B-64710, APRIL 15, 1947, 26 COMP. GEN. 786

B-64710, APRIL 15, 1947, 26 COMP. GEN. 786

LEAVES OF ABSENCE - ANNUAL - LUMP-SUM PAYMENTS - TRANSFERS BETWEEN PERMANENT AND TEMPORARY POSITIONS IN VIEW OF THE FACT THAT EMPLOYEES APPOINTED PURSUANT TO SECTION 2 OF REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, PROVIDING FOR TEMPORARY APPOINTMENTS "PENDING THE ESTABLISHMENT OF A REGISTER," WITHOUT TIME LIMITATION, ARE "PERMANENT" EMPLOYEES FOR LEAVE PURPOSES, WHEREAS THOSE APPOINTED UNDER SECTION 4 OF SAID REGULATION FOR "JOB EMPLOYMENT" OF A TEMPORARY CHARACTER, NOT TO EXCEED 6 MONTHS, ARE "TEMPORARY" EMPLOYEES FOR LEAVE PURPOSES, A LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE IS REQUIRED UNDER THE ACT OF DECEMBER 21, 1944, UPON THE TRANSFER OF SUCH EMPLOYEES BETWEEN POSITIONS COVERED BY SECTIONS 4 AND 2 OF THE REGULATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 15, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 18, 1947, AS FOLLOWS:

REFERENCE IS MADE TO THE COMPTROLLER GENERAL'S DECISION B-60657 DATED OCTOBER 24, 1946.

IT WAS HELD THAT AN EMPLOYEE TRANSFERRING FROM A PERMANENT POSITION TO A TEMPORARY POSITION WHICH MAY BE REGARDED AS A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM IS ENTITLED TO A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT ON THE LAST DAY OF SERVICE IN THE PERMANENT POSITION.

LEAVE REGULATIONS OF THE CIVIL SERVICE COMMISSION WHICH HAVE BEEN BASED ON THE DECISION CITED ABOVE STATE ON PAGE L1-10 UNDER THE SUBHEADING" TRANSFERS WITHIN AN AGENCY" THAT " WHEN AN EMPLOYEE TRANSFERS WITHIN AN AGENCY * * * AND BOTH POSITIONS ARE PERMANENT OR BOTH ARE TEMPORARY HE IS TO BE CREDITED WITH THE LEAVE WHICH WAS DUE HIM IN HIS FORMER POSITION * *

SECTION 4.10 OF THE ANNUAL AND SICK LEAVE REGULATIONS STATES ON PAGE Z1- 455 THAT " TEMPORARY EMPLOYEES WHO SUBSEQUENTLY BECOME PERMANENT EMPLOYEES EITHER IN THE SAME OR A DIFFERENT AGENCY WITH NO BREAK IN SERVICE OR A BREAK OF LESS THAN 90 DAYS SHALL BE CREDITED WITH SUCH LEAVE AS MAY BE DUE THEM.'

A NUMBER OF EMPLOYEES OF THE BUREAU OF MINES WERE GIVEN TEMPORARY APPOINTMENTS LIMITED TO DEFINITE PERIODS OF TIME NOT TO EXCEED ONE YEAR UNDER CIVIL SERVICE REGULATION 8, SECTION 4. IT IS NOW PLANNED TO TERMINATE THESE APPOINTMENTS AND REAPPOINT THE SAME EMPLOYEES UNDER CIVIL SERVICE REGULATION 8, SECTION 2, WHICH PROVIDES THAT APPOINTMENTS UNDER THIS REGULATION SHALL BE TEMPORARY IN NATURE BUT SINCE SUCH APPOINTMENTS ARE NOT LIMITED TO DEFINITE PERIODS OF TIME, APPOINTEES SHALL BE SUBJECT TO THE PROVISIONS OF THE LEAVE REGULATIONS WHICH PERTAIN TO PERMANENT EMPLOYEES.

IN VIEW OF THE DECISION AND THE REGULATION CITED ABOVE, MAY THE LEAVE CREDITS DUE THESE EMPLOYEES WHEN THEIR TEMPORARY APPOINTMENT IS TERMINATED BE TRANSFERRED WHEN THEY ARE REAPPOINTED WITHIN THE SAME AGENCY TO ANOTHER TEMPORARY POSITION WHICH IS SUBJECT TO THE PROVISIONS OF THE LEAVE REGULATIONS FOR PERMANENT EMPLOYEES?

AS STATED IN YOUR LETTER, SUPRA, IT WAS HELD IN THE DECISION OF OCTOBER 24, 1946, B-60657, 26 COMP. GEN. 259, THAT AN EMPLOYEE WHO TRANSFERS FROM A PERMANENT POSITION TO A TEMPORARY POSITION--- BOTH POSITIONS BEING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, 5 U.S.C. 30B--- IS ENTITLED TO A LUMP-SUM PAYMENT UNDER THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, FOR THE UNUSED ANNUAL LEAVE TO HIS CREDIT AT THE DATE OF TRANSFER. HOWEVER, WHILE THAT DECISION CONSIDERED THE CIRCUMSTANCE OF A TRANSFER FROM A PERMANENT POSITION TO A TEMPORARY POSITION, IN VIEW OF THE SPECIFIC REQUIREMENT IN SECTION 3 OF THE SAID 1944 STATUTE, 58 STAT. 846, THAT A LUMP SUM BE PAID IN CASES INVOLVING TRANSFER "UNDER DIFFERENT LEAVE SYSTEMS," IT IS CLEAR THAT THE CONCLUSION REACHED THEREIN EQUALLY IS APPLICABLE TO TRANSFERS FROM TEMPORARY POSITIONS TO PERMANENT POSITIONS.

THE WORDS,"PERMANENT," AND,"TEMPORARY," AS USED IN THE SAID DECISION OF OCTOBER 24, 1946, NECESSARILY HAVE REFERENCE TO THOSE TERMS AS USED IN THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND AS DEFINED BY THE CURRENT LEAVE REGULATIONS ISSUED THEREUNDER BY THE CIVIL SERVICE COMMISSION. THAT IS TO SAY, SUCH WORDS REFER TO THE CLASSIFICATION OF EMPLOYEES EITHER AS "PERMANENT" OR "TEMPORARY" FOR LEAVE PURPOSES. SECTION 2 OF REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS NOW IN EFFECT PROVIDES FOR TEMPORARY APPOINTMENTS "PENDING THE ESTABLISHMENT OF A REGISTER," WITHOUT FURTHER TIME LIMITATION THEREON, WHEREAS SECTION 4 OF THAT REGULATION AUTHORIZES "JOB EMPLOYMENT" OF A TEMPORARY CHARACTER UNDER APPOINTMENTS LIMITED TO NOT TO EXCEED SIX MONTHS. THE CURRENT LEAVE REGULATIONS DEFINE PERMANENT EMPLOYEES AS THOSE WHO ARE "APPOINTED WITHOUT LIMITATION AS TO THE LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR" AND THEY DEFINE TEMPORARY EMPLOYEES AS THOSE "APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR.' SEE SECTIONS 1.1 (B) AND UNDER SECTION 2 OF REGULATION VIII ARE "PERMANENT" EMPLOYEES FOR LEAVE PURPOSES WHILE THOSE APPOINTED UNDER SECTION 4 THEREOF ARE "TEMPORARY" EMPLOYEES FOR LEAVE PURPOSES WHILE THOSE APPOINTED UNDER SECTION 4 THEREOF OF AN EMPLOYEE BETWEEN POSITIONS COVERED BY THOSE SECTIONS, A LUMP-SUM PAYMENT FOR THE UNUSED ANNUAL LEAVE AT THE DATE OF TRANSFER IS REQUIRED. ACCORDINGLY, THE QUESTION PRESENTED IN CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.