B-82628, JANUARY 18, 1949, 28 COMP. GEN. 418

B-82628: Jan 18, 1949

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SAID EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21. 1949: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21. IS AMENDED BY INSERTING AFTER THE WORD "EMPLOYEES. IN THE SAID DECISION IT WAS STATED. IT IS FURTHER UNDERSTOOD THAT. ARE FOR APPLICATION TO SUCH EMPLOYEES. IT IS APPARENT THAT THE ONLY DISTINCTION BETWEEN THE LEAVE RIGHTS OF DEPARTMENT OF AGRICULTURE EMPLOYEES ENTITLED TO THE FOREIGN LEAVE DIFFERENTIAL (OTHER THAN THOSE EMPLOYED AT CERTAIN EXPERIMENTAL STATIONS) AND EMPLOYEES OF THAT DEPARTMENT STATIONED IN THE CONTINENTAL UNITED STATES. IS IN THE NUMBER OF DAYS' ANNUAL LEAVE AUTHORIZED FOR A CALENDAR YEAR. THAT IS. AS WAS HELD WITH RESPECT TO TEMPORARY EMPLOYEES IN THE DECISION OF OCTOBER 24.

B-82628, JANUARY 18, 1949, 28 COMP. GEN. 418

LUMP-SUM LEAVE PAYMENTS - PHILIPPINE WAR DAMAGE COMMISSION EMPLOYEES THE ACT OF JANUARY 26, 1948, AMENDING SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, RAISING TO 90 DAYS THE MAXIMUM AMOUNT OF ANNUAL LEAVE THAT MAY BE ACCUMULATED BY EMPLOYEES OF THE COMMISSION DOES NOT OPERATE TO PLACE SUCH EMPLOYEES UNDER A LEAVE SYSTEM DIFFERENT FROM THAT APPLICABLE TO FEDERAL EMPLOYEES GENERALLY, AND, UPON SEPARATION OR TRANSFER, OR REEMPLOYMENT AFTER SEPARATION, SAID EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, OTHERWISE APPLICABLE TO PERSONS SEPARATED OR TRANSFERRED, OR REEMPLOYED IN POSITIONS SUBJECT TO THE SAME LEAVE ACT.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, PHILIPPINE WAR DAMAGE COMMISSION, JANUARY 18, 1949:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 21, 1948, REQUESTING DECISION AS TO WHETHER THE AMENDMENT TO SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 BY THE ACT OF JANUARY 26, 1948, PUBLIC LAW 399, 62 STAT. 4, PLACES THE EMPLOYEES OF YOUR COMMISSION UNDER A DIFFERENT LEAVE SYSTEM THAN THAT APPLICABLE TO FEDERAL EMPLOYEES GENERALLY, WITHIN THE CONTEMPLATION OF THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845.

SAID SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, 60 STAT. 128, AS ORIGINALLY ENACTED PROVIDED---

THE COMMISSION MAY, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF SUCH OFFICERS, ATTORNEYS, AND EMPLOYEES, AND MAY MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS. OFFICERS AND EMPLOYEES OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF SUCH DEPARTMENT OR AGENCY, BE ASSIGNED TO ASSIST THE COMMISSION IN CARRYING OUT ITS FUNCTIONS. THE COMMISSION MAY, WITH THE CONSENT OF THE HEAD OF ANY OTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT, UTILIZE THE FACILITIES AND SERVICES OF SUCH DEPARTMENT OR AGENCY IN CARRYING OUT THE FUNCTIONS OF THE COMMISSION.

THE ACT OF JANUARY 26, 1948, PUBLIC LAW 399, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

THAT SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, AS AMENDED, IS AMENDED BY INSERTING AFTER THE WORD "EMPLOYEES," THE FOLLOWING: "WHO SHALL BE ENTITLED TO ACCUMULATE ANNUAL LEAVE TO THE MAXIMUM OF NINETY WORK DAYS EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE CONTINENTAL UNITED STATES AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT,"

YOUR SUBMISSION SUGGESTS THAT, BY IMPLICATION, THE DECISION OF THIS OFFICE OF SEPTEMBER 17, 1948, B-75880, 28 COMP. GEN. 176, SUPPORTS THE VIEW THAT THE ABOVE-QUOTED AMENDMENT PLACES THE EMPLOYEES OF YOUR COMMISSION UNDER A DIFFERENT LEAVE SYSTEM FROM THAT IN EFFECT FOR FEDERAL EMPLOYEES GENERALLY. IN THE SAID DECISION IT WAS STATED---

HOWEVER, IT IS FURTHER UNDERSTOOD THAT, WITH THE EXCEPTION OF EMPLOYEES STATIONED AT EXPERIMENTAL STATIONS IN SUCH FOREIGN DUTY STATIONS, ALL OF THE LEAVE REGULATIONS PRESCRIBED UNDER THE SAID ANNUAL LEAVE ACT OF MARCH 14, 1936, ARE FOR APPLICATION TO SUCH EMPLOYEES--- INCLUDING THE MAXIMUM LEAVE ACCUMULATION PROVISIONS NOW IN EFFECT WITH RESPECT TO LEAVE UNDER THE 1936 STATUTE. OF COURSE, IN VIEW OF THE LEAVE DIFFERENTIAL GRANTED EMPLOYEES AT THE SPECIFIED FOREIGN DUTY POSTS, THE PERIODIC CREDITS THEREFOR VARY IN AMOUNT FROM THOSE POSTED TO THE ACCOUNTS OF EMPLOYEES RECEIVING ONLY 26 DAYS' ANNUAL LEAVE UNDER THE 1936 STATUTE.

FROM THE FOREGOING, IT IS APPARENT THAT THE ONLY DISTINCTION BETWEEN THE LEAVE RIGHTS OF DEPARTMENT OF AGRICULTURE EMPLOYEES ENTITLED TO THE FOREIGN LEAVE DIFFERENTIAL (OTHER THAN THOSE EMPLOYED AT CERTAIN EXPERIMENTAL STATIONS) AND EMPLOYEES OF THAT DEPARTMENT STATIONED IN THE CONTINENTAL UNITED STATES, IS IN THE NUMBER OF DAYS' ANNUAL LEAVE AUTHORIZED FOR A CALENDAR YEAR, THAT IS, 30 DAYS AS COMPARED WITH 26 DAYS. SUCH CIRCUMSTANCE DOES NOT APPEAR SUFFICIENT IN ITSELF, TO CONSTITUTE A DIFFERENT LEAVE SYSTEM FROM THAT PRESCRIBED UNDER THE 1936 STATUTE FOR PERMANENT EMPLOYEES IN THE UNITED STATES, AS WAS HELD WITH RESPECT TO TEMPORARY EMPLOYEES IN THE DECISION OF OCTOBER 24, 1946, SUPRA. IN THE LATTER SITUATION, NOT ONLY IS THERE A VARIATION IN THE TOTAL AMOUNT OF LEAVE AUTHORIZED FOR A CALENDAR YEAR, BUT ALSO THE RATE AT WHICH IT IS EARNED, AND THE CONDITIONS OF SERVICE REQUIRED FOR ELIGIBILITY THEREFOR DIFFER SUBSTANTIALLY FROM THOSE ESTABLISHED FOR PERMANENT EMPLOYEES. CONSEQUENTLY, IT DOES NOT APPEAR THAT THE HOLDING IN THAT DECISION IS, BY ANALOGY, APPLICABLE TO THE SITUATION PRESENTED IN YOUR LETTER.

THERE IS PERCEIVED NOTHING IN THE DECISION QUOTED IN PART ABOVE WHICH PROPERLY MAY BE SAID TO FORM THE BASIS FOR THE VIEW THAT THE SAID AMENDMENT TO THE PHILIPPINE REHABILITATION ACT OF 1946 OPERATES TO PLACE EMPLOYEES OF YOUR COMMISSION UNDER A LEAVE SYSTEM DIFFERENT FROM THAT APPLICABLE TO FEDERAL EMPLOYEES, GENERALLY. IN THAT CONNECTION, IT WILL BE NOTED THAT, IN DECISION OF SEPTEMBER 9, 1946, 26 COMP. GEN. 168, IT WAS HELD, PRIOR TO THE AMENDMENT OF JANUARY 26, 1948, THAT EMPLOYEES OF YOUR COMMISSION WERE SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, WHICH, AFTER JULY 25, 1947, LIMITS THE ACCUMULATION OF ANNUAL LEAVE NOT TO EXCEED 60 DAYS. THAT AMENDMENT MERELY RAISES THE MAXIMUM LEAVE ACCUMULATION FOR EMPLOYEES OF YOUR COMMISSION TO 90 DAYS--- THE AMOUNT OF ANNUAL LEAVE TO WHICH ALL EMPLOYEES SUBJECT TO THE 1936 ACT WERE ENTITLED DURING THE WAR EMERGENCY BY VIRTUE OF THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, AND WHICH STILL REMAINS TO THE CREDIT OF MANY EMPLOYEES AS AN ACCUMULATION OF LEAVE IN EXCESS OF 60 DAYS ACQUIRED BEFORE THE ACT OF DECEMBER 17, 1942, WAS REPEALED BY THE ACT OF JULY 25, 1947, PUBLIC LAW 239, 80TH CONGRESS, 61 STAT. 449. HENCE, SIMILAR TO THE EMPLOYEES CONSIDERED IN THE SAID DECISION OF SEPTEMBER 17, 1948, EMPLOYEES OF YOUR COMMISSION ARE SUBJECT TO THE SAME REGULATIONS, ETC., AND, TO CERTAIN EXTENT, THE SAME MAXIMUM LEAVE ACCUMULATION LIMITATION AS FEDERAL EMPLOYEES, GENERALLY.

AS STATED IN SENATE REPORT 166, REFERRED TO IN YOUR SUBMISSION, THE ABOVE AMENDMENT OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT EXTENDED TO EMPLOYEES OF YOUR COMMISSION THE MAXIMUM ACCUMULATION ENJOYED BY FEDERAL EMPLOYEES GENERALLY DURING THE EMERGENCY. HOWEVER, IT HAS NOT BEEN HELD THAT FEDERAL EMPLOYEES, GENERALLY, MERELY BY REASON OF THE FACT THAT THEY HAVE AN ANNUAL LEAVE ACCUMULATION IN EXCESS OF 60 DAYS TO THEIR CREDIT, ARE UNDER ANY DIFFERENT LEAVE SYSTEM THAN THOSE EMPLOYEES WHOSE ACCUMULATION IS LIMITED TO 60 DAYS.

ACCORDINGLY, AS THE PROVISIONS OF THE ACT OF MARCH 14, 1936, AND THE REGULATIONS THEREUNDER, ARE FOR APPLICATION TO THE EMPLOYEES OF YOUR COMMISSION WITH THE SOLE EXCEPTION OF THE MAXIMUM AMOUNT WHICH MAY BE ACCUMULATED AFTER JULY 25, 1947, IT MUST BE CONCLUDED THAT THEY ARE UNDER THE SAME ANNUAL LEAVE SYSTEM AS OTHER FEDERAL EMPLOYEES, GENERALLY, AND, UPON SEPARATION OR TRANSFER, OR REEMPLOYMENT AFTER SEPARATION, THE PROVISIONS OF THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, OTHERWISE APPLICABLE TO PERSONS SEPARATED OR TRANSFERRED, OR REEMPLOYED IN POSITIONS SUBJECT TO THE SAME LEAVE ACT, ARE FOR APPLICATION.