B-45540, NOVEMBER 13, 1944, 24 COMP. GEN. 374

B-45540: Nov 13, 1944

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AN EMPLOYEE WHOSE SERVICES WERE TERMINATED BY OPERATION OF LAW SIX MONTHS AFTER NOTIFICATION OF HIS FAILURE TO QUALIFY IN HIS POSITION WHICH HAD BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE UNDER THE ACT OF NOVEMBER 26. 1944: I HAVE YOUR LETTER OF OCTOBER 31. SECTION 2.4 READS AS FOLLOWS: "AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE SHALL BE ENTITLED TO THE UNUSED LEAVE STANDING TO HIS CREDIT. (A) THE INCUMBENT OF ANY OFFICE OR POSITION WHICH IS COVERED INTO THE CLASSIFIED CIVIL SERVICE UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL NOT THEREBY ACQUIRE A CLASSIFIED CIVIL SERVICE STATUS. CERTIFICATION WITHIN SUCH PERIOD BY SUCH HEAD TO THE CIVIL SERVICE COMMISSION THAT SUCH INCUMBENT HAS SERVED WITH MERIT FOR NOT LESS THAN SIX MONTHS IMMEDIATELY PRIOR TO THE DATE SUCH OFFICE OR POSITION WAS COVERED INTO THE CLASSIFIED CIVIL SERVICE.

B-45540, NOVEMBER 13, 1944, 24 COMP. GEN. 374

LEAVES OF ABSENCE - ANNUAL - COMPENSATION EQUIVALENT PAYMENTS - AUTOMATIC SEPARATION FROM SERVICE SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, RELATING TO AN EMPLOYEE'S RIGHT TO BE GRANTED HIS UNUSED ANNUAL LEAVE PRIOR TO SEPARATION FROM SERVICE, DOES NOT SUPERSEDE OR RENDER INOPERATIVE ANY OTHER PROVISION OF LAW AUTOMATICALLY TERMINATING THE SERVICE OR POSITION OF AN EMPLOYEE ON A CERTAIN DATE, AND, THEREFORE, AN EMPLOYEE WHOSE SERVICES WERE TERMINATED BY OPERATION OF LAW SIX MONTHS AFTER NOTIFICATION OF HIS FAILURE TO QUALIFY IN HIS POSITION WHICH HAD BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE UNDER THE ACT OF NOVEMBER 26, 1940, MAY NOT BE CARRIED ON THE ROLLS, FOR THE PURPOSE OF BEING PAID FOR ACCUMULATED ANNUAL LEAVE, BEYOND SUCH STATUTORY DATE OF TERMINATION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 13, 1944:

I HAVE YOUR LETTER OF OCTOBER 31, 1944, AS FOLLOWS:

THE COMMISSION RESPECTFULLY REQUESTS YOUR DECISION ON A QUESTION WHICH HAS ARISEN UNDER SECTION 2.4 OF EXECUTIVE ORDER 9414, JANUARY 13, 1944 ( REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES). SECTION 2.4 READS AS FOLLOWS:

"AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE SHALL BE ENTITLED TO THE UNUSED LEAVE STANDING TO HIS CREDIT, AND THE DATE OF HIS SEPARATION SHALL BE SO FIXED AS TO PERMIT HIM TO TAKE SUCH LEAVE, AND IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE: PROVIDED, THAT AN EMPLOYEE WHO ELECTS TO FORFEIT THE LEAVE STANDING TO HIS CREDIT MAY DO SO BY FILING A WRITTEN NOTICE TO SUCH EFFECT.'

THE ACT OF NOVEMBER 26, 1940 (54 STAT. 1211), KNOWN AS THE RAMSPECK ACT, EXTENDING THE CLASSIFIED CIVIL SERVICE, CONTAINS THE FOLLOWING:

"SEC. 2. (A) THE INCUMBENT OF ANY OFFICE OR POSITION WHICH IS COVERED INTO THE CLASSIFIED CIVIL SERVICE UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL NOT THEREBY ACQUIRE A CLASSIFIED CIVIL SERVICE STATUS, EXCEPT (1) UPON RECOMMENDATION BY THE HEAD OF THE AGENCY CONCERNED WITHIN ONE YEAR AFTER SUCH OFFICE OR POSITION HAS BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE, AND CERTIFICATION WITHIN SUCH PERIOD BY SUCH HEAD TO THE CIVIL SERVICE COMMISSION THAT SUCH INCUMBENT HAS SERVED WITH MERIT FOR NOT LESS THAN SIX MONTHS IMMEDIATELY PRIOR TO THE DATE SUCH OFFICE OR POSITION WAS COVERED INTO THE CLASSIFIED CIVIL SERVICE; AND (2) UPON PASSING SUCH SUITABLE NONCOMPETITIVE EXAMINATION AS THE COMMISSION MAY PRESCRIBE: PROVIDED, THAT ANY SUCH INCUMBENT SHALL BE GIVEN ONLY ONE SUCH NONCOMPETITIVE EXAMINATION: PROVIDED FURTHER, THAT ANY SUCH INCUMBENT WHO FAILS TO PASS THE NONCOMPETITIVE EXAMINATION PROVIDED IN HIS CASE SHALL BE SEPARATED FROM THE SERVICE NOT LATER THAN SIX MONTHS AFTER THE COMMISSION ADVISES THE APPOINTING OFFICER THAT SUCH EMPLOYEE HAS FAILED.' (ITALICS SUPPLIED.)

EXCEPT IN THE CASE OF FORMER EMPLOYEES RETURNING FROM ACTIVE SERVICE IN THE ARMED FORCES, THE TIME LIMIT FOR SUBMITTING ORIGINAL RECOMMENDATIONS FOR CLASSIFICATION UNDER THE RAMSPECK ACT HAS OF COURSE EXPIRED. HOWEVER, SECTION 6 OF EXECUTIVE ORDER 8743, APRIL 23, 1941, ISSUED PURSUANT TO THE ACT, PERMITS PERSONS WHO ARE REINSTATED UNDER MANDATORY REEMPLOYMENT RIGHTS AFTER SERVICE IN THE ARMED FORCES TO BE RECOMMENDED FOR CLASSIFICATION WITHIN ONE YEAR OF SUCH REINSTATEMENT. AS A CONSEQUENCE, RECOMMENDATIONS ARE STILL BEING RECEIVED FOR CLASSIFICATION UNDER THE RAMSPECK ACT. WHEN THE RETURNED INCUMBENT FAILS THE NONCOMPETITIVE EXAMINATION, THE COMMISSION'S NOTICE TO THE APPOINTING OFFICER CONTAINS THE INFORMATION, IN ACCORDANCE WITH THE STATUTE, THAT THE INCUMBENT MUST BE SEPARATED FROM THE SERVICE WITHIN SIX MONTHS.

THE QUESTION HAS BEEN RAISED WHETHER UNDER SECTION 2.4 OF THE LEAVE REGULATIONS, QUOTED HERETOFORE, THE SIX MONTHS' PERIOD MIGHT BE EXTENDED BY THE GRANTING OF ACCRUED ANNUAL LEAVE. IN A RECENT CASE, THE COMMISSION OFFICIALLY INFORMED AN APPOINTING OFFICER BY LETTER OF APRIL 8, 1944, THAT THE EMPLOYEE "MUST BE SEPARATED FROM THE SERVICE WITHIN SIX MONTHS FROM THE DATE OF THIS LETTER (INCLUSIVE OF LEAVE TO WHICH ENTITLED).' UPON RECEIPT OF THE COMMISSION'S LETTER THE EMPLOYING AGENCY ADVISED THE EMPLOYEE TO USE HIS ACCUMULATED LEAVE FROM TIME TO TIME SO THAT THERE WOULD BE NO NECESSITY OF LAPSING ANY OF IT SUBSEQUENT TO OCTOBER 7, 1944, THE DATE ON WHICH HE WAS TO BE TERMINATED. ALTHOUGH THE EMPLOYEE APPEALED THE COMMISSION'S DECISION, IT WAS ASSUMED THAT HE WOULD FOLLOW THE ADVICE GIVEN HIM WITH RESPECT TO HIS UNUSED ANNUAL LEAVE. HIS SUPERVISOR INDICATES THAT SUCH LEAVE WOULD HAVE BEEN GRANTED, BUT WAS NOT REQUESTED. SUBSEQUENT TO THE DISAPPROVAL OF THE EMPLOYEE'S APPEAL, HE SUBMITTED HIS RESIGNATION, EFFECTIVE AT THE CLOSE OF BUSINESS OCTOBER 6, 1944, PLUS ANY ACCUMULATED OR ACCRUED ANNUAL LEAVE TO WHICH HE MAY BE ENTITLED. HE HAD TO HIS CREDIT AT THAT TIME 10 DAYS AND 3 HOURS OF ACCUMULATED AND ACCRUED ANNUAL LEAVE.

THE EMPLOYING AGENCY HAS ADDRESSED AN INQUIRY TO THE COMMISSION, ASKING WHETHER THE EMPLOYEE MAY BE KEPT ON THE ROLLS UNTIL THE EXPIRATION OF ALL ANNUAL LEAVE, IN ACCORDANCE WITH SECTION 2.4 OF THE LEAVE REGULATIONS. THE ANSWER IS IN THE AFFIRMATIVE, THE COMMISSION WILL OF COURSE HAVE TO AMEND THE TERMS OF ITS NOTICE IN THESE CASES. YOUR DECISION WILL BE APPRECIATED AS TO WHETHER THE EMPLOYEE MUST BE CARRIED ON THE ROLLS UNTIL THE EXPIRATION OF ALL ANNUAL LEAVE TO HIS CREDIT; OR WHETHER THE STATUTORY REQUIREMENT OF SEPARATION WITHIN SIX MONTHS REQUIRES A FORFEITURE OF ALL LEAVE NOT USED WITHIN THE SIX MONTHS.

PURSUANT TO THE ITALICIZED PORTION OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1211, 1212, QUOTED IN YOUR LETTER, THE SERVICE OF AN EMPLOYEE WHO FAILS TO QUALIFY FOR A CLASSIFIED CIVIL SERVICE STATUS TERMINATES BY OPERATION OF LAW SIX MONTHS AFTER THE CIVIL SERVICE COMMISSION ADVISES THE APPOINTING OFFICER THAT SUCH EMPLOYEE HAS FAILED TO QUALIFY. SECTION 2.4 OF THE LEAVE REGULATIONS, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, DOES NOT HAVE THE EFFECT OF SUPERSEDING OR RENDERING INOPERATIVE ANY OTHER PROVISION OF LAW AUTOMATICALLY TERMINATING THE SERVICE OR POSITION OF AN EMPLOYEE UPON A CERTAIN DATE. SEE QUESTION AND ANSWER 1 IN DECISION OF AUGUST 17, 1944, B 43283, 24 COMP. GEN. 134, AND THE LAST PARAGRAPH OF DECISION OF SEPTEMBER 16, 1944, B-44515, 24 COMP. GEN. 222, AND THE DECISION THEREIN CITED.

ACCORDINGLY, TERMINATION ANNUAL LEAVE MAY NOT BE GRANTED FOR ANY PERIOD BEYOND THE DATE OF THE STATUTORY TERMINATION OF AN EMPLOYEE'S SERVICE PURSUANT TO THE ACT OF NOVEMBER 26, 1940, SUPRA, AND ALL LEAVE NOT USED PRIOR TO SUCH SEPARATION IS FORFEITED.