B-57538, AUGUST 28, 1946, 26 COMP. GEN. 143

B-57538, AUGUST 28, 1946, 26 COMP. GEN. 143

LEAVES OF ABSENCE - PART TIME EMPLOYEES THE DESCRIPTION OF APPOINTEES UNDER CIVIL SERVICE SCHEDULE A-1-6 NOT HAVING BEEN CHANGED BY THE COMMISSION TO INCLUDE, IN ADDITION TO THOSE "WHOSE DUTIES REQUIRE ONLY A PORTION OF HIS TIME, OR WHOSE SERVICES ARE NEEDED FOR VERY BRIEF PERIODS AT INTERVALS," APPOINTEES WHOSE APPOINTMENTS CONTEMPLATE CONTINUOUS EMPLOYMENT FOR PERIODS OF ONE MONTH OR MORE, EMPLOYEES APPOINTED UNDER SUCH SCHEDULE WILL CONTINUE TO BE REGARDED AS PART TIME OR INTERMITTENT EMPLOYEES WITHIN THE MEANING OF THE EXCLUSION PROVISIONS OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS AND AS SUCH ARE NOT ENTITLED TO LEAVE UNDER THE LEAVE ACTS OF MARCH 14, 1936. 25 COMP. GEN. 796, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, AUGUST 28, 1946:

I HAVE YOUR LETTER OF AUGUST 6, 1946, AS FOLLOWS:

IN YOUR DECISION B-57538 OF MAY 22, 1946, (25 COMP. GEN. 796) ADDRESSED TO W. R. FRANCE, AUTHORIZED CERTIFYING OFFICER OF THIS DEPARTMENT, IT WAS HELD THAT EMPLOYEES APPOINTED UNDER SCHEDULE A-1-6 DO NOT EARN ANNUAL LEAVE. THE DECISION APPEARS TO HAVE BEEN BASED UPON THE CONCLUSION THAT EMPLOYEES SO APPOINTED NECESSARILY ARE CLASSIFIED AS PART-TIME OR INTERMITTENT EMPLOYEES.

WE NOTE THAT IN THE FACTS PRESENTED FOR YOUR CONSIDERATION, THE EMPLOYEE WAS APPOINTED UNDER LETTER OF AUTHORITY WITH A LIMITATION NOT TO EXCEED 20 WORKING DAYS PER MONTH. SUCH A LIMITATION ORDINARILY WOULD PERMIT HIM TO WORK ONLY A PORTION OF ANY MONTH. POSSIBLE EXCEPTIONS ARE FOUND IN THE MONTHS OF FEBRUARY AND JUNE OF 1946, AND FEBRUARY AND NOVEMBER OF 1947, IN WHICH MONTHS, BY REASON OF THE 5-DAY WORK WEEK NOW IN EFFECT, THE 20-DAY PERIOD COULD BE INCLUSIVE OF THE ENTIRE WORK MONTH. UNDER SUCH A LIMITATION IT IS CLEAR THAT, WITH THE POSSIBLE EXCEPTIONS INDICATED ABOVE, THE EMPLOYEE'S APPOINTMENT WAS LIMITED TO "DEFINITE PORTIONS OF EACH * * * MONTH" AND THEREFORE MIGHT BE CONSIDERED A PART-TIME APPOINTMENT.

WE RECOGNIZE AS WELL ESTABLISHED THE PRINCIPLE THAT EMPLOYEES WHO ACTUALLY COME WITHIN THE CATEGORY OF PART-TIME OR INTERMITTENT EMPLOYEES ARE NOT ENTITLED TO LEAVE RIGHTS UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND REGULATIONS ISSUED PURSUANT THERETO. THIS DEPARTMENT BELIEVES, HOWEVER, THAT THE PROVISIONS OF SCHEDULE A-1-6 SHOULD NOT BE CONSTRUED AS REQUIRING THAT PERSONS APPOINTED UNDER THOSE PROVISIONS SHALL BE CONSIDERED IN ALL CASES TO BE PART-TIME OR INTERMITTENT EMPLOYEES. SCHEDULE A-1-6 APPOINTEE, IS DEFINED IN THE CIVIL SERVICE REGULATIONS AS:

"ANY PERSON RECEIVING * * * SALARY COMPENSATION AGGREGATING NOT MORE THAN $648 PER ANNUM WHOSE DUTIES REQUIRE ONLY A PORTION OF HIS TIME, OR WHOSE SERVICES ARE NEEDED FOR VERY BRIEF PERIODS AT INTERVALS * * *"

IT WILL BE OBSERVED THAT THE SCHEDULE A-1-6 APPOINTMENT IS NOT SPECIFICALLY DESIGNATED AS ,PART-TIME" OR "INTERMITTENT.' SUCH POSITIONS ARE DEFINED IN 18 COMP. GEN. 457, 460 AS FOLLOWS:

"APPOINTMENTS FOR SERVICE LIMITED TO DEFINITE PORTIONS OF EACH DAY, WEEK, OR MONTH, FOLLOWED BY SERVICE IN ACCORDANCE WITH SUCH APPOINTMENTS, ARE TO BE CONSIDERED PART-TIME EMPLOYEES ENTITLED TO NO LEAVE. INTERMITTENT EMPLOYMENTS CONSIST OF SERVICES UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS NONE OF WHICH EXTEND FOR A FULL CALENDAR MONTH. SHOULD SERVICE UNDER SUCH AN APPOINTMENT COVER A CONTINUOUS PERIOD OF 1 MONTH, THE EMPLOYEE WOULD BECOME ENTITLED TO LEAVE AS A TEMPORARY EMPLOYEE.' ITALICS SUPPLIED)

FOLLOWING THOSE DEFINITIONS IT WOULD SEEM THAT IN ORDER FOR THE SCHEDULE A-1-6 PROVISION TO BE CONSTRUED AS PERMITTING ONLY PART-TIME OR INTERMITTENT APPOINTMENTS, IT WOULD BE NECESSARY NOT ONLY TO INTERPRET THE PHRASE "ONLY A PORTION OF HIS TIME" AS NEVER EMBRACING A PORTION OF THE YEAR EQUIVALENT TO OR IN EXCESS OF ONE MONTH, BUT ALSO TO INTERPRET THE ALTERNATE PHRASE "VERY BRIEF PERIODS AT INTERVALS" AS BEING EXCLUSIVE OF ANY PERIODS OF SERVICE OF A MONTH OR MORE IN DURATION. SUCH AN INTERPRETATION DOES NOT APPEAR TO BE JUSTIFIED IN VIEW OF THE FACT THAT THE AGGREGATE COMPENSATION LIMITATION SPECIFIED IN THE SCHEDULE A-1-6 PROVISION, NAMELY $648 (PRESUMEDLY NOW INCREASED IN ACCORDANCE WITH THE FEDERAL EMPLOYEES PAY ACT OF 1946), WOULD PERMIT EMPLOYEES APPOINTED AT LOW RATES UNDER THE SCHEDULE TO SERVE CONTINUOUS PERIODS CONSIDERABLY IN EXCESS OF A MONTH. FURTHERMORE, IT WOULD SEEM TO BE INEQUITABLE FOR AN EMPLOYEE APPOINTED UNDER THE SCHEDULE TO SERVE CONTINUOUS PERIODS CONSIDERABLY IN EXCESS OF A MONTH. FURTHERMORE, IT WOULD SEEM TO BE INEQUITABLE FOR AN EMPLOYEE APPOINTED UNDER THE SCHEDULE NOT TO EARN LEAVE IF HE HAPPENS TO WORK FOR A MONTH AT A TIME WITHOUT A BREAK IN SERVICE, WHEN A TEMPORARY EMPLOYEE APPOINTED FOR A TWO-MONTH PERIOD MAY EARN 5 DAYS' ANNUAL LEAVE.

THE LIMITATION OF 20 WORK DAYS PER MONTH FOR SCHEDULE A-1-6 EMPLOYEES IN THIS DEPARTMENT WAS NOT IMPOSED UNDER ANY REQUIREMENT CONTAINED IN THE CIVIL SERVICE RULES AND REGULATIONS. IT WAS REQUIRED BY THIS DEPARTMENT OF ITS OWN ACCORD AS A MEANS OF GENERAL CONTROL. IT IS NOT, HOWEVER, A TRUE LIMITATION, SINCE IT IS ALWAYS WAIVED WHEN THE EXIGENCIES OF THE WORK MAKE IT NECESSARY FOR EMPLOYEES TO WORK EVERY DAY DURING A MONTH. IN VIEW OF THE ABOVE, WE SHOULD LIKE TO BE ADVISED WHETHER (1) A SCHEDULE A-1-6 EMPLOYEE WHOSE WORKING TIME IS NOT LIMITED TO ANY DEFINITE NUMBER OF WORKING DAYS EACH MONTH MAY EARN LEAVE IF HE IS IN AN ACTIVE DUTY STATUS FOR 30 CALENDAR DAYS WITHOUT A BREAK, AND (2) SHOULD A SCHEDULE A-1-6 EMPLOYEE WHO WAS ON THE ROLL OF THIS DEPARTMENT FOR THE CALENDAR MONTH OF JUNE 1946 AND WHO PERFORMED SERVICES THE FULL TIME OF EACH OF THE 20 WORKING DAYS IN THAT MONTH BE CREDITED WITH LEAVE AS A TEMPORARY EMPLOYEE EVEN THOUGH HIS APPOINTMENT CONTAINED THE 20 WORKING DAYS LIMITATION REFERRED TO ABOVE.

QUESTION 1 IN THE DECISION OF MAY 22, 1946, B-57538, 25 COMP. GEN. 796, TO MR. W. R. FRANCE, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE, DEPARTMENT OF AGRICULTURE, WAS STATED AS FOLLOWS:

DOES AN EMPLOYEE APPOINTED UNDER LETTER OF AUTHORITY UNDER SCHEDULE A-1-6 WITH A LIMITATION ,NOT TO EXCEED 20 WORKING DAYS PER MONTH" EARN SICK OR ANNUAL LEAVE IF THE 20 WORKING DAYS PERMITTED ACTUALLY CONSTITUTE EVERY WORKING DAY IN A PARTICULAR MONTH. OUR QUESTION ON THIS POINT ARISES IN VIEW OF YOUR DECISIONS 18 COMP. GEN. 457, 1001.

AFTER QUOTING PERTINENT PORTIONS OF CIVIL SERVICE SCHEDULE A-1-6, AND SECTION 6.1 OF THE ANNUAL LEAVE REGULATIONS, THE QUESTION WAS ANSWERED, AS FOLLOWS:

AS INDICATED IN THE DECISIONS OF THIS OFFICE CITED IN YOUR SUBMISSION, 18 COMP. GEN. 457, AND 1001, EMPLOYEES APPOINTED TO POSITIONS WHICH DO NOT CALL FOR FULL-TIME SERVICE AND WHO ARE NOT PAID FULL-TIME RATES ARE CONSIDERED PART-TIME EMPLOYEES AND ARE NOT ENTITLED TO ANNUAL LEAVE. SCHEDULE A-1-6 OF THE CIVIL SERVICE RULES AND REGULATIONS, SUPRA, PRESCRIBES THE CONDITIONS UNDER WHICH APPOINTMENTS UNDER THAT EXCEPTION TO THE CIVIL SERVICE RULES AND REGULATIONS MAY BE MADE. AS THIS EMPLOYEE WAS APPOINTED UNDER THAT SCHEDULE IT MUST BE PRESUMED THAT THE CONDITIONS UNDER WHICH EMPLOYED WERE IN ACCORDANCE WITH THE PROVISIONS OF SUCH SCHEDULE. ACCORDINGLY, THE INVOLVED EMPLOYEE MUST BE CONSIDERED AS A PART -TIME OR INTERMITTENT EMPLOYEE AND AS SUCH IS NOT ENTITLED TO LEAVE OR TO PAYMENT THEREFOR. QUESTION 1 IS ANSWERED IN THE NEGATIVE. * * *

THE MAXIMUM OR AGGREGATE SALARY NAMED IN SCHEDULE A-1-6 IS FOR APPLICATION TO THE ENTIRE SERVICE WHICH MAY BE RENDERED IN ANY ONE YEAR UNDER SUCH AN EXCEPTED APPOINTMENT AND THE FACT THAT THAT AMOUNT MIGHT BE SUFFICIENT TO COVER THE REGULAR COMPENSATION OF A LOW SALARIED EMPLOYEE CONTINUOUSLY EMPLOYED IN EXCESS OF ONE MONTH AFFORDS NO BASIS FOR HOLDING THAT SUCH CONTINUOUS EMPLOYMENT IS CONTEMPLATED BY THE SCHEDULE. FURTHERMORE, THERE WOULD SEEM TO BE A SUBSTANTIAL BASIS FOR DOUBT WHETHER SUCH CONTINUOUS EMPLOYMENT WOULD NOT BE IN VIOLATION OF THE CIVIL SERVICE RULE UNDER WHICH APPOINTED. ACCORDINGLY, IN THE ABSENCE OF ACTION BY THE UNITED STATES CIVIL SERVICE COMMISSION CHANGING THE DESCRIPTION OF APPOINTMENTS UNDER SCHEDULE A-1-6, QUOTED IN YOUR LETTER TO INCLUDE POSITIONS CONTEMPLATING CONTINUOUS EMPLOYMENT FOR PERIODS OF ONE MONTH OR MORE, THIS OFFICE SEES NO REASON FOR MAKING ANY CHANGE IN THE DECISION OF MAY 22, 1946. HENCE, ON THE PRESENT STATE OF THE RECORD, THE QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.