B-248434, May 26, 1992, 71 Comp.Gen. 411

B-248434, May 26, 1992, 71 Comp.Gen. 411

CIVILIAN PERSONNEL - Leaves Of Absence - Lump-sum payments - Administrative agencies - Liability - Eligibility The Copyright Royalty Tribunal is obligated to make the lump-sum annual leave due a retiring Commissioner. Although none of the leave was earned at the Tribunal because the Commissioner is a presidential appointee serving in a position in the legislative branch not subject to the Annual and Sick Leave Act, he has leave to his credit carried over from service in a prior position in another agency. An employee's right to a lump-sum payment for accrued annual leave vests upon the employee's separation from the federal service, and it is the employing agency at the time of separation that must pay the employee for accrued annual leave to the employee's credit at the time of separation notwithstanding that the leave was earned in another agency.

Presidential Appointees-- Lump-Sum Annual Leave:

The Chairman of the Copyright Royalty Tribunal asks whether the Tribunal is responsible for making payment from the Tribunal's funds to a retiring Commissioner for his accrued annual leave, even though none of the leave was earned during the Commissioner's tenure at the Tribunal. The answer is yes.

BACKGROUND

The Tribunal is an independent agency in the legislative branch composed of three Commissioners appointed by the President, by and with the advice and consent of the Senate. 17 U.S.C. Sec. 801 and 802 (1988), as amended. As the Chairman notes, we have held that, as presidential appointees in the legislative branch, under 5 U.S.C. 6301(2)-(xiii), the Commissioners are not subject to the Annual and Sick Leave Act and do not accrue annual leave. See 61 Comp.Gen. 586 (1982). We have also held that presidential appointees who have accrued annual leave to their credit through other federal service and who move to the presidentially appointed position without a break in service, do not forfeit that leave. Rather, the appointee's accrued leave remains to the appointee's credit to serve as the basis for a lump-sum payment when he or she is separated from the federal service or it is recredited to him or her upon return to a position covered by the leave law. 5 U.S.C. Sec. 5551; Joseph F. Friedkin, B-223225, July 29, 1986. /1/

At the time of his appointment to the Tribunal, the Commissioner in question had been serving in a Senior Executive Service position at ACTION, an executive branch agency, and had a balance of 246 hours of annual leave that has been carried to his credit on Tribunal records for the 7 years since his appointment as a Commissioner. The Chairman states that the question of payment of the Commissioner's lump-sum annual leave from the Tribunal's funds had not previously arisen, and therefore, at the time the Commission requested funding on which its 1992 appropriation was based, funds for this expense payment were not included. Consequently, the Tribunal does not have funds available for this purpose, and the Chairman therefore asks what options are available if the Commission is responsible for payment.

OPINION

The entitlement to a lump-sum payment for current and accrued annual leave vests upon an employee's separation from the federal service, and it is the employing agency at the time of separation that is responsible for the payment, including payment for hours of leave accrued at other agencies. 5 U.S.C. Sec. 5551(a); Priscilla M. Worrell, 68 Comp.Gen. 548 (1989). See also, Federal Personnel Manual Supp. No. 990-2, Letter 630-28 (Jan. 16, 1981).

The only difference for presidential appointees is that during the tenure of their appointments, the annual leave they accrued as employees remains credited to them, and, if, upon leaving that appointment, they separate from the federal service, payment for the leave is based on the rate of pay the appointee was receiving immediately before the date of the presidential appointment. 5 U.S.C. Sec. 5551(b); and 40 Comp.Gen. 579 (1961).

Therefore, although the retiring Commissioner did not accrue annual leave while serving on the Tribunal, the Tribunal is responsible for the lump- sum payment for the annual leave the Commissioner accrued in other positions in the federal service and had to his credit at the time he received the presidential appointment.

Regarding the Chairman's concern that the Tribunal may not have sufficient funds in its budget for this payment, we note that the agency is operating under a lump-sum appropriation for "necessary expenses" of $865,000 for fiscal year 1992. Pub.L. No. 102-90, 105 Stat. 463, Aug. 14, 1991. Although the Tribunal may have submitted a line-by-line budget request to Congress that did not include funds for this payment, that would not restrict the Commission from using any of its lump-sum appropriation for this purpose. LTV Aerospace Corporation, 55 Comp.Gen. 307 (1975); Forest Service, B-231711, Mar. 28, 1989. In other words, the Tribunal may make the leave payment from any part of its fiscal year 1992 appropriation that remains unobligated. If sufficient funds do not remain unobligated, the alternative would be to request that additional funds be appropriated.

/1/ The Friedkin case and those cited therein concerned officers in the executive branch or the District of Columbia excluded from the leave law under 5 U.S.C. Sec. 6302(2) (x)-(xii). However, the basis for those holdings would apply likewise to a legislative branch officer excluded under section 6301(2)(xiii).