B-7066, NOVEMBER 24, 1939, 19 COMP. GEN. 520

B-7066: Nov 24, 1939

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1936 - TRANSFERS TO POSITIONS CLASSIFIED AS TEMPORARY UNDER CIVIL SERVICE REGULATIONS THE CLASSIFICATION OF EMPLOYEES AS PERMANENT OR TEMPORARY FOR LEAVE PURPOSES IS SEPARATE AND APART FROM. IS NOT COEXTENSIVE WITH. OR INDEFINITE POSITIONS IN ONE DEPARTMENT WERE TRANSFERRED WITHOUT BREAK IN SERVICE TO ANOTHER AGENCY BY APPOINTMENTS "NOT TO EXCEED 1 YEAR" AUTHORIZED FOR 1 YEAR IN ADVANCE BY THE CIVIL SERVICE COMMISSION UNDER SECTION 4. THE EMPLOYEES ARE "PERMANENT" AND NOT "TEMPORARY" WITHIN THE MEANING OF THE UNIFORM LEAVE REGULATIONS. THE FACT THAT ONE OF THEM ACTUALLY SERVED LESS THAN 6 MONTHS AFTER THE TRANSFER IS IMMATERIAL. THE PERIOD FOR WHICH THE APPOINTMENT IS MADE. 1939: THERE WAS RECEIVED FROM THE ADMINISTRATOR.

B-7066, NOVEMBER 24, 1939, 19 COMP. GEN. 520

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - TRANSFERS TO POSITIONS CLASSIFIED AS TEMPORARY UNDER CIVIL SERVICE REGULATIONS THE CLASSIFICATION OF EMPLOYEES AS PERMANENT OR TEMPORARY FOR LEAVE PURPOSES IS SEPARATE AND APART FROM, AND IS NOT COEXTENSIVE WITH, THAT ESTABLISHED FOR THE PURPOSES OF THE CIVIL SERVICE LAWS AND REGULATIONS. WHERE EMPLOYEES SERVING IN PERMANENT, EMERGENCY, OR INDEFINITE POSITIONS IN ONE DEPARTMENT WERE TRANSFERRED WITHOUT BREAK IN SERVICE TO ANOTHER AGENCY BY APPOINTMENTS "NOT TO EXCEED 1 YEAR" AUTHORIZED FOR 1 YEAR IN ADVANCE BY THE CIVIL SERVICE COMMISSION UNDER SECTION 4, RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS PROVIDING FOR TEMPORARY APPOINTMENTS FOR 3 MONTHS AND FOR EXTENSIONS OF SUCH APPOINTMENTS WITH THE APPROVAL OF THE COMMISSION, THE EMPLOYEES ARE "PERMANENT" AND NOT "TEMPORARY" WITHIN THE MEANING OF THE UNIFORM LEAVE REGULATIONS--- HAVING BEEN APPOINTED ,FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS"--- AND, ACCORDINGLY, CREDIT FOR THEIR ACCUMULATED UNUSED ANNUAL AND SICK LEAVE MAY BE TRANSFERRED TO THE NEW POSITIONS, AND THE FACT THAT ONE OF THEM ACTUALLY SERVED LESS THAN 6 MONTHS AFTER THE TRANSFER IS IMMATERIAL--- THE CRITERION BEING NOT THE ACTUAL PERIOD OF SERVICE BUT RATHER, THE PERIOD FOR WHICH THE APPOINTMENT IS MADE.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, NOVEMBER 24, 1939:

THERE WAS RECEIVED FROM THE ADMINISTRATOR, BONNEVILLE PROJECT, A LETTER DATED OCTOBER 6, 1939, AS FOLLOWS:

IN THE APPLICATION OF THE LEAVE REGULATIONS A QUESTION HAS ARISEN DUE TO CIRCUMSTANCES OCCURRING IN THIS ORGANIZATION.

AT THE TIME THE LAND DIVISION OF THE BONNEVILLE PROJECT WAS CREATED, IT BECAME NECESSARY FOR THE HEAD OF THAT DIVISION TO LOCATE PERSONNEL WHICH WOULD BE CAPABLE OF HANDLING SUPERVISORY POSITIONS IN THE DIVISION. WITH THAT IN MIND, HE CONTACTED THE UNITED STATES DEPARTMENT OF AGRICULTURE ON AUGUST 16, 1938, SEEKING PERMISSION TO TRANSFER FOUR OF ITS EMPLOYEES TO ACT IN THIS CAPACITY.

SHORTLY THEREAFTER, THE EXECUTIVE ASSISTANT TO THE ADMINISTRATOR CONFERRED WITH THE U.S. CIVIL SERVICE COMMISSION AND PRESENTED THE PROBLEM TO THAT AGENCY. THE PLEA FOR PERMISSION TO APPOINT THIS PERSONNEL WITHOUT REGARD TO THEIR CIVIL SERVICE STATUS WAS BASED ON THE IMMEDIATE NEED OF EXPERIENCED PERSONNEL AND THE LACK OF SUCH PERSONNEL ON OPEN CIVIL SERVICE REGISTERS.

AFTER THE APPROVAL OF THE DEPARTMENT OF AGRICULTURE HAD BEEN SECURED, THE U.S. CIVIL SERVICE COMMISSION BY TELEGRAM DATED AUGUST 23, 1938, AUTHORIZED THE "TEMPORARY APPOINTMENT, ONE YEAR" OF A. J. COVELL, EDITH BUCHANAN, AND GENEVIEVE RANDOLPH. BY LETTER DATED SEPTEMBER 7, 1938, THE CIVIL SERVICE COMMISSION'S DISTRICT MANAGER, LOCATED IN SEATTLE, APPROVED THE APPOINTMENT OF MRS. ADELIA FARNSWORTH ON A SIMILAR BASIS, WITH A REFERENCE TO THE PRIOR TELEGRAM OF APPROVAL OF AUGUST 23, 1938.

THE AUTHORIZATIONS FOR THESE APPOINTMENTS FROM THE CIVIL SERVICE COMMISSION WERE BASED ON SECTION 4 OF CIVIL SERVICE RULE VIII, WHICH PROVIDES FOR TEMPORARY APPOINTMENTS "FOR A PERIOD NOT TO EXCEED THREE MONTHS" AND FOR EXTENSIONS FOR FURTHER PERIODS OF THREE MONTHS. THE APPOINTMENTS WERE REPORTED TO THE CIVIL SERVICE COMMISSION ON FORM BP 165, AS FOLLOWS: " NATURE OF PPOINTMENT: TEMPORARY. DURATION: ONE YEAR.' THE CIVIL SERVICE COMMISSION ACKNOWLEDGED RECEIPT OF THESE REPORTS UPON MIMEOGRAPHED FORMS WHICH APPROVED THE APPOINTMENTS, BUT RECITED THAT THEY WERE OF THREE MONTHS' DURATION AND STATED THAT THEY WOULD BE EXTENDED AT THE END OF THREE MONTHS WITHOUT REQUEST FROM THE BONNEVILLE PROJECT. SUBSEQUENT EXTENSION APPROVALS WERE RECEIVED FROM THE CIVIL SERVICE COMMISSION, AND THE APPOINTMENTS, WITH THE EXCEPTION OF THAT OF MISS BUCHANAN, REMAINED IN EFFECT FOR THE PERIOD OF ONE YEAR.

WITH REFERENCE TO MISS BUCHANAN, CERTIFICATION WAS SECURED FOR AN APPOINTMENT IN A CIVIL-SERVICE STATUS AND HER ORIGINAL APPOINTMENT REMAINED IN EFFECT FOR ABOUT SEVEN WEEKS, AT WHICH TIME SHE RECEIVED A DURATION-OF-WORK APPOINTMENT WITH A CIVIL-SERVICE STATUS.

THE PROBLEM PRESENTED IS WHETHER, UNDER THESE CIRCUMSTANCES, THE BONNEVILLE PROJECT CAN PROPERLY ABSORB THE ACCRUED LEAVE OF THESE EMPLOYEES.

IN 17 COMP. GEN. 830-831, THE COMPTROLLER GENERAL HAS RULED THAT EMPLOYEES TRANSFERRED FROM PERMANENT TO TEMPORARY APPOINTMENTS ARE NOT ENTITLED TO CREDIT FOR LEAVE ACCRUED AT THE TIME OF TRANSFER. ON THE OTHER HAND, SECTION 6 OF THE REGULATIONS RELATING TO ANNUAL LEAVE, 3 FED. REG. 612, PROVIDES THAT AN EMPLOYEE TRANSFERRED FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY WITHOUT BREAK IN SERVICE SHALL BE ENTITLED AT THE TIME OF TRANSFER TO A CREDIT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE. SECTION 1 (B) OF THE REGULATIONS RELATING TO ANNUAL LEAVE DEFINES "PERMANENT EMPLOYEES" AS "THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIOD IN EXCESS OF SIX MONTHS" AND ,TEMPORARY EMPLOYEES" AS "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.'

THERE IS NO DOUBT THAT THE EMPLOYEES IN QUESTION WERE TEMPORARY EMPLOYEES WITHIN THE SENSE THAT THAT TERM IS USED IN SECTION 4 OF CIVIL-SERVICE RULE VIII, SINCE THE APPOINTMENTS WERE MADE UNDER THAT SECTION. BUT THE DEFINITIONS OF TEMPORARY AND PERMANENT EMPLOYEES GIVEN IN THE REGULATIONS RELATING TO ANNUAL LEAVE SHOW THAT THE CIVIL SERVICE STATUS OF THE EMPLOYEES IS NOT THE CONTROLLING CONSIDERATION. IF THE EMPLOYEES IN QUESTION WERE, IN FACT, APPOINTED FOR A "DEFINITE PERIOD IN EXCESS OF SIX MONTHS," THEY WOULD BE PERMANENT EMPLOYEES UNDER THE PROVISIONS OF THE REGULATIONS, REGARDLESS OF THEIR CIVIL SERVICE STATUS. THE PROBLEM THUS DEPENDS UPON THE LANGUAGE OF THE PARTICULAR APPOINTMENTS UNDER CONSIDERATION.

AS HAS BEEN POINTED OUT ABOVE, THESE EMPLOYEES' APPOINTMENTS READ "NOT TO EXCEED ONE YEAR.' THE APPOINTMENTS WERE REPORTED TO THE CIVIL SERVICE COMMISSION ON FORM BP-165, AS FOLLOWS: " DURATION: ONE YEAR.' THEREFORE, IT SEEMS CLEAR THAT THE APPOINTING OFFICERS INTENDED THAT THE APPOINTMENTS WOULD BE FOR A "DEFINITE PERIOD IN EXCESS OF SIX MONTHS," NAMELY, FOR ONE YEAR. THE CIVIL SERVICE COMMISSION ITSELF RECOGNIZED THIS WHEN IT ASSURED THE BONNEVILLE CIVIL SERVICE COMMISSION ITSELF RECOGNIZED THIS WHEN IT ASSURED THE BONNEVILLE PROJECT THAT THE APPOINTMENTS WOULD BE EXTENDED AT THE END OF THREE MONTHS WITHOUT ANY REQUEST FROM THE PROJECT OFFICIALS.

THERE REMAINS, HOWEVER, THE PROBLEM OF WHETHER ANY APPOINTMENT MADE UNDER SECTION 4 OF CIVIL-SERVICE RULE VIII CAN HAVE BEEN MADE FOR A PERIOD IN EXCESS OF THREE MONTHS. AS QUOTED ABOVE, THIS SECTION OF THE RULE PERMITS TEMPORARY APPOINTMENTS "FOR A PERIOD NOT TO EXCEED THREE MONTHS.' CONFORMITY WITH THIS RULE, THE CIVIL SERVICE COMMISSION'S APPROVAL OF THE APPOINTMENTS OF THESE EMPLOYEES, THOUGH AGREEING TO AUTOMATIC EXTENSIONS, RECITED THAT THE APPOINTMENTS WERE FOR THREE MONTHS' DURATION.

NOTHING IN THE CIVIL-SERVICE RULES PRECLUDES THE CIVIL SERVICE COMMISSION FROM GIVING ADVANCE APPROVAL TO AUTOMATIC EXTENSIONS, AS IT DID IN THIS CASE. IT THEREFORE SEEMS UNREASONABLE TO INTERPRET THE RULES AS CONTEMPLATING SUCH ADVANCE APPROVALS. UNDER THIS INTERPRETATION, ,TEMPORARY" APPOINTMENTS FOR MORE THAN THREE MONTHS, AND, INDEED,"FOR A DEFINITE PERIOD IN EXCESS OF SIX MONTHS," CAN BE IN TECHNICAL CONFORMITY WITH SECTION 4 OF RULE VIII.

WE WOULD LIKE TO REQUEST AN OPINION FROM YOU AS TO WHETHER OR NOT THESE EMPLOYEES ARE ,PERMANENT" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL LEAVE REGULATIONS AND ENTITLED TO THEIR ACCRUED LEAVE.

THE ANNUAL AND SICK LEAVE REGULATIONS ( EXECUTIVE ORDERS NOS. 7845 AND 7846, DATED MARCH 21, 1938, EFFECTIVE JANUARY 1, 1938) EACH CONTAIN (SEC. 1) DEFINITIONS, AS FOLLOWS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.

SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938, PROVIDES AS FOLLOWS:

SEC. 6. AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS. THERE IS A SIMILAR PROVISION IN SECTION 9 OF THE SICK LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7880, DATED MAY 9, 1938.

SECTION 4 OF RULE VIII OF THE CIVIL-SERVICE LAWS AND REGULATIONS ( EXECUTIVE ORDER NO. 7915, DATED JUNE 24, 1938), PROVIDES AS FOLLOWS:

4. JOB EMPLOYMENT.--- WHEN THERE IS WORK OF A TEMPORARY CHARACTER, AT THE COMPLETION OF WHICH THE SERVICES OF AN ADDITIONAL EMPLOYEE WILL NOT BE REQUIRED, A TEMPORARY APPOINTMENT MAY BE MADE WITH THE PRIOR CONSENT OF THE COMMISSION FOR A PERIOD NOT TO EXCEED THREE MONTHS, AND MAY WITH LIKE CONSENT OF THE COMMISSION BE EXTENDED FOR A FURTHER PERIOD OF THREE MONTHS. SUCH TEMPORARY APPOINTMENT SHALL BE MADE THROUGH CERTIFICATION FROM THE COMMISSION'S ELIGIBLE REGISTERS UNLESS THE COMMISSION SHALL DECIDE, IN A PARTICULAR CASE, THAT THERE ARE NO AVAILABLE ELIGIBLES. SUCH TEMPORARY APPOINTMENT SHALL NOT EXTEND BEYOND SIX MONTHS, UNLESS THERE ARE NO ELIGIBLES AVAILABLE FOR THE ADDITIONAL PERIOD OR UNDER UNUSUAL CIRCUMSTANCES WHICH SEEM TO THE COMMISSION TO JUSTIFY AN EXTENTION BEYOND SIX MONTHS; AND IN NO CASE SHALL SUCH TEMPORARY APPOINTMENT EXTEND BEYOND SIX MONTHS FOR ANY PURPOSE OTHER THAN TO COMPLETE THE JOB OF WORK FOR WHICH THE PERSON WAS ORIGINALLY EMPLOYED. THE COMMISSION MAY RESTRICT CERTIFICATION FOR TEMPORARY APPOINTMENT TO SUCH ELIGIBLES AS BY REASON OF RESIDENCE OR OTHER CONDITIONS ARE IMMEDIATELY AVAILABLE.

THE CLASSIFICATION OF EMPLOYEES AS PERMANENT OR TEMPORARY FOR LEAVE PURPOSES IS SEPARATE AND APART FROM, AND IS NOT COEXTENSIVE WITH, THAT ESTABLISHED FOR THE PURPOSES OF THE CIVIL-SERVICE LAWS AND REGULATIONS. 18 COMP. GEN. 317. IN A DECISION OF JANUARY 7, 1939, 18 COMP. GEN. 596, 598, AFTER QUOTING SECTION 4 OF RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS, IT WAS STATED---

IT IS CLEAR FROM THE WORDING OF THIS REGULATION THAT THE CIVIL SERVICE COMMISSION REGARDS THE INITIAL PERIOD OF 3 MONTHS AND THE PERIOD OF EXTENSION OF 3 MONTHS WITHOUT BREAK IN SERVICE AS ONE TEMPORARY APPOINTMENT. THERE IS NOTHING IN THE LEAVE LAW AND REGULATIONS OR IN ANY DECISIONS OF THIS OFFICE TO PRECLUDE THE ADOPTION OF SUCH CONSTRUCTION OF THE REGULATIONS FOR LEAVE PURPOSES. THAT IS TO SAY, FOR LEAVE PURPOSES TEMPORARY SERVICE FOR A PERIOD OF 6 MONTHS UNDER A 3 MONTHS' INITIAL APPOINTMENT WHICH IS EXTENDED FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 2 OF RULE VIII OF CIVIL SERVICE LAWS AND REGULATIONS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT--- TEMPORARY EMPLOYEES BEING DEFINED IN THE LEAVE REGULATIONS AS "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS.'

SECTION 4 OF RULE VIII OF THE CIVIL-SERVICE LAWS AND REGULATIONS, ABOVE QUOTED, AUTHORIZES THE CIVIL SERVICE COMMISSION UNDER,"UNUSUAL CIRCUMSTANCES," TO APPROVE IN ADVANCE THE EXTENSION OF A TEMPORARY APPOINTMENT BEYOND THE INITIAL PERIOD OF 3 MONTHS OR THE EXTENDED PERIOD OF 6 MONTHS FOR THE PURPOSE OF COMPLETING THE JOB OF WORK FOR WHICH THE PERSON WAS ORIGINALLY EMPLOYED. IN THE INSTANT MATTER THE LETTER OF THE ADMINISTRATOR STATES THAT THE TEMPORARY APPOINTMENTS OF ALL FOUR OF THE EMPLOYEES MENTIONED WERE AUTHORIZED IN ADVANCE FOR A DEFINITE PERIOD OF 1 YEAR. UNDER THE PLAIN WORDING OF THE DEFINITION OF "PERMANENT EMPLOYEES" APPEARING IN THE ANNUAL AND SICK LEAVE REGULATIONS, SUPRA, THESE EMPLOYEES PROPERLY WERE CLASSED AS "PERMANENT EMPLOYEES" FOR LEAVE PURPOSES, ALTHOUGH THEY WERE CLASSED AS TEMPORARY UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS. THE FACT THAT MISS BUCHANAN SERVED ONLY ABOUT 7 WEEKS UNDER THE TEMPORARY APPOINTMENT DOES NOT CHANGE THE CHARACTER CLASSIFICATION OF HER APPOINTMENT--- THE CRITERION BEING NOT THE ACTUAL PERIOD OF SERVICE BUT RATHER, THE PERIOD FOR WHICH THE APPOINTMENT IS MADE.

ACCORDINGLY, IF THE NAMED EMPLOYEES WERE SERVING IN PERMANENT, EMERGENCY, OR INDEFINITE POSITIONS UNDER THE DEPARTMENT OF AGRICULTURE, AND THEIR TRANSFER OR REAPPOINTMENT AS PERMANENT EMPLOYEES (FOR LEAVE PURPOSES) UNDER THE BONNEVILLE PROJECT WAS MADE WITHOUT BREAK IN SERVICE, AND IF, AFTER THE TRANSFER, THEY SERVED IN THE SAME CLASSES OF POSITIONS WITHOUT BREAK IN SERVICE, THE UNUSED ANNUAL AND SICK LEAVE WHICH ACCUMULATED TO THEM UNDER THE DEPARTMENT OF AGRICULTURE MAY BE CREDITED TO THEM UNDER THE PROVISIONS OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE SICK LEAVE REGULATIONS.