B-137894, NOVEMBER 21, 1958, 38 COMP. GEN. 386

B-137894, NOVEMBER 21, 1958, 38 COMP. GEN. 386

LEAVES OF ABSENCE - LUMP-SUM LEAVE PAYMENTS - POSITIONS EXEMPT FROM THE LEAVE ACT THE RESIGNATION OF A MEMBER OF THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA WHO HAD ACCRUED ANNUAL LEAVE TO HIS CREDIT WHEN THE POSITION WAS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AND HIS APPOINTMENT, WITHOUT A BREAK IN SERVICE, AS COMMISSIONER OF THE DISTRICT OF COLUMBIA--- A POSITION ALSO EXEMPT FROM THE ACT--- IS NOT A SEPARATION FROM THE SERVICE FOR ENTITLEMENT TO A LUMP-SUM LEAVE PAYMENT UNDER 5 U.S.C. 2061A (A); HOWEVER, A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT AT THE TIME THE PUBLIC UTILITIES COMMISSION POSITION WAS EXEMPTED FROM THE ACT MAY BE MADE UPON SEPARATION FROM HIS PRESENT OFFICE WITH A BREAK IN SERVICE, OR THE LEAVE MAY BE RECREDITED UPON EMPLOYMENT WITHOUT A BREAK IN SERVICE IN A POSITION SUBJECT TO THE ACT.

TO A. R. PILKERTON, GOVERNMENT OF THE DISTRICT OF COLUMBIA, NOVEMBER 21, 1958:

YOUR LETTER OF NOVEMBER 10, 1958, ENCLOSING A VOUCHER FOR $975.74 REPRESENTING A PROPOSED LUMP-SUM PAYMENT FOR ACCUMULATED LEAVE TO THE CREDIT OF HONORABLE ROBERT E. MCLAUGHLIN, MEMBER OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, REQUESTS OUR DECISION WHETHER THAT VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

PRIOR TO HIS APPOINTMENT AS COMMISSIONER ON JUNE 2, 1955, MR. MCLAUGHLIN SERVED AS A MEMBER OF THE PUBLIC UTILITIES COMMISSION FROM MAY 19, 1953. HIS APPOINTMENT AS COMMISSIONER WAS WITHOUT BREAK IN SERVICE FROM HIS FORMER OFFICE. NEITHER OF THESE OFFICES WAS EXEMPTED FROM THE APPLICATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, BY VIRTUE OF THE AMENDMENT OF SECTION 202 OF THAT ACT BY ADDITION OF SUBSECTION (C) (1) (A) OF PUBLIC LAW 102, APPROVED JULY 2, 1953, 5 U.S.C. 2061 (C) (1) (A), SINCE THE BASIC COMPENSATION OF SUCH OFFICES DID NOT EXCEED THE MAXIMUM RATE PROVIDED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED.

BY EXECUTIVE ORDER NO. 10540, DATED JUNE 22, 1954, HOWEVER, THE PRESIDENT UNDER AUTHORITY OF SUBSECTION (C) (1) (C) OF PUBLIC LAW 102, 5 US.C. 2061 (C) (1) (C), DESIGNATED BOTH OFFICES AS EXEMPT FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING AFTER THE DATE OF THE ORDER. THUS, WHEN MR. MCLAUGHLIN RESIGNED FROM THE OFFICE OF MEMBER, BOARD OF COMMISSIONERS, BOTH OFFICES WERE EXEMPT FROM THE LEAVE ACT.

YOU URGE THAT MR. MCLAUGHLIN'S RESIGNATION FROM ONE OFFICE AND APPOINTMENT TO THE OTHER, EVEN THOUGH WITHOUT BREAK IN SERVICE, WAS A SEPARATION FROM THE SERVICE WITHIN THE PURVIEW OF THE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61A-61E, SUCH AS TO WARRANT A LUMP-SUM PAYMENT UNDER AUTHORITY OF SECTION 2 (A) OF PUBLIC LAW 102, 5 U.S.C. 2061A (A), FOR LEAVE ACCUMULATED BY HIM AS A MEMBER OF THE PUBLIC UTILITIES COMMISSION. IN THAT REGARD YOU RELY UPON OUR DECISION OF FEBRUARY 2, 1954, B-118260.

IN OUR DECISION B-118260, THE OFFICER CONCERNED RESIGNED FROM HIS POSITION AS ASSISTANT CORPORATION COUNSEL OF THE DISTRICT OF COLUMBIA TO ACCEPT AN APPOINTMENT WITHOUT BREAK IN SERVICE, AS JUDGE IN THE MUNICIPAL COURT. WE RULED THAT THE OFFICER WAS ENTITLED TO A LUMP-SUM PAYMENT UPON HIS SEPARATION FROM THE OFFICE OF ASSISTANT CORPORATION COUNSEL. OUR CONCLUSION IN THAT DECISION WAS BASED UPON SEVERAL FACTORS WHICH ARE NOT PRESENT HERE.

IN THE CITED CASE WE COULD FIND NO STATUTORY AUTHORITY FOR TRANSFERRING THE OFFICER'S LEAVE CREDIT TO HIS NEW OFFICE OF JUDGE OR FOR RECREDITING OR PAYING A LUMP SUM FOR SUCH LEAVE UPON HIS SEPARATION FROM THAT OFFICE. THUS, HAD A LUMP-SUM PAYMENT FOR LEAVE NOT BEEN MADE UPON HIS SEPARATION FROM THE OFFICE OF ASSISTANT CORPORATION COUNSEL, THE OFFICER WOULD HAVE LOST HIS LEAVE, CONTRARY TO THE EXPRESS INTENT AND PURPOSE OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY PUBLIC LAW 102.

MR. MCLAUGHLIN WILL BE ENTITLED TO A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT AT THE TIME HIS OFFICE AS MEMBER OF THE PUBLIC UTILITIES COMMISSION WAS EXEMPTED BY EXECUTIVE ORDER, WHEN HE SEPARATES FROM HIS PRESENT OFFICE WITH A BREAK IN SERVICE, OR TO A RECREDIT OF SUCH LEAVE SHOULD HE, WITHOUT A BREAK IN SERVICE, ENTER UPON EMPLOYMENT IN A POSITION SUBJECT TO THE LEAVE ACT. IN THE CIRCUMSTANCES RELATED ABOVE WE MAY NOT REGARD THE CHANGE OF MR. MCLAUGHLIN'S OFFICE ON JUNE 2, 1955, AS A SEPARATION WITHIN THE PURVIEW OF THE ACT OF DECEMBER 21, 1944, AND CONSEQUENTLY, WE MAY NOT AUTHORIZE A LUMP-SUM PAYMENT TO HIM AT THIS TIME. COMPARE 33 COMP. GEN. 177; ALSO, B-127589, APRIL 27, 1956, A COPY OF WHICH IS ENCLOSED.

THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH BUT IN THE LIGHT OF THE FOREGOING IT MAY NOT PROPERLY BE CERTIFIED FOR PAYMENT.