B-98189, SEPTEMBER 29, 1950, 30 COMP. GEN. 128

B-98189: Sep 29, 1950

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IS TO BE CONSIDERED AS A PERMANENT RESTRICTION NOT ONLY UPON THE FUNDS MADE AVAILABLE THEREBY BUT ALSO UPON PAYMENTS FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND NOT USED BY JULY 1. WHILE THE TERM "ACCUMULATED LEAVE" GENERALLY MEANS THE AMOUNT OF UNUSED LEAVE AN EMPLOYEE IS ENTITLED TO AT THE END OF A CALENDAR YEAR. THE TERM "ANNUAL LEAVE ACCUMULATED" AS USED THEREIN IS TO BE CONSIDERED AS REFERRING TO ANNUAL LEAVE EARNED AND UNUSED DURING THE CALENDAR YEAR 1950 AND AS HAVING NO EFFECT ON THE ACCUMULATED LEAVE TO AN EMPLOYEE'S CREDIT ON JANUARY 1. IS A FURTHER RESTRICTION UPON EXISTING RIGHTS OF CIVILIAN OFFICERS AND EMPLOYEES TO ACCUMULATE ANNUAL LEAVE. IS TO PERMIT FULL EFFECT TO BE GIVEN THE RIGHT OF SUCH EMPLOYEES TO ELECT UNDER EXISTING LAW TO RECEIVE A LUMP-SUM PAYMENT FOR THEIR UNUSED ANNUAL LEAVE OR TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT AND AT THE SAME TIME SAVE EMPLOYEES FROM LOSING ANNUAL LEAVE THEY WERE PRECLUDED FROM USING PRIOR TO JULY 1.

B-98189, SEPTEMBER 29, 1950, 30 COMP. GEN. 128

LEAVES OF ABSENCE - ANNUAL - ACCUMULATION - EFFECT OF PROHIBITION IN GENERAL APPROPRIATION ACT, 1951 THE PROHIBITION IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, UPON THE EXPENDITURE OF FUNDS FOR PAYMENT FOR 1950 ANNUAL LEAVE ACCRUALS UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, IS TO BE CONSIDERED AS A PERMANENT RESTRICTION NOT ONLY UPON THE FUNDS MADE AVAILABLE THEREBY BUT ALSO UPON PAYMENTS FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND NOT USED BY JULY 1, 1951, AND APPLIES WITH EQUAL FORCE TO LUMP-SUM LEAVE PAYMENTS AND SALARY PAYMENTS TO EMPLOYEES IN AN ANNUAL LEAVE STATUS. WHILE THE TERM "ACCUMULATED LEAVE" GENERALLY MEANS THE AMOUNT OF UNUSED LEAVE AN EMPLOYEE IS ENTITLED TO AT THE END OF A CALENDAR YEAR, IN VIEW OF THE PROHIBITION IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, UPON PAYMENTS FOR ANNUAL LEAVE ACCUMULATED DURING 1950 AND UNUSED BY JUNE 30, 1951, CLEARLY RELATING TO ADDITIONAL ACCUMULATIONS AT THE END OF THE CALENDAR YEAR 1950, THE TERM "ANNUAL LEAVE ACCUMULATED" AS USED THEREIN IS TO BE CONSIDERED AS REFERRING TO ANNUAL LEAVE EARNED AND UNUSED DURING THE CALENDAR YEAR 1950 AND AS HAVING NO EFFECT ON THE ACCUMULATED LEAVE TO AN EMPLOYEE'S CREDIT ON JANUARY 1, 1950. THE PROHIBITION IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, UPON THE EXPENDITURE OF FUNDS FOR PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED BY JULY 1, 1951, IS A FURTHER RESTRICTION UPON EXISTING RIGHTS OF CIVILIAN OFFICERS AND EMPLOYEES TO ACCUMULATE ANNUAL LEAVE, SO THAT ANY ANNUAL LEAVE ACCUMULATED BY AN EMPLOYEE ON DECEMBER 31, 1950, IN EXCESS OF THE MAXIMUM LIMITATION PERMITTED UNDER CURRENT LEAVE LAWS WOULD BE FORFEITED ON JANUARY 1, 1951, EVEN THOUGH THE EMPLOYEE HAD NOT USED ALL HIS ANNUAL LEAVE EARNED IN 1950. THE PURPOSE OF THE SECOND PROVISO OF SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, EXEMPTING EMPLOYEES UPON ACTIVE SERVICE IN THE ARMED FORCES FROM THE PROHIBITION UPON THE EXPENDITURE OF FUNDS FOR THE PAYMENT FOR 1950 LEAVE ACCRUALS UNUSED BY JULY 1, 1951, IS TO PERMIT FULL EFFECT TO BE GIVEN THE RIGHT OF SUCH EMPLOYEES TO ELECT UNDER EXISTING LAW TO RECEIVE A LUMP-SUM PAYMENT FOR THEIR UNUSED ANNUAL LEAVE OR TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT AND AT THE SAME TIME SAVE EMPLOYEES FROM LOSING ANNUAL LEAVE THEY WERE PRECLUDED FROM USING PRIOR TO JULY 1, 1951, DUE TO ENTRY INTO THE MILITARY SERVICE; BUT SAID PROVISO WOULD HAVE NO EFFECT UPON THE RIGHTS OF AN EMPLOYEE ENTERING THE SERVICE AFTER THAT DATE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 29, 1950:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1950, REQUESTING A DECISION UPON SEVERAL QUESTIONS WHICH YOU STATE HAVE BEEN PRESENTED TO YOUR COMMISSION RELATIVE TO THE APPLICATION OF SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, PUBLIC LAW 759, APPROVED SEPTEMBER 6, 1950, 64 STAT. 768. THE SAID SECTION PROVIDES:

NO PART OF THE FUNDS OF, OR AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY INCLUDED IN THIS ACT, INCLUDING THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE ACCUMULATED BY ANY CIVILIAN OFFICER OR EMPLOYEE DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951; PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO OFFICERS AND EMPLOYEES WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES: AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY WITH RESPECT TO THE PAYMENT OF COMPENSATION FOR ACCUMULATED ANNUAL LEAVE IN THE CASE OF OFFICERS OR EMPLOYEES WHO LEAVE THEIR CIVILIAN POSITIONS FOR THE PURPOSE OF ENTERING UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE SERVICE IN THE ARMED FORCES OF THE UNITED STATES.

THE QUESTIONS PRESENTED WILL BE ANSWERED IN THE ORDER STATED IN YOUR LETTER---

(1). (A) DOES THIS PROHIBIT THE USE OF ANY FUNDS AT ANY TIME AFTER JUNE 30, 1951, BY ANY AGENCY MENTIONED IN THE ACT, TO PAY FOR ANNUAL LEAVE WHICH WAS EARNED IN 1950 AND NOT USED BY JUNE 30, 1951 (WITH THE EXCEPTION OF THE LEAVE COVERED BY THE TWO PROVISOS/? IN OTHER WORDS, WILL EMPLOYEES IN GENERAL HAVE TO USE AT LEAST TWENTY-SIX DAYS OF ANNUAL LEAVE DURING THE PERIOD FROM JANUARY 1, 1950 THROUGH JUNE 30, 1951, OR LOSE THE RIGHT TO PAYMENT FOR THAT PART OF THE TWENTY-SIX DAYS WHICH IS NOT SO USED? (B) OR, AS HAS BEEN SUGGESTED IN SEVERAL QUARTERS, IS THE PROHIBITION ON USE OF FUNDS LIMITED TO CONTINUING APPROPRIATIONS WHICH CARRY OVER FROM THE FISCAL YEAR 1951 INTO THE SUCCEEDING FISCAL YEAR OR YEARS? THE IDEA BEHIND THIS LATTER SUGGESTION APPEARS TO BE THAT THE PROHIBITION WOULD APPLY ONLY TO FUNDS WHICH ARE APPROPRIATED BY THE 1951 APPROPRIATION ACT OR WHICH ARE AVAILABLE ON THE DATE OF THIS ACT. (C) DOES THE PROHIBITION ON THE USE OF FUNDS TO PAY FOR LEAVE, WHERE APPLICABLE, APPLY BOTH TO LUMP -SUM PAYMENTS AND TO SALARY PAYMENTS WHILE EMPLOYEES ARE ABSENT ON LEAVE, OR ONLY TO LUMP-SUM PAYMENTS?

THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE ABOVE-QUOTED PROVISION OF LAW IS "TO PREVENT THE ACCUMULATION OF ANNUAL LEAVE DURING THE PRESENT CALENDAR YEAR," QUOTING FROM PAGE 10 OF HOUSE REPORT NO. 1797, ACCOMPANYING H.R. 7786, WHICH BECAME THE PRESENT LAW. FROM A STUDY OF THE LEGISLATIVE HISTORY THERE IS NO REASONABLE BASIS FOR ANY CONCLUSION OTHER THAN THAT THE CONGRESS INTENDED TO PREVENT GOVERNMENT EMPLOYEES FROM INCREASING THE AMOUNT OF ANNUAL LEAVE THAT HAD ACCUMULATED TO THEM ON JANUARY 1, 1950, BY ANY ANNUAL LEAVE WHICH ACCRUED TO THEM DURING THE CALENDAR YEAR 1950.

THE LANGUAGE OF SECTION 1212, SUPRA, DOES NOT LIMIT THE PROHIBITION UPON EXPENDITURES OF FUNDS MADE AVAILABLE BY PUBLIC LAW 759. ON THE CONTRARY, IT RELATES SPECIFICALLY TO "FUNDS OF, OR AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY INCLUDED IN THIS ACT.' THUS, THE PROVISION, WHEN VIEWED IN THE LIGHT OF THE PURPOSE SOUGHT TO BE ACCOMPLISHED THEREBY, MUST BE CONSIDERED AS A PERMANENT RESTRICTION UPON PAYMENTS FOR ANNUAL LEAVE EARNED BY CIVILIAN OFFICERS OR EMPLOYEES OF THE GOVERNMENT DURING THE CALENDAR YEAR 1950 AND UNUSED BY JULY 1, 1951--- SUBJECT TO THE ANSWER TO QUESTION NO. 3, INFRA.

ACCORDINGLY, SUBPART (A) OF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND SUBPART (B) THEREOF IS ANSWERED IN THE NEGATIVE. WITH RESPECT TO SUBPART (C), THE PROHIBITION IS AGAINST THE EXPENDITURE OF FUNDS FOR THE PAYMENT OF 1950 LEAVE ACCRUALS UNUSED JUNE 30, 1951, AND, THEREFORE, APPLIES WITH EQUAL FORCE TO LUMP-SUM PAYMENTS AND SALARY PAYMENTS WHILE EMPLOYEES ARE IN AN ANNUAL LEAVE STATUS.

2. DOES SECTION 1212 HAVE ANY EFFECT ON ACCUMULATED LEAVE WHICH EMPLOYEES ALREADY HAD TO THEIR CREDIT ON JANUARY 1, 1950, THAT IS, LEAVE WHICH WAS EARNED IN PRIOR YEARS? APPARENTLY THE REASON FOR THIS QUESTION IS THE WORD "ACCUMULATED" IN THE PHRASE "ANNUAL LEAVE ACCUMULATED * * * DURING THE CALENDAR YEAR 1950.' ACCUMULATED LEAVE IS GENERALLY UNDERSTOOD AS LEAVE BROUGHT FORWARD AT THE BEGINNING OF A YEAR FROM PRIOR YEARS, WHILE THE LEAVE EARNED DURING THE CURRENT YEAR IS GENERALLY REFERRED TO AS ACCRUED LEAVE. WE BELIEVE THE WORD "ACCUMULATED" IN THE QUOTED PHRASE IS USED IN ITS ORDINARY ENGLISH SENSE AND IS INTENDED TO REFER TO LEAVE EARNED OR ACCRUED IN 1950.

THE TERM "ACCUMULATED LEAVE" GENERALLY HAS BEEN VIEWED AS THE AMOUNT OF UNUSED LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT THE END OF A CALENDAR YEAR. HOWEVER, SINCE THE SAID SECTION 1212 CLEARLY RELATES TO ADDITIONAL ACCUMULATIONS AT THE END OF THE CALENDAR YEAR 1950, IT APPEARS THAT THE TERM ,ANNUAL LEAVE ACCUMULATED" AS USED THEREIN IS INTENDED TO REFER TO ANNUAL LEAVE EARNED AND UNUSED DURING THE CALENDAR YEAR 1950. QUESTION NO. 2 IS ANSWERED IN THE NEGATIVE.

3. DOES SECTION 1212 INCREASE THE MAXIMUM AMOUNT OF ANNUAL LEAVE WHICH MAY BE CARRIED FORWARD BY AN EMPLOYEE INTO 1951? AN EMPLOYEE WHO BROUGHT FORWARD SIXTY DAYS' ACCUMULATED ANNUAL LEAVE ON JANUARY 1, 1950, COULD NOT UNDER THE ANNUAL LEAVE LAW CARRY FORWARD MORE THAN SIXTY DAYS INTO THE CALENDAR YEAR 1951. WOULD SECTION 1212 PERMIT SUCH AN EMPLOYEE WHO USED LESS THAN HIS CURRENT ACCRUAL (TWENTY-SIX DAYS) IN 1950 TO ADD SUCH UNUSED LEAVE TO HIS ACCUMULATION AND CARRY MORE THAN SIXTY DAYS INTO THE CALENDAR YEAR 1951, THAT IS, GIVE HIM AN ADDITIONAL SIX MONTHS IN WHICH TO USE THE UNUSED LEAVE EARNED IN 1950 BEFORE IT WOULD BE FORFEITED? THE IDEA OF SUCH A POSSIBILITY APPEARS TO HAVE BECOME SOMEWHAT WIDESPREAD.

AS HERETOFORE INDICATED IT WAS THE LEGISLATIVE INTENT THAT THE PROVISIONS OF SECTION 1212 PLACE A FURTHER RESTRICTION UPON EXISTING RIGHTS OF GOVERNMENT EMPLOYEES TO ACCUMULATE ANNUAL LEAVE. HENCE, ANY CONSTRUCTION WHICH WOULD RESULT IN EVEN A TEMPORARY ENLARGEMENT OF SUCH RIGHTS BEYOND THE MAXIMUM LIMITATIONS IMPOSED BY THE CURRENT LEAVE LAWS CLEARLY WOULD BE CONTRARY TO THE SPIRIT OF THE SAID SECTION. ACCORDINGLY, IN ANSWER TO QUESTION NO. 3 YOU ARE ADVISED THAT ANY ANNUAL LEAVE ACCUMULATED BY AN EMPLOYEE ON DECEMBER 31, 1950, IN EXCESS OF THE MAXIMUM LIMITATION PERMITTED UNDER EXISTING LAW WOULD BE FORFEITED ON JANUARY 1, 1951.

4. UNDER EXISTING LAW, EMPLOYEES WHO ENTER MILITARY SERVICE MAY ELECT TO BE PAID IN LUMP SUM FOR ALL THEIR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, OR TO HAVE IT REMAIN TO THEIR CREDIT. (A) DOES THE SECOND PROVISO PERMIT EMPLOYEES WHO ENTER THE ARMED FORCES BEFORE JULY 1, 1951, TO ELECT TO HAVE REMAIN TO THEIR CREDIT UNUSED ANNUAL LEAVE WHICH WAS EARNED IN 1950, AND UPON THEIR RETURN TO HAVE SUCH LEAVE RESTORED TO THEIR CREDIT WITH NO RESTRICTION ON ITS USE OR PAYMENT? (B) DOES IT PERMIT THE SIMILAR RECREDITING OF UNUSED LEAVE EARNED IN 1950 TO EMPLOYEES WHO ENTER THE ARMED FORCES AFTER JUNE 30, 1951?

AN EMPLOYEE WHO ENTERS INTO ACTIVE SERVICE IN THE ARMED FORCES IS ENTITLED UNDER EXISTING LAW TO RECEIVE A LUMP-SUM PAYMENT FOR HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE OR TO HAVE SUCH LEAVE REMAIN TO THIS CREDIT AS HE MAY ELECT. THE AMOUNT OF SUCH PAYMENT OR CREDIT, AS THE CASE MAY BE, OF COURSE, IS DETERMINED BY THE AMOUNT OF ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT ON THE DATE HE ENTERS THE ARMED FORCES. THEREFORE, THE ONLY EFFECT ON THE SECOND PROVISO OF SECTION 1212, EXEMPTING SUCH EMPLOYEES FROM THE PROVISIONS OF THE SAID SECTION, IS TO PERMIT FULL EFFECT TO BE GIVEN THE RIGHT OF ELECTION AND AT THE SAME TIME SAVE THE EMPLOYEE FROM LOSING ANNUAL LEAVE WHICH HE WAS PRECLUDED FROM USING PRIOR TO JULY 1, 1951, BECAUSE OF ENTRY INTO THE MILITARY SERVICE. QUESTION 4 (A) IS ANSWERED IN THE AFFIRMATIVE.

THE SAID PROVISO WOULD HAVE NO EFFECT UPON THE RIGHTS OF AN EMPLOYEE WHO ENTERED THE SERVICE AFTER JULY 1, 1951. SENATOR CORDON ASKED SUBSTANTIALLY THE SAME QUESTION AS YOUR QUESTION 4 (B) ON THE FLOOR OF THE SENATE AND SENATOR GURNEY, WHO OFFERED THE PROVISO AS AN AMENDMENT, ANSWERED IN THE NEGATIVE BY STATING (P. 11532, CONG. REC., JULY 31, 1950):

MR. PRESIDENT, THE PURPOSE IS NOT TO GIVE THE PRIVILEGE THE SENATOR FROM OREGON HAS MENTIONED, BUT ONLY TO PERMIT THE PAYMENT OF ACCUMULATED LEAVE IN CASE SUCH A PERSON JOINS THE ARMED SERVICES AT ANY TIME BETWEEN NOW AND JUNE 30, 1951.