B-63501, FEBRUARY 11, 1947, 26 COMP. GEN. 589

B-63501: Feb 11, 1947

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LEAVES OF ABSENCE - ANNUAL - TRANSFER FROM TEMPORARY TO PERMANENT POSITION THE TRANSFER OF AN EMPLOYEE WHO OCCUPIED A TEMPORARY POSITION IN ONE AGENCY WITHIN THE MEANING OF SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS TO A PERMANENT POSITION IN ANOTHER AGENCY IS TO BE REGARDED AS A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM (26 COMP. 1947: I HAVE YOUR LETTER OF FEBRUARY 4. AS FOLLOWS: A QUESTION HAS ARISEN AS TO WHETHER WE ARE AUTHORIZED TO TRANSFER AND CREDIT THE ANNUAL LEAVE EARNED BY AN EMPLOYEE PRIOR TO HIS TRANSFER TO THIS AGENCY. THE EMPLOYEE WAS TRANSFERRED FROM A PERMANENT POSITION IN THE WAR RELOCATION AUTHORITY ( DEPARTMENT OF THE INTERIOR) TO THE OFFICE OF THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR.

B-63501, FEBRUARY 11, 1947, 26 COMP. GEN. 589

LEAVES OF ABSENCE - ANNUAL - TRANSFER FROM TEMPORARY TO PERMANENT POSITION THE TRANSFER OF AN EMPLOYEE WHO OCCUPIED A TEMPORARY POSITION IN ONE AGENCY WITHIN THE MEANING OF SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS TO A PERMANENT POSITION IN ANOTHER AGENCY IS TO BE REGARDED AS A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM (26 COMP. GEN. 259) WITHIN THE PURVIEW OF SECTION 3 OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND, THEREFORE, THE ANNUAL LEAVE WHICH ACCRUED IN THE TEMPORARY POSITION MAY NOT BE PLACED TO THE EMPLOYEE'S CREDIT IN THE PERMANENT POSITION.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, FEBRUARY 11, 1947:

I HAVE YOUR LETTER OF FEBRUARY 4, 1947, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO WHETHER WE ARE AUTHORIZED TO TRANSFER AND CREDIT THE ANNUAL LEAVE EARNED BY AN EMPLOYEE PRIOR TO HIS TRANSFER TO THIS AGENCY. THE DOUBT ARISES BECAUSE OF YOUR DECISION B 60657, DATED OCTOBER 24, 1946, WHICH HELD THAT AN EMPLOYEE WHO TRANSFERS TO A POSITION UNDER A "DIFFERENT LEAVE SYSTEM" IN ANOTHER AGENCY MUST BE PAID A LUMP-SUM PAYMENT FOR THE LEAVE EARNED PRIOR TO THE TRANSFER.

ON JULY 1, 1946, THE EMPLOYEE WAS TRANSFERRED FROM A PERMANENT POSITION IN THE WAR RELOCATION AUTHORITY ( DEPARTMENT OF THE INTERIOR) TO THE OFFICE OF THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR. POSITION IN THE OFFICE OF THE SECRETARY WAS OF A DIFFERENT CLASSIFICATION THAN THE WRA POSITION AND THE APPOINTMENT TO THE NEW POSITION WAS SPECIFICALLY LIMITED TO THREE MONTHS. THIS APPOINTMENT WAS EXTENDED FOR A PERIOD OF ONE MONTH EFFECTIVE OCTOBER 1, 1946. ON OCTOBER 27, 1946 (AFTER YOUR DECISION OF OCTOBER 24TH, SUPRA), THE EMPLOYEE WAS TRANSFERRED FROM THE POSITION IN THE OFFICE OF THE SECRETARY TO A PERMANENT POSITION IN THIS AGENCY.

IN YOUR DECISION B-60657, SUPRA, YOU HELD THAT AN EMPLOYEE WHO TRANSFERS FROM A PERMANENT TO A TEMPORARY POSITION MUST BE PAID A LUMP SUM FOR LEAVE EARNED IN THE PERMANENT POSITION BECAUSE THE EMPLOYEE IS "REGARDED AS TRANSFERRING TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 3 OF THE LUMP-SUM LEAVE PAYMENT ACT OF 1944 * * *.' THE QUESTION HAS ARISEN AS TO WHETHER THE TRANSFER ON OCTOBER 27, 1946, FROM THE TEMPORARY POSITION IN THE DEPARTMENT OF THE INTERIOR TO THE PERMANENT POSITION IN THIS AGENCY LIKEWISE INVOLVED A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM WITHIN THE MEANING OF SECTION 3 OF THE ACT, PRECLUDING A TRANSFER OF THE EMPLOYEE'S ANNUAL LEAVE TO THIS AGENCY AND REQUIRING A LUMP-SUM PAYMENT BY THE DEPARTMENT OF THE INTERIOR. THE LUMP-SUM LEAVE PAYMENT ACT IS MANDATORY WHERE IT APPLIES. 24 COMP. GEN. 511 (1945).

THE POSITION OF THE DEPARTMENT OF THE INTERIOR, AS NEARLY AS WE CAN DETERMINE, IS THAT THE EMPLOYEE RETAINED HIS "PERMANENT" STATUS WHEN HE TRANSFERRED FROM WRA TO THE OFFICE OF THE SECRETARY AND THAT THE LIMITATION OF HIS APPOINTMENT TO THREE MONTHS (SUBSEQUENTLY EXTENDED FOR AN ADDITIONAL MONTH) WAS AN "ADMINISTRATIVE" LIMITATION ONLY. DURING THE PERIOD OF HIS SERVICE IN THE OFFICE OF THE SECRETARY THE EMPLOYEE WAS, ACCORDINGLY, CREDITED WITH LEAVE AT THE RATE OF ONE DAY PER BI-WEEKLY PAY PERIOD (THE "PERMANENT" LEAVE SYSTEM RATE). THEREFORE, THE DEPARTMENT CONCLUDES, THE TRANSFER ON OCTOBER 27TH TO A PERMANENT POSITION IN THIS AGENCY WAS NOT A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM.

THE ARGUMENT CAN BE MADE, HOWEVER, THAT THE EMPLOYEE WAS A "TEMPORARY EMPLOYEE" IN THE OFFICE OF THE SECRETARY, WITHIN THE MEANING OF THE LEAVE LAWS AND REGULATIONS. SEE ANNUAL AND SICK LEAVE REGULATIONS. SEC. 1. THE CIVIL SERVICE COMMISSION HAS INFORMALLY INDICATED TO US THAT THIS WOULD BE ITS VIEW WITH RESPECT TO THE PERIOD OF EMPLOYMENT FROM JULY 1 TO OCTOBER 27. IF THIS IS THE CASE, IT WOULD APPEAR THAT THE EMPLOYEE SHOULD HAVE BEEN CREDITED WITH 2 1/2 DAYS ANNUAL LEAVE PER MONTH, INSTEAD OF ONE DAY PER BI-WEEKLY PAY PERIOD, DURING THAT PERIOD ( SEC. 2.1 OF THE LEAVE REGULATIONS, AND SEE 23 COMP. GEN. 904) AND THAT THE TRANSFER TO THE PERMANENT POSITION IN THIS AGENCY WAS A TRANSFER TO A POSITION UNDER A "DIFFERENT LEAVE SYSTEM," PREVENTING A TRANSFER OF LEAVE AND REQUIRING A LUMP SUM PAYMENT.

ATTACHED HERETO ARE COPIES OF THE TRANSFER NOTICES RECEIVED BY THE EMPLOYEE.

I SHOULD APPRECIATE YOUR RULING ON THIS MATTER. IF IT IS DECIDED THAT THE LEAVE INVOLVED IS PROPERLY TRANSFERABLE TO THIS AGENCY WE SHALL OF COURSE BE GLAD TO CONFORM TO THAT DECISION. WOULD YOU PLEASE TRANSMIT A COPY OF YOUR DECISION TO THE DEPARTMENT OF THE INTERIOR?

THE COPIES OF THE TRANSFER NOTICES RECEIVED BY THE EMPLOYEES FROM THE DIVISION OF PERSONNEL SUPERVISION AND MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR, PROVIDE IN PERTINENT PART: TO: MR. EDWIN E. FERGUSON DATE OF ACTION 6-29-46.

THE SECRETARY OF THE INTERIOR HAS APPROVED THE FOLLOWING ACTION CONCERNING YOUR EMPLOYMENT IN THE DEPARTMENT OF THE INTERIOR.

INTERAGENCY TRANSFER

EFFECTIVE DATE: JULY 1, 1946.

FROM--- TO--- POSITION ------------------ SOLICITOR ------------ CONSULTANT. GRADE AND SALARY ---------- P-8, $9,012.50 PER CAF-15, $10,000

ANNUM. PER ANNUM. BUREAU --- ----------------- WAR RELOCATION OFFICE OF THE

AUTHORITY. SECRETARY. BRANCH ------------------------------------------- --- SECRETARY'S

IMMEDIATE

OFFICE. HEADQUARTERS --------------- WASHINGTON, D.C. ----- WASHINGTON, D.C. DEPARTMENT OR FIELD ------- DEPARTMENTAL ---------- DEPARTMENTAL.

UNDER THIS APPOINTMENT YOU RETAIN YOUR CLASSIFIED CIVIL SERVICE

STATUS.

LIMITED TO 3 MONTHS.

TO: MR. EDWIN E. FERGUSON, DATE OF ACTION 10-1-46

OFFICE OF THE SECRETARY

THE SECRETARY OF THE INTERIOR HAS APPROVED THE FOLLOWING ACTION CONCERNING YOUR EMPLOYMENT IN THE DEPARTMENT OF THE INTERIOR.

EXTENSION OF APPOINTMENT--- ONE MONTH

EFFECTIVE DATE: OCTOBER 1, 1946.

FROM--- TO--- POSITION --------- ------------------ CONSULTANT. GRADE AND SALARY ------------------- CAF-15, $10,000 PER ANNUM. BUREAU -------- ---------------------- OFFICE OF THE SECRETARY. BRANCH ------------------ ------------ SECRETARY'S IMMEDIATE OFFICE. HEADQUARTERS ----------------- ------- WASHINGTON, D.C. DEPARTMENT OR FIELD ---------------- DEPARTMENTAL.

YOUR APPOINTMENT IS HEREBY EXTENDED FOR A PERIOD OF ONE MONTH, AND LEAVE WITHOUT PAY DURING THIS PERIOD IS ALSO APPROVED.

TO: MR. EDWIN E. FERGUSON DATE OF ACTION 11-15-46

OFFICE OF THE SECRETARY,

2912 ARGYLE DRIVE, ALEXANDRIA, VIRGINIA.

THE SECRETARY OF THE INTERIOR HAS APPROVED THE FOLLOWING ACTION CONCERNING YOUR EMPLOYMENT IN THE DEPARTMENT OF THE INTERIOR.

SEPARATION--- TRANSFER

EFFECTIVE DATE: OCTOBER 27, 1946.

FROM--- TO--- POSITION - ---------- CONSULTANT ---------------- GRADE AND SALARY --- CAF-15, $10,000 PER ANNUM BUREAU -------------- OFFICE OF THE SECRETARY -- BRANCH -------------- SECRETARY'S IMMEDIATE

OFFICE. HEADQUARTERS -------- WASHINGTON, D.C. --------- DEPARTMENTAL OR

FIELD---------------- DEPARTMENTAL.

TO FEDERAL PUBLIC HOUSING AUTHORITY.

UNDER THOSE NOTICES THERE CAN BE NO DOUBT BUT THAT THE EMPLOYEE OCCUPIED A TEMPORARY POSITION IN THE UNITED STATES DEPARTMENT OF THE INTERIOR WITHIN THE MEANING OF THE APPLICABLE LEAVE LAWS AND REGULATIONS AT THE TIME OF HIS SEPARATION FROM THAT DEPARTMENT. IN THAT CONNECTION, SECTION 1.1 OF THE CURRENT LEAVE REGULATIONS, APPLICABLE TO THIS CASE, CONTAINS THE FOLLOWING DEFINITION:

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR.

IT WAS HELD IN DECISION OF OCTOBER 24, 1946, B-60657, 26 COMP. GEN. 259, QUOTING FROM THE SYLLABUS.

ON THE BASIS THAT ANNUAL LEAVE IS GRANTED TO PERMANENT AND TEMPORARY EMPLOYEES ACCORDING TO SEPARATE SYSTEMS, ALTHOUGH THE GRANT OF LEAVE TO BOTH CLASSES OF EMPLOYEES IS PROVIDED FOR BY THE SAME STATUTE, THE APPOINTMENT, REAPPOINTMENT OR TRANSFER OF AN EMPLOYEE FROM A PERMANENT TO A TEMPORARY POSITION WITHOUT BREAK IN SERVICE MAY BE REGARDED AS A TRANSFER TO A POSITION UNDER A ,DIFFERENT LEAVE SYSTEM" WITHIN THE MEANING OF SECTION 3 OF THE ACT OF DECEMBER 21, 1944, ENTITLING THE EMPLOYEE TO A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT IN THE PERMANENT POSITION, COMPUTED AS OF THE LAST DAY OF SERVICE IN SUCH POSITION. 24 COMP. GEN. 726, OVERRULED.

SINCE IT IS STATED THAT THE EMPLOYEE TRANSFERRED TO A PERMANENT POSITION IN YOUR AGENCY, THE TRANSFER WAS FROM A TEMPORARY POSITION TO A PERMANENT POSITION AND MUST BE REGARDED AS A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM WITHIN THE MEANING OF SECTION 3 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 846. HENCE, ANNUAL LEAVE EARNED PRIOR TO HIS TRANSFER TO YOUR AGENCY MAY NOT BE PLACED TO HIS CREDIT IN YOUR AGENCY. YOUR QUESTION IS ANSWERED ACCORDINGLY.

AS REQUESTED, A COPY OF THIS DECISION IS BEING TRANSMITTED TO THE SECRETARY OF THE INTERIOR.