B-66809, JULY 11, 1947, 27 COMP. GEN. 9

B-66809: Jul 11, 1947

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1947: REFERENCE IS MADE TO YOUR LETTER OF MAY 29. WAS ABOLISHED AND THERE WAS AUTHORIZED AND ESTABLISHED IN THE VETERANS' ADMINISTRATION A DEPARTMENT OF MEDICINE AND SURGERY. DENTISTS AND NURSES IN THE MEDICAL SERVICE WERE TO BE CONTINUED IN THEIR PRESENT POSITIONS UNTIL THEIR QUALIFICATIONS FOR APPOINTMENT IN THE NEW DEPARTMENT WERE DETERMINED BY THE ADMINISTRATOR. DENTISTS AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY MAY BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR WITHOUT REGARD TO CIVIL SERVICE REQUIREMENTS AND ARE FOR A PROBATIONARY PERIOD OF THREE YEARS. AT THE END OF THE PROBATIONARY PERIOD THE APPOINTEE IS FOUND BY A BOARD.

B-66809, JULY 11, 1947, 27 COMP. GEN. 9

LEAVES OF ABSENCE - SICK - TRANSFERS BETWEEN POSITIONS COVERED BY DIFFERENT SYSTEMS - DOCTORS, TC., OF VETERANS' ADMINISTRATION THE AUTHORITY VESTED IN THE ADMINISTRATOR OF VETERANS' AFFAIRS BY SECTION 7 (B) OF THE ACT OF JANUARY 3, 1946, TO PRESCRIBE BY REGULATION LEAVES OF ABSENCE OF DOCTORS, DENTISTS, AND NURSES OF THE DEPARTMENT OF MEDICINE AND SURGERY, MAY NOT BE REGARDED AS AUTHORIZING THE PROMULGATION OF A REGULATION TO PROVIDE FOR THE TRANSFER OF PREVIOUSLY LOST SICK LEAVE CREDITS OF SUCH PERSONNEL, WHICH HAD BEEN ACCUMULATED IN THEIR FORMER POSITIONS UNDER DIFFERENT LEAVE SYSTEMS PRIOR TO THEIR APPOINTMENT TO THE DEPARTMENT OF MEDICINE AND SURGERY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 11, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1947, AS FOLLOWS:

UNDER PUBLIC LAW 293, 79TH CONGRESS, APPROVED JANUARY 3, 1946, THE MEDICAL SERVICE IN THE VETERANS' ADMINISTRATION, AS THEN CONSTITUTED, WAS ABOLISHED AND THERE WAS AUTHORIZED AND ESTABLISHED IN THE VETERANS' ADMINISTRATION A DEPARTMENT OF MEDICINE AND SURGERY. THE ACT PROVIDED THAT DOCTORS, DENTISTS AND NURSES IN THE MEDICAL SERVICE WERE TO BE CONTINUED IN THEIR PRESENT POSITIONS UNTIL THEIR QUALIFICATIONS FOR APPOINTMENT IN THE NEW DEPARTMENT WERE DETERMINED BY THE ADMINISTRATOR. APPOINTMENTS OF DOCTORS, DENTISTS AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY MAY BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR WITHOUT REGARD TO CIVIL SERVICE REQUIREMENTS AND ARE FOR A PROBATIONARY PERIOD OF THREE YEARS, AND IF, AT THE END OF THE PROBATIONARY PERIOD THE APPOINTEE IS FOUND BY A BOARD, APPOINTED IN ACCORDANCE WITH REGULATIONS OF THE ADMINISTRATOR, NOT FULLY QUALIFIED AND SATISFACTORY, HE MAY BE SEPARATED FROM THE SERVICE. THE GRADES AND FULL-PAY RANGES FOR POSITIONS OF DOCTORS, DENTISTS AND NURSES SO APPOINTED ARE PRESCRIBED BY SAID ACT. DOCTORS, DENTISTS AND NURSES MAY ALSO BE EMPLOYED BY THE ADMINISTRATOR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, ON A TEMPORARY FULL-TIME, PART-TIME OR FEE BASIS UNDER SECTION 14 (A) OF SAID ACT, BUT NO TEMPORARY FULL-TIME APPOINTMENT MAY BE FOR A PERIOD OF MORE THAN 90 DAYS.

UNDER SECTION 7 (B) OF THE ACT (59 STAT. 677) AFOREMENTIONED, IT IS PROVIDED THAT ,NOTWITHSTANDING ANY LAW, EXECUTIVE ORDER, OR REGULATION, THE ADMINISTRATOR SHALL PRESCRIBE BY REGULATION THE HOURS AND CONDITIONS OF EMPLOYMENT AND LEAVES OF ABSENCE OF DOCTORS, DENTISTS, AND NURSES.' PURSUANT TO THIS AUTHORITY, THE ADMINISTRATOR PROMULGATED REGULATIONS GOVERNING LEAVES OF ABSENCE OF DOCTORS, DENTISTS AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY ( SECTION I, PARAGRAPH 7, CIRCULAR 76, MARCH 30, 1946). THESE REGULATIONS ARE SIMILAR BUT NOT IDENTICAL WITH THE ANNUAL AND SICK LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT TO AUTHORITY VESTED IN HIM UNDER SECTIONS 7 OF THE ACTS OF MARCH 14, 1936 (49 STAT. 1161, 1162), AND DELEGATED BY THE PRESIDENT, FOR THE PERIOD OF THE WAR, TO THE UNITED STATES CIVIL SERVICE COMMISSION. ( SECTION 7.1, EXECUTIVE ORDER NO. 9414, JANUARY 13, 1944).

THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, AS AMENDED, IN EFFECT AT THE TIME OF ENACTMENT OF PUBLIC LAW 293, 79TH CONGRESS, JANUARY 3, 1946, PUBLISHED IN FEDERAL PERSONNEL MANUAL, CHAPTER Z1, PAGE 454, PROVIDED IN SECTION 4.8 THAT WHEN A PERMANENT EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION AS A PERMANENT EMPLOYEE WITH NO BREAK IN SERVICE OR A BREAK OF LESS THAN 90 DAYS, AND THE POSITION TO WHICH HE IS APPOINTED, REAPPOINTED, OR TRANSFERRED IS NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE EMPLOYEE SHALL BE FURNISHED WITH A STATEMENT OF HIS SICK LEAVE ACCOUNT AND IF HE IS SUBSEQUENTLY APPOINTED, REAPPOINTED OR TRANSFERRED TO A POSITION WITHIN THE PURVIEW OF SUCH ACTS WITH NO BREAK IN SERVICE OR A BREAK OF LESS THAN 90 DAYS, THE LEAVE SHOWN TO BE DUE SHALL BE CREDITED TO HIS ACCOUNT. THIS REGULATORY PROVISION WAS AMENDED MARCH 20, 1947 AND AS AMENDED IS PUBLISHED IN THE FEDERAL PERSONNEL MANUAL, CHAPTER Z1, ON PAGE 289.

DOCTORS, DENTISTS AND NURSES WHO PREVIOUSLY HAD OCCUPIED POSITIONS IN THE FORMER MEDICAL AND HOSPITAL SERVICE OF THE VETERANS' ADMINISTRATION WITHIN THE SCOPE OF THE FOREGOING REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, UPON ACCEPTING APPOINTMENTS TO POSITIONS IN THE DEPARTMENT OF MEDICINE AND SURGERY ESTABLISHED BY PUBLIC LAW 293, 79TH CONGRESS LOST, IN EFFECT, UNLESS AND UNTIL SUBSEQUENTLY APPOINTED, REAPPOINTED OR TRANSFERRED TO A POSITION WITHIN THE PURVIEW OF THE ACTS OF MARCH 14, 1936 SUBSTANTIAL SICK LEAVE CREDITS WITH RESULTING SEVERE HARDSHIPS IN A NUMBER OF INSTANCES IN WHICH SUCH EMPLOYEES SUFFERED EXTENDED PERIODS OF ILLNESSES. WHILE THERE IS A LIBERAL PROVISION IN VETERANS' ADMINISTRATION CIRCULAR 76, SECTION I, PARAGRAPH 7D (8) FOR ADVANCEMENT OF SICK LEAVE TO PERMANENT AND PROBATIONAL DOCTORS, DENTISTS AND NURSES, IN REALITY THIS IS AN OBLIGATION AGAINST FUTURE EARNED SICK LEAVE AND DOES NOT COMPENSATE THEM FOR PREVIOUSLY EARNED SICK LEAVE LOST AT THE TIME OF TRANSFER.

THE PURPOSE OF THE LEAVE ACTS OF MARCH 14, 1936, SUPRA, WAS TO PROVIDE VACATIONS FOR AND STANDARDIZE THE SICK LEAVE OF ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA OTHER THAN CERTAIN SPECIFIC GROUPS THEREIN MENTIONED, AND IN SECTIONS 7 OF SAID ACTS AUTHORITY WAS VESTED IN THE PRESIDENT TO ADMINISTER SUCH ACTS UNDER SUCH REGULATIONS AS HE MIGHT PRESCRIBE SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF SAID ACTS. SINCE THEN, A NUMBER OF SEPARATE AND DISTINCT LEAVE SYSTEMS HAVE BEEN PROVIDED BY STATUTE AND REGULATION CONTROLLING THE ACCUMULATION, CREDITING AND CHARGING OF LEAVES OF ABSENCE, WITH PAY, APPLICABLE TO VARIOUS GROUPS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT, THE TERMS AND CONDITIONS OF WHICH ARE WIDELY DIFFERENT. AUTHORITY TO PROMULGATE REGULATIONS UNDER THE DIFFERENT LEAVE SYSTEMS IS VESTED IN DIFFERENT OFFICERS OF THE GOVERNMENT.

THERE IS NO SPECIFIC PROVISION IN PUBLIC LAW 293, 79TH CONGRESS, EITHER AUTHORIZING OR PROHIBITING THE TRANSFER OF LEAVE CREDITS OF DOCTORS, DENTISTS AND NURSES UPON APPOINTMENT TO POSITIONS IN THE DEPARTMENT OF MEDICINE AND SURGERY TO POSITIONS IN OTHER GOVERNMENT AGENCIES. IT IS BELIEVED THAT THE BROAD DISCRETIONARY AUTHORITY VESTED IN THE ADMINISTRATOR IN SECTION 7 (B) OF PUBLIC LAW 293, 79TH CONGRESS, SUPRA, MIGHT BE CONSTRUED AS SUFFICIENT TO PERMIT THE ADMINISTRATOR, BY REGULATION, TO SET UP LEAVE CREDITS FOR DOCTORS, DENTISTS AND NURSES WHILE THEY ARE EMPLOYED IN THE DEPARTMENT OF MEDICINE AND SURGERY IN AMOUNTS EQUIVALENT TO SICK LEAVE CREDITS IN THEIR FAVOR AT THE TIME OF THEIR APPOINTMENTS. AS A MATTER OF EQUITY, SUCH ACTION CLEARLY APPEARS TO BE JUSTIFIED, AND IN CONSONANCE WITH THE LEGISLATIVE INTENT, AS MANIFESTED BY THE ENACTMENT OF PUBLIC LAW 525, 78TH CONGRESS, DECEMBER 21, 1944, ALLOWING LUMP SUM PAYMENT FOR LEAVE OF OFFICERS AND EMPLOYEES OF THE GOVERNMENT UPON THEIR SEPARATION FROM SERVICE OR TRANSFER FROM ONE AGENCY OF THE FEDERAL GOVERNMENT TO ANOTHER, WHICH IS EVIDENCE OF AN INTENT TO PROTECT THE ANNUAL OR VACATION LEAVE RIGHTS OF SUCH OFFICERS AND EMPLOYEES.

I WOULD APPRECIATE AN EXPRESSION OF YOUR VIEWS AS TO THE EXTENT OF THE DISCRETIONARY AUTHORITY VESTED IN ME UNDER SECTION 7 (B), PUBLIC LAW 293, 79TH CONGRESS, IN RELATION TO PROVIDING SICK LEAVE CREDITS FOR DOCTORS, DENTISTS AND NURSES APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY EQUIVALENT TO SICK LEAVE ACCUMULATED TO THEIR CREDIT IN THEIR FORMER POSITIONS IN THE MEDICAL AND HOSPITAL SERVICE OF THE VETERANS' ADMINISTRATION OR OTHER FEDERAL AGENCY.

THE SITUATION HERE PRESENTED IS ANALOGOUS TO THAT CONSIDERED IN 24 COMP. GEN. 304, WHEREIN IT WAS HELD THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICES OR EMPLOYMENTS UNDER DIFFERENT LEAVE SYSTEMS MAY NOT BE AUTHORIZED BY REGULATION. IN SAID DECISION IT WAS STATED AT PAGES 306 AND 307:

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, I FIND NO AUTHORITY VESTED IN YOU PURSUANT TO THE PRESIDENT'S DELEGATION BY SECTION IV-11 OF EXECUTIVE ORDER NO. 8189, DATED JULY 5, 1939, UNDER THE STATUTORY AUTHORITY VESTED IN HIM BY 22 U.S.C. 17A, TO PROMULGATE LEAVE REGULATIONS WHICH WOULD AFFECT THE ACCUMULATION, CREDITING, OR CHANGING OF LEAVE OF ABSENCE WITH PAY BASED UPON SERVICE OF PERSONNEL OTHER THAN AS OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, EXCLUSIVE OF SERVICE IN ANOTHER CAPACITY EITHER PRIOR OR SUBSEQUENT TO SERVICE AS AN OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE.

IT IS UNDERSTOOD YOUR QUESTION IS DIRECTED MORE PARTICULARLY TO THE TWO LEAVE SYSTEMS PROVIDED FOR OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE AND FOR DEPARTMENTAL OFFICERS AND EMPLOYEES, THE FIRST TWO LEAVE SYSTEMS ABOVE MENTIONED. WHILE YOU HAVE AUTHORITY TO PROMULGATE REGULATIONS CONTROLLING THE ACCUMULATION, CREDITING, AND CHARGING OF LEAVE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE WITHIN THE LIMITATIONS FIXED BY LAW, I FIND NO AUTHORITY VESTED IN YOU TO PROMULGATE REGULATIONS AFFECTING THE ACCUMULATION, CREDITING, OR CHARGING OF LEAVE OF ABSENCE OF DEPARTMENTAL OFFICERS AND EMPLOYEES, WHICH AUTHORITY IS VESTED BY LAW IN THE PRESIDENT AND, DURING THE PERIOD OF THE WAR, DELEGATED TO THE UNITED STATES CIVIL SERVICE COMMISSION. SEE SECTION 7.1 OF THE EXECUTIVE ORDER 9414 DATED JANUARY 13, 1944.

THE LEAVE DIFFERENTIAL FOR FOREIGN SERVICE SAVED BY SECTION 5 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, SUPRA, TO WHICH YOU REFER, RELATES ONLY TO FOREIGN SERVICE COMING WITHIN THE PURVIEW OF THOSE STATUTES EXCLUSIVE OF SERVICE UNDER OTHER LEAVE LAWS SUCH AS THAT APPLICABLE TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE.

BECAUSE OF THE ABOVE CONSIDERATION, THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS NEVER HAS BEEN AUTHORIZED AND, UNDER EXISTING LAWS, MAY NOT BE AUTHORIZED BY REGULATION. AS THERE NOW EXISTS NO COMMON BASIS OR AUTHORITY OF LAW UPON WHICH SUCH A REGULATION COULD BE ISSUED, THERE WOULD BE REQUIRED A STATUTE FIXING THE TERMS AND CONDITIONS UPON WHICH THE LEAVE COULD BE TRANSFERRED BETWEEN SERVICE UNDER DIFFERENT LEAVE SYSTEMS, IN ORDER TO AUTHORIZE SUCH TRANSFERS. THIS APPEARS TO HAVE BEEN RECOGNIZED BY THE PRESIDENT IN SECTION 4.9 (B) OF THE EXISTING LEAVE REGULATIONS APPLICABLE TO OFFICERS AND EMPLOYEES OF THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT CONTAINED IN EXECUTIVE ORDER NO. 9414, SUPRA, WHICH PROVIDES AS FOLLOWS:

"/B) IF THE POSITION TO WHICH HE IS APPOINTED OR TRANSFERRED IS NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE EMPLOYEE SHALL BE FURNISHED WITH A STATEMENT OF HIS LEAVE ACCOUNT, AND IF HE IS SUBSEQUENTLY APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION WITHIN THE PURVIEW OF SUCH ACTS, THE LEAVE SHOWN TO BE DUE WILL BE CREDITED TO HIS ACCOUNT.' SEE, ALSO, 24 COMP. GEN. 651.

THE RULE STATED IN THE ABOVE DECISION PROPERLY WAS RECOGNIZED BY YOUR DEPARTMENT IN PROMULGATING THE PRESENT LEAVE REGULATIONS FOR PERSONNEL OF THE DEPARTMENT OF MEDICINE AND SURGERY BY EXPRESSLY PROVIDING UNDER SECTION I, PARAGRAPH 7H (2) AND (3) OF CIRCULAR 76 DATED MARCH 30, 1946, AS OLLOWS:

(2) DOCTORS OF MEDICINE, DENTISTS AND NURSES MAY NOT TRANSFER LEAVE CREDITS EARNED IN A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF MARCH 14, 1936, AS AMENDED BY ACT OF MARCH 2, 1940, ACT OF DECEMBER 17, 1943 AND ACT OF JUNE 1, 1945, UPON TRANSFER TO A POSITION SUBJECT TO THOSE INSTRUCTIONS. THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS IS NOT AUTHORIZED BY LAW. LEAVE CREDITS EARNED IN THE MEDICAL SERVICE CANNOT BE TRANSFERRED TO THE DEPARTMENT OF MEDICINE AND SURGERY.

(3) ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT TO THE EMPLOYEE IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. THIS SECTION APPLIES EVEN THOUGH THE TRANSFER IS TO A POSITION IN THE SAME AGENCY, SUCH AS CONVERSION FROM A CIVIL SERVICE POSITION IN THE MEDICAL SERVICE, TO AN EXCEPTED POSITION IN THE DEPARTMENT OF MEDICINE AND SURGERY.

I DO NOT FIND THAT YOUR AUTHORITY TO "PRESCRIBE BY REGULATION LEAVES OF ABSENCE OF DOCTORS, DENTISTS, AND NURSES" IS ANY BROADER THAN THAT VESTED IN THE SECRETARY OF STATE WITH RESPECT TO FOREIGN SERVICE OFFICERS, WHICH AUTHORITY WAS CONSIDERED IN THE ABOVE-QUOTED DECISION. ACCORDINGLY, FOLLOWING THE RATIONALE OF THAT DECISION I HAVE TO ADVISE THAT THE ISSUANCE OF A REGULATION ALONG THE LINES PROPOSED IN YOUR LETTER WOULD NOT BE AUTHORIZED.