B-58518, JULY 11, 1946, 26 COMP. GEN. 13

B-58518, JULY 11, 1946, 26 COMP. GEN. 13

LEAVES OF ABSENCE - FULL TIME EMPLOYEE TRANSFERRED TO "WHEN ACTUALLY EMPLOYED" BASIS AN EMPLOYEE WHO WAS TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A FULL TIME PER ANNUM POSITION TO A "WHEN ACTUALLY EMPLOYED" POSITION IN THE SAME AGENCY, BOTH POSITIONS BEING "PERMANENT" OR ,INDEFINITE" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, MAY BE GRANTED ANNUAL LEAVE TO COVER THE INTERVAL BETWEEN HIS LAST DAY OF WORK UNDER THE FULL TIME POSITION AND THE EFFECTIVE DATE OF THE "WHEN ACTUALLY EMPLOYED" APPOINTMENT, OR, IF THE EMPLOYEE'S ANNUAL LEAVE IS INSUFFICIENT TO COVER SUCH AN INTERVAL, HE MAY BE PLACED IN A LEAVE WITHOUT-PAY STATUS. AN EMPLOYEE WHO WAS TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A FULL TIME PER ANNUM POSITION TO A "WHEN ACTUALLY EMPLOYED" POSITION IN THE SAME AGENCY, BOTH POSITIONS BEING "PERMANENT" OR ,INDEFINITE" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, IS ENTITLED TO HAVE HIS ANNUAL AND SICK LEAVE TRANSFERRED TO HIS CREDIT IN THE NEW POSITION PURSUANT TO SECTION 4.8 OF SAID REGULATIONS; AND, UPON COMPLETION OF SERVICE FOR "A PERIOD OF NOT LESS THAN 1 MONTH" UNDER SECTION 1.1 (D) OF SAID REGULATIONS, THE EMPLOYEE BECAME SUBJECT TO SAID REGULATIONS AND EARNS LEAVE WHILE SERVING IN HIS NEW POSITION.

ACTING COMPTROLLER GENERAL YATES TO JULIAN D. SEARS, DEPARTMENT OF THE INTERIOR, JULY 11, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1946, IN MATERIAL PART, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION THE ATTACHED VOUCHER IN FAVOR OF ARTHUR RICHARDS IN THE GROSS AMOUNT OF $70.00. MR. RICHARDS WAS CHANGED FROM A FULL-TIME APPOINTMENT AT $3,640 PER ANNUM TO A W.A.E. APPOINTMENT AT THE SAME SALARY RATE; THE CHANGE WAS APPROVED ON MARCH 8, 1946, AND BECAME EFFECTIVE MARCH 18, 1946. MR. RICHARDS' LAST DAY OF ACTUAL WORK ON THE FULL-TIME BASIS WAS FEBRUARY 8, 1946. HIS ACCRUED AND ACCUMULATED ANNUAL LEAVE AT THE CLOSE OF FEBRUARY 8 WAS 502 HOURS; THIS WOULD COVER THE PERIOD FEBRUARY 9 THROUGH 6 HOURS MAY 9, 1946.

IN CASES SUCH AS THIS, IN WHICH AN EMPLOYEE IS CHANGED FROM A FULL TIME POSITION (CLEARLY SUBJECT TO THE LEAVE REGULATIONS) TO A W.A.E. POSITION (IN WHICH THE POSSIBILITY EXISTS THAT HE MAY WORK A CONTINUOUS PERIOD OF THIRTY DAYS), IT IS THE OPINION OF THE GEOLOGICAL SURVEY (A) THAT THE EMPLOYEE EARNS LEAVE UNDER HIS FULL-TIME APPOINTMENT UP TO THE DATE THAT THE W.A.E. APPOINTMENT BECOMES EFFECTIVE; (B) THAT THE EMPLOYEE CAN BE PLACED ON ANNUAL LEAVE FOR THE INTERVAL BETWEEN HIS LAST DAY OF WORK UNDER THE FULL-TIME APPOINTMENT AND THE EFFECTIVE DATE OF THE W.A.E. APPOINTMENT; (C) THAT IF THE LEAVE TO THE EMPLOYEE'S CREDIT IS INSUFFICIENT TO COVER THE ENTIRE INTERVAL, HE MAY BE PLACED ON LEAVE- WITHOUT-PAY FOR THE PERIOD NOT COVERED BY ANNUAL LEAVE; (D) THAT IF THE LEAVE IS MORE THAN SUFFICIENT TO COVER THE INTERVAL, THE BALANCE REMAINS TO HIS CREDIT UNDER THE W.A.E. APPOINTMENT; AND (E) THAT HE IS SUBJECT TO THE LEAVE REGULATIONS WHILE OCCUPYING THE W.A.E. POSITION AND EARNS LEAVE WHEN HE IS IN A PAY STATUS FOR 30 CONSECUTIVE DAYS. ON THE ASSUMPTION THAT THIS OPINION IS CORRECT, THE ATTACHED VOUCHER HAS BEEN PREPARED TO PAY MR. RICHARDS FOR 40 HOURS ANNUAL LEAVE CHARGED AS VACATION LEAVE FOR THE PERIOD MARCH 10 THROUGH MARCH 17, 1946. HE ALREADY HAS BEEN PAID SALARY FOR FEBRUARY 9 THROUGH MARCH 9. THE BALANCE OF 330 HOURS ANNUAL LEAVE (WHICH INCLUDES 20 ADDITIONAL HOURS EARNED DURING THE PERIOD FEBRUARY 9 THROUGH MARCH 17) WILL REMAIN TO HIS CREDIT UNTIL HE SUBMITS TIME REPORTS SHOWING HIMSELF ON VACATION LEAVE DURING HIS W.A.E. APPOINTMENT.

I RESPECTFULLY REQUEST YOUR OPINION AS TO WHETHER I AM AUTHORIZED TO APPROVE THE ENCLOSED VOUCHER WHICH HAS BEEN PREPARED IN ACCORDANCE WITH THE THESIS STATED ABOVE.

SECTION 1.1 (D) OF THE REVISION OF ANNUAL AND SICK LEAVE LAWS AND REGULATIONS OF JANUARY 1, 1945, PROVIDES AS FOLLOWS:

SECTION 1.1 AS USED IN THESE REGULATIONS:

(D) "INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

FROM THE FACTS OF RECORD IT APPEARS THAT MR. RICHARDS WAS TRANSFERRED WITHOUT BREAK IN SERVICE FROM A FULL-TIME POSITION AT $3,640 PER ANNUM IN THE DEPARTMENT OF THE INTERIOR TO A POSITION IN THAT DEPARTMENT AT THE SAME SALARY RATE TO BE PAID ON THE BASIS OF WHEN ACTUALLY EMPLOYED. WHILE NO INFORMATION IS FURNISHED AS TO THE DURATION OF THE APPOINTMENTS HERE INVOLVED, PRESUMABLY BOTH POSITIONS WERE PERMANENT OR INDEFINITE WITHIN THE MEANING OF THOSE TERMS AS USED IN THE ANNUAL AND SICK LEAVE REGULATIONS.

WITH RESPECT TO AN EMPLOYEE'S RIGHT TO ACCRUE ANNUAL LEAVE WHEN COMPENSATED ON THE BASIS OF WHEN ACTUALLY EMPLOYED, IT WAS HELD IN DECISION OF NOVEMBER 17, 1938, A-98989, 18 COMP. GEN. 457, IN PERTINENT PART, AS FOLLOWS:

WHEN AN EMPLOYEE IS GIVEN AN APPOINTMENT FOR AN INDEFINITE PERIOD WITH COMPENSATION AT PER DIEM RATES WHEN ACTUALLY EMPLOYED, IT IS TO BE PRESUMED THAT HE WILL BE AVAILABLE FOR DUTY WHENEVER CALLED ALTHOUGH PERFORMANCE EACH TIME CALLED MAY NOT BE COMPULSORY. SUCH AN APPOINTMENT ENTITLES THE EMPLOYEE TO ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH IF AND WHEN THE PERIOD OF SERVICE RENDERED IS SUFFICIENT IN ACCORDANCE WITH 17 COMP. GEN. 1017. * * *

ALTHOUGH THE ABOVE-QUOTED DECISION, AND THE DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, CITED THEREIN, WERE RENDERED WITH RELATION TO LEAVE REGULATIONS IN EFFECT AT THAT TIME, THE PROVISIONS OF SECTION 1.1 (D) OF THE CURRENT LEAVE REGULATIONS, AS QUOTED ABOVE, SUBSTANTIALLY CONFORM WITH THE REGULATIONS THERE CONSIDERED. HENCE, THE RULE STATED IN THE SAID DECISIONS HAS EQUAL APPLICATION TO THE MATTER UNDER CONSIDERATION HERE.

ACCORDINGLY, AS BOTH POSITIONS HERE INVOLVED ARE WITHIN THE PURVIEW OF THE ANNUAL AND SICK LEAVE REGULATIONS OF JANUARY 1, 1945, UPON THE TRANSFER OR REAPPOINTMENT OF AN EMPLOYEE FROM ONE POSITION TO THE OTHER THE MATTER OF ANNUAL LEAVE IS FOR DISPOSITION IN ACCORDANCE WITH SECTION 4.8 OF SUCH REGULATIONS WHICH PROVIDES AS FOLLOWS:

WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED FROM ONE PERMANENT OR INDEFINITE POSITION TO ANOTHER PERMANENT OR INDEFINITE POSITION, WITHOUT A BREAK IN SERVICE, HIS LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS:

IF THE POSITION IS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO THE EMPLOYEE.

SPECIFICALLY, THE OPINION SET FORTH IN THE SECOND PARAGRAPH OF YOUR LETTER APPEARS TO BE AN ACCURATE APPLICATION OF THE ANNUAL LEAVE LAWS AND REGULATIONS WITH RESPECT TO THE CASE OF ARTHUR RICHARDS, AND THE SUBMITTED VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.