B-126762, MAY 11, 1956, 35 COMP. GEN. 638

LEAVES OF ABSENCE - ANNUAL - ACCRUAL - NINETY OFFICERS AND EMPLOYEES OF THE SENATE AND HOUSE OF REPRESENTATIVES WHO ARE SPECIFICALLY EXCLUDED FROM ACCRUAL OF LEAVE PROVIDED IN THE ANNUAL AND SICK LEAVE ACT OF 1951 ARE NOT ENTITLED, ON TRANSFER TO AN EXECUTIVE DEPARTMENT, TO CREDIT FOR THE CONGRESSIONAL SERVICE TOWARD THE 90-DAY QUALIFYING PERIOD FOR ANNUAL LEAVE PRESCRIBED IN SECTION 203 (I) OF THE ACT. EXPERTS AND CONSULTANTS WHO DO NOT HAVE REGULARLY SCHEDULED TOURS OF DUTY ARE EXCLUDED FROM BENEFITS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AND, THEREFORE, WHEN THEIR APPOINTMENTS ARE CHANGED TO REGULAR TOURS OF DUTY THE PRIOR SERVICE MAY NOT BE CREDITED TOWARD THE 90-DAY QUALIFYING PERIOD PRESCRIBED IN SECTION 203 (I) OF THE ACT. AN EMPLOYEE WHO IS ENTITLED TO AN ANNUAL LEAVE CREDIT ADJUSTMENT ON TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM PURSUANT TO SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 MAY HAVE THE TIME SERVED UNDER THE FIRST POSITION CREDITED TOWARD THE 90-DAY QUALIFYING PERIOD FOR ANNUAL LEAVE AFTER TRANSFER.

TO THE SECRETARY OF COMMERCE, MAY 11, 1956:

ON JANUARY 20, 1956, THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTED OUR DECISION AS TO WHETHER CERTAIN TYPES OF SERVICES ARE CREDITABLE TOWARD COMPLETION OF THE 90-DAY QUALIFYING PERIOD PRESCRIBED BY SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062, BEFORE AN EMPLOYEE MAY BE GRANTED LEAVE.

THE TYPES OF SERVICES INQUIRED ABOUT ARE EMBODIED IN THE THREE QUESTIONS PRESENTED, AS FOLLOWS:

1. SERVICE AS AN OFFICER OR EMPLOYEE OF THE SENATE OR HOUSE OF REPRESENTATIVES RENDERED PRIOR TO TRANSFER TO THE DEPARTMENT WITHOUT BREAK IN SERVICE.

2. SERVICE AS AN EXPERT OR CONSULTANT SERVING ON AN INTERMITTENT BASIS WITHOUT A REGULAR TOUR OF DUTY, RENDERED IMMEDIATELY PRIOR TO THE CHANGE TO A REGULAR TOUR OF DUTY IN WHICH LEAVE IS EARNED.

3. SERVICE IN A POSITION SUBJECT TO A DIFFERENT LEAVE SYSTEM RENDERED PRIOR TO TRANSFER TO THE DEPARTMENT WITHOUT BREAK IN SERVICE, WHERE THE LEAVE EARNED IN THE PREVIOUS POSITION IS TRANSFERRED IN ACCORDANCE WITH SECTION 205 (E) OF THE LEAVE ACT.

THE DELAY IN RENDERING OUR DECISION ON THE QUESTIONS SUBMITTED WAS OCCASIONED BY OUR REQUEST UPON THE UNITED STATES CIVIL SERVICE COMMISSION FOR A REPORT CONCERNING THE MATTER.

SECTION 202 (B) (1) (H) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061, PROVIDES THAT THAT TITLE SHALL NOT APPLY TO VARIOUS SPECIAL GROUPS INCLUDING "OFFICERS AND EMPLOYEES OF THE SENATE AND HOUSE OF REPRESENTATIVES.' SECTION 203 (I) OF THE ACT, 65 STAT. 681, PROVIDES---

(I) NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A), AN OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS TITLE ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITH BREAK IN SERVICE. IN ANY CASE IN WHICH AN OFFICER OR EMPLOYEE COMPLETES A PERIOD OF CONTINUOUS EMPLOYMENT OF NINETY DAYS THERE SHALL BE CREDITED TO HIM AN AMOUNT OF ANNUAL LEAVE EQUAL TO THE AMOUNT WHICH, BUT FOR THIS SUBSECTION, WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) DURING SUCH PERIOD.

SECTION 203 (I) SUSPENDS ANY CREDIT FOR ANNUAL LEAVE "UNDER THIS TITLE" UNTIL THE EMPLOYEE SHALL HAVE BEEN EMPLOYED CONTINUOUSLY FOR A PERIOD OF 90 DAYS. THE CONCLUSION IS REQUIRED THAT THE 90-DAY EMPLOYMENT PERIOD MUST BE IN A POSITION NOT EXCLUDED FROM THE ACCRUAL OF LEAVE UNDER SECTION 202 OF THAT ACT UNLESS SUCH POSITION BE ONE IN WHICH LEAVE IS TRANSFERABLE UNDER SECTION 205 OF THE ACT, 5 U.S.C. 2064. SEE ANSWER TO QUESTION 3 HEREIN. IT FOLLOWS THEREFORE THAT TIME SERVED AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES SENATE OR HOUSE OF REPRESENTATIVES MAY NOT BE ALLOWED AS CREDIT TOWARD THE 90-DAY QUALIFYING PERIOD. QUESTION 1 IS ANSWERED IN THE NEGATIVE.

IN 31 COMP. GEN. 125, WE HELD, QUOTING FROM THE SYLLABUS:

UNDER THE PROVISIONS OF SECTION 202 (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, EXCLUDING FROM THE LEAVE BENEFITS UNDER THE ACT PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH WORKWEEK, EMPLOYEES WITH WHEN ACTUALLY- EMPLOYED APPOINTMENTS WHOSE REGULAR TOUR OF DUTY HAS NOT BEEN PRESCRIBED IN ADVANCE ARE NOT ENTITLED TO THE LEAVE BENEFITS OF THE ACT EVEN THOUGH THEY MIGHT ACTUALLY WORK FULL TIME FOR LONG PERIODS.

COMPARE 31 COMP. GEN. 581 (5TH PARAGRAPH OF THE SYLLABUS.)

IN LIGHT OF OUR HOLDING QUOTED ABOVE WE ARE REQUIRED TO ANSWER QUESTION 2 IN THE NEGATIVE.

SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SECTION 4 (B) OF THE ACT OF JULY 2, 1953, 67 STAT. 138, 5 U.S.C. 2064, PROVIDES:

4 (B) (E). IN THE CASE OF TRANSFER OF AN OFFICER OR EMPLOYEE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS (OTHER THAN TRANSFERS INVOLVING POSITIONS EXEMPTED UNDER SECTION 202 (B) (1) (B), (C), OR (H) (, WITHOUT A BREAK IN SERVICE, THE ANNUAL AND SICK LEAVE TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE SHALL BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS IN ACCORDANCE WITH THE REGULATIONS TO BE PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

SINCE, UNDER THE PROVISIONS QUOTED, THE LEAVE EARNED UNDER A DIFFERENT LEAVE SYSTEM IS NOT EXCLUDED FROM CREDIT ON AN ADJUSTED BASIS WHEN THE EMPLOYEE IS TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM IT FOLLOWS THAT THE TIME SERVED UNDER THE FIRST POSITION REFERRED TO IN QUESTION 3 MAY BE CREDITED TOWARD THE 90-DAY QUALIFYING PERIOD AFTER A TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM WITHOUT A BREAK IN SERVICE.