B-53179, NOVEMBER 2, 1945, 25 COMP. GEN. 386

B-53179: Nov 2, 1945

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LUMP-SUM PAYMENTS SUBSTITUTE POSTAL EMPLOYEES HOLDING WAR SERVICE APPOINTMENTS WHO HAVE BEEN DEPRIVED OF THEIR LEAVE RIGHTS PREVIOUSLY GRANTED BY THE ACT OF APRIL 30. 1945: I HAVE YOUR LETTER OF OCTOBER 15. AS FOLLOWS: THE FOLLOWING IS QUOTED FROM A LETTER OF SEPTEMBER 12. ) THE COMMISSION WAS REQUESTED BY THE DEPARTMENT TO DETERMINE WHETHER OR NOT WAR SERVICE SUBSTITUTE EMPLOYEES ARE CONSIDERED AS "IN THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THE ACT OF APRIL 30. THE DEPARTMENT WAS ADVISED ON JANUARY 29. UNDER WHICH WAR SERVICE APPOINTMENTS ARE MADE. ALTHOUGH THE APPOINTMENTS OF WAR SERVICE APPOINTEES ARE LIMITED TO THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER. SUCH APPOINTEES ARE INCUMBENTS OF POSITIONS WHICH CONTINUE TO BE IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE.

B-53179, NOVEMBER 2, 1945, 25 COMP. GEN. 386

LEAVES OF ABSENCE - SUBSTITUTE POSTAL EMPLOYEES HOLDING WAR SERVICE APPOINTMENTS; LUMP-SUM PAYMENTS SUBSTITUTE POSTAL EMPLOYEES HOLDING WAR SERVICE APPOINTMENTS WHO HAVE BEEN DEPRIVED OF THEIR LEAVE RIGHTS PREVIOUSLY GRANTED BY THE ACT OF APRIL 30, 1940, BY REASON OF THEIR NOT BEING ,CLASSIFIED" SUBSTITUTE EMPLOYEES AS NOW REQUIRED BY THE LEAVE PROVISIONS OF SECTION 6 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945--- EFFECTIVE JULY 1, 1945--- MAY NOT BE GRANTED ANY LEAVE AFTER JUNE 30, 1945, BUT MAY BE PAID A LUMP SUM UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, FOR ANNUAL LEAVE ACCRUED UP TO AND INCLUDING JUNE 30, 1945, EVEN THOUGH THEY CONTINUED AFTER SUCH DATE TO OCCUPY THE SAME POSITIONS AND PERFORM THE SAME DUTIES.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 2, 1945:

I HAVE YOUR LETTER OF OCTOBER 15, 1945, REFERENCE 4, AS FOLLOWS:

THE FOLLOWING IS QUOTED FROM A LETTER OF SEPTEMBER 12, 1945, FROM THE UNITED STATES CIVIL SERVICE COMMISSION.

"THE ACT OF APRIL 30, 1940, 54 STAT. 171, WHICH GOVERNED THE GRANTING OF ANNUAL AND SICK LEAVE TO SUBSTITUTES IN THE POSTAL SERVICE PRIOR TO THE ACT OF JULY 6, 1945, READ IN PART AS FOLLOWS:

" "THAT HEREAFTER SUBSTITUTES IN THE POSTAL SERVICE SHALL BE RATED AS EMPLOYEES AND EACH SUBSTITUTE POSTAL EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME ACTUALLY EMPLOYED.'

"FOLLOWING A DECISION OF THE COMPTROLLER GENERAL DATED JULY 15, 1944 (B- 43138,) THE COMMISSION WAS REQUESTED BY THE DEPARTMENT TO DETERMINE WHETHER OR NOT WAR SERVICE SUBSTITUTE EMPLOYEES ARE CONSIDERED AS "IN THE CLASSIFIED CIVIL SERVICE" WITHIN THE MEANING OF THE ACT OF APRIL 30, 1940. THE DEPARTMENT WAS ADVISED ON JANUARY 29, 1945, THAT THE COMMISSION HAD UNIFORMLY HELD THAT EXECUTIVE ORDER NO. 9063, UNDER WHICH WAR SERVICE APPOINTMENTS ARE MADE, DID NOT TAKE THE POSITIONS AFFECTED THEREBY OUT OF THE COMPETITIVE CLASSIFIED CIVIL SERVICE, BUT THAT BY REASON OF THE PROVISIONS OF SECTION 2 OF THE ORDER THE PERSONS APPOINTED SOLELY BY REASON OF ANY SPECIAL PROCEDURES ADOPTED UNDER THE ORDER TO POSITIONS SUBJECT TO THE CIVIL SERVICE ACT AND RULES WOULD NOT THEREBY ACQUIRE A CLASSIFIED CIVIL SERVICE STATUS. ALTHOUGH THE APPOINTMENTS OF WAR SERVICE APPOINTEES ARE LIMITED TO THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, SUCH APPOINTEES ARE INCUMBENTS OF POSITIONS WHICH CONTINUE TO BE IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE. IT WAS STATED TO BE THE VIEW OF THE COMMISSION THAT SUBSTITUTE POSTAL EMPLOYEES WHO RECEIVED WAR SERVICE APPOINTMENTS WERE INCUMBENTS OF POSITIONS IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND WERE THEREFORE ENTITLED TO EARN LEAVE WITHIN THE MEANING OF THE ACT OF APRIL 30, 1940, REFERRED TO ABOVE.

"SECTION 6 OF THE ACT OF JULY 6, 1945 ( PUBLIC LAW 134--- 79TH CONG.,) SUPERSEDED THE ACT OF APRIL 30, 1940 BY GRANTING LEAVE TO SUBSTITUTE EMPLOYEES IN THE FOLLOWING LANGUAGE:

" "PROVIDED FURTHER, THAT CLASSIFIED SUBSTITUTE EMPLOYEES, UNDER SUCH REGULATIONS AS THE POSTMASTER GENERAL MAY PRESCRIBE, SHALL BE GRANTED THE SAME RIGHTS AND BENEFITS WITH RESPECT TO ANNUAL AND SICK LEAVE THAT ACCRUE TO REGULAR EMPLOYEES IN PROPORTION TO THE TIME EMPLOYED IN A PAY STATUS * * *: AND PROVIDED FURTHER, THAT IN NO EVENT SHALL A CLASSIFIED SUBSTITUTE EMPLOYEE BE CREDITED DURING A TWELVE-MONTH PERIOD WITH MORE THAN FIFTEEN DAYS' ANNUAL AND TEN DAYS' SICK VE.' (ITALICS SUPPLIED.)

"YOU REQUEST TO BE ADVISED WHETHER SUBSTITUTES APPOINTED IN THE POSTAL SERVICE UNDER THE WAR SERVICE REGULATIONS MAY BE REGARDED AS HAVING A CLASSIFIED STATUS WITHIN THE MEANING OF THE NEW LAW.

"A CAREFUL STUDY HAS BEEN MADE OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 134, APPROVED JULY 6, 1945, BUT NOTHING HAS BEEN FOUND TO INDICATE THE REASON FOR CHANGE IN THE LEAVE LAW APPLICABLE TO SUBSTITUTE EMPLOYEES. THE DEPARTMENT NO DOUBT HAS INFORMATION CONCERNING THE PURPOSE OF THE CHANGE IN THE LAW WHICH IS NOT AVAILABLE TO THE COMMISSION. REGARDLESS OF THE PURPOSE IN CHANGING THE LEAVE LAW APPLICABLE TO SUBSTITUTE POSTAL EMPLOYEES THE FACT REMAINS THAT THE NEW STATUTE GOVERNING THE GRANTING OF LEAVE SPECIFICALLY APPLIES TO "CLASSIFIED SUBSTITUTE EMPLOYEES.' THE TERM "CLASSIFIED SUBSTITUTE," AS USED BY THE COMMISSION AND THE DEPARTMENT FOR MANY YEARS, MEANS A SUBSTITUTE WHO HAS A COMPETITIVE CLASSIFIED CIVIL SERVICE STATUS BY VIRTUE OF HAVING BEEN REGULARLY SELECTED FOR PROBATIONAL APPOINTMENT FROM A CERTIFICATE ISSUED BY THE CIVIL SERVICE COMMISSION FOR THE PURPOSE. INASMUCH AS SECTION 2 OF EXECUTIVE ORDER NO. 9063 SPECIFICALLY PROVIDES THAT PERSONS APPOINTED SOLELY BY REASON OF THE PROCEDURES ADOPTED THEREUNDER,"SHALL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL SERVICE STATUS" THE COMMISSION IS RELUCTANTLY FORCED TO THE VIEW THAT SUBSTITUTES APPOINTED UNDER THE WAR SERVICE REGULATIONS MAY NOT BE REGARDED AS HAVING A CLASSIFIED STATUS FOR THE PURPOSE OF BEING ENTITLED TO LEAVE BENEFITS UNDER THE ACT OF JULY 6, 1945.'

IN VIEW OF THE FOREGOING, YOUR PROMPT DECISION WILL BE APPRECIATED AS TO WHETHER SUBSTITUTE POSTAL EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS MAY BE GRANTED ANNUAL AND SICK LEAVE WHICH ACCRUED TO THEM THROUGH JUNE 30, 1945, OR WHETHER, PURSUANT TO THE ACT OF DECEMBER 21, 1944 (58 STAT. 845), THEY SHOULD ONLY BE ALLOWED COMPENSATION IN A LUMP SUM FOR THE ANNUAL LEAVE WHICH ACCRUED TO THEM THROUGH JUNE 30, 1945.

AS THE QUESTION OF WHETHER A WAR SERVICE APPOINTEE AS SUBSTITUTE POSTAL EMPLOYEE IS "IN THE CLASSIFIED CIVIL SERVICE," OR IS A "CLASSIFIED SUBSTITUTE EMPLOYEE" IS A MATTER FOR DETERMINATION BY THE UNITED STATES CIVIL SERVICE COMMISSION, THIS OFFICE MUST ACCEPT THE DECISION OF THE CIVIL SERVICE COMMISSION UPON THAT POINT AS EXPRESSED IN ITS LETTER OF SEPTEMBER 12, 1945, TO YOU, QUOTED IN YOUR LETTER, SUPRA.

SECTION 3 OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 846, PROVIDES:

SEC. 3. THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP- SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE: PROVIDED, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

WITH RESPECT TO THE QUESTION OF WHETHER A LUMP-SUM LEAVE PAYMENT WAS AUTHORIZED UPON THE TRANSFER OF EMPLOYEES WITHIN THE SAME DEPARTMENT TO A POSITION EXCEPTED FROM THE LEAVE ACT, IT WAS HELD IN DECISION 24 COMP. GEN. 522 (QUOTING FROM THE LAST PARAGRAPH OF THE SYLLABUS):

UPON TRANSFER OR REAPPOINTMENT OF EMPLOYEES FROM POSITIONS OR EMPLOYMENT SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO OTHER FEDERAL POSITIONS OR EMPLOYMENT WITH SALARY ATTACHED AND NOT UNDER ANY LEAVE SYSTEM (SEE SECTION 6.1, SUBSECTIONS (C) AND (E,) OF THE ANNUAL AND SICK LEAVE REGULATIONS,) SUCH EMPLOYEE MAY BE PAID A LUMP SUM FOR ALL NON- TRANSFERABLE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, PURSUANT TO THE ACT OF DECEMBER 21, 1944; AND SUCH PAYMENTS ARE NOT TO BE REGARDED AS SALARY OR COMPENSATION WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTES. ALSO, IN 24 COMP. GEN. 578, IT WAS HELD (QUOTING FROM THE SECOND PARAGRAPH OF THE SYLLABUS):

SECTION 3 OF THE ACT OF DECEMBER 21, 1944, PROVIDING FOR LUMP-SUM PAYMENTS FOR LEAVE IN CASES INVOLVING "TRANSFER TO AGENCIES" UNDER DIFFERENT LEAVE SYSTEMS, MAY BE REGARDED AS AUTHORIZING LUMP-SUM PAYMENTS UPON TRANSFER TO A SERVICE UNDER A DIFFERENT LEAVE SYSTEM IN THE SAME DEPARTMENT OR ESTABLISHMENT, SO THAT A POST OFFICE CLERK (FIELD SERVICE) WHO TRANSFERS WITHOUT A BREAK IN SERVICE TO THE POST OFFICE DEPARTMENT (DEPARTMENTAL SERVICE,) THE LATTER SERVICE BEING UNDER A DIFFERENT LEAVE SYSTEM FROM THE FORMER, MAY BE PAID A LUMP SUM FOR LEAVE ACCRUED UP TO THE LAST DAY OF ACTIVE DUTY AS A POST OFFICE CLERK.

WHILE IT WOULD APPEAR FROM YOUR SUBMISSION THAT THE SUBSTITUTE POSTAL EMPLOYEES HERE INVOLVED CONTINUED, AFTER JUNE 30, 1945, TO PERFORM THE SAME DUTIES AND OCCUPY THE SAME POSITIONS AS FORMERLY AND THAT THERE IS NOT INVOLVED, STRICTLY, ANY SEPARATION FROM THE SERVICE OR ANY TRANSFER TO AN AGENCY UNDER A DIFFERENT LEAVE SYSTEM, YET, SUBSTANTIALLY THE SAME RESULT--- SO FAR AS THE LEAVE IS CONCERNED--- HAS BEEN EFFECTED BY THE ACTION OF THE CONGRESS IN CHANGING THE LEAVE PROVISIONS FOR SUBSTITUTE POSTAL EMPLOYEES, SO THAT SUBSTITUTE POSTAL EMPLOYEES WHO HAVE NOT BEEN CLASSIFIED BUT WHO HOLD WAR SERVICE APPOINTMENTS MAY NOT BE GRANTED ANY LEAVE AFTER JUNE 30, 1945. ACCORDINGLY, THE CONCLUSION APPEARS JUSTIFIED THAT EMPLOYEES SO DEPRIVED OF THE RIGHT TO LEAVE MAY BE PAID FOR THE ANNUAL LEAVE ACCRUED TO THEM UP TO AND INCLUDING JUNE 30, 1945, PURSUANT TO THE LUMP-SUM LEAVE STATUTE, SUPRA. ..END :