B-74997, APRIL 20, 1948, 27 COMP. GEN. 651

B-74997: Apr 20, 1948

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SUCH EMPLOYEES ARE TO BE REGARDED AS " TEMPORARY EMPLOYEES" WITHIN THE PURVIEW OF SECTION 30.101 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS. SINCE THE DEFINITION OF " PERMANENT EMPLOYEES" IN SECTION 30.101 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS IS BASED ON THE CONDITIONS AND CIRCUMSTANCES UNDER WHICH SERVICES ARE RENDERED. THE FACT THAT EXPERTS OR CONSULTANTS ARE EMPLOYED FOR "INTERMITTENT" SERVICES PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2. NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT. UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND.

B-74997, APRIL 20, 1948, 27 COMP. GEN. 651

CONSULTANTS AND EXPERTS - TRAVELING EXPENSES; LEAVES OF ABSENCE EVEN THOUGH THE EXACT DATE OF TERMINATION OF THE SERVICES OF CONSULTANTS OR EXPERTS GIVEN TEMPORARY APPOINTMENTS (NOT IN EXCESS OF 1 YEAR) UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, BE NOT SPECIFICALLY STATED, SUCH EMPLOYEES ARE TO BE REGARDED AS " TEMPORARY EMPLOYEES" WITHIN THE PURVIEW OF SECTION 30.101 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS, WHICH DEFINES " TEMPORARY EMPLOYEES" AS THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR. SINCE THE DEFINITION OF " PERMANENT EMPLOYEES" IN SECTION 30.101 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS IS BASED ON THE CONDITIONS AND CIRCUMSTANCES UNDER WHICH SERVICES ARE RENDERED, THE FACT THAT EXPERTS OR CONSULTANTS ARE EMPLOYED FOR "INTERMITTENT" SERVICES PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, WOULD NOT BE DETERMINATIVE OF SUCH AN EMPLOYEE'S RIGHT TO LEAVE BENEFITS, SO THAT, DEPENDING UPON THE CHARACTER OF THE SERVICES RENDERED, THE EMPLOYEE MAY BE ENTITLED TO LEAVE AS A PERMANENT EMPLOYEE OR TO NO LEAVE AT ALL AS AN ,INTERMITTENT EMPLOYEE.' ALL CONSULTANTS OR EXPERTS EMPLOYED UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR "INTERMITTENT"--- AS DISTINGUISHED FROM "TEMPORARY"--- SERVICES MAY BE REGARDED AS PERSONS "EMPLOYED INTERMITTENTLY" WITHIN THE MEANING OF SECTION 5 OF SAID ACT, SO AS TO BE ENTITLED TO THE TRAVELING EXPENSES AUTHORIZED THEREIN FOR EXPERTS OR CONSULTANTS EMPLOYED INTERMITTENTLY ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS. 23 COMP. GEN. 245, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, APRIL 20, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 29, 1948, REQUESTING DECISION RESPECTING THE RIGHTS OF CONSULTANTS AND EXPERTS EMPLOYED UNDER THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600, APPROVED AUGUST 2, 1946, 60 STAT. 810, TO ANNUAL AND SICK LEAVE AS PROVIDED IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, AND TO TRAVEL EXPENSES PURSUANT TO SECTION 5 OF THE SAID ACT OF AUGUST 2, 1946.

SECTIONS 5 AND 15 OF PUBLIC LAW 600, 60 STAT. 808, 810, PROVIDE RESPECTIVELY AS FOLLOWS:

SEC. 5. PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.

SEC. 15. THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.

IT WILL BE NOTED THAT SECTION 15, QUOTED ABOVE, SPECIFICALLY REFERS TO PROCUREMENT OF "TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES" OF CONSULTANTS OR EXPERTS. SECTION 30.101 (C) OF THE CURRENT LEAVE REGULATIONS DEFINES THE TERM," TEMPORARY EMPLOYEES" AS "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR.' HENCE, CONSULTANTS OR EXPERTS GIVEN TEMPORARY APPOINTMENTS (NOT IN EXCESS OF 1 YEAR) AS PROVIDED IN SECTION 15, SUPRA, ARE " TEMPORARY EMPLOYEES" FOR LEAVE PURPOSES. AND THAT IS SO REGARDLESS OF THE FACT THAT THE EXACT DATE OF TERMINATION OF THEIR SERVICES DURING THE YEAR PERIOD IS NOT SPECIFICALLY STATED. COMPARE 16 COMP. GEN. 934; 25 ID. 702.

THE TERM,"INTERMITTENT," HAS BEEN THE SUBJECT OF VARIOUS INTERPRETATIONS BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT. IN EACH CASE, THE INTERPRETATION THERE GIVEN HAS BEEN BASED UPON THE CONTEXT OF THE LAW OR REGULATION BEING CONSTRUED, TOGETHER WITH A CONSIDERATION OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED. FOR THAT REASON, NO GENERAL DEFINITION OF THE WORD,"INTERMITTENT," WHICH WOULD BE APPLICABLE TO ALL CASES HAS BEEN ATTEMPTED BY THE ACCOUNTING OFFICERS, AND NEITHER WOULD IT APPEAR THAT SUCH AN ATTEMPT IS FEASIBLE. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 600 FAILS TO REVEAL AN INTENT ON THE PART OF THE CONGRESS TO ATTRIBUTE TO THE TERM "INTERMITTENT" AS USED IN THAT ACT ANY SPECIAL OR TECHNICAL MEANING. RATHER, IT FAIRLY APPEARS FROM SUCH LEGISLATIVE HISTORY THAT THE CONGRESS, WHEN USING SUCH TERM, BROADLY HAD REFERENCE TO EMPLOYMENTS CONTEMPLATING OCCASIONAL OR IRREGULAR SERVICE AS DISTINGUISHED FROM REGULAR OR CONTINUOUS SERVICE SUCH AS IS CONTEMPLATED UNDER THE USUAL TYPE OF APPOINTMENTS OR EMPLOYMENT AGREEMENTS COVERING PERMANENT OR TEMPORARY EMPLOYEES.

SO FAR AS CONCERNS THE LEAVE RIGHTS OF EXPERTS OR CONSULTANTS EMPLOYED FOR "INTERMITTENT" SERVICES PURSUANT TO SECTION 15 OF PUBLIC LAW 600, SECTION 30.101 (B) OF THE CURRENT LEAVE REGULATIONS PROVIDES:

" PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE, OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR, OR FOR THE "DURATION OF THE JOB," OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES. UNDER THE ABOVE-QUOTED DEFINITION OF " PERMANENT EMPLOYEES" IT WILL BE SEEN THAT THE MERE DESIGNATION OF AN EMPLOYEE'S SERVICES AS "1INTERMITTENT" IS NOT DETERMINATIVE OF HIS RIGHT TO THE LEAVE BENEFITS PROVIDED BY THE LEAVE REGULATIONS. RATHER, IT IS APPARENT THAT THE ACTUAL CONDITIONS AND CIRCUMSTANCES UNDER WHICH THE SERVICE IS RENDERED DETERMINE WHETHER AN EMPLOYEE IS ENTITLED TO LEAVE. HENCE, AN EXPERT OR CONSULTANT EMPLOYED FOR ,INTERMITTENT" SERVICES UNDER SECTION 15, SUPRA, MAY BE ENTITLED TO LEAVE AS A " PERMANENT MPLOYEE" OR BE ENTITLED TO NO LEAVE AT ALL AS AN "INTERMITTENT EMPLOYEE" WITHIN THE MEANING OF THAT TERM AS USED IN THE LEAVE REGULATIONS, DEPENDING UPON THE CHARACTER OF THE SERVICES RENDERED. SEE IN THAT CONNECTION CHAPTER L 1-3," LEAVE: GENERAL PROVISIONS," FEDERAL PERSONNEL MANUAL, WHEREIN " INTERMITTENT EMPLOYEES" ARE DEFINED AS "EMPLOYEES WHO RENDER SERVICES UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS NONE OF WHICH EXTENDS FOR A FULL MONTH.'

WITH RESPECT TO THE TRAVEL EXPENSES PAYABLE UNDER SECTION 5 OF PUBLIC LAW 600 TO CONSULTANTS OR EXPERTS EMPLOYED ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS, IT WILL BE SEEN THE REFERRED-TO PROVISION EXPRESSLY IS DIRECTED TO THE PAYMENT OF TRAVEL EXPENSES OF EXPERTS OR CONSULTANTS ,EMPLOYED INTERMITTENTLY.' ACCORDINGLY, IN LINE WITH THE FOREGOING STATEMENTS RESPECTING THE BROAD, GENERAL MANNER IN WHICH THE CONGRESS USED THE TERM "INTERMITTENT" IN SECTION 15, YOU ARE ADVISED THAT ALL CONSULTANTS OR EXPERTS EMPLOYED FOR "INTERMITTENT"--- AS DISTINGUISHED FROM ,TEMPORARY"--- SERVICES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 15 OF PUBLIC LAW 600 ARE WITHIN THE PURVIEW OF THE TRAVEL EXPENSE PROVISIONS OF THE SAID SECTION 5 OF THAT ACT. IN REACHING THAT CONCLUSION, THERE HAS NOT BEEN OVERLOOKED THE STATEMENT IN THE DECISION OF OCTOBER 1, 1943, 23 COMP. GEN. 245, REFERRED TO IN YOUR LETTER, TO THE EFFECT THAT, AS A GENERAL CRITERION, IF A CONSULTANT BE EMPLOYED CONTINUOUSLY TO SUCH AN EXTENT AS TO ENTITLE HIM TO ANNUAL AND SICK LEAVE, HE REASONABLY WOULD NOT BE CONSIDERED AN "INTERMITTENT" EMPLOYEE WITHIN THE MEANING OF THAT TERM AS USED IN THE TRAVEL EXPENSE APPROPRIATION THERE INVOLVED. IN THAT CASE THE CIRCUMSTANCES GIVING RISE TO THE ENACTMENT OF THE PARTICULAR APPROPRIATION PROVISION INVOLVED WERE VIEWED AS SUBSTANTIATING SUCH CONCLUSION. HOWEVER, AS POINTED OUT ABOVE, THERE APPEARS NO SUCH COMPARABLE LEGISLATIVE HISTORY LEADING TO THE ENACTMENT OF THE GENERAL PROVISIONS OF SECTIONS 15 OR 5 OF PUBLIC LAW 600, AS WOULD INDICATE THAT THE CONGRESS INTENDED TO EMPLOY THE TERM,"INTERMITTENT," AS APPEARING IN THOSE SECTIONS IN THE SAME SENSE AS IT IS USED IN REGULATIONS PERTAINING TO ANNUAL AND SICK LEAVE.

IN ANSWER TO THE SPECIFIC QUESTION PRESENTED IN YOUR LETTER AS TO WHETHER "W.A.E.' EXPERTS EMPLOYED UNDER THE SAID SECTION 15 OF PUBLIC LAW 600 ARE ENTITLED TO THE SAME LEAVE AND TRAVEL RIGHTS AS "W.A.E.' CONSULTANTS EMPLOYED UNDER THAT SECTION, YOU ARE ADVISED THAT IN VIEW OF THE SPECIFIC LANGUAGE CONTAINED IN THE CONTROLLING STATUTORY PROVISIONS AND REGULATIONS QUOTED ABOVE, THERE IS PERCEIVED NO BASIS FOR MAKING A DISTINCTION BETWEEN THE TWO CLASSES OF EMPLOYEES SO FAR AS CONCERNS THE LEAVE AND TRAVEL BENEFITS HEREIN DISCUSSED.