B-45608, NOVEMBER 16, 1944, 24 COMP. GEN. 381

B-45608: Nov 16, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LEAVES OF ABSENCE - ACCRUAL - TRANSFER FROM TEMPORARY OR INDEFINITE TO PERMANENT POSITIONS DURING SERVICE MONTH IN THE ABSENCE OF ANY RULE IN THE CONTROLLING LAW OR REGULATIONS RESPECTING THE ACCRUAL OF ANNUAL LEAVE BY TEMPORARY OR INDEFINITE EMPLOYEES WHERE THE SERVICE MONTH IS INTERRUPTED BY TRANSFER OR REAPPOINTMENT AS A PERMANENT EMPLOYEE WITHOUT A BREAK IN SERVICE. SERVICE AS A PERMANENT EMPLOYEE WILL BEGIN TO RUN FROM THE END OF SUCH SERVICE MONTH. 24 COMP. 1944: I HAVE YOUR LETTER OF NOVEMBER 6. ARE ENTITLED. THE FACTUAL SITUATION GIVING RISE TO THIS REQUEST IS AS FOLLOWS: MRS. HER APPOINTMENT WAS CONVERTED TO A WAR SERVICE INDEFINITE APPOINTMENT ON AUGUST 3. IT IS CONTENDED THAT SHE IS ENTITLED TO NO LEAVE ALLOWANCE FOR THE PERIOD JULY 7 TO AUGUST 3.

B-45608, NOVEMBER 16, 1944, 24 COMP. GEN. 381

LEAVES OF ABSENCE - ACCRUAL - TRANSFER FROM TEMPORARY OR INDEFINITE TO PERMANENT POSITIONS DURING SERVICE MONTH IN THE ABSENCE OF ANY RULE IN THE CONTROLLING LAW OR REGULATIONS RESPECTING THE ACCRUAL OF ANNUAL LEAVE BY TEMPORARY OR INDEFINITE EMPLOYEES WHERE THE SERVICE MONTH IS INTERRUPTED BY TRANSFER OR REAPPOINTMENT AS A PERMANENT EMPLOYEE WITHOUT A BREAK IN SERVICE, THE SERVICE PERFORMED AS A PERMANENT EMPLOYEE DURING THE REMAINDER OF THE SERVICE MONTH RUNNING AT THE TIME OF SUCH TRANSFER OR REAPPOINTMENT MAY BE REGARDED AS SERVICE AS A TEMPORARY OR INDEFINITE EMPLOYEE FOR LEAVE ACCRUAL PURPOSES, AND SERVICE AS A PERMANENT EMPLOYEE WILL BEGIN TO RUN FROM THE END OF SUCH SERVICE MONTH. 24 COMP. GEN. 215, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, NOVEMBER 16, 1944:

I HAVE YOUR LETTER OF NOVEMBER 6, 1944, AS FOLLOWS:

A QUESTION HAS ARISEN WITH RESPECT TO THE APPROPRIATE METHOD OF CALCULATING THE ANNUAL LEAVE CREDIT TO WHICH TEMPORARY EMPLOYEES WHO BECOME INDEFINITE OR PERMANENT EMPLOYEES, WITHOUT BREAK IN SERVICE, ARE ENTITLED, IN VIEW OF YOUR DECISION OF SEPTEMBER 11 (B-44221), RENDERED TO THE FEDERAL SECURITY AGENCY.

THE FACTUAL SITUATION GIVING RISE TO THIS REQUEST IS AS FOLLOWS: MRS. RUTH S. KREITSCH RECEIVED A TEMPORARY WAR SERVICE APPOINTMENT WITH THE WAR RELOCATION AUTHORITY ON JUNE 6. HER APPOINTMENT WAS CONVERTED TO A WAR SERVICE INDEFINITE APPOINTMENT ON AUGUST 3, 1944. MRS. KREITSCH HAS BEEN CREDITED WITH 2 1/2 DAYS ANNUAL LEAVE FOR THE PERIOD JUNE 6 TO JULY 7, BUT IT IS CONTENDED THAT SHE IS ENTITLED TO NO LEAVE ALLOWANCE FOR THE PERIOD JULY 7 TO AUGUST 3, AND CANNOT RECEIVE CREDIT FOR THE 1/2 DAY QUARTERLY ANNUAL LEAVE ALLOWANCE GRANTED TO PERMANENT EMPLOYEES BECAUSE SHE DID NOT COMPLETE A FULL MONTH'S SERVICE AS A TEMPORARY EMPLOYEE AND HER STATUS WAS NOT THAT OF A PERMANENT EMPLOYEE FOR THE QUARTER ENDING SEPTEMBER 30. OTHER WORDS, ACCORDING TO THIS CONSTRUCTION, MRS. KREITSCH IS TO BE PENALIZED FOR HAVING PROGRESSED, WITHOUT BREAK IN SERVICE, FROM THE STATUS OF A TEMPORARY EMPLOYEE TO THAT OF A INDEFINITE EMPLOYEE, WHICH FOR LEAVE PURPOSES, I UNDERSTAND, IS GENERALLY REGARDED AS SIMILAR TO THAT OF A PERMANENT EMPLOYEE. YOUR DECISION OF SEPTEMBER 11 IS QUOTED IN SUPPORT OF THIS VIEW. I AM UNABLE TO AGREE THAT YOUR DECISION, OR THE LEAVE REGULATIONS, REQUIRES SUCH A CONCLUSION.

THE " REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES," ( EXECUTIVE ORDER NO. 9414, 9 F.R. 623), PROVIDES AS FOLLOWS:

"PART II--- ANNUAL LEAVE. SECTION 2.1 (A). PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF TWO DAYS PER CALENDAR MONTH PLUS AN ADDITIONAL 1/2 DAY IN MARCH, JUNE, SEPTEMBER, AND DECEMBER TO EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS; * * *

"/B) TEMPORARY EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 1/2 DAYS FOR EACH MONTH OF SERVICE. * * *

"/C) INDEFINITE EMPLOYEES SHALL BE CREDITED WITH LEAVE OF TWO DAYS FOR EACH MONTH OF SERVICE PLUS AN ADDITIONAL 1/2 DAY WHEN THE SERVICES AGGREGATES THREE MONTHS. * * *

"PART IV. SECTION 4.11. TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT APPOINTMENTS WITHOUT BREAK IN SERVICE, EITHER IN THE SAME OR A DIFFERENT DEPARTMENT OR AGENCY, SHALL BE CREDITED WITH SUCH LEAVE AS MAY BE DUE THEM, * * *"

IT IS MY UNDERSTANDING THAT THE METHOD OF CALCULATING LEAVE ALLOWANCE IS THE SAME FOR INDEFINITE AS IT IS FOR PERMANENT EMPLOYEES, AND THAT THEREFORE MRS. KREITSCH MAY BE REGARDED AS COMING WITHIN THE PURVIEW OF PART IV, REQUIRING THAT SUCH EMPLOYEES "SHALL BE CREDITED WITH SUCH LEAVE AS MAY BE DUE THEM.' NOWHERE IS IT SUGGESTED IN THE REGULATIONS THAT AN EMPLOYEE IS TO FORFEIT LEAVE BECAUSE OF A CHANGE IN STATUS.

IT ACCORDINGLY APPEARS CLEAR THAT MRS. KREITSCH, AT THE TIME OF HER CHANGE IN STATUS TO THAT OF A INDEFINITE EMPLOYEE, WAS ENTITLED TO A CREDIT OF 2 1/2 DAYS ANNUAL LEAVE FOR THE PERIOD JUNE 6 TO JULY 7 AND FOR ANNUAL LEAVE ALLOWANCE AT THE SAME RATE FOR THE PERIOD JULY 7 TO AUGUST 3, WHICH WOULD BE A FRACTIONAL PART OF THE 2 1/2 DAYS, OR SUCH ALLOWANCE FOR THE REMAINDER OF THE MONTH OF JULY ON A TEMPORARY BASIS,WITH LEAVE ALLOWANCE TO BE CALCULATED ON A PERMANENT BASIS BEGINNING WITH AUGUST 1, WHICHEVER SHOULD RESULT IN NO LOSS OF EARNED LEAVE TO THE EMPLOYEE. IT IS CONTENDED, HOWEVER, THAT SHE MUST FORFEIT THE LEAVE EARNED DURING THE 27 DAYS REMAINING IN JULY, BECAUSE SHE DID NOT COMPLETE A FULL 30-DAY SERVICE MONTH AS A TEMPORARY EMPLOYEE. THIS CONCLUSION APPARENTLY OVERLOOKS THE FACT THAT MRS. KREITSCH WAS CONTINUOUSLY EMPLOYED AND THEREFORE WAS NOT IN THE CATEGORY OF A TEMPORARY EMPLOYEE WHOSE SERVICES WERE TERMINATED PRIOR TO COMPLETION OF A FULL MONTH OF SERVICE.

HAD MRS. KREITSCH BEEN A PERMANENT EMPLOYEE DURING THE FULL CALENDAR-YEAR QUARTER ENDING SEPTEMBER 30, SHE WOULD HAVE BEEN ENTITLED TO 6 1/2 DAYS ANNUAL LEAVE FOR THAT QUARTER. SINCE HER STATUS WAS NOT THAT OF A PERMANENT EMPLOYEE FOR THE FULL QUARTER, SHE COULD NOT EARN THE ADDITIONAL 1/2 DAY QUARTERLY ALLOWANCE, ASSUMING HER LEAVE FOR THAT JULY THROUGH SEPTEMBER WERE CALCULATED ON THE BASIS OF PERMANENT EMPLOYMENT. SETTING ASIDE FOR THE MOMENT THE FACT THAT SHE LACKED 3 DAYS OF COMPLETING THE SECOND MONTH AS A TEMPORARY EMPLOYEE, AND CALCULATING HER LEAVE ON THE BASIS OF TEMPORARY EMPLOYMENT FOR JULY, AND INDEFINITE (PERMANENT) EMPLOYMENT FOR AUGUST AND SEPTEMBER, IT WILL BE SEEN THAT SHE SHOULD RECEIVED CREDIT FOR AT LEAST 6 1/2 DAYS LEAVE; 2 1/2 DAYS FOR JULY, 2 DAYS FOR AUGUST, AND 2 DAYS FOR SEPTEMBER (NECESSARILY FORFEITING THE ADDITIONAL 1/2 DAY QUARTERLY ALLOWANCE). I NOTE THAT IN THE CASE OF INDEFINITE EMPLOYEES, PART II, SECTION 2.1 (C) PROVIDES THAT THEIR ANNUAL LEAVE CREDIT SHALL BE CREDITED AT THE RATE OF TWO DAYS FOR EACH MONTH OF SERVICE, PLUS AN ADDITIONAL 1/2 DAY WHEN THE SERVICE AGGREGATES THREE MONTHS. IT IS NOT REQUIRED THAT THE THREE-MONTH PERIOD BE A QUARTERLY CALENDAR MONTH PERIOD. IF, THEREFORE, MRS. KREITSCH'S LEAVE IS CALCULATED OVER A FOUR-MONTH PERIOD, AS A TEMPORARY EMPLOYEE DURING JULY, AND AS BEING IN AN INDEFINITE STATUS THEREAFTER, SHE WOULD BE ENTITLED TO 9 DAYS LEAVE FOR THE FOUR-MONTH PERIOD, 2 1/2 DAYS FOR JULY, 2 DAYS FOR AUGUST, 2 DAYS FOR SEPTEMBER, 2 DAYS FOR OCTOBER, PLUS 1/2 DAY FOR THE AGGREGATE 3- MONTHS' SERVICE. I BELIEVE THE LATTER COMPUTATION SHOULD BE REGARDED AS THE CORRECT ONE. THE EFFECT OF THE PRESENT CONTENTION, HOWEVER, WOULD BE TO CREDIT MRS. KREITSCH WITH 2 1/2 DAYS ANNUAL LEAVE FOR THE PERIOD JUNE 6 TO JULY 7, WITH NO ANNUAL LEAVE FOR THE PERIOD JULY 7 TO AUGUST 3, AND PRESUMABLY WITH 2 DAYS ANNUAL LEAVE FROM AUGUST 3 TO SEPTEMBER 3 AND FROM SEPTEMBER 3 TO OCTOBER 3, ETC., WITH NO 1/2 DAY QUARTERLY ALLOWANCE.

SINCE A PROPER INTERPRETATION OF THE REGULATIONS AND YOUR DECISION ARE OF IMPORTANCE TO THE CORRECT CALCULATION OF THE LEAVE ALLOWANCE OF A GREAT MANY EMPLOYEES OF THIS DEPARTMENT, YOUR EARLY CLARIFYING DECISION WILL BE APPRECIATED.

THE DECISION OF SEPTEMBER 11, 1944 (B-44221), 24 COMP. GEN. 215, TO WHICH YOU REFER, HELD AS FOLLOWS:

PERMANENT EMPLOYEES ARE CREDITED WITH LEAVE ON A CALENDAR MONTH BASIS (SECTION 2.1 (A) OF THE REGULATIONS), WHEREAS TEMPORARY EMPLOYEES ARE CREDITED WITH LEAVE ON A SERVICE MONTH BASIS (SECTION 2.1 (B) OF THE REGULATIONS). THE FORMER ARE ENTITLED TO TWO DAYS ANNUAL LEAVE CREDIT PER CALENDAR MONTH WITH AN ADDITIONAL CREDIT OF ONE HALF DAY AT THE END OF THE CALENDAR QUARTER, AND THE LATTER ARE ENTITLED TO TWO AND ONE-HALF DAYS ANNUAL LEAVE CREDIT PER SERVICE MONTH WITHOUT REGARD TO THE CALENDAR MONTH OR QUARTER. WHEN AN EMPLOYEE IS TRANSFERRED OR REAPPOINTED FROM A TEMPORARY TO A PERMANENT STATUS FOR LEAVE PURPOSES (SEE SECTION 1.1 (B) (C) OF THE REGULATIONS), CREDITS FOR LEAVE AS A PERMANENT EMPLOYEE FOR THE INITIAL APPOINTMENT AS A PERMANENT EMPLOYEE, WITHOUT REGARD TO HIS SERVICE AS A TEMPORARY EMPLOYEE. OF COURSE, LEAVE EARNED FOR EACH FULL MONTH OF SERVICE AS A TEMPORARY EMPLOYEE WOULD BE FOR CREDITING TO THE EMPLOYEE IN HIS PERMANENT POSITION (SECTION 4.11 OF THE REGULATIONS). SEE DEPARTMENTAL CIRCULAR NO. 471 OF THE CIVIL SERVICE COMMISSION DATED FEBRUARY 26, 1944, AND THE TABLE ISSUED IN CONNECTION THEREWITH. HENCE, THE WORDS "EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER -YEAR ENDING IN SUCH NTHS," APPEARING IN SECTION 2.1 (A) OF THE LEAVE REGULATIONS QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, CLEARLY MEAN CONTINUOUS SERVICE FOR AN ENTIRE CALENDAR QUARTER AS A PERMANENT EMPLOYEE FOR WHOM THE REGULATION HAS BEEN PRESCRIBED. OTHERWISE, THE EMPLOYEE WOULD RECEIVE A DOUBLE CREDIT FOR LEAVE AT THE END OF THE QUARTER FOR THE SAME PERIOD OF TIME, ONE AS TEMPORARY EMPLOYEE AND THE OTHER AS A PERMANENT EMPLOYEE.

UNDER THE DECISION MRS. KREITSCH IS NOT ENTITLED TO THE QUARTERLY CREDIT OF ONE-HALF DAY'S LEAVE AS OF SEPTEMBER 30, 1944, AS A PERMANENT EMPLOYEE. WHILE THE DECISION MAY APPEAR TO GIVE SUPPORT TO THE CONCLUSION STATED IN THE SECOND PARAGRAPH OF YOUR LETTER IT IS FOR NOTING THAT SAID DECISION DID NOT SPECIFICALLY CONSIDER, OR DECIDE THE PARTICULAR PROBLEM PRESENTED IN YOUR LETTER. THE EXISTING LEAVE REGULATIONS CONTAIN NO SPECIFIC PROVISION CONTROLLING THE MATTER. I AM IN AGREEMENT WITH YOUR VIEW THAT THE REGULATIONS DO NOT REQUIRE THAT MRS. KREITSCH LOSE ALL LEAVE CREDIT FOR THE CONTINUOUS SERVICE BETWEEN JULY 5, 1944 (NOT JULY 7, 1944, AS STATED IN YOUR LETTER), END OF FIRST SERVICE MONTH AS A TEMPORARY EMPLOYEE, AND AUGUST 3, 1944, WHEN SHE WAS APPOINTED TO A POSITION GIVING HER A PERMANENT STATUS FOR LEAVE PURPOSES, BECAUSE OF THE FACT THAT THE SECOND SERVICE MONTH AS A TEMPORARY EMPLOYEE WAS INTERRUPTED BY AN APPOINTMENT TO A POSITION ENTITLING HER TO LEAVE AS A PERMANENT EMPLOYEE.

ACCORDINGLY, IN THE ABSENCE OF AN EXPRESS RULE IN THE CONTROLLING LAW OR REGULATIONS TO THE CONTRARY, THERE APPEARS JUSTIFIED THE CONCLUSION THAT, FOR LEAVE PURPOSES, WHEN A TEMPORARY OR INDEFINITE EMPLOYEE IS TRANSFERRED OR REAPPOINTED AS A PERMANENT EMPLOYEE WITHOUT BREAK IN SERVICE WITHIN A SERVICE MONTH, THE SERVICE PERFORMED AS A PERMANENT EMPLOYEE DURING THE REMAINDER OF THE SERVICE MONTH RUNNING WHEN TRANSFERRED OR REAPPOINTED AS PERMANENT EMPLOYEE MAY BE REGARDED AS HAVING BEEN SERVED AS A TEMPORARY OR INDEFINITE EMPLOYEE, AND IN THAT VIEW TWO AND ONE-HALF DAYS' LEAVE WOULD BE FOR CREDITING FOR THAT PERIOD, AND THE FRACTIONAL MONTH'S SERVICE AS A PERMANENT EMPLOYEE WILL BEGIN TO RUN FROM THE END OF THAT PERIOD.

APPLYING THAT RULE TO THE CASE OF MRS. KREITSCH, SHE IS ENTITLED TO FIVE DAYS' LEAVE CREDIT FOR TWO MONTHS OF SERVICE, OR SIXTY CALENDAR DAYS (SEE SECTION 1.1 (I) OF THE REGULATIONS), FROM JUNE 6 THROUGH AUGUST 4, 1944, AS A TEMPORARY EMPLOYEE, PLUS TWELVE HOURS' (ONE AND ONE-HALF DAYS-) LEAVE CREDIT FOR THE PERIOD FROM AUGUST 5 THROUGH AUGUST 31, 1944 (SEE TABLE ATTACHED TO CIVIL SERVICE COMMISSION DEPARTMENT CIRCULAR NO. 471), PLUS TWO DAYS' LEAVE CREDIT FOR SEPTEMBER AS A PERMANENT EMPLOYEE--- A TOTAL LEAVE CREDIT OF EIGHT AND ONE-HALF DAYS FOR THE PERIOD JUNE 6 THROUGH SEPTEMBER 30, 1944. OF COURSE, ON AND AFTER OCTOBER 1, 1944, SHE IS ENTITLED TO LEAVE CREDIT AS A PERMANENT EMPLOYEE.