B-67367, JUNE 26, 1947, 26 COMP. GEN. 954

B-67367: Jun 26, 1947

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WILL BE PAID LUMP-SUM ANNUAL LEAVE PAYMENTS PURSUANT TO THE ACT OF DECEMBER 21. WILL NOT BE ENTITLED TO COMPENSATION FOR ANNUAL LEAVE WHICH WOULD HAVE ACCRUED OVER THE LUMP-SUM LEAVE PERIOD HAD THEY BEEN PLACED IN A LEAVE-WITH-PAY STATUS. IN VIEW OF SECTION 30.402 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDING FOR ACCRUAL OF LEAVE "WHILE IN A LEAVE-WITH-PAY STATUS" IF THE FAILURE TO RETURN TO DUTY IS DUE TO REDUCTION IN FORCE. 1947: I HAVE YOUR LETTER OF JUNE 24. IN PERTINENT PART AS FOLLOWS: THE PURPOSE OF THIS COMMUNICATION IS TO REQUEST A FAVORABLE DECISION ON THE PART OF YOUR OFFICE WITH RESPECT TO A MATTER WHICH FROM THE VIEWPOINT OF EQUITY IS OF PARAMOUNT IMPORTANCE TO CERTAIN EMPLOYEES OF THIS AGENCY.

B-67367, JUNE 26, 1947, 26 COMP. GEN. 954

LEAVES OF ABSENCE - ANNUAL - ACCRUAL DURING LEAVE PERIOD COVERED BY LUMP SUM PAID UPON SEPARATION DUE TO REDUCTION IN FORCE EMPLOYEES WHO, UPON SEPARATION FROM THE SERVICE ON JUNE 28, 1947, DUE TO REDUCTION IN FORCE, WILL BE PAID LUMP-SUM ANNUAL LEAVE PAYMENTS PURSUANT TO THE ACT OF DECEMBER 21, 1944, INSTEAD OF BEING FURLOUGHED IN ACCORDANCE WITH THE REDUCTION-IN-FORCE REGULATIONS, WILL NOT BE ENTITLED TO COMPENSATION FOR ANNUAL LEAVE WHICH WOULD HAVE ACCRUED OVER THE LUMP-SUM LEAVE PERIOD HAD THEY BEEN PLACED IN A LEAVE-WITH-PAY STATUS, IN VIEW OF SECTION 30.402 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDING FOR ACCRUAL OF LEAVE "WHILE IN A LEAVE-WITH-PAY STATUS" IF THE FAILURE TO RETURN TO DUTY IS DUE TO REDUCTION IN FORCE.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, JUNE 26, 1947:

I HAVE YOUR LETTER OF JUNE 24, 1947, IN PERTINENT PART AS FOLLOWS:

THE PURPOSE OF THIS COMMUNICATION IS TO REQUEST A FAVORABLE DECISION ON THE PART OF YOUR OFFICE WITH RESPECT TO A MATTER WHICH FROM THE VIEWPOINT OF EQUITY IS OF PARAMOUNT IMPORTANCE TO CERTAIN EMPLOYEES OF THIS AGENCY.

DRASTIC REDUCTIONS IN PERSONNEL ARE CURRENTLY TAKING PLACE IN ORDER TO COMPLY WITH THE PROVISIONS OF APPLICABLE APPROPRIATION ACTS WHICH HAVE BEEN OR WILL BE ENACTED TO PROVIDE FUNDS FOR THE FISCAL YEAR 1948. CARRYING OUT THESE REDUCTIONS, CERTAIN QUESTIONS HAVE BEEN RAISED REGARDING THE RIGHTS OF A CERTAIN GROUP OF EMPLOYEES, THE CIRCUMSTANCES OF WHICH ARE HEREINAFTER SET FORTH.

UNITED STATES CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 581 ( REVISED) DATED APRIL 29, 1947 DEALS WITH THE SUBJECT:

"PROGRAM FOR RETURN TO DUTY OR PLACEMENT IN OTHER AGENCIES OF CAREER EMPLOYEES WHO HAVE COMPETITIVE STATUS AND HAVE BEEN REACHED IN REDUCTION IN FORCE.'

SECTION II OF DEPARTMENTAL CIRCULAR NO. 581 PROVIDES IN PART AS FOLLOWS:

"A. ANY CAREER EMPLOYEE HAVING COMPETITIVE STATUS AND SERVING IN A POSITION SUBJECT TO THE CIVIL SERVICE ACT WHO IS IN RETENTION SUBGROUPS A- 1 OR A-2 AND IS REACHED FOR ACTION IN A REDUCTION IN FORCE SHALL BE GIVEN A ONE YEAR'S NOTICE BEFORE SEPARATION IN LIEU OF THE PRESENT MINIMUM OF 30 DAYS' NOTICE. THIS PERIOD WILL BE COMPOSED OF:

"/A) WHENEVER POSSIBLE, AT LEAST 30 DAYS IN DUTY AND PAY STATUS;

"/B) A NON-DUTY PERIOD WITH PAY FOR THE DURATION OF ANY ACCUMULATED ANNUAL LEAVE; AND

"/C) THE BALANCE OF THE YEAR IN A FURLOUGH STATUS.

"EXCEPTIONS TO THIS POLICY WILL BE AUTHORIZED WHEN THE EMPLOYEE REQUESTS SEPARATION IN LIEU OF FURLOUGH, OR WHEN THE AGENCY AS A WHOLE IS LIQUIDATING. IN THE LATTER CASE THE NOTICE PERIOD WILL TERMINATE AS OF THE DAY THE AGENCY IS TERMINATED.

"EXCEPTIONS MAY ALSO BE MADE AFTER PRIOR APPROVAL BY THE COMMISSION, IN THE CASE OF AGENCIES WHICH AGREE TO GRANT REEMPLOYMENT BENEFITS TO EMPLOYEES SEPARATED WITH SHORTER NOTICE PERIODS EQUAL TO THOSE THEY WOULD HAVE RECEIVED IF RETAINED ON THE ROLLS FOR ONE YEAR. ANY AGENCY DESIRING TO ENTER INTO SUCH AN AGREEMENT SHOULD SEND A LETTER TO THE COMMISSION EXPLAINING THE FISCAL CONDITIONS WHICH MAKE AN EXCEPTION NECESSARY AND AGREEING TO THE CONDITION REGARDING RE-EMPLOYMENT BENEFITS.' ( ITALICS ADDED.)

THE BUREAU OF COMMUNITY FACILITIES, A CONSTITUENT UNIT OF THE FEDERAL WORKS AGENCY, IS CURRENTLY EFFECTING A REDUCTION IN FORCE IN ORDER TO COMPLY WITH APPLICABLE APPROPRIATION ACTS. IN CARRYING OUT THIS PROGRAM MANY CAREER EMPLOYEES IN RETENTION SUBGROUPS A-1 AND A-2 HAVE BEEN REACHED FOR ACTION IN REDUCTION IN FORCE. DUE TO THE FISCAL CONDITION IT IS IMPRACTICABLE FOR THE BUREAU TO PAY ANNUAL LEAVE DUE SUBGROUPS A-1 AND A-2 EMPLOYEES FROM FUNDS AVAILABLE FOR FISCAL YEAR 1948. ACCORDINGLY, THE CIVIL SERVICE COMMISSION WAS REQUESTED TO GRANT AN EXEMPTION WHICH WOULD PERMIT THE BUREAU TO MAKE LUMP-SUM PAYMENTS TO SUCH EMPLOYEES FOR ANY LEAVE WHICH MAY BE DUE THEM ON THE LAST DAY OF ACTIVE DUTY, NAMELY, JUNE 28, 1947. THIS REQUEST FOR AN EXEMPTION WAS GRANTED.

CONSIDERING THE FOREGOING DECISIONS AND BEARING IN MIND THAT THE EMPLOYEES HERE INVOLVED HAVE NO CONTROL OVER THE PRESENT SITUATION AND NO RIGHT OF ELECTION AS TO WHETHER THEY SHALL BE PLACED IN A LEAVE STATUS IN LIEU OF RECEIVING A LUMP-SUM PAYMENT, YOUR DECISION ON THE FOLLOWING SPECIFIC QUESTIONS IS RESPECTFULLY REQUESTED:

(1) MAY EMPLOYEES WHO ARE PAID A LUMP-SUM PAYMENT UNDER THE PROGRAM APPROVED BY THE CIVIL SERVICE COMMISSION BE PAID FOR LEAVE WHICH WOULD HAVE ACCRUED HAD THEY BEEN PLACED IN LEAVE TATUS?

(2) IF YOUR ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, MAY RETIREMENT DEDUCTIONS BE MADE FROM THE LUMP-SUM PAYMENT AND THE EMPLOYEES' RETIREMENT ACCOUNT CREDITED ACCORDINGLY?

GRANTING THAT THE CIVIL SERVICE REGULATIONS HEREIN INVOLVED HAVE THE FORCE AND EFFECT OF LAW, IT WOULD FOLLOW THAT EXCEPTIONS ISSUED PURSUANT THERETO, SOLELY FOR THE SAKE OF EXPEDIENCY, WOULD NOT NEGATE THE VESTED RIGHT OF AN EMPLOYEE TO BENEFITS TO WHICH HE OTHERWISE WOULD BE ENTITLED.

THE THREE DECISIONS REFERRED TO--- 26 COMP. GEN. 331, 347, AND 504-- RELATE TO QUESTIONS OF LEAVE WHEN EMPLOYEES ARE GRANTED FURLOUGHS PRIOR TO SEPARATION ON REDUCTION IN FORCE AND HAVE NO MATERIAL BEARING IN CASES WHERE THE EMPLOYEE IS SEPARATED WITHOUT BEING FURLOUGHED.

IT IS PRESUMED THAT THE EXEMPTION STATED TO HAVE BEEN GRANTED YOUR AGENCY BY THE CIVIL SERVICE COMMISSION PERMITTED THE SEPARATION OF THE INVOLVED EMPLOYEES AS OF JUNE 28, 1947, IN LIEU OF PLACING THEM ON FURLOUGH FOR 30 DAYS OR ONE YEAR AS WOULD HAVE BEEN THE CASE OTHERWISE.

SECTION 1 OF THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 10, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. 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 * * * PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

SECTION 30.402 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE MAY 1, 1947, 12 FEDERAL REGISTER 2903, PROVIDES:

LEAVE-WITH-PAY STATUS. (A) LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS, PROVIDED HE RETURNS TO DUTY, OR PROVIDED THAT FAILURE TO RETURN TO DUTY IS DUE TO DEATH, DISABILITY (EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE), RETIREMENT FOR DISABILITY, OR REDUCTION IN FORCE.

AS EMPLOYEES WHO WILL BE SEPARATED FROM THE SERVICE JUNE 28, 1947, AND WHO WILL BE PAID A LUMP SUM FOR THE LEAVE TO THEIR CREDIT AT THAT TIME, WILL NOT BE CARRIED ON THE ROLLS AS EMPLOYEES DURING THE PERIOD OVER WHICH PAYMENT FOR SUCH LEAVE IS COMPUTED, THEY WOULD NOT BE IN A LEAVE-WITH-PAY STATUS AND NO LEAVE ON LEAVE WOULD ACCRUE AFTER THE DATE OF THEIR SEPARATION.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE THUS RENDERING UNNECESSARY AN ANSWER TO YOUR SECOND QUESTION. AS TO THAT QUESTION, HOWEVER, IT MAY BE POINTED OUT THAT THE PROVISO IN SECTION 1 OF THE STATUTE, SUPRA, PRECLUDES ANY DEDUCTION FROM THE LUMP-SUM LEAVE PAYMENT TO COVER RETIREMENT DEDUCTIONS.