B-49291, MAY 5, 1945, 24 COMP. GEN. 804

B-49291, MAY 5, 1945, 24 COMP. GEN. 804

LUMP-SUM LEAVE PAYMENTS - STATUTORY OFFICERS A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION IS A CIVILIAN OFFICER OF THE UNITED STATES WITHIN THE PURVIEW OF THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, AND THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND, THEREFORE, IS ENTITLED, UPON RESIGNATION PRIOR TO THE EXPIRATION OF SUCH TERM, TO A LUMP-SUM PAYMENT UNDER THE LATTER STATUTE FOR LEAVE ACCUMULATED UNDER THE FORMER. THE APPOINTMENT OF A GOVERNMENT EMPLOYEE AS A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION--- SERVICE IN BOTH CAPACITIES BEING UNDER THE SAME LEAVE SYSTEM (ACT OF MARCH 14, 1936/--- WITHOUT A BREAK IN SERVICE, DOES NOT OPERATE TO AUTHORIZE A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR LEAVE EARNED AS AN EMPLOYEE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, MAY 5, 1945:

I HAVE YOUR LETTER OF APRIL 19, 1945, AS FOLLOWS:

THE FOLLOWING DATA IS SUBMITTED FOR YOUR CONSIDERATION WHETHER UNDER THE CIRCUMSTANCES OUTLINED BELOW (1) AN EMPLOYEE COVERED BY THE ANNUAL LEAVE LAWS AND REGULATIONS GENERALLY APPLICABLE TO GOVERNMENT EMPLOYEES IS ENTITLED TO A LUMP-SUM PAYMENT COVERING ACCUMULATED ANNUAL LEAVE UNDER PROVISION OF PUBLIC LAW 525, 78TH CONGRESS, UPON APPOINTMENT AS A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION, AND (2) WHETHER A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION WHO (A) RESIGNS PRIOR TO THE EXPIRATION OF HIS APPOINTMENT OR (B) RETIRES UPON EXPIRATION OF HIS APPOINTMENT, IS ENTITLED TO A LUMP-SUM PAYMENT AT THAT TIME FOR ACCUMULATED ANNUAL LEAVE. THE COMMISSIONERS TO WHOM THE ABOVE QUESTIONS HAVE REFERENCE ARE SEVEN IN NUMBER AND ARE APPOINTED BY THE PRESIDENT, SUBJECT TO ADVICE AND CONSENT OF THE SENATE, TO FILL TERMS OF SEVEN YEARS' DURATION (47 U.S.C. SEC. 154 (A) ).

WITH RESPECT TO THE FIRST QUESTION ABOVE, WE ARE NOT CLEAR THAT ONE HOLDING AN APPOINTMENT OF THIS NATURE IS COVERED BY THE LEAVE LAWS AND REGULATIONS APPLICABLE GENERALLY TO FEDERAL EMPLOYEES DESPITE THE BROAD LANGUAGE OF SUCH LAWS AND REGULATIONS. THUS, FOR EXAMPLE, IT IS OUR UNDERSTANDING THAT THE COMMISSIONER WOULD BE ENTITLED TO THE FULL REMUNERATION OF HIS OFFICE BY VIRTUE OF THE APPOINTMENT UNDER WHICH HE HOLDS SUCH OFFICE REGARDLESS OF ANY ABSENCE FROM WORK. ACCORDINGLY, QUESTION HAS ARISEN WHETHER, UPON APPOINTMENT TO THE POSITION OF COMMISSIONER, A PERSON PREVIOUSLY EMPLOYED IN A POSITION SUBJECT TO THE LEAVE LAWS AND REGULATIONS IS ENTITLED TO A LUMP SUM PAYMENT COVERING ACCUMULATED ANNUAL LEAVE UNDER TERMS OF PUBLIC LAW NO. 525 REFERRED TO ABOVE.

THE ANSWER TO OUR SECOND QUESTION APPARENTLY HINGES UPON YOUR ANSWER TO QUESTION 1. IF IT IS YOUR DETERMINATION THAT THE LEAVE LAWS AND REGULATIONS COVER COMMISSIONERS OF THIS AGENCY, SUCH COMMISSIONERS WOULD SEEM TO BE ENTITLED TO LUMP SUM PAYMENTS UPON RESIGNATION OR RETIREMENT UNDER PUBLIC LAW 525 TO THE SAME EXTENT AS OTHER GOVERNMENT EMPLOYEES COVERED BY SUCH LAW WOULD BE ENTITLED TO LUMP SUM PAYMENTS. HOWEVER, AS THIS, TOO, HAS BEEN SUBJECT TO SOME QUESTION, YOUR ADVICE ON THIS POINT WILL ALSO BE APPRECIATED.

FOR CONVENIENCE THE SECOND QUESTION PRESENTED WILL BE CONSIDERED FIRST.

THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IS APPLICABLE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" (ITALICS SUPPLIED), WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. ALSO, THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, IS APPLICABLE TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES" (ITALICS SUPPLIED) WHO IS ENTITLED TO RECEIVE LEAVE OF ABSENCE WITH PAY. THEREFORE, A COMMISSIONER OF THE FEDERAL COMMUNICATIONS COMMISSION, WHO IS A CIVILIAN OFFICER OF THE UNITED STATES, CLEARLY COMES WITHIN THE PURVIEW OF BOTH STATUTES. HENCE, BOTH PARTS OF QUESTION 2 ARE ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION (1), IF THERE BE NO BREAK BETWEEN SERVICE AS AN EMPLOYEE AND SERVICE AS A COMMISSIONER--- SERVICE IN BOTH CAPACITIES BEING UNDER THE SAME LEAVE SYSTEM--- THERE IS NO AUTHORITY TO MAKE A LUMP-SUM PAYMENT FOR LEAVE EARNED AS A EMPLOYEE UPON APPOINTMENT AS COMMISSIONER, FOR THE REASON THAT SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, WOULD NOT BE FOR APPLICATION IN SUCH A CASE UNLESS THERE WERE A BREAK IN SERVICE, AND SECTION 3 OF THE SAME STATUTE, 58 STAT. 846, IS FOR APPLICATION ONLY UPON TRANSFER OR REAPPOINTMENT WITHOUT BREAK IN SERVICE BETWEEN AGENCIES HAVING DIFFERENT LEAVE SYSTEMS. SEE QUESTION AND ANSWER 6, DECISION OF MARCH 7, 1945, B 48039, 24 COMP. GEN. 651. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE.