B-67117, JULY 30, 1947, 27 COMP. GEN. 41

B-67117, JULY 30, 1947, 27 COMP. GEN. 41

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - TRANSFERS BETWEEN TEMPORARY AND PERMANENT POSITIONS; MANDATORY PAYMENT REQUIREMENT AN EMPLOYEE WHOSE APPOINTMENT IS CHANGED FROM PERMANENT TO TEMPORARY, OR VICE VERSA--- NOTWITHSTANDING THAT THE APPOINTMENT IS MADE TO THE SAME POSITION--- IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO A LUMP-SUM PAYMENT, AS FOR TRANSFER BETWEEN DIFFERENT LEAVE SYSTEMS (26 COMP. GEN. 259), FOR THE ACCRUED AND UNUSED ANNUAL LEAVE TO HIS CREDIT AT THE TIME THE TENURE OF HIS APPOINTMENT IS CHANGED. THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR LEAVE UPON TRANSFER BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS ARE MANDATORY, SO THAT WHERE AN EMPLOYEE TRANSFERS FROM A PERMANENT TO A TEMPORARY POSITION, CONSIDERED AS A TRANSFER BETWEEN DIFFERENT LEAVE SYSTEMS (26 COMP. GEN. 259), A LUMP-SUM PAYMENT FOR LEAVE MUST BE MADE, AND THE SAME IS TRUE IN THE CASE OF TRANSFER FROM A TEMPORARY TO A PERMANENT POSITION.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, JULY 30, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 13, 1947, AS FOLLOWS:

REFERENCE IS MADE TO THAT PART OF YOUR DECISION CONTAINED IN VOLUME 26, PAGE 259 WHICH RELATES TO THE LUMP-SUM PAYMENT OF LEAVE IN THOSE CASES WHERE AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A PERMANENT POSITION TO A TEMPORARY POSITION AND TO YOUR DECISION OF FEBRUARY 18, 1947, B-63265 (26 COMP. GEN. 604).

IN THE ADMINISTRATION OF THESE DECISIONS, CERTAIN QUESTIONS HAVE ARISEN WHICH I SHOULD LIKE TO PRESENT TO YOU FOR YOUR CONSIDERATION AND DECISION:

QUESTION 1--- SINCE THE LANGUAGE OF THIS DECISION IN 26 COMPTROLLER GENERAL 259 RELATES ONLY TO THE DISTINCTION BETWEEN PERMANENT AND TEMPORARY POSITIONS, IS IT INTENDED THAT THE ACTION REQUIRED SHOULD APPLY IN THE SAME MANNER TO TEMPORARY AND PERMANENT APPOINTMENTS? FOR EXAMPLE, SHOULD A TRANSFER FROM A PERMANENT APPOINTMENT TO A TEMPORARY APPOINTMENT (OR VICE-VERSA) IN THE SAME POSITION BE TREATED AS COMING WITHIN THE MEANING AND INTENT OF THIS DECISION?

QUESTION 2--- IT IS STATED THAT IN THOSE CASES WHERE AN EMPLOYEE IS TRANSFERRED FROM A PERMANENT POSITION TO A TEMPORARY POSITION, HE IS "ENTITLED TO A LUMP-SUM PAYMENT COMPUTED AS OF THE LAST DAY OF SERVICE IN THE PERMANENT POSITION.' IS IT INTENDED THAT THE TERM ENTITLED AS HERE USED SHOULD RULE OUT ANY DISCRETION ON THE PART OF THE EMPLOYEE CONCERNED? IF, FOR EXAMPLE, AN EMPLOYEE SHOULD FORMALLY REQUEST THAT HE BE NOT PAID A LUMP-SUM PAYMENT, IS IT MANDATORY UPON THE AGENCY TO MAKE THE PAYMENT? IF THE ANSWER IS IN THE AFFIRMATIVE, DOES THE EMPLOYEE HAVE ANY DISCRETION IN THE CASE OF A TRANSFER FROM A TEMPORARY TO A PERMANENT POSITION?

YOUR DECISION ON THE QUESTIONS PRESENTED ABOVE WILL BE GREATLY APPRECIATED.

IN THE DECISION OF OCTOBER 24, 1946, B-60657, 26 COMP. GEN. 259, REFERRED TO IN YOUR LETTER, IT WAS HELD (QUOTING FROM THE SYLLABUS), AS FOLLOWS:

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.

IT IS SETTLED THAT THE PERMANENT OR TEMPORARY CHARACTER OF A POSITION FOR LEAVE PURPOSES UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, IS DETERMINED BY THE TERMS OF THE APPOINTMENT OF THE OCCUPANT OF SUCH POSITION. SEE 22 COMP. GEN. 429, AND DECISIONS CITED THEREIN. HENCE, WHILE A POSITION MAY BE "PERMANENT" FOR BUDGETARY PURPOSES YET, IF THE TERMS OF THE APPOINTMENT OF THE OCCUPANT OF SUCH POSITION ARE SUCH AS TO BRING HIM WITHIN THE DEFINITION OF ,TEMPORARY EMPLOYEES" AS CONTAINED IN THE LEAVE REGULATIONS, THE POSITION IS A TEMPORARY ONE FOR LEAVE PURPOSES. CONVERSELY, EVEN THOUGH A POSITION ADMINISTRATIVELY BE CONSIDERED AS "TEMPORARY" IF THE TERMS OF THE APPOINTMENT OF THE PROPOSED INCUMBENT THEREOF BE SUCH AS TO BRING HIM WITHIN THE DEFINITION OF "PERMANENT EMPLOYEES" AS DEFINED IN THE LEAVE REGULATIONS, THE POSITION IS A ,PERMANENT" POSITION FOR LEAVE PURPOSES. CONSEQUENTLY, UPON A CHANGE IN THE APPOINTMENT OF AN EMPLOYEE FROM THAT OF PERMANENT TO TEMPORARY, OR VICE-VERSA--- NOTWITHSTANDING THAT SUCH APPOINTMENTS WERE MADE TO THE SAME POSITION--- THE EMPLOYEE, UNDER THE RULE STATED IN THE DECISION OF OCTOBER 24, 1946, SUPRA, WOULD BE ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED AND UNUSED ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF SUCH CHANGE IN THE TENURE OF HIS APPOINTMENT. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION 2, IT MAY BE STATED THAT SINCE, AS HELD IN THE SAID DECISION OF OCTOBER 24, 1946, THE TRANSFER OF AN EMPLOYEE FROM A PERMANENT TO A TEMPORARY POSITION IS A TRANSFER 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 DECEMBER 21, 1944, 58 STAT. 845, 846, THE SPECIFIC REQUIREMENT CONTAINED IN THAT SECTION THAT "ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT * * * IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS," MAKES IT MANDATORY THAT, IN SUCH INSTANCES, A LUMP-SUM PAYMENT BE MADE. FOR THE PURPOSES OF THE LUMP-SUM PAYMENT REQUIREMENT OF SECTION 3 OF THE SAID ACT OF DECEMBER 21, 1944, IT IS IMMATERIAL WHETHER THE TRANSFER IS FROM A PERMANENT POSITION TO A TEMPORARY POSITION OR FROM A TEMPORARY POSITION TO A PERMANENT POSITION. SEE DECISION OF APRIL 15, 1947, B-64710, 26 COMP. GEN. 786. IT IS BELIEVED THE ABOVE ANSWERS THE VARIOUS POINTS RAISED UNDER QUESTION 2.