B-58413, JULY 10, 1946, 26 COMP. GEN. 11

B-58413, JULY 10, 1946, 26 COMP. GEN. 11

LUMP-SUM LEAVE PAYMENTS - TRANSFERS BETWEEN AGENCIES WITHOUT RECREDIT OF LEAVE - PAYMENT LIABILITY WHERE AN AGENCY, IN THE EXERCISE OF ITS DISCRETION UNDER SECTION 4.9 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, DID NOT CREDIT AN EMPLOYEE, UPON TRANSFER FROM A PERMANENT POSITION IN ANOTHER AGENCY TO A TEMPORARY POSITION WITH THE ANNUAL LEAVE WHICH ACCRUED IN THE PERMANENT POSITION, A LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR THE ACCUMULATED ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT AT THE DATE OF TRANSFER MAY NOT, UPON SUBSEQUENT SEPARATION FROM THE SERVICE, BE MADE BY THE AGENCY TO WHICH TRANSFERRED.

ACTING COMPTROLLER GENERAL YATES TO M. H. KENNEDY, DEPARTMENT OF AGRICULTURE, JULY 10, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1946, YOUR FILE FI-412 MHK, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION THE ENCLOSED STANDARD FORM NO. 1128," PAY ROLL FOR PERSONAL SERVICES," BUREAU VOUCHER NO. 2-2700 -P, IN THE GROSS AMOUNT OF $54.52, REPRESENTING THE LUMP SUM PAYMENT OF FIFTY-FOUR (54) HOURS OF ACCRUED ANNUAL LEAVE AS PROVIDED BY SECTION I OF THE LANE ACT OF DECEMBER 21, 1944, PUBLIC LAW NO. 525.

THIS PARTICULAR EMPLOYEE, EFFECTIVE MARCH 1, 1946, WAS TRANSFERRED, DUE TO A REDUCTION IN FORCE, FROM A PERMANENT OR INDEFINITE POSITION IN THE SIGNAL CORPS, WAR DEPARTMENT, TO A TEMPORARY POSITION, ACCOUNTING CLERK, CAF-4, $2,100.00 PER ANNUM, IN THE PRODUCTION AND MARKETING ADMINISTRATION, DEPARTMENT OF AGRICULTURE,--- BOTH POSITIONS FALLING WITHIN THE PURVIEW OF THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, PROVIDING FOR ONE LEAVE SYSTEM. HOWEVER, DUE TO THE DISSATISFACTION OF THE TYPE OF WORK TO WHICH ASSIGNED IN THE DEPARTMENT OF AGRICULTURE, THE EMPLOYEE RESIGNED FROM THE TEMPORARY POSITION EFFECTIVE MARCH 15, 1946, COB. AT THE TIME OF TRANSFER, STANDARD FORM NO. 70A," LEAVE RECORD," WAS CERTIFIED BY THE WAR DEPARTMENT TO THIS OFFICE FOR FIFTY-FOUR (54) HOURS ACCRUED ANNUAL LEAVE AND TWO (2) HOURS ACCRUED SICK LEAVE, AND IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE, THE ACCRUED LEAVE WOULD HAVE BEEN HELD TO HER CREDIT PENDING A REAPPOINTMENT TO A PERMANENT OR INDEFINITE POSITION. THE EMPLOYEE WAS ABSENT FROM DUTY EIGHT (8) HOURS, DUE TO SICKNESS, ON MARCH 11, 1946, AND INASMUCH AS THE REGULATIONS APPLICABLE TO TEMPORARY EMPLOYEES PROHIBIT THE GRANTING OF LEAVE CREDITS FOR PART OF A MONTH OF SERVICE, A CHARGE FOR EIGHT (8) HOURS " LEAVE WITHOUT PAY" WAS MADE ON THE PREVIOUS PAY ROLL.

SECTION 4.9 (B) OF THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE PROVIDES THAT WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED OR TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A PERMANENT OR INDEFINITE POSITION TO A TEMPORARY POSITION IN A DIFFERENT AGENCY, A STATEMENT OF THE LEAVE ACCOUNT SHALL BE FURNISHED, AND IF SUBSEQUENTLY THE EMPLOYEE IS APPOINTED, REAPPOINTED OR TRANSFERRED WITHOUT A BREAK IN SERVICE TO A PERMANENT OR INDEFINITE POSITION THE AMOUNT OF LEAVE SHOWN TO BE DUE SHALL BE CREDITED TO THE ACCOUNT, AND THAT IT IS WITHIN THE DISCRETION OF THE EMPLOYING AGENCY TO DISALLOW CREDIT FOR LEAVE ACCRUED IN THE FORMER PERMANENT POSITION.

A DECISION IS, THEREFORE, REQUESTED ON THE FOLLOWING:

IF AN EMPLOYEE IS TRANSFERRED FROM A PERMANENT OR INDEFINITE POSITION IN ANOTHER DEPARTMENT (OUTSIDE THE DEPARTMENT OF AGRICULTURE) TO A TEMPORARY POSITION IN THE DEPARTMENT OF AGRICULTURE UNDER THE SAME LEAVE REGULATIONS AND THE EMPLOYEE WAS FURNISHED WITH A STATEMENT OF LEAVE TO BE CREDITED AT SUCH A TIME AS ANOTHER PERMANENT OR INDEFINITE APPOINTMENT WITHOUT A BREAK IN SERVICE, IS RECEIVED, WHICH DEPARTMENT (TRANSFEROR OR TRANSFEREE) IS RESPONSIBLE FOR THE LIQUIDATION OF THE ACCRUED LEAVE IN CASE THE EMPLOYEE RESIGNS OR IS SEPARATED PRIOR TO RECEIVING A PERMANENT OR INDEFINITE POSITION IN THE DEPARTMENT OF AGRICULTURE?

THE ENCLOSED PAY ROLL VOUCHER HAS BEEN PREPARED ON THE BASIS OF THE DEPARTMENT OF AGRICULTURE ASSUMING THE OBLIGATION OF PAYING THE AMOUNT INVOLVED IN THE LUMP-SUM PAYMENT, AND I WOULD APPRECIATE BEING ADVISED AS TO WHETHER OR NOT THE VOUCHER SHOULD BE CERTIFIED AND PAID BY THIS AGENCY.

IN 24 COMP. GEN. 726, IT WAS HELD (QUOTING FROM THE SYLLABUS):

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.

AS INDICATED IN YOUR LETTER, WHEN AN EMPLOYEE IS TRANSFERRED FROM A PERMANENT POSITION IN ONE DEPARTMENT TO A TEMPORARY POSITION IN ANOTHER DEPARTMENT, IT IS NOT MANDATORY UPON THE AGENCY TO WHICH TRANSFERRED THAT THE EMPLOYEE BE CREDITED WITH THE LEAVE DUE HIM IN THE AGENCY FROM WHICH TRANSFERRED, BUT DISCRETIONARY ONLY. SINCE NO LEAVE ACCRUES IN A TEMPORARY POSITION FOR LESS THAN ONE FULL MONTH'S SERVICE (23 COMP. GEN. 638), AND SINCE THE ABSENCE IN THE TEMPORARY POSITION WAS CHARGED AS LEAVE WITHOUT PAY, IT IS ASSUMED THAT THE DEPARTMENT OF AGRICULTURE IN THIS CASE DID NOT CREDIT THE EMPLOYEE WITH THE LEAVE ACCRUED TO HIM WHILE IN THE WAR DEPARTMENT. UPON THAT ASSUMPTION, THE ONLY ACCUMULATED LEAVE FOR WHICH LUMP-SUM PAYMENT COULD BE MADE BY YOUR DEPARTMENT UPON THE SUBSEQUENT SEPARATION OF THE EMPLOYEE WOULD BE SUCH AS ACCRUED BY REASON OF HIS TEMPORARY SERVICE, BUT IN THAT CONNECTION, NO LEAVE ACCRUES IN A TEMPORARY POSITION FOR LESS THAN ONE FULL MONTH OF SERVICE. 23 COMP. GEN. 638. ACCORDINGLY, NO PAYMENT FROM ANY APPROPRIATION UNDER THE CONTROL OF THE AGRICULTURE DEPARTMENT MAY BE MADE IN THIS CASE.

IN VIEW OF THE FOREGOING, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.