B-48666, APRIL 7, 1945, 24 COMP. GEN. 726

B-48666, APRIL 7, 1945, 24 COMP. GEN. 726

LUMP-SUM LEAVE PAYMENTS - TRANSFERS FROM PERMANENT TO TEMPORARY POSITIONS UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, PROVIDING FOR LUMP SUM PAYMENTS FOR EMPLOYEES' LEAVE UPON TRANSFER BETWEEN DIFFERENT LEAVE SYSTEMS, AN EMPLOYEE WHO TRANSFERS FROM A PERMANENT TO A TEMPORARY POSITION IN ANOTHER AGENCY--- BOTH POSITIONS FALLING WITHIN THE PURVIEW OF THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, PROVIDING FOR ONE LEAVE SYSTEM --- IS NOT ENTITLED TO PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT AT THE DATE OF TRANSFER, EVEN THOUGH, UNDER SECTION 4.9 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, IT IS NOT MANDATORY THAT HIS LEAVE CREDIT BE TRANSFERRED.

ACTING COMPTROLLER GENERAL YATES TO THE NATIONAL HOUSING ADMINISTRATION, APRIL 7, 1945:

I AM IN RECEIPT OF A LETTER DATED MARCH 22, 1945, FROM THE COMMISSIONER, FEDERAL PUBLIC HOUSING AUTHORITY, READING AS FOLLOWS:

YOUR OPINION IS REQUESTED ON THE APPLICATION OF THE LANE ACT, PUBLIC LAW NO. 525, 78TH CONGRESS, TO THE ACCRUED LEAVE OF A PERMANENT OR INDEFINITE EMPLOYEE WHO TRANSFERS TO A TEMPORARY POSITION IN ANOTHER AGENCY.

UNDER THIS LAW, A LUMP-SUM PAYMENT FOR ACCRUED AND ACCUMULATED ANNUAL LEAVE IS REQUIRED (1) WHEN A FEDERAL EMPLOYEE IS "SEPARATED FROM THE SERVICE," AND (2) "IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS.'

SECTION 4.9 (B) OF THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE PROVIDES THAT WHEN AN EMPLOYEE IS TRANSFERRED FROM A PERMANENT OR INDEFINITE POSITION TO A TEMPORARY POSITION IN ANOTHER AGENCY, IT IS WITHIN THE DISCRETION OF THE LATTER AGENCY TO DISALLOW CREDIT FOR LEAVE THERETOFORE ACCRUED IN THE PERMANENT POSITION.

DOES THE LANE ACT AFFECT THE OPERATION OF SECTION 4.9 (B) AS TO ANNUAL LEAVE? UNLESS IT DOES, AN AGENCY COULD REFUSE TO CREDIT ACCUMULATED ANNUAL LEAVE TO AN EMPLOYEE IN THE CASE COVERED BY THAT SECTION, AND COULD REFUSE LATER TO INCLUDE SUCH LEAVE IN COMPUTING THE LANE ACT LUMP-SUM PAYMENT DUE HIM IF HE SHOULD AT THE EXPIRATION OF HIS TEMPORARY APPOINTMENT BE SEPARATED FROM THE SERVICE. THIS RESULT DOES NOT APPEAR TO BE WITHIN THE CONGRESSIONAL PURPOSE TO PREVENT FORFEITURE OF THE MONETARY VALUE OF ANNUAL LEAVE ACCRUED BUT NOT TAKEN BY AN EMPLOYEE AS THE TIME OF LEAVING THE SERVICE.

THE LANE ACT FURTHER PROVIDES THAT IN THE EVENT A LUMP-SUM PAYMENT FOR ACCRUED LEAVE IS MADE, AND THE EMPLOYEE IS THEREAFTER RE-EMPLOYED BY A FEDERAL AGENCY WITHIN THE PERIOD FOR WHICH THE LEAVE PAYMENT WAS MADE, THE EMPLOYEE MUST REFUND TO THE NEW AGENCY THE AMOUNT APPLICABLE TO THE UNEXPIRED PERIOD. IN THAT CASE, IT IS REQUIRED THAT "THE AMOUNT OF LEAVE REQUESTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY.' THUS, IN THE CASE OF AN EMPLOYEE WHO IS SEPARATED FROM A PERMANENT POSITION AND IS THEN REAPPOINTED TO A TEMPORARY POSITION WITHIN THE SPECIFIED PERIOD, THE NEW AGENCY APPEARS TO HAVE NO OPTION BUT TO ALLOW CREDIT. IT MAY REASONABLY BE ASSUMED THAT CONGRESS DID NOT INTEND TO GRANT A LESSER RIGHT TO AN EMPLOYEE WHO MAKES A CHANGE BY TRANSFER INSTEAD OF BY SEPARATION AND REAPPOINTMENT.

THE STATUTE IS, HOWEVER, NOT EXPLICIT ON THE POINT AND YOUR INTERPRETATION WILL BE HELPFUL.

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, IS NOT APPLICABLE TO THE CASE OF AN EMPLOYEE WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER WITHOUT A BREAK IN SERVICE BECAUSE IN SUCH A SITUATION THERE WOULD BE NO SEPARATION FROM THE SERVICE. SECTION 3 OF THE SAME STATUTE, 58 STAT. 846, IS NOT APPLICABLE TO THE CASE OF AN EMPLOYEE WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION UNDER THE SAME LEAVE SYSTEM--- THE EMPLOYEE BEING ENTITLED TO LEAVE IN BOTH POSITIONS UNDER THE SAME LEAVE LAW--- REGARDLESS OF THE PROVISIONS OF THE REGULATIONS CONTROLLING THE TRANSFER OF LEAVE CREDITS. HENCE, AN EMPLOYEE TRANSFERRED FROM A PERMANENT TO A TEMPORARY POSITION, AS DEFINED FOR LEAVE PURPOSES, BOTH POSITIONS FALLING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDING FOR ONE LEAVE SYSTEM, IS NOT ENTITLED TO BE PAID IN A LUMP SUM UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, FOR THE ANNUAL LEAVE TO HIS CREDIT AT THE DATE OF TRANSFER EVEN THOUGH SUCH LEAVE CREDIT IS NOT TRANSFERABLE FROM THE PERMANENT TO THE TEMPORARY POSITION. SECTION 3 OF THE STATUTE SPECIFICALLY IS APPLICABLE TO TRANSFERS BETWEEN DIFFERENT LEAVE SYSTEMS, ONLY, AND THIS OFFICE MAY NOT, BY CONSTRUCTION ALONG THE LINE SUGGESTED IN YOUR LETTER, AUTHORIZE A LUMP- SUM PAYMENT FOR LEAVE WHEN SUCH PAYMENT IS NOT AUTHORIZED BY THE STATUTE.