B-46997, JANUARY 19, 1945, 24 COMP. GEN. 543

B-46997: Jan 19, 1945

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1945: I HAVE YOUR LETTER OF JANUARY 13. SECTION 1 OF THIS ACT PROVIDES IN PART THAT "WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP-SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW.'. THE LUMP SUM PAYMENT IS EQUAL TO THE COMPENSATION THAT THE EMPLOYEE SEPARATED FROM THE SERVICE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF HIS ANNUAL OR VACATION LEAVE. IF SUCH AN EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM" PRIOR TO THE EXPIRATION OF THE LEAVE PERIOD COVERED BY THE LUMP-SUM PAYMENT.

B-46997, JANUARY 19, 1945, 24 COMP. GEN. 543

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS EMPLOYEES WHO HAD RESIGNED AND ENTERED UPON TERMINAL ANNUAL LEAVE BEGINNING PRIOR TO THE DATE OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND EXTENDING AFTER THAT DATE MAY NOT CHANGE THE EFFECTIVE DATES OF THEIR RESIGNATIONS FOR THE PURPOSE OF RECEIVING LUMP SUM PAYMENTS UNDER SAID STATUTE FOR THE REMAINDER OF THEIR LEAVE, BUT THE PAYMENTS SHOULD CONTINUE TO BE MADE FOR REGULAR PAY PERIODS UNTIL THE EFFECTIVE DATES OF SEPARATION UNDER THE PROCEDURE IN EFFECT PRIOR TO DECEMBER 21, 1944.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JANUARY 19, 1945:

I HAVE YOUR LETTER OF JANUARY 13, 1945, AS FOLLOWS:

PUBLIC LAW NO. 525, 78TH CONGRESS, 2D SESSION, BECAME EFFECTIVE DECEMBER 21, 1944. SECTION 1 OF THIS ACT PROVIDES IN PART THAT "WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP-SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW.' THE LUMP SUM PAYMENT IS EQUAL TO THE COMPENSATION THAT THE EMPLOYEE SEPARATED FROM THE SERVICE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF HIS ANNUAL OR VACATION LEAVE. HOWEVER, UNDER A PROVISO TO THE SECTION, IF SUCH AN EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM" PRIOR TO THE EXPIRATION OF THE LEAVE PERIOD COVERED BY THE LUMP-SUM PAYMENT, HE MUST REFUND TO THE EMPLOYING AGENCY "AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY.'

PRIOR TO THE EFFECTIVE DATE OF THIS ACT TWO EMPLOYEES OF THE SOLID FUELS ADMINISTRATION FOR WAR HAD RESIGNED AND HAD ENTERED UPON TERMINAL LEAVE. ONE OF THESE EMPLOYEES HAD ACCEPTED APPOINTMENT AS A CONSULTANT ON A WHEN- ACTUALLY-EMPLOYED BASIS, HIS APPOINTMENT ON SUCH A BASIS TO BECOME EFFECTIVE IMMEDIATELY UPON HIS SEPARATION FROM THE POSITION FROM WHICH HE HAD RESIGNED. SEVERAL QUESTIONS CONCERNING THESE TWO EMPLOYEES ARE POSED BY THE PASSAGE OF PUBLIC LAW NO. 525.

1. DO THE PROVISIONS OF SECTION 1 OF THE ACT APPLY TO EMPLOYEES SEPARATED FROM THE SERVICE WHO HAD ENTERED UPON TERMINAL LEAVE PRIOR TO THE PASSAGE OF THE ACT? THE LEGISLATIVE HISTORY OF THE ACT OFFERS SOME EVIDENCE THAT IT WAS NOT THE CONGRESSIONAL PURPOSE TO HAVE THE ACT APPLY RETROACTIVELY. YOUR ATTENTION IS DIRECTED TO THE STATEMENT OF MR. RAMSPECK, CHAIRMAN OF THE HOUSE COMMITTEE ON THE CIVIL SERVICE, ON THE FLOOR OF THE HOUSE TO THE EFFECT THAT THE BILL ( H.R. 4918) "ONLY COVERS FUTURE CASES" (90 CONG. REC. 7662).

2. IS THE PAYMENT OF COMPENSATION IN A LUMP-SUM TO EMPLOYEE FOR THE REMAINDER OF THEIR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE OR VACATION LEAVE MANDATORY? THE LEGISLATIVE HISTORY OFFERS SOME EVIDENCE THAT IT WAS NOT THE CONGRESSIONAL PURPOSE TO AFFORD THE EMPLOYEE THE CHOICE OF TERMINAL LEAVE OR LUMP-SUM PAYMENT OF COMPENSATION. DURING THE HOUSE DEBATE ON THE LEGISLATION MR. RAMSPECK CONCURRED WITH THE STATEMENT OF MR. MURRAY OF WISCONSIN THAT THE LEGISLATION WOULD ELIMINATE THE PROBLEM AS TO WHETHER LEAVE WAS EARNED DURING A PERIOD OF TERMINAL LEAVE. (90 CONG. REC. 7662-3.)

3. IF THE ACT DOES APPLY RETROACTIVELY TO EMPLOYEES WHO WERE ON TERMINAL LEAVE WHEN IT BECAME EFFECTIVE, DO THE POSITIONS OF SUCH EMPLOYEES BECOME VACANT AND AVAILABLE TO BE FILLED AS OF THE EFFECTIVE DATE ON WHICH THEIR LEAVES WOULD HAVE EXPIRED HAD LUMP-SUM PAYMENT NOT BEEN RECEIVED (OR ELECTED TO HAVE BEEN RECEIVED/?

4. IF AN EMPLOYEE RESIGNS AFTER THE EFFECTIVE DATE OF THE ACT AND RECEIVES LUMP-SUM PAYMENT IN COMPENSATION FOR HIS LEAVE, ON WHAT DATE DOES HIS POSITION BECOME VACANT AND AVAILABLE TO BE FILLED--- ON THE DAY FOLLOWING HIS LAST DAY OF ACTIVE DUTY, OR ON THE DAY HE RECEIVES (OR ELECTS TO RECEIVE) THE LUMP-SUM PAYMENT, OR ON THE DAY ON WHICH HIS LEAVE WOULD HAVE EXPIRED HAD HE NOT RECEIVED SUCH PAYMENT?

5. IF AN EMPLOYEE RESIGNS FROM A FULL-TIME POSITION IN THE FEDERAL SERVICE, BUT ACCEPTS APPOINTMENT AS A CONSULTANT ON A WHEN-ACTUALLY EMPLOYED BASIS, SUCH APPOINTMENT EFFECTIVE IMMEDIATELY UPON HIS SEPARATION FROM THE POSITION WHICH HE RESIGNED, DOES THE PROVISO TO SECTION 1 OF THE ACT OPERATE TO PREVENT PAYMENT IN A LUMP-SUM FOR THE LEAVE TO WHICH THE EMPLOYEE WAS ENTITLED AS OF THE DATE OF SEPARATION FROM THE FULL-TIME POSITION? IT WOULD SEEM THAT THE EMPLOYEE WOULD NOT BE REEMPLOYED IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM.' SECTION 6.1 (E) (6) OF THE ANNUAL AND SICK LEAVE REGULATION, PROMULGATED BY EXECUTIVE ORDER NO. 9414, ISSUED JANUARY 13, 1944, EXCEPTS FROM LEAVE BENEFITS "CONSULTANTS EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED * * *"

A RULING ON THESE QUESTIONS AS EARLY AS POSSIBLE IS RESPECTFULLY REQUESTED.

IT IS UNDERSTOOD THAT ALL FIVE QUESTIONS PRESENTED RELATE TO THE TWO EMPLOYEES DESCRIBED IN THE SECOND PARAGRAPH OF YOUR LETTER WHO HAD RESIGNED AND ENTERED UPON TERMINAL ANNUAL LEAVE PRIOR TO DECEMBER 21, 1944, THE EFFECTIVE DATE OF THE STATUTE. SEE ANSWER TO QUESTION 1, DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511. SUCH EMPLOYEES MAY NOT CHANGE THE EFFECTIVE DATES OF THEIR RESIGNATIONS DURING TERMINAL ANNUAL LEAVE BEGINNING BEFORE AND EXTENDING AFTER DECEMBER 21, 1944, FOR THE PURPOSE OF RECEIVING A LUMP-SUM PAYMENT FOR THE REMAINDER OF THEIR LEAVE, BUT THE PAYMENTS SHOULD CONTINUE TO BE MADE FOR REGULAR PAY PERIODS UNTIL THE EFFECTIVE DATE OF SEPARATION UNDER THE PROCEDURE IN EFFECT PRIOR TO THE DATE OF APPROVAL OF THE STATUTE.