B-82290, JANUARY 18, 1949, 28 COMP. GEN. 417

B-82290, JANUARY 18, 1949, 28 COMP. GEN. 417

LUMP-SUM LEAVE PAYMENTS - RATE AT WHICH PAYABLE - ADDITIONAL COMPENSATION FOR DUTY OUTSIDE CONTINENTAL U.S. LUMP-SUM PAYMENTS FOR ANNUAL LEAVE MADE TO EMPLOYEES SEPARATED PRIOR TO THE TIME OF FILING WITH THE DIVISION OF FEDERAL REGISTER OF REGULATIONS PRESCRIBING SPECIFIC RATES OF ADDITIONAL COMPENSATION FOR DUTY OUTSIDE CONTINENTAL UNITED STATES SHOULD BE COMPUTED AT THE RATE IN EFFECT AT THE DATE OF SEPARATION, WHEREAS, IN THE CASE OF SEPARATION AFTER THE TIME OF FILING OF SAID REGULATIONS, THE LUMP-SUM PAYMENT SHOULD BE COMPUTED SO AS TO REFLECT THE RATES PRESCRIBED THEREIN IF, AT THE TIME OF SEPARATION, THE EMPLOYEE WAS ENTITLED TO THE BENEFIT OF THE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 18, 1949:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1948, PRESENTING FOR DECISION SEVERAL QUESTIONS INVOLVING THE EFFECTIVE DATE OF THE APPLICATION OF THE PROVISIONS OF SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, AND THE PROVISIONS OF EXECUTIVE ORDER NO. 10000 DATED SEPTEMBER 16, 1948, RELATIVE TO THE PAYMENT OF ADDITIONAL COMPENSATION ON ACCOUNT OF SERVICES PERFORMED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.

AT THE REQUEST OF THE SECRETARY OF COMMERCE, THIS OFFICE RECENTLY RENDERED A DECISION INVOLVING SUBSTANTIALLY THE SAME POINTS AND QUESTIONS AS HAVE BEEN PRESENTED IN YOUR LETTER. IN THAT DECISION RENDERED DECEMBER 23, 1948, B-81954, 28 COMP. GEN. 377, IT WAS CONCLUDED THAT--- WHILE THE ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, PROPERLY COULD NOT BE CONSIDERED AS PART OF THE BASIC COMPENSATION FOR OVERTIME, NIGHT DIFFERENTIAL, HOLIDAY PAY, AND RETIREMENT DEDUCTION PURPOSES--- THIS OFFICE, FOR REASONS THEREIN STATED, WOULD NOT REQUIRE ANY CORRECTIVE ACTION WITH RESPECT TO OTHERWISE PROPER PAYMENTS MADE FOR SERVICES RENDERED PRIOR TO JANUARY 1, 1949. ALSO, IT WAS CONCLUDED THAT, IN PROPER CASES, THE ADDITIONAL COMPENSATION PROPERLY IS FOR CONSIDERATION IN COMPUTING LUMP-SUM LEAVE PAYMENTS IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 1 AND 2 OF THE SO-CALLED " LUMP-SUM LEAVE LAW" APPROVED DECEMBER 21, 1944, 58 STAT. 845.

HOWEVER, YOU HAVE PRESENTED ONE QUESTION WHICH PREVIOUSLY HAS NOT BEEN CONSIDERED. THAT QUESTION IS WHETHER LUMP-SUM PAYMENTS MADE TO EMPLOYEES SEPARATED PRIOR TO JANUARY 1, 1949, OR SUCH TIME AS ADDITIONAL COMPENSATION RATES ARE PRESCRIBED BY THE SECRETARY OF STATE OR THE CIVIL SERVICE COMMISSION, WHICHEVER DATE IS EARLIER, SHOULD INCLUDE THE THEN EXISTING RATE OF DIFFERENTIAL FOR SUCH PORTION OF THE ACCRUED LEAVE EXTENDING BEYOND JANUARY 1, 1949, OR ANY EARLIER DATE ESTABLISHED.

ORDINARILY THE LUMP-SUM PAYMENT SHOULD BE COMPUTED AT THE RATE OF COMPENSATION WHICH THE EMPLOYEE IS RECEIVING AT THE DATE OF SEPARATION, BUT IF, AT THE TIME OF SEPARATION, THERE IS IN BEING LAWFUL AUTHORITY FOR CHANGING THE RATE OF COMPENSATION DURING THE PERIOD OVER WHICH THE LUMP- SUM PAYMENT IS COMPUTED AND IF, AT THAT TIME, IT DEFINITELY IS KNOWN WHAT THE CHANGE IN RATE WILL BE, THAT CHANGE IN RATE SHOULD BE REFLECTED IN THE COMPUTATION OF THE LUMP-SUM PAYMENT. 26 COMP. GEN. 9; 102 (106); AND 214. REGULATIONS PRESCRIBING RATES OF ADDITIONAL COMPENSATION IN FOREIGN AREAS APPEAR IN THE FEDERAL REGISTER FOR DECEMBER 30, 1948, AS HAVING BEEN FILED AT 9:20 A.M., DECEMBER 29, 1948. REGULATIONS PRESCRIBING RATES OF ADDITIONAL COMPENSATION IN THE TERRITORIES APPEAR IN THE FEDERAL REGISTER FOR DECEMBER 30, 1948, AS HAVING BEEN FILED AT 9:21 .M., DECEMBER 29, 1948. SEE 13 F.R. 8721, ET SEQ. THE FILING OF DOCUMENTS REQUIRED OR AUTHORIZED TO BE FILED UNDER SECTION 7 OF THE FEDERAL REGISTER ACT, APPROVED JULY 26, 1935, 49 STAT. 502, OPERATES AS CONSTRUCTIVE NOTICE TO PERSONS AFFECTED AS SOON AS FILED WITH THE DIVISION OF FEDERAL REGISTER, ETC.

ACCORDINGLY, IN CONSONANCE WITH WHAT IS STATED IN THE PRECEDING PARAGRAPH, LUMP-SUM PAYMENTS TO EMPLOYEES SEPARATED PRIOR TO THE TIME OF FILING WITH THE DIVISION OF FEDERAL REGISTER OF REGULATIONS PRESCRIBING SPECIFIC RATES OF ADDITIONAL COMPENSATION SHOULD BE COMPUTED AT THE RATE IN EFFECT AT THE DATE OF SEPARATION. LUMP-SUM PAYMENTS TO EMPLOYEES SEPARATED AFTER THE TIME OF SUCH FILING SHOULD BE COMPUTED SO AS TO REFLECT THE RATES PRESCRIBED IN SUCH REGULATIONS IF, AT THE TIME OF SEPARATION, THE EMPLOYEE WAS ENTITLED TO THE BENEFIT OF THE SAID REGULATIONS.