B-106704, MARCH 4, 1953, 32 COMP. GEN. 387

B-106704, MARCH 4, 1953, 32 COMP. GEN. 387

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - REFUNDS UPON REEMPLOYMENT IN TEMPORARY POSITION AFTER BREAK IN SERVICE AN EMPLOYEE WHO RECEIVES A LUMP-SUM PAYMENT FOR ANNUAL LEAVE AND WHO IS REEMPLOYED--- EVEN IN A TEMPORARY POSITION FOR LESS THAN 90 DAYS AFTER SEPARATION FROM A PRIOR POSITION FOR ONE OR MORE WORKDAYS--- IS REQUIRED TO REFUND THE UNEXPIRED PORTION OF THE LUMP-SUM LEAVE PAYMENT AND BE CREDITED WITH THE LEAVE WHICH WILL BE AVAILABLE FOR USE DURING THE PERIOD OF REEMPLOYMENT. 31 COMP. GEN. 215, MODIFIED IN PART.

COMPTROLLER GENERAL WARREN TO THE ACTING CHAIRMAN AND EXECUTIVE DIRECTOR, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 4, 1953:

REFERENCE IS MADE TO OFFICE DECISION OF DECEMBER 14, 1951, 31 COMP. GEN. 215, TO THE FORMER CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, CONCERNING SEVERAL QUESTIONS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, EFFECTIVE JANUARY 6, 1952, 65 STAT. 679.

THIS OFFICE RECENTLY HAS RECEIVED A LETTER FROM SENATOR OLIN D. JOHNSTON, A MEMBER AND FORMER CHAIRMAN OF THE SENATE POST OFFICE AND CIVIL SERVICE COMMITTEE, WHEREIN HE URGES RECONSIDERATION OF THE CONCLUSIONS REACHED IN THE ABOVE-MENTIONED DECISION WITH RESPECT TO EMPLOYEES WHO ARE SEPARATED FROM POSITIONS FOR ONE OR MORE WORKDAYS AND THEN REEMPLOYED UNDER TEMPORARY APPOINTMENTS FOR LESS THAN 90 DAYS--- MORE SPECIFICALLY, THE ANSWER TO QUESTION 6 (B).

IN THE AFORESAID DECISION IT WAS HELD THAT, UNDER THE LUMP SUM LEAVE ACT OF 1944, 58 STAT. 845, AN EMPLOYEE WHO RECEIVED A TEMPORARY APPOINTMENT FOR LESS THAN 90 DAYS AFTER A BREAK IN SERVICE OF ONE OR MORE WORKDAYS, WOULD NOT BE REQUIRED TO MAKE REFUND FOR THE UNEXPIRED PORTION OF THE LUMP -SUM LEAVE PAYMENT RECEIVED IN THE PRIOR POSITION.

THAT CONCLUSION ENABLED THE DEPARTMENTS AND AGENCIES TO APPOINT EMPLOYEES TO TEMPORARY POSITIONS FOR SHORT PERIODS UP TO 90 DAYS AFTER THEY HAD BEEN SEPARATED FROM PERMANENT POSITIONS WITHOUT THE NECESSITY OF PROCESSING THE PAPER WORK INCIDENT TO THE REFUND OF PAYMENT FOR THE UNEXPIRED PORTION OF THE ANNUAL LEAVE ACCRUED BY SUCH EMPLOYEES IN THEIR PERMANENT POSITIONS. IT HAS BEEN BROUGHT TO ATTENTION THAT SUCH RULE POSSIBLY COULD BE THE SUBJECT OF ABUSE IN THAT ADMINISTRATIVE OFFICES MIGHT USE IT AS AN INSTRUMENT TO AVOID ASSUMING THE BURDEN OF ANNUAL LEAVE ACCUMULATED BY EMPLOYEES IN PRIOR POSITIONS EVEN WHEN THEY KNOW THE EMPLOYEE'S SERVICES ARE NEEDED FOR MORE THAN 90 DAYS. THAT IS ACCOMPLISHED BY SEPARATING THE EMPLOYEE FROM THE TEMPORARY APPOINTMENT LIMITED TO LESS THAN 90 DAYS UPON EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT IN HIS PRIOR POSITION AND THEN REINSTATING HIM IN A PERMANENT OR INDEFINITE POSITION AFTER A BREAK IN SERVICE OF ONE OR TWO DAYS FROM THE TEMPORARY POSITION. LIKEWISE, IT IS POSSIBLE THAT DEPARTMENTS OR AGENCIES MIGHT, BY THE USE OF THE SAME METHOD, UNDERTAKE TO MAKE PAYMENTS TO EMPLOYEES FOR LEAVE WHICH THEY OTHERWISE WOULD BE REQUIRED TO FORFEIT BY REASON OF SECTIONS 203 (C) AND (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, OR OF SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1953, 66 STAT. 418.

THE REFERRED TO HOLDING IN THE DECISION OF DECEMBER 14, 1951, WAS INTENDED, OF COURSE, TO APPLY ONLY IN CASES OF BONA FIDE APPOINTMENTS FOR LESS THAN 90 DAYS.

THE MATTER HAS BEEN FURTHER CONSIDERED AND IT IS FELT THAT THERE IS A SUBSTANTIAL LEGAL BASIS FOR THE CONCLUSION REACHED IN THE DECISION OF DECEMBER 14, 1951. HOWEVER, ON THE OTHER HAND, A STRICT CONSTRUCTION OF THE LANGUAGE OF THE LUMP-SUM LEAVE ACT OF 1944--- REQUIRING A REFUND ON ACCOUNT OF UNEXPIRED LEAVE BY EMPLOYEES WHEN REEMPLOYED UNDER THE SAME LEAVE SYSTEM--- EQUALLY WARRANTS THE VIEW THAT, IN CASES SUCH AS THOSE HERE INVOLVED, A REFUND IS REQUIRED DESPITE THE FACT THAT AN EMPLOYEE WILL ACCRUE NO ADDITIONAL LEAVE UNDER HIS TEMPORARY APPOINTMENT. THIS SEEMS PARTICULARLY SO SINCE THE ANNUAL AND SICK LEAVE ACT OF 1951 WAS INTENDED TO PLACE ALL EMPLOYEES COVERED THEREBY UNDER THE SAME LEAVE SYSTEM REGARDLESS OF THE TYPE OR TENURE OF THEIR APPOINTMENT.

ACCORDINGLY, IN ORDER TO PREVENT DEPARTMENTS AND AGENCIES FROM AVOIDING RESTRICTIONS ON APPROPRIATIONS OR ON THE ACCUMULATION OF LEAVE, YOU ARE ADVISED THAT, ON AND AFTER THE DATE OF THIS DECISION, A REFUND WILL BE REQUIRED OF THE UNEXPIRED PORTION OF THE LUMP-SUM LEAVE PAYMENT RECEIVED BY AN EMPLOYEE WHO IS REEMPLOYED IN A TEMPORARY POSITION FOR LESS THAN 90 DAYS AFTER SEPARATION OF ONE OR MORE WORKDAYS FROM A PRIOR POSITION. COURSE, THE EMPLOYEE UNDER SUCH CIRCUMSTANCES WOULD BE ENTITLED TO A RECREDIT OF THE ANNUAL LEAVE REPRESENTED BY THE REFUND WHICH WOULD BE AVAILABLE FOR USE DURING THE TEMPORARY EMPLOYMENT PERIOD. THE ANSWER TO QUESTION 6 (B) IN DECISION OF DECEMBER 14, 1951, SUPRA, IS MODIFIED TO THAT EXTENT.