HAS BEEN AUTHORIZED AND, UNDER EXISTING LAWS, MAY NOT BE AUTHORIZED BY REGULATION. AS THERE NOW EXISTS NO COMMON BASIS OR AUTHORITY OF LAW UPON WHICH SUCH A REGULATION COULD BE ISSUED, THERE WOULD BE REQUIRED A STATUTE FIXING THE TERMS AND CONDITIONS UPON WHICH THE LEAVE COULD BE TRANSFERRED BETWEEN SERVICE UNDER DIFFERENT LEAVE SYSTEMS, IN ORDER TO AUTHORIZE SUCH TRANSFERS. THIS APPEARS TO HAVE BEEN RECOGNIZED BY THE PRESIDENT IN SECTION 4.9 (B) OF THE EXISTING LEAVE REGULATIONS APPLICABLE TO OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT CONTAINED IN EXECUTIVE ORDER NO. 9414, SUPRA, WHICH PROVIDES AS FOLLOWS:

WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION, WITHOUT A BREAK IN SERVICE, HIS LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS: * * * * * * *

(B) IF THE POSITION TO WHICH HE IS APPOINTED OR TRANSFERRED IS NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE EMPLOYEE SHALL BE FURNISHED WITH A STATEMENT OF HIS LEAVE ACCOUNT, AND IF HE IS SUBSEQUENTLY APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION WITHIN THE PURVIEW OF SUCH ACTS, THE LEAVE SHOWN TO BE DUE WILL BE CREDITED TO HIS ACCOUNT.

ACCORDINGLY, YOU ARE ADVISED THAT A REGULATION PROMULGATED BY YOU AS PROPOSED IN YOUR LETTER WOULD NOT BE AUTHORIZED. HOWEVER, THERE WOULD BE NO LEGAL OBJECTION TO A REGULATION APPLICABLE TO FOREIGN SERVICE OFFICERS AND EMPLOYEES SIMILAR TO THE ABOVE-QUOTED REGULATION APPLICABLE TO MOST OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS. SEE DECISION OF JULY 20, 1940, 20 COMP. GEN. 35, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE TRANSFERRED FROM A FIELD SERVICE POSITION SUBJECT TO THE POSTAL SERVICE LEAVE ACT OF FEBRUARY 28, 1925, AS AMENDED, TO A DEPARTMENTAL POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND SUBSEQUENTLY TRANSFERRED BACK TO THE POSTAL SERVICE FIELD POSITION, MAY BE CREDITED, AFTER THE LATER TRANSFER, WITH LEAVE ACCUMULATED AND ACCRUED PRIOR TO THE ORIGINAL TRANSFER, PROVIDED THERE WAS NO BREAK IN SERVICE INVOLVED AND THAT DURING THE PERIOD IN THE DEPARTMENTAL POSITION THE EMPLOYEE WAS GRANTED ONLY SUCH LEAVE AS ACCUMULATED OR ACCRUED UNDER THE ACTS OF MARCH 14, 1936.