B-61185, DECEMBER 2, 1946, 26 COMP. GEN. 385

B-61185, DECEMBER 2, 1946, 26 COMP. GEN. 385

RETIREMENT - CIVILIAN - SERVICE CREDITS - LEAVES OF ABSENCE UNDER THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, EXCLUDING "SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR" IN COMPUTING LENGTH OF SERVICE FOR RETIREMENT PURPOSES, THERE NEED NOT BE CONSIDERED ANY LEAVES OF ABSENCE WITH PAY IN DETERMINING THE EXTENT OF ABSENCES TO BE EXCLUDED, WHETHER OR NOT LEAVE WITHOUT PAY BE INVOLVED. CF. 26 COMP. DEC. 1079.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 2, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 8, 1946, AS FOLLOWS:

SECTION 3 OF THE ORIGINAL CIVIL SERVICE RETIREMENT ACT APPROVED MAY 22, 1920, READS IN PART:

"IT IS FURTHER PROVIDED THAT IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE AND SO MUCH OF ANY PERIOD OF LEAVE OF ABSENCE AS MAY EXCEED SIX MONTHS SHALL BE EXCLUDED, AND THAT IN THE CASE OF SUBSTITUTES IN THE POSTAL SERVICE ONLY PERIODS OF ACTIVE EMPLOYMENT SHALL BE INCLUDED. * * *"

IN INTERPRETING THIS PROVISION, THE COMPTROLLER OF THE TREASURY IN DECISION JUNE 30, 1920 (26 COMP. DEC. 1079) STATED:

" I CONCLUDE, FROM THE PROVISIONS OF SECTION 3, THAT THE ABSENCES EXCEEDING SIX MONTHS WHICH ARE REQUIRED TO BE EXCLUDED IN COMPUTING SERVICE, ARE ABSENCES INVOLVING A NONPAY STATUS. THE LENGTH OF THE PERIOD OF ABSENCE, SIX MONTHS, IN ITSELF SUGGESTS THIS. ABSENCES WITH PAY AUTHORIZED BY LAW WHEN ALONE ARE NOT TO BE EXCLUDED IN COMPUTING SERVICE; BUT WHERE AN EXCESS OF SIX MONTHS' ABSENCE IS A COMBINED PAY AND NONPAY ABSENCE, THE WHOLE OF SUCH ABSENCE MUST BE EXCLUDED IN COMPUTING SERVICE.

SECTION 5 OF THE ACT OF MAY 29, 1930, WHICH IS NOW IN EFFECT, STIPULATES THAT:

"IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED, EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT. * * *"

PRIOR TO THE ENACTMENT OF THE LEAVE PROVISIONS IN THE ECONOMY ACT OF JUNE 30, 1932, LEAVE WITH PAY FOR GOVERNMENT EMPLOYEES (EXCEPT EMPLOYEES IN THE POSTAL SERVICE) WAS NOT CUMULATIVE. SINCE THEN, AND PARTICULARLY SINCE THE ENACTMENT OF THE LEAVE ACTS OF MARCH 14, 1936, EFFECTIVE JANUARY 1, 1936, AN EMPLOYEE MAY ACCUMULATE SUFFICIENT LEAVE TO CARRY HIM WELL BEYOND A 6 MONTHS' PERIOD. ACCORDINGLY, SHOULD SUCH EXTENDED LEAVE PERIOD OCCUR IN ANY CALENDAR YEAR, THE EMPLOYEE WOULD RECEIVE CREDIT UNDER THE RETIREMENT LAW FOR THE ENTIRE PERIOD.

HOWEVER, SHOULD THERE BE COMBINED WITH THE SICK AND ANNUAL LEAVE ONE OR MORE DAYS OF LEAVE WITHOUT PAY, THE COMPTROLLER'S DECISION, ABOVE CITED, WOULD REQUIRE THE EXCLUSION OF SO MUCH OF THE TOTAL LEAVE AS EXCEEDS SIX MONTHS IN THE CALENDAR YEAR. THIS IS TRUE EVEN THOUGH THE EMPLOYEE CONTRIBUTED TO THE RETIREMENT FUND COVERING THE LEAVE WITH PAY SO EXCLUDED FROM CREDIT. SUCH PROCEDURE REACTS TO THE ADVANTAGE OF THE EMPLOYEE WHO EXHAUSTS HIS LEAVE CURRENTLY RATHER THAN CONTINUING ON DUTY AND PERMITTING THE LEAVE TO ACCUMULATE FOR LATER USE.

THIS EXCLUSION WOULD SEEM TO NEGATIVE THE CONSISTENT RULINGS OF YOUR OFFICE THAT LEAVE WITH PAY IS SYNONYMOUS WITH ACTIVE SERVICE (SEE 25 COMP. GEN. 102 AND DECISIONS THEREIN CITED). ALSO, THE WORDING OF THE 1920 DECISION SUGGESTS THAT IT WAS RENDERED IN THE LIGHT OF THE LEAVE LAWS THEN EXISTING. THE COMMISSION, THEREFORE, BELIEVES THAT THE TERM "LEAVE" AS USED IN THE RETIREMENT LAW SHOULD BE APPLICABLE ONLY TO ABSENCES WITHOUT PAY. THIS VIEW IS FURTHER STRENGTHENED BY THE PHRASE "EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT" (ITALICS SUPPLIED) WHEN WE CONSIDER THAT THE ONLY LEAVE PERIOD DURING WHICH COMPENSATION BENEFITS ARE PAYABLE IS LEAVE WITHOUT PAY.

YOUR DECISION AS TO WHETHER THE COMMISSION IS REQUIRED TO CONSIDER LEAVE WITH PAY IN DETERMINING EXCESS LEAVE IN ANY CALENDAR YEAR UNDER SECTION 5 OF THE RETIREMENT ACT IS RESPECTFULLY REQUESTED.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SECTION 5 OF THE CIVIL ANYTHING WHICH MIGHT BE OF ASSISTANCE TO A DETERMINATION AS TO THE SCOPE ANYTHING WHICH MIGHT BE OF ASSISTANCE TO A DETERMINATION AS TO THE SCOPE OF THE PHRASE "ANY LEAVES OF ABSENCE" AS USED IN THAT SECTION. AND WHILE THAT PHRASE, STANDING ALONE, WELL MIGHT BE CONSTRUED AS COVERING ALL LEAVES OF ABSENCE IN EXCESS OF AN AGGREGATE OF SIX MONTHS IN ANY CALENDAR YEAR, WHETHER WITH PAY, WITHOUT PAY, OR A COMBINATION OF EACH TYPE, IT DOES NOT APPEAR THAT SUCH EFFECT EVER HAS BEEN GIVEN THERETO BY THE CIVIL SERVICE COMMISSION.

THE PRINCIPLE THAT THE LEAVES OF ABSENCE REQUIRED TO BE EXCLUDED FROM THE COMPUTATION OF SERVICE CREDITS FOR RETIREMENT PURPOSES ARE ABSENCES INVOLVING A NON-PAY STATUS, ONLY, APPEARS TO HAVE BEEN RECOGNIZED IN THE DECISION OF JUNE 30, 1920, 26 COMP. DEC. 1079, BY A FORMER COMPTROLLER OF THE TREASURY, QUOTED IN PART IN YOUR LETTER, WHICH DECISION WAS RENDERED WITH RESPECT TO SECTION 3 OF THE CIVIL SERVICE RETIREMENT ACT OF 1920, 41 STAT. 615, 616, CONTAINING PROVISIONS SIMILAR TO THE PROVISIONS IN SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, 46 STAT. 472, UNDER CONSIDERATION HERE. HOWEVER, AS STATED IN YOUR LETTER, A LITERAL APPLICATION OF THE HOLDING IN THAT DECISION--- REQUIRING THE EXCLUSION OF LEAVES OF ABSENCE WITH PAY WHICH WHEN COMBINED WITH LEAVES OF ABSENCE WITHOUT PAY, TOTALED MORE THAN SIX MONTHS--- TO THE PROVISIONS OF THE EXISTING LAW RESULTS IN THE ANOMALOUS SITUATION WHEREIN AN EMPLOYEE IS DENIED CREDIT, FOR SERVICE PURPOSES, FOR PERIODS OF LEAVE WITH PAY FOR WHICH HE IS REQUIRED TO CONTRIBUTE TO THE RETIREMENT FUND THROUGH MANDATORY DEDUCTIONS FROM HIS COMPENSATION FOR THE PERIOD COVERED BY SUCH ABSENCE WITH PAY.

IN A DECISION OF AUGUST 1, 1932, 12 COMP. GEN. 149, TO THE CIVIL SERVICE COMMISSION, RESPECTING THE INCLUSION OF PERIODS OF LEGISLATIVE AND ADMINISTRATIVE FURLOUGHS REQUIRED UNDER THE ECONOMY ACT OF 1932, 47 STAT. 399, IN THE COMPUTATION OF LEAVES OF ABSENCE FOR THE PURPOSES OF THE SAID SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, IT WAS STATED:

AS THE TIME ABSENT DUE TO A LEGISLATIVE FURLOUGH DOES NOT DIMINISH THE EMPLOYEE'S CONTRIBUTIONS TO THE RETIREMENT FUND, SUCH LEGISLATIVE FURLOUGHS ARE NOT TO BE COUNTED AS ABSENCES WITHIN THE PURVIEW OF SAID SECTION 5 OF THE CIVIL RETIREMENT ACT. ALL ADMINISTRATIVE FURLOUGHS (FOR WHICH NO RETIREMENT DEDUCTIONS ARE MADE) MUST, HOWEVER, BE COUNTED AS LEAVES OF ABSENCE UNDER THAT SECTION OF THE ACT.

HENCE, IT WILL BE SEEN THAT SECTION 5 OF THE 1930 STATUTE HAS NOT BEEN VIEWED BY THIS OFFICE AS REQUIRING THE EXCLUSION FROM SERVICE CREDITS OF LEAVES OF ABSENCE FOR WHICH CONTRIBUTIONS WERE REQUIRED TO BE MADE TO THE RETIREMENT FUND EVEN THOUGH, AS IN THE CASE OF THE LEGISLATIVE FURLOUGHS, THE EMPLOYEE OTHERWISE IS IN A NON-PAY STATUS.

IN THE LIGHT OF THE FOREGOING, AND IN CONSONANCE WITH THE SETTLED VIEW OF THIS OFFICE THAT ABSENCE WITH PAY IS SYNONYMOUS WITH AN ACTIVE DUTY STATUS, IT IS MY OPINION THAT THE CIVIL SERVICE COMMISSION IS NOT REQUIRED TO CONSIDER LEAVES OF ABSENCE WITH PAY IN DETERMINING THE EXTENT OF ABSENCES WITHIN THE MEANING OF THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930.