A-88384, SEPTEMBER 23, 1937, 17 COMP. GEN. 276

A-88384, SEPTEMBER 23, 1937, 17 COMP. GEN. 276

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - ADVANCES - CIVILIAN CONSERVATION CORPS EMPLOYEES CIVILIAN EMPLOYEES, AS DISTINGUISHED FROM ENROLLEES, OF THE CIVILIAN CONSERVATION CORPS, CREATED BY ACT OF JUNE 28, 1937, 50 STAT. 319, WHOSE COMPENSATION IS PAID FROM FUNDS APPROPRIATED FOR THE PURPOSES OF THE SAID ACT, ARE NOT EMERGENCY EMPLOYEES WITHIN THE MEANING OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS, NOTWITHSTANDING THE LIFE OF THE CORPS IS LIMITED TO THREE YEARS, AND THOSE WHOSE TERMINATION OF EMPLOYMENT IS NOT FIXED IN ADVANCE OR STATED IN THEIR APPOINTMENT OR CONTRACT OF EMPLOYMENT ARE PERMANENT EMPLOYEES FOR LEAVE PURPOSES. 17 COMP. GEN. 179, AMPLIFIED. SECTION 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PRECLUDES THE GRANTING OF LEAVE IN ADVANCE OF THE TIME IT ACCRUES TO PERMANENT EMPLOYEES OF THE CIVILIAN CONSERVATION CORPS, CREATED BY THE ACT OF JUNE 28, 1937, 50 STAT. 319, IN THEIR FIRST SERVICE YEAR, BUT SUCH EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE ARE ENTITLED TO ANNUAL LEAVE IN ACCORDANCE WITH SECTION 2 OF THE LEAVE REGULATIONS PROVIDING FOR ADVANCES OF LEAVE UNDER CERTAIN CIRCUMSTANCES AND CONDITIONS. A DISBURSING OFFICER IS NOT LIABLE FOR THE INDEBTEDNESS OF AN EMPLOYEE BROUGHT ABOUT BY ADVANCES OF SICK OR ANNUAL LEAVE UNLIQUIDATED PRIOR TO SEPARATION FROM SERVICE. SEE 16 COMP. GEN. 755. SUBJECT TO THE TERMS OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, AND THE APPLICABLE PROVISIONS OF THE LEAVE REGULATIONS, THE HEAD OF A DEPARTMENT MAY GRANT UNACCRUED ANNUAL AND SICK LEAVE TO AN EMPLOYEE NOTWITHSTANDING THERE ARE NO RETIREMENT FUND DEPOSITS OR OTHER FUNDS IN THE HANDS OF THE UNITED STATES OUT OF WHICH ANY OVERPAYMENT MIGHT BE RECOUPED. FOR PROCEDURE TO RECOVER PAYMENTS OF COMPENSATION FOR ADVANCES OF LEAVE WHERE EMPLOYEE HAS NO RETIREMENT FUND ACCOUNT SEE 16 COMP. GEN. 755, 757.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR, CIVILIAN CONSERVATION CORPS, SEPTEMBER 23, 1937:

YOUR LETTER OF SEPTEMBER 21, 1937 IS AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR DECISION A-88384 OF AUGUST 21, 1937, IN ANSWER TO MY LETTER OF AUGUST 14, 1937, CONCERNING THE QUESTION OF LEAVE PRIVILEGES FOR CIVILIAN EMPLOYEES (OTHER THAN ENROLLEES) ENGAGED IN CIVILIAN CONSERVATION CORPS WORK UNDER THE ACT OF JUNE 28, 1937, PUBLIC, NO. 163, 75TH CONGRESS, AND THE ACT OF JULY 1, 1937, PUBLIC RESOLUTION NO. 50, 75TH CONGRESS, APPROPRIATING FUNDS TO CARRY INTO EFFECT SAID BASIC ACT.

IT IS REGRETTED THAT YOUR DECISION UNDER DISCUSSION IS NOT FULLY UNDERSTOOD, AND THAT THEREFORE IT BECOMES NECESSARY TO SEEK AT YOUR HANDS A CLARIFICATION THEREOF, AND A FURTHER DECISION ON SEVERAL ADDITIONAL QUESTIONS MORE SPECIFICALLY FRAMED TO ELICIT THE INFORMATION DESIRED WITH RESPECT TO THE LEAVE TO WHICH THE EMPLOYEES IN QUESTION ARE ENTITLED.

IN YOUR DECISION OF AUGUST 21, 1937, YOU STATE THAT THE ANNUAL AND SICK LEAVE ACTS CITED AND THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS "RECOGNIZE ONLY TWO GENERAL CLASSES OF EMPLOYEES FOR LEAVE PURPOSES, NAMELY, PERMANENT AND TEMPORARY.' THIS STATEMENT IS NOT UNDERSTOOD IN VIEW OF SECTION 4 OF PART II OF THE ANNUAL LEAVE REGULATIONS REFERRED TO BY YOU IN WHICH "EMERGENCY EMPLOYEES" AND "EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD" ARE REFERRED TO AS A CLASS OR CLASSES DISTINCT FROM "PERMANENT" AND "TEMPORARY" EMPLOYEES, WITH LEAVE PRIVILEGES SEEMINGLY ON A DIFFERENT BASIS FROM THAT ACCORDED THE TWO OTHER CLASSES.

IN VIEW OF THE ABOVE, AND OF YOUR DECISION OF AUGUST 21, 1937, YOUR FURTHER DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) ARE CIVILIAN EMPLOYEES (OTHER THAN ENROLLEES) ENGAGED ON CIVILIAN CONSERVATION CORPS WORK, WHOSE COMPENSATION IS PAID FROM FUNDS APPROPRIATED BY THE CONGRESS FOR THAT PURPOSE AND WHOSE TERMINATION OF EMPLOYMENT IS NOT FIXED IN ADVANCE OR STATED IN THEIR APPOINTMENT OR CONTRACT OF EMPLOYMENT, PERMANENT OR TEMPORARY EMPLOYEES?

(2) IF THE EMPLOYEES MENTIONED IN (1) ARE NEITHER PERMANENT NOR TEMPORARY, WHAT IS THEIR CLASSIFICATION AND TO WHAT LEAVE PRIVILEGES ARE THEY ENTITLED UNDER THE LEAVE LAWS AND REGULATIONS CITED, SUPRA?

(3) ARE SUCH EMPLOYEES (THOSE MENTIONED IN (1) ABOVE) ENTITLED AS A MATTER OF RIGHT TO ,CURRENT ANNUAL LEAVE" AS DISTINGUISHED FROM "ACCUMULATED LEAVE" AND "CURRENT ACCRUED LEAVE" IN ANY LEAVE YEAR?

(4) IF ENTITLED TO SUCH CURRENT ANNUAL LEAVE (WHICH IS UNDERSTOOD TO INCLUDE "UNACCRUED EAVE"), AND SUCH EMPLOYEES SUBSEQUENTLY DO NOT RENDER SERVICE SO AS TO EARN SUCH "UNACCRUED" LEAVE AS MAY BE GRANTED THEM, WILL A DISBURSING OFFICER MAKING PAYMENT OF COMPENSATION TO SUCH EMPLOYEES DURING ABSENCE ON "UNACCRUED" SICK OR ANNUAL LEAVE BE HELD LIABLE IN THE AUDIT OF HIS ACCOUNTS BY YOUR OFFICE FOR SUCH PAYMENTS AS FOR OVERPAYMENTS?

(5) MAY THE HEAD OF AN EXECUTIVE DEPARTMENT UNDER THE LEAVE REGULATIONS IN QUESTION (SEE PART II, GENERAL PROVISIONS) IN THE EXERCISE OF A SOUND DISCRETION, GRANT SUCH UNACCRUED SICK AND ANNUAL LEAVE WHERE SUCH EMPLOYEE HAS NO RETIREMENT FUND DEPOSITS OR OTHER FUNDS IN THE HANDS OF THE UNITED STATES OUT OF WHICH ANY OVERPAYMENT MIGHT BE RECOUPED, OR WHERE THE INTERESTS OF THE GOVERNMENT WOULD OTHERWISE BE ADVERSELY AFFECTED?

THE BASIS OF THE DECISION OF AUGUST 21, 1937, A-88384, 17 COMP. GEN. 179, FOLLOWING THE HOLDING IN THE DECISION OF APRIL 16, 1937, 16 COMP. GEN. 934, THE SYNOPSIS OF WHICH IS QUOTED THEREIN, IS THAT THE ANNUAL AND SICK LEAVE ACTS AND THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS RECOGNIZE ONLY TWO GENERAL CLASSES OF EMPLOYEES FOR THE PURPOSE OF COMPUTING THE AMOUNT OR RATE OF LEAVE, NAMELY, PERMANENT AND TEMPORARY, AND THAT THE STATUTORY LIMITATION OF 3 YEARS ON THE LIFE OF THE CIVILIAN CONSERVATION CORPS HAS NO BEARING ON THE MATTER. IN OTHER WORDS, THE LIMITATION ON THE LIFE OF THE CIVILIAN CONSERVATION CORPS DOES NOT HAVE THE EFFECT OF CREATING A THIRD CLASS OF EMPLOYEES FOR LEAVE PURPOSES.

SECTION 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS MENTIONED BY YOU PROVIDES AS FOLLOWS:

EMPLOYEES ENTERING THE SERVICE BY ORIGINAL APPOINTMENT OR BY REINSTATEMENT SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCRUING AT THE RATE OF 2 1/6 DAYS FOR EACH MONTH OF SERVICE RENDERED UNTIL THE COMPLETION OF ONE YEAR'S SERVICE. EMERGENCY EMPLOYEES AND EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCURING AT THE RATE OF 2 1/6 DAYS PER MONTH FOR EACH MONTH OF SERVICE, AND MAY IN ADDITION THERETO BE GRANTED ACCUMULATED LEAVE. EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD SHALL INCLUDE THOSE IN THE FIELD SERVICE EMPLOYED AT MANUFACTURING AND REPAIR ESTABLISHMENTS, SUCH AS NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, ARSENALS, ETC.

OF COURSE, THIS REGULATION, WHICH HAS THE EFFECT OF PROHIBITING GRANTING OF ANNUAL LEAVE IN ADVANCE OF THE TIME THE LEAVE ACCRUES, SPECIFICALLY MENTIONS THREE GROUPS OF PERMANENT EMPLOYEES, VIZ., THOSE IN THEIR FIRST YEAR'S SERVICE, EMERGENCY EMPLOYEES, AND EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD.

EMERGENCY EMPLOYEES ARE THOSE WHOSE COMPENSATION IS PAID FROM EMERGENCY FUNDS REQUIRING A LIMITATION ON THE TENURE OF APPOINTMENT. THE FORMER CIVILIAN CONSERVATION CORPS CREATED BY EXECUTIVE ORDER UNDER AUTHORITY OF EMERGENCY LEGISLATION WAS AN EMERGENCY AGENCY AND ITS EMPLOYEES WERE EMERGENCY EMPLOYEES. BUT THE PRESENT CIVILIAN CONSERVATION CORPS CREATED BY THE ACT OF JUNE 28, 1937, IS NOT AN EMERGENCY AGENCY BUT A REGULAR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT CREATED BY STATUTE FOR A PERIOD OF 3 YEARS, AND THE FUNDS PROVIDED THEREFOR BY THE ACT OF JULY 1, 1937, ARE NOT EMERGENCY FUNDS. SEE DECISION OF OCTOBER 8, 1936, A-80867, INVOLVING THE STATUS OF THE RURAL ELECTRIFICATION ADMINISTRATION FIRST CREATED BY EXECUTIVE ORDER AS AN EMERGENCY AGENCY AND LATER CREATED BY THE ACT OF MAY 20, 1936, 49 STAT. 1363, AS A REGULAR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT. HENCE, EMPLOYEES (OTHER THAN ENROLLEES) OF THE PRESENT CIVILIAN CONSERVATION CORPS PAID UNDER SAID APPROPRIATION ARE NOT EMERGENCY EMPLOYEES WITHIN THE MEANING OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS. NEITHER WOULD SAID EMPLOYEES APPEAR TO FALL WITHIN THE GROUP OF "EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD" MENTIONED IN THE REGULATIONS, WHICH GROUP APPEARS TO INCLUDE "THOSE IN THE FIELD SERVICE EMPLOYED AT MANUFACTURING AND REPAIR ESTABLISHMENTS, SUCH AS NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, ARSENALS, ETC.'

THE EMPLOYEES DESCRIBED IN QUESTION (1) ARE PERMANENT EMPLOYEES FOR LEAVE PURPOSES. THIS ALSO ANSWERS QUESTION (2).

REFERRING TO QUESTION (3) IT IS UNDERSTOOD THE TERM "CURRENT ANNUAL LEAVE" MEANS THE ENTIRE 26 DAYS' ANNUAL LEAVE BASED ON THE CURRENT YEAR'S SERVICE, AND THAT YOUR QUESTION IS WHETHER THE EMPLOYEES ARE ENTITLED TO THE ENTIRE AMOUNT OF 26 DAYS' LEAVE FOR THE CURRENT YEAR'S SERVICE IN ADVANCE OF THE MONTH THE LEAVE ACCRUES, AND IN ADDITION THE LEAVE WHICH HAS ACCRUED FOR PRIOR SERVICE. IF THE EMPLOYEES ARE IN THEIR FIRST SERVICE YEAR, THE FIRST SENTENCE OF SECTION 4 OF THE REGULATIONS WOULD PRECLUDE GRANTING OF LEAVE IN ADVANCE OF THE TIME IT ACCRUES. IF THE EMPLOYEES ARE IN THEIR SECOND OR SUBSEQUENT SERVICE YEARS, THERE WOULD APPEAR TO BE FOR APPLICATION THE PROVISIONS OF SECTION 2 OF THE REGULATIONS, AS FOLLOWS:

PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS, AND, IN ADDITION, MAY BE GRANTED ACCUMULATED LEAVE, PROVIDED THAT THE TOTAL LEAVE GRANTED AT ANY TIME DURING A CALENDAR YEAR SHALL NOT EXCEED THE AMOUNT OF THE ACCUMULATED LEAVE AND THE CURRENT ACCRUED LEAVE, EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES EMPLOYEES MAY BE GRANTED BOTH ACCUMULATED AND CURRENT ANNUAL LEAVE.

QUESTION (4) IS ANSWERED IN THE NEGATIVE. 16 COMP. GEN. 755.

QUESTION (5) IS ANSWERED IN THE AFFIRMATIVE, AS TO ANNUAL LEAVE SUBJECT TO THE TERMS OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND AS TO SICK LEAVE, SUBJECT TO THE TERMS OF SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1162), AND THE APPLICABLE PROVISIONS OF THE REGULATIONS. THE FACT THAT A PERMANENT EMPLOYEE IS NOT SUBJECT TO THE RETIREMENT ACT AND HAS NO COMPENSATION DEDUCTIONS TO HIS CREDIT IN THE RETIREMENT FUND DOES NOT PRECLUDE HIM FROM RECEIVING THE FULL BENEFITS OF THE LEAVE STATUTES. FOR THE PROCEDURE TO RECOVER PAYMENTS OF COMPENSATION FOR UNEARNED ANNUAL AND SICK LEAVE WHERE THE EMPLOYEE HAS NO RETIREMENT FUND ACCOUNT, SEE 16 COMP. GEN. 755, 757.