B-56925, MAY 15, 1946, 25 COMP. GEN. 778

B-56925, MAY 15, 1946, 25 COMP. GEN. 778

LUMP-SUM LEAVE PAYMENTS - REFUNDS - EMPLOYMENT IN TEMPORARY POSITION AFTER SEPARATION FROM TEMPORARY POSITION WHERE AN EMPLOYEE WAS SEPARATED FROM A TEMPORARY POSITION IN ONE AGENCY AND REEMPLOYED BY ANOTHER IN A TEMPORARY POSITION PRIOR TO THE EXPIRATION OF THE LEAVE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT RECEIVED PURSUANT TO THE ACT OF DECEMBER 21, 1944, SUCH EMPLOYEE, NOT BEING ENTITLED UNDER THE ANNUAL AND SICK LEAVE REGULATIONS TO THE TRANSFER OF LEAVE CREDITS BETWEEN SUCH POSITIONS, IS NOT REQUIRED TO REFUND AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE UNEXPIRED PORTION OF SUCH LEAVE PERIOD, AS IS REQUIRED BY SAID ACT WHEN THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND MAY BE CREDITED TO THE EMPLOYEE BY THE EMPLOYING AGENCY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, MAY 15, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF APRIL 2, 1946, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE APPLICATION OF THE LANE ACT, PUBLIC LAW 525, 78TH CONGRESS AS TO THE STATUS OF THE ACCRUED LEAVE OF A TEMPORARY EMPLOYEE SEPARATED FROM A TEMPORARY POSITION IN ONE AGENCY AND SUBSEQUENTLY APPOINTED TO A TEMPORARY POSITION IN ANOTHER AGENCY.

ON DECEMBER 1, 1945, THE PUBLIC BUILDINGS ADMINISTRATION, FIELD SERVICE, APPOINTED AN EMPLOYEE, AS A TEMPORARY OPERATING ENGINEER, CPC 7, $2364 PER ANNUM FOR A PERIOD NOT TO EXCEED SIX MONTHS. THE EMPLOYEE WAS PREVIOUSLY EMPLOYED BY THE WAR DEPARTMENT IN A TEMPORARY POSITION WHICH WAS TERMINATED BY THAT AGENCY AT THE CLOSE OF BUSINESS NOVEMBER 28, 1945. PURSUANT TO THE PROVISIONS OF PUBLIC LAW NO. 525 THE WAR DEPARTMENT MADE A LUMP SUM PAYMENT TO THIS EMPLOYEE AT THE TERMINATION OF HIS APPOINTMENT FOR 228 HOURS OF ACCRUED LEAVE TO HIS CREDIT AT $1.12 PER HOUR WHICH COVERED THE PERIOD NOVEMBER 29, 1945 TO AND INCLUDING NOON JANUARY 10, 1946.

IN VIEW OF THE INTERPRETATION PLACED ON PART FOUR--- GENERAL PROVISIONS, SECTIONS 4.8 AND 4.9 OF THE ANNUAL AND SICK LEAVE LAWS AND REGULATIONS FOR GOVERNMENT EMPLOYEES ( REVISED EFFECTIVE JANUARY 1, 1945) THAT NO PROVISION IS MADE FOR THE TRANSFERRING OR CREDITING OF LEAVE ACCRUED WHILE IN A TEMPORARY STATUS IN ONE DEPARTMENT OR AGENCY AND SUBSEQUENTLY EMPLOYED IN A TEMPORARY POSITION IN ANOTHER DEPARTMENT OR AGENCY PRIOR TO THE EXPIRATION OF THE PERIOD OF ACCRUED LEAVE, THE FOLLOWING QUESTIONS ARE PRESENTED:

1. IS THIS EMPLOYEE REQUIRED UNDER SECTION 1 OF THE ACT OF DECEMBER 1, 1944, PUBLIC LAW 525, TO MAKE A CASH REFUND FOR 212 HOURS OF LEAVE COVERING THE PERIOD DECEMBER 1, 1945 TO AND INCLUDING NOON JANUARY 10, 1946 UPON HIS ENTRANCE ON TEMPORARY DUTY IN THIS AGENCY.

2. IF THIS EMPLOYEE IS REQUIRED TO MAKE A CASH REFUND SHOULD HE BE CREDITED WITH THE LEAVE COVERED BY THE REFUND IN HIS TEMPORARY POSITION.

3. IN THE EVENT THAT THIS EMPLOYEE SHOULD BE CREDITED WITH THE REFUND LEAVE AND IS SUBSEQUENTLY SEPARATED FROM THE SERVICE SHALL HE BE PAID A LUMP SUM FOR ANY PORTION OF THE REFUNDED LEAVE TOGETHER WITH ANY OTHER LEAVE ACCRUED TO HIS CREDIT.

IT IS PROVIDED IN THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 845, THAT AN EMPLOYEE WHO HAS RECEIVED A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE AND IS REEMPLOYED IN THE FEDERAL SERVICE UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION DATE OF THE LEAVE PERIOD, AND THAT ,THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM BY THE EMPLOYING AGENCY.' IT IS THEREFORE APPARENT THAT, AS CONDITION PRECEDENT TO THE REQUIREMENT THAT AN EMPLOYEE REFUND ANY PART OF THE LUMP-SUM PAYMENT, THE EMPLOYING AGENCY MUST CREDIT THAT EMPLOYEE WITH THE AMOUNT OF LEAVE REPRESENTED THEREBY.

THE REVISION OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1945, DOES NOT PROVIDE FOR THE TRANSFER OF LEAVE CREDITS WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED FROM A TEMPORARY POSITION IN ONE AGENCY TO A TEMPORARY POSITION IN A DIFFERENT AGENCY. HENCE, THERE IS NO REQUIREMENT THAT THE EMPLOYEE REFERRED TO IN YOUR SUBMISSION MAKE A CASH REFUND COVERING ANY PORTION OF THE UNEXPIRED LEAVE PERIOD UPON HIS APPOINTMENT IN YOUR AGENCY TO A TEMPORARY POSITION BECAUSE THE RECREDITING TO HIM OF ANY PORTION OF THE LEAVE REPRESENTED BY SUCH REFUND WOULD BE TANTAMOUNT TO CIRCUMVENTING THE LEAVE REGULATIONS.