B-165791, OCT. 12, 1970

B-165791, OCT. 12, 1970

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - INTERMITTENT EMPLOYEE AUTHORIZING A LUMP-SUM PAYMENT TO C. MITCHELL HALL WHEN APPOINTMENT WAS CHANGED FROM LEAVE EARNING CATEGORY TO INTERMITTENT TEMPORARY APPOINTMENT. EMPLOYEE WHO WAS NOT INFORMED OF ANY DIFFERENT TOUR WHEN HIS FULL TIME APPOINTMENT WAS CHANGED TO TERM INTERMITTENT TEMPORARY APPOINTMENT AND WHO WAS PERMITTED TO WORK THE SAME FULL TIME TOURS OF DUTY MAY BE REGARDED AS HAVING A REGULAR TOUR OF DUTY FOR LEAVE PURPOSES AND THEREFORE A LUMP-SUM LEAVE PAYMENT FOR UNUSED ANNUAL LEAVE TO HIS CREDIT ON DATE OF TERMINATION OF EMPLOYMENT MAY BE AUTHORIZED.

TO MR. ROBERT C. CASSIDY:

THIS REFERS TO YOUR LETTER DATED AUGUST 7, 1970, REQUESTING A DECISION AS TO WHETHER THE CLAIM OF MR. C. MITCHELL HALL FOR A LUMP-SUM LEAVE PAYMENT MAY BE ALLOWED UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

MR. HALL WAS FIRST EMPLOYED IN THE OFFICE OF ECONOMIC OPPORTUNITY EFFECTIVE JANUARY 13, 1965, AS A FULL-TIME CONSULTANT AT $75 PER DAY. AFTER SERVING UNDER SUCCESSIVE TEMPORARY APPOINTMENTS IN WHICH HE APPARENTLY EARNED LEAVE HE RECEIVED A TEMPORARY APPOINTMENT AS AN INTERMITTENT JOB CORPS PROGRAM SPECIALIST, GS-15, STEP 6, EFFECTIVE MAY 1, 1968, NOT TO EXCEED APRIL 30, 1969. IN A MEMORANDUM DATED APRIL 18, 1968, MR. W. P. KELLY, DIRECTOR, JOB CORPS, REQUESTED MR. HALL'S CONTINUED EMPLOYMENT AS AN INTERMITTENT RATHER THAN AS A FULL-TIME EMPLOYEE FOR THE PERIOD MAY 1, 1968, TO MARCH 31, 1969, AND PROPOSED THAT HIS EMPLOYMENT IN THE FISCAL YEAR 1968 WOULD NOT EXCEED 8 DAYS NOR WOULD IT EXCEED 100 DAYS DURING THE FISCAL YEAR 1969. HOWEVER, NO LIMITATION AS TO THE MAXIMUM HOURS OR AGGREGATE EARNINGS UNDER THE APPOINTMENT WAS CONTAINED IN THE PERSONNEL ACTION. (FORM NO. 50).

MR. HALL ASSERTS THAT HE DID NOT KNOW, NOR DID ANY OFFICIAL OF THE OFFICE OF ECONOMIC OPPORTUNITY ADVISE HIM, THAT BY VIRTUE OF HIS TEMPORARY INTERMITTENT APPOINTMENT HE WOULD NOT EARN LEAVE AND OTHER BENEFITS NORMALLY ASSOCIATED WITH FULL-TIME EMPLOYMENT. YOU SAY YOU ARE SATISFIED THAT MR. HALL NEVER RECEIVED A COPY OF MR. KELLY'S MEMORANDUM OF APRIL 18, 1968, DURING THE PERIOD OF HIS EMPLOYMENT.

DURING THE PERIOD MAY 1, 1968, THROUGH APRIL 18, 1969, MR. HALL WAS PERMITTED TO WORK FULL TIME AND WAS PAID FOR 52 HOURS SICK LEAVE, 274 HOURS ANNUAL LEAVE, 64 HOURS FOR HOLIDAYS AND 18 HOURS ADMINISTRATIVE LEAVE, FOR A TOTAL OF 408 HOURS OR $2,964. HE WAS NOT PAID A LUMP SUM FOR HIS ACCRUED ANNUAL LEAVE EARNED UNDER PRIOR APPOINTMENTS AMOUNTING TO $1,647.28. ACCORDINGLY, BY LETTER DATED JANUARY 20, 1970, HE WAS REQUESTED TO REFUND THE DIFFERENCE OF $1,316.72 SINCE AS AN INTERMITTENT EMPLOYEE HE WAS NOT ENTITLED TO EARN OR USE ANNUAL OR SICK LEAVE NOR TO BE PAID FOR ADMINISTRATIVE LEAVE OR HOLIDAYS ON WHICH NO WORK WAS PERFORMED.

THE ONLY INDICATION THAT MR. HALL'S APPOINTMENT, EFFECTIVE MAY 1, 1968, WAS ANY DIFFERENT FROM HIS PRECEDING APPOINTMENTS WAS THE USE OF THE WORD "INTERMITTENT" AND HIS SALARY WAS CHANGED FROM A PER DIEM RATE TO AN ANNUAL RATE AS A GS-15, STEP 6. HE WAS NOT PAID A LUMP SUM FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT WHICH ORDINARILY OCCURS WHEN AN EMPLOYEE GOES FROM A POSITION IN WHICH HE EARNS LEAVE TO AN INTERMITTENT POSITION WITHOUT A SCHEDULED TOUR OF DUTY. HE WAS PERMITTED TO WORK FULL TIME AND WAS GRANTED ANNUAL, SICK, HOLIDAY AND ADMINISTRATIVE LEAVE AS THOUGH HE WAS A FULL-TIME EMPLOYEE WITHOUT LOSS OF PAY. THIS WAS DONE EVEN THOUGH HIS "EARNING AND LEAVE STATEMENT" DID NOT SHOW HIM EARNING LEAVE DURING THE PERIOD IN QUESTION NOR DID THE LEAVE BALANCE SHOWN THEREON ADJUST TO REFLECT ANY USE OF LEAVE.

WHILE THE WORDS USED IN AN EMPLOYEE'S APPOINTMENT GENERALLY CONTROL THE TYPE OF HIS APPOINTMENT WE HAVE IN CERTAIN CASES LOOKED TO THE CIRCUMSTANCES OF ACTUAL EMPLOYMENT TO DETERMINE HIS RIGHTS AND BENEFITS. SINCE MR. HALL WAS NOT INFORMED OF ANY DIFFERENT TOUR OF DUTY, AND WAS PERMITTED TO WORK THE SAME FULL-TIME SCHEDULE AS OTHER EMPLOYEES, HE IS TO BE REGARDED AS HAVING A REGULAR TOUR OF DUTY FOR LEAVE PURPOSES. CF. B- 166056, AUGUST 12, 1970, COPY ENCLOSED.

ACCORDINGLY, UPON ADJUSTMENT OF HIS LEAVE ACCOUNT, MR. HALL MAY BE PAID A LUMP-SUM PAYMENT FOR ANY UNUSED ANNUAL LEAVE TO HIS CREDIT ON APRIL 18, 1969.