B-63265, FEBRUARY 18, 1947, 26 COMP. GEN. 604

B-63265, FEBRUARY 18, 1947, 26 COMP. GEN. 604

LUMP-SUM LEAVE PAYMENTS - TRANSFER FROM TEMPORARY TO PERMANENT POSITION AN EMPLOYEE WHO WAS TRANSFERRED FROM A TEMPORARY TO A PERMANENT POSITION IN THE SAME AGENCY WITHOUT A BREAK IN SERVICE IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, AS FOR A TRANSFER BETWEEN DIFFERENT LEAVE SYSTEMS (26 COMP. GEN. 259), TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT ON THE LAST DAY OF SERVICE IN THE TEMPORARY POSITION.

COMPTROLLER GENERAL WARREN TO R. E. KENNARD, DEPARTMENT OF AGRICULTURE, FEBRUARY 18, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1947, AS FOLLOWS:

THE ATTACHED PAYROLL FOR PERSONAL SERVICES, BUREAU VOUCHER NO. 3067, PAYING DURWARD R. THAYER FOR ONE DAY'S SALARY IS SUBMITTED HEREWITH FOR REVIEW AND ADVANCE DECISION IN ACCORDANCE WITH PUBLIC LAW 389, 77TH CONGRESS.

EFFECTIVE JULY 1, 1946 MR. THAYER WAS GRANTED A TEMPORARY APPOINTMENT WITH THIS SERVICE UNDER AUTHORITY OF CIVIL SERVICE COMMISSION CIRCULAR 549, REGULATION VIII, SECTION 4, AT $2,644.80 PER ANNUM, TO TERMINATE NOT LATER THAN DECEMBER 31, 1946.

EFFECTIVE JANUARY 1, 1947 THIS APPOINTMENT WAS TERMINATED AND HE WAS GRANTED A TEMPORARY APPOINTMENT PENDING CERTIFICATION OF ELIGIBLES, UNDER AUTHORITY OF CIVIL SERVICE COMMISSION CIRCULAR 549, REGULATION VIII, SECTION 2.

SINCE THE APPOINTMENT GRANTED JANUARY 1, 1947 CARRIED NO LIMITATION AS TO DURATION OF SERVICE IT IS CONSIDERED THAT IT FALLS WITHIN THE DEFINITION OF A " PERMANENT POSITION" FOR LEAVE PURPOSES AS DEFINED IN THE CIVIL SERVICE REGULATIONS UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. HIS NEW APPOINTMENT CONSTITUTED A TRANSFER TO A DIFFERENT LEAVE SYSTEM IN ACCORDANCE WITH YOUR DECISION B-60657 OF OCTOBER 24, 1946. CONSEQUENTLY, LUMP-SUM LEAVE PAYMENT WAS MADE TO MR. THAYER IN THE GROSS AMOUNT OF $81.37 FOR 64 HOURS OF ACCRUED LEAVE ON DISBURSING OFFICER'S VOUCHER NO. 1093315 PAID JANUARY 23, 1947, ACCOUNTS OF E. J. BRENNAN, SYMBOL 2000.

THE ACT OF DECEMBER 21, 1944, 59 STAT. 845, DEALING WITH LUMP-SUM PAYMENTS TO GOVERNMENT EMPLOYEES FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE PROVIDES IN PART:

"SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.'

UNDER THE CITED PROVISIONS OF THIS ACT IT APPEARS THAT MR. THAYER WAS ENTITLED TO RECEIVE A LUMP-SUM LEAVE PAYMENT FOR 9 FULL DAYS BASED ON 74 HOURS ACCRUED ANNUAL LEAVE PLUS PAYMENT FOR JANUARY 1, 1947, A HOLIDAY WHICH CAME WITHIN THE PERIOD COVERED BY HIS ANNUAL LEAVE. HOWEVER, IN COMPUTING THE LUMP-SUM LEAVE PAYMENT MADE ON DISBURSING OFFICER'S VOUCHER NO. 1093315, PAYMENT WAS NOT MADE FOR THE HOLIDAY. THE ATTACHED VOUCHER IS FOR THE PURPOSE OF PAYING MR. THAYER FOR AN ADDITIONAL DAY TO COMPLETE HIS LUMP-SUM LEAVE PAYMENT.

WHILE IT IS RECOGNIZED THAT PERIODS USED IN COMPUTING LUMP-SUM LEAVE PAYMENTS ARE NOT CONSIDERED PERIODS OF SERVICE AND LUMP-SUM LEAVE PAYMENTS ARE NOT CONSIDERED TO BE SALARY PAYMENTS, EXCEPT FOR TAX PURPOSES, AN UNUSUAL CIRCUMSTANCE ARISES IN THE INSTANT CASE SINCE MR. THAYER RECEIVED PAYMENT FOR THE HOLIDAY ( JANUARY 1, 1947) UNDER HIS NEW APPOINTMENT. CONSEQUENTLY, THE PAYMENT PROPOSED TO BE MADE ON THIS VOUCHER WOULD RESULT, AT LEAST THEORETICALLY, IN DOUBLE PAYMENT TO MR. THAYER FOR A HOLIDAY ON WHICH NO SERVICES WERE RENDERED.

IN VIEW OF THE CIRCUMSTANCES OUTLINED ABOVE, I WILL APPRECIATE IT IF YOU WILL ADVISE ME AS TO WHETHER I MAY PROPERLY CERTIFY THIS VOUCHER FOR PAYMENT.

FROM THE FACTS RECITED THE EMPLOYEE INVOLVED WAS ENTITLED TO LUMP SUM PAYMENT FOR ALL CURRENT ACCRUED AND ACCUMULATED ANNUAL LEAVE TO HIS CREDIT ON DECEMBER 31, 1946, THE DATE HIS TEMPORARY APPOINTMENT EXPIRED. SEE DECISION OF OCTOBER 24, 1946, B-60657, 26 COMP. GEN. 259. BY VIRTUE OF HIS SUBSEQUENT APPOINTMENT TO A PERMANENT POSITION FOR LEAVE PURPOSES, EFFECTIVE JANUARY 1, 1947, HE BECAME ENTITLED TO COMPENSATION THEREUNDER FROM ITS EFFECTIVE DATE, REGARDLESS OF THE FACT THAT SUCH DAY WAS A LEGAL HOLIDAY ON WHICH NO SERVICES WERE PERFORMED; PROVIDED, OF COURSE, THAT HE ACTUALLY ENTERED ON DUTY THE FIRST WORK DAY THEREAFTER.

SINCE THE PERIOD COVERED BY A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944 (58 STAT. 845), IS USED MERELY AS A MEASURE FOR COMPUTING THE AMOUNT THEREOF, THE PAYMENT OF REGULAR COMPENSATION UNDER A SUBSEQUENT APPOINTMENT, SUCH AS HERE INVOLVED, FOR ANY DAY DURING SUCH PERIOD--- INCLUDING A HOLIDAY--- IS NOT PRECLUDED BY LAW. SEE DECISION OF FEBRUARY 5, 1947, B-62974, 26 COMP. GEN. 566.

IN VIEW OF THE FOREGOING, THE LUMP-SUM PAYMENT TO MR. THAYER PROPERLY SHOULD HAVE INCLUDED AN AMOUNT EQUAL TO THE COMPENSATION HE WOULD HAVE RECEIVED ON NEW YEAR'S DAY HAD HE REMAINED IN HIS TEMPORARY POSITION UNTIL THE EXPIRATION OF HIS ANNUAL LEAVE. ACCORDINGLY, THE SUBMITTED VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.