B-72049, DECEMBER 19, 1947, 27 COMP. GEN. 336

B-72049: Dec 19, 1947

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NOR MAY SAID SECTION 30.201 BE VIEWED AS CONTROLLING IN DETERMINING THE AMOUNT OF ANNUAL LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT A GIVEN DATE DURING A CALENDAR YEAR. 27 COMP. WHERE THE LAST DAYS OF A YEAR ARE WITHIN A PAY PERIOD EXTENDING INTO THE SUBSEQUENT YEAR. 1947: I HAVE YOUR LETTER OF DECEMBER 16. AS FOLLOWS: A QUESTION HAS ARISEN WHICH IS OF THE UTMOST IMPORTANCE CONCERNING EMPLOYEES TAKING LEAVE AT THE END OF THE CALENDAR YEAR. LEAVE IS CREDITED ON A PAY PERIOD BASIS UNDER GENERAL REGULATIONS 102 AND ANNUAL LEAVE REGULATIONS. TIME AND ATTENDANCE REPORT" INDICATES THAT LEAVE IS BOTH CREDITED AND CHARGED ON A PAY PERIOD BASIS. STATES THAT EMPLOYEES ARE ENTITLED TO "26 DAYS ANNUAL LEAVE IN A CALENDAR YEAR.'.

B-72049, DECEMBER 19, 1947, 27 COMP. GEN. 336

LEAVES OF ABSENCE - ANNUAL - CREDITING AND CHARGING ON PAY PERIOD BASIS THE PROVISIONS OF SECTION 30.201 OF THE ANNUAL AND SICK LEAVE REGULATIONS RESPECTING THE MANNER OF CREDITING PERMANENT EMPLOYEES WITH ANNUAL LEAVE ON A BI-WEEKLY PAY PERIOD BASIS MAY NOT ENLARGE OR DIMINISH THE RIGHT OF AN ELIGIBLE EMPLOYEE TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR GRANTED BY SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AS AMENDED; NOR MAY SAID SECTION 30.201 BE VIEWED AS CONTROLLING IN DETERMINING THE AMOUNT OF ANNUAL LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT A GIVEN DATE DURING A CALENDAR YEAR. 27 COMP. GEN. 120, AMPLIFIED. AMPLIFIED BY 27 COMP. GEN. 369.) THE CHARGING OF ANNUAL LEAVE ON A BI-WEEKLY PAY PERIOD BASIS TO CORRESPOND WITH THE CREDITING THEREOF UNDER SECTION 30.201 OF THE ANNUAL AND SICK LEAVE REGULATIONS MAY NOT, WHERE THE LAST DAYS OF A YEAR ARE WITHIN A PAY PERIOD EXTENDING INTO THE SUBSEQUENT YEAR, RESULT IN LEAVE TAKEN IN ONE CALENDAR YEAR BEING CHARGED TO LEAVE EARNED IN THE SUBSEQUENT YEAR.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, DECEMBER 19, 1947:

I HAVE YOUR LETTER OF DECEMBER 16, 1947, AS FOLLOWS:

A QUESTION HAS ARISEN WHICH IS OF THE UTMOST IMPORTANCE CONCERNING EMPLOYEES TAKING LEAVE AT THE END OF THE CALENDAR YEAR.

IN THIS AGENCY, LEAVE IS CREDITED ON A PAY PERIOD BASIS UNDER GENERAL REGULATIONS 102 AND ANNUAL LEAVE REGULATIONS, SECTION 30.201 ISSUED BY THE CIVIL SERVICE COMMISSION IN FEDERAL PERSONNEL MANUAL, CHAPTER Z1. GENERAL REGULATIONS 102, PARAGRAPHS 2 AND 3 UNDER THE HEADING " STANDARD FORM 1130, REVISED, TIME AND ATTENDANCE REPORT" INDICATES THAT LEAVE IS BOTH CREDITED AND CHARGED ON A PAY PERIOD BASIS.

THE ANNUAL LEAVE ACT, HOWEVER, STATES THAT EMPLOYEES ARE ENTITLED TO "26 DAYS ANNUAL LEAVE IN A CALENDAR YEAR.' IT PROVIDES THAT "ANNUAL LEAVE WHICH IS NOT USED DURING THE CALENDAR YEAR IN WHICH IT IS EARNED MAY BE CARRIED FORWARD AS ACCUMULATED LEAVE FOR USE IN SUCCEEDING YEARS" UP TO CERTAIN MAXIMA. WE HAVE THE FOLLOWING QUESTIONS:

1. MAY "CALENDAR", YEAR BE INTERPRETED AS THE 26 PAY PERIODS ENDING IN A CALENDAR YEAR? SPECIFICALLY, WITH RESPECT TO YOUR DECISION B-68709 OF AUGUST 25, 1947, MAY THE FOLLOWING PHRASES IN THE LAST FOUR PARAGRAPHS BE GIVEN THE INTERPRETATIONS INDICATED:

CHART

PARAGRAPH PHRASE INTERPRETATION

FOURTH FROM END " CALENDAR YEAR 1947"--- THE 26 PAY PERIODS (ALSO NEXT TO LAST).

ENDING DEC. 27, 1947

FOURTH FROM END--- " CREDIT AS OF DEC. 31, CREDIT AS OF DEC. 29,

1946" 1946

NEXT TO LAST--- " CALENDAR YEAR 1946"--- THE 26 PAY PERIODS

ENDING DEC. 28, 1946

NEXT TO LAST--- " CALENDAR YEAR 1948"--- THE 26 PAY PERIODS

ENDING DEC. 25, 1948

NEXT TO LAST--- " JANUARY 1, 1947 THE 14 1/2 PAY PERIODS

THROUGH JULY 24, BEGINNING DEC. 29,

1947" 1946 AND ENDING ON

JULY 19, 1947

2. IF THESE INTERPRETATIONS MAY NOT BE MADE, MUST CHARGES FOR LEAVE TAKEN AFTER DECEMBER 28, 1946 AND BEFORE JANUARY 1, 1947 MADE IN ACCORDANCE WITH THESE INTERPRETATIONS BE CORRECTED?

THE FOLLOWING ILLUSTRATIONS ARE OFFERED OF THE EFFECT OF THE TWO POSSIBLE INTERPRETATIONS OF ,CALENDAR YEAR: "

I. AN EMPLOYEE HAD 720 HOURS OF LEAVE TO HIS CREDIT ON JULY 24, 1947, AND STILL HAD 720 HOURS ON DECEMBER 27, 1947. HE USES 24 HOURS OF ANNUAL LEAVE ON DECEMBER 29, 30 AND 31. IF THE ACCUMULATION HE CAN CARRY OVER INTO 1948 IS BASED ON HIS BALANCE ON DECEMBER 27, 1947 (END OF PAY PERIOD 26) HE WILL CARRY OVER 720 HOURS. IF THE LEAVE TAKEN AFTER THE END OF PAY PERIOD 26 AND BEFORE JANUARY 1, 1948, MUST BE DEDUCTED FROM HIS ACCUMULATION, HE CAN CARRY OVER INTO 1948 ONLY 696 HOURS.

II. AN EMPLOYEE HAD 696 HOURS OF LEAVE TO HIS CREDIT ON JULY 24, 1947, AND 720 HOURS ON DECEMBER 27, 1947. HE USES 24 HOURS ON DECEMBER 29, 30, AND 31. IF THE ACCUMULATION HE CAN CARRY OVER INTO 1948 IS BASED ON HIS BALANCE ON DECEMBER 27, HE CAN CARRY OVER 696 HOURS AND WILL LOSE 24 HOURS. IF THE LEAVE TAKEN AFTER THE END OF PAY PERIOD 26 AND BEFORE JANUARY 1, 1948, IS DEDUCTED FROM HIS ACCUMULATION HE CAN STILL CARRY OVER 696 HOURS BUT WILL LOSE NONE.

IT IS ANTICIPATED THAT MANY EMPLOYEES WILL APPLY FOR LEAVE DURING THE PERIOD DECEMBER 29 THROUGH DECEMBER 31, 1947. AS IT APPEARS FROM THE ABOVE ILLUSTRATIONS SUCH EMPLOYEES, UNLESS THEY KNOW BEFOREHAND WHETHER THE DETERMINATION IS MADE AS OF DECEMBER 27 OR DECEMBER 31 WILL NOT BE ABLE TO PLAN THEIR LEAVE SO AS TO CARRY OVER THE MAXIMUM AMOUNT PERMITTED BY LAW. YOUR EARLY REPLY IS THEREFORE URGENTLY REQUESTED.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED, PROVIDES, IN PART, AS FOLLOWS:

THAT WITH THE EXCEPTION OF TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA, AND EXCEPT AS PROVIDED IN SECTION 4 HEREOF, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS * * *. ( ITALICS SUPPLIED.)

IT WILL BE SEEN FROM THE ITALICIZED PORTION OF THAT PART OF THE 1936 STATUTE QUOTED ABOVE THAT OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT, OTHER THAN TEMPORARY EMPLOYEES, WHO COME WITHIN THE PURVIEW OF THAT ACT ARE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY "EACH CALENDAR AR.' THE PHRASE,"CALENDAR YEAR," CONSISTENTLY HAD BEEN INTERPRETED BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS COMPRISING THE PERIOD JANUARY 1 TO DECEMBER 31, INCLUSIVE. SEE 26 COMP. GEN. 592, 594, AND DECISIONS CITED THEREIN. COMPARE 18 COMP. GEN. 162.

WHILE SECTION 7 OF THE ANNUAL LEAVE ACT OF 1936, 49 STAT. 1162, AS AMENDED, SUPRA, AUTHORIZED THE PRESIDENT TO PRESCRIBE THE REGULATIONS FOR UNIFORM APPLICATION OF THAT ACT (AUTHORITY WHICH NOW HAS BEEN DELEGATED TO THE CIVIL SERVICE COMMISSION), IT IS CLEAR THAT SUCH REGULATIONS NEITHER MAY ENLARGE NOR DIMINISH THE RIGHTS GRANTED UNDER THE SPECIFIC PROVISIONS OF THE STATUTE. IN THAT CONNECTION, IT WILL BE NOTED THAT NEITHER THE CIVIL SERVICE COMMISSION LEAVE REGULATIONS NOR GENERAL REGULATION NO. 102 OF THIS OFFICE, 24 COMP. GEN. 962-- REFERRED TO IN YOUR LETTER--- IS DIRECTED TO THE MATTER OF THE RATE AT WHICH AN EMPLOYEE EARNS ANNUAL LEAVE UNDER THE 1936 STATUTE. RATHER, SECTION 30.201 OF THE CURRENT ANNUAL LEAVE REGULATIONS OF THE COMMISSION SPECIFICALLY PROVIDES THAT ANNUAL LEAVE REGULATIONS OF THE COMMISSION SPECIFICALLY PROVIDES THAT ANNUAL LEAVE SHALL BE "CREDITED" TO EMPLOYEES EITHER AT THE RATE OF ONE DAY PER BI-WEEKLY PAY PERIOD OR THAT THE TOTAL "CREDIT" MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES. OBVIOUSLY, IF THE LATTER PROCEDURE BE FOLLOWED, AN EMPLOYEE PROPERLY MAY NOT BE CONSIDERED AS HAVING EARNED TWENTY-SIX DAYS' ANNUAL LEAVE AS OF JANUARY 1. AND, IN LIKE MANNER, IF THE BI-WEEKLY PAY PERIOD METHOD OF CREDITING LEAVE BE USED, THE FACT THAT THE FINAL LEAVE CREDIT IS POSTED AT SOME INTERMEDIATE DATE DURING THE CALENDAR YEAR WOULD NOT ESTABLISH THAT DATE AS THE DATE UPON WHICH THE EMPLOYEE EARNS THE FULL AMOUNT OF ANNUAL LEAVE AUTHORIZED UNDER THE STATUTE. CONSEQUENTLY, THE PROVISIONS OF THE SAID REGULATIONS RESPECTING THE MANNER OF CREDITING ANNUAL LEAVE--- WHILE THEY MAY PERFORM A DESIRED FUNCTION FOR ADMINISTRATIVE LEAVE CONTROL PURPOSES--- ARE, AT MOST, ACCOUNTING EXPEDIENTS AND IN NOWISE MAY BE VIEWED AS CONTROLLING IN DETERMINING THE AMOUNT OF ANNUAL LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT A GIVEN DATE DURING A CALENDAR YEAR.

IT WAS IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THAT THE REFERRED-TO DECISION OF AUGUST 25, 1947, 27 COMP. GEN. 120, WAS RENDERED, AND, ACCORDINGLY, THE VARIOUS PARTS OF QUESTION 1, SUPRA, ARE REQUIRED TO BE ANSWERED IN THE NEGATIVE.

QUESTION 2 IS ANSWERED, GENERALLY, IN THE AFFIRMATIVE.

WITH RESPECT TO THE ILLUSTRATIONS GIVEN IN YOUR LETTER, IT MAY BE SAID THAT IT APPEARS AXIOMATIC THAT ANNUAL LEAVE TAKEN DURING THE CALENDAR YEAR 1947 MUST BE CHARGED TO LEAVE WHICH ACCRUES DURING THAT YEAR, OR TO PRIOR ACCUMULATIONS, RATHER THAN TO LEAVE WHICH MAY, OR MAY NOT, ACCRUE IN A SUBSEQUENT YEAR. IN THE FIRST EXAMPLE, TO PERMIT THE EMPLOYEE TO CARRY OVER AN ACCUMULATION OF 720 HOURS OF ANNUAL LEAVE INTO 1948 WOULD NOT REFLECT THE TRUE STATUS OF HIS LEAVE ACCOUNT, SINCE THE CHARGE FOR LEAVE ACTUALLY TAKEN DURING 1947 APPARENTLY WOULD BE AGAINST ANNUAL LEAVE WHICH MAY OR MAY NOT BE EARNED DURING THE CALENDAR YEAR 1948. SUCH PROCEDURE WOULD RESULT IN ERRONEOUS LUMP-SUM LEAVE PAYMENTS UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, IN THE EVENT OF SEPARATION FROM THE SERVICE OF AN EMPLOYEE, BY DEATH OR OTHERWISE, PRIOR TO THE BEGINNING OF THE CALENDAR YEAR 1948 OR PRIOR TO HIS EARNING SUFFICIENT ANNUAL LEAVE DURING 1948 TO COVER THE LEAVE TAKEN. RESPECTING THE SECOND EXAMPLE, IT WILL BE SEEN THAT IF DECEMBER 27, 1947, BE CONSIDERED TO BE THE LAST DATE FOR CHARGING LEAVE TAKEN DURING THE CALENDAR YEAR 1947, THE EMPLOYEE, BEING LIMITED BY STATUTE TO A MAXIMUM ANNUAL LEAVE CARRY-OVER OF 696 HOURS (87 DAYS), NOT ONLY WOULD BE CHARGED WITH THREE DAYS' LEAVE AGAINST HIS POTENTIAL LEAVE EARNINGS DURING 1948, BUT ALSO, HE WOULD BE REQUIRED TO FORFEIT THREE DAYS' LEAVE WHICH OTHERWISE WOULD HAVE BEEN AVAILABLE TO HIM FOR THE DAYS INVOLVED; WHEREAS CONSIDERING THAT ALL LEAVE TAKEN THROUGH DECEMBER 31, 1947, IS FOR CHARGING TO 1947 LEAVE, THE EMPLOYEE IS ENTITLED TO THE SAME LEAVE CARRY-OVER (87 DAYS), AND HAS AVAILABLE FOR USE ON THE INVOLVED WORKDAYS THE THREE DAYS' ANNUAL LEAVE WHICH OTHERWISE WOULD BE FORFEITED.