B-136051, JUN 17, 1966

B-136051, JUN 17, 1966

PRECIS-UNAVAILABLE

EDWARD G. BEAGLE, JR., UNITED STATES DEPARTMENT OF THE INTERIOR:

THIS IS IN REPLY TO YOUR LETTER OF MAY 23, 1966, RELATING TO THE ENTITLEMENT OF MR. EDMUND C. GASS, FORMER ASSISTANT EXECUTIVE DIRECTOR OF THE CIVIL WAR CENTENNIAL COMMISSION (CWCC) TO SEVERANCE PAY.

YOUR LETTER INDICATES MR. GASS WAS GIVEN AN EXCEPTED APPOINTMENT AS ASSISTANT EXECUTIVE DIRECTOR OF THE COMMISSION AT THE GS-13 LEVEL ON APRIL 7, 1958, AND CONTINUED IN THAT POSITION UNTIL THE COMMISSION TERMINATED BY LAW ON MAY 1, 1966. DURING THE TERM OF HIS EMPLOYMENT, MR. GASS WAS SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT. AT THE TIME OF THE TERMINATION OF HIS APPOINTMENT HE WAS NOT ELIGIBLE TO RECEIVE AN IMMEDIATE ANNUITY SINCE HE WAS ONLY 59 1/2 YEARS OF AGE AND HAD AT THAT TIME 18 YEARS AND 2 MONTHS OF FEDERAL EMPLOYMENT.

THE CIVIL WAR CENTENNIAL COMMISSION WAS ESTABLISHED PURSUANT TO PUB. L. 85-305, APPROVED SEPTEMBER 7, 1957, 71 STAT. 626. SECTION 6(C) OF THE ACT PROVIDED THAT "A FINAL REPORT SHALL BE MADE TO THE CONGRESS NO LATER THAN MAY 1, 1966, UPON WHICH DATE THE COMMISSION SHALL TERMINATE."

SECTION 6(A) OF PUB. L. 85-305 FURTHER PROVIDED THAT "THE COMMISSION MAY EMPLOY, WITHOUT REGARD TO CIVIL SERVICE LAWS OR THE CLASSIFICATION ACT OF 1949, AN EXECUTIVE DIRECTOR AND SUCH EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS."

AS YOU POINT OUT SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUB. L. 89-301, APPROVED OCTOBER 29, 1965, 79 STAT. 1118, PROVIDES FOR THE PAYMENT OF SEVERANCE PAY. SECTION 9(B)(2) STATES THAT THE ACT DOES NOT APPLY TO AN OFFICER SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION, EXCEPT ONE SO APPOINTED FOR FULL-TIME EMPLOYMENT, WITHOUT A BREAK IN SERVICE OR AFTER A SEPARATION OF THREE DAYS OR LESS, FOLLOWING SERVICE UNDER AN APPOINTMENT WITHOUT TIME LIMITATION.

IN EXECUTIVE ORDER NO. 11257 OF NOVEMBER 17, 1965, THE PRESIDENT DESIGNATED THE CIVIL SERVICE COMMISSION AS THE AGENCY TO PRESCRIBE THE IMPLEMENTING REGULATIONS. THESE REGULATIONS, 550.701 TO 550.708 (ATTACHMENTS TO FPM LTR. 550-13, DATED JANUARY 5, 1966) PROVIDE IN PERTINENT PART AS FOLLOWS:

"SEC. 550.701(B) EMPLOYEES. (1) EXCEPT AS PROVIDED BY SUBPARAGRAPH (2) OF THIS PARAGRAPH AND SECTION 9(B) OF THE ACT, THIS SUBPART APPLIES TO EACH FULL-TIME AND PART-TIME OFFICER AND EMPLOYEE OF A DEPARTMENT, WITH A REGULARLY PRESCHEDULED TOUR OF DUTY WITHIN EACH ADMINISTRATIVE WORKWEEK, AND TO EACH HOURLY OFFICER AND EMPLOYEE IN THE POSTAL FIELD SERVICE, WHO IS SERVING (I) UNDER A CAREER OR CAREER-CONDITIONAL APPOINTMENT IN THE COMPETITIVE SERVICE OR UNDER THEIR EQUIVALENT IN THE EXCEPTED SERVICE; (II) UNDER AN INDEFINITE APPOINTMENT IN THE COMPETITIVE SERVICE MADE UNDER THE INDEFINITE-APPOINTMENT SYSTEM THAT PRECEDED THE CAREER-CONDITIONAL APPOINTMENT SYSTEM; (III) UNDER AN INDEFINITE APPOINTMENT WITHOUT TIME LIMITATION IN THE EXCEPTED SERVICE; (IV) UNDER AN OVERSEAS LIMITED APPOINTMENT WITHOUT TIME LIMITATION; (V) AS A STATUS QUO EMPLOYEE INCLUDING ONE WHO BECOMES AN INDEFINITE EMPLOYEE UPON PROMOTION, DEMOTION, OR REASSIGNMENT

"SEC. 550.702 ENTITLEMENT. THIS SUBPART AND SECTION (9) OF THE ACT APPLY TO THE COMPUTATION AND PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.

"SEC. 550.704(B)(4). (I) FOR ENTITLEMENT TO SEVERANCE PAY UNDER SECTION 9(B)(2) OF THE ACT, THE APPOINTMENT WITHOUT TIME LIMITATION MUST BE ONE OF THE APPOINTMENTS SPECIFIED IN SECTION 550.701(B)(1) AND THE TERMINATION FROM THAT APPOINTMENT MUST HAVE RESULTED FROM AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY. (II) IF AN EMPLOYEE RETAINS ENTITLEMENT TO SEVERANCE PAY UNDER SECTION 9(B)(2) OF THE ACT, 8BASIC COMPENSATION AT THE RATE RECEIVED IMMEDIATELY BEFORE SEPARATION' UNDER SECTION 9(D) OF THE ACT IS THAT BASIC RATE RECEIVED IMMEDIATELY BEFORE THE TERMINATION OF THE APPOINTMENT WITHOUT TIME LIMITATION.

"(D) DETERMINATION OF TWELVE MONTHS CONTINUOUS SERVICE. THE REQUIREMENT OF SECTION 9(E) OF THE ACT IS MET IF THE EMPLOYEE ON THE DATE OF SEPARATION HAS BEEN ON THE ROLLS OF ONE OR MORE DEPARTMENTS UNDER ONE OR MORE APPOINTMENTS WITHOUT TIME LIMITATION, OR TEMPORARY APPOINTMENTS THAT PRECEDE OR FOLLOW AN APPOINTMENT WITHOUT TIME LIMITATION, WITHOUT ANY BREAK IN SERVICE OF MORE THAN THREE CALENDAR DAYS FOR AT LEAST THE PRECEDING TWELVE CALENDAR MONTHS."

UNDER THE FOREGOING STATUTE AND REGULATIONS AN EMPLOYEE TO BE ENTITLED TO SEVERANCE PAY MUST BE SERVING UNDER AN INDEFINITE APPOINTMENT IN THE EXCEPTED SERVICE, UNLESS HIS PRESENT TEMPORARY APPOINTMENT WAS PRECEDED BY AN INDEFINITE APPOINTMENT FROM WHICH HE WAS INVOLUNTARILY SEPARATED. THE RECORD INDICATES THAT MR. GASS WAS SERVING WITH THE CWCC UNDER AN EXCEPTED APPOINTMENT WHICH WOULD TERMINATE ON THE TERMINATION DATE OF THE COMMISSION MAY 1, 1966. THIS WAS AN APPOINTMENT WITH A DEFINITE TIME LIMITATION. THEREFORE, INVOLUNTARY SEPARATION FROM THAT APPOINTMENT DID NOT ENTITLE HIM TO SEVERANCE PAY UNDER THE ABOVE-QUOTED REGULATIONS OF THE CIVIL SERVICE COMMISSION.

WE NOTE THAT MR. GASS PREVIOUSLY SERVED UNDER AN APPOINTMENT (EFFECTIVE JULY 1, 1957) AS ARCHIVIST WITH THE NATIONAL PARK SERVICE AND THAT SUCH APPOINTMENT WAS DESIGNATED AS TEMPORARY PENDING THE ESTABLISHMENT OF A REGISTER. IT IS UNDERSTOOD INFORMALLY FROM THE CIVIL SERVICE COMMISSION THAT MR. GASS IS NOT REGARDED AS HAVING SERVED IN THE NATIONAL PARK SERVICE IN ANY OF THE TYPES OF APPOINTMENTS SPECIFIED IN SECTION 550.701(B)(1). MOREOVER, AS INDICATED ABOVE, SECTION 550.704(B) OF THE REGULATIONS STATE THAT EVEN WHERE A TEMPORARY APPOINTMENT FOLLOWS AN INDEFINITE APPOINTMENT THERE MUST HAVE BEEN AN INVOLUNTARY SEPARATION FROM THE PRIOR INDEFINITE APPOINTMENT FOR ENTITLEMENT TO SEVERANCE PAY UNDER SECTION 9(B)(2) OF THE ACT. HERE, THERE IS NO INDICATION THAT MR. GASS' SEPARATION FROM THE NATIONAL PARK SERVICE - APPARENTLY ON APRIL 6, 1958, TO ACCEPT EMPLOYMENT ON APRIL 7, 1958, WITH THE CIVIL WAR CENTENNIAL COMMISSION - WAS INVOLUNTARY.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF SEVERANCE PAY IN THIS CASE.