B-4443, JULY 7, 1939, 19 COMP. GEN. 14

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TRANSFERS - INTERVENING PROJECT EMPLOYMENT WHERE, IMMEDIATELY PRIOR TO APPOINTMENT IN THE PUBLIC WORKS ADMINISTRATION, EMPLOYEE WAS A PROJECT WORKER--- NOT A CIVILIAN EMPLOYEE OF THE UNITED STATES--- AND THEREFORE WAS EXEMPTED FROM LEAVE PRIVILEGES UNDER SECTION 19 (E) OF THE UNIFORM ANNUAL LEAVE REGULATIONS, HE WAS NOT ENTITLED TO BE CREDITED WITH ANNUAL LEAVE EARNED DURING A PRIOR PERIOD IN AN ADMINISTRATIVE POSITION FROM WHICH HE WAS TRANSFERRED DIRECTLY TO THE PROJECT WORK, THE REGULATIONS PROVIDING FOR TRANSFER OF ACCRUED LEAVE ONLY UPON TRANSFER WITHOUT "BREAK IN SERVICE," AND AN ADMINISTRATIVE ORDER OF THE WORKS PROGRESS ADMINISTRATION STATE ADMINISTRATOR TO THE EFFECT THAT AN ADMINISTRATIVE EMPLOYEE DOES NOT FORFEIT LEAVE UPON TRANSFER TO A PROJECT PAY ROLL, IS UNAUTHORIZED.

COMPTROLLER GENERAL BROWN TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, JULY 7, 1939:

I HAVE YOUR LETTER OF JUNE 17, 1939, AS FOLLOWS:

THERE ARE ATTACHED COPIES OF THE CORRESPONDENCE PERTAINING TO THE REQUEST OF OSCAR W. FARMER, A PROJECT AUDITOR'S ASSISTANT WITH THIS ADMINISTRATION, FOR THE TRANSFER OF 53 DAYS AND 3 HOURS OF ANNUAL LEAVE EARNED WHILE EMPLOYED WITH THE WORKS PROGRESS ADMINISTRATION.

MR. FARMER'S EMPLOYMENT WITH THE WORKS PROGRESS ADMINISTRATION IMMEDIATELY PRIOR TO HIS APPOINTMENT TO THE PUBLIC WORKS ADMINISTRATION WAS ON A PROJECT IN CONNECTION WITH WHICH NO LEAVE WAS EARNED, THE POSITION BEING EXCEPTED FROM THE PROVISIONS OF THE ANNUAL LEAVE REGULATIONS BY SECTION 19 (E). AS THE POSITION DID NOT APPEAR TO BE A PERMANENT POSITION WITHIN THE PURVIEW OF SECTION 6 OF THE REGULATIONS, THE EMPLOYEE WAS INFORMED THAT THE TRANSFER OF THE LEAVE WAS NOT AUTHORIZED AND HIS REQUEST WAS DECLINED.

THE LEAVE WAS EARNED WHILE EMPLOYED IN AN ADMINISTRATIVE POSITION IMMEDIATELY PRIOR TO THE TRANSFER TO A PROJECT POSITION ON WHICH NO LEAVE WAS EARNED. THERE WAS NO BREAK IN SERVICE BETWEEN THE EMPLOYMENT ON THE ADMINISTRATIVE POSITION, THE PROJECT POSITION, AND THE POSITION IN THE PUBLIC WORKS ADMINISTRATION.

IT WILL BE NOTED FROM THE ATTACHED CORRESPONDENCE THAT MR. FARMER WAS INFORMED THAT THE LEAVE WOULD BE AVAILABLE IF HE WERE AGAIN EMPLOYED IN AN ADMINISTRATIVE CAPACITY WITH THE WORKS PROGRESS ADMINISTRATION, AND IF THIS IS CORRECT IT WOULD APPEAR THAT THE LEAVE COULD BE CREDITED TO THE EMPLOYEE'S RECORD WITH THIS ADMINISTRATION.

YOUR DECISION IS REQUESTED AS TO WHETHER THE TRANSFER OF THE LEAVE EARNED IN THE ADMINISTRATIVE POSITION WITH THE WORKS PROGRESS ADMINISTRATION IS AUTHORIZED, NOTWITHSTANDING THERE INTERVENED EMPLOYMENT ON A PROJECT POSITION EXCEPTED FROM THE APPLICATION OF THE ANNUAL LEAVE REGULATIONS.

IT IS UNDERSTOOD THAT MR. FARMER HAD ACQUIRED 53 DAYS, 3 HOURS ANNUAL LEAVE WHILE SERVING IN AN ADMINISTRATIVE POSITION WITH THE WORKS PROGRESS ADMINISTRATION UP TO SEPTEMBER 12, 1938, WHEN HE WAS TRANSFERRED OR ASSIGNED AS A WORKER (TIMEKEEPER) ON A PROJECT OF THE WORKS PROGRESS ADMINISTRATION, DURING WHICH SERVICE IT IS ALLEGED NO LEAVE WAS EARNED, AND THAT HE HAS SINCE (DATE NOT SHOWN) BEEN TRANSFERRED OR APPOINTED TO THE ADMINISTRATIVE POSITION, PROJECT AUDITOR'S ASSISTANT, WITH THE PUBLIC WORKS ADMINISTRATION, EACH ASSIGNMENT OR TRANSFER BEING WITHOUT BREAK IN SERVICE.

SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938, PROVIDES AS FOLLOWS:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORKDAYS.

THIS REGULATION IS APPLICABLE IN THIS CASE TO PRESERVE THE LEAVE ONLY IF IT MAY BE HELD THAT THERE WAS NO "BREAK IN SERVICE" WITH REFERENCE TO THE POSITION OF CIVILIAN EMPLOYEE OF THE UNITED STATES CARRYING A STATUS ENTITLING HIM TO LEAVE BETWEEN THE TIME ENDING SEPTEMBER 12, 1938, WHEN THE LEAVE IN QUESTION WAS EARNED, AND THE TIME OF TRANSFER OR APPOINTMENT AS AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION; THAT IS, WHETHER THE PERIOD OF SERVICE AS A PROJECT WORKER DURING WHICH NO LEAVE IS ALLEGED TO HAVE BEEN EARNED, BROKE THE CONTINUITY OF SERVICE WITHIN THE PURVIEW OF THE QUOTED EXECUTIVE ORDER.

DOUBT IN THE CASE HAS ARISEN BY REASON OF AN ADMINISTRATIVE ORDER OF THE WORKS PROGRESS ADMINISTRATION STATE ADMINISTRATOR FOR TEXAS, WHEREIN IT IS PROVIDED AS FOLLOWS:

AN EMPLOYEE WHO EARNS LEAVE DURING THE PERIOD HE IS CARRIED ON THE ADMINISTRATIVE PAY ROLL WILL NOT FORFEIT THE UNUSED PORTION OF THAT LEAVE IN BEING TRANSFERRED TO THE PROJECT PAY ROLL. UPON THE TERMINATION OF HIS SERVICES ON THE PROJECT, HE WILL RE RETURNED TO THE ADMINISTRATIVE PAY ROLL AT HIS FORMER CLASSIFICATION FOR A SUFFICIENT LENGTH OF TIME TO COMPENSATE HIM FOR HIS UNUSED ACCRUED ANNUAL LEAVE.

THERE APPEARS NOTHING IN THE ANNUAL LEAVE ACT OR IN THE UNIFORM ANNUAL LEAVE REGULATIONS TO AUTHORIZE SUCH AN ADMINISTRATIVE ORDER. A PERIOD OF SERVICE IN ANY CAPACITY OTHER THAN AS A CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DURING WHICH NO LEAVE IS EARNED, OR A PERIOD OF SERVICE IN A TEMPORARY POSITION, INTERVENING BETWEEN TWO PERIODS OF SERVICE IN A PERMANENT OR EMERGENCY POSITION, BREAKS THE SERVICE WITHIN THE MEANING OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, AS AMENDED, AND THE LEAVE EARNED PRIOR TO THE INTERVENING PERIOD MAY NOT BE TRANSFERRED TO THE CREDIT OF AN EMPLOYEE AFTER THE INTERVENING PERIOD. SEE 16 COMP. GEN. 212; ID. 403; 17 ID. 830. COMPARE 18 ID. 317.

IT IS UNDERSTOOD FROM THE CORRESPONDENCE WITH YOUR LETTER THAT MR. FARMER WAS IN FACT A PROJECT WORKER--- NOT A CIVILIAN EMPLOYEE OF THE UNITED STATES--- DURING THE INTERVENING PERIOD AND FOR THAT REASON WAS EXEMPTED FROM LEAVE PRIVILEGES UNDER THE PROVISION IN SECTION 19 (E) OF THE ANNUAL LEAVE REGULATIONS WHICH READS:

THESE REGULATIONS SHALL NOT APPLY TO:

(E) PERSONS PAID SECURITY OR PREVAILING WAGES FROM FUNDS ALLOCATED BY THE WORKS PROGRESS ADMINISTRATION ON STATE, MUNICIPAL, OR OTHER PUBLIC BUT NON -FEDERAL PROJECTS, OR ON A FEDERAL PROJECT: PROVIDED, THAT ANNUAL LEAVE SHALL BE GRANTED IN ACCORDANCE WITH THESE REGULATIONS TO EMPLOYEES IN THE CENTRAL OFFICE OF THE WORKS PROGRESS ADMINISTRATION IN THE DISTRICT OF COLUMBIA AND AT DISTRICT AND LOCAL HEADQUARTERS, AND TO OTHER EMPLOYEES IN ADMINISTRATIVE OR CLERICAL POSITIONS WHO RECEIVE OTHER THAN SECURITY OR PREVAILING WAGES, AS PRESCRIBED IN EXECUTIVE ORDERS.

SEE ALSO 15 COMP. GEN. 1058; ID. 1129; 16 ID. 181; ID. 394.

ACCEPTING AS A FACT THAT MR. FARMER WAS A PROJECT WORKER--- NOT A CIVILIAN EMPLOYEE OF THE UNITED STATES--- DURING THE INTERVENING PERIOD, YOUR ADMINISTRATIVE ACTION IN REFUSING TO CREDIT HIM WITH THE 53 DAYS, 3 HOURS ANNUAL LEAVE EARNED PRIOR TO SEPTEMBER 12, 1938, AS AN ADMINISTRATIVE EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION, WAS CORRECT.